State of Iowa v. Terry Joe Rowe

• Court: Court of Appeals of Iowa
• Decided: October 14, 2015
• Docket: 14-1354
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 14-1354 Filed October 14, 2015

STATE OF IOWA, Plaintiff-Appellee,

vs.

TERRY JOE ROWE, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Odell G. McGhee,

District Associate Judge.

Terry Rowe appeals his conviction of operating while intoxicated, third or

subsequent offense. AFFIRMED.

Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, John P. Sarcone, County Attorney, and Maurice Curry, Assistant

County Attorney, for appellee.

Considered by Danilson, C.J., Tabor, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2

MAHAN, Senior Judge.

Terry Rowe appeals his conviction of operating while intoxicated (OWI),

third or subsequent offense, as an habitual offender. Rowe was arrested in

December 2013 after he was discovered sleeping in his running vehicle while

stopped at a red light and was convicted following a June 2014 jury trial. Rowe

contends he did not voluntarily stipulate to prior convictions, the court erred in its

handling of a juror, and insufficient evidence supports his conviction.

We need not address Rowe’s contention the trial court erred in accepting

his stipulations to his prior OWI and felony convictions based on the court’s

failure to ensure they were knowingly and voluntarily made. Rowe failed to move

to withdraw his affirmation of prior convictions. Because the issue was not raised

before the trial court, it cannot be raised for the first time on appeal. See State v.

Tobin, 333 N.W.2d 842, 844 (Iowa 1983) (“The general rule is that issues,

including constitutional issues, which are not raised in the trial court cannot be

raised on appeal.”); cf. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (noting

a defendant’s failure to move in arrest of judgment bars a direct appeal

challenging the knowing and voluntary nature of a guilty plea).

Likewise, Rowe has failed to preserve error on his challenge to the court’s

handling of a juror who was unable to recall evidence from the first day of trial.

Rowe argues the court failed to properly instruct him regarding his rights in the

situation—specifically, his right to ask for the juror to be dismissed from the jury

panel or move for a mistrial. However, Rowe’s trial counsel told the court, “We’re

not going to ask for a mistrial. We are not going to ask to have [the juror]

excused.” Trial counsel then indicated, “We are fine proceeding with [the juror].” 3

No objection was made regarding the trial court’s handling of the matter, and

therefore, no objection can be raised on this basis now.

Finally, Rowe contends there is insufficient evidence to support his OWI

conviction. In order to find Rowe guilty of OWI, the jury was instructed the State

had to prove Rowe was “under the influence of a drug or had any amount of

controlled substance present in his blood or urine.” We review the question of

whether substantial evidence supports Rowe’s conviction for correction of errors

at law and view the record evidence in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn. See State v.

Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Substantial evidence establishes Rowe was under the influence of a drug

when he was found sleeping in the driver’s seat of his running vehicle at a red

light. Rowe was unresponsive to verbal attempts to wake him, and after nudging

Rowe awake, Officer Greg Trimble noticed his eyes were bloodshot and watery,

his speech was slurred, and his balance was poor. Officer Michael Dixson, who

is assigned to a unit tasked specifically with OWI enforcement and is a certified

Drug Recognition Expert (DRE) and a certified DRE instructor, also observed

that Rowe’s eyes were bloodshot and watery, his speech was mumbled and

slurred, and his balance was unsteady. When field sobriety tests were

administered, Rowe did not show clues of intoxication on either the horizontal

gaze nystagmus or vertical gaze nystagmus tests but showed six of eight clues

on the walk and turn test and three out of four clues on the one-legged stand

test. After a breath test registered no alcohol in Rowe’s body, Officer Dixson

performed a DRE exam and concluded Rowe was experiencing the “downside” 4

of being under the influence of a stimulant drug. Rowe admitted he had three

“hits” of methamphetamine the night before, a urine sample obtained from Rowe

tested positive for amphetamines, and the second test to confirm the results

showed the presence of both amphetamine and methamphetamine in Rowe’s

urine. Under these facts, we conclude there is sufficient evidence to support

Rowe’s conviction for OWI, and accordingly, we affirm.

AFFIRMED.