State of Iowa v. Alphonze Theophilus Emanuel

• Court: Court of Appeals of Iowa
• Decided: June 16, 2021
• Docket: 20-0738
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0738 Filed June 16, 2021

STATE OF IOWA, Plaintiff-Appellee,

vs.

ALPHONZE THEOPHILUS EMANUEL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.

Alphonze Emanuel appeals a conviction and the sentences imposed on

three convictions. CONVICTION AFFIRMED; SENTENCE VACATED AND

REMANDED FOR NEW SENTENCING HEARING.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Doyle, P.J. and Mullins and May, JJ. 2

MULLINS, Judge.

Alphonze Emanuel appeals his conviction of possession of

methamphetamine with intent to deliver, challenging the sufficiency of the evidence

supporting the charge. He also appeals the sentences imposed upon said

conviction and two other convictions, arguing his waiver of in-person sentencing

was not tendered knowingly and voluntarily.

I. Background Facts and Proceedings

Upon the evidence presented at trial, a rational jury could make the

following factual findings. In the spring of 2019, Marshalltown Police Department

Detective Dane Bowermaster, serving as a member of the Mid-Iowa Drug Task

Force, began a drug investigation relative to Emanuel. Bowermaster began

surveilling a particular residence for indications of drug activity. Bowermaster

testified the come-and-go nature of the traffic to the home over the next several

days indicated the visitors were purchasing narcotics from the home.1

Bowermaster sought and obtained a warrant to conduct a search of the home.

The search warrant was executed on May 3, 2019, shortly after 5:00 a.m.

The special weapons and tactics (SWAT) team broke up into two units of four

1 On April 23, Bowermaster observed a female report to the back door of the residence, upon which she was met at the door. On April 25, he observed a different female enter the rear door of the residence, stay for roughly three minutes, and then leave. In the neighborhood of two hours later, Bowermaster observed a male and female visit the residence, entering through the back door, and then leaving about two minutes later. About another two hours later, Bowermaster saw two other individuals leave the residence. Bowermaster again saw one of those individuals leaving the residence on April 29, when he was conducting mobile surveillance. About three hours later, a male visited the residence, staying for about two minutes. On April 30, one woman visited the residence for about five minutes, one of the prior visitors visited the home for seven minutes, and then a pair of other prior visitors visited the house for five minutes. 3

officers each, with one unit entering the front of the residence, and the other

entering the rear. The SWAT team leader, Lieutenant Kiel Stevenson of the

Marshalltown Police Department, conducted a knock and announce, which lasted

roughly thirty seconds. While the knock and announce was being conducted,

Deputy Rodney Drummer, an officer with the Tama County Sheriff’s Department

and investigator with the task force, was positioned on the southeast side of the

home and he observed, through a curtain, a “silhouette or a figure” inside the home

running to a room on the northwest side of the residence. Deputy Adam

Winkowitsch of the Marshall County Sheriff’s Department, also serving as an

investigator for the task force, was positioned on the west side of the home. During

the knock and announce, he observed “a shadow that had rushed past one of the

windows on the west side of the house.”

When there was no response to the knock and announce, the SWAT team

breached the front and rear doors of the residence simultaneously. The front team

cleared the living room and attached bedroom. In the bedroom, Bowermaster

observed the covers on the bed “were thrown open like someone just got out of

bed.” The front team then joined the rear team in the kitchen. The rear team had

already made contact with Emanuel and a female, Kelsey Tolbert, in the bathroom.

Bowermaster viewed the bathroom and observed the toilet to be running, with “a

crystalline substance both on the toilet seat and on the floor.”2 He testified, “At that

time it was apparent to me that methamphetamine had been flushed down the

2 The substance found in the bathroom tested positive for methamphetamine at the state crime lab. 4

toilet in the rush. Some spilled on the seat and spilled on the floor.” A cell phone

was also found in the bathroom.

Emanuel’s son, Zach Dixon, was located standing at the bottom of the stairs

to the basement, and Jose Cervantes Rodriguez was subsequently located in the

basement. The subjects were detained and advised of their Miranda rights.

Bowermaster questioned Emanuel about how much methamphetamine he

flushed. Emanuel responded he flushed a teener, which consists of roughly 1.7

grams. Bowermaster responded he knew Emanuel flushed more because there

was at least a teener on the bathroom floor. Emanuel responded he flushed a ball,

meaning an “8-ball,” which is one-eighth of an ounce or roughly 3.5 grams.

Bowermaster re-pressed Emanuel, and Emanuel conceded he probably flushed

around five grams of methamphetamine but it was cut. Bowermaster explained in

his testimony cut product is essentially diluted, and a common user would not cut

their methamphetamine because it reduces its quality. In contrast, dealers will cut

the drug because it increases the amount and, by extension, profit from sales. In

the living room, Bowermaster found three cell phones concealed in a heating and

air conditioning register.3 He also found a digital scale in the kitchen, which “was

covered in a residue that appeared to be methamphetamine residue.”4

After entering the residence, Deputy Drummer learned the room on the

northwest side of the residence, to which he had observed the silhouette running,

was the bathroom. Drummer found several pieces of evidence in the bedroom on

the northeast side of the residence: (1) marijuana and marijuana roaches on a

3 Only one was seized as evidence because the other two were not operating. 4 The residue also tested positive for methamphetamine at the crime lab. 5

night stand; (2) a gray purse near the nightstand containing $50, a mailing

addressed to Emanuel, and Emanuel’s Illinois driver’s license; (3) a black purse

on the floor between the bed and nightstand containing $1418, Tolbert’s driver’s

license and health and dental insurance cards, two EBT cards belonging to other

individuals, Emanuel’s Iowa identification card, and two EBT cards belonging to

Emanuel and Tolbert.

Winkowitsch searched the basement, which included a bedroom belonging

to Rodriguez, where he located a cell phone, a methamphetamine pipe, a baggie

containing methamphetamine,5 and “two empty baggies that looked like they may

have contained methamphetamine at one time.” In the kitchen of the residence,

Winkowitsch also found a black bag containing baggies, which he testified, based

on his training and experience, would be used for packaging in relation to drug

distribution. Bowermaster also found marijuana and various cell phones in the

basement bedroom belonging to Dixon.

The task force supervisor, Detective Sergeant James Gibson of the

Marshall County Sheriff’s Office, was positioned at the front of the house when the

SWAT team conducted the knock and announce, during which he observed a

shadow move quickly to the north end of the home. After the breach and securing

of the residence, Gibson searched Emanuel and Tolbert and found $315 on

Emanuel and a cell phone on Tolbert.

The cell phone found in the bathroom was subjected to a content-extraction

device. Incoming and outgoing text messages to and from the phone disclose its

5 This substance also tested positive for methamphetamine. 6

owner was in the business of selling both marijuana and methamphetamine.6 The

evidence shows the phone belonged to Emanuel.7

Emanuel was charged by trial information with possession of

methamphetamine with intent to deliver, prohibited acts, and second-offense

possession of marijuana. Following the presentation of the State’s case-in-chief

at trial, Emanuel moved for judgment of acquittal, arguing the State failed to prove

he possessed the methamphetamine with an intent to deliver. The court denied

the motion. No evidence was presented on behalf of the defense, and the jury

found Emanuel guilty as charged.8 The matter proceeded to sentencing, which

Emanuel participated in by video conference. Emanuel appealed following the

imposition of sentence.

II. Sufficiency of Evidence

Emanuel argues the district court erred in denying his motion for judgment

of acquittal, claiming the evidence was insufficient to show he had an intent to

6 Some text messages do not disclose which substance was being pursued by the buyer. Some indicate “both” were. Others specifically refer to marijuana, asking for “green” or “bud.” One incoming message sent to the phone a day before the search warrant was executed asked, “U got a ball?” The outgoing message responded, “Yi.” The buyer later responded, “on my way to u.” One officer testified methamphetamine is commonly dealt in “8-balls,” but that moniker is not used in referencing marijuana. The officer testified some people call a “teener” a “tee.” One outgoing text message questioned, “Ok about how much u thinking,” to which the recipient responded “t if you have it.” The following outgoing text stated, “Yea I got tht n more.” 7 The images extracted from the phone included several pictures of Emanuel that

could be considered “selfies.” Also, the phone’s contacts had listings for the other three occupants of the home, “Jose” (Cervantes Rodriguez), “Kels” (Tolbert), and “Zach” (Dixon), but not Emanuel. Several of the incoming text messages also identified Emanuel by his nickname, “Mo.” 8 Emanuel previously stipulated to having a prior conviction of possession of

marijuana in relation to count three. 7

deliver. Challenges to the sufficiency of the evidence are reviewed for corrections

of errors at law. State v. Mathias, 936 N.W.2d 222, 226 (Iowa 2019). The court

views “the evidence ‘in the light most favorable to the State, including all

reasonable inferences that may be fairly drawn from the evidence.’” State v. Ortiz,

905 N.W.2d 174, 180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490

(Iowa 2017)). All evidence is considered, not just that of an inculpatory nature.

See Huser, 894 N.W.2d at 490. “[W]e will uphold a verdict if substantial evidence

supports it.” State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (quoting State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “Evidence is 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.’” Id. (quoting Ramirez, 895

N.W.2d at 890). Evidence is not rendered insubstantial merely because it might

support a different conclusion; the only question is whether the evidence supports

the finding actually made. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788

N.W.2d 386, 393 (Iowa 2010). In considering a sufficiency-of-the-evidence

challenge, “[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.

Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams, 695 N.W.2d

23, 28 (Iowa 2005)).

When viewed in the light most favorable to the State, the evidence discloses

the following pertinent facts. Emanuel was in the possession of around five grams

of methamphetamine at the time the warrant was executed at around 5:00 a.m. on

May 3, 2019. Content on the phone found in the bathroom, which a rational jury 8

could have concluded belonged to Emanuel, shows he was in the business of

trafficking methamphetamine leading up to the search. Specifically, at 9:22 p.m.

on May 2 Emanuel responded in the affirmative when a customer asked if he had

a ball, a slang for a specific weight of methamphetamine. The customer responded

he or she was on his or her way thirty minutes later. Then, at roughly 1:45 a.m. on

May 3, just hours before the search, another customer questioned, “You got

anything”? About twenty minutes later, Emanuel responded, “Lil bit gotta get

more.” At around 3:45 a.m., Emanuel texted the customer, “how much u thinking”?

The customer responded “50,” to which Emanuel responded, “Ok.” The customer

replied, “Or t if you have it.” Evidence was had that a “t,” “tee,” or “teener,” is

another slang term used for a denomination of methamphetamine. Emanuel

responded, “Yea I got tht n more.”

Viewing the evidence in the light most favorable to the State, as we must,

we conclude a rational jury could have found Emanuel guilty beyond a reasonable

doubt, and we affirm his conviction of possession of methamphetamine with intent

to deliver.

III. Sentencing

In response to the COVID-19 pandemic,9 “our supreme court entered a

number of supervisory orders concerning the pandemic’s impact on court

9 See In re A.H., 950 N.W.2d 27, 34 n.6 (Iowa Ct. App. 2020) (“The novel coronavirus/COVID-19 is an ongoing international pandemic. To stem the spread, governments, including the state of Iowa, implemented emergency safeguards recommended by such agencies as the Center for Disease Control, which included social distancing and wearing of face masks. In Iowa, many businesses were ordered closed, people were encouraged to maintain six-foot distances between one another, and gatherings of ten or more people were discouraged.”). 9

services.” State v. Emanuel, No. 20-0737, 2021 WL 1906366, at *1 (Iowa Ct. App.

May 12, 2021). “[O]n March 14, 2020, the court ordered that ‘[f]or sentencing

hearings through April 20, district courts may allow any party (the prosecutor,

defense counsel, defendant, victims and witnesses) to appear by videoconference

with that party’s consent. To appear by videoconference, the defendant shall

execute a written waiver.’” Id. (second alteration in original) (citation omitted).

The supreme court entered another order on April 2, in which it extended the sentencing procedure through August 3 but modified it to provide parties could appear by either videoconference or telephone and directing that, “To appear by videoconference or telephone, the defendant shall either (a) execute a written waiver or (b) make a waiver on the record. Other parties need not execute a waiver.”

Id. (citation omitted).

At the commencement of Emanuel’s sentencing hearing on April 13, the

court explained Emanuel was participating by videoconference, while the attorneys

were participating by “ICN teleconference.”10 The court explained the hearing was

being conducted remotely as a result of the supervisory orders. The court

separately asked Emanuel and all counsel if they were agreeable to participating

remotely, and each answered in the affirmative.

On appeal, Emanuel argues “waiver of his right to be personally present at

his sentencing was not intelligent, voluntary, or knowing.” He complains the court

did not explain he could have in-person sentencing or it could continue the hearing

for said purpose.

10 “ICN (Iowa Communications Network) ‘is a statewide, governmental network that includes a two-way videoconferencing system.’” Emanuel, 2021 WL 1906366, at *1 n.6 (citation omitted). Apparently it has a teleconference feature, as the court noted the attorneys were participating that way. 10

As we recently stated,

A defendant does have a right to personal presence at sentencing, but the right may be waived. See State v. Webb, 516 N.W.2d 824, 830 (Iowa 1994); State v. Daniels, No. 15-1601, 2016 WL 4803782, at *1 (Iowa Ct. App. Sept. 14, 2016). “To be valid, a defendant’s waiver of the right to be present must be knowing, intentional, and unambiguous.” Daniels, 2016 WL 4803782, at *2.

Id. at *2.

The standard definition of “waiver” is “the intentional relinquishment of a

known right.” State v. Seager, 571 N.W.2d 204, 209 (Iowa 1997). Here, the court

advised it was conducting the hearing remotely by order of the supreme court. And

the court only asked if Emanuel was agreeable to proceeding with sentencing by

video conference. Different from a recent case, the court did not advise Emanuel

of his “right to make a personal appearance in court” or that “the hearing did not

have to proceed unless Emanuel was in agreement with that procedure.” Cf.

Emanuel, 2021 WL 1906366, at *2. So the record before us offers no indication

that Emanuel knew of his continuing right to in-person sentencing, and his waiver

of the same was therefore invalid. See Daniels, 2016 WL 4803782, at *2. We

reject the State’s harmless-error argument, as there is no way to tell what the

outcome would have been had the sentencing judge and Emanuel been face to

face.

We vacate the sentences imposed on Emanuel’s convictions and remand

the matter for a new sentencing hearing.

IV. Conclusion

We find the evidence sufficient to support Emanuel’s conviction of

possession of methamphetamine with intent to deliver. We vacate the sentences 11

imposed on Emanuel’s convictions and remand the matter for a new sentencing

hearing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED

FOR NEW SENTENCING HEARING.