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State v. Terry

Court of Appeal of Iowa

May 30, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
KEITH E. TERRY, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         A defendant contends (1) the evidence was insufficient to support the jury's finding of guilt on a serious injury by vehicle charge, (2) the district court should have merged the serious injury by vehicle and operating while intoxicated sentences, (3) the prosecutor committed misconduct in mischaracterizing the defendant's blood alcohol content, and (4) defense counsel was ineffective in several respects.

          Stephen P. Dowil of Booth Law Firm, Osceola, for appellant.

          Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, John P. Sarcone, County Attorney, and David Porter, Assistant County Attorney, for appellee.

          Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.

          VAITHESWARAN, J.

         A Des Moines police officer controlling traffic during the Iowa State Fair was injured when a vehicle driven by Keith Terry struck him. A jury found Terry guilty of serious injury by vehicle and operating a motor vehicle while intoxicated.[1] On appeal, Terry asserts: (1) the evidence was insufficient to support the jury's finding of guilt on the serious injury count, (2) the district court should have merged the serious injury and OWI sentences, (3) the prosecutor committed misconduct in mischaracterizing Terry's blood alcohol content, and (4) his trial attorney was ineffective in several respects.

         I. Sufficiency of the Evidence—Serious Injury by Vehicle

         The jury was instructed that the State would have to prove the following elements of the reckless driving alternative of serious injury by vehicle:

1. On or about the 19th day of August, 2011, the defendant, KEITH EDWARD TERRY, drove a motor vehicle in a reckless manner.
2. The defendant, KEITH EDWARD TERRY's, act of driving a motor vehicle in a reckless manner unintentionally caused serious injury of Phoukam Tran.

         The court further instructed the jury, in part, that a person is "reckless" when the person "willfully disregards the safety of persons or property." The court also advised the jury that "[d]riving under the influence is itself a 'reckless act.'"

         On appeal, Terry focuses on the causation element of the crime. He argues there was insufficient evidence to establish that his conduct was the "proximate cause" of Tran's injuries. The State responds that Terry failed to preserve error. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) ("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."). We disagree with the State's assertion.

         In arguing his motion for judgment of acquittal, Terry's attorney stated, "[W]e also believe the State has failed to prove beyond a reasonable doubt that Mr. Terry caused a serious injury to Officer Tran by—for being reckless." While the attorney did not refer to "proximate cause, " the gist of his challenge was apparent. Accordingly, we proceed to the merits, reviewing the jury's finding of guilt for substantial evidence. See State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).

         The district court instructed the jury that "[t]he conduct of the defendant is a proximate cause of the serious injury of Phoukham Tran when it is a substantial factor in producing the serious injury and when the serious injury would not have happened except for the ...


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