                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0647
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CODY ALEXANDER PLUMMER,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Cody Alexander Plummer appeals from a verdict of guilty on a charge of

first-degree robbery. AFFIRMED.



       R.E. Breckenridge of Breckenridge Law P.C., Ottumwa, for appellant.

       Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Special

Counsel (until withdrawal), and Kevin Cmelik, Assistant Attorney General, for

appellee.



       Considered by Danilson, C.J., Tabor, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

      Cody Alexander Plummer appeals from a verdict of guilty on a charge of

first-degree robbery. We affirm.

   I. Background Facts and Proceedings

      Shortly before the closing time on February 10, 2015—pursuant to a plan

developed   the   evening   before—Riley    Mallett,   Myles   Anderson,   K’Von

Henderson, Dayton Nelson, and Plummer gathered together to rob the

Greenwood Pharmacy in Waterloo. The original plan was for Anderson and

Mallett to enter the premises. About ninety minutes before entry, the plan was

changed when Anderson backed out and Plummer replaced him. Nelson and

Henderson were to be getaway drivers. Two automobiles were employed; the

items taken were to be deposited in the vehicle Nelson was driving, and

Henderson was to pick up Plummer and Mallett at a designated location.

      Nelson drove Mallett, Plummer, and Anderson to the drug store.

Anderson possessed a gun that was delivered to Mallett or Plummer after they

arrived at the drug store. Nelson testified that both Mallett and Plummer were

there and, though he was not positive which one took it, he was certain one of

them accepted the gun. Henderson proceeded on to the pickup point where he

was to wait. Mallett and Plummer were both wearing masks when they entered

the drug store, and Mallett went to the front. A note stated, “Give me all of the

Xanax and all the Promethazine [and] Codein[e] before I shoot this bitch up.”

After moving to the back of the drugstore Mallett brandished the gun and verbally

repeated the note’s commands. The pharmacist, Wes Pilkington, believed the

handgun looked like the gun police carry and complied with Mallett’s request.
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Mallett was wearing a mask, but Pilkington was able to identify him at trial.

Plummer stayed at the front of the store and asked for money, and the clerk

complied.

      Plummer and Mallett were able to put the loot and the gun into the trunk of

the vehicle Nelson was driving, but Mallett and Plummer were arrested before

they made it to the getaway vehicle being driven by Henderson. Both were

apprehended in the vicinity of the drug store. Nelson, Anderson, and Henderson

eventually gathered at Nelson’s residence with the proceeds from the robbery,

which were divided among the three of them.

      Law enforcement proceeded to the Nelson residence and were greeted by

Nelson’s dogs. Henderson and Nelson began to run, but it is unclear whether

they were trying to restrain the dogs or escape. As Henderson ran, his cell

phone dropped out of his pocket. Records from the cell phone reflected multiple

calls among the participants from their respective cell phones immediately before

the robbery.

      In a post-arrest interview, Plummer described what had happened at the

drug store in detail and admitted taking money from the drugstore clerk. He said

he ran out of the back door of the pharmacy and threw the loot into the back of

the awaiting vehicle.

      Henderson, Mallett, and Plummer were tried together. The trial began

November 15, 2015, but a mistrial was declared.        The second trial began

February 9, 2016, and ended February 17, 2016, with a verdict of guilty on the

first-degree robbery charge as to all three defendants.       Plummer appeals,

contending there was insufficient evidence to survive a motion for judgment of
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acquittal.   He has also filed a pro se brief claiming ineffective assistance of

counsel.

      II. Sufficiency of the Evidence

      A. Error Preservation

         The State does not contest error preservation.

      B. Scope and Standard of Review

         Denial of a motion for judgment of acquittal will be sustained if there is

sufficient evidence to support the verdict. State v. Williams, 695 N.W.2d 23, 27

(Iowa 2005). Sufficiency-of-the-evidence claims are reviewed for errors of law.

Id.    Substantial evidence exists if it would convince a finder of fact of a

defendant’s guilt beyond a reasonable doubt. Id. The evidence is viewed in the

light most favorable to the State, and all inferences that may be fairly drawn from

the evidence are given to the State. State v. Showens, 845 N.W.2d 436, 439-40

(Iowa 2014).

      C. Discussion

         Plummer does not contest the evidence supporting the commission of a

robbery. His objection concerns the sufficiency of the evidence of a dangerous

weapon, which was used to support his conviction of first-degree robbery.

Plummer maintains the State did not prove he knew a dangerous weapon would

be used in the robbery.

         Plummer was involved in the planning and execution of the robbery.

Mallett, the other party who entered the pharmacy, was clearly in possession of a

handgun similar to the one police carry. Plummer was present when the note

was written that threatened to “shoot the bitch up.” In addition, Nelson testified
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that a gun was used and all of the participants knew it would be. He and Mallett

were there together when the handgun was passed out of the window of the

automobile Nelson was riding in. Plummer not only knew a gun was involved,

but as an aider and abettor and an active participant, he was subject to being

charged, tried, and punished as a principal. See Iowa Code § 703.1 (2015).

Because substantial evidence supports a finding Plummer was guilty of first-

degree robbery, the motion for judgment of acquittal was correctly denied.

   III. Ineffective Assistance of Counsel

   A. Preservation of Error

       An exception to the traditional rules of error preservation exists when the

claim is ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260,

262-63 (Iowa 2010).

   B. Standard of Review

       When a constitutional issue, such as a claim of ineffective assistance of

counsel, is involved our review is de novo. Lemasters v. State, 821 N.W.2d 856,

862 (Iowa 2012).

   C. Discussion

       To prevail on a claim of ineffective assistance of counsel, the claimant

must prove by a preponderance of the evidence that: (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001). A claim of ineffective assistance of counsel must

overcome the presumption that counsel is competent.           Tyler v. State, 352

N.W.2d 683, 685 (Iowa 1984).           An accused is not entitled to perfect

representation but only that level of representation that is within the normal range
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of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). Strategic

choices after proper investigation are virtually unassailable.       Ledezma, 626

N.W.2d at 143. For relief to be granted, there must be a determination that but

for the ineffective assistance there is a reasonable probability that the result

would have been different. Id. at 145.

       When the record is adequate to make a ruling on ineffective assistance of

counsel on direct appeal, we are permitted to proceed with a ruling, but

otherwise, the issue must be preserved for possible postconviction relief. Artzer,

608 N.W.2d at 531.

       Initially, there was some difficulty in finding a court-appointed counsel for

Plummer that did not have a conflict of interest, but as of September 23, 2015, he

was represented by privately-retained attorneys.       His complaint that he was

initially represented by several different attorneys has no merit.

       Each claim of ineffective assistance of counsel will be considered

separately.

       1. Failure to Pursue a Motion to Sever

       Plummer filed a motion to sever but did so at a point where a privately-

retained counsel was becoming involved. The court held the motion in abeyance

but gave new counsel the right to revive it at counsel’s discretion. New counsel

never requested the motion to be considered. There is no authority cited for the

claim Plummer’s trial should have been separated from the other two co-

defendants.

       Severance is discretionary with the trial court. State v. Snodgrass, 346

N.W.2d 472, 475 (Iowa 1984). To obtain a severance, an accused must show
                                          7


sufficient conflict to the point of his defense being irreconcilable and mutually

exclusive from a co-defendant. Id. The evidence has been completely submitted

and Plummer has the total record before him, but he has not pointed out where

the conflict existed and why he is entitled to severance of his trial from his two

co-defendants.      When the court is not directed to the record or authorities

supporting a contention, an issue may be considered waived. Iowa R. App. P.

6.903(2)(g)(3).

       2. Lack of Pretrial Motions

       Plummer maintains that the lack of pretrial motions indicates the

ineffective assistance of counsel. There is no specification as to what pretrial

motions Plummer is referring to. Because the allegation is so general, we will not

address the issue and, instead, leave it for postconviction relief.

       3. Myles Anderson’s Previous Criminal Act

       Evidence was admitted that Myles Anderson had been involved in a

robbery where handguns were taken and never recovered. An objection to the

testimony was lodged, but it was admitted over the objection—though the

testimony was strictly limited to only show how possession of a police-style

handgun was obtained by the co-defendants. Counsel cannot be considered

ineffective for not objecting when an objection has been lodged and overruled.

       4. Failure to Depose Dion Nelson

       Dion Nelson was not an accomplice, as Plummer insists, but was allowed

to testify to the movement of the five participants before and after the robbery.

Plummer fails to point out why a pretrial deposition would have been helpful to

his defense.      Plummer admitted he was involved in the robbery and gave a
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detailed statement of the movements of the different co-defendants that did not

differ from Dion’s testimony. Plummer has failed to point out what he would have

gained by counsel deposing Dion or why counsel had a duty to depose him.

      5. Allowing Co-Defendants’ Police Statements into the Record

      Plummer contends that allowing statements of the non-testifying co-

defendants into the record violated his right to confront the witnesses. The issue

of statements made by non-testifying witnesses was specifically addressed by

the court after having been raised by defense counsel. The State agreed only to

use a defendant’s statements if they were self-incriminating rather than those

statements that incriminated a co-defendant.

      Plummer directs the court to places in the record where he contends the

State violated its agreement and argues counsel was ineffective for failing to

object. Two of those times occurred during a hearing held outside the presence

of the jury. Two other instances concern statements witnesses testified Mallet

made at the time of the robbery, not statements Mallet made to police. The other

references Plummer makes concern statements made by Dayton Nelson, the

State’s primary witness, and Delila Salman—both of whom were subject to cross-

examination. Otherwise, he has not directed the court to any place in the record

that the State violated the agreement regarding statements of the non-testifying

witnesses.

      6. Ineffective Voir Dire or Waiver of the Record of Voir Dire

      There is no record to determine whether counsel’s voir dire was ineffective

or inadequate. Plummer’s counsel waived the recording of the voir dire.
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       Plummer asserts the court erred by allowing the record of the voir dire to

be waived. The reporting of the voir dire is generally governed by the same rules

as are applicable to civil actions. Iowa R. Civ. P. 2.19(4). Waiver of the reporting

of voir dire is permitted by Iowa Rule of Civil Procedure 1.903(2). The court did

not err in permitting the waiver of the voir dire.

       To the extent counsel may have been ineffective by waiving the reporting

of the voir dire, Plummer has requested the issue be preserved for postconviction

relief. His request is granted.

   IV. Conclusion

       We find the motion for judgment of acquittal was correctly denied and the

court did not err by permitting the reporting of the voir dire to be waived. We find

the record inadequate to resolve the allegation of ineffective assistance counsel

based on a lack of pretrial motions, as well as the allegation counsel was

ineffective for waiving the record of the voir dire, and we preserve these claims

for possible postconviction relief. As to his remaining allegations of ineffective

assistance of counsel, we find the record is adequate to address them on direct

appeal and those claims are without merit.

       AFFIRMED.
