Opinion
No. 4-761 / 03-1989
Filed May 11, 2005
Appeal from the Iowa District Court for Dubuque County, Randall Nigg, District Associate Judge.
Joseph Mussehl appeals his conviction for operating while intoxicated, second offense. AFFIRMED.
Robert Sabers, of the Sabers Law Firm, Dubuque, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Fred H. McCaw, County Attorney, and Michael Whalen, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
The State charged Joseph Mussehl with operating a motor vehicle while intoxicated, second offense. Iowa Code §§ 321J.2(1)(a), (b), and 321J.2(2)(b) (2001). A jury found him guilty. Mussehl then filed a motion for new trial, raising several grounds for relief. The district court denied the motion, as well as a second motion to reconsider. This appeal followed.
Mussehl stipulated to the earlier conviction.
On appeal, Mussehl makes the following arguments: (1) the guilty verdict was against the weight of the evidence; (2) he was denied a fair trial as a result of the State's claimed failure to timely turn over a videotape of the encounter as well as other acts and omissions; and (3) the State's repeated discovery violations warranted dismissal of the case.
I. Verdict Contrary to Weight of Evidence
The State had to prove Mussehl was operating a motor vehicle while intoxicated. Mussehl concedes he was intoxicated. He focuses on the other key fact question: Whether he was "operating" his vehicle. On this question, Mussehl contends there were two versions of events, one proffered by law enforcement officers and the other set forth in his testimony and that of his former wife. While conceding that factual discrepancies among witnesses may not alone warrant a new trial, he argues the videotape of the encounter "contradicts the testimony of the deputies" and renders the verdict "clearly against the weight of the evidence." See State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001) (citing State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998)) ("A verdict is contrary to the weight of the evidence where `a greater amount of credible evidence supports one side of an issue or cause than the other.'").
The jury was instructed that "[t]he term `operate' means the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running."
The State counters that error was not preserved. We will bypass the State's error preservation concerns and proceed to the merits. State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
Law enforcement officers testified as follows. Dubuque County Deputy Sheriffs Higgins and Pothoff were in Mussehl's neighborhood investigating a report of an altercation. As Higgins drove past Mussehl's home, he observed a pickup truck parked with its bumper "up tight against the back of a car" in front of it. Higgins relayed this information to Deputy Pothoff behind him who, in turn, got out of his car and started walking up the driveway. At about the same time, Deputy Higgins stated that he stopped his car along the road, shined a spotlight into the driveway, and saw a man "slumped over the steering wheel" of the pick-up. Deputy Pothoff walked over to the pickup and confirmed that Mussehl was "slouched over in the driver's seat," apparently asleep. The headlights were turned on, the brake lights were illuminated, and the pickup was in gear and running. The deputies determined Mussehl was intoxicated.
Mussehl and his ex-wife, Gail, testified as follows. Mussehl did not remember getting into his truck but stated he did not have his keys with him when he left the house. He also testified that the gear indicator on the steering panel was broken and, as a result, the indicator always signaled that the vehicle was in gear. Gail testified that she awoke from a nap to find her husband passed out on the driver's side of his pickup truck. She went into the house, took the keys to the pickup from the kitchen table and started the engine to "get some heat in there for him." She recalled also turning on the headlights and she corroborated Mussehl's testimony concerning the inoperability of the gear indicator.
We disagree with Mussehl's contention that these stories contradict each other. On the question of whether Mussehl was operating the vehicle, there is no dispute that Mussehl was in the driver's side of the truck, the truck was running, and both the headlights and brake lights were on. This undisputed evidence is sufficient to establish that the vehicle was being operated. Cf. State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (finding, on sufficiency-of-the-evidence review, woman found "unconscious in the driver's seat, with all controls within her reach," keys in the ignition, parked along side road had been "operating" vehicle); State v. Murray, 539 N.W.2d 368, 369-370 (Iowa 1995) (finding person slumped over steering wheel with engine running was "operating vehicle" and noting "actual physical control" or operation does not require vehicle movement or actual driving of vehicle); State v. Fox, 248 Iowa 1394, 1400, 85 N.W.2d 608, 611 (Iowa 1957) (finding person was "operating" vehicle where he was passed out in vehicle with engine running, arms over steering wheel, one foot on brake pedal and car in drive gear); State v. Webb, 202 Iowa 633, 637, 210 N.W. 751, 752 (1926) (holding starting of engine is first step in operation of car and defendant not entitled to instruction that motor vehicle not being "operated" when standing still); but see Munson v. Iowa Dep't of Transp., 513 N.W.2d 722, 724-25 (Iowa 1994) (finding person asleep in vehicle was not "operating" vehicle where ignition in "on" position and radio on, but there was no evidence of engine running).
While the Mussehls' testimony raised the additional question of who started the vehicle, that question is not pertinent to the analysis of whether Mussehl was "operating" a motor vehicle. See State v. Weaver, 405 N.W.2d 852, 854-55 (Iowa 1987). The State merely had to show that Mussehl exercised "physical control" over a running motor vehicle. See Iowa Criminal Jury Instruction 2500.6. As the record on this aspect of the case was undisputed, we are not convinced witness credibility was an issue, as Mussehl claims.
In Weaver, the jury was also instructed that the person need only have been "in a position to have present or potential capability to activate or direct the movements of the vehicle regardless of whether the person is exercising that capability at the time of the alleged offense." 405 N.W.2d at 855. The present uniform jury instruction does not contain this language. See Iowa Criminal Jury Instruction 2500.6.
This brings us to the videotape. Contrary to Mussehl's assertion, the videotape of the encounter does not undermine the law enforcement officers' version of events, but confirms that (1) the vehicle was running when the officers approached it and (2) Mussehl had his foot on the brake. The tape's contents, therefore, independently establish that Mussehl was "operating" the motor vehicle.
As for cited inconsistencies between the videotape and other portions of the officers' testimony, we find those inconsistencies immaterial. For example, it makes no difference whether Deputy Higgins first saw Mussehl from the road or from his later vantage point next to the truck, as there is no question that the officers had a right to be on the driveway. See State v. Lewis, 675 N.W.2d 516, 523 (Iowa 2004) (stating Fourth Amendment does not prohibit police from entering driveway). Similarly, the officers' decision to initially bypass Mussehl and examine other aspects of the scene in no way undermines their testimony that he was indeed behind the wheel of the pick-up. And, it matters little that a reflection of the truck's steering wheel does not show Mussehl slumped over the wheel, as there is other evidence he was in the driver's seat and operating the vehicle. As for Mussehl's suggestion that he was "lying down" in the truck and, therefore, was not in a position to operate the vehicle, the illuminated brake lights dispel this notion.
Mussehl did not prevail on a motion to suppress grounded on this intrusion and he does not appeal that suppression ruling.
On an independent review of the videotape, we could not discern this reflection.
In sum, assuming credibility is an issue, the contents of the videotape do not impugn the credibility of the law enforcement officers on any material aspects of their testimony. The contents instead provide a basis for concluding that "a greater amount of credible evidence supports" the jury's verdict.
An additional basis for reaching this conclusion is found in Gail Mussehl's testimony. Although she claimed she was the person who started the truck, she admitted she did not tell her husband about her involvement until a "few months" before trial. Therefore, even if her testimony were relevant to the "operating a motor vehicle" question, the testimony was impugned.
We conclude the district court did not abuse its discretion in denying Mussehl's motion for new trial to the extent it alleged the verdict was contrary to the weight of the evidence. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (setting forth standard of review).
II. Denial of Fair Trial
Mussehl contends he was denied his due process right to a fair trial. He claims that exculpatory evidence in the form of the videotape was not disclosed to him until the day of trial, Deputy Higgins' testimony was "perjured" in light of the contents of the videotape, and the State engaged in several instances of prosecutorial misconduct. These issues have not been preserved for review, as they were first raised after trial. See State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002) (stating that an issue first raised in a motion for new trial is "clearly" raised "too late"); State v. Love, 302 N.W.2d 115, 121 (Iowa 1981), overruled on other grounds by State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001) (stating failure to object at time of trial resulted in waiver of right to complain in motion for new trial on appeal).
III. Sanctions for Noncompliance with Discovery Orders
Mussehl sought sanctions against the State for discovery violations. The district court ordered the State to pay $994.75 in attorney fees and ordered the State to provide the discovery at no cost to Mussehl. The court declined Mussehl's additional request to dismiss the charge. The court reasoned, "the remedy of dismissal of the charge is too drastic without a showing of any real prejudice to the defendant's defense."
Mussehl takes issue with this reasoning, arguing that he suffered prejudice in the form of "stress and turmoil," the cost of legal fees, and the inability to cross-examine Deputies Pothoff and Higgins regarding alleged inconsistencies in their testimony.
Discovery sanctions are reviewed for an abuse of discretion. Krugman v. Palmer College of Chiropractic, 422 N.W.2d 470, 473 (Iowa 1988). We discern no abuse. Mussehl's attorney was paid for time he spent pursuing discovery failures. Although he did not recoup all that he expended, the court explained that certain itemizations were simply too general to be compensable. As for Mussehl's present assertion that prejudice inured in the untimely disclosure of the videotape, Mussehl did not request a copy of the videotape in discovery and his motion for sanctions did not argue prejudice on this basis.
IV. Disposition
We affirm Mussehl's judgment and sentence for operating while intoxicated (second offense).