IN THE COURT OF APPEALS OF IOWA
No. 18-0365 Filed May 15, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
ROBERT EARL RIVERS JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
District Associate Judge.
Robert Rivers Jr. appeals his convictions of eluding and driving while
barred. AFFIRMED.
Amy Moore of Mid-Iowa Mediation and Law PLLC, Ames, until withdrawal,
and then John Dirks of Dirks Law Firm, Ames, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Mullins, JJ. 2
MULLINS, Judge.
Robert Rivers Jr. appeals his convictions of eluding and driving while
barred. He argues (1) the district court’s denial of his Batson1 challenge violated
his right to equal protection under the federal constitution, (2) the use of
peremptory strikes under Iowa Rule of Criminal Procedure 2.18 violates due
process and the right to an impartial jury under the state and federal constitutions,
(3) the State failed to provide sufficient evidence to support the charges and the
court therefore erred in denying his motions for judgment of acquittal,2 and (4) his
counsel rendered ineffective assistance in failing to object to testimony and
evidence derived from the forensic examination of a cellular phone.
I. Background Facts and Proceedings
Upon the evidence presented at trial, a rational jury could make the
following factual findings. At approximately 2:00 a.m. on June 3, 2017, Officer
Steck of the Fort Dodge Police Department was on routine patrol when he came
into contact with a white Pontiac SUV. Steck is familiar with Rivers from previous
encounters, and Steck identified Rivers as the driver of the Pontiac. Steck
contacted Officer Burns concerning the status of Rivers’s driver’s license. Burns
1 See generally Batson v. Kentucky, 476 U.S. 79 (1986). 2 In conjunction with his sufficiency-of-the-evidence challenge, Rivers also contends the court abused its discretion in denying his motion for a new trial on weight-of-the-evidence grounds. Although Rivers provides boilerplate citations to legal authorities concerning the weight of the evidence, he provides no free-standing substantive argument concerning the weight of the evidence and only variously argues “[t]he jury’s verdict was not supported by the weight of the evidence.” We deem the weight-of-the-evidence argument waived. See, e.g., Iowa R. App. P. 6.903(2)(g)(3); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996); Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). In any event, upon our review of the evidence, we find this is not one of those “exceptional cases in which the evidence preponderates heavily against the verdict.” See State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (quoting State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998)). 3
is also familiar with Rivers from “prior dealings.” Burns was in the area, so he
proceeded to the vicinity of Steck’s location. Burns located the Pontiac and began
following it, after which it pulled into the parking lot of a local bar. Steck also saw
the Pontiac near the bar, and he again identified Rivers as the driver at the time.
Rivers parked in the bar’s parking lot. Burns verified through dispatch that Rivers’s
driver’s license was barred. The officers situated themselves nearby and waited
for Rivers to leave the bar. About five minutes later, both officers observed the
Pontiac leave the bar. Both officers were able to again identify Rivers as the driver.
Burns attempted to initiate a traffic stop, after which Rivers led Burns and Steck on
a high-speed pursuit. Rivers eventually ran his vehicle into a house, but he was
able to flee the scene on foot. Officers were not able to locate him in the area.
Subsequent investigation revealed the Pontiac was registered to Rivers’s
sister, Dominick. Officers located a cellular phone on the driver’s side floorboard
of the Pontiac. A search warrant was obtained authorizing forensic analysis of the
cell phone. A Cellebrite program was used to extract data from the phone, which
revealed a google email account was associated with the phone. In response to
a subpoena, Google identified Rivers as the owner of the account. The phone
number of the phone was also identified. Rivers provided the same phone number
as his contact information to his community treatment coordinator with the
department of correctional services. The phone’s text messages were also
extracted. One message received by the phone less than a day before the pursuit
was addressed to “Rob.” Dominick, testified on behalf of the defense that the
phone found in the vehicle belonged to her son. On cross-examination, she
conceded none of her children go by the name of Rob. 4
A representative of the department of transportation (DOT) testified Rivers’s
driver’s license was barred on the date in question. When asked on cross-
examination if she could provide records showing Rivers was mailed a notice
concerning the barred status of his drivers’ license, the representative responded
in the affirmative and provided defense counsel with the certified barment and
proof of mailing.3
Rivers was charged by trial information with aggravated eluding and driving
while barred in connection with the foregoing events. A trial was held in December
2017. During jury selection, defense counsel lodged a Batson challenge as to the
State’s striking of a juror, the only African American seated on the jury panel, and
additionally argued “discretionary strikes . . . are unconstitutional” under the state
and federal constitutions. The court overruled both objections. The court also
overruled Rivers’s motions for judgment of acquittal made during trial. A jury
ultimately found Rivers guilty as charged.
Rivers filed a combined motion for new trial or in arrest of judgment arguing
(1) the verdict was contrary to the weight of the evidence, (2) the court erred in
denying his motions for judgment of acquittal, (3) the court erred in overruling his
Batson challenge, and (4) the use of peremptory challenges violated his rights to
a fair trial and due process. The court denied the motion. Rivers appealed
following the imposition of sentence.
3 Neither of these documents were admitted into evidence, but defense counsel discontinued questioning the witness after reviewing the documents. 5
II. Batson Challenge and Peremptory Strikes
Prior to trial, the court and parties met concerning jury selection. The parties
agreed the jury panel would consist of twenty-three individuals, with the last three
being prospective alternate jurors, and each party would be entitled to four
peremptory strikes to be used as to the first twenty prospective jurors, and then
each party could use a fifth strike for one of the three potential alternate jurors,
resulting in a petit jury of twelve principal jurors and one alternate. See Iowa R.
Crim. P. 2.18(1), (9), (15)(a). At the outset, juror 11 was excused for cause and
replaced by juror 24. The prosecutor then surveyed the jury concerning whether
they knew anyone involved in the case, the defendant, State’s witnesses,
attorneys, or the presiding judge. A number of the jurors noted their familiarity with
the prosecutors, presiding judge, and one State’s witness, but all such jurors
indicated such familiarity would not hinder their ability to consider the case
impartially.4 Thereafter, juror 13 was stricken for cause and was replaced by juror
25, who is African American. When juror 25 joined the prospective panel, the
prosecutor inquired whether he knew anyone involved in the case. Juror 25
responded in the affirmative, noting he knew Rivers and his family, specifying he
4 Specifically, juror 1 noted she thought she met the prosecutors through her husband, an attorney, but confirmed such would not hinder her impartiality. Juror 6 acknowledged he was familiar with the prosecutors, the judge, and one of the testifying officers, but noted such familiarity would not have any effect on his review of the case. Juror 18 noted his cousin was employed with the county attorney’s office, but such would not result in any bias in relation to the case. Jurors 8, 10 and 20 confirmed they were familiar with the presiding judge, but acknowledged it would not affect their ability to consider the case fairly. None of the initial jurors were familiar with Rivers, defense counsel, or the remaining witnesses. Juror 21 later identified her husband is a chaplain for law enforcement. During the defense’s voir dire, juror 17 noted she was familiar with defense counsel’s wife, as she represented the juror’s son’s ex-wife in dissolution proceedings. None of the potential jurors were familiar with the witnesses for the defense. 6
is a friend of the family. Juror 25 responded in the negative when asked whether
his relationship to Rivers and his family “would keep him from being fair and
impartial in deciding the case.”
Both sides ultimately passed the jury for cause and proceeded to exercise
their strikes under Iowa Rule of Criminal Procedure 2.18(9). The State struck juror
25 for its third strike, immediately after which defense counsel requested a
conference outside the presence of the jury. During the ensuing conference,
defense counsel lodged a Batson challenge as to the State’s strike of juror 25, the
only African American person seated on the jury panel, and additionally argued
“discretionary strikes . . . are unconstitutional” as a violation of due process under
the state and federal constitutions. Counsel specifically accused the State of
striking juror 25 simply “because he is black.” The State responded the strike had
nothing to do with race, but was based on the juror’s statement “that he has a
relationship with the defendant and his family.”
Thereafter, in support of his prima facie case of a Batson violation, defense
counsel simply argued, “we have one black juror, that black juror was stricken.”
The State responded by reasserting juror 25 was struck due to his relationship with
Rivers and his family, and added that Rivers intended to call his sister, another
person the juror would be familiar with, as a witness. The State argued it “would
make that strike in every single jury trial, regardless of the juror’s race and
regardless of the defendant’s race.”
The court rejected the argument that the use of peremptory strikes amounts
to a constitutional violation. As to the Batson challenge, the court found Rivers 7
failed to establish a prima facie case for a violation or, alternatively, the State
provided a sufficient race-neutral reason for the strike that was not pretextual.
On appeal, Rivers, who is African American, argues the States peremptory
strike of juror 25, the only African American person on the jury panel, violated his
right to equal protection under the federal constitution, and the district court erred
in not concluding the same. Appellate review of such a claim is de novo. See
State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App. 1995).
“In Batson, the United States Supreme Court held that the equal protection
clause of the fourteenth amendment prevents a prosecutor from using peremptory
strikes to challenge potential jurors ‘solely on account of their race.’” State v.
Griffin, 564 N.W.2d 370, 375 (Iowa 1997) (quoting Batson, 476 U.S. at 89); accord
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (“The ‘Constitution forbids
striking even a single prospective juror for a discriminatory purpose.’” (quoting
Snyder v. Louisiana, 552 U.S. 472, 478 (2008))); State v. Mootz, 808 N.W.2d 207,
215 (Iowa 2012) (noting Batson prohibits “purposeful racial discrimination” through
use of peremptory strikes). The Court has provided a three-step framework for
ascertaining when a peremptory strike is discriminatory:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Foster, 136 S. Ct. at 1747 (quoting Snyder, 552 U.S. at 476–77).
A defendant may “establish a prima facie case by showing that the
prosecution’s use of its peremptory challenges and any other relevant 8
circumstances raise an inference that the government excluded prospective jurors
on the basis of their race.” State v. Knox, 464 N.W.2d 445, 448 (Iowa 1990). In
support of his prima facie case, Rivers argues on appeal that discrimination can
be inferred because juror 25 was the only African American person on the panel,
he stated he could serve impartially, and the State did not strike other jurors who
were familiar with other people involved in the case. “In determining whether a
defendant has established the requisite showing of purposeful discrimination, the
court should consider all relevant circumstances including, but not limited to, a
pattern of strikes against black jurors, as well as the prosecutor’s questions and
statements during voir dire.” Id.
Upon our de novo review of the record, we agree with the district court that
the circumstances do not give rise to an inference of racial discrimination in the
State’s use of peremptory challenges. The very first question the State asked the
prospective jurors during voir dire was as follows: “[D]oes anybody have any
knowledge or outside knowledge before coming into the courtroom today about
Robert Rivers Jr. or the case in the courtroom today?” The fact that this was the
State’s first inquiry makes quite clear that the State’s principal concern was
excluding jurors familiar with the defendant or the facts of the case. At the end of
the day, juror 25 was the only juror falling in this category. We find the
circumstances here do not give rise to an inference of discrimination, and Rivers
therefore failed to establish a prima facie case to support his Batson challenge.
On appeal, Rivers does not challenge the sufficiency of the State’s race-
neutral reason. To the extent he challenges the denial of his challenge on the third
Batson step, we conclude Rivers failed to meet his burden to show the “stated 9
reason constitutes a pretext for racial discrimination.” See Mootz, 808 N.W.2d at
219 (quoting Hernandez v. New York, 500 U.S. 352, 363 (1991)).
Next, Rivers argues the use of peremptory strikes amounts to violations of
his constitutional rights to due process and a fair trial. As to this argument, Rivers
essentially argues Batson is a “test without teeth” and this court “should impose
more stringent protections of his right to due process and a fair and impartial jury
under the Iowa Constitution than are afforded under the United States Constitution
and Batson.” Upon of our review of the argument, we agree with the State that
“Rivers has failed to demonstrate that nebulous concerns about Batson warrant
abandoning Iowa’s traditional approach to peremptory challenges, which enable
all litigants to protect themselves from unspoken bias that may infect
deliberations.” Other than his all-encompassing argument that the peremptory-
strike system is unconstitutional, Rivers has simply failed to provide us with a
specific or concrete reason why or how it is so, or how the district court erred in
rejecting his vague claim below. See In re C.B., 611 N.W.2d 489, (Iowa 2000) (“A
broad, all encompassing argument is insufficient to identify error in cases of de
novo review.”). We affirm the district court’s rulings relative to jury selection and
peremptory strikes.
III. Sufficiency of the Evidence
Following the State’s case-in-chief, Rivers moved for judgment of acquittal.
As to both counts, he argued there was insufficient evidence to show he was the
driver of the Pontiac on the night in question. As to the driving-while-barred charge,
he argued there was insufficient evidence to prove the DOT mailed him notice of
his barment. The court denied the motion. Rivers renewed the motion on the 10
same grounds following the presentation of the evidence for the defense. The
motion was likewise overruled. On appeal, Rivers echoes the arguments he raised
in the district court, contending the evidence was insufficient to show he was the
driver of the vehicle in question, or that he had notice of the barred status of his
driver’s license.
Challenges to the sufficiency of the evidence are reviewed for corrections
of errors at law. State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). The
court views “the evidence ‘in the light most favorable to the State, including all
reasonable inferences that may be fairly drawn from the evidence.’” State v. Ortiz,
905 N.W.2d 174, 180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490
(Iowa 2017)). All evidence is considered, not just that of an inculpatory nature.
See Huser, 894 N.W.2d at 490. “[W]e will uphold a verdict if substantial evidence
supports it.” State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (quoting State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “Evidence is substantial if, ‘when
viewed in the light most favorable to the State, it can convince a rational jury that
the defendant is guilty beyond a reasonable doubt.’” Id. (quoting Ramirez, 895
N.W.2d at 890). Evidence is not rendered insubstantial merely because it might
support a different conclusion; the only question is whether the evidence supports
the finding actually made. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788
N.W.2d 386, 393 (Iowa 2010). In considering a sufficiency-of-the-evidence
challenge, “[i]t is not the province of the court . . . to resolve conflicts in the
evidence, to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the [factfinder].” State 11
v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005)).
The State bears the burden of proving every element of a charged offense.
State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Rivers does not
challenge the marshalling instructions employed at trial for the charged crimes. As
such, the instructions serve as the law of the case for purposes of reviewing the
sufficiency of the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct.
App. 2018). As to both counts, Rivers argues the evidence was insufficient to show
he was the driver of the suspect vehicle on the night in question. The jury was
instructed the State was required to prove Rivers was driving or operated a vehicle
on the night in question. As to identity, Rivers complains the evidence presented
by the State was wholly circumstantial, the officers’ eyewitness identifications of
him driving are not credible, and the evidence was insufficient to show the phone
found in the vehicle belonged to him.
Viewing the evidence in a light most favorable to the State and verdict, as
we must, we find the evidence was sufficient to convince a rational jury that Rivers
was the driver of the Pontiac on the night in question. First, the jury was instructed
that “[t]he law makes no distinction between direct evidence and circumstantial
evidence.” Accord Kelso-Christy, 911 N.W.2d at 668 (“Direct and circumstantial
evidence are equally probative.” (citation omitted)). Both officers, who were
familiar with Rivers, identified him as the driver. Likewise, the cell phone found in
the car was linked to Rivers through its google account, a recent text message
contained in the phone, and the fact that Rivers provided the phone’s number as
his contact information to a state official. The evidence supports the jury’s verdict. 12
As to the driving-while-barred charge, Rivers argues there “was insufficient
evidence that [he] was either provided notice of his barred status by the [DOT] or
that he had actual knowledge of his barred status.” As noted, Rivers did not and
does not challenge the marshalling instruction provided to the jury for driving while
barred, and it therefore serves as the law of the case for purposes of reviewing the
sufficiency of the evidence. See Banes, 910 N.W.2d at 639. The instruction did
not require the State to prove Rivers had notice or knowledge of the status of his
license. Instead, it only required the State to prove Rivers’s license “was barred
at the time of operation.” The evidence was clearly sufficient to support the State’s
establishment of the instructed element, and Rivers appears to concede as much.
In any event, our supreme court recently clarified notice to a defendant of the
barred status of his driver’s license is not an essential element of driving while
barred. See State v. Williams, 910 N.W.2d 586, 594 (Iowa 2018). We affirm the
denial of Rivers’s motions for judgment of acquittal.
IV. Ineffective Assistance of Counsel
Finally, Rivers argues his trial counsel rendered ineffective assistance in
failing to object to evidence admitted concerning the forensic examination of the
cellular phone found in the vehicle. Ineffective-assistance-of-counsel claims are
immune from error-preservation defects. See State v. Fountain, 786 N.W.2d 260,
263 (Iowa 2010). We review such claims de novo. State v. Albright, 925 N.W.2d
144, 151 (Iowa 2019). Rivers “must establish by a preponderance of the evidence
that ‘(1) his trial counsel failed to perform an essential duty, and (2) this failure
resulted in prejudice.’” State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018) (quoting
State v. Harris, 891 N.W.2d 182, 185 (Iowa 2017)); accord Strickland v. 13
Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice
prong or breach of duty first, and failure to find either one will preclude relief.” State
v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d
159, 169 (Iowa 2015)).
Rivers essentially argues counsel should have objected because the State
failed to “establish a chain of custody justifying the admission of evidence . . .
making it reasonably probable that tampering, substitution or alteration of evidence
did not occur.” He further argues “the contents of cellular phones are very
susceptible to alteration, as the data they contain are accessible as long as the
phone remains connected to [a] cellular network or the internet.”
Upon our de novo review of the record, even assuming counsel could have
successfully prevented the evidence from being admitted, we find no “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Krogmann v. State, 914 N.W.2d 293, 313 (Iowa 2018)
(quoting Strickland, 466 U.S. at 694). Even ignoring the entirety of the cell phone
evidence, we find the jury would have still had sufficient evidence upon which to
conclude Rivers was the driver of the vehicle on the night in question, and we have
no reason to believe it would not have done so. The evidence, although largely
circumstantial, was overwhelming and generally unchallenged. Consequently,
Rivers was not prejudiced by his counsel’s alleged breach, and Rivers is not
entitled to relief on his claim. See McNeal, 897 N.W.2d 697 at 703.
V. Conclusion
We affirm Rivers’s convictions of eluding and driving while barred.
AFFIRMED.