Opinion
No. 2-270 / 01-0957.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
Larry Gross appeals from the judgment and sentence entered upon his convictions of third-degree burglary, possession of burglary tools, and interference with official acts. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
Larry Gross appeals from the judgment and sentence entered upon his convictions of third-degree burglary, possession of burglary tools, and interference with official acts. Gross was arrested and charged with these offenses after a police officer saw Gross and Robert Zimmerman walking away from the scene of multiple car burglaries at 1:30 a.m. on December 29, 2000. The officer saw Zimmerman discard an object later identified as a checkbook taken from one of the burglarized automobiles. Both Zimmerman and Gross were carrying tools suitable for forced entry of an automobile. Gross was also carrying prescription drugs taken from Jay Simonini's car the same night.
At trial Gross denied burglarizing any cars claiming Zimmerman was solely responsible for the burglaries. Gross testified he walked away from the scene of the burglaries after failing to dissuade Zimmerman from committing the burglaries. On cross-examination, Gross testified that Zimmerman gave him the prescription drugs taken from Simonini's car. The State, without objection, offered Simonini's testimony identifying the drugs as those taken from his car the same night to rebut Gross's testimony.
Gross was convicted and sentenced accordingly. On appeal Gross contends trial counsel was ineffective for failing to object to Simonini'stestimony as improper rebuttal and prior crimes evidence. He contends Simonini's testimony was improper because it not only did not rebut his statement that the pills had been given to him by Zimmerman, but it also violated Iowa Rule of Evidence 5.404(b), which provides for the exclusion of other crimes or prior bad acts evidence.
Our standard for reviewing ineffective assistance of counsel claims is well settled and will not be repeated here. See State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Even if we assume trial counsel had a duty to object to Simonini's testimony, Gross's claim fails because he has not shown the requisite prejudice. See Wemark v. State, 602 N.W.2d 810, 814-15 (Iowa 1999) (to succeed on ineffective assistance of counsel claim, defendant must show he was prejudiced by counsel's failure to perform essential duty). Gross was apprehended at one thirty in the morning leaving the scene of the burglary with burglary tools. Additionally, the arresting officer testified that he saw two sets of footprints in the snow leading to and away from the burglarized automobiles. This evidence conflicted with Gross's claim that he did not accompany Zimmerman to the burglary scenes. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (false story to explain material facts against defendant support inference of guilt). The jury could reasonably have inferred from this and other testimony that Gross was involved in the crimes. We find no reasonable probability, but for trial counsel's claimed errors, the result of the proceeding would have been different. See State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). We accordingly affirm.
AFFIRMED.