                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0753
                                  Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY DEMONTA THORPE JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.




      A defendant appeals his conviction asserting his counsel provided

ineffective assistance. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., Mullins, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                             2


SCOTT, Senior Judge.

         Anthony Thorpe Jr. appeals his conviction for second-degree robbery

following a jury trial. Thorpe asserts his counsel provided ineffective assistance

when counsel failed to object to the admission of portions of the jail-visit video

that he claims contains improper other-bad-acts evidence. See Iowa R. Evid.

5.404(b). Because the jury was able to consider this evidence, Thorpe claims he

suffered prejudice. Assuming without deciding counsel should have objected to

the portions of the video Thorpe contends were improper, we affirm Thorpe’s

conviction because we conclude Thorpe cannot prove the result of the

proceeding would have been different.

I. Background Facts and Proceedings.

         Lindsey Sprouse left work at the Von Maur in West Des Moines a few

minutes after 6 p.m. on November 22, 2015, and headed to her vehicle in the

parking lot.     She was approached by an individual dressed in dark clothing

wearing a black ski mask. She could see the individual’s eyes and nose but not

the rest of the person’s face. The individual pointed a gun1 at her, and Lindsey

handed over her car keys, wallet, and cell phone. When the individual turned to

get into Lindsey’s vehicle, Lindsey ran to a coworker, who was getting into her

own vehicle a few rows away. The coworker called the police as the individual

driving Lindsey’s car drove out of the parking lot at a high rate of speed.

         The police dispatched the information regarding the description of the

individual and the vehicle’s year, make, model, color, and license plate number.

An officer in Windsor Heights heard the dispatch, and within seconds, he

1
    It was later determined the gun was a BB gun.
                                           3


observed a vehicle and driver matching the description pulling into the Walmart

parking lot. The officer pulled directly behind the vehicle as the vehicle pulled

into a parking space, blocking its exit; confirmed the license plate matched the

stolen vehicle; and ordered the driver, Thorpe, to exit with his hands in the air.

Officers discovered a BB gun in Thorpe’s coat pocket, and on the passenger side

seat, the police observed a black ski mask and Lindsey’s wallet.

       Lindsey was transported to the Walmart parking lot where she positively

identified Thorpe as the individual who had stolen her vehicle.           Thorpe was

charged with second-degree robbery and held in jail. While in jail, Thorpe spoke

with a visitor through the jail’s video system. A short portion of that visit was

introduced and shown at the jury trial, which occurred February 22, 2016. The

jury found Thorpe guilty as charged, he was sentenced to ten years in prison with

a seventy-percent mandatory minimum, and the fine was suspended.2

II. Scope and Standard of Review.

       Our review of a claim of ineffective assistance of counsel is de novo in

light of the claim’s constitutional nature. Nguyen v. State, 878 N.W.2d 744, 750

(Iowa 2016). When the claim is made on direct appeal, we must determine

whether the record is adequate to resolve the claim or whether it must be

preserved for postconviction relief proceedings. State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010).        Upon our review of the record in this appeal, we

determine the record is adequate to address Thorpe’s claim.



2
  During the trial, Thorpe also pled guilty to driving while barred. He was sentenced to
ninety days in jail but given credit for ninety days already served. He does not appeal
that conviction.
                                             4


III. Ineffective Assistance of Counsel.

       In order to prove a claim of ineffective assistance, Thorpe must show

counsel failed to perform an essential duty and he suffered prejudice as a result.

See Nguyen, 878 N.W.2d at 752.               Both elements must be proved by a

preponderance of the evidence.         Id.   “[W]e measure counsel’s performance

against the standard of a reasonably competent practitioner.”             Id. (citations

omitted). We presume counsel acted competently.              Id.   To prove prejudice,

Thorpe must show a reasonable probability the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

       The evidence Thorpe challenges on appeal is the jail-visit video that was

played for the jury. In the video, Thorpe is heard informing his visitor that he was

getting kicked out of his home at the time of the incident. He stated he told the

person he was living with that he was going to bring her “ten bands” and that he

had “a lick on sixty bands.”3 The visitor questioned why Thorpe would steal a

purse, and Thorpe explained that it was only his “first step” to “take the woman’s

car, park the car somewhere, and wait till tomorrow” so that “I can go hit this

Western Union.” The video was played for the jury without objection from trial

counsel, and Thorpe on appeal claims the reference to obtaining sixty bands and



3
  On appeal, defense counsel and the State dispute whether in the video Thorpe says he
was going to obtain “bands” or “bags,” and they dispute the correct interpretation of
those terms. Upon our review of the video, we agree with the State’s assertion that
Thorpe says the word “bands.” However, in light of the overwhelming evidence of guilt
in the case, it is unnecessary to delve into the details of the words and what they might
have meant to the jury.
                                              5


hitting the Western Union was inadmissible bad-acts evidence under Iowa Rule

of Evidence 5.404(b).4

          Assuming without deciding that the statements Thorpe made on the video

that he was going to obtain sixty bands and that he planned to use the vehicle he

stole to “hit” the Western Union the next day were bad-acts evidence that should

have been excluded under rule 5.404(b), we conclude Thorpe’s claim of

ineffective assistance still fails. The State presented overwhelming evidence that

Thorpe was the individual that held Lindsey at gun point and stole her wallet, cell

phone, and vehicle. Thorpe was apprehended in Lindsey’s vehicle minutes after

the robbery and only a short distance away from the scene. Thorpe was the only

occupant of the vehicle and was in possession of a BB gun. Inside the vehicle,

the police discovered Lindsey’s wallet, keys, and cell phone, and a black ski

mask that Lindsey testified did not belong to her but was worn by her assailant.

Lindsey was able to identify Thorpe as the perpetrator at the scene on the night

in question. And while Thorpe asserts portions of the jail-visit video should have

been excluded, he concedes the portion of the video, where he states his first

step was to take the woman’s car and park it somewhere, was properly admitted.

In this court’s view, this statement amounts to an admission by Thorpe that he

committed the charged crime.



4
    Rule 5.404(b) provides:
          Crimes, wrongs, or other acts.
                  (1) Prohibited use. Evidence of a crime, wrong, or other act is not
          admissible to prove a person’s character in order to show that on a
          particular occasion the person acted in accordance with the character.
                  (2) Permitted uses. This evidence may be admissible for another
          purpose such as proving motive, opportunity, intent, preparation, plan,
          knowledge, identity, absence of mistake, or lack of accident.
                                        6


      Because we conclude there is no reasonable probability of a different

outcome had defense counsel objected to, and the trial court excluded, the

portions of the jail-visit video Thorpe finds objectionable on appeal, he cannot

established he was prejudiced by counsel’s failure to object, and his ineffective-

assistance claim fails. See State v. Braggs, 784 N.W.2d 31, 34 (Iowa 2010)

(noting an ineffective-assistance claim fails “if either element is lacking”). We

affirm Thorpe’s conviction and sentence.

      AFFIRMED.
