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State v. Phipps

Court of Appeals of Iowa

May 2, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSHUA LEE PHIPPS, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         Joshua Phipps appeals the judgment and sentence entered after a jury found him guilty of aggravated theft.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          DOYLE, Judge.

         Joshua Phipps appeals the judgment and sentence entered after a jury found him guilty of aggravated theft. He contends his trial counsel was ineffective by failing to object to the jury instructions. He also contends the court relied on an impermissible factor in determining his sentence.

         I. Background Facts and Proceedings.

         On December 20, 2016, a Hy-Vee employee suspected that Phipps was attempting to shoplift from the store. The employee confronted Phipps and prevented Phipps from leaving the store through the north exit. When Phipps then attempted to leave through a different exit, the employee ran ahead of him and stood in front of the door to physically block Phipps's egress but Phipps "aggressively pushed through" him. A scuffle ensued, sending both men to the ground. Employees restrained Phipps until law enforcement arrived.

         During the scuffle, an unopened DVD and other items sold at the store fell onto the ground. The items totaled $138.93 in value.[1] Phipps did not have a receipt showing he purchased the items and offered no explanation as to how they came into his possession. Phipps told the responding officer that "he didn't do anything and the employees just randomly attacked him."

         The State charged Phipps by trial information with aggravated theft. Following trial, a jury found Phipps guilty. The district court sentenced Phipps to an indeterminate term of not more than two years in prison. Phipps appealed.

         II. Jury Instructions.

         Phipps first contends his trial counsel was ineffective in failing to challenge the jury instructions. We review ineffective-assistance claims de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). In order to establish ineffective assistance of counsel, Phipps must show by a preponderance of the evidence that his counsel failed to perform an essential duty and that failure prejudiced him. See id. Generally, we preserve claims of ineffective assistance of counsel claims for postconviction proceedings to allow the record to be developed on various issues. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). "Only in rare cases will the trial record alone be sufficient to resolve the claim." State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). Preserving a claim of ineffective assistance is particularly important "where the challenged actions of counsel implicate trial tactics or strategy which might be explained in a record fully developed to address those issues." State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012) (citation omitted).

         Phipps argues the marshalling instruction was insufficient because it does not properly explain the intent element of the crime. The court instructed the jury that in order to find Phipps ...


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