                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0140
                            Filed December 21, 2016


CHRISTIAN LUCIER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James C.

Bauch, Judge.



      Christian Lucier appeals the denial of his application for postconviction

relief. AFFIRMED.




      Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Christian Lucier appeals the district court decision denying his application

for postconviction relief from his convictions for first-degree robbery, first-degree

burglary, and possession of a controlled substance with intent to deliver. We find

there was no prejudice to Lucier with regard to both the preparation of his expert

witness and the admission of text messages into evidence. We also find the

marshalling instruction on robbery was proper. Finally, we find the issues raised

by Lucier’s pro se motion to amend were addressed in the district court’s ruling.

We affirm the decision of the district court denying Lucier’s application for

postconviction relief.

   I. Background Facts and Proceedings

       Christian Lucier was convicted of first-degree robbery, in violation of Iowa

Code section 711.2 (2011); first degree burglary, in violation of section 713.3;

and possession of a controlled substance with intent to deliver, in violation of

section 124.401(1)(d).     Lucier and two others broke into an apartment,

threatened the occupants with a gun, and stole a flat-screen television, an i-pod

touch, two cell phones, a wallet, cash, and marijuana. Due to the “overwhelming”

evidence against him, Lucier pursued an affirmative defense of diminished

responsibility due to intoxication. After his conviction, Lucier appealed and his

conviction was affirmed. State v. Lucier, No. 11-0609, 2013 WL 2145780, at *2

(Iowa Ct. App. May 15, 2013).

       Lucier filed an application for postconviction relief on June 10, 2013. He

claimed he received ineffective assistance because defense counsel failed to

produce to Lucier’s expert additional police reports and a post-arrest video
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recording from law enforcement showing no signs of intoxication. Additionally,

Lucier claimed counsel failed to object to hearsay statements and a jury

instruction. Finally, Lucier claimed the district court erred by failing to rule on the

issues raised in his pro se motion to amend.          The district court denied the

application, finding trial counsel had been effective in the face of “very strong”

evidence. Lucier now appeals.

   II. Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective

assistance of counsel, the [defendant] must demonstrate both ineffective

assistance and prejudice,” and each element must be proven by a

preponderance of the evidence. Id. at 142. “If the claim lacks prejudice, it can

be decided on that ground alone without deciding whether the attorney

performed deficiently.” Id. “Representation by counsel is presumed competent,

and a postconviction applicant has the burden to prove by a preponderance of

the evidence that counsel was ineffective.” Jones v. State, 479 N.W.2d 265, 272

(Iowa 1991). Regarding prejudice, “the proper standard requires the defendant

to show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland v. Washington, 466 U.S. 668, 669 (1984).

   III. Preparation of the Expert Witness

       Lucier claims counsel was ineffective for failing to provide additional police

reports and a videotape depicting Lucier after arrest to his expert witness, Dr.
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Conditt. During cross examination, Dr. Conditt admitted the videotape and police

reports would have been useful in helping to form his opinion but continued to

affirm his position that Lucier was too intoxicated to form the specific intent

required to commit the offenses. Lucier claims trial counsel’s failure to provide

the information was a breach of duty, and Dr. Conditt’s opinion was not credible

after cross-examination due to the lack of relevant information.

      The evidence against Lucier at trial concerning his lack of intoxication was

overwhelming. The testimony of officers who had interacted with him during and

after his arrest uniformly described him as alert and without any indication of

intoxication. Additionally, text messages from Lucier suggesting a specific intent

to commit the crimes had been admitted into evidence over an objection by trial

counsel. Lucier also made a telephone call from jail and stated he committed the

robbery to get rent money, which call also showed no signs of intoxication. Other

evidence admitted at trial included a mask, made by cutting eye holes in a tee-

shirt, and DNA found inside the shirt, which matched that of Lucier.

      The weight of evidence against Lucier was succinctly summed up by his

trial counsel at the post-conviction trial: “[the State] had a bazooka, and I had a

BB gun.”    The evidence against Lucier’s defense of intoxication is nearly

unassailable.   “[W]e find no prejudice to the appellant because the evidence

presented at his trial was overwhelming concerning his guilt.” See Whitsel v.

State, 439 N.W.2d 871, 875 (Iowa Ct. App. 1989).

   IV. Admission of Text Messages

      Lucier also claims trial counsel was ineffective by allowing hearsay

evidence, in the form of text messages between Lucier and a co-defendant, to be
                                          5


admitted. Lucier’s trial counsel asked a police officer involved in the case what

time Lucier was approached by a co-defendant “to go do these naughty things?”

Counsel was attempting to question the officer about Lucier and the co-

defendant’s plan to drink alcohol and smoke marijuana, however, the officer

mentioned the text messages sent between Lucier and the co-defendant

indicating specific intent to commit the robbery. On redirect examination, the

State questioned the officer in more depth about the text messages. Lucier’s

counsel objected to the text messages as hearsay, which was overruled.

Therefore, Lucier’s counsel fulfilled his duty through the objection. We find the

text messages were properly admitted and find the evidence presented at trial

was so overwhelming as to preclude any potential finding of prejudice. See id.

   V. Jury Instructions

      Lucier further claims trial counsel was ineffective for failing to object to jury

instruction No. 21. Under the Iowa Code, “[a] person commits robbery in the first

degree when, while perpetrating a robbery, the person purposely inflicts or

attempts to inflict serious injury, or is armed with a dangerous weapon.” Iowa

Code § 711.2. Jury instruction No. 21 stated:

                     The State must prove all of the flowing
             elements of Robbery in the First Degree:
             1. On or about the 1st day of January, 2011, the
             defendant had the specific intent to commit a theft or
             aided and abetted another knowing the other had the
             specific intent to commit a theft.
             2. To carry out his intention or to assist him or another
             in escaping from the scene, with or without the stolen
             property, either the defendant or the person the
             defendant aided and abetted:
                     a. Committed an assault on [victim 1] and/or
             [victim 2].
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                     b. Threatened [victim 1] and/or [victim 2] with,
              or purposely put [victim 1] and/or [victim 2] in fear of
              immediate serious injury.
              3. The defendant or the person the defendant aided
              and abetted was armed with a dangerous weapon.
                     If the state has proved all of the elements, the
              defendant is guilty of Robbery in the First Degree. If
              the state has proved elements 1 and 2 but has failed
              to prove element 3, the defendant is guilty of Robbery
              in the Second Degree. If the state has failed to prove
              either element 1 or 2, the defendant is not guilty of
              Robbery and you will then consider the charge of
              Assault as explained in Instruction No. 25.

Lucier claims this jury instruction does not accurately state the elements of

robbery in the first degree established in the Iowa Code by not including the

words “while perpetrating.”

       The essence of Lucier’s claim is that the words “while perpetrating” are

different than the jury instructions, which require the use of a dangerous weapon

and committing acts constituting robbery. However, the district court is given

broad discretion in phrasing jury instructions. State v. Stallings, 541 N.W.2d 855,

857 (Iowa 1995) (holding the court may use its own words to phrase instructions

if they give full and fair advice of the issues and law that is applicable.). Our

supreme court has defined “perpetration” broadly and also applied that term “to

acts connected with the commission of a crime, including acts occurring after a

crime.” See State v. Pace, 602 N.W.2d 764, 772 (Iowa 1999). Adding the words

“while perpetrating” would not have added a new element to the instructions, and

therefore, objecting would have been meritless.                 “It is axiomatic that

ineffectiveness of counsel may not be predicated on the filing of a meritless

motion.” State v. Ray, 516 N.W.2d 863, 866 (Iowa 1994). Therefore, we find

Lucier’s trial counsel was not ineffective for failing to object to the jury instruction.
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   VI. Pro Se Issues

       Finally, Lucier claims the district court erred by failing to rule on issues

raised in his pro se motion to amend. Lucier raised four ineffective-assistance-

of-counsel claims in his motion to amend: (1) failure to object to jury instructions

regarding robbery in the first degree, (2) failure to argue the merger of burglary

and robbery, (3) failure to argue insufficiency of evidence, and (4) failing to argue

due process was violated by the State’s use of an aiding and abetting theory.

       The district court need not rule specifically on each allegation raised by a

petitioner if the ruling adequately addresses each issue raised. State v. Allen,

402 N.W.2d 438, 441 (Iowa 1987). While the district court did not specifically

address the allegations raised in Lucier’s pro se motion, the ruling in the

postconviction-relief matter did address each issue Lucier raised. The district

court specifically held the jury instructions were proper and that counsel had

made a proper record concerning the instructions and the use of “aiding and

abetting.”

       This finding resolves all of Lucier’s claims.       Lucier’s claim that the

instructions regarding first-degree robbery were improper is clearly resolved by a

finding the instructions submitted to the jury were correct. Lucier’s claim that

merger was not raised is resolved by this finding, as the instructions required

unshared elements to prove burglary and robbery. Thus, if the instructions were

correct, merger would be impossible.

       Lucier’s claim that the evidence was insufficient and that an aiding and

abetting theory was unfairly used against him were also resolved by the district

court’s ruling. Lucier’s evidentiary claim argues evidence was insufficient as the
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only person identified using a gun was a co-defendant. However, because the

instruction regarding aiding and abetting was found to be proper, both these

claims were necessarily addressed by the district court. Therefore, we affirm the

decision of the district court denying Lucier’s application for postconviction relief.

       AFFIRMED.
