                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1175
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROMAN JACOB MONCIVAIZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



      A defendant challenges his judgment and sentence for robbery in the first

degree and assault with the intent to inflict serious injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Richard Bennett (until withdrawal)

and Kevin Cmelik, Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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VOGEL, Presiding Judge.

          Roman Moncivaiz appeals from his convictions for robbery in the first

degree, in violation of Iowa Code sections 711.1(1)(b) and 711.2 (2014), and

assault with intent to inflict serious injury, in violation of Iowa Code sections

708.1(2) and 708.2(1). Moncivaiz asserts two claims on appeal: (1) there is

insufficient evidence supporting his convictions; and (2) trial counsel was

ineffective for failing to object to improper closing argument. We find there was

sufficient evidence to support the jury’s verdict. We further find counsel did not

breach an essential duty, thus counsel is not ineffective for failing to object to the

closing argument. Therefore, we affirm.

   I. Background Facts and Proceedings

          On October 19, 2014, Bryan Cox returned to his apartment between

approximately 1:30 a.m. and 2:30 a.m. after being out with friends.            As he

approached his apartment, he saw Moncivaiz and another man, later identified

as Anthony Hinton, standing near the front door. Moncivaiz owed Cox money

from a previous drug transaction, so Cox invited him into his apartment. He

asked Hinton to wait in the vestibule of the building. Cox then locked the door

after entering his apartment with Moncivaiz.       Soon after Moncivaiz and Cox

entered the apartment, Hinton kicked in the door of the unit demanding, “Where

is it!?” Hinton attacked Cox, and Moncivaiz “balled up his fist” and joined in the

attack.

          A neighbor found Cox later in the day after noticing blood on the

apartment building hallway wall and Cox’s door standing slightly ajar.           She
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observed wounds on Cox including a stab-wound on Cox’s head. The next day,

Cox’s mother visited the apartment and observed multiple stab-wounds on Cox.

       After being transported and evaluated at the local hospital, Cox was

transferred to a Des Moines hospital and treated for wounds on his back,

shoulder, and neck. Cox’s diaphragm was repaired, and a portion of his colon

was removed. He also underwent brain surgery to mend a skull penetration. In

all, he was hospitalized for three weeks. Cox made several statements shortly

after the attack to various individuals, including his neighbor, his mother, and the

police. The statements either conveyed that “two guys” or “they” had attacked

and stabbed him, or more specifically mentioned “Rome” and “a black male.”

       On October 8, 2015, the State charged Moncivaiz with attempt to commit

murder and robbery in the first degree.1 All charges were tried before a jury. He

was found guilty of robbery in the first degree and assault with the intent to inflict

serious injury, a lesser-included offense of attempted murder, and he was

sentenced to indeterminate prison terms of twenty-five years on the robbery

conviction and two years on the assault conviction. The sentences were ordered

to be served consecutively. Moncivaiz now appeals.

    II. Standard of Review

       We review sufficiency-of-the-evidence claims for correction of errors at

law. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). We review claims of

ineffective assistance of counsel de novo. State v. Truesdell, 679 N.W.2d 611,

615 (Iowa 2004).


1
 Charges were amended to allege joint criminal conduct; however, a jury instruction was
not given on this theory. See Iowa Code § 703.2.
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   III. Sufficiency of the Evidence

       Monciviaz and the State agree the claims raised on appeal have not been

preserved due to the failure of trial counsel to specify them in the motion in arrest

of judgment and motion for new trial.             However, Moncivaiz challenges the

sufficiency of the evidence in the context of an ineffective-assistance-of-counsel

claim. Such claims are an exception to the traditional error-preservation rules.

See State v. Fountain, 786 N.W.2d 260, 262–63 (Iowa 2010). As the State

notes, if there is sufficient evidence to support the verdicts, counsel cannot be

found to be ineffective for failing to make a more specific argument in his motion

for judgment of acquittal. Truesdell, 679 N.W.2d at 616 (“A claim of ineffective

assistance of trial counsel based on the failure of counsel to raise a claim of

insufficient evidence to support a conviction is a matter that normally can be

decided on direct appeal.       Clearly, if the record in this case fails to reveal

substantial evidence to support the convictions, counsel was ineffective for failing

to properly raise the issue and prejudice resulted. On the other hand, if the

record reveals substantial evidence, counsel’s failure to raise the claim of error

could not be prejudicial.” (citation omitted)).

       Moncivaiz claims the State was only able to produce evidence he was

present at Cox’s apartment, rather than any evidence he “had the intent to

commit a theft, he was armed with a dangerous weapon, and he inflicted or

attempted to inflict serious injury.” In addition, he claims the proof was lacking as

to whether he “had the intent to inflict a serious injury” or whether he “aided and

abetted another in the commission of the crimes against Bryan Cox.” He claims

the record shows Hinton burst into the apartment alone and he looked away
                                         5


when Hinton first attacked Cox. Additionally, Cox testified Hinton stabbed him,

not Moncivaiz. Moncivaiz testified his blood was present on Cox’s clothing only

because    he   had    been    at   Cox’s    apartment   earlier   while    smoking

methamphetamine, when an unrelated cut on his finger began to bleed.

Consequently, Moncivaiz claims a rational trier of fact could not find him guilty of

first-degree robbery or assault with intent to inflict serious injury beyond a

reasonable doubt.

      If substantial evidence supports the verdict, we will affirm. State v. Quinn,

691 N.W.2d 403, 407 (Iowa 2005). Evidence is substantial if it would convince a

reasonable trier of fact the defendant is guilty beyond a reasonable doubt. Id.

We view the “evidence in the light most favorable to the State, including

legitimate inferences and presumptions that may fairly and reasonably be

deduced from the record evidence.” Id.

      Under Iowa Code section 711.2, “[a] person commits robbery in the first

degree when, while perpetrating a robbery, the person purposely inflicts or

attempts to inflict serious injury, or is armed with a dangerous weapon.”

      A robbery is defined as:

              1. A person commits a robbery when, having the intent to
      commit a theft, the person does any of the following acts to assist
      or further the commission of the intended theft or the person’s
      escape from the scene thereof with or without the stolen property:
                      a. Commits an assault upon another.
                      b. Threatens another with or purposely puts another
      in fear of immediate serious injury.
                      c. Threatens to commit immediately any forcible
      felony.
              2. It is immaterial to the question of guilt or innocence of
      robbery that property was or was not actually stolen.

Iowa Code § 711.1.
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       To be guilty of the crime of assault with the intent to inflict serious injury,

the State must prove:

               2. A person commits an assault when, without justification,
       the person does any of the following:
                      a. Any act which is intended to cause pain or injury to,
       or which is intended to result in physical contact which will be
       insulting or offensive to another, coupled with the apparent ability to
       execute the act.
                      b. Any act which is intended to place another in fear
       of immediate physical contact which will be painful, injurious,
       insulting, or offensive, coupled with the apparent ability to execute
       the act.
                      c. Intentionally points any firearm toward another, or
       displays in a threatening manner any dangerous weapon toward
       another.

Iowa Code § 708.1(2). In addition, the assault must be committed with “the intent

to inflict serious injury upon another.” Id. § 702(1).

       Alternatively, a person concerned in the commission of a public offense,

whether that person directly commits the act constituting the offense or aids and

abets its commission, shall be charged, tried, and punished as a principal. Id. §

703.1. “To secure a conviction based on aiding and abetting, the State must

introduce substantial proof to show that the accused “‘assented to or lent

countenance and approval to’ the criminal act.” State v. Allen, 633 N.W.2d 752,

754 (Iowa 2001) (citation omitted). “Mere nearness to, or presence at, the scene

of the crime, without more evidence, is not ‘aiding and abetting.’” Id. (citation

omitted). Likewise, mere knowledge of the crime is not enough to prove “aiding

and abetting.” Id. at 754–55 (citing Iowa Crim. Jury Instructions 200.8 (1988)).

       Although Moncivaiz testified he was not at Cox’s apartment during the

time of the attack, his cell phone “pinged” off a tower near Cox’s apartment,

placing him in the neighborhood at the time the robbery was committed.
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Furthermore, the State presented evidence that Moncivaiz’s blood was found on

Cox’s clothing, that Moncivaiz had a “cut” on his finger, and that Cox’s cell phone

was later found during a search of Moncivaiz’s home.          Finally, Cox testified

“Rome” and “a black male” did this, and drugs and money were missing from his

apartment. The fact that Moncivaiz owed Cox money, Cox identified him as an

attacker, Moncivaiz’s blood was found at the crime scene, Moncivaiz later sought

treatment for a cut finger, and Moncivaiz was found with Cox’s property, all

indicate Moncivaiz participated in the robbery and assault.

      Moncivaiz also asserts on appeal, even if he were present during the

robbery and assault, the State failed to prove he had the specific intent to either

commit a theft or to cause a serious injury. We disagree. Cox testified as to his

drug connection with Moncivaiz and to Monciviaz owing Cox money for drugs.

He also testified Moncivaiz and Hinton were waiting at his apartment in the early

morning hours of October 19, 2014.           Moncivaiz knew Cox; Hinton did not.

Moncivaiz knew where Cox lived and knew he kept drugs and large sums of

money at his apartment from his drug dealing.        Further, Moncivaiz knew, as

Cox’s friend, he could gain access to Cox’s apartment easier than Hinton. The

jury was free to take this evidence to find Moncivaiz had the specific intent to

commit a theft.

      Once Moncivaiz and Cox were inside, Hinton “kicked in” the locked door,

asking, “Where is it?    Where is it at?” and soon began punching Cox and

throwing him around. Cox then looked over at Moncivaiz, who “looked down,

looked up, and then he balled up his fist like that; and then, like, just approached

me, too. All I remember we all ended up fighting in that room, and then I’m pretty
                                           8


sure they knocked me out.” With Moncivaiz participating in the attack, the jury

could reasonably determine Moncivaiz had the specific intent to cause Cox

serious injury.

         Moreover, there is also sufficient evidence that Moncivaiz acted as an

aider and abettor. Moncivaiz was not only present, but he actively participated in

the assault which produced multiple injuries to Cox, including stab wounds. Cox

also testified his cash was missing after the two left the scene.          Moreover,

Moncivaiz was found with Cox’s property—a cell phone—during a later search of

his residence. This evidence is substantial proof Moncivaiz assented to, or lent

countenance and approval to, the robbery and assault and was not merely

present at the scene. See id. There was sufficient evidence for a reasonable

trier of fact to conclude, beyond a reasonable doubt, Moncivaiz robbed and

assaulted Cox, as delineated in Iowa Code sections 703.1, 708.1(2), 711.1,

711.2.     Because sufficient evidence supports the verdicts, counsel was not

ineffective for failing to make more specific arguments in his motion for judgment

of acquittal. Therefore, we affirm Moncivaiz’s convictions.

   IV. Closing Argument

         Moncivaiz next asserts trial counsel was ineffective for failing to object to

improper closing argument made by the prosecutor.

         A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). We may either decide the record is adequate and rule on the

merits, or we may choose to preserve the claim for postconviction proceedings.

Id. We review ineffective-assistance claims de novo. Id. To succeed on this
                                          9


claim, the defendant must show: first, counsel breached an essential duty, and

second, he was prejudiced by counsel’s failure. Id.

       In order to determine whether counsel was ineffective in failing to object to

alleged prosecutorial misconduct, we must first determine whether prosecutorial

misconduct occurred. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). To do

so, we consider the following factors:

       (1) the severity and pervasiveness of the misconduct; (2) the
       significance of the misconduct to the central issues in the case; (3)
       the strength of the State’s evidence; (4) the use of cautionary
       instruction or other curative measures; and (5) the extent to which
       the defense invited the misconduct.

Id. (citations omitted).

       A prosecutor “is entitled to some latitude during closing argument in

analyzing the evidence admitted in the trial.” Id. at 877 (citing State v. Phillips,

226 N.W.2d 16, 19 (Iowa 1975)). While a prosecutor is afforded the latitude to

draw conclusions and argue permissible inferences derived from the evidence in

closing arguments, a prosecutor cannot create evidence. State v. Shanahan,

712 N.W.2d 121, 139 (Iowa 2006). Additionally, “counsel is precluded from using

argument to vouch personally as to a defendant’s guilt or a witness’s credibility.”

See State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983).

       Specifically, Moncivaiz argues the prosecutor personally vouched for the

credibility of Cox, which was an essential part of the State’s prosecution. During

closing argument the prosecutor stated:

             He came in and like I said, ladies and gentlemen, he told you
       the good, the bad, and the ugly. So why would he make this up?
       He wouldn’t. He had to lay it all out there for you. He had to tell
       you about his life. All of the horrible things, how his mom found him
       almost dead in his apartment. How he’s been to drug treatment.
                                        10


              He sat here and told you how he cares about his friends, and
      you’ll see it in his text messages. You heard it from [a witness].
      He’s one of the most caring, nicest people she’s ever met. He
      would even come up to you and apologize to you even if he did
      nothing wrong. That’s the kind of person Bryan Cox is.
              So why would he make this up? The simplest answer is,
      ladies and gentlemen, he didn’t. Roman Moncivaiz and Anthony
      Hinton went over that night to rob him for his drugs and his money.

      This closing argument was not improper, nor was the prosecutor guilty of

misconduct. The record establishes the prosecutor’s closing argument consisted

of conclusions and inferences drawn from the evidence. The witness testified

Cox “cares about everybody,” he “checks with people even if they have done

something wrong,” he “does not hold grudges,” and he “wants to mend

relationships when he has made someone upset.” Further, Cox openly testified

about his drug use, addiction, and dealing. Cox admitted he is currently seeing a

therapist and has entered drug treatment.      The prosecutor highlighted Cox’s

positive character traits established by testimony and Cox’s consistent

descriptions of positive and negative habits he possesses.       The prosecutor

encouraged the jury to use their common sense and experience in evaluating

Cox’s credibility based on the evidence presented. Since the prosecutor did not

inject personal opinion into closing arguments and since the closing argument

related to specific evidence presented at trial, the prosecutor did not commit

prosecutorial misconduct. Since no prosecutorial misconduct occurred, counsel

did not breach an essential duty.     Therefore, counsel was not ineffective for

failing to object to closing argument. See Graves, 668 N.W.2d at 881 (“Trial

counsel has no duty to raise an issue that has no merit.”).
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   V. Conclusion

      Because we conclude there was sufficient evidence to support the jury’s

verdict and counsel did not breach an essential duty by failing to object to the

State’s closing argument, we affirm Moncivaiz’s convictions.

      AFFIRMED.
