                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1779
                               Filed June 7, 2017


COREY DARNELL MOORE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      An applicant appeals the denial of his application for postconviction relief.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
                                           2


MCDONALD, Judge.

         Corey Moore was convicted of robbery in the first degree, in violation of

Iowa Code section 711.2 (2011); assault causing serious injury, in violation of

Iowa Code section 708.2(4); and possession with intent to deliver marijuana

while in the immediate possession of a firearm, in violation of Iowa Code section

124.401(1)(d) and (e). This court affirmed Moore’s conviction on direct appeal.

See State v. Moore, No. 12-2177, 2014 WL 69593, at *1–2 (Iowa Ct. App. Jan. 9,

2014).     Moore now appeals the district court’s denial of his application for

postconviction relief, asserting numerous claims of ineffective assistance of trial

counsel, direct-appeal counsel, and postconviction counsel.

                                           I.

         The relevant offense conduct was set forth in this court’s prior opinion:

         In 2010, Belinda Robinson became acquainted with Alonzo
         Henderson through Facebook. Henderson owned a restaurant in
         Waterloo and invited Robinson to move into his trailer in Cedar
         Falls and work in his restaurant. Robinson did so, but Henderson
         became physically abusive and did not pay Robinson for her work
         in the restaurant.
                 Due to their acquaintance, Robinson was aware Henderson
         was a drug dealer and that he was soon to receive a large quantity
         of marijuana and some quantity of cocaine. At trial, Robinson
         testified the plan was to rob Henderson of the drugs and “for
         [Henderson] to get roughed up and if need be then to use duct tape
         if they had to, but just basically to rough him up.” Robinson
         included in the plan Jacque Dukes, Crystal Cooper, and Lamario
         Stokes. Moore is a friend of Dukes and joined in the scheme not
         long before its commission. Robinson was not aware Moore was
         intending to participate until the day of the robbery.
                 On January 26, 2011, the marijuana delivery was made to
         Henderson’s residence. Henderson brought in two men to help
         with the drugs, William McNealy and Ryan Harper. Shortly after the
         delivery, Robinson drove Harper’s car to buy cigarettes and plastic
         bags, and later met up with Dukes, Stokes, Cooper, and Moore at a
         nearby motel. While there, they decided to lure McNealy and
         Harper away from the trailer by telling them Robinson had run out
                                 3


of gas in the Hy-Vee parking lot. The group left Harper’s car in the
Hy-Vee parking lot and drove back to the trailer in Dukes’s car.
Robinson made the call, then the group watched as Harper and
McNealy left the trailer.
         Once Harper and McNealy were gone, Moore, Dukes, and
Stokes went into Henderson’s trailer. Robinson and Cooper waited
in the car. All three men were dressed in black and wore covers
over their faces. Henderson testified he was in the kitchen when
three people dressed in black kicked in the door to his trailer,
though he could not discern their race or gender. Two of the
intruders were holding guns and pointing them at Henderson.
Henderson further testified the marijuana was clearly visible on the
kitchen counter.
         Henderson then walked into his bedroom. One of the
intruders followed him, and after Henderson turned around, hit him
in the head with the gun. The two began to wrestle, and a second
intruder came into the room and pointed the second gun at
Henderson while the first person backed out of the bedroom. The
first intruder stumbled, and Henderson attempted to knock the gun
out of his hand. The second intruder then opened fire, shooting
Henderson once in the arm—after which the bullet penetrated the
abdomen—and once in the leg. All three intruders then left the
trailer with the drugs. Henderson went into the living room and
looked outside but could not see in which direction the intruders
went.
         Stokes also testified at trial, stating Henderson was on the
couch when he, Dukes, and Moore entered through the unlocked
front door. Stokes testified he could see the marijuana on the
kitchen island and that Moore was the one who shot Henderson.
He further testified the entire group left with the marijuana.
         Robinson testified that as the group was driving back to
Cedar Rapids, she, Dukes, and Cooper were speaking to each
other and texting on their phones. Cooper testified Moore told the
group Henderson was “talkin’ a lot of crap” so Moore shot
Henderson in the leg and arm, and Dukes claimed he hit
Henderson in the head with his gun. However, during the struggle,
Dukes dropped the gun.
         The group drove to the apartment of Moore’s girlfriend,
Bridget Johnson, where they divided up the marijuana. Johnson
testified Moore told her he had robbed someone in the Cedar
Rapids area and that during the robbery there was a struggle and
he shot someone in the leg.
         The police were called to Henderson’s home the same day.
Two spent casings were found at the scene. While the gun that
fired the bullets was not recovered, police found a pistol in a
bedroom, though it had a bent magazine that would not allow it to
                                         4


         fire. Marijuana residue was found throughout the trailer, and there
         was a trail of marijuana leading out the door.

Id.

                                         II.

                                         A.

         The Sixth Amendment to the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.” U.S. Const. amend. VI. The Supreme

Court has made the Sixth Amendment applicable to the states via incorporation

through the Fourteenth Amendment. “The right to counsel is the right to the

effective assistance of counsel.” State v. Williams, 207 N.W.2d 98, 104 (Iowa

1973).     The constitutional right to counsel applies to the assistance of trial

counsel and appellate counsel; there is no constitutional right to postconviction

relief, postconviction counsel, or the effective assistance of postconviction

counsel. See Williams v. Pennsylvania, 136 S. Ct. 1899, 1920 (2016) (Thomas,

J., dissenting); Montgomery v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas,

J., dissenting) (“Because the Constitution does not require postconviction

remedies, it certainly does not require postconviction courts to revisit every

potential type of error.”). Although not required by the constitution, the Iowa

General Assembly has created a postconviction-relief procedure codified at

chapter 822 of the Iowa Code.        The Iowa Supreme Court has recognized a

statutory right to counsel in chapter 822 proceedings and a corresponding

statutory right to the effective assistance of postconviction counsel. See Dunbar

v. State, 515 N.W.2d 12, 15 (Iowa 1994).
                                           5


       “Generally, postconviction relief proceedings are reviewed for corrections

of errors at law.” Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 488 (Iowa 2010).

However, claims of ineffective assistance of counsel are reviewed de novo. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). This is true whether the claim

of ineffective assistance of counsel arises under constitution or statute.         See

Killings v. State, No. 15-1061, 2017 WL 1735614, at *1 (Iowa Ct. App. May 3,

2017) (“Our review of ineffective-assistance claims—whether constitutional or

statutory—is de novo.”).

       To establish a claim of ineffective assistance of counsel, Moore must

show “(1) his trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.”      Straw, 709 N.W.2d at 133 (citing Strickland v.

Washington, 466 U.S. 688, 687–88 (1984)).           “The claimant must prove both

elements by a preponderance of the evidence.” State v. Madsen, 813 N.W.2d

714, 724 (Iowa 2012). Failure to prove either element is fatal to the applicant’s

claim. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness

claim.”); State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s

inability to prove either element is fatal.”). If the applicant fails to meet his or her

burden on either element, the court need not address the other. See Dempsey v.

State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we conclude a claimant has failed to

establish either of these elements, we need not address the remaining

element.”).

       The first element requires proof “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
                                           6

Sixth Amendment.” Strickland, 466 U.S. at 687. “[C]ounsel’s performance is

measured against the standard of a reasonably competent practitioner.” State v.

Begey, 672 N.W.2d 747, 749 (Iowa 2003). There is a strong presumption of

counsel’s competence. See Strickland, 466 U.S. at 689 (“Judicial scrutiny of

counsel’s performance must be highly deferential.”).

       It is all too tempting for a defendant to second-guess counsel’s
       assistance after conviction or adverse sentence, and it is all too
       easy for a court, examining counsel’s defense after it has proved
       unsuccessful, to conclude that a particular act or omission of
       counsel was unreasonable.          A fair assessment of attorney
       performance requires that every effort be made to eliminate the
       distorting effects of hindsight, to reconstruct the circumstances of
       counsel’s challenged conduct, and to evaluate the conduct from
       counsel’s perspective at the time.

Id. (citation omitted).    “Miscalculated trial strategies and mere mistakes in

judgment normally do not rise to the level of ineffective assistance of counsel.”

Lando v. State, 804 N.W.2d 248, 251 (Iowa 2011).

       Yet, “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” Strickland, 466 U.S. at 691. Under the second element,

the applicant is required to show “that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. It

is not enough that the applicant show the error had only some effect on the

outcome, as nearly any act or omission by counsel results in some change to the

outcome one way or another, but not necessarily in a way that would undermine

its reliability. See id. at 693. Rather, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of
                                           7


the proceeding would have been different.            A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

                                           B.

         Moore argues his counsel was ineffective in failing to challenge the

sufficiency of the evidence supporting the robbery conviction. Specifically, Moore

contends there was insufficient evidence to support the predicate theft because

marijuana is contraband per se and contraband per se is not “property” subject to

theft.

         We first turn to the elements of the offense.

                A person commits a robbery when, having the intent to
         commit a theft, the person does any of the following acts to assist
         or further the commission of the intended theft or the person’s
         escape from the scene thereof with or without the stole property:
                (a) Commits an assault upon another.
                (b) Threatens another with or purposely puts another in fear
         of immediate serious injury.
                (c) Threatens to commit immediately any forcible felony.

Iowa Code § 711.1(1) (2015). “A person commits theft when the person . . .

[t]akes possession or control of the property of another, or property in the

possession of another, with the intent to deprive the other thereof.” Iowa Code

§ 714.1. Property is defined as “anything of value, whether publicly or privately

owned.” Iowa Code § 702.14.

         Moore argues contraband per se is not “property” within the meaning of

the statute.     The supreme court has “recognized that certain property, the

possession of which is illegal, is contraband per se, e.g., heroin and other

illegally controlled substances, moonshine and sawed-off shotguns.” State v.

Ludtke, 446 N.W.2d 797, 800 (Iowa 1989). The supreme court has also stated
                                           8


that “[c]ontraband per se may not legally be possessed, and no valid ownership

interest may exist in such property.”          Id.    These cases are limited to the

proposition that Iowa does not recognize a property interest in contraband per se

for the purposes of forfeiture law or contract law.

       Iowa does recognize a property interest in contraband per se sufficient to

support criminal liability for theft. In State v. Sego, 140 N.W. 802 (Iowa 1913),

the Iowa Supreme Court held stealing contraband liquor would support a

conviction for larceny. In State v. May, 20 Iowa 305, 308 (1866), the court stated

while possessing “liquor as an article of traffic is prohibited, and is liable when

kept as such, to be seized and destroyed, nevertheless, until this is done, it is in

its essential nature property” and “it is a principle or rule of property, as old as the

common law itself, that the possession of one is good against all others, who

cannot show a better right of possession.” The court held, just as “he who steals

a stolen article of property from a thief, may himself be convicted notwithstanding

the criminality of the possession by his immediate predecessor in crime,” a thief

who steals contraband per se can be prosecuted for larceny or robbery because

“[l]arceny is a crime against society, and should be punished on account of its

own inherent meanness and criminality.”              May, 20 Iowa at 308–09 (stating

larceny is a “distinct crime” from possession of contraband and “both, to be sure,

are violations of law, but each has its own specific and appropriate penalty, and

each must be dealt with by itself”).

       “Today the rule is universal that by prohibiting possession of an item, the

government does not license criminals to take it by force or stealth from other

criminals.” People v. Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983). The policy
                                        9

reasons supporting the rule are numerous and obvious.          See id.; see also

Commonwealth v. Rourke, 64 Mass. 397, 402 (Mass. 1852) (“Each violation of

law is to be dealt with by itself. The felonious taking has its appropriate and

specific punishment, so also has the unlawful acquisition.”); People v. Otis, 139

N.E. 562, 562 (N.Y. 1923) (stating the contrary result would “license theft” and

“encourage the transportation, distribution, and consumption of [the contraband]

by the thief”).

       Counsel is not required to make an argument contrary to settled and

universal law. See Graves, 668 N.W.2d at 881 (“Trial counsel has no duty to

raise an issue that has no merit.”); State v. Davis, No. 14-1976, 2016 WL

1677591, at *5 (Iowa Ct. App. Apr. 27, 2016) (“Nor does counsel have a duty to

raise and relitigate issues already decided.”). Moore’s counsel did not breach an

essential duty in failing to argue this point.   The district court did not err in

denying this ground for relief.

                                        C.

       Moore next challenges his robbery conviction. By way of background, the

State had several theories of liability with respect to the robbery charge. The

marshaling instruction for robbery in the first degree allowed the jury to find

Moore guilty as the principal or as an aider and abettor. The district court also

instructed the jury on joint criminal conduct with burglary serving as the

underlying crime. The joint-criminal-conduct instruction provided:

        When two or more persons act together and knowingly commit a
        crime, each is responsible for the other’s acts done in furtherance
        of the commission of the crime or escape from the scene. The
        defendant’s guilt is the same as the other person’s unless the acts
                                        10


        could not reasonably be expected to be done in furtherance of the
        commission of the crime.
               The State must prove all of the following elements for
       Robbery under the theory of joint criminal conduct.
               1. The defendant acted together with at least one other
       person.
               2. The defendant and the other person or persons knowingly
       participated in the crime of Burglary, as defined in Instruction No.
       35.
               3. While furthering the crime of Burglary, the other person or
       persons committed the different crime of Robbery or a lesser
       included charge of Robbery as defined in Instruction No. 28.
               4. The defendant could have reasonably expected that the
       different crime of Robbery would be committed in furtherance of the
       crime of Burglary.
               If you find the State has proved all of these elements, the
       defendant is guilty of the crime of Robbery.

The jury acquitted Moore of burglary charge, but the jury convicted Moore of first-

degree robbery. The jury returned a general verdict.

       Moore contends his counsel was ineffective in failing to move for judgment

of acquittal on the ground there was insufficient evidence to prove joint criminal

conduct and was ineffective in failing to object to the joint-criminal-conduct

instruction on the ground there was insufficient evidence to submit the

instruction.   Specifically, Moore contends there was insufficient evidence of

burglary because Robinson lived in the home and gave consent to entry. He

further argues because the jury returned a general verdict, the court cannot know

whether the jury improperly convicted him for robbery under the joint-criminal-

conduct instruction. See State v. Martens, 569 N.W.2d 482, 485 (Iowa 1997)

(stating when there is a general verdict of guilty, “we have no way of determining

which theory the jury accepted”).

       The cases on which Moore relies were resolved on direct appeal where

error was preserved. Where, as here, the claim is asserted within the context of
                                         11


a claim of ineffective assistance of counsel, the defendant must still establish

Strickland prejudice. See State v. Thorndike, 860 N.W.2d 316, 321–22 (Iowa

2015) (“Thus, given the nature of Thorndike’s claim, he must affirmatively

demonstrate counsel’s alleged deficiency undermines our confidence in the

verdict and therefore resulted in prejudice entitling him to a new trial, regardless

of whether his claim would require reversal if it were before us on direct

appeal.”); State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008) (“Further, when

there is no suggestion the instruction contradicts another instruction or misstates

the law there cannot be a showing of prejudice for purposes of an ineffective-

assistance-of-counsel claim.”); State v. Tejeda, 677 N.W.2d 744, 754–55 (Iowa

2004) (“It is true that we have said that ‘an instruction submitting an issue

unsubstantiated by evidence is generally prejudicial.’ Unlike the case at bar,

however, [these previous cases] were decided on direct appeal, and not in the

ineffective-assistance-of-counsel context.” (citations omitted)).

       Moore failed to establish prejudice. The district court’s instruction was a

correct statement of the law. See State v. Smith, 739 N.W.2d 289, 294–95 (Iowa

2007) (setting forth the elements of the offense).         The instruction did not

contradict the first-degree robbery instruction. See Iowa Code §§ 703.1, 703.2,

711.2; see also Thorndike, 860 N.W.2d at 322.              Additionally, there was

overwhelming evidence to support Moore’s robbery conviction:

       Stokes was present when Moore shot Henderson; Cooper testified
       Moore admitted to shooting Henderson in the leg and arm; Stokes
       testified “[Dukes] came out walkin’ briskly, stood to the side and
       that’s when [Moore] shot.” Furthermore, Johnson testified Moore
       and his co-conspirators came to her apartment with a large quantity
       of marijuana. Sometime later she heard him admit to having
       robbed and shot someone. There were also cell phone records
                                         12


       and video surveillance corroborating the testimony of Moore’s co-
       conspirators. Additionally, a gun was found at the scene of the
       crime, which coincides with Cooper’s testimony she heard Dukes
       say he dropped the gun during the commission of the offense after
       a struggle, and Henderson was hit in the head with what he
       believed was a gun. While not the gun used to fire on Henderson,
       it does provide proof a gun was used in connection with the
       robbery.

Moore, 2014 WL 69593, at *4. This finding is binding on this court. See State v.

Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987) (holding “the legal principles

announced and the views expressed by a reviewing court in an opinion, right or

wrong, are binding throughout further progress of the case upon the litigants, the

trial court and this court in later appeals”). The fact there was no prejudice is

further reinforced by the verdicts.    The jury acquitted Moore of burglary but

nonetheless found him guilty of robbery. There is thus no opportunity for the

defendant to have been found guilty based on anything other than his own

conduct. See State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998). Moore’s

conviction therefore did not “result[] from a breakdown in the adversary process

that renders the result unreliable” and the court’s “confidence in the jury’s verdict

is not undermined.” Thorndike, 860 N.W.2d at 323. The district court correctly

denied Moore’s claim for relief.

                                         D.

       Moore next challenges the accomplice instruction. The instruction read:

             An “accomplice” is a person who knowingly and voluntarily
       cooperates or aids in the commission of a crime.
             A person cannot be convicted only on the testimony of an
       accomplice. The testimony of an accomplice must be corroborated
       by other evidence tending to connect the defendant with the crime.
             You are instructed that the Court has found that Lamario
       Stokes, Belinda Robinson, and Crystal Cooper were accomplices
       and you must consider each of them as an accomplice. The
                                        13


      defendant cannot be convicted only by that testimony. There must
      be other evidence tending to connect the defendant with the
      commission of the crime. Such evidence, if any, is not enough if it
      just shows a crime was committed. It must be evidence tending to
      single out the defendant as one of the persons who committed it.
              Corroborative evidence need not be strong and need not be
      entirely inconsistent with innocence.           The requirement of
      corroborative evidence is met if it can fairly be said the accomplice
      is corroborated in some material fact tending to connect the
      defendant with the commission of the crime.
              Corroborative evidence need not confirm every material fact
      testified to by the accomplice, nor need it confirm all the elements
      of the crime charged. Corroborative evidence can be either direct
      or circumstantial. There may be a combination of circumstances,
      singularly unpersuasive but in their totality sufficient, to corroborate
      an accomplice’s testimony.
              A small amount of corroborative evidence is all that is
      required.

Moore argues his counsel should have challenged this instruction because it

failed to inform the jury he could not be convicted only on accomplice testimony

and the accomplice testimony must be corroborated by other evidence.

      As is apparent from the text of the instruction, the claim fails. The

instruction given already informs the jurors the accomplices’ testimony “must be

corroborated by other evidence tending to connect the defendant to the crime”

and that Moore could not “be convicted only by [accomplice] testimony.”

      Although his argument is not exactly clear, Moore appears to argue there

was insufficient evidence corroborating the accomplices’ testimony that

specifically linked Moore to the crime. We conclude this claim is without merit.

On direct appeal, Moore’s appellate counsel argued trial counsel was ineffective

for failing to challenge this instruction on the ground it failed to name Johnson as

an accomplice. This court held “there was a great deal of corroborating evidence
                                         14

to support the testimony of Moore’s co-conspirators.” Moore, 2014 WL 69593, at

*6.

       These include various cell phone records and video surveillance
       showing Robinson at Hy-Vee, which corroborates her testimony the
       group left a car in the Hy-Vee parking lot. There were also sales
       records from Wal-Mart where a small digital scale was purchased,
       as well as the presence of a gun and marijuana residue in
       Henderson’s residence. Furthermore, there was the testimony of
       the victim, Henderson, as to what occurred, including the gunshot
       wounds he suffered and the gash on his head from being struck
       with a gun, as well as the timing of the 911 call Henderson placed
       shortly before the group arrived at Johnson’s residence with the
       marijuana. This is all sufficient evidence supporting the co-
       conspirator’s testimony.

Id. Our prior conclusion there was ample corroborating testimony is the law of

the case and is “binding throughout further progress of the case upon the

litigants, the trial court and this court in later appeals.” Grosvenor, 402 N.W.2d at

405. This doctrine applies even in postconviction-relief matters. See State v.

Ragland, 812 N.W.2d 654, 658 (Iowa 2012) (holding the law of the case doctrine

barred the applicant’s challenge to his conviction in postconviction-relief

proceeding).   Furthermore, there was testimony from a non-accomplice that

Moore admitted to robbing someone in Cedar Rapids and shooting the victim in

the leg.

       Moore’s trial counsel did not breach an essential duty in failing to

challenge the instruction. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010) (“Counsel has no duty to raise an issue that has no merit.”).
                                         15


                                         E.

       Moore also challenges the jury instruction regarding the charge of

possession of a controlled substance with intent to deliver while in immediate

possession of a firearm. It states:

               The State must prove all of the following elements of
       Possession of a Controlled Substance with Intent to Deliver while in
       the immediate possession of a firearm:
               1. On or about the 27th day of January, 2011, either the
       defendant or the persons the defendant aided and abetted
       knowingly or intentionally possessed marijuana, a controlled
       substance.
               2. The defendant knew that the substance possessed by
       either the defendant or the person the defendant aided and abetted
       was marijuana.
               3. Either the defendant or the person the defendant aided
       and abetted possessed the substance with the intent to deliver a
       controlled substance.
               4. The defendant and/or the person the defendant aided
       and abetted possessed the marijuana while in the immediate
       possession of a firearm.
               If the State has proved all of the elements, the defendant is
       guilty of Possession of a Controlled Substance with Intent to
       Deliver. If the State has proved elements 1 and 2, but has failed to
       prove element 3, the defendant is guilty of Possession of a
       Controlled Substance. If the State has failed to prove either
       element 1 or 2, the defendant is not guilty.

Moore argues his counsel was ineffective for failing to challenge the instruction

on the ground the instruction did not include the lesser included offense of

possession with intent to deliver.      The State concedes the instruction was

incorrect. See State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988). The question

presented is whether Moore is entitled to relief.

       We conclude Moore suffered no constitutional prejudice as a result of the

failure to instruct on the lesser included offense and is thus not entitled to relief.

“[T]he failure to instruct a jury on a proffered lesser included offense does not
                                        16

automatically require reversal.”   State v. Miller, 841 N.W.2d 583, 596 (Iowa

2014). The failure to instruct may not be prejudicial where the defendant did not

rely on the non-included offense as a theory of their case. See id.; State v.

Negrete, 486 N.W.2d 297, 299 (Iowa 1992); see also State v. Smith, 282 N.W.2d

138, 141 (Iowa 1979) (“This court has a long history of not reversing on the

ground of technical defects in procedure unless it appears in some way they

have prejudiced the complaining party or deprived him or her of full opportunity to

make defense to the charge presented in the indictment or information.”). Moore

sought acquittal on all charges. It was never the theory of his case that he was

guilty of possession with the intent to deliver and not the greater offense of

possession of marijuana with intent to distribute while in possession of a firearm.

       In addition, there was overwhelming evidence Moore “and/or the person

[Moore] aided and abetted possessed the marijuana while in the immediate

possession of a firearm.” His co-conspirators testified to the large quantities of

marijuana stolen from Henderson and there was a trail of marijuana and debris

around Henderson’s residence. See Moore, 2014 WL 69593, at *5. There was

undisputed evidence of a presence of two guns at the time of the robbery. See

id. at *4. One gun was found at the scene and was likely Dukes’s, who, Cooper

testified, said he had dropped his gun during the robbery. See id. The second

gun was reasonably likely to be in the presence of the conspirators when dividing

the contraband. In addition, Johnson testified Moore told her he had robbed

someone in the Cedar Rapids area and that during the robbery there was a

struggle and he shot someone in the leg. “[P]rejudice may not exist where the

evidence of guilt is so strong there is no reasonable probability the result would
                                           17

have been different if the instruction in question had been correctly stated.” State

v. Milder, No. 14-0076, 2015 WL 3613338, at *12 (Iowa Ct. App. June 10, 2015).

Such is the case here.

                                           F.

       Moore contends his counsel was ineffective for failing to challenge the

testimony of Officer Mike Briggs on the grounds Briggs improperly vouched for

and bolstered the credibility of other witnesses. At trial, the State asked Briggs

about his first interview with Robinson:

              Q. Did you have an occasion then to speak with Miss
       Robinson in this first interview? Was she willing to speak with you?
       A. Yes.
              Q. And to a certain extent was she forthcoming in her
       involvement? A. To a certain extent, yes.
              Q. At that point in time she hadn’t told you everything? A.
       That’s correct.

Briggs testified Cooper was forthcoming about her involvement when speaking

with the police.   Briggs also testified he went to several potentially relevant

locations during the course of his investigation to corroborate the statements of

certain witnesses and attempt to obtain relevant evidence.           For example,

Robinson told Briggs the group went to Wal-Mart on the night at issue to

purchase a digital scale.    Briggs testified he went to the store to investigate

whether the store had video and records of the transaction.        The prosecutor

asked Briggs what he hoped to achieve in going to these locations. He testified:

               A. When someone tells me something, I want to corroborate
       what they’re saying. I’m not just going to take somebody’s word for
       it, I want to follow-up on what they say and try to prove that they’re
       telling me the truth or they’re telling me a lie.
               Q. Were you able to do that with [Robinson]? A. Yes.
               Q. And with [Cooper]? A. Yes.
                                        18


On cross examination, Moore’s counsel asked Briggs about handwritten

statements he made for Robinson and Cooper regarding a photo lineup:

               Q. Did you get the opportunity to review the two statements
       that you wrote for Miss Robinson and Miss Cooper before today?
       A. About the photo lineups?
               Q. Yeah. A. Yes.
               Q. Okay. I mean would it be fair to say those are almost
       verbatim, word-for-word identical statements that you wrote out, at
       least the first half of them? A. I don’t recall. Probably so.
               Q. Okay. I mean—It’s not—it’s not normal that witnesses
       will give you the exact same written statements when they write out
       a statement; is it? A. If it’s the truth.
               Q. Even when witnesses are trying to tell the truth, though,
       they will have different perceptions of what occurred; won’t they?
       A. Yes.

(Emphasis added.)

       We conclude counsel had no duty to object to the testimony. The officer

testified as a fact witness based on his personal observations made during the

course of his investigation and as a fact witness offering lay opinion based upon

personal knowledge. See Iowa R. Evid. 5.602 (“A witness may not testify to a

matter unless evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”); Iowa R. Evid. 5.701 (“If the

witness is not testifying as an expert, the witness’s testimony in the form of

opinions or inferences is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.”).

“An officer’s testimony regarding observed demeanor as a historical fact and lay

opinion regarding the observed demeanor is relevant and admissible in Iowa.”

State v. Ritenour, No. 15-0038, 2016 WL 3269551, at *12 (Iowa Ct. App. June

15, 2016) (collecting cases). “Similarly, an officer can testify a person gave a
                                         19


statement or statements as a matter of historical fact and provide lay opinion on

whether the statements were consistent or inconsistent or credible or not

credible.” Id. at *13. An officer can also testify regarding statements made and

actions taken during the course of an investigation to explain the course of

investigation. See id. Counsel had no duty to pursue a meritless issue. Finally,

even if defense counsel should have objected in regard to the emphasized

testimony above the defendant was not prejudiced. The testimony was brief, and

the officer qualified his answer by subsequently agreeing witnesses will have

different perceptions.

                                         G.

       Moore raises an evidentiary challenge.       He contends his counsel was

ineffective in failing to object to hearsay testimony. Cooper testified as follows:

               Q. As you’re on your way back to Cedar Rapids, was there
       some discussion by Corey Moore as to what had happened in the
       trailer? A. Yes.
               Q. And what did he say happened? A. That [Henderson]
       was talkin’ a lot of crap and that he shot him in the leg and the arm.
               Q. What about [Dukes], what happened with [Dukes]? A.
       [Dukes] said, also, that he was talking—[Henderson] was talking a
       lot of crap and he hit him with his gun.
               Q. [Dukes] say anything about where the gun was at? A.
       He said that he dropped it and tried to retrieve it and could not.

Moore argues Cooper’s statements regarding Dukes’s out-of-court statements

were hearsay.       The State contends the statements were coconspirator

statements and thus statements by a party opponent.

       A statement by a party opponent is not hearsay.           See Iowa R. Evid.

5.801(d)(2).    The rule encompasses statements “made by the party’s

coconspirator during and in furtherance of the conspiracy.”           Iowa R. Evid.
                                        20

5.801(d)(2)(E); accord. State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976). “Once

a conspiracy had been shown, the burden is upon the conspirator to show it has

ended.” Kidd, 239 N.W.2d at 864. As to whether a statement was made in

furtherance of the conspiracy, Iowa courts have held:

      Acts or declarations of a coconspirator, to be admissible, must be in
      furtherance of the conspiracy; that is, in some measure or some
      extent, it must aid or assist toward the consummation of the object
      of the conspiracy. Furtherance . . . has a well-defined and
      generally accepted meaning, which is the “act of furthering or
      helping forward, or promotion, or advancement.” A mere relation of
      something already done for the accomplishment of that object is not
      competent evidence against others, but hearsay only. . . .
      [D]eclarations which are either acts in themselves purporting to
      advance the objects of the criminal enterprise, or which accompany
      and explain such acts, are to be distinguished from statements,
      whether written or oral, which, though made pending the plot, are
      mere narratives of acts or measures which have already been done
      or taken. A co-conspirator, in recounting past transactions or
      events having no connection with what is being done in promotion
      of the common design, cannot be assumed to represent those
      associated with him. Only such acts and declarations as are done
      and made in accomplishing the object intended can be said to have
      been authorized by the body of the conspirators as a whole.

State v. Gilmore, 132 N.W. 53, 55–56 (Iowa 1911). “Narrative declarations of

past occurrences can be in furtherance of a conspiracy.” Kidd, 239 N.W.2d at

865 (citations omitted).    “A narrative declaration is in furtherance of the

conspiracy if it has some connection with what is being done in promotion of the

common design.” Id. This rule is construed broadly. See id.

      We conclude counsel did not breach a duty owed Moore. Dukes was a

coconspirator. His statements were made during the life of the conspiracy, as

“[a] conspiracy to commit robbery does not necessarily end when the robbery

has been committed; it may persist at least until the fruits of the crime have been

divided.” Id. at 864. Post-robbery statements by coconspirators have been held
                                          21

in furtherance of the conspiracy. See id. at 865. The statement was made in the

car ride to Cedar Rapids immediately following the crime and prior to the

conspirators dividing up the stolen contraband. The statement at issue was a

report from the conspirators who actively participated in the robbery to the

conspirators who did not actively participate in the robbery.          See id.    The

communication was in furtherance of the conspiracy because it provided

additional information to the other conspirators. The statement also alerted the

other conspirators to potential problems regarding the offense.           Specifically,

Dukes left his gun at the scene of the crime.         Under the circumstances, we

conclude the statements were made during and in furtherance of the conspiracy.

                                          H.

       Moore claims the trial court erred in providing the jury with a supplemental

verdict-urging instruction after the jury foreperson informed the district court the

jury had come to a consensus on two of the charges but was deadlocked on the

other two. Moore raised this issue on his direct appeal, but the record was not

adequately developed to consider the issue. See Moore, 2014 WL 69593, at *5.

He raised it again in his application for postconviction relief as an ineffective-

assistance-of-counsel claim for his trial counsel’s failure to object to the

instruction and for his appellate counsel’s failure to preserve error for appellate

review. The district court heard testimony on this issue during the postconviction

hearing, but no record of the trial court’s instruction to the jury or the conversation

the court had with the jury had been made or submitted to the district court during

the postconviction relief hearing. The district court determined Moore’s counsel
                                        22


was not ineffective, but noted it did so based on the testimony and not a formal

record of the proceeding.

       After polling the jury to determine how many jurors believed “more

deliberations would be beneficial”—eleven “yes,” one “no”—the court instructed

the jury:

              Now, what—Under the law at this time what I’m going to
       instruct you to do is that you have a verdict on two counts. That’s
       okay. But I’m going to send you back and ask you to deliberate
       some more on the other two counts. If you’re unable to reach a
       verdict on those two counts, let us know and we’ll have another—
       and we’ll deal with it then. But I think we have to do—As you’re
       aware, the parties have put in a lot of time and effort in this matter
       and we’d like to see a little more opportunity to try and reach a
       verdict. If you can’t, you can’t, on the last two counts. But we just
       need to know—I just need to know that you try it one more and we’ll
       see where we’re at. All righty?

The jury returned to deliberations at 9:54 a.m. and deliberated until

approximately 12:30 p.m. the same day (approximately two-and-one-half hours)

before returning with a verdict.

       Moore first requests this court to declare verdict-urging instructions

improper and per se reversible error. Verdict-urging instructions, however, have

“long been sanctioned.” State v. Piper, 663 N.W.2d 894, 911 (Iowa 2003)

(citation omitted), overruled on other grounds by State v. Hanes, 790 N.W.2d 545

(Iowa 2010).    Iowa courts have never held these instructions to be per se

erroneous. See State v. Campbell, 294 N.W.2d 803, 809 (Iowa 1980). We

decline the invitation or hold a verdict-urging instruction improper per se. We are

not at liberty to overrule controlling supreme court precedent. See State v. Beck,

854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
                                         23


       Moore also argues the verdict-urging instruction was improper.         “The

ultimate test [of whether a verdict-urging instruction is proper] is whether the

instruction improperly coerced or helped coerce a verdict or merely initiated a

new train of real deliberation which terminated the disagreement.” Campbell,

294 N.W.2d at 808. “[T]he trial judge has considerable discretion in determining

whether the verdict-urging instructions should be given and that each case is to

be decided on its own circumstances.”          Id. at 808–09.   The content of the

instruction “is only one factor to consider in determining whether the jury was

improperly coerced” and the instruction must be evaluated “in its context and

under all circumstances.” Piper, 663 N.W.2d at 911–12 (internal quotation marks

and citation omitted). Factors that may evidence whether the jury’s verdict was

coerced include: “an inquiry into the jury’s numerical division, a speedy verdict

after receiving the supplemental instruction, and language instructing the jury it

must make a decision.”       Id. at 912.      The district court should also avoid

discussing the cost of litigation or that a decision must be reached by “some

jury.” Campbell, 294 N.W.2d at 809–10.

       The trial court’s instruction was not prejudicially coercive. The jury poll

properly asked whether the jurors believed additional deliberations would be

beneficial rather than a poll on the verdicts. The United States Supreme Court

has authorized this form of polling by the court:

       Here the inquiry as to the numerical division of the jury was not as
       to how they stood on the merits of the verdict, but how they stood
       on the question of whether further deliberations might assist them
       in returning a verdict. There is no reason why those who may have
       been in the minority on the merits would necessarily conclude that
       further deliberation would not be helpful, or that those in the
       majority would necessarily conclude otherwise. The two questions
                                          24


       are clearly independent of one another. We believe the type of
       question asked by the trial court in this case is exactly what the
       Court in Brasfield implicitly approved when it stated: “[An inquiry as
       to numerical division] serves no useful purpose that cannot be
       attained by questions not requiring the jury to reveal the nature or
       extent of its division.”

Lowenfield v. Phelps, 484 U.S. 231, 240 (1988) (quoting Brasfield v. United

States, 272 U.S. 448, 450 (1926)).         The court’s polling of the jury did not

evidence coercion. Nor did the court’s statement about how much time and effort

the parties put into the case.      See State v. Power, No. 13-0052, 2014 WL

2600214, at *4–5 (Iowa Ct. App. June 11, 2014) (approving an Allen charge

where the instruction included the language “[t]he case has been exhaustively

and carefully tried by both sides” (emphasis added)). The court did not require

the jury to reach a conclusion; nor did it say that a jury had to reach one. See

Campbell, 294 N.W.2d at 810–11. The time it took the jury to conduct further

deliberations before coming to a verdict does not evidence coercion, in fact, it

falls within the period of time Iowa courts have said evidence “further worthwhile

consideration.”   State v. Kelley, 161 N.W.2d 123, 126 (Iowa 1968); accord.

Campbell, 294 N.W.2d at 811 (discussing periods of time that have evidenced

lack of coercion, including as little as forty-one minutes).

       Moore’s trial counsel had no duty to object to a proper instruction and no

prejudice resulted from his failure to do so. His trial counsel testified at the

postconviction-relief hearing he also did not seek a mistrial because he believed

the jury foreperson was favorable to Moore and her reluctance to reach an

agreement on the charges could result in a hung jury. We will not second-guess

this strategic decision.   See Lando, 804 N.W.2d at 251 (“Miscalculated trial
                                         25


strategies and mere mistakes in judgment normally do not rise to the level of

ineffective assistance of counsel.”).

                                          I.

         Moore next argues his postconviction counsel was ineffective for failing to

provide deposition records of Robinson, Stokes, and Johnson, which would have

been used to show his trial counsel was ineffective for failing to impeach those

witnesses with their deposition testimony. Moore’s postconviction counsel had

raised the issue of ineffective assistance of counsel for failing to impeach the

witnesses, and had listed the depositions as evidence in the application, but

failed to provide the deposition records to the court. The postconviction court,

based on the trial transcripts, held Moore failed to demonstrate his trial counsel

breached an essential duty or that he was prejudiced. Moore contends the only

way to demonstrate whether trial counsel was ineffective for failing to impeach

the witnesses was to submit the depositions as evidence to demonstrate his trial

counsel could have impeached the witnesses with inconsistent statements.

Moore argues this was structural error on the part of his postconviction counsel

because Moore had no assistance of counsel at the proceedings.               In the

alternative, Moore argues his postconviction counsel’s omission should be

preserved for further postconviction-relief proceedings because there is not an

adequate record to reach the merits.

         We reject Moore’s contention that this claimed error constitutes structural

error.    Moore was not completely deprived of counsel on the issue.            His

postconviction counsel questioned his trial counsel on the issue of impeachment,

including his general practices on reviewing and preparing for impeachment,
                                       26


impeaching witnesses, and how he communicates the impeachment to the jury.

Based on the testimony, there was no issue with trial counsel’s examination of

these witnesses.

      We reject Moore’s request to preserve this claim for further postconviction-

relief proceedings. Although our case law has preserved claims of ineffective

assistance of postconviction counsel where the record is inadequate to decide

the claim on the merits, there does not appear to be any statute authorizing

preservation of such a claim for subsequent postconviction-relief proceedings.

Iowa Code section 814.7(3) authorizes the preservation of ineffective-assistance-

of-counsel claims only on direct appeal from a “criminal proceeding.” Iowa Code

§ 814.7(3) (“If an ineffective assistance of counsel claim is raised on direct

appeal from the criminal proceedings, the court may decide the record is

adequate to decide the claim or may choose to preserve the claim for

determination under chapter 822.”). “[P]ostconviction relief proceedings are not

criminal proceedings, but rather are civil in nature and are triable at law to the

court.” Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991) (emphasis in original

omitted). Because a postconviction-relief proceeding is a civil proceeding rather

than a “criminal proceeding,” section 814.7(3) is inapplicable here. We thus have

no authority to “preserve” a claim of ineffective assistance of postconviction

counsel. Moore may file another application for postconviction relief and assert

this or any other claim. The timeliness and propriety of any such application,

claim, or claims would be governed by chapter 822.

      The postconviction applicant bears the burden of establishing his claim by

a preponderance of the evidence. See Nguyen v. State, 878 N.W.2d 744, 752
                                          27


(Iowa 2016). On the record before this court, the defendant failed to prove his

postconviction counsel breached an essential duty or constitutional prejudice

resulted. We thus deny this claim for relief.

                                          J.

       Moore contends the cumulative effect of the above-discussed claims

resulted in constitutional prejudice. See State v. Clay, 824 N.W.2d 488, 501

(Iowa 2012) (“Iowa recognizes the cumulative effect of ineffective assistance of

counsel claims when analyzing prejudice under Strickland.”). Where, as here, an

applicant asserts multiple claims of ineffective assistance of counsel, “the

cumulative prejudice from those individual claims should be properly assessed

under the prejudice prong of Strickland. The court should look at the cumulative

effect of the prejudice arising from al the claims.” Id. Where the applicant raised

multiple claims of ineffective assistance and the court found the attorney did not

fail to perform an essential duty, that claim is dismissed. See id. If the court only

considered the prejudice prong, “the court can only dismiss the postconviction

claim if the alleged errors, cumulatively, do not amount to Strickland prejudice.”

Id. at 501–02. Here, as to any claim Moore raises in which we did not address

the duty prong, we do not believe the cumulative effect of Moore’s attorneys’

actions or inactions rises to the level of Strickland prejudice.

                                          III.

       Moore contends his sentence requiring him to pay the entirety of the

attorney fees of his appointed counsel is illegal because it exceeded statutory

guidelines and because the district court failed to make a reasonable

determination if Moore could pay. Illegal sentences may be challenged at any
                                          28


time, notwithstanding that the illegality was not raised in the trial court or on

appeal.       See Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal

sentence at any time.”).

       We reject Moore’s claim that the amount of the fee was illegal and in

excess the authorized limit. Iowa Code section 815.14 provides the “expense of

the public defender may exceed the fee limitations established in section 13B.4.”

Here, the public defendant sought and obtained authorization to exceed the fee

limitation.

       “A defendant’s reasonable ability to pay is a constitutional prerequisite for

a criminal restitution order such as that provided by Iowa Code chapter 910.”

State v. Von Hoff, 415 N.W.2d 647, 648 (Iowa 1987); see also State v. Kurtz, 878

N.W.2d 469, 472–73 (Iowa Ct. App. 2016) (“[B]efore ordering payment for court-

appointed attorney fees and court costs, the court must consider the defendant’s

ability to pay.”). The defendant has the burden to demonstrate the district court’s

failure to exercise discretion or abuse of that discretion. See Von Hoff, 415

N.W.2d at 648. “A determination of reasonableness, especially in a case of long-

term incarceration, is more appropriately based on the inmate’s ability to pay the

current installments than his ability to ultimately pay the total amount due.” Id. at

649.

       At the sentencing hearing, the district court asked Moore whether he

would be able to pay the attorney fees:

              The Court: Okay. So, Mr. Moore, how much of Mr.
       Lanigan’s attorney fees do you believe you can pay based on a
       plan of payment when you get out on parole?
                                        29


              The Defendant: None. I’ll be 60 some years old when I get
       out on parole. Twenty-five plus another ten, I’m 40—I’m 39, I’ll be
       40 next January.
              The Court: Okay. Well, given the nature of the crime, the
       severity of the crimes, I’m going to order that you do pay the whole
       hundred percent of the attorney fees when you get out on parole.
       They’ll set out a plan of payment and you can work on paying that
       back when you get out.

       The State concedes the district court erred in failing to determine whether

Moore would reasonably be able to make the payments and what the payments

of his restitution plan should be. We therefore vacate that portion of Moore’s

sentence and remand this matter to the district court to make a determination of

Moore’s reasonable ability to pay.

                                        IV.

       For the foregoing reasons, we affirm-in-part the judgment of the district

court. We vacate the attorney fee provision of Moore’s sentence and remand

this matter to the district to make a determination of Moore’s reasonable ability to

pay.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
