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Case No. 19-1354

State of Iowa
Ler He Gay


State of Iowa


Ler He Gay

Attorney for the Appellee

Zachary Miller, Assistant Attorney General

Attorney for the Appellant

Shellie L. Knipfer, Assistant Appellate Defender

Court of Appeals

Court of Appeals Opinion

Opinion Number:
Date Published:
Oct 20, 2021

            Appeal from the Iowa District Court for Polk County, Paul Huscher, Judge.  CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., Schumacher, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (9 pages)

            Ler He Gay appeals his convictions and sentences after a jury found him guilty of first-degree burglary, going armed with a concealed weapon, and fourth-degree theft.  OPINION HOLDS: I. There is sufficient evidence by which the jury could find Gay had an intent to commit theft on entering an occupied structure to support his burglary conviction.  A jury could also find Gay aided and abetted a theft.  II. Because the district court failed to exercise its discretion under Iowa Code section 901.10(1) (2018) in sentencing Gay for burglary, we vacate that sentence and remand for resentencing.  III. We are not allowed to resolve ineffective-assistance-of-counsel claims on direct appeal.

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