                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0068
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM EDWARD HUNT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Bradley McCall,

Judge.



      A defendant appeals his conviction for operating while intoxicated.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
                                          2


TABOR, Judge.

       William Hunt appeals his conviction for operating while intoxicated (OWI),

alleging he was prejudiced by the jury’s consideration of a computer-generated

printout documenting his incomplete breath-test result. He also contends his trial

counsel should have objected to statements made by the prosecutor in closing

argument. Because Hunt is unable to show he was prejudiced in either regard,

we affirm.

   I. Facts and Prior Proceedings

       Trooper Thomas Clark with the Iowa State Patrol responded to a radio

dispatch reporting an erratic driver traveling westbound on Interstate 80 near

Waukee about 10 p.m. on January 9, 2015.              The dispatcher had received

multiple 911 cellular telephone calls from other motorists concerned about a

pickup pulling a travel trailer that was “all over the road.” Trooper Clark found a

Chevy Avalanche in that area matching the callers’ descriptions and pulled in

directly behind it, observing “it was off on the right shoulder fully crossing into the

left lane more than once.” The trooper also noted the Avalanche was speeding:

“It wasn’t excessive speed for the Interstate system at least, probably upper 70s

at that point, but it was still odd that a vehicle pulling an RV would be passing

people, especially going into a curve.” As the Avalanche was “traversing the

curve, it began to fishtail.” It appeared to the trooper that the driver was losing

control and decided to pull him over “before it did crash or hit somebody.”

       Trooper Clark activated his lights and siren, but Hunt, the driver, continued

traveling on the shoulder for another mile. When the trooper approached the

vehicle, Hunt did not respond for “probably five seconds,” so the trooper knocked
                                        3


on the passenger front window. Hunt still did not react so the trooper opened the

unlocked door. Hunt also was slow to gather his driver’s license and proof of

insurance, and the trooper could “smell a moderate odor of alcohol within the

vehicle.”

       On account of the cold and windy conditions, Trooper Clark brought Hunt

into his patrol car for a conversation. According to the trooper, Hunt displayed

impaired balance and was “hugging close” to the patrol car for support. Once

inside the patrol car, the trooper smelled a stronger odor of alcoholic beverage

coming from Hunt. When the trooper asked Hunt several times if he had been

drinking, Hunt answered with the non sequitur—“I’m just cruising.”

       The trooper conducted a horizontal gaze nystagmus (HGN) test inside the

patrol car, which Hunt failed, registering a maximum of six clues indicating

intoxication. The trooper also noticed Hunt’s eyes were watery and bloodshot.

Because of the bitter weather, the trooper conducted only one field sobriety test

outside the car—the one-leg stand. Hunt swayed and put his foot down several

times during the test, at one point nearly falling over. After the test, Trooper

Clark assisted Hunt back into the car fearing he “was going to stumble into the

ditch at that point.”

       The trooper placed Hunt under arrest for OWI, invoked implied consent,

and requested a breath sample on the DataMaster DMT at just before midnight.

In the trooper’s view, Hunt did not “properly participate” in the DataMaster

process:

       He was giving very short breaths, abbreviated, would start blowing
       lightly and then would stop, and I was verbally coaching him
       through it, telling him “You need to be a long, consistent breath.”
                                           4


       The DataMaster has an error tone when there’s too low of flow, not
       a sufficient flow, it will make a tone advising that.
               It doesn’t have to be an overly hard or forceful breath, but it’s
       got to be a really long breath.

       Hunt’s weak and broken flow of air caused the DataMaster to emit an

“alert tone” and when the machine had run through its cycle and was ready to

accept a sample, it flashed a pop-up box asking “Subject refused? Yes or no.”

The trooper checked yes, indicating Hunt’s refusal due to his “lack of

participation.” Hunt did not tell Trooper Clark that he had a breathing condition

that would impact his ability to provide a breath sample.

       The State charged Hunt with OWI, first offense, in violation of Iowa Code

section 321J.2 (2015). His case came before a jury in December 2015. Defense

counsel filed a motion in limine seeking to exclude testimony concerning results

from the failed DataMaster test as unduly prejudicial under Iowa Rule of

Evidence 5.403. In a pretrial hearing, defense counsel argued because the test

was not completed, there was “no foundation for the result.” He continued: “I

understand they are not spitting out a number, but the very nature of testimony

saying that there is alcohol in his breath is unfairly prejudicial to him.”

       The State resisted, explaining its plan to offer expert testimony from

James Bleskacek, a criminalist with the Iowa Division of Criminal Investigation,

concerning the insufficient breath volume, “meaning the defendant wasn’t

essentially blowing hard enough for the test to create a valid result.” The State

continued:

       At that point the officer actually is the one that deems it a refusal.
       But the machine does and is able to—even with small amounts of
       breath, is able to detect the presence of alcohol. My understanding
       is that although he could testify as to sort of a number in terms of
                                          5


       how we think of the breath alcohol volume, he will not do that. He
       can simply testify and will simply testify that there was alcohol
       present in the sample.

The State asserted the evidence was not unfairly prejudicial because the

presence of alcohol in Hunt’s system was probative of the issue of intoxication.

       The district court overruled the defense motion in limine as to the failed

DataMaster result, calling it “an evidentiary question.” The court ruled:

       If there is a sufficient foundation to get the result in, in other words,
       testimony by an expert that despite an incomplete test, the machine
       can accurately tell us whether there was some alcohol or no
       alcohol, I think that conclusion is admissible. But the State is going
       to have to lay a proper foundation as to whether or not the machine
       can actually tell us that.

       At trial, defense counsel did not object when the State offered as an

exhibit a printout showing Hunt’s failed attempt to provide an adequate breath

sample. The State also called criminalist Bleskacek, who described his primary

responsibilities as “the maintenance and upkeep of the evidential breath

instruments used throughout the State of Iowa,” including the DataMaster used

by Trooper Clark.     Bleskacek testified that the DataMaster printout showed

Hunt’s name as the test subject and the machine’s quality assurance information.

The exhibit also featured “a graphical display of how the instrument viewed both

the alcohol level and the subject’s breathing into the instrument in real time.”

       Bleskacek explained that for a completed test the DataMaster requires a

subject to produce about “three liters of air per minute” which is “just above the

noise level of the detecter for that system. Not much more than a whisper.”

Looking at the chart on the State’s Exhibit 3, Bleskacek opined that Hunt

provided “a very poor quality breath” sample.           Also based on that chart,
                                         6


Bleskacek told the jury that the instrument measured some amount of alcohol in

Hunt’s breath. The State did not ask about the level of alcohol shown in the

printout.    Defense counsel did not object to Bleskacek’s opinions during his

testimony.

       Hunt, a Minnesota native, took the stand in his own defense. He testified

that on the January night he was stopped in Iowa he was heading “somewhere

south” where it would be warmer. He described breathing problems and other

health conditions related to his military service in the Persian Gulf. Hunt also

recounted assaults he had suffered that injured his ankle and knees. He testified

that when he was stopped by Trooper Clark, his thirty-foot travel trailer was

swaying from the wind and he was looking for a place to pull over. Hunt also told

the jury that before he was stopped he had consumed “a health drink”—“a chia

drink from GNC” that “said it contained alcohol.”

       The jury returned a verdict of guilty. The district court sentenced Hunt to

365 days in jail, all but thirty days suspended, and one-year probation, along with

a fine, court costs, surcharges, and attorney fees. Hunt now appeals.

   II. Scope and Standards of Review

       We review claims of ineffective assistance of counsel de novo because

they test the constitutionality of the proceedings. State v. Webster, 865 N.W.2d

223, 231 (Iowa 2015). Hunt’s underlying claim concerning admission of evidence

showing his failed DataMaster test, if preserved, would be reviewed for an abuse

of discretion. See State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013). An abuse

occurs when the court exercises its discretion “on grounds or for reasons clearly
                                            7

untenable or to an extent clearly unreasonable.” State v. Long, 814 N.W.2d 572,

576 (Iowa 2012).

    III. Analysis

    A. DataMaster Printout

       Hunt contends the district court abused its discretion in rejecting his

request to exclude his failed DataMaster test as lacking “foundation for the result”

and as unduly prejudicial under rule 5.403.1 The State argues that because the

ruling on Hunt’s motion in limine was not final as to the admissibility of the

evidence, Hunt may only raise his evidentiary claim under an ineffective-

assistance-of-counsel framework. We agree the district court’s ruling required

additional action on the part of defense counsel to preserve error. See Webster,

865 N.W.2d at 242 (finding evidentiary claim not preserved where limine ruling

was only preliminary). On appeal, Hunt floats an alternative argument that trial

counsel was ineffective for not objecting during the testimony of Bleskacek, the

State’s DataMaster expert. Accordingly, we examine this issue as ineffective

assistance of counsel.

       To succeed on his ineffective-assistance claim, Hunt must prove by a

preponderance of the evidence both that trial counsel breached an essential duty

and prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Failure to prove either prong of the Strickland test is fatal to Hunt’s claim. See

State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). While we often preserve


1
  That rule provides: “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Iowa R. Evid. 5.403.
                                         8

claims of ineffective assistance for postconviction relief proceedings, see State v.

Utter, 803 N.W.2d 647, 651 (Iowa 2011), we find the record adequate to address

the issue here.

      Hunt alleges counsel breached a duty by not objecting when Bleskacek

engaged in the following exchange with the prosecutor concerning the top line of

the DataMaster printout (pictured in Exhibit 3 below):

             Q. Let’s talk about that second line. What does that line
      indicate? A. The second line, or the higher line up there, indicates
      the alcohol level seen by the instrument while the subject is
      providing a breath.
             Q. Is that measured in real time, so to speak? A. It is.
             Q. And what assurances do we have that that’s accurate?
      A. Well, that’s the alcohol equivalent seen by filter 1, which is the
      ethanol filter of this instrument, seen at normal time. Had the test
      gone to completion, other safeguards would have activated to
      ensure that it truly was ethyl alcohol on his breath being seen on
      that. So since the test did not go to completion, some of those
      safeguards did not fire.

                                     Exhibit 3
                                            9



         Hunt contends the expert’s references to “other safeguards” that were not

activated by the DataMaster “cast doubt on the accuracy of the alcohol level, in

light of the incomplete nature of the test administered” to him.            He asserts

counsel should have objected “at this point” in Bleskacek’s testimony.2

         The State cites the statutory presumption of admissibility in chapter 321J,

which states:

                Upon the trial of a civil or criminal action or proceeding
         arising out of acts alleged to have been committed by a person
         while operating a motor vehicle in violation of section 321J.2 or
         321J.2A, evidence of the alcohol concentration or the presence of a
         controlled substance or other drugs in the person’s body at the time
         of the act alleged as shown by a chemical analysis of the person’s
         blood, breath, or urine is admissible. If it is established at trial that
         an analysis of a breath specimen was performed by a certified
         operator using a device intended to determine alcohol
         concentration and methods approved by the commissioner of public
         safety, no further foundation is necessary for introduction of the
         evidence.

Iowa Code § 321J.15.

         The State contends even if a prosecutor does not strictly comply with this

statute or related administrative regulations, the evidence is still admissible

unless “it can be demonstrated that the test results are so unreliable as to

preclude consideration.” See State v. Stratmeier, 672 N.W.2d 817, 821 (Iowa

2003).

         We do not believe section 321J.15 governs the question before us

because the State was not offering “evidence of alcohol concentration” but rather

2
  By the time Bleskacek took the witness stand, the DataMaster printout had already
been offered into evidence without objection through the testimony of Trooper Clark.
Generally, we will not find admission of evidence is prejudicial “where substantially the
same evidence is in the record without objection.” See Linge v. Iowa State Highway
Comm’n, 150 N.W.2d 642, 648 (Iowa 1967).
                                          10


offering a mere confirmation that Hunt had consumed some amount of ethyl

alcohol on the night in question.3      Accordingly, whether Trooper Clark used

approved methods for conducting the DataMaster test does not determine the

need for further foundation under the statute. The question before us is a more

generic one—Did the State demonstrate the reliability of Bleskacek’s opinion

regarding the DataMaster printout? See State v. Hall, 297 N.W.2d 80, 85 (Iowa

1980) (“Any weaknesses in the analysis could have been, and we presume they

were, pointed out by cross-examination, with the ultimate weight of the evidence

determined by the jury.”), modified, Ranes v. Adams Labs., Inc., 778 N.W.2d 677

(Iowa 2010).

       We find the State presented sufficient foundation to admit Bleskacek’s

views on the DataMaster printout. The expert4 testified the machine passed all of

its initial checks.5 He also dismissed concerns about common substances that

could interfere with an accurate ethyl-alcohol reading.           For instance, the

phenomenon of a subject vomiting and raw alcohol being present in the mouth

would be detected even if the subject did not provide a full breath sample.

Bleskacek discussed different filters within the instrument that would look for

3
  We take no position on the question whether the State could have offered evidence of
Hunt’s blood alcohol concentration based on the incomplete test, but we note other
jurisdictions have allowed evidence of alcohol concentration generated with deficient
breath samples. See State v. McIntyre, 863 N.W.2d 471, 474 (Neb. 2015) (concluding
evidence of a chemical breath test that records a deficient sample is admissible if the
State lays sufficient foundation); see also United States v. Brannon, 146 F.3d 1194,
1196 (9th Cir. 1998); State v. Mazzuca, 979 P.2d 1226, 1228–29 (Idaho Ct. App. 1999);
People v. DeMarasse, 647 N.E.2d 1353, 1354 (N.Y. 1995); State v. Conrad, 421 S.E.2d
41, 45 (W. Va. 1992).
4
  Hunt does not challenge the witness’s qualifications.
5
  We find this situation is distinct from State v. Wolfe, 369 N.W.2d 458, 460 (Iowa Ct.
App. 1985), where our court found an external reading of the defendant’s blood alcohol
concentration from an intoxilyzer machine was not admissible when the State did not
show the machine was functioning properly.
                                        11


“interfering substances” other than ethyl alcohol if an adequate sample is given;

for example, if the subject being tested is a diabetic who has acetone on his

breath or has “huffed” a compound containing difluoroethane, the machine would

flag interference to the measure of ethyl alcohol. But neither of those examples

applied to Hunt.

       As the State argues, the DataMaster printout was relevant for two

purposes: (1) to corroborate the trooper’s determination that Hunt refused the

breath test through non-cooperation and (2) to establish Hunt had some level of

alcohol in his system. The lower, dotted line on the chart illustrated Trooper

Clark’s testimony that Hunt consistently failed to deliver a sufficient volume of

breath to register a completed test.         The upper, solid line revealed a

measurement of more than zero alcohol in Hunt’s system, which made it more

likely he was driving under the influence.

       We are not swayed by Hunt’s assertion the jurors would have been

confused by the unexplained 0-to-40 scale on the right side of the graph. Hunt

ventures that his score of between 26 and 33 in breath alcohol could have

wrongly led the jurors to believe he was over the per se blood alcohol limit of .08.

The State counters that a reasonable juror “would have recognized 26.67 is not a

blood alcohol number and that the prosecutor told the jury it was not providing

the jury with a blood alcohol number.” We find the State’s position more logical.

The probative value of the DataMaster printout was not substantially outweighed

by the danger of unfair prejudice. See Webster, 865 N.W.2d at 242 (discussing

two-part balancing test under rule 5.403).     Hunt has not established his trial

counsel had a duty to object at any point in Bleskacek’s testimony. See State v.
                                         12

Smothers, 590 N.W.2d 721, 724 (Iowa 1999) (holding counsel has no duty to

advance a meritless objection).

         But even if defense counsel had a duty to object to the unexplained scale

of numbers on the right-hand side of the exhibit, Hunt cannot show that he was

prejudiced by counsel’s omission.      Prejudice exists if “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”         Strickland, 466 U.S. at 694.       “A

‘reasonable probability’ means a ‘substantial,’ not ‘just conceivable,’ likelihood of

a different result.” See State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012)

(citation omitted) (explaining counsel’s error must “undermine our confidence in

the verdict” (citation omitted))

         The jury was asked to decide if Hunt was operating while under the

influence of an alcoholic beverage, not whether he was over the per se legal

limit.   The jury was instructed that a person could be considered under the

influence of liquor when his reasoning or mental ability was affected; his

judgment was impaired; his emotions were visibly excited; or he had, to any

extent, lost control of bodily actions or motions. See In re S.C.S., 454 N.W.2d

810, 814 (Iowa 1990). The State presented the jury with abundant evidence that

Hunt was under the influence. See State v. Benson, 506 N.W.2d 475, 477 (Iowa

Ct. App. 1993) (finding defendant was not prejudiced by erroneously admitted

evidence where record contained strong indications of intoxication).          Three

motorists independently called authorities to report Hunt’s erratic driving. The

trooper confirmed Hunt was speeding and fishtailing through a curve. Hunt drove

on the right shoulder of the highway for one mile after the trooper signaled him to
                                         13


stop. Hunt did not initially react when the officer knocked and shone his flashlight

into the truck. Hunt had serious difficulty in controlling his bodily movements,

using the patrol car for balance. Hunt smelled of alcohol, and his eyes were

bloodshot and watery.       He had trouble retrieving his license and proof of

insurance.    Hunt’s mental impairment was evident when his answers did not

respond to the trooper’s questions. Hunt also failed the one-leg stand and HGN

tests.    See S.C.S., 454 N.W.2d at 814 (finding similar “classic signs of

intoxication” supported under-the-influence finding). Moreover, Hunt does not

contend the State could not offer evidence of Hunt’s test refusal. See Iowa Code

§ 321J.16; see also State v. Massick, 511 N.W.2d 384, 387 (Iowa 1994)

(allowing jury to consider test refusal as evidence in trial for operating under the

influence). Given the overwhelming evidence of his impairment, Hunt cannot

show that but for the admission of the DataMaster printout there was a

reasonable likelihood of a different outcome. See Madsen, 813 N.W.2d at 729

(finding counsel’s deficient performance did not undermine confidence in

outcome given overwhelming evidence of guilt).

   B. State’s Closing Argument

         As his second claim of ineffective assistance, Hunt contends trial counsel

was remiss in not objecting during the prosecutor’s closing argument. First, Hunt

contends the prosecutor misstated the record in two respects: (1) that the

incomplete DataMaster test indicated the presence of alcohol in his system and

(2) that he denied drinking.

         At issue are the following passages from the State’s summation. First, the

prosecutor discussed the DataMaster exhibit.
                                        14


       [T]he final thing that shows that the defendant was under the
       influence is the presence of alcohol in that DataMaster test, and
       that’s what the defendant can’t get around. The presence of
       alcohol confirmed what Trooper Clark was seeing in all of the
       interactions that he had with him. It confirmed that the defendant
       had been drinking alcohol. Now, we don’t have a number we are
       going to give you because the defendant messed with that breath
       test.

Then the prosecutor highlighted Hunt’s representations about his consumption of

alcohol that night.

               The defendant denies drinking.          And one of those
       instructions tells you that you can believe all, part, or none of a
       witness’s testimony, and that includes the defendant.
               It also tells you that you can consider the interest of the
       witness in the outcome of this trial. If the defendant admits to you
       that he had been drinking, even a little bit, it makes it more likely
       that you will convict him of this charge. So he has to hedge his bet.
               Although the officer directly asked him if he had been
       drinking, he didn’t answer the question. He now says he had a chia
       drink that may have contained alcohol. He’s not really sure.
       There’s no evidence that the chia drink actually exists. The officer
       didn’t find any open containers of alcohol in the car. There is no
       evidence that that would have any effect on his ability to perform
       any of these tests.

       When viewed in context, the prosecutor’s arguments related back to

specific evidence in the record, contained legitimate inferences from that

evidence, and were delivered in a professional manner. See State v. Carey, 709

N.W.2d 547, 556–57 (Iowa 2006). The State’s references to the DataMaster test

showing alcohol in Hunt’s breath juxtaposed with Hunt’s benign admission to

consuming a “health drink” that may have contained alcohol were fair points

derived from the record and did not call for objection from defense counsel. The

prosecutor punched hard but not below the belt. See Berger v. United States,

295 U.S. 78, 88 (1935) (distinguishing between a prosecutor leveling “hard

blows” from “foul ones”).
                                        15


       Hunt also contends the prosecutor committed misconduct by “attacking

the credibility of the defendant and vouching for the credibility of Deputy Thomas

Clark.” Hunt cites the following passage as impermissible vouching:

              [The beyond-a-reasonable-doubt instruction] tells you that
       you don’t need to hunt for doubt. If you believe that the officer is
       credible and that what he testified to is consistent with the video,
       and what the video shows is consistent with what the law shows
       you, you don’t need to hunt for explanations in this case.

       Hunt further argues the prosecutor violated the prohibitions in State v.

Graves, 668 N.W.2d 860, 876 (Iowa 2003), by making the following assertions

about his credibility:

              The defendant simply isn’t credible. You think about where
       he explained he was headed. If you are coming from Minneapolis
       and headed to Kansas, that I-35 sign tells you Kansas City, go
       south. The defendant gets off and goes westbound. It doesn’t
       make sense, if he wants to go somewhere warmer, so he heads
       from Iowa to Nebraska? That’s the direction he was headed. And
       looking for a place to rest his 30-foot trailer also doesn’t make
       sense, because if you are going further south there is almost
       assuredly going to be the same opportunities for any type of rest
       stop, any type of campground. Southern Iowa, western Iowa,
       northern Missouri, they are all going to have the same opportunities
       for the defendant to rest his trailer. He isn’t making sense about
       what happened. He is not being honest with you about his actions
       on that day.

       Neither argument was improper. The prosecutor did not personally vouch

for the trooper’s veracity but rather left that determination up to the jurors with

guidance from the jury instructions.         Unlike the situation in Graves, the

prosecutor here did not distort the burden of proof. See 668 N.W.2d at 880.

Likewise, the prosecutor did not use the inflammatory term “liar” to diminish Hunt

before the jurors. See id. at 876. Instead, the prosecutor tied her argument that

he was not credible to what she viewed as inconsistent testimony about his
                                         16

destination. Defense counsel had no duty to object. See Carey, 709 N.W.2d at

558–59 (distinguishing Graves and rejecting claim of misconduct though

prosecutor suggested defendant “had been less than truthful regarding his

version of events”).

       To recap, Hunt has not shown his trial counsel rendered ineffective

assistance in regard to either the incomplete DataMaster test or the State’s

closing argument. Accordingly, we affirm his conviction.

       AFFIRMED.

       Vogel, P.J., concurs; Mullins, J., concurs specially.
                                          17


MULLINS, J. (concurring specially)

       I would find trial counsel breached an essential duty in failing to object to

the admissibility of the DataMaster printout, which contained a scale of numbers

that were not explained and would likely lead to confusion and speculation by

reasonable jurors.    However, I agree with the majority that even assuming

counsel should have objected, the evidence of Hunt’s guilt was overwhelming

and Hunt did not demonstrate there was a reasonable likelihood of a different

outcome if the printout had not been admitted into evidence. For those reasons,

I concur in the result but write separately.
