STATE OF IOWA, Plaintiff-Appellee, vs. ADAM LEE KAUFMAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-050 / 08-0880
Filed April 8, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ADAM LEE KAUFMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Bremer County, Peter B. Newell,
District Associate Judge.
A defendant appeals from his conviction of operating while intoxicated,
first offense. AFFIRMED.
Dale Putnam, Decorah, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, Kasey E. Wadding, County Attorney, and Jill Dashner, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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VOGEL, P.J.
Adam Kaufman appeals from judgment and sentence following his
conviction of operating while intoxicated, first offense. He asserts that the district
court erred in not granting his motion in limine and permitting evidence of a
preliminary breath test. We affirm.
I. Background Facts and Proceedings
At approximately 2:00 a.m. on May 19, 2007, Police Chief Steve Aiello of
Readlyn, having just come off duty, heard tires squealing about a block away
from his home. Upon investigation, Chief Aiello found Kaufman‟s vehicle with the
two front tires on the roadway, the two back tires over the curb, and Kaufman
attempting to drive the vehicle back onto the roadway. Chief Aiello approached
the vehicle and spoke to Kaufman.
He noticed a strong odor of alcohol on
Kaufman‟s breath and that Kaufman‟s speech was slurred and difficult to
understand.
Chief Aiello observed one full and two empty beer cans in the
console area. When asked, Kaufman repeatedly gave the false name of “Ralph,”
but admitted that he had been drinking “everything in the bar.” He soon pointed
across the street, mentioning that he had smashed into another vehicle that was
parked in a private driveway. Eventually Kaufman produced his driver‟s license,
but stated the Chief would not be able to charge him with OWI as his step-father
was a city of Readlyn council member. He also told Chief Aiello that he should
have taken off running, as the Chief would not have been able to catch him.
Deputy Brian Bockhaus of the Bremer County Sheriff‟s Office arrived at
the scene and also noticed an odor of alcohol on Kaufman and that Kaufman‟s
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speech was slurred and his eyes were bloodshot and watery.
With a video
camera running, the Deputy administered three field sobriety tests as well as a
preliminary breath test (PBT). Immediately following the PBT, Kaufman fled the
scene. Kaufman was later arrested and charged with operating while intoxicated
and two counts of interference with official acts.1
On December 14, 2007, Kaufman filed a motion in limine requesting the
district court to prohibit any mention at trial of a preliminary breath test. After a
hearing, the district court ruled the State could refer to the fact that a PBT was
administered and Kaufman fled the scene immediately afterwards, but could not
refer to the result of the PBT. Following a jury trial, Kaufman was convicted of
operating while intoxicated, first offense, in violation of Iowa Code sections
321J.2(1)(a) and (b) and 321J.2(2)(a) (2007). At the sentencing hearing, the
district court entered judgment and sentence on the OWI conviction. Additionally
the district court entered judgment and sentence on one count of interference
with official acts in violation of Iowa Code section 719.1 and dismissed one count
of interference with official acts at the State‟s request. Kaufman appeals.
II. Standard of Review
We review evidentiary rulings for an abuse of discretion. State v. Parker,
747 N.W.2d 196, 203 (Iowa 2008). We review a district court‟s interpretation of
the rules of criminal procedure for correction of errors at law. State v. Sanders,
623 N.W.2d 858, 859 (Iowa 2001).
1
Kaufman was also charged with failure to maintain control pursuant to Iowa Code
section 321.288 (2007), and striking an unattended vehicle pursuant to Iowa Code
section 321.264.
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III. Analysis
A video tape, with audio, captured the deputy while he conducted three
field sobriety tests and administered the PBT, as well as Kaufman‟s flight from
officers. Kaufman filed a motion in limine on December 14, 2007, and the district
court took up the motion on the morning of the scheduled trial, February 7, 2008.
Kaufman appeals the district court‟s denial of his motion in limine requesting the
court to prohibit the State from “offering testimony, statements about, or
interjecting the term „preliminary breath test‟ or the results thereof.”
First, Kaufman asserts that his motion should have been “deemed
granted” as the State did not file a written resistance and counsel was
unprepared to reply to the State‟s oral argument.
The district court did not
specifically rule on Kaufman‟s assertion but rather stated, “I think you better
argue the merits.”
The hearing continued with both sides afforded the
opportunity to speak to the motion.
Iowa Rule of Criminal Procedure 2.11(4) provides that “[m]otions in limine
shall be filed when grounds therefor reasonably appear but no later than nine
days before the trial date.” There is no provision requiring a time or manner in
which the State must reply to the motion.
Iowa Rule of Criminal Procedure
2.35(2) provides: “If no procedure is specifically prescribed by these rules or by
statute, the court may proceed in any lawful manner not inconsistent therewith.”
While a written resistance prior to the date of the hearing may provide the moving
party an opportunity to better formulate a reply argument, it is not required by the
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rules. Therefore, we find no error in the district court proceeding to hear the
merits as well as the resistance to the motion.
The State asserts Kaufman has not preserved error on the district court‟s
denial of his motion in limine as he failed to also lodge an objection during the
trial. See State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (“Ordinarily, error
claimed in a court‟s ruling on a motion in limine is waived unless a timely
objection is made when the evidence is offered at trial.”). We disagree.
In
determining whether a motion in limine preserves error, we must examine what
the district court‟s ruling actually does. Id.; State v. O’Connell, 275 N.W.2d 197,
275 (Iowa 1979). “A ruling only granting or denying protection from prejudicial
references to challenged evidence cannot preserve the inadmissibility issue for
appellate review.”
O’Connell, 275 N.W.2d at 275.
However, “if the ruling
reaches the ultimate issue and declares the evidence admissible or inadmissible,
it is ordinarily a final ruling and need not be questioned again during trial.” Id.
In the present case, it was very clear during the hearing on the motion in
limine as to what the court would allow and what must be excluded in reference
to the PBT. Both counsel described what the jury would see and hear on the
video tape and what would be muted so the jury would not hear certain
comments by the deputy. The district court‟s ruling reached the “ultimate issue,”
declaring the video tape admissible with certain audio muted. Id. Therefore,
Kaufman was not required to make any further objections during trial, as the
issue had been decided in advance of trial.
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Next, Kaufman asserts the video should have been redacted, so the jury
would not see Kaufman taking the breath test. He claimed this should have been
done in order to avoid prejudice to Kaufman, as immediately after taking the test,
Kaufman fled the scene. Kaufman feared the jury would infer that he had failed
the breath test, anticipated being arrested, and therefore took off running. The
State, seeking to have the video made part of the record, offered to have the
volume muted, so that the jury could see what transpired, but there would be no
audio of any conversation between Kaufman and the deputy as it pertained to the
PBT. Kaufman and the State agree that because the administration of the PBT,
the brief dialog, and Kaufman‟s flight happened so quickly that it was impossible
to sever or redact the events, but it was possible simply to mute the volume. The
district court concluded:
I would agree that I think the general rule is that the PBT is sort of
the third rail of an OWI trial; you just don‟t put those in; you just
don‟t talk about them. And I think, generally, that‟s appropriate
because the State has all the other evidence of intoxication.
But in this case, his running I think is a critical issue for the
jury to hear about. And, you know, the reason behind his fleeing
the scene, I think, is critical.
So, I‟m going to go ahead and indicate that the State is not
allowed to talk about the results of the PBT, but the evidence about
the offering of the PBT and the Defendant‟s running, I think, is
admissible.
The court then instructed the State to mute that part of the tape when the PBT
test was being administered, the subsequent comments by the deputy and the
actions of Kaufman.
Iowa Code section 321J.5 restricts the use of a PBT.
The results of this preliminary screening test may be used for the
purpose of deciding whether an arrest should be made or whether
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to request a chemical test authorized in this chapter, but shall not
be used in any court action except to prove that a chemical test
was properly requested of a person pursuant to this chapter.
Iowa Code § 321J.5(2). While the jury may have inferred from Kaufman‟s flight
that he failed the PBT, they may have also linked his flight to his earlier comment
to Chief Aiello that he should have taken off running when he first saw the Chief.
Furthermore, the district court instructed the jury: “The results of a preliminary
breath test, also known as a PBT, are not admissible in evidence as the results
are not reliable as a matter of law.”
The State argues, and we agree, there was no violation of the ruling on
the motion in limine nor was the ruling itself in error.
Merely showing that
Kaufman was given a PBT does not violate the statute. Gavlock v. Coleman,
493 N.W.2d 94, 96-97 (Iowa Ct. App. 1992). As our supreme court has stated:
In enacting this section the legislature‟s underlying purpose was to
provide peace officers with the tool of a quick, convenient test to
assist officers in determining whether an arrest should be made.
The problem with this quick, convenient test is unreliability. To
guard against this problem, the legislature chose to make the
“results” inadmissible in evidence.
State v Denshaw, 404 N.W.2d 156, 158 (Iowa 1987).
There was no “result” of the PBT mentioned or offered by the State. The
only evidence was playing the muted video tape, showing the administration of
the PBT. Kaufman‟s own conduct is captured on the tape, including his fleeing
the scene after he had been administered three field sobriety tests and the PBT.
As the district court reasoned, “his running is a critical issue for the jury to hear
about. And, you know, the reason behind his fleeing the scene, I think, is critical.”
See State v Barr, 259 N.W.2d 841, 842 (Iowa 1977) (“We continue in the view a
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jury might believe a person fleeing to avoid and retard the prosecution might be
more apt to be guilty than one who does not.”). We conclude the district did not
err in admitting the objected to portions of the videotape.
Finally, Kaufman claims the district court erred in entering judgment and
sentencing him on a misdemeanor charge of interference with official acts
pursuant to Iowa Code section 719.1. The State asserts that we do not have
jurisdiction to decide the issue. Under Iowa Code section 814.6(1), Kaufman
does not have a right of appeal of a simple misdemeanor and he has not sought
discretionary review.
See Iowa Code § 814.6(2) (providing for discretionary
review from simple misdemeanor convictions). His proper course of appeal is
utilizing Iowa Rule of Criminal Procedure 2.73. We have no jurisdiction, nor even
a record of the simple misdemeanor case, to entertain his appeal.
AFFIRMED.
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