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State v. Phipps

Court of Appeals of Iowa

September 26, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
CHARLES P. PHIPPS, Defendant-Appellant.

          Appeal from the Iowa District Court for Poweshiek County, Myron L. Gookin, Judge.

         The defendant appeals from his conviction for assault while displaying a dangerous weapon.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Charles Phipps appeals from his conviction for assault while displaying a dangerous weapon. Phipps maintains (1) the trial court should have granted his motion for judgment of acquittal because assault while displaying a dangerous weapon is a specific-intent crime and the State did not provide substantial evidence regarding his specific intent, (2) trial counsel provided ineffective assistance by failing to challenge the jury instruction that assault with a dangerous weapon is a general-intent crime, and (3) the court abused its discretion in denying his motion for mistrial after a witness's testimony exceeded the minutes of evidence.

         I. Background Facts and Proceedings.

         In May 2017, Phipps was charged by trial information with assault while displaying a dangerous weapon, pursuant to Iowa Code sections 708.1(2)(c) and 708.2(3) (2017). It was alleged Phipps "did assault L.T. by using or displaying a dangerous weapon, to-wit: a Daisy pellet gun, toward her in a threatening manner."

         During the jury trial, L.T., who had been a roommate of Phipps in March 2017, testified:

Well, I was in the living room, and all of a sudden I heard [Phipps] yelling. And he started barreling down the hallway looking for [another roommate's girlfriend], and I told him that she wasn't there. And he had-I can't remember exactly what he was saying, but he was talking about how [the girlfriend]-nobody likes her, and, you know, he's going to kill her. And-

         The defense objected and, outside of the presence of the jury, moved for a mistrial, arguing L.T.'s testimony Phipps stated he was going to kill the girlfriend was beyond the minutes of evidence. The State conceded that nobody was aware L.T. would testify to that effect. The court considered Iowa Rule of Criminal Procedure 2.5(3) and ruled the testimony was outside of the provided minutes. However, the court denied the motion for mistrial, deciding instead to inform the jury that the testimony in question was stricken from the record and was not to be considered as part of its deliberation.

L.T.'s testimony continued:
And so I looked around the corner, and he looked at me and said, "Friend or foe?" And I said, "Yeah, she's my friend." And then that's when he pointed the gun at me and then I just, I mean, I didn't know what do so-I just-and then shortly after that, [another roommate] had woken up and then [Phipps] had went to his room.

         L.T. testified she "was a little scared," "but I didn't think that he would hurt me. But at that moment in time, I honestly wasn't completely for sure if he would."

         At the close of the State's evidence, Phipps moved for a judgment of acquittal, arguing "the State has failed, with competent evidence, to be able to prove an intent, the specific intent required to meet the ...


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