Opinion
No. 1-687 / 01-0094.
Filed January 9, 2002.
Appeal from the Iowa District Court for Des Moines County, MARK KRUSE, Judge.
The defendant appeals his convictions for operating while intoxicated, third offense, and driving while barred. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Andrew Prosser, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Michael Nelson appeals his judgments and sentences following a guilty verdict for operating while intoxicated, in violation of Iowa Code sections 321J.2(1)(a) and 321J.2(c) (1999), and a guilty plea to driving while barred, in violation of Iowa Code sections 321.560 and 321.561 (1999). Nelson attacks the sufficiency of the evidence to support the guilty verdict and argues counsel was ineffective. Upon review we find this matter fits the criterion outlined in Iowa Supreme Court Rule 9, for the issuance of a memorandum opinion.
We review Nelson's sufficiency of the evidence claim by considering the record as a whole, in the light most favorable to the State, to determine whether substantial evidence supports the verdict. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). Here the jury viewed a videotape of an officer administering to Nelson three field sobriety tests and the officer's testimony as to why Nelson failed all three. The officer also testified to additional indicia of impairment, such as the fact Nelson had the odor of alcohol on his breath and slurred his speech. This evidence does more than create mere speculation or conjecture as to Nelson's condition. It raises a reasonable inference of intoxication. See State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (noting direct and circumstantial evidence equally probative so long as they give rise to a fair inference of guilt).
Nelson attempts to attack the evidence's sufficiency by pointing to alternate explanations for his field sobriety tests failures, including the impact of poor testing conditions and his claim of an injured knee. However, it is within the jurors' province to accept or reject witness testimony and to weigh the evidence as they see fit. State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct.App. 1997). We find that when the evidence in this case is viewed in the light most favorable to the State, it is sufficient to support the verdict, in that it could convince a rational juror of Nelson's guilt, beyond a reasonable doubt. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).
Nelson also claimshis attorney was ineffective in that post-trial motions alleging juror misconduct were supported only by an affidavit, which asserted one of the jurors had expressed to the affiant, prior to trial, "her dislike and bias against Michael Kevin Nelson and his personality when he has been drinking." To succeed on such a claim Nelson must prove his attorney's performance fell below an objective standard of reasonableness and was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
To the extent Nelson challenges counsel's failure to call the affiant to testify in person, his claim must fail. We cannot see how anything would be gained by such a step. A similar result is reached regarding counsel's failure to call jurors to give testimony as to any possible misconduct. The statements attributed to the juror, by themselves, do not constitute a disqualifying bias. See State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988) ("the relevant question is not what a juror has been exposed to, but whether the juror holds such a fixed opinion of the merits of the case that he or she cannot judge impartially the guilt or innocence of the defendant."). Even if the juror identified in the affidavit had disclosed her opinion to other jury members, it is not the kind of information that would prejudice a typical juror. See Doe v. Johnston, 476 N.W.2d 28, 35 (Iowa 1991) (requiring proof misconduct was calculated to, and with reasonable probability did, influence the verdict.) Cf. State v. Henning, 545 N.W.2d 322, 325 (Iowa 1996) (holding information prejudicial where it did more than advise jury of defendant's prior bad acts, but established previous convictions for acts central to the issues before the jury). Under the facts of this case we cannot find a reasonable probability any such disclosure would influence the jurors' verdict.
AFFIRMED.