State of Iowa v. Mark Roger Scholtes Sr.

CourtCourt of Appeals of Iowa
DecidedAugust 16, 2017
Docket16-1967
StatusPublished

This text of State of Iowa v. Mark Roger Scholtes Sr. (State of Iowa v. Mark Roger Scholtes Sr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Iowa v. Mark Roger Scholtes Sr., (iowactapp 2017).

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1967 Filed August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

MARK ROGER SCHOLTES SR., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Robert J.

Richter, District Associate Judge.

Mark Scholtes Sr. appeals his convictions following a jury trial in which he

was found guilty of felony eluding and leaving the scene of a personal injury

accident. AFFIRMED.

Taryn R. Purcell of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2

VAITHESWARAN, Presiding Judge.

A van took a Dubuque County Sheriff’s deputy on a chase through a

residential area and golf course, eventually launching into the air and nose diving

to the ground. The State charged Mark Scholtes Sr. with several crimes. A jury

found him guilty of (1) eluding while exceeding the speed limit by twenty-five

miles per hour or more resulting in a bodily injury as well as the lesser-included

offense of eluding while exceeding the speed limit by twenty-five miles per hour

or more and (2) leaving the scene of an accident resulting in injury. See Iowa

Code §§ 321.261(1)-(2); 321.279(2), (3)(c) (2016). The court entered judgment

on the “eluding with bodily injury” verdict in the first count and on the second

count. Scholtes appealed.

Scholtes contends (1) the jury rendered two inconsistent verdicts on the

first count, leading to a lack of clarity as to which verdict was intended and

requiring reversal of the district court’s ruling on his motion in arrest of judgment

as to the first count and (2) the State failed to present “any credible evidence”

that he was the driver of the van, requiring reversal of the district court’s ruling on

his motion for a new trial as to both counts.

I. Inconsistent Verdicts – Eluding

A. Error Preservation

The jury was instructed to “sign only one verdict for each count.” In the

same instruction, the jury was advised of the possibility of being “polled” after the

verdict was read. See Iowa R. Crim. P. 2.22(5) (stating a party may “require a

poll asking each juror if it is the juror’s verdict” and, unless “any juror expresses

disagreement . . . the verdict is complete and the jury shall be discharged”). After 3

the jury returned two verdicts on the eluding count, Scholtes’ attorney did not

conduct a poll to determine which verdict was intended. However, he raised the

inconsistent verdicts issue in his motion in arrest of judgment and motion for new

trial. The district court denied the motions.

The State contends Scholtes was obligated to poll the jury to preserve

error on his inconsistent verdicts claim. The State’s argument is facially

appealing, given rule 2.22(5)’s reference to a “complete” verdict absent juror

disagreement. See also Gavin v. Johnson, No. 08-1994, 2009 WL 4114144, at

*6 (Iowa Ct. App. Nov. 25, 2009) (noting that the plaintiff “made no request” to

have the jury “receive additional instruction and return to deliberate” before “the

jury was discharged”); Neumann v. Serv. Parts Headquarters, 572 N.W.2d 175,

176 n.1 (Iowa Ct. App. 1997) (suggesting the plaintiff should have made her

objections to inconsistent verdicts before the jury was discharged but stating,

“Defendant has not contended by agreeing to a sealed verdict plaintiff did not

preserve error and we do not address this issue”). But neither the rule’s express

language nor caselaw mandates a jury poll to preserve error on a claim of

inconsistent verdicts. To the contrary, the procedure used by Scholtes appears

to suffice as an error-preservation tool. Cf. Cowan v. Flannery, 461 N.W.2d 155,

157, 160 (Iowa 1990) (observing that “[t]he trial court should not discharge the

jury until it determines the special verdict is consistent and supported by

evidence,” but noting the claimed inconsistency was raised in motion for new trial

or conditional trial); Brooks v. State, No. 16-0710, 2017 WL 2461504, at *6 n.3

(Iowa Ct. App. June 7, 2017) (rejecting error preservation concern on challenge 4

to consistency of verdicts where parties agreed to a sealed verdict). Accordingly,

we proceed to the merits.

B. Claimed Inconsistency

Citing State v. Halstead, 791 N.W.2d 805 (Iowa 2010), Scholtes asserts

the jury rendered “inconsistent compound verdicts.” Inconsistent verdicts may

stem from a broad array of circumstances. See Halstead, 791 N.W.2d at 807. In

Halstead, the court addressed “a single defendant who is convicted of a

compound crime and acquitted of the predicate crime in a single proceeding.” Id.

at 808. In this type of case, the court concluded “the conviction cannot stand.”

Id. at 814.

We are not faced with a compound inconsistency or, indeed, any

inconsistency. Although the jury improperly found Scholtes guilty of both (1)

“[e]luding while speeding 25 mph over the speed limit and resulting in a bodily

injury” and (2) “[e]luding while speeding 25 mph over the speed limit,” the

verdicts as worded were not inconsistent; the lesser-included offense did not

mention the absence of the bodily injury element. Cf. State v. Hernandez, 538

N.W.2d 884, 888 (Iowa Ct. App. 1995) (“Having concluded that assault while

participating in a felony is a lesser included offense of the intentional infliction of

bodily injury alternative of first-degree burglary, we summarily reject the

argument by [the defendant] that the verdicts were legally inconsistent.”). In

addition, the verdict the jury intended was clear; the jury necessarily found that

the State proved bodily injury by finding Scholtes guilty of leaving the scene of a

personal injury accident resulting in injury. We affirm the district court’s denial of 5

Scholtes’ motion in arrest of judgment and new trial motion as it relates to the

claimed inconsistency of the verdicts in Count I.

II. Credible Evidence of Driving

As noted at the outset, Scholtes argues “[t]he State failed to present any

credible evidence that [he] was the driver of the vehicle,” an essential element of

the crimes in both counts. Where a claim is made that a verdict is contrary to the

weight of the evidence, “the verdict may be set aside and a new trial granted” if

“the court reaches the conclusion that the verdict is contrary to the weight of the

evidence and that a miscarriage of justice may have resulted.” State v. Serrato,

787 N.W.2d 462, 471-72 (Iowa 2010) (quoting State v. Ellis, 578 N.W.2d 655,

658-59 (Iowa 1998)). “A verdict is contrary to the weight of the evidence where

‘a greater amount of credible evidence supports one side of an issue or cause

than the other.’” State v.

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Related

Cowan v. Flannery
461 N.W.2d 155 (Supreme Court of Iowa, 1990)
State v. Hernandez
538 N.W.2d 884 (Court of Appeals of Iowa, 1995)
Neumann v. Service Parts Headquarters
572 N.W.2d 175 (Court of Appeals of Iowa, 1997)
State v. Ellis
578 N.W.2d 655 (Supreme Court of Iowa, 1998)
State v. Shanahan
712 N.W.2d 121 (Supreme Court of Iowa, 2006)
Gavin v. Johnson
778 N.W.2d 66 (Court of Appeals of Iowa, 2009)
State v. Serrato
787 N.W.2d 462 (Supreme Court of Iowa, 2010)
State Of Iowa Vs. David John Halstead
791 N.W.2d 805 (Supreme Court of Iowa, 2010)

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