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State v. Johnson

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ANDRE LESURE JOHNSON, Defendant-Appellant.

          Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.

         Andre Johnson appeals his conviction for first-degree burglary. AFFIRMED.

          Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Heard by Doyle, P.J., and Mullins and McDonald, JJ.

          McDONALD, JUDGE.

         Andre Johnson was convicted of burglary in the first degree, in violation of Iowa Code sections 713.1 and 713.3 (2017). The district court sentenced Johnson to an indeterminate term of incarceration not to exceed twenty-five years. In this direct appeal, Johnson asserts several clams of error: (1) his counsel provided constitutionally deficient representation in several respects; (2) the district court erred in denying his motion for new trial; (3) the district court abused its discretion in imposing sentence; and (4) his sentence is unconstitutional.

         I.

         This case arises out of a residential burglary in Charles City. Johnson and the State have very different accounts of what happened on the night in question.

         According to Johnson, he and his girlfriend were visiting some friends in Charles City, including his friend Michael Jackson. While Johnson was with Jackson, they met up with Deangelo Hawkins. The three men wanted to purchase marijuana. Hawkins volunteered he knew a dealer-his childhood friend, Jamison Zirbel. Johnson, Jackson, and Hawkins went to Zirbel's house. In addition to wanting to purchase marijuana, Hawkins believed someone at Zirbel's house had his cell phone. When the three men arrived at Zirbel's house, Hawkins went up to the door while Johnson and Jackson hung back. Eventually they joined Hawkins in the house.

         According to Johnson, another man, Garrett Tegtmeier, was present when Johnson entered the home. Hawkins asked about his phone, and Tegtmeier grabbed for his waistband to pull out a gun. Johnson shoved Tegtmeier into a refrigerator, and Jackson locked the entry door and grabbed the gun from Tegtmeier. Then Johnson and Jackson ran upstairs and went out a window and onto the roof. Jackson was still in possession of the gun, and he dropped it off the roof. While on the roof, Johnson heard a scuffle inside. Johnson and Jackson climbed back into the house. Once inside, Johnson encountered Enrique Bor, a resident of the house. Bor exited the home with Johnson, Hawkins, and Jackson.

         As will be discussed in more detail below, Johnson's version of events is not credible. According to the State's evidence, on the day in question, Bor, Zirbel, and Tegtmeier were hanging out at Zirbel and Bor's house. As the evening wound down, Zirbel set out with Tegtmeier to walk Tegtmeier to his home. Zirbel did not lock the entry door because he planned on returning home soon. Bor remained at the house and relaxed in his room upstairs.

         Shortly after Zirbel and Tegtmeier left, Bor heard loud knocking at the door. He did not answer. Then he heard people enter the house. Startled, Bor hid in the back of his closet and called Zirbel to see if anyone was supposed to come over. When Zirbel confirmed no one was supposed to come over, Bor called 911. By this time, the intruders were searching around the house. Bor whispered his address to the dispatcher and told the dispatcher there were people in the house. Bor could hear the intruders talking about Bor's PlayStation and other things in Bor's room. While Bor was still on the phone with the dispatcher, someone opened the closet door. Bor hid himself and was not discovered. Bor remained on an open line with the 911 dispatcher.

         After receiving Bor's call, Zirbel and Tegtmeier went back to the house. Upon arrival, they found the entry door was deadbolted. The two kicked in the door and ran upstairs. When they reached the second floor, they discovered Hawkins, Johnson, and Jackson. Zirbel was either pushed or fell down the stairs. After falling down the stairs, he sought refuge in the garage. Hawkins, Johnson, and Jackson questioned Tegtmeier while they beat him with a tire iron and searched his pockets. Bor was still in the closet and connected to 911. On the recording of the phone call, multiple voices can be heard in ...


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