Summary
finding the defendant's inability to perform field sobriety tests is evidence that he or she is under the influence when there is nothing else in the record to explain the inability to complete them
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No. 2-676 / 01-1961
Filed October 16, 2002
Appeal from the Iowa District Court for Shelby County, J.C. Irvin, Judge.
Defendant appeals his conviction, following non-jury trial, for operating while intoxicated (third offense) in violation of Iowa Code section 321J.2 (1999). AFFIRMED.
Roger Sutton of Sutton Law Office, Charles City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Jeffrey Larson, County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Douglas Merlyn Heilesen appeals his conviction, following non-jury trial, for operating while intoxicated (third offense) in violation of Iowa Code section 321J.2 (1999). He contends there was not sufficient evidence to find him guilty of operating a motor vehicle while under the influence of alcohol. He does not claim the evidence was insufficient to find he was operating a motor vehicle. His claim is limited to a claim there was not sufficient evidence to find that he was under the influence of alcohol when he admittedly operated his vehicle. He frames the issue as an ineffective assistance of counsel claim for purposes of error preservation. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On or about June 1, 2000 at approximately 11:46 p.m. Shelby County Sheriff's Deputy Kelly Lefeber received a report of a car in a ditch in Prairie Rose State Park. Lefeber drove to the scene and found the car in the ditch but no one around. He did not see any alcohol in or around the car. He and another deputy searched for the driver and possible passengers in the immediate area and found none. Lefeber then got in his squad car and left the scene to search for the driver. He found Heilesen walking along the side of the road somewhere between 200 and 400 yards from the vehicle. Heilesen admitted he had been driving the vehicle found in the ditch. He told the deputy that he had lost control and went in the ditch when two wheels went off the road onto the gravel.
Lefeber took Heilesen back to the scene of the accident. Lefeber noticed Heilesen had an odor of alcohol, seemed clumsy in his actions, and had red, bloodshot eyes. However, Heilesen denied he had been drinking when asked by Lefeber.
Deputy Lefeber performed several field sobriety tests on Heilesen. Heilesen failed four of the six parts of the horizontal gaze nystagmus test, a result that indicated intoxication to Lefeber. Heilesen was unsteady on his feet, raised his arms to balance himself, failed to touch his heels to his toes as instructed, and deviated from the line during the walk-and-turn test. This result also indicated intoxication to Lefeber. Finally, Heilesen put his foot down twice while performing the one-leg stand test, also indicating intoxication. In his report Deputy Lefeber noted that Heilesen had failed all of the field sobriety tests performed.
Lefeber arrested Heilesen for suspicion of operating while intoxicated and transported him to the Shelby County Jail. At approximately 12:26 a.m. on June 2, 2000 Lefeber asked Heilesen to give a breath sample using an intoxilyzer machine and Heilesen agreed to do so. Lefeber was certified to operate the intoxilyzer and the machine was certified by the Iowa Department of Public Safety. This test showed Heilesen had a breath alcohol concentration of 0.095. However, a few minutes later another deputy pointed out to Lefeber that the test was invalid, noticing that the error light on the machine had come on. Lefeber had apparently not noticed the light because the machine was on a high shelf and he was not tall enough to easily see it. It appeared the error had occurred because Heilesen had either not blown hard enough or not blown long enough into the machine.
At approximately 1:21 a.m. Lefeber conducted another intoxilyzer test. He discontinued the second test when the error light came on again during the test, apparently because Heilesen stopped blowing too soon once again. Lefeber performed a third test at about 1:28 a.m. Prior to administering the test he ran two "air blanks." This was done as one of the steps in the intoxilyzer checklist which is to be completed each time before administering a test. Lefeber testified at trial that he went through every step of the procedure specified by the checklist in administering the third test to Heilesen. The third test showed Heilesen's alcohol concentration to be 0.117. Lefeber then charged Heilesen with operating while intoxicated and turned him over to the jail staff.
A non-jury trial was held September 14, 2001. The court found Heilesen guilty of operating a vehicle while intoxicated (third offense) in violation of Iowa Code section 321J.2 (1999). The court did find that the had State failed to prove beyond a reasonable doubt the third intoxilyzer test was administered within two hours after Heilesen's operation of the vehicle and therefore the State was not entitled to a presumption that the test result was Heilesen's alcohol concentration at the time he was driving. However, the court found the result of the test was admissible under section 321J.18. The district court concluded that based on Heilesen's appearance, his failure of the field sobriety tests, and the breath tests results, the State had established beyond a reasonable doubt Heilesen was under the influence of an alcoholic beverage while operating a motor vehicle. Heilesen appeals this conviction alleging there was insufficient evidence to prove he was under the influence of an alcoholic beverage while operating a motor vehicle as required by section 321J.2(1)(a).
II. PRESERVATION OF ERROR
Heilesen's counsel did not challenge the sufficiency of the evidence at the trial court level by a motion for judgment of acquittal. Heilesen contends that this issue can still be raised on appeal because he is raising it as a claim of ineffective assistance of counsel for failure to submit such a motion. However, Heilesen is mistaken in his belief that he must claim ineffective assistance in order to present on appeal the issue of insufficiency of the evidence. "[W]hen a criminal case is tried to the court, a defendant may challenge the sufficiency of the evidence on appeal irrespective of whether a motion for judgment of acquittal was previously made." State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Accordingly, as suggested by the State, we bypass Heilesen's ineffective assistance claim and address the merits of his underlying challenge to the sufficiency of the evidence.
III. SCOPE AND STANDARDS OF REVIEW
Our scope of review is on assigned error. Iowa R.App.P. 6.4; State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). It is the same on a defendant's appeal from a criminal conviction whether the court or a jury is the fact finder. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988).
The standard of review in a challenge to the sufficiency of the evidence is well established. Dible, 538 N.W.2d at 270. We will uphold a verdict where substantial evidence in the record tends to support the charge. Id. A trial court's finding of guilt is binding on appeal if supported by substantial evidence. Iowa R.App.P. 6.14(6)( a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
In a criminal case tried to the court, as in a civil case tried to the court at law, the court's verdict is like a jury verdict. Upon review of the sufficiency of evidence to support the verdict, we view the evidence in the light most favorable to the verdict, and we accept as established all reasonable inferences tending to support it. Findings of the trial court are to be broadly and liberally construed, rather than narrowly or technically, and, in case of ambiguity, we will construe findings to uphold, rather than defeat, the judgment. Direct and circumstantial evidence are equally probative so long as the evidence raises a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture. It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.
Dible, 538 N.W.2d at 270 (internal quotations and citations omitted).
IV. MERITS
As set forth above, Heilesen argues there was not sufficient evidence in the record to find him guilty of operating a motor vehicle while under the influence of alcohol because there was insufficient evidence that he was under the influence of alcohol. For the reasons set forth below, we disagree.
First, Heilesen admitted to Deputy Lefeber that he lost control of his vehicle when he dropped two of his wheels off onto the gravel on the side of the road and ended up in the ditch. A defendant's manner of driving is relevant evidence to be considered in determining whether he or she was under the influence of alcohol. State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992); State v. Walker, 499 N.W.2d 323, 325 (Iowa Ct.App. 1993).
Second, Lefeber testified that Heilesen smelled of alcohol, had red, bloodshot eyes, and seemed clumsy in his actions. Heilesen's actions and physical appearance immediately after the accident are relevant to the question of intoxication and support the trial court's finding he was under the influence of alcohol at the time of the accident. Walker, 499 N.W.2d at 325; see also State v. Pieper, 432 N.W.2d 701, 704 (Iowa Ct.App. 1988) (finding defendant's red and watery eyes and odor of alcoholic beverage on defendant were evidence he was under the influence of alcohol); Iowa Criminal Jury Instruction 2500.5 (stating a person is under the influence when, by drinking alcohol, the person has, to any extent, lost control of bodily actions or motions.).
Third, the results of all three of the field sobriety tests performed by Deputy Lefeber at the scene of the accident indicated Heilesen was intoxicated. A defendant's inability to perform these tests is evidence that he or she is under the influence of alcohol. Pieper, 432 N.W.2d at 704. Nothing in the record supports any other reason for Heilesen's inability to perform these tests.
Fourth, the result of the third intoxilyzer test showed Heilesen's alcohol concentration level to be 0.117, showing him to be legally intoxicated at the time of the test. See Iowa Code § 321J.2(1)(b). The district court was correct in finding the State was not entitled to the presumption that this test result showed Heilesen's alcohol concentration at the time he was driving because the State could not show the test was administered within two hours after Heilesen had been driving. See Iowa Code § 321J.2(8)(a). However, as the court also properly found, the test result was admissible and could be considered on the question of whether Heilesen was under the influence of alcohol while operating his vehicle. See Iowa Code § 321J.18.
Heilesen argues this third test was not accurate and could not be relied upon as evidence of intoxication because Lefeber did not run an "air blank" to complete the second invalid test. However, the evidence shows Lefeber in fact ran two "air blanks" through the machine before administering the third test which yielded the 0.117 result. The fact Lefeber did not run an air blank to complete the second invalid test after abandoning it had no bearing on the results of the third test. The record demonstrates Lefeber followed all of the required procedures and completed the entire intoxilyzer checklist in administering the third test. Thus, there is no support in the record for Heilesen's contention that the results of the third test were not shown to be accurate and should not be considered.
Viewing the evidence in the light most favorable to the State we conclude there was sufficient evidence to support Heilesen's conviction for operating while intoxicated. Heilesen's appearance at the scene of the accident, the results of the field sobriety tests, and the result of the third intoxilyzer test constitute substantial evidence supporting the trial court's determination that Heilesen was under the influence of alcohol while operating a motor vehicle in violation of Iowa Code section 321J.2. Heilesen's conviction is affirmed.