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. 2 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. 3 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 …
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