IN THE COURT OF APPEALS OF IOWA
No. 16-0809 Filed June 7, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
CLARSELL ANTHONY TODD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joseph M.
Moothart, District Associate Judge.
The defendant appeals from his conviction for operating while intoxicated.
AFFIRMED.
Kimberly A. Voss-Orr, Ames, for appellant.
Thomas J. Miller, Attorney General, and Elisabeth Reynoldson, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
POTTERFIELD, Presiding Judge.
Clarsell Todd appeals from his conviction for operating while intoxicated
(OWI), first offense. Todd maintains there is insufficient evidence to support the
conviction, claiming the State did not present substantial evidence he was under
the influence.
I. Background Facts and Proceedings.
Officer Justin Brandt testified the local dispatch received two calls from
concerned citizens about the defendant and his vehicle. The first call was
received at approximately 11:00 p.m., and the caller indicated there was a
vehicle stopped on the street outside of his apartment building that was running
and had been sitting there “over an hour.” The second call took place at
approximately 11:20 p.m., and the second caller reported a parked silver SUV
outside of the same apartment building. The caller expressed concern about the
driver, reporting, “It looks like someone is in there and they’re not moving.”
Officer Brandt arrived at the scene at approximately 11:35 p.m. When he
arrived, he noticed the vehicle was stopped three to four feet from the curb, in
front of the entrance of a driveway, and directly beside a “no parking” sign. He
then approached the vehicle and looked inside, finding Todd with his chin resting
on his chest and apparently sleeping. Todd did not respond when the officer
shined his flashlight in the window and appeared to awake only after Officer
Brandt knocked on the window. Todd rolled down the vehicle’s window, and
Officer Brandt saw Todd’s eyes were bloodshot and watery. Additionally, Todd
was slurring his speech and was “very thick tongued.” When asked how long he
had been stopped there, Todd told the officer “not too long” and later that he was 3
“just looking at a book.” At another point, he indicated to the officer that he was
sitting there waiting for someone to arrive.
The officer asked Todd to step out of the vehicle; as Officer Brandt patted
him down to check for weapons, he noticed the odor of alcohol emanating from
Todd’s person. When asked, Todd reported he had not consumed any alcohol.
Officer Brandt then conducted the horizontal gaze nystagmus (HGN) test. Of six
possible clues, Todd’s performance during the test provided two clues. At trial,
both Officer Brandt and Officer Ryan Muhlenbruch—the second responding
officer—testified that of the three standardized field sobriety tests, HGN is the
most reliable and most objective. Further, it takes four clues to “fail” the test.
Officer Muhlenbruch agreed that having only two clues “means you’re probably
under .08.” After the HGN, Officer Brandt tried to administer the second field
sobriety test, the walk-and-turn test. Officer Brandt attempted several times to
get Todd in the correct starting position, standing with one foot directly in front of
the other, but Todd was unable to maintain his balance in that position. Officer
Brandt then asked Todd how long it had been since he last consumed alcohol,
and Todd responded, “It’s not that, it’s my balance, my legs.” Because of Todd’s
inability to maintain his balance during the walk-and-turn test, Officer Brandt did
not administer the one-leg-stand test.
Officer Brandt then asked Todd to complete the preliminary breath test
(PBT). Todd indicated he would not, claiming he had been sick and was taking
medicine for his illness. The officers told Todd they believed he was intoxicated
and that he could take the PBT to prove them wrong; Officer Brandt indicated he
would drive Todd home if he took the PBT and “blew zeroes.” Todd once again 4
refused. Officer Brandt then placed Todd under arrest and placed him in the
back of his squad car.
The jury was allowed to see the video of the encounter between Todd and
the officers and then of Todd as he sat in the squad car while being transported
to the local jail. During the short ride, Todd appears to fall asleep in the back
seat.
Once at the station, Officer Brandt asked Todd to complete the breath test
using the DataMaster. Todd was read the implied consent, which included the
advisement that if he refused to submit to testing, he would lose his driving
privileges for one year, as opposed to losing them for six months if he took the
test and was found to have a blood-alcohol content of .08 or greater. Todd
refused to submit to testing.
The jury found Todd guilty of operating while intoxicated. He was
sentenced to 365 days of incarceration with all but fifteen suspended.
Todd appeals.
II. Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). In
determining whether the district court erred, “[w]e consider all record evidence[,]
not just the evidence supporting guilt.” State v. Wiliams, 695 N.W.2d 23, 27
(Iowa 2005). However, we view the “evidence in the light most favorable to the
State, including legitimate inferences and presumptions that may fairly and
reasonably be deduced from the record evidence.” Id. (citation omitted). 5
III. Discussion.
Here, Todd maintains the State failed to provide sufficient evidence he
was under the influence. In doing so, he urges us to find his explanation for his
“symptoms” and reason for being found asleep in his car as more credible than
that of the officers. Additionally, he relies on the fact that he “passed” the HGN,
the most reliable of the standardized field sobriety tests.
First, we note that the while his performance on the HGN may tend to
indicate that his blood-alcohol content was below .08, the State did not need to
prove Todd’s blood-alcohol content in order for the jury to properly convict him of
operating while intoxicated. Rather, the State had to prove Todd was operating
the vehicle while “under the influence.”
The jury was instructed a person is “under the influence” when, by drinking
liquor and/or beer, one or more of the following is true:
1. His reason or mental ability has been affected. 2. His judgment is impaired. . . . .[1] 4. He has, to any extent, lost control of bodily actions or motions.
While Todd maintained he had not consumed any alcohol on the night in
question, both officers testified they could smell the odor of alcohol emanating
from his person when they were near him. Additionally, Todd attempted to
explain why he was stopped on the road for an extended period of time multiple
ways, saying both that he had been reading a book and that he was waiting for
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IN THE COURT OF APPEALS OF IOWA
No. 16-0809 Filed June 7, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
CLARSELL ANTHONY TODD, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joseph M.
Moothart, District Associate Judge.
The defendant appeals from his conviction for operating while intoxicated.
AFFIRMED.
Kimberly A. Voss-Orr, Ames, for appellant.
Thomas J. Miller, Attorney General, and Elisabeth Reynoldson, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
POTTERFIELD, Presiding Judge.
Clarsell Todd appeals from his conviction for operating while intoxicated
(OWI), first offense. Todd maintains there is insufficient evidence to support the
conviction, claiming the State did not present substantial evidence he was under
the influence.
I. Background Facts and Proceedings.
Officer Justin Brandt testified the local dispatch received two calls from
concerned citizens about the defendant and his vehicle. The first call was
received at approximately 11:00 p.m., and the caller indicated there was a
vehicle stopped on the street outside of his apartment building that was running
and had been sitting there “over an hour.” The second call took place at
approximately 11:20 p.m., and the second caller reported a parked silver SUV
outside of the same apartment building. The caller expressed concern about the
driver, reporting, “It looks like someone is in there and they’re not moving.”
Officer Brandt arrived at the scene at approximately 11:35 p.m. When he
arrived, he noticed the vehicle was stopped three to four feet from the curb, in
front of the entrance of a driveway, and directly beside a “no parking” sign. He
then approached the vehicle and looked inside, finding Todd with his chin resting
on his chest and apparently sleeping. Todd did not respond when the officer
shined his flashlight in the window and appeared to awake only after Officer
Brandt knocked on the window. Todd rolled down the vehicle’s window, and
Officer Brandt saw Todd’s eyes were bloodshot and watery. Additionally, Todd
was slurring his speech and was “very thick tongued.” When asked how long he
had been stopped there, Todd told the officer “not too long” and later that he was 3
“just looking at a book.” At another point, he indicated to the officer that he was
sitting there waiting for someone to arrive.
The officer asked Todd to step out of the vehicle; as Officer Brandt patted
him down to check for weapons, he noticed the odor of alcohol emanating from
Todd’s person. When asked, Todd reported he had not consumed any alcohol.
Officer Brandt then conducted the horizontal gaze nystagmus (HGN) test. Of six
possible clues, Todd’s performance during the test provided two clues. At trial,
both Officer Brandt and Officer Ryan Muhlenbruch—the second responding
officer—testified that of the three standardized field sobriety tests, HGN is the
most reliable and most objective. Further, it takes four clues to “fail” the test.
Officer Muhlenbruch agreed that having only two clues “means you’re probably
under .08.” After the HGN, Officer Brandt tried to administer the second field
sobriety test, the walk-and-turn test. Officer Brandt attempted several times to
get Todd in the correct starting position, standing with one foot directly in front of
the other, but Todd was unable to maintain his balance in that position. Officer
Brandt then asked Todd how long it had been since he last consumed alcohol,
and Todd responded, “It’s not that, it’s my balance, my legs.” Because of Todd’s
inability to maintain his balance during the walk-and-turn test, Officer Brandt did
not administer the one-leg-stand test.
Officer Brandt then asked Todd to complete the preliminary breath test
(PBT). Todd indicated he would not, claiming he had been sick and was taking
medicine for his illness. The officers told Todd they believed he was intoxicated
and that he could take the PBT to prove them wrong; Officer Brandt indicated he
would drive Todd home if he took the PBT and “blew zeroes.” Todd once again 4
refused. Officer Brandt then placed Todd under arrest and placed him in the
back of his squad car.
The jury was allowed to see the video of the encounter between Todd and
the officers and then of Todd as he sat in the squad car while being transported
to the local jail. During the short ride, Todd appears to fall asleep in the back
seat.
Once at the station, Officer Brandt asked Todd to complete the breath test
using the DataMaster. Todd was read the implied consent, which included the
advisement that if he refused to submit to testing, he would lose his driving
privileges for one year, as opposed to losing them for six months if he took the
test and was found to have a blood-alcohol content of .08 or greater. Todd
refused to submit to testing.
The jury found Todd guilty of operating while intoxicated. He was
sentenced to 365 days of incarceration with all but fifteen suspended.
Todd appeals.
II. Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). In
determining whether the district court erred, “[w]e consider all record evidence[,]
not just the evidence supporting guilt.” State v. Wiliams, 695 N.W.2d 23, 27
(Iowa 2005). However, we view the “evidence in the light most favorable to the
State, including legitimate inferences and presumptions that may fairly and
reasonably be deduced from the record evidence.” Id. (citation omitted). 5
III. Discussion.
Here, Todd maintains the State failed to provide sufficient evidence he
was under the influence. In doing so, he urges us to find his explanation for his
“symptoms” and reason for being found asleep in his car as more credible than
that of the officers. Additionally, he relies on the fact that he “passed” the HGN,
the most reliable of the standardized field sobriety tests.
First, we note that the while his performance on the HGN may tend to
indicate that his blood-alcohol content was below .08, the State did not need to
prove Todd’s blood-alcohol content in order for the jury to properly convict him of
operating while intoxicated. Rather, the State had to prove Todd was operating
the vehicle while “under the influence.”
The jury was instructed a person is “under the influence” when, by drinking
liquor and/or beer, one or more of the following is true:
1. His reason or mental ability has been affected. 2. His judgment is impaired. . . . .[1] 4. He has, to any extent, lost control of bodily actions or motions.
While Todd maintained he had not consumed any alcohol on the night in
question, both officers testified they could smell the odor of alcohol emanating
from his person when they were near him. Additionally, Todd attempted to
explain why he was stopped on the road for an extended period of time multiple
ways, saying both that he had been reading a book and that he was waiting for
1 In in its closing argument, the State conceded “that the [S]tate has not proved the defendant’s emotions were visibly excited”—the third prong. 6
someone, but the officers did not locate a book in Todd’s vehicle and no one
approached the scene attempting to meet Todd during his encounter with the
officers. Moreover, according to the timing of the first call, by the time Officer
Brandt left the scene with Todd, Todd and his vehicle had been there for over
two hours. Todd failed the walk-and-turn test, his speech was slurred, and
according to the officers, his eyes were bloodshot and watery. When Todd was
advised that the officers believed he was intoxicated but he could take the PBT
and prove them wrong, Todd refused, claiming he had taken some over-the-
counter medicine for a stomach issue he was having. Todd also refused to
submit to testing on the DataMaster; the jury could consider his refusal to submit
and the possible reasons for why he would refuse in reaching its verdict. See
State v. Massick, 511 N.W.2d 384, 387 (Iowa 1994).
Viewing the evidence in the light most favorable to the State, the jury
could conclude Todd had consumed alcohol on the night in question. Although
Todd denied having consumed any alcohol in the video watched by the jury, the
jury could find his statements less credible than that of the officers. See State v.
Laffey, 600 N.W.2d 57, 60 (Iowa 1999) (stating witness credibility is for the jury to
decide). This is especially true in light of other statements made by Todd to the
officers that were called into question, such as that he had not been stopped long
and that he had been reading a book. If the jury believed Todd meant to park
where his vehicle was stopped—in the road, blocking a driveway, in front of a no-
parking sign—it could find Todd’s reason or mental ability had been affected or
his judgment had been impaired. If the jury did not believe Todd purposely
stopped his vehicle in that location, it could find he had lost control of his bodily 7
actions—passing out in a running vehicle on the street for more than an hour
before an officer woke him up. Either way, there is sufficient evidence to support
Todd’s conviction for OWI, and we affirm.