State v. Amisi

997 N.W.2d 683

STATE of Iowa, Appellee,

v.Bita AMISI, Appellant.

No. 22-0624

Supreme Court of Iowa.

Submitted October 10, 2023

Filed November 17, 2023

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.

A defendant convicted of operating while intoxicated third offense and eluding appeals his convictions, arguing that the district court abused its discretion in admitting evidence about a preliminary breath test and that the evidence was insufficient. Decision of Court of Appeals and District Court Judgment Affirmed.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

Mansfield, J., delivered the opinion of the court, in which Waterman, Oxley, and McDermott, JJ., joined. McDonald, J., filed a special concurrence, in which Christensen, C.J., and May, J., joined.

Mansfield, Justice.

I. Introduction.

"[M]en may construe things after their fashion," says Cicero in Shakespeare’s Julius Caesar. William Shakespeare, Julius Caesar act 1, sc. 3, 1. 34. Jurors, however, are supposed to construe the facts according to what they see in the courtroom. A recurring problem arises, therefore, when the courtroom evidence allows the jury to draw an impermissible inference.

Iowa law provides that the results of a preliminary breath test (PBT) are not generally admissible in an operating while intoxicated (OWI) prosecution. Iowa Code § 321J.5(2) (2021). Technically, that line was not crossed in this jury trial. However, over the defendant’s objection, the district court did admit a portion of an officer bodycam video showing the defendant agreeing to a PBT. The edited video then jumped immediately to the defendant’s OWI arrest.

We conclude that this juxtaposition of the PBT and arrest violated Iowa Rule of Evidence 5.403 because it had minimal probative value while strongly implying to the jury that the defendant had failed the PBT. But given the overwhelming evidence from other sources that the defendant had been driving while under the influence, we find the evidentiary error harmless. We also find sufficient evidence to sustain the defendant’s eluding conviction. Therefore, we affirm the defendant’s convictions and sentence.

II. Background Facts and Proceedings.

On August 23, 2021, Officer Angel Perez was patrolling in a residential area of Des Moines. It was approximately 7:37 p.m. and still light outside when Officer Perez observed a ear ahead of him swerve into the oncoming lane of traffic of the two-lane road. He activated the red and blue emer- gency lights of his marked police vehicle and pulled behind the car, which continued to veer back and forth dangerously between the two lanes. After approximately forty-five seconds of pursuit with his emergency lights activated, the vehicle still had not stopped. Officer Perez turned on his sirens, at which point the car noticeably accelerated and drove in the wrong (left-hand) lane for approximately fifteen seconds before slowing down and ultimately pulling into an apartment complex parking lot.

In the parking lot, the driver struggled to park his car, initially hitting the curb, then backing up too far to correct. At this point, Officer Perez exited his squad car and verbally ordered the driver to stop and get out of the vehicle. All of these events were recorded on Officer Perez’s dashcam video, which was admitted at trial.

When the driver exited his car, Officer Perez observed that he "had unsteady balance; bloodshot, watery eyes; and alcohol on his breath." Officer Perez also saw an open container of an alcoholic beverage inside the vehicle. He placed the driver, Bita Amisi, in the back of his squad car.

A second officer, Officer James Chadwick, arrived at the scene to perform an OWI investigation. He conducted a series of field sobriety tests on Amisi. Officer Chadwick attempted three times to administer the horizontal-gaze nystagmus test. Amisi, however, failed to hold his head still, preventing the proper administration of that test. Officer Chadwick marked that down as a refusal. Amisi then took and failed two more tests—the walk-and-turn and the one-leg stand. Officer Chadwick’s bodycam video showing Amisi’s performance on these field sobriety tests was admitted at trial.

Officer Chadwick then offered a PBT to Amisi. The bodycam video shows Officer Chadwick asking.

So, the last test I’m asking you to do is called a preliminary breath test. It’s where you blow into a machine. It’s not admissible in court. It kind of lets us know how much you’ve had to drink. Would you like to take that test?

Amisi agreed.

As admitted at trial, the bodycam video jumped from Amisi’s consent to taking the PBT to Officer Chadwick placing Amisi in handcuffs and saying, "Right now you are placed under arrest for operating a motor vehicle while intoxicated, OWI."

Amisi was transported to the police station. At the station, Amisi first told Officer Chadwick he was "begging" him to take him home. Officer Chadwick declined and instead brought Amisi inside the station. There he went through the implied consent procedure. Amisi was uncooperative, speaking over the officer at times and stating repeatedly that he "wasn’t driving." Amisi verbally refused to take the chemical test and signed the form acknowledging that he declined to provide a breath sample.

On September 1, the State charged Amisi by trial information with OWI third offense, a class "D" felony, and eluding, a serious misdemeanor. Iowa Code § 321J.2(1)(a), (2)(c); id. § 321.279(1)(a). Prior to trial, Amisi’s counsel objected to the State’s plan to introduce into evidence the portion of the bodycam video showing Officer Chadwick asking Amisi if he would take a PBT and Amisi agreeing. The actual administration of the PBT and the results were redacted. Counsel explained his objection as follows:

MR. McCORMACK: Your Honor, the objection is to a portion of Exhibit 4, which references -- which features Offi- cer, I believe, Chadwick offering my client the preliminary breath test

….

It features him offering the PBT to my client, my client accepting, and then it cuts the testing process out, and cuts straight to him being arrested.

THE COURT: What exactly is the objection to that, just for the record, sir?

MR. McCORMACK: I believe it’s in violation of the statute regarding the introduction of evidence of the PBT. And even if it’s not, I would argue it’s more prejudicial than probative, as the only real inference, the jury can draw from the way it’s presented is that he failed the PBT.

The district court overruled Amisi’s objection, stating that "the fact a PBT was administered is not barred from evidence … [a]s long as the PBT results are not, put into evidence."

Before Officer Chadwick took the stand, the district court allowed Amisi’s counsel to make a record that he continued to object to the portion of the video being played that showed Amisi consenting to the PBT just before being arrested. After this objection was overruled, the video was played while Officer Chadwick gave the following narration:

Q. Did you offer the defendant any other test?

A. Yes, I did.

Q. Can you tell us what that test is?

A. Called a preliminary breath test.

Q. And what is the purpose of administering this test?

A. Just measures the breath alcohol content in the breath at that time.

Q. And when offered this test, did the defendant consent?

A. Yes, he did.

Q. And at this point in the investigation, what did you decide to do?

A. At this point, I placed the defendant under arrest for operating a motor vehicle while intoxicated.

The jury found Amisi guilty of OWI and eluding. In a separate enhancement trial, the State proved that Amisi had received two prior OWI convictions, and he was convicted of OWI third offense. On March 25, 2022, Amisi was sentenced to serve consecutive sentences of incarceration not to exceed five years for OWI third offense and one year for eluding. Iowa Code § 321J.2(5)(a); id. § 903.1(1)(b). Amisi timely appealed. We transferred the case to the court of appeals.

The court of appeals panel affirmed Amisi’s convictions and sentence. Citing its own decision of Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa Ct. App. 1992), the court reasoned that "[e]vidence that a defendant agreed to take a PBT is admissible when there is no reference to the results of the test." The court also found no rule 5.403 violation. In the court of appeals’ view, the bodycam video had probative value because it showed Amisi’s "speech and physical manifestations of intoxication during the process of obtaining his consent." Without elaboration, the court added that "the danger of unfair prejudice was very low." Lastly, the court found sufficient evidence to sustain Amisi’s OWI and eluding convictions.

We granted Amisi’s application for further review.

III. Standard of Review.

[1, 2] We review the district court’s decision to admit the video under a mixed standard of review. Amisi challenges the district court’s interpretation of Iowa Code section 321J.5(2). When the issue raised is one of statutory interpretation, "[o]ur review is … for correction of errors at law."

State v. Ness, 907 N.W.2d 484, 487 (Iowa 2018) (quoting State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003)). Amisi alternatively challenges the ruling on the basis that the video was inadmissible under Iowa Rule of Evidence 5.403. "Our review … under rule 5.403 is for an abuse of discretion." State v. Lacey, 968 N.W.2d 792, 807 (Iowa 2021). "However, we will not overturn a conviction for an error in the receipt of evidence if the error was harmless," Ness, 907 N.W.2d at 487.

IV. Legal Analysis.

[3] A. Admission of PBT Evidence. In Iowa, peace officers are permitted to administer a PBT if they have reasonable grounds to believe that a motor vehicle operator is operating "[w]hile under the influence of an alcoholic beverage...