                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0153
                              Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CAZMIERE GRAVES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      Cazmiere Graves appeals the judgment and sentence following his

convictions for assault while participating in a felony, felon in possession of a

firearm, and eluding. AFFIRMED.



      Jack E. Dusthimer, Davenport, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Michael J. Walton, County Attorney, and Dion D. Trowers and Will

Ripley, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., Doyle, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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DOYLE, J.

      Cazmiere Graves appeals his convictions and sentences following a jury’s

verdict finding him guilty of assault while participating in a felony and felon in

possession of a firearm, and following his guilty plea for eluding. Graves claims

the evidence was insufficient to support the jury’s findings of guilt and his trial

counsel was ineffective. We affirm.

I.    Background Facts and Proceedings

      In September 2013, the State filed a trial information (FECR356302)

charging Graves with assault while participating in a felony, in violation of Iowa

Code sections 708.1 and 708.3 (2013), and felon in possession of a firearm, in

violation of 724.26, following allegations that he had waved a gun at Rodricco

Parks and punched Parks in the face. Following a trial, the jury found Graves

guilty on both counts.

      In November 2013, the State filed a trial information (FECR357472)

charging Graves with felony eluding, in violation of Iowa Code section

321.279(3)(b) and 321.279(3)(c), and possession of a controlled substance,

marijuana, in violation of section 124.401(5), following an incident in which

officers attempted to conduct a traffic stop on Graves’s vehicle and Graves

accelerated to speeds of up to 100 miles per hour, lost control of his vehicle, and

crashed into two vehicles. Graves pled guilty to the eluding charge, and the

possession charge was dismissed.

      In January 2014, the district court entered judgment and sentence on both

cases—fines and terms of incarceration not to exceed five years on each charge,
                                          3


to run consecutively. Graves appeals. Facts specific to his claims on appeal will

be set forth below.

II.    Standards of Review

       We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). “In reviewing

challenges to the sufficiency of evidence supporting a guilty verdict, courts

consider all of the record evidence viewed in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn from the evidence.”

State v. Showens, 845 N.W.2d 436, 439-40 (Iowa 2014). The jury’s verdict is

binding on appeal unless there is an absence of substantial evidence in the

record to sustain it.   State v. Hennings, 791 N.W.2d 828, 832 (Iowa 2010).

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

guilty beyond a reasonable doubt.” State v. Jorgensen, 758 N.W.2d 830, 834

(Iowa 2008).

       We review ineffective-assistance-of-counsel claims de novo.                 See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a

claim, Graves must prove both that (1) his counsel failed to perform an essential

duty and (2) he suffered prejudice as a result of his counsel’s failure. See id.

III.   Sufficiency of the Evidence

       Graves challenges the sufficiency of the evidence to support his

convictions for possession of a firearm as a felon and assault while participating

in a felony.1


1
 The State contends Graves’s sufficiency-of-the-evidence claims were not raised in his
motion for judgment of acquittal and are therefore not preserved for our review. If a
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          A. Possession of a Firearm as a Felon. The jury was instructed the State

would have to prove the following elements of possession of a firearm as a felon:

“1. On or about the 25th day of August, 2013, the defendant knowingly

possessed a firearm.” and “2. The defendant was previously adjudicated

delinquent of a felony.” See Iowa Code § 724.26. Because Graves stipulated he

had been adjudicated as a felon, the only issue before the jury at trial was

whether he possessed a firearm.

          The jury could have found the following evidence to support its finding of

guilt. Parks testified that on August 25, 2013, he was “hanging” with his friends,

Williams and Howard when Howard made a sexual joke about Graves and

Parks. According to Parks, Graves “started freaking out and said he was going

to get his gun.” Parks testified Graves retrieved a gun and “started waving it in

[Parks’s] face.” Parks described the gun as “silver” and having “the little turny

thing.”

          Graves claims the testimony of Parks is “only evidence” the State

introduced to show Graves possessed a firearm, and “[t]he eyewitness testimony

of a single person is not substantial evidence.” We conclude Parks’s testimony

alone was sufficient to prove Graves’s guilt.          See Iowa R. Crim. P. 2.21(3)

(“Corroboration of the testimony of victims shall not be required.”).

motion for judgment of acquittal lacks specific grounds, those grounds are not
preserved. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (“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.”). Graves alternatively raises the claims in the form of
ineffective-assistance-of-counsel claims for which the normal error preservation rules do
not apply. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010); see also State v.
Brubaker, 805 N.W.2d 164, 170 (Iowa 2011) (“Failure of trial counsel to preserve error at
trial can support an ineffective-assistance-of-counsel claim.”). Accordingly, we proceed
to the underlying merits of Graves’s claims.
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       In any event, the State did present evidence that corroborated Parks’s

testimony. Officers discovered a loaded, silver .357 magnum revolver in a van

parked at the house where Graves resided. Parks identified the revolver as the

firearm Graves possessed during the assault.

       Graves points out that defense witness Williams testified Parks started the

altercation and that she “never seen a gun.” But Williams also testified she is

friends with Graves and she was no longer friends with Parks. Williams also

refused to admit she left a voicemail threatening Parks, even though Parks

presented a recording of the voicemail. We conclude the jury could rationally

choose to disbelieve Williams’s testimony. See State v. Thornton, 498 N.W.2d

670, 673 (Iowa 1993) (“The jury is free to believe or disbelieve any testimony as

it chooses and to give weight to the evidence as in its judgment such evidence

should receive. In fact, the very function of the jury is to sort out the evidence

and place credibility where it belongs.” (internal citations and quotation marks

omitted)).

       B. Assault while Participating in a Felony. The jury was instructed the

State would have to prove the following elements of assault while participating in

a felony: “1. On or about the 25th day of August, 2013, the defendant committed

an assault on Rodricco Parks, Jr. as defined in Instruction No. 14.” and “2. At the

time of the assault, the defendant was participating in the crime of Felon in

Possession of a Firearm, as defined in Instruction No. 16.” See Iowa Code

§ 708.3. The jury was further instructed:

       [A]n assault is committed when a person does an act which is
       meant to cause pain or injury, or result in physical contact which will
       be insulting or offensive, or place another person in fear of
                                            6


       immediate physical contact which will be painful, injurious, insulting
       or offensive to another person, when coupled with apparent ability
       to do the act; or a person intentionally points a firearm toward
       another, or intentionally displays a dangerous weapon in a
       threatening manner toward another.

See Iowa Code § 708.1(2).

       In addition to the evidence discussed above,2 the jury could have found

the following evidence to support its finding of guilt. Parks testified when Graves

threatened him, retrieved the gun, and waved it in his face, Parks felt like he “was

going to die.” Graves then punched Parks in the face. Parks suffered bruises as

a result of the assault.

       On appeal, Graves erroneously adds an element to the offense, claiming

Parks’s testimony was insufficient to prove Parks “sustained the injury.” But the

State was not required to prove Parks sustained an injury. Rather, the State was

required to prove Graves either committed an act which resulted in an offensive

contact or pointed or displayed a firearm. Graves waved a firearm in Parks’s

face and punched Parks in the face.3

       Viewing the evidence in the light most favorable to the State, we conclude

substantial evidence exists upon which a jury could find beyond a reasonable

doubt that Graves was a felon in possession of a firearm and that he committed

an assault while participating in a felony. We affirm on this issue.



2
  To support his claim on this issue, Graves primarily relies on his contention that he was
not in possession of a firearm, which we have dispelled above.
3
  Graves mentions “the affirmative defense of self-defense/justification” in his brief, but
does not really appear to rely on it to justify his assault on Parks. In any event, such a
claim was not raised before or addressed by the district court and is therefore not
preserved for appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).
                                          7


IV.    Ineffective Assistance of Counsel

       Graves raises a claim of ineffective assistance of counsel regarding the

immigration consequences of his guilty plea to felony eluding.           Specifically,

Graves claims counsel failed to address the district court’s omission of a warning

concerning immigration consequences.

       Before accepting a plea of guilty, the court must address the
       defendant personally in open court and inform the defendant of,
       and determine that the defendant understands, the following:
             ....
             (3) That a criminal conviction, deferred judgment, or deferred
       sentence may affect a defendant’s status under federal immigration
       laws.

Iowa R. Civ. P. 2.8(2)(b).

       The matter of immigration consequences was not addressed by the court

during its colloquy with Graves at the plea hearing. There is nothing in the record

as to whether defense counsel advised Graves of potential immigration

consequences.      Nevertheless, in his brief, Graves “concedes there is no

evidence he was not a United States citizen and that providing him with this

[immigration consequence] information would alter the outcome of the plea.” In

other words, Graves makes no claim here that he would not have pleaded guilty

had counsel advised him otherwise.4           In the context of a guilty plea, an

ineffective-assistance-of-counsel claim is heavily tied to the prejudice prong, and

Graves must show that but for the breach of duty by counsel, the guilty plea

would not have been entered. See Castro v. State, 795 N.W.2d 789, 793 (Iowa


4
   We note there is no evidence Graves is not a United States citizen or that his
conviction and sentence will adversely impact an immigration status. To the contrary,
the record indicates Graves was born in the United States. There is no evidence he has
lived anywhere outside the United States.
                                          8


2011). Because Graves has not offered any evidence or assertion to establish

prejudice, his ineffective-assistance-of-counsel claim fails. See Dempsey, 860

N.W.2d at 868 (holding a claimant must prove both a breach of duty and

prejudice); Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (noting an

ineffective-assistance-of-counsel claim fails if either element is lacking).

V.     Conclusion

       Upon consideration of the issues raised on appeal, we affirm Graves’s

judgment and sentence following his convictions for assault while participating in

a felony, felon in possession of a firearm, and eluding.

       AFFIRMED.
