                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0217
                            Filed December 23, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER LEE LOWERY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Osceola County, Carl J. Petersen,

Judge.




      Christopher Lowery appeals the judgment and sentence entered upon his

conviction of operating a motor vehicle while intoxicated. REVERSED.




      Matthew G. Sease of Kemp & Sease, Des Moines, and John M. Sandy of

Sandy Law Firm, Spirit Lake, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.




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

       Christopher Lowery appeals the judgment and sentence entered upon his

conviction of operating a motor vehicle while intoxicated (OWI). He asserts the

State failed to provide sufficient evidence for a jury to find he operated a vehicle

while intoxicated. Because we agree, we reverse Lowery’s OWI conviction.

       I. Background Facts and Proceedings.

       “Viewing the trial evidence in the light most favorable to the jury’s guilty

verdict[],” State v. Romer, 832 N.W.2d 169, 172-73 (Iowa 2013), the jury could

have found the following facts.     At some point on Saturday, May 17, 2014,

Lowery’s pick-up truck ended up in the south side of a ditch on Highway 9. A

passerby saw Lowery’s truck in the ditch around 10:30 p.m., with Lowery

standing next to it, and the passerby stopped to help. The passerby believed the

truck had “jumped over a field driveway” and hit the cement culvert, causing two

flat tires and some damage to the truck’s grill and bumper. The truck was not

running; its lights were off and the back window was shattered. He talked to

Lowery, and Lowery asked for a ride home. The passerby opted to call 9-1-1

instead. In response, Lowery called him a “motherfucker,” leading the passerby

to believe Lowery “[did]n’t want them knowing who he is.” The passerby related

that he thought Lowery “was drinking and driving because [the passerby saw] a

Crown Royal bag in the cab of his truck.” However, the passerby never saw

Lowery operating the truck or drinking. He did not know how long the truck had

been sitting there; he had not touched the truck and had no indication of whether

it was warm or cool.
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       Law enforcement and emergency personnel were called to the scene

around 10:30 p.m. When the ambulance arrived, Lowery started to walk away.

When the EMTs found him shortly thereafter, Lowery was lying in the ditch in the

fetal position. Upon being found, Lowery said, “oh, shit.” One of the EMTs

observed “a little dried blood” on Lowery’s forehead. That EMT asked Lowery “if

he had any alcoholic beverages,” and Lowery “said he had a couple.” Lowery did

not say to what he was referring.

       The responding deputy talked to Lowery there around 11:00 p.m. The

deputy noticed Lowery’s eyes were watery, bloodshot, and dilated.            When

Lowery spoke to the deputy, his speech was slurred and “mumbly,” and the

deputy could smell an odor of an alcoholic beverage. The deputy asked Lowery

what had happened, and Lowery refused to answer any questions. Lowery also

refused to participate in any field-sobriety tests.    The deputy then arrested

Lowery “for suspicion of OWI.”

       Thereafter, the deputy conducted an accident investigation and took

photographs of the truck and its contents. In the cab of the truck, sitting on the

passenger-side floor, was a brown paper bag. In the bag were fishing tackle and

two unopened bottles of Jägermeister. Also on the floor was a velvet Crown

Royal bag, which did not contain any alcoholic beverages, and a lone, unopened

can of Bud Light still in the plastic six-pack ring. No other Bud Light cans were in

the cab. A small, empty bottle of Jägermeister was found in the map pocket of

the driver’s side door. That bottle, based upon its label, appeared to be a bit

older than the unopened Jägermeister bottles found in the brown paper bag. The

picture taken of the truck’s bed shows what looks to be a case of Hurricane beer
                                         4


and three Hurricane cans in the bed; however, none of these items were seized

or inspected by the deputy. The deputy had not touched the cans and could give

no information as to whether they were warm or cold, empty or full. Similarly, the

deputy did not look at what appears to be a case of beer and could not say if it

contained any beer at all, and if it did, whether the cans possibly therein were

warm or cold, empty or full.

       Lowery was charged with OWI, in violation of Iowa Code section 321J.2

(2013), and a jury trial was later held. After the State rested, Lowery moved for a

directed verdict, challenging the sufficiency of the State’s evidence.       Lowery

argued the State failed to establish he operated the truck or that he operated the

truck while intoxicated. The court denied the motion, finding the State’s evidence

was sufficient to

       convince a rational trier of fact [Lowery] is guilty of the crimes
       beyond a reasonable doubt based upon the operation—appeared
       operation of this vehicle; [Lowery’s] acts after being confronted by
       individuals; and the presence of and his location near the vehicle.
       And it appears no other individual was present.

       Ultimately, the matter was submitted to the jury, and it returned a verdict of

guilty. Lowery filed the usual post-trial motions, and his motions were denied.

       Lowery now appeals, again challenging the sufficiency of the evidence.

Our review is for correction of errors at law. See State v. Robinson, 859 N.W.2d

464, 467 (Iowa 2015).

       II. Discussion.

       The State had the burden to “prove every fact necessary to constitute the

crime with which the defendant [was] charged.” State v. Brubaker, 805 N.W.2d

164, 172 (Iowa 2011) (citation and internal quotation marks omitted). On our
                                          5


review, we must determine whether the State presented substantial evidence to

prove the elements of the crime. See State v. Serrato, 787 N.W.2d 462, 470

(Iowa 2010). “Evidence is considered substantial if, when viewed in the light

most favorable to the State, it can convince a rational jury that the defendant is

guilty beyond a reasonable doubt.” State v. Edouard, 854 N.W.2d 421, 437

(Iowa 2014) (citation omitted). “Although direct and circumstantial evidence are

equally probative, the inferences to be drawn from the proof in a criminal case

must raise a fair inference of guilt as to each essential element of the crime.”

State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (citation omitted). Evidence

that merely raises suspicion, speculation, or conjecture is not enough. See id.;

see also Robinson, 859 N.W.2d at 467; Brubaker, 805 N.W.2d at 172.              In

determining if substantial evidence exists to sustain the conviction, we must

consider all the evidence in the record, not just the evidence supporting the

finding of guilt. See Robinson, 859 N.W.2d at 467; Edouard, 854 N.W.2d at 437-

39.

       Consequently, we must determine whether a rational trier of fact could

have found that all essential elements of the crime were established beyond a

reasonable doubt based on the evidence produced at trial. See Brubaker, 805

N.W.2d at 172. To find Lowery guilty of the offense of OWI, the State was

required to prove, as set out in the marshalling jury instruction:

              1. On [May 17, 2014, Lowery] operated a motor vehicle.
              2. At that time, [Lowery] was under the influence of alcohol.

Lowery does not challenge the sufficiency of the evidence concerning the first

element—that he operated his truck; nor does he dispute he was under the
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influence of alcohol at the time of his arrest. Rather, he argues the State failed to

prove the “W” part of OWI, that he operated his truck while he was intoxicated.

We agree.

       In State v. Creighton, 201 N.W.2d 471, 473 (Iowa 1972), the Iowa

Supreme Court reasoned that “the fact a defendant was under the influence of an

alcoholic beverage at the time of his arrest, without a showing of more, will not

support a finding he was in that condition when driving a motor vehicle at some

earlier time.”1 Since its ruling in Creighton, the court has had the opportunity to

demonstrate what it meant when it said “a showing of more” was required. For

instance, in State v. Braun, 495 N.W.2d 735, 739 (Iowa 1993), like here, there

was no direct witness testimony that Braun operated his vehicle while he was

intoxicated. However, the court found there was “an abundance of circumstantial

evidence that Braun had driven his car . . . in an intoxicated condition,” noting no

alcohol containers were found at the scene and Braun himself admitted he had

“drunk intoxicants and then driven” to where he was found asleep in his car in the

middle of an undivided highway. Braun, 495 N.W.2d at 739-40. Similarly, in

State v. Dominguez, 482 N.W.2d 390, 392 (Iowa 1992), the defendant admitted

he had consumed five or six beers in the hour immediately preceding the

accident. See also, e.g., State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004)


       1
        We acknowledge that Creighton relies in part on an outdated rule relating to
circumstantial evidence, stating, “The circumstantial evidence rule is subject to the
caveat that it must be entirely consistent with defendant’s guilt and wholly inconsistent
with any rational hypothesis of innocence.” 201 N.W.2d at 473. In State v. O’Connell,
275 N.W.2d 197, 205 (Iowa 1979), the supreme court held direct and circumstantial
evidence are equally probative for purposes of proving guilt beyond a reasonable doubt.
Nevertheless, we believe the analysis and legal reasoning of Creighton are relevant to
this appeal. See State v. Payne, No. 10-1349, 2011 WL 1818061, at *3 n.2 (Iowa Ct.
App. May 11, 2011).
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(finding sufficient evidence where defendant acknowledged he consumed alcohol

prior to the incident, among other things); State v. Hopkins, 576 N.W.2d 374, 378

(Iowa 1998) (finding sufficient evidence where defendant made admission to

drinking prior to driving and no liquor bottles found at scene); State v. Boleyn,

547 N.W.2d 202, 205 (Iowa 1996) (finding sufficient evidence where defendant

made admissions to drinking before driving); State v. Murray, 539 N.W.2d 368,

369 (Iowa 1995) (finding sufficient evidence where defendant found “intoxicated

and slumped over the wheel of his vehicle” with its engine running); State v.

Weaver, 405 N.W.2d 852, 855 (Iowa 1987) (finding sufficient evidence where

defendant was found seated behind the steering wheel of his vehicle in the

middle of the roadway, with engine running and lights on when stopped by the

police). This court has done the same. See State v. Binning, No. 09-0866, 2010

WL 1375320, at *3 (Iowa Ct. App. April 8, 2010) (finding sufficient evidence

where defendant was found at the scene seriously injured and intoxicated and

the search of the accident scene revealed insufficient evidence to support a claim

defendant may have become intoxicated after the accident); see also State v.

Hines, 478 N.W.2d 888, 889-90 (Iowa Ct. App. 1991) (upholding the defendant’s

OWI conviction where he was found slumped over the steering wheel of a vehicle

with its engine running).

       Here, the State points to the following facts in support of the jury’s guilty

verdict: Lowery’s truck was damaged and in the ditch; the deputy testified the

ditch was along a busy highway; Lowery cursed when the passerby gave his

information to 9-1-1 and when the EMT found him; Lowery attempted to hide;

Lowery refused medical treatment; Lowery “repeatedly expressed anger or
                                         8


frustration over his circumstances”; and Lowery refused a chemical test.

However, Lowery was not found passed-out in his truck in the middle of the

road—his truck ended up in the ditch. Accidents occur regularly in Iowa with

drivers who are not intoxicated. See, e.g., Thompson v. Kaczinski, 774 N.W.2d

829, 831-32 (Iowa 2009) (“When [the driver] swerved to avoid the [trampoline] on

the road, [the driver] lost control of his vehicle. His car entered the ditch and

rolled several times.”); see also Smith v. Wright, No. 13-0752, 2014 WL 2347388,

at *1 (Iowa Ct. App. May 29, 2014) (“Around 5:00 p.m. on [an October day], the

weather was sunny and clear with no wind” when the defendant-driver struck a

deer and then hit plaintiff-driver); Lair v. Motor Inn of Spirit Lake, Inc., No. 08-

0769, 2009 WL 1491899, at *1 (Iowa Ct. App. May 29, 2009) (“On his drive

home, [driver] encountered two deer that darted into the road. He slammed on

his brakes and turned the steering wheel to the right, causing the vehicle to spin,

and hit the double posts of a road sign before sliding into the ditch.”).

Additionally, unlike the other more recent cases, there was at least one open,

empty container of liquor found in Lowery’s truck—and possibly more in the

truck’s bed—that Lowery could have consumed at the scene, resulting in his

intoxication and explaining his behavior at the scene. The EMT’s testimony at

the hearing was that Lowery told the EMT he had “had” a couple, not that he had

“consumed” a couple, but even assuming for the sake of argument Lowery meant

“consumed,” Lowery never said when he consumed them.

      Lowery was found outside his vehicle.        He had access to the alcohol

containers, and at least one of those containers was found empty. Enough time

had passed from his off-road excursion into the ditch until the time he was found
                                          9


that the blood from the cut on his forehead had dried. The passerby himself

testified there was not a lot of traffic that night. Lowery’s truck was not running

when the passerby stopped. There was no testimony that the truck’s hood felt

warm. There was no testimony that the cans in the back of the truck were empty

or full, cold or warm. There was no testimony or admission that Lowery was

drinking prior to the accident. Like in Creighton, there was definitely evidence to

support the fact Lowery was under the influence of an alcoholic beverage at the

time of his arrest. However, the facts the State relies upon raise only suspicion

or speculation—not evidence—that Lowery’s truck ended up in the ditch because

he drove it while he was intoxicated. The State’s arguments are not sufficient to

meet the State’s burden of proof beyond a reasonable doubt that Lowery was

intoxicated at the time he drove his truck. We therefore conclude substantial

evidence does not support the jury’s guilty verdict.

       III. Conclusion.

       Because we find the State failed to present substantial evidence for a jury

to find Lowery operated a vehicle while intoxicated, we reverse Lowery’s

conviction for OWI.2

       REVERSED.




       2
        We do not remand for retrial when evidence at trial was insufficient to support
the conviction. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003).
