IN THE COURT OF APPEALS OF IOWA
No. 16-2094
Filed October 11, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICHARD LEE NEWMAN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Richard Newman appeals his convictions for operating while intoxicated,
second offense, and first-degree eluding. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas 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.
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VAITHESWARAN, Presiding Judge.
A jury 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.
The 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 intoxicated person.”
The 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.”
A 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
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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.
Eventually, 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.
The 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.
A 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
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(Iowa 2005) (determining the credibility of witnesses on motions for judgment of
acquittal is the province of the jury).
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. Even
if Newman’s “reason or mental ability” was intact, the jury only had to find the
evidence satisfied one of the four factors.
The jury’s findings of guilt were supported by substantial evidence. See
State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (setting forth standard of
review). We affirm Newman’s convictions for operating while intoxicated (second
offense) and first-degree eluding.
AFFIRMED.