                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1522
                              Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMY SHAQUAN DUKES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.



      Defendant appeals his conviction for conspiracy to commit a forcible felony

(second-degree robbery). AFFIRMED.




      Andrew J. Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Jeremy Dukes appeals his conviction for conspiracy to commit a forcible

felony (second-degree robbery). We find there is substantial evidence in the

record to show Dukes entered into an agreement with others to commit second-

degree robbery and he had the specific intent to promote or facilitate the

commission of second-degree robbery. We also find Dukes has not shown he

received ineffective assistance because defense counsel failed to challenge the

evidence as to whether all of the other co-conspirators were proven not to be law

enforcement agents. We preserve for possible postconviction proceedings the

issue of whether defense counsel should have given an opening statement. We

affirm Dukes’s conviction.

       I.     Background Facts & Proceedings

       On April 1, 2016, Dukes and his girlfriend, Adrianna Chica, were staying at

an apartment at 1506 Iowa Street in Dubuque with Eric Campbell and Savanna

Stotlar. Campbell stated he had recently been robbed and needed “a quick come

up,” meaning a quick way to get money. He stated he wanted “[t]o catch a lick, to

catch a stain,” which meant to commit a robbery. Dukes stated he would be on

the lookout for an opportunity.

       Campbell, Dukes, Tacari Minifee, and some other men went into the

bedroom of the apartment. As Dukes walked out of the room, Stotlar overheard

him say “he can run them out there to do it, but he had to make some errands.”

When Dukes and Chica returned to the apartment after their errands, they picked

up Campbell and Corby Yager, who directed them to the Table Mound Trailer Park.

Dukes remarked he knew someone who lived there, Collin Brown. Yager stated
                                           3


Brown was the intended target of the robbery. Chica testified Dukes stated, “[W]e

didn’t want to be part of it because we knew him.” However, Chica showed

Campbell and Yager where Brown lived.1             The group then returned to the

apartment.

       Dukes and Chica left again later in the evening to go to Wal-Mart, telling

Campbell they would be back by around 12:15 a.m. Chica testified, “we both felt

pretty bad, but we knew we couldn’t do anything to stop them, and so he was like,

‘I just got to get back and they just got to plan it right.’” Dukes told Chica he wanted

to get back to the apartment to “make sure that they didn’t rush it or that they

planned it” because he did not want Brown to be harmed. Chica stated she and

Dukes were supposed to be the drivers for the robbery.

       Back at the apartment, Campbell, Minifee, and Imere Hall were becoming

agitated waiting for Dukes to get back. Hall stated he could contact someone for

a ride and they were picked up. Dukes was very upset when he arrived a short

time later and found the other men had already left. He said, “Dang-it, they were

supposed to wait.” Dukes called Minifee and stated, “[W]hen I find another driver,

I’ll send them out.” Stotlar heard this conversation and said she could drive out

but did not know where she was going, so she asked to have Chica accompany

her. Dukes asked Chica “if [she] was okay with it,” and she agreed to go with

Stotlar, who drove Chica’s car.

       Stotlar and Chica met the other vehicle, driven by Taylor Shaw, at a

McDonalds. Campbell could not remember which trailer belonged to Brown and


1
  The evidence is ambiguous as to whether Chica alone showed Campbell and Yager
where Brown lived or whether she and Dukes pointed out Brown’s trailer.
                                              4


needed Chica to point it out to him again. Stotlar and Chica drove through the

trailer park, flashing their lights by Brown’s trailer, then returned to the apartment.

Campbell, Minifee, and Hall broke into Brown’s trailer. They obtained eighty

dollars and shot Brown, who died as a result of his injuries. Brown’s girlfriend,

Alecea Lombardi, who was present during the armed robbery, called 911.

Surveillance video showed Chica’s vehicle and the vehicle driven by Shaw in the

trailer park prior to the incident. Officers apprehended Dukes and Chica on the

morning of April 2 at the apartment.

       Dukes was charged with conspiracy to commit a forcible felony, in violation

of Iowa Code section 706.3(1) (2016), a class “C” felony, with the forcible felony

specified as second-degree robbery. Chica and Stotlar testified in Dukes’s trial.2

The jury found Dukes guilty of conspiracy to commit robbery in the second degree.

The district court denied Dukes’s motion for new trial and motion in arrest of

judgment. Dukes was sentenced to a term of imprisonment not to exceed ten

years. He appeals his conviction.

       II.     Sufficiency of the Evidence

       On claims concerning the sufficiency of the evidence, our review is for the

correction of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

In reviewing a challenge to the sufficiency of evidence supporting a guilty verdict,

we consider all of the evidence in the record “in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the




2
   Both Chica and Stotlar agreed to testify truthfully in trials of other codefendants as part
of their respective plea agreements. Neither of them had entered guilty pleas prior to
Dukes’s trial, as their agreements were contingent upon their truthful testimony.
                                          5

evidence.” State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002). A verdict

will be upheld if there is substantial evidence in the record to support it. Sanford,

814 N.W.2d at 615. We will consider all the evidence presented, not just the

evidence supporting the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa

2000). “Evidence is considered substantial if, when viewed in the light most

favorable to the State, it can convince a rational jury that the defendant is guilty

beyond a reasonable doubt.” Sanford, 814 N.W.2d at 615. “Inherent in our

standard of review of jury verdicts in criminal cases is the recognition that the jury

[is] free to reject certain evidence, and credit other evidence.” State v. Nitcher,

720 N.W.2d 547, 556 (Iowa 2006).

       The offense of conspiracy is defined in section 706.1, as follows:

               1. A person commits conspiracy with another if, with the intent
       to promote or facilitate the commission of a crime which is an
       aggravated misdemeanor or felony, the person does either of the
       following:
                       a. Agrees with another that they or one or more of
       them will engage in conduct constituting the crime or an attempt or
       solicitation to commit the crime.
                       b. Agrees to aid another in the planning or commission
       of the crime or of an attempt or solicitation to commit the crime.
               2. It is not necessary for the conspirator to know the identity
       of each and every conspirator.
               3. A person shall not be convicted of conspiracy unless it is
       alleged and proven that at least one conspirator committed an overt
       act evidencing a design to accomplish the purpose of the conspiracy
       by criminal means.
               4. A person shall not be convicted of conspiracy if the only
       other person or persons involved in the conspiracy were acting at the
       behest of or as agents of a law enforcement agency in an
       investigation of the criminal activity alleged at the time of the
       formation of the conspiracy.

       A.     Dukes claims the State did not present sufficient evidence to show

he entered into an agreement with others to commit robbery at Brown’s trailer. “A
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conspiracy is a combination or agreement between two or more persons to do or

accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner.”

State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). “The conspiracy does not

depend on the fulfillment of the agreement, only that there is an agreement.” Id.

The requisite agreement may be established by either direct or circumstantial

evidence. Id.

       Dukes points to Chica’s testimony that when he found out the proposed

victim was Brown, Dukes “told them that we didn’t want to be a part of it because

we knew him.” Other evidence, however, shows Dukes changed his mind and

agreed to help plan the robbery. Chica testified to a later conversation, when she

and Dukes were driving to Wal-Mart, stating, “we both felt pretty bad, but we knew

we couldn’t do anything to stop them, and so he was like, ‘I just got to get back

and they just got to plan it right.’” Also, while Dukes and Chica were at Wal-Mart

Dukes told Chica “he wanted to get back because he had told [Campbell] that he

would be back by a certain time and that he—that they made sure that they didn’t

rush it or that they planned it.” The prosecutor clarified, “So this was all after Mr.

Dukes knew the intended target was Collin Brown?” and Chica stated, “Yes.”

       Additionally, while fully aware Campbell, Minifee, and Hall intended to

commit robbery at Brown’s trailer, Dukes discussed the matter with them over the

telephone. Stotlar overheard Dukes tell Minifee “he need[ed] to find another driver;

‘when I find another driver, I’ll send them out.’” Stotlar and Chica then drove out

to meet Campbell, Minifee, and Hall in order to show them where Brown lived.

       We find there is substantial evidence in the record to show Dukes entered

into an agreement with others to commit second-degree robbery.
                                        7


      B.     Dukes also claims the State did not present sufficient evidence to

show, even if he entered into an agreement, he did so with the specific intent to

promote or facilitate the robbery at Brown’s trailer. See Iowa Code § 706.1(1). In

order to enter into a conspiracy, a defendant must have the intent to promote or

facilitate a criminal act. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001).

      From discussions with Campbell, Dukes was aware Campbell wanted to

commit robbery and the intended victim was Brown. Dukes told Chica he wanted

to be involved in planning the robbery because he wanted to prevent Brown from

being harmed. Chica testified:

             Q. Because I think you said earlier he didn’t want Collin Brown
      to get harmed? A. Yes.
             Q. To your knowledge, was the Defendant, when he was
      talking about this, okay with Collin Brown being robbed? A. Yes.
             Q. Because he could come back from being robbed? A. Yes.
             Q. What does that mean, come back from being robbed? A.
      He could start over again. You can always get more money, more
      drugs, whatever you want, but you can’t come back from that.
             Q. And this planning was with Mr. Campbell, Eric Campbell?
      A. I would suppose so.

      We find there is substantial evidence in the record to show Dukes entered

into an agreement with Campbell and others with the intent to promote or facilitate

the commission of second-degree robbery.

      III.   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 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
                                         8

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

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

      A.     Dukes claims defense counsel should have challenged his

conviction on the ground the State did not adequately show the other conspirators

were not law enforcement agents.        Dukes claims the State must make an

affirmative showing none of the members of the conspiracy were law enforcement

agents. During the trial, Deputy Jill Bellmann of the Dubuque County Sheriff’s

Office testified Campbell and Minifee were not acting as law enforcement agents

or acting on the request of law enforcement agents. No evidence was presented

as to any other potential members of the conspiracy.

      Section 706.1(4) provides, “A person shall not be convicted of conspiracy if

the only other person or persons involved in the conspiracy were acting at the

behest of or as agents of a law enforcement agency in an investigation of the

criminal activity alleged at the time of the formation of the conspiracy.” It is the

State’s burden to prove this element of the offense. State v. Kern, 831 N.W.2d

149, 158 (Iowa 2013).

      The State argues the exception in section 706.1(4) applies only if every

other person in the conspiracy is a law enforcement agent or acting on the behest

of agents, so the State was only required to prove some of the other members of

the conspiracy were not law enforcement agents or acting on the behalf of agents.

We agree with the State’s reading of the statute. Section 706.1(4) applies “if the

only other person or persons involved in the conspiracy” were law enforcement

agents. The facts in this case show at least some of the other persons in the

conspiracy were not law enforcement agents. Therefore, the exception found in
                                         9


section 706.1(4) does not apply. Defense counsel has no obligation to raise a

meritless argument. See State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015).

       B.     Dukes raises his claims regarding section 706.1(4) in relation to the

jury instructions, stating defense counsel should have objected to the instructions

because they failed to provide the State was required to show all the other

conspirators were not law enforcement agents. He also claims the instructions

should have named each alleged co-conspirator. Dukes’s arguments are contrary

to section 706.1(2), which provides, “It is not necessary for the conspirator to know

the identity of each and every conspirator.” We find Dukes has not shown he

received ineffective assistance on this issue.

       C.     Dukes claims he received ineffective assistance because defense

counsel did not give an opening statement. He states the facts in this case were

somewhat complex and it would have been helpful to the jurors for defense

counsel to give an opening statement in order to alert the jurors to the defense’s

theory of the case.

       After the State’s opening argument, defense counsel stated, “Your Honor,

the Defendant is going to reserve our right to give an opening statement.” When

the State rested its case, defense counsel did not give an opening statement and

informed the court the defense did not intend to present any witnesses. We

generally preserve issues for postconviction relief “where the challenged actions

of counsel implicate trial tactics or strategy which might be explained in a record

fully developed to address those issues.” State v. Clay, 824 N.W.2d 488, 494

(Iowa 2012) (citation omitted). We conclude this issue implicates trial tactics or

strategy and should be preserved for a possible action for postconviction relief.
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      We affirm Dukes’s conviction for conspiracy to commit a forcible felony

(second-degree robbery).

      AFFIRMED.
