                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0257
                               Filed April 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENDRA D. KOHLMEYER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      The defendant appeals her conviction for operating a motor vehicle while

under the influence of alcohol, claiming insufficient evidence. AFFIRMED.



      Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.

       A jury found Kendra Kohlmeyer guilty of operating a motor vehicle while

under the influence of alcohol (OWI), third offense. She claims (1) the verdict

was not supported by substantial evidence in the record and (2) the trial court

erred in denying her motion for new trial where the jury verdict was contrary to

the weight of the evidence. Based upon our review, we find substantial evidence

supports the jury verdict and affirm.

   I. Facts and procedural background

       On the evening of November 30, 2014, Kohlmeyer joined her boyfriend,

Kasey Birkenbile, and her brother at a bar in Davenport. Birkenbile had been

drinking for three to four hours and was intoxicated. The three drank a pitcher of

beer after Kohlmeyer arrived. After finishing the pitcher of beer, they decided to

go to Kohlmeyer’s brother’s residence. Kohlmeyer’s brother drove a blue Chevy

pickup truck.   Kohlmeyer drove Birkenbile’s white Chevy Equinox SUV with

Birkenbile in the passenger seat.       On the way, Kohlmeyer rear-ended her

brother’s pickup, which had stopped for a stop sign. As a result of the collision,

the SUV’s airbags deployed, Birkenbile’s head struck the windshield “pretty hard”

so that he was injured, and the SUV was totaled.

       Other motorists immediately came upon the collision scene. One motorist,

Jennifer Agent, did not see the collision, but she did notice people yelling and

doubled back to check on what was the scene of the accident. Agent saw a

woman arguing with a man on the side of the road. When Agent returned, the

darker vehicle involved in the accident was gone. Another motorist, Charles

Jackson, identified Kohlmeyer at trial as the person he saw exit from the driver’s
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side of the white SUV and observed she was “kind of like stumbling and stuff like

that.” Jackson also saw Kohlmeyer get into the blue pickup, which sped away

from the scene. Jackson called 911 and followed the pickup to its destination;

then he returned to the crash scene and reported to police the truck’s location.

       Officer Kory Griffin responded to the crash scene, where he spoke with

Birkenbile and the other witnesses.        After approximately thirty to forty-five

minutes, Officer Griffin proceeded to the vicinity of Kohlmeyer’s brother’s

residence to investigate the blue Chevy pickup truck.         Police found the blue

pickup truck with fresh rear-end damage. Kohlmeyer, her brother, and another

man were located near the blue pickup truck.          Officer Griffin conducted an

investigation. He observed Kohlmeyer smelled of alcohol, her speech was slow

and slurred, and her eyes were red, bloodshot, and watery. She had difficulty

keeping her balance and almost fell over when walking to the patrol car.

Kohlmeyer admitted that she was intoxicated but maintained that she had not

been driving.1 Kohlmeyer failed numerous sobriety tests administered by Griffin

at the police station and declined to provide a breath sample for chemical testing.

Based upon his full investigation, including interviews with witnesses at the

scene, Officer Griffin, a field sobriety test instructor with approximately 200 prior

OWI investigations, testified that, in his opinion, Kohlmeyer was intoxicated when

operating the vehicle.

       On December 23, 2014, a trial information was filed charging Kohlmeyer

with Count I—operating a motor vehicle while under the influence of alcohol, third


1
 Kohlmeyer’s statements were video and audio recorded during the police investigation,
admitted into evidence, and played for the jury.
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offense, in violation of Iowa Code section 321J.2 (2014); and Count II—leaving

the scene of a personal injury accident in violation of Iowa Code section

321.261(1) and (2).2 On May 18 and 19, 2015, a jury trial was held on Count I.

Following the close of the State’s evidence, Kohlmeyer’s attorney made a motion

for judgment of acquittal, arguing that the State had failed to present sufficient

evidence that Kohlmeyer was intoxicated at the time she was operating the white

SUV.       The trial court denied the motion.         Kohlmeyer did not present any

evidence, and after closing arguments, the jury returned a guilty verdict.

Kohlmeyer then filed a motion for new trial in which she argued that the jury’s

verdict was not supported by substantial evidence. The trial court denied the

motion and sentenced Kohlmeyer.

      II. Standard of review

         We review a challenge to the sufficiency of the evidence for correction of

errors at law. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). “The jury’s

findings of guilt are binding on appeal if supported by substantial evidence.”

State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). “Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a reasonable

doubt.” State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). “We review the

evidence in the light most favorable to the State, including legitimate inferences

and presumptions that may fairly and reasonably be deduced from the evidence

in the record.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002); see Hopkins, 576

N.W.2d at 377. We consider all the evidence introduced at trial, not just the

evidence supporting guilt. Hopkins, 576 N.W.2d at 377.

2
    At the commencement of the trial, Kohlmeyer pled guilty to Count II.
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      When a defendant raises the issue that the trial court erred in denying a

motion for new trial on a claim that the verdict is contrary to the weight of the

evidence, appellate review is for abuse of discretion and is not of the underlying

question of whether the verdict is against the weight of the evidence. See State

v. Nicher, 720 N.W.2d 547, 559 (Iowa 2006); State v. Reeves, 670 N.W.2d 199,

202 (Iowa 2003).

   III. Discussion

          A. Sufficiency of the evidence

      The elements of operating while intoxicated as applied to Kohlmeyer are:

(1) she operated a motor vehicle and (2) was intoxicated while doing so. See

Iowa Code § 321J.2(1); State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).

Although she claimed to Officer Griffin that evening that she had not operated a

vehicle, Kohlmeyer no longer challenges the fact that she was operating the

white SUV that rear-ended her brother’s pickup. Kohlmeyer also does not refute

that she was intoxicated when Officer Griffin conducted his investigation and

arrested her after the collision. Rather, Kohlmeyer contends that the State failed

to present sufficient evidence that she was intoxicated while she operated the

white SUV.    In support of her contention, she relies primarily on State v.

Creighton, 201 N.W.2d 471 (Iowa 1972).

      Creighton is distinguishable for two reasons. First, at the time Creighton

was decided, the law regarding direct and circumstantial evidence was different.

Then, the circumstantial evidence rule was subject to the caveat that the

circumstantial evidence must be entirely consistent with defendant’s guilt and

wholly inconsistent with any rational hypothesis of innocence. State v. Link, 171
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N.W.2d 259, 260–61 (Iowa 1969). Now, the law is that direct and circumstantial

evidence are equally probative, and the caveat has been eliminated. State v.

O’Connell, 275 N.W.2d 197, 205 (Iowa 1979) (stating jurors should “view the

merits of the particular circumstantial evidence presented without the restriction

based on an outmoded generality”); see also Iowa R. App. P. 6.904(3)(p) (“Direct

and circumstantial evidence are equally probative.”).

       Second, this case is distinguishable from Creighton on its facts. In

Creighton, the record was “completely silent” on whether the defendant was

intoxicated when he crashed his car into the ditch. Creighton, 201 N.W.2d at

473.   The court noted only the police officer testified at trial, there was no

evidence when the accident occurred, and no evidence refuted the claim that the

defendant became intoxicated after the accident. Id. Unlike the defendants in

Creighton, State v. Binning, No. 09-0866, 2010 WL 1375320, at *3 (Iowa Ct. App.

Apr. 8, 2010), or United States v. DuBois, 645 F.2d 642, 644–45 (8th Cir. 1981),

Kohlmeyer does not claim she consumed alcoholic beverages or became

intoxicated after the accident, only that the evidence does not show she was

intoxicated while she was operating a vehicle.

       The record contains substantial evidence to support a finding that

Kohlmeyer was intoxicated while she was operating the white SUV at the time of

the collision, not merely afterward. First, there is direct evidence from which the

jury could find that Kohlmeyer was intoxicated at the time of the collision.

Uncontested evidence showed she had consumed part of a pitcher of beer

shortly before the accident.   Also, based upon direct testimony from witness

Jackson, the jury could find that Kohlmeyer exhibited a physical sign of being
                                               7


intoxicated at the collision scene, when she exited the vehicle and was unsteady

on her feet.      In addition, circumstantial evidence of Kohlmeyer’s guilt was

presented. See Hopkins, 576 N.W.2d at 378 (discussing that operation while

intoxicated may be established by circumstantial evidence as well as direct

evidence); State v. Boleyn, 547 N.W.2d 202, 205 (Iowa 1996) (same).

Kohlmeyer operated a vehicle in such a manner as to run into the back of

another vehicle. See Truesdell, 679 N.W.2d at 616 (considering the manner in

which the defendant was driving in determining whether the defendant was under

the influence of alcohol); State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992)

(same); see also State v. Price, 692 N.W.2d 1, 3 (Iowa 2005) (“[C]onduct and

demeanor normally become important considerations in determining whether a

person is ‘under the influence’ under the first component of the statute.”).

        Further, the jury could reasonably infer that Kohlmeyer left the scene to

avoid being arrested for operating while intoxicated where nothing indicates she

had any other reason for fleeing before police arrived. See State v. Walker, 499

N.W.2d 323, 325 (Iowa Ct. App. 1993) (“Leaving the scene of the collision is

evidence of impaired judgment.”). A defendant’s lies to the police may also

reveal knowledge of guilt. See, e.g., State v. Cox, 500 N.W.2d 23, 25 (Iowa

1993) (“A false story told by a defendant to explain or deny a material fact

against [her] is by itself an indication of guilt . . . .”).

        When all of this evidence is taken together, there was substantial

evidence to support Kohlmeyer’s intoxication while she was operating the white

SUV, and the trial court did not err in denying her motion for judgment of acquittal

or in submitting the case to the jury.
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       B. Weight of the evidence

       The State first contends that Kohlmeyer’s motion for new trial only raised

the issue of substantial evidence—therefore not complying with Iowa Rule of

Criminal Procedure 2.24 (2)(b)(6)—and does not preserve this issue for appeal.

Upon review of the transcript of the hearing on the motion for new trial, we

observe that the trial court was adequately apprised of Kohlmeyer’s contention

that the jury verdict was against the “weight of the evidence” standard; the trial

court addressed this issue, and despite these words not being set out in the

motion, we find that the issue is preserved for our review.

       Iowa Rule of Criminal Procedure 2.24(2)(b)(6) allows the district court to

grant a new trial “[w]hen the verdict is contrary to law or evidence.” “Contrary to

the evidence” under the rule means contrary to the weight of the evidence. State

v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). “The ‘weight of the evidence’ refers to

‘a determination by the trier of fact that a greater amount of credible evidence

supports one side of an issue or cause than the other.’” Id. at 658 (alteration in

original) (quoting Tibbs v. Florida, 457 U.S. 31, 37–38 (1982)). “This is a more

stringent standard than the sufficiency-of-the-evidence standard.”      Nguyen v.

State, 707 N.W.2d 317, 327 (Iowa 2005). “[The court] may weigh the evidence

and consider the credibility of witnesses. If the court reaches the conclusion that

the verdict is contrary to the weight of the evidence and that a miscarriage of

justice may have resulted, the verdict may be set aside and a new trial granted.”

Ellis, 578 N.W.2d at 658–59. The district court’s discretion should be exercised

with caution and invoked “only in exceptional cases in which the evidence

preponderates heavily against the verdict.” Id. at 659.
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       Based upon the evidence that was before the trial court, we cannot say

that the greater weight of the evidence required granting Kohlmeyer’s motion for

new trial. Thus, we find no abuse of discretion.

      AFFIRMED.
