                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0702
                               Filed May 16, 2018


DAVEONE RASHAD BROWN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
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      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Daveone Brown appeals from the denial of his application for postconviction

relief. AFFIRMED.




      Britt Gagne of Gagne Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee State.




      Considered by Vogel, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MAHAN, Senior Judge.

       Daveone Brown was convicted of second-degree robbery for taking $1277

from the victim while his codefendant threatened the victim. On appeal, we found

substantial evidence supported the conviction. State v. Brown, No. 14-0055, 2015

WL 2393440, at *2 (Iowa Ct. App. May 20, 2015) (noting the victim “reported Brown

and Andrew Buchanan had robbed her of $1277” and “stated a gun was held to

her head and one of the men threatened to kill her if she called the police,” and

citing the opinion regarding Brown’s codefendant, State v. Buchanan, No. 13-1999,

2015 WL 162028, at *2 (Iowa Ct. App. Jan. 14, 2015), which stated “the evidence

at trial shows [the victim] told two officers responding to her call that Buchanan

held a gun to her head and said, ‘This is a stickup, Bitch,’ while Brown took her

money”).

       Brown thereafter filed this application for postconviction relief (PCR),

contending, in part, trial counsel was ineffective in failing to request a jury

instruction defining theft. The district court denied the application, and Brown now

appeals.

       “Generally, an appeal from a denial of an application for postconviction relief

is reviewed for correction of errors at law.” Perez v. State, 816 N.W.2d 354, 356

(Iowa 2012) (citation omitted). However, claims of a constitutional nature, such as

claims of ineffective assistance of counsel, are reviewed de novo. Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001).

              To prevail on a claim of ineffective assistance of counsel, the
       applicant must demonstrate both ineffective assistance and
       prejudice. Both elements must be proven by a preponderance of the
       evidence. However, both elements do not always need to be
       addressed. If the claim lacks prejudice, it can be decided on that
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       ground alone without deciding whether the attorney performed
       deficiently.

Id. at 142 (citations omitted).      To establish prejudice, the applicant must

affirmatively prove “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (citation omitted).

       Brown was charged with first-degree robbery.           At trial, the jury was

instructed:

               The State must prove all of the following elements of robbery
       in the first degree as to defendant Daveone Rashad Brown:
               (1) On or about the 28th day of January, 2013, the defendant
       Daveone Rashad Brown, or someone he aided and abetted, had the
       specific intent to commit a theft.
               (2) To carry out his intention or to assist him in escaping from
       the scene, the defendant or someone he aided and abetted:
               (a) Committed an assault upon [the victim] and/or
               (b) Threatened [the victim] with, and/or purposely put [the
       victim] in fear of immediate serious injury.
               (3) The defendant, Daveone Rashad Brown or someone he
       aided and abetted, was armed with a dangerous weapon.
               If the State has proved all of the elements, the defendant,
       Daveone Rashad Brown is guilty of robbery in the first degree. If the
       State has proved only elements 1 and 2, but not 3, the defendant
       Daveone Rashad Brown is guilty of robbery in the second degree. If
       the State has proved only element number 2, the defendant,
       Daveone Rashad Brown is guilty of assault. If the State has failed to
       prove any of the above elements, the defendant, Daveone Rashad
       Brown is not guilty.

       Brown contends trial counsel was ineffective in failing to request an

instruction defining theft. The PCR court noted the jury was properly instructed on

the elements of robbery, which includes the “intent to commit a theft.” See State

v. Rich, 305 N.W.2d 739, 746 (Iowa 1981) (“To commit robbery one need only

have the intent to commit theft; there is no requirement that theft actually be

committed.”). The PCR court reasoned, “The theft involved in this case is the
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taking of property belonging to another—the simplest definition of theft. This would

have been easily understood by the jury.” We agree with the PCR court that Brown

cannot show the result of the trial would have been different had the jury received

a theft instruction. See State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (“Even

assuming an instruction defining the crime of theft should have been given, we

conclude the defendant suffered no prejudice from the absence of such an

instruction here.”). There was strong evidence from which the jury could find

Brown intended to commit a theft, and this court has already determined there was

substantial evidence to support the conviction. Brown, 2015 WL 2393440, at *2.

Because Brown has failed to prove prejudice, his ineffective-assistance-of-counsel

claim fails. We therefore affirm.

       AFFIRMED.
