IN THE COURT OF APPEALS OF IOWA

No. 17-0111

Filed August 15, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ALBERT GARCIA,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, 

Judge.

Albert Garcia appeals his convictions for two counts of first-degree murder 

and two counts of first-degree robbery. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney 

General, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2

VAITHESWARAN, Presiding Judge.

Three men hatched a plan to rob a person who was seeking to buy 

marijuana from one of them. They enlisted the help of Albert Garcia because they 

knew Garcia had a gun. Garcia ended up shooting the would-be marijuana 

purchaser and his friend. Both died.

The State charged Garcia with two counts of first-degree murder, in violation 

of Iowa Code sections 707.1 and 707.2 (2015), and two counts of robbery in the 

first degree, in violation of sections 711.1 and 711.2. A jury found him guilty as 

charged, and the district court sentenced him to two terms of life imprisonment 

without the possibility of parole and two prison terms not exceeding twenty-five 

years. The sentences were to run consecutively. 

On appeal, Garcia contends (1) a police detective lacked the qualifications 

to provide expert testimony about cell phone technology; (2) accomplice testimony 

was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in

failing to object to an instruction informing the jury it could consider his out-of-court 

statements “just as if they had been made at trial”; and (4) his murder convictions 

and sentences should be vacated under a merger doctrine.

I. Expert Testimony–Cell Phone Technology

At trial, the prosecutor asked a Des Moines police detective to pinpoint the 

locations of a cell phone belonging to one of the participants in the crimes, based 

on cell tower information. The detective testified the locations were near the crime 

scene. The prosecutor then asked about the locations of Garcia’s cell phone. After 

the detective identified the locations, the prosecutor engaged in the following 

exchange about cell phone tower technology: 
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Q. Generally speaking based upon your training and 

experience, how do cell phones connect to particular towers? 

A. When it’s trying to get a signal, it goes to whatever the clearest 

closest tower is. If you start a call and you are traveling, it will 

sometimes switch towers from one to another. A lot of times if you 

have a lengthy phone call, it will connect to multiple towers.

At this juncture, Garcia’s attorney objected to the testimony on the ground the 

detective was not “certified as an expert in cell phone technology.” The district 

court overruled the objection and the detective continued: “Essentially it connects 

to the closest tower and communicates with whatever the closest tower is that it

can communicate with.”

Garcia contends, “Testimony about cellular phone technology and the use 

of cell tower data to estimate the location of a cell phone is technical, specialized 

information that is beyond the understanding of the average lay person and 

properly the subject of expert testimony.” In his view, the detective was unqualified 

to testify about “location based on the cellphone tower records because the State 

presented no evidence of [the detective’s] experience or knowledge in the area of 

cell phone technology.” 

The State responds with several error preservation concerns. We agree 

with the State that Garcia’s objection to the question quoted above came too late 

and he failed to object to other testimony about cell phone technology.

Accordingly, he did not properly preserve error. See Meier v. Senecaut, 641 

N.W.2d 532, 537 (Iowa 2002).

Anticipating this conclusion, Garcia asserts his attorney “was ineffective for 

failing to object in a timely or sufficiently specific manner.” The State responds 
4

that his assertion is too general to permit review of his claim under an ineffectiveassistance-of-counsel rubric. We disagree with the State and proceed to the 

merits. 

To prevail on a claim of ineffective assistance of counsel, Garcia must show 

deficient performance and resulting prejudice. See Strickland v. Washington, 466 

U.S. 668, 687 (1984). On the breach prong, there is a strong presumption that the 

attorney’s actions were reasonable. State v. Shumpert, 554 N.W.2d 250, 254 

(Iowa 1996). The prejudice prong requires proof by “a reasonable probability that, 

but for the counsel’s unprofessional errors, the result of the proceeding would have 

been different.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). We may 

decide the issue on either prong. See State v. Thorndike, 860 N.W.2d 316, 320 

(Iowa 2015) (“If we conclude a claimant has failed to establish either of these 

elements, we need not address the remaining element.”). We find the record 

adequate to address the breach prong. See State v. Johnson, 784 N.W.2d 192, 

198 (Iowa 2010) (“If a defendant wishes to have an ineffective-assistance claim 

resolved on direct appeal, the defendant will be required to establish an adequate 

record to allow the appellate court to address the issue.”). 

“A witness is qualified to assist the jury as an expert to resolve a disputed 

fact if the witness has adequate ‘knowledge, skill, experience, training, or 

education’ on the subject matter in question.” Ranes v. Adams Laboratories, Inc.,

778 N.W.2d 677, 687 (Iowa 2010) (quoting Iowa R. Evid. 5.702). “[A]n 

expert does not need to be a specialist in the area of the testimony as long as the 

testimony is within the general area of expertise of the witness.” Id.; see also State 

v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App. Dec. 21, 2016)
5

(concluding a detective “possessed sufficient knowledge and training to assist the 

jury in interpreting . . . cell phone records”); State v. Rendon, No. 15-1832, 2016 

WL 6270092, at *4 (Iowa Ct. Oct. 26, 2016) (concluding detective “had sufficient 

knowledge, skill, experience, and training to interpret the cell phone records and 

to assist the jury in understanding those records”). 

The detective in this case testified he had fifteen years of experience as a 

police officer, including ten years as a patrol officer on the streets of Des Moines. 

He “attended several homicide conferences and training classes throughout [his] 

five years” as a detective. Before discussing specific cell phone records, he was 

asked, “Have you had an opportunity in the past to interpret cellular telephone 

records in other criminal investigations?” He answered, “Yes.” Later, he was 

asked about a particular cell phone record and whether “we have the benefit of cell 

tower information as well.” The detective responded, “Yes, we do,” and he

explained that information was somewhat unique to the particular provider. He 

expressed his awareness that general location data was available “during cell 

calls, not texts.” 

The detective’s training and experience qualified him to testify that cell 

phones communicated with “the closest tower” and “[t]he cell phone will simply go 

to whatever the nearest tower it is or whatever is the clearest signal it can pick up.” 

On our de novo review, we conclude Garcia’s attorney did not breach an essential 

duty in failing to timely or more specifically object to the testimony. His ineffectiveassistance-of-counsel claim fails. 
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II. Corroboration of Accomplice Testimony

The three men who came up with the plan to rob the marijuana purchaser 

implicated Garcia and testified against him at trial. Garcia contends their testimony 

was insufficiently corroborated. See Iowa R. Crim. P. 2.21(3) (requiring 

corroboration of accomplice testimony). Corroborative evidence “may be direct or 

circumstantial,” and it “need not be strong and need not be entirely inconsistent 

with innocence.” State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997) (citation 

omitted). “It must, however, support some material part of the accomplice’s 

testimony and tend to connect the accused to the commission of the crime.” Id.

Accomplice Shamair Gainey testified Garcia “shot” the person they 

intended to rob, and Garcia then “started shooting” the purchaser’s friend. 

Accomplice Roberto Baez-Alvarez testified the man who wished to 

purchase marijuana had $250 to spend. He and the other accomplices came up 

with a plan to rob him of the money and drove the purchaser to an alley. Garcia 

approached the vehicle. The purchaser demanded to see the marijuana before 

paying Garcia. After deliberating a short while, Garcia said, “You know what?” and 

“shot” the purchaser “once.” Baez-Alvarez heard another shot. After the shot, the 

purchaser’s friend “took off running,” with Garcia in pursuit. Baez-Alvarez pulled 

the purchaser’s body out of the vehicle and left him on the ground. Later, BaezAlvarez attempted to clean the vehicle with bleach and paper towels. 

According to accomplice Luis Magallon, Garcia told him “I’m going to shoot”

the purchaser and his friend if they “don’t give me the money.” Magallon walked 

away. As he did so, he heard “five or six” gunshots coming from the alley. Later, 

he met up with Garcia, who was “pouring sweat” and told him he “did it.” 
7

The testimony of the three accomplices was corroborated by extensive 

evidence. Officers obtained the vehicle owner’s consent to search the vehicle in 

which the shooting occurred. One of the detectives observed “what appeared to 

be a dark red stain in the seat which would be consistent where somebody would 

be sitting” and “what appeared to be blood on the door.” The DNA profiles obtained 

from the blood in the vehicle “matched the known DNA profile” of the marijuana 

purchaser. The detective also saw “a balled-up paper towel that had some sort of 

red evidence on it.” A bottle of bleach was in the vehicle. The detective viewed a 

surveillance video from a convenience store “a block and a half” from the crime 

scene and identified Garcia and Magallon going into the store “at the approximate 

time frame” identified in police interviews. 

Garcia was interviewed by police. He changed his story as police 

confronted him with information contradicting his initial version of events. See State 

v. Harris, 589 N.W.2d 239, 242 (Iowa 1999) (stating courts can “also consider as 

corroborating evidence the fact that when defendant was interrogated by the police 

he gave false and misleading evidence concerning his whereabouts”). Initially, he

said he did not see Magallon on the night of the shootings. After being informed 

that a convenience store video showed him with Magallon, he backtracked. He 

also identified an alibi witness, but when she failed to corroborate the alibi, he 

altered the narrative. 

After being arrested and jailed, Garcia made incriminating statements in 

recorded phone conversations. See State v. Douglas, 675 N.W.2d 567, 572 (Iowa 

2004) (“[A] defendant’s out-of-court confessions and admissions may corroborate 

the testimony of an accomplice.”). They included, “I’m probably going away for a 
8

long, long time”; “When I get sentenced and go to prison, I might call and tell you 

why”; and “I’m probably never going to see the outside world again.”

Finally, cell phone records contained communications between Garcia and 

the accomplices and among the accomplices. And, as noted, location data from 

the cell phone towers placed the accomplices near the scene of the crime. 

We conclude there was more than sufficient evidence to corroborate the 

accomplice testimony.

VI. Ineffective Assistance–Jury Instruction, Defendant’s Prior Statements

Garcia contends his trial attorney was ineffective in failing to object to an 

instruction that informed the jury it could consider his out-of-court statements “just 

as if they had been made at trial.” According to Garcia,

While the rules of evidence provide that statements of party 

opponents are admissible, the rule of evidence and the rationale 

underlying the hearsay exception provides no authority to require the 

jury to consider the statements as bearing the same weight as 

testimony received at trial, made under oath and under penalty of 

perjury. Instead the jury should have been free to assign whatever 

weight and reliability to the statements as it saw fit. 

We recently addressed the identical issue. See State v. Yenger, No. 17-

0592, 2018 WL 3060251, at *4-5 (Iowa Ct. App. June 20, 2018). We stated:

Although the challenged instructional language does not appear in 

rule 5.801(d)(2), we believe it is a correct statement of the law. . . . 

[T]he language allows rather than requires the jury to consider the 

statements “just as if they had been made at this trial.” . . . Because 

the challenged language does not require jurors to accord the same 

weight to an unsworn prior inconsistent statement as they would to 

trial testimony, we conclude Yenger’s attorney breached no essential 

duty in failing to object to that portion of the instruction. See [State 

v.] Payne, [No. 16-1672,] 2018 WL 1182624, at *9 [(Iowa Ct. App. 

Mar. 7, 2018)] (“The instruction did not direct the jury to assign the 

statement any particular weight or unduly emphasize the matter, nor 

did it create an improper permissive inference or presumption.”); see 

also State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct. 
9

App. June 6, 2018) (concluding counsel was not ineffective in failing 

to challenge this instruction); State v. Wynn, No. 16-2150, 2018 WL 

769272, at *3 (Iowa Ct. App. Feb. 7, 2018) (noting instruction made 

“no reference to a presumption or an inference”); State v. Wineinger, 

No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct. App. Nov. 22, 2017) 

(concluding instruction was “a correct statement of law”); State v.

Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct. App. Jan. 28, 

2015) (disagreeing with assertion that the instruction was 

misleading).

We are persuaded by the reasoning of Yenger and the remaining cited opinions.

We conclude counsel did not breach an essential duty in failing to object to the 

instruction. 

IV. Merger–Felony Murder Instruction

Garcia contends his “sentences and convictions for murder are illegal and 

must be vacated” because (1) the jury “was never instructed on the requirement

. . . that the assaultive act that forms the basis of the predicate felony must be 

separate and distinct from the act causing death” and (2) “the jury did not make 

findings that the act constituting the assaultive elements of the robbery convictions 

in Counts III and IV were separate and distinct acts from the shootings that 

supported the felony murder options in Counts I and II.” In his view, “the murder 

convictions and sentences must be vacated, as the jury’s general verdict forms do 

not indicate whether it found [him] guilty of premeditated murder or felony murder.”

The State counters that Garcia “is not truly challenging the legality of his 

sentence,” but the “marshalling instructions for his murder charges,” an issue he 

failed to preserve for our review. We agree.

 “Objections to instructions, or the lack thereof, may not be raised for 

the first time on appeal.” State v. Wellington, 264 N.W.2d 739, 742 (Iowa 1978); 

cf. State v. McCoy, No. 14-0918, 2016 WL 3269458, at *4 (Iowa Ct. App. June 15, 
10

2016). (“We agree this is a challenge to the jury instructions, and we agree the 

defendant failed to preserve error.”). Garcia did not object to the instruction and 

does not raise a challenge to the instruction under an ineffective-assistance-ofcounsel rubric. Accordingly, we have nothing to review.1

 

We affirm Garcia’s judgment and sentences.

AFFIRMED.

Tabor, J., concurs specially; Potterfield, J., joins special concurrence.

 

1 The Iowa Supreme Court recently rejected the argument. See State v. Harrison, 914 

N.W.2d 178, 208 (Iowa 2018) (“Based on the fundamental differences between felony 

robbery and felony assault in the felony-murder context, in addition to the merger rule 

jurisprudence in Iowa, it can hardly be said that trial counsel in this case “performed below 

the standard demanded of a reasonably competent attorney.”); see also McCoy, 2016 WL 

3269458, at *4-7; State v. Pollard, No. 13-1255, 2015 WL 405835, at *3-4 (Iowa Ct. App.

Jan. 28, 2015).
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TABOR, Judge (concurring specially). 

I agree with the majority’s decision to affirm Garcia’s convictions, but I 

disagree with two aspects of the analysis. For both claims of ineffective assistance 

of counsel raised on appeal, I would find a breach of duty, but no prejudice. 

First, the State did not establish that the police detective received relevant 

training in cellular telephone technology or that his general experience as a patrol 

officer or detective would allow him to provide expert testimony regarding the use 

of cell tower data. To satisfy minimum performance standards, defense counsel 

should have lodged an earlier objection to the officer’s testimony about specialized 

information that was beyond a layperson’s understanding. See generally State v. 

Carrillo, 399 P.3d 367, 376 (N.M. 2017) (“[U]nderstanding how cell towers operate 

requires a duly qualified expert to explain the technical nature of the many 

variables that influence how cell tower signals connect with cell phones.”). In both 

State v. Rendon, No. 15-1832, 2016 WL 6270092, at *4 (Iowa Ct. App. Oct. 26, 

2016), and State v. Benson, No. 15-1895, 2016 WL 7393891, at *3 (Iowa Ct. App. 

Dec. 21, 2016), the question was whether a detective’s training from 2008 to 2012 

was up-to-date, not whether he had received any training on cellular phone 

technology. Here, the State laid no foundation that the detective had specific 

knowledge regarding the operation of cell phone towers. He testified he attended 

conferences and classes on homicides generally—not specifically about how 

cellular towers work or how to read cellular telephone records. The officer’s 

subsequent testimony that he had the “opportunity in the past to interpret cellular 

telephone records” in the course of investigations does not answer the question of 

how he was qualified to do so then or now.
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Second, counsel had a duty to object to the jury instruction regarding 

Garcia’s extrajudicial statements. The district court instructed the jurors that if they 

found Garcia made statements at an earlier time and place, they were allowed to 

consider those out-of-court statements as part of the evidence—“just as if they had 

been made at this trial.” Although our court has upheld this stock instruction in 

several unpublished decisions, the disputed language cannot be found in the rules 

of evidence. In my view, the instruction improperly suggests Garcia’s out-of-court 

admissions were to be given the same force and effect as if he had uttered the 

words from the witness stand under the penalty of perjury. See State v. Yenger, 

No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018) (Tabor, J., 

dissenting); State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct. 

App. Mar. 7, 2018) (Tabor, J., dissenting). 

But on the question of Strickland prejudice, in neither instance can Garcia 

show the reasonable probability of a different outcome based on counsel’s 

omissions. See Strickland v. Washington, 466 U.S. 668, 686 (1984). As the State 

asserts on appeal, the detective’s testimony concerning the cellular tower 

information was just “one piece of the puzzle” amid overwhelming evidence of 

Garcia’s guilt. Similarly, it is not reasonable to believe the result of the trial would 

have been different if the court had not given the disputed instruction. See State 

v. Kissel, No. 16- 0887, 2017 WL 6032585, at *5 (Iowa Ct. App. Nov. 22, 2017) 

(finding no prejudice from same jury instruction); State v. Chinberg, No. 16-1600, 

2017 WL 6026718, at *2 (Iowa Ct. App. Nov. 22, 2017) (same). Garcia’s out-ofcourt statements—in the form of recorded telephone calls from jail and a 

videotaped interview with officers—were not the most incriminating evidence 
13

before the jury. The prosecution presented a strong case. Garcia’s three 

accomplices testified he pulled the trigger, surveillance videos placed him near the 

crime scene within minutes of the shooting, and he possessed the proceeds from 

the robbery. On this record, I don’t find counsel’s errors undermined confidence 

in the jury’s verdicts. I would find counsel breached an essential duty, but Garcia 

was not prejudiced. Therefore, I specially concur in the result affirming denial of 

Garcia’s claims.