from the Iowa District Court for Scott County, Thomas G.
Dixon appeals from the denial of his application for
postconviction relief. AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
Davenport convenience stores were robbed within four days.
The State charged Casey Dixon with two counts of
second-degree robbery, and a jury found him guilty as
charged. Dixon filed a direct appeal, which was dismissed as
frivolous. Dixon then filed an application for postconviction
relief. The district court denied the application following
an evidentiary hearing.
appeal, Dixon argues his trial attorney was ineffective in
failing to (1) file a motion to sever the two robbery counts;
(2) adequately impeach a State witness; (3) file a motion to
suppress evidence; and (4) request an eyewitness
identification instruction. To succeed, Dixon must show (1)
his attorney's"performance was deficient" and
(2) prejudice resulted. Strickland v.Washington, 466
U.S. 668, 687 (1984). Our review is de novo. Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015).
Motion to Sever
contends his trial attorney should have moved to sever the
two robbery charges based on the "lack of similarities
between" them. He asserts the robberies "were not
in geographic proximity to one another, being over six miles
apart, and the robberies occurred four days apart."
Rule of Criminal Procedure 2.6(1) permits the prosecution of
two or more public offenses in a single trial if the offenses
"ar[o]se from the same transaction or occurrence or from
two or more transactions or occurrences constituting parts of
a common scheme or plan." "A common scheme or plan
requires more than the commission of two similar
transgressions by a single person." State v.
Oetken, 613 N.W.2d 679, 688 (Iowa 2000).
Assuming without deciding Dixon's trial attorney breached
an essential duty in failing to move for severance of the two
charges, there is no reasonable probability of a different
outcome. The jury was instructed on how to consider multiple
counts. See State v. Burrage, No. 09-1042, 2010 WL
2757345, at *5 (Iowa Ct. App. July 14, 2010) (finding no
prejudice where the State elicited testimony concerning the
reliability of eyewitness testimony and the marshalling
instruction informed the jury of the State's burden of
proof); State v. Ford, No. 02-1056, 2004 WL 1898240,
at *2 (Iowa Ct. App. Aug. 26, 2004) (noting eyewitness
instruction was unnecessary where the jury received a general
instruction on the credibility of witnesses). In addition,
the record contains overwhelming evidence of guilt. See
State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006)
("The most important factor under the test for prejudice
is the strength of the State's case."); Wemark
v. State, 602 N.W.2d 810, 817-18 (Iowa 1999) (finding no
prejudice where overwhelming evidence supported certain
elements of the crime).
cashier at the first convenience store testified a man
entered the store with a gun and bag as she was about to
close up, he robbed the store of $166 and cartons of Newport
cigarettes, and he stole her purse, which contained various
items, including an MP3 player. Davenport police officers
subsequently retrieved the MP3 player from the van in which
Dixon was riding. The cashier conclusively identified it as
hers based on a serial number matching the number on her
owners' manual. Davenport officers also retrieved a bag
covered with basketball team logos. The cashier recognized
the bag as the bag brought into the store. Officers found
Dixon's identification cards inside the bag, Newport
cigarette cartons in the van, and Dixon hiding near the
cashier at the second convenience store testified to a
robbery in which cash and cigarettes were stolen. Included in
the stolen cash was a $2 bill, which an employee testified