State v. Malloy ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0171
Filed December 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KELLY BRYAN MALLOY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
A defendant challenges his convictions for operating while under the
influence of methamphetamine and eluding. AFFIRMED.
Priscilla E. Forsyth, Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.
Kelly Malloy drew the attention of Woodbury County Sheriff’s deputies when
he made an illegal U-turn on his “crotch rocket style” motorcycle in the early
morning hours. As a result of a forty-minute, high-speed chase, the State charged
Malloy with eluding and operating while intoxicated—second offense. A jury
convicted him on both counts. On appeal Malloy claims the State offered
insufficient evidence to show he was under the influence of methamphetamine.
Malloy also argues he received ineffective assistance when his trial attorney did
not object to an inexperienced officer’s testimony regarding the horizontal gaze
nystagmus (HGN) test. Because ample evidence supports the jury’s verdicts and
no prejudice resulted from counsel’s inaction, we affirm.
I. Facts and Prior Proceedings
When Deputies Sage Lewis and Troy Tadlock saw Malloy make the illegal
maneuver, they turned on the flashing lights and siren in their marked cruiser. But
Malloy did not stop; instead he sped away from the deputies. Malloy led them on
a lengthy chase, at times reaching ninety miles per hour in twenty-five-mile-per-
hour speed zones. During the chase, the deputies noticed Malloy wobbled on the
motorcycle; they suspected he might have a flat tire. Malloy also veered into the
opposite lane of traffic a number of times.
Malloy pulled over when officers blocked off a portion of the highway. As
Malloy dismounted the motorcycle, he lost his balance and fell down a steep
ravine. While at the scene, officers examined Malloy’s motorcycle and determined
neither tire was flat. Malloy required emergency medical attention; he complained
about pain in his knee and shoulder to emergency personnel and deputies at the
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scene. When a paramedic removed Malloy’s boot to examine his left leg, a drug-
encrusted spoon fell out. While loading him into the ambulance, a paramedic
noticed Malloy’s eyes were red, and en route to the hospital, Malloy kept falling
asleep.
Once at the hospital, the paramedic turned the spoon over to police. An
officer used a field test kit to confirm the spoon was covered in methamphetamine
residue. Deputy Michael Lenz performed an HGN test on Malloy and reported that
all six signs indicated intoxication. Lenz also requested blood and urine samples
from Malloy, but Malloy refused.
The State charged Malloy with first-degree eluding, driving while barred,
operating while intoxicated—second offense, and third-degree theft. After the
motorcycle owner clarified Malloy had permission to take the motorcycle, the State
dismissed the theft charge. Malloy also pleaded guilty to driving while barred and
stipulated he had a prior conviction for operating while intoxicated. The charges
for eluding and operating while intoxicated proceeded to trial.
The jury convicted Malloy of first-degree eluding,1 in violation of Iowa Code
section 321.279(3) (2016), and operating while intoxicated,2 in violation of section
321J.2. Malloy challenges both convictions on appeal.
1
The State was required to prove the following elements: (1) On or about the 27th day of
October, 2016, the defendant was driving a motor vehicle; (2) The defendant willfully failed
to bring the motor vehicle to a stop or otherwise eluded or attempted to elude a marked
official law enforcement vehicle driven by a uniformed peace officer after being given a
visual and audible signal to stop (3) In doing so, the defendant exceeded the speed limit
by twenty-five miles per hour or more (4) A the time the defendant was operating the motor
vehicle the defendant (a) was under the influence of a controlled substance or (b) was
knowingly in possession of a controlled substance.
2
The State was required to prove the following elements: (1) On or about October 27,
2016, the defendant operated a motor vehicle, and (2) At that time, the defendant was
under the influence of a controlled substance.
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II. Scope and Standards of Review
We review Malloy’s challenge to the sufficiency of the evidence for errors at
law. See State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). We will uphold the
jury’s verdicts if they are supported by substantial evidence. State v. Rooney, 862
N.W.2d 367, 371 (Iowa 2015). We view the evidence in the light most favorable
to the State and will deem it “substantial” if it could convince a rational jury the
defendant was guilty beyond a reasonable doubt. Id.We review Malloy’s ineffective-assistance-of-counsel claim de novo. See
State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We often preserve such claims
for postconviction-relief proceedings where the applicant may develop supporting
facts. See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). But we may
resolve the claims on direct appeal if the record is adequate. Id.III. Analysis
A. Sufficiency of the Evidence
Malloy only challenges the proof he was under the influence of
methamphetamine during the high-speed chase across Woodbury County. He
provides pinpointed explanations for his headlong flight, his possession of the
drug-encrusted spoon, and his bloodshot eyes. But we review the evidence in
aggregate, not in isolation. After reviewing the record as a whole, we find sufficient
support for the jury’s conclusion that the State proved this element of both crimes
beyond a reasonable doubt.
Reasonable jurors could have based their determination of guilt based on
reports Malloy crossed the center line several times, drove at dangerous speeds,
was unsteady on the motorcycle, and even hopped a center island. Malloy
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counters that any traffic violations resulted from his evasive actions, not the
influence of methamphetamine. He argues on appeal his flight can be explained
because his license was barred and some people “just think it would be fun to try
to out run the police.” But we may infer impairment from a driver’s flight. See State
v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004); see also State v. Dominguez, 482
N.W.2d 390, 392 (Iowa 1992) (considering evidence of defendant’s erratic driving
as proof he was under the influence).
The jury was also entitled to consider Malloy’s possession of drug
paraphernalia at the time of the stop. Malloy tries to explain away the spoon by
asserting “he was perhaps going to use it in the future . . . in case he ran into
someone who had methamphetamine.” But his explanation does not account for
the methamphetamine residue already on the spoon. Finally, the jury was free to
consider Malloy’s refusal to provide a sample of blood or urine for chemical testing
after Deputy Lenz invoked implied consent. See State v. Massick, 511 N.W.2d
384, 387 (Iowa 1994) (approving instruction that allowed jury to consider
defendant’s refusal of chemical testing in reaching its verdict).
Because the State offered substantial evidence Malloy was under the
influence of methamphetamine when he eluded law enforcement, we decline to
disturb the jury’s verdicts.
B. Ineffective Assistance of Counsel
Next Malloy argues he received ineffective assistance of counsel when his
attorney did not object to Deputy Lenz’s testimony regarding the HGN test because
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Lenz is not a certified drug-recognition expert.3 To succeed, Malloy must show by
a preponderance of the evidence that (1) his counsel failed to perform an essential
duty and (2) prejudice resulted. See Thorndike, 860 N.W.2d at 320. If Malloy is
unable to show either element, then his claim fails. See id.
At trial, Deputy Lenz testified the HGN assessment was “one of the most
accurate tests we have” for intoxication. On cross-examination, defense counsel
questioned Lenz’s understanding of the HGN test, asked if Lenz collected relevant
background information, noted Lenz was not a certified drug recognition expert,
challenged Lenz’s understanding of drug recognition evaluations, and confirmed
the HGN test is used to indicate use of alcohol and other depressants, but that
methamphetamine is not a depressant. Counsel’s strategy adequately deflated
the probative value of the HGN testimony as to methamphetamine use. See State
v. Halstead, 362 N.W.2d 504, 508 (Iowa 1985) (“Defendant is not entitled
to perfect representation, but only to that which is within the range of normal
competency.”).
But even assuming counsel failed to perform an essential duty by not
objecting to Lenz’s testimony in full, we find no resulting prejudice. Prejudice
requires Malloy show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.”
See Thorndike, 860 N.W.2d at 320 (quoting Strickland v. Washington, 466 U.S.
668, 694 (1984)). As outlined above, there was ample evidence supporting
Malloy’s convictions for both crimes absent Lenz’s testimony. Had counsel
3
In his brief, Malloy inadvertently refers to Deputy Tadlock instead of Deputy Lenz.
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objected and Lenz not testified about the HGN test, a different outcome would be
improbable given the other evidence presented to the jury.
Because Malloy is unable to show prejudice resulting from the claimed
breach in performance, his claim fails. See id.AFFIRMED.