                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1435
                              Filed August 19, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GUY CHRISTOPHER JOHNS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Buena Vista County, Charles K.

Borth, District Associate Judge.



      A defendant appeals his conviction for driving while barred. REVERSED

AND REMANDED.



      Richard J. Bennett Sr. of Bennett Law Office, Des Moines, for appellant.

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

General, Ryan Ashley, Student Legal Intern, Dave Patton, County Attorney, and

Paul Andrew Allen, Assistant County Attorney, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, P.J.

       Guy Johns appeals his conviction for driving while barred as a habitual

offender, an aggravated misdemeanor, in violation of Iowa Code section 321.560

(2013). He contends the State failed to prove both the notice element of the

licensure bar and the act of driving. Because we find the State failed to prove

beyond a reasonable doubt that the Iowa Department of Transportation (DOT)

mailed the notice of barred status to Johns, we reverse his conviction.

       The State alleged Johns committed the offense on August 23, 2013, when

Storm Lake Police Officer Breana Pearson saw him driving a U-Haul truck.

Officer Pearson recognized Johns as having a barred license and arrested him

when the truck reached its destination. On August 5, 2014, a jury convicted

Johns of driving while barred. The court denied his motion for new trial and

sentenced him to two years in prison, suspended the term, and ordered him to

serve probation.     On appeal, he contends the State presented insufficient

evidence of his guilt or, alternatively, that the guilty verdict was against the weight

of the evidence.

       We review his sufficiency-of-the-evidence claim for correction of legal

error. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). If we were to

reach his new trial issue, we would apply an abuse-of-discretion standard. See

State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).             But because we find

insufficient evidence, our analysis stops there.

       To convict Johns of driving while barred, the jury was required to find proof

of two elements: (1) he was operating a motor vehicle and (2) at that time, his
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driver’s license was barred as a habitual offender and he had notice of the status

of his license. See Iowa Code §§ 321.560, 321.561; State v. Wise, 697 N.W.2d

489, 492 (Iowa Ct. App. 2005). On the second element, the State did not have to

show Johns actually knew his license was barred. See State v. Carmer, 465

N.W.2d 303, 304 (Iowa Ct. App. 1990).           But the State was required to offer

evidence that the DOT actually mailed the notice of his barred status to his last

known address.       See State v. Green, 722 N.W.2d 650, 652 (Iowa 2006)

(interpreting saving provision at Iowa Code section 321.16). Solely furnishing a

copy of the notice found in the DOT files will not satisfy that element. Id. Proof

of the DOT mailing the license notice may be accomplished, for example, by an

affidavit of mailing or by a certified mail receipt. Id.

       On appeal, Johns points out that the State did not offer an affidavit of

mailing or a certified mail receipt for the notice. Instead the State presented the

testimony of Amy Sievers, a field supervisor for the DOT office of driver services.

She testified she supervised the records work of the DOT stations in Spencer

and Sioux City. Through her testimony, the prosecutor offered State’s Exhibits 4,

5, and 6: (4) Johns’s certified driving record dated March 24, 2012; (5) a certified

official notice of the effective dates that his driver’s license would be barred; and

(6) a certificate of bulk mailing from the United States Postal Service showing

327 identical pieces of first class mail were postmarked on March 28, 2012. As

Johns argues on appeal: “the certificate of bulk mailing bears no words,

numbers, or symbols to show that defendant’s notice was one of the 327 pieces

of mail sent on March 28, 2012.”
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       Sievers testified on direct examination that the official notice was kept as

part of Johns’s official driving records and indicated his privileges were barred

from April 28, 2012 until April 27, 2014. Sievers also testified the bulk mail

certificate was kept as part of Johns’s official driving record and indicated “when

the official notice would have gone out.”

       During Sievers’s cross-examination, the following exchange occurred:

              Q. Did you mail off 327 notices of license revocation or
       barment that day or just 327 notices? A. It would have been 327
       notices of the—of the official notice itself.
              Q. Okay. But the 327 there, you don’t know, actually know if
       Mr. Johns’ letter was in that billing? A. Yeah. I would say yes,
       because it’s got the same date, and that’s how our certificate from
       the postal service—that’s how we keep track that they have gone
       out.

       Sievers further testified the official notice was typed on March 24, and

“[t]he mail went out March 28th is when we got our receipt.” When asked why

the postal service receipt did not bear the same date as the notice, Sievers

testified: “it just depends.” She said if the notice was generated on a Friday, “we

wouldn’t mail it out until Monday and that’s why the receipt would be different.”

Sievers’s explanation of the difference in dates was not particularly enlightening,

as March 24, 2012, the date of the notice, fell on a Saturday, and March 28,

2012, the date of the bulk mail receipt, was a Wednesday.

       In its responsive brief, the State argues “Sievers did not hesitate in

confirming that Johns’s notice was among those mailed out in the bulk mailing.”

The State continues: “This unimpeached testimony, coupled with the certificate of

bulk mailing, is presumptive proof that notice was served, a presumption that

Johns has failed to overcome with any contrary evidence or testimony.”
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       We disagree with the State’s portrayal of the mailing evidence. It is not

clear from Sievers’s testimony what her role was in the DOT process of mailing

official notices. She generally stated: “Notices are sent out if somebody is going

to lose their driving privilege for a certain reason.” When asked about State’s

Exhibit 5, the official notice of Johns’s barment, Sievers initially testified that it

was “mailed out on March 24th, 2012”—though she later acknowledged the bulk

mailing receipt bore a date stamp of March 28, 2012. We also note although

Sievers supervises DOT stations in northwest Iowa, the bulk mailing notice

indicates the pieces of mail were sent from Des Moines.

       In her testimony, Sievers did not confirm Johns’s notice was among the

327 pieces of bulk mail described on the postal service receipt. Instead she

assumed his March 24 notice was in the March 28 mailing because the dates

were close in time. That assumption does not satisfy the State’s burden of proof

as articulated in Green, 722 N.W.2d at 652.         There, the supreme court said

furnishing a copy of a DOT notice found in its files did not prove the notice was

actually mailed. Green, 722 N.W.2d at 652. Here, the State also offered a bulk

mail receipt that Sievers testified was kept as part of Johns’s official driving

record. But that receipt does not indicate Johns’s notice was among the pieces

of mail sent out. And Sievers did not explain the DOT process for placing the

bulk mailing receipt into a driver’s record.

       The State characterizes Sievers’s testimony as “unimpeached.” But her

cross-examination highlighted that she did not have actual knowledge Johns’s

notice was included in the 327-piece mailing. The State also suggests Johns
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carried the burden to overcome the presumption that the notice was sent. We

disagree with that burden shifting. It is the State that must prove the notice was

actually mailed. See id.; see also State v. Campbell, No. 08-0106, 2008 WL

5412325, at *1 (Iowa Ct. App. Dec. 31, 2008) (reversing conviction where DOT

employee explained agency’s procedures for mailing notices, but the State

presented no testimony or documentary evidence those procedures were

followed in Campbell’s case).

       Iowa Code section 321.16 requires the DOT to “adopt rules regarding the

giving of notice by first class mail, the updating of addresses in department

records, and the development of affidavits verifying the mailing of notices under

this chapter and chapter 321J.” The DOT’s administrative rule provides: “The

department may prepare an affidavit of mailing verifying the fact that a notice was

mailed by first-class mail. To verify the mailing of a notice, the department may

use its records in conjunction with U.S. Postal Service records available to the

department.” Iowa Admin. Code r. 761-615.37(4). In this case, the State filed an

Affidavit of Mailing, sworn on oath by DOT records manager Kathy McLear, as a

proposed exhibit, but did not offer that exhibit at trial.

       Instead, to support the notice element, the State offered the bulk mailing

certificate, proving that 327 pieces of identical mail were sent on March 28, 2012,

and Sievers’s testimony that she believed Johns’s notice was among them

because of the timing. We do not find that the coincidence of the dates, standing

alone, is sufficient to prove the notice was sent. The record does not establish a
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time frame for when the 327 pieces in the bulk mailing were generated by the

DOT or if all the notices from this period were included in the mailing.

       To satisfy Green, the DOT must furnish records that establish a

connection between the notice at issue and the mailing certificate.        Without

verification that Johns’s notice was in the bulk mailing, we cannot find sufficient

evidence to support the offense of driving while barred. Thus, we reverse and

remand for dismissal of the charge.

       REVERSED AND REMANDED.

       Bower, J., concurs; McDonald, J., dissents.
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MCDONALD, J. (dissenting)

       I respectfully dissent. The verdict is supported by substantial evidence. In

reviewing a challenge to the sufficiency of the evidence, we consider all record

evidence “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) (citation omitted). A verdict will be upheld if it is

supported by substantial evidence. See State v. Nitcher, 720 N.W.2d 547, 556

(Iowa 2006). Substantial evidence is the quantity and quality of evidence from

which a reasonable juror could conceivably find the defendant guilty beyond a

reasonable doubt. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998). The

department’s representative testified as follows:

                Q. We spoke earlier about receiving a notice of a change in
       license. I want to direct your attention to Exhibit 5. Can you
       identify that document for us? A. Yes. It’s an official notice that
       was mailed out March 24th, 2012, to Guy Christopher Johns.
                Q. Okay. And again can you explain to the Court how you
       are able to identify that document? A. It says official notice on it
       and it has Mr. Johns’ name and address.
                Q. Is that notice something that’s kept as part of Mr. Johns’
       official driving records? A. Yes, sir.

She repeated the same, bolstering her own testimony by reference to the bulk

mailing notice:

               Q. I want to direct your attention to Exhibit 6 now. Can you
       identify that document for us? A. This is certificate of bulk mailing
       from the United States Postal Service.
               Q. Okay. How do you know that’s what it is? A. It states
       right on the top.
               Q. Okay. And is that something that’s kept as part of the
       Defendant’s official driving record? A. Yes.
               Q. Okay. So looking at Exhibit 6, can you again explain to
       the Court kind of what that document tells us? A. That on March
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      28th, 2012, we mailed out 327 identical pieces of mail at the rate
      and then we get the certificate from the postal service.
             Q. How does that relate to the previous exhibits that you
      have looked at? A. [T]hat’s when the official notice would have
      gone out.

(Emphasis added.)      Even taking into account the defendant’s arguments

regarding the bulk mailing notice, viewing the evidence in the light most favorable

to the State, including all reasonable inferences to be drawn from the evidence, a

jury could conceivably find the department mailed notice based on the testimony

of the department representative who explicitly testified the department mailed

notice. See State v. Anderson, No. 10-1945, 2012 WL 3200864, at *2 (Iowa Ct.

App. Aug. 8, 2012) (holding there was sufficient evidence the State mailed notice

where department representative testified to the same).
