                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0365
                              Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT EARL RIVERS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Angela L. Doyle,

District Associate Judge.



      Robert Rivers Jr. appeals his convictions of eluding and driving while

barred. AFFIRMED.



      Amy Moore of Mid-Iowa Mediation and Law PLLC, Ames, until withdrawal,

and then John Dirks of Dirks Law Firm, Ames, for appellant.

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

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Mullins, JJ.
                                            2


MULLINS, Judge.

       Robert Rivers Jr. appeals his convictions of eluding and driving while

barred. He argues (1) the district court’s denial of his Batson1 challenge violated

his right to equal protection under the federal constitution, (2) the use of

peremptory strikes under Iowa Rule of Criminal Procedure 2.18 violates due

process and the right to an impartial jury under the state and federal constitutions,

(3) the State failed to provide sufficient evidence to support the charges and the

court therefore erred in denying his motions for judgment of acquittal,2 and (4) his

counsel rendered ineffective assistance in failing to object to testimony and

evidence derived from the forensic examination of a cellular phone.

I.     Background Facts and Proceedings

       Upon the evidence presented at trial, a rational jury could make the

following factual findings. At approximately 2:00 a.m. on June 3, 2017, Officer

Steck of the Fort Dodge Police Department was on routine patrol when he came

into contact with a white Pontiac SUV. Steck is familiar with Rivers from previous

encounters, and Steck identified Rivers as the driver of the Pontiac.               Steck

contacted Officer Burns concerning the status of Rivers’s driver’s license. Burns


1
  See generally Batson v. Kentucky, 476 U.S. 79 (1986).
2
  In conjunction with his sufficiency-of-the-evidence challenge, Rivers also contends the
court abused its discretion in denying his motion for a new trial on weight-of-the-evidence
grounds. Although Rivers provides boilerplate citations to legal authorities concerning the
weight of the evidence, he provides no free-standing substantive argument concerning the
weight of the evidence and only variously argues “[t]he jury’s verdict was not supported
by the weight of the evidence.” We deem the weight-of-the-evidence argument waived.
See, e.g., Iowa R. App. P. 6.903(2)(g)(3); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa
1996); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). In any
event, upon our review of the evidence, we find this is not one of those “exceptional cases
in which the evidence preponderates heavily against the verdict.” See State v. Reeves,
670 N.W.2d 199, 202 (Iowa 2003) (quoting State v. Ellis, 578 N.W.2d 655, 659 (Iowa
1998)).
                                          3


is also familiar with Rivers from “prior dealings.” Burns was in the area, so he

proceeded to the vicinity of Steck’s location. Burns located the Pontiac and began

following it, after which it pulled into the parking lot of a local bar. Steck also saw

the Pontiac near the bar, and he again identified Rivers as the driver at the time.

Rivers parked in the bar’s parking lot. Burns verified through dispatch that Rivers’s

driver’s license was barred. The officers situated themselves nearby and waited

for Rivers to leave the bar. About five minutes later, both officers observed the

Pontiac leave the bar. Both officers were able to again identify Rivers as the driver.

Burns attempted to initiate a traffic stop, after which Rivers led Burns and Steck on

a high-speed pursuit. Rivers eventually ran his vehicle into a house, but he was

able to flee the scene on foot. Officers were not able to locate him in the area.

       Subsequent investigation revealed the Pontiac was registered to Rivers’s

sister, Dominick. Officers located a cellular phone on the driver’s side floorboard

of the Pontiac. A search warrant was obtained authorizing forensic analysis of the

cell phone. A Cellebrite program was used to extract data from the phone, which

revealed a google email account was associated with the phone. In response to

a subpoena, Google identified Rivers as the owner of the account. The phone

number of the phone was also identified. Rivers provided the same phone number

as his contact information to his community treatment coordinator with the

department of correctional services.       The phone’s text messages were also

extracted. One message received by the phone less than a day before the pursuit

was addressed to “Rob.” Dominick, testified on behalf of the defense that the

phone found in the vehicle belonged to her son. On cross-examination, she

conceded none of her children go by the name of Rob.
                                          4


       A representative of the department of transportation (DOT) testified Rivers’s

driver’s license was barred on the date in question. When asked on cross-

examination if she could provide records showing Rivers was mailed a notice

concerning the barred status of his drivers’ license, the representative responded

in the affirmative and provided defense counsel with the certified barment and

proof of mailing.3

       Rivers was charged by trial information with aggravated eluding and driving

while barred in connection with the foregoing events. A trial was held in December

2017. During jury selection, defense counsel lodged a Batson challenge as to the

State’s striking of a juror, the only African American seated on the jury panel, and

additionally argued “discretionary strikes . . . are unconstitutional” under the state

and federal constitutions. The court overruled both objections. The court also

overruled Rivers’s motions for judgment of acquittal made during trial. A jury

ultimately found Rivers guilty as charged.

       Rivers filed a combined motion for new trial or in arrest of judgment arguing

(1) the verdict was contrary to the weight of the evidence, (2) the court erred in

denying his motions for judgment of acquittal, (3) the court erred in overruling his

Batson challenge, and (4) the use of peremptory challenges violated his rights to

a fair trial and due process. The court denied the motion. Rivers appealed

following the imposition of sentence.




3
  Neither of these documents were admitted into evidence, but defense counsel
discontinued questioning the witness after reviewing the documents.
                                              5


II.    Batson Challenge and Peremptory Strikes

       Prior to trial, the court and parties met concerning jury selection. The parties

agreed the jury panel would consist of twenty-three individuals, with the last three

being prospective alternate jurors, and each party would be entitled to four

peremptory strikes to be used as to the first twenty prospective jurors, and then

each party could use a fifth strike for one of the three potential alternate jurors,

resulting in a petit jury of twelve principal jurors and one alternate. See Iowa R.

Crim. P. 2.18(1), (9), (15)(a). At the outset, juror 11 was excused for cause and

replaced by juror 24. The prosecutor then surveyed the jury concerning whether

they knew anyone involved in the case, the defendant, State’s witnesses,

attorneys, or the presiding judge. A number of the jurors noted their familiarity with

the prosecutors, presiding judge, and one State’s witness, but all such jurors

indicated such familiarity would not hinder their ability to consider the case

impartially.4 Thereafter, juror 13 was stricken for cause and was replaced by juror

25, who is African American. When juror 25 joined the prospective panel, the

prosecutor inquired whether he knew anyone involved in the case. Juror 25

responded in the affirmative, noting he knew Rivers and his family, specifying he



4
  Specifically, juror 1 noted she thought she met the prosecutors through her husband, an
attorney, but confirmed such would not hinder her impartiality. Juror 6 acknowledged he
was familiar with the prosecutors, the judge, and one of the testifying officers, but noted
such familiarity would not have any effect on his review of the case. Juror 18 noted his
cousin was employed with the county attorney’s office, but such would not result in any
bias in relation to the case. Jurors 8, 10 and 20 confirmed they were familiar with the
presiding judge, but acknowledged it would not affect their ability to consider the case
fairly. None of the initial jurors were familiar with Rivers, defense counsel, or the remaining
witnesses. Juror 21 later identified her husband is a chaplain for law enforcement. During
the defense’s voir dire, juror 17 noted she was familiar with defense counsel’s wife, as she
represented the juror’s son’s ex-wife in dissolution proceedings. None of the potential
jurors were familiar with the witnesses for the defense.
                                          6


is a friend of the family. Juror 25 responded in the negative when asked whether

his relationship to Rivers and his family “would keep him from being fair and

impartial in deciding the case.”

       Both sides ultimately passed the jury for cause and proceeded to exercise

their strikes under Iowa Rule of Criminal Procedure 2.18(9). The State struck juror

25 for its third strike, immediately after which defense counsel requested a

conference outside the presence of the jury. During the ensuing conference,

defense counsel lodged a Batson challenge as to the State’s strike of juror 25, the

only African American person seated on the jury panel, and additionally argued

“discretionary strikes . . . are unconstitutional” as a violation of due process under

the state and federal constitutions. Counsel specifically accused the State of

striking juror 25 simply “because he is black.” The State responded the strike had

nothing to do with race, but was based on the juror’s statement “that he has a

relationship with the defendant and his family.”

       Thereafter, in support of his prima facie case of a Batson violation, defense

counsel simply argued, “we have one black juror, that black juror was stricken.”

The State responded by reasserting juror 25 was struck due to his relationship with

Rivers and his family, and added that Rivers intended to call his sister, another

person the juror would be familiar with, as a witness. The State argued it “would

make that strike in every single jury trial, regardless of the juror’s race and

regardless of the defendant’s race.”

       The court rejected the argument that the use of peremptory strikes amounts

to a constitutional violation. As to the Batson challenge, the court found Rivers
                                           7


failed to establish a prima facie case for a violation or, alternatively, the State

provided a sufficient race-neutral reason for the strike that was not pretextual.

       On appeal, Rivers, who is African American, argues the States peremptory

strike of juror 25, the only African American person on the jury panel, violated his

right to equal protection under the federal constitution, and the district court erred

in not concluding the same. Appellate review of such a claim is de novo. See

State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App. 1995).

       “In Batson, the United States Supreme Court held that the equal protection

clause of the fourteenth amendment prevents a prosecutor from using peremptory

strikes to challenge potential jurors ‘solely on account of their race.’” State v.

Griffin, 564 N.W.2d 370, 375 (Iowa 1997) (quoting Batson, 476 U.S. at 89); accord

Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (“The ‘Constitution forbids

striking even a single prospective juror for a discriminatory purpose.’” (quoting

Snyder v. Louisiana, 552 U.S. 472, 478 (2008))); State v. Mootz, 808 N.W.2d 207,

215 (Iowa 2012) (noting Batson prohibits “purposeful racial discrimination” through

use of peremptory strikes). The Court has provided a three-step framework for

ascertaining when a peremptory strike is discriminatory:

       First, a defendant must make a prima facie showing that a
       peremptory challenge has been exercised on the basis of race;
       second, if that showing has been made, the prosecution must offer a
       race-neutral basis for striking the juror in question; and third, in light
       of the parties’ submissions, the trial court must determine whether
       the defendant has shown purposeful discrimination.

Foster, 136 S. Ct. at 1747 (quoting Snyder, 552 U.S. at 476–77).

       A defendant may “establish a prima facie case by showing that the

prosecution’s use of its peremptory challenges and any other relevant
                                         8


circumstances raise an inference that the government excluded prospective jurors

on the basis of their race.” State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990). In

support of his prima facie case, Rivers argues on appeal that discrimination can

be inferred because juror 25 was the only African American person on the panel,

he stated he could serve impartially, and the State did not strike other jurors who

were familiar with other people involved in the case. “In determining whether a

defendant has established the requisite showing of purposeful discrimination, the

court should consider all relevant circumstances including, but not limited to, a

pattern of strikes against black jurors, as well as the prosecutor’s questions and

statements during voir dire.” Id.

       Upon our de novo review of the record, we agree with the district court that

the circumstances do not give rise to an inference of racial discrimination in the

State’s use of peremptory challenges. The very first question the State asked the

prospective jurors during voir dire was as follows: “[D]oes anybody have any

knowledge or outside knowledge before coming into the courtroom today about

Robert Rivers Jr. or the case in the courtroom today?” The fact that this was the

State’s first inquiry makes quite clear that the State’s principal concern was

excluding jurors familiar with the defendant or the facts of the case. At the end of

the day, juror 25 was the only juror falling in this category.        We find the

circumstances here do not give rise to an inference of discrimination, and Rivers

therefore failed to establish a prima facie case to support his Batson challenge.

       On appeal, Rivers does not challenge the sufficiency of the State’s race-

neutral reason. To the extent he challenges the denial of his challenge on the third

Batson step, we conclude Rivers failed to meet his burden to show the “stated
                                          9

reason constitutes a pretext for racial discrimination.” See Mootz, 808 N.W.2d at

219 (quoting Hernandez v. New York, 500 U.S. 352, 363 (1991)).

       Next, Rivers argues the use of peremptory strikes amounts to violations of

his constitutional rights to due process and a fair trial. As to this argument, Rivers

essentially argues Batson is a “test without teeth” and this court “should impose

more stringent protections of his right to due process and a fair and impartial jury

under the Iowa Constitution than are afforded under the United States Constitution

and Batson.” Upon of our review of the argument, we agree with the State that

“Rivers has failed to demonstrate that nebulous concerns about Batson warrant

abandoning Iowa’s traditional approach to peremptory challenges, which enable

all litigants to protect themselves from unspoken bias that may infect

deliberations.” Other than his all-encompassing argument that the peremptory-

strike system is unconstitutional, Rivers has simply failed to provide us with a

specific or concrete reason why or how it is so, or how the district court erred in

rejecting his vague claim below. See In re C.B., 611 N.W.2d 489, (Iowa 2000) (“A

broad, all encompassing argument is insufficient to identify error in cases of de

novo review.”). We affirm the district court’s rulings relative to jury selection and

peremptory strikes.

III.   Sufficiency of the Evidence

       Following the State’s case-in-chief, Rivers moved for judgment of acquittal.

As to both counts, he argued there was insufficient evidence to show he was the

driver of the Pontiac on the night in question. As to the driving-while-barred charge,

he argued there was insufficient evidence to prove the DOT mailed him notice of

his barment. The court denied the motion. Rivers renewed the motion on the
                                         10


same grounds following the presentation of the evidence for the defense. The

motion was likewise overruled. On appeal, Rivers echoes the arguments he raised

in the district court, contending the evidence was insufficient to show he was the

driver of the vehicle in question, or that he had notice of the barred status of his

driver’s license.

       Challenges to the sufficiency of the evidence are reviewed for corrections

of errors at law. State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). The

court views “the evidence ‘in the light most favorable to the State, including all

reasonable inferences that may be fairly drawn from the evidence.’” State v. Ortiz,

905 N.W.2d 174, 180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490

(Iowa 2017)). All evidence is considered, not just that of an inculpatory nature.

See Huser, 894 N.W.2d at 490. “[W]e will uphold a verdict if substantial evidence

supports it.” State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (quoting State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “Evidence is substantial if, ‘when

viewed in the light most favorable to the State, it can convince a rational jury that

the defendant is guilty beyond a reasonable doubt.’” Id. (quoting Ramirez, 895

N.W.2d at 890). Evidence is not rendered insubstantial merely because it might

support a different conclusion; the only question is whether the evidence supports

the finding actually made. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788

N.W.2d 386, 393 (Iowa 2010).         In considering a sufficiency-of-the-evidence

challenge, “[i]t is not the province of the court . . . to resolve conflicts in the

evidence, to pass upon the credibility of witnesses, to determine the plausibility of

explanations, or to weigh the evidence; such matters are for the [factfinder].” State
                                         11

v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams, 695

N.W.2d 23, 28 (Iowa 2005)).

       The State bears the burden of proving every element of a charged offense.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Rivers does not

challenge the marshalling instructions employed at trial for the charged crimes. As

such, the instructions serve as the law of the case for purposes of reviewing the

sufficiency of the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct.

App. 2018). As to both counts, Rivers argues the evidence was insufficient to show

he was the driver of the suspect vehicle on the night in question. The jury was

instructed the State was required to prove Rivers was driving or operated a vehicle

on the night in question. As to identity, Rivers complains the evidence presented

by the State was wholly circumstantial, the officers’ eyewitness identifications of

him driving are not credible, and the evidence was insufficient to show the phone

found in the vehicle belonged to him.

       Viewing the evidence in a light most favorable to the State and verdict, as

we must, we find the evidence was sufficient to convince a rational jury that Rivers

was the driver of the Pontiac on the night in question. First, the jury was instructed

that “[t]he law makes no distinction between direct evidence and circumstantial

evidence.” Accord Kelso-Christy, 911 N.W.2d at 668 (“Direct and circumstantial

evidence are equally probative.” (citation omitted)).      Both officers, who were

familiar with Rivers, identified him as the driver. Likewise, the cell phone found in

the car was linked to Rivers through its google account, a recent text message

contained in the phone, and the fact that Rivers provided the phone’s number as

his contact information to a state official. The evidence supports the jury’s verdict.
                                         12


       As to the driving-while-barred charge, Rivers argues there “was insufficient

evidence that [he] was either provided notice of his barred status by the [DOT] or

that he had actual knowledge of his barred status.” As noted, Rivers did not and

does not challenge the marshalling instruction provided to the jury for driving while

barred, and it therefore serves as the law of the case for purposes of reviewing the

sufficiency of the evidence. See Banes, 910 N.W.2d at 639. The instruction did

not require the State to prove Rivers had notice or knowledge of the status of his

license. Instead, it only required the State to prove Rivers’s license “was barred

at the time of operation.” The evidence was clearly sufficient to support the State’s

establishment of the instructed element, and Rivers appears to concede as much.

In any event, our supreme court recently clarified notice to a defendant of the

barred status of his driver’s license is not an essential element of driving while

barred. See State v. Williams, 910 N.W.2d 586, 594 (Iowa 2018). We affirm the

denial of Rivers’s motions for judgment of acquittal.

IV.    Ineffective Assistance of Counsel

       Finally, Rivers argues his trial counsel rendered ineffective assistance in

failing to object to evidence admitted concerning the forensic examination of the

cellular phone found in the vehicle. Ineffective-assistance-of-counsel claims are

immune from error-preservation defects. See State v. Fountain, 786 N.W.2d 260,

263 (Iowa 2010). We review such claims de novo. State v. Albright, 925 N.W.2d

144, 151 (Iowa 2019). Rivers “must establish by a preponderance of the evidence

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

resulted in prejudice.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting

State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v.
                                           13

Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice

prong or breach of duty first, and failure to find either one will preclude relief.” State

v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d

159, 169 (Iowa 2015)).

       Rivers essentially argues counsel should have objected because the State

failed to “establish a chain of custody justifying the admission of evidence . . .

making it reasonably probable that tampering, substitution or alteration of evidence

did not occur.”    He further argues “the contents of cellular phones are very

susceptible to alteration, as the data they contain are accessible as long as the

phone remains connected to [a] cellular network or the internet.”

       Upon our de novo review of the record, even assuming counsel could have

successfully prevented the evidence from being admitted, we find no “reasonable

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

would have been different.” Krogmann v. State, 914 N.W.2d 293, 313 (Iowa 2018)

(quoting Strickland, 466 U.S. at 694). Even ignoring the entirety of the cell phone

evidence, we find the jury would have still had sufficient evidence upon which to

conclude Rivers was the driver of the vehicle on the night in question, and we have

no reason to believe it would not have done so. The evidence, although largely

circumstantial, was overwhelming and generally unchallenged. Consequently,

Rivers was not prejudiced by his counsel’s alleged breach, and Rivers is not

entitled to relief on his claim. See McNeal, 897 N.W.2d 697 at 703.

V.     Conclusion

       We affirm Rivers’s convictions of eluding and driving while barred.

       AFFIRMED.
