Appeal from the Iowa District Court for Polk County, Richard G. Blane II (jurisdiction) and Robert A. Hutchison (trial), Judges.
The opinion of the court was delivered by: Eisenhauer, C.J.
Defendant appeals his convictions. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.
Following a jury trial, Shamaur Sims was convicted of assault with intent to inflict serious injury, first-degree robbery, and willful injury causing serious injury. Sims argues his robbery conviction should be reversed because trial counsel rendered ineffective assistance in not objecting to the jury instructions. Sims also argues all convictions should be reversed due to the court excluding expert witness testimony and failing to transfer jurisdiction to the juvenile court. Finding counsel rendered ineffective assistance, we reverse and remand for a new trial on the robbery charge.*fn1 We affirm the remaining convictions.
I. Background Facts and Proceedings.
On August 9, 2010, Juan Carlos Urquizo was beaten and seriously injured by a group of teenage boys outside the Des Moines Asian Food store. Urquizo remained in a near-vegetative state due to blunt force trauma and was unable to testify at Sims's September 2011 trial on charges of attempted murder, first-degree robbery, and willful injury causing serious injury.
During the investigation, Sims was identified as a suspect, along with Kevin Scott, Kevin's younger brother Jaray Scott, and Shaquille Scheuermann. Sims was interviewed by Detective Frentress and would not admit to hitting, kicking, or stomping Urquizo. At trial, Detective Frentress testified about Sims's interview statements:
Q. What did Mr. Sims tell you about this event? A. [Sims] states it's him and Jermaine [Ware] are standing back as he watches Kevin [Scott], Shaq [Scheuermann], Jaray [Scott] assault the victim.
Q. Did he tell you . . . how the assault started? A. [Sims] states that Kevin confronts the victim, asked the victim for fifty cents. The victim gives him a blank stare and at that point Kevin punches him.
Q. What does [Sims] say happened after Kevin struck him?
A. The victim falls to the ground and that's where he says they begin to start "heading him," which I clarify as meaning they started kicking him in the head.
Q. . . . Then what does [Sims] tell you happens, if anything?
A. Basically, [Sims] says that he believes Kevin gets $6, he thinks, from the victim. Then after that they scatter.
Fifteen-year-old Jawon Eubanks was present during the assault and testified at trial. Eubanks is friends with Scheuermann and Jermaine Ware. Eubanks knew Scheuermann was friends with Sims and Kevin Scott. On August 9, 2010, Eubanks was watching television with Scheuermann when Sims called. Eubanks and Scheuermann left to meet Sims, Kevin Scott, Jaray Scott, and Jermaine Ware at Eighth and Franklin and "hang out." Eubanks thought the group was "going to go play basketball or whatever, but they started talking about . . . going to go jump somebody. I didn't know if they were messing around or not." Eubanks did not identify whom "they" encompassed.
Eubanks testified Urquizo was sitting at the back of the Asian Food store "and I think Kevin asked the dude for a dollar." Urquizo shook his head no, and the boys "just walked away and then we went to the Shop 'n Save." At the Shop 'n Save, Kevin started a conversation about going back and jumping Urquizo, while the other boys "didn't say nothing." Eubanks testified the boys returned to the Asian Food store area and he saw Urquizo walking toward them. Eubanks heard Kevin tell Urquizo to go towards the back of the building, and Urquizo replied, "What?" Next, "Kevin just hit him" in his jaw, and Urquizo fell on his back. "Kevin just told everybody to come on and they just all started kicking him. But me, Shaq [Scheuermann], and Jermaine [Ware] stood back." Eubanks acknowledged his deposition statements differed in that he described only himself and Jermaine Ware, not Scheuermann, standing back after Kevin knocked Urquizo down. Eubanks then testified while he and Jermaine Ware continued to stand back and just watch, Scheuermann joined in "towards the end." Eubanks testified the assault stopped and "we just told each other to leave and I said, 'run.'"
Q. Okay. So you are all at this point-you are thinking it's kind of over with? A. Yeah.
. . . . Q. What does [Sims] do at that point? A. Well, he stayed back a few seconds and stomped his head in.
. . . . Q. Okay. I know stomp can mean a lot of things, but you are saying [Sims] took the bottom of his foot and was stomping down on the victim's head? A. Yeah.
Q. Okay. How many times did [Sims] do this? A. Twice. Eubanks also testified he saw Kevin take Urquizo's wallet out of his pocket, but the wallet "didn't have [anything] in it." Eubanks was surprised when Kevin punched Urquizo and was not expecting that to happen. In his deposition testimony, Eubanks ...