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IN THE COURT OF APPEALS OF IOWA No. 7-850 / 07-0113 Filed December 12, 2007 STATE OF IOWA, Plaintiff-Appellee, vs. MARCUS C. DRAPER, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.

Marcus C. Draper appeals his conviction and sentence for theft in the first degree. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.

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EISENHAUER, J. Marcus C. Draper appeals his conviction and sentence after a jury trial for theft in the first degree in violation of Iowa Code sections 714.1(2), 714.2(1) (2005). Finding no error, we affirm. I. BACKGROUND FACTS AND PROCEEDINGS. In August 2006, Draper and Joseph Ayala left a bar in Cedar Falls at closing time. At some point Ayala was unconscious on the ground bleeding from his head. Two security guards saw an African-American male in a white tee shirt go through Ayala's pockets and remove Ayala's black wallet. One guard saw this male run away and enter a 1998 maroon Dodge Intrepid. Draper is an AfricanAmerican male and was wearing a white tee shirt that evening. The police regularly patrol the bar's parking lot at closing time and Officer Smith arrived to help Ayala. Security officers and several bar customers were pointing to the Intrepid in an effort to help Officer Smith sort out what had happened. Officer Smith noted the vehicle's license number and saw it leave at a high rate of speed without its headlights on. Ayala, who had regained Officer Smith

consciousness, told Officer Smith his wallet was missing.

broadcast the license number of the Intrepid over the radio. Within minutes of the broadcast and about one-half mile away from the bar, Draper was stopped while driving a maroon Intrepid without its headlights on. The car contained three females and one other African-American male in the back seat wearing a red tee shirt. Draper's sister-in-law, Latasha Robinson, was the owner of the maroon Intrepid and a passenger as the car left the bar. Robinson testified Draper had a

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black wallet in his hands and he told her to toss the wallet when the police started to pursue the car because Draper was concerned about a theft or robbery charge if the wallet was found. Robinson refused to toss the wallet. found Ayala's wallet in the Intrepid's back seat. Draper was charged with theft in the first degree and convicted after a jury trial. On appeal, Draper claims the prosecutor removed one juror on the basis of race in violation of his equal protection rights, photographic evidence of the victim's injuries was improperly admitted, and his trial counsel was ineffective. II. STANDARD OF REVIEW. We review constitutional claims de novo. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). We review evidentiary rulings for an abuse of discretion. State v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). We review claims of ineffective assistance of counsel de novo. 2007). III. MERITS. A. BATSON CHALLENGE. Draper and juror number sixty-four are both African-American. The Hannan v. State, 732 N.W.2d 45, 50 (Iowa Police

prosecutor used a peremptory challenge to strike juror sixty-four and Draper claims this action violates his equal protection rights under Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24, 90 L. Ed. 2d 69, 87-88 (1986). The Batson court held under the equal protection clause, a prosecutor may not use peremptory strikes to challenge potential jurors solely on account of their race. Id. Batson requires a three-step process in evaluating Draper's argument. First, Draper must make a prima facie showing that peremptory challenges were

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exercised on the basis of race. See Miller-El v. Cockrell, 537 U.S. 322, 328, 123 S. Ct. 1029, 1035, 154 L. Ed. 2d 931, 945 (2003). Second, the prosecution must provide race-neutral reasons for striking juror sixty-four. Id. Third, the trial court evaluates the parties' submissions and determines whether Draper has shown purposeful discrimination. Draper argued juror sixty-four was the only African-American among the first twenty-seven potential jurors and was one of only three in the entire jury panel. Draper has made the prima facie showing required by Batson. The State then offered non-discriminatory reasons for using its peremptory challenge: [D]uring the voir dire of [#64] I posed to her a series of questions along the lines of exploring her attitudes about reasonable doubt and circumstantial evidence. . . . [I used] a case that I actually prosecuted where there was a blood trail that led from a storefront through an alley into defendant's mother's apartment. And the blood trail, if a juror follows the circumstantial evidence; the natural conclusion would be that the defendant is responsible for having stolen the items from the storefront. [#64] did not seem to accept that, at least, not readily. She

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