State of Iowa v. Larry Shannon ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0717
Filed March 7, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LARRY SHANNON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Monica L. Wittig,
Judge.
A defendant appeals his conviction for operating while intoxicated.
AFFIRMED.
John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.
Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.
Larry Shannon was convicted of operating while intoxicated (OWI), second
offense, in violation of Iowa Code section 321J.2(1)(a) (2016). Shannon argues
the State presented insufficient evidence to prove he drove under the influence of
a drug.
I. Background Facts and Proceedings.
Shannon was stopped on August 1, 2016, by Deputy Sheriff Austin
Westphal. Westphal knew the vehicle to be Shannon’s and knew Shannon was
barred from driving. Westphal activated his emergency lights and observed
Shannon tapping his breaks and taking longer than usual to pull over.
Westphal approached the vehicle, shouting at Shannon to put his hands on
the steering wheel and open the door. Shannon did not comply but drank from a
Gatorade bottle and used his cell phone. Deputy Ben Ward arrived and also
encouraged Shannon to exit the vehicle. Shannon continued to drink almost the
entire bottle of Gatorade. When the officers advised Shannon they would break
the window to take him into custody if he did not exit the vehicle, Shannon exited
the vehicle.
The officers handcuffed Shannon and made several observations:
Shannon’s arms were very tense, his body temperature was elevated, and he was
clenching his fists, sweating profusely, grinding his teeth, acting restless, and
swaying. Shannon had a dry mouth and eyelid tremors, and in the police vehicle,
his feet involuntarily twitched.
The officers asked Shannon if he had anything in his pockets, and Shannon
told them he had ten thousand dollars in cash on him. The officers searched
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Shannon and found only a few hundred dollars in cash. The officers performed an
inventory search of Shannon’s vehicle and found broken shards of glass on the
driver’s seat.
Westphal transported Shannon to the Buchanan County Jail. Based on his
training and observation, Westphal believed Shannon to be substance-impaired.
Westphal asked Shannon to perform several field sobriety tests. Shannon passed
the horizontal gaze nystagmus test, which tests for alcohol-related impairments.
Shannon refused to complete the walk-and-turn test and the one-legged stand test
because he has “bad feet.” Shannon performed the modified Rhomberg test,
which tests an individual’s internal clock. Shannon was asked to close his eyes
and indicate when thirty seconds had passed. Shannon reported thirty seconds
had passed when only twenty-two seconds had passed, an indication of
impairment. Shannon passed a breath test for alcohol but refused to provide a
urine specimen.
Shannon was charged with operating while intoxicated, driving while barred,
and driving while revoked. He waived a jury trial, and the matter was tried to the
court. In November 2016, the district court found Shannon guilty on all counts and
sentenced him on the OWI conviction to a two-year prison term and time served
on the other two convictions. Shannon appeals his conviction for operating while
intoxicated.
II. Standard of Review.
“Challenges to the sufficiency of the evidence are reviewed for corrections
of errors at law.” State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002). The
court views the evidence in the light most favorable to the State, including all
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reasonable inferences that may be fairly drawn from the evidence. Id. All evidence
is considered, not just that of an inculpatory nature. Id. “[W]e will uphold a verdict
if substantial record evidence supports it.” State v. Nitcher, 720 N.W.2d 547, 556
(Iowa 2006) (citation omitted). Evidence is considered substantial if, when viewed
in the light most favorable to the State, it can convince a rational factfinder the
defendant is guilty beyond a reasonable doubt. State v. Sanford, 814 N.W.2d 611,
615 (Iowa 2012). “Evidence that only raises suspicion, speculation or conjecture
is not substantial.” State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).
III. Discussion.
Iowa Code section 321J.2 requires the State to prove Shannon operated a
motor vehicle in Iowa “while under the influence of a[] . . . drug.” Shannon contests
whether the State presented sufficient evidence he was under the influence of a
drug. “We have held that a person is under the influence when the consumption
of alcohol [or drugs] affects the person’s reasoning or mental ability, impairs a
person’s judgment, visibly excites a person’s emotions, or causes a person to lose
control of bodily actions.” State v. Gordon, No. 15-2038, 2017 WL 5185401, at *3
(Iowa Ct. App. Nov. 8, 2017) (citing State v. Truesdell, 679 N.W.2d 611, 616 (Iowa
2004)) (holding erratic driving substantial evidence of drug use); see also State v.
Vesey, No. 12-1753, 2013 WL 4504915, at *3 (Iowa Ct. App. Aug. 21, 2013)
(holding erratic driving, watery bloodshot eyes, and slurred speech substantial
evidence of drug use).
Shannon argues there is not substantial evidence to support that he
ingested drugs or that his judgment was impaired by the ingestion of drugs. Both
officers testified, without objection as to their qualifications, as to their general
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impaired driving training and their specific training on drug impairment—Impaired
Driving and Advanced Roadside Impairment (ARIDE) training. Based on that
training, Deputy Westphal testified Shannon’s conduct when pulled over displayed
impaired judgment: Shannon took an unusually long time to stop, refused the
officer’s commands, and quickly drank a bottle of Gatorade. Deputy Westphal
testified he also observed several physical signs of impairment: Shannon was
grinding his jaw and teeth, his wrists were tense, he fidgeted constantly, he
involuntarily twitched, had a high body temperature, and had a dry mouth after
drinking liquid. Finally, Deputy Westphal testified based on his training, Shannon’s
performance on the modified Rhomberg test indicated drug impairment. Shannon
argues the officers are not certified drug recognition experts. The State presented
sufficient evidence to prove Shannon was under the influence of a drug when he
was pulled over.
AFFIRMED.