State of Iowa v. Fong Phanhnao

IN THE COURT OF APPEALS OF IOWA

No. 21-1406
Filed December 7, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

FONG PHANHNAO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.

Fong Phanhnao appeals his convictions and sentence. AFFIRMED.

Jane M. White of Gribble Boles Stewart & Witosky, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., Tabor, J., and Vogel, S.J.*

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

(2022).
2

BOWER, Chief Judge.

Fong Phanhnao appeals his convictions for drug and firearm offenses. We

find sufficient evidence supports the convictions and the district court did not abuse

its discretion in refusing to grant a mistrial, the sentence it imposed, or refusing to

play an implicit-bias video for the jury. We affirm.

I. Background Facts & Proceedings.

In July 2021, a jury found Phanhnao guilty of (1) possession of more than

five grams of methamphetamine with the intent to deliver and while in possession

of a firearm and (2) being a felon in possession of a firearm. Phanhnao stipulated

his status as a felon.1 After the jury’s verdict, Phanhnao admitted being a second-

time drug offender—a status increasing the maximum sentence that could be

imposed.

During trial, the following information was presented to the jury. On

December 10, 2020, city, county, and state law enforcement personnel executed

search warrants on multiple locations in and around Black Hawk County

associated with persons under surveillance for drug dealing. Four people lived at

one of the addresses searched: the owner and his girlfriend lived upstairs,

Phanhnao and Suan Dunfee lived in a small basement residence.

A sign taped on the front door of the house said “If your [sic] looking for Al

or Sue use ‘back door.’”2 Phanhnao’s nickname is “Al.” Both Phanhnao and

Dunfee were in the basement residence when law enforcement entered.

1 In 2005, Phanhnao pleaded guilty to possession with intent to deliver
methamphetamine and was sentenced to a fifty-year prison term. He was released
on parole in 2012 and was still on parole at the time of the current offenses.
2 The stairs down to the basement are located next to the back door.
3

One officer described the entire basement as “very full of stuff. There’s

basically a walk path around this basement . . . and there’s just stuff stacked up

everywhere.” A cluttered shared laundry area was right next to the door to

Phanhnao and Dunfee’s living space. A curtain cordoned off part of the space into

a bedroom; the foot of the bed was only a couple feet from the couch. Dunfee was

sitting in the living space while law enforcement searched the residence, and

Phanhnao spoke with law enforcement outside the house.

During the search, a knotted bag with approximately twenty-four grams of

methamphetamine was found in a jacket pocket hanging in the basement living

room.3 A smaller plastic bag of methamphetamine—with no knotted closure—was

found in a wallet belonging to Dunfee. Methamphetamine and marijuana

paraphernalia was found throughout the basement. Phanhnao’s wallet with his

driver’s license and $780 cash was found in the basement living room.4 Dunfee’s

purse, located in the living room, contained $980 cash. Additional bundled and

loose cash totaling $24,840 was found in a purse hanging in the bedroom. The

cash in Phanhnao’s wallet and most of the cash in the bedroom purse was bound

in the same way: neatly stacked, folded over, and secured with clear elastic bands.

Additional elastic bands were found in a container on their bed. A loaded gun was

discovered at the foot of the bed between a mattress topper and the mattress.5 A

gun case with two additional magazines of ammunition was also in the bedroom.

3 An officer testified user amounts of methamphetamine are commonly one gram
or three and a half grams.
4 Phanhnao’s identification listed a different address. The license had expired in

2006.
5 Two firearm replicas were also found on the bed.
4

Additional evidence was found in the hallway to Phanhnao and Dunfee’s

living space. Several one-ounce bags of methamphetamine—knotted in the same

way as the bag in the jacket—were found in an ammunition container immediately

outside their door.6 A holster for a different gun and a backpack containing two

more magazines loaded with the same caliber ammunition as the gun in the

apartment and two digital scales were found in the laundry area.

Phanhnao told one of the officers most of the money was his, but he denied

knowledge of all the drugs and paraphernalia found. He stated he had been saving

money over time from working odd jobs—he made about $100 per week working

in the garden and helping a lady with her dogs. Phanhnao paid $300 per month in

rent for the apartment.

Dunfee has limited mobility following brain surgery. She has good and bad

days; her hands shake, she could not lift her hand all the way when being sworn

in, and her ability to drive herself or shop varies day-to-day. Dunfee testified the

jacket the methamphetamine was found in was hers, but she stated she hadn’t

worn it for some time. She told the jury she had $43,000 in cash in the apartment,

Phanhnao did not know about the money, and she never counted it around him.7

She denied knowing what methamphetamine looks like and did not know about

the presence of methamphetamine in the jacket or wallet or about the

methamphetamine paraphernalia in the residence.

6 When the door into the living space was open, the ammunition container would
not be visible behind the door.
7 Dunfee testified $6500 of the cash was from her divorce and she had saved her

monthly social-security and spousal-support payments.
5

The jury found Phanhnao guilty of possession with intent to deliver more

than five grams of methamphetamine as a second offender with a firearm “in such

close proximity . . . as to enable [Phanhnao] to claim immediate dominion over the

firearm” and guilty of possession of a firearm as a felon. The court sentenced

Phanhnao to 100 years in prison and imposed a fine for the possession-with-intent-

to-deliver conviction and five years plus a suspended fine for the felon-in-

possession-of-a-firearm conviction. The two sentences were ordered to run

concurrently but consecutive to the sentence imposed for his 2005 conviction

following parole revocation.

II. Analysis.

A. Sufficiency of the evidence. Phanhnao challenges the sufficiency of the

evidence supporting his constructive possession of the methamphetamine, cash,

or firearm found during the search.8 The jury considered Phanhnao’s guilt either

as the principal perpetrator or as aiding and abetting constructive possession of

the drugs while in possession of a firearm.

We review sufficiency-of-the-evidence claims for correction of
errors at law. We will uphold the verdict if it is supported by
substantial evidence. 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.

State v. Mathias, 936 N.W.2d 222, 226 (Iowa 2019) (internal citations and

quotation marks omitted).

8 Phanhnao made a “weight-of-the-evidence” argument in a motion for new trial
below and attempts to use that standard in his sufficiency-of-the-evidence
argument. However, he makes no argument the district court abused its discretion
in denying his motions for mistrial and new trial based on the weight of the
evidence. With no argument to evaluate, we deem his weight-of-the-evidence
argument waived. See Iowa R. App. P. 6.903(1)(g)(3).
6

“‘The existence of constructive possession turns on the peculiar facts of

each case.’ Constructive possession may be inferred when the drugs or firearms

are found on property in the defendant’s exclusive possession. . . . When the

premises are jointly occupied, additional proof is needed.” State v. Reed, 875

N.W.2d 693, 705 (Iowa 2016) (internal citations omitted).

We have identified several nonexclusive factors to consider in
determining whether the defendant possessed contraband
discovered in jointly occupied structures:
(1) incriminating statements made by a person;
(2) incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s
fingerprints on the packages containing the controlled
substance; and (4) any other circumstances linking the
person to the controlled substance.
The last factor is a “catchall” that captures other relevant
circumstantial or direct evidence. “The evidence of guilt must
generate more than mere suspicion, speculation, or conjecture.”

Id. at 706 (internal citations omitted).

To sustain a conviction on the theory of aiding and abetting,
the record must contain substantial evidence the accused assented
to or lent countenance and approval to the criminal act either by
active participation or by some manner encouraging it prior to or at
the time of its commission. The State must prove the accused knew
of the crime at the time of or before its commission. However, such
proof need not be established by direct proof, it may be either direct
or circumstantial.
Neither knowledge of the crime nor proximity to the crime
scene are enough to prove aiding and abetting. However, they are
factors, which with circumstantial evidence such as “presence,
companionship, and conduct before and after the offense is
committed,” may be enough to infer a defendant’s participation in the
crime.

State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000) (internal citations omitted).

First, we address Phanhnao’s possession of methamphetamine. Dealer

quantities of methamphetamine and multiple digital scales were found in and near
7

Phanhnao’s rooms—twenty-four grams of the drug were found in a single knotted

plastic bag in a coat pocket inside Phanhnao and Dunfee’s residence, and another

seven ounces were found immediately outside their door. Dunfee had a smaller,

user amount in an unknotted bag in her wallet. The jury heard testimony about

Dunfee’s limited mobility and saw Dunfee struggle to lift her hand when being

sworn in as a witness, permitting a reasonable inference about Dunfee’s inability

to divide the larger quantity into individual amounts on her own. Drug

paraphernalia was found throughout the living space. The jury heard testimony

that narcotics sales is a cash business, and a large sum of cash, much of which

was precisely counted, folded, and bound, was found in Phanhnao’s wallet and in

a purse in the shared bedroom. Phanhnao and Dunfee both claimed ownership of

the money, but Dunfee suggested a significantly different sum than was seized

during the search. Phanhnao had $780 cash in his wallet and was able to pay

bills, but he had only meager earnings. The jury could reasonably question the

credibility of his claim to also have saved in excess of $24,000 in cash. Viewed in

the light most favorable to the State, the evidence was sufficient for a rational jury

to find Phanhnao either constructively possessed the methamphetamine or aided

and abetted Dunfee’s possession.

The question of Phanhnao’s possession of the firearm is relevant to a

sentence enhancement for the drug charge as well as the separate offense of

being felon in possession of a firearm. Under Iowa Code section 124.401(1)(e)

(2020), an offender’s sentence is doubled if they are “in the immediate possession

or control of a firearm while participating” in the drug offense. See State v. Franklin,

564 N.W.2d 440, 444 (Iowa Ct. App. 1997) (clarifying the possession or control
8

must take place at the time of the crime, not the arrest). Under section 724.26(1),

“A person who is convicted of a felony in a state or federal court, . . . and who

knowingly has under the person’s dominion and control or possession . . . a firearm

or offensive weapon is guilty of a class “D” felony.”

“[I]mmediate possession of a firearm means actual possession on one’s

person.” State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001) (citation omitted).

“[I]mmediate control of a firearm may be established by showing that the defendant

was in such close proximity to the weapon as to claim immediate dominion over

it.” Id. (citation omitted).

[W]here the accused has not been in exclusive possession of the
premises but only in joint possession, knowledge of the presence of
the [firearm] on the premises and the ability to maintain control over
[the firearm] by the accused will not be inferred but must be
established by proof. Such proof may consist either of evidence
establishing actual knowledge by the accused, or evidence of
incriminating statements or circumstances from which a jury might
lawfully infer knowledge by the accused of the presence of the
[firearm] on the premises.

See id. (emphasis omitted) (citation omitted).

Phanhnao argues no evidence specifically links him or Dunfee to the firearm

and anyone in the house would have access to its location. The gun here was

found out of sight underneath the mattress pad but on top of the mattress shared

by Phanhnao and Dunfee. Given the layout of the apartment, the gun would be

easy to access from the living room at short notice. Also found in the bedroom

was a large case containing foam cutouts to hold the gun in place and additional

magazines filled with ammunition. More magazines of ammunition were found in

a bag in the laundry hallway. Given that the firearm, several extra magazines of

ammunition, and the gun case holding accessories for the firearm were found
9

spread out in and immediately outside the living space, and considering Dunfee’s

mobility issues and shaking hands, the evidence is sufficient for the jury to infer

Phanhnao had knowledge of the firearm’s presence and that he was in such close

proximity to it that he had immediate control.

Considering all the circumstances, we find the evidence sufficient to support

the jury’s verdicts on both the drug and firearm charges.

B. Motion for mistrial. “We review a trial court’s denial of a motion for mistrial

for an abuse of discretion.” State v. Frei, 831 N.W.2d 70, 73–74 (Iowa 2013),

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708

n.3 (Iowa 2016). “Generally, a district court’s decision not to grant a mistrial but to

offer a cautionary instruction instead is entitled to broad deference.” State v. Plain,

898 N.W.2d 801, 815 (Iowa 2017). “Cautionary instructions are sufficient to

mitigate the prejudicial impact of inadmissible evidence ‘in all but the most extreme

cases.’” Id. (citation omitted).

Phanhnao asserts the district court should have granted a mistrial when

testimony violating a motion in limine concerning Phanhnao’s status as a felon was

presented. Before trial, the parties agreed to stipulate to the felony, and the court

stated it assumed the witnesses were told not to say anything more than he was a

felon, but there was no formal limine motion or ruling. The stipulation said, “On the

date of occurrence, December 10, 2020, the defendant was a felon.” Both parties

told their witnesses “to not say anything more than [Phanhnao] was a felon.” The

State read the stipulation to the jury at the beginning of trial.

During trial, Investigator Joseph Zubak testified about the investigation that

led to the search of Phanhnao’s apartment and the discovery of the money and
10

contraband within. Questioning turned to how Zubak knew Phanhnao resided at

the house getting searched.

Q. And is that where Fong Phanhnao resided? A. Correct.
Q. Were you able to verify that through your research?
A. Yes.
Q. And just a yes or no answer: Did Fong Phanhnao actually
register that address with the state of Iowa? A. He did.

During cross-examination, the defense returned to the topic:

Q. Okay. You said that you did verify that Mr. Phanhnao lives
at 217 Linden. Was that based on what someone told you? A. It
was based on—
Q. I’m just asking, was it based on what someone told you?
Just yes or no? A. It was based on what somebody told me.
Q. Sometimes when you do search warrants, you do
independently verify that somebody is living at a place because they
get mail there or the utilities are in their name; is that correct?
A. Well, that’s true. And I think—I also think that—going back to your
last question, it’s not a yes or no answer. I was told by somebody
that he lived there, that somebody being his parole officer. But that
is also documented.

At that point, Phanhnao objected and moved for a mistrial. In support of the

motion, his counsel stated, “This jury does not know that my client is on parole.

They’re not supposed to know he’s even in jail. We discussed stipulating to the

felon status to prevent all this information, and I can’t go backwards now and unsay

that for Investigator Zubak.” The court denied the motion for mistrial but gave the

jury the following cautionary instruction: “Evidence has been received concerning

other wrongful acts alleged to have been committed by the defendant. The

defendant is not on trial for those acts.”

After the jury’s verdict, Phanhnao filed a motion for new trial, asserting the

court should have granted his motion for mistrial after his parole status was

revealed to the jury. The court denied the motion for new trial, reasoning,
11

I think it’s also significant that the second charge is
possession of a firearm as a felon. The jury heard that he was a
felon, and so I don’t think that hearing that he had a parole officer is
shocking. They have no idea what the felony was. They have no
idea what he was on parole for. They have no idea that there’s not
a direct connection between those two, meaning that if you’re a felon
you automatically have a parole officer.
So there was nothing to suggest that there was any improper
use of that information. And for the same reasons that I denied the
motion for mistrial, I will deny the motion for new trial based on that
same information.

To evaluate whether the court’s cautionary instruction adequately mitigates

any prejudicial impact of the testimony, we consider (1) “whether the ‘defendant

[can] combat the evidence without compounding the prejudice’”; (2) “how extensive

the evidence is and the promptness with which it was addressed”; and (3) the

prejudice—“the stronger the State’s evidence of . . . guilt is, the less prejudicial the

effect of the challenged testimony.” Plain, 898 N.W.2d at 815 (alteration in original)

(citation omitted). “The party claiming prejudice bears the burden of establishing

it.” Frei, 831 N.W.2d at 80 (citation omitted).

In view of the court’s broad discretion in ruling on a motion for mistrial, the

given cautionary instruction, and considering that the jury already knew Phanhnao

was a felon from the stipulation and the mention of his parole status was not

extensive, any prejudice to Phanhnao was minimal. We conclude the court did not

abuse its discretion in denying the motion for mistrial.

C. Abuse of discretion in sentencing. “Our review of a sentence imposed in

a criminal case is for correction of errors at law.” State v. Wilbourn, 974 N.W.2d

58, 65 (Iowa 2022) (citation omitted).

“A sentencing court’s decision to impose a specific sentence
that falls within the statutory limits ‘is cloaked with a strong
presumption in its favor, and will only be overturned for an abuse of
12

discretion or the consideration of inappropriate matters.’” . . . “An
abuse of discretion is found only when the sentencing court
exercises its discretion on grounds or for reasons clearly untenable
or to an extent clearly unreasonable.”

Id. (internal citations omitted).

Phanhnao asserts the district court abused its discretion in imposing a 100-

year sentence with a one-third mandatory minimum. The statutory sentence for

possession with intent to deliver more than five grams of methamphetamine is

twenty-five years. Iowa Code §§ 124.401(1)(b), 902.9(1)(b). Phanhnao’s control

of a firearm during the offense doubled the term of imprisonment under

section 124.401(1)(e). Section 124.411 then gives the sentencing court discretion

to impose up to three times the sentence for a “second or subsequent offense”—

here giving the court a sentencing range between fifty and 150 years.9

Phanhnao argues that, given his age,10 a fifty-year sentence would “achieve

the overreaching goal [of] rehabilitating Mr. Phanhnao while also protecting the

public.” Phanhnao does not suggest any of the reasons provided by the district

court for exercising its discretion in imposing a sentence in the middle of the

available range were untenable or unreasonable. See Wilbourn, 974 N.W.2d at

65. We find the district court did not abuse its sentencing discretion and affirm the

sentence imposed.

9 Section 124.413(1) requires those convicted under section 124.401(1)(e) serve
a mandatory minimum “one-third of the maximum indeterminate sentence.”
10 Phanhnao was fifty-seven years old at the time of sentencing.
13

D. Implicit bias video. Finally, Phanhnao asserts the court’s denial of his

request to have the prospective jurors watch a video on implicit bias was a violation

of his Sixth-Amendment rights.11

While we review constitutional questions de novo, claims of voir dire error

are reviewed for an abuse of discretion. State v. Williams, 929 N.W.2d 621, 628

(Iowa 2019).

While there is general agreement that courts should address
the problem of implicit bias in the courtroom, courts have broad
discretion about how to do so. . . . We strongly encourage district
courts to be proactive about addressing implicit bias; however, we
do not mandate a singular method of doing so.

Plain, 898 N.W.2d 817 (noting one way to address implicit bias is by giving a jury

instruction). The video requested is akin to a pretrial cautionary instruction, and

thus the court’s refusal to show it “does not warrant reversal unless it results in

prejudice to the complaining party.” See id.

At the beginning of jury selection, the judge told the potential jurors,

It’s very important that we have a jury of [thirteen] individuals
who can hear this case fairly and impartially without any biases or
prejudices for or against either party without any preconceived
notions as to how this case should turn out.
We understand that each of us come into this courtroom with
a completely different set of life experiences, and there may be things
in each of our backgrounds which, whether we realize it or not, may
make it difficult for us to be fair and impartial in a particular type of
case.

Then, at the close of the case, the jury was given an instruction not to base their

decision on biases.12 At sentencing, the court addressed Phanhnao’s posttrial

11 Before COVID-19, Black Hawk County regularly played an implicit bias video to
potential jurors, but that practice had not restarted in all trials when this trial
occurred.
12 The bias jury instruction stated:
14

motion for new trial and motion in arrest of judgment which raised the implicit-bias

video as an issue. The court noted,

The implicit bias video comes from the clerk’s office with the court
attendants.
The implicit bias video, when it is shown, is shown without the
court’s involvement, without counsel’s involvement, without the
defendant’s involvement prior to the jury being sworn, prior to the
pool being questioned; and it’s, frankly, done outside the actual trial
process.
....
So regardless of whether a video of unknown origin that,
frankly, has no connection to the judge or the parties was shown, our
particular jury was instructed not once but twice by the court
regarding potential biases, and the attorneys were free to question
about any potential bias; so the court does not find that there would
be any reason whatsoever at all to suggest that a new trial needs to
be ordered.
Frankly, there’s a blanket statement basically that because
there was not a video somehow there was bias. There is no
evidence in this record, period, to suggest there was any bias on
behalf of anybody in deciding this case.

Phanhnao has not provided a copy of the requested video for review and

provides no comparison of its contents to the content of the court’s comment to the

jury before selection or the instruction provided at the end. Regardless of the

contents of the video, the jury was advised about bias, and Phanhnao has not

identified any prejudice caused by the court using a pretrial caution and jury

instruction instead of the video. We affirm on this issue.

AFFIRMED.

As you consider the evidence, do not be influenced by any
personal sympathy, bias, prejudices or emotions. Because you are
making very important decisions in this case, you are to evaluate the
evidence carefully and avoid decisions based on generalizations, gut
feelings, prejudices, sympathies, stereotypes, or biases. The law
demands that you return a just verdict, based solely on the evidence,
your reason and common sense. and these instructions. As jurors,
your sole duty is to find the truth and to do justice.