                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1528
                             Filed January 14, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA KENYADA WEATHERSPOON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Story County, Michael J. Moon,

Judge.



      Joshua Weatherspoon appeals the judgment and sentence entered

following his convictions of second-degree robbery, first-degree theft, and two

counts each of forgery and unauthorized use of a credit card. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Stephen Holmes, County Attorney, and Timothy Meals and Thomas

Kunstle, Assistant County Attorneys, for appellee.



      Considered by Mullins, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MULLINS, P.J.

       Joshua Weatherspoon appeals the judgment and sentence entered

following his convictions of second-degree robbery, first-degree theft, and two

counts each of forgery and unauthorized use of a credit card. He contends his

trial counsel was ineffective and his sentence is illegal. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

       In the early morning hours of February 15, 2013, Mitchell Metcalf was

walking through the parking lot of his apartment complex in Ames when he heard

someone shout, “I’m gonna rob this guy!” Metcalf looked up and saw three men

in front of him before looking back down to avoid eye contact. One of the men

then attacked Metcalf. The man knocked Metcalf to the ground with a blow and

punched Metcalf three more times while yelling, “Gimme your money!” Metcalf

recalled also being kicked at least once. He suffered a black eye, a scrape

beneath his cheek, and a “skinned up” elbow and hand in the attack.

       Metcalf did not have any money, so he gave the man his credit card. At

that point, the attack stopped, and the man walked away. Metcalf continued to

his apartment and called the Ames Police Department to report what happened.

Although he did not have an opportunity to observe his attacker’s facial features,

Metcalf was able to give the police a description of the man. He noted that at the

time of the attack, the man was wearing a red hooded sweatshirt (also referred to

as a hoodie) with some white detail on it. By the man’s speech, Metcalf had the

impression he was from out of town.
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       Law enforcement officers located a number of potential suspects in the

area who matched the description Metcalf had given. Metcalf was unable to

identify any of the men as his attacker.

       On February 16, 2013, Metcalf reported unauthorized charges had been

made to his credit card. His bank statement showed two transactions had been

made within an hour after the credit card was taken.         One charge was for

$379.76 at Wal-Mart, and the other was for $12.83 at Swift Shop.               Law

enforcement obtained security video from both stores.

       The Wal-Mart security video showed a black vehicle with a spoiler

entering the parking lot at approximately 2:26 a.m. Three men exited the vehicle

and entered the store, including a man wearing a red hoodie. The video shows

the man in the hoodie purchasing a PlayStation 3 game console and an extra

controller.

       The Swift Shop security video showed the man in the hoodie purchasing

two packs of Newport cigarettes. The man provided identification to show his

age, and the cashier entered the date of birth listed on the identification into the

register in order to complete the sale.

       During the investigation, law enforcement officers obtained the serial

number for the PlayStation 3 purchased with the stolen credit card and

subpoenaed the manufacturer’s online subscriber records, which list the IP

address associated with that PlayStation. That IP address was eventually traced

to the Ames apartment Weatherspoon shared with his girlfriend, Margaret

Kovarik. The police obtained a search warrant for the residence and recovered a
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PlayStation 3 with a serial number matching that of the PlayStation 3 purchased

with Mitchell’s credit card, as well as two game controllers. They also seized a

red hoodie and a pair of shoes similar to the ones the suspect was seen wearing

on the Wal-Mart security video. Law enforcement also learned the vehicle that

was seen transporting the suspect on the Wal-Mart security video belonged to

Kovarik.   Additionally, the birthdate entered by the clerk at the Swift Shop

matched Weatherspoon’s.

       During his interview with police, Weatherspoon denied beating up Metcalf

or using his credit card. He claimed the PlayStation 3 came from a friend before

stating his stepbrother, Devon Taylor, had given it to him.           Weatherspoon

admitted the red hoodie belonged to him but claimed Taylor borrows his clothes.

He denied being a cigarette smoker.

       After   viewing   the   Wal-mart       security   video,   Kovarik   identified

Weatherspoon as the male in the red hoodie and confirmed the vehicle seen on

the video was hers. She stated she recognized Weatherspoon’s mannerisms,

the way he stood, and the way he walked.                 Kovarik also corroborated

Weatherspoon’s claim that he does not smoke cigarettes.

       A couple weeks after he was robbed, Metcalf was shown a photo array

that included a photo of Weatherspoon. Metcalf identified someone other than

Weatherspoon as being his attacker, though he was not confident about his

choice. Metcalf was unable to identify Weatherspoon as his attacker at trial,

although he testified Weatherspoon matched his attacker’s height, weight, and

profile.
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      On June 23, 2013, Weatherspoon was charged with one count of first-

degree robbery, one count of first-degree theft, two counts of forgery, and two

counts of unauthorized use of a credit card. Trial was held in August 2013. The

trial court granted Weatherspoon’s motion for judgment of acquittal on the

robbery charge, reducing it from first degree to second degree. At the close of

the August 2013 trial, the jury found Weatherspoon guilty of all counts. He was

sentenced to an indeterminate term of no more than ten years in prison for both

the robbery and theft counts, five years in prison on each of the forgery counts,

and two years in prison on each of the unauthorized-use-of-a-credit-card counts.

The terms were ordered to run concurrently.

II. INEFFECTIVE ASSISTANCE OF COUNSEL.

      Weatherspoon contends his trial counsel was ineffective in three respects.

He claims counsel was ineffective in failing to: (1) object to bad-acts evidence,

(2) object to the forgery instruction, and (3) request an instruction on

unauthorized use of a credit card as a lesser included offense of forgery.

      We review ineffective-assistance-of-counsel claims de novo.            State v.

Finney, 834 N.W.2d 46, 49 (Iowa 2013). In order to succeed, a defendant must

prove counsel failed to perform an essential duty and prejudice resulted.

Rhoades v. State, 848 N.W.2d 22, 28 (Iowa 2014). Both elements must be

proved by a preponderance of the evidence. State v. Null, 836 N.W.2d 41, 48

(Iowa 2013).

      In determining whether trial counsel failed to perform an essential duty,

“we require more than a showing that trial strategy backfired or that another
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attorney would have prepared and tried the case somewhat differently. Petitioner

must overcome a presumption that counsel is competent.” Taylor v. State, 352

N.W.2d 683, 685 (Iowa 1985) (citations omitted). In order to prove prejudice, a

defendant must show a reasonable probability that “but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 694 (1984). A reasonably probability is

a probability sufficient to undermine confidence in the outcome. Id.

      A. Failure to object to evidence.

      At trial, the State introduced evidence concerning another complaint

originating at Metcalf’s apartment building. Officer Vincent Junior testified three

men, one wearing a red hoodie, allegedly accosted two women inside the

building on the same day the robbery took place.         Detective Elijah Hansen

testified that a photographic array containing Weatherspoon’s photo was shown

to both of the women and neither identified Weatherspoon as the perpetrator.

While Weatherspoon’s trial counsel was cross-examining Detective Hansen, she

referred to both the person who attacked Metcalf and the person who accosted

the women as “the robber.”

      Weatherspoon argues his trial counsel was ineffective by failing to object

to the evidence concerning the incident with the two women. Such evidence “is

not admissible to prove the character of a person in order to show that the

person acted in conformity therewith.” Iowa R. Evid. 5.404(b).

      At trial, defense counsel presented a defense of mistaken identity to the

jury, and the testimony regarding the other incident at the building strengthened
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that defense. The argument was that the man in the red hoodie who robbed

Metcalf was the same person who assaulted the two women, and that since none

of the three alleged victims could identify Weatherspoon, he could not have been

Metcalf’s attacker—it must have been someone else. Although Metcalf failed to

identify Weatherspoon, he was defending himself during the robbery and was

unable to get a good look at his attacker. The fact that both women involved in

the second incident claimed to have had a close-up look at a man wearing a red

hoodie, but later failed to identify Weatherspoon in a photo array, strengthened

the defense argument of mistaken identity—i.e., that the man in the red hoodie

who robbed Metcalf was not Weatherspoon.              “Improvident trial strategy,

miscalculated tactics, mistake, carelessness or inexperience do not necessarily

amount to ineffective counsel.” State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981).

Because counsel’s failure to object was part of a valid trial strategy, we find

counsel was not ineffective.

      B. Failure to object to jury instruction.

      Weatherspoon next argues counsel was ineffective by failing to object the

forgery instruction given to the jury. That instruction stated that in order to find

Weatherspoon guilty of the forgery charges, the State had to prove the following:

              1. On or about the 15th day of February, 2013, the
      defendant completed a credit card receipt at [Swift Shop and Wal-
      mart] in Ames, Iowa.
              2. Without Mitchell Metcalf’s authority, the defendant
      completed the credit card authorization receipt to appear to be the
      act of Mitchell Metcalf.
              3. The defendant knew the act would facilitate a fraud or
      injury.
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Weatherspoon asserts that because he was charged with forgery as a class “D”

felony under Iowa Code section 715A.2(2)(a)(3) (2013), the trial court erred in

failing to instruct the jury that the writing “ostensibly evidences an obligation of

the person who has purportedly executed it or authorized its execution.” The

question before us is “whether a reasonably competent attorney would have

failed to object to the erroneous jury instruction under the given circumstances.”

State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006).

        The State argues the instruction given is adequate to convey that the

writing ostensibly evidences Metcalf’s obligation because it states the jury must

find Weatherspoon completed the “credit card authorization receipt.” See People

v. Searcy, 18 Cal. Rptr. 779, 781 (Cal. Dist. Ct. App. 1962) (“Signing a credit

sales slip constitutes an implied promise to pay for the merchandise described on

the slip.”); People v. Reynolds, 85 Ill. App. 3d 833, 836 (Ill. App. Ct. 1980)

(holding a credit card sales slip obligates the credit card company as issuer of

the card to reimburse the vendor for items listed on the slip and, in turn, obligates

the card user to reimburse the credit card company). Because a marshalling

instruction must include all essential elements of the crime, see State v. Billings,

242 N.W.2d 736, 738 (Iowa 1976), we are unable to say counsel did not breach

an essential duty by failing to object. However, Weatherspoon cannot show he

was prejudiced by any error; there is no dispute in the evidence regarding

whether Metcalf’s forged signature obligated him to pay for the purchases made

because Metcalf’s account was charged for the purchases made with his credit

card.
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       Because Weatherspoon has not shown any breach of duty resulted in

prejudice, his claim fails.

       C. Failure to request instruction on lesser included offense.

       Weatherspoon’s last claim is that counsel was ineffective by failing to

request the jury be instructed on unauthorized use of a credit card as a lesser

included offense of forgery.      He argues that under the State’s theory of

prosecution for both crimes, it is impossible to commit the offense of forgery

without also committing the offense of unauthorized use of a credit card.

       When determining whether one crime is a lesser included offense of

another, the test is whether the greater offense cannot be committed without also

committing all elements of the lesser offense. State v. Miller, 841 N.W.2d 583,

587-88 (Iowa 2014); State v. Coffin, 504 N.W.2d 893, 894 (Iowa 1993). Under

this test, we look at the elements of the marshalling instruction actually submitted

to the jury. Miller, 841 N.W.2d at 590.

       The jury was instructed that Weatherspoon committed forgery if the State

proved Weatherspoon completed a credit card authorization receipt to appear to

be the act of Metcalf without Metcalf’s authority and with knowledge the act

would facilitate a fraud or injury.       The jury was further instructed that

Weatherspoon committed unauthorized use of a credit card if the State proved

Weatherspoon used a credit card for the purpose of obtaining goods with

knowledge the credit card was stolen, and the goods secured by the credit card

were less than $1000.
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       While there is no question it is possible to commit a forgery under Iowa

Code section 715A.2 without also committing the offense of unauthorized use of

a credit card under section 715A.6, we must determine whether it was possible

under the marshalling instructions provided to the jury here. The marshalling

instructions share two elements: completing a credit card authorization receipt is

equivalent to using a credit card to obtain goods, and using the credit card

without Metcalf’s authority is the equivalent of knowing the credit card was stolen.

However, as the State argues, the intent element of each crime is different. The

forgery instruction requires a showing that the act would facilitate a fraud or

injury, which is much broader than a showing of intent to obtain goods as is

required under the unauthorized-use-of-a-credit-card instruction. Because it is

possible to find Weatherspoon committed fraud without finding he intended to

obtain goods, the latter charge is not a lesser included offense of the former.

Accordingly, counsel had no duty to request the jury be instructed as such, and

Weatherspoon’s ineffective-assistance claim fails.

III. ILLEGAL SENTENCE.

       Weatherspoon also contends the district court erred in failing to merge his

convictions of unauthorized use of a credit card and forgery. His argument is

based on the premise that unauthorized use of a credit card is a lesser included

offense of forgery.      Because we have already determined it is not,

Weatherspoon’s sentence was not illegal, and we affirm.

       AFFIRMED.
