                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0844
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL RYAN DERBY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,

Judge.




      Michael Derby challenges the weight of the evidence to support his

convictions of operating a motor vehicle while intoxicated and eluding.

AFFIRMED.




      Michael K. Williams of Williams Law Office, Hinton, for appellant.

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

Attorney General, for appellee.




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

         Following a trial to the bench, the district court found Michael Derby guilty

of operating a motor vehicle while intoxicated (OWI), third offense, and eluding or

attempting to elude a pursuing law enforcement vehicle while intoxicated. Derby

appeals, arguing the weight of the evidence does not support the court’s guilty

verdicts.    Upon our review, we conclude the district court did not abuse its

discretion in finding its guilty verdicts were supported by the greater weight of the

evidence. We therefore affirm.

         I. Background Facts and Proceedings.

         In the early hours of July 18, 2015, Sioux City police officers in an

unmarked drug unit observed a truck with dark tinted windows—owned and

driven by Derby—stop for a few minutes in a high drug traffic area and then

leave.    Officer Josh Tyler, on duty that morning, was informed of the tinted-

window violation and the truck’s location, and he followed the truck in his marked

squad car.      Officer Tyler observed Derby commit several moving violations.

Officer Tyler activated his lights to stop Derby’s truck, and Derby fled. A thirty-

minute chase ensued, and at times Derby drove at speeds up to ninety miles per

hour. Derby ran through red lights and drove through barricades on the wrong

side of a construction zone. He drove through an accident scene. He drove the

wrong way onto a highway bypass and proceeded driving the wrong way on the

divided highway. While driving, Derby threw items out the truck’s window. For

safety reasons, Officer Tyler discontinued his pursuit at that time.

         Plymouth County Deputy Sheriffs Matt Struve and Paul Betsworth picked

up the chase in their separate marked squad cars after Derby crossed into
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Plymouth County, and the squad cars’ cameras recorded their pursuit.          Also

involved in the chase was Iowa State Patrol Trooper David Dreasen.            With

Deputy Betsworth following behind him, Deputy Struve activated his lights in an

attempt to stop Derby, but Derby continued on, again driving at speeds up to

ninety miles per hour. Because Derby and the officers were approaching Le

Mars on Highway 75, the trooper contacted a Le Mars officer to attempt to

intercept Derby with stop sticks. Stop sticks were placed, and Derby ran over

them, deflating three of his truck’s tires. But Derby continued driving, even after

his tires started shredding and he was running on the rims. Then the rims started

disintegrating, but Derby kept going for approximately ten more miles.          He

continued to throw items out the window and to swerve. At one point, Derby

stuck his leg out the car window and made profane gestures at the officers.

      Derby’s truck began smoking and decelerating. When the truck slowed to

a speed of a few miles per hour, Derby jumped out of it—while the truck was still

moving—and continued on foot. Derby was apprehended about fifty yards away.

Thereafter, he apologized to the officers and told them “he just wanted to get

away.” Derby said he “didn’t do anything wrong.” An officer told Derby he had

driven the wrong way on the highway, and Derby responded, “No I wasn’t. I

didn’t think so.” Derby said he had had a few hard lemonades. When asked if

he put people’s lives in danger to avoid a drunk-driving charge, Derby told the

officers, “I didn’t know if I was above the limit or not, man. . . . I already have

three OWIs. . . . I thought I would’ve got away. I’m not that smart.”

      Derby was arrested and placed in Deputy Betsworth’s squad car, and the

audio was recorded. In the car, Derby chastised himself, stating, “That’s the
                                         4


stupidest thing I’ve ever done,” and “[I made a] stupid choice.” On the way to the

Plymouth County Jail, Derby said he had been drinking at a friend’s house and

he was trying to get away. At the jail, Trooper Dreason invoked implied consent

“[b]ased on . . . the driving and everything that [he] had observed, [he] believed

[he] had reasonable grounds to believe that [Derby] was operating a vehicle and

was under the influence,” but Derby refused to submit to chemical testing.

       Derby was ultimately charged with OWI, third or subsequent offense, and

eluding or attempting to elude a pursuing law enforcement vehicle while

intoxicated. Derby waived a jury trial, and the matter was tried to the district

court. All four of the officers testified as to their observations of Derby’s driving

that morning and his interactions with them thereafter, and all four opined Derby

had been under the influence of drugs—presumably methamphetamine—and did

not appear to have had a seizure. Also admitted into evidence was the two

deputies’ squad car videos and the video from Plymouth County Jail’s OWI and

booking area after Derby arrived.

       After the State rested and Derby’s motion for acquittal was submitted, he

called his mother as a witness to explain his history of having seizures, including

one she witnessed on July 1, 2015. She also testified Derby had a history of

having anxiety or panic attacks. Derby’s mother testified that Derby became

disoriented after having a seizure and shook “with his hands and feet, constantly

moving.” After his July 1 seizure, Derby was prescribed medication, and his

mother testified she believed Derby’s seizure condition improved.

       Additionally, two hospital reports—one from 2009 and the other from July

1, 2015—were admitted into evidence showing Derby had had at least two
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seizures. The 2009 report stated Derby had to be restrained because of his

combative behaviors, and he was “unable to control his actions, kicking his legs

and throwing his arms around close to striking staff.” The July 2015 report stated

he was taken to the hospital by his mother and Derby reported he had “a kind of

generalized seizure” every two-three months, “usually when he [was] in bed.”

That report also stated Derby was advised not to operate a motor vehicle.

        After the defense rested, Derby renewed his motion for a judgment of

acquittal, arguing the State did not prove beyond a reasonable doubt that Derby

was impaired. Derby maintained that because he did not admit he had used an

illegal substance and no chemical test was performed, the State only proved

Derby had operated his truck consistent with the mannerisms of his medical

conditions. He asserted this circumstantial evidence was not enough to establish

his guilt.

        Thereafter, the district court denied the motion and found Derby guilty of

OWI, third offense, and eluding or attempting to elude a pursuing law

enforcement vehicle while intoxicated. Derby again filed a motion in arrest of

judgment, “pursuant to [Iowa Rule of Criminal Procedure] 2.24(3),” arguing the

court’s verdict was not supported by the record. His motion stated he “therefore

renew[ed] his motion for a judgment of acquittal” and requested the court dismiss

the charges against him. The court denied the motion. Thereafter, the court

sentenced Derby to an indeterminate term of incarceration not to exceed five

years on each conviction, to be served concurrently, but the court suspended the

sentences and placed Derby on probation.

        Derby now appeals.
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       II. Discussion.

       Derby argues the weight of the evidence does not support the court’s

guilty verdicts. He asserts he preserved this claim by filing his motion in arrest of

judgment and his notice of appeal. Conversely, the State points out that filing a

motion in arrest of judgment generally does not preserve a weight-of-the-

evidence claim but rather a challenge to the sufficiency of the evidence, which is

analyzed under a less stringent test. See State v. Shorter, ___ N.W.2d ___, ___

2017 WL 1367014, at *4 (Iowa 2017); see also State v. Reeves, 670 N.W.2d

199, 202 (Iowa 2003) (discussing “when and why trial courts must use a

sufficiency-of-the-evidence standard or a weight-of-the-evidence standard”).

Additionally, the State notes—and we cannot stress this enough—that filing a

notice of appeal “has nothing to do with error preservation.” State v. Lange, 831

N.W.2d 844, 846-47 (Iowa Ct. App. 2013); see also Thomas A. Mayes &

Anuradha     Vaitheswaran,      Error    Preservation    in    Civil   Appeals     in

Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006)

(footnote omitted) (explaining that “[a]s a general rule, the error preservation

rules require a party to raise an issue in the trial court and obtain a ruling from

the trial court”). Nevertheless, the State concedes the court’s oral ruling on the

motion considered the “greater weight of the evidence” in denying Derby’s

motion, minimally preserving the issue for appellate review. See State v. Wells,

629 N.W.2d 346, 355 (Iowa 2001) (explaining “we are guided by what the district

court did or purported to do in ruling on the motion” in determining whether error

was preserved and not the motion’s title). We therefore address the issue.
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       “The weight-of-the-evidence standard requires the district court to

consider whether more ‘credible evidence’ supports the verdict rendered than

supports the alternative verdict,” including the consideration of the witnesses’

credibility. State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). Specifically, the

court must determine “whether ‘a greater amount of credible evidence’ suggests

the verdict rendered was a miscarriage of justice,” not merely “whether there was

sufficient credible evidence to support the verdict rendered or an alternative

verdict.” Id. (citations omitted). Our review of the district court’s determination is

for an abuse of discretion, which “occurs when a district court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” See id.; State v. Wilson, 878 N.W.2d 203, 210-11 (Iowa 2016).

“A ground or reason is untenable when it is not supported by substantial

evidence or when it is based on an erroneous application of the law.” State v.

Brown, 856 N.W.2d 685, 688 (Iowa 2014).

       The State was required to prove two elements beyond a reasonable doubt

to establish Derby committed the crime of OWI: (1) Derby operated a motor

vehicle, which was not disputed, and (2) Derby was “under the influence of an

alcoholic beverage or other drug,” or some combination, or had an excessive

blood alcohol level while operating the vehicle.1 See Iowa Code § 321J.2(1);

State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). Thus, the only disputed



1
  Derby also admitted the lesser-included offense of eluding was established under Iowa
Code section 321.279(2) (2015). However, the State charged—and the district court
found Derby guilty—under section 321.279(3), where the offense is elevated to a class
“D” felony if, among other things, the “driver is in violation of section 321J.2”; i.e., the
driver is intoxicated. Thus, the only disputed issue on both counts was whether the
State proved Derby was intoxicated.
                                          8


issue was whether the State proved beyond a reasonable doubt that Derby was

under the influence as alleged. The court found the State met its burden. On

appeal, Derby asserts the greater weight of the evidence suggests the verdict

rendered was a miscarriage of justice because there was no direct evidence he

was under the influence and because his behavior on the night in question was

allegedly consistent with his prior behavior when having a seizure.

       It is true there is no direct evidence that Derby was under the influence

during the relevant night. Nevertheless, our review of the record indicates the

greater weight of      the evidence supports the district court’s verdicts.

“Circumstantial evidence is equally probative as direct evidence for the State to

use to prove a defendant guilty beyond a reasonable doubt.” State v. Brubaker,

805 N.W.2d 164, 172 (Iowa 2011). It can even “be more persuasive than direct

evidence” in some circumstances. Id. Importantly, a person may be found guilty

under section 321J.2(1)(a) in the absence of admissible evidence from chemical

tests. See State v. Steadman, 350 N.W.2d 172, 174 (Iowa 1984). Because a

“driver impliedly agrees to submit to a test [to determine alcohol concentration or

presence of a controlled substance] in return for the privilege of using the public

highways,” see Iowa Code § 321J.6(1), State v. Hutton, 796 N.W.2d 898, 902

(Iowa 2011), the driver’s refusal to submit to the test is admissible in determining

whether a person committed OWI. See Iowa Code § 321J.16; State v. Bloomer,

618 N.W.2d 550, 552 (Iowa 2000).

       Under the facts of the case, Derby initially committed several moving

violations. A moving violation by itself would not be sufficient to establish a driver

was driving while intoxicated, and perhaps running a red light or swerving could
                                         9


be the actions of a person having a seizure. But here, the evidence is not merely

the testimony of bystanders who only observed Derby for a short period of time.

Rather, the squad-car videos corroborate the officers’ account of Derby’s actions

and support their professional opinions that those actions were those of a person

who was under the influence. And considering all of the evidence—the moving

violations, then the chase, Derby’s bizarre actions during the chase, his refusal to

submit to chemical testing after the chase, and his own slurred statements after

he was captured concerning his intent and circumstances, including that he had

been drinking and that he fled because he had already been convicted of three

OWIs and did not know if he was above the legal limit, overwhelming evidence

showed Derby was operating his truck while he was under the influence of drugs

or a combination of alcohol and drugs. Consequently, we find the district court

did not abuse its discretion when it denied Derby’s posttrial motion because the

greater weight of the evidence supported its verdicts. Accordingly, we affirm the

convictions.

       AFFIRMED.
