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State v. Malloy

Court of Appeals of Iowa

December 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
KELLY BRYAN MALLOY, Defendant-Appellant.

          Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

         A defendant challenges his convictions for operating while under the influence of methamphetamine and eluding. AFFIRMED.

          Priscilla E. Forsyth, Sioux City, for appellant.

         Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          TABOR, Judge.

         Kelly Malloy drew the attention of Woodbury County Sheriff's deputies when he made an illegal U-turn on his "crotch rocket style" motorcycle in the early morning hours. As a result of a forty-minute, high-speed chase, the State charged Malloy with eluding and operating while intoxicated-second offense. A jury convicted him on both counts. On appeal Malloy claims the State offered insufficient evidence to show he was under the influence of methamphetamine. Malloy also argues he received ineffective assistance when his trial attorney did not object to an inexperienced officer's testimony regarding the horizontal gaze nystagmus (HGN) test. Because ample evidence supports the jury's verdicts and no prejudice resulted from counsel's inaction, we affirm.

         I. Facts and Prior Proceedings

         When Deputies Sage Lewis and Troy Tadlock saw Malloy make the illegal maneuver, they turned on the flashing lights and siren in their marked cruiser. But Malloy did not stop; instead he sped away from the deputies. Malloy led them on a lengthy chase, at times reaching ninety miles per hour in twenty-five-mile-per-hour speed zones. During the chase, the deputies noticed Malloy wobbled on the motorcycle; they suspected he might have a flat tire. Malloy also veered into the opposite lane of traffic a number of times.

         Malloy pulled over when officers blocked off a portion of the highway. As Malloy dismounted the motorcycle, he lost his balance and fell down a steep ravine. While at the scene, officers examined Malloy's motorcycle and determined neither tire was flat. Malloy required emergency medical attention; he complained about pain in his knee and shoulder to emergency personnel and deputies at the scene. When a paramedic removed Malloy's boot to examine his left leg, a drug-encrusted spoon fell out. While loading him into the ambulance, a paramedic noticed Malloy's eyes were red, and en route to the hospital, Malloy kept falling asleep.

         Once at the hospital, the paramedic turned the spoon over to police. An officer used a field test kit to confirm the spoon was covered in methamphetamine residue. Deputy Michael Lenz performed an HGN test on Malloy and reported that all six signs indicated intoxication. Lenz also requested blood and urine samples from Malloy, but Malloy refused.

         The State charged Malloy with first-degree eluding, driving while barred, operating while intoxicated-second offense, and third-degree theft. After the motorcycle owner clarified Malloy had permission to take the motorcycle, the State dismissed the theft charge. Malloy also pleaded guilty to driving while barred and stipulated he had a prior conviction for operating while intoxicated. The charges for eluding and operating while intoxicated proceeded to trial.

         The jury convicted Malloy of first-degree eluding, [1] in violation of Iowa Code section 321.279(3) (2016), and operating while intoxicated, [2] in violation of section 321J.2. Malloy challenges both convictions on appeal.

          II. Scope and ...


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