                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1319
                               Filed September 12, 2018


LANCE BROOKS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.



      Lance Brooks appeals the denial of his postconviction-relief application.

AFFIRMED.




      Dylan J. Thomas, Attorney at Law, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




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


VAITHESWARAN, Presiding Judge.

         Three men forced their way into a home, assaulted one of the occupants,

and demanded money. The State charged Lance Brooks with first-degree robbery

and first-degree burglary. See Iowa Code §§ 711.1, 711.2, 713.3 (2009). A jury

found Brooks guilty as charged, and this court affirmed the judgment and sentence.

See State v. Brooks, No. 11-0639, 2012 WL 3026546, at *1 (Iowa Ct. App. July 25,

2012).

         Brooks filed an application for postconviction relief. Following a hearing,

the district court denied the application. Brooks appealed.

I.       Ineffective Assistance of Trial Counsel – Sufficiency of Evidence
         The jury was instructed the State would have to prove several elements of

first-degree robbery, including: “The Defendant or the person(s) the Defendant

aided and abetted was armed with a dangerous weapon.” The jury also was

instructed the State would have to prove several elements of first-degree burglary,

including: “During the incident the Defendant or the person(s) he aided and

abetted: a. Possessed a dangerous weapon . . . .”

         Brooks asserts there was insufficient evidence he was armed with a

dangerous weapon and his trial attorney should have objected to the jury

instructions to the extent they allowed the jury to find guilt based on his acts as a

principal rather than an aider and abettor. He also contends the State could not

rely on a theory of joint criminal conduct to support a finding he was armed with a

dangerous weapon because the jury was not instructed on that theory.

         To establish ineffective assistance, Brooks must show (1) deficient

performance and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687
                                           3


(1984). “A claim of ineffective assistance of trial counsel based on the failure of

counsel to raise a claim of insufficient evidence to support a conviction is a matter

that normally can be decided on direct appeal.” State v. Truesdell, 679 N.W.2d

611, 616 (Iowa 2004). “[I]f the record reveals substantial evidence, counsel’s

failure to raise the claim of error could not be prejudicial.” Id.

       Our de novo review of the trial record reveals the following facts concerning

whether Brooks “was armed with” or “possessed” a dangerous weapon. Three

men approached a home and knocked on the door. One of the men stood at the

door while the other two entered the home and assaulted an occupant.

       A second occupant testified she saw a “flash of silver,” which she “knew

was a gun.” She was unable to describe which one of the two people “actually

carried the gun.” A third occupant stated, “I went and I opened up the door; and I

looked through it, and all I seen was guns, and it was pushed open.”

       A police officer testified he was approached by a woman who told him there

“were people with guns inside of her house.” He “believe[d]” the woman used

“guns” rather than a “gun.” He used the plural version in his report. A lieutenant

similarly testified he was told the men “were armed with guns.”

       Some testimony suggests the assailants entered the home with only one

gun and a person other than Brooks wielded it. But a reasonable juror could have

given less credence to this testimony. See State v. Shorter, 893 N.W.2d 65, 74

(Iowa 2017) (stating questions of witness credibility are for the jury).

       The record contains substantial evidence Brooks acted as a principal.

Accordingly, Brooks was not prejudiced by his trial attorney’s failure to challenge
                                              4


the sufficiency of the evidence supporting the findings of guilt or the inclusion of a

principal theory of guilt in the jury instructions.

       We turn to the joint criminal conduct theory. Brooks argues, “The PCR court

erred in relying on a joint criminal conduct reasoning for denying [his] claim”

“because joint criminal conduct was not alleged in the trial information, was not

defined or instructed to the jury in the jury instructions, and was not argued by the

State at the criminal trial.” Brooks also may be arguing his trial attorney was

ineffective in failing to address the issue.

       We find no indication the postconviction court relied on a joint criminal

conduct theory in resolving Brooks’ challenge to the sufficiency of the evidence

and the marshalling instructions. See Iowa Code § 703.2 (defining joint criminal

conduct); State v. Tyler, 873 N.W.2d 741, 752 (Iowa 2016) (stating joint criminal

conduct contemplates two acts: the crime in which the actor has knowingly

participated and a second unplanned crime that reasonably could be expected to

occur in furtherance of the crime). Nor can we discern that the prosecution relied

on this theory at trial.1 Accordingly, Brooks’ trial attorney was not ineffective in

failing to object to this theory.

II.    Ineffective Assistance – Definition of Dangerous Weapon

       A jury instruction defined “dangerous weapon” as follows:

              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 which is actually used in such a way as to

1
  At the postconviction relief hearing, Brooks’ attorney testified joint criminal conduct “was
one of the theories” at trial. But, with the exception of scattered references to individuals
acting “in concert,” there is scant if any indication that the theory was an alternative basis
for finding guilt.
                                             5


       indicate the user intended to inflict death or serious injury, and when
       so used is capable of inflicting death.
              You are instructed that a Bryco Adams 933 Jennings 9mm
       semiautomatic handgun is, by law, a dangerous weapon.

       Brooks challenged the instruction on direct appeal. See State v. Brooks,

No. 11-0639, 2012 WL 3026546, at *1 (Iowa Ct. App. July 25, 2012). He argued

an inoperable unloaded weapon was not a dangerous weapon. This court rejected

the argument.

       During the postconviction proceedings, Brooks contended his trial and

appellate attorneys “failed to provide an alternative” basis for overturning the

instruction, namely that “it allowed the judge, and not the jury to determine whether

it was a dangerous weapon beyond a reasonable doubt.” The postconviction court

rejected the argument. The court reasoned that the jury “was still required to

determine if a dangerous weapon was actually used or carried by the perpetrators

of the robbery.”2

       On appeal, Brooks contends his trial and appellate attorneys should have

challenged the instruction under case law requiring juries to determine “an

enhancing element of the crime.” See Iowa Code § 902.7 (declaring a person who

“was armed with a dangerous weapon while participating in a forcible felony . . .

shall serve a minimum of five years of the sentence imposed by law”); Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (holding “[o]ther than the fact of a prior



2 Brooks also argued the instruction created an unconstitutional mandatory presumption.
See Sandstrom v. Montana, 442 U.S. 510, 515 (1979) (finding a jury instruction
unconstitutional after noting “Sandstrom’s jurors were told that ‘[t]he law presumes that a
person intends the ordinary consequences of his voluntary acts.’ They were not told that
they had a choice, or that they might infer that conclusion; they were told only that the law
presumed it. It is clear that a reasonable juror could easily have viewed such an instruction
as mandatory”). The postconviction court did not rely on this argument. Neither do we.
                                             6


conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt”). Brooks asserts, “Under Apprendi, it was solely the province of the jury to

determine whether that firearm was a ‘dangerous weapon.’”

       The Iowa Supreme Court addressed a similar argument in State v. Walker,

856 N.W.2d 179, 188 (Iowa 2014). The court stated: “Apprendi does not establish

a right to have a sentencing enhancement found by the jury. Rather, it establishes

a right to have the underlying facts that support the enhancement found by the

jury.” Walker, 856 N.W.2d at 188.

       The underlying facts were established by the jury. Specifically, the jury was

asked to answer the following interrogatory: “Do you find the Defendant or the

person(s) he aided and abetted was armed with a dangerous weapon, displayed

a dangerous weapon in a threatening manner, or represented that he had a

dangerous weapon?” The jury answered, “Yes.” At sentencing, the district court

relied on this interrogatory answer in imposing the dangerous weapons

enhancement.      There was no violation of Apprendi, and neither Brooks’ trial

attorney nor his appellate attorney was ineffective in failing to raise an Apprendi

challenge to the jury instruction.

III.   Juror Misconduct and Pro Se Claims

       Brooks contends either his trial attorney, appellate attorney, or both were

ineffective in (i) failing to call a lab technician, (ii) failing to object to the testimony

of an officer about a lab report, (iii) failing to move for a mistrial when “the

prosecutor repeatedly and directly threatened two alibi witnesses with the penalty

of perjury,” (iv) failing to advise him about the desirability of accepting the State’s
                                            7


plea offer to second-degree robbery, (v) failing to argue the district court abused

its discretion in denying his motion for judgment of acquittal, and (vi) failing to

address a juror misconduct issue. He argues the postconviction court erred in

“failing to consider” these issues and, alternatively, postconviction counsel was

ineffective in “failing to ensure that [his] pro se claims and the juror misconduct

claim were ruled on by the court.”

       The postconviction court found Brooks failed to present evidence on these

issues at the postconviction hearing. That is indeed the case. Without waiving

these issues, postconviction counsel elected to focus on three other issues at the

postconviction hearing. The record made prior to the postconviction hearing was

the only record on these issues.

       Brooks does not provide references to that record.              Accordingly, we

conclude Brooks waived error. See Olson v. Olson, 180 N.W.2d 427, 429 (Iowa

1970) (concluding the issue was waived where there was no “reference to any

relevant pages and lines in the record”).3

IV.    Challenge to New Trial Motion

       Brooks contends his trial and appellate attorneys were ineffective in “failing

to file a new trial motion contending the verdict” was “against the weight of the


3 We have the benefit of the trial record on some of the issues. But without record cites,
we would have to speculate on precisely what portion of the voluminous record Brooks
intends us to consider. For example, the first two issues appear to relate to two
department of criminal investigation lab reports offered and admitted without objection
through a police officer; the third issue appears to relate to two witnesses called by the
defense; the fifth issue appears to relate to “dangerous weapon” evidence; and the sixth
issue appears to relate to a juror who was questioned after trial. But we do not know for
sure. If we were to decide the issues based on our perception of the relevant record, we
would be serving as an advocate for Brooks. We decline to do so. See State v. Coleman,
890 N.W.2d 284 304 (Iowa 2017) (Waterman, J. dissenting) (“Judges cannot assume the
role of a partisan advocate and do counsel’s work.”).
                                          8


evidence.” His argument is premised on his belief that there was inadequate

evidence to “support a finding that [he] was both the principal, who possessed a

dangerous weapon, and also an aider and abettor.”

       The weight-of-the-evidence standard “involves questions of credibility, and

requires the district court to determine whether more credible evidence supports

one side or the other.” Shorter, 893 N.W.2d at 70. Although district courts are

vested with “wide discretion in deciding motions for new trial,” they are to exercise

their discretion “carefully and sparingly” under the weight-of-the-evidence

standard.    See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1988).                 The

postconviction court rejected this argument on the ground that Brooks “could be

convicted as an aider and abettor without having a weapon on his person.” We

agree with this reasoning. We conclude Brooks’ trial attorney was not ineffective

in failing to raise a weight-of-the-evidence challenge in his new trial motion and his

appellate attorney was not ineffective in failing to raise an ineffective assistance of

trial counsel claim on this issue.

V.     Right to Testify

       The postconviction court rejected Brooks’ argument that he was not

afforded the opportunity to testify. The court found the testimony of Brooks’ trial

attorney “more credible.”

       On appeal, Brooks argues “the PCR court erred in weighing [his] testimony

against the trial counsel’s testimony, and should have found that [he] had a better

recollection of events.” He raises the issue under an ineffective-assistance-of-trial-

counsel rubric.
                                          9


       Our de novo review reveals the following facts.        At the postconviction

hearing, Brooks testified he “was never advised” of his “right to testify on [his] own

behalf by counsel.”

       Brooks’ attorney countered, “That would be completely untrue.”             He

testified, “I’ve never done a trial where I haven’t discussed that with a defendant

and discussed the pros and cons of testifying. . . . I would have made a record if

he was going to testify and it would have been against my legal advice.” He stated

his advice “[w]ould have been not to testify.” In his view, there would have been

no “positive coming out of” testifying, “given the evidence against [Brooks].” He

agreed a jury instruction stating Brooks did not testify and the jury was not

permitted to draw an adverse inference from that would have been included at his

behest. He reiterated, “I can’t recall ever not discussing [the decision to testify]

and the pros and cons.”

       Although Brooks’ attorney could not recall the specifics of his conversation

with Brooks, his testimony about his normal practice concerning a defendant’s right

to testify was unequivocal and, as noted, the postconviction court found him more

credible than Brooks. We give weight to the court’s credibility finding.         See

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). On our de novo review, we

agree with the postconviction court that Brooks’ trial attorney was not ineffective.

VI.    Difference in Co-defendant’s Conviction

       The postconviction court concluded the fact that the co-defendant was

convicted of a lesser charge with a different jury and different evidence did not

allow Brooks to argue that he should only be convicted of the lesser charge.

Brooks takes issue with this conclusion but makes no argument and cites no
                                         10

authority. We consider the issue waived. See Iowa R. App. P. 6.903(2)(g)(3)

(“Failure to cite authority in support of an issue may be deemed waiver of that

issue.”); State v. Vaughan, 859 N.W.2d 492, 503 (Iowa 2015) (finding failure to

present argument “in support of his contention” amounted to waiver of issue).

VII.    Refusal to Merge Charges

        Brooks argues the postconviction court erred in determining that the

charges should not have merged. He makes no further argument and cites no

authority for the proposition. We consider the issue waived. See Iowa R. App. P.

6.903(2)(g)(3); Vaughan, 859 N.W.2d at 503 (finding failure to present argument

“in support of his contention” amounted to waiver of issue).

VIII.   Sufficiency of Trial Information

        Brooks asserts the postconviction court erred in rejecting his argument that

the aiding and abetting theory should have been included in the trial information.

We could conclude Brooks waived error by failing to cite authority or make

argument. See Iowa R. App. P. 6.903(2)(g)(3); Vaughan, 859 N.W.2d at 503

(finding failure to present argument “in support of his contention” amounted to

waiver of issue). We elect to reach the merits. We simply note the postconviction

court was correct in concluding “[t]here is no requirement that aiding and abetting

be listed as part of the trial information.” See State v. Black, 282 N.W.2d 733, 735

(Iowa 1979) (stating aiding and abetting language in the trial information would

constitute “surplusage” and holding “there was no fatal variance between the

information charging the defendant as a principal and the proof that he was an

aider and abettor to the robber who held the gun”); accord Gibler v. State, No. 15-

2222, 2017 WL 512485, at *3 (Iowa Ct. App. Feb. 8, 2017) (“A party does not need
                                        11


to be charged with aiding and abetting to warrant an instruction on aiding and

abetting.”).

IX.    Legality of Sentence

       During the postconviction proceedings, Brooks asserted he was not in

possession of a firearm and, accordingly, his sentence was illegal.            The

postconviction court summarily rejected the argument. On appeal, Brooks simply

contends, “the reviewing court should review the PCR court’s decision and

determine if the PCR court erred in determining that there was no illegal sentence.”

Having found substantial evidence to support the possession-of-a-dangerous-

weapon element, we conclude the postconviction court did not err in rejecting the

illegal-sentence argument to the extent it was premised on the sufficiency of the

evidence supporting the dangerous weapon element.           If the illegal sentence

argument was premised on something else, we conclude Brooks waived error by

failing to cite authority. See Iowa R. App. P. 6.903(2)(g)(3); Vaughan, 859 N.W.2d

at 503 (finding failure to present argument “in support of his contention” amounted

to waiver of issue).

X.     Cumulative Error

       Brooks argues cumulative error infected the trial proceedings.       Having

discerned no error, we need not address this argument further.

       We affirm the postconviction court’s denial of Brooks’ postconviction-relief

application.

       AFFIRMED.
