                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1280
                                Filed July 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

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). AFFIRMED.



      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.
                                          2


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
                                            3


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 conviction for Willful Injury in 1993; a
          conviction for Assault Causing Bodily Injury in 2004; a conviction for
          an offense concerning controlled substances.
                 ....
                 But here is what I am pointing out on the record in your
          presence. You do have a history of violence. It stems back to
          1993. And you also have a record of—or a conviction of some
          controlled substance violation. I take into consideration your
          current employment status. You are employed full time, and you do
          have a GED and an Associate of Arts degree. You do have family
          in the area. I note also, again, the drug usage in your past.
                 ....
                 I take into account the nature of the offense committed. For
          whatever reason, your wife has indicated that it’s not all your fault.
          I don’t buy it. She did not request that you beat her as you did.
          She did not request that you choke her as you did. You did a
          violent act towards your wife, and the pictures and her testimony at
          the time of trial showed clearly your violent nature against her.
          That is not excused. You are a danger, Mr. Kimbrough, to your
          own family.
                 I take into consideration the statements made by the State
          and by your attorney and by you here today.

The court then sentenced Kimbrough to a period of incarceration not to exceed

five years. Kimbrough appealed.
                                           4


II. Standard of Review.

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

       We review the district court’s sentence for an abuse of discretion. State v.

Hill, 878 N.W.2d 269, 272 (Iowa 2016). Where, as here, the sentence imposed is

within the statutory limits, it “is cloaked with a strong presumption in its favor.”

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002); see Iowa Code § 902.9(e)

(“A class ‘D’ felon . . . shall be confined for no more than five years.”).

III. Discussion.

       a. Sufficiency of the Evidence.

       Kimbrough argues the evidence was insufficient to support his conviction

because it does not support the strangulation element of the charged crime. See

Iowa Code § 708.2A(5) (defining the strangulation element as “knowingly

impeding the normal breathing or circulation of the blood of another by applying

pressure to the throat or neck of the other person or by obstructing the nose or

mouth of the other person”).

       “In making determinations on the sufficiency of the evidence, ‘we . . . view

the evidence in the light most favorable to the state, regardless of whether it is

contradicted, and every reasonable inference that may be deduced therefrom

must be considered to supplement that evidence.’” State v. Harris, 891 N.W.2d

182, 186 (Iowa 2017) (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979)).

“We will uphold a trial court’s denial of a motion for judgment of acquittal if the

record contains substantial evidence supporting the defendant’s conviction.” Id.

(citation omitted). “Evidence is substantial if it would convince a rational trier of
                                        5

fact the defendant is guilty beyond a reasonable doubt.” Id. (citation omitted).

Furthermore, “[t]he jury is free to believe or disbelieve any testimony as it

chooses.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).

      Stephanie stated that her breathing did not stop and she did not lose

consciousness during the attack; she also testified she had trouble breathing and

her breathing was affected when Kimbrough put his hands around her neck.

While Stephanie’s testimony was not precise on the issue, Dr. DeJesus testified

that the injuries were consistent with strangulation, which would affect

Stephanie’s normal breathing. The State also introduced photographs depicting

a bruised area extending from the bottom of her throat up to and around her chin.

The statute does not require the State to prove Stephanie’s breathing stopped or

Stephanie lost consciousness. Rather, it requires the State to prove Kimbrough

“impeded [Stephanie’s] normal breathing” by applying pressure to the throat or

neck. See Iowa Code § 708.2A(5). A rational jury could conclude the pictures

show pressure was applied to the neck in a manner that impeded Stephanie’s

breathing, and the jury was also free to believe Stephanie’s and Dr. DeJesus’s

testimony that her breathing was impeded.        Thornton, 498 N.W.2d at 673.

Substantial evidence exists in the record to support Kimbrough’s conviction.

      b. Sentencing.

      Kimbrough claims the sentencing court abused its discretion by relying on

an unsubstantiated allegation that Kimbrough was a danger to his children.

Kimbrough also claims the court improperly considering Kimbrough’s juvenile

record.
                                         6


        The sentencing court is required to consider a number of factors when

imposing a sentence, including “the nature of the offense, the attending

circumstances, defendant’s age, character and propensities for reform.” State v.

August, 589 N.W.2d 740, 745 (Iowa 1999). However, the court is not required to

expressly consider each factor on the record. See State v. Boltz, 542 N.W.2d 9,

11 (Iowa Ct. App. 1995) (“[T]he failure to acknowledge a particular sentencing

circumstance does not necessarily mean it was not considered . . . . Even a

succinct and terse statement of reasons may be sufficient as long as the brevity

displayed does not prevent us from reviewing the exercise of the trial court’s

discretion.”).   Furthermore, “[a] court may not consider an unproven or

unprosecuted offense when sentencing a defendant unless (1) the facts before

the court show the accused committed the offense, or (2) the defendant admits

it.” State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). It is up to the individual

sentencing judge “to balance the relevant factors in determining an appropriate

sentence.” State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983).

       Kimbrough first argues the sentencing court considered unproven facts in

its sentencing determination. He points to the statement, “You are a danger, Mr.

Kimbrough, to your own family,” as an implication the court considered danger to

his children as a sentencing factor, which was not supported by the record.

Kimbrough cites State v. Black in support of his argument. 324 N.W.2d 313

(Iowa 1982). In Black, however, the Iowa Supreme Court remanded the case for

resentencing because the trial court explicitly considered the facts arising out of a

dismissed burglary charge. Id. at 315–16 (holding the sentencing court abused

its discretion by stating in its colloquy, “[Y]ou [the defendant] need something to
                                        7


remind you that you do not enter people’s houses without their permission”).

Here, on the other hand, the sentencing reasons described the violent nature of

the charged crime against Kimbrough’s wife based on the details in the record.

The sentencing court also considered the presentence investigation report,

Kimbrough’s age, his adult convictions, the violent nature of the crime,

employment, education, statements made during the proceedings, and his

substance-abuse issues. The court did not refer to Kimbrough’s children—other

than a reference to his “family,”—or any other facts unsupported by the record.

       Kimbrough also claims the sentencing court improperly considered his

juvenile record in determining his sentence.     Kimbrough, however, does not

suggest what juvenile incident the court considered during sentencing. In fact,

the only reference to a juvenile record on the presentence investigation report

was two underage smoking charges, which the court did not discuss during

sentencing. During the sentencing proceedings, the court only discussed the

violent nature of Kimbrough’s adult convictions. The court stated, “I consider

your prior record of convictions which, as an adult, includes a conviction for

Willful Injury in 1993; a conviction for Assault Causing Bodily Injury in 2004; a

conviction for an offense concerning controlled substances.” The record does

not support Kimbrough’s claim that the sentencing court improperly considered

his juvenile record.    Accordingly, the sentencing court did not abuse its

discretion.

IV. Conclusion.

       Substantial evidence exists in the record to support Kimbrough’s

conviction of domestic abuse assault by strangulation causing bodily injury. A
                                       8


reasonable jury could find the testimony and photographic evidence proves

Kimbrough “[k]nowingly imped[ed] the normal breathing or circulation of the blood

of [Stephanie] by applying pressure to the throat or neck of the other person or

by obstructing the nose or mouth of the other person.”       See Iowa Code §

708.2A(5). Additionally, the sentencing court did not abuse its discretion. The

record supported the reasons stated by the sentencing court, and there is no

indication the sentencing court improperly considered Kimbrough’s juvenile

record in making its determination.

      AFFIRMED.
