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State v. Williams

Court of Appeals of Iowa

August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DESHAUN WILLIAMS, Defendant-Appellant.

         Appeal from the Iowa District Court for Boone County, Paul G. Crawford, District Associate Judge.

         Defendant appeals his convictions for operating while intoxicated, third or subsequent offense, and driving while barred as a habitual offender.

          Christopher A. Clausen of Clausen Law Office, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

         Considered En Banc.

          MCDONALD, Judge.

         Deshaun Williams was convicted of operating while intoxicated (OWI), third offense as a habitual offender, in violation of Iowa Code section 321J.2 (2015), and driving while barred as a habitual offender, in violation of Iowa Code sections 321.560 and 321.561. On appeal, he challenges the sufficiency of the evidence supporting his convictions.

         Our review is for the correction of legal error. See State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We will uphold a verdict where the verdict is supported by substantial evidence. See id. Evidence is substantial when the quantum and quality of evidence is sufficient to "convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id. at 76 (citing State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001)). In conducting our review, "we view the evidence in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record." State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006) (citing State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999)).

         Williams first contends the State failed to prove he was "operating" or "driving" a vehicle because there was no evidence he was the only person in the vehicle during the relevant time period. The claim has not been preserved for appellate review. "[I]ssues must be presented to and passed upon by the district court before they can be raised and decided on appeal." Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (citing Johnston Equip. Corp. v. Indus. Indem., 489 N.W.2d 13, 16-17 (Iowa 1992)); see also Conner v. State, 362 N.W.2d 449, 457 (Iowa 1985). Williams did not present this issue to the district court in his motion for judgment of acquittal. Instead, he argued there was insufficient evidence to establish he was intoxicated, with respect to the OWI charge, and insufficient evidence of mailing notice, with respect to the charge of driving while barred. Accordingly, the issue has not been preserved for our review. See State v. Geier, 484 N.W.2d 167, 170 (Iowa 1992).

         Even if the claim had been preserved for appellate review, the claim fails on the merits. At approximately 2:00 in the morning a motorist contacted 911 after another motorist, later identified as Williams, nearly hit her car. The concerned motorist told the 911 operator Williams was driving erratically and she was afraid Williams was intoxicated. The concerned motorist followed Williams and reported his actions to the 911 operator. Eventually, Williams turned onto a gravel road, stopped his vehicle, turned off the vehicle lights, and sat in his car. The caller stopped her car a short distance from Williams's car and waited for the police to arrive. As she waited for the police to arrive, she observed no person enter or exit Williams's vehicle. After several minutes, officers arrived at the scene, and the caller departed. The officers approached Williams's vehicle. His car was running, and he was seated in the driver's seat. When the officers engaged Williams, they detected a strong odor of alcoholic beverage. They also observed Williams was glassy-eyed, had slowed and slurred speech, and had vomited on himself. Williams stumbled when he exited the vehicle. Williams asked why he was pulled over, requiring the officers to explain they found him already stopped. Williams refused a field-sobriety and preliminary-breath test. The officers checked the status of Williams's driving privileges and found Williams was barred as a habitual offender. Officers arrested Williams and transported him to the Boone County jail. The interaction was recorded by a body camera, and the video was admitted into evidence. When the evidence is viewed in the light most favorable to the jury's verdicts, there is substantial evidence to conclude Williams was operating or driving a motor vehicle.

         Williams also challenges the sufficiency of the evidence supporting his conviction for driving while barred. At trial, the district court gave the following marshaling instruction to the jury:

The State must prove both of the following elements of Count II, Driving While Barred:
1. On or about the 12th day of December, 2015, the Defendant operated a motor vehicle.
2. At that time, the Defendant's driver's license was barred as a habitual offender.
If the State has proved both elements, the Defendant is guilty. If the State has failed to prove either of the elements, the Defendant is not guilty.

         At trial, Williams objected to the marshaling instruction. He requested an additional instruction that the State be required to prove the department of transportation mailed notice of the bar to Williams. The district court rejected the request. A deputy testified the defendant's license was barred on the date in question. The defendant's certified driving record showed the same thing. The jury returned a guilty verdict on the instructions given. The State and Williams now tussle over the issue of whether the jury instruction was a correct statement of the law. Is the State required to prove the department of transportation mailed notice of being barred as a habitual offender as an element of the offense in a prosecution for driving while barred as a habitual offender? There is uncertainty in our caselaw.

          We begin with the State v. Green, 722 N.W.2d 650 (Iowa 2006). At issue in that case was whether the State was required to prove the department of transportation mailed notice of suspension as an element of the offense of driving while suspended, in violation of Iowa Code section 321.210. See Green, 722 N.W.2d at 651-52. The supreme court held proof of mailing notice was an element of the offense of driving while suspended. See id. at 652.

         Several decisions of this court have cited Green for the proposition that proof of mailing notice is relevant to a prosecution for driving while barred as a habitual offender. We use the term "relevant" because some of our cases have stated notice is an element of the offense and some of our cases have stated notice must be shown although notice is not an element of the offense. For example, In State v. Hester, this court stated:

A driver's knowledge of barment is not an element of a section 321.561 offense. State v. Carmer, 465 N.W.2d 303, 304 (Iowa Ct. App. 1990). However, the recent case of State v. Green, 722 N.W.2d 650 (Iowa 2006), holds that, where the DOT is required to give notice, failure to prove the DOT mailed the notice precludes a driver's conviction for driving while suspended or barred. Proof that the DOT in fact mailed a notice of barment to the defendant may be accomplished by testimony to support its claim of mailing or an affidavit of mailing. Green, 722 N.W.2d at 652.

No. 07-0038, 2008 WL 508466, at *2 (Iowa Ct. App. Feb. 27, 2008). In State v. Campbell, this court stated:

A driver's knowledge of barment is not an element of an offense pursuant to sections 321.560 and 321.561. However, our supreme court has held that where the DOT is required to give notice, failure to prove the DOT mailed the notice precludes a driver's conviction for driving while suspended or barred. State v. Green, 722 N.W.2d 650, 652 (Iowa 2006).

No. 08-0106, 2008 WL 5412325, at *1 (Iowa Ct. App. Dec. 31, 2008). In State v. Anderson, this court stated notice must be shown:

There are only two elements to the offense of driving while barred: (1) that a person was operating a motor vehicle and (2) the person's driver's license was barred. See Iowa Code § 321.561; State v. Wise, 697 N.W.2d 489, 492 (Iowa Ct. App. 2005). There is no requirement that the State prove a defendant had knowledge the license was barred. State v. Carmer, 465 N.W.2d 303, 304 (Iowa Ct. App. 1990).
The Iowa Supreme Court, however, has determined the State must show the IDOT gave notice to the person their driver's license was barred. See State v. Green, 722 N.W.2d 650, 652 (Iowa 2006).

No. 10-1945, 2012 WL 3200864, at *1-2 (Iowa Ct. App. Aug. 8, 2012). Subsequently, in State v. Johns, this court concluded notice was an element of the offense:

[T]he jury was required to find proof of two elements: (1) he was operating a motor vehicle and (2) at that time, his driver's license was barred as a habitual offender and he had notice of the status of his license. See Iowa Code §§ 321.560, 321.561; State v. Wise, 697 N.W.2d 489, 492 (Iowa Ct. App. 2005). On the second element, the State did not have to show Johns actually knew his license was barred. See State v. Carmer, 465 N.W.2d 303, 304 (Iowa Ct. App. 1990). But the State was required to offer evidence that the DOT actually mailed the notice of his barred status to his last known address. See State v. Green, 722 N.W.2d 650, 652 (Iowa 2006).

No. 14-1435, 2015 WL 4935703, at *1 (Iowa Ct. App. Aug. 19, 2015). Most recently, in State v. Williams, this court stated notice, although not an element of the offense, is a required showing:

Two elements comprise the offense of driving while barred: (1) a person was operating a motor vehicle and (2) the person's driver's license was barred. Iowa Code § 321.561; see also State v. Wise, 697 N.W.2d 489, 492 (Iowa 2005). Additionally, the State must make a showing of the mailing of a notice to the person that their driver's license is barred "such as by affidavit or a certified mail receipt." State v. Green, 722 N.W.2d 650, 652 (Iowa 2006).

No. 15-0755, 2017 WL 1735607, at *1 (Iowa Ct. App. May 3, 2017).

         Despite several of our unpublished decisions to the contrary, we cannot conclude Green requires the State to prove the department of transportation mailed notice of the bar-whether as an element or something else-in a prosecution for driving while barred as a habitual offender. First, controlling precedent forecloses the inquiry. In State v. Cook, the supreme court held the following jury instruction was correct: "(1) Cook operated a motor vehicle on August 15, 1995, and (2) on that date, his privilege to operate a motor vehicle was barred as an habitual offender." 565 N.W.2d 611, 613 (Iowa 1997). The supreme court did not identify proof of mailing notice as an additional element. Nor did the supreme court provide the State must nonetheless establish proof of mailing notice as some additional showing. Cook is controlling, and we are not at liberty to ignore it. See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014) ("We are not at liberty to overrule controlling supreme court precedent.").

         Second, Green is inapplicable here. Green held proof of mailing notice of the suspension was an element of the offense of driving while suspended, in violation of Code section 321.210 (2003).[1]See 722 N.W.2d at 652. Pursuant to section 321.210, the department of transportation can make a decision to suspend the license of an operator "without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee" engaged in certain specified acts. Iowa Code § 321.210(1)(a). "Prior to a suspension taking effect . . . the licensee shall have received thirty days' advance notice of the effective date of the suspension." Iowa Code ยง 321.210(1)(b) (emphasis added). The plain language of Iowa Code section 321.210 makes clear "thirty days' advance notice" is a condition precedent to "a suspension taking effect." In other words, the licensee is not in the status of "being suspended" until thirty days after mailing notice ...


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