from the Iowa District Court for Scott County, Mark R. Fowler
(Trial) and Christine Dalton Ploof (sentencing), District
Domingo Ascencio appeals from the judgment and sentence
entered upon his conviction of operating while intoxicated
(first offense). AFFIRMED.
M. Phelps, Davenport, for appellant.
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.
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.
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.
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.
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.
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] . . . .
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).
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. ...