Opinion
No. 3-923 / 02-1444
Filed March 10, 2004
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
William John Campbell appeals convictions from multiple charges following a jury trial. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Thomas Ferguson, County Attorney, and Steven Norby, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
A jury convicted William John Campbell of operating while intoxicated (OWI) (Iowa Code section 321J.2 (1999)), driving while license barred (sections 321.560, .561), driving while license suspended (sections 321.210A, .218), criminal mischief, third degree (section 716.6), and two counts of serious injury by vehicle (section 707.6A(4)). Campbell's appeal from those convictions raises various sufficiency-of-the-evidence issues. We affirm in part and reverse in part and remand.
I. Background.
Five young men spent the evening hours of September 22, 2000 drinking in the Cedar Rapids, Iowa area. They were the defendant, William John Campbell, and his companions, Jeremy Mally, Mathew Hibbert, Brian Bernard, and Lucas Hayworth. The five, accompanied by Campbell's young pit bull dog, then went to Waterloo to a strip bar where the drinking continued. Early on September 23, on the return trip from Waterloo, the automobile, registered to Campbell's sister, crashed into a guard rail on the interstate highway. All of the occupants were thought to have been injured and were taken to the hospital, except Campbell. All had a great deal to drink. Campbell admitted he was intoxicated and the record clearly reflects the accuracy of his admission. Hibbert, Mally, and Hayworth, as well as the defendant, testified at the trial. Each related the substantial amount of alcohol he consumed that night and testified he could not recall who was driving either to or from Waterloo. Campbell testified Bernard drove to Waterloo but could not recall who was driving when the collision took place on the way back, but he was adamant he was not. His driver's license was suspended at the time and he was also barred from driving.
Later tests showed Mally had a blood alcohol content of .276 and Hayworth .213. Campbell refused a blood alcohol test.
II. Issues.
Of the six offenses of which Campbell was convicted, five required that the State prove he was the driver of the car. Campbell claims he was not the driver and on appeal urges the evidence is not sufficient to submit that issue to the jury. He also claims the evidence is not sufficient to establish Mally sustained the "serious injury" required to support the charge of serious injury by vehicle. Finally, he claims the State failed to prove any prior OWI offenses and therefore the judgment and sentence for OWI third offense is not supported by the evidence. We will discuss the facts in further detail in connection with the discussion of each issue.
The sixth offense, criminal mischief, involved Campbell urinating in the law enforcement squad car after the collision. This conviction is not an issue on appeal.
Campbell does not challenge the injury element of the serious injury charge involving Hayworth.
III. Error preservation.
Campbell's motions during trial challenging the sufficiency of the evidence issues were general in nature. Anticipating error preservation problems, he alternatively casts these issues as ineffective-assistance-of-counsel claims, asserting counsel should have specifically raised these issues in his motions. We agree Campbell's counsel did not preserve the errors urged on appeal. However, claims of ineffective assistance of counsel are not subject to ordinary error preservation rules. State v. Stallings, 658 N.W.2d 106,108 (Iowa 2003). To succeed on his ineffective-assistance claim he must show that counsel failed to perform an essential duty, and he was prejudiced as a result. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). Of course, counsel is not ineffective for failing to pursue a meritless issue. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). We often defer these claims to postconviction relief actions, but where, as here, the record is adequate to resolve the issues on direct appeal, we will do so. Stallings, 658 N.W.2d at 108.
IV. Standard of review.
Although ineffective-assistance-of-counsel claims are reviewed de novo, State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003), where the underlying contention is that the evidence is insufficient to support the verdicts our review is for errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We will not interfere with a jury's verdict if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact-finder that the defendant is guilty beyond a reasonable doubt. Id. at 75-76. In view of the jury's verdict, we review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence, State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001), considering all the record evidence, not just the evidence that supports the verdict. Id. It is the State's obligation to prove each element of the crime and the mere presence of the defendant at the scene is not, standing alone, sufficient proof. See State v. Heisdorffer, 171 N.W.2d 513, 514 (Iowa 1969) (summarizing rules applicable in sufficiency-of-the-evidence claims where identification of the driver of a vehicle is at issue). Of course, direct evidence and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). Circumstantial evidence is not sufficient when the conclusion is based solely on surmise, speculation or conjecture. Willey v. Riley, 541 N.W.2d 521, 527 (Iowa 1995). However, evidence is not insubstantial merely because it could support contrary inferences. Estate of Lachmich, 541 N.W.2d 543, 545 (Iowa Ct.App. 1995). The jury was properly instructed they were the arbiters of a witnesses' credibility and could accept, or reject, all, part, or none of a witnesses' testimony. Iowa Criminal Jury Instruction 100.7 (1996).
V. Identification of the driver.
The jury was not provided any direct evidence that Campbell was operating the vehicle at the time of the collision, except Campbell's denial. However, the jury was free to reject his version of the events and they did so. There is considerable circumstantial evidence to persuade the jury that Campbell was in fact the driver. See State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (holding operation of vehicle and identity of driver may be proved by circumstantial evidence).
The car was registered to Campbell's sister, with whom he lived, and the car keys were found in Campbell's pocket after the collision. Since all of the other occupants were injured, it is unlikely that one of the occupants gave the keys to him after the collision, and also unlikely he would have accepted them when he wished to deny he was the driver.
Campbell was found walking near the scene by investigating officer Weber. He first told officer Weber he had not been in the car and was walking home on the highway from a bar in Waterloo. He later said the collision had occurred right in front of him and he had to dive to the ground to get out of the way. Still later he said he was walking his dog on River Road, which parallels the highway at that point. There is a six or seven foot chain length fence separating River Road from the interstate, a substantial barrier for anyone seeking access to the interstate to overcome. In his testimony at trial, Campbell admitted he was in the car.
Initially, he was obviously attempting to separate himself from any connection with the operation of the vehicle. He knew he had no valid license and was intoxicated. These repeated attempts at deception indicate a consciousness of guilt that the jury may consider. State v. Piper, 663 N.W.2d 894, 906 (Iowa 2003) ("An intentional untruth can be an indication of consciousness of guilt."). It also greatly undermines Campbell's credibility in denying he was the driver, and enhances the jury's justification in rejecting that contention.
Campbell also attempted to leave the scene. After officer Weber first talked with Campbell, Weber left him to look after the injured occupants. Weber then observed Campbell trying to flag down a car. The officer walked toward him, and Campbell walked away. Flight is circumstantial evidence of consciousness of guilt. State v. Marsh, 392 N.W.2d 132, 134 (Iowa 1986) (holding that while flight instruction is discouraged, evidence of leaving the scene may be considered as circumstantial evidence and argued by counsel).
All of the occupants were taken to the hospital except Campbell, who was arrested and detained. At the hospital the treating doctors talked to some of the occupants to aid in their diagnosis. Although Mally and Hayworth both testified at trial they could not remember who was driving, at the hospital their memories were apparently better. They told Dr. Miner they were both riding in the back seat, the driver had a pit bull with him, and that the driver was arrested and taken to jail. Dr. Savereide, who also treated Mally and Hayworth, also testified they told him the driver was arrested rather than brought to the hospital.
Campbell urges that he could not have been driving because he would not then have been able to restrain his pit bull. However, there is no evidence that the dog needed such personal attention. This contention by Campbell, along with his denial that he was driving, was for the jury to evaluate. They do not negate a submissible jury question as to the identity of the driver.
We believe the conclusion drawn from these facts reached by the jury that Campbell was driving the vehicle at the time of the collision is reasonable and based on substantial evidence, not mere suspicion and conjecture.
VI. Serious injury to Mally.
One count of serious injury by vehicle required the State to prove Jeremy Mally sustained a serious injury as a result of the collision. Campbell claims that Mally's injury did not rise to that level. "Serious injury" is defined as
[a] bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes protracted loss or impairment of the function of any bodily organ or major bodily member, or which causes the loss of any bodily member.
Iowa Code § 321J.1(9) (emphasis added). The jury was instructed in this language.
Mally sustained two lacerations to his left cheek just below the eye in the collision. They had foreign material in them, including glass fragments that had to be removed. They each required twelve stitches. One cut was five centimeters (1.95 inches) in length and required four layers of sutures to close the wound. There will be permanent scarring.
In State v. Epps, 313 N.W.2d 553 (Iowa 1981) the court elaborated on the definition of serious injury by stating they are injuries "which leave the victim `permanently scarred or twisted . . ., [in contrast to] a black eye, a bloody nose, and even a simple broken arm or leg.' 4 J. Yeager R. Carlson, Iowa Practice and Procedure § 45, at 16 (1979)." Epps, 313 N.W.2d at 557. In State v. Phams, 342 N.W.2d 792 (Iowa 1983), the court found a scar on the victim's head which would be covered by his hair and a scar on his ear to be serious permanent disfigurement. Id. at 796.
We believe the permanent facial scar in this case justified the jury concluding Jeremy Mally sustained a serious injury.
VII. Operating while intoxicated, third offense.
Although the trial information charged Campbell with operating while intoxicated (OWI), third offense, which is a felony, in accord with Iowa Rule of Criminal Procedure 2.19(9), no evidence was presented at trial concerning prior offenses. The jury was simply asked to find him guilty or not guilty of OWI. The jury found him guilty. Rule 2.19(9) provides the defendant is then to be given an opportunity to admit or deny the previous convictions in open court. The record is silent as to whether that took place, but evidently Campbell did not admit them. The State was then required under rule 2.19(9) to present evidence at a later time, either to a jury or to the court, that would establish beyond a reasonable doubt Campbell had two prior convictions for OWI. State v. Talbert, 622 N.W.2d 297, 301 (Iowa 2001). Campbell claims the State failed to do this.
Following the jury's verdict, the court scheduled a hearing on the enhancement issue, but it was cancelled. The trial court noted at that time:
On this 22 day of May, 2001, the Court is advised that the defendant will stipulate to his prior two operating while intoxicated offenses involved in the operating while intoxicated third offense alleged in Count 2 of this matter.
Accordingly, trial now set for May 29, 2001 concerning the prior offenses shall be removed from the calendar.
This matter is set by separate order for sentencing. . . .
(Emphasis added). At the sentencing hearing, no reference was made to the prior-offense issue by the court, counsel or the defendant. The court sentenced the defendant for OWI, third offense.
The State rests its claim that it has satisfied its burden on the court's May 22 calendar entry. Its argument is that the phrase "defendant will stipulate" should be read as "the defendant is stipulating." We don't believe that is an appropriate interpretation for us to make. The record is silent on the source of the court's information as to the defendant's stipulation, so we are left to speculate as to its accuracy or reliability. The plain language of the court's entry indicates the stipulation will occur at a future time, but it never did.
We note rule 2.19(9) contemplates a degree of solemnity to a defendant's declaration concerning enhancing offenses; it is to take place in open court. We cannot find that the court's ambiguous statement rises to the level of an admission upon which Campbell's felony OWI conviction can rest. We reverse the defendant's conviction for operating while intoxicated, third offense.
VIII. Disposition.
There was sufficient evidence to support the jury's verdict that Campbell was the driver of the automobile at the time of the collision. There was also sufficient evidence to support the jury's verdict that Jeremy Mally sustained a serious injury. His trial counsel was therefore not remiss in not preserving error on those issues. We find there was insufficient evidence of Campbell's prior operating while intoxicating offenses to establish he was guilty of third offense OWI.
We affirm the district court, except that we reverse the conviction and sentence for operating while intoxicated, third offense. Since this issue comes to us as a sufficiency-of-the-evidence question, and the State does not suggest it should be considered otherwise, we remand to the district court with directions to enter judgment of conviction for operating while intoxicated in violation of Iowa Code section 321J.2(2)(a) and to resentence the defendant for that offense.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Miller, J., concurs; Zimmer, P.J., concurs in part, dissents in part.
I concur with the majority opinion with one exception. I would remand to the district court for further proceedings regarding the charge of operating while intoxicated as third offender. After the jury returned its verdicts, the record reveals a hearing was scheduled to determine whether Campbell had two prior convictions for OWI as alleged by the State in the trial information. The hearing was canceled because the district court was advised the defendant would stipulate he had two prior offenses for operating while intoxicated. At the time Campbell appeared before the court and was sentenced as a third offender, neither the court, counsel, or Campbell mentioned his prior offenses. Although Campbell raised no objection to being sentenced for third offense OWI, I agree with the majority opinion's conclusion that his sentence for that offense must be set aside because he did not confirm his prior convictions in open court. However, I would remand to the district court to provide the defendant with the opportunity to admit or deny the prior convictions alleged in the trial information. If he admits his prior convictions, he should be resentenced as a third offender. If Campbell denies his prior convictions, a hearing should be held as provided in Iowa Rule of Criminal Procedure 2.19(9) to determine whether he has prior convictions which would subject him to an increased sentence as prescribed in the Code.