                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-2060
                            Filed December 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FRANKLIN LEE HARRIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.



      Franklin Harris appeals his conviction for driving while license denied or

revoked. AFFIRMED.



      Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

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

General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

       Franklin Harris appeals his conviction for driving while license denied or

revoked. He contends the jury’s finding of guilt is inconsistent with its aquittal on

a charge of operating while intoxicated. Because the consequence of a potentially

inconsistent jury verdict is a question of law, our review is de novo. See State v.

Merrett, 842 N.W.2d 266, 272-73 (Iowa 2014).

       I. Background Facts and Proceedings.

       A motorist observed a vehicle being driven erratically on the night of August

4, 2017. She called 9-1-1 to report the driver, who parked the vehicle partway on

the grass next to Harris’s residence. Harris was standing next to the vehicle when

a law enforcement officer arrived to investigate the call. Harris admitted that he

had consumed alcohol that night, and the officer opined that Harris was

intoxicated.

       The State charged Harris with operating while intoxicated (OWI) and driving

while license was denied or revoked. The evidence at trial showed that Harris was

drinking at the Elks Lodge on August 4, 2017. Harris got a ride home from the

bar’s manager while another patron drove Harris’s vehicle from the lodge to

Harris’s home, parked it halfway in the grass and halfway in Harris’s driveway, and

returned to the Elks Lodge in the bar manager’s vehicle.

       The court instructed the jury that in order to find Harris guilty of OWI, the

State had to prove:

               1. On or about the 4th day of August, 2017, the Defendant,
       Franklin Lee Harris, operated a motor vehicle.
               2. At that time, the Defendant, Franklin Lee Harris, was under
       the influence of alcohol.
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With regard to the charge of driving while license was denied or revoked, the court

instructed the jury that it could only find Harris guilty if the State proved:

              1. On or about the 4th day of August, 2017, the Defendant,
       Franklin Lee Harris, operated a motor vehicle.
              2. At the time, the Defendant’s license to operate a motor
       vehicle was suspended, denied, revoked, or barred.

       II. Discussion.

       Harris contends the jury’s verdicts are inconsistent because his counsel

admitted Harris was under the influence of alcohol, which is supported by the

evidence. On this basis, Harris presumes the jury aquitted him of the OWI charge

because it found he did not operate a vehicle. Because the jury found Harris guilty

of driving while license was denied or revoked—which also required a finding that

he operated a motor vehicle—he views that verdict as inconsistent with his

acquittal on the OWI charge.

       At the outset, the State argues Harris failed to preserve error on his claim

of inconsistent verdicts. “It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

Harris failed to raise his claim of inconsistent verdicts below, and therefore, error

is not preserved.

       However, even if the issue had been preserved for our review, Harris’s

argument fails. In determining whether there is an inconsistency, the question is

“whether the verdict is so logically and legally inconsistent as to be irreconcilable

within the context of the case.” State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004).

Harris has made no such showing here. Harris argues that since his counsel
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admitted Harris was intoxicated, and the evidence supported he was intoxicated,

and there was no evidence to the contrary, the jury must have acquitted Harris of

OWI because it concluded he was not driving on August 4, 2017. But, even

stipulated evidence does not eliminate the jury’s duty to make a finding beyond a

reasonable doubt on each essential element of the crime. See State v. Roe, 642

N.W.2d 252, 254 (Iowa 2002); State v. Owens, 635 N.W.2d 478, 484 (Iowa 2001).

Furthermore, a “jury is free to believe or disbelieve any testimony as it chooses

and to give weight to the evidence as in its judgment such evidence should

receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). In finding him

guilty of driving while denied or revoked, the same jury concluded Harris did

operate a vehicle on August 4, 2017. Harris asserts this is inconsisitent with the

OWI acquittal. Based on the evidence presented at trial, it is more likely that the

jury found Harris drove his car to the Elks Lodge on August 4, 2017, when his

license was denied or revoked, but did not drive his car home from the bar after

becoming intoxicated. Accordingly, there is no inconsistency in the jury’s verdicts,

and we affirm.

       AFFIRMED.
