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. 

 

1 Elvins 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-assistanceof-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.