5 IN THE COURT OF APPEALS OF IOWA No

5 in the court of appeals of iowa no. 2-802 / 01-1758 filed october 30, 2002 state of iowa, plaintiff-appellee, vs.

5
IN THE COURT OF APPEALS OF IOWA
No. 2-802 / 01-1758
Filed October 30, 2002
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LOUIS ANTHONY AMODEO,
Defendant-Appellant.
Appeal from the Iowa District Court for Polk County, Larry J.
Eisenhauer, Judge.
Louie Amodeo appeals from the judgment and sentence entered upon his
conviction for first-degree harassment following a bench trial.
AFFIRMED.
Jeffrey Mains of Benzoni & Mains, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant
Attorney General, John P. Sarcone, County Attorney, and John Judisch,
Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Eisenhauer, J., takes no part.
MAHAN, J.
Louie Amodeo appeals from the judgment and sentence entered upon his
conviction for first-degree harassment, an aggravated misdemeanor,
following a bench trial. He contends (1) the district court erred in
overruling his hearsay objection, and (2) his trial counsel rendered
ineffective assistance of counsel by failing to object to the
questions he was asked on cross-examination. We affirm.
Background Facts and Proceedings. On April 17, 2001, Michelle Sanford
and her eight-year-old daughter, Katie McConnell, drove to a
convenience store to buy groceries. Sanford sent her daughter into the
store but forgot to give her money. To get McConnell’s attention,
Sanford honked her horn one time. At this time, Amodeo turned away
from the pay phone, located outside the convenience store, and said to
Sanford, “Who you honking at, you fucking fat bitch. I know you are
not honking at me.” Amodeo also said to Sanford, “You don’t know who
you are fucking with, I am Mafia, I can cut you up, kill you, put you
in a bag, and throw you in the river, and nobody would know it.” From
inside the store, McConnell heard Amodeo swear at and threaten her
mother. Tracy Armstrong, the convenience store clerk, also witnessed
the incident. She went to the door and heard Amodeo say, “Get your
fucking ass back inside the store before I kill both you and her.”
Sanford attempted to leave but stopped when she saw Amodeo drive away.
On May 22, 2001, Amodeo was charged by trial information with
first-degree harassment in violation of Iowa Code sections 708.7(1)(b)
and 708.7(2) (2001). A bench trial commenced on July 25, 2001. On
October 5, 2001, Amodeo was found guilty and the district court
imposed a suspended sentence. Amodeo appeals.
Alleged Hearsay. We review the admission of hearsay for errors of law,
not for abuse of discretion. State v. Long, 628 N.W.2d 440, 447 (Iowa
2001). However, we give deference to the district court’s factual
findings and uphold such findings if they are supported by substantial
evidence. Id.
Amodeo contends the district court erred by allowing hearsay to be
admitted into evidence during Officer Cornwell’s direct examination.
Hearsay is an out-of-court statement, other than one made by a
declarant while testifying at trial, offered to prove the truth of the
matter asserted. Iowa R. Evid. 5.801(c). Hearsay is not admissible
except as provided by the Iowa Constitution, by statute, by the rules
of evidence, or by other rules of the Iowa Supreme Court. Iowa R.
Evid. 5.802.
During the trial, Officer Cornwell testified Sanford told him that
Amodeo made the following statements: “I will kill you and cut you up,
throw you in the river, you fat fucking bitch. I will kill your
fucking daughter, don’t fuck with me.” “You don’t know who you are
fucking with, you fat bitch.” We, first of all, conclude this
testimony was not hearsay because it was not offered to prove the
truth of the matter asserted. The officer was simply testifying
concerning the reason he found it necessary to take responsive action.
Thus, his testimony was “admissible as necessary to complete the story
of the crime on trial.” State v. Rush, 242 N.W.2d 313, 319 (Iowa
1976). “Generally, an investigating officer may explain his actions by
testifying as to what information he had and its source regarding the
crime and the criminal.” State v. Reynolds, 250 N.W.2d 434, 440 (Iowa
1977).
Even assuming this testimony was improperly admitted hearsay we
conclude it was not prejudicial to Amodeo. If the error is not of
constitutional dimension, affecting a fundamental right, we review the
inadmissible statements weighed against the other evidence properly
admitted to determine if admission of the statements impacted the
jury’s verdict. State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App.
1999). The test for harmless error in this circumstance is “whether it
sufficiently appears that the rights of the complaining party have
been injuriously affected or that the party has suffered a miscarriage
of justice.” State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998). To
warrant reversal, an error must have prejudiced the defendant. Id. “It
is elementary that the admission of evidence is not prejudicial error
where substantially the same evidence is in the record without
objection.” State v. Wells, 437 N.W.2d 575, 578 (Iowa 1989); State v.
Hood, 346 N.W.2d 481, 484 (Iowa 1984); State v. Jacoby, 260 N.W.2d
828, 834 (Iowa 1977).
In this case, three other witnesses testified about the statements
Amodeo made to Sanford without objection. Officer Cornwell’s
testimony, even if hearsay, was substantially the same evidence as the
testimony of those three witnesses. We find the district court’s
admission of this testimony did not prejudice Amodeo, given the
overwhelming evidence of his guilt in the record. Accordingly, we
affirm the district court on this issue.
Ineffective Assistance of Counsel. Amodeo claims his trial counsel was
ineffective for failing to object to questions he was asked on
cross-examination. We review such claims de novo. State v. Ledezma,
626 N.W.2d 134, 141 (Iowa 2001).
Ordinarily we preserve claims of ineffective assistance of counsel
raised on direct appeal for postconviction proceedings to allow full
development of the facts surrounding counsel’s conduct. State v. Atley,
564 N.W.2d 817, 833 (Iowa 1997). “Even a lawyer is entitled to his day
in court, especially when his professional reputation is impunged.”
State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). We resolve ineffective
assistance of counsel claims on direct appeal when the record is
adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa
1998). We conclude the record in this case is adequate to decide this
issue. In our discretion, we address the prejudice prong first. State
v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct. App. 1987). Amodeo must
prove that a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceedings would have been
different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987).
Amodeo fails in his attempt. The evidence against him was
overwhelming. As stated earlier, three eyewitnesses testified against
him. In addition, Amodeo himself admitted that a verbal confrontation
took place and even admitted to making threats, including the threat
to throw the victim in the river. Amodeo is simply unable to show
prejudice on his claim of ineffective assistance of counsel.
AFFIRMED.