IN THE COURT OF APPEALS OF IOWA
No. 19-1114
Filed October 7, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JESSICA ELVINS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gregory W.
Steensland, Judge.
Jessica Elvins appeals her conviction for willful injury causing serious injury.
AFFIRMED.
Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
2
SCHUMACHER, Judge.
A Pottawattamie County jury found Jessica Elvins guilty of willful injury
causing serious injury. On appeal, Elvins argues the trial court erred in denying
her motion for acquittal, her counsel was ineffective for failing to raise the issue of
identification, and the court abused its discretion in denying her request for a
pretrial immunity hearing. Because Elvins’s sufficiency-of-the-evidence claim was
not preserved, she failed to establish her counsel was ineffective, and the trial court
did not err in denying her motion for immunity, we affirm.
I. Back Ground & Proceedings
Jessica Elvins resided in a Council Bluffs home with Tammy Smart; Smart’s
boyfriend, A.B.; Smart’s brother, T.C.; and Smart’s sister, K.C. Elvins rented an
upstairs bedroom in the home. On December 13, 2018, Elvins and Smart engaged
in a heated argument concerning Elvins’s plans to move out of the house. The
argument began in the office on the main floor of the home. The argument
proceeded to the kitchen, where it escalated and became physical. Elvins pushed
Smart, and Smart threw a cup at the wall. Elvins went upstairs to her bedroom
and closed the door. Shortly after, Smart followed and pounded on the door to
Elvins’s bedroom.1 Smart entered the bedroom, where Elvins was sitting on her
bed. Elvins used one of several guns located in her bedroom to fire a shot, striking
Smart in the face. T.C. and K.C. responded to Smart’s screams for help and came
from downstairs to provide aid. Elvins called 911 and told responding officers that
she had shot Smart.
1Elvins testified that she warned Smart not to come into her room or she would
shoot her. However, Smart testified that Elvins said nothing before shooting her.
3
Elvins was charged in a three-count trial information with attempted murder
in violation of Iowa Code sections 707.1 and 707.11 (2018), willful injury causing
serious injury in violation of Iowa Code section 708.4(1), and going armed with
intent in violation of Iowa Code section 708.8. A jury trial was held, and the jury
returned a verdict of guilty on the count of willful injury causing serious injury.
Elvins was sentenced to a term of incarceration not to exceed ten years. Elvins
appeals her conviction.
II. Discussion
A. Judgment of Acquittal
At the close of the State’s case-in-chief, Elvins moved for a judgment of
acquittal. In her motion, Elvins argued, first, regarding the count of going armed
with intent, the State had failed to present sufficient evidence to prove Elvins
carried her firearm from one place to another. The State stipulated to dismissing
the going-armed-with-intent count. Second, Elvins argued she be acquitted on all
counts because she acted with justification. Third, Elvins argued there is
insufficient evidence for the jury to find she had the specific intent to kill, an element
necessary to prove the count of attempt to commit murder. The court denied the
motion finding the State had met its burden. At the close of all evidence, Elvins
renewed her motion on the same grounds. The trial court again denied the motion.
For the first time on appeal, Elvins argues that,
The Defendant was not identified as the person in the courtroom
standing trial in the State’s case in chief. After the State closed its
case, the Court, on its own motion should have moved for a
judgment of acquittal, as there was insufficient evidence to sustain
a conviction as no jury could have reasonably found that the
Defendant had been properly identified.
4
“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). “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.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002).
Elvins did not raise the issue of identity in her motion of acquittal at trial;
error was thus not preserved. Elvins attempts to overcome the preservation issue
by citing Iowa Rule of Criminal Procedure 2.19(8) for the proposition that the court
should have on its own motion, ordered the entry of judgment of acquittal.
However, the court in this case had no such duty, and such argument does not
preserve error. “A party cannot effectively challenge the sufficiency of the
evidence for the first time on appeal. This situation is not affected by the trial
court’s right under Iowa R. Crim. P. [2.19(8)] to order acquittal on its own motion.”
State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981). We find the claimed error
was not preserved and do not review it.
B. Ineffective Counsel
Elvins asserts that her trial counsel was ineffective for failing to raise the
issue of identification in making her motion for judgment of acquittal.2
2 Elvins’s judgment of conviction and sentence was entered prior to the July 1,
2019, effective date of the 2019 amendment to Iowa Code section 814.7 (2019),
which eliminates a criminal defendant’s ability to pursue an ineffective-assistance-
of-counsel claim on direct appeal. As such, we can address such as part of the
direct appeal.
5
1. Error Preservation
Elvins did not raise the issue of identification at trial, and thus, error was not
properly preserved for direct appeal. However, “[t]he failure of trial counsel to
preserve error at trial can support an ineffective-assistance-of-counsel claim.”
Truesdell, 679 N.W.2d at 615–16. While ineffective-assistance-of-counsel claims
are typically reserved for postconviction relief proceedings, they may be addressed
on direct appeal if there is sufficient record to decide the issue. Iowa Code
§ 814.7(1)-(2); State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015). “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.” Truesdell, 679 N.W.2d at 616. Upon review, we find
the record sufficient to address Elvins’s claim.
2. Standard of Review
We review sufficiency of the evidence claims for corrections at law. Iowa
R. App. P. 6.907; State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We review
ineffective-assistance-of-counsel claims de novo. State v. Lorenzo Baltazar, 935
N.W.2d 862, 868 (Iowa 2019). To establish an ineffective-assistance-of-counsel
claim requires the defendant to show by a preponderance of the evidence that: (1)
trial counsel failed to perform an essential duty, and (2) the failure resulted in
prejudice. Id.; accord Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure
to prove either prong is fatal to an ineffective-assistance-of-counsel claim.
Tompkins, 859 N.W.2d at 637.
Under the first prong, “[w]e begin with the presumption that the attorney
performed competently.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001).
6
We “must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” State v. Haas, 930 N.W.2d 699,
703 (Iowa 2019)(citation omitted). A defendant must rebut the presumption by
proving trial counsel “perform[ed] below the standard demanded of a reasonably
competent attorney.” Id. (citation omitted). “We will not find counsel incompetent
for failing to pursue a meritless issue.” State v. Brubaker, 805 N.W.2d 165, 171
(Iowa 2011). Under the second prong, to establish prejudice, “a defendant must
show a reasonable probability that the result of the trial would have been different.”
State v. Ambrose, 862 N.W.2d 550, 557 (Iowa 2015). “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
If the record reveals there was insufficient evidence to prove Elvins, as the
defendant in the courtroom, was the person who committed the charged offense,
counsel was ineffective for failing to raise the issue. See Brubaker, 805 N.W.2d at
171–74. However, if the record contained substantial evidence to prove the
defendant in the courtroom was the same person who shot Smart, raising the issue
would have been meritless and counsel did not breach an essential duty by failing
to do so. See id.
3. Essential Duty
On appeal, Elvins argues,
During the trial, the State failed to identify the Defendant. The record
is absent of any instance where the State has a witness provide
evidence that the person sitting at counsel table was the same
person who committed the charge[d] offenses. The record is also
absent of any stipulation by the parties as to the identity of the
Defendant.
7
“Identity is an element of a criminal offense which the State must prove
beyond a reasonable doubt. For this reason, witnesses are permitted to point out
the accused as the person who committed a crime.” State v. Jensen, 216 N.W.2d
369, 374 (Iowa 1974) (citation omitted). However, “such a procedure is not
necessary to make out a jury question on identification. Identification of a
defendant may be implicit or inherent in a record.” Id. at 375.
In this case, the record contained ample evidence to establish the person
in the courtroom was the person who shot Smart. The State called multiple
witnesses who referred to the person who shot Smart as Jessica Elvins, the
defendant. See State v. Kardell, No. 09-1859, 2011 WL 441961, at *8 (Iowa Ct.
App. Feb. 9, 2011) (“A witness need not physically point out a defendant so long
as the evidence is sufficient to permit the inference that the person on trial was the
person who committed the crime.” (quoting United States v. Alexander, 48 F.3d
1477, 1490 (9th Cir. 1995))). Over no objection, the State introduced into evidence
a photo of Elvins taken by a crime scene investigator on the night in question.
Smart identified the person depicted as Elvins and then referred to her as the
defendant. Responding Officer Jackie Holzer testified that Elvins told her that she
shot Smart and referred to Elvins as the defendant. Both T.C. and K.C. referred
to Elvins as the defendant and the person they witnessed in their home on
December 13. “The failure of any witnesses to point out that the wrong person has
been brought to trial can also be eloquent and sufficient proof of identity.” Id. at *9
(citation omitted).
Additionally, Elvins’s attorney referred to the person who shot Smart as
Jessica Elvins during cross-examination and throughout the trial. “In-court
8
identification is not necessary when the defendant’s attorney himself identifies his
client at trial.” Id. (citation omitted). Substantial evidence existed at the close of
the State’s case-in-chief for the jury to infer Elvins was the person who shot Smart.
See State v. Mason, No. 10-1321, 2011 WL 2419787, at *5 (Iowa Ct. App. June 15,
2011) (finding defendant was not surprised or unfairly prejudiced by reopening the
record to allow for an in-court identification because “[t]he record contains more
than enough evidence to allow the jury to infer the defendant Scott Mason present
in the courtroom was the Scott Mason that [the witnesses] testified about,” and
noting “that defense counsel’s statements inferred his client was the defendant
Scott Mason, and Mason himself never objected that the wrong person had been
brought to trial”).
Further, Elvins never disputed that she shot Smart. Elvins testified at trial
and put forth an affirmative defense of justification. In her testimony, Elvins stated
her name was Jessica Ann Elvins. She explained how she met and eventually
moved in with Smart. She described the events of December 13, including her
initial argument with Smart, and how, after Smart entered her room, she shot
Smart, stating, “[a]nd then I fired one, and then [Smart] stopped.” “It is elementary
that admissions made in the course of judicial proceedings are substituted for and
dispense with actual proof of facts.” State v. Wilson, 144 N.W. 47, 53 (Iowa 1913).
When the defendant testifies to doing the act charged, it is sufficient proof
that the person sitting at counsel table is the same person who committed the
charged offense. At the close of all evidence, substantial evidence existed
identifying the defendant as Jessica Elvins and as the person who shot Smart.
See Kardell, No. 09-1859, 2011 WL 441961, at *10 (explaining “proper identity can
9
be inferred when the defendant does not complain the wrong person has been
brought to trial,” and stating “[t]he fact defendant Kardell subjected himself to
extensive pretrial proceedings, a four-day trial, and the expense of hiring an expert
witness allows the district court to reasonably infer the correct Derek Kardell was
on trial” (citation omitted)).
Because the evidence presented at trial was sufficient for the jury to infer
that the defendant was, in fact, Jessica Elvins, counsel did not have a duty to raise
the issue, as it would be meritless. See Truesdell, 679 N.W.2d at 615–16. Elvins
has not proven her trial counsel breached an essential duty. See Brubaker, 805
N.W.2d at 171; Tompkins, 859 N.W.2d at 637–38. We find Elvins has not satisfied
the first prong of her ineffective-assistance-of-counsel claim, and we need not
address it any further.3 Tompkins, 859 N.W.2d at 637.
C. Immunity
Elvins argues the district court erred in denying her pretrial motion for
immunity. We review rulings on questions of statutory interpretation for correction
of errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).
Before trial, Elvins filed a motion to enforce immunity pursuant to Iowa Code
section 704.13, Iowa’s recently enacted stand-your-ground law, which provides:
A person who is justified in using reasonable force against an
aggressor in defense of oneself, another person, or property
pursuant to section 704.4 is immune from criminal or civil liability for
all damages incurred by the aggressor pursuant to the application of
reasonable force.
3 Because raising the issue of identity would have been meritless, Elvins cannot
have been prejudiced by counsel failing to do so. Had the issue been raised in her
motion for judgment of acquittal, the trial court’s denial would remain unchanged
as there was sufficient evidence presented for the jury to infer that the defendant
in the courtroom was the Jessica Elvins who shot Smart.
10
At the time of the hearing, the Iowa Supreme Court had not yet interpreted
section 704.13. The trial court attempted to interpret the statute and found
significant that the legislature did not provide a pretrial procedural mechanism nor
use the term “immunity from prosecution.” The trial court denied the motion.
Subsequent to Elvins’s trial, the supreme court decided State v. Wilson, 941
N.W.2d 579 (Iowa 2020). In Wilson, the court interpreted section 704.13 and found
that the “legislation does not require pretrial hearings.” 941 N.W.2d at 581.
“Significantly, section 704.13 provides an immunity from ‘liability,’ not an immunity
from ‘prosecution’ as in some other states with stand-your-ground laws.” Id. The
court held Wilson, “had no right to a pretrial hearing on justification.” Id. at
590. We consequently hold that the trial court was correct in denying Elvins’s
motion to enforce immunity. Based on recent directive from the supreme court set
out in Wilson, we find no error in the trial court’s denial of Elvins’s motion to enforce
immunity under Iowa Code section 704.13.
III. Conclusion
Elvins’s sufficiency of the evidence claim is not preserved, she has failed to
establish her counsel was ineffective, and the trial court did not err in denying her
motion for immunity. Consequently, we affirm her conviction.
AFFIRMED.