State of Iowa v. Dmitriy Aexandrovi Zenchenko ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1637
Filed July 13, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DMITRIY ALEXANDROVI ZENCHENKO,
Defendant-Appellant.
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Appeal from the Iowa District Court for Pottawattamie County,
Scott D. Strait, District Associate Judge.
Dmitriy Zenchenko challenges the sufficiency of the evidence supporting
his conviction for operating while intoxicated. AFFIRMED.
Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.
Brenna Bird, Attorney General, and Thomas E. Bakke, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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AHLERS, Judge.
A jury found Dmitriy Zenchenko guilty of operating a motor vehicle while
intoxicated in violation of Iowa Code section 321J.2(1)(a) (2021). Zenchenko
appeals, challenging the sufficiency of the evidence supporting the guilty verdict.
A jury instruction required the State to prove two elements to establish the
offense: (1) on or about the 9th day of August 2021, Zenchenko operated a motor
vehicle; and (2) at that time, Zenchenko was under the influence of alcohol, drugs,
or a combination of alcohol and drugs. As Zenchenko raised no objection to this
marshaling instruction, it is the law of the case for purposes of reviewing the
sufficiency of the evidence. See State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022)
(“Where, as here, the defendant does not object to the marshaling instructions, the
marshaling instructions are the law of the case for purposes of reviewing the
sufficiency of the evidence.”).
Zenchenko challenges the sufficiency of the evidence as to the first
element—that he was operating the vehicle. As an alternative argument,
Zenchenko asserts that, even if the State proved that he operated the vehicle, it
failed to prove that he was under the influence at the time of the operation as
opposed to later when witnesses came into contact with him.
We review challenges to the sufficiency of the evidence for errors at law.
Id. at 516. We are highly deferential to the jury’s verdict and are bound by that
verdict if it is supported by substantial evidence. Id. “Substantial evidence is
evidence sufficient to convince a rational trier of fact the defendant is guilty beyond
a reasonable doubt.” Id. at 516–17. “In determining whether the jury’s verdict is
supported by substantial evidence, we view the evidence in the light most
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favorable to the State, including all ‘legitimate inferences and presumptions that
may fairly and reasonably be deduced from the record evidence.’” Id. at 517(quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
The record reveals that, in the early morning hours of August 9, 2021, a 911
caller reported watching a semi-truck be driven into the ditch of interstate 80.
Approximately twelve minutes later, a Pottawattamie County deputy sheriff
responding to the 911 call arrived at the scene. The deputy found a semi-truck
and attached trailer in the ditch and no one in the driver’s seat of the truck. The
deputy felt the engine bay of the truck and “it was still very warm.” The deputy
knocked on the truck window and noticed movement of the curtains separating the
driver area and the sleeper area of the truck cab. A man, later identified as
Zenchenko, came out of the sleeper portion of the truck cab, attempted to unlock
the driver’s side door of the truck, failed, and returned to the sleeper area. A short
time later, an ambulance and rescue team arrived on the scene and were able to
get Zenchenko to unlock and open the passenger door of the truck. Zenchenko
was the only person in the locked truck. During the deputy’s interactions with
Zenchenko, the deputy began to suspect that Zenchenko was under the influence
of alcohol. The deputy observed several signs of impairment during his
interactions with Zenchenko. Zenchenko eventually admitted being drunk several
times and stated that he had been drinking three hours before the accident.
Zenchenko refused field sobriety tests. The deputy arrested Zenchenko. After
being placed in the back of the deputy’s patrol vehicle, Zenchenko attempted to
open the door, pull his handcuffs apart, and bite them. A different deputy found an
empty bottle of liquor and the keys to the truck in the sleeper portion of the truck.
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We find this evidence sufficient to convince a reasonable trier of fact that
Zenchenko operated the truck and that he was under the influence of alcohol at
the time he operated it. A reasonable fact finder could conclude that Zenchenko,
as the sole occupant found inside the locked truck with access to the keys twelve
minutes after the truck was driven into the ditch, is the person who drove the truck
into the ditch. And, the signs of intoxication witnessed by the deputy coupled with
Zenchenko’s repeated admissions that he was drunk and admission that he had
been drinking three hours before the accident are sufficient to enable a reasonable
fact finder to conclude that Zenchenko was in his intoxicated condition at the time
he was operating the truck and drove it into the ditch.
Zenchenko relies heavily on State v. Creighton to argue there is insufficient
evidence that he was intoxicated at the time he operated the truck. 201 N.W.2d
471, 473 (Iowa 1972). While Creighton bears a few similarities to this case, it is
easily distinguishable. The primary similarity is that Zenchenko, like the defendant
in Creighton, was involved in a single-vehicle accident consisting of driving a
vehicle into a ditch along a highway. See id. From there, the similarities largely
end. In Creighton, the supreme court found that there was sufficient evidence to
permit a jury to find that Creighton was the driver of the vehicle because he was
found “wandering about in the center of the highway” when a law enforcement
officer arrived at the accident scene and he made admissions of being the driver.
Id. at 472. While finding there was a factual dispute whether Creighton was
intoxicated, the supreme court found insufficient evidence to permit a fact finder to
conclude that Creighton was intoxicated at the time he was operating the vehicle.
Id. at 473. However, in concluding that the record was “completely silent on [the]
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vital point” of establishing intoxication at the time of operation, the supreme court
noted: “There were no witnesses. We have no way of knowing when it occurred;
how much later the highway patrolman arrived (he refused to say); or what
transpired between the time of the accident and the time of arrest. This hardly
meets the State’s burden of proof.” Id. Zenchenko’s case differs significantly from
the Creighton narrative. Unlike in Creighton, a witness observed the truck be
driven into the ditch and reported it immediately, establishing when the accident
occurred. Also unlike in Creighton, we know how much later a law enforcement
officer arrived on the scene—twelve minutes. We also have evidence of what
transpired between the time of the accident and the time of arrest. Zenchenko was
alone in the locked truck with the keys to the truck in the sleeper area of the cab
where he was found, providing circumstantial evidence that Zenchenko did not
leave the truck after driving it into the ditch. Further, as to what transpired between
the accident and contact with law enforcement, Zenchenko admitted that he was
drunk and that his drinking took place three hours earlier—effectively foreclosing
any suggestion that Zenchenko became intoxicated by drinking during the twelve-
minute window between the accident and arrival of law enforcement.
Finding Creighton distinguishable on its facts, we conclude it does not
compel a finding of insufficient evidence. To the contrary, we conclude there is
sufficient evidence permitting a reasonable fact finder to conclude that Zenchenko
was the operator of the truck and that he was under the influence of alcohol at the
time of the operation. Therefore, we affirm his conviction for the offense charged.
AFFIRMED.