                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1830
                             Filed August 19, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY DUFFEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Christine Dalton,

District Associate Judge.



      Gary Duffel appeals from the judgment and sentence entered following his

conviction for public intoxication, third or subsequent offense. AFFIRMED.



      Jack E. Dusthimer, Davenport, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Michael J. Walton, County Attorney, and Joshua R. Sims, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Mullins, and Bower, JJ.
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DOYLE, P.J.

       Gary Duffel appeals from the judgment and sentence entered following his

conviction for public intoxication, third or subsequent offense. Duffel contends

the evidence was insufficient to support the jury’s finding of guilt and his trial

counsel was ineffective in failing to attempt to exclude certain evidence from trial.

I.     Background Facts and Proceedings

       On the evening of July 1, 2014, Le Claire Police Officer Mark Cottrell was

on routine patrol. At around 9:00 p.m., Officer Cottrell observed Gary Duffel and

a woman walking near an antique store. The officer had not seen them before,

so he “made a lap around.” He then saw Duffel standing in front of the antique

store, but the woman had “kind of disappeared.” Officer Cottrell approached and

realized the woman was relieving herself behind a large campaign sign. Officer

Cottrell noticed they both smelled of alcohol and they admitted to drinking.

However, because they did not appear “at that time to be out of control, or

without control of their faculties,” Officer Cottrell let them go with a warning.

       At around 1:30 a.m., Officer Cottrell saw Duffel and the woman again, this

time sitting at a table on the sidewalk outside a closed convenience store just

across the street from the police station. Officer Cottrell observed they were

drinking beers and Duffel was dumping beer out on the ground. They were

“visibly intoxicated” with “slurred speech.”

       Duffel was charged with public intoxication third or subsequent conviction,

in violation of Iowa Code sections 123.46 and 123.91(2) (2013). Duffel pled not

guilty, and the case proceeded to trial. At trial, the jury heard testimony from

Officer Cottrell detailing the facts set forth above, and viewed a video of the
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second encounter between Officer Cottrell and Duffel taken from the officer’s

patrol car.   The defense presented no evidence, but moved for judgment of

acquittal at the close of the State’s case, which the district court overruled.

       The jury found Duffel guilty as charged. Duffel conceded he had two prior

convictions for public intoxication. The district court sentenced Duffel to 240

days in jail, subject to reconsideration following completion of in-jail substance

abuse treatment, as well as sixty-three hours of community service.                 Duffel

appeals.

II.    Sufficiency of the Evidence

       Duffel contends the evidence was insufficient to support the jury’s finding

of guilt.1 Insofar as his claim implicates trial counsel’s failure to challenge the

admission of evidence of a preliminary breath test, we address that claim

separately below.

       We review challenges to the sufficiency of the evidence for correction of

errors at law.     State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014).                  We

“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.”     State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal

quotation marks omitted).        “We will uphold a verdict if it is supported by

substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).




1
  The State agrees defense counsel’s motion for judgment of acquittal preserved this
claim for review. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004) (“To
preserve error on a claim of insufficient evidence for appellate review in a criminal case,
the defendant must make a motion for judgment of acquittal at trial that identifies the
specific grounds raised on appeal.”).
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       The jury was instructed the State would have to prove the following

elements of public intoxication:

              1. On or about the 2nd day of July 2014, in Scott County,
       Iowa, the defendant was intoxicated.
              2. At the time the defendant was intoxicated, he was in a
       public place.

The jury was further instructed:

              A person is “intoxicated” when, by drinking liquor and/or
       beer, one or more of the following is true:
              1. His reason or mental ability has been affected.
              2. His judgment is impaired.
              3. His emotions are visibly excited.
              4. He has, to any extent, lost control of bodily actions or
       motions.

       Viewing the evidence in the light most favorable to the State, we conclude

substantial evidence supports the jury’s findings of guilt.       The jury heard

testimony from the arresting officer describing his two encounters with Duffel and

the woman on the evening in question.        Initially, the officer observed Duffel

smelling of alcohol. The officer allowed Duffel to go with a warning. Four hours

later, the officer found Duffel openly drinking beer on a sidewalk outside a closed

convenience store just across the street from the police station.      The officer

observed Duffel pouring beer on the sidewalk, and the officer described him as

“visibly intoxicated” with “slurred speech.” The jury also viewed the patrol car

video of the second encounter, which showed Duffel pouring beer out, walking

around, and speaking in a slurred voice.

       “[U]nless the record lacks substantial evidence, we are bound by the jury’s

verdict.” State v. Laffey, 600 N.W.2d 57, 59-60 (Iowa 1999). Considering the

record before the jury, we conclude substantial evidence existed upon which the
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jury found beyond a reasonable doubt that Duffel was intoxicated in a public

place.2 We affirm on this issue.

III.   Ineffective Assistance of Counsel

       Duffel contends his trial counsel was ineffective in failing to file a motion to

suppress or object to the admission of evidence of the preliminary breath test 3 or

the “inconsistent” jury instruction referencing “alcohol concentration.”4

       We review ineffective-assistance-of-counsel claims de novo.                       See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a

claim, Duffel must prove both that (1) his counsel failed to perform an essential

duty, and (2) he suffered prejudice as a result of his counsel’s failure. See id.

Duffel must prove both the “essential duty” and “prejudice” prongs by a

preponderance of the evidence. See State v. Ross, 845 N.W.2d 692, 697-98

(Iowa 2014).      “There is a presumption the attorney acted competently, and

prejudice will not be found unless there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”   Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012) (internal

quotation marks omitted).

       “Even though these claims are generally preserved for postconviction

relief, when presented with a sufficient record this court will address such a


2
  Although in determining the sufficiency of the evidence, all evidence admitted during
the trial—even erroneously admitted evidence—should be considered, see State v.
Dullard, 668 N.W.2d 585, 597 (Iowa 2003), we note that in reaching our conclusion on
this claim we have not considered evidence of Duffel’s preliminary breath test.
3
  At trial, Officer Cottrell testified that Duffel’s preliminary breath test result was 0.177.
4
  The jury instruction Duffel challenges is Instruction No. 8, which states: “The alcohol
concentration established by an analysis of a sample of a person’s breath withdrawn
within two hours of the person’s arrest is presumed to be the alcohol concentration at the
time he was arrested.”
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claim.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). If we determine the

claim cannot be addressed on appeal, however, we must preserve it for a

postconviction relief proceeding, regardless of our view of the potential viability of

the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the

record adequate to address Duffel’s claims at this juncture.

       Without deciding the admissibility of the references to the preliminary

breath test in the officer’s testimony or alcohol concentration in the jury

instructions, we turn to the prejudice prong of Duffel’s claim of ineffective

assistance with respect to this evidence. As discussed above, the jury heard

ample other evidence upon which to rely to conclude Duffel was intoxicated. The

fact that Duffel was openly drinking beer in front of a closed store just across the

street from the police station hours after a police officer warned him not to drink

in public supports a finding that Duffel’s reasoning, judgment, or mental ability

was affected or impaired. The fact that Duffel poured beer out on the sidewalk in

front of the officer also indicates his judgment was impaired. The fact that Duffel

was “visibly intoxicated” and speaking with “slurred speech” supports a finding he

had to some extent lost control of his bodily actions. The jury also viewed the

video depicting Duffel’s demeanor and speech. The jury was properly instructed

on the elements of the crime and the definition of intoxication, neither of which

implicated alcohol concentration levels as a basis for conviction.

       Under these circumstances, Duffel has not sustained his burden to

demonstrate a reasonable probability of a different result had the challenged

evidence been stricken. Duffel’s claim of ineffective assistance on these grounds

fails. See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003) (noting failure to
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prove either element by a preponderance of the evidence is fatal to the claim).

We affirm on this issue.

IV.   Conclusion

      Upon consideration of the issues raised on appeal, we affirm Duffel’s

judgment and sentence for public intoxication, third offense.

      AFFIRMED.
