from the Iowa District Court for Polk County, Robert J.
Newman appeals his convictions for operating while
intoxicated, second offense, and first-degree eluding.
C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Kyle Hanson and Tyler J.
Buller, Assistant Attorneys General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
VAITHESWARAN, PRESIDING JUDGE.
found Richard L. Newman guilty of operating a motor vehicle
while intoxicated (second offense) and first-degree eluding.
See Iowa Code §§ 321J.2, 321.279(3)(b)
(2016). On appeal, Newman contends the evidence was
insufficient to support the findings of guilt.
jury was instructed that the State would have to prove the
following elements of operating a motor vehicle while
intoxicated: "1. On or about the 15th day of July, 2016,
the Defendant was operating a motor vehicle. 2. At the time,
the Defendant was under the influence of alcohol." The
jury was also instructed on the elements of first-degree
eluding, which required a finding "the Defendant was
operating the motor vehicle while under the influence of
alcohol or drugs or a combination thereof." Newman takes
issue with the "under the influence" element of
both counts. He asserts, "The videos of [him] after he
was pulled over and at the police station do not show an
jury was instructed that a person is "under the
influence" when, by drinking liquor and/or beer, one or
more of the following is true: "1. His reason or mental
ability has been affected. 2. His judgment is impaired. 3.
His emotions are visibly excited. 4. He has, to any extent,
lost control of bodily actions or motions."
reasonable juror could have found the following facts. A Des
Moines police officer observed Newman driving a car without a
license plate. He turned on his overhead lights and followed
Newman into the parking lot of a store. Newman drove through
the lot and suddenly accelerated. The officer activated his
siren and pursued Newman down a large thoroughfare and
through neighborhood streets at speeds of fifty to sixty-five
miles per hour. The actual speed limit in these areas was
twenty-five to thirty miles per hour.
Newman crashed into a parked car, jumped out of his vehicle,
and ran. The officer gave chase and apprehended him. As he
placed Newman in handcuffs, the officer "could smell the
odor of alcohol coming from" him. He also noticed that
Newman had "bloodshot eyes." A partially consumed
bottle of brandy was found in Newman's car. Newman
admitted, "I'm gonna blow dirty because I just had
[a] swig." See State v. Truesdell, 679 N.W.2d
611, 616 (Iowa 2004) (noting defendant "acknowledged he
consumed alcohol prior to the incident"). The officer
contacted another officer with expertise in OWI cases.
second officer also smelled alcohol on Newman and noticed his
eyes were "watery and bloodshot." He testified
Newman's "speech was slurred, " "he was
swaying when he stood, " and there was "a brief
stagger when he walked." Id. (citing police
observation of "numerous signs of alcohol
intoxication"). The officer estimated he spent ten
minutes with Newman at the scene, several minutes
transporting him to the Des Moines police station, and
one-and-a-half to two hours at the station.
reasonable juror could have found from these facts that
Newman was under the influence of alcohol. Although the first
officer testified that he did not hear Newman slurring his
speech on his review of video recordings, the second officer
disagreed. Given the time the second officer spent with
Newman, as well as his expertise in OWI cases, the jury
reasonably could have credited his testimony over that of the
first officer. See State v. Williams, 695 N.W.2d 23,
28 (Iowa 2005) (determining the credibility of witnesses on
motions for judgment of acquittal is the province of the
jury also could have given weight to Newman's flight and
the ensuing high-speed chase and could have found his
behavior indicative of "visibly excited emotions"
or impaired judgment. See Truesdell, 679 N.W.2d at
616 ("Truesdell also drove the vehicle at a high rate of
speed, and nearly struck store employees in the parking
lot."); State v. Hintze, No. 12-2125, 2013 WL
5758018, at *2 (Iowa Ct. App. Oct. 23, 2013) (stating the
decision to flee "reveals his reasoning and judgment
were impaired"). Conversely, the jury could have placed
little weight on Newman's lucid conversation with the
officers following his apprehension. ...