Opinion
No. 2-761 / 01-1873.
Filed December 30, 2002.
Appeal from the Iowa District Court for Mitchell County, BRYAN H. McKINLEY, Judge.
Robert Dohlman appeals his convictions for homicide by vehicle and serious injury by vehicle. REVERSED.
Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Mark Walk, County Attorney, and Aaron Murphy, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
Robert Dohlman appeals his convictions for two counts of homicide by vehicle and two counts of serious injury by vehicle. He claims: (1) the district court should have granted his motion to dismiss; (2) the court should have granted his motion to suppress evidence relating to his blood alcohol level; (3) the court should have granted his motion for judgment of acquittal; (4) section 707.6A (1999) is unconstitutional; and (5) section 910.3B is unconstitutional. We reverse.
I. Background Facts
On December 5, 1998, Dohlman went deer hunting with some friends and relatives. That evening at about 6:15 p.m., he met his cousin, James Dohlman (Jim), and some friends, Kurt Bill and Robert Foster, at Bob's Bar in Riceville. They left soon afterwards, at about 6:30 p.m., to visit the home of Christopher John Schwarck, where Dohlman had a beer. They then went to Deer Camp at about 7:30 p.m. Dohlman ate a meal and drank another beer. Foster remained at Deer Camp, but Dohlman, Jim and Bill left at about 9 p.m.
Dohlman went to his home for a period of time, where he had a cheeseburger and a glass of milk. At about 11 p.m., he went with Jim and Bill to the Red Man Inn in McIntire. James and Jessica Sweeney were disc jockeys at the Inn that night. Dohlman had at least two beers at the Inn. Jessica testified Dohlman seemed to be under the influence of alcohol. Other witnesses stated Dohlman did not appear intoxicated — these witnesses were Jim, Irene Quinn (owner), Marlyn Kulow (owner), Christine Bundy (bartender), David Hanson (acquaintance), Kari Moetsch (acquaintance), and Dawn Fluggum (girlfriend).
Dohlman, Jim and Bill left the Inn at about 1:30 a.m. on December 6, 1998, with Dohlman driving. As they were driving, they came behind the Sweeneys' van, which was driven by Jessica. Dohlman was traveling at fifty-eight miles per hour in a fifty-five-miles-per-hour zone, while the Sweeney van was going more in the range of forty-five to fifty-five miles per hour. Dohlman pulled out to the left in order to pass the Sweeney van. Dohlman stated he saw a deer on the left, and that in making an evasive maneuver, he hit the Sweeney van. The Sweeney van rolled two and one-half times. James Sweeney was ejected from the van, and he died as a result of his injuries. Jessica had a broken vertebrae and arm, and she was taken to the hospital. The accident occurred at about 1:40 a.m.
Bryan Shupe, a former technical accident investigator for the Iowa State Patrol, testified he could not prove or disprove Dohlman's statement concerning making an evasive movement to miss the deer.
The McIntire First Responders were the first emergency personnel to arrive at the scene. None of them were called to testify for this case. Riceville police officer Troy Brandau arrived next. Officer Brandau did not see anything to lead him to believe Dohlman was intoxicated. Stacyville police officer Jerry Jensen also arrived at the scene. Officer Jensen had a conversation with Dohlman and did not notice any signs that he was under the influence of alcohol. Some civilian bystanders were also present at the accident scene. None of these witnesses testified Dohlman was intoxicated or appeared to be under the influence of alcohol.
These witnesses were Moetsch, Lauralae Nelson Winfield, Tobias Winfield, Barry Johnson, Scott Bauer, and Kelly Bauer.
State Trooper William Mainprize came to the scene at 3:10 a.m., and State Trooper Greg Salier arrived at 3:38 a.m. They gave Dohlman field sobriety tests, which he passed without showing signs of intoxication. Dohlman took a preliminary breath test, which was below the legal limit. Because he had been involved in a fatal accident, however, they took Dohlman to a hospital for a blood test. He had a test at 5:04 a.m., which showed a blood alcohol level of .036.
It is clear the blood test was taken solely because of the fatal accident and not because of any conclusions concerning Dohlman made by the troopers.
II. Proceedings in District Court
Dohlman initially received tickets for reckless driving, a seatbelt violation, and failure to maintain control. He paid a fine for the seatbelt violation, and the other two tickets were dismissed.
On May 2, 2000, Dohlman was charged with homicide by vehicle, in violation of Iowa Code section 707.6A(1); homicide by vehicle, in violation of section 707.6A(2)(a); and two counts of serious injury by vehicle, in violation of section 707.6A(4). The district court denied Dohlman's motion to dismiss based on lack of speedy indictment and pre-accusatorial delay. The court also denied Dohlman's request to suppress the results of his blood alcohol test.
Later, in ruling on a motion in limine the court determined the results of the blood alcohol test were inadmissible under section 691.2 because the technician who completed the analysis was deceased. The court determined, however, the results could be used by the State's expert on the issue of retrograde extrapolation of Dohlman's blood alcohol level at the time of the accident.
The State presented the testimony of Robert Monserrate, a criminalist with the Division of Criminal Investigation Crime Laboratory, on the issue of retrograde extrapolation of Dohlman's blood alcohol level at the time of the accident, which he determined was in the range of .081 to .096. Dohlman presented the testimony of G. Edgar Folk, a physiologist at the University of Iowa. Folk testified that because Dohlman was outside in cold weather without a coat for a period of time before the blood alcohol test, this would change his metabolism and make a retrograde extrapolation calculation unreliable. Dohlman also presented the testimony of Thomas Burr, a forensic scientist, who testified Monserrate's calculation was flawed because he did not take into consideration the food Dohlman ate. Also, Dohlman stated he had a drink at about 1:30 a.m., before he left the Inn, and Burr testified Dohlman's alcohol level likely went up after the accident, and then started to go down. In these circumstances, Burr testified any attempt at retrograde extrapolation would not be reliable.
These test results were proffered without application of any statistical margin of error.
The evidence showed Dohlman gave his coat to one of the civilian bystanders at the scene. He stood outside for a substantial period of time until the State Troopers took him to a hospital for a blood alcohol test.
The State and Dohlman presented expert testimony on accident reconstruction. The experts agreed Dohlman was traveling at fifty-eight miles per hour prior to the collision. The evidence showed Dohlman made a sharp turn to the left, then a sharp turn to the right before he struck the Sweeney van. Dohlman presented evidence there were often deer in the area of the accident.
The district court denied Dohlman's motion for judgment of acquittal. The case was submitted to a jury, which found Dohlman guilty of all four charges against him. The court denied Dohlman's motion for a new trial. Dohlman was sentenced to a term of imprisonment not to exceed twenty-five years. He appeals.
III. Motion for Judgment of Acquittal
Because we find this issue dispositive, we first address the issue of whether the jury's verdict is supported by substantial evidence.
A. Standard of Review
Where a defendant challenges the sufficiency of the evidence supporting a jury verdict, our standard of review is that the verdict will be upheld if there is substantial evidence to support it. State v. Conyers, 506 N.W.2d 442, 444 (Iowa 1993). We review all the evidence presented in the light most favorable to the State, to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992).
In considering the sufficiency of the evidence, we consider all the evidence in the record, not merely that which favors the State. State v. Kolbet, 638 N.W.2d 653, 658 (Iowa 2001). Our supreme court has stated:
A reviewing court cannot make a substantial evidence determination if it considers only the evidence supporting guilt. This is so because a rational fact finder cannot render a verdict without taking into consideration all the record evidence. So in determining whether there is substantial evidence, we must consider all the record evidence, not just the evidence supporting guilt.State v. Sutton, 636 N.W.2d 107, 110 (citation omitted).
B. Recklessness
Dohlman was charged with unintentionally causing the death of another by "Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277." Iowa Code § 707.6A(2)(a). He was also charged with unintentionally causing a serious injury by the same means. Iowa Code § 707.6A(4).
The State has the burden to prove recklessness. State v. Klatt, 544 N.W.2d 461, 463 (Iowa Ct.App. 1995). The elements of recklessness are: (1) a conscious and intentional operation of a motor vehicle; (2) in a manner that creates an unreasonable risk of harm to others; (3) when this risk is or should have been known to the driver. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). To prove recklessness sufficient to support a conviction under section 707.6A, "the State must prove that the defendant engaged in conduct `fraught with a high degree of danger,' conduct so obviously dangerous that the defendant knew or should have foreseen that harm would flow from it." Sutton, 636 N.W.2d at 112 (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)).
In the present case, the State presented no evidence of recklessness, other than its claim Dohlman drove while intoxicated. Driving while intoxicated is considered to be reckless conduct. See State v. Rohm, 609 N.W.2d 504, 513 (Iowa 2000); State v. Wullner, 401 N.W.2d 214, 217 (Iowa Ct.App. 1986). We turn then to the question of intoxication.
C. Intoxication
Dohlman was charged with unintentionally causing the death of another and causing a serious injury, by operating a motor vehicle while intoxicated, as prohibited by section 321J.2. Iowa Code §§ 707.6A(1); (4). A person commits the offense of operating while intoxicated if the person operates a motor vehicle while (a) under the influence of an alcoholic beverage, or (b) having an alcohol concentration of .10 or more. Iowa Code § 321J.2(1)(a) and (b).
There was no evidence Dohlman had an alcohol concentration of .10 or more. Even under the State's retrograde extrapolation of Dohlman's blood alcohol level at the time of the accident, he was determined to be in the range of .081 to .096. For this reason, the State did not attempt to prove intoxication under section 321J.2(1)(b), and instead claimed Dohlman operated a motor vehicle while under the influence of an alcoholic beverage.
The term "under the influence of alcohol" is synonymous with the phrase, "while intoxicated." Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 355 (Iowa 1995). A person is "intoxicated" when one or more of the following is found: (1) the person's reasoning or mental ability has been affected; (2) the person's judgment is impaired; (3) the person's emotions are visibly excited; and (4) the person has, to any extent, lost control of bodily actions or motions. In re S.C.S., 454 N.W.2d 810, 814 (Iowa 1990).
In State v. Pieper, 432 N.W.2d 701, 704 (Iowa Ct.App. 1998), the defendant was found to be driving while under the influence of intoxicants under these circumstances:
Defendant was combative to the nurses at the hospital. His speech was still slurred, with a variable pitch and rate, and he was difficult to understand. Defendant remained argumentative and evasive. Defendant's eyes were red and watery, and the pupils were dilated and slow to react to light. The odor of alcoholic beverage was very strong and distinct on defendant's breath.
The only evidence of Dohlman's intoxication came from Jessica, who testified his speech was slurred, his eyes were glossy, and he staggered. We note Jessica admitted to bitter feelings against Dohlman due to her husband's death. Two witnesses testified Jessica told them Dohlman was a killer who should burn in hell.
We recognize Jim Dohlman testified he believed Dohlman was under the influence of alcohol, but on cross-examination, Jim stated he believed "under the influence of alcohol," meant the person had consumed any amount of alcohol at all, while "intoxication," meant being impaired, and Dohlman was not impaired. Taken as a whole, Jim's testimony does not support a finding that Dohlman was intoxicated.
Additionally, as we noted above, we consider all the evidence in the record, not merely that which favors the State. Kolbet, 638 N.W.2d at 658. Of the two state troopers and two police officers who dealt with Dohlman on December 6, 1998, none testified he appeared to be intoxicated. None of these trained officers noticed slurred speech, glossy eyes, or staggering, or indeed any signs Dohlman was under the influence of alcohol. Furthermore, thirteen witnesses testified at the trial who had either seen Dohlman at the Red Man Inn or at the scene of the accident, or both, and none of these witnesses testified he had signs of intoxication.
The State seeks to rely on a case where the defendant was convicted of vehicular homicide, even though "Many of the persons who arrived on the scene of the accident, including police officers, testified that [the defendant] did not appear to be intoxicated." Dominguez, 482 N.W.2d at 391. In that case, however, the defendant had a blood alcohol level of .136 more than four hours after the accident, which shows beyond a reasonable doubt the defendant was actually intoxicated. See id. Dohlman's blood alcohol level was .036 about three and one-half hours after the accident. The evidence of his intoxication is far less compelling than in Dominguez.
Although the technique of retrograde extrapolation has previously been used in Iowa, see id.; State v. Hubka, 480 N.W.2d 867, 871 (Iowa 1992), in the present case the results were speculative. We note a person's ingestion of food and exposure to extreme cold would have an affect on metabolism. Evidence which merely raises suspicion, speculation, or conjecture is insufficient to support a guilty verdict. State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996).
After taking into consideration all of the evidence in the record, we determine there is insufficient evidence to find Dohlman was driving while under the influence of an alcoholic beverage at the time of the accident. Because there is insufficient evidence of intoxication, there is also insufficient evidence of recklessness. We determine the district court erred by denying Dohlman's motion for judgment of acquittal. We reverse Dohlman's convictions.