Opinion
No. 5-386 / 04-0616
Filed May 25, 2005
Appeal from the Iowa District Court for Scott County, Douglas McDonald, District Associate Judge.
Frank Whipple appeals his conviction for operating while intoxicated, second offense, and driving while under suspension. AFFIRMED.
Kent Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
On November 14, 2003, at 1:08 a.m. Bettendorf police officer John Majeske was summoned to the scene of a one-car accident on Utica Ridge Road. Upon arrival, he found a damaged Honda Civic that had apparently collided with and damaged one or more construction barriers placed on the roadway. The responding officers could not immediately locate the driver of the car, nor was the person reportedly seen walking around the car still at the scene of the accident. Frank Whipple's driver's license was found on the ground near the car.
The police department contacted the car's registered owner and determined that Whipple's girlfriend, Stacey Schara, with whom he resided, was the principal driver of the car. At about 1:20 a.m. investigating officers went to Schara's residence and spoke with Whipple and Schara about the accident. Whipple gave officers conflicting versions of his activities on the night before. He initially told officers that he left Schara's car at a school, but later said that he left it at a restaurant. Whipple also told officers that he arrived at Schara's house at 9:30 p.m., but subsequently changed the time of arrival to 1:30 a.m. Whipple admitted to officers that he had a few beers that night. Officer Jeffrey Buckles noted and later testified Whipple had an odor of alcoholic beverages on his breath and his eyes were watery. Officer Gina Johnson of the Davenport Police Department noted and later testified Whipple smelled of alcohol, his eyes were watery and bloodshot, his speech was slightly slurred, and he appeared unsteady on his feet. After he was taken into custody and transported to the police station, Whipple screamed obscenities, was belligerent, and refused to take a breath test. Officers subsequently determined Whipple's driver's license was suspended effective 12:01 a.m. on November 14, 2003.
As a result, Whipple was charged with operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2(1)(a) (2003); possession of drug paraphernalia, in violation of section 124.414(2); striking fixtures on a highway, in violation of section 321.265; failure to maintain control, in violation of section 321.288; and driving under suspension, in violation of section 321.218.
At trial the State's theory was that Whipple was driving Schara's car while under the influence of alcohol when the earlier described accident occurred. The State also claimed that the accident happened sometime between 12:01 a.m. and 1:08 a.m. on November 14, 2003, and that Whipple's driver's license suspension was in effect. The State's evidence supporting this theory included testimony from the investigating officers who questioned Whipple and Schara on November 14. They testified to their earlier noted observation of Whipple's intoxication, his contradictory statements concerning his whereabouts and arrival time at Schara's house, as well as his belligerent behavior following his arrest. Officer Majeske testified that Utica Ridge is a busy street and he assumed that the accident was reported immediately after it happened.
Whipple disputed the State's theory. He testified that he was driving Schara's car and that the accident occurred at around 11:00 p.m. on November 13, 2003. He also testified that he walked from the scene of the accident to Schara's house and that he consumed three alcoholic drinks before police officers arrived to question him.
Schara testified her mother drove her to the scene of the accident so she could see her car. She also testified that Whipple arrived at her house at 12:40 a.m. on November 14 and that she did not speak to Officer Johnson except to ask if she could talk to Whipple before he was taken to jail.
On rebuttal Johnson testified that she interviewed Schara at the scene of the accident and Schara told her Whipple did not arrive at her house until 1:00 a.m. on November 14 and that he did not have anything to drink after he arrived.
The jury returned guilty verdicts on all counts except the possession of drug paraphernalia count on which Whipple was acquitted. The district court denied Whipple's motion for judgment of acquittal.
After the trial, Whipple obtained new counsel and filed a motion for a new trial, claiming he received ineffective assistance of counsel and that the jury's verdict was contrary to the weight of the evidence. The court denied Whipple's ineffective assistance of counsel claims, finding that Whipple failed to show the requisite breach of an essential duty or resulting prejudice. The court also found the verdict was not contrary to the weight of the evidence, noting Whipple's lack of credibility and inconsistent statements to police officers. Whipple's motion for new trial was accordingly denied. Whipple was sentenced to a term of imprisonment not to exceed two years on the OWI conviction with all but sixty days suspended. On the other charges, he was ordered to pay a fine. Whipple appeals his convictions for OWI, second offense, and driving while suspended.
On appeal Whipple raises the following issues:
I. THERE WAS INSUFFICIENT EVIDENCE DEFENDANT WAS UNDER THE INFLUENCE AT THE TIME HE WAS DRIVING, AND THERE WAS INSUFFICIENT EVIDENCE DEFENDANT WAS DRIVING AT OR AFTER MIDNIGHT, WHEN THE SUSPENSION TOOK EFFECT.
II. THE DISTRICT COURT ABUSED ITS DISCRETION IN OVERRULING THE MOTION FOR NEW TRIAL, AS THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE.
III. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY PRESERVE THE SUFFICIENCY OF THE EVIDENCE QUESTIONS, IN CROSS-EXAMINATION OF A STATE'S WITNESS AND IN FAILING TO PRESENT CRITICAL EVIDENCE ON BEHALF OF THE DEFENSE.
II. Sufficiency of the Evidence
We review sufficiency of the evidence claims for errors of law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). We uphold a verdict if substantial evidence supports it. Id.
"Evidence is substantial if it would convince a rational fact finder the defendant is guilty beyond a reasonable doubt." Substantial evidence must do more than raise suspicion or speculation. We consider all record evidence, not just the evidence supporting guilt when we make sufficiency-of-the-evidence determinations. However, in making such determinations, we also view the "evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence."
State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005) (citations omitted).
Whipple argues that the State's evidence was insufficient as a matter of law to support his conviction on the OWI second and driving while suspended counts. He claims there is insufficient evidence to show he was under the influence at the time of the accident. He also claims there is insufficient evidence to show he was driving after midnight on November 14, 2003, when the suspension of his driver's license became effective.
To convict Whipple of operating while under the influence, the State was required to prove that Whipple was operating a motor vehicle while under the influence of an alcoholic beverage. See Iowa Code § 321.2(1)(a). A person is considered under the influence of alcohol when (1) the person's reason or mental ability has been affected; (2) the person's judgment is impaired; (3) the person's emotions are visibly excited; or (4) the person has, to any extent, lost control of bodily actions or motions. See State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992); State v. Walker, 499 N.W.2d 323, 325 (Iowa Ct.App. 1993).
To convict Whipple of driving while suspended, the State was required to prove that Whipple was driving the motor vehicle while his driver's license was suspended. See Iowa Code § 321.218.
Viewing the evidence in the light most favorable to the State, we find it sufficient to convince the jury beyond a reasonable doubt that Whipple was guilty of both OWI and driving while suspended. Evidence of Whipple's appearance and behavior when questioned by officers at 1:20 a.m. on November 14 is sufficient to prove he was intoxicated. Dominguez, 482 N.W.2d at 392. Moreover, Whipple's inconsistent statements and hostile behavior at the time indicate his consciousness of guilt. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). We additionally note evidence indicating the time police were summoned to the accident scene, a report of a person walking around the car at the scene of the accident, Officer Majeske's testimony the accident would have been promptly reported, as well as discovery of Whipple's driver's license at the accident scene as circumstantial evidence supporting the jury's verdict. Lastly, we note Whipple's statement that he arrived at Schara's house at about 1:30 a.m., and rebuttal evidence indicating Whipple arrived at Schara's house after 1:00 a.m. are circumstances from which the jury could infer that the accident happened after midnight on November 14, 2003.
We affirm on this issue.
III. Weight of the Evidence
Whipple asserts the district court should have granted his motion for a new trial because his convictions for OWI and driving while under suspension were contrary to the weight of the evidence. A motion for a new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct.App. 2001). A new trial should be granted if the court determines the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (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. Id. at 659.
We determine the district court did not abuse its discretion in denying Whipple's motion for new trial on the ground that the jury's verdicts were contrary to the weight of the evidence. The greater amount of the credible evidence supported Whipple's convictions. The court specifically found Whipple was not credible. We note that Whipple gave several different accounts of his activities on the night of the accident. See State v. Piper, 663 N.W.2d 894, 906 (Iowa 2003) ("An intentional untruth can be an indication of consciousness of guilt.") (quoting State v. Lasage, 523 N.W.2d 617, 621 (Iowa Ct.App. 1994)).
IV. Ineffective Assistance
Whipple claims he received ineffective assistance from trial counsel. Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
A.
During the trial, Schara testified that she did not speak to Officer Johnson, other than to request to speak to Whipple. On rebuttal, Officer Johnson testified that she interviewed Schara, who told her that Whipple did not get home until about 1:00 a.m. and he did not have anything to drink after he came home. Whipple now claims his attorney should have called Schara's mother, Linda Schara, to corroborate Schara's testimony. At the hearing on the new trial motion, Linda testified Schara talked to a male officer for several minutes, then talked to someone through a squad car window for two and one-half to three minutes.
The district court determined that even if Whipple's trial attorney had called Linda in surrebuttal, it would not have made any difference in the result of the trial. We agree with the district court's assessment. Linda was sitting in her car and was not privy to Schara's statements to officers. Even if Schara spoke to Officer Johnson for only a few minutes, this was long enough for her to make the statements attributed to her by Officer Johnson.
B.
Whipple also contends his trial attorney was ineffective because he did not seek to find out if there was a video or audio recording of statements made in Officer Johnson's squad car. At the new trial hearing, trial counsel Timothy Tupper testified, "My understanding is that if those exist, they are documented in the police reports, and I don't recall having seen that documented in the police reports." Whipple did not present any evidence to show a video or audio recording existed, or that if one existed it would have been beneficial to the defense. Whipple's unsubstantiated speculations on this issue are insufficient to show he received ineffective assistance of counsel.
C.
Finally, Whipple claims his trial attorney should have presented evidence of alcohol absorption in the body. He claims scientific evidence on this issue could have supported his claim that he had three drinks after he got home. At the new trial hearing, Tupper was questioned as follows:
Q. All right. Let's talk about that defense. Did you ever consider a defense based upon the fact that Frank was drinking after the accident and the tape at the jail where he appears to be under the influence may have been a result of that drinking after the accident? Did you ever consider any defense along that line? A. Yes.
Q. Okay. And what was your thought on that? A. Well, the challenge to that defense, it seems to me, really related to the statements that Frank and Stacey made, because Frank claimed at various points that he wasn't the driver and, you know, ultimately there was an inconsistency between the various things that he was saying. So I guess a significant concern that we focused on related to those inconsistent statements.
Here, defense counsel made a strategic decision not to emphasize alcohol absorption, because it would have further emphasized Whipple's inconsistent statements. We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). Also, the district court determined, "And I think as far as — bringing experts in on absorption of alcohol wouldn't have had any useful purpose and it would have been additional expense to the defendant." We agree with the district court's conclusion that the lack of evidence on alcohol absorption was not prejudicial to Whipple. We determine Whipple has failed to show that he received ineffective assistance of counsel on the grounds he raises in this appeal.
We affirm Whipple's convictions.