State of Iowa v. K'Von James Henderson ( 2018 )

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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