                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0281
                             Filed February 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOEL ZAMORA,
     Defendant-Appellant.


       Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,

Judge.



       Defendant appeals his convictions for first-degree burglary and first-

degree robbery. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Janet Lyness, County Attorney, and Anne Lahey, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., Doyle, J., and Eisenhauer, S.J.*

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

       Defendant Joel Zamora appeals his convictions for first-degree burglary

and first-degree robbery, contending he received ineffective assistance of

counsel. We affirm his convictions.

       I. Background Facts & Proceedings.

       On August 5, 2013, Ofelia Zepeda and her three children were in their

trailer home in Iowa City when two men walked in. Ofelia identified one of the

men as Joel Zamora. She testified Zamora put a gun to her head and asked for

money. When she told him she did not have any money, Zamora pointed the

gun at her children. The men took about $2000 from Ofelia’s purse. The other

man found the oldest child’s wallet and took his money as well. The men locked

the children in the bathroom. They taped Ofelia’s hands and mouth and had her

lay down on the floor. They took Ofelia’s cell phone and told her they would kill

her and the children if she called the police.

       Zamora was charged with burglary in the first degree, in violation of Iowa

Code section 713.3(1)(b) (2013), and robbery in the first degree, in violation of

section 711.2. For both offenses the State alleged Zamora had a dangerous

weapon. After a trial, the jury found Zamora guilty of both offenses. Defense

counsel made a general motion to dismiss the case without stating any specific

reasons.    The motion was denied.         Zamora was sentenced to a term of

imprisonment not to exceed twenty-five years on both charges, to be served

concurrently. He now appeals, claiming he received ineffective assistance of

counsel.
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       II. Standard of Review.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). While we normally

preserve claims of ineffective assistance of counsel for possible postconviction

proceedings where, as here, the record is adequate, we will decide the issue on

direct appeal. See State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

       III. Discussion.

       Zamora contends he received ineffective assistance because his defense

counsel in his posttrial motion did not argue there was insufficient evidence to

show he was armed with a dangerous weapon. Zamora’s girlfriend, Renae Starr,

testified she drove Zamora and the other man to the trailer court, but in her

testimony, she did not mention the presence of a gun. Zamora also points out

officers did not recover a gun.

       A jury’s verdict will be upheld when it is supported by substantial evidence.

State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is substantial if

it would convince a rational fact finder that the defendant is guilty beyond a

reasonable doubt.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view

the evidence in the light most favorable to the State, “including legitimate

inferences and presumptions that may fairly be deduced from the record
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evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). It is the function of

the jury to weigh the evidence and “place credibility where it belongs.” State v.

Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). The jury is free to accept or reject

any part of a witness’s testimony. Id.

       Ofelia testified the gun “was a small revolver, the one that you—the kind

that you load with bullets.” She stated Zamora first put the gun to her forehead,

then her temple, then pointed it at her children. In the courtroom she identified

Zamora as the person who pointed a gun at her head. The oldest child, who was

twelve at the time of the incident, testified the gun “looked like the ones like that

spin around. The one that look like you can put bullets in there.” He testified

Zamora pointed the gun at his mother and then at him and his sisters. In the

courtroom the oldest child also identified Zamora as the person with a gun.

       We conclude there is sufficient evidence in the record to support a finding

Zamora was armed with a gun.             Pistols, revolvers, and other firearms are

considered to be dangerous weapons under section 702.7.               See State v.

Juergens, 240 N.W.2d 647, 649 (Iowa 1976) (noting firearms are per se

dangerous weapons).       We determine Zamora has not shown he received

ineffective assistance of counsel.       “We will not find counsel incompetent for

failing to pursue a meritless issue.” State v. Brothern, 832 N.W.2d 187, 192

(Iowa 2013).

       We affirm Zamora’s convictions for first-degree burglary and first-degree

robbery.

       AFFIRMED.
