                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0677
                              Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRANDY S. BRANDENBURG,
     Defendant-Appellant.
________________________________________________________________


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

Shubatt, Judge.



      Brandy Brandenburg appeals her conviction for operating while under the

influence of a drug. AFFIRMED.



      Bradley T. Boffeli of Boffeli & Spannagel, P.C., Dubuque, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

       Brandy Brandenburg appeals her conviction following a jury trial for

operating while under the influence of a drug, in violation of Iowa Code sections

321J.2(1)(a) and 321J.2(2)(a) (2013).             Brandenburg complains there is

insufficient evidence to support the jury’s guilty verdict.

       We review claims of insufficient evidence for correction of errors of law.

State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014). We view the evidence in

the light most favorable to upholding the verdict, and we affirm if there is

substantial evidence from which a rational factfinder could determine guilt

beyond a reasonable doubt. Id. at 439-40.

       The jury was instructed that to convict Brandenburg,

               The State must prove both of the following elements of
       Operating While Intoxicated:
               1. On or about the 29th day of December, 2013, the
       defendant operated a motor vehicle.
               2. At that time, the defendant was under the influence of
       drugs.
               If the State has proved both of the elements, the defendant
       is guilty of Operating While Intoxicated. If the State has failed to
       prove either one of the elements, the defendant is not guilty of
       Operating While Intoxicated.

       At trial, the jury heard a 911 caller’s description of Brandenburg’s erratic

driving. The jury also viewed the traffic-stop officer’s dashboard camera video.

Brandenburg told the officer that she had taken medications about an hour earlier

but could not tell him what it was.            The video also showed Brandenburg

attempting to perform the field sobriety tests, failing to keep her balance, and

failing to comprehend simple instructions, count backwards, or recite pieces of

the alphabet. Brandenburg was transported to the police station.
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       Based on Brandenburg’s erratic driving, memory impairment, failure of

several field sobriety tests, and a preliminary breath test that indicated no alcohol

in her system, Corporal Steven Eastvedt was asked to conduct a drug

recognition evaluation. He ruled out physical conditions and medical concerns.

Brandenburg gave various statements about taking different medications; she did

not remember what medications she had taken; she stated she took medications

for anxiety, depression, and insomnia; and she stated one of the medications

might be a generic form of Zoloft, an antidepressant. The urinalysis conducted

did not test for that substance.

       On appeal, Brandenburg contends there was insufficient evidence to

support her conviction because there is “no record of exactly what drugs [she]

consumed” or “that such drug was influencing her” reasoning or mental ability or

impairing her judgment.      Brandenburg seeks support for her position in this

court’s decision of State v. Davis, No. 14-0829, 2015 WL 4936398 (Iowa Ct. App.

Aug. 19, 2015), where we reversed a conviction for operating while under the

influence of drugs based on insufficient evidence.1 There we held:

       Without a drug recognition expert to identify the signs of drug
       intoxication and without the discovery of drugs on Davis or in the
       vehicle, . . . the officers’ testimony would have been required to
       engage in speculation to infer he was under the influence of drugs.
       See State v. Schories, 827 N.W.2d 659, 666 (Iowa 2013). We
       conclude there is insubstantial evidence to support a finding that
       Davis was “under the influence of . . . drugs or a combination of
       such substances.” Iowa Code § 321J.2(1)(a).

1
  In Davis, there was substantial evidence of alcohol intoxication. 2015 WL 4936398, at
*1. However, the jury was instructed in the alternative and because we concluded there
was not evidence to support a conviction under the alternative theory of intoxication by
controlled substance, we reversed and remanded for a new trial. Id. at *1-2. Unlike
Davis, here the jury was instructed on only one theory—operating while under the
influence of drugs.
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Davis, 2015 WL 4936398, at * 1.

       Here, however, there is drug-recognition expert testimony by Corporal

Eastvedt identifying the signs of drug intoxication. Brandenburg told Corporal

Eastvedt that one of the drugs she had taken prior to driving may have been a

generic form of Zoloft, which is a central nervous system depressant. Corporal

Eastvedt testified that Zoloft would produce effects consistent with those he

observed during Brandenburg’s evaluation. Moreover, the State also presented

evidence of mental and physical impairment, as well as testimony that

Brandenburg’s impairment was not due to other reasons such as physical

sickness or injury. There is substantial evidence from which a rational fact finder

could conclude Brandenburg was operating a motor vehicle while under the

influence of a drug.2 We therefore affirm the conviction.

       AFFIRMED.




2
 The jury was also not instructed on the prescription drug defense. Cf. Schories, 827
N.W.2d at 665 (noting prescription drug defense would require, upon evidence of a valid
prescription, that the defendant was not taking the prescription “according to [the]
physician’s instructions and labeling directions of the pharmacy”).
