                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1636
                             Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERRELL M. WILSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Steven J.

Andreasen, Judge.



       Jerell Wilson appeals his convictions of (1) operating a motor vehicle while

intoxicated, (2) first-degree eluding, and (3) vehicular homicide by reckless driving

or eluding, raising claims of insufficient evidence to support the third count and

failure by the district court to merge the first two counts. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       A man took a law enforcement officer on a high-speed chase, hit a dip in

the road, and crashed. His passenger died.

       The State charged Jerrell Wilson with (1) vehicular homicide by operating a

motor vehicle while intoxicated, (2) first-degree eluding, and (3) vehicular homicide

by reckless driving or eluding.      See Iowa Code §§ 707.6A(1); 321.279(3);

707.6A(2)(a); 707.6A(2)(b) (2016). On the first count, the jury found Wilson guilty

of the lesser included offense of operating a motor vehicle while intoxicated. On

the second and third counts, the jury found him guilty as charged. Wilson appealed

following imposition of sentence. He argues (1) the jury’s finding of guilt on the

third count was not supported by sufficient evidence and (2) his convictions on the

first two counts should have merged

I.    Sufficiency of the Evidence—Vehicular Homicide by Reckless Driving
or Eluding

       Wilson contends “the evidence was not sufficient to prove (1) [he] drove the

vehicle in a reckless manner as necessary for the reckless driving alternative; and

(2) that an adequate causal connection existed as required for both the reckless

driving alternative and the eluding alternative.” Because his attorney failed to

move for judgment of acquittal on these grounds, Wilson concedes the issue must

be considered under an ineffective-assistance-of-counsel rubric.

       Although ineffective assistance claims are generally addressed in

postconviction-relief proceedings, “claims of ineffective assistance for failure to

challenge sufficiency of the evidence may be raised on direct appeal.” See State

v. Halverson, 857 N.W.2d 632, 639 (Iowa 2015) (citations omitted). On our de
                                         3


novo review, we must decide whether a motion for judgment of acquittal by trial

counsel “would have been meritorious had it been made.” See State v. Harris, 891

N.W.2d 182, 186 (Iowa 2017).

      The jury was instructed the State would have to prove the following

elements of homicide by vehicle-reckless driving or eluding:

              Element 1. On or about the 11th day of November, 2016, in
      Woodbury County, Iowa, Defendant Jerell Wilson was driving a
      motor vehicle.
              Element 2. At that time and place, Defendant Jerell Wilson
      either:
              a. was driving the vehicle in a reckless manner; or
              b. was eluding or attempting to elude a law enforcement
      vehicle.
              Element 3. The act or acts of Defendant Jerell Wilson as set
      out in Elements 1 and 2 above unintentionally caused the death of
      Djuan Beverly. For the act of eluding or attempting to elude, the
      death of Mr. Beverly must have directly or indirectly resulted from the
      eluding or attempt to elude.

Wilson’s sufficiency-of-the-evidence challenge implicates the second and third

elements.

      A. Recklessness

      Recklessness was defined for the jury as follows:

             A person is “reckless” or acts “recklessly” when he willfully
      disregards the safety of persons or property. It is more than a lack of
      reasonable care which may cause unintentional injury.
      Recklessness is conduct which is consciously done with willful
      disregard of the consequences. For recklessness to exist, the act
      must be highly dangerous. In addition, the danger must be so
      obvious that the actor knows or reasonably should foresee that harm
      will more likely than not result from the act. Although the
      recklessness is willful, it is not intentional in the sense that harm is
      intended to result.

By special interrogatory, the jury found that Wilson committed vehicular homicide

by reckless driving. Substantial evidence supports the finding. Id.
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        A Woodbury County deputy sheriff noticed a vehicle with illegible paper

plates. He turned on his red and blue overhead lights in an effort to have the

vehicle pull over. The vehicle did not stop but, instead, turned onto a residential

street with a speed limit of thirty miles per hour and “[i]mmediately accelerated at

a high rate of speed.” The deputy followed with lights and sirens activated. Based

on his own speed, the deputy estimated the vehicle was traveling “approximately

75 miles per hour.” At one point, the car sped through a dip in the road. “[T]he

undercarriage of the vehicle made contact with the street,” and emitted sparks.

The driver “lost control and crashed into a retaining wall.” As noted, the passenger

died.

        The deputy’s estimate of the driver’s speed was corroborated by an expert

on crash reconstructions. The expert estimated the vehicle was traveling eighty

miles an hour “at the point [the vehicle] lost control.” According to the expert, “[i]t

did not appear there was any brake application at any point before or immediately

prior to the crash.”

        The jury reasonably found from this testimony that Wilson willfully

disregarded the safety of persons or property or, in other words, drove recklessly.

See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999) (finding substantial

evidence of reckless driving where the defendant was traveling “very fast” down a

road with a speed limit of thirty-five miles per hour); State v. Cornelius, No. 13-

1491, 2014 WL 4230217, at *2 n.1 (Iowa Ct. App. Aug. 27, 2014) (finding sufficient

evidence to support recklessness with speed two to three times the posted speed

limit). Because substantial evidence supports the jury’s finding, Wilson’s attorney
                                            5


did not breach an essential duty in failing to move for judgment of acquittal on this

ground. See State v. Carter, 602 N.W.2d 818, 821 (Iowa 1999).

       B. Causation

       In addition to finding that Wilson drove recklessly, the jury found Wilson

operated “the motor vehicle while eluding or attempting to elude a law enforcement

vehicle.” In short, the jury found Wilson guilty of homicide by vehicle under both

charged alternatives set forth in the second element of the marshalling instruction.

       Wilson argues the record contains “[i]nsufficient evidence to establish [an]

adequate causal connection on either the reckless driving alternative or the eluding

alternative.” In his view, “it is not sufficient to show that [his] driving conduct caused

the death; it must be shown that the reckless or eluding conduct caused the death.”

       As discussed, the record contains substantial evidence to support the jury’s

finding that Wilson’s driving was reckless. Before addressing causation, we turn

briefly to the evidence supporting the eluding alternative.

       The jury was given the following definition of eluding:

               The term, “eluding” or “attempting to elude” . . . means the
       driver fails to bring a motor vehicle to a stop or otherwise eludes or
       attempts to elude a marked official law enforcement vehicle driven
       by a uniformed peace officer after being given a visual and audible
       signal to stop. The visual signal must be by flashing red light or
       flashing red and blue lights and the audible signal must be by siren.

It is undisputed that Wilson refused to stop in response to the siren and flashing

lights. Testifying at trial, Wilson conceded he knew there was a marked law

enforcement vehicle behind him, he heard the sirens, he did not pull over, and he

did not apply his brakes. See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004)

(finding sufficient evidence based in part on the defendant’s admission); State v.
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Evenson, No. 14-0168, 2015 WL 1848719, at *3 (Iowa Ct. App. Apr. 22, 2015)

(“The critical act is continuing to drive away or taking evasive action after receiving

obvious direction to stop from law enforcement.”). Substantial evidence supports

the finding of eluding.

       Having found sufficient evidence to support both alternatives, we are ready

for the question of causation. The definition of “cause” given to the jury stated in

pertinent part:

              The alleged acts or conduct of a party “caused” the alleged
       damage or harm when the damage or harm would not have
       happened except for the acts or conduct. There can be more than
       one cause of damage or harm. . . .
              The State must also prove that the damage or harm (in this
       case the death of Djuan Beverly) was within the scope of Jerell
       Wilson’s criminal responsibility. The death or harm is within the
       scope of criminal responsibility if that death arises from the same
       types of danger created by Jerell Wilson’s act or acts. You should
       consider whether repetition of Jerell Wilson’s act or acts would make
       it more likely that the harm or death would happen to another. If
       Jerell Wilson’s act or acts would not make death more likely to occur,
       they are not within the scope of his criminal responsibility.
              Sole cause is the only cause. The State does not need to
       prove the act or acts of Defendant Jerell Wilson were the sole or only
       cause; however, the State is required to prove the act or acts were a
       cause.

The jury’s finding of causation under both alternatives was supported by

substantial evidence.      Specifically, the State’s crash reconstruction expert

reviewed the video of the chase and summarized the role speed played in hitting

the dip in the road. The expert opined “[e]xcessive speed” caused the crash. We

conclude Wilson’s attorney did not breach an essential duty in failing to move for

judgment of acquittal on this basis.
                                          7


II.    Merger of Operating While Intoxicated and Eluding Convictions

       Wilson contends “[t]he district court entered an illegal sentence in failing to

merge the Count 1 conviction for operating while intoxicated into the Count 2

conviction for eluding.”   See Iowa Code § 701.9 (requiring merger of lesser

included offenses). The State concedes the issue may be raised at any time. See

State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (“[T]he error preservation rule

does not apply to a defendant’s statutory claim of an illegal sentence under Iowa

Code section 701.9.”). Proceeding to the merits, the threshold question is whether

it is legally impossible to commit the greater crime without also committing the

lesser. State v. Stewart, 858 N.W.2d 17, 21 (Iowa 2015). “If the greater offense

is defined alternatively and the State charges both alternatives, the test for

included offenses must be applied to each alternative.” State v. Hickman, 623

N.W.2d 847, 851 (Iowa 2001).

       The greater offense in this case was felony eluding, defined for the jury as

follows:

               Element 1. On or about the 11th day of November 2016, in
       Woodbury County, Iowa, Defendant Jerell Wilson was driving a
       motor vehicle.
               Element 2. At that time, Defendant Jerell Wilson willfully failed
       to bring a motor vehicle to a stop, eluded or attempted to elude a
       marked official law enforcement vehicle driven by a uniformed peace
       officer after being given a visual and audible signal to stop. The
       visual signal must be by flashing red or flashing red and blue lights,
       and the audible signal must be by siren.
               Element 3. In doing so, Defendant Jerell Wilson exceeded the
       speed limit by 25 miles per hour or more.
               Element 4. At that time:
               a. Defendant Jerell Wilson was operating the motor vehicle
                  under the influence of a drug or had any amount of
                  marijuana or any metabolite of marijuana present as
                  measured in his blood or urine.; or
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                 b. The acts of Defendant Jerell Wilson as set out in Element
                    Nos. 1, 2, and 3 above resulted in a bodily injury to another
                    person; or
                 c. Defendant Jerell Wilson was in possession of marijuana;
                    or
                 d. Defendant Jerell Wilson was participating in the public
                    offense of Possession with Intent to Deliver Marijuana.

Wilson was charged with four alternatives under element 4: (1) operating a motor

vehicle while under the influence of a drug, (2) acts resulting in bodily injury to

another person, (3) possession of marijuana; or (4) participation in the public

offense of possession with intent to deliver marijuana.              See Iowa Code

§ 321.279(3) (a), (b), (c). The jury found the State proved the first two alternatives.

       The lesser offense was operating while intoxicated, defined for the jury as

follows:

              Element 1. On or about the 11th day of November, 2016, in
       Woodbury County, Iowa, Defendant Jerell Wilson operated a motor
       vehicle:
              a. while under the influence of a drug; or
              b. while any amount of marijuana or any metabolite of
                 marijuana was present as measured in his blood or urine.

       Wilson submits that “because the legal elements test for lesser-included-

offenses is satisfied on the OWI alternative of the Count 2 Eluding offense, merger

is required.” But, as the State points out, “the jury specifically found Wilson guilty

of a version of felony eluding that does not contain OWI as a lesser included

offense.” Because the jury found Wilson guilty under the bodily injury alternative

of eluding as well as the OWI alternative, we agree with the State that “merger is

not required.”

       Our analysis could end with the legal elements test. However, this court

has gone a step further. In State v. Eckrich, 670 N.W.2d 647, 649 (Iowa Ct. App.
                                          9


2003), we resolved the question of whether OWI was a lesser included offense of

eluding by examining legislative intent. We concluded “[b]ecause there is clear

legislative intent to authorize multiple punishments . . . , [the defendant’s] claim as

to a double jeopardy violation would fail even with his assertion that OWI and

possession are lesser-included offenses of felony eluding.” Eckrich, 670 N.W.2d

at 650.

       We conclude the district court did not err in failing to merge the OWI

conviction with the eluding conviction. Wilson’s judgment and sentences are

affirmed.

       AFFIRMED.
