State of Iowa v. Russell Keith Kutcher ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0602
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RUSSELL KEITH KUTCHER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County, Emily S. Dean,
District Associate Judge.
A defendant appeals his conviction for driving with a suspended license.
AFFIRMED.
Beau A. Bergmann of Bergmann Law Firm, P.L.L.C., Mt. Pleasant, for
appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Tyler J. Buller, and
Jean C. Pettinger, Assistant Attorneys General, Louis S. Soven, Student Legal
Intern, Michael Short, County Attorney, and Clinton R. Boddicker, Assistant
County Attorney, for appellee.
Considered by Tabor, P.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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TABOR, P.J.
Russell Kutcher appeals his conviction for driving with a suspended
license, in violation of Iowa Code section 321J.21 (2013). Advancing claims
under both sufficiency and weight-of-the-evidence headings, Kutcher asserts the
State did not prove he was driving on the date in question. Because Kutcher did
not move for a new trial, he did not preserve his challenge to the weight of the
evidence. Because the jurors were entitled to believe the police officer who
testified he saw Kutcher driving, we decline to disturb the guilty verdict.
Accordingly, we affirm.
At Kutcher’s trial, Fort Madison Police Officer Randy Davis testified he
received a dispatch during the afternoon of September 26, 2013, reporting that
Kutcher was seen driving a gray Cadillac Seville. Officer Davis knew Kutcher
and knew his license was suspended due to a prior conviction for operating while
intoxicated. The officer drove west to the area of the sighting and personally saw
Kutcher driving the Cadillac eastbound. Officer Davis turned his squad car
around and followed Kutcher. A few minutes later, the officer arrived to see
Kutcher closing the front driver’s side door of the Cadillac and walking down the
sidewalk. Officer Davis made contact with Kutcher, who denied driving the
vehicle. The officer placed Kutcher under arrest. Kutcher asked if he could
retrieve his puppy out of the hot car, and the officer agreed. Officer Davis
transported both Kutcher and his puppy to the police station.
Kutcher stipulated that his license was suspended but testified he had not
been driving. Rather Kutcher told the jury he was inside his wife’s car because it
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had overheated and he wanted to pop the hood and check the radiator. Kutcher
testified Officer Davis had a vendetta against him. Kutcher’s wife corroborated
Kutcher’s version of events. After deliberating for twenty-eight minutes, the jury
returned a guilty verdict. On appeal, Kutcher claims the verdict was not
supported by substantial evidence and also claims it was contrary to the weight
of the evidence.
I. Standards of Review
We review sufficiency claims for correction of legal error. State v.
Sanford, 814 N.W.2d 611, 615 (Iowa 2012). If we were to reach the weight-of-
the-evidence argument, we would apply an abuse-of-discretion standard. State
v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).
II. Analysis
Before deciding if the State presented sufficient proof of Kutcher’s driving,
we address the State’s claim that he failed to preserve his argument the verdict
was contrary to the weight of the evidence. To preserve error, Kutcher was
required to file a motion for new trial. See Iowa R. Crim. P. 2.24(2)(b)(6).
Kutcher did not file a motion for new trial nor does he claim on appeal that trial
counsel was ineffective for not doing so. Accordingly, Kutcher has not preserved
error on his claim, raised for the first time on appeal, that he was entitled to a
new trial because the verdict was contrary to the weight of the evidence. See
State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (stating we do not consider
issues raised for the first time on appeal).
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Kutcher preserved his sufficiency-of-the-evidence claim by unsuccessfully
moving for judgment of acquittal. “In determining the correctness of a ruling on a
motion for judgment of acquittal, we do not resolve conflicts in the evidence, pass
upon the credibility of witnesses, or weigh the evidence.” State v. Hutchison, 721
N.W.2d 776, 780 (2006) (citing State v. Williams, 695 N.W.2d 23, 28 (Iowa
2005)). Those tasks are for the jury. Id. We recognize jurors are free to “reject
certain evidence” and “credit other evidence.” Sanford, 814 N.W.2d at 615.
We uphold verdicts if they are supported by substantial evidence. State v.
Keeton, 710 N.W.2d 531, 532 (Iowa 2006). Evidence is substantial if it would
convince a rational fact finder the defendant is guilty beyond a reasonable doubt.
Id. We view the evidence in the light most favorable to the verdicts, including
legitimate inferences and presumptions that may fairly and reasonably be
deduced from the record evidence. Id.
For a driving under suspension conviction, the State was required to prove
two elements: (1) Kutcher’s driver’s license was suspended due to a violation of
chapter 321J and (2) he drove a motor vehicle while the license was suspended.
See Iowa Code § 321J.21(1). Kutcher stipulated that on September 26, 2013,
his license was suspended. The sole question before the jury was whether the
State proved Kutcher drove his wife’s Cadillac on the day of his arrest.
Kutcher argues “there is only sufficient evidence to sustain a guilty verdict
if the State’s evidence is wholly inconsistent with any rational hypothesis of [his]
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innocence.”1 Forty years ago, our supreme court used that language in
analyzing sufficiency questions when the State’s case rested on circumstantial
evidence alone. See State v. Overstreet, 243 N.W.2d 880, 884–85 (Iowa 1976).
But the court has since eliminated the distinction between direct and
circumstantial evidence when testing the sufficiency of the evidence. See State
v. O’Connell, 275 N.W.2d 197, 204–05 (Iowa 1979). Accordingly, we decline to
apply that sufficiency standard here.
The State presented direct evidence of Kutcher’s guilt. Officer Davis
testified he saw Kutcher driving the Cadillac. That testimony alone is sufficient to
generate a jury question. The jury could believe the officer’s eyewitness
recollection of the events and find Kutcher’s guilt beyond a reasonable doubt. In
addition, the officer testified that moments later he saw Kutcher shut the driver’s
side door of the parked car and walk away—at a location about four blocks from
the Kutcher residence. The jury was free to infer that Kutcher parked the
Cadillac at the first place he could avoid being stopped for driving while his
license was suspended. That inference was bolstered by the fact Kutcher
walked away leaving his puppy behind in the car.
While Kutcher and his wife testified Kutcher did not drive the car that day,
“[t]he jury is free to believe or disbelieve any testimony as it chooses.” State v.
Thornton, 498 N.W.2d 670, 673 (Iowa 1993). As defense counsel framed the
issue in his opening statement: “All we have is Officer Davis’ word and Russell
1
Kutcher cites State v. Thomas, 847 N.W.2d 438, 458 (Iowa 2014) (Hecht, J.,
dissenting) for the proposition that the wholly-inconsistent-with-innocence standard is
still viable. Kutcher’s argument has two shortcomings. First, the language is cited in the
dissent, and second, it is discussed in the context of constructive possession.
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Kutcher’s word.” The jurors accepted the officer’s word. The evidence was
sufficient to support Kutcher’s conviction for driving while his license was
suspended.
AFFIRMED.