                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1773
                             Filed October 12, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONALD DEAN GRIDLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Myron L. Gookin,

Judge.



      Donald Gridley appeals his conviction for vehicular homicide, alleging

various errors in his jury trial. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

          A truck slid down an embankment and crashed, killing Donald Gridley’s

father.      The State charged Gridley with vehicular homicide, defined as

“unintentionally caus[ing] the death of another by operating a motor vehicle while

intoxicated.” See Iowa Code § 707.6A(1) (2013). A jury found him guilty.

          On appeal Gridley (1) challenges the sufficiency of the evidence

supporting the jury’s finding of guilt, (2) contends the district court should have

excluded certain opinion testimony proffered by a law enforcement officer, (3)

argues the district court erred in instructing the jury on his refusal to provide a

urine sample, and (4) contends the district court applied an incorrect standard in

ruling on his motion for new trial.

I.        Sufficiency of the Evidence

          The jury was instructed the State would have to prove (1) “the defendant

operated a motor vehicle,” (2) while under the influence, and (3) as a result of

these acts he “unintentionally caused the death of” his father. Gridley challenges

the evidence supporting the first element—whether he was the person who

operated the motor vehicle. He claims his father operated the vehicle. The jury

could have found the following facts.

          Gridley and his father attended a funeral.    At the reception, Gridley

estimated he consumed at least seven or eight alcoholic drinks.          Early the

following morning, a deputy sheriff responded to a 911 call from a farmhouse.

Gridley was outside.      Gridley told the deputy he was involved in a vehicle

accident and thought “his dad was possibly dead.” The deputy noted that Gridley

had “bloodshot, watery eyes, . . . slurred speech, [and] [smelled] of alcohol.” He
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surmised Gridley had been drinking.       A urine test taken several hours later

revealed “a urine alcohol concentration of 0.198 grams per 67 mils of urine,” a

level that, according to the tester, could impair an individual. The test also was

positive for marijuana metabolites, oxycodone, and benzodiazepines.

       The deputy drove Gridley to the scene of the accident. He found Gridley’s

father pinned on the floorboard of the passenger side of the vehicle, facing the

passenger side door.      The deputy did not see “any evidence that [Gridley’s

father] was moved from the driver’s seat to the passenger seat.”            Other

witnesses who arrived at the scene confirmed the impracticability of Gridley’s

assertion that he had repositioned his father.

       Two volunteer firemen at the scene heard Gridley ask, “Did I kill my

father? Is he going to die? Did I kill my father?” A paramedic testified Gridley

“initially admitted that he was the driver of the vehicle.” While the paramedic

conceded Gridley “seemed confused,” he stated the confusion was “just over

[his] questions later.”

       A deputy sheriff testified he “saw a red mark on [Gridley’s] chest” that

“resembled a steering wheel mark.” A state trooper agreed with the prosecutor

that “damage to a steering wheel” could “cause injuries to the driver of [a]

vehicle” and this evidence could be used to identify the driver. An agent with the

department of criminal investigation opined that two blood samples collected

from the steering wheel and driver’s side of the dashboard “matched the known

profile of Donald Gridley.” Gridley’s father “was eliminated as the source of the

DNA found on those two samples.”
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        A reasonable juror could have found from this evidence that Gridley,

rather than his father, drove the vehicle. Although several witnesses testified the

vehicle belonged to Gridley’s father and he never allowed others to drive it, jurors

could have discredited most of these witnesses based on their close relationship

with the Gridleys.

       We acknowledge that one defense witness did not fall into this category

because she first met the Gridleys at the reception.            She struck up a

conversation with Gridley’s father and learned he “was extremely adamant to a

very significant degree that only he drove his truck.”        She came close to

accepting a ride from him and went so far as to approach the passenger side of

the Gridley vehicle. She testified Gridley’s father “had the driver’s door opened,

and he was on the driver’s side right by the door,” while Gridley “was on the

passenger side” with her. Ultimately, she accepted a ride with someone else and

left before the Gridleys got into their vehicle. While this testimony appears to

cast doubt on whether Gridley drove the vehicle, a reasonable juror could have

ascribed limited weight to the woman’s statements in light of her early departure.

       Substantial evidence supports the jury’s finding of guilt.     See State v.

Tinius, 527 N.W.2d 414, 416 (Iowa Ct. App. 1994) (finding substantial evidence

to support a conviction for vehicular homicide notwithstanding evidence that a

person who died in the car accident “had driven the car on prior occasions, and

was known to generally prefer driving a vehicle over riding as a passenger,

especially after drinking at bars”).
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II.      Expert Testimony

         Gridley challenges the State trooper’s testimony that he was “aware . . .

steering wheel marks can be left on the driver of a vehicle” and “those types of

marks, [are] evidence you can use to help determine who the driver is.” The

trooper also agreed with the prosecutor that “when there’s damage to a steering

wheel . . . it [could] also cause injuries to the driver of the vehicle,” and “a

semicircle in the abdomen region [would] be consistent with striking a steering

wheel.” Finally, the trooper discussed the injuries sustained by Gridley’s father

and opined that these injuries placed him on the passenger side of the vehicle.

         Gridley asserts (1) the trooper’s testimony was based “largely on witness

statements or information obtained through police investigation” rather than his

personal observations, (2) the testimony “improperly vouched for” the deputy

sheriff’s testimony about the mark on Gridley’s chest, and (3) the trooper was not

qualified as a forensic pathologist who could testify to the source of injuries

sustained by Gridley’s father.

         Gridley did not object to the trooper’s opinion testimony about the mark on

his chest and its relationship to the steering wheel.      Accordingly, he did not

preserve error and we will review his first two contentions under an ineffective-

assistance-of-counsel rubric. See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa

2008).    “Ineffective-assistance-of-counsel claims based on failure to preserve

error are not to be reviewed on the basis of whether the claimed error would

have required reversal if it had been preserved at trial. Rather, a defendant must

demonstrate a breach of an essential duty and prejudice.” Id. at 196. We find

the record adequate to address the issue.
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       We begin with Gridley’s challenge to the trooper’s testimony based on his

lack of personal knowledge.         Our courts have consistently allowed law

enforcement officers to opine on matters gleaned through the observations of

other officers, whether or not the matters are within the personal knowledge of

the testifying officer. See State v. Owens, 418 N.W.2d 340, 342 (Iowa 1988) (“[I]t

is well established that when police officers are acting in concert, the knowledge

of one is presumed shared by all.”); State v. Schubert, 346 N.W.2d 30, 32 (Iowa

1984) (“[W]here law enforcement authorities are cooperating in an investigation,

. . . the knowledge of one is presumed shared by all.”); see also State v. Palmer,

554 N.W.2d 859, 868 (Iowa 1996) (“Our conclusion in no way undermines the

validity of our prior cases applying the rule of shared knowledge in other

situations.”). Pursuant to this shared knowledge doctrine, the trooper permissibly

relied on the deputy sheriff’s testimony about the injury in opining about its

possible source. On our de novo review, we conclude Gridley cannot establish

counsel’s breach of an essential duty in failing to object to the trooper’s testimony

for lack of personal knowledge.

       We turn to Gridley’s assertion that the state trooper “improperly vouched

for [another officer’s] testimony that [he] sustained a red mark to his abdominal

area during the accident.” Opinions prohibiting personal vouching have arisen

primarily, if not exclusively, in child victim cases, where the expert’s testimony

either bolsters the credibility of the victim or undermines the credibility of the

defendant. See State v. Tyler, 867 N.W.2d 136, 165-66 (Iowa 2015). Those

opinions are inapposite.     The trooper did not comment on or impugn the

defendant’s credibility; he simply used shared law enforcement information to
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opine on a possible source of Gridley’s injury. Defense counsel did not breach

an essential duty in failing to challenge the testimony on this basis.

       We are left with Gridley’s challenge to the trooper’s qualifications to opine

that the facial injuries sustained by Gridley’s father were consistent with having

been seated on the passenger side of the vehicle. Counsel preserved error on

this issue by objecting to the trooper’s qualifications at trial. Accordingly, we

review the issue directly under an abuse of discretion standard. See Hyler v.

Garner, 548 N.W.2d 864, 868 (Iowa 1996) (“Whether a witness is sufficiently

qualified to testify as an expert is within the court’s discretion,” and “we reverse

only for a manifest abuse of discretion to the prejudice of the complaining

party.”).

       There is no question the trooper lacked training as a forensic pathologist.

However, he possessed extensive experience as an accident investigator, having

examined “70 to 80 technical collision[s]” in twelve years. His opinion was based

on an examination of the vehicle and his observation of damage to the rear view

mirror that was consistent with the mark on the face of Gridley’s father. This

opinion fell well within the scope of the trooper’s experience and training. See

Iowa R. Evid. 5.702 (authorizing “witness qualified as an expert by knowledge,

skill, experience, training, or education” to testify on matters that “will assist the

trier of fact to understand the evidence or to determine a fact in issue”); State v.

Johnson, No. 02-1818, 2003 WL 22698004, at *3 (Iowa Ct. App. Nov. 17, 2003)

(concluding officer’s “previous experience and training provided him with

sufficient specialized knowledge to testify that the injuries observed on

[defendant] were consistent with those suffered by drivers of automobiles in slow
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speed crashes”). Accordingly, the district court did not abuse its discretion in

overruling the objection to the trooper’s qualifications.

III.     Jury Instruction on Test Refusal

         One of the deputy sheriffs testified he “requested a urine sample” from

Gridley, and Gridley refused to provide one.            Gridley did not object to the

testimony but did object to a jury instruction on how to construe the refusal. The

instruction stated: “The defendant was asked to give a urine sample so it could

be analyzed to determine the percent of alcohol in his blood. The defendant

refused. A person is not required to give a sample of any bodily substance;

however, you may consider a refusal in reaching your verdict.” Gridley asserted

the instruction was improper because the State failed to establish the

foundational “steps necessary for invoking implied consent.” The district court

overruled the objection.

         On appeal, Gridley argues “there [was] a lack of evidence that the law

enforcement officer[] properly invoked implied consent.”1 The State concedes

error was preserved. Assuming without deciding this is the case, we will proceed

to the merits. See Top of Iowa Coop v. Sime Farms, Inc., 608 N.W.2d 454, 470

(Iowa 2000) (“[T]his court will consider on appeal whether error was preserved

despite the opposing party’s omission in not raising this issue at trial or on

appeal.”); State v. Johnson, 223 N.W.2d 226, 229 (Iowa 1974) (“No objection
1
    Iowa Code § 321J.6(1) states:
                A person who operates a motor vehicle in this state under
         circumstances which give reasonable grounds to believe that the person
         has been operating a motor vehicle in violation of section 321J.2 or
         321J.2A is deemed to have given consent to the withdrawal of specimens
         of the person’s blood, breath, or urine and to a chemical test or tests of
         the specimens for the purpose of determining the alcohol concentration or
         presence of a controlled substance or other drugs . . . .
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was made to the evidence showing the circumstances under which the mortgage

was made. Objection was first made when the instruction was given to the jury.

It was too late.”).

        Although the deputy did not discuss an implied consent form or the

implied consent procedures, he unequivocally testified that Gridley refused the

urine test. His refusal triggered application of the following statute: “If a person

refuses to submit to a chemical test, proof of refusal is admissible in any civil or

criminal action or proceeding arising out of acts alleged to have been committed

while the person was operating a motor vehicle in violation of section 321J.2 or

321J.2A.” Iowa Code § 321J.16. In light of the deputy’s testimony, we conclude

the district court did not err in giving the jury instruction.

IV.    Motion for New Trial

       Gridley moved for a new trial and for arrest of judgment. His new trial

motion cited the pertinent rule but not the pertinent standard for application of the

rule. See Iowa R. Crim. P. 2.24(2)(b)(6) (allowing court to grant a new trial

“[w]hen the verdict is contrary to law or evidence”); State v. Ellis, 578 N.W.2d

655, 658-59 (Iowa 1998) (noting distinction between sufficiency-of-the-evidence

standard and weight-of-the-evidence standard and holding “‘contrary to . . . the

evidence’ in rule [2.24](2)(b)(6) means ‘contrary to the weight of the evidence’”).

The district court used the sufficiency-of-the-evidence standard to deny Gridley’s

motion.

       Gridley contends the “district court appl[ied] an incorrect standard in

overruling [his] motion [for new trial.]” The State responds that Gridley’s new trial
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motion made “no reference to any witness or testimony that was somehow not

credible, nor the word ‘weight.’”

       In Maxwell, the court found that the defendant “clearly raised the issue of

whether the verdict was contrary to the weight of the evidence by citing rule

2.24(2)(b)(6) in his motion.” 743 N.W.2d at 193. Gridley’s motion similarly cited

the rule.   Although Gridley subsequently referred to the sufficiency-of-the-

evidence rather than the weight-of-the evidence standard, Ellis required

application of the weight-of-the-evidence standard.     578 N.W.2d at 658-59.

Because this standard was not applied, we affirm the convictions, but reverse

the ruling on Gridley’s motion for new trial and “remand the case to the district

court to rule on the motion for new trial under the correct weight-of-the-evidence

standard.” See State v. Nitcher, 720 N.W.2d 547, 560 (Iowa 2006).

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
