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State v. Nunez

Court of Appeals of Iowa

April 17, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
OMAR MONTALVO NUNEZ, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul Scott, Judge.

         Defendant appeals his conviction for willful injury causing serious injury.

          Ta-Yu Yang, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          Bower, Judge.

         Omar Montalvo Nunez appeals his conviction for willful injury causing serious injury. We find Nunez has not preserved error on his claim concerning the use of a key witness to translate during an interview with the victim. We conclude there is substantial evidence in the record to support Nunez's conviction for willful injury causing serious injury based on a finding he aided and abetted his brother while the brother was stabbing the victim. We affirm Nunez's conviction.

         I. Background Facts & Proceedings

         On February 19, 2017, Jose Pena, the owner of El Carretero Farm in southeast Des Moines, held a gathering for people who boarded horses at his farm. There was music, food, and alcoholic beverages for those in attendance. Jose Desantiago, who boarded a horse there, brought his friend, Cristian Alvarez. Luis Montalvo (Luis) also boarded a horse at the farm and attended the gathering.

         During the gathering, Luis rode his horse through a group of people. Either the horse stepped on someone's toes or it came too close to people, and Luis was reprimanded by some men. Several people noticed Luis was intoxicated. Luis became angry with Alvarez and started swearing at him. Pena told Nunez, Luis's brother, to take Luis away.

         Alvarez walked into a horse barn. He stated Luis and Nunez were in the barn. Luis started screaming insults at him and hit him. Alvarez testified he tried to defend himself against the two brothers. At one point, Nunez hugged him from behind and Luis was able to get close to him, striking him several times. Alvarez was able to wriggle loose from Nunez, leaving Nunez holding his sweater. At this time, Desantiago came into the horse barn, looking for Alvarez. Desantiago saw Alvarez had been stabbed, as there was blood on his shirt. Desantiago saw Nunez strike Alvarez in the head with his fist. Desantiago kicked the knife out of Luis's hand and Luis and Nunez ran away.

         Desantiago called 911. Alvarez was taken to the hospital, where he was treated for five stab wounds, including one which caused a collapsed lung. Dr. Denville Myrie, the emergency room physician treating Alvarez, testified his injuries would have been life-threatening if he had not received medical treatment.

         On the day of the incident, Alvarez was interviewed at the hospital by Officer Joseph Dardano, who is a certified Spanish interpreter. Alvarez's primary language is Spanish. Officer Dardano stated Alvarez used the word, "agarro," which he interpreted as "to grab," to describe Nunez's conduct during the fight. The next day, Officer Peter Wilson and an interpreter went to interview Alvarez. Desantiago was visiting Alvarez at the time. Although Officer Wilson brought an interpreter, Desantiago did most of the translating. Desantiago stated Alvarez used the word, "abrazo," which he translated as "to hug or bear hug," to describe Nunez's conduct. Police officers found a folding knife and a sweater with holes in it, matching the stab wounds to Alvarez, in the horse barn. After the incident, Luis left the country.

         Nunez was charged with willful injury causing serious injury, in violation of Iowa Code section 708.4(1) (2017), a class "C" felony, under the theory Nunez aided and abetted in the offense. Nunez waived his right to a jury trial and the case was tried to the court. Nunez testified Luis stabbed Alvarez, but Nunez claimed he was trying to keep the men apart. He stated he hugged Alvarez, but also stated it was not a hug per se, and Alvarez was not wearing a sweater or sweatshirt at the time. Nunez testified neither the ...


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