State of Iowa v. Hope Jennifer Clark

IN THE COURT OF APPEALS OF IOWA

No. 23-0964
Filed September 18, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

HOPE JENNIFER CLARK,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Emily Dean,

Judge.

A defendant appeals her conviction for operating while intoxicated.

AFFIRMED.

Kent A. Simmons, Bettendorf, for appellant.

Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney

General, for appellee.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ.
2

AHLERS, Presiding Judge.

A jury found Hope Clark guilty of operating while intoxicated (OWI). She

challenges her conviction in three respects. She argues her conviction is not

supported by sufficient evidence, challenges the district court’s denial of her motion

to suppress, and claims the court erred in admitting hearsay evidence.

I. Sufficiency of the Evidence

We begin with Clark’s challenge to the sufficiency of the evidence

supporting her conviction because success on this challenge would require us to

remand for judgment of acquittal and end our inquiry. We review claims of

insufficient evidence for correction of errors at law. State v. Cook, 996 N.W.2d 703,

708 (Iowa 2023). “We will uphold a jury’s verdict if it is supported by substantial

evidence.” Id. There is substantial evidence if it could convince a rational fact

finder of the defendant’s guilt beyond a reasonable doubt. Id. We “view the

‘evidence in the light most favorable to the State, including legitimate inferences

and presumptions that may fairly and reasonably be deduced from the record.’”

Id. (quoting State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005)).

The marshaling instruction required the State to establish two elements:

(1) “On or about the 9th day of June, 2022, in Des Moines County, Iowa, the

defendant operated a motor vehicle” and (2) “[a]t that time the defendant was

under the influence of alcohol, drugs, or a combination of alcohol and drugs.” Clark
3

contends the State failed to produce sufficient evidence supporting the second

element.1 A definitional instruction explained:

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

Following our review of the record, we conclude the State produced

sufficient evidence to convince a rational fact finder that Clark was under the

influence when she was operating her vehicle. Two law enforcement officers

occupying the same patrol vehicle testified that as they followed Clark’s vehicle,

they saw Clark drive her vehicle into a curb, repeatedly drive out of her lane of

travel, and drive faster than the posted speed limit. Much of this testimony was

corroborated by dashcam video.

After the officers stopped Clark’s vehicle and one of them approached Clark

on foot, Clark began to drive off. The officer had to slap the side of Clark’s vehicle

and yell at her to stop before Clark fully stopped. Once she fully stopped, Clark

admitted to drinking that night.2 Both officers smelled the odor of an alcoholic

beverage coming from Clark. As the second officer asked Clark to get out of the

vehicle, he had to remind Clark to shift her vehicle into park. She was unsteady

as she exited the vehicle and reached out to the side of the car to maintain her

1 As Clark did not challenge the jury instructions, they are the law of the case for

purposes of reviewing the sufficiency of the evidence. See White v. State, 5
N.W.3d 315, 325 (Iowa 2024).
2 She later denied drinking when asked by the second officer.
4

balance. The officer administering field sobriety testing observed six out of six

indicators of intoxication when administering the horizontal gaze nystagmus test.

Clark attempts to explain away these indicators that she was under the

influence by pointing to evidence favorable to her, including highlighting that she

has a significant hearing impairment that impacts her speech and ability to

understand verbal instructions.3 But her arguments asking us to resolve conflicts

in the evidence in her favor and attempting to explain away unfavorable evidence

are arguments for the fact finder, not an appellate court. See State v. Musser, 721

N.W.2d 758, 761 (Iowa 2006) (“It is not the province of the court . . to resolve

conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; [instead,] such matters are

for the jury.” (citation omitted)). Taking all of the evidence presented and viewing

it in the light most favorable to the State, a reasonable juror could conclude that

Clark was under the influence of alcohol, so her conviction for OWI is supported

by sufficient evidence.

II. Motion to Suppress—Iowa Code Section 804.20

Next, we address Clark’s argument that the district court erred in denying

her motion to suppress alleging she was denied her right to consult her attorney in

violation of Iowa Code section 804.20 (2022).4 As Clark’s motion to suppress is

3 To the extent Clark challenges the field sobriety testing given any failure to
accommodate her hearing deficit during testing, her criticisms go the weight of the
evidence rather than its admissibility. See State v. Martin Sebastian, No. 22-1080,
2024 WL 702226, at *3 (Iowa Ct. App. Feb. 21, 2024).
4 Clark also claims that the motion to suppress should have been granted because

her federal constitutional rights were violated. But the district court’s ruling on the
motion to suppress only addressed the potential violation of Iowa Code
5

based on a claimed statutory violation, our review is for legal error. State v. Casper,

951 N.W.2d 435, 437 (Iowa 2020). Likewise, “[w]e review a district court’s

interpretation of Iowa Code section 804.20 for errors at law.” State v. Davis, 922

N.W.2d 326, 330 (Iowa 2019) (citation omitted). “If the district court applied the

law correctly and substantial evidence supports the court’s findings of fact, we will

affirm the district court’s ruling on a motion to suppress.” Id.

Section 804.20 provides in relevant part:

Any peace officer or other person having custody of any
person arrested or restrained of the person’s liberty for any reason
whatever, shall permit that person, without unnecessary delay after
arrival at the place of detention, to call, consult, and see a member
of the person’s family or an attorney of the person’s choice, or both.
Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney. If a call is
made, it shall be made in the presence of the person having custody
of the one arrested or restrained. If such person is intoxicated, or a
person under eighteen years of age, the call may be made by the
person having custody.

Here, Clark requested to speak with an attorney during the traffic stop after

officers asked if she would consent to a preliminary breath test. Clark was not

entitled to make phone calls while still on the side of the road during the traffic stop.

See Davis, 922 N.W.2d at 334–35. But she was entitled to make the call “without

unnecessary delay” after being taken to a place of detention—in this case, the jail.

See id. The question for us to resolve is whether there was unnecessary delay in

giving Clark the opportunity to call her attorney once she arrived at the jail. To

section 804.20, so Clark’s constitutional challenge is not preserved for our review.
“It is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we [will] decide them on appeal.”
State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (quoting Lamasters v. State,
821 N.W.2d 856, 862 (Iowa 2012)). “This doctrine applies with equal force to
constitutional issues.” Id.
6

resolve this question, we turn to the details of what took place after Clark was

arrested and taken to the jail.

After Clark refused to take the preliminary breath test, the officers arrested

her and took her to the jail. After being processed into the jail, Clark was brought

into a room with the officers with no handcuffs or other restraints. About ten

seconds after she sat down, as Clark asked if she could have an attorney, an officer

set her cell phone down on the table in front of her, told her she had the right to an

attorney, and explained that he was going to explain her rights about getting an

attorney. Clark acknowledged the cell phone being placed in front of her and the

officer’s statement that he was going to explain her rights by saying thank you.

The officer then read Clark her Miranda5 rights; provided her a copy of the

implied consent advisory, which he placed on top of her phone; read the implied

consent advisory; read Iowa Code section 804.20 to her; and reiterated that she

could “make a reasonable amount of phone calls” before deciding if she wanted to

consent to giving a breath sample for alcohol-concentration testing. Clark

responded by saying she just wanted to speak to her attorney. The officer

immediately assured her that she could call her attorney. But Clark did not reach

for her phone, ask for a phone, request a phone book, provide the name of the

attorney she wanted to call, request any assistance in making a call, or ask for any

accommodations due to her hearing loss.

5 See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring a defendant to be

advised of the defendant’s rights prior to custodial interrogation before responses
to the interrogation are admissible against the defendant).
7

About four seconds after the officer said she could contact her attorney,

Clark stated again that she wanted her attorney. Another officer stepped in and

explained to her that she could make phone calls to reach her attorney before

deciding if she wanted to submit to a test. Clark responded to that officer by saying

that she was going to refuse testing. She then reiterated that she wanted to say

no to everything. Clark again referenced wanting her attorney and also reiterated

that she was “refusing everything.”

According to the State, this exchange demonstrates that officers gave Clark

the opportunity to contact an attorney, but she elected not to do so and instead

reached her own decision to refuse testing. Clark considers this exchange to

demonstrate the opposite. She contends it shows an undue delay between her

first request for an attorney during the traffic stop and when she was told she could

contact an attorney following the reading of her Miranda rights, the implied consent

advisory, and section 804.20. She also argues that the exchange at the station

shows she wanted to speak with an attorney, but officers prevented her from doing

so by not affirmatively facilitating that communication. As a result, she contends

that section 804.20 was violated and her refusal to test should have been

suppressed. See State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (“We apply

the exclusionary rule to violations of Iowa Code section 804.20 . . . . The

exclusionary rule extends to the exclusion of breath tests, breath test refusals, and

non-spontaneous statements obtained after unnecessary delay in allowing the

person the statutory right to consult with an attorney or family member.” (internal

citation omitted)).
8

Again, Clark was only entitled to make calls once she arrived at the jail, so

the relevant inquiry is whether the delay after arriving at the jail was unnecessary.

See Davis, 922 N.W.2d at 332. We reject Clark’s contention that there was an

unnecessary delay between her arrival at the jail and when officers gave her the

opportunity to make a phone call. To begin, it took a short period of time for Clark

to be processed into the jail. Administrative tasks associated with jailing the

detainee are expected and do not constitute unnecessary delay. See State v.

Smith, No. 16-0749, 2017 WL 510957, at *2 (Iowa Ct. App. Feb. 8, 2017) (“As a

pragmatic matter, it is unrealistic to expect law enforcement to hand an accused a

phone the minute he or she steps foot into the detention center. Necessary

security measures and administrative tasks first must be performed.”). Once Clark

was processed into the jail and brought back to the officers, she was handed her

phone within ten seconds and the officer confirmed at that time that she could call

an attorney. Clark gave no indication she wanted to call at that time. The officer

then read Clark her Miranda rights, the implied consent advisory, and the text of

section 804.20 verbatim. Less than five minutes passed to complete those

readings, at which point Clark referenced wanting to talk to an attorney and the

officer again told Clark she could call an attorney. The other officer then repeated

that she could start making calls if she wanted. Clark ultimately declined to call an

attorney and simply stated she was “refusing everything.”

We do not consider this ten-second to five-minute delay to be unnecessary

delay, given that the delay was due to the time it took to hand Clark her phone,

read her Miranda rights, read the implied consent advisory, and read

section 804.20 itself, all of which addressed details about Clark’s request to call
9

her attorney. See, e.g., id. at *2 (concluding an eleven-minute delay did not

amount to an unnecessary delay particularly when the delay was the result of

important administrative tasks that included reading the implied-consent advisory

and informing the detainee of his section 804.20 rights).

Ultimately, we agree with the district court that the delay here was not

unnecessary. Officers did not violate section 804.20, and the district court correctly

denied the motion to suppress evidence of Clark’s refusal to provide a breath

sample.

III. Hearsay

Finally, Clark argues the district court erred in admitting hearsay.

Specifically, Clark complains the officers testified that they sought out a vehicle

matching Clark’s vehicle’s description because they received information from their

dispatcher that an unknown driver had called in a report about a reckless driver.

Clark sought to exclude this testimony as double hearsay via a motion in limine

following the State’s opening statement. The district court prohibited the State

from introducing evidence of the details of what the unknown caller said to the

dispatcher but permitted the officers to testify about what the dispatcher told them.

The district court determined that the permitted evidence was not hearsay because

it was introduced to explain the officers conduct in seeking out and following the

vehicle that was the subject of the report rather than for the truth of the purported

reckless driving.

We review evidentiary rulings related to hearsay for errors at law. State v.

Thompson, 982 N.W.2d 116, 121 (Iowa 2022). Hearsay is an out-of-court

statement offered “into evidence to prove the truth of the matter asserted in the
10

statement.” Iowa R. Evid. 5.801(c). The district court has no discretion to deny

admission of evidence as hearsay if the statement falls within an enumerated

exception and has no discretion to admit evidence over a hearsay objection in the

absence of a provision allowing it. State v. Veverka, 938 N.W.2d 197, 202 (Iowa

2020). Likewise, it is legal error for a district court to exclude evidence as hearsay

if it does not meet the definition of hearsay. Cf. Thompson, 982 N.W.2d at 121

(recognizing a district court’s hearsay ruling is subject to review for legal error);

Veverka, 983 N.W.2d at 202 (recognizing the district court has no discretion when

ruling on a hearsay issue). “Where a hearsay statement includes a further hearsay

statement, both statements must conform to a hearsay exception for the statement

to be admissible.” State v. Puffinbarger, 540 N.W.2d 452, 455 (Iowa Ct. App.

1995).

We find no error in the district court’s determination that the officers’

testimony about the call they received from their dispatcher was not hearsay

because it was offered to explain responsive conduct and not to prove the truth of

the dispatcher’s statement—namely, that the suspect car was being driven

recklessly. See State v. Plain, 898 N.W.2d 801, 812 (Iowa 2017) (“An out-of-court

statement offered only to explain responsive conduct that is relevant to an aspect

of the State’s case is not offered to prove the truth of the matter asserted and is

therefore not hearsay.”). Jurors may have been left to wonder why the officers

turned their patrol vehicle around and quickly accelerated to catch up to Clark’s

vehicle if they weren’t told about the dispatch call. So the court did not err in

allowing the evidence for that purpose.
11

As to purpose, when evidence is admitted to explain responsive conduct, it

must be limited in scope to achieve only that purpose. Id. On appeal, Clark

suggests that the dispatch call evidence was used beyond the limited scope for

which it was admitted. But Clark failed to preserve error on that claim, as no

objection was lodged at the district court asserting that the use of the evidence

exceeded the scope of the purpose for which it was offered. See Buboltz v.

Birusingh, 962 N.W.2d 747, 758 (Iowa 2021) (holding a party fails to preserve error

if it does not object to improper use of evidence admitted for a limited purpose).

Further, even if we assumed for argument’s sake that the officers’ testimony

amounted to inadmissible hearsay or was not properly limited in scope to only

explain responsive conduct, we cannot provide Clark any relief because the

admission did not result in prejudice. See Plain, 898 N.W.2d at 813. It is the

State’s burden to establish that any admission was not prejudicial. Id. “The burden

to affirmatively establish lack of prejudice is met ‘if the record shows the hearsay

evidence did not affect the jury’s finding of guilt.’” Id. (citation omitted).

Here, the State met its burden of establishing a lack of prejudice. Clark’s

attorney effectively cross-examined the officers about the reckless-driving report,

and they acknowledged that they had no evidence of reckless driving, the driving

problems they observed did not constitute reckless driving, and Clark was not cited

for reckless driving. This testimony—and Clark’s attorney’s emphasis of it during

closing argument—effectively negated any harm from the suggestion of reckless

driving flowing from the dispatch-report evidence. Further, Clark testified and

admitted to swerving, speeding, and making an illegal lane change and that such

poor driving resulted in “someone calling in a reckless driver.” This admission by
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Clark made the dispatcher-report evidence cumulative. See State v. Skahill, 966

N.W.2d 1, 16 (Iowa 2021) (“Another way the State may potentially overcome the

presumption of harm [of admitting hearsay] is by showing that the wrongly admitted

evidence was cumulative.”). And Clark’s admission, coupled with the officers’

admissions that no reckless driving occurred, negated any harm from the

challenged evidence by showing that “reckless driving” was a mischaracterization

of how Clark was actually driving.

The clarification of the “reckless driving” report by both officers on cross-

examination, Clark’s admissions during her testimony, and abundant incriminating

evidence supporting Clark’s conviction cause us to conclude that any erroneous

admission of hearsay did not result in prejudice necessitating a retrial. C.f. State

v. Krogmann, 998 N.W.2d 141, 153–54 (Iowa 2023) (evaluating the inculpatory

evidence when deciding if prejudice resulted from an evidentiary error).

IV. Conclusion

The State introduced sufficient evidence to enable a reasonable fact finder

to conclude that Clark was operating a motor vehicle while under the influence of

alcohol. Also, officers did not deprive Clark of her statutory right to phone her

attorney after reaching the jail, so the district court properly denied her motion

seeking to suppress evidence of her refusal to submit to testing. Finally, the court

did not err in allowing the State to introduce evidence of a law enforcement

dispatcher’s report to officers to look for a vehicle being driven recklessly. Such

evidence was not hearsay because it was admitted to show responsive conduct
13

by the officers rather than for its truth. And, even if the evidence was hearsay, its

admission was harmless. Accordingly, we affirm.

AFFIRMED.