State of Iowa v. Joel Zamora ( 2015 )

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.