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State v. Zwagerman4/10/2002
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
Daniel Zwagerman appeals his judgment and sentence following a guilty verdict for operating while intoxicated, second offense. AFFIRMED.
Daniel Zwagerman appeals his judgment and sentence following a guilty verdict for operating while intoxicated, second offense, in violation of Iowa Code section 321J.2(2)(b) (1999). Zwagerman attacks the sufficiency of the evidence to support the guilty verdict, the trial court's denial of his motion for continuance, and the trial court's denial of his request for in-home detention. Zwagerman also contends his trial counsel was ineffective. Upon review we find this matter fits the criterion outlined in Iowa Court Rule 21.29. Accordingly, we affirm his conviction by memorandum opinion and preserve his ineffective assistance of counsel claim for possible post-conviction proceedings.
Sufficiency of the Evidence.
The defendant claims there was insufficient evidence to show he was under the influence of alcohol while driving his car on March 17, 2000. We review Zwagerman's sufficiency of the evidence claim by considering the record as a whole, in the light most favorable to the State, to determine whether substantial evidence supports the verdict. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). The record reveals Zwagerman came to the attention of a state trooper after driving his car into a ditch. The trooper testified the defendant smelled of alcohol, his speech was slurred, and his eyes were bloodshot and watery. The jury viewed a videotape of Zwagerman's performance of three field sobriety tests, and heard the trooper's testimony as to why he failed all three. Zwagerman admitted drinking before driving on the night of his arrest. Following his apprehension, a breath test performed at the police station showed his blood alcohol content was over the legal limit.
Zwagerman admits he was intoxicated when his blood alcohol level was tested at the police station. However, he argues he consumed alcohol after his car slid off the road, and therefore, the State failed to prove he was intoxicated while he operated a motor vehicle. Zwagerman presented his version of the events to the jury. It is within the jurors' province to accept or reject witness testimony and to weigh the evidence as they see fit. State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct. App. 1997). Zwagerman never told the arresting officer he drank alcohol after driving his car off the road. The officer testified no alcohol was found in or near the defendant's vehicle. We find that when the evidence in this case is viewed in the light most favorable to the State, it is sufficient to support the verdict, in that it could convince a rational jury of Zwagerman's guilt beyond a reasonable doubt. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).
Motion for Continuance.
Zwagerman next contends the district court erred in denying his request that trial be continued to enable him to obtain new counsel. Review of a motion for continuance is for abuse of discretion. State v. Miller, 480 N.W.2d 894, 895 (Iowa 1992). "A motion for continuance shall not be granted except upon a showing of good and compelling cause." Iowa R. Cr. P. 2.9(2). Motions for continuance are generally discouraged and a trial court is accorded broad discretion in ruling on such motions. State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983).
Zwagerman's request for continuance came on the morning of trial, after a jury panel had been called to the courthouse. The defendant wished to replace his trial counsel because of differences of opinion regarding the presenta
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