STATE OF IOWA, Plaintiff-Appellee, vs. TODD MICHAEL WEBER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-538 / 08-1613
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TODD MICHAEL WEBER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt Stoebe,
District Associate Judge.
Todd Michael Weber appeals from the judgment and sentence entered
upon his conviction of operating while intoxicated, third offense, in violation of
Iowa Code section 321J.2 (2007), a class “D” felony. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, Timothy N. Schott, County Attorney, and Jennifer Bronzer, Assistant
County Attorney, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and Mansfield, JJ.
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MANSFIELD, J.
Todd Michael Weber appeals from the judgment and sentence entered
upon his conviction of operating while intoxicated, third offense, in violation of
Iowa Code section 321J.2 (2007), a class “D” felony. The subject of this appeal
is whether Weber‟s counsel rendered ineffective assistance either by failing to
challenge the applicability of section 321J.6 to snowmobiling on a frozen river or
by failing to challenge adequately the sufficiency of evidence under sections
321J.2(1)(a) or 321J.2(1)(b).
We find that counsel‟s assistance was not
ineffective and therefore affirm the decision of the district court.
I. Background Facts and Proceedings
On February 23, 2008, Conservation Officer Matthew Bruner of the Iowa
Department of Natural Resources saw Weber riding a snowmobile on the frozen
Des Moines River and approaching a low dam on the river near Fort Dodge.
Weber first turned toward Officer Bruner but then turned away sharply,
accelerated toward the dam and drove over it. The river was frozen solid except
for the area just below the dam. Weber landed on the water but was able to
“power out of it,” drive back onto the ice, and continue downstream. However,
two other snowmobiles unsuccessfully followed Weber over the dam, and sank.
Weber returned to help, and after the sinking snowmobilers were rescued,
Officer Bruner spoke further with Weber because he detected an odor of an
alcoholic beverage.
Weber admitted to drinking five or six beers while
snowmobiling that afternoon. Officer Bruner perceived his eyes to be bloodshot
and watery and his speech to be slow and slightly slurred.
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Soon after, Officer Donald McLaren of the Fort Dodge Police Department
administered three field sobriety tests to Weber. He noted that Weber smelled of
an alcoholic beverage and that his eyes were somewhat bloodshot. Weber “did
fairly well” on both the walk-and-turn and one-leg-stand tests, but his counting
pace on the latter was significantly slower than the officer‟s baseline. Weber
explained to McLaren that he was blind in his left eye. However, Weber actually
failed the horizontal gaze test by showing nystagmus (involuntary rapid shaking)
in both eyes. Officer McLaren concluded that Weber was under the influence of
alcohol, although he was responsive to questions and his speech did not seem
slurred.
Weber was taken to the Webster County Law Enforcement Center where
Officer Bruner invoked implied consent. Weber‟s chemical breath test revealed a
blood alcohol concentration of .095, exceeding the legal limit of .08. However,
the jailer who booked Weber two hours after the initial incident did not perceive
signs of intoxication and was surprised by the OWI charge.
Weber was charged with operating when intoxicated, third offense, a class
“D” felony, in violation of Iowa Code section 321J.2. He went to trial and, on
May 30, 2008, was found guilty by a jury.
On July 28, 2008, Weber was
sentenced to five years in prison and fined $3125, both pursuant to Iowa Code
section 321J.2(2)(c). His driver‟s license was revoked for six years pursuant to
section 321J.4(4).
Weber now appeals. He contends that his trial counsel was ineffective in
failing to challenge (1) the applicability of section 321J.6 to snowmobiling on ice
and (2) the sufficiency of the evidence of his intoxication under the specific
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alcohol-related prongs of the OWI statute, i.e., sections 321J.2(1)(a) and
321J.2(1)(b). 1
II. Scope and Standard of Review
Claims of ineffective assistance of counsel have their basis in the Sixth
Amendment to the United States Constitution, and we therefore conduct a de
novo review. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In assessing
alleged violations of constitutional rights, we make an independent evaluation of
the totality of the circumstances as shown by the entire record.” State v. Boley,
456 N.W.2.d 674, 677 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 684 (Iowa
1984).
III. Analysis
A. Ineffective Assistance of Counsel Standards. To establish a claim
of ineffective assistance of counsel, a defendant must prove by a preponderance
of the evidence that (1) counsel failed to perform an essential duty and
1
Iowa Code section 321J.2(1) provides:
(a) A person commits the offense of operating while intoxicated if the
person operates a motor vehicle in this state in any of the following
conditions: While under the influence of an alcoholic beverage or
other drug or a combination of such substances.
(b) While having an alcohol concentration of .08 or more.
Section 321J.6 provides:
A person who operates a motor vehicle in this state under circumstances
which give reasonable grounds to believe that the person has been
operating a motor vehicle in violation of section 321J.2 or 321J.2A is
deemed to have given consent to the withdrawal of specimens of the
person's blood, breath, or urine and to a chemical test or tests of the
specimens for the purpose of determining the alcohol concentration or
presence of a controlled substance or other drugs, subject to this section.
The withdrawal of the body substances and the test or tests shall be
administered at the written request of a peace officer having reasonable
grounds to believe that the person was operating a motor vehicle in
violation of section 321J.2 or 321J.2A, and if any of the following
conditions exist:
a. A peace officer has lawfully placed the person under arrest
for violation of section 321J.2 . . . .
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(2) prejudice resulted. Maxwell, 743 N.W. 2d at 195. A defendant‟s failure to
prove either element is fatal to the claim. State v. Polly, 657 N.W.2d 462, 465
(Iowa 2003).
Ordinarily, we preserve ineffective-assistance claims for
postconviction relief proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa
2008).
However, where, as here, we find the record adequate to address
Weber‟s ineffective-assistance-of-counsel claims, we may do so on direct appeal.
See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
Our task is to determine whether defense counsel breached an essential
duty by failing to raise these issues and, if so, whether Weber was prejudiced by
the failure. Maxwell, 743 N.W.2d at 195. We start with a presumption that
counsel acted competently.
Westeen, 591 N.W.2d at 210.
In general, trial
counsel is not incompetent for failing to pursue an issue that is without merit.
See id. at 207. Thus, our first step is to consider whether there is any merit to
the issues Weber claims his counsel should have raised. Id. If there is no merit,
then Weber‟s trial counsel was not ineffective.
B. Applicability of Iowa’s Implied Consent Law to Snowmobiling on
an Icy River. Weber‟s first claim of ineffective assistance is that his counsel
should have objected to the application of Iowa‟s implied consent statute to
procure chemical evidence of intoxication, because Weber was operating a
snowmobile on a frozen river, not a car, truck, or bus on a public highway.
Weber maintains that the policies that underlie implied consent do not apply to
snowmobiling on a river. Weber concedes, as he must, that the prohibition on
operating a motor vehicle while intoxicated under Iowa Code section 321J.2 (the
prohibition on operating a motor vehicle while intoxicated) applies to
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snowmobiles. See State v. Peters, 525 N.W. 2d 854, 857 (Iowa 1994) (holding
that a snowmobile is a motor vehicle for the purposes of section 321J.2).
However, Weber argues that the implied consent statute that enabled the State
to obtain evidence of his alcohol concentration, section 321J.6, does not apply to
off-road snowmobiling. Weber cites State v. Palmer, which observes that “the
premise underlying implied consent is that „a driver impliedly agrees to submit to
a test in return for the privilege of using the public highways.‟” State v. Palmer,
554 N.W.2d 859, 860-61 (Iowa 1996) (quoting State v. Hitchens 294 N.W.2d 686,
697 (Iowa 1980)). Weber maintains that since he was not driving on a public
highway, there was no basis for invoking implied consent against him. He further
maintains that without implied consent, there was no basis to charge him under
section 321J.2(1)(b) (alcohol concentration in excess of .08).
However, section 321J.6 is not limited to operation on public highways.
All that is required is that a person have been operating a “motor vehicle in this
state under circumstances which give reasonable grounds to believe the person
has been operating a motor vehicle in violation of section 321J.2 or
321J.2A . . . .” Weber was operating a motor vehicle, namely a snowmobile.
Weber‟s case law argument is not convincing because the term “highway” in the
cases cited is used to describe the justification for, not limit the scope of, section
321.6.
In any event, rivers and public waterways are commonly included in the
legal definition of “highways.” A highway is defined as any main route on land,
on water, or in the air. Black‟s Law Dictionary 747 (8th ed. 2007). The general
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legal use of the term includes navigable rivers. Summerhill v. Shannon, 361
S.W.2d 271, 272 (Ark. 1962).
Furthermore, the policy justification for implied consent applies just as
strongly to the public “rivers” as it does to the public “highways.” Taxpayers pay
for those rivers to be maintained, and indeed taxpayers paid for the assistance
that Officer Bruner rendered to the two companions of Weber whose
snowmobiles sank in the water.
Therefore, we conclude section 321J.6 applies to Weber‟s snowmobile
operation on the Des Moines River, and that evidence gathered under that
statute may be used to support an OWI charge under section 321J.2(1)(b). We
also conclude that Weber‟s counsel was not ineffective in failing to object to the
valid application of these statutes.2
C. Sufficiency of Evidence Under Sections 321J.2(1)(a) and (b).
Weber‟s second claim of ineffective assistance is that his counsel should have
specifically and separately challenged the sufficiency of the evidence under
either section 321J.2(1)(a) (operating a motor vehicle while under the influence of
an alcoholic beverage), or section 321J.2(1)(b) (operating while having an
alcohol concentration of .08 or more). Weber does not dispute that his counsel
filed a general motion for judgment of acquittal based on insufficiency of the
2
Additionally, Weber states that instead of being charged with a violation of Iowa Code
section 321J.2, he “should have been charged, if at all, with a violation of section
321G.13(1)(c).” However, this same argument was addressed and rejected in Peters,
525 N.W.2d at 860 (holding that the prosecutor had discretion to charge the defendant
under either section 321J.2 or section 321G.13). We find Peters controlling in the
present case.
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evidence, which the district court denied, but he believes that this motion was
inadequate.3
Since we have concluded that an implied consent challenge to the .095
results of the DataMaster breath test would have been unsuccessful, this alone is
sufficient to uphold a conviction under section 321J.2(1)(b), and counsel would
not have been ineffective for failing to object to the sufficiency of the evidence
thereunder. Moreover, there was sufficient evidence for a jury to conclude that
Weber violated section 321J.2(1)(a), and the asserted lack of specific objection
by Weber‟s attorney concerning the sufficiency of the evidence under this section
also does not amount to ineffective assistance.
Although Weber offers evidence that he was not intoxicated, the State
offers substantial evidence that he was “under the influence” according to section
321J.2(1)(a), even excluding the breath test results. The jury had the duty of
assessing the credibility of the differing accounts of the incident and weighing the
testimony of the witnesses. State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999).
Substantial evidence may exist to uphold a verdict even if substantial evidence to
the contrary also exists. State v. Frake, 450 N.W.2d 817, 818-19 (Iowa 1990).
3
Weber‟s line of reasoning appears to be that if trial counsel had objected to the validity
of the implied consent to the DataMaster breath test, there would have been no
evidence to support a conviction under section 321J.2(1)(b), and that if trial counsel had
separately objected to the sufficiency of evidence under section 321J.2(1)(a), this part of
the case would have been thrown out, leaving no case for the jury. In Iowa, if a general
verdict of guilty is returned, and only one of two theories was supported by the evidence,
reversal is required because “we have no way of determining which theory the jury
accepted.” State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004) (quoting State v. Hogrefe,
557 N.W.2d 871, 880-81 (Iowa 1996)). However, in State v. Crone, the supreme court
held that when the motion for judgment of acquittal did not make reference to the
specific elements of the crime on which the evidence was claimed to be insufficient, it
did not preserve the sufficiency of the evidence issue for review. 545 N.W.2d 267, 270
(Iowa 1996).
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The jury could rationally have concluded that Weber was intoxicated
based on his arguably impaired judgment in jumping the dam, the testimony of
officers Bruner and McClaren regarding the smell of his breath, Weber‟s failure to
pass the nystagmus field test on his good eye, and his admission to consuming
five to six beers that afternoon. Therefore, substantial evidence supports the
verdict of guilt under both alcohol-related prongs of section 321J.2. Weber‟s trial
counsel was not ineffective.
IV. Conclusion
For the reasons set forth herein, we find that Weber‟s trial counsel was not
ineffective.
Consequently, Weber‟s claim of ineffective assistance of counsel
fails, and we therefore affirm his conviction and sentence.
AFFIRMED.
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