State of Iowa v. Robert Paul Kimbrough Jr.

IN THE COURT OF APPEALS OF IOWA

No. 21-2010
Filed July 26, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT PAUL KIMBROUGH Jr.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, James B. Malloy,

District Associate Judge.

The defendant appeals from his convictions for second-degree harassment;

domestic abuse assault; and domestic abuse assault, third offense. AFFIRMED.

Alexander Smith of Parrish Kruidenier Dunn Gentry Brown Bergmann &

Messamer L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
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GREER, Judge.

Robert Kimbrough appeals his convictions for second-degree harassment

(count I); domestic abuse assault (count II); and domestic abuse assault, third

offense (count III). He argues he was denied his constitutional right to a jury drawn

from a fair cross section of the community, the court wrongly allowed evidence of

his prior bad acts into evidence, and the court should have combined convictions

in count II and count III.

I. Background Facts and Proceedings.

Following domestic incidents over July 8 and 9, 2021, the State charged

Kimbrough with first-degree harassment (count I); intimidation with a dangerous

weapon (count II); and domestic abuse assault, third or subsequent offense (count

III). Kimbrough pled not guilty, and a jury trial was scheduled for October.

Leading up to trial, the State asked the court to rule on the admissibility of

evidence showing Kimbrough assaulted his fiancée in November 2020. The court

heard testimony from the fiancée before ruling the evidence was admissible.

On the morning the trial was set to begin, Kimbrough moved to strike the

jury, arguing the jury pool did not include any person of African-American descent,

which violated his right to have his case heard by a fair cross section of the

community. Recognizing the three-prong test for a fair-cross-section claim, the

State “concede[d] the first two issues” but “pushe[d] back on the issue of systemic

exclusion” in the third prong. The court denied Kimbrough’s motion.

Following two days of evidence, the jury found Kimbrough guilty of lesser-

included offenses of counts I and II—second-degree harassment and domestic

abuse assault, respectively. It found Kimbrough guilty as charged of count III.
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Kimbrough appeals.

II. Discussion.

A. Fair Cross Section.

Kimbrough made a fair-cross-section claim as to the makeup of the jury

pool. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury of the State and

district wherein the crimes shall have been committed.”); Iowa Const. art. I, § 10

(providing the right to “public trial by an impartial jury”); Taylor v. Louisiana, 419

U.S. 522, 530 (1975) (“We accept the fair-cross-section requirement as

fundamental to the jury trial guaranteed by the Sixth Amendment and are

convinced that the requirement has solid foundation.”). “We review constitutional

issues de novo.” State v. Plain, 898 N.W.2d 801, 810 (Iowa 2017).

Under controlling precedents, a defendant establishes a
prima facie violation of the fair-cross-section right by proving the
following: (1) a group alleged to have been excluded from the jury
pool is a distinctive group in the community; (2) the distinctive group’s
representation in the jury pool is not “fair and reasonable” when
compared to the group’s percentage in the community; and (3) the
distinctive group’s underrepresentation in the jury pool “is due to
systematic exclusion of the group in the jury-selection process.”

State v. Mong, 988 N.W.2d 305, 310 (Iowa 2023) (citation omitted).

Here, the fighting issue is proof of the third element. To the district court,

Kimbrough argued:

We would suggest . . . that the way the jury bio forms are
selected is biased in itself because it does not take in to account
lower income folks. It does not take into account where certain
populations of minorities tend to fall in these type of computerized
selections. So what we use is driver’s license, what we use is voter
registration. What we should be using, including those, is Title XIX
applications, section 8 housing, issues that deal with immigration so
that we get a true cross-section of the community, so we believe that
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the process in itself—while on its face may not necessarily be
discriminatory—but in practice it is because we limit where these
pools are drawn from, judge.

Kimbrough “had the burden of production and persuasion in establishing a

prima facie violation.” Id. at 311. And while Kimbrough pointed to ways he

believed the jury selection system could be improved, as the prosecutor argued to

the district court, Kimbrough brought “no witnesses to testify regarding what our

sources are, our source lists for jury selections. There [were] no witnesses

testifying about why Title XIX or section 8 housing lists would be a better source

list.” It takes more to properly establish a claim.

Litigants alleging a violation of the fair cross section
requirement . . . have to demonstrate that the underrepresentation
was the result of the court’s failure to practice effective jury system
management. This [will] almost always require expert testimony
concerning the precise point of the juror summoning and qualification
process in which members of distinctive groups were excluded from
the jury pool and a plausible explanation of how the operation of the
jury system resulted in their exclusion.

State v. Lilly, 930 N.W.2d 293, 307 (Iowa 2019) (emphasis added) (citation

omitted). “Mere speculation about the possible causes of underrepresentation will

not substitute for a credible showing of evidence supporting those allegations.” Id.

(quoting Paula Hannaford-Agor, Systematic Negligence in Jury Operations: Why

the Definition of Systematic Exclusion in Fair Cross Section Claims Must Be

Expanded, 59 Drake L. Rev. 761, 790–91 (2011)).

Plus, Kimbrough’s focus on run-of-the-mill jury practices cannot be the basis

for a successful fair-cross-section claim under Sixth Amendment analysis. See

State v. Williams, 972 N.W.2d 720, 724 (Iowa 2022) (“Challenges to ‘run-of-the-

mill’ jury management practices, we said, are insufficient to show systematic
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exclusion under the Sixth Amendment.”); accord id. at 726 (Appel, J., concurring

specially) (“In considering fair-cross-section challenges under the Sixth

Amendment to the United States Constitution, the United States Supreme Court

has established the familiar three-part test in Duren v. Missouri[, 439 U.S. 357, 364

(1979).] But the Court has declared that ‘run-of-the-mill’ jury practices are

essentially carved out of the analysis. For purposes of the Sixth Amendment, the

United States Supreme Court cases on this point are binding.” (internal citations

omitted)). And Kimbrough has not argued for a different standard under the Iowa

Constitution.

We agree with the district court that Kimbrough failed to establish a fair-

cross-section violation.

B. Prior Bad Acts Evidence.

Kimbrough claims the district court wrongly admitted evidence he previously

assaulted his fiancée. We review for an abuse of discretion, meaning we reverse

“if the grounds or reasoning for admission were ‘clearly untenable or clearly

unreasonable.’” State v. Goodson, 958 N.W.2d 791, 798 (Iowa 2021) (citation

omitted).

The district court is required to engage in a three-part test to determine the

admissibility of prior bad acts evidence. State v. Thoren, 970 N.W.2d 611, 626

(Iowa 2022).

The court must first “determine whether the evidence is relevant to a
legitimate, disputed factual issue.” Second, the evidence must
provide “clear proof” that the defendant engaged in the act. Mere
speculation or hearsay is not enough, but “[t]estimony of credible
witnesses can satisfy the clear-proof requirement.” Finally, the court
must consider whether the evidence’s “probative value is
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substantially outweighed by the danger of unfair prejudice to the
defendant.”
To satisfy the first element, the party introducing the evidence
must “articulate a tenable noncharacter theory of logical relevance”
between that evidence and a legitimate, disputed factual issue.
Although not all-inclusive, [Iowa Rule of Evidence] 5.404(b)(2)
includes a list of acceptable ways that prior bad acts evidence can
be relevant to a legitimate issue: “proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”

Id. (first alteration in original) (internal citations omitted).

Here, the State argued the prior assault was relevant to show Kimbrough’s

motive and intent. More specifically, the State argued it was relevant to show “the

nature of the relationship between [Kimbrough] and [the fiancée]. The angry and

violent nature of the parties’ relationship was a condition which would motivate

[Kimbrough’s] alleged conduct on July 8, 2021.” The State pointed out that with at

least one of the allegations—that Kimbrough struck a laundry basket, which then

flew across the room and hit the fiancée in the face—the State anticipated

Kimbrough arguing he did not have the requisite intent. Thus, the prior bad acts

were relevant to show Kimbrough’s pattern of behavior and supported an element

of the assault charge, which required the State to prove an intent to hurt or scare

his fiancée.

On appeal, Kimbrough seems less focused on whether the evidence was

properly admitted and more focused on whether the State wrongly used the

evidence of the prior assault as propensity evidence; he narrows in on part of the

State’s closing argument, when the prosecutor said, “There’s something else you

can use here to know whether or not he intended to place her in fear, and that’s

what happened back in November.” First, we think the prosecutor’s other
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statements before the picked-out sentence provide important context—the

prosecutor said:

In the jail video we watched [Kimbrough] admitted to Deputy Schmitz
that he had his finger in her face. That’s consistent with this. . . . And
his admission to knocking stuff around is consistent with slapping a
basket across the bed. So the question is did he have the intent to
put her in fear of offensive physical contact when he did these
things? And [the fiancée] said, well, he said he didn’t mean to hit
me. But I don’t have to prove he meant to hit her. I only have to
prove that he meant to place her in fear.
There’s something else you can use here to know whether or
not he intended to place her in fear, and that’s what happened back
in November. Okay.

And second, Kimbrough made no contemporaneous objection that the prosecutor

was urging the jury to use the evidence for an improper purpose.

Insofar as Kimbrough challenges the district court’s admission of the

evidence to show Kimbrough’s intent, we note that intent is seldom proved by

direct evidence. See State v. Taylor, 689 N.W.2d 116, 129 (Iowa 2004). And here,

intent was a contested issue. As in Taylor, evidence that Kimbrough has

previously assaulted the fiancée “was strong proof that he knew his [fiancée] would

be frightened by his conduct and therefore that his act was intended to result in

physical contact that would be insulting or offensive to the victim.” Id. at 129;

accord id. at 125 (noting defendant’s prior conduct against a victim can reveal their

emotional relationship, thus is highly probative of defendant’s probable motivation

and intent in subsequent situations). The district court did not abuse its discretion

in admitting the challenged evidence.

However, as our supreme court has repeatedly done, we urge the district

court “to give a limiting instruction even if not requested.” Thoren, 970 N.W.2d at

627. The prior-bad-acts evidence was only properly admissible for a limited
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purpose, and the jury should be told that it can only consider the evidence for those

predetermined, legitimate issues—not propensity. See State v. Rodriguez, 636

N.W.2d 234, 243 n.2 (Iowa 2001) (“Prejudice to the defendant can be limited with

the use of a cautionary instruction explaining the purpose for which the prior acts

evidence may be used. . . . In the future, trial courts would be wise to give such

an instruction to the jury, even if not specifically requested by the defendant,

whenever bad acts evidence is introduced for a limited purpose.”).

C. Combining Convictions.

Kimbrough argues his convictions for domestic abuse assault (count II) and

domestic abuse assault, third offense (count III) should have combined1 because

there was only one act or offense for the two separate convictions. We review for

errors at law. See State v. Love, 858 N.W.2d 721, 723 (Iowa 2015).

“It is well established in Iowa law that a single course of conduct can give

rise to multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584

(Iowa 2013). But Kimbrough urges us to adopt the position of the dissent in Velez,

which asserted that “repeated acts in a single course of criminal conduct

perpetrated against the same victim [should not be] distinct units of prosecution.”

Id. at 586 (Wiggins, J., dissenting). We are not at liberty to do so. Figley v. W.S.

1 While Kimbrough frames this issue as one of merger, “[o]ur merger doctrine is

limited to double jeopardy claims involving lesser-included offenses.” State v.
Ross, 845 N.W.2d 692, 701 (Iowa 2014). Like in Ross, Kimbrough’s “argument
does not involve lesser-included offenses, but rather the same statute charged
multiple times. Accordingly, we recognize [Kimbrough] as using the word ‘merger’
in his brief in its general definition of ‘[t]he act or instance of combining or uniting’
to ask us to combine his convictions.” Id. (second alteration in original) (citation
omitted).
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Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are not at liberty to

overturn precedent of our supreme court.”).

And Kimbrough does not challenge his convictions under the law as it

currently stands—allowing “multiple punishments for multiple completed acts.”

Velez, 829 N.W.2d at 585. So we do not consider his claim further.

AFFIRMED.