State of Iowa v. Mary Zarwie

IN THE COURT OF APPEALS OF IOWA

No. 22-0770
Filed May 10, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MARY ZARWIE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Becky Goettsch,

District Associate Judge.

Mary Zarwie appeals her conviction for operating while intoxicated, first

offense. AFFIRMED.

Austin Jungblut of Parrish Kruidenier Dunn Gentry Brown Bergmann &

Messamer L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Considered by Schumacher, P.J., Ahlers, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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DOYLE, Senior Judge.

Mary Zarwie appeals her conviction for operating while intoxicated (OWI),

first offense, in violation of Iowa Code section 321J.2(1)(a) (2021), a serious

misdemeanor. She claims there was insufficient evidence to support her

conviction. Upon our review, we affirm.

I. Background Facts and Proceedings

At around 5:00 a.m. on November 27, 2021, Johnston police officer

Naidenoff was driving northbound on Merle Hay Road near 62nd Avenue. The

officer went to turn right on to 62nd Avenue and saw a car in the wrong lane of

traffic traveling westbound in the eastbound lanes of 62nd Ave. The car corrected,

and Officer Naidenoff initiated a traffic stop.

During the stop, the officer learned Zarwie was the driver of the vehicle. He

observed her watery, bloodshot eyes, and smelled the odor of alcohol and burnt

marijuana coming from the car. Zarwie admitted to driving on the wrong side of

the road, as well as drinking and smoking marijuana earlier. Based on those

admissions and observations, Officer Naidenoff placed Zarwie in his patrol car and

called for backup. After Officer Johnston arrived on the scene, Officer Naidenoff

asked Zarwie to step out of his vehicle and perform field sobriety tests. To test for

alcohol impairment Officer Naidenoff performed a horizontal gaze nystagmus test

(HGN), a walk-and-turn test, and a one-leg-stand test. Zarwie showed no

nystagmus in the HGN test. The officer noted Zarwie’s pupils were dilated. He

observed two out of eight clues during the walk-and-turn test and three out of four

clues in the one-leg-stand test. Officer Naidenoff believed Zarwie was under the

influence of alcohol and marijuana.
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Officer Johnston assisted in the traffic stop and performed additional testing

on Zarwie to check for impairment from drugs. Officer Johnston is Advanced

Roadside Impairment Driving Enforcement (ARIDE) certified, making him qualified

to test drug impairment along with alcohol impairment. When Zarwie got out of the

patrol car, Officer Johnston observed that she had droopy eyelids—ptosis, a sign

of marijuana use. He smelled the odor of burned marijuana coming from her. She

appeared unsteady on her feet and had bloodshot, watery eyes. To test for drug

impairment, Officer Johnston performed a Modified Romberg test, a lack-of-

convergence test, and finger-to-nose test. During those three tests, Officer

Johnston saw tremors in Zarwie’s hands, legs, and eyes; an oval sway; and a lack

of convergence in Zarwie’s eyes. He suspected Zarwie was under the influence

of marijuana. Zarwie was arrested and taken to the police station. Zarwie refused

to submit to any chemical testing.

At trial, the State offered the testimony of both officers along with video

footage of the field testing. The jury found Zarwie guilty of operating while

intoxicated.

II. Standard of Review

On appeal, Zarwie challenges the sufficiency of the evidence supporting her

conviction. We review the sufficiency-of-the-evidence claims for correction of

errors at law. See State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). In

conducting that review, we are highly deferential to the jury’s verdict. Id. It is the

jury’s function to weigh the evidence and “place credibility where it belongs.” State

v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (quoting State v. Blair, 347 N.W.2d

416, 420 (Iowa 1984). The jury’s verdict binds this court if it is supported by
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substantial evidence. State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017).

Substantial evidence is evidence sufficient to convince a rational trier of fact the

defendant is guilty beyond a reasonable doubt. Id. We view the evidence in the

light most favorable to the State, including all “legitimate inferences and

presumptions that may fairly and reasonably be deduced from the record

evidence.” Id. (quoting State v. Williams, 695 N.W.2d 23, 37 (Iowa 2005)). The

question is whether the evidence supports the finding the jury made, not whether

it would support a different finding. State v. Lacey, 968 N.W.2d 792, 800 (Iowa

2021).

III. Discussion

The offense of operating a motor vehicle while intoxicated consists of two

elements: (1) the defendant was operating a motor vehicle, (2) and at that time

they were “under the influence of an alcoholic beverage or other drug or a

combination of such substances.” Iowa Code § 321J.2(1)(a). Zarwie does not

challenge the first element, but claims there was insufficient evidence to prove she

was under the influence of alcohol, drugs, or both at the time she was driving.

When determining that Zarwie was under the influence the jury was instructed as

follows:

A person is “under the influence” when, by drinking liquor
and/or beer and/or consuming 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.
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See State v. White, No. 19-0784, 2020 WL 3569581, at *2 (Iowa Ct. App. July 1,

2020). The jury only needed to find one of the above existed to find that Zarwie

was under the influence.

Zarwie asserts her case is akin to State v. Weiland, No. 10-1873, 2011 WL

5394398 (Iowa Ct. App Nov. 9, 2011). In Weiland, a customer at a fast-food

restaurant observed Weiland acting intoxicated and reported it to a nearby police

station. 2011 WL 5394398, at *1. An officer was dispatched to the restaurant

where he observed Weiland getting into his vehicle. Id. The officer talked to

Weiland but did not see any visible signs of intoxication. Id. He told Weiland he

was free to go. Id. After receiving word that the officer should have questioned

Weiland further, the officer followed Weiland’s car and stopped him again. Id.

Weiland was then brought to the station for driving without a license. Id. At the

station, a different officer observed signs of intoxication and performed sobriety

tests. Id. During the sobriety tests, the officers observed leg tremors and eyelid

tremors, and Weiland had trouble following the instructions for the walk and turn

test. Id. at *2. On appeal, the State essentially conceded the first three elements

of “under the influence” were not present and focused instead on the fourth

element: whether the defendant “has, to any extent, lost control of bodily actions

or motions.” Id. at *2. This court reversed the conviction because the State’s

evidence in support of the “under the influence” element was not substantial since

the signs of intoxication observed at the police station were not tied to Weiland’s

operation of a motor vehicle. Id. at *4.

In contrast, Zarwie’s intoxication was directly tied to her operation of a motor

vehicle. Zarwie was pulled over for driving in the wrong lane of traffic, establishing
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impaired judgement and that her reason or mental ability was affected. During the

field sobriety tests, she had leg and eye tremors along with swaying, showing she

had lost control of bodily actions or motions. Zarwie refused to submit for chemical

testing. Evidence of chemical testing is not a prerequisite for a conviction under

section 321J.2(1)(a). State v. Orr, No. 05-1864, 2006 WL 2419198, at *2 (Iowa Ct.

App. Aug. 23, 2006) (“A person may be found guilty under section 321J.2(1)(a) in

the absence of admissible evidence from chemical tests.”). And a refusal to submit

to testing can be used by the factfinder as evidence of guilt. See Iowa Code

§ 321J.16; see also State v. Kilby, 961 N.W.2d 374, 375 (Iowa 2021); State v.

Walter, No. 21-0446, 2022 WL 610571, at *4 (Iowa Ct. App. Mar. 2, 2022).

Officer Johnston is ARIDE certified and has performed forty-two OWI

arrests as a Johnston police officer. In his experience as a police officer, he has

had occasion to come into contact with people intoxicated by alcohol or drugs

around seventy times. Officer Naidenoff has performed around two hundred traffic

stops where intoxication was an issue, made twenty-eight OWI arrests, and

assisted officers in others. Based on their training and interactions with Zarwie,

the officers determined she was intoxicated by both alcohol and marijuana. See

State v. Sanchez-Casco, No. 17-1833, 2018 WL 6132282, at *4 (Iowa Ct. App

Nov. 21, 2018) (holding in part that the jury could determine the defendant was

under the influence based on the officer’s training and experience, the video

footage, and the defendant’s refusal to submit to any form of chemical testing);

State v. Blake, No. 15-1771, 2016 WL 4384253, at *2 (Iowa Ct. App. Aug. 17,

2016) (“The court may also consider an officer’s opinion regarding another

person’s sobriety.”). The body camera footage from that night corroborates the
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officers’ accounts of Zarwie’s actions and supports their professional opinion that

she was under the influence. See State v. Derby, No. 16-0844, 2017 WL 1735685,

at *4 (Iowa Ct. App. May 3, 2017). In addition, Zarwie admitted to drinking alcohol

and smoking marijuana. See State v. Newton, 929 N.W.2d 250, 255 (Iowa 2019)

(“It is common knowledge that the consumption of alcohol and other drugs can

impair the ability to safely operate a motor vehicle.”).

IV. Conclusion

Viewing the evidence in a light most favorable to the verdict, substantial

evidence supports the jury’s finding of guilt. Accordingly, we affirm.

AFFIRMED.