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.2

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 a n application for postconviction relief

. T he 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) p rejudice 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 offe nses 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)

.3

A ssuming without deciding Dixon’s trial attorney breached an essential duty in failing to move for severance of the two charges, there is no reasonable probabi lity 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 relia bility 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) ( “T he 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).
T he cashier at the first convenience store testified a man entered t he 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 M P3 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. O fficers found Dixon’s identification cards inside the bag , Newport cigarette cartons in the van, a nd Dixon hiding near the vehicle

.4

The cashier at the second convenience store testified to a robber y in which cash and cigarettes were stolen. Included in the stolen cash was a $2 bill,
which a n 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 portion s 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. 2 d 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. She5

began running after the driver and then decided to return to the ve hicle 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 breach ed 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 w as ineffective in failing to request a n eyewit ness 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 emphasize s 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, w e conclude coun sel did not breach an essential duty in failing to seek a Telfaire instruction.6 We affirm the district court’s denial of Dixon’s postconviction relief application.
AFFIRMED.