Odell Everett, Jr. Vs. State Of Iowa , 2010 Iowa Sup. LEXIS 95 ( 2010 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 08–1540
    Filed October 1, 2010
    ODELL EVERETT, JR.,
    Appellant,
    vs.
    STATE OF IOWA,
    Appellee.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Black Hawk County,
    Richard D. Stochl, Judge.
    State seeks further review of a court of appeals’ decision reversing
    the district court decision denying the defendant’s postconviction relief
    action and granting the defendant a new trial. DECISION OF COURT
    OF APPEALS VACATED; DECISION OF DISTRICT COURT AFFIRMED.
    Nathan A. Mundy of Bartolomei & Lange, P.L.C., Des Moines, for
    appellant.
    Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant
    Attorney     General,   Thomas    J.   Ferguson,    County   Attorney,   and
    Kimberly A. Griffith, Assistant County Attorney, for appellee.
    2
    WIGGINS, Justice.
    The State seeks further review of a court of appeals’ decision
    reversing the district court’s denial of the defendant’s application for
    postconviction relief and ordering a new trial for the defendant.       The
    State contends the court of appeals erred in finding the defendant’s claim
    that failure to obtain his presence when responding to a jury question
    required the defendant to receive a new trial. Because we conclude the
    defendant’s claim must be brought as a claim of ineffective assistance of
    counsel and under such an analysis he failed to establish prejudice, we
    vacate the decision of the court of appeals and affirm the trial court’s
    denial of the defendant’s postconviction relief claim.
    I. Background Facts and Proceedings.
    From the evidence presented at trial, a jury could have found the
    following facts. On November 11, 2003, a black male wearing a green
    bandana over his face and a stocking cap on his head held up a Waterloo
    convenience store. The man held a knife to one employee and demanded
    the cash register drawer before fleeing on foot.     A short time later, a
    police officer in the vicinity observed the defendant, Odell Everett, exit a
    car after the officer shined a spotlight on the vehicle.    A lengthy foot
    chase with police ensued. During the chase, an officer was able to grab
    one of the defendant’s pants pockets, spilling its contents.            The
    defendant was apprehended shortly thereafter.
    Upon retracing the chase route, police officers recovered cash and
    food stamps that had spilled from the defendant’s pocket, a black
    stocking cap, and the cash register drawer.       A green bandana and a
    significant number of coins were recovered from the defendant’s pockets.
    In the vehicle exited by the defendant, officers recovered a blue jacket,
    3
    which fit the witnesses’ description of an item of clothing worn by the
    robber.
    At trial, two store employees identified the defendant as the robber.
    One employee testified that at one point during the robbery the
    defendant stood behind her with a knife to the right side of her back.
    She described the knife as having a blade three to four inches long with a
    hook on the end.         She also observed the defendant waving the knife
    around. A second employee testified she did not actually see the knife
    because the defendant had his hands in his pockets when she observed
    him.    But, she testified, “he was wielding [his hand] like there was a
    knife,” giving her the impression he had a weapon.
    During deliberations, the jury sent this question to the court: “Is it
    first degree robbery if the defendant represents that he has a dangerous
    weapon, but does not actually have or show it?” After conferring with
    defense counsel and the prosecutor, the court sent the following written
    response back to the jury: “Please reread the instructions.”                          The
    defendant was not notified of the question and was not present when the
    court and counsel conferred.            Everett was subsequently convicted of
    first-degree      robbery    for    which       he   received     a    twenty-five-year
    indeterminate sentence. 1
    On direct appeal, the defendant claimed there was insufficient
    evidence to support his conviction for first-degree robbery and his trial
    counsel was ineffective for failing to offer expert witness testimony on the
    subject of eyewitness identification. The court of appeals rejected both
    claims and affirmed the defendant’s conviction.
    1Everett was also convicted of interference with official acts for which he received
    a thirty-day sentence. Everett only appealed his first-degree robbery conviction.
    4
    In   March    2006    the   defendant     filed   this   application   for
    postconviction relief. In his initial application, the defendant alleged trial
    counsel was ineffective for, among other things, “failing to confer with
    Everett regarding [a] jury [question].”     He subsequently amended his
    application “to allege one claim” stated as follows:
    Reversible error occurred when the Court, Defense counsel,
    and Prosecutor in any combination failed to notify Petitioner
    of the jury question, request Petitioner’s presence be had
    before the Court or that he waive such presence and failing
    to comply with any of the procedures enumerated in Iowa
    Rule [of] Criminal Procedure 2.27(1) . . . and 2.19(5)(g) . . .
    resulting in prejudice to the Petitioner resulting in violations
    of the 14th and 6th Amendment[s] to the United States
    [C]onstitution and the [C]onstitution of the State of Iowa
    ....
    At the hearing on the defendant’s application, trial counsel
    admitted he did not request the defendant’s presence when asked by the
    court if the defendant’s presence was needed.           After hearing the jury
    question, counsel determined “it was a legal question [and] there was no
    advice Mr. Everett could give me on that [that] I would have needed.”
    Defense counsel further testified he believed the instructions adequately
    described the law and he did not want to risk a change in the instruction
    which potentially would not benefit his client. He asserted his actions
    constituted deliberate trial strategy. The defendant also testified at the
    hearing.   He stated that if he had been present and advised of the
    question, he would have asked his attorney “to tell the jury to look at the
    instructions, not just First Degree Robbery.”
    The district court held the defendant had a Sixth Amendment
    right, implemented by our rules of criminal procedure, to be present
    during the process of responding to the jury’s request for further
    instruction.   Absent waiver, there is a presumption of prejudice which
    5
    would require reversal unless the record affirmatively shows the court’s
    instruction had no influence on the jury’s verdict prejudicial to the
    defendant. See State v. Snyder, 
    223 N.W.2d 217
    , 221–22 (Iowa 1974).
    The court held defense counsel did not have the right to waive the
    defendant’s presence. The court found, however, the record affirmatively
    established the trial court’s instruction had no prejudicial influence on
    the jury’s verdict because the evidence against the defendant was
    overwhelming.     Furthermore, the court concluded the instruction
    defining first-degree robbery clearly set forth the law and the answer to
    the jury’s question was easily ascertained from those instructions.
    Therefore, the defendant’s application for postconviction relief was
    denied.
    II. Appellate Review.
    The defendant appealed.     He acknowledged a claim not properly
    raised on direct appeal may not be litigated in a postconviction relief
    action unless sufficient cause is shown for not previously raising the
    claim and actual prejudice resulted from the claim of error. However, the
    defendant contended sufficient cause for not raising this claim on direct
    appeal was established because he was unaware the jury had posed a
    question until he received a copy of the trial transcript, after his direct
    appeal was concluded. The State refuted the defendant’s argument that
    there was sufficient reason error was not preserved on this claim and
    maintained the proper vehicle to have brought the claim is through an
    ineffective-assistance-of-counsel claim. The State argued the failure to
    raise and frame the issue is significant because of the difference in the
    prejudice prongs of the applicable tests.
    A divided panel of the court of appeals reversed the district court’s
    decision. The majority found Everett’s claim to have been unaware of the
    6
    judge-jury communication until after the direct appeal constituted
    sufficient reason for not having raised the claim on direct appeal.
    Having determined the defendant established sufficient reason for
    not raising this issue on direct appeal, the majority considered the merits
    of the defendant’s claim.       The appellate court concluded the court’s
    instruction to reread the jury instructions provided no remedy to the
    jury’s confusion regarding a point of law.       Therefore, it was likely the
    jury’s confusion influenced the verdict. The court of appeals reversed the
    district court, holding Everett was entitled to a new trial. Notably, the
    court of appeals analyzed the issue using the framework for evaluating a
    claim of trial court error rather than using the standards for an
    ineffective-assistance-of-counsel claim. We granted further review.
    III. Standard of Review.
    “The standard of review on appeal from the denial of postconviction
    relief is for errors at law.”    McLaughlin v. State, 
    533 N.W.2d 546
    , 547
    (Iowa 1995). However, “[w]hen there is an alleged denial of constitutional
    rights, . . . we make our own evaluation of the totality of the
    circumstances in a de novo review.” 
    Id. IV. Relevant
    Rules of Procedure.
    Iowa Rule of Criminal Procedure 2.27(1) provides that “[i]n felony
    cases the defendant shall be . . . personally present at every stage of the
    trial.”    We have held that this rule applies to the giving of additional
    instructions by the court and that the defendant’s “absence gives rise to
    a presumption of prejudice necessitating reversal unless the record
    affirmatively shows the instruction had no influence on the jury’s verdict
    prejudicial to the defendant.” 
    Snyder, 223 N.W.2d at 221
    –22. This right,
    however, can be waived, as noted in Iowa Rule of Criminal Procedure
    2.19(5)(g) which provides:
    7
    After the jury has retired for deliberation, if there be any
    disagreement as to any part of the testimony, or if it desires
    to be informed on any point of law arising in the cause, it
    must require the officer to conduct it into court, and, upon
    its being brought in, the information required may be given,
    in the discretion of the trial court. . . . Where the court gives
    the jury additional instructions, this shall appear of record.
    The procedure described shall take place in the presence of
    defendant and counsel for the defense and prosecution,
    unless such presence is waived.
    Thus, “the trial court has discretion whether, and to what extent, a
    jury inquiry should be answered; but it has no discretion in deciding
    whether defendant and counsel need to be present.” State v. Griffin, 
    323 N.W.2d 198
    , 201 (Iowa 1982); accord 
    McLaughlin, 533 N.W.2d at 548
    .
    V. Error Preservation.
    A. Argument.        The State contends the defendant has failed to
    preserve error on this claim because (1) he did not raise it on direct
    appeal and (2) he has not raised it as an ineffective-assistance-of-
    counsel—either trial or appellate—claim.      The defendant, on the other
    hand, asserts sufficient cause has been established for his failure to
    raise this issue on direct appeal. See Berryhill v. State, 
    603 N.W.2d 243
    ,
    245 (Iowa 1999) (holding factual or legal matters which were excusably
    unknown at the time of the trial and appeal may be properly asserted on
    postconviction relief).   He agrees, however, that he has not raised an
    ineffective-assistance-of-counsel claim.
    B. Guiding Principles. Before addressing the error preservation
    argument, it is helpful to set forth the guiding principles concerning
    postconviction relief.     We have long held that postconviction relief
    proceedings “are not an alternative means for litigating issues that were
    or should have been properly presented for review on direct appeal.” Id.;
    see also Iowa Code § 822.2(2) (2007) (postconviction relief “is not a
    substitute for . . . any remedy, incident to the proceedings in the trial
    8
    court, or of direct review of the sentence or conviction”). “Thus, we have
    consistently held that any claim not properly raised on direct appeal may
    not be litigated in a postconviction relief action unless sufficient reason
    or cause is shown for not previously raising the claim, and actual
    prejudice resulted from the claim of error.” 
    Berryhill, 603 N.W.2d at 245
    .
    Ineffective-assistance-of-counsel claims are an exception to the
    traditional error-preservation rules. State v. Ondayog, 
    722 N.W.2d 778
    ,
    784 (Iowa 2006); see also State v. Lucas, 
    323 N.W.2d 228
    , 232 (Iowa
    1982) (noting that, because realistically, these claims are not made by
    attorneys against their own actions, we have allowed these claims to be
    brought in a postconviction relief action).        More recently, the Iowa
    legislature has provided that an ineffective-assistance-of-counsel claim
    “need not be raised on direct appeal from the criminal proceedings in
    order to preserve the claim for postconviction relief purposes.”            Iowa
    Code § 814.7(1) (2007); see also State v. Johnson, 
    784 N.W.2d 192
    , 197
    (Iowa 2010).
    C. Analysis.       Normally,    objections   to   the   giving   of   jury
    instructions are waived on direct appeal if not raised before counsel’s
    closing argument.     See State v. Fountain, 
    786 N.W.2d 260
    , 262 (Iowa
    2010) (citing Iowa R. Civ. P. 1.924); see also Iowa R. Crim. P. 2.19(5)(f)
    (“The rules relating to the instruction of juries in civil cases shall apply to
    the trial of a criminal case.”); State v. Shanahan, 
    712 N.W.2d 121
    , 141
    (Iowa 2006) (same). However, “[w]hile the jury is deliberating, the court
    may in its discretion further instruct the jury, in the presence of or after
    notice to counsel. . . . [A]ny objections thereto shall be made in a motion
    for a new trial.”   Iowa R. Civ. P. 1.925; see also State v. McKee, 
    312 N.W.2d 907
    , 915 (Iowa 1981) (when jury directed question to judge
    asking for a definition and the court gave an additional instruction
    9
    concerning a vital issue in the case, “defendant was obliged to complain
    of the instruction by motion for new trial or satisfactorily explain his
    failure to do so”).
    The court of appeals did not discuss the defendant’s failure to file a
    motion for a new trial. Instead, it concluded that because Everett was
    unaware of the jury’s question until after the resolution of his direct
    appeal, sufficient reason or cause had been shown for not previously
    raising the claim on direct appeal.      The court of appeals allowed the
    defendant to argue his claim as though he had preserved error. It also
    allowed him to assert, absent an affirmative showing in the record that
    the instruction had no influence on the jury’s verdict prejudicial to him,
    that reversal was warranted.
    The State, however, maintains this claim should have been
    brought as a claim of ineffective assistance of counsel. It also argues the
    court of appeals erred in treating the defendant and his lawyer as
    separate entities. Specifically, the State asserts what was known to the
    lawyer—that the jury had posed a question—was imputed to the
    defendant, and thus, having failed to file a motion for new trial, the
    defendant’s only recourse was to raise an ineffective-assistance-of-
    counsel claim. The State’s argument has merit.
    In State v. Ball, 
    600 N.W.2d 602
    , 603 (Iowa 1999), defense counsel
    learned, for the first time during the cross-examination of the arresting
    officer, his client had requested an attorney prior to his subsequent
    making of incriminating statements. Defense counsel moved to suppress
    the incriminating statements. The prosecution resisted, contending the
    motion was untimely and thus waived, and the defendant had not shown
    good cause to grant relief from the waiver. 
    Ball, 600 N.W.2d at 604
    . We
    agreed, imputing knowledge known to the defendant to his counsel and
    10
    refusing to treat defense counsel and defendant as two separate entities
    for the purpose of establishing good cause for failure to file a timely
    motion to suppress. 
    Id. at 605–06.
    The same logic applies here. Trial counsel was obviously aware his
    client was not present during the presentation and discussion of the jury
    question.       In fact, counsel chose not to have the defendant present.
    Thereafter, no motion for new trial was filed as required by the rules of
    procedure. It is undisputed counsel was acting on behalf of his client.2
    To the extent the defendant asserts counsel’s actions were improper and
    prejudice resulted, such claims must be brought as ineffective-
    assistance-of-counsel claims. 3 See State v. Feregrino, 
    756 N.W.2d 700
    ,
    706–07 (Iowa 2008) (reviewing counsel’s waiver of jury trial under
    ineffective-assistance-of-counsel standard). We conclude the defendant’s
    2Because defense counsel was present and implicitly waived his client’s
    presence, we have no occasion to consider this issue under a claim of trial court error.
    See State v. Williams, 
    341 N.W.2d 748
    , 751–52 (Iowa 1983) (where it was unclear from
    the record whether defendant or counsel were advised of jury question, on direct
    appeal, court held error not preserved but concluded any error was harmless beyond a
    reasonable doubt because the communication was not an instruction on the law and
    had no bearing on what evidence the jurors were to consider); State v. McKee, 
    312 N.W.2d 907
    , 914–15 (1981) (same).
    3In
    fact, a close reading of the transcript of the hearing before the district court
    in this case confirms that, irrespective of the analysis applied by the district court and
    the defendant’s current claim, both the prosecution and the defense believed the
    defendant’s claim was one of ineffective assistance of counsel. In argument to the
    district court that the defendant had waived the attorney-client privilege, the prosecutor
    stated:
    When you file a [postconviction relief] and you’re claiming ineffective
    assistance of trial counsel because trial counsel didn’t bring you over or
    notify you of a jury question, you have effectively waived the attorney-
    client privilege.
    Likewise, in his direct examination of his client, postconviction-relief counsel
    stated:
    It’s—what’s being reviewed today is whether or not the trial of your case,
    either ineffective assistance of counsel or some error that requires the
    Court grant your application for post-conviction relief.          Do you
    understand that?
    11
    claim must be addressed as one of ineffective assistance of counsel
    despite his protestations to the contrary.
    VI. Ineffective Assistance of Counsel.
    A. Guiding Principles. Our analysis of an ineffective-assistance
    claim is de novo.        To succeed on an ineffective-assistance-of-counsel
    claim, a defendant must show: “(1) counsel failed to perform an essential
    duty; and (2) prejudice resulted.” State v. Maxwell, 
    743 N.W.2d 185
    , 195
    (Iowa 2008). “[W]e measure counsel’s performance against the standard
    of a reasonably competent practitioner.” 
    Id. (citing Ledezma
    v. State, 
    626 N.W.2d 134
    , 142 (Iowa 2001)). In determining whether an attorney failed
    in   performance    of    an   essential   duty,   we   avoid   second-guessing
    reasonable trial strategy. Fullenwider v. State, 
    674 N.W.2d 73
    , 75 (Iowa
    2004); see also Kane v. State, 
    436 N.W.2d 624
    , 627 (Iowa 1989)
    (“Improvident trial strategy, miscalculated tactics, or mistakes in
    judgment do not necessarily amount to ineffective assistance of
    counsel.”).
    “To establish prejudice, a defendant must show the probability of a
    different result is ‘sufficient to undermine confidence in the outcome.’ ”
    State v. Reynolds, 
    746 N.W.2d 837
    , 845 (Iowa 2008) (quoting Strickland
    v. Washington, 
    466 U.S. 668
    , 694, 
    104 S. Ct. 2052
    , 2068, 
    80 L. Ed. 2d 674
    , 698 (1984)). “In determining whether this standard has been met,
    we must consider the totality of the evidence, what factual findings
    would have been affected by counsel’s errors, and whether the effect was
    pervasive or isolated and trivial.” State v. Graves, 
    668 N.W.2d 860
    , 882–
    83 (Iowa 2003) (citing 
    Strickland, 466 U.S. at 695
    –96, 104 S. Ct. at 
    2069, 80 L. Ed. 2d at 698
    ).       “Unlike the situation in which error has been
    preserved and the court presumes prejudice, in this case it is the
    12
    defendant’s burden to demonstrate a reasonable probability of a different
    result.” 
    Reynolds, 746 N.W.2d at 845
    (citation omitted).
    B. Performance of an Essential Duty. As previously noted, Iowa
    Rule of Criminal Procedure 2.19(5)(g) provides that “the trial court has
    discretion whether, and to what extent, a jury inquiry [on a factual
    dispute or any point of law arising in the case] should be answered.”
    
    Griffin, 323 N.W.2d at 201
    . The court, however, “has no discretion in
    deciding whether [the] defendant and counsel need be present.” 
    Id. The determination
    of whether to give additional information and the giving of
    additional information “shall take place in the presence of defendant and
    counsel for the defense and prosecution, unless such presence is
    waived.” Iowa R. Crim. P. 2.19(5)(g) (emphasis added); see also State v.
    Williams, 
    341 N.W.2d 748
    , 751 (Iowa 1983) (“Our recent cases hold that
    all communications between court and jury are required to be given in
    the presence of the defendant and counsel.”).          In this case, counsel
    testified that he did not have permission to waive Everett’s presence. The
    question, then, is whether counsel’s failure to ensure his client’s
    presence or obtain his client’s waiver constituted a failure to perform an
    essential duty.
    We have not found a case where we have expressly held counsel’s
    failure to ensure his client’s presence or obtain his waiver to participate
    in the response to a jury question constitutes a failure to perform an
    essential duty. In his testimony, trial counsel stated his handling of the
    jury question involved trial strategy. Specifically, counsel considered the
    jury’s inquiry to be a legal question, his client had previously left all legal
    determinations to him, and there was nothing his client was going to say
    that would have changed his mind that the best strategy was to allow the
    court to instruct the jury to reread the instructions.
    13
    The rationale for the requirement that a defendant be present
    under such circumstances has been stated as follows:
    The presence of the accused may be, and certainly is,
    essential to the ends of justice in the trial of all criminal
    offenses when his life or liberty is involved.          When
    instructions are given by the court, or when the jury,
    returning from their room, desire to be further instructed,
    the presence of the accused is of the greatest importance, as
    he may be able to suggest to the court or his counsel some
    information that would throw additional light on his defense.
    He should also be present that he may except to the ruling of
    the court.
    
    Snyder, 223 N.W.2d at 221
    (quoting Meece v. Commonwealth, 
    78 Ky. 586
    , 592 (1880)). We have also held a defendant’s right to be present for
    the giving of additional instructions under the rules of criminal
    procedure is derived from the Sixth Amendment.             See 
    McKee, 312 N.W.2d at 914
    –15.
    We conclude counsel had a duty in this instance to ensure his
    client’s statutory and constitutional rights were protected. Moreover, we
    find in counsel’s testimony, no justification for his failure to do so in this
    case.   See State v. Bearse, 
    748 N.W.2d 211
    , 217 (Iowa 2008) (holding
    where defense counsel had a duty to object to a breached plea agreement
    and no possible advantage could flow from counsel’s failure to object,
    counsel’s failure cannot be attributed to improvident trial strategy or
    misguided tactics). Even if the defendant’s presence and input had no
    effect on the court’s response to the jury question, his presence would
    have, at minimum, provided him with the opportunity to confer with his
    counsel and to object to the court’s ruling.
    Nevertheless, because we can resolve this issue on the prejudice
    prong, we need not determine whether the failure to ensure a defendant’s
    presence during consideration of a jury question would always constitute
    14
    a breach of an essential duty. See Kirchner v. State, 
    756 N.W.2d 202
    ,
    204 (Iowa 2008) (“ ‘The court need not address both components if the
    [applicant] makes an insufficient showing on one of the prongs.’ ”
    (quoting Engelen v. United States, 
    68 F.3d 238
    , 241 (8th Cir. 1995))).
    However, as implied from our discussion and prior case law, the better
    practice is for counsel to always obtain the client’s presence or for the
    court to obtain an express waiver of the defendant’s presence.
    C. Prejudice. The jury’s question indicated that it was confused
    about the elements of first-degree robbery, specifically whether the
    defendant had to actually possess a dangerous weapon or whether it is
    sufficient that he represented that he did.                 Under an ineffective-
    assistance-of-counsel claim, the defendant must show that had he been
    advised of the jury’s question and allowed to participate in the
    determination of a response, there was a reasonable probability of a
    different outcome.      In this case, a different outcome would include a
    conviction of an offense less than first-degree robbery. 4 A review of the
    record reveals the defendant has not shown a reasonable probability that
    the outcome would have been different.
    In his own testimony, the defendant asserted that had he been
    advised of the jury’s question, he would have asked his attorney “to tell
    the jury to look at the instructions, not just First Degree Robbery.” This
    is exactly what the trial court did when it instructed the jury to reread
    the instructions.       Moreover, the instruction on first-degree robbery
    provided that in order to find the defendant guilty of first-degree robbery
    the jury must find “[t]he defendant was armed with a dangerous
    4This requirement places the burden on the defendant to show a reasonable
    probability of a different outcome in comparison to the presumption of prejudice
    standard applied by the court of appeals, requiring the State to affirmatively show the
    district court’s actions did not have a prejudicial influence.
    15
    weapon.” 5     (Emphasis added.)          The ordinary definition of “armed” is
    easily comprehended as meaning equipped with a weapon.                                See
    Webster’s Third New International Dictionary 119 (2002) (defining “armed”
    as “furnished with weapons of offense or defense . . . EQUIPPED”).
    Merely representing that one had a weapon would not satisfy the “armed”
    element of first-degree robbery. Thus, the court’s response to the jury to
    reread the instructions, which included a correct statement of the law on
    first-degree robbery, was an appropriate response and would not have
    resulted in confusion prejudicial to the defendant.
    As the State notes, counsel might have suggested that the question
    be answered “to be convicted of robbery in [the] first degree the defendant
    must actually be armed, that is, possess a weapon.” While this is also a
    correct statement of the law, the defendant has failed to establish a
    reasonable probability, in light of all of the evidence, that had this
    additional instruction been given, the outcome would have been different
    because there was undisputed evidence the defendant possessed a
    weapon.
    5The   jury was given the following instruction in regards to first-degree robbery:
    The State must prove all the following elements of Robbery in the
    First Degree:
    1.    On or about the 11th day of November, 2003, the
    defendant had the specific intent to commit a theft.
    2.     To carry out his intention or to assist him in escaping
    from the scene, with or without the stolen property, the defendant
    a. committed an assault . . . , or
    b. threatened Rysa Rice or Dawn Carlson, or both of
    them, with immediate serious injury, or purposely put Rysa Rice or
    Dawn Carlson, or both of them, in fear of immediate serious injury.
    3.     The defendant was armed with a dangerous weapon.
    If the State has proved all of the elements, the defendant is guilty
    of Robbery In The First Degree. . . .
    16
    Rysa Rice, one of two employees working that night, testified the
    defendant approached her in a back room and stuck a knife into her
    side. He ordered her to open the cash drawer while waiving the knife in
    front of her. Rice was able to provide a description of the knife, stating it
    had a three- to four-inch silver blade with a hooked end.                The other
    employee, Dawn Carlson, testified that when she went to investigate
    Rice’s scream, the defendant grabbed her by the hair and pushed her
    toward a counter. Although she did not see a weapon, she testified that
    Everett had his hands in his pockets and was gesturing like he had a
    knife.    Carlson’s testimony supports Rice’s testimony that Everett was
    armed with a knife. Because there is undisputed evidence the defendant
    possessed a weapon, the defendant has not shown that, had he been
    advised of and consulted about the jury’s question, a different response
    would have been sent to the jury which would have resulted in a
    reasonable probability the outcome would have been different.
    VII. Conclusion.
    The   defendant    cannot   establish   his   trial   counsel    provided
    ineffective assistance of counsel because he has failed to establish a
    reasonable probability exists that had he been advised of the jury’s
    question, the outcome of his trial would have been different.                  We
    therefore vacate the decision of the court of appeals and affirm the
    decision of the district court denying the defendant’s application for
    postconviction relief.
    DECISION OF COURT OF APPEALS VACATED; DECISION OF
    DISTRICT COURT AFFIRMED.