Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Ascencio

Court of Appeals of Iowa

June 21, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSE DOMINGO ASCENCIO, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Mark R. Fowler (Trial) and Christine Dalton Ploof (sentencing), District Associate Judges.

         Jose Domingo Ascencio appeals from the judgment and sentence entered upon his conviction of operating while intoxicated (first offense). AFFIRMED.

          Lauren M. Phelps, Davenport, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          VAITHESWARAN, Presiding Judge.

         Convenience store employees believed customer Jose Domingo Ascencio was intoxicated when he drove his vehicle from the store. A Davenport police officer stopped the vehicle and discovered an intoxicated Ascencio in the passenger seat.

         The State charged Ascencio with operating a motor vehicle while intoxicated (first offense), in violation of Iowa Code section 321J.2(2)(a) (2015). Following a bench trial, the district court found him guilty. On appeal, Ascencio argues the evidence was insufficient to support the court's finding of guilt.

         Operating while intoxicated requires proof of two elements: (1) operation of a motor vehicle (2) while under the influence of alcohol or while having an "alcohol concentration" of .08 or more. Iowa Code § 321J.2(1); State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). Ascencio focuses his appellate argument on the first element-whether he was "operating" a motor vehicle.[1]

         The term "operate" has been defined as "the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running." State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998) (quoting State v. Boleyn, 547 N.W.2d 202, 205 (Iowa 1996)). Even if the evidence fails to prove that an intoxicated defendant "was in the process of operating a motor vehicle when the authorities found" the defendant, "circumstantial evidence may establish that the defendant had operated while intoxicated when driving to the location." Id.

         The district court found Ascencio guilty of OWI (first offense)

[b]ased on the credible testimony of the two employees from [the convenience store], who saw him drive away from the [store] in a clearly intoxicated state, the test results from the DCI Criminalistics Laboratory, the testimony of the officers who provided several indications that Mr. Ascencio was intoxicated, and the credible testimony of [an officer] that the defendant indicated he was driving when asked how he arrived at the [store] . . . .

         These findings, and in particular the findings relating to Ascencio's operation of a motor vehicle, are supported by substantial evidence. See id. (setting forth standard of review).

         One of the store employees testified Ascencio approached the counter and "was, like, belching." He was "incoherent, " and the employee thought "he was going to puke on [the] counter." The employee asked the store supervisor to assist. She confirmed Ascencio "was slurring, burping, [and] just couldn't seem to keep his balance." She said, "He seemed intoxicated." After a few minutes, both employees saw Ascencio leave the store, get into a "red SUV" and drive off. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.