Opinion
No. 3-382 / 02-0971.
Filed June 25, 2003.
Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge.
Floyd Conner, Jr. appeals his convictions, following jury trial, for five counts of forgery and one count of ongoing criminal conduct. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Floyd Conner, Jr. appeals his convictions, following jury trial, for five counts of forgery and one count of ongoing criminal conduct. He contends there was insufficient evidence to support the convictions and if error was not preserved on these issues his trial counsel was ineffective for failing to do so. We affirm Conner's convictions and preserve his ineffective assistance of counsel claim for a possible postconviction relief proceeding.
Conner was charged by trial information with ongoing criminal conduct, in violation of Iowa Code sections 706A.1, 706A.2(1)(c) and (d) (2001) (Count I), and five counts of forgery, in violation of sections 715A.1, 715A.2(1)(d), and 715A.2(2)(a)(3) (Counts II-VI). A jury found Conner guilty on all counts. The court sentenced him to a term of no more than twenty-five years on Count I and terms of no more than five years each on Counts II through VI, with the sentences on Counts II through VI running consecutively to each other but concurrently with the sentence on Count I.
Conner appeals, contending there was insufficient evidence to convict him of either ongoing criminal conduct or forgery. Specifically, he alleges (1) there was insufficient evidence of the "specified unlawful activity" required to prove ongoing criminal conduct under section 706A.2 because there was a lack of evidence the alleged activity occurred on a "continuing basis," and (2) there was insufficient evidence to prove he had an intent to defraud, a required element of forgery under section 715A.2(1). He further contends if error was not preserved on either of these issues his trial counsel was ineffective for failing to do so.
Conner did move for judgment of acquittal on all charges at the close of the State's evidence. In his motion Conner argued for acquittal on the forgery charges because there was nothing to connect him to the evidence giving rise to those charges. He further argued for acquittal of the ongoing criminal conduct charge because there was insufficient evidence to prove the underlying, or predicate, forgery offenses. The court denied the motion finding these arguments to be without merit.
Although Conner moved for judgment of acquittal, his motion contained no mention of or argument concerning whether there was sufficient evidence of a "specified unlawful activity" because the activity did not occur on a "continuing basis," or whether there was sufficient evidence of the required specific intent to prove the forgery charges. Furthermore, because Conner did not make these arguments to the district court the court did not rule on their merits.
Issues must be presented to and passed upon by the trial court before they can be raised and decided on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998 ); Conner v. State, 362 N.W.2d 449, 457 (Iowa 1985). Error is not preserved when a motion for judgment of acquittal does not point out the specific deficiencies in the evidence. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); State v. Maghee, 573 N.W.2d 1, 9 (Iowa 1997); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Accordingly, Conner's motion for judgment of acquittal did not preserve the specific arguments he is now making for the first time on appeal. State v. Geier, 484 N.W.2d 167, 170-71 (Iowa 1992). We conclude Conner failed to preserve for our review either of his arguments regarding sufficiency of the evidence.
Conner further argues if we determine, as we now have, that error has not been preserved on either of the sufficiency of the evidence issues, his trial counsel was ineffective for failing to preserve error. A claim of ineffective assistance of counsel may be an exception to the general rule of error preservation. State v. Grant, 597 N.W.2d 501, 504 (Iowa 1999). Ordinarily, we prefer to leave ineffective assistance of counsel claims for postconviction relief proceedings. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). We do so to allow a record on the performance of trial counsel to be developed, Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999), and to give the allegedly ineffective attorney the opportunity to respond to and defend the allegation of ineffective assistance. State v. Laffey, 600 N.W.2d 57, 60-61 (Iowa 1999); State v. Pearson, 547 N.W.2d 236, 241-42 (Iowa Ct.App. 1996). We preserve Conner's ineffective assistance claims for these reasons.
Accordingly, we affirm Conner's convictions and preserve his claims of ineffective assistance of counsel for a possible postconviction relief proceeding.