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State v. Kemp

Court of Appeals of Iowa

June 7, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
QUINTOREY KEMP, Defendant-Appellant.

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

         Quintorey Kemp appeals from the judgment and sentence entered upon his conviction of assault while participating in a felony. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          VAITHESWARAN, Judge.

         A jury found Quintorey Kemp guilty of assault while participating in the felony of going armed with intent. See Iowa Code §§ 708.3(2), 708.8 (2015).[1]On appeal, Kemp argues his trial attorney was ineffective in failing to object to evidence of ammunition discovered in his bedroom before the assault.

         I. Background Facts and Proceedings

         Sherman Wise, the father of a sixteen-year-old girl, caught Quintorey Kemp in her bedroom. Wise had previously warned Kemp not to come to his house. The two "tussl[ed]." Kemp ran out of the bedroom, and Wise followed. He was "[m]aybe five or six feet" away from Kemp when he noticed that Kemp "had a gun pointed back as he was running." According to Wise, the gun "was definitely a handgun, " and it was directed towards him.

         Wise and the teen's mother went to the home of Kemp's parents to discuss the incident. Kemp was in the basement. Wise overheard him tell his mother, "You better tell [Wise] to go before I show him something."

         Wise walked out of the Kemp home. He saw Kemp's bike and, in frustration, picked it up and threw it. Momentarily, Wise heard someone behind him, turned, and saw Kemp "shooting at" him. In Wise's words, "fire" was coming "from the muzzle" of what "was definitely a handgun."

          At trial, the defense called Kemp's mother as a witness. She denied seeing her son with a gun before hearing the shots. On cross-examination, the prosecutor asked her whether she "found bullets in [Kemp's] room before." She responded, "There were some found in his drawer." Kemp's attorney did not object to this line of questioning.

         The defense also called Kemp's father. He testified he went to bed and did not hear gunshots. On cross-examination, he acknowledged his son had bullets in his drawer a year before the incident. Again, Kemp's attorney did not object to this line of questioning.

         The jury was instructed the State would have to prove "the defendant committed an assault on Sherman Wise" and "[a]t the time of the assault, the defendant was participating in the crime of Going Armed with Intent." This crime, in turn, contained several elements, including an element requiring proof that "[t]he defendant was armed with the specific intent to use a firearm against Sherman Wise." "Specific intent" was defined for the jury as "not only being aware of doing an act ...


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