                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1967
                              Filed August 16, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK ROGER SCHOLTES SR.,
     Defendant-Appellant.
________________________________________________________________


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

Richter, District Associate Judge.



      Mark Scholtes Sr. appeals his convictions following a jury trial in which he

was found guilty of felony eluding and leaving the scene of a personal injury

accident. AFFIRMED.



      Taryn R. Purcell of Clemens, Walters, Conlon, Runde & Hiatt, L.L.P.,

Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       A van took a Dubuque County Sheriff’s deputy on a chase through a

residential area and golf course, eventually launching into the air and nose diving

to the ground. The State charged Mark Scholtes Sr. with several crimes. A jury

found him guilty of (1) eluding while exceeding the speed limit by twenty-five

miles per hour or more resulting in a bodily injury as well as the lesser-included

offense of eluding while exceeding the speed limit by twenty-five miles per hour

or more and (2) leaving the scene of an accident resulting in injury. See Iowa

Code §§ 321.261(1)-(2); 321.279(2), (3)(c) (2016). The court entered judgment

on the “eluding with bodily injury” verdict in the first count and on the second

count. Scholtes appealed.

       Scholtes contends (1) the jury rendered two inconsistent verdicts on the

first count, leading to a lack of clarity as to which verdict was intended and

requiring reversal of the district court’s ruling on his motion in arrest of judgment

as to the first count and (2) the State failed to present “any credible evidence”

that he was the driver of the van, requiring reversal of the district court’s ruling on

his motion for a new trial as to both counts.

I.     Inconsistent Verdicts – Eluding

       A.     Error Preservation

       The jury was instructed to “sign only one verdict for each count.” In the

same instruction, the jury was advised of the possibility of being “polled” after the

verdict was read. See Iowa R. Crim. P. 2.22(5) (stating a party may “require a

poll asking each juror if it is the juror’s verdict” and, unless “any juror expresses

disagreement . . . the verdict is complete and the jury shall be discharged”). After
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the jury returned two verdicts on the eluding count, Scholtes’ attorney did not

conduct a poll to determine which verdict was intended. However, he raised the

inconsistent verdicts issue in his motion in arrest of judgment and motion for new

trial. The district court denied the motions.

       The State contends Scholtes was obligated to poll the jury to preserve

error on his inconsistent verdicts claim.       The State’s argument is facially

appealing, given rule 2.22(5)’s reference to a “complete” verdict absent juror

disagreement. See also Gavin v. Johnson, No. 08-1994, 2009 WL 4114144, at

*6 (Iowa Ct. App. Nov. 25, 2009) (noting that the plaintiff “made no request” to

have the jury “receive additional instruction and return to deliberate” before “the

jury was discharged”); Neumann v. Serv. Parts Headquarters, 572 N.W.2d 175,

176 n.1 (Iowa Ct. App. 1997) (suggesting the plaintiff should have made her

objections to inconsistent verdicts before the jury was discharged but stating,

“Defendant has not contended by agreeing to a sealed verdict plaintiff did not

preserve error and we do not address this issue”). But neither the rule’s express

language nor caselaw mandates a jury poll to preserve error on a claim of

inconsistent verdicts. To the contrary, the procedure used by Scholtes appears

to suffice as an error-preservation tool. Cf. Cowan v. Flannery, 461 N.W.2d 155,

157, 160 (Iowa 1990) (observing that “[t]he trial court should not discharge the

jury until it determines the special verdict is consistent and supported by

evidence,” but noting the claimed inconsistency was raised in motion for new trial

or conditional trial); Brooks v. State, No. 16-0710, 2017 WL 2461504, at *6 n.3

(Iowa Ct. App. June 7, 2017) (rejecting error preservation concern on challenge
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to consistency of verdicts where parties agreed to a sealed verdict). Accordingly,

we proceed to the merits.

       B.     Claimed Inconsistency

       Citing State v. Halstead, 791 N.W.2d 805 (Iowa 2010), Scholtes asserts

the jury rendered “inconsistent compound verdicts.” Inconsistent verdicts may

stem from a broad array of circumstances. See Halstead, 791 N.W.2d at 807. In

Halstead, the court addressed “a single defendant who is convicted of a

compound crime and acquitted of the predicate crime in a single proceeding.” Id.

at 808. In this type of case, the court concluded “the conviction cannot stand.”

Id. at 814.

       We are not faced with a compound inconsistency or, indeed, any

inconsistency. Although the jury improperly found Scholtes guilty of both (1)

“[e]luding while speeding 25 mph over the speed limit and resulting in a bodily

injury” and (2) “[e]luding while speeding 25 mph over the speed limit,” the

verdicts as worded were not inconsistent; the lesser-included offense did not

mention the absence of the bodily injury element. Cf. State v. Hernandez, 538

N.W.2d 884, 888 (Iowa Ct. App. 1995) (“Having concluded that assault while

participating in a felony is a lesser included offense of the intentional infliction of

bodily injury alternative of first-degree burglary, we summarily reject the

argument by [the defendant] that the verdicts were legally inconsistent.”). In

addition, the verdict the jury intended was clear; the jury necessarily found that

the State proved bodily injury by finding Scholtes guilty of leaving the scene of a

personal injury accident resulting in injury. We affirm the district court’s denial of
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Scholtes’ motion in arrest of judgment and new trial motion as it relates to the

claimed inconsistency of the verdicts in Count I.

II.   Credible Evidence of Driving

      As noted at the outset, Scholtes argues “[t]he State failed to present any

credible evidence that [he] was the driver of the vehicle,” an essential element of

the crimes in both counts. Where a claim is made that a verdict is contrary to the

weight of the evidence, “the verdict may be set aside and a new trial granted” if

“the court reaches the conclusion that the verdict is contrary to the weight of the

evidence and that a miscarriage of justice may have resulted.” State v. Serrato,

787 N.W.2d 462, 471-72 (Iowa 2010) (quoting State v. Ellis, 578 N.W.2d 655,

658-59 (Iowa 1998)). “A verdict is contrary to the weight of the evidence where

‘a greater amount of credible evidence supports one side of an issue or cause

than the other.’” State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (quoting

Ellis, 578 N.W.2d at 658).

       In denying Scholtes’ new trial motion, the district court provided the

following reasoning:

              The State proved that the vehicle involved in the incident
      was registered to the defendant’s spouse. Also, the defendant’s
      spouse testified that the vehicle was at the defendant’s house when
      she left the house. The defendant’s spouse testified that her car
      broke down and shortly after the car broke down she called the
      defendant. Then, shortly after the call, the vehicle involved in the
      incident is located by the deputy on a route that corresponds with
      the route between the defendant’s house and the location of the
      broke down car. The other occupant located at the crash scene
      testified that he wasn’t the driver and testified further that he
      doesn’t know how to drive a motor vehicle. The court finds that
      these pieces of evidence provide overwhelming circumstantial
      evidence that the defendant was the driver.
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We discern no abuse of discretion in this reasoning. See Serrato, 787 N.W.2d at

472. What’s more, Scholtes’ cell phone was found just outside the driver-side

door of the van and the passenger identified Scholtes as the driver. Although the

passenger was high at the time of the crash, his inability to drive lent credence to

his identification. We affirm the district court’s denial of Scholtes’ motion for a

new trial.

       Scholtes’ convictions for (1) eluding while exceeding the speed limit by

twenty-five miles per hour or more resulting in a bodily injury and (2) leaving the

scene of an accident resulting in injury are affirmed.

       AFFIRMED.
