State of Iowa v. Tristin Alderman ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0278
Filed June 3, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TRISTIN ALDERMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
The defendant appeals from his convictions of first-degree murder, first-
degree robbery, and conspiracy to commit first-degree burglary. CONVICTIONS
AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.
Lauren M. Phelps, Hudson, Florida, for appellant.
Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.
Tristin Alderman appeals from his convictions of first-degree murder, first-
degree robbery, and conspiracy to commit first-degree burglary. Alderman (1)
maintains the trial court abused its discretion in twice granting the motions to
continue of Alderman’s co-defendant; (2) contests several evidentiary rulings of
the court; (3) challenges the sufficiency of the evidence supporting his convictions;
(4) argues the court impermissibly sentenced him to consecutive terms of
incarceration and considered improper factors when doing so; and (5) challenges
the portion of the court’s sentencing order requiring Alderman to pay attorney fees
and court costs as part of restitution.
I. Background Facts and Proceedings.
In March 2018, Alderman was charged with first-degree murder, first-
degree robbery, and conspiracy to commit first-degree burglary. The charges
stemmed from a September 22, 2017 home invasion and killing of Alderman’s
friend, Brady Tumlinson.
In the early morning hours of September 22, someone kicked in the front
door of the home Tumlinson shared with his girlfriend, Jacey Grubbs. The person
immediately entered Tumlinson and Grubbs’ bedroom and began shooting.
Tumlinson, using the handgun he kept next to the bed, returned fire, and the
shooter fled.
Tumlinson and Grubbs were both struck with several gunshots and
sustained severe injuries. Tumlinson died of the injuries caused by the gunshot
wounds while still lying in the bed. Grubbs, who was pinned underneath him and
unable to move, remained in the bed for several hours before a neighbor heard
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her calls for help and called 911. During their investigation in the home, officers
found marijuana and cash.
While canvassing the neighborhood, officers learned a home near
Tumlinson’s had a security system that recorded footage of the street in front of
the nearby home. Recordings from the early morning hours of September 22
showed five individuals, dressed mostly in black, running by the nearby home at
12:39 a.m.
At approximately 8:30 a.m. on September 22, about an hour after police
and medical personnel first arrived at the home, Alderman walked up to the crime
scene. He told officers that he lived in the neighborhood and was a long-time friend
of Tumlinson. A detective on the scene, thinking Alderman may be able to help
provide information about Tumlinson’s life that would aid in the investigation, asked
Alderman to go to the police station to answer some background questions about
Tumlinson. Alderman refused but told officers that on his walk to Tumlinson’s
home that morning, he noticed a pair of bloody gloves in the road. Alderman
walked officers to the location of the bloody gloves. Alderman also told the officers
he had been trying to contact Tumlinson in the early morning hours but had
received no response. When they asked, Alderman showed the officers some
things on this phone, including multiple text messages Alderman sent Tumlinson
between 1:10 and 1:24 a.m. earlier that morning. Alderman reported he sent the
first couple text messages from his home and then began walking toward
Tumlinson’s home—about five blocks away. He stated he walked to the corner
near where the bloody gloves were later located and sent a couple more texts from
there. When he did not receive a response from Tumlinson, he walked back home
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because, as Alderman told the police, Tumlinson did not like it when people
showed up at his home unexpectedly.
Within a few hours, officers obtained a warrant to search Alderman’s home.
During the search, the officers located and confiscated a box of gloves they
believed matched the pair of bloody gloves found in the street. Additionally,
Alderman’s mother, who ran her own cleaning business, told officers that she was
missing a box of gloves. The officers did not search the garage of the home during
the execution of the search warrant, although it was within the areas they were
allowed to search.
While at the police station later the same day, Alderman told officers he
walked to Tumlinson’s home between 12:00 and 1:00 a.m. that morning. He
reported he walked all the way to Tumlinson’s home—into his yard even—before
ultimately walking back home. During the same interview, officers asked Alderman
who he had talked to the night leading up to Tumlinson’s death. Alderman reported
being in contact with a woman and “Cory.” He did not tell police he was in contact
with Nakita Wiseman or Christopher Dixon.
About two days later, on September 24, Alderman’s mother called the police
and reported finding suspicious items in her garage. When officers responded to
the call, Alderman’s mother directed officers to clothing items in the garage that
she stated she did not recognize. The clothing items were generally black and
included a hooded sweatshirt, found inside out; a jacket; black boots; black, fabric
gloves; and a black bandana with a white pattern on it, found with the ends tied
together. A BB gun, with the tip painted black, was also located in the same area
of the garage. The sweatshirt, when turned back as one would usually wear it,
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had a marijuana leaf and the words “DON’T PANIC IT’S ORGANIC” on the front.
Additionally, a pair of plastic or latex gloves were found outside, near the garage.
Some of the clothing was later tested for DNA. With the bandana, the criminalist
who performed the testing found a mixture of DNA from two individuals. The profile
of the major DNA contributor matched the DNA profile of Alderman. The factors
present from the minor contributor were insufficient to identify the contributor.
Alderman was initially charged in a joint trial information with Nakita
Wiseman. Each was charged with first-degree murder, first-degree robbery, and
conspiracy to commit first-degree burglary.
A couple months later, in accordance with a plea agreement he reached
with the State, Wiseman pled guilty to the lesser-included offenses of robbery in
the second degree and the later-added charge of burglary in the first degree. As
part of the agreement, Wiseman agreed to testify truthfully about his and any
codefendants’ involvement “in any trial that may result regarding the robbery and
homicide of Brady Tumlinson,” and the State agreed to dismiss the charges for
murder in the first degree and conspiracy to commit burglary in the first degree.
In May 2018, the State filed a motion to join the trial of Alderman and
Dmarithe Culbreath, who had also been charged with first-degree murder, first-
degree robbery, and conspiracy to commit first-degree burglary regarding the
events of September 21 and 22, 2017. The State argued, “[T]he set of facts are
the same for both defendants and it involves the same incident, that being the two
defendants conspired with each other and other accomplices, and acted in concert
together to commit a robbery and homicide.” Alderman initially resisted the State’s
motion.
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The court set a hearing on the motion to join the two cases for July 3. At
the hearing, with the State, Culbreath, and Alderman present, neither Alderman
nor Culbreath resisted the State’s motion to join the two trials. Culbreath informed
the court he had just recently filed a motion to continue, stating he could not be
ready for the August 13 trial date previously scheduled for Alderman. The State
noted its main concern was trying the two cases jointly and asked that if the court
granted Culbreath’s motion to continue, it also continue Alderman’s trial as well to
prevent a “de facto severance” of the two. Alderman resisted any motion to
continue.
From the bench, the court granted the State’s motion to join the two trials,
finding it was “in the interest of judicial economy” to do so. The court also granted
Culbreath’s motion to continue, relying on the facts Culbreath was only recently
arraigned, his counsel had been recently appointed, and his counsel had
depositions scheduled for late July. And, because the court had just joined the two
trials and granted Culbreath’s motion to continue his trial, the court granted the
State’s motion to continue Alderman’s trial too.
The joint trial of Alderman and Culbreath was scheduled to begin November
26, 2018. That morning, Culbreath orally moved for a continuance, citing issues
with witness availability for an “essential” witness who was in federal custody.
Alderman resisted, noting the unavailable witness was not an essential part of his
defense. Additionally, he asked the court to sever the two cases so his trial could
proceed as scheduled if the court granted Culbreath’s second motion to continue.
The State resisted Culbreath’s motion to continue and Alderman’s motion to sever.
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The court granted the motion to continue the trial over Alderman’s and the
State’s objections and denied Alderman’s motion to sever. Trial was continued
until December 10.
At trial, the State offered evidence that Tumlinson and Alderman’s
friendship was strained in the weeks leading up to Tumlinson’s death—including
phone records showing Tumlinson generally not responding to Alderman’s text
messages or calls. On September 10, after Alderman sent Tumlinson a number
of text messages without Tumlinson responding, Tumlinson responded with a text
message stating in part, “Bro if you don’t stop hitting my god damn phone up ima
beat tf outta you.”
The State called Wiseman to testify at trial. According to Wiseman, he was
at his house on September 21 when Alderman called and said he had some money
for him. Wiseman thought that statement could mean “a number of things. [He]
just went to find out.” Alderman drove to Wiseman’s home, picked Wiseman up,
and then the two of them went to Alderman’s house. At some point during the day,
Alderman told Wiseman about the “lick”—a robbery.1 Alderman told Wiseman the
location and walked him past Tumlinson’s home. Sometime after it got dark,
Alderman and Wiseman walked from Alderman’s home to the nearby grocery
1 At trial, Wiseman testified on direct examination:
A. [Alderman] said we were going to do a robbery.
Q. When he said you were going to do a robbery, do
actually—or did he actually use the word “robbery”? A. No. Nobody
ever use the word “robbery.”
Q. What word did he use? A. A lick.
Q. I’m sorry? A. A lick.
Q. And that’s street name for a robbery or street code for a
robbery? A. Yes.
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store, where they met Christopher Dixon in the parking lot. Alderman and
Wiseman got in Dixon’s car, and Alderman showed Dixon the location of
Tumlinson’s house. Afterward, Dixon dropped Alderman and Wiseman off at
Alderman’s home, saying he would be back. Dixon returned in his vehicle, with
two other men, Culbreath and Culbreath’s friend,2 in a second vehicle. Dixon
picked up Alderman and Wiseman. Dixon, driving the lead car, drove toward
Tumlinson’s home, with the two cars ultimately parking a block or two away.
Wiseman testified Dixon stayed behind while the rest walked toward Tumlinson’s
house. At that point, they were “dressed in all black” and wearing gloves that
someone—either Culbreath or Alderman—had passed out. When they got to the
house, Alderman pointed out a window and said it was Tumlinson’s bedroom. At
this point, Wiseman knew that both Culbreath and his friend had guns with them;
while Alderman had a BB gun with him. Either Culbreath or his friend kicked in the
front door while Wiseman and Alderman stood behind them. Wiseman did not
make it into the house because “the shots [were] fired instantaneously.” Both
Alderman and Wiseman took off running back to Dixon’s car. As he got back to
Dixon’s car, Wiseman saw Culbreath and his friend returning to their vehicle as
well. The two vehicles left, with Dixon dropping Alderman and Wiseman off back
at Alderman’s home once again. Wiseman wanted to leave Alderman’s house, but
he did not have a vehicle and his phone did not have a charge. He used
Alderman’s phone to call his “sister” to have her pick him up. The sister did not
know how to find Alderman’s home, so Wiseman had Alderman give directions
2Wiseman described the fifth man, who the State maintained was Darrell Williams,
but Wiseman never provided the name of the fifth person during his testimony.
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over the phone. On cross-examination, Wiseman was asked about the fact that
he told police that “nobody said what you were looking for or what was in”
Tumlinson’s home. Wiseman responded, “Well, when you are doing a robbery,
you are either looking for two—one or two things, drugs or cash.”
As part of their investigation, officers received and reviewed the data from
several different cell phone numbers and the content of those individuals’ phones,
including that of Alderman. Alderman received text messages from a contact he
had saved as “Dad” in his phone, including one on September 16, 2017, in which
“Dad” sent:
Not sure why I get put in middle of everyone’s shit. But, it's beginning
to really wear the fuck on me. As far as I am concerned with
everyone, is this . . . blowing peoples phone up, getting mad cause
they won’t respond, not showing up when they say, is NOT my
problem, but yet everyone gets mad at me. I don’t want to be a part
of nothing. I want dude gone from my house, but he won’t leave.
You need to have faith in Me! Stop worry[ing] about money, you are
trying to[o] hard to be something. PLEASE! Stop competing with
Brady. You have a son to worry about. Don't miss out on his life like
I missed out on yours.
Another message from “Dad” to Alderman’s phone, sent on September 20, stated,
“Plz quit already! You are out of control. [I’m] not sure what you are talking about.
But doesn’t sound good.” Both of these messages were deleted from Alderman’s
phone.
Other content from Alderman’s phones showed contact between Wiseman
and Dixon on September 21 and the early morning hours of September 22.
Culbreath testified at trial. As other witnesses had established, Culbreath
presented at a local emergency room at 1:13 a.m. on September 22 with a gunshot
10
wound to the head. Hospital surveillance shows Darrell Williams3 at the hospital
too. Culbreath, who was still able to walk and talk, was interviewed by police
officers who sought information regarding how Culbreath was injured. The account
Culbreath gave them, which involved an outdoor disturbance he happened to walk
past, was quickly shown to be false. Later testing by the state crime lab showed
the bloody gloves found on the road and bullet fragments recovered from
Tumlinson’s home had DNA on them consistent with that of Culbreath. At trial,
Culbreath admitted he was at Tumlinson’s during the home invasion and that he
received the gunshot wound to the head there. Culbreath said he was with
Williams on the night in question; Williams drove them to a residential
neighborhood and parked the car on a street, behind Dixon’s car. Culbreath
testified Alderman got out of Dixon’s car and handed out gloves for them to wear.
As they walked toward the house, Alderman told Culbreath “[t]hat he got fucked
out of some money.” Once they got up to the home, Alderman “went up to the
window and said, ‘This is where everything should be at. This is where things
should be.’” Culbreath testified Alderman also said, “As soon as you go into the
house, turn right, and there’s a bedroom there.”
Alderman did not present any independent evidence before resting his
case.
The jury convicted him as charged of first-degree murder, first-degree
robbery, and conspiracy to commit first-degree burglary. Alderman was later
3This may not be the correct spelling of Williams’s first name; it is spelled different
ways in different parts of the record before us, and we have no way of ascertaining
which is the correct spelling.
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sentenced to a lifetime term of incarceration on the murder conviction. The court
ordered his twenty-five year sentence for robbery to be served consecutively to the
lifetime sentence.
Alderman appeals. We address each of his appeal issues below.
II. Discussion.
A. Motions to Continue. The court granted two motions to continue trial
over Alderman’s resistance. The first, made by the State in July 2018, was in
response to the court joining Alderman’s trial with Culbreath’s and Culbreath
moving for a continuance. The second motion was made by Culbreath on the
morning the November 26 trial was scheduled to begin due to unavailability of a
witness “essential” to Culbreath’s defense—but not Alderman’s. Alderman
maintains the court abused its discretion in granting each of the continuances. See
State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012) (“We generally review a district
court’s denial of a motion for continuance for an abuse of discretion.”).
“Motions for continuance are discouraged,” and “[a] motion for continuance
shall not be granted except upon a showing of good and compelling cause.” Iowa
R. Crim. P. 2.9(2). But “a trial court has ‘very broad’ discretion in ruling on a motion
for a continuance.” See State v. LaGrange, 541 N.W.2d 562, 564 (Iowa Ct. App.
1995) (citation omitted). And we will not “reverse[] on appeal unless an injustice
has resulted.” State v. Leutfaimany, 585 N.W.2d 200, 209 (Iowa 1998).
While Alderman resisted the July motion to continue, he did not reassert a
resistance to the motion to join the two trials once he learned that Culbreath could
not be ready for the scheduled August trial date. Culbreath had been only recently
arraigned and appointed counsel, and his counsel needed more time to conduct
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discovery and prepare for trial. The case was not a simple one, and Culbreath—
like Alderman—was facing a life sentence if convicted of murder in the first degree.
“Whether in any case enough time has been afforded for consultation, investigation
for witnesses and preparation of the law and facts depends on the circumstances
of the case including the complexity of the factual issues and the legal principles
involved.” State v. Watt, 389 N.W.2d 408, 410 (Iowa Ct. App. 1986) (citation
omitted). Here, where Alderman did not resist the joining of the two trials, and with
good cause for the continuance of Culbreath’s trial, we cannot say the court
abused its discretion in granting the July motion to continue.
As for the November motion to continue, the two-week delay granted by the
district court allowed Culbreath to obtain the testimony of a witness he believed
was essential to his defense.4 Because the court also granted the motion to
continue Alderman’s trial (rather than severing the two), the State was able to
prosecute both defendants for first-degree murder in a single trial—a trial that
lasted eight days and involved more than twenty witnesses for the State. Cf. State
v. Romer, 832 N.W.2d 169, 182–83 (Iowa 2013) (considering the State’s interest
in judicial economy in determining whether the court should sever multiple charges
against a single defendant). Alderman has not established that injustice resulted
from the two week continuance.
4 We recognize the witness ultimately had little value, as he answered that he did
not remember to every question that was asked of him and denied that a recording
of an interview would refresh his recollection. But that was not known at the time
Culbreath asked for the continuance. “We call upon our trial judges to do justice
to those needing and deserving a continuance, while at the same time resolutely
moving the trial assignment toward the speedy resolution of cases.” State v.
Teeters, 487 N.W.2d 346, 348 (Iowa 1992). “From its closer vantage point, the
trial court can better sort through these matters than an appellate court can.” Id.
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We cannot say the court abused its discretion in granting the July and
November motions to continue.
B. Evidentiary Rulings. Alderman challenges several of the evidentiary
rulings the district court made throughout the trial. “We review the district court’s
evidentiary rulings for abuse of discretion.” State v. Neiderbach, 837 N.W.2d 180,
190 (Iowa 2013). “An abuse of discretion occurs when a district court exercises
its discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” State v. Wilson, 878 N.W.2d 203, 210–11 (Iowa 2016).
Before addressing Alderman’s specific claims, we note that it is not enough
for a party to simply urge on appeal that the district court erred in overruling an
objection. See State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005), superseded
by statute on other grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa Code
§ 692A.103 (Supp. 2009)), as recognized in In re T.H., 913 N.W.2d 578, 587–88
(Iowa 2018); Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 691
(Iowa 1994) (“[Litigant’s] random mention of this issue, without elaboration or
supportive authority, is insufficient to raise the issue for our consideration.”); In re
Det. of West, No. 11-1545, 2013 WL 988815, at *3 (Iowa Ct. App. Mar. 13, 2013)
(“We do not consider conclusory statements not supported by legal argument.”).
The appellant must develop arguments and cite authority to enable our review of
the decision made by the district court. See Iowa R. App. P. 6.903(2)(g)(3)
(“Failure to cite authority in support of an issue may be deemed waiver of that
issue.”); State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct. App. 2001) (“When a party,
in an appellate brief, fails to state, argue, or cite to authority in support of an issue,
the issue may be deemed waived.”). It is not appropriate for us to, and we will not,
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initiate research or form arguments on behalf of the appellant. See State v.
Coleman, 890 N.W.2d 284, 304 (Iowa 2017) (Waterman, J., dissenting) (“Judges
cannot assume the role of a partisan advocate and do counsel’s work.”); see also
Venckus v. City of Iowa City, 930 N.W.2d 792, 806 (Iowa 2019) (“We will not piece
through the petition and advance arguments the parties have not made. ‘Judges
are not like pigs, hunting for [meritorious] truffles buried in [the record].’”
(alterations in original) (citation omitted)).
1. Photos of bedroom. Alderman purportedly challenges the court’s
admission of exhibits 13 and 14 as cumulative to exhibit 16. The two challenged
exhibits are similar to each other; both are photographs of Tumlinson and Grubbs’
room, taken on the morning of September 22. Both show the mattress, which was
stripped of bedding and stained with blood. Additionally, Tumlinson’s body, which
had been moved to the floor while medical personnel aided Grubbs, is partially
visible at the edge of both photographs. Exhibit 16 shows another angle of the
room, with less of the mattress and more of Tumlinson’s body visible.
However, on appeal, Alderman merely states that the challenged exhibits
are cumulative to exhibit 16 and, therefore, his objection to them should have been
sustained. He does not cite authority to support his general premise that
cumulative evidence is inadmissible. And he does not assert that he was
prejudiced by the admission of the challenged photos.5 We do not consider this
claim.
5Iowa Rule of Evidence 5.403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by danger of . . .
needlessly presenting cumulative evidence.” (Emphasis added.) “[E]vidence is
not inadmissible merely because it is cumulative.” State v. Conner, 314 N.W.2d
15
2. Photo of sweatshirt with marijuana leaf. Alderman challenges the
admission of exhibit 177, a photograph of the black sweatshirt recovered from his
mother’s garage on September 24 with a picture of a marijuana leaf and the words
“DON’T PANIC IT’S ORGANIC” on it. At trial, Alderman objected that the exhibit
was “more prejudicial than probative.”
Iowa Rule of Evidence 5.403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by danger of . . . unfair
prejudice.” “‘Probative value’ measures ‘the strength and force of the evidence to
make a consequential fact more or less probable.’” State v. Martin, 704 N.W.2d
665, 671 (Iowa 2005) (citation omitted). And “unfairly prejudicial evidence” is
evidence that “appeals to the jury’s sympathies, arouses its sense of horror,
provokes its instinct to punish, or triggers other mainsprings of human action that
may cause a jury to base its decision on something other than the established
propositions in the case.” Id. at 672 (citation omitted).
Alderman maintains the photo of the sweatshirt with the marijuana leaf was
only minimally probative, questioning whether the State proved a link between the
sweatshirt and himself. Additionally, he claims the photo was highly prejudicial, as
the State’s theory of motive for Tumlinson’s killing involved a planned robbery for
the marijuana and cash Tumlinson had in his home in the early morning hours of
September 22.
427, 429 (Iowa 1982). And even if the evidence should not have been admitted,
“[n]ot all evidentiary errors require reversal of the trial court judgment.” Shawhan
v. Polk Cty., 420 N.W.2d 808, 810 (Iowa 1988).
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The sweatshirt was found in Alderman’s mother’s garage on September
24—two days after Alderman was taken into custody and only after Alderman’s
mother called and reported items she did not recognize in the garage. Alderman
claims that someone other than him could have placed that clothing there. If the
jury did not believe the sweatshirt in question—and, by extension, the other black
clothing and BB gun found with it—was Alderman’s, it has little probative value.
But then any prejudice was also minimal. The sweatshirt with the marijuana leaf
on it would only reflect negatively upon Alderman to the extent the jury believed it
was his sweatshirt. Cf. State v. Newell, 710 N.W.2d 6, 28–29 (Iowa 2006)
(deciding the probative value of an officer’s testimony regarding “issues of power
and control involved in domestic violence” was not substantially outweighed by its
prejudicial effect because “[t]he expert’s testimony would have an adverse effect
on [the defendant’s] defense only to the extent it had probative value,” since the
jury was never told the defendant perpetrated domestic violence on the victim and
that determination was left up to the jury). The probative value is not substantially
outweighed by danger of unfair prejudice.
Alternatively, even the photograph of the sweatshirt should not have been
admitted, any error was harmless. The actual, physical sweatshirt was also
introduced into evidence, without objection from Alderman. So the picture of the
sweatshirt was merely cumulative. See State v. Wilson, 878 N.W.2d 203, 218–19
(Iowa 2016) (noting Iowa Rule of Evidence 5.103 only requires reversal for
improperly admitted evidence when “the ruling affected ‘a substantial right of the
party’” and “[o]ne way to show erroneously admitted evidence did not impact a
verdict is to show it was merely cumulative”).
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3. Still photos from surveillance video. Alderman challenges the admission
of exhibits 156 and 122B. Exhibit 156 is a report created by Officer William Hurt,
who worked in the forensics unit. His report includes still photographs taken from
the surveillance video obtained from the home near Tumlinson’s. When asked if
he had “altered or enhanced” the photographs, Officer Hurt testified he “took a filter
and did what we call a cookie cutter to highlight where the subject was in the video.”
Exhibit 122B is a still photograph from the surveillance video.
At trial, Alderman “object[ed] to foundation,” which the court overruled. On
appeal, Alderman describes the exhibits and then makes the conclusory assertion,
“In view of the extensive modification made by the police prior to showing the video
(and the stills from the video) to the jury, the district court erred in failing to sustain
[his] objection.” It is not clear what further foundation Alderman believes should
have been laid. And Alderman cites no authority and offers no legal analysis for
his conclusion his objection should have been sustained. We do not consider this
claim further.
4. Questions re: Alderman’s DNA on bandana. Alderman maintains that
during the State’s redirect examination of Officer Hurt, the State asked a “leading
(and misleading) question [that] invite[d] the jury to come to a conclusion not
supported by the evidence.” He argues the court’s decision overruling his
objection to the question was an abuse of discretion. At trial, the following
occurred:
Q. Did you have any knowledge about that black-and-white
bandana that had been collected— A. No, I did not.
Q. —and found knotted like that (indicating)? A. I did not, no.
Q. So you certainly did not have that information upon your
review of what we see here of Suspect No. 3 in State's Exhibit 122B,
18
which actually looks like that bandana tied across their face; does it
not?
ALDERMAN’S COUNSEL: Objection, leading.
PROSECUTOR: He was asked about it, Your Honor.
THE COURT: Overruled.
A. It appears to be a bandana tied across their face
Alderman claims the court should have sustained the objection that the prosecutor
was leading the witness, but his argument on appeal is that the State’s question
was based on speculation regarding what exhibit 122B actually showed and
disagreement with the State’s description of the recovered bandana as black and
white. Alderman’s objection at trial was not that the prosecutor’s question
assumed facts not in evidence, made an improper characterization, or involved
speculation. Moreover, Alderman cites no legal authority in support of nor offers
any legal analysis of this issue. We do not consider it further.
5. Questions on redirect of Wiseman. Alderman also challenges the State’s
alleged improper use of leading questions with Wiseman on redirect examination.
But, while Alderman has laid out the portions of the testimony he finds
objectionable and explained his personal concerns, Alderman again fails to rely
upon legal authority to support his contention the court erred.
6. Jailhouse phone call and video. Alderman challenges the admission of
portions of exhibits 212 and 216, which are audio recordings from a jailhouse
phone call and a jailhouse visit, as more prejudicial than probative. Alderman
objected to the jury hearing statements he made on the audio recordings, including
that he knew Dixon “from the joint,” and a statement he made to his mother—not
directly in reference to these charges—when he asked her, “Don’t you know what
a good liar I am?”
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Both Alderman’s counsel and the State offered arguments on their
respective positions regarding the admission of the evidence, and then the court
ruled on the objection. In our record, the court’s ruling consists of nearly two pages
of transcript. On appeal, Alderman takes one sentence from the court’s ruling—“I
don’t have too much sympathy for anybody that says anything prejudicial over the
jail phone because they know it’s being recorded”—and argues that this remark
“should be considered to have tainted the rest of the court’s reasoning.”
Alderman provides no argument regarding the prejudicial nature of the
challenged statements nor does he discuss their probative value. He cites no case
law for the proposition that a judge’s statement can be found to taint their ruling on
an evidentiary objection. In fact, his entire argument regarding this evidence
consists of one paragraph in his appellate brief. We do not consider this further.
7. Jury instruction. Finally, Alderman maintains the court should have
granted his request to have the verdict form given to the jury begin with, “We, the
jury, find the defendant not guilty,” rather than beginning with “guilty” alternatives.
While Alderman has grouped this with his complaints regarding the court’s various
“evidentiary rulings,” it is not clear to us that this belongs with the others. See Iowa
R. App. P. 6.903(2)(g)(2) (providing that appellant’s briefs “shall be structured so
that each issued raised on appeal is addressed in a separately numbered division”
with its own “statement addressing the scope and standard of review”).
Additionally, though Alderman takes issue with the court’s reasoning for denying
his request, he provides no authority to support his contention that the court
abused its discretion in doing so. When our supreme court was asked to consider
this same issue, in another first-degree murder case, the court found no abuse of
20
discretion when the court denied the defendant’s request to place the “not guilty”
option before the “guilty” option. See State v. Piper, 663 N.W.2d 894, 915 (Iowa
2003), overruled on other grounds by State v. Hanes, 790 N.W.2d 545, 550–51
(Iowa 2010). Alderman has done nothing to distinguish his case from Piper. We
cannot say the court abused its discretion in denying his request about the form of
the instruction.
C. Sufficiency of the Evidence. Alderman challenges the sufficiency of
the evidence to support each of his convictions, generally arguing there is not
substantial evidence to prove his involvement in the murder and robbery. “We
review challenges to the sufficiency of the evidence supporting a guilty verdict for
correction of errors at law.” State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). “We
review the evidence in the light most favorable to the State, including legitimate
inferences and presumptions that may fairly and reasonably be deduced from the
evidence in the record.” Id. at 76.
First, Alderman argues there is insufficient evidence because no physical
evidence from the scene points to his involvement. We acknowledge the lack of
physical evidence. While officers recovered dark clothes and a BB gun in the
garage of Alderman’s mother, and notwithstanding the question of when the items
were placed in the garage or by whom, those specific items were not directly linked
to the crime scene. The image of five people running near Tumlinson’s home at
12:39 a.m. showed individuals dressed generally in dark clothing, but it is not clear
the clothing items found in the garage were worn by any of those individuals. No
blood was found on the recovered clothing items.
21
That being said, physical evidence is not the only way to place Alderman at
the scene. And, in fact, based on the elements of the crimes of which he was
convicted, Alderman’s presence at the scene was not necessary for him to be
found guilty. Alderman was tried under the theory of aiding and abetting in a felony
murder. “A person is guilty of aiding and abetting if he or she ‘knowingly approve[s]
and agree[s] to the commission of a crime, either by active participation in it or by
knowingly advising or encouraging the act in some way before or when it is
committed.’” State v. Allen, 633 N.W.2d 752, 754 (Iowa 2001) (alterations in
original) (emphasis added) (citation omitted). Here, to convict Alderman of murder
in the first degree, the State had to prove:
1. On or about September 22, 2017, [Alderman], or someone
he aided and abetted, shot Brady Tumlinson.
2. Brady Tumlinson died as a result of being shot.
3. [Alderman], or someone he aided and abetted, acted with
malice aforethought.
4. [Alderman], or someone he aided and abetted, was
participating in the offense of Robbery.
For the jury to properly convict Alderman of robbery in the first degree, the State
was required to prove:
1. On or about the 22nd day of September, 2017, [Alderman],
or someone he aided and abetted, had the specific intent to commit
a theft.
2. To carry out his intention or to assist him in escaping from
the scene, with or without the stolen property, [Alderman], or
someone he aided and abetted:
a. committed an assault on Brady Tumlinson and/or Jacey
Grubbs; or
b. Threatened Brady Tumlinson and/or Jacey Grubbs with, or
purposely put Brady Tumlinson and/or Jacey Grubbs in fear of
immediate serious injury; or
c. Threatened to immediately commit a forcible felony.
3. [Alderman], or someone he aided and abetted, was armed
with a dangerous weapon.
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And finally, for Alderman to be convicted of conspiracy to commit burglary in the
first degree, the State had to prove:
1. On or about the 22nd day of September 2017, [Alderman
and Culbreath] agreed with each other, or Nakita Wiseman, or
Christopher Dixon, or Darrell Williams, that one or more of them
would:
a. commit Burglary First Degree, or
b. attempt to commit the Burglary First Degree
2. [Alderman] entered into the agreement with the intent to
promote or facilitate the Burglary First Degree.
3. Tristin Alderman, or Dmarithe Culbreath, or Nakita
Wiseman, or Christopher Dixon, or Darrell Williams committed an
overt act.
4. Tristin Alderman, and Dmarithe Culbreath, and Nakita
Wiseman, and Christopher Dixon, and Darrell Williams were not law
enforcement agents investigating the burglary or assisting law
enforcement agents in the investigation when the conspiracy began.
Next, Alderman points out inconsistencies in the testimony of Wiseman and
Culbreath about the events in question. He asks us to conclude that their
inconsistencies make the two witnesses’ testimony without value. The two men’s
descriptions of the early morning happenings are not perfectly consistent. But both
testified as to Alderman’s planning and participation. Wiseman testified that
Alderman reached out to him and then told him about the robbery they were going
to commit. From there, Alderman reached out to Dixon and set up a meeting at
the local grocery store parking lot before showing Dixon the location of Tumlinson’s
home. Dixon then lined up others to participate before returning to pick up
Alderman and Wiseman. According to Culbreath, it was Alderman who handed
out gloves for them to wear. Wiseman was aware two of the men had guns with
them and testified Alderman had a BB gun, with the tip painted black so it looked
like a “real” gun, with him. As they approached the house, Alderman pointed out
what room was Tumlinson’s and claimed he had been “fucked out of some money.”
23
Finally, Alderman maintains the data, records, and content from his cell
phone do not prove he was involved in the murder and robbery. The killing and
robbery of Tumlinson are not explicitly discussed in the content of Alderman’s
phone. And the location data, which could support that Alderman was at
Tumlinson’s home, could also support that Alderman remained at his own home
during that time period. But we do not consider the evidence concerning
Alderman’s phone in isolation. When asked who he talked to on September 21
into the early morning hours of September 22, Alderman failed to tell police he
spoke to either Wiseman or Dixon. But the content downloaded from his phone
shows a number of contacts with both of them, and those contacts largely
corroborate Wiseman’s testimony.
Wiseman and Alderman were in contact a number of times on the afternoon
and early evening of September 21. Additionally, Wiseman testified he could not
remember what vehicle Alderman picked him up in that day but knew it was not
his truck. At 6:50 p.m. that evening, a text message was sent from Alderman’s
phone, stating, “Mom I need to use the car for 2 seconds.” Wiseman testified that
after Alderman picked him up, they talked about the robbery and Alderman walked
him past Tumlinson’s home. Later, they met up with Dixon in the grocery store
parking lot. Alderman’s phone shows a text to “CD”—which testimony established
was a nickname of Dixon—at 10:16 p.m. stating “Rockingham hyvee.” More back
and forth occurred between Alderman and CD. Then, at 11:23 p.m., Alderman
sent CD, “Don’t be talking about numbers when we in the car it’s between me and
u that’s [sic] knows.” At 12:24 p.m., Alderman sent CD a message that said, “U
just passed it.” Within one minute, CD called Alderman; that phone call lasted
24
forty-one seconds. We can infer Dixon drove past where he was supposed to pick
up Alderman and Wiseman, as the testimony from both Wiseman and Culbreath
was that Alderman and Wiseman rode with Dixon to where he parked his car near
Tumlinson’s home. Dixon’s car was the lead car, as he and Alderman were the
ones who knew the location of Tumlinson’s home. Additionally, another
surveillance recording near Tumlinson’s home showed two sets of headlights, with
the vehicles in close proximity to each other, driving past at 12:28 a.m. It was
about eleven minutes later, at 12:39 a.m., that the neighbor’s surveillance camera
recorded five individuals running past—apparently fleeing from Tumlinson’s home.
Then, at 12:44 a.m., Alderman’s phone was powered back on.6 Almost as soon
as it was turned back on, Alderman’s phone made several calls to the Wiseman’s
”sister”—the woman he said he had pick him up. One of the calls lasted more than
thirteen minutes, which tracks with Wiseman’s testimony that the woman did not
know how to find Alderman’s home and needed detailed directions.
Between the testimony of Wiseman and Culbreath, which was corroborated
by the data, content, and records for Alderman’s cell phone, Alderman’s
involvement in the robbery and murder of Tumlinson is supported by substantial
evidence in the record.
D. Sentencing.
1. Consecutive Sentences. Alderman was sentenced to the mandatory
sentence of lifetime imprisonment without the chance of parole for his first-degree-
6 The records do not show when Alderman’s phone was powered down or what
caused it—whether someone purposefully turned it off or it lost power due to lack
of charge.
25
murder conviction and a twenty-five year term of incarceration for robbery in the
first degree. The district court ordered him to serve the two sentences
consecutively.
Alderman maintains the court did not have the discretion to sentence him
to consecutive terms of incarceration because the “[t]here were not separate and
distinct offenses, just one robbery that resulted in the death of one individual and
injuries to two others.” We disagree. Iowa Code section 901.8 provides, “If a
person is sentenced for two or more separate offenses, the sentencing judge may
order the second or further sentence to begin at the expiration of the first or
succeeding sentence.” And our supreme court has recognized that when the
accused
is convicted on several counts of an indictment, and each count is
for a separate and distinct offense, a separate sentence may be
pronounced on each count, and the court may pronounce separate
and distinct sentences which are cumulative, and are to run
consecutively. This is true, even though the several offenses were
committed in the course of a single transaction.
Stradt v. State, 608 N.W.2d 28, 29–30 (Iowa 2000) (emphasis added)
(citation omitted).
Alternatively, Alderman maintains the court abused its discretion in
imposing consecutive sentences because the court relied on improper factors in
doing so. During sentencing, the court stated:
[T]he facts demonstrate that this all took place because of Mr.
Alderman, that he was the driving force, the person that set it up, the
person that thought he could get away with it. And then, like the
gumption of throwing your co-defendant under the bus, telling the
cops you walked by some bloody gloves, I’m like, wow, you know?
Not only that, when you found out the cops were there, you tried to
throw all the blame on somebody else. That’s incredible to me. So
the amount of complete sociopath, narcissistic thinking you had only
26
for yourself and no thoughts for what other people may be feeling or
suffering or needing or anything.
Alderman argues it was impermissible for the court to consider that Alderman tried
to cover up the crime and blame his codefendants. He also takes issue with the
fact that the court believed the crime was especially heinous due to Alderman’s
close personal relationship with Tumlinson. He maintains the court made improper
mental health diagnoses, which were not supported by the record. Finally, he
claims the court’s statements, taken as a whole, “show[] a high degree of personal
animus” toward him.
We recognize the charged nature of the court’s statements, but we cannot
say the court relied on improper factors. The court’s understanding that Alderman
tried to deflect blame and escape detection were formed from the evidence
presented at trial. Similarly, Alderman is the one who repeatedly told officers
Tumlinson was like a brother to him. At sentencing, the court may properly
consider a defendant’s lack of remorse and the danger the defendant poses to
society. See State v Knight, 701 N.W.2d 83, 87 (Iowa 2005) (providing the
sentencing court is not precluded “from finding a lack of remorse based on facts
other than the defendant’s failure to plead guilty” and such a consideration is
proper at sentencing); cf. Iowa Code § 901.5 (requiring the court to impose
sentence “for the protection of the community”).
We agree the court does not have the expertise to make medical or mental
health diagnosis, and no evidence was presented at trial or sentencing to support
such a finding here. But we assume that the court used the terms “sociopath” and
27
“narcissistic” generally and not in their technical or medical form. And we cannot
say the court’s use of them shows reliance on an improper factor.
2. Restitution. As part of its sentencing order, the court ordered Alderman
to pay restitution for attorney fees and court costs. The sentencing order stated,
in part:
The defendant is ordered to pay court costs and other costs of this
action, including restitution for correctional fees, if any, and all other
applicable surcharges and fees.
....
The defendant must pay restitution for attorney fees pursuant
to Section 815.9 for any costs incurred, and judgment is entered for
the same. Pursuant to Iowa Code Section 815.9(5), the Court, upon
inquiry and review, concludes the defendant is reasonably able to
pay attorney fees as reimbursement to the State.
Pursuant to Iowa Code section 910.2, the court can only order a defendant to pay
restitution on “category two” items to the extent the defendant has the reasonable
ability to pay. See Iowa Code § 910.2(1); State v Albright, 925 N.W.2d 144, 159
(Iowa 2019). Attorney fees and court costs are category two items. See Iowa
Code § 910.2(1)(3), (4). And here, while the court made a general statement that
Alderman had the ability to pay, the court did not conduct a hearing on the matter
or have the full amounts of restitution before it at the time the court made the
statement. As we must vacate the portions of the sentencing order outlined above,
we note the sentencing court did not have the benefit of Albright at the time it
entered the order.
We vacate the portions of the sentencing order requiring Alderman to pay
court costs and attorney fees and remand for determination of Alderman’s
reasonable ability to pay. See State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct. App.
2016).
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III. Conclusion.
We affirm Alderman’s convictions. We vacate the portions of the sentencing
order requiring Alderman to pay court costs and attorney fees and remand for
determination of Alderman’s reasonable ability to pay, but we otherwise affirm
Alderman’s sentences.
CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND
REMANDED.