STATE v. MARTIN, 690 N.W.2d 698 (Iowa App. 2004)

No. 4-504 / 03-1500.Court of Appeals of Iowa.
Filed August 11, 2004

Appeal from the Iowa District Court for Black Hawk County, Walter W. Rothschild, Judge.

Defendant appeals his conviction and sentence for theft in the third degree. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, Thomas Ferguson, County Attorney, and Michael Bandy and Jill Dashner, Assistant County Attorneys, for appellee.

Considered by Sackett, C.J., and Vogel and Zimmer, JJ.

VOGEL, J.

Edward Martin III, appeals his conviction for theft in the third degree claiming trial counsel was ineffective for failing to object to the arresting officer’s testimony about an unrelated traffic violation. Finding no prejudice, we affirm.

On the morning of March 30, 2003, Martin and Michael Stigler, Jr. spent a couple of hours at 3 Star Mart, a convenience store, with a Burger King attached by a hallway. The two men were apparently out of gas and were seen asking several customers for money to fill up their gas tank. At one point, Stigler asked the convenience store clerk for a glass of water. The clerk went to the back room to obtain the glass of water. The clerk was then informed that a Burger King customer had observed Martin taking cases of beer out an exit door, to a mini-van and later to the truck the men had initially arrived in. The clerk and the Burger King manager went outside towards the truck to talk with Martin and Stigler. They attempted to stop the truck but were unsuccessful. They waived down a police officer at a nearby stoplight and informed him of the situation. Waterloo Police Officer Michael Vauthier pursued and stopped the truck. Martin, the driver, admitted to taking “a couple of beers” and was subsequently arrested and charged with theft in the third degree for stealing four cases of beer from the convenience store. After a jury trial, Martin was convicted as charged.

On appeal, Martin’s only contention is that trial counsel was ineffective for failing to object to Officer Vauthier’s testimony regarding an unrelated traffic violation. The challenged testimony was as follows,

Q. Did you see who the driver of the truck at that time was?
A. Yes, I did.
Q. Did you ask him for any form of identification?
A. Yes, I did.
Q. Were you able to identify the driver of that truck?
A. The driver of the truck gave me an Iowa ID and stated he didn’t have a driver’s license.
Q. Who was that individual according to that ID?
A. Edward Martin.

. . .

Q. What did you do at that point?
A. When I first talked to the — to the two occupants, Edward Martin told me his license was suspended, so I went ahead and put him in the back seat of my patrol car, and another officer arrived, and he put the other occupant in his car.

No objection was made to the reference of Martin driving with a suspended driver’s license. The testimony continued with no further mention or discussion of Martin driving with a suspended license.

Even if trial counsel had a duty to object to such testimony, Martin has not shown prejudice as a result of this failure. At trial a witness testified that he saw Martin, who had asked him earlier for money for gas, take two cases of beer out of the building on two occasions that morning. The convenience store clerk testified that he did not sell any beer to Martin or Stigler. When Martin was stopped by Officer Vauthier, Martin admitted to taking a couple of beers and all four cases of beer were found in the truck he was driving. The evidence against Martin was overwhelming. Driving with a suspended license is a minor violation and the reference to it was brief. See Iowa Code § 321.218 (2003) (providing that driving with a suspended license is a simple misdemeanor). Martin has failed to show that had his trial counsel objected to the testimony, the outcome of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674, 698 (1984). Finding no prejudice, we affirm Martin’s conviction and sentence for theft in the third degree.

AFFIRMED.