                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0627
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

OMAR MARTINEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      A defendant challenges his conviction for operating while intoxicated, third

offense. AFFIRMED.



      Jack E. Dusthimer, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       The main question in this appeal is whether the State proved beyond a

reasonable doubt that Omar Martinez had been operating the Ford Tempo in

which police found him sitting in an intoxicated state in the early morning hours of

June 15, 2014.     Because we find substantial circumstantial evidence in the

record that while under the influence of alcohol Martinez did operate the car, we

decline to upend the jury’s verdict. Martinez also alleges he received ineffective

assistance from his trial counsel.     Because he fails to show counsel breached

any duty resulting in prejudice, we affirm

I.     Facts and Prior Proceedings

       At 3:45 a.m. on June 15, 2014, dispatch sent two Bettendorf police officers

to the Chateau Knoll apartment complex in response to a 911 call reporting a

man creating a disturbance and trying to gain entrance to an apartment. The

officers found Martinez sitting in the driver’s seat of a white Ford Tempo in the

complex parking lot. The Tempo—registered to Martinez’s mother—was parked

at a skewed angle inside the marked space. The car’s engine was not running,

and the key was not in the ignition.

       Showing signs of intoxication, Martinez told the officers he was there to

retrieve some belongings from his ex-girlfriend’s apartment. He also told the

officers he had been at a friend’s house watching soccer matches and drinking

beer. He said a friend dropped him off at the apartment complex and his mother

was going to pick him up. But when the officers checked Martinez’s cell phone,

they found no calls to his mother arranging a ride. The friend did not answer

when police called him from Martinez’s phone. The most recent nine calls were
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to his ex-girlfriend, who lived at the apartment complex. When asked how the

vehicle he was sitting in had gotten there, Martinez responded, “[I]t had been

there forever.” At no point did Martinez tell the officers the Tempo had been

driven to the apartment complex by anyone else.

       Officer Andrew Champion testified he felt the hood of Martinez’s car and

reached toward the radiator to see if the engine was warm. He detected it was

“definitely” warmer than the night air, though he acknowledged it was a

“comfortable” June night. It was the officer’s opinion that the car had recently

been operated. The officer testified checking vehicles in this fashion to see if the

engine had been running recently was a common police practice.

       Martinez performed poorly on the standardized field sobriety tests

administered by the officers. The officer placed Martinez under arrest and found

an “older model square top Ford key” in his pocket. Officer Champion used the

key to lock the passenger side door. The officers transported Martinez to the

station where he placed a phone call to his mother and then refused chemical

testing.

       On July 11, 2014, the Scott County Attorney filed a trial information

charging Martinez with operating while intoxicate (OWI), third offense, in violation

of Iowa Code section 321J.2(1) and (2)(c) (2013). Martinez stood trial before a

jury on February 2, 2015; the only two witnesses were the Bettendorf police

officers. The jury returned a guilty verdict on February 3, 2015. Martinez filed a

motion for new trial, which the district court denied.       The court sentenced

Martinez to an indeterminate five-year sentence with initial placement at the
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residential correctional facility as a part of the OWI continuum. Martinez filed a

timely notice of appeal.

II.    Scope and Standards of Review

       When reviewing the district court’s denial of a motion for judgment of

acquittal, we frame the evidence in the light most favorable to the State. State v.

Boleyn, 547 N.W.2d 202, 204 (Iowa 1996).         Our scope of review is for the

correction of legal error. Id. We accept all legitimate inferences that we can

reasonably deduce from the evidence presented at trial. Id. If we find substantial

evidence in the record to support the conviction, we uphold the denial of the

motion for judgment of acquittal. Id. Evidence is substantial if it would convince

a rational trier of fact the defendant is guilty of the crime charged beyond a

reasonable doubt. Id.

       In deciding an ineffective-assistance-of-counsel challenge, we review the

evidence de novo. State v. Lopez, 872 N.W.2d 159, 168 (Iowa 2015).

III.   Analysis

       Martinez raises two issues on appeal. First, he claims the district court

erred in overruling his motion for judgment of acquittal. Second, he claims his

trial counsel provided ineffective representation in three ways. We will address

each claim in turn.

       A. Substantial Evidence

       As the name suggests, the crime of operating while intoxicated requires

proof of two elements: (1) operation of a motor vehicle (2) while under the

influence of an alcoholic beverage, a drug, or a combination of such substances.

Iowa Code § 321J.2. At trial, Martinez conceded he was intoxicated when the
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police encountered him in the early morning hours. His argument in moving for

judgment of acquittal was based on the “operation” element. He continues to

contest that point on appeal.

       “Operate” means the immediate, actual physical control over a motor

vehicle that either is moving or has its engine running. State v. Hopkins, 576

N.W.2d 374, 377 (Iowa 1998). Even if the State’s evidence fails to prove an

intoxicated defendant was in the process of operating a motor vehicle when

authorities found the defendant, the State may establish operation through

circumstantial evidence “that the defendant had operated while intoxicated when

driving to the location where the vehicle was parked.” Id. at 377-78; see also

Boleyn, 547 N.W.2d at 205.        Circumstantial and direct evidence are equally

probative under Iowa law. Iowa R. App. P. 6.904(3)(p).

       In this case, the State presented the following circumstantial evidence

supporting the finding that Martinez had operated the vehicle while he was

intoxicated: (1) police found Martinez sitting upright in the driver’s seat of the car;

(2) he claimed he was there to pick up items from his ex-girlfriend; (3) the car

was parked in a haphazard manner, as if the driver was impaired; (4) nobody

else was present in the parking lot in the wee hours of the morning; (5) Martinez

had a Ford car key in his pocket, which worked to lock the Tempo door; (6) in the

view of the officers, Martinez was “evasive” in his explanation of how he and the

car ended up at the parking lot; and (7) the warmth of the car’s engine indicated

recent operation.
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       We conclude the jury could have reasonably determined from the entirety

of the State’s evidence that Martinez drove his mother’s car to his ex-girlfriend’s

apartment complex while he was under the influence of alcohol.

       B. Ineffective Assistance of Counsel

       Martinez next contends his trial attorney’s performance was subpar in

three ways: (1) failing to challenge the standard of review applied by the district

court in overruling his motion for judgment of acquittal; (2) failing to object to

hearsay evidence that he “pounded on the door” of his ex-girlfriend’s apartment

at 3:45 a.m., when that information came only from the dispatcher; and (3) failing

to challenge the district court’s reliance on the “pounding” evidence in denying

the motion for judgment of acquittal.

       To prevail on his ineffective-assistance-of-counsel claims, Martinez must

show counsel failed to perform an essential duty and prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Although we often preserve

ineffective-assistance claims for postconviction-relief hearings, we will consider

them on direct appeal if the record is adequate. Lopez, 872 N.W.2d at 169.

Here, we find the record adequate to reject Martinez’s allegations.

       In regard to Martinez’s first claim, we find no error in the district court’s

articulation of the standard for ruling on a motion for judgment of acquittal. Under

the rules of criminal procedure, “The court . . . shall order the entry of judgment of

acquittal of one or more offenses charged in the indictment after the evidence on

either side is closed if the evidence is insufficient to sustain a conviction of such

offense or offenses.” Iowa R. Crim. P. 2.19(8)(a). Here, the district court stated:

“The court has looked at the evidence and when the evidence viewed in the light
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most favorable to the State I think there is clearly enough evidence to generate a

jury question here.”    The district court’s terminology has been used by our

supreme court in deciding substantial evidence questions. See, e.g., State v.

Radeke, 444 N.W.2d 476, 478-79 (Iowa 1989) (looking “at all the evidence in the

light most favorable to the State” and finding “sufficient evidence to generate a

jury question”). Accordingly, trial counsel breached no duty in declining to object.

       In his second and third claims, Martinez alleges counsel should have

objected to “details” from dispatch concerning his conduct at the apartment as

hearsay and should have challenged the court’s reliance on the assertion he was

“pounding on the door” in overruling his motion for judgment of acquittal.

       The State argues, even assuming the information relayed by the

dispatcher was inadmissible, Martinez has not shown how his counsel’s failure to

object resulted in prejudice. We agree. The assertion Martinez was “pounding

on the door” of his ex-girlfriend’s apartment was not necessary to the finding that

he had operated the Tempo while intoxicated. Ample circumstantial evidence,

distinct from Martinez’s conduct at the apartment, pointed to his act of driving.

Martinez has not satisfied the prejudice prong of Strickland. See Lopez, 872

N.W.2d at 169 (“Prejudice is generally found only if ‘but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

(citation omitted)).

       To recap, we find no error in the court’s denial of Martinez’s motion for

judgment of acquittal and no merit to his claims of ineffective assistance of

counsel.

       AFFIRMED.
