                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0992
                               Filed June 21, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE DOMINGO ASCENCIO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Fowler

(Trial) and Christine Dalton Ploof (sentencing), District Associate Judges.



      Jose Domingo Ascencio appeals from the judgment and sentence entered

upon his conviction of operating while intoxicated (first offense). AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



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

          Convenience store employees believed customer Jose Domingo Ascencio

was intoxicated when he drove his vehicle from the store. A Davenport police

officer stopped the vehicle and discovered an intoxicated Ascencio in the

passenger seat.

           The State charged Ascencio with operating a motor vehicle while

intoxicated (first offense), in violation of Iowa Code section 321J.2(2)(a) (2015).

Following a bench trial, the district court found him guilty. On appeal, Ascencio

argues the evidence was insufficient to support the court’s finding of guilt.

          Operating while intoxicated requires proof of two elements: (1) operation

of a motor vehicle (2) while under the influence of alcohol or while having an

“alcohol concentration” of .08 or more.                Iowa Code § 321J.2(1); State v.

Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). Ascencio focuses his appellate

argument on the first element—whether he was “operating” a motor vehicle.1

          The term “operate” has been defined as “the immediate, actual physical

control over a motor vehicle that is in motion and/or has its engine running.”

State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998) (quoting State v. Boleyn, 547

N.W.2d 202, 205 (Iowa 1996)).               Even if the evidence fails to prove that an

intoxicated defendant “was in the process of operating a motor vehicle when the

authorities found” the defendant, “circumstantial evidence may establish that the

defendant had operated while intoxicated when driving to the location.” Id.

          The district court found Ascencio guilty of OWI (first offense)



1
    At trial, his attorney stated, “[W]e’re not addressing the intoxication issue.”
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      [b]ased on the credible testimony of the two employees from [the
      convenience store], who saw him drive away from the [store] in a
      clearly intoxicated state, the test results from the DCI Criminalistics
      Laboratory, the testimony of the officers who provided several
      indications that Mr. Ascencio was intoxicated, and the credible
      testimony of [an officer] that the defendant indicated he was driving
      when asked how he arrived at the [store] . . . .

These findings, and in particular the findings relating to Ascencio’s operation of a

motor vehicle, are supported by substantial evidence.        See id. (setting forth

standard of review).

      One of the store employees testified Ascencio approached the counter

and “was, like, belching.” He was “incoherent,” and the employee thought “he

was going to puke on [the] counter.” The employee asked the store supervisor to

assist. She confirmed Ascencio “was slurring, burping, [and] just couldn’t seem

to keep his balance.” She said, “He seemed intoxicated.” After a few minutes,

both employees saw Ascencio leave the store, get into a “red SUV” and drive off.

The supervisor called the police to report a drunk driver in a red SUV.

      A Davenport police officer saw a red SUV “sitting at a green light.” A

woman was in the driver’s seat. She pulled the vehicle over and noticed that the

woman had moved to the back seat and Ascencio was in the front passenger

seat. The officer smelled alcohol in the vehicle and saw alcoholic beverages in

the center console. She testified Ascencio’s “eyes were watery and bloodshot,

his speech was slurred, he had an odor of an alcoholic beverage emanating from

his person, and when he spoke, the odor became even stronger.” He was also

“very unsteady on his feet.” She transported him to the Scott County jail, where

he was subjected to field sobriety tests and a preliminary breath test.         She
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concluded he was “highly intoxicated.” Later, Ascencio was asked how they

arrived at the gas station. He responded, “Me drive.”

       The district court as fact finder reasonably found from the convenience

stores employees’ unequivocal testimony that Ascencio drove the red SUV from

the store. Although the police officer later saw a woman at the wheel, it was

within the district court’s purview to credit the testimony of the store employees,

given a window of approximately five to ten minutes in which Ascencio could

have picked up a passenger and switched to the passenger seat.              See id.

(“[W]hen the evidence is in conflict, the fact finder may resolve those conflicts in

accordance with its own views as to the credibility of the witnesses.”).

       We affirm Ascencio’s conviction, judgment and sentence for OWI (first

offense).

       AFFIRMED.
