State of Iowa v. Eric Anela Perry

IN THE COURT OF APPEALS OF IOWA

No. 23-1062
Filed June 5, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ERIC ANELA PERRY,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Charles D.

Fagan, Judge.

A defendant appeals his conviction for operating while intoxicated.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ella M. Newell, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

Eric Perry contends that he was not intoxicated so cannot be guilty of

operating while intoxicated (OWI). A jury thought otherwise. Alternatively, Perry

contends that a juror committed misconduct so we should remand the case for

further hearing on that issue in any event. We affirm the conviction.

Two men arrived at a convenience store in a white pickup truck at around

2:45 a.m. They parked at a gas pump, got out of the truck, and went inside the

store. Once inside, two cashiers observed the men. One of the men was very

quiet, unable to speak loud enough for one cashier to hear him, struggling to stay

balanced, and unable to stand very well. The other was “very belligerently loud

and causing more of a disruption in the store.” When the cashiers agreed the two

were “under the influence of alcohol,” one cashier called 911 and reported the

possibility that a man was driving intoxicated.

Council Bluffs Police Officer Trevor Benson responded to the 911 call. He

approached a white Chevrolet Silverado parked at a gas pump and began

speaking with a man sitting in the truck. The man claimed that he had just pumped

gas and was only a passenger. A second man exited the convenience store and

walked up to the truck. Officer Benson requested identification, and the second

man offered a driver’s license, which identified him as Eric Perry; the man in the

truck identified himself as Jeremy Shepherd.

After running Perry’s driver’s license information through his database,

Officer Benson learned that Perry’s driving privileges were suspended. While

interacting with Perry, Officer Benson observed that Perry had watery eyes,

impaired balance, and smelled like ingested alcohol. He also noticed that Perry
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had slightly unsteady balance, was swaying a little bit, and moved slowly and

deliberately. Officers Jon Simonin and Trevor Mass also responded to the call,

and Officer Simonin noted that Perry slurred his speech and had a strong smell of

alcohol on his breath. Officer Mass smelled the odor of an alcoholic beverage on

Perry’s breath and noted that “his eyes were bloodshot and he had that watery,

glossy look in his eyes.” Because Perry insisted that he had not driven, Officer

Simonin reviewed security footage from the store. The footage showed Perry

driving the truck, parking it at the gas pump, and then walking into the store; the

same footage showed the passenger approach the truck, begin pumping fuel, and

sit in the driver’s seat while waiting for Perry to return.

Officer Benson placed Perry under arrest for not having a valid driver’s

license, a simple misdemeanor, in violation of Iowa Code section 321.174(1)

(2023). He informed Perry that he would also be investigating him for OWI. Officer

Benson placed Perry in the backseat of his vehicle, and while Perry was sitting

there, Officer Simonin noticed that the smell of alcohol coming from Perry

intensified.

Once at the county corrections facility, Perry refused to participate in the

horizontal gaze nystagmus, walk and turn, or one leg stand tests. Although Officer

Benson asked Perry to stand, Perry stayed sitting while Officer Benson explained

each test, and Perry spoke slowly and apathetically during each explanation. Perry

said that he had medical issues that prevented him from performing the tests

including a previous surgery on his left knee. Perry also declined to take a
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preliminary breath test or to provide a breath sample for DataMaster testing.1 The

State charged Perry via trial information with OWI, second offense, an aggravated

misdemeanor, in violation of Iowa Code section 321J.2(2)(b).

At trial, the parties waived reporting of voir dire. One convenience store

clerk testified that he and the other clerk observed signs of intoxication when they

were ringing up the purchases of the two men. All three officers testified as to their

observations of Perry at the convenience store and county corrections facility. The

State offered, and the court admitted, body camera footage from Officers Simonin

and Benson that depicted their interactions with Perry at the convenience store

and county corrections facility. On cross-examination, Officer Simonin agreed that

when he was interacting with Perry, Perry was not belligerent or slurring his words

and did not “lose his balance despite being cuffed behind the back.” Officer

Benson also conceded that when he placed Perry into the back of “the vehicle, he

didn’t stumble or fall over or anything like that.” Officer Benson agreed that at

some points Perry was able to answer questions and “had a reasonable

conversation” during which Perry was not “ever slurring his words.” Shepherd

testified on Perry’s behalf and stated that he did not see Perry drink or use any

illegal drugs on the day of his arrest. The jury found Perry guilty as charged.2

Perry filed a motion for a new trial based on juror misconduct and ineffective

assistance of counsel. He attached a screenshot of a Facebook messenger

message to the motion.3 The message was sent from someone who claimed to

1 The DataMaster tests breath samples for blood alcohol content.
2 Perry stipulated to a previous OWI conviction.
3 Although undated, Perry stated at the hearing that the message came five days

after the jury reached its verdict.
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be on Perry’s “jury for the DUI” and read, in part: “There was a Karen[4] on your jury

that was married to a cop.” The sender of the message, purportedly juror D.H.,

also wrote that the same “Karen” “said [D.H.] should be dismissed for saying that

[he doesn’t] trust the police.” Perry guessed that the juror that the sender was

writing about was A.M. Perry provided juror questionnaires as an exhibit at the

hearing on the motion, however, the questionnaire for A.M. was not included.

Perry’s counsel submitted his notes from voir dire as another exhibit; there were

no notes next to A.M.’s name. But Perry’s counsel insisted that he “certainly would

have written down that someone was married to a law enforcement official. [He]

would have struck that person.”

The court denied the motion, explaining it doubted juror D.H. was the actual

sender of the message and found that the substance of the message seemed like

it recounted something “more like jury deliberations within a normal course of

deliberating the evidence presented to them. So I don’t find that that created a

bias of any type that would warrant overturning a verdict.” The court added that

the message “is a very nebulous document that [it was] giving very little credibility

to because it just doesn’t purport to show anything that would rise to the level of

overturning the verdict.” The court then sentenced Perry to a two-year term of

imprisonment, suspended the sentence, and placed Perry on probation. It also

required that Perry “[r]eside at the Residential Correction Facility until maximum

benefits have been achieved as determined by the Department.” Perry appeals.

4The sender appears to be using “Karen” as pejorative slang. See Ashitha
Nagesh, What exactly is a “Karen” and where did the meme come from?, BBC
News (July 30, 2020), https://www.bbc.com/news/world-53588201.
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I. Standard of Review.

We review the sufficiency of the evidence supporting convictions for

correction of errors at law. State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022).

We “affirm when the verdict is supported by substantial evidence,” meaning “the

quantum and quality of evidence is sufficient to ‘convince a rational fact finder that

the defendant is guilty beyond a reasonable doubt.’” State v. Banes, 910

N.W.2d 634, 637 (Iowa Ct. App. 2018) (citation omitted). In conducting our review,

we consider the evidence in the light most favorable to the verdict, including all

reasonable inferences that may be fairly drawn from the evidence. Id.

II. Analysis.

Perry raises two arguments on appeal: (1) there was not sufficient evidence

of intoxication to support the OWI conviction and (2) the court should have granted

an evidentiary hearing to determine if there was juror bias.

A. Sufficiency-of-the-Evidence.

First, Perry argues that the State failed to provide substantial evidence to

support his conviction for OWI. Because Perry refused to submit to standardized

field sobriety testing or chemical testing, the uncontested jury instructions for OWI

here required that the State prove that he (1) “operated a motor vehicle” while

(2) he “was under the influence of alcohol, other drugs, or a combination of alcohol

or drugs.” See Iowa Code § 321J.2(1)(a); State v. Myers, 924 N.W.2d 823, 827–

28 (Iowa 2019) (noting that the operating-while-intoxicated alternative found in

section 321J.2(1)(a) “primarily utilizes evidence of a person’s conduct and

demeanor”). Perry does not contest that he was operating a motor vehicle, so we

focus our analysis on the State’s burden to prove that Perry was “under the
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influence.” Based on the instructions given to the jury, the State could meet this

burden by presenting substantial evidence that (1) Perry’s reason or mental ability

was affected, (2) his judgment was impaired, (3) his emotions were visibly excited,

or (4) he lost control of bodily actions or motions to any extent. The jury instructions

also permitted the jury to consider Perry’s refusal to provide a breath sample for

analysis in reaching its verdict. See Iowa Code § 321J.16; State v. Massick, 511

N.W.2d 384, 387 (Iowa 1994). And the jury could consider Perry’s truthfulness in

his interactions with law enforcement. See State v. Little, No. 19-1062, 2021

WL 1400068, at *9 (Iowa Ct. App. Apr. 14, 2021) (noting a jury could properly infer

guilt based upon actions such as making inconsistent statements to the police or

use of a fake name to disguise involvement).

Perry’s argument on appeal is essentially that because he “was able to

answer officer’s questions, follow directions, and asked questions of his own that

logically made sense,” the State did not present substantial evidence that he was

under the influence. But this argument ignores the evidence to the contrary that

the State did present. “Evidence is considered substantial if, when viewed in the

light most favorable to the State, it can convince a rational jury that the defendant

is guilty beyond a reasonable doubt.” State v. Trane, 934 N.W.2d 447, 455

(Iowa 2019) (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “[T]he

evidence must raise a fair inference of guilt and do more than create speculation,

suspicion, or conjecture.” State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013)

(quoting State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).

Even without the benefit of standardized field sobriety testing or chemical

testing results, the State may still present substantial evidence that a defendant
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was under the influence of alcohol. State v. Klingenberg, No. 21-0575, 2022

WL 1486840, at *2–3 (Iowa Ct. App. May 11, 2022) (finding substantial evidence

supported the OWI conviction when defendant admitted to drinking, “submitted to

a preliminary breath test but declined to participate in any field-sobriety tests,” and

“refused to provide a breath sample”); State v. Brekke, No. 18-0620, 2019

WL 1055849, at *1–2 (Iowa Ct. App. Mar. 6, 2019) (finding substantial evidence

supported the OWI conviction when defendant’s “horizontal gaze nystagmus test

indicated intoxication, but he could not complete other field sobriety tests due to a

claimed back injury” and he “refused to take a preliminary breath test” or “submit

a breath sample”). The State did so here by presenting testimony from three

members of law enforcement that Perry smelled of ingested alcohol, had glossy or

watery eyes, and moved slowly and deliberately. The convenience store cashier

testified that Perry was acting belligerently and, based on his observations of

Perry’s behavior, that he believed Perry was under the influence. And Officer

Benson testified that Perry was somewhat unsteady and was swaying on his feet.

The jury could rely on this testimony to find that Perry had lost control of his bodily

actions or motions and his emotions were visibly excited.

Perry’s argument in response to this evidence from the State usurps the

role of the jury, which was tasked with weighing any contradictory evidence and

determining the credibility of witnesses. In reviewing jury verdicts, generally, “[i]t

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; such matters are for the jury.” State v. Williams, 695 N.W.2d 23, 28

(Iowa 2005) (citation omitted). “[W]e defer to the fact finder’s determinations
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concerning witness credibility.” State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001).

This is so because “[i]nherent in our standard of review of jury verdicts in criminal

cases is the recognition that the jury [is] free to reject certain evidence, and credit

other evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (citation

omitted); see also State v. Shorter, 945 N.W.2d 1, 10 (Iowa 2020) (“[T]he jury can

believe some of a witness’s story while rejecting other parts.”).

Here, the jury was able to hear the testimony of the State’s witnesses and

reach a conclusion about that testimony’s veracity and weight. And on top of the

witness testimony, the jury viewed the body camera footage that allowed it to

independently assess Perry’s condition. Although Perry insists that the videos do

not show him slurring his words, that conclusion was for the jury to make. The jury

could also consider that Perry initially lied to the officers and said he was not the

driver of the truck. Further, the officers testified to a strong smell of ingested

alcohol coming from Perry’s person and that the smell intensified while Perry was

confined in the back of Officer Benson’s patrol vehicle. In all, this evidence, paired

with Perry’s refusal to participate in any testing and his untruthfulness about driving

the truck, was sufficient evidence for the jury to convict Perry of OWI.

B. Juror Bias.

Second, at the hearing on his motion for new trial, Perry requested an

evidentiary hearing to further explore “what went on” with the juror mentioned in

the Facebook message. Perry argues that because D.H.’s Facebook message

established that a member of the jury was married to a member of law

enforcement, the juror might have been biased against him and her failure to

disclose the relationship could be misconduct. Perry asserts he was entitled to an
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evidentiary hearing on juror bias and the case should be remanded for an

evidentiary hearing on that bias issue. The State contends challenges involving

juror misconduct and juror bias are distinct and separate and because a claim over

juror misconduct does not preserve error on a claim of juror bias, Perry did not

preserve the challenge for appeal. “Juror misconduct ordinarily relates to actions

of a juror, often contrary to the court’s instructions or admonitions, which impair the

integrity of the fact-finding process at trial,” whereas “[a] biased juror is simply

unable to come to a fair decision in a case based upon the facts and law presented

at trial.” State v. Webster, 865 N.W.2d 223, 232 (Iowa 2015). From the record we

do have, it appears Perry’s challenge is over the juror’s alleged bias. See id. (“The

question of a challenge for juror bias may be considered preserved based on the

theory that the substance of the claim, rather than its label, controls.”).

Perry’s claim implicates both his constitutional rights to a fair trial by an

impartial jury, see U.S. Const. amend. VI; Iowa Const. art. I, § 10; State v. Lilly,

930 N.W.2d 293, 298 (Iowa 2019) (“We review constitutional issues de novo.”

(citation omitted)), and the district court’s denial of his motion for new trial based

on juror bias, Webster, 865 N.W.2d at 231 (“We review a denial of a motion for a

new trial based upon juror misconduct or juror bias for an abuse of discretion.”).

But see State v. Ary, 877 N.W.2d 686, 699 (Iowa 2016) (declining to resolve

whether a defendant’s claim they were denied the right to a fair trial by an impartial

jury should be reviewed under a de novo or an abuse-of-discretion standard).

Here, our conclusion is the same under either standard of review. That said, “a

party who fails to avail himself or herself of procedures for identifying bias waives

later challenges for juror impartiality.” Webster, 865 N.W.2d at 237.
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At the outset, we note that voir dire was not reported, which leaves us with

a limited record on which to decide this matter. And as for the label of the

challenge, at the hearing on the motion for new trial, both Perry, the State, and the

court referenced juror “bias” at various times. To address the juror-bias claim, we

are left with a Facebook message containing hearsay information to support a

challenge to a juror who is not clearly identified.5 And as Perry acknowledges in

his appellate briefing, “being married to a law enforcement officer is not itself

enough to establish that this juror was unable to fairly consider the evidence.” Here

we agree with the court that, rather than suggesting improper bias warranting a

new trial, the statements outlined in the message reflect the banter that might occur

during jury deliberations. The court noted:

I don’t believe—and even that, I’m not sure that I can give that
credit, that it’s even [D.H.]. So I’m heavily discounting that that is, in
fact, [D.H.].
But even if I gave it the credit, it looks more like jury
deliberations within a normal course of deliberating the evidence
presented to them. So I don’t find that that created a bias of any type
that would warrant overturning a verdict, when we have a sealed
verdict in which all parties unanimously found him guilty of that
offense.

Other than mentioning the “biased” juror was married to a “cop,” there was no

evidence of either actual or implied bias within the text of the message. See id.

at 236. Given our review of the record, we agree with the district court’s decision

5 It was not even clear which juror supposedly sent the message, as the juror profile

identified did not show any conviction for an alcohol offense though the message
suggested the juror had a previous conviction involving the operation of a vehicle
while impaired.
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to deny the request for a further evidentiary hearing on this issue. Therefore, we

affirm the conviction.

AFFIRMED.