STATE OF IOWA, Plaintiff-Appellee, vs. KENNETH FRANCIS ORR, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-739 / 06-1130
Filed November 15, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KENNETH FRANCIS ORR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Randal J. Nigg,
District Associate Judge.
Defendant appeals his conviction for the offense of driving while revoked.
AFFIRMED.
Mark C. Smith, Appellate Defender, and Stephan J. Japuntich, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Ralph Potter, County Attorney, and Michael J. Whalen, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Miller, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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ROBINSON, S.J.
I.
Background Facts & Proceedings
On November 14, 2004, deputy David Riniker of the Dubuque County
Sheriff’s Office stopped a vehicle for speeding. The driver displayed a Wisconsin
driver’s license in the name of Michael Paul Orr.
Deputy Riniker ultimately
arrested the driver and administered a breath test, which the driver failed.
Deputy Riniker personally served the driver with notice his driver’s license would
be revoked for one year, effective ten days from that date. 1
The notice of revocation was made out in the name of Michael Paul Orr.
The driver signed the implied consent advisory as Michael or Mike Orr. Deputy
Riniker subsequently learned the name of the person he had stopped on
November 14, 2004, was Kenneth Francis Orr (Orr), the brother of Michael Paul
Orr.
On March 15, 2005, Deputy Riniker observed Orr driving in Cascade,
Iowa, and stopped him because he was aware Orr’s driver’s license had been
revoked due to the November 14, 2004 notice of revocation. Orr had an Iowa
driver’s license in his correct name that had been issued in February 2005. The
records of the Iowa Department of Transportation (DOT) showed the driver’s
license of Michael Paul Orr was revoked from November 25, 2004, until
November 25, 2005.
DOT records did not show Orr’s driver’s license was
revoked on March 15, 2005.
1
Iowa Code section 321J.12(1)(b) (2005) provides that upon certification by a peace
office that there exists reasonable grounds to believe a person has violated section
321J.2, “the department shall revoke the person’s driver’s license” for “[o]ne year if the
person has had a previous revocation under this chapter.”
3
Orr was charged with operating while revoked, in violation of Iowa Code
section 321J.21 (2005). The State alleged that because Orr personally received
notice of revocation on November 14, 2004, his driver’s license was revoked on
March 15, 2005, when he was stopped by Deputy Riniker. Orr claimed that the
notice of revocation did not operate to revoke his license, and further action
should have been taken by the DOT to revoke his license using his correct name.
The district court ruled:
[I]f, in fact, the Defendant was the one that was driving on
November 14th of ’04, then I’m going to be instructing the jury that
there was a revocation of his privileges in effect for a year from the
ten days after he received the notice. I think that’s the law of Iowa.
The case proceeded to a jury trial. Deputy Riniker identified defendant as
the person he stopped on November 14, 2004, and personally served with the
notice of revocation. He also identified defendant as the person he observed
driving on March 15, 2005. A jury found Orr guilty of driving while revoked. The
district court denied Orr’s motion for a new trial.
Orr was fined $1000.
He
appeals his conviction for driving while revoked.
II.
Sufficiency of the Evidence
Orr contends there is not sufficient evidence in the record to support his
conviction. He points out that DOT records show the driver’s license of Kenneth
Orr was not revoked on March 15, 2005. He claims he cannot be convicted
based on the revocation of another person’s driver’s license, even in
circumstances involving deception.
We review challenges to the sufficiency of evidence for the correction of
errors at law. State v. Schmidt, 480 N.W.2d 886, 887 (Iowa 1992). A guilty
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verdict is binding on appeal, unless there is not substantial evidence in the record
to support it, or the verdict is clearly against the weight of the evidence. State v.
Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998).
Substantial evidence
means evidence that could convince a rational fact finder that the defendant is
guilty beyond a reasonable doubt. Id.
Orr was charged with driving while revoked under section 321J.21(1). For
a defendant to be convicted under this section, the State must prove beyond a
reasonable doubt (1) defendant’s license was revoked, and (2) defendant
operated a motor vehicle during the period of revocation. State v. Thompson,
357 N.W.2d 591, 594 (Iowa 1984).
The State is not required to prove the
defendant had knowledge of the revocation. See State v. Carmer, 465 N.W.2d
303, 304 (Iowa Ct. App. 1990).
Furthermore, in a criminal prosecution, the State is not required to retry
the elements of the administrative revocation proceedings.
Thompson, 357
N.W.2d at 594. The revocation of a person’s driver’s license is an administrative
action of the DOT.
See Iowa Code §§ 321J.12-.14.
A person wishing to
challenge the revocation must exhaust administrative remedies. Thompson, 357
N.W.2d at 594.
Orr claims the notice of revocation given on November 14, 2004, was not
effective against him because it was in the name of Michael Paul Orr. Orr was
served personal notice of the revocation, as permitted by section 321J.12(3),
which provides, “[t]he peace officer who requested or directed the administration
of the chemical test may, on behalf of the department, serve immediate notice of
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revocation on a person.” 2 See State v. Vargason, 607 N.W.2d 691, 693 (Iowa
2000). Orr was the person who had been administered a chemical test, not
Michael Paul Orr, and the notice of revocation was directed to Orr. If Orr felt the
notice of revocation had been given to him in error, he could have sought
administrative remedies under sections 321J.13 and 321J.14. Orr cannot now,
however, collaterally attack the revocation of his driver’s license.
See
Thompson, 357 N.W.2d at 594.
We conclude there is sufficient evidence in the record to support
defendant’s conviction for driving while revoked.
III.
Evidentiary Rulings
Orr contends the district court should have permitted him to present
evidence that DOT records showed Kenneth Orr had a valid driver’s license on
March 15, 2005. The court found the evidence was not relevant, stating “I don’t
think the technicalities of the notices from the DOT can be used in essence as a
sword to avoid liability for criminal behavior.” Orr made an offer of proof of the
evidence.
We review the district court’s evidentiary rulings for an abuse of discretion.
State v. Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003). An abuse of discretion
arises when the court’s discretion is exercised on grounds clearly untenable or to
2
In State v. Finger, 324 S.E.2d 894, 897 (N.C. Ct. App. 1985), the defendant’s proper
name was Robert H. Finger. The North Carolina Division of Motor Vehicles had records
for Fred Robert Leo Finger. Finger, 324 S.E.2d at 898. The North Carolina Court of
Appeals found a notice of revocation that was personally served on defendant was
sufficient to revoke his driver’s license. Id. The court did not discuss, however, whether
the personal notice was in the name of Robert H. Finger or Fred Robert Leo Finger.
Whether the notice of revocation matched defendant’s proper name, or the official motor
vehicle records, the notice given to the defendant was sufficient to revoke his driver’s
license. See id.
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an extent clearly unreasonable. State v. Henderson, 696 N.W.2d 5, 10 (Iowa
2005).
Generally, relevant evidence is admissible in judicial proceedings. Iowa
R. Evid. 5.402; State v. Taylor, 689 N.W.2d 116, 123 (Iowa 2004). Evidence is
relevant when it has the “tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Iowa R. Evid. 5.401.
We note that it was due to Orr’s actions that the revocation was issued in
the name of Michael Paul Orr, resulting in his ability to obtain a license in the
name of Kenneth Orr. In People v. Turner, 354 N.E.2d 897, 898 (Ill. 1976),
defendant Frank Turner’s driver’s license was revoked, but he obtained a new
license under the name Kerry Sharp. The court concluded Turner’s “privilege to
drive was not restored through his fraudulently obtaining a license under the
name ‘Kerry Sharp.’” Turner, 354 N.E.2d at 899.
A fraudulently obtained driver’s license is not a valid defense to a charge
of driving while revoked. People v. Waldron, 566 N.E.2d 976, 977 (Ill. App. Ct.
1991). We determine the fact Orr was able to obtain a driver’s license in his own
name is not relevant. We conclude Orr has failed to show the district court
abused its discretion by finding the evidence in question was not relevant to the
criminal charge of driving while revoked. Furthermore, to the extent the issue is
raised, we find Orr was not denied his constitutional right to present a defense.
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IV.
Ineffective Assistance
Orr asserts he received ineffective assistance of counsel during his
criminal trial. We review claims of ineffective assistance of counsel de novo.
State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of
ineffective assistance of counsel, a defendant must show (1) the attorney failed
to perform an essential duty, and (2) prejudice resulted to the extent it denied
defendant a fair trial. State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006).
Absent evidence to the contrary, we assume that the attorney’s conduct falls
within the wide range of reasonable professional assistance. State v. Hepperle,
530 N.W.2d 735, 739 (Iowa 1995).
A.
Orr claims he received ineffective assistance due to defense
counsel’s failure to request a jury instruction on the lesser included offense of
operation of a motor vehicle without a valid license, under section 321.174. As
the State points out, Orr’s defense at trial was that he had a valid driver’s license
on March 15, 2005, and therefore could not be found guilty of driving while
revoked. Defense counsel made a strategic decision not to raise a claim that
Orr’s license was not revoked, but he did not have a valid license at the time of
the stop. See State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995) (noting we
generally will not second-guess reasonable trial strategy).
Even if defense counsel breached an essential duty, Orr has not shown he
was prejudiced by counsel’s conduct.
The evidence clearly showed Orr
personally received notice of revocation of his driver’s license on November 14,
2004, and he was observed driving a motor vehicle on March 15, 2005, within the
8
period of revocation. Orr has not shown that but for counsel’s action he would
have been convicted of operating a motor vehicle without a valid license.
B.
Orr also claims defense counsel should have objected to evidence
relating to the November 14, 2004, stop because the evidence was unduly
prejudicial and presented improper references to prior bad acts. As discussed
above, the State was required to prove defendant’s license was revoked. See
Thompson, 357 N.W.2d at 594. To this end, Deputy Riniker testified briefly about
the circumstances which gave rise to the revocation. In this case, the State also
needed to prove identity, and Deputy Riniker testified to the circumstances of the
November 14, 2004, stop, including the fact defendant presented a driver’s
license in the name of Michael Paul Orr.
The evidence was relevant to the prosecution of the present case, and
was not an attempt to show defendant was guilty of the present crime because
he had committed previous crimes. See State v. Sullivan, 679 N.W.2d 19, 29
(Iowa 2004) (noting evidence of other crimes is not admissible to show a general
propensity to commit crimes). Moreover, “[e]vidence immediately surrounding an
offense is admissible in order to show the complete story of a crime, even when it
shows commission of another crime.”
Shortridge, 589 N.W.2d at 83.
We
conclude defense counsel had no duty to raise a meritless objection to the
evidence in question. See State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005).
We conclude Orr has failed to show he received ineffective assistance of
counsel.
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We affirm Orr’s conviction for driving while revoked, in violation of section
321J.21.
AFFIRMED.
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