IN THE COURT OF APPEALS OF IOWA

No. 16-0647

Filed September 13, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

CODY ALEXANDER PLUMMER,

Defendant-Appellant.

________________________________________________________________

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

Stigler, Judge.

Cody Alexander Plummer appeals from a verdict of guilty on a charge of 

first-degree robbery. AFFIRMED.

R.E. Breckenridge of Breckenridge Law P.C., Ottumwa, for appellant.

Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Special 

Counsel (until withdrawal), and Kevin Cmelik, Assistant Attorney General, for

appellee.

Considered by Danilson, C.J., Tabor, J., and Goodhue, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
2

GOODHUE, Senior Judge.

Cody Alexander Plummer appeals from a verdict of guilty on a charge of 

first-degree robbery. We affirm.

I. Background Facts and Proceedings

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

developed the evening before—Riley Mallett, Myles Anderson, K’Von 

Henderson, Dayton Nelson, and Plummer gathered together to rob the 

Greenwood Pharmacy in Waterloo. The original plan was for Anderson and 

Mallett to enter the premises. About ninety minutes before entry, the plan was 

changed when Anderson backed out and Plummer replaced him. Nelson and 

Henderson were to be getaway 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. 

Anderson possessed a gun that was delivered to Mallett or Plummer after they

arrived at the drug store. Nelson testified that both Mallett and Plummer were 

there and, though he was not positive which one took it, he was certain one of 

them accepted the gun. Henderson proceeded on to the pickup point where he 

was to wait. Mallett and Plummer were both wearing masks when they entered 

the drug store, and Mallett went to the front. A note stated, “Give me all of the 

Xanax and all the Promethazine [and] Codein[e] before I shoot this bitch up.” 

After moving to the back of the drugstore Mallett brandished the gun and verbally 

repeated the note’s commands. The pharmacist, Wes Pilkington, believed the 

handgun looked like the gun police carry and complied with Mallett’s request. 
3

Mallett was wearing a mask, but Pilkington was able to identify him at trial. 

Plummer stayed at the front of the store and asked for money, and the clerk 

complied. 

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

the vehicle Nelson was driving, but Mallett and Plummer were arrested before 

they made it to the getaway vehicle 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,

which were divided among the three of them. 

Law enforcement proceeded to the Nelson residence and were greeted by 

Nelson’s dogs. Henderson and Nelson began to run, but it is unclear whether 

they were trying to restrain the dogs or escape. As Henderson ran, his cell 

phone dropped out of his pocket. Records from the cell phone reflected multiple 

calls among the participants from their respective cell phones immediately before 

the robbery. 

In a post-arrest interview, Plummer described what had happened at the 

drug store in detail and admitted taking money from the drugstore clerk. He said 

he ran out of the back door of the pharmacy and threw the loot into the back of 

the awaiting vehicle. 

Henderson, Mallett, and Plummer were tried together. The trial began 

November 15, 2015, but a mistrial was declared. The second trial began 

February 9, 2016, and ended February 17, 2016, with a verdict of guilty on the 

first-degree robbery charge as to all three defendants. Plummer appeals,

contending there was insufficient evidence to survive a motion for judgment of 
4

acquittal. He has also filed a pro se brief claiming ineffective assistance of 

counsel.

II. Sufficiency of the Evidence

A. Error Preservation

The State does not contest error preservation.

B. Scope and Standard of Review

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

sufficient evidence to support the verdict. State v. Williams, 695 N.W.2d 23, 27 

(Iowa 2005). Sufficiency-of-the-evidence claims are reviewed for errors of law. 

Id. Substantial evidence exists if it would convince a 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

Plummer does not contest the evidence supporting the commission of a 

robbery. His objection concerns the sufficiency of the evidence of a dangerous 

weapon, which was used to support his conviction of first-degree robbery. 

Plummer maintains the State did not prove he knew a dangerous weapon would 

be used in the robbery. 

Plummer was involved in the planning and execution of the robbery. 

Mallett, the other party who entered the pharmacy, was clearly in possession of a 

handgun similar to the one police carry. Plummer was present when the note 

was written that threatened to “shoot the bitch up.” In addition, Nelson testified 
5

that a gun was used and all of the participants knew it would be. He and Mallett 

were there together when the handgun was passed out of the window of the 

automobile Nelson was riding in. Plummer not only knew a gun was involved,

but as an aider and abettor and an active participant, he was subject to being 

charged, tried, and punished as a principal. See Iowa Code § 703.1 (2015). 

Because substantial evidence supports a finding Plummer was guilty of firstdegree robbery, the motion for judgment of acquittal was correctly denied.

III. Ineffective Assistance of Counsel

A. Preservation of Error

An exception to the traditional rules of 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 
6

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 be a determination that but 

for the ineffective assistance there is a reasonable probability that the result 

would have been different. Id. at 145. 

When the record is adequate to make a ruling on ineffective assistance of 

counsel on direct appeal, we are permitted to proceed with a ruling, but 

otherwise, the issue must be preserved for possible postconviction relief. Artzer,

608 N.W.2d at 531.

Initially, there was some difficulty in finding a court-appointed counsel for 

Plummer that did not have a conflict of interest, but as of September 23, 2015, he 

was represented by privately-retained attorneys. His complaint that he was 

initially represented by several different attorneys has no merit.

Each claim of ineffective assistance of counsel will be considered 

separately. 

1. Failure to Pursue a Motion to Sever

Plummer filed a motion to sever but did so at a point where a privatelyretained counsel was becoming involved. The court held the motion in abeyance 

but gave new counsel the right to revive it at counsel’s discretion. New counsel 

never requested the motion to be considered. There is no authority cited for the 

claim Plummer’s trial should have been separated from the other two codefendants. 

Severance is discretionary with the trial court. State v. Snodgrass, 346 

N.W.2d 472, 475 (Iowa 1984). To obtain a severance, an accused must show 
7

sufficient conflict to the point of his defense being irreconcilable and mutually 

exclusive from a co-defendant. Id. The evidence has been completely submitted 

and Plummer has the total record before him, but he has not pointed out where 

the conflict existed and why he is entitled to severance of his trial from his two 

co-defendants. When the court is not directed to the record or authorities 

supporting a contention, an issue may be considered waived. Iowa R. App. P. 

6.903(2)(g)(3).

2. Lack of Pretrial Motions

Plummer maintains that the lack of pretrial motions indicates the 

ineffective assistance of counsel. There is no specification as to what pretrial 

motions Plummer is referring to. Because the allegation is so general, we will not 

address the issue and, instead, leave it for postconviction relief.

3. Myles Anderson’s Previous Criminal Act 

Evidence was admitted that Myles Anderson had been involved in a 

robbery where handguns were taken and never recovered. An objection to the 

testimony was lodged, but it was admitted over the objection—though the 

testimony was strictly limited to only show how possession of a police-style 

handgun was obtained by the co-defendants. Counsel cannot be considered 

ineffective for not objecting when an objection has been lodged and overruled.

4. Failure to Depose Dion Nelson

Dion Nelson was not an accomplice, as Plummer insists, but was allowed 

to testify to the movement of the five participants before and after the robbery. 

Plummer fails to point out why a pretrial deposition would have been helpful to 

his defense. Plummer admitted he was involved in the robbery and gave a 
8

detailed statement of the movements of the different co-defendants that did not 

differ from Dion’s testimony. Plummer has failed to point out what he would have 

gained by counsel deposing Dion or why counsel had a duty to depose him. 

5. Allowing Co-Defendants’ Police Statements into the Record

Plummer contends that allowing statements of the non-testifying codefendants into the record violated his right to confront the witnesses. The issue 

of statements made by non-testifying witnesses was specifically addressed by 

the court after having been raised by defense counsel. The State agreed only to 

use a defendant’s statements if they were self-incriminating rather than those 

statements that incriminated a co-defendant. 

Plummer directs the court to places in the record where he contends the 

State violated its agreement and argues counsel was ineffective for failing to 

object. Two of those times occurred during a hearing held outside the presence 

of the jury. Two other instances concern statements witnesses testified Mallet 

made at the time of the robbery, not statements Mallet made to police. The other 

references Plummer makes concern statements made by Dayton Nelson, the 

State’s primary witness, and Delila Salman—both of whom were subject to crossexamination. Otherwise, he has not directed the court to any place in the record 

that the State violated the agreement regarding statements of the non-testifying 

witnesses.

6. Ineffective Voir Dire or Waiver of the Record of Voir Dire

There is no record to determine whether counsel’s voir dire was ineffective

or inadequate. Plummer’s counsel waived the recording of the voir dire. 
9

Plummer asserts the court erred by allowing the record of the voir dire to 

be waived. The reporting of the voir dire is generally governed by the same rules 

as are applicable to civil actions. Iowa R. Civ. P. 2.19(4). Waiver of the reporting 

of voir dire is permitted by Iowa Rule of Civil Procedure 1.903(2). The court did 

not err in permitting the waiver of the voir dire. 

To the extent counsel may have been ineffective by waiving the reporting 

of the voir dire, Plummer has requested the issue be preserved for postconviction 

relief. His request is granted.

IV. Conclusion

We find the motion for judgment of acquittal was correctly denied and the 

court did not err by permitting the reporting of the voir dire to be waived. We find 

the record inadequate to resolve the allegation of ineffective assistance counsel 

based on a lack of pretrial motions, as well as the allegation counsel was 

ineffective for waiving the record of the voir dire, and we preserve these claims 

for possible postconviction relief. As to his remaining allegations of ineffective 

assistance of counsel, we find the record is adequate to address them on direct 

appeal and those claims are without merit.

AFFIRMED.