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State v. Thorpe

Court of Appeals of Iowa

May 17, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ANTHONY DEMONTA THORPE JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         A defendant appeals his conviction asserting his counsel provided ineffective assistance.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Mullins, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         Anthony Thorpe Jr. appeals his conviction for second-degree robbery following a jury trial. Thorpe asserts his counsel provided ineffective assistance when counsel failed to object to the admission of portions of the jail-visit video that he claims contains improper other-bad-acts evidence. See Iowa R. Evid. 5.404(b). Because the jury was able to consider this evidence, Thorpe claims he suffered prejudice. Assuming without deciding counsel should have objected to the portions of the video Thorpe contends were improper, we affirm Thorpe's conviction because we conclude Thorpe cannot prove the result of the proceeding would have been different.

         I. Background Facts and Proceedings.

         Lindsey Sprouse left work at the Von Maur in West Des Moines a few minutes after 6 p.m. on November 22, 2015, and headed to her vehicle in the parking lot. She was approached by an individual dressed in dark clothing wearing a black ski mask. She could see the individual's eyes and nose but not the rest of the person's face. The individual pointed a gun[1] at her, and Lindsey handed over her car keys, wallet, and cell phone. When the individual turned to get into Lindsey's vehicle, Lindsey ran to a coworker, who was getting into her own vehicle a few rows away. The coworker called the police as the individual driving Lindsey's car drove out of the parking lot at a high rate of speed.

         The police dispatched the information regarding the description of the individual and the vehicle's year, make, model, color, and license plate number. An officer in Windsor Heights heard the dispatch, and within seconds, he observed a vehicle and driver matching the description pulling into the Walmart parking lot. The officer pulled directly behind the vehicle as the vehicle pulled into a parking space, blocking its exit; confirmed the license plate matched the stolen vehicle; and ordered the driver, Thorpe, to exit with his hands in the air. Officers discovered a BB gun in Thorpe's coat pocket, and on the passenger side seat, the police observed a black ski mask and Lindsey's wallet.

         Lindsey was transported to the Walmart parking lot where she positively identified Thorpe as the individual who had stolen her vehicle. Thorpe was charged with second-degree robbery and held in jail. While in jail, Thorpe spoke with a visitor through the jail's video system. A short portion of that visit was introduced and shown at the jury trial, which occurred February 22, 2016. The jury found Thorpe guilty as charged, he was sentenced to ten years in prison with a seventy-percent mandatory minimum, and the fine was suspended.[2]

         II. Scope and Standard of Review.

         Our review of a claim of ineffective assistance of counsel is de novo in light of the claim's constitutional nature. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). When the claim is made on direct appeal, we must determine whether the record is adequate to resolve the claim or whether it must be preserved for postconviction relief proceedings. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Upon our review of the record in this appeal, we determine the record is adequate to address Thorpe's claim.

          III. Ineffective ...


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