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State v. Vesey

Court of Appeal of Iowa

August 21, 2013

STATE OF IOWA, Plaintiff-Appellee,
DENISE MARIE VESEY, Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.

Defendant appeals her operating-while-intoxicated conviction, alleging ineffective assistance of counsel, insufficient evidence, and sentencing error.

Francis P. Hurley of Phil Watson P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John Sarcone, County Attorney, and Brendan Greiner, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Vaitheswaran and Tabor, JJ.


Denise Marie Vesey appeals her conviction for operating while under the influence of drugs. She alleges ineffective assistance of trial counsel, insufficient evidence to convict, and sentencing error. Because Vesey cannot show she was prejudiced by counsel's performance in regard to her waiver of a jury trial, the cross-examination of the citizen informant, or the handling of the pharmacy labels, we reject those claims of ineffective assistance. Because the record is not sufficient to decide her claim regarding the redacted videotape, we preserve that claim for possible postconviction proceedings. We also find substantial evidence she was driving while impaired, cannot benefit from the prescription drug defense, and received a reasonable sentence.

I. Background Facts and Proceedings.

On April 7, 2012, a citizen reported a passenger van driving erratically. Adam Mead told the 911 operator that a van swerved into his lane and almost hit his car. The van then overcorrected and smashed a curb. Mead also saw the van run a red light. Mead followed the van to a Quiktrip. Des Moines Police Officer Ben Ihde responded to the call and arrived at the convenience store. After discussing the incident with the van's driver, Denise Vesey, and administering field sobriety tests to her, Officer Ihde arrested and charged Vesey with operating while under the influence of drugs (OWI), in violation of Iowa Code section 321J.2 (2011). She waived her right to a jury trial. Following a bench trial, the district court convicted Vesey and, on September 13, 2012, sentenced her to one year of incarceration with all but twenty days suspended. Vesey is appealing that conviction.

In this direct appeal, Vesey argues her trial counsel was ineffective in the following ways: (1) recommending waiver of trial by jury, (2) failing to properly cross-examine a State's witness, (3) failing to object to the admission of a redacted patrol car video, and (4) failing to present evidence for a pharmacy labeling defense and in failing to preserve that issue for review. Vesey also argues the district court erred in finding she failed to establish her prescription drug affirmative defense and in finding sufficient evidence to convict her. Finally, she argues the court abused its discretion in sentencing her to twenty days in jail.

II. Scope and Standards of Review.

To prevail on her claims of ineffective assistance of counsel, Vesey must show (1) counsel failed to perform an essential duty and (2) prejudice resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). To prove prejudice, Vesey must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See id. We evaluate the totality of the relevant circumstances in a de novo review. Lane, 726 N.W.2d at 392.

Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We prefer to leave such claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). Those proceedings allow an adequate record of the claim to be developed "and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle, 652 N.W.2d at 203. But we will decide ineffective-assistance claims when the record is sufficient to resolve them. State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).

On the claim of insufficient evidence of guilt, we review on assigned error. State v. McPhillips, 580 ...

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