IN THE COURT OF APPEALS OF IOWA

No.16-0329

Filed April 5, 2017

CASEY DIXON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, 

Judge.

Casey Dixon appeals from the denial of his application for postconviction 

relief. AFFIRMED.

Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee State.

Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

Two 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. 

On 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).

I. Motion to Sever

Dixon 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.” 

Iowa 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).
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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).

The 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 vehicle.
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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 was “bait” money. The bill was found with Dixon.

 Based on this overwhelming evidence of guilt, we conclude Dixon could 

not establish Strickland prejudice.

II. Cross-examination

Dixon contends his trial attorney was ineffective in “failing to adequately 

impeach a state witness.” He argues his attorney should have culled through 

hours of jailhouse recordings for impeachable statements the witness may have 

made. In fact, his attorney questioned the witness about certain statements 

made in those recordings. Dixon does not identify any additional portions of the 

recordings that might have impugned the credibility of the witness. In the 

absence of specificity, we conclude Dixon failed to establish counsel’s breach of 

an essential duty. 

III. Motion to Suppress

Dixon contends his trial attorney was ineffective in failing to file a motion to 

suppress evidence gained during the search of a vehicle in which Dixon was 

riding. He relies on the Iowa Supreme Court’s opinion in State v. Gaskins, 866 

N.W.2d 1 (Iowa 2015). The court there held a search of a safe inside a vehicle 

was not a valid search incident to arrest under article I, section 8 of the Iowa 

Constitution. Gaskins, 866 N.W.2d at 14. 

There is no indication in this record that the officer’s search of the vehicle 

was incident to Dixon’s arrest. A Davenport officer testified she chased a vehicle 

and saw the driver and passenger jump out and head in different directions. She 
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began running after the driver and then decided to return to the vehicle and 

conduct a search. Although she informed other officers to pursue the fleeing 

occupants, she did not explain when they were arrested in relation to her search 

of the vehicle. Gaskins is inapposite. 

Gaskins does not control the disposition for an additional reason. The 

opinion was filed several years after Dixon was charged and the opinion 

overruled extant precedent. Id. at 15-16 (overruling State v. Sanders, 312 

N.W.2d 534, 539 (Iowa 1981)). Dixon concedes his attorney was not charged 

with clairvoyance. We conclude counsel breached no essential duty in failing to 

predict the holding of Gaskins, determine it applied to Dixon’s circumstances, 

and file a motion to suppress.

IV. Jury Instruction

Dixon contends his attorney was ineffective in failing to request an 

eyewitness identification instruction. See United States v. Telfaire, 469 F.2d 552, 

555 (D.C. Cir. 1972) (“[W]e have pointed out the importance of and need for a 

special instruction on the key issue of identification, which emphasizes to the jury 

the need for finding that the circumstances of the identification are convincing 

beyond a reasonable doubt.”); State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994) 

(stating such an eyewitness instruction is in accordance with Telfaire). In Hohle,

the court held the subject encompassed in a Telfaire instruction was adequately 

covered in these instructions. Hohle, 510 N.W.2d at 849. Here, the jury received 

a reasonable doubt instruction and a credibility instruction. Accordingly, we 

conclude counsel did not breach an essential duty in failing to seek a Telfaire

instruction.
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We affirm the district court’s denial of Dixon’s postconviction relief 

application.

AFFIRMED.