                    IN THE COURT OF APPEALS OF IOWA

                                   No.16-0329
                               Filed April 5, 2017


CASEY DIXON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Casey Dixon appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

        Two Davenport convenience stores were robbed within four days. The

State charged Casey Dixon with two counts of second-degree robbery, and a jury

found him guilty as charged. Dixon filed a direct appeal, which was dismissed as

frivolous. Dixon then filed an application for postconviction relief. The district

court denied the application following an evidentiary hearing.

       On appeal, Dixon argues his trial attorney was ineffective in failing to (1)

file a motion to sever the two robbery counts; (2) adequately impeach a State

witness; (3) file a motion to suppress evidence; and (4) request an eyewitness

identification instruction.   To succeed, Dixon must show (1) his attorney’s

“performance was deficient” and (2) prejudice resulted.             Strickland v.

Washington, 466 U.S. 668, 687 (1984). Our review is de novo. Dempsey v.

State, 860 N.W.2d 860, 868 (Iowa 2015).

I.     Motion to Sever

       Dixon contends his trial attorney should have moved to sever the two

robbery charges based on the “lack of similarities between” them. He asserts the

robberies “were not in geographic proximity to one another, being over six miles

apart, and the robberies occurred four days apart.”

       Iowa Rule of Criminal Procedure 2.6(1) permits the prosecution of two or

more public offenses in a single trial if the offenses “ar[o]se from the same

transaction or occurrence or from two or more transactions or occurrences

constituting parts of a common scheme or plan.” “A common scheme or plan

requires more than the commission of two similar transgressions by a single

person.” State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000).
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       Assuming without deciding Dixon’s trial attorney breached an essential

duty in failing to move for severance of the two charges, there is no reasonable

probability of a different outcome. The jury was instructed on how to consider

multiple counts. See State v. Burrage, No. 09-1042, 2010 WL 2757345, at *5

(Iowa Ct. App. July 14, 2010) (finding no prejudice where the State elicited

testimony concerning the reliability of eyewitness testimony and the marshalling

instruction informed the jury of the State’s burden of proof); State v. Ford, No. 02-

1056, 2004 WL 1898240, at *2 (Iowa Ct. App. Aug. 26, 2004) (noting eyewitness

instruction was unnecessary where the jury received a general instruction on the

credibility of witnesses). In addition, the record contains overwhelming evidence

of guilt.   See State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“The most

important factor under the test for prejudice is the strength of the State’s case.”);

Wemark v. State, 602 N.W.2d 810, 817-18 (Iowa 1999) (finding no prejudice

where overwhelming evidence supported certain elements of the crime).

       The cashier at the first convenience store testified a man entered the store

with a gun and bag as she was about to close up, he robbed the store of $166

and cartons of Newport cigarettes, and he stole her purse, which contained

various items, including an MP3 player. Davenport police officers subsequently

retrieved the MP3 player from the van in which Dixon was riding. The cashier

conclusively identified it as hers based on a serial number matching the number

on her owners’ manual. Davenport officers also retrieved a bag covered with

basketball team logos. The cashier recognized the bag as the bag brought into

the store. Officers found Dixon’s identification cards inside the bag, Newport

cigarette cartons in the van, and Dixon hiding near the vehicle.
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        The cashier at the second convenience store testified to a robbery in

which cash and cigarettes were stolen. Included in the stolen cash was a $2 bill,

which an employee testified was “bait” money. The bill was found with Dixon.

         Based on this overwhelming evidence of guilt, we conclude Dixon could

not establish Strickland prejudice.

II.     Cross-examination

        Dixon contends his trial attorney was ineffective in “failing to adequately

impeach a state witness.” He argues his attorney should have culled through

hours of jailhouse recordings for impeachable statements the witness may have

made.    In fact, his attorney questioned the witness about certain statements

made in those recordings. Dixon does not identify any additional portions of the

recordings that might have impugned the credibility of the witness.              In the

absence of specificity, we conclude Dixon failed to establish counsel’s breach of

an essential duty.

III.    Motion to Suppress

        Dixon contends his trial attorney was ineffective in failing to file a motion to

suppress evidence gained during the search of a vehicle in which Dixon was

riding. He relies on the Iowa Supreme Court’s opinion in State v. Gaskins, 866

N.W.2d 1 (Iowa 2015). The court there held a search of a safe inside a vehicle

was not a valid search incident to arrest under article I, section 8 of the Iowa

Constitution. Gaskins, 866 N.W.2d at 14.

        There is no indication in this record that the officer’s search of the vehicle

was incident to Dixon’s arrest. A Davenport officer testified she chased a vehicle

and saw the driver and passenger jump out and head in different directions. She
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began running after the driver and then decided to return to the vehicle and

conduct a search. Although she informed other officers to pursue the fleeing

occupants, she did not explain when they were arrested in relation to her search

of the vehicle. Gaskins is inapposite.

        Gaskins does not control the disposition for an additional reason. The

opinion was filed several years after Dixon was charged and the opinion

overruled extant precedent.      Id. at 15-16 (overruling State v. Sanders, 312

N.W.2d 534, 539 (Iowa 1981)). Dixon concedes his attorney was not charged

with clairvoyance. We conclude counsel breached no essential duty in failing to

predict the holding of Gaskins, determine it applied to Dixon’s circumstances,

and file a motion to suppress.

IV.    Jury Instruction

       Dixon contends his attorney was ineffective in failing to request an

eyewitness identification instruction. See United States v. Telfaire, 469 F.2d 552,

555 (D.C. Cir. 1972) (“[W]e have pointed out the importance of and need for a

special instruction on the key issue of identification, which emphasizes to the jury

the need for finding that the circumstances of the identification are convincing

beyond a reasonable doubt.”); State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994)

(stating such an eyewitness instruction is in accordance with Telfaire). In Hohle,

the court held the subject encompassed in a Telfaire instruction was adequately

covered in these instructions. Hohle, 510 N.W.2d at 849. Here, the jury received

a reasonable doubt instruction and a credibility instruction.      Accordingly, we

conclude counsel did not breach an essential duty in failing to seek a Telfaire

instruction.
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       We affirm the district court’s denial of Dixon’s postconviction relief

application.

       AFFIRMED.
