Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
The opinion of the court was delivered by: Mullins, J.
Kiko Demont Simmons appeals from a judgment and 180-year sentence on multiple non-violent drug-related charges. VACTATED IN PART, AFFIRMED IN PART, AND REMANDED.
Heard by Doyle, P.J., and Danilson and Mullins, JJ.
Kiko Demont Simmons appeals from a judgment and sentence on jury verdicts finding him guilty of conspiracy to deliver more than ten grams of crack cocaine involving a firearm, possession with intent to deliver ten grams or less of crack cocaine, a drug tax stamp violation (cocaine), possession of a simulated controlled substance (ecstasy) with the intent to deliver, and possession of marijuana. Simmons contends (1) there is insufficient evidence to support his convictions for conspiracy to deliver more than ten grams of crack cocaine and possession of a simulated controlled substance with the intent to deliver, (2) the court erred in admitting testimony about text messages on alleged coconspirator cell phones, (3) the court erred in overruling his objection to mention of "buy money" found with alleged coconspirators, and (4) the application of sentencing enhancements leading to a 180 year prison sentenceconstitutes cruel and unusual punishment. We vacate in part, affirm in part, and remand for resentencing.
I. Background Facts & Proceedings
On May 4, 2011, police officers executed warrants at three residences in Des Moines, Iowa: 1926 Francis Avenue; 1623 Lynn Street; and 2400 Hickman Road, apartment 43.
At 1926 Francis Avenue, police officers located and arrested Matthew Padilla and Latoya Lewis. Police officers seized over twenty-five grams of individually packaged cocaine with bundles of cash totaling approximately $4900. Officers located a rifle hidden in the ceiling, an assault rifle in a case in the basement, and a handgun above the refrigerator in the kitchen. Officers also found torn plastic baggies, digital scales, and several cell phones. The cell phones contained pictures and text messages that officers later testified were indicative of involvement in the drug trade.
At 1623 Lynn Street, police officers apprehended Simmons and his fiancee, Shaunta Hopkins, in a bedroom and Deangelo McKinney in a bathroom. After securing the residence, police officers located an open box of plastic baggies and a digital scale in the living room. On a shelf in the living room officers noticed a small bag containing a white rock later identified as crack cocaine. Police then found a bag containing individually packaged bags of crack cocaine hidden in the cover of a speaker. There were no drug tax stamps attached to any of the bags containing cocaine.
In the bedroom where Simmons and Hopkins were located, police officers found two bags containing what appeared to be, and was later confirmed as, crack cocaine under a mattress. Police officers also discovered marijuana, a pill grinder, two cell phones, and over $900 cash in the bedroom. In a dresser drawer officers located a large bag containing fifty-one blue and pink stamped pills believed to be ecstasy. Subsequent testing identified the pills as caffeine pills. Police officers also located a bus receipt from Chicago to Des Moines dated May 2, 2011.
During the search Simmons told officers McKinney arrived a day earlier to sell crack cocaine. He then asserted the crack in the living room belonged to McKinney but admitted to helping McKinney package the crack for sale. He also admitted to smoking marijuana cigarettes laced with crack cocaine. When confronted about the firearms located at 1926 Francis Avenue, he admitted he had seen and handled the firearms. Although he indicated that he and Padilla were friends, he denied selling drugs with Padilla.
Finally, at 2400 Hickman Road, apartment 43, police officers located three individuals-Jessie Williams, Quintalla Zolicoffer, and Keyera Sanders. As officers entered the apartment, a firearm, a magazine containing bullets, crack cocaine, and marijuana were thrown from a window.
In October 2011, the State filed an amended trial information charging Simmons with the following six counts: (I) conspiracy to deliver more than ten grams of crack cocaine, (II) possession with the intent to deliver more than ten grams of crack cocaine, (III) a drug tax stamp violation, (IV) conspiracy to deliver a simulated controlled substance (ecstasy), (V) possession of a simulated controlled substance with the intent to deliver, and (VI) possession of marijuana. The State alleged Simmons was a second or subsequent and habitual offender for counts I, II, IV, V, and VI. In regard to count I, the State alleged Simmons was in possession of a firearm.
In January 2012, Simmons was tried by jury. The jury found Simmons guilty of conspiracy to deliver more than ten grams of crack cocaine involving a firearm (count I), possession with intent to deliver ten grams or less of crack cocaine (lesser included on count II), failing to affix a drug tax stamp (count III), possession of a simulated controlled substance with the intent to deliver (count V), and possession of marijuana (count VI). ...