                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1284
                            Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES PHILLIP MORGAN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Des Moines County, Mark E.

Kruse, District Associate Judge.




      James Morgan appeals his conviction of operating while intoxicated, third

offense, asserting claims of ineffective assistance of counsel. AFFIRMED.




      William Ray Monroe of the Law Office of William Monroe, Burlington, for

appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

      James Morgan appeals his conviction of operating while intoxicated

(OWI), third offense, following a jury trial. He asserts his trial counsel rendered

ineffective assistance for failing to object to certain testimony and statements.

We affirm.

      I. Background Facts and Proceedings.

      Around midnight on November 16, 2013, Deputy Ryan Luttenegger

observed a U-Haul truck swerving on the highway, crossing both the centerline

and the fog line several times. The deputy activated his car’s emergency lights,

but the truck did not immediately stop. The deputy then turned on the sirens, and

the driver, James Morgan, eventually pulled over.

      The deputy’s body microphone and his patrol car’s camera recorded the

entire stop. The deputy had to suggest to Morgan that he put his truck in park so

that it would not continue to roll forward. The deputy asked where Morgan was

coming from, and Morgan told him he was coming from work. The deputy had

Morgan step out of the truck, and the video shows Morgan staggering as he gets

out of the truck, as well as the deputy helping Morgan walk to the back of the

truck, where Morgan stumbles. When asked if he had been drinking, Morgan

told the deputy, with slurred speech, he had had three drinks three hours earlier

while he was at work. The deputy told Morgan he could “smell alcohol coming

from [him],” and he asked Morgan if he would submit to a sobriety test. Morgan

refused and was arrested for OWI, third offense.
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      Morgan was placed in the back of the patrol car and transported to jail.

Morgan spoke during the drive to the jail, and his speech was slurred. After

exiting the patrol car in the jail’s sally-port, Morgan stumbled and continued to

talk with slurred speech.

      A jury trial was held in April 2014.        In his opening statement, the

prosecutor stated to the jury, among other things:

             The deputy will tell you that one of the very first things he
      noticed as he got up to the . . . open window is the strong smell of
      alcoholic beverage coming from inside of the vehicle. He was able
      to smell alcohol. And you will hear a recording that was made by
      the patrol vehicle that the deputy had been driving. And you’ll be
      able to see some of what happened. And you’ll be able to hear
      some of what happened. And you’ll be able to hear the deputy ask
      him about whether he had been drinking. And you’ll hear that
      [Morgan] admits he had three drinks.
             Eventually the . . . deputy asks [Morgan] to get out of the car.
      And you’ll hear that when that happens, [Morgan] gets out and
      actually falls or starts to fall back into the truck as he was getting
      out. The deputy, in essence, . . . has to help or starts to help
      [Morgan] walk towards the rear of the truck. The deputy . . . will tell
      you that . . . [Morgan] was somewhat unsteady on his feet.
             When they were at the back of the truck, the deputy will tell
      you that—and again he noticed that he was able to smell this
      strong smell of alcohol coming from [Morgan]. Now, this is despite
      the fact that they are outside. There is a breeze out there. Even
      given those factors, he can still smell the strong smell of alcohol
      coming from [Morgan].

Morgan’s trial counsel made no objections.

      Thereafter, the deputy testified essentially as the prosecutor stated he

would in the opening statement.      The deputy testified Morgan’s actions and

behaviors were consistent with a person under the influence of alcohol, based

upon the following:

      [Morgan’s] erratic driving, bouncing within its lane, crossing the
      centerline multiple times, crossing the fog line; initial
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       interaction . . . with the cab of his truck; smelling the alcohol very
       strongly; in allowing him to exit the vehicle, his movements were
       very unsteady on his feet; movements within the cab as far as very
       slow hand movements to try to grab items, such as his insurance
       and registration card; the fact that he knew he didn’t have a license
       and he had to search for his license for approximately a minute or
       so; the conversation outside the truck, still smelling the alcohol
       even though . . . we were outside in a very windy setting; the
       bloodshot, watery eyes; the time confusion, noting that he thought it
       was 10 p.m. when in reality it was midnight; the admission of
       drinking prior to getting in his vehicle; the reluctance to tell me what
       he had drank; and after arresting him and placing him in his vehicle,
       I continued to smell the alcohol from within my vehicle even though
       it had not smelled prior to that. And then the admission while at the
       jail in the intoxilyzer room of making the comment that the subject
       he was calling was probably drunker than he was at that time.

Morgan’s trial counsel made no objections. The video recording was also played

for the jury.

       After Morgan rested his case, the parties gave their closing arguments. At

the end of the State’s closing argument, the prosecutor concluded:

              Your job here, folks, is to do justice. As the jury members,
       you’re to do justice in this case. And the question that you have to
       ask yourself is are you convinced that he was driving, which I think
       is—there’s no question, and whether he was under the influence of
       alcohol. And I’m convinced that you will rely on your common
       sense that I know you all have and find that [Morgan] is guilty of
       OWI. Thank you very much for your time.

Morgan’s trial counsel made no objections. Ultimately, the jury returned a verdict

of guilty as charged.

       Morgan now appeals, asserting his trial counsel provided ineffective

assistance when counsel failed to object (1) to testimony and statements

concerning the smell of alcohol and (2) to alleged prosecutorial misconduct. We

address his arguments in turn.
                                          5



       II. Ineffective Assistance of Counsel.

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

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). We generally preserve

such claims for postconviction-relief proceedings where a proper record can be

developed. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). However, if the

record is sufficient to decide the issue, we may address the claims on direct

appeal. See State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the

record adequate here.

       To prevail on a claim of ineffective assistance of counsel, Morgan 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 Strickland v.

Washington, 466 U.S. 668, 687 (1984); Dempsey, 860 N.W.2d at 868. “We can

resolve ineffective-assistance-of-counsel claims under either prong of the

analysis.” State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).

       A. Smell of Alcohol.

       Morgan first argues his trial counsel was ineffective for failing to object to

testimony and statements concerning the smell of alcohol. Though he points out

the Iowa Supreme Court long ago stated it was common knowledge “that alcohol

has a distinctive odor,” see State v. Ling, 199 N.W. 285, 286 (Iowa 1924),

Morgan seems to argue that that knowledge is untrue or unproven. Alternatively,

he argues that even if we agree that alcohol has a distinctive odor, that a

defendant smells of alcohol is not proof of intoxication.
                                         6



       First, Morgan’s suggestion that the court’s statement in Ling—that alcohol

has a commonly-associated smell—is “utterly absurd” or “silly” is not supported

by any evidence or binding authority to the contrary. Perhaps there may not

always be a “smell” when a person consumes an alcoholic beverage, but it is still

well-known that there can be an odor following the consumption of alcoholic

beverages, and that smell is distinctive. See Ling, 199 N.W. at 286; Herbert

Moskowitz et al., Police Officers’ Detection of Breath Odors from Alcohol

Ingestion, 31 Accident Analysis & Prevention 175, 179 (1999) (finding that “there

were only small differences in the intensity of the odor as a function of the type of

[alcoholic] beverage” detected by officers in the study, suggesting “the fusel oils

and other chemical constituents of many alcoholic beverages are not the prime

determinant of odor after the beverage is fully absorbed” and “that what is

detected in the breath may be a constituent of the metabolization of alcohol”);

see also Lance Gooberman & Ashley E. Killeen, Using the Diagnostic and

Statistical Manual to Raise the NHTSA-Created Low Threshold for Diagnosing

Alcohol Intoxication, in Understanding DUI Scientific Evidence (2013 ed. 2013)

[hereinafter Using the DSM], Westlaw 2013 WL 6140723, at *12 (“The odor of an

alcohol beverage is primarily due to congeners. Congeners include [fusel] oils,

which are alcohols.”); Jack Stuster, Nat’l Highway Traffic Safety Admin., DOT HS

808 654, The Detection of DWI at BACs Below 0.10, 13-14 tbl.3 (Sept. 12, 1997)

(final report), ntl.bts.gov/lib/25000/25900/25950/DOT-HS-808-654.pdf (noting

that odor of alcohol was one of several post-stop cues indicating intoxication).
                                         7



       As to Morgan’s second statement, it is true that the smell of alcohol does

not, by itself, evidence a person is intoxicated. See, e.g., Taylor v. United States,

286 U.S. 1, 6 (1932) (“Prohibition officers may rely on a distinctive odor as a

physical fact indicative of possible crime; but its presence alone does not strip

the owner of a building of constitutional guaranties (Const. Amend. 4) against

unreasonable search.”); Using the DSM, 2013 WL 6140723, at *12 (“[T]he odor

of alcohol on the breath is only qualitative, not quantitative. The presence of

such an odor does not equate to intoxication: . . . ‘even under optimum laboratory

conditions, breath odor detection is unreliable . . . .’ In other words, the nose

does not know. It may be a detector, but it is certainly not a measuring tool.”

(citation omitted)). But “intoxication is an observable condition about which a

witness may testify.” 8 Am. Jur. 2d Automobiles § 982 (2016); see also State v.

Murphy, 451 N.W.2d 154, 156 (Iowa 1990) (noting “it has long been held that a

witness, either lay or expert, may testify to an ‘ultimate fact which the jury must

determine,’” including an officer’s personal observation regarding a defendant’s

insobriety (citation omitted)); State v. Kestle, 996 So. 2d 275, 279 (La. 2008) (“It

has been widely recognized that intoxication, with its behavioral manifestations,

is an observable condition about which a witness may testify.”).         “[C]ommon

indicia of intoxication include an odor of alcohol, bloodshot and watery eyes,

slurred speech, and an uncooperative attitude.”        61A C.J.S. Motor Vehicles

§ 1518 (2016); see also World Health Org., Dep’t of Injuries & Violence

Prevention, Alcohol and Injury in Emergency Departments: Summary of the

Report from the WHO Collaborative Study on Alcohol and Injuries, 3 (2007),
                                           8



http://www.who.int/substance_abuse/publications/alcohol_injury_summary.pdf

(stating evidence of mild and moderate alcohol intoxication includes smell of

alcohol on breath, behavioral disturbance in functions and responses, or difficulty

in coordination).     While “[p]roof . . . that the defendant’s breath smelled of

liquor . . . is not in itself sufficient to show that the defendant was intoxicated or

under the influence of intoxicating liquor,” “it is not necessary that the prosecution

show that the defendant was in a drunken stupor.” 8 Am. Jur. 2d Automobiles

§ 982.

         Here, the deputy testified he smelled the odor of alcohol coming from

Morgan, along with several other well-recognized intoxication indicators.

Because alcohol can be smelled on one’s breath, because detection of such is

an indicium of intoxication, and because an officer can testify about his personal

observations regarding a person’s insobriety, Morgan’s claim is without merit.

His trial counsel had no duty to object to the smell or odor testimony, and Morgan

has failed to establish his trial counsel was ineffective in this respect.

         B. Prosecutorial Misconduct.

         Morgan next contends his trial counsel was ineffective in failing to object

to several instances of alleged prosecutorial misconduct. In analyzing Morgan’s

ineffective-assistance-of-counsel claim concerning prosecutorial misconduct,

         our first step is to assess whether the record demonstrates, as a
         matter of law, the existence or absence of a meritorious due
         process violation. Thus, we must consider whether the prosecutor
         was guilty of misconduct in the particulars identified by [the
         defendant] and whether the record shows [the defendant] was
         prejudiced, i.e., denied a fair trial.
                 If . . . the record shows that either element is lacking as a
         matter of law, we will affirm [the defendant’s] conviction without
                                          9



         preserving his due process claim for a later postconviction relief
         action.

State v. Graves, 668 N.W.2d 860, 869-70 (Iowa 2003).

         “It is of course the duty of a prosecuting officer to present the [S]tate’s

cause zealously and effectively within proper bounds,” State v. Comes, 62

N.W.2d 753, 757 (Iowa 1954), and “some latitude” is given to a prosecutor’s

closing arguments that scrutinize the evidence admitted at trial. See Graves, 668

N.W.2d at 874. Specifically, the prosecutor is permitted to “argue the reasonable

inferences and conclusions to be drawn from the evidence.” Id. “[M]isconduct

does not reside in the fact that the prosecution attempts to tarnish [a] defendant’s

credibility or boost that of the State’s witnesses; such tactics are not only proper,

but part of the prosecutor’s duty.” State v. Carey, 709 N.W.2d 547, 556 (Iowa

2006).     However, the prosecutor cannot assert a personal opinion, create

evidence, misstate the law, or suggest that the jury decide the case on any

ground other than the weight of the evidence introduced at trial. See State v.

Shanahan, 712 N.W.2d 121, 139-40 (Iowa 2006); Graves, 668 N.W.2d at 874;

State v. Williams, 334 N.W.2d 742, 744 (Iowa 1983).            Nevertheless, “[t]he

governing principle does not preclude all personalized remarks; it merely

precludes those that do not appear to be based on the evidence.” Williams, 334

N.W.2d at 745.

         1. Support of Morgan’s Weight.

         Morgan first argues

         there was prosecutor misconduct during the trial in that the State
         asserted the [deputy] had to support [Morgan’s] weight “a few
         times” when [Morgan] walked from the front to the back of his truck
                                           10



       after being stopped. However, the video clearly shows that the
       officer did no such thing. Further, given the obvious sheer physical
       bulk of Morgan and that Deputy [Luttenegger] is much smaller and
       held his arm out at a 45 degree angle from his body while walking
       casually and even swaying from side to side slightly himself, it was
       not physically possible for [Luttenegger] to support Morgan’s weight
       without having shown some effort to do so during the video. The
       video shows no such physical effort on behalf of the [d]eputy.
       Instead, the [d]eputy and [Morgan] casually walk to the back of the
       truck with the deputy merely holding onto [Morgan’s] belt and it is
       obvious the [d]eputy is supporting nothing but his own arm’s weight
       during this entire time.
               [Morgan’s trial] counsel was ineffective for failing to object to
       the [d]eputy’s testimony in this regard because this was simply
       completely untrue.

       Having viewed the video, we believe it depicts the deputy supporting

Morgan’s weight when Morgan was walking to the back of the truck and when he

was in the jail’s sally-port.       The prosecutor’s statements were certainly not

“completely untrue.” In any event, the jury viewed the video and was able to

make its own determination of whether the deputy’s testimony, including that he

had to support Morgan’s weight, was credible. See State v. Nitcher, 720 N.W.2d

547, 556 (Iowa 2006). “The jury is free to believe or disbelieve any testimony as

it chooses and to give weight to the evidence as in its judgment such evidence

should receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The “very

function of the jury is to sort out the evidence presented and place credibility

where it belongs.” State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984); see also

State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (“It is not the province of the

court . . . to resolve conflicts in the evidence, to pass upon the credibility of

witnesses, to determine the plausibility of explanations, or to weigh the evidence;

such matters are for the jury.”).
                                          11



          The prosecutor’s statements were reasonable inferences and conclusions

that could be drawn from the evidence presented at trial. Because there was no

prosecutorial misconduct in this respect, Morgan’s trial counsel had no duty to

object.     Consequently, Morgan has failed to establish his counsel rendered

ineffective assistance on this point.

          2. Opinion Statements in Closing Arguments.

          Finally, Morgan asserts the prosecutor “also improperly asserted his own

opinion as to Morgan’s guilt during final arguments.”       However, we are not

convinced the prosecutor injected a personal opinion in his closing argument.

The prosecutor clearly stated to the jury that its task was “to do justice in this

case” and that it was to determine if the State proved Morgan was guilty of OWI.

          Nevertheless, even if the prosecutor had engaged in any misconduct,

Morgan has not established he did not receive a fair trial. See Graves, 668

N.W.2d at 869 (“[I]t is the prejudice resulting from misconduct, not the

misconduct itself, that entitles a defendant to a new trial.”). There was strong

evidence of Morgan’s guilt, beyond the deputy’s observation of the odor of

alcohol coming from Morgan. The video shows the truck swerving and Morgan

talking with slurred speech, stumbling, and generally acting the way an

intoxicated person acts. Morgan even admitted he had been drinking, though he

claimed it was three hours earlier, and then proceeded to demonstrate he did not

know the time. One of these evidentiary items, by itself, might not support a

strong inference of intoxication.       But here, the many indicia of intoxication
                                         12



demonstrated by Morgan, directly observable on the videotape, support the guilty

verdict. Morgan has failed to establish his counsel was ineffective in this regard.

       III. Conclusion.

       Because Morgan has failed to establish his trial counsel rendered

ineffective assistance, we affirm his conviction of OWI, third offense.

       AFFIRMED.
