                    IN THE COURT OF APPEALS OF IOWA

                                 No. 18-0755
                              Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DERRICK DEONTE MOORE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.



      A defendant appeals convictions for burglary, harassment, domestic abuse

assault, and marijuana possession. AFFIRMED.



      Matthew W. Boleyn of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                         2


TABOR, Presiding Judge.

        Derrick Moore appeals his convictions for burglary in the first degree,

harassment in the third degree, domestic abuse assault causing bodily injury, and

possession of marijuana. He contends the State failed to offer sufficient evidence

to support his convictions and he was prejudiced by trial counsel’s subpar

performance. Finding the State offered substantial evidence of burglary and drug

possession, we affirm those convictions. Finding Moore failed to preserve error

on his challenges to the remaining counts, we decline to disturb the jury verdicts.

Because further development of the record is necessary to resolve Moore’s

allegations of ineffective assistance of counsel, we preserve those claims for

possible postconviction-relief (PCR) proceedings.

I.      Facts and Prior Proceedings

        In the fall of 2017, Moore was dating A.S., often staying overnight at her

apartment. But on September 1, they argued for most of the day and night—both

over the telephone and through text messages. The situation escalated so much

that A.S. called 911 just after 6 a.m. on September 2, telling dispatch she feared

for her safety if Moore returned to the apartment. She also barricaded her front

door.

        True to A.S.’s fears, Moore forced his way into the apartment. He knocked

the telephone from A.S.’s hand as she tried to call 911 again. A.S. testified Moore

started hitting her. In her words: “He just kept swinging over and over.” She

recalled he struck her in the head and she fell to the ground, briefly losing

consciousness. Moore also wielded a metal mop handle, landing blows to A.S.’s

legs and arms.
                                            3


       Meanwhile, dispatch tried calling back to check on A.S. Soon police officers

arrived at her apartment and knocked on the door. No one answered, but they

could hear a woman crying inside. The officers pushed through the door and found

A.S. in the kitchen. They then found Moore hiding in a closet. Upon searching

Moore’s pockets, the officers discovered two small plastic “gem bags”1 containing

a green leafy substance that later tested positive as marijuana.

       A.S. received treatment at Finley Hospital. An emergency room doctor

found she had a ruptured ear drum and bruising starting to develop on both of her

legs and left arm.

       As a result of the incident, the State charged Moore with six counts:

       Count I.        Burglary in the first degree;
       Count II.       Harassment in the first degree;
       Count III.      Domestic Abuse Assault Causing Bodily Injury;
       Count IV.       Possession of a Controlled Substance;
       Count V.        Willful Injury Causing Serious Injury; and
       Count VI.       Domestic Abuse Assault While Using or Displaying a
                       Dangerous Weapon.

       A jury convicted Moore of the following offenses:

       Count I.        Burglary in the first degree;
       Count II.       Harassment in the third degree;
       Count III.      Domestic Abuse Assault Causing Bodily Injury;
       Count V.        Assault Causing Bodily Injury; and
       Count VI.       Domestic Abuse Assault.

       The parties tried Count IV, marijuana possession, to the bench, also

resulting in a finding of guilt.




1
  The officer explained: “They're the smaller bags that are technically supposed to be used
for gems that jewelers use. They’re very small, and they have—they hold pills, weed,
gems, in theory.”
                                              4


       In a post-trial hearing, the court merged the convictions for assault causing

bodily injury (Count V) and domestic abuse assault (Count VI) into the conviction

for domestic abuse assault causing bodily injury (Count III). The court denied

Moore’s motion for new trial and motion in arrest of judgment.2 He received an

indeterminate sentence of twenty-five years for the burglary conviction, to run

concurrently with sentences of thirty days, five years, and ninety days on the

remaining counts. Moore appeals.

II.    Analysis

       A. Sufficiency of the Evidence for Harassment, Assault, and Burglary

       Before reaching Moore’s sufficiency challenges, we address two threshold

issues raised by the State.

       1.      Simple      misdemeanor        discretionary     review.        Third-degree

harassment is a simple misdemeanor. Iowa Code § 708.7(4)(b) (2017). As such,

Moore had no right to directly appeal that conviction. See id. § 814.6(1)(a); Tyrell

v. Iowa Dist. Court, 413 N.W.2d 674, 675 (Iowa 1987). As the State points out, we

may treat Moore’s appeal of the simple-misdemeanor conviction as a request for

discretionary review. See Iowa R. App. P. 6.108. Because it is closely linked to

the indictable offenses properly on appeal, we opt to do so. See Iowa R. App.

6.106(2).




2
  Moore claimed, for the first time, he did not receive a fair trial because the jury contained
no African-Americans; he also raised several sufficiency-of-the-evidence arguments
duplicated in the motion for new trial. The district court agreed with the State: He could
not raise the jury issue once the jurors had been sworn; nor could he raise sufficiency
arguments in a motion in arrest of judgment. Moore now raises the issue within the
ineffective-assistance-of-counsel framework.
                                         5

       2.      Error preservation: harassment and assault. “To preserve error on a

claim of insufficient evidence for appellate review in a criminal case, the defendant

must make a motion for judgment of acquittal at trial that identifies the specific

grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004).

The State argues Moore did not preserve error on his sufficiency claims for

harassment and domestic abuse assault because he did not raise the same

grounds at trial that he asserts here.

       We agree with the State’s error-preservation argument. On appeal of the

harassment count, Moore contends the contact between him and A.S. was

“mutual.”   In the district court, he argued the State offered no evidence he

communicated a threat to commit a forcible felony, an element of first-degree

harassment,3 or a threat to cause bodily injury, an element of second-degree

harassment.4     He did not contest third-degree harassment, the ultimate jury

verdict.5 Accordingly, his motion for judgment of acquittal did not preserve his new

argument.

       On appeal of his conviction for domestic abuse assault causing bodily injury,

Moore attacks A.S.’s credibility and asserts “it is reasonable to believe the assault

was self-inflicted and staged.” But in his motion for judgment of acquittal, he



3
  “A person commits harassment in the first degree when the person commits harassment
involving . . . A threat to commit a forcible felony.” Iowa Code § 708.7(2)
4
   “A person commits harassment in the second degree when the person commits
harassment involving a threat to commit bodily injury, . . . .” Iowa Code § 708.7(3)
5
  The third-degree harassment instruction included the following elements:
                 1. On or about the 2nd day of September 2017, Defendant,
        purposefully and without legitimate purpose, had personal contact with
        [A.S.].
                 2. Defendant did so with the specific intent to intimate, annoy or
        alarm [A.S.].
                                            6


questioned whether the mop constituted a dangerous weapon, the key element of

Count VI, domestic abuse assault while using or displaying a dangerous weapon.

Trial counsel then asserted if the court acquitted Moore on the greater charge, “all

of those lesser included need to go as well, and that it can be taken care of under

Count III. Count VI needs to go away. That needs to be dismissed, and we believe

you can do that.”6 Because Moore challenged the assault crimes on different

grounds in the district court, we conclude he did not preserve the sufficiency issues

he now raises on appeal. Without reaching the merits of his claims, we affirm his

convictions for third-degree harassment and domestic abuse assault causing

bodily injury.7

       3. Substantial evidence: burglary in the first degree. “We review challenges

to the sufficiency of evidence for correction of errors at law.” State v. Tipton, 897

N.W.2d 653, 692 (Iowa 2017). We will uphold a verdict of guilty if it is supported

by substantial evidence. Id. Substantial evidence exists when a rational trier of

fact would be convinced the defendant is guilty beyond a reasonable doubt. Id.

We view all relevant evidence in the light most favorable to the State. Id. Evidence


6
  In his reply brief, Moore asserts the grounds for his motion were “obvious and understood
by the trial court and counsel.” See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005)
(applying error preservation exception where record demonstrates counsel and the court
understood grounds for motion despite imprecision). We disagree, particularly because
the court did not contemporaneously address the issue Moore raises here—that the
assault was self-inflicted and staged.
7
  Moore raised these issues in a motion for new trial, and the court properly decided them
on the weight-of-the-evidence standard. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa
1998) (holding motions for new trial are judged on the weight-of-the-evidence standard,
not a sufficiency-of-the-evidence standard). Moore also raised them in his motion in arrest
of judgment; the court correctly decided Iowa Rule of Criminal Procedure 2.24(3) does not
permit a challenge to the sufficiency of the evidence in a motion in arrest of judgment.
See also State v. Oldfather, 306 N.W.2d 760, 762 (Iowa 1981) (“A motion in arrest of
judgment may not be used to challenge the sufficiency of the evidence.”). Neither of those
motions preserved his substantial-evidence challenges.
                                            7

is not substantial if it raises only suspicion, speculation, or conjecture. State v.

Howse, 875 N.W.2d 684, 688 (Iowa 2016).

           The State had the burden to show Moore “did not have permission or

authority to enter into the residence” on the morning of September 2.8 Moore

asserts he had permission to enter because he was essentially living with A.S.—

he slept at her apartment most nights and could come and go from the residence

at will.

           Indeed, A.S. testified Moore would spend the night at her apartment “most

of the time.” But a reasonable jury could have concluded from her testimony that

she revoked any prior permission Moore had to be in her apartment by declining

to pick him up the night of September 1, communicating her fears to police, and

barricading her front door to bar his entry into the apartment. See State v. Peck,

539 N.W.2d 170, 172 (Iowa 1995) (explaining “a party may not have a right to enter

a home, even if it is his own”). In addition, A.S. was the protected party under a

no-contact order restricting Moore’s conduct. Even if A.S. had invited Moore to

her apartment on other occasions, his presence there was prohibited by law. See

id. at 173 (“Application of our burglary law in these circumstances will tend to

discourage domestic violence and promote security in the home.”).

           Moore flags inconsistencies in A.S.’s testimony, but her credibility was a

question for the jury. See State v. Hunt, 801 N.W.2d 366, 377 (Iowa Ct. App. 2011)

(“The very function of the jury is to sort out the evidence and place credibility where




8
 Moore advanced just one ground in his motion for judgment of acquittal: Whether he had
permission to enter the apartment. Accordingly, that is the only ground preserved for our
review.
                                           8

it belongs.”). The district court found substantial evidence for the jury to decide

“whether or not he had a reasonable understanding that he was permitted to be

there, based on the things that were said, not only to the dispatch but by [A.S.]

here in the courtroom.” The court’s ruling was correct. The State presented

substantial evidence Moore committed burglary in the first degree.

       B. Substantial Evidence: Possession of Marijuana

       The parties tried the marijuana-possession count to the bench. The district

court found Moore guilty of knowingly or intentionally possessing the controlled

substance, in violation of Iowa Code section 124.401(5). Following trial to the

court, we review a sufficiency-of-the-evidence challenge for correction of legal

error.9 State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). The district court’s

findings of guilt are binding on us if backed by substantial evidence. Id. “Evidence

is substantial if it would convince a rational trier of fact the defendant is guilty

beyond a reasonable doubt.” Id. We still view the record in the light most favorable

to the State and make all legitimate inferences and presumptions that may

reasonably be inferred from the evidence. State v. Quinn, 691 N.W.2d 403, 407

(Iowa 2005).

       Moore contends the State did not prove he knowingly or intentionally

possessed the marijuana. He asserts the court presumed without supporting

evidence that he knew marijuana was inside the plastic bags in his pocket. His

assertion is without merit. The court could reasonably infer Moore was aware the

substance in his front pocket was marijuana. The police officers pulled out two


9“When a sufficiency of the evidence claim is made on appeal from a criminal bench trial,
error preservation is no barrier.” Howse, 875 N.W.2d at 688 (edited for readability).
                                          9


gem bags, which commonly hold contraband. Gem bags “may be used for the

redistribution of marijuana.” See United States v. Allen, No. CR10-1004, 2010 WL

1328162, at *1 (N.D. Iowa Apr. 2, 2010). The officers identified the green leafy

material inside the bags by sight and smell as marijuana.        Given the telltale

packaging, the easily-identifiable appearance and scent of the drug, and the

location in his front pants pocket, the court reasonably inferred that Moore knew

the nature of the substance. The district court also could have inferred from

Moore’s prior marijuana conviction that he knew the material in his pocket was a

controlled substance. See State v. Henderson, 696 N.W.2d 5, 11 (Iowa 2005)

(holding “prior conviction makes it more probable that Henderson knew the

material on top of her refrigerator was a controlled substance, namely, marijuana”).

We affirm the conviction for possession of marijuana.

       C. Ineffective Assistance of Counsel

       Moore next raises two claims of ineffective assistance of counsel.

“Ineffective-assistance-of-counsel claims are an exception to the traditional error-

preservation rules.” State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). To

prevail on appeal, Moore must show by a preponderance of the evidence counsel

breached an essential duty and prejudice resulted. See Strickland v. Washington,

466 U.S. 668, 687 (1984).        As our default mode, we preserve ineffective-

assistance claims for PCR actions. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). We prefer preservation to develop the record when the challenged action

or inaction by counsel may implicate trial tactics. Id.

       1.     Failure to timely challenge jury pool. Moore complains his venire

panel did not contain any potential jurors who were African American. Moore, who
                                         10


is African American, contends he was denied a fair trial by an impartial jury of his

peers. Moore faults his trial counsel for not challenging the jury composition in a

timely fashion. Counsel first raised the claim by motion in arrest of judgment, rather

than before the jury was sworn, as required by rule. See Iowa R. Crim. P. 2.18(3);

State v. Johnson, 476 N.W.2d 330, 332 (Iowa 1991) (requiring objections,

including constitutional questions, be raised at the earliest opportunity after the

grounds become apparent).

       The Sixth Amendment entitles a litigant “to a jury panel designed to

represent a fair cross-section of the community.” State v. Fetters, 562 N.W.2d

770, 776 (Iowa Ct. App. 1997); see also State v. Plain, 898 N.W.2d 801, 821 (Iowa

2017). In Duren v. Missouri, the Supreme Court set out a three-part test to show

a violation of that standard. 439 U.S. 357, 364 (1979) (explaining defendant must

show (1) the group alleged to be excluded is distinctive in the community; (2)

representation of the group in the jury venire was not fair and reasonable in relation

to the number of such persons in the community; and (3) the underrepresentation

was due to systematic exclusion). Because counsel failed to raise a timely Duren

challenge, we have no record relevant to these factors to review. Therefore, we

preserve Moore’s claim for possible PCR proceedings.

       2.     Failure to challenge excluded bad-acts evidence. Before trial, the

district court granted Moore’s motion in limine seeking to exclude prior bad acts

under Iowa Rule of Evidence 5.404(b).         But, during trial, several statements

suggesting Moore had prior convictions entered the record without objection. For

instance, in a police body-cam video, officers mentioned Moore having been

arrested twenty times; A.S. testified Moore was incarcerated when they became
                                         11


friends and they started dating when he was released; A.S. also said several times

Moore was mad at her for calling the police because he had “time over his head.”

Moore contends counsel’s inaction in the face of these damning revelations

constituted ineffective assistance.

       The State contends it is unnecessary to preserve this claim because Moore

cannot show prejudice from these “stray references” to his criminal history. But

given the severity of the improper character evidence, we cannot find the repeated

violations of the court’s limine ruling had no impact on the jury’s assessment of the

evidence. We find the better course is to allow Moore’s trial counsel to explain any

trial strategy that informed his decisions not to object. See State v. Shorter, 893

N.W.2d 65, 82–83 (Iowa 2017) (preserving an ineffective-assistance-of-counsel

claim where counsel “may have made the strategic decision that the trial was going

well enough to take a pass on a motion for a mistrial”). We therefore preserve both

ineffective-assistance-of-counsel claims for possible PCR proceedings.

       AFFIRMED.
