                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0829
                                Filed August 19, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW ALLEN CURTIS DAVIS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



       Matthew Davis appeals his judgment and sentence for operating a motor

vehicle while “under the influence of an alcoholic beverage or drugs or a

combination of such substances,” third offense. REVERSED AND REMANDED.




       Shawn Smith of Shawn Smith, P.L.L.C., Ames, for appellant.

       Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, Cori Coleman, County Attorney, and Mary Conroy, Assistant County

Attorney, for appellee State.




       Considered by Vaitheswaran, P.J., Doyle, J., and Sackett, S.J.*

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


VAITHESWARAN, P.J.

       The State charged Matthew Davis with operating a motor vehicle while

“under the influence of an alcoholic beverage or drugs or a combination of such

substances,” third offense, in violation of Iowa Code section 321J.2(1)(a) (2013).

A jury found Davis guilty. On appeal, Davis concedes there is sufficient evidence

of alcohol intoxication but contends the evidence is insufficient “to support the

theory of intoxication by controlled substance.” Absent sufficient evidence under

this theory and the jury’s return of a general verdict, he argues reversal is

required because the reviewing court has no way to determine which theory the

jury accepted.1

       A reasonable juror could have found the following facts. A Fort Dodge

police sergeant was on routine patrol when he observed a vehicle stopped at a

red light with its right turn signal on. The vehicle “caught [his] attention” because

it proceeded through the intersection rather than turning right. The sergeant

followed the vehicle and noticed it had no rear license plate. He activated his

emergency lights. The driver, who turned out to be Davis, eventually pulled over

but immediately “took off running.”

       Another officer apprehended Davis. A search of the vehicle revealed an

open beer can and two unopened containers but no controlled substances or

drug paraphernalia.      A search of Davis similarly uncovered no contraband.




1
  At the close of the State’s case, Davis moved for judgment of acquittal and objected to
the inclusion of “language [in the jury instruction] regarding any drugs as an option, any
reference or charge regarding illegal or controlled substances, drugs,” arguing the
evidence was insufficient to submit this theory to the jury. The district court denied
Davis’s motion and included the challenged language in the jury instruction.
                                         3


Davis declined to speak to officers, refused to perform field sobriety tests, and

did not provide any body specimens for testing.

       Davis exhibited classic signs of alcohol intoxication—blood shot and

watery eyes, a “prominent” smell of alcohol, and an unsteady gait. According to

one of the officers, he also avoided eye contact, appeared to have dilated pupils,

fidgeted (particularly in his legs), “twitch[ed]” in his head and hands, and had a

“flushed” face.   The officer who observed these mannerisms acknowledged

certain signs could be indicative of nervousness. He also acknowledged that a

video recording of Davis at the police station did a poor job of showing the

fidgeting.   Finally, he conceded he lacked the expertise to determine “what

narcotics, aside from alcohol, do to the body and a person’s system.” Without a

drug recognition expert to identify the signs of drug intoxication and without the

discovery of drugs on Davis or in the vehicle, a reasonable juror viewing the

video recording and considering the officers’ testimony would have been required

to engage in speculation to infer he was under the influence of drugs. See State

v. Schories, 827 N.W.2d 659, 666 (Iowa 2013).              We conclude there is

insubstantial evidence to support a finding that Davis was “under the influence of

. . . drugs or a combination of such substances.” Iowa Code § 321J.2(1)(a);

State v. Hennings, 791 N.W.2d 828, 832-33 (Iowa 2010) (reviewing sufficiency-

of-the-evidence challenges for substantial evidence).

       The only remaining question relates to the disposition.         Citing Iowa

opinions, Davis argues reversal is mandated. The State counters that under

federal precedent, specifically Griffin v. United States, 502 U.S. 46, 59-60 (1992),

“due process allows general verdicts to stand if one alternative enjoys substantial
                                          4


evidence.”   In the State’s view, “Iowa precedent has misapplied the rule for

sufficiency challenges to an alternative of a general verdict.”

       Misapplied or not, Iowa opinions have repeatedly stated “if the [jury]

instructions allow the jury to consider multiple theories of culpability, only some of

which are supported by the evidence, and a general verdict of guilty is returned,

a reversal is required because ‘we have no way of determining which theory the

jury accepted.’” State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004) (citing State v.

Hogrefe, 557 N.W.2d 871, 880-81 (Iowa 1996)); see also Thorndike v. State, 860

N.W.2d 316, 321 (Iowa 2015) (citing Hogrefe for this proposition); State v.

Nitcher, 720 N.W.2d 547, 557 (Iowa 2006) (same). Based on this principle, we

reverse and remand for a new trial.

       REVERSED AND REMANDED.
