                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0858
                                Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL AARON DUTCHER,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, James D. Scott,

Judge.



       The defendant appeals his conviction for ongoing criminal conduct.

AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer and

Joseph A. Fraioli (until withdrawal), Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Katherine M.

Krickbaum (until her withdrawal), Assistant Attorneys General, for appellee.



       Considered by Danilson, C.J., and Vogel and Potterfield, JJ. Scott, S.J.,

takes no part.
                                            2


POTTERFIELD, Judge.

       Michael Dutcher appeals his conviction for ongoing criminal conduct.1

Dutcher maintains there was not sufficient evidence to support his conviction for

ongoing criminal conduct because the “continuing basis” element was not

satisfied. In the alternative, he maintains trial counsel was ineffective for failing

to challenge the jury instruction that defined “continuing basis.”

I. Background Facts and Proceedings

       Dutcher was convicted of two counts of robbery based on robberies that

occurred in Sioux City approximately one month apart. The first robbery took

place at a Super 8 motel. Dutcher entered the motel at approximately 5:00 a.m.

on May 15, 2014, when the only person present was the front desk clerk. He

was armed with a gun and threatened to shoot and kill the clerk2 if he was not

quickly given all of the available money. After receiving approximately $960 from

the clerk, Dutcher ran out of the hotel. The second robbery took place at another

area motel, a Travelodge, on June 14, 2014. Dutcher entered at approximately

6:00 a.m., armed with a butcher knife with a six- or seven-inch blade. He again

demanded money and threatened the clerk. On the second occasion, Dutcher

received between $300 and $400. Dutcher had recently been a patron at both of

the motels; at the time, he had no permanent residence and his only source of

income was from selling marijuana. One of Dutcher’s girlfriends testified he told



1
  As a result of the same trial, Dutcher was also convicted of robbery in the first degree
and robbery in the second degree. Dutcher’s appeal does not challenge his other
convictions, and we do not consider them except as they form the basis for ongoing
criminal conduct.
2
  There was testimony that the gun may have been an airsoft gun meant to look like a
“real gun.”
                                         3


her “a few times” that he would rather get a gun and rip people off than pick up

pop cans for money. Dutcher was arrested shortly after the second robbery.

       Following a trial by jury in April 2015, Dutcher was convicted of robbery in

the first degree, robbery in the second degree, and ongoing criminal conduct.

Dutcher was sentenced to a term of incarceration not to exceed ten years for his

conviction for robbery in second degree; a term of incarceration not to exceed

twenty-five years for his conviction for robbery in the first degree; and a term of

incarceration not to exceed twenty-five years for his conviction for ongoing

criminal conduct. The district court ordered the sentences to run concurrently.

       Dutcher appeals.

II. Standard of Review

       We review sufficiency-of-the-evidence claims for correction of errors at

law. State v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). We review all of the

evidence presented at trial, and we view it in the light most favorable to the State.

Id.

       A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id. This is our standard

because such claims have their basis in the Sixth Amendment to the United

States Constitution. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).
                                           4


III. Discussion

       A. Sufficiency of the Evidence

       Dutcher does not challenge his convictions for robbery in the first degree

and robbery in the second degree.          Rather, he maintains the two robberies,

approximately one month apart, are insufficient to support a conviction for

ongoing criminal conduct because they do not satisfy the element of “continuing

basis.”3

       Without objection from Dutcher, the jury was instructed:

               The State must prove all of the following elements of
       Ongoing Criminal Conduct:
               1. On or about May 15, 2014 to on or about June 14, 2014,
       the Defendant committed these two acts:
               a. Robbery at Super 8 Motel, [address of motel]
               b. Robbery at Travelodge Motel, [address of motel]
               2. The Defendant committed the robberies with the specific
       intent of financial gain; and
               3. The Defendant committed the robberies on a continuing
       basis.
               If the State has proved all of these elements, the Defendant
       is guilty of Ongoing Criminal Conduct. If the State has failed to
       prove any one of these elements, the defendant is not guilty.

       Also without objection, the jury was given the following instruction as a

definition or further explanation of “continuing basis”:

              Concerning element number 3 of [the instruction above],
       acts are committed on a continuing basis: if the acts had the same
       or similar purpose, results, participants, victims, or methods of
       commission or otherwise are interrelated by distinguishing
       characteristics and are not isolated events and if they are



3
  Iowa Code section 706A.2(4) (2013) provides, “It is unlawful for a person to commit
specified unlawful activity as defined in section 706A.1.” Iowa Code section 706A.1
defines “specified unlawful activity” as “any act, including any preparatory or completed
offense, committed for financial gain on a continuing basis, that is punishable as an
indictable offense under the laws of the state in which it occurred and under the laws of
this state.”
                                         5


       committed under circumstances indicating that the defendant will
       continue to commit similar offenses.

       Here, there was sufficient evidence for a rational factfinder to conclude

Dutcher committed the robberies on a continuing basis, as the instructions

defined it. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to

timely object to an instruction not only waives the right to assert error on appeal,

but also ‘the instruction, right or wrong, becomes the law of the case.’” (citation

omitted)).   Both robberies were committed with similar purpose, results,

participants, victims, and methods of commission: in the early morning hours,

when the clerk was alone, at motels Dutcher had stayed at and was familiar with.

In both instances, Dutcher took a weapon, threatened violence against the clerk,

and demanded all of the money—including the money in the deposit bags. He

dressed completely in black clothing and used a mask to cover his face so the

clerks could not identify him and the surveillance camera recordings could not be

used identify him.

       Additionally, there was evidence to support a finding that Dutcher would

continue committing such robberies. He had stayed at and was familiar with

more motels in the area. He did not have a job and did not appear to have any

prospect for employment. He told his girlfriend he would rather get a gun and “rip

people off” than pick up pop cans. Although he testified that he sold marijuana to

earn money, the evidence suggests he was not making enough to meet his

needs, as he was sleeping in his car some nights and had to borrow money from

a girlfriend for a new tire for his vehicle.   Additionally, between the first and

second robbery, officers seized Dutcher’s face mask in an unrelated traffic stop.
                                          6


This did not deter Dutcher, as he stole a new face mask4 the day before the

second robbery. There was no evidence presented at trial to suggest Dutcher’s

circumstances or mindset had changed. Dutcher also kept in his vehicle all the

items necessary to repeat the crime of robbery, namely a replica gun, taser,

black gloves, sunglasses, mask, black shoes, and dark clothes. The jury was

free to believe that the only thing that stopped Dutcher from committing more

robberies was being caught. See United States v. Torres, 191 F.3d 799, 808

(7th Cir. 1999) (“The only reason their scheme ended was because they were

caught. We will not reward them by precluding the government from establishing

a[n-ongoing-criminal-conduct] pattern because of the quick success of law

enforcement officials.”).

       Viewing the evidence in the light most favorable to the State, sufficient

evidence supports Dutcher’s conviction for ongoing criminal conduct as defined

by the jury instructions; the district court did not err in denying his motion for

judgment of acquittal.

       B. Ineffective Assistance

       In the alternative, Dutcher maintains trial counsel was ineffective for failing

to object to the jury instruction that defined “continuing basis.” He claims the

instruction was not an accurate statement of the law because it omitted several

pertinent factors that the jury must consider and he was prejudiced because the

jury could not find him guilty of ongoing criminal conduct if it had been properly

instructed.


4
  The parties stipulated at trial that Dutcher had stolen the face mask from a local
sporting goods store and had pled guilty to theft in the fifth degree for the action.
                                        7


      To prevail on a claim of ineffective assistance of counsel, Dutcher must

prove by a preponderance of the evidence (1) his attorney failed to perform an

essential duty and (2) prejudice resulted from the failure.         See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).              We measure counsel’s

performance against an objective standard of reasonableness under prevailing

professional norms. Clay, 824 N.W.2d at 495. There is a presumption counsel

performed their duties competently. Id. Prejudice exists where the defendant

proves by a reasonable probability that, but for counsel’s unprofessional error,

the result of the proceeding would have been different. Id. at 496. Dutcher’s

claim fails if either element is lacking. See Everett v. State, 789 N.W.2d 151, 159

(Iowa 2010).      We prefer to preserve ineffective-assistance claims for

development of the record and to allow trial counsel an opportunity to defend

against the charge. See State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).

      We decline to consider Dutcher’s claim on direct appeal.          If the jury

instruction was a misstatement of the law, the record before us does not provide

insight into counsel’s reasons for not objecting.    See State v. Ondayog, 722

N.W.2d 778, 786 (Iowa 2006) (“Because ‘improvident trial strategy, miscalculated

tactics, and mistakes in judgment do not necessarily amount to ineffective

assistance of counsel,’ postconviction proceedings are often necessary to

discern the difference between improvident trial strategy and ineffective

assistance.” (citation omitted)). We affirm Dutcher’s conviction and preserve his

claim of ineffective assistance for possible postconviction relief. See Iowa Code

§ 814.7(3); see also State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

      AFFIRMED.
