                   IN THE COURT OF APPEALS OF IOWA

                             No. 4-008 / 12-2133
                             Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONALD RAY FINCH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hancock County, Colleen D.

Weiland (trial), and DeDra L. Schroeder (sentencing), Judges.



      Donald Finch appeals from his conviction of operating while intoxicated

(third offense), in violation of Iowa Code section 321J.2 (2009). AFFIRMED.



      R. A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, and Karen R. Kaufman Salic, County Attorney, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

       Donald Finch appeals from his conviction of operating while intoxicated

(third offense), in violation of Iowa Code section 321J.2 (2009). He contends he

was denied due process and a fair trial as a result of prosecutorial misconduct,

the trial court’s failure to properly admonish the jury after the prosecutor’s

statement in closing arguments, and the court’s having allowed the use of prior

testimony from a department of transportation (DOT) hearing to refresh a

witness’s memory. He also asserts the district court erred in denying his motion

for a new trial where a juror stated she abstained from a preliminary vote

because she shared the defendant’s condition of sleep apnea. Finally, he argues

the verdict was against the weight of the evidence. We conclude Finch was not

denied a fair trial. Nor did the district court abuse its discretion in its evidentiary

rulings or the denial of the defendant’s motions for new trial or judgment of

acquittal. We therefore affirm.

       I. Background Facts and Proceedings.

       The following facts are supported by the evidence presented at Donald

Finch’s trial on the charge of operating while intoxicated (OWI). At nine o’clock in

the morning, on April 2, 2009, a man (later identified as Finch) was seen by a

passer-by, Donna Quinby, slumped over the steering wheel of a truck, which was

in the wrong lane of traffic. Quinby asked Leonard Carter, the driver of the car in

which she was riding, to turn around. Quinby exited her car and banged on

Finch’s window, but he did not respond. Quinby told Carter to call 911. Quinby

tried to see if the truck was in gear because she noticed that it was moving. She

continued her attempts to get Finch’s attention and pounded on the vehicle. She
                                         3


tried to open the door, but it would not open. Finch’s truck moved again, which

led Quinby to direct an oncoming vehicle from driving in front of the pickup truck.

       Finch roused when Britt Police Officer Chris Gobeli arrived on the scene

and made his way to the passenger side of Finch’s truck. Officer Gobeli noticed

the truck was running and rolling forward. He told Finch to put the vehicle in

park, which Finch did. Officer Gobeli moved around to the driver’s side of the

truck. Finch had difficulty lowering the driver’s window and removing his license

from his wallet. An open beer can was in the drink holder. Tire tracks indicated

that the truck had gone into and out of the ditch.

       When an ambulance arrived at the scene, emergency responder Andrew

Eliason asked to take Finch’s vitals. Finch said “no.” Eliason asked Finch if he

had diabetes or prone to seizures. Finch responded “no.” Eliason observed

Finch and noted he had slurred speech, bloodshot eyes, and was acting

“lethargic.” Eliason continued to speak with Finch and moved in closer to smell

his breath to determine if he was diabetic. Eliason testified a diabetic’s breath

would smell fruity.   Finch’s breath did not smell fruity.     Eliason testified he

smelled alcohol.

       Deputy Sheriff Steven Nelson arrived on the scene.           Deputy Nelson

smelled the odor of an alcoholic beverage when he approached Finch. He noted

Finch’s eyes were bloodshot and he had difficulty keeping his eyes open.

Deputy Nelson testified Finch was “lethargic, kind of unenergetic, just sluggish.”

Finch told Deputy Nelson he was headed home—the deputy told Finch he was

facing the wrong direction.    Finch refused to perform field sobriety tests and

refused to sign the implied consent form.
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         During the subsequent jury trial, on direct examination, Officer Gobeli

testified that when he responded to the scene, Finch’s diesel truck was running.

On cross-examination, defense counsel impeached Gobeli’s trial testimony with

his testimony at a hearing on a motion to suppress held on August 31, 2010,

where Gobeli testified that he could not remember if the truck’s motor was

running.      On redirect, the State inquired as to Officer Gobeli’s testimony at

another hearing held on June 15, 2010.1 The following exchange occurred:

                Q. Do you recall him [defense counsel] inquiring of you
         during the June hearing whether or not you recalled the engine of
         Mr. Finch’s vehicle being running? A. Yes.
                Q. And do you recall what your answer was? A. I do not.
                Q. Would it refresh your recollection to read a transcript of
         that hearing to see what your answer was? A. Yes.

         Defense counsel objected, stating: “I believe what they’re attempting to do

is not to refresh, but to put in past recollection recorded without being able to lay

appropriate foundation or the need to put in past recollection recorded.” The

objection was overruled. After reviewing the transcript, Officer Gobeli testified,

“[T]he engine was running.”

         The defense called Dr. Alireza Yaramadi, a neurologist and board certified

sleep physician. Three months after the incident resulting in the OWI charge, Dr.

Yaramadi diagnosed Finch—a forty-one-year-old obese man with a history of

snoring and excessive daytime sleepiness—as having chronic, obstructive sleep

apnea, which is an involuntary cessation of breathing caused by blockage of the

upper airway. Dr. Yaramadi testified those with sleep apnea may fall asleep at

work or while driving; that sleep apnea can affect the person’s cognitive function


1
    The transcript was from a DOT hearing. It was not admitted into evidence.
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(the ability to think and process information), memory, concentration, and

information processing during waking time; and due to tiredness and fatigue,

sleep apnea can affect a person’s balance and fine motor skills, including

speech. He suggested that symptoms of sleep apnea may not be differentiated

from those of intoxication.

       During closing arguments, the prosecutor stated, “While his [Finch’s]

emotions with the officers were very consistent, calm, he was polite, that sort of

thing, with the ambulance crew when Mr. Eliason asked him a second time for

his vitals, he was agitated with him.” Defense counsel objected. Following the

prosecutor’s closing argument, the court informed the jury:

       We had a couple discussions up here at the bench and there is one
       comment that I’d like to make to clear something up. There is a
       disagreement amongst the three of us about whether Mr. Eliason’s
       testimony may—did or did not include information about Mr. Finch
       being agitated when he refused treatment and assessment. In
       regard to that, you should rely on your recollection of the testimony
       and you should disregard Ms. Salic’s argument in that specific
       regard if the evidence does not support that.

       The defendant made no objections to the jury instructions. The jury was

instructed that arguments by lawyers are not evidence.

       The jury was also instructed the State “must prove both” of the following:

“1. On or about the 2nd day of April, 2010, the defendant operated a motor

vehicle. 2. At that time, the defendant was under the influence of alcohol.”

       An additional instruction stated:

              A person is “under the influence” when, by drinking liquor
       and/or beer, one or more of the following is true:
              1. His reason or mental ability has been affected.
              2. His judgment is impaired.
              3. His emotions are visibly excited.
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             4. He has, to any extent, lost control of bodily actions or
       motions.

       The jury found Finch guilty of OWI. The court denied defendant’s post-

trial motions, including a motion for new trial, in which the defendant contended

the court erred in allowing Officer Gobeli’s memory to be refreshed by reviewing

a transcript, and that Finch had been denied a fair trial by the prosecutor’s

misconduct in misstating the evidence and by a juror’s refusal to join in

deliberations due to the juror’s sleep apnea. Finch also asserted the verdict was

against the weight of the evidence.

       The district court explained its reasoning for denying the posttrial motions

in ruling on Finch’s motion to reconsider and to enlarge.

       The court sentenced Finch to an indeterminate five-year term, suspending

all but thirty days.

       Finch now appeals, contending he was denied due process and a fair trial

as a result of prosecutorial misconduct, the trial court’s failure to properly

admonish the jury after the prosecutor’s statement in closing arguments, and the

court having allowed the use of prior testimony from a department of

transportation (DOT) hearing to refresh a witness’s memory. He also asserts the

district court erred in denying his motion for a new trial where a juror stated she

abstained from a preliminary vote because she shared the defendant’s condition

of sleep apnea. Finally, he argues the verdict was against the weight of the

evidence.
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         II. Scope and Standards of Review.

         We review a district court’s evidentiary rulings and rulings on motions for

new trial for an abuse of discretion. State v. Elliott, 806 N.W.2d 660, 673 (Iowa

2011) (evidentiary rulings); State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)

(new trial). To the extent a claim on appeal involves constitutional issues, our

review is de novo. Simmons v. State Public Defender, 791 N.W.2d 69, 73 (Iowa

2010).

         III. Discussion.

         A. Prosecutorial misconduct. A defendant is entitled to a fair trial, not a

perfect one. State v. Lyman, 776 N.W.2d 865, 875 (Iowa 2010); State v. King,

256 N.W.2d 1, 12 (Iowa 1977). Finch asserts that alleged misconduct by the

county attorney deprived him of a fair trial. See State v. Graves, 668 N.W.2d

860, 867 (Iowa 2003); DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002) (stating

prosecutorial misconduct that denies the defendant a fair trial is a violation of due

process); see also U.S. Const. amend. XIV.

                The initial requirement for a due process claim based on
         prosecutorial misconduct is proof of misconduct. Evidence of the
         prosecutor’s bad faith is not necessary, as a trial can be unfair to
         the defendant even when the prosecutor has acted in good faith.
                The second required element is proof the misconduct
         resulted in prejudice to such an extent that the defendant was
         denied a fair trial. “Thus, it is the prejudice resulting from
         misconduct, not the misconduct itself, that entitles a defendant to a
         new trial.” In determining prejudice the court looks at several
         factors “within the context of the entire trial.” We consider (1) the
         severity and pervasiveness of the misconduct, (2) the significance
         of the misconduct to the central issues in the case, (3) the strength
         of the State’s evidence, (4) the use of cautionary instructions or
         other curative measures, and (5) the extent to which the defense
         invited the misconduct.

Graves, 668 N.W.2d at 869 (citations omitted).
                                         8


      Even if we assume that the prosecutor’s conceded misstatement of the

testimony constitutes misconduct, we do not determine the isolated statement

was sufficiently prejudicial to require a new trial. See State v. Carey, 709 N.W.2d

547, 554 (Iowa 2006) (concluding prosecutor’s misstatement in closing argument

about a mistaken knife reference, even if not made in good faith, is considered

“only as bearing on the ultimate issue of prejudice”). The statement was made in

final argument. Under the court’s instruction, arguments of counsel were not to

be considered as evidence.

      As observed by the trial court in its denial of Finch’s post-trial motions:

      The State’s sole reference in closing argument to agitation was an
      insignificant error, which the defendant had ample opportunity to
      address in his closing argument. There was no prejudice to the
      defendant. Additionally, this court interprets (and intended) its
      admonition to the jury differently than does the defendant. The
      court told the jury that it didn’t remember any such testimony (and
      not that it could not remember the evidence). Nonetheless, the
      court instructed the jury in a widely accepted manner by reminding
      the jury to rely on its recollection of the evidence and give that
      evidence the weight and value it believes it entitled to receive.

We find no abuse of discretion.

      B. Use of prior testimony to refresh memory. Finch argues strenuously

Officer Gobeli was improperly allowed to refresh his recollection. We find no

error in the trial court’s allowing the witness to review his prior testimony. See

State v. Elliott, 806 N.W.2d 660, 673 (Iowa 2011) (“Rule 5.612 allows a person to

refresh his or her memory while or before testifying. Iowa R. Evid. 5.612. Once

refreshed, the witness may testify as to his or her refreshed recollection subject

to cross-examination.”).
                                          9


       Finch’s argument is premised on rules relating to the admissibility of

hearsay.   The writing with which Gobeli refreshed his recollection was not

admitted into evidence; we need not decide whether the writing with which he

refreshed his memory was or was not hearsay or admissible. See, generally,

Iowa Rs. Evid. 5.801(d)(1)(A), .803(5).

       C. Juror Conduct. Finch asserts that after trial—in the presence of the trial

judge—his counsel spoke with the jury foreman who said a juror abstained from

an initial vote because she had sleep apnea. Finch’s motion for new trial alleged

the juror’s misconduct required a new trial. The district court denied the motion,

stating:

       Contrary to defendant’s assertions, it was clear to the court that the
       foreperson indicated that a single juror declined to vote on the “first
       round” because she did not want to unduly influence the opinion of
       the other jurors. The foreperson in no way indicated that the juror
       was unwilling or unable to participate in subsequent deliberations or
       that the juror failed to do so in good faith.

We find no abuse of discretion.

       D. Verdict was not contrary to the weight of the evidence. Finally, Finch

argues the court erred in failing to enter a judgment of acquittal on the ground the

verdict was contrary to the weight of the evidence. “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.” Shanahan, 712 N.W.2d at 135

(internal quotation marks and citation omitted).           The district court has

considerable discretion when determining a motion for new trial under the weight-

of-the-evidence test. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). “Except in

the extraordinary case where the evidence preponderates heavily against the
                                         10


verdict, trial courts should not lessen the jury’s role as the primary trier of facts

and invoke their power to grant a new trial.” Shanahan, 712 N.W.2d at 135. This

is not such an extraordinary case. Finch was discovered passed out behind the

wheel of his truck on the wrong side of the road. Witnesses testified he smelled

of alcoholic beverage.     While Finch presented testimony that he was later

diagnosed with sleep apnea, the jury could rationally determine he was operating

while intoxicated.

       AFFIRMED.
