Opinion
No. 6-078 / 05-0619
Filed March 1, 2006
Appeal from the Iowa District Court for Cass County, Jeffrey L. Larson, Judge.
Appeal from the judgment and conviction, following a jury trial, for operating while intoxicated third offense and operating a motor vehicle without the owner's consent. AFFIRMED.
James W. Mailander of Mailander Law Office, Anita, for appellant.
Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, and Daniel Feistner, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Defendant-appellant, Richard Clausen, appeals from the judgment and conviction, following a jury trial, for operating while intoxicated third offense and operating a motor vehicle without the owner's consent, in violation of Iowa Code sections 321J.2 and 714.7 (2003) respectively. He contends defense counsel was ineffective in not calling certain witnesses and in not moving for a continuance when a state's witness was unavailable. He further contends the evidence was insufficient to support the verdict on either charge or to support enhancement of the OWI charge to a third offense. We affirm.
BACKGROUND FACTS AND PROCEEDINGS
About 2:30 one morning the Anita police department received a 911 call from an Anita resident reporting that a vehicle was spinning around in her back yard. The police chief, Jon Oakley, went to investigate. On his way Chief Oakley saw a car sitting at a stop sign with its lights off. He watched the vehicle drive through the intersection. Because the car did not have its lights on, Chief Oakley turned on his emergency lights to stop the car. In response, the driver of the vehicle turned left into a parking lot and stopped the car. The defendant was the driver and was the only one in the car. He staggered getting out of the car, smelled of alcohol, admitted he had been drinking, failed a preliminary breath test, and either failed, declined, or was unable to perform field sobriety tests. He was arrested for OWI and taken to the sheriff's office. The results of his breath test after arrest revealed a blood alcohol content of 0.216. The defendant claimed he was parking the vehicle for a friend, Howard, who had been the driver, but who had jumped out when he saw the police car coming, leaving the car to roll downhill without a driver. The defendant claimed he had to slide over and get behind the wheel to stop the car and to prevent injury or damage to himself, potential innocent bystanders, other motorists, or nearby property owners. Chief Oakley noted no lights were on at Howard's house when he looked over at the house. Howard later gave a statement, attached to the minutes of testimony, denying that he had played any role in the incident, that he had been the driver, or that he was present at or around the time defendant was arrested. The car belonged to Howard's niece, Sarah. When she awoke later the morning of the incident and found her car missing, she called the sheriff's office to make a stolen vehicle report.
The State charged the defendant with OWI third offense and driving while revoked. In a separate trial information, the State charged him with operating without the owner's consent. The defendant filed a notice of the defense of necessity. Several continuances were granted before this matter finally came to trial. The State successfully subpoenaed Howard to testify at trial for two of the earlier trial dates, but was not able to obtain service on him for the date the trial finally occurred.
At trial, the defendant testified that Howard had agreed to drive him home from the bar where they were drinking. He said Howard drove instead to his own home. He testified that when he asked Howard about the ride home, Howard backed the car out of the driveway onto the street, jumped out, and said, "here, take the car." According to the defendant, the car was rolling down the hill toward the stop sign, so he had to slide over to the driver's side to take control of it. The defendant offered an affidavit of a bartender, who did not testify, affirming that Sarah had given Howard the keys to her car that night at the bar and asked him to drive it home for her. Sarah, Howard's niece, testified she did not know the defendant and did not give him or Howard permission to drive her car that night. As the State concluded its case the defendant moved for judgment of acquittal. The court denied the motion. Before the case was submitted to the jury, the defendant admitted he had two prior OWI convictions. The court instructed the jury on the defense of necessity. The jury found the defendant guilty of OWI and operating without the owner's consent.
The defendant filed a motion in arrest of judgment or for a new trial, alleging there was insufficient evidence. Concerning the OWI charge, he alleged the evidence showed he was not a willing driver of the car. Concerning the operating-without-owner's-consent charge, he alleged Sarah's testimony contradicted her statement given to the police when she reported her car stolen. He also alleged the lack of evidence because Howard did not testify must be decided against the State. The court denied the motion.
CLAIMS ON APPEAL
The defendant raises four claims on appeal.
1. Defendant Clausen was denied effective assistance of counsel.
2. There was insufficient evidence to convict on the charges of Operating Without the Owner's Consent and Operating While Intoxicated.
3. The record does not establish the necessary elements of enhancement on the Operating While Intoxicated charge.
4. A Material Witness Warrant should have issued.
DISCUSSION
The State first contends the defendant's claims one, two, and four should be waived because he did not cite or argue any authority for them. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."). The State acknowledges that the defendant cites authority for the scope of review for each issue, but argues he does not cite or argue any authority in support of the claim itself. See State v. Sayles, 622 N.W.2d 1, 3 n. 1 (Iowa 2003) (declining to address a contention not supported with argument or citation of authority and citing to rule 6.14(1)( c)). The State also argues concerning issues two, three, and four, that the claims should be waived because the defendant failed to comply with Rule 6.14(1)( f), which requires an appellant to "state how the issue was preserved for review, with references to the places in the record where the issue was raised and decided."
Because the defendant does not cite or argue any authority in support of claims one, two and four, we do not address them. Sayles, 622 N.W.2d at 3 n. 1; see Iowa R. App. P. 6.14(1)( c).
The defendant's remaining claim is that there was insufficient evidence to support the convictions. We review challenges to the sufficiency of evidence for errors at law. Iowa R. App. P. 6.4; State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). When reviewing the sufficiency of the evidence we review the record in the light most favorable to the State. See State v. Milner, 571 N.W.2d 7, 10 (Iowa 1997). But we must consider all the evidence in the record, not just the evidence supporting guilt. State v. Weatherly, 679 N.W.2d 13, 16 (Iowa 2004). A jury's verdict is binding on us if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is evidence that could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). "The evidence must at least raise a fair inference of guilt as to each essential element of the crime. Evidence which merely raises suspicion, speculation, or conjecture is insufficient." State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted). Inherent in our review of jury verdicts in criminal cases is the recognition the jury is free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The weight of the evidence and credibility of witnesses are to be determined by the jury and not the appellate court. State v. Fetters, 562 N.W.2d 770, 772 (Iowa Ct.App. 1997).
Concerning the charge of operating without the owner's consent, the defendant argues, based on the "inconsistencies and gaps" in Sarah's "testimony and memory" that "no jury should have been able to conclude beyond a reasonable doubt" he was guilty. The State argues the defendant has waived this claim for failure, in his motion for judgment of acquittal, to name either the charge or the element on which there was insufficient evidence. "To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal." State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). The defendant made this motion for judgment of acquittal when the State said it was going to rest its case:
That the evidence taken as a whole, when you consider that the defendant immediately explained that he was not driving the vehicle voluntarily, that it was necessary; that the testimony of Officer Oakley, taken as a whole, would clearly establish in the record, Your Honor, that there is no refuting of that evidence whatsoever. We are not hearing from Howard . He's the only one that can refute that evidence, and that has not been done. The State has not met their burden, and the Court should at this point direct the case out and grant judgment of acquittal.
The motion clearly focuses on the necessity defense to the OWI charge. If it was intended to relate also to the operating-without-owner's-consent charge, it is too general and conclusory to preserve the grounds now raised on appeal. We conclude the claim the evidence was insufficient on the operating-without-owner's-consent conviction was is preserved for our review. See id.
Concerning the OWI charge, the defendant contends that once he raised the necessity defense, the burden shifted to the State to overcome the defense. He argues the only way the State could meet its burden was to call Howard as a witness. The defendant's contention is without merit. The evidence reveals the defendant had stopped the car at the intersection, so any necessity to operate the car to avoid possible injury to people or property had ended. The defendant, instead of turning off the car and leaving it, drove it away from the stop sign. The testimony of the police chief provides sufficient evidence that the defendant was intoxicated and drove the car.
We affirm the defendant's convictions for OWI and operating without the owner's consent.