                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2167
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRUCE LAMONT JOHNSON JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.



      Defendant appeals his conviction for theft in the first degree. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Bruce Johnson Jr. appeals his conviction for theft in the first degree. We

find Johnson has failed to show he received ineffective assistance on the ground

defense counsel did not object to evidence Johnson initially gave police officers a

false identification card. We affirm his conviction.

       I.     Background Facts & Proceedings

       On July 4, 2016, David Scott went to the Isle of Capri Casino in

Bettendorf. As Scott stood in a line to register for a prize drawing, he had two

voucher tickets in his front shirt pocket—one for five dollars and one for $115.1 A

person bumped into him, and he felt a tug on his shirt. Scott noticed his two

voucher tickets were missing and he contacted security. A review of video from

the casino security cameras showed Johnson reached into Scott’s pocket and

took the voucher tickets.

       The casino security team contacted the Bettendorf Police Department.

Lieutenant John Majeske and Officer Ashley Guffey approached Johnson at the

casino. He told them his name was William Maxey and gave them a Colorado

identification card. After some discussion, Johnson stated he had taken one

voucher. Officer Guffey noted the picture on the Colorado identification card did

not look like the defendant. Johnson then told officers his real name.

       Johnson was charged with theft in the first degree, in violation of Iowa

Code section 714.2(1) (2016).       A jury found Johnson guilty of this offense.

Johnson was sentenced to a term of imprisonment not to exceed ten years. He


1
  The voucher tickets could be used to play the slot machines or could be redeemed for
cash.
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now appeals his conviction, claiming he received ineffective assistance of

counsel.

       II.    Standard of Review

       We conduct a de novo review of claims of ineffective assistance of

counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a

claim of ineffective assistance of counsel, a defendant must prove (1) counsel

failed to perform an essential duty and (2) prejudice resulted to the extent it

denied the defendant a fair trial. Id. A defendant’s failure to prove either element

by a preponderance of the evidence is fatal to a claim of ineffective assistance.

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       III.   Ineffective Assistance

       Johnson claims he received ineffective assistance because defense

counsel did not object to the evidence he used a false name and gave officers a

false identification card when he was first approached. He states the evidence

was more prejudicial than probative and was also inadmissible as evidence of

other crimes, wrongs, or acts under Iowa Rule of Evidence 5.404(b). He states

the evidence was not relevant to show he committed first-degree theft.

       In reviewing a claim of ineffective assistance of counsel, “[i]f a claim lacks

prejudice, it can be decided on that ground alone without deciding whether the

attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). In order to show prejudice, a defendant must show “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”         Id. at 143 (quoting Strickland v.
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Washington, 466 U.S. 668, 694 (1984)). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

      We find Johnson has not shown he was prejudiced by counsel’s conduct.

There is not a reasonable probability the result of the trial would have been

different if the evidence Johnson gave a false name and identification card to

officers had been omitted during the trial, as there was overwhelming evidence

Johnson committed first-degree theft. See State v. Parker, 747 N.W.2d 196, 211

(Iowa 2008) (finding there was no showing of the prejudice element of a claim of

ineffective assistance of counsel where the evidence of the defendant’s guilt was

overwhelming). The security video showed Johnson took the voucher tickets out

of Scott’s pocket.    Also, while discussing the incident with officers, Scott

confessed he had taken one voucher. We conclude Johnson has not shown he

received ineffective assistance of counsel.

      We affirm Johnson’s conviction for first-degree theft.

      AFFIRMED.
