                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0387
                               Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRELL LAMAR THOMAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark D. Cleve

(trial) and Joel W. Barrows (sentencing), Judges.



      Defendant appeals his conviction for robbery in the first degree.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, and Michael L. Wolf, County Attorney, for appellee.



      Considered by Danilson, C.J., Vaitheswaran, J., and Huitink, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.

       Defendant appeals his conviction for robbery in the first degree.            On

appeal, he claims he received ineffective assistance because his defense

counsel did not object to the jury instruction defining a dangerous weapon.

Because there was overwhelming evidence to find the pocketknife was a

“dangerous weapon” based on its actual use, we conclude defendant has not

met his burden to show he was prejudiced by his counsel’s failure to object to the

instruction. We determine he has not shown he received ineffective assistance

of counsel. We affirm defendant’s conviction for first-degree robbery.

       I. Background Facts & Proceedings.

       The jury trial in this case produced the following facts. On October 18,

2012, Shirley Reed was the owner and operator of the Library Pawn Shop in

Clinton, Iowa.    A man, later identified as Darrell Thomas, came in at about

12:30 p.m. and asked to see several rings. While Reed was putting one of the

rings back in the case, Thomas suddenly put a knife to her throat and forced her

down to the floor. He took jewelry from the display case. Thomas told Reed,

“You can’t make any noise,” and “I will kill you.” Reed testified Thomas held the

knife “[i]n front of my throat usually, but usually he had it in his hand just poking it

towards me.” She stated, “I had never been so frightened in my whole life and I

probably will never forget it.”

       Thomas had Reed move toward a counter containing coins. He again had

her lie down on the floor, and he tied her arms behind her back with electrical

cords. Thomas took bills and coins from a money box. As Thomas was leaving
                                         3


he yelled, “Did you see my face?” and “I am going to kill you. I will come back

and kill you.”

       After Thomas left, Reed called the police. Officers were able to retrieve a

videotape of the incident from the video surveillance system at the pawn shop.

They released a photograph of the suspect to the media. At about 5:11 p.m., a

desk clerk at a hotel in Davenport told officers one of the guests at the hotel

appeared to match the picture of the suspect. When officers arrived at the hotel,

they found Thomas had left in a cab.

       After contacting the cab company, the officers followed Thomas to another

pawn shop, where he was apprehended. Officers found a pocketknife with a

blade about three inches long in his pocket.      They then obtained a search

warrant for Thomas’s hotel room. The officers found several items of jewelry,

which Reed later identified as coming from her pawn shop.          Thomas gave

officers a written statement which stated, “I reached out for the woman and

showed the knife.” He also stated that when he left, “I promised I wasn’t going to

do anything drastic if she didn’t scream.”

       Thomas was charged with robbery in the first degree, in violation of Iowa

Code sections 711.1, .2 (2011). The case proceeded to a jury trial commencing

on January 14, 2013. Thomas conceded there was sufficient evidence to show

he committed second-degree robbery but argued there was insufficient evidence

to show he was armed with a dangerous weapon, which would make the offense

first-degree robbery. See Iowa Code § 711.2 (providing a person commits first-

degree robbery if the person is “armed with a dangerous weapon” while

perpetrating a robbery). The jury found Thomas guilty of first-degree robbery.
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He was sentenced to a term of imprisonment not to exceed twenty-five years.

Thomas now appeals, claiming he received ineffective assistance of counsel.

       II. Standard of Review.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence that counsel was

ineffective. See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       III. Ineffective Assistance.

       The district court submitted the following instruction to the jury:

                A “dangerous weapon” is any device or instrument designed
       primarily for use in inflicting death or injury upon a human being or
       animal, and when used in its designed manner is capable of
       inflicting death upon a human being. It is also any sort of
       instrument or device actually used in such a way as to indicate the
       user intended to inflict death or serious injury, and when so used is
       capable of inflicting death upon a human being.

       Thomas claims he received ineffective assistance because his defense

counsel did not object to the portion of the instruction referring to a device or

instrument “designed primarily for use in inflicting death or injury,” because there

was no evidence the pocketknife had been designed primarily for use in inflicting

death or injury. He asserts the jury could have improperly found he was armed

with a dangerous weapon under this portion of the instruction. He asks to have

his conviction reversed and the case remanded for a new trial.
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       The term “dangerous weapon” is defined in three different alternatives in

section 702.7.   State v. Ortiz, 789 N.W.2d 761, 765 (Iowa 2010).          First, a

dangerous weapon is “any device or instrument designed primarily for use in

inflicting death or injury upon a human being or animal, and which is capable of

inflicting death upon a human being when used in the manner for which is was

designed.” Iowa Code § 702.7. Second, a dangerous weapon is “any instrument

or device of any sort whatsoever which is actually used in such a manner as to

indicate that the defendant intends to inflict death or serious injury upon the

other, and which, when so used, is capable of inflicting death upon a human

being.” Id. Third, the statute lists several items which are considered to be per

se dangerous weapons. Id.; Ortiz, 789 N.W.2d at 765.

       There is no claim in the present case that the pocketknife was considered

to be a per se dangerous weapon, and the third alternative was not included in

the jury instruction. The State acknowledges that as to the first alternative, a

pocketknife is not designed primarily for use in inflicting death or injury. See

State v. Hill, 140 N.W.2d 731, 735-36 (Iowa 1966) (including pocketknives in a

list of items “which are manufactured and generally used for peaceful and proper

purposes”). The State claims, however, Thomas has not shown he received

ineffective assistance of counsel because the first alternative was included in the

instruction.

       In considering a claim of ineffective assistance of counsel, we may

consider the second prong first—that prejudice resulted to the extent it denied

the defendant a fair trial. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999).

When a defendant is unable to show prejudice, a claim of ineffective assistance
                                         6

may be decided on that ground alone. Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001).     “A defendant establishes prejudice by showing ‘there is a

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

of the proceeding would have been different.’”         Pace, 602 N.W.2d at 774

(citations omitted).   “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Ledezma, 626 N.W.2d at 143.

       Thomas is required to establish by a preponderance of the evidence there

was a reasonable probability of a different verdict if his defense counsel had

objected to the language in the instruction referring to the first alternative, “any

device or instrument designed primarily for use in inflicting death or injury.” See

id. Because there was overwhelming evidence to support the second alternative

in the instruction to find the pocketknife was a “dangerous weapon,” we conclude

Thomas has not met his burden to show he was prejudiced by his counsel’s

failure to object to the instruction. See State v. Lambert, 612 N.W.2d 810, 814-

15 (Iowa 2000) (noting that although the jury was improperly instructed a metal

pipe was a dangerous weapon per se, in light of evidence defendant brandished

the pipe in a manner indicating an intent to inflict death or serious injury, there

was not a reasonable probability the result of the trial would have been different if

defense counsel had objected to the instruction).

       When a knife is not a dangerous weapon per se, that is if its blade is less

than five inches in length, the knife’s character as a dangerous weapon is

dependent upon a showing of its actual use as a dangerous weapon. See Iowa

Code § 702.7; State v. Durham, 323 N.W.2d 243, 245 (Iowa 1982). The manner

in which a defendant uses a knife may indicate the defendant intends to cause
                                         7

death or serious injury to another. State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct.

App. 1996).

       The evidence in the present case shows Thomas held a knife to the throat

of Reed, who was an elderly woman, while he robbed her pawn shop. Reed

testified that during the incident he either held the knife to her throat or poked it

toward her. She stated he repeatedly told her, “I will kill you,” “I am going to kill

you,” and “I will come back and kill you.”       Thomas’s own written statement

indicates he reached out for Reed and showed her the knife. He also stated he

told her he would not do anything drastic if she did not scream, which indicates

he would have done something drastic if she had screamed.

       Based on the evidence, we conclude Thomas has not shown a reasonable

probability the result of the trial would have been different if defense counsel had

objected to the jury instruction defining a dangerous weapon. We determine he

has not shown he received ineffective assistance of counsel.             We affirm

Thomas’s conviction for first-degree robbery.

       AFFIRMED.
