State of Iowa v. Omar Montalvo Nunez

IN THE COURT OF APPEALS OF IOWA

No. 18-0174
Filed April 17, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

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.

AFFIRMED.

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.
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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
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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
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sweatshirt at the time. Nunez testified neither the term “agarro” nor “abrazo” could

describe his conduct. Nunez denied assisting Luis while Luis was fighting Alvarez.

The district court found Nunez guilty of willful injury causing serious injury.

The court found, “By holding Alvarez while his brother stabbed Alvarez, the

Defendant actively participated in the crime.” The court determined Nunez’s

testimony he was trying to break up the fight was not credible. The court

concluded, “The State has proven beyond a reasonable doubt the Defendant

actively participated in the crime with the knowledge that his brother had the

specific intent to inflict serious injury upon Mr. Alvarez.” Nunez was sentenced to

a term of imprisonment not to exceed ten years. He now appeals.

II. Use of Interpreter

On appeal, Nunez claims, “This case presents the question of whether a

qualified interpreter should be provided at the investigative phase of a criminal

proceeding, before an official complaint is filed, in which the victim of the crime is

unable to fully participate because he or she cannot speak or understand English.”

He states under section 622A.2 any party or witness in a legal proceeding should

be entitled to an interpreter during a criminal investigation. Nunez states Officer

Wilson improperly allowed Desantiago, a key witness in the case, to translate

during his interview of Alvarez.

During closing arguments, defense counsel argued Desantiago should not

have been used an interpreter because he was a key witness and Officer Wilson

had an interpreter with him. The district court did not address this issue. Nunez

did not file a post-trial motion raising the issue. We conclude Nunez did not

preserve error because there was no ruling on this issue by the district court. In
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general, “issues must be presented to and passed upon by the district court before

they can be raised and decided on appeal.” State v. Jefferson, 574 N.W.2d 268,

278 (Iowa 1997). We do not address this issue because it has not been preserved

for our review. See State v. Robinson, 618 N.W.2d 306, 311 (Iowa 2000) (declining

to address issue where error had not been preserved).

III. Sufficiency of the Evidence

Nunez claims there is not sufficient evidence in the record to show he aided

and abetted in the offense of willful injury causing serious injury. He states there

is not substantial evidence to show he had the intent to injure Alvarez or had

knowledge Luis had the intent to injure Alvarez. Nunez states he was attempting

to keep Luis and Alvarez apart. He claims Alvarez’s statements were inconsistent,

noting the use of the term “agarro” at one point and then later, “abrazo.”

We review claims challenging the sufficiency of the evidence to support a

conviction for the correction of errors of law. State v. Wickes, 910 N.W.2d 554,

563 (Iowa 2018). We will uphold a verdict if it is supported by substantial evidence.

State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017). “Evidence is considered

substantial if, when viewed in the light most favorable to the State, it can convince

a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017) (citation omitted).

Nunez was tried under a theory he aided and abetted Luis in committing a

crime. Section 703.1 provides:

All persons concerned in the commission of a public offense,
whether they directly commit the act constituting the offense or aid
and abet its commission, shall be charged, tried and punished as
principals. The guilt of a person who aids and abets the commission
of a crime must be determined upon the facts which show the part
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the person had in it, and does not depend upon the degree of another
person’s guilt.

In order for a defendant to be guilty of aiding and abetting, “the State must prove

the defendant ‘knew of the crime at the time of or before its commission.’” State

v. Henderson, 908 N.W.2d 868, 876 (Iowa 2018) (citation omitted). “To secure a

conviction based on aiding and abetting, the State must introduce substantial proof

to show that the accused ‘assented to or lent countenance and approval to’ the

criminal act.” State v. Allen, 633 N.W.2d 752, 754 (Iowa 2001) (citation omitted).

The State claimed Nunez aided and abetted his brother, Luis, in the

commission of willful injury causing serious injury. Willful injury causing serious

injury is a specific intent crime. Krogmann v. State, 914 N.W.2d 293, 322 (Iowa

2018). Where “specific intent is an element of the crime charged, ‘a person may

be convicted on a theory of aiding and abetting if [the person] participates either

with the requisite intent . . . or with knowledge that the principal possesses the

required intent.’” State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994) (citation omitted).

Alvarez testified he defended himself against both Nunez and Luis and

fought both of them. He stated Nunez held him very tight so he could not move.

He stated while he could not defend himself because Nunez was holding him, Luis

got very close and this is when he was stabbed. The holes in Alvarez’s sweater

show he was stabbed while wearing the sweater. Alvarez testified he managed to

get out of Nunez’s grasp by wriggling out of his sweater, leaving Nunez holding the

sweater. When Desantiago arrived, Alvarez was no longer wearing the sweater.

Desantiago saw Alvarez had been stabbed and was bleeding. Desantiago saw

Nunez strike Alvarez in the head with his fist.
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The evidence shows Nunez “‘assented to or lent countenance and approval

to’ the criminal act.” See Allen, 633 N.W.2d at 754 (citation omitted). Luis was

able to stab Alvarez repeatedly because Nunez held Alvarez so he was not able

to defend himself. Whether Alvarez at one time used the term “agarro” and later

used the term “abrazo” to describe when Nunez held him makes no material

difference to this conclusion.

On the issue of specific intent, the district court found Luis stabbed Alvarez

multiple times with a dangerous weapon. By repeatedly stabbing Alvarez in the

chest and abdomen, Luis used the knife in a manner showing he intended to inflict

death or serious injury on Alvarez. The court also found:

The stabbing was facilitated by and occurred while the Defendant
held Mr. Alvarez in his grasp, incapacitating him. The Defendant
held Alvarez while he was stabbed multiple times. The State has
proven beyond a reasonable doubt the Defendant actively
participated in the crime with the knowledge that his brother had the
specific intent to inflict serious injury upon Mr. Alvarez.

We find no error in the court’s findings. Nunez testified he was aware Luis had

stabbed Alvarez.

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 Luis while Luis was stabbing Alvarez. We affirm Nunez’s

conviction.

AFFIRMED.