                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1301
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRAVON JAMES JONES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea Dryer,

Judge.



      Defendant appeals his convictions for first-degree robbery, first-degree

burglary, and intimidation with a dangerous weapon with intent. AFFIRMED.




      Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

      Travon J. Jones, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.




      Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.
                                        2


BOWER, Judge.

       Travon Jones appeals his convictions for first-degree robbery, first-degree

burglary, and intimidation with a dangerous weapon with intent. We find Jones’s

convictions were supported by substantial evidence. We conclude Jones has not

shown he received ineffective assistance because defense counsel did not (1)

object to the instructions on aiding and abetting and joint criminal conduct; (2)

argue Jones could not be convicted of first-degree robbery under a theory of joint

criminal conduct because a codefendant had been convicted of second-degree

robbery; and (3) object to the State’s use of a statement by the codefendant, who

was excluded as a witness. Jones’s other claims of ineffective assistance are

preserved for possible postconviction proceedings.

       I.     Background Facts & Proceedings

       On about December 19, 2014, there was a fight between Kenneth

Weekley and Jonathon Reins at Reins’s home, where he was living with his

mother, Nicole Fordyce. Reins testified he beat up Weekley. He stated Weekley

showed him a gun during this time period.         The next day, December 20,

Weekley, Darrion Morrissey, and Jones came to Fordyce’s home, where

Fordyce, Reins, and Marqwane Smith were present. There was an argument

between Jones and Reins. Morrissey yelled at Fordyce and gestured at her with

his fist. Smith pulled out a gun. Weekley, Morrissey, and Jones then left. Reins

testified people were still angry.

       On December 22, at about 10:00 p.m., Fordyce heard glass breaking.

She looked out of her bedroom and saw Weekley, Morrissey, and Jones

creeping up the stairs.     Fordyce told Reins and his girlfriend to hide in the
                                        3


bathroom. Jones asked Fordyce, “Where the f*ck is Jon?” but she stated she did

not know. Fordyce testified she was afraid because she knew the three intruders

sometimes carried guns. She went into her bedroom, locked the door, and called

911. The intruders went into Reins’s bedroom and took an Xbox game system, a

purse, and a cell phone.      They then left the house and got into a white

Oldsmobile Alero. From the street, one of the men fired at least four shots into

Reins’s bedroom with a .22 caliber handgun, leaving bullet holes in the wall

above his bed.

      Shortly after midnight, Officer Kenneth Schaaf of the Waterloo Police

Department saw the white Oldsmobile Alero at a gas station. After seeing Officer

Schaaf, the vehicle left at a high rate of speed. The vehicle, driven by Jones,

was eventually stopped. Weekley, Morrissey, and Tyvon Campbell were the

passengers in the vehicle. Three .22 caliber shell casings were found in the

vehicle. Jones, Weekley, and Morrissey were arrested.

      From jail, Jones called his girlfriend and stated, “If you get a chance, have

our bro walk down the alley.” Morrissey also provided officers with information

leading them to discover a .22 caliber handgun hidden behind a trellis in an alley

behind Jones’s home.      Ballistics analysis by the Iowa Division of Criminal

Investigation (DCI) showed the shell casings in the vehicle driven by Jones came

from the handgun found by officers.

      During the criminal trial, Jones testified he did not have a dispute with

Reins but stated Weekley and Reins “got into it a few times.” He stated he went

with Weekley and Morrissey to Fordyce’s house on December 20 to “try to keep

them out of trouble.” Jones stated Reins and Weekley made up but Morrissey
                                         4


and Fordyce began yelling at each other. He testified he went to Fordyce’s

house with Weekley, Morrissey, and Campbell on December 22 because Smith

asked him to meet Smith there and Jones was expecting an argument with

Smith. Jones stated he did not know how the glass in the front door was broken.

He stated he went inside the home, saw Fordyce, asked her where Reins was,

then went back out to the car, which he had driven. Jones also testified he was

completely taken by surprise by the gunshots.

       A jury found Jones guilty of robbery in the first degree, in violation of Iowa

Code section 711.2 (2014), burglary in the first degree, in violation of section

713.3, and intimidation with a dangerous weapon with intent, in violation of

section 708.6. The district court denied Jones’s motion for a new trial. Jones

was sentenced to terms of imprisonment not to exceed twenty-five years, twenty-

five years, and ten years on the respective charges, to be served concurrently.

He now appeals his convictions.

       II.    Sufficiency of the Evidence

       We review a district court’s ruling on a motion challenging the sufficiency

of the evidence for the correction of errors at law. State v. Showens, 845 N.W.2d

436, 439 (Iowa 2014). “In reviewing challenges to the sufficiency of the evidence

supporting a guilty verdict, courts consider all of the record evidence viewed in

the light most favorable to the State, including all reasonable inferences that may

be fairly drawn from the evidence.” Id. at 439-40. We will uphold a jury’s verdict

if it is supported by substantial evidence in the record. Id. at 440. Substantial

evidence is defined as “proof which could convince a rational trier of fact that the
                                         5

defendant is guilty of the crime charged beyond a reasonable doubt.” State v.

Cartee, 577 N.W.2d 649, 651 (Iowa 1998).

        A.    Jones claims there is not sufficient evidence in the record to

support his conviction for first-degree burglary. The instructions permitted the

jury to find Jones guilty of first-degree burglary either as a principal or as

someone who aided and abetted others in the commission of the offense. The

instructions required a finding Jones entered Fordyce’s house “with the specific

intent to commit an assault or aided and abetted another knowing the other had

the specific intent to commit an assault.” Jones claims the State did not prove he

or anyone else had the intent to commit an assault when they entered Fordyce’s

home.

        “Because it is difficult to prove intent by direct evidence, proof of intent

usually consists of circumstantial evidence and the inferences that can be drawn

from that evidence.” State v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006). “A

factfinder may infer an intent to commit an assault from the circumstances of the

defendant’s entry into the premises and his acts preceding and following the

entry.” State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994). A person engages in

knowingly aiding and abetting by either active participation in a crime or by

encouraging the crime prior to or at the time of its commission. State v. Satern,

516 N.W.2d 839, 843 (Iowa 1994).

        Jones’s entry into Fordyce’s home, along with Weekley and Morrissey,

was the culmination of several days of arguments between the three men and

Reins and Fordyce.        Reins testified people were still angry when Jones,

Weekley, and Morrissey left Fordyce’s home two days earlier.          Jones drove
                                       6


Weekley and Morrissey over to Fordyce’s home on the evening of December 22.

Jones testified he heard the glass of Fordyce’s front door break while he was

near the front step. Although he was aware his friends were breaking into the

home and they were angry with Reins and Fordyce, he entered the home as well.

From the evidence, the jury could infer Jones entered the home with the intent to

commit an assault in order to continue the physical altercations he, Weekley, and

Morrissey had been having with Reins and Fordyce. Jones’s claim he went to

Fordyce’s home looking for Smith is not credible because when he saw Fordyce

in the home, he asked her where Reins was, rather than make an inquiry about

Smith. We determine there is substantial evidence in the record to support the

jury’s verdict finding Jones guilty of first-degree burglary both acting as a

principal and aiding and abetting Weekley and Morrissey.

      B.     Jones claims his conviction for first-degree robbery is not supported

by the evidence. Under the instructions, the jury could find Jones committed the

crime as a principal or he was engaged in joint criminal conduct. Jones states

there is not sufficient evidence to show he, Weekley, or Morrissey threatened

anyone or purposely placed anyone in fear of immediate serious injury in order to

commit a theft or to assist in their escape from the scene.      See Iowa Code

§ 711.1 (defining robbery).   He also states he was not aware Weekley and

Morrissey intended to commit theft.

      Joint criminal conduct “contemplates two acts—the crime the joint actor

has knowingly participated in, and a second or resulting crime that is unplanned

but could reasonably be expected to occur in furtherance of the first one.”

Satern, 516 N.W.2d at 843. We have already determined there is sufficient
                                         7


evidence to show Jones committed one crime, burglary. There is substantial

evidence in the record to show the second crime, robbery, could reasonably be

expected to occur in furtherance of the commission of the burglary.           After

Weekley or Morrissey, or both, broke in the door, Jones testified he asked them,

“What is you all doing?” and Weekley responded he wanted “to get his stuff

because he used to live there.” Jones was then aware Weekley intended to take

things out of the home. Also, Reins testified Morrissey entered his bedroom and

said, “I need all this.”

       Furthermore, one of the intruders fired shots at Reins’s bedroom from

outside the home. The shots left bullet holes in Reins’s bedroom wall, where his

head would have been if he had been in bed.          Any assault which helps a

defendant get away turns a theft into robbery. State v. Terry, 544 N.W.2d 449,

452 (Iowa 1996).       “[W]hether an assault assisted the defendant’s escape or

occurred after the escape was complete is a question of fact for the jury.” Id.

The jury could have concluded the gunshots helped Jones and his friends

escape from the scene without interference. We determine there is substantial

evidence in the record to support the jury’s verdict finding Jones guilty of first-

degree robbery.

       C.      Jones claims there was not sufficient evidence in the record to

support his conviction for intimidation with a dangerous weapon with intent. For

this offense, the jury was again instructed on a theory of joint criminal conduct.

Jones states there was no evidence he was acting in concert with another person

to participate in a burglary or to intimidate anyone with a dangerous weapon.

Jones claims Morrissey shot the firearm and he acted alone.
                                           8


       As noted above, we have determined there is sufficient evidence to show

Jones committed the crime of burglary. For joint criminal conduct, we consider

whether there is substantial evidence in the record to show the second crime,

intimidation with a dangerous weapon with intent, could reasonably be expected

to occur in furtherance of the commission of the burglary.           See Satern, 516

N.W.2d at 843.       There was evidence Weekley showed Reins a gun on

December 19, and in regard to December 22, Reins testified, “Kenny always kept

it on him everywhere he went, so I don’t see why he wouldn’t have it on him that

same night.” Fordyce also testified Jones, Weekley, and Morrissey “were known

to carry guns.” At least one of the men was armed with a gun and fired gunshots

at Fordyce’s house.     Based on this evidence, the jury could reasonably find

Jones could have expected the crime of intimidation with a dangerous weapon

with intent to be committed in furtherance of the commission of the first crime,

burglary. We conclude there is substantial evidence in the record to support

Jones’s conviction for intimidation with a dangerous weapon with intent.

       III.   Exclusion of a Witness

       The trial information, filed on January 2, 2015, charged Jones, Weekley,

and Morrissey as codefendants. Morrissey entered into a plea agreement, pled

guilty to certain charges, and was sentenced. Jones’s trial was set for June 9,

2015.1 On June 3, Jones filed notice of his intention to call Morrissey as a




1
  After a period of time, Jones waived his right to a speedy trial. He later revoked his
waiver, and his trial was then set for June 9, 2015. Jones was scheduled to be tried
jointly with Weekley. Weekley’s counsel developed a medical issue and Weekley’s trial
was continued but Jones’s trial was held as scheduled due to speedy trial concerns.
                                         9


defense witness. The State filed a motion to exclude Morrissey as a witness,

stating it was “unfairly prejudiced by the extremely late notice provided.”

       A hearing was held on the matter before the district court. Jones stated

he expected Morrissey to be called as a witness for the State, although he was

not formally listed by the State. Jones stated he eventually became aware the

State was not going to call Morrissey.        After Morrissey was sentenced on

May 13, defense counsel contacted him about testifying in Jones’s trial. Jones

asserted the State could depose Morrissey during the trial, prior to testifying.

The district court granted the motion to exclude Morrissey as a witness, noting

even if Morrissey was deposed during the trial, the State needed time to

investigate his statements and the time to do so was limited because Jones had

reinvoked his right to a speedy trial. The court concluded it would be unduly

prejudicial to the State to permit Morrissey to testify and “there is no less severe

remedy that’s adequate to protect the State from the unfair prejudice by the late

notice of defense witness provided in this case.” Jones did not make an offer of

proof of Morrissey’s proposed testimony.

       Jones claims the district court abused its discretion by granting the State’s

motion to exclude Morrissey as a defense witness. He contends the State had

time to depose Morrissey.      He claims the State could have again moved to

exclude Morrissey or sought to limit his testimony after the deposition. Jones

states the court did not need to entirely exclude Morrissey’s testimony. Jones

asserts he was prejudiced by the court’s decision.
                                       10


      Under Iowa Rule of Criminal Procedure 2.13(3), a defendant is required to

submit a list of witnesses expected to be called for the defense. Rule 2.13(4)

provides:

             If the defendant has taken depositions under rule 2.13(1)
      and does not disclose to the prosecuting attorney all of the defense
      witnesses (except the defendant and surrebuttal witnesses) at least
      nine days before trial, the court may order the defendant to permit
      the discovery of such witnesses, grant a continuance, or enter such
      other order as it deems just under the circumstances. It may, if it
      finds that no less severe remedy is adequate to protect the state
      from undue prejudice, order the exclusion of the testimony of any
      such witnesses.

      Jones had taken depositions, so rule 2.13(4) applies.        A court may

exercise its discretion in fashioning an appropriate sanction for a defendant’s

failure to comply with rule 2.13(4). State v. Babers, 514 N.W.2d 79, 82 (Iowa

1994). We will reverse the court’s ruling only if there has been an abuse of

discretion. Id. “An abuse of discretion will not generally be found unless the

party whose rights have been violated suffered prejudice.” Id. The exclusion of

an “eleventh-hour witness” “is expressly provided to protect the State from undue

prejudice.” State v. Braun, 495 N.W.2d 735, 742 (Iowa 1993). Jones did not

give timely notice he intended to call Morrissey as witness. The court carefully

considered the circumstances and concluded there was no less severe remedy

that was adequate to protect the State from the unfair prejudice created by the

late notice. We conclude the court did not abuse its discretion in excluding

Morrissey as a defense witness.

      IV.    Ineffective Assistance

      We conduct a de novo review of claims of ineffective assistance of

counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a
                                         11


claim of ineffective assistance of counsel, a defendant must prove (1) counsel

failed to perform an essential duty and (2) prejudice resulted to the extent it

denied the defendant a fair trial. Id. A defendant’s failure to prove either element

by a preponderance of the evidence is fatal to a claim of ineffective assistance.

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       A.     Jones claims he received ineffective assistance because defense

counsel did not object to the instructions on aiding and abetting or joint criminal

conduct. He states the instructions were improperly given because there was not

sufficient evidence to submit these theories to the jury.

       We have determined there is sufficient evidence in the record to support

Jones’s convictions under theories of aiding and abetting and joint criminal

conduct. For this reason, the court properly instructed the jury on these theories.

See State v. Neiderbach, 837 N.W.2d 180, 210-11 (Iowa 2013) (finding the court

properly submitted instructions on aiding and abetting, looking at the sufficiency

of the evidence to support the theory); State v. Smith, 739 N.W.2d 289, 292-93

(Iowa 2007) (considering theories of aiding and abetting and joint criminal

conduct). “Counsel does not fail to perform an essential duty by failing to raise a

meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015). We

conclude Jones has failed to show he received ineffective assistance on this

ground.

       B.     Jones claims defense counsel should have argued Jones could not

be convicted of first-degree robbery under a theory of joint criminal conduct

because Morrissey had been convicted of second-degree robbery. “A judgment

against one [codefendant], whether of conviction or acquittal, has no bearing on
                                         12

the other.” State v. Young, 211 N.W.2d 352, 353 (Iowa 1973). Counsel had no

duty to raise this issue. See Lopez, 872 N.W.2d at 169.

       C.     Jones claims he received ineffective assistance because defense

counsel did not: (1) file a timely notice he intended to call Morrissey as a witness;

(2) make an offer of proof of Morrissey’s testimony; (3) advise Jones to waive his

right to a speedy trial so Morrissey could testify; and (4) determine before the trial

one of the jurors had previously worked with Jones. We determine the present

record is inadequate to address these claims on appeal. See State v. Elston,

735 N.W.2d 196, 200 (Iowa 2007) (noting claims of ineffective assistance may be

considered on direct appeal only if the record is sufficient). We conclude these

claims should be preserved for possible postconviction proceedings.

       D.     In a pro se brief, Jones claims he received ineffective assistance

because defense counsel did not object to the State’s use of a statement by

Morrissey, although he was excluded as a witness. This apparently refers to

Morrissey’s statement to officers concerning the location of the gun, which Jones

claims Morrissey placed in the alley near Jones’s home. Jones states he was

prejudiced by Morrissey’s statement because he never had the opportunity to

depose Morrissey prior to trial.

       Officer Jamie Sullivan testified he received a letter from Morrissey, who

was then in jail, asking to speak to him. At their meeting, Morrissey volunteered

information that led officers to search in a particular location. Officer Sullivan did

not testify to any particular statements made by Morrissey, and in fact, the

prosecutor stated, “I don’t want to ask about the content of your conversations

with Mr. Morrissey.” Based on information received from Morrissey, officers were
                                        13


able to find the firearm. We note Jones could have deposed Morrissey prior to

the trial; the issue causing the exclusion of Morrissey as a witness was whether

the State would have time to depose him after Jones listed Morrissey as a

witness.

      We conclude Jones has failed to show he received ineffective assistance

of counsel on this ground. No specific statements or testimony by Morrissey

were presented by the State during Jones’s criminal trial.

      We affirm Jones’s convictions for first-degree robbery, first-degree

burglary, and intimidation with a dangerous weapon with intent.

      AFFIRMED.
