                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0928
                               Filed July 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRETT OLIVER ROSEDALE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Grundy County, Joel A. Dalrymple,

Judge.



      Brett Rosedale appeals following judgment and sentence imposed upon

his conviction for operating while intoxicated. AFFIRMED.




      Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, and Erika Allen, County Attorney, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

       Brett Rosedale appeals following judgment and sentence imposed upon

his conviction for operating while intoxicated (OWI).        He contends there is

insufficient evidence to support the conviction. He also asserts the district court

erred in denying his motions in arrest of judgment and for new trial based on

ineffective assistance of trial counsel.      Upon review, we conclude there is

sufficient evidence to support the conviction and the district court did not err in

denying Rosedale’s motions and affirm.

I. Background Facts.

       On October 7, 2013, Rosedale was charged by trial information with

operating while intoxicated, first offense.

       A jury trial was held on December 18 and 19. At trial, Tyrell Bjelland

testified he had gone to a bar and had been drinking for several hours before he

called Rosedale for a ride and “woke him up.”          Rosedale came to get him,

coming into the bar for a few minutes. Bjelland testified that Rosedale did not

drink anything while there and did not appear intoxicated. Bjelland testified he

may have spilled a drink on Rosedale because “we roughhouse a lot.”

       Deputy Sheriff Nathan Stahl testified that at about 12:30 a.m. on

August 27, 2013, he followed a motorist who was traveling seventy-three miles

per hour in a fifty-five mile-per-hour zone. Deputy Stahl testified that after turning

on the flashing lights of his marked squad car, the vehicle did not pull over for a

mile or a mile and a quarter. Deputy Stahl stated that when he made contact

with the driver of the vehicle he noticed a “very strong smell” of alcoholic coming

from the vehicle.     The squad car dash camera video shows Deputy Stahl
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stepping back and exclaiming about the smell. The driver, Rosedale, stated his

passenger (Bjelland) was intoxicated. Deputy Stahl had Rosedale step out of the

vehicle.   He asked Rosedale several times if Rosedale had been drinking—

without any answer from Rosedale. Eventually Rosedale said he had not been

drinking, that he had driven to Eldora to pick up his intoxicated friend, and he was

giving him a ride. Deputy Stahl accompanied Rosedale back to his squad car,

where he continued to detect a “moderate” odor of alcoholic beverages.

       Deputy Stahl conducted field sobriety tests with Rosedale, who scored six

of six possible clues on the horizontal gaze nystagmus test, which Deputy Stahl

testified indicated impairment. Rosedale scored three clues on the walk-and-turn

test, which indicated impairment. And he scored two clues on the one-leg-stand

test, which indicated impairment.     Finally, Deputy Stahl asked Rosedale to

perform a preliminary breath test, but Rosedale refused.            Based on his

observations and experience, Deputy Stahl concluded Rosedale was intoxicated.

       Deputy Stahl arrested Rosedale and transported him to the county law

enforcement center.     The deputy read the implied consent advisory, gave

Rosedale the opportunity to contact an attorney or family member, and requested

a breath specimen for the Datamaster. Rosedale refused to submit to chemical

testing.

       The jury was shown the video from Deputy Stahl’s squad car, as well as

the video from the booking process. Deputy Stahl then testified. The prosecutor

asked, “[I]s there a typical drunk driver?”    Deputy Stahl began to talk about

another traffic stop he had made and during which he conducted field sobriety
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tests. Defense counsel interrupted with relevancy objections to further questions,

which were sustained.

       The jury convicted Rosedale of OWI.       Rosedale, represented by new

counsel, filed motions in arrest of judgment, for judgment of acquittal, and for

new trial, asserting there was insufficient evidence to sustain the conviction and

trial counsel was ineffective due to defense counsel’s physical health problems,

which “might be neurological.”

       A hearing was held with respect to the ineffectiveness claim.       Former

defense counsel testified he was ill on the first day of trial with a diabetic foot

infection. In addition to a low-grade fever from the infection, the attorney stated

he had “nerve problems” he described as spinal stenosis and nerve damage that

manifested as uncontrollable shaking. After trial, the attorney sought treatment

because he thought “there’s something going on,” but he had not yet received

any final diagnosis. He explained, “I just don’t think I was with it.” The court

rejected the claim, stating counsel did “a fine job” and the defendant was not

denied a fair trial.

       The court overruled Rosedale’s posttrial motions, and Rosedale appeals.

II. Scope and Standards of Review.

       We review sufficiency-of-the-evidence claims for correction of errors at

law. State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014).

       In reviewing challenges to the sufficiency of evidence supporting a
       guilty verdict, courts consider all of the record evidence viewed in
       the light most favorable to the State, including all reasonable
       inferences that may be fairly drawn from the evidence. We will
       uphold a verdict if substantial record evidence supports it.
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State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013) (citation and internal quotation

marks omitted).

       We review claims of ineffective assistance de novo because they involve

the constitutional right to counsel. Showens, 845 N.W.2d at 440.

III. Discussion.

       A. Sufficiency of the evidence. Viewing the evidence in the light most

favorable to upholding the verdict, see Romer, 832 N.W.2d at 174, we conclude

there is substantial evidence supporting the conviction. Rosedale was operating

a motor vehicle at a high rate of speed when Deputy Stahl stopped him. The

deputy opined that Rosedale smelled of alcoholic beverages and had Rosedale

perform various field sobriety tests. Deputy Stahl testified that Rosedale failed

field sobriety tests and exhibited evasive behavior. The jury had the opportunity

to view the squad car dash camera video, as we have on appeal. We conclude

the evidence was sufficient to convince a reasonable jury of Rosedale’s guilt and

the district court did not err in denying the motion for judgment of acquittal.

       B. Ineffectiveness claim. To prevail on his claim of ineffective assistance

of counsel, Rosedale must prove (1) counsel failed to perform an essential duty

and (2) prejudice resulted. See State v. Ross, 845 N.W.2d 692, 697–98 (Iowa

2014) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).            Former

counsel opined he was “not functioning the way I have before . . . mentally and

physically.” He stated, “I don’t have any specifics necessarily and I haven’t been

fully worked up [with medical testing] at this point.” The trial court found former

defense counsel performed adequately. Under the record before us, we cannot

say that Rosedale has carried his burden to show, by a preponderance of the
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evidence, that counsel’s performance included “such serious errors” that he was

“not functioning as the advocate the Sixth Amendment guarantees.” 1 See Ross,

845 N.W.2d at 698.

      AFFIRMED.




1
  Our ruling does not preclude the defendant from raising the issue of counsel’s
effectiveness in possible postconviction proceedings should counsel’s “full work up”
reveal specific impairment.
