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State v. Carroll

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,

          Appeal from the Iowa District Court for Sioux County, Robert J. Dull, District Associate Judge.

         A defendant appeals from his conviction for operating while intoxication. AFFIRMED.

          Michael J. Jacobsma of Jacobsma Law Firm, PC, Orange City, for appellant.

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

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

          TABOR, Judge.

         Motorcyclist Robert Carroll appeals his conviction for operating while intoxicated. He contends the district court's refusal to instruct the jury concerning factors to consider when evaluating eyewitness-identification testimony entitles him to a new trial. Carroll also assails his attorney's performance, asserting counsel was constitutionally remiss in not objecting to prior bad acts evidence and by not filing a motion to suppress evidence obtained during an unlawful search and seizure. Because the jury's verdict did not hinge on the eyewitness identification in this case, refusal to give the instruction was not reversible error. We affirm Carroll's conviction and preserve his ineffective-assistance-of-counsel claims for further development in postconviction-relief proceedings.

         I. Facts and Prior Proceedings

         On the evening of September 16, 2016, Sarah and Cory Nibbelink were driving through Sioux Center with their two young children when a loud motorcycle drew their attention. The motorcycle "jumped a curb" on the left side of the road and passed them on the driver's side in a residential area. Once the motorcycle pulled in front of the Nibbelinks, it was "kind of swerving into the other lane." The cyclist slowed down for a stop sign, but was weaving and "struggling a little bit to stay upright." After the stop sign, the motorcycle lost control, spun in a circle, and "laid it down on the ground." Sarah noticed something, maybe a mirror, drop onto the ground at the crash site.

         Sarah pulled into a driveway and called 911 to report what she believed to be a drunk driver. In the call, she described the motorcycle as having high handlebars with a chain or tassel hanging from one side. While Sarah was talking to the 911 dispatcher, the cyclist got up, remounted the motorcycle, and drove westbound at a high speed-as fast as 80 miles per hour by Sarah's estimate. Sarah and Cory followed the motorcycle's taillight, which they could see in the dark, not encountering any other vehicles. A few miles away, the motorcycle pulled into a driveway. Sarah handed the phone to Cory, who knew the property was owned by a farmer named Brantsen. The dispatcher advised that officers were en route to the farm so the Nibbelinks could go on their way. Neither Sarah nor Cory identified the motorcyclist by name to the dispatcher.

         After the 911 call ended, the Nibbelinks drove back to the crash site to see if the cyclist had dropped something-finding a smashed beer can on the road and another that had rolled to the shoulder. Sarah later described the cans as sixteen-ounce Budweisers with American flag labels.

         At trial, Sarah described the cyclist as a man around fifty years of age with a mustache and goatee and blond or white hair. She recognized the motorcycle from seeing it "around town on cruise nights." On cross-examination, defense counsel asked if she had ever met the person who was riding the motorcycle. She testified she had seen the driver before but had never "personally had a conversation" with him. She acknowledged the motorcycle went by quickly and she "just had a glance" at the driver. "I can't say a hundred percent that it was him." On redirect, Sarah testified she was familiar with Carroll because she had worked with his wife, Susan, at a gas station a few years earlier. On recross-examination, Sarah testified she "assumed" it was Carroll riding the motorcycle.

         Cory testified to the same events. He also identified a motorcycle with high-rise handlebars with a tether on the right-hand side. Cory recalled seeing the motorcycle on occasion around town, typically parked outside Susan Carroll's house. Cory believed Robert Carroll also lived there. Cory described the cyclist as having gray or blond hair and wearing a bandana and a jacket. He estimated the driver's weight around 200 pounds and age around fifty years. Cory testified he had seen the driver around town but did not know him personally. Cory recalled the motorcycle landing on its left side when it tipped over. Cory saw "something fall away from the bike when he dumped it on its side."

         Officer Josh Koedam arrived first at the Brantsen residence and turned on his squad car's spotlights. Looking inside the house, the officer could see two men. The officer also saw a motorcycle parked, nose first, in the open garage. The motorcycle had high handlebars with a tassel hanging from one bar. Later, when the officer approached the motorcycle, he heard noises like it had been recently operated. Officer Koedam was familiar with the motorcycle and its owner, Carroll. The officer walked to the door, met Brian Brantsen, and asked to speak to the operator of the motorcycle. Brantsen claimed no one else was there. When Koedam told Brantsen he had already seen another person in the house, Brantsen called to Carroll. Carroll denied being involved in an accident but said he "had simply lost his glasses while riding his motorcycle, had turned around to pick up his glasses, and had tipped his motorcycle over and then proceeded westbound."

         Carroll showed Koedam his motorcycle in the garage. Koedam saw minor damage on the left handle and scrape marks on the clutch. The officer could smell a "very strong odor of an alcoholic beverage" coming from Carroll and asked him how much he had to drink that night. Carroll admitted drinking eight sixteen-ounce beers but commented "he was not sure if he was over the limit or not." Carroll had unsteady balance, slurred speech, and red, watery eyes. So when Officer Ulf Schaefer arrived, he conducted field sobriety tests. Carroll told Schaefer he had been riding the motorcycle and tipped over after stopping to pick up a bandana. The officers arrested Carroll for operating while intoxicated. At the police station, Carroll submitted to a breath test, revealing a blood alcohol concentration of .132.

         Before trial, Carroll sought to exclude any reference to prior convictions, arrests, wrongful acts, or allegations of wrongful acts. The court granted the motion in limine, "except that any prior convictions of Defendant ...

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