                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2094
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD LEE NEWMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      Richard Newman appeals his convictions for operating while intoxicated,

second offense, and first-degree eluding. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson and Tyler J. Buller,

Assistant Attorneys General, for appellee.



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

       A jury found Richard L. Newman guilty of operating a motor vehicle while

intoxicated (second offense) and first-degree eluding. See Iowa Code §§ 321J.2,

321.279(3)(b) (2016).       On appeal, Newman contends the evidence was

insufficient to support the findings of guilt.

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

elements of operating a motor vehicle while intoxicated: “1. On or about the 15th

day of July, 2016, the Defendant was operating a motor vehicle. 2. At the time,

the Defendant was under the influence of alcohol.” The jury was also instructed

on the elements of first-degree eluding, which required a finding “the Defendant

was operating the motor vehicle while under the influence of alcohol or drugs or a

combination thereof.”      Newman takes issue with the “under the influence”

element of both counts. He asserts, “The videos of [him] after he was pulled over

and at the police station do not show an intoxicated person.”

       The jury was instructed that a person is “under the influence” 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.”

       A reasonable juror could have found the following facts. A Des Moines

police officer observed Newman driving a car without a license plate. He turned

on his overhead lights and followed Newman into the parking lot of a store.

Newman drove through the lot and suddenly accelerated. The officer activated

his siren and pursued Newman down a large thoroughfare and through
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neighborhood streets at speeds of fifty to sixty-five miles per hour. The actual

speed limit in these areas was twenty-five to thirty miles per hour.

       Eventually, Newman crashed into a parked car, jumped out of his vehicle,

and ran. The officer gave chase and apprehended him. As he placed Newman

in handcuffs, the officer “could smell the odor of alcohol coming from” him. He

also noticed that Newman had “bloodshot eyes.” A partially consumed bottle of

brandy was found in Newman’s car. Newman admitted, “I’m gonna blow dirty

because I just had [a] swig.” See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa

2004) (noting defendant “acknowledged he consumed alcohol prior to the

incident”). The officer contacted another officer with expertise in OWI cases.

       The second officer also smelled alcohol on Newman and noticed his eyes

were “watery and bloodshot.” He testified Newman’s “speech was slurred,” “he

was swaying when he stood,” and there was “a brief stagger when he walked.”

Id. (citing police observation of “numerous signs of alcohol intoxication”). The

officer estimated he spent ten minutes with Newman at the scene, several

minutes transporting him to the Des Moines police station, and one-and-a-half to

two hours at the station.

       A reasonable juror could have found from these facts that Newman was

under the influence of alcohol. Although the first officer testified that he did not

hear Newman slurring his speech on his review of video recordings, the second

officer disagreed. Given the time the second officer spent with Newman, as well

as his expertise in OWI cases, the jury reasonably could have credited his

testimony over that of the first officer. See State v. Williams, 695 N.W.2d 23, 28
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(Iowa 2005) (determining the credibility of witnesses on motions for judgment of

acquittal is the province of the jury).

       The jury also could have given weight to Newman’s flight and the ensuing

high-speed chase and could have found his behavior indicative of “visibly excited

emotions” or impaired judgment. See Truesdell, 679 N.W.2d at 616 (“Truesdell

also drove the vehicle at a high rate of speed, and nearly struck store employees

in the parking lot.”); State v. Hintze, No. 12-2125, 2013 WL 5758018, at *2 (Iowa

Ct. App. Oct. 23, 2013) (stating the decision to flee “reveals his reasoning and

judgment were impaired”). Conversely, the jury could have placed little weight on

Newman’s lucid conversation with the officers following his apprehension. Even

if Newman’s “reason or mental ability” was intact, the jury only had to find the

evidence satisfied one of the four factors.

       The jury’s findings of guilt were supported by substantial evidence. See

State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (setting forth standard of

review). We affirm Newman’s convictions for operating while intoxicated (second

offense) and first-degree eluding.

       AFFIRMED.
