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State v. Kimbrough

Court of Appeals of Iowa

July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSEPH ALLEN KIMBROUGH JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge.

         Defendant appeals his conviction and sentence for domestic abuse assault by strangulation causing bodily injury, pursuant to Iowa Code section 708.2A(5) (2016).

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, and Richard J. Bennett Sr. (until withdrawal), Special Counsel, for appellee.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         Joseph A. Kimbrough appeals his conviction and sentence for domestic abuse assault by strangulation causing bodily injury, pursuant to Iowa Code section 708.2A(5) (2016). He claims the district court considered improper factors, including the danger Kimbrough poses to his children and a juvenile conviction. Because the record does not support Kimbrough's claims, we affirm.

         I. Background Facts and Proceedings.

         On January 21, 2016, Joseph A. Kimbrough was charged by trial information with the crime of domestic abuse assault, a class "D" felony. The charge was based on Kimbrough's assault of his wife, Stephanie Kimbrough.

         At trial, Stephanie testified about the attack. She was with Kimbrough at his mother's house when a discussion "escalated" and "tempers flared." She stated Kimbrough became unstable, hit her multiple times, and put his hands around her neck making it difficult to breath. She said she was afraid for her life.

         Dr. Paula DeJesus, treating emergency-room physician, testified about her treatment of Stephanie. She stated, "As soon as you walk in the room, it's quite evident that she has multiple contusions about her face. Her eyes are markedly swollen to the point that she cannot open them by herself. She has abrasions about her face, on her hands. She is very badly injured." She also opined that Stephanie "had a very severe strangulation" based on the linear bruising, swelling, and tissue damage around the neck, which typically affects the blood flow and breathing of the victim.

         The State introduced photographs of the injuries depicting Stephanie's eyes swollen shut, a large bruise on her neck, a broken nose, and various cuts and bruises on her body. Another photograph showed blood at the scene of the attack. After trial, a jury convicted Kimbrough of domestic abuse assault by strangulation causing bodily injury.

         During the sentencing proceedings, Kimbrough and the State were given opportunities to correct the presentence investigation report. Both parties accepted the findings of the report, and the court made the following statement:

Well, Mr. Kimbrough, the court has considered all the sentencing provisions provided for in the Iowa Code. The following sentence is based upon my judgment of what will provide the maximum opportunity for your rehabilitation and at the same time protect the community from further offenses by you and others. Specifically, I've considered the following factors. I consider the entire Presentence Investigation Report because you do not challenge any portion thereof. I consider your age of 40. You are not a youthful offender. I consider your prior record of convictions which, as an adult, includes a ...

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