Opinion
No. 5-750 / 04-1961
Filed November 23, 2005
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
The defendant appeals from his conviction and sentence for burglary in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, and William E. Davis, County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Derrick Baldwin appeals from his conviction and sentence following a jury trial for burglary in the second degree, in violation of Iowa Code section 713.5(2) (2003), a class C felony. He alleges his trial counsel was ineffective for allowing into evidence a comment by the victim on cross examination that Baldwin had previously "broke[n] into" a fitness center where she worked out. Baldwin's trial counsel immediately clarified her statement, that Baldwin simply entered the fitness center without a membership.
Baldwin has the burden of proving (1) the attorney's performance fell below "an objective standard of reasonableness" and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Where it is clear from the record available that no prejudice resulted from counsel's unprofessional error, we may decide the ineffectiveness claim on direct appeal. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). The evidence of Baldwin's guilt was overwhelming, including his admissions of entering the victim's home in the middle of the night, without permission, entering her bedroom partially unclothed and inappropriately touching her. In light of the evidence against him, the brief and quickly-clarified mention of being at the victim's gym without being a member was not prejudicial, as exclusion of the comment would not create a reasonable probability of a different outcome. See State v. Reynolds, 670 N.W.2d 405, 415 (Iowa 2003).
We affirm Baldwin's conviction and sentence for burglary in the second degree.