                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0322
                               Filed July 24, 2019


DEVON LUKINICH,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mark E.

Kruse, Judge.



      Devon Lukinich appeals the denial of his application for postconviction

relief. AFFIRMED.




      Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

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

Attorney General, for appellee State.



      Considered     by   Potterfield,   P.J.,   and   Tabor   and   Bower,   JJ.
                                         2


POTTERFIELD, Presiding Judge.

       Devon Lukinich appeals the denial of his postconviction-relief (PCR)

application. Lukinich and his girlfriend, Desirae Pearson, were convicted after a

joint jury trial of two counts of first-degree robbery and two counts of first-degree

burglary for their actions at two homes on Thanksgiving 2010 when Lukinich was

eighteen years old and Pearson was seventeen years old.1 Lukinich first raised

his ineffective-assistance-of-counsel claims on direct appeal from his judgment

and sentence, where a panel of this court preserved his claims for PCR. State v.

Lukinich, No. 11-1306, 2012 WL 3860742, at *4 (Iowa Ct. App. Sept. 6, 2012).

Lukinich filed his PCR application and alleged his trial counsel provided

ineffective assistance through ten different errors or omissions. The district court

denied Lukinich’s PCR application, and he appealed.

    I. Background Facts and Proceedings

       The Iowa Supreme Court summarized the relevant background facts of

this appeal in its decision vacating Desirae Pearson’s conviction:

              On November 25, 2010 Pearson and her boyfriend, Devon
       Lukinich, armed themselves with BB guns that looked like
       handguns and went on a robbery spree in Burlington and West
       Burlington. . . . Pearson and Lukinich wore bandanas to conceal
       their faces and gloves to guard against leaving fingerprints.
       Pearson also wore a parka with a fur-lined hood pulled over her
       head.
              Around 9:15 p.m., Pearson and Lukinich were allegedly
       involved in an altercation with a Burlington resident that led to a 911
       call. Though Pearson and Lukinich had fled the scene by the time
       police arrived, the resident relayed information about Pearson’s



1
  The Iowa Supreme Court subsequently determined Pearson’s sentence was
unconstitutional because she was a juvenile at the time of the crime and remanded the
case to the district court. State v. Pearson, 836 N.W.2d 88, 97 (Iowa 2013).
                                       3


      vehicle to police, who then put out the description of the vehicle to
      officers in the area.
              Around 9:45 p.m., Pearson and Lukinich knocked on the
      door of Zachary Moore. When Moore opened the door, Pearson
      pointed her BB gun at Moore and told him that he was being
      robbed. Lukinich then informed Moore that Pearson was not joking
      and that he would shoot him if Pearson would not. Lukinich told
      Moore he was looking for the “weed money” as well as two
      individuals. Moore testified he laid on the floor while the pair took
      his laptop, television, iPod, a handheld videogame game system, a
      small global positioning device (GPS), and some cash.
              ....
              Later that night, Pearson and Lukinich entered the home of
      Joan Wright, an eighty-one-year-old woman, and her son, Ronald
      Wright. At the time, Joan was in bed and Ronald was in the
      basement. Lukinich climbed through a kitchen window and opened
      a door for Pearson. Pearson took cash out of a purse that was
      sitting on the kitchen table. The pair also took three pill bottles
      containing prescription medication. Lukinich then went into an
      unoccupied bedroom, while Pearson stood in the hallway just
      outside the doorway. After hearing noises and seeing the shadows
      of people she did not recognize, Joan got out of bed to investigate.
      She saw Lukinich in her son’s bedroom, holding Ronald’s two
      shotguns in their cases. Lukinich told Joan to go back to her
      bedroom, and Pearson told Joan to do as she was told. Lukinich
      and Pearson then opened their jackets, revealing the BB guns.
      When Joan yelled to her son that they were being robbed, Lukinich
      pushed her backward into a doorframe. The force of the blow
      fractured her shoulder. Lukinich decided to take one of Ronald’s
      shotguns, and the pair left the home. Police responded to the
      Wrights’ home around 11:44 p.m.
              Just moments after they left the Wrights’ home, police
      apprehended Pearson and Lukinich in their car. . . . When the
      officers first viewed the BB guns in the trunk of the vehicle, the
      officers thought the weapons were real handguns. One of the BB
      guns bore a strong resemblance to a Glock model 30 handgun and
      the other to a Taurus PT 1911 handgun.

State v. Pearson, 836 N.W.2d 88, 90–91 (Iowa 2013).

      Lukinich was charged with two counts of first-degree burglary and two

counts of first-degree robbery as well as criminal mischief arising from a third
                                              4


incident that evening. Significant to this appeal, an element of both first-degree

burglary and first-degree robbery charges is that the defendant had a “dangerous

weapon” while committing the crime. See Iowa Code §§ 711.2 (2009) (“A person

commits robbery in the first degree when, while perpetrating a robbery, the

person . . . is armed with a dangerous weapon.”); 713.3(1)(b) (“A person commits

burglary in the first degree if, while perpetrating a burglary . . . [t]he person has

possession of a dangerous weapon.”).

         A jury convicted Lukinich of the first-degree burglary and first-degree

robbery charges but deadlocked on the criminal-mischief charge. The district

court entered judgment and sentence and imposed the seventy percent

mandatory minimum sentence a for first-degree robbery conviction under section

902.12(5). Lukinich appealed. He made three arguments: the district court erred

by failing to give the jury a special interrogatory on the question of whether he

committed the crimes while in possession of a dangerous weapon; insufficient

evidence showed the BB guns used in the crimes were “dangerous weapons”

within the meaning of the first-degree robbery and first-degree burglary statutes;

and trial counsel was ineffective for failing to hire a ballistics expert to assist in

challenging the testimony of the State’s ballistics expert.

         On the substantial evidence issue, a panel of our court concluded the

evidence on the record supported the jury’s finding that the BB guns were

“dangerous weapons.”2 Lukinich, 2012 WL 3860742, at *3. The State’s ballistics


2
    The jury was instructed:
          [A] dangerous weapon is any device or instrument designed primarily for
          use in inflicting death or injury, and when used in its designed manner is
          capable of inflicting death. It is also any sort of instrument or device
                                           5


expert’s testimony demonstrated the BB guns were “designed primarily for use in

inflicting death or injury”; the witness had tested the BB guns and found they shot

pellets fast enough to break a person’s skin or penetrate their eye and cause

serious injury or kill. Id. Other evidence showed the BB gun was a “device of

any sort whatsoever which is actually used in such a way as to indicate that the

user intended to inflict death or serious injury”:

              The record further reveals that Lukinich and his co-
       defendant came to Moore’s house. When Moore opened the door,
       Lukinich’s co-defendant pointed a gun “right at” him and said this
       was a robbery. Lukinich then stated, “If she won’t shoot you, I will.”
       Moore assumed Lukinich also had a gun, as he placed a metal
       object on the coffee table after he entered the home. He testified
       he believed the gun was real.
              Wright similarly testified that both Lukinich and Pearson had
       pistols and they “kind of opened their jackets and showed” them to
       her during the robbery. While she did not know whether the guns
       were “real,” she stated, “I’m sure they were pistols.”

Id.

       On the State’s suggestion, our court evaluated Lukinich’s special

interrogatory claim under an ineffective-assistance-of-counsel framework. Id. at

*1. We concluded his trial counsel did not breach an essential duty by failing to

insist on the special interrogatory. Id. The panel preserved for PCR Lukinich’s

ineffective-assistance-of-counsel claim regarding trial counsel’s failure to hire a

ballistics expert to challenge the State’s ballistics expert’s testimony. Id. at *4.

       Lukinich filed his PCR application on February 7, 2013. He then filed

several amendments, and his fourth amended PCR application was submitted



       actually used in such a way as to indicate the user intended to inflict
       death or serious injury, and when so used is capable of inflicting death.
This definition largely tracks the language of Iowa Code section 702.7 (2010), which
defines “dangerous weapon.”
                                           6


with briefs and a stipulated record. The PCR application cites ten instances of

alleged ineffective-assistance-of-counsel.       The district court denied Lukinich’s

claim on each allegation. On appeal, Lukinich argues the district court erred by

denying his ineffective-assistance-of-counsel claims related to his trial counsel’s

conduct for four of the allegations made in the PCR application: (1) failing to have

a ballistics expert testify; (2) failing to object when the prosecutor improperly

stated during closing arguments that BB guns are dangerous weapons “under

the law”; (3) failing to object to instructions and arguments that the shotguns

stolen from Joan Wright’s house met the armed with a “dangerous weapon”

requirement; and (4) failing to present an expert witness at sentencing regarding

Lukinich’s brain maturity.

   II. Standard of Review

          Claims for ineffective-assistance-of-counsel are grounded in the Sixth

Amendment to the United States Constitution and are reviewed de novo. State

v. Albright, 925 N.W.2d 144, 151 (Iowa 2019); see also U.S. Const. amend. VI.

   III.      Discussion

          To prevail on his claims of ineffective assistance, Lukinich must show (1)

that his counsel failed to perform an essential duty and (2) that prejudice

resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

          To show counsel failed to perform an essential duty, a claimant must show

counsel “made errors so serious that counsel was not functioning as the counsel

guaranteed by the Sixth Amendment.” Albright, 925 N.W.2d at 151. Counsel is

presumed competent, and their conduct is measured “against the standard of a

reasonably competent practitioner.”        Id.    “We objectively consider whether
                                         7


counsel’s performance was reasonable under prevailing professional norms in

light of all of the circumstances. In making this determination, we avoid second-

guessing or making hindsight evaluations.” Id. (citations omitted).

       To show counsel’s failure to perform an essential duty was prejudicial, a

claimant must show “there is a reasonable probability that the outcome of the

proceeding would have been different but for counsel’s unprofessional errors.”

Id. Prejudice is shown when “the probability of a different result is ‘sufficient to

undermine confidence in the outcome.’” Id. at 152 (quoting Bowman v. State,

710 N.W.2d 200, 206 (Iowa 2006)). “This standard requires us to consider the

totality of the evidence, identify what factual findings would have been affected,

and determine if the error was pervasive or isolated and trivial.”         State v.

Ambrose, 861 N.W.2d 550, 557 (Iowa 2015).

          a. Failure to Present Ballistics Expert Testimony

       Lukinich argues his trial counsel provided ineffective assistance by failing

to introduce expert testimony to rebut the State’s ballistics expert’s testimony.

He points to the deposition and opinion letter of his own ballistics expert from the

PCR proceedings, Daniel O’Kelly, to show hiring his own expert witness would

have changed the result at trial. The PCR court considered this evidence and

concluded trial counsel was not ineffective. After reviewing the record, we agree.

       The record shows trial counsel considered hiring a ballistics expert but

chose not to. Counsel believed “a case” held that BB guns powered by CO2, like

the ones recovered at the time Pearson and Lukinich were apprehended, could

be considered deadly weapons and he discussed this issue with Pearson’s

counsel. The record does not reflect what legal research trial counsel performed
                                         8


on this point, although on appeal the State identifies controlling precedent

standing for the proposition that CO2-powered BB guns are dangerous weapons

within the meaning of section 702.7. See State v. Dallen, 452 N.W.2d 398, 399

(Iowa 1990) (concluding a CO2-powered BB that shot pellets with enough

velocity to pierce skin and cause bleeding was a “dangerous weapon”).

      Even if trial counsel breached an essential duty by failing to hire an expert

witness, Lukinich has not met his burden to show that failure was prejudicial.

O’Kelly’s deposition does not provide substantially different information than that

to which the State’s expert testified on direct and cross-examination at trial. Both

agree BB guns shooting pellets at least 350 feet per second could pierce skin.

Both measured the BB guns used by Lukinich and concluded the guns fired

faster than 350 feet per second. The State’s ballistics expert admitted on cross-

examination that he had performed his tests on the BB guns when they had been

given new CO2 cartridges, and O’Kelly stated one BB gun became inoperable

from lack of CO2 after six weeks, and the other became inoperable from lack of

CO2 after two days.

      Despite their similar measurements, O’Kelly concluded the BB guns were

not “dangerous weapons.”       This conclusion seems to rely on his personal

experience with BB guns rather than scientific research and inquiry.         In his

deposition, O’Kelly noted he had spoken with a representative from one of the

BB gun’s manufacturers and this representative informed him BB guns shooting

pellets over 350 feet per second could seriously injure or kill a person.

Additionally, O’Kelly admitted he did not perform research on incidents of people
                                         9


being shot with BB guns at close range, the frequency of BB gun-related injuries

in the United States, nor the velocity at which BB gun pellets can pierce skin.

      We have held that no breach of an essential duty nor prejudice occurs

when counsel does not call an expert witness who offers testimony that is “in

most respect very similar” to that of another expert. Moon v. State, No. 05-0816,

2007 WL 1345732, at *3 (Iowa Ct. App. May 9, 2007). Both experts measured

shots fired from the BB guns and concluded they fired pellets faster than 350 feet

per second. The State’s ballistics expert testified that BB gun pellets will pierce

skin at that velocity. BB guns that fire pellets fast enough to pierce skin are

“dangerous weapons.” Dallen, 452 N.W.2d at 399. O’Kelly’s testimony at trial

would have provided little information that differs from the State’s ballistics

expert’s testimony apart from his conclusions. We conclude trial counsel did not

provide ineffective assistance by failing to call an independent expert ballistics

expert.

          b. Failure to Object to Prosecutor’s Statements During Closing
             Argument

      Lukinich next argues his trial counsel provided ineffective assistance by

failing to object to the prosecutor’s characterization of the BB guns as “a

dangerous weapon under the law” twice during closing arguments. “We start

with the principle that, ‘[i]n closing arguments, counsel is allowed some latitude.

Counsel may draw conclusions and argue permissible inferences which

reasonably flow from the evidence presented.’” State v. Carey, 709 N.W.2d 547,

554 (Iowa 2006) (alteration in original) (quoting State v. Thornton, 498 N.W.2d
                                           10


670, 676 (Iowa 1993)).        But “[t]he prosecutor also cannot misstate the law.”

State v. Shanahan, 712 N.W.2d 121, 140 (Iowa 2006).

         Even if we conclude trial counsel should have objected to the prosecutor’s

statements, we cannot conclude prejudice resulted. Before closing arguments,

the trial court cautioned the jury that “[the closing arguments] are not evidence,

nor should they be construed by you as evidence or instructions on the law.”

Pearson’s attorney directly addressed the prosecutor’s statements, telling the

jury “[the prosecutor] in his closing told you that under the law these BB guns are

dangerous weapons, and that is not completely accurate.              It’s up to you to

decide.” Trial counsel also discussed at length that the prosecution needed to

prove the BB guns were dangerous weapons within the meaning of the jury

instructions. Finally, the prosecutor clarified his earlier remark in his rebuttal,

saying

         what we attorneys say to you about arguments, what we say to you
         about the evidence, what we say to you about the law is not
         evidence. Our arguments are not evidence, and what we say about
         the law is not—that is not the law. The law is what the judge gave
         you.

         In light of these statements, Lukinich has not met his burden to show there

is a reasonable probability the outcome of the proceeding would have been

different but for the statements made by the prosecution in his closing argument.

            c. Failure to Object          to    Stolen-Shotgun      Arguments      and
               Instructions

         Lukinich next argues trial counsel was ineffective for failing to object to the

jury instructions and portions of the prosecutor’s closing arguments that could

lead the jury to conclude the unloaded, cased shotguns Lukinich took from Joan
                                        11


Wright’s home could satisfy the element for possession of a dangerous weapon

in both the robbery and burglary charges. For the burglary charges, the jury was

instructed

      [T]he State need not prove that the defendant possessed a
      dangerous weapon at the time of entry into the residence. If the
      defendant was in possession of a dangerous weapon at any point
      while participating in the burglary, then the State has proven the
      defendant was armed with a dangerous weapon.

For the robbery charges, the jury was instructed “[t]o be ‘armed’ means the

individual had a dangerous weapon on his or her person at the time of the crime.

It is not necessary the dangerous weapon be used, displayed, or represented as

being in the defendants’ possession.” During closing arguments, the prosecutor

told the jury that the State fulfilled the dangerous weapon element of both

charges related to Lukinich’s actions at Joan Wright’s house by showing Lukinich

had “armed himself with that shotgun.” The instructions and statement by the

prosecutor, Lukinich asserts, improperly led the jury to believe they could find the

State proved the element of being armed with a dangerous weapon by showing

Lukinich carried the stolen cased shotgun.

      Shotguns and other firearms are per se dangerous weapons. See Iowa

Code § 702.7 (“Dangerous weapons include but are not limited to any . . . pistol,

revolver, or other firearm.”); State v. Kenney, 334 N.W.2d 733, 733–34 (Iowa

1983) (discussing shotguns and concluding “[s]uch weapons certainly fit the

definition of firearm”); State v. Durham, 323 N.W.2d 243, 244 (Iowa 1982)

(analyzing section 702.7 and concluding each of the items listed in the last

sentence of that provision are “dangerous weapons by reason of that provision”).

Firearms do not need to be operable to be dangerous weapons.               State v.
                                        12

Ashland, 145 N.W.2d 910, 911 (Iowa 1966). The only issue, then, is whether the

manner in which Lukinich obtained and controlled the shotguns—by stealing the

guns and holding the shotguns in their cases—was sufficient to allow the jury to

convict him of first-degree burglary and first-degree robbery.

       We first turn to the burglary statute. A person can be convicted of first-

degree burglary when ‘”[t]he person has possession of a dangerous weapon”

during the commission of a burglary. Iowa Code § 713.3 (emphasis added). The

Iowa Supreme Court evaluated this provision in State v. Oetken, 613 N.W.2d 679

(Iowa 2000). In Oetken, the defendant stole three firearms while burglarizing two

homes. Id. at 685. The court concluded the defendant “possessed” the guns:

       There was sufficient evidence for the jury to adduce Oetken had
       possession of a weapon at some point during the commission of
       the crimes.
              . . . [T]he statute [does not] require a weapon to be used or
       brandished. . . . .
              . . . [T]he legislature prohibited the mere possession of a
       dangerous weapon as opposed to its use. This likely indicates the
       policy underlying the statute is to prohibit felons from possessing,
       transporting, or transferring guns, rather than simply using them
       during the commission of a crime.

Id.; see also State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997) (concluding a

defendant had “immediate possession” of a firearm where an unloaded gun was

found in its case and on a rack when police searched the defendant’s home);

State v. Franklin, 368 N.W.2d 716, 720 (Iowa 1985) (“Matters that occur after

entry are of moment in elevating a burglary to first-degree: physical injury,

possession of a weapon at any point while participating in the burglary.”).

Similarly, Lukinich possessed the Wrights’ shotguns when he took the cased

guns. Trial counsel did not breach an essential duty by failing to object to the
                                            13


jury instructions and portion of the prosecutor’s closing argument that may have

led the jury to believe Lukinich could be found guilty of burglary based on his

actions at Joan Wright’s house.

       The next question is whether trial counsel erred by failing to object to the

jury instructions and statements that permitted the jury to find Lukinich guilty of

first-degree robbery based on the stolen shotgun. A person can be convicted of

first-degree robbery when “the person . . . is armed with a dangerous weapon.”

Id. § 711.2 (emphasis added).         The jury instruction defining “armed” closely

followed the Iowa State Bar Association’s uniform jury instruction for “Displaying

A Firearm - Armed With A Firearm.”3 “Normally, we are slow to disapprove of the

uniform jury instructions.” State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015);

see also State v. Ledesma, No.18-0253, 2018 WL 5291356, at *3 (Iowa Ct. App.

Oct. 24, 2018) (“The uniform jury instruction[s are] not binding, but they are

entitled to respectful consideration.”).

        “Armed” is generally given its ordinary definition. Everett v. State, 789

N.W.2d 151, 160 (Iowa 2010) (“The ordinary definition of ‘armed’ is easily

comprehended as meaning equipped with a weapon.”). The court in Everett

treated “armed” to mean “possessed.”             Id. at 160 (noting that, had the jury

instruction on first-degree robbery read “the defendant must actually be armed,

that is, possess a weapon,” that would be a correct statement of the law).

Similarly to “possess,” use or threatened use of the firearm is not required. State


3
  The current version of this instruction reads, “To be armed means the defendant had a
firearm on [his] [her] person at the time of the crime. It is not necessary the firearm was
used, displayed or represented as being in [his] [her] possession.” Iowa State B. Ass’n,
Iowa Criminal Jury Instruction 200.23 (2017).
                                         14

v. Law, 306 N.W.2d 756, 760 (Iowa 1981) (“A person who is ‘armed’ under the

robbery statute would not necessarily be pointing a firearm or displaying a

dangerous weapon in a threatening manner.”), abrogated on other grounds by

State v. Wales, 325 N.W.2d 87, 89 (Iowa 1982).     The interpretation of “armed,”

like “possessed,” is supported by academic discussion of section 711.2 from

when the current criminal code was adopted. See Kermit L. Dunahoo, The New

Iowa Criminal Code, 29 Drake L. Rev. 237, 396 (1979–80) (criticizing the grading

of robbery offenses because “merely having a ‘dangerous weapon’ in the

robber’s possession” and “infliction of serious injury” in the course of a robbery

are both graded as first-degree robbery); 4 J. Yeager & R. Carlson, Iowa Practice

§ 253 (1979) (discussing the intent requirement in the previous section 711.2,

and noting “possession by a robber of a dangerous weapon was in itself a

sufficient showing of his intent”). In light of this understanding of “armed,” the

jury instructions and the prosecutor’s statement about Lukinich’s possession of

the shotguns did not misstate the law.

      The evidence against Lukinich for both the burglary and robbery charges

included Lukinich’s actions at Joan Wright’s house and his handling of the

shotguns he took from the Wrights. Trial counsel did not breach an essential

duty by failing to object to the jury instructions or the prosecutor’s statement

during his closing argument.

          d. Failure to Present Brain Maturity Expert Testimony

      Finally, Lukinich argues trial counsel erred by failing to hire an expert to

discuss his brain maturity.    Lukinich turned eighteen only eighty-eight days

before the events of Thanksgiving 2010, and Pearson was seventeen at the time.
                                         15


Lukinich contends his sentence was cruel and unusual punishment within the

meaning of the Eighth Amendment to the U.S. Constitution and article I, section

17 of the Iowa Constitution, and trial counsel’s failure to provide mitigating

evidence and argument at his sentencing violated the Sixth Amendment to the

U.S. Constitution and article I, section 10 of the Iowa Constitution. To support

this assertion, Lukinich cites Pearson and the Roper-Graham-Miller line of cases4

and contends “[t]here was and is no rational difference between a juvenile’s brain

at age 17 and 364 days and an individual’s brain 88 days later” and there should

not be “a bright line at age 18 for the relief in juvenile mandatory minimums as

articulated in [State v.] Pearson.” After reviewing the record, we find trial counsel

did not breach an essential duty by failing to hire an expert to discuss Lukinich’s

brain development.

       The line of cases Lukinich cites discusses juvenile sentencing. While “the

human brain continues to develop into the early twenties,” State v. Null, 836

N.W.2d 41, 55 (Iowa 2013), the line between a juvenile and an adult is age

eighteen for Eighth Amendment purposes. Roper, 543 U.S. at 574; State v.

Seats, 865 N.W.2d 545, 556–57 (Iowa 2015).              Lukinich was an adult on

Thanksgiving 2010, and precedent controlling juvenile sentencing was

inapplicable to him.    We have repeatedly rejected in prior cases Lukinich’s

argument that juvenile sentencing principles should apply to young adults. See

Smith v. State, No. 16-1711, 2017 WL 3283311, at *2 (Iowa Ct. App. Aug. 2,




4
  Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper
v. Simmons, 543 U.S. 551 (2004).
                                       16


2017) (collecting cases). Trial counsel was not ineffective for failing to make an

argument based on inapplicable law.

      AFFIRMED.
