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IN THE COURT OF APPEALS OF IOWA No. 6-816 / 05-1549 Filed December 13, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. ELDONTE LAMAR NATHANIEL KIRK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.

Eldonte Kirk appeals his conviction of two counts of willful injury with serious injury, going armed with intent, and intimidation with a dangerous weapon with intent. CONDITIONALLY AFFIRMED AND REMANDED.

Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., Vogel, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 HUITINK, P.J. Eldonte Kirk appeals his conviction of two counts of willful injury with serious injury, in violation of Iowa Code section 708.4(1) (2003); going armed with intent, in violation of section 708.8; and intimidation with a dangerous weapon with intent, in violation of section 708.6. We conditionally affirm Kirk's convictions and remand to the trial court for a ruling on Kirk's motion for a new trial. I. Background Facts and Proceedings. Kirk was charged with the foregoing offenses after he was implicated in a drive-by shooting in which Laushante Howard was shot in the leg and Anthony Blanks was shot in the hand. Kirk denied any involvement and entered not guilty pleas to all counts charged in the trial information. At the close of the State's evidence, and at the close of all the evidence at trial, Kirk's trial counsel moved for a judgment of acquittal, citing the insufficiency of the evidence identifying Kirk as the person who shot Howard and Blanks. The trial court denied Kirk's motions for judgment of acquittal and submitted all counts charged to the jury. The jury returned a guilty verdict on each count charged. Kirk's motion for a new trial was denied. The trial judge entered a judgment of conviction on each count and sentenced Kirk to an indeterminate term not to exceed twenty years. On appeal, Kirk argues as follows: I. II. The district court erred in finding sufficient evidence to support defendant-appellant's convictions. The district court erred in denying defendant-appellant's motion for a new trial.

3 III. Defendant-appellant was denied the effective assistance of counsel by counsel's failure to specifically identify elements of the various offenses for which the state's evidence was insufficient.

II. Judgment of Acquittal. "A motion for judgment of acquittal is a means for challenging the sufficiency of the evidence to sustain a conviction." State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981). Resolving conflicts in the evidence, passing upon the credibility of witnesses, and weighing the evidence are issues for the jury and not issues to be resolved by motions for judgments of acquittal. State v. Hutchinson, _____ N.W.2d ____, ____ (Iowa 2006). We note that evidence is sufficient to withstand a motion for judgment of acquittal when, viewing the evidence in the light most favorable to the State, "there is substantial evidence in the record to support a finding of the challenged element." State v. Reynolds, 670 N.W.2d. 405, 409 (Iowa 2003). To convict Kirk of any offense charged, the State was required to prove he was the person who perpetrated those offenses. Contrary to Kirk's claims, we find the record contains substantial evidence supporting the identity element of each offense. Most notably, Perry Slater testified that Kirk told him he shot at a group of kids who Kirk believed had shot at him earlier on the day the shootings occurred. In addition to other testimony linking Kirk to the car involved in the shootings, Kirk's fingerprints were found in the car. We accordingly affirm on this issue.

4 III. Ineffective Assistance of Counsel. We review ineffective assistance of counsel claims de novo. Martin, 704 N.W.2d 665, 668 (Iowa 2005). State v.

A defendant receives ineffective

assistance of counsel when (1) trial counsel fails in an essential duty and (2) prejudice results. Strickland v. Washington, 406 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Although we generally preserve

ineffective assistance of counsel claims for postconviction relief, a claim based on counsel's failure to challenge the sufficiency of the evidence supporting a conviction can ordinarily be resolved on direct appeal. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). 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. See, e.g., State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). On the other hand, if the record reveals substantial

evidence, counsel's failure to challenge the sufficiency of the evidence could not have been prejudicial. Id. Kirk claims trial counsel was ineffective because counsel's motion for judgment of acquittal failed to challenge the sufficiency of the evidence supporting the serious injury element of the willful injury counts. To convict Kirk of willful injury causing serious injury, the State had to prove Kirk committed an act intended to cause serious injury to another and he caused serious injury to another. Iowa Code

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