State of Iowa v. Dmitriy Aexandrovi Zenchenko

• Court: Court of Appeals of Iowa
• Decided: July 13, 2023
• Docket: 22-1637
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1637 Filed July 13, 2023

STATE OF IOWA, Plaintiff-Appellee,

vs.

DMITRIY ALEXANDROVI ZENCHENKO, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County,

Scott D. Strait, District Associate Judge.

Dmitriy Zenchenko challenges the sufficiency of the evidence supporting

his conviction for operating while intoxicated. AFFIRMED.

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Schumacher and Ahlers, JJ. 2

AHLERS, Judge.

A jury found Dmitriy Zenchenko guilty of operating a motor vehicle while

intoxicated in violation of Iowa Code section 321J.2(1)(a) (2021). Zenchenko

appeals, challenging the sufficiency of the evidence supporting the guilty verdict.

A jury instruction required the State to prove two elements to establish the

offense: (1) on or about the 9th day of August 2021, Zenchenko operated a motor

vehicle; and (2) at that time, Zenchenko was under the influence of alcohol, drugs,

or a combination of alcohol and drugs. As Zenchenko raised no objection to this

marshaling instruction, it is the law of the case for purposes of reviewing the

sufficiency of the evidence. See State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022)

(“Where, as here, the defendant does not object to the marshaling instructions, the

marshaling instructions are the law of the case for purposes of reviewing the

sufficiency of the evidence.”).

Zenchenko challenges the sufficiency of the evidence as to the first

element—that he was operating the vehicle. As an alternative argument,

Zenchenko asserts that, even if the State proved that he operated the vehicle, it

failed to prove that he was under the influence at the time of the operation as

opposed to later when witnesses came into contact with him.

We review challenges to the sufficiency of the evidence for errors at law.

Id. at 516. We are highly deferential to the jury’s verdict and are bound by that

verdict if it is supported by substantial evidence. Id. “Substantial evidence is

evidence sufficient to convince a rational trier of fact the defendant is guilty beyond

a reasonable doubt.” Id. at 516–17. “In determining whether the jury’s verdict is

supported by substantial evidence, we view the evidence in the light most 3

favorable to the State, including all ‘legitimate inferences and presumptions that

may fairly and reasonably be deduced from the record evidence.’” Id. at 517

(quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).

The record reveals that, in the early morning hours of August 9, 2021, a 911

caller reported watching a semi-truck be driven into the ditch of interstate 80.

Approximately twelve minutes later, a Pottawattamie County deputy sheriff

responding to the 911 call arrived at the scene. The deputy found a semi-truck

and attached trailer in the ditch and no one in the driver’s seat of the truck. The

deputy felt the engine bay of the truck and “it was still very warm.” The deputy

knocked on the truck window and noticed movement of the curtains separating the

driver area and the sleeper area of the truck cab. A man, later identified as

Zenchenko, came out of the sleeper portion of the truck cab, attempted to unlock

the driver’s side door of the truck, failed, and returned to the sleeper area. A short

time later, an ambulance and rescue team arrived on the scene and were able to

get Zenchenko to unlock and open the passenger door of the truck. Zenchenko

was the only person in the locked truck. During the deputy’s interactions with

Zenchenko, the deputy began to suspect that Zenchenko was under the influence

of alcohol. The deputy observed several signs of impairment during his

interactions with Zenchenko. Zenchenko eventually admitted being drunk several

times and stated that he had been drinking three hours before the accident.

Zenchenko refused field sobriety tests. The deputy arrested Zenchenko. After

being placed in the back of the deputy’s patrol vehicle, Zenchenko attempted to

open the door, pull his handcuffs apart, and bite them. A different deputy found an

empty bottle of liquor and the keys to the truck in the sleeper portion of the truck. 4

We find this evidence sufficient to convince a reasonable trier of fact that

Zenchenko operated the truck and that he was under the influence of alcohol at

the time he operated it. A reasonable fact finder could conclude that Zenchenko,

as the sole occupant found inside the locked truck with access to the keys twelve

minutes after the truck was driven into the ditch, is the person who drove the truck

into the ditch. And, the signs of intoxication witnessed by the deputy coupled with

Zenchenko’s repeated admissions that he was drunk and admission that he had

been drinking three hours before the accident are sufficient to enable a reasonable

fact finder to conclude that Zenchenko was in his intoxicated condition at the time

he was operating the truck and drove it into the ditch.

Zenchenko relies heavily on State v. Creighton to argue there is insufficient

evidence that he was intoxicated at the time he operated the truck. 201 N.W.2d

471, 473 (Iowa 1972). While Creighton bears a few similarities to this case, it is

easily distinguishable. The primary similarity is that Zenchenko, like the defendant

in Creighton, was involved in a single-vehicle accident consisting of driving a

vehicle into a ditch along a highway. See id. From there, the similarities largely

end. In Creighton, the supreme court found that there was sufficient evidence to

permit a jury to find that Creighton was the driver of the vehicle because he was

found “wandering about in the center of the highway” when a law enforcement

officer arrived at the accident scene and he made admissions of being the driver.

Id. at 472. While finding there was a factual dispute whether Creighton was

intoxicated, the supreme court found insufficient evidence to permit a fact finder to

conclude that Creighton was intoxicated at the time he was operating the vehicle.

Id. at 473. However, in concluding that the record was “completely silent on [the] 5

vital point” of establishing intoxication at the time of operation, the supreme court

noted: “There were no witnesses. We have no way of knowing when it occurred;

how much later the highway patrolman arrived (he refused to say); or what

transpired between the time of the accident and the time of arrest. This hardly

meets the State’s burden of proof.” Id. Zenchenko’s case differs significantly from

the Creighton narrative. Unlike in Creighton, a witness observed the truck be

driven into the ditch and reported it immediately, establishing when the accident

occurred. Also unlike in Creighton, we know how much later a law enforcement

officer arrived on the scene—twelve minutes. We also have evidence of what

transpired between the time of the accident and the time of arrest. Zenchenko was

alone in the locked truck with the keys to the truck in the sleeper area of the cab

where he was found, providing circumstantial evidence that Zenchenko did not

leave the truck after driving it into the ditch. Further, as to what transpired between

the accident and contact with law enforcement, Zenchenko admitted that he was

drunk and that his drinking took place three hours earlier—effectively foreclosing

any suggestion that Zenchenko became intoxicated by drinking during the twelve-

minute window between the accident and arrival of law enforcement.

Finding Creighton distinguishable on its facts, we conclude it does not

compel a finding of insufficient evidence. To the contrary, we conclude there is

sufficient evidence permitting a reasonable fact finder to conclude that Zenchenko

was the operator of the truck and that he was under the influence of alcohol at the

time of the operation. Therefore, we affirm his conviction for the offense charged.

AFFIRMED.