Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.
The opinion of the court was delivered by: Mullins, J.
The defendant appeals the judgment and sentence entered after a jury convicted him of operating while intoxicated, third or subsequent offense, as a habitual offender, and driving while revoked. AFFIRMED.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
Richard Eugene Noll appeals the judgment and sentence entered upon the jury's verdict finding him guilty of the charges of operating while intoxicated, third or subsequent offense, as a habitual offender, and driving while revoked. For the reasons stated below, we find there was sufficient evidence for a jury to conclude that Noll was operating the vehicle, and the district court did not abuse its discretion in denying Noll's combined motion in arrest of judgment or for a new trial. The judgment and sentence are affirmed.
I. BACKGROUND AND PROCEEDINGS.
On or about October 27, 2011, Noll was convicted by a jury of operating while intoxicated, third or subsequent offense, as a habitual offender, driving while revoked, and failure to maintain control of a vehicle. The citation for failure to maintain control of a vehicle was dismissed by the court at sentencing with no objection by the State. Noll made a motion for verdict of acquittal at the close of the State's case-in-chief and at the close of all of the evidence, both of which were denied. Noll filed a combined motion in arrest of judgment and for a new trial, which was also denied.
On January 6, 2012, the court entered judgment, and Noll was sentenced to a term of fifteen years with a mandatory minimum sentence of three years for the conviction of operating while intoxicated and to a term of ninety days for the conviction for driving while revoked. This appeal followed.
In the late evening on April 13, 2011, Sam Bloomhuff was driving on Mulberry Street in Muscatine, observed an accident scene-a pickup truck in the ditch-and pulled over to make sure whoever was in the vehicle was alright. Bloomhuff went to the truck and found Noll passed out, bloody and banged up, sitting in the driver's seat. Bloomhuff woke Noll and advised him to exit the vehicle because it was smoking. The driver's side door would not open so Bloomhuff helped Noll out of the driver's side window by grabbing under his arms and dragging him out. Shortly thereafter Noll fell over in the ditch and laid there for a little while.
At 10:56 p.m. Deputy Kopf was driving along Mulberry Street and arrived on the scene in time to see Noll exiting the vehicle through the driver's side window. Bloomhuff told Deputy Kopf what he knew of the accident. Deputy Kopf observed that the roof of the truck was caved in from a probable rollover, and the driver's side door was damaged. He also noticed that the driver's side seatbelt was extended out and locked as if it had been in use during the accident, but the passenger side belt was not. Deputy Kopf recognized that Noll exhibited multiple signs of intoxication, including his inability to stand, impaired fine motor skills, and a smell of alcoholic beverage coming from him.
Around 11:00 p.m. Deputy Brooks arrived on the scene. Both officers had noticed that the roadway where the accident occurred was littered with debris, such as beer cans, feed sacks, and a cooler. Deputy Brooks noticed that Noll's speech was slurred and that he smelled of alcoholic beverage. Deputy Brooks had a hard time waking Noll when Noll was lying on the ground. Noll also dropped his wallet multiple times while trying to present identification to the deputies. Deputy Brooks observed that the roof of the truck had caved in and made a confined v-shaped space in the cab, which would have made it difficult to move from one side of the cab to the other.
At multiple times during the investigation, Noll told the officers that his girlfriend, Gina Haughney, had been driving the vehicle. Noll repeated this statement several times both at the scene of the accident and at the jail after he had been arrested and transported. The State does not dispute that Noll made these statements. At trial, however, both deputies testified that while the ambulance crew was checking Noll at the scene of the accident, one of the crew members asked him if he was the driver, to which Noll responded that he was. Shortly afterwards Noll corrected himself and stated that it was his girlfriend who was driving.
While at the jail, Noll received a call on his cell phone that he recognized as coming from Haughney. Noll asked the deputies to answer his phone and ask her if she was the driver, but the deputies declined to do so. In the months leading up to trial, no officer spoke to Haughney concerning Noll's arrest until approximately a week before the date of trial.
Noll is not challenging whether he was intoxicated. He admits that he was. His contention is that he was not the driver. Noll did not testify at trial, but some statements attributable to him were repeated during the testimony of others. Haughney testified that Noll was at a bar in Muscatine when she came and picked him up using his parent's truck to take him home to the residence the two of them shared on North Mulberry. While traveling on Mulberry, Haughney swerved to avoid hitting a deer, which caused the truck to flip and come to rest right-side up in a ditch. Because of the damage to the truck, both Haughney and Noll had to exit out of the passenger side. A passing car stopped to ask if they were okay and offered a ride, which Haughney accepted. She got a ride out of town to Wilton, where her own car was at her sister's house, and left Noll at the scene of the accident.
If Haughney's testimony is correct, after she left the scene of the accident, Noll apparently got back into the truck, and positioned himself in the driver's seat where he then either passed out or fell asleep until Bloomhuff ...