IN THE COURT OF APPEALS OF IOWA
No. 14-1435
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GUY CHRISTOPHER JOHNS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Charles K.
Borth, District Associate Judge.
A defendant appeals his conviction for driving while barred. REVERSED
AND REMANDED.
Richard J. Bennett Sr. of Bennett Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Ryan Ashley, Student Legal Intern, Dave Patton, County Attorney, and
Paul Andrew Allen, Assistant County Attorney, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, P.J.
Guy Johns appeals his conviction for driving while barred as a habitual
offender, an aggravated misdemeanor, in violation of Iowa Code section 321.560
(2013). He contends the State failed to prove both the notice element of the
licensure bar and the act of driving. Because we find the State failed to prove
beyond a reasonable doubt that the Iowa Department of Transportation (DOT)
mailed the notice of barred status to Johns, we reverse his conviction.
The State alleged Johns committed the offense on August 23, 2013, when
Storm Lake Police Officer Breana Pearson saw him driving a U-Haul truck.
Officer Pearson recognized Johns as having a barred license and arrested him
when the truck reached its destination. On August 5, 2014, a jury convicted
Johns of driving while barred. The court denied his motion for new trial and
sentenced him to two years in prison, suspended the term, and ordered him to
serve probation. On appeal, he contends the State presented insufficient
evidence of his guilt or, alternatively, that the guilty verdict was against the weight
of the evidence.
We review his sufficiency-of-the-evidence claim for correction of legal
error. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). If we were to
reach his new trial issue, we would apply an abuse-of-discretion standard. See
State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). But because we find
insufficient evidence, our analysis stops there.
To convict Johns of driving while barred, the jury was required to find proof
of two elements: (1) he was operating a motor vehicle and (2) at that time, his
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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)
(interpreting saving provision at Iowa Code section 321.16). Solely furnishing a
copy of the notice found in the DOT files will not satisfy that element. Id. Proof
of the DOT mailing the license notice may be accomplished, for example, by an
affidavit of mailing or by a certified mail receipt. Id.
On appeal, Johns points out that the State did not offer an affidavit of
mailing or a certified mail receipt for the notice. Instead the State presented the
testimony of Amy Sievers, a field supervisor for the DOT office of driver services.
She testified she supervised the records work of the DOT stations in Spencer
and Sioux City. Through her testimony, the prosecutor offered State’s Exhibits 4,
5, and 6: (4) Johns’s certified driving record dated March 24, 2012; (5) a certified
official notice of the effective dates that his driver’s license would be barred; and
(6) a certificate of bulk mailing from the United States Postal Service showing
327 identical pieces of first class mail were postmarked on March 28, 2012. As
Johns argues on appeal: “the certificate of bulk mailing bears no words,
numbers, or symbols to show that defendant’s notice was one of the 327 pieces
of mail sent on March 28, 2012.”
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Sievers testified on direct examination that the official notice was kept as
part of Johns’s official driving records and indicated his privileges were barred
from April 28, 2012 until April 27, 2014. Sievers also testified the bulk mail
certificate was kept as part of Johns’s official driving record and indicated “when
the official notice would have gone out.”
During Sievers’s cross-examination, the following exchange occurred:
Q. Did you mail off 327 notices of license revocation or
barment that day or just 327 notices? A. It would have been 327
notices of the—of the official notice itself.
Q. Okay. But the 327 there, you don’t know, actually know if
Mr. Johns’ letter was in that billing? A. Yeah. I would say yes,
because it’s got the same date, and that’s how our certificate from
the postal service—that’s how we keep track that they have gone
out.
Sievers further testified the official notice was typed on March 24, and
“[t]he mail went out March 28th is when we got our receipt.” When asked why
the postal service receipt did not bear the same date as the notice, Sievers
testified: “it just depends.” She said if the notice was generated on a Friday, “we
wouldn’t mail it out until Monday and that’s why the receipt would be different.”
Sievers’s explanation of the difference in dates was not particularly enlightening,
as March 24, 2012, the date of the notice, fell on a Saturday, and March 28,
2012, the date of the bulk mail receipt, was a Wednesday.
In its responsive brief, the State argues “Sievers did not hesitate in
confirming that Johns’s notice was among those mailed out in the bulk mailing.”
The State continues: “This unimpeached testimony, coupled with the certificate of
bulk mailing, is presumptive proof that notice was served, a presumption that
Johns has failed to overcome with any contrary evidence or testimony.”
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We disagree with the State’s portrayal of the mailing evidence. It is not
clear from Sievers’s testimony what her role was in the DOT process of mailing
official notices. She generally stated: “Notices are sent out if somebody is going
to lose their driving privilege for a certain reason.” When asked about State’s
Exhibit 5, the official notice of Johns’s barment, Sievers initially testified that it
was “mailed out on March 24th, 2012”—though she later acknowledged the bulk
mailing receipt bore a date stamp of March 28, 2012. We also note although
Sievers supervises DOT stations in northwest Iowa, the bulk mailing notice
indicates the pieces of mail were sent from Des Moines.
In her testimony, Sievers did not confirm Johns’s notice was among the
327 pieces of bulk mail described on the postal service receipt. Instead she
assumed his March 24 notice was in the March 28 mailing because the dates
were close in time. That assumption does not satisfy the State’s burden of proof
as articulated in Green, 722 N.W.2d at 652. There, the supreme court said
furnishing a copy of a DOT notice found in its files did not prove the notice was
actually mailed. Green, 722 N.W.2d at 652. Here, the State also offered a bulk
mail receipt that Sievers testified was kept as part of Johns’s official driving
record. But that receipt does not indicate Johns’s notice was among the pieces
of mail sent out. And Sievers did not explain the DOT process for placing the
bulk mailing receipt into a driver’s record.
The State characterizes Sievers’s testimony as “unimpeached.” But her
cross-examination highlighted that she did not have actual knowledge Johns’s
notice was included in the 327-piece mailing. The State also suggests Johns
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carried the burden to overcome the presumption that the notice was sent. We
disagree with that burden shifting. It is the State that must prove the notice was
actually mailed. See id.; see also State v. Campbell, No. 08-0106, 2008 WL
5412325, at *1 (Iowa Ct. App. Dec. 31, 2008) (reversing conviction where DOT
employee explained agency’s procedures for mailing notices, but the State
presented no testimony or documentary evidence those procedures were
followed in Campbell’s case).
Iowa Code section 321.16 requires the DOT to “adopt rules regarding the
giving of notice by first class mail, the updating of addresses in department
records, and the development of affidavits verifying the mailing of notices under
this chapter and chapter 321J.” The DOT’s administrative rule provides: “The
department may prepare an affidavit of mailing verifying the fact that a notice was
mailed by first-class mail. To verify the mailing of a notice, the department may
use its records in conjunction with U.S. Postal Service records available to the
department.” Iowa Admin. Code r. 761-615.37(4). In this case, the State filed an
Affidavit of Mailing, sworn on oath by DOT records manager Kathy McLear, as a
proposed exhibit, but did not offer that exhibit at trial.
Instead, to support the notice element, the State offered the bulk mailing
certificate, proving that 327 pieces of identical mail were sent on March 28, 2012,
and Sievers’s testimony that she believed Johns’s notice was among them
because of the timing. We do not find that the coincidence of the dates, standing
alone, is sufficient to prove the notice was sent. The record does not establish a
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time frame for when the 327 pieces in the bulk mailing were generated by the
DOT or if all the notices from this period were included in the mailing.
To satisfy Green, the DOT must furnish records that establish a
connection between the notice at issue and the mailing certificate. Without
verification that Johns’s notice was in the bulk mailing, we cannot find sufficient
evidence to support the offense of driving while barred. Thus, we reverse and
remand for dismissal of the charge.
REVERSED AND REMANDED.
Bower, J., concurs; McDonald, J., dissents.
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MCDONALD, J. (dissenting)
I respectfully dissent. The verdict is supported by substantial evidence. In
reviewing a challenge to the sufficiency of the evidence, we consider all record
evidence “in the light most favorable to the State, including all reasonable
inferences that may be fairly drawn from the evidence.” State v. Sanford, 814
N.W.2d 611, 615 (Iowa 2012) (citation omitted). A verdict will be upheld if it is
supported by substantial evidence. See State v. Nitcher, 720 N.W.2d 547, 556
(Iowa 2006). Substantial evidence is the quantity and quality of evidence from
which a reasonable juror could conceivably find the defendant guilty beyond a
reasonable doubt. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998). The
department’s representative testified as follows:
Q. We spoke earlier about receiving a notice of a change in
license. I want to direct your attention to Exhibit 5. Can you
identify that document for us? A. Yes. It’s an official notice that
was mailed out March 24th, 2012, to Guy Christopher Johns.
Q. Okay. And again can you explain to the Court how you
are able to identify that document? A. It says official notice on it
and it has Mr. Johns’ name and address.
Q. Is that notice something that’s kept as part of Mr. Johns’
official driving records? A. Yes, sir.
She repeated the same, bolstering her own testimony by reference to the bulk
mailing notice:
Q. I want to direct your attention to Exhibit 6 now. Can you
identify that document for us? A. This is certificate of bulk mailing
from the United States Postal Service.
Q. Okay. How do you know that’s what it is? A. It states
right on the top.
Q. Okay. And is that something that’s kept as part of the
Defendant’s official driving record? A. Yes.
Q. Okay. So looking at Exhibit 6, can you again explain to
the Court kind of what that document tells us? A. That on March
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28th, 2012, we mailed out 327 identical pieces of mail at the rate
and then we get the certificate from the postal service.
Q. How does that relate to the previous exhibits that you
have looked at? A. [T]hat’s when the official notice would have
gone out.
(Emphasis added.) Even taking into account the defendant’s arguments
regarding the bulk mailing notice, viewing the evidence in the light most favorable
to the State, including all reasonable inferences to be drawn from the evidence, a
jury could conceivably find the department mailed notice based on the testimony
of the department representative who explicitly testified the department mailed
notice. See State v. Anderson, No. 10-1945, 2012 WL 3200864, at *2 (Iowa Ct.
App. Aug. 8, 2012) (holding there was sufficient evidence the State mailed notice
where department representative testified to the same).