                                             IN THE COURT OF APPEALS OF IOWA

                                                            No. 16-0575
                                                     Filed September 13, 2017


                         STATE OF IOWA,
                              Plaintiff-Appellee,
CLERK OF SUPREME COURT




                         vs.

                         K'VON JAMES HENDERSON,
                              Defendant-Appellant.
                         ________________________________________________________________


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

                         Stigler, Judge.



                                K’Von James Henderson appeals from a verdict of guilty on a charge of
SEP 13, 2017




                         first-degree robbery. AFFIRMED.



                                John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

                                K’von James Henderson, Fort Dodge, appellant pro se.
ELECTRONICALLY FILED




                                Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

                         Attorney General, for appellee.



                                Considered by Vogel, P.J., Doyle, 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.

       K’Von James Henderson appeals from a verdict of guilty on a charge of

first-degree robbery. We affirm.

   I. Background Facts and Proceedings

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

developed the evening before—Riley Mallett, Cody Plummer, Myles Anderson,

Dayton Nelson, and Henderson gathered together to rob the Greenwood

Pharmacy in Waterloo. Anderson and Mallett were to do the actual entry, but the

plan was changed when Anderson backed out and Plummer replaced him.

Nelson and Henderson were to be get-away 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.

Henderson proceeded on to the pick-up point where he was to wait. Mallett and

Plummer entered the drug store, and Mallett went to the back and demanded

Xanax and cough syrup with promethazine and codeine.         At the February 9

meeting, it had been agreed that no guns were to be involved—only a note

demanding the pharmacist give them all of the Xanax, Promethazine and

Codeine. It was later decided that to succeed with their plan, a gun was needed.

Anderson had a gun in his possession and made it available to Mallett. Mallett

brandished the gun when making the demand for drugs and threatened to “shoot

this bitch up.” The pharmacist, Wes Pilkington, believed the handgun looked like

the gun police carry and complied with Mallett’s demand. Mallett was wearing a


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mask, but Pilkington was able to identify him at trial. Plummer stayed at the front

of the store and requested money, and the clerk gave him money out of the cash

register.

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

Nelson was driving, but Mallett and Plummer were arrested before they made it

to the getaway car 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. The items that had

been taken were divided among the three of them. Nelson observed Henderson

placing some of the drugs wrapped in tinfoil in his pocket.

       Law enforcement proceeded to the Nelson residence and were greeted by

Nelson’s dogs. Henderson and Nelson began to run. It was unclear whether

they were trying to restrain the dogs or escape, but as Henderson ran, his cell

phone dropped out of his pocket. Records from the phone reflect multiple calls

among the participants, including Henderson, from their respective cell phones

immediately before the robbery. Henderson was searched, and a tinfoil package

containing Xanax was found. The Nelson residence was searched, and drugs

were found that were identified as items taken from the Greenwood Pharmacy.

Henderson initially claimed he had been at the Nelson residence the entire

evening but later indicated he had been driving around for a period of time and

acknowledged that he knew about the robbery before the police had arrived.

       Henderson, Anderson, Mallett, and Plummer were each charged with first-

degree robbery. Nelson became a witness for the State. Henderson, Mallett and

Plummer were tried together. Trial began November 15, 2015, but a mistrial was


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declared. The second trial began February 9, 2016, and ended February 17,

2016. Henderson was convicted of first-degree robbery. He appeals, contending

there was insufficient evidence to survive a judgment for acquittal. He has also

filed a pro se brief claiming ineffective assistance of counsel.

   II. Sufficiency of the Evidence

        A. Error Preservation

        Henderson moved for judgment of acquittal on a timely basis, which was

denied.    Henderson now claims there was a lack of corroboration of an

accomplice’s testimony and there was no evidence a dangerous weapon was

used.

        Error preservation has two components: a timeliness component and a

substantive component. State v. Krogman, 804 N.W.2d 518, 523 (Iowa 2011).

Henderson’s motion raised the claim of a lack of corroboration of the

accomplice’s testimony. It did not raise a claim that there was a lack of evidence

on the dangerous-weapon component of the first-degree robbery charge.

        Henderson asserts the motion can be regarded as a blanket attack that

covers all of the elements of the crime.            An exception to the substantive

component exists when the grounds are obviously understood by the trial court

and counsel, and where there was a total lack of proof of an element. State v.

Williams, 695 N.W.2d 23, 27 (Iowa 2005). The facts of this case do not support

the exception. Error was not preserved on the dangerous weapon issue.

        B. Scope and Standard of Review

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

evidence to support the verdict.      Id.       Sufficiency-of-the-evidence claims are


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reviewed for errors of law. Id. Substantial evidence exists if it would convince

the 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

      “A person may not be convicted upon the testimony of an accomplice or a

solicited person unless corroborated by the evidence which shall tend to connect

the defendant with the commission of the offense . . . .” Iowa R. Crim. P. 2.21(3).

Corroborative evidence need not be strong as long as it fairly connects the

accused with the crime. State v. Berney, 378 N.W.2d 915, 918 (Iowa 1985).

      There is an abundance of evidence supporting Nelson’s testimony and

Henderson’s involvement.      Henderson’s cell phone reflected numerous calls

between him and the other participants immediately before the robbery. He was

at Nelson’s home with part of the proceeds of the robbery. He still had the Xanax

wrapped in tinfoil that Nelson testified he had received when the robbery

proceeds were distributed. The events appeared to have played out exactly as

Nelson had explained.     Dion Nelson, the younger brother of Dayton Nelson,

testified to the meeting of the five participants the evening of the robbery and the

day before. He also testified Henderson asked him to misrepresent his location

at the time of the robbery. Plummer’s girlfriend testified the five men, including

Henderson, all gathered where she and Plummer resided on February 9 and

again on February 10 after 5:00 p.m. There is ample evidence to support the

testimony of Nelson. The motion for arrest of judgment was properly overruled.


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   III. Ineffective Assistance of Counsel

       A. Preservation of Error

       An exception to the traditional 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

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 a determination that but for

the ineffective assistance, there is a reasonable probability the result would have

been different.    Id. at 145.    It is not enough to simply allege counsel’s

performance was inadequate, but the specific instance of inadequacy and how

competent representation would have probably changed the outcome must be


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shown. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). When the record is

adequate to make a ruling on ineffective assistance of counsel on the direct

appeal, the court is permitted to proceed with a ruling, but otherwise, the court

must preserve the claim for postconviction relief. Artzer, 609 N.W.2d at 531.

Preservation of an issue of ineffective assistance for a postconviction proceeding

generally requires some specific reference to something in the record that

supports an ineffective-assistance claim and is not intended to preserve an issue

to simply allow a claimant to conduct a fishing expedition.

      We find the record adequate to address all claims of ineffective assistance

of counsel. We will consider each claim of ineffective assistance of counsel

independently.

      1. Claim of Ineffective Voir Dire

      Henderson waived reporting of the voir dire. He failed to make a record of

the proceedings by either a supplemental statement of the proceedings under

Iowa Rule of Appellate Procedure 6.806 or by creating a bill of exceptions under

Iowa Rule of Criminal Procedure 2.25. There is no record upon which to gauge

or judge his counsel’s ineffectiveness in the voir dire process. The only possible

consideration would be a claim that waiver of reporting the voir dire is per se

ineffective assistance of counsel, but no authority for such a proposition has

been cited. Accordingly we consider the issue waived. See Iowa R. App. P.

6.903(2)(g)(3).




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      2. Henderson Claims the State Did Not Prove That He Had Knowledge or
         an Intent That a Dangerous Weapon Was To Be Used in the
         Commission of the Robbery

      The issue was not raised in the motion for acquittal, but it can still be

considered under the ineffective-assistance rubric.

      Henderson was involved in the planning and execution of the robbery. He

was there when the note threatening to “shoot this bitch up” was written. “All

persons concerned in the commission of a public offense, whether they directly

commit the act constituting the offense or aid or abet its commission, shall be

charged, tried, and punished as principles.” Iowa Code § 703.1 (2015). Nelson

testified they all knew a gun would be used. Whether Henderson knew or did not

know a gun would be involved makes no difference.

      To the extent he claims no gun was involved and makes reference to a bb

gun, Nelson testified he had handled the gun Mallett used and it appeared to be

like a police-issue handgun.    Pilkington testified the gun Mallett used was a

police-style handgun. It is obvious a handgun like police use is a dangerous

weapon. It is not necessary to prove the obvious.

      3. Henderson’s Concern About Confrontation of the Witnesses Relates to
         the Statements of Non-Testifying Witnesses

      The matter was resolved in a pretrial hearing in which the State agreed

not to use any non-testifying defendant’s police interview against anyone but the

defendant making the statement.       Henderson does not claim that the State

violated the agreement but rather contends the result was to exclude statements

non-testifying defendants made that were exculpatory as to him. He contends

that the motion in limine resulting in the State’s agreement to limit the testimony



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of the non-testifying defendants only to statements that incriminated the party

making the statements was ineffective assistance of counsel as to him because

the effect was to eliminate statements other defendants had made that were

exculpatory to him.     The motion in limine and the agreement of the State,

however, addressed only statements incriminating the other defendants and, to

the extent otherwise admissible, placed no limitation on exculpatory statements

made about the other defendants.

         4. Henderson’s Claim of Counsel’s Failure to Take the Deposition of Dion
            Nelson

         Henderson contends that if Dion Nelson’s deposition had been taken, he

could have been impeached with the deposition. Why or how his trial testimony

would be contradictory to what he might have said in a deposition or why the

outcome of the trial would have been different was not contained in Henderson’s

brief.

         5. Henderson’s Claim That Counsel Failed to Object to the Introduction of
            the Criminal Record of Myles Anderson

         There was an objection to the introduction of testimony that Anderson had

previously stolen firearms, including handguns. Finding the testimony to be more

probative than prejudicial, and relevant as to Anderson’s access to a weapon and

where it came from, the court denied counsel’s efforts to exclude the testimony.

The testimony, however, was limited to a law enforcement officer stating he had

participated in investigating a theft of guns that included police-style handguns

and not all of the police-style handguns were recovered.       The officer further

testified Anderson was involved in the robbery.




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       We find no instance of ineffective of assistance of counsel in the above

claims. To the extent Henderson may have raised other defenses in his pro se

brief, they are deemed waived for failing to state with specificity which part of the

record he is relying on and/or for failing to cite any authority. See Iowa R. App.

P. 6.903(2)(g)(3).

   IV. Conclusion

       Henderson’s conviction of first-degree robbery is affirmed.

       AFFIRMED.




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                                               State of Iowa Courts

Case Number                     Case Title
16-0575                         State v. Henderson




Electronically signed on 2017-09-13 08:41:40




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