                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0698
                              Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NORMAN CHARLES WADSWORTH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      Norman Wadsworth appeals his conviction for second-degree murder.

AFFIRMED.




      Blake D. Lubinus of Lubinus & Merrill, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.




      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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BOWER, Chief Judge.

       Norman Wadsworth appeals his conviction for second-degree murder,

contending there is insufficient evidence to sustain the conviction, the court abused

its discretion in admitting cumulative and prejudicial evidence, defense counsel

was ineffective in failing to present a defense of insanity, the court abused its

discretion in excluding evidence of Wadsworth’s mental condition, and the court

erred in instructing the jury. We affirm.

I. Background Facts and Proceedings.

       On October 14, 2014, Wadsworth went to the office of the manager of the

apartments from which he had been evicted the prior year. Wadsworth blamed

the manager, Darlene Crook, for his eviction. He brought a white plastic bag

containing a long kitchen knife. He decided to “get back at” Crook because he was

“fed up.” He wanted to harm Crook, and he thought about harming her as he

walked to the apartment building.

       Wadsworth walked into the office and stabbed Crook repeatedly until Dawn

Konen pulled Wadsworth off of Crook. Crook suffered fourteen stab wounds and

fifty-seven incised wounds, for a total of seventy-one wounds. Most of her wounds

were on her head, neck, and hands. Wounds on her hands and arms were

consistent with defensive wounds, reflecting that Crook held up her arms to block

the knife and tried to grab the knife from her attacker. Crook was pronounced dead

at the hospital.

       Wadsworth was arrested and taken to the police station where he told

detectives he had “beef” with Crook as he blamed her for his homelessness of the

past year; he had reached his “breaking point” that day.
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      In 2019, Wadsworth was tried for second-degree murder.1 Wadsworth

testified at trial. He explained how he got off the bus near the apartment complex

and walked to the apartment office “to get Darlene Crook.” He explained how he

blamed Crook for his eviction and his resulting homelessness. He admitted that

while walking toward the apartment complex with a long kitchen knife and he was

“fed up” with Crook and wanted to harm her. He testified he intended to harm

Crook when he stabbed her.

      Defense counsel requested jury instructions on “lesser-included” offenses

of various degrees of assault. The trial court rejected the instructions, finding

assault was not a lesser-included offense of second-degree murder as it required

a showing of specific intent, whereas second-degree murder did not. In closing

argument, the defense argued Wadsworth’s actions constituted voluntary

manslaughter and his eviction the year before the killing was the provocation.

      The jury found Wadsworth guilty as charged. He now appeals, asserting

the jury “was prevented from understanding the full context” of his actions. He

asserts his “reality was a constant waking nightmare with Darlene Crook and what

she had done to him at the very center.”

II. Scope and Standards of Review.

      We review challenges to the sufficiency of the evidence for errors at law.

See State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008).


1 Wadsworth was tried previously on a charge of first-degree murder and found
guilty of second-degree murder. See State v. Wadsworth, No. 16-1775, 2018 WL
2230666, at *1 (Iowa Ct. App. May 16, 2018). On appeal, this court overturned his
conviction concluding that at the time of trial Wadsworth was not competent to
stand trial but also finding sufficient evidence for the jury to reach a verdict of
second-degree murder.
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         Claims of ineffective assistance of counsel are reviewed de novo. State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         We review the district court’s evidentiary rulings for an abuse of discretion.

State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

         “A district court’s refusal to submit a requested jury instruction is reviewed

for correction of errors at law.” State v. Thompson, 836 N.W.2d 470, 476 (Iowa

2013).

III. Discussion.

         A. Sufficiency of the evidence. To prove second-degree murder, the State

was required to prove Wadsworth: (1) stabbed Darlene Crook; (2) Darlene Crook

died as a result of being stabbed; and (3) Wadsworth acted with malice

aforethought. “Malice aforethought requires the actor to have ‘a fixed purpose or

design to do physical harm to another that exists before the act is committed.’”

State v. Tyler, 873 N.W.2d 741, 751 (Iowa 2016) (citation omitted).               “The

relationship that must be shown between the state of mind that is malice

aforethought and the homicidal act is more accurately characterized as a causal

relationship than as a temporal relationship.” State v. Lee, 494 N.W.2d 706, 707

(Iowa 1993). The State only need show “such deliberation as makes a person

appreciate and understand at the time the act is committed its nature and probable

consequences as distinguished from an act done in the heat of passion.” State v.

Gramenz, 126 N.W.2d 285, 290 (Iowa 1964) (emphasis and citation omitted).

Moreover, the law allows a presumption of malice aforethought from the use of a

deadly weapon in the absence of evidence to the contrary. State v. Reeves, 670

N.W.2d 199, 207 (Iowa 2003). “[T]he presumption may be rebutted by evidence
                                         5


showing the killing was accidental, under provocation, or because of mental

incapacity.” Id.

       The nature of this attack demonstrated a fixed purpose to do physical harm.

Moreover, Wadsworth’s use of a dangerous weapon2 permitted a presumption of

malice aforethought. There is substantial evidence to support a finding of malice

aforethought.

       Wadsworth’s defense was that his actions were provoked by his eviction

and constituted voluntary manslaughter. Voluntary manslaughter “requires that

both a subjective standard and objective standards be met before a defendant can

be convicted of voluntary manslaughter.” Thompson, 836 N.W.2d at 477 (citation

omitted). “The subjective requirement of section 707.4 is that the defendant must

act solely as a result of sudden, violent, and irresistible passion.” Id. (citation

omitted). The evidence Wadsworth presented may have shown a long-simmering

anger exacerbated by mental illness but does not establish a “sudden” passion

“from serious provocation sufficient to excite such passion in a reasonable person.”

See id.   The facts did not compel a heat-of-passion reduction to voluntary

manslaughter.

       Wadsworth argues the jury would have come to a different verdict had they

been able to fully consider his mental capacity.            However, Wadsworth

acknowledges the trial court followed current precedent, which holds diminished-

capacity defenses are only available for specific-intent crimes.      See State v.



2Wadsworth carried with him and used a long kitchen knife with a 5.5 inch blade;
a “knife having a blade exceeding five inches in length” is a per se dangerous
weapon. See Iowa Code § 702.7 (2014).
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McVey, 376 N.W.2d 585, 587 (Iowa 1985). He also acknowledges second-degree

murder is not a specific-intent crime. See State v. Moses, 320 N.W.2d 581, 589

(Iowa 1982) (district court did not err in excluding expert testimony that the accused

was mentally unable to entertain malice); accord Gramenz, 126 N.W.2d at 290

(“While malice aforethought is the specific state of mind necessary to convict of

murder, it is far different from the specific intent which is a necessary element of

murder in the first degree. It may be express or implied from the acts and conduct

of defendant.”).

       Wadsworth argues:

       Application of established Iowa precedent as it related to the
       applicability of mental health evidence of diminished responsibility in
       a second-degree murder trial rendered an erroneous result.
       Therefore, the precedent should be re-examined. After such a
       re-examination, it should be plain that the only just result is to expand
       mental health evidence to questions of malice and provocation in
       second degree murder cases.

       The request to re-examine precedent is not within this court’s authority. See

State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally, it is the role of

the supreme court to decide if case precedent should no longer be followed.”);

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to

be overruled, we should ordinarily prefer to do it ourselves.”); State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App.1990) (“We are not at liberty to overturn Iowa

Supreme Court precedent.”). The trial court did not abuse its discretion in following

Iowa precedent.

       B. Cumulative and prejudicial photographic exhibits. Wadsworth was willing

to stipulate that he had stabbed Crook and Crook died from the stabbing. He
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argues the admission of the photographs from the scene of the stabbing and the

autopsy were therefore unnecessary, cumulative, and prejudicial.

       As recognized in Neiderbach, “photographs are not inadmissible simply

because they are ‘gruesome or may tend to create sympathy . . . if there is just

reason for their admission.’” 827 N.W.2d at 202 (citation omitted). “Trial courts

have discretion in determining whether the value of pictures as evidence outweighs

their grisly nature.” Id. (citation omitted).

       The district court admitted photographs of the crime scene, Wadsworth’s

clothing, and the victim’s injuries. The photos depicted different relevant evidence

and, therefore, were not needlessly cumulative. The autopsy photographs of the

victim’s injuries were highly probative of malice aforethought.       See State v.

Plowman, 386 N.W.2d 546, 550 (Iowa Ct. App. 1986) (“Autopsy photographs are

admissible to illustrate medical testimony and demonstrate viciousness in

connection with the State’s claim of malice.”). While the photographs may have

been powerful evidence, the court did not abuse its discretion in concluding they

were not unfairly prejudicial. See Neiderbach, 827 N.W.2d at 202–03 (noting “trial

courts have discretion to admit into evidence autopsy or crime scene photographs

showing a murder victim”).        We note Wadsworth’s testimony minimized his

actions—he told the jury that he did not agree with the number of stab wounds

identified by the medical examiner and that he did not believe he inflicted that many

wounds. The photographs provided relevant and probative evidence showing the

nature of the attack. We find no abuse of discretion here.

       C. Ineffective assistance of counsel. Wadsworth contends trial counsel was

ineffective in failing to assert an insanity defense.
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       Because Wadsworth’s appeal was filed before July 1, 2019, he may raise a

claim of ineffective assistance of counsel on direct appeal. See State v. Macke,

933 N.W.2d 226, 235 (Iowa 2019). In order to establish a claim of ineffective

assistance, Wadsworth must prove both that counsel’s performance was deficient

and prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). Here,

defense counsel was not obligated to assert an insanity defense.

       To prevail on an insanity defense, a defendant must show, by a

preponderance of the evidence, at the time of the offense he suffered from a

diseased or deranged condition of the mind rendering him (1) “incapable of

knowing the nature and quality of the act” he was committing, or (2) “incapable of

distinguishing between right and wrong in relation to that act.” Iowa Code § 701.4;

see State v. Harkness, 160 N.W.2d 324, 330, 337 (Iowa 1968). Wadsworth own

expert’s report notes:

       By his own account to both law enforcement and this psychologist,
       Mr. Wadsworth was aware of the nature and quality of his actions
       when he fatally attacked Ms. Crook on October 15, 2014. Although
       he does not appear to have considered the wrongfulness of his
       actions, there is no indication that he was unable to distinguish
       between right and wrong at the time of his actions against Ms. Crook.

Counsel could reasonably determine raising such a defense would be fruitless.

See, e.g., Anfinson v. State, 758 N.W.2d 496, 502 (Iowa 2008) (finding trial counsel

did not breach any duty when the applicant’s statements to police and the

conclusions of both experts failed to support the insanity defense). Wadsworth’s

ineffectiveness claim fails.

       D. Exclusion of evidence.     Wadsworth asserts the trial court erred in

excluding evidence of his mental condition that could establish an inability to form
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malice aforethought. However, as we have already discussed above, the trial court

followed current precedent. The court did not abuse its discretion.

       E. Jury instructions. Wadsworth next claims that the trial court erred in

failing to instruct the jury on various degrees of assault as lesser-included offenses

of second-degree murder.       The court denied giving the instructions because

assault is a specific intent crime and, thus, is not a lesser-included offense of

second-degree murder.3

       “Lesser offenses must be submitted to the jury as included within the

charged offense if but only if they meet both the appropriate legal and factual tests.”

State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983). “An offense meets the legal test

if the lesser offense is composed solely of some but not all elements of the greater

crime.” Thompson, 836 N.W.2d at 476 (internal quotation marks, alterations, and

citations omitted).   Statutorily, the lesser-included offenses of second-degree

murder are voluntary and involuntary manslaughter. See Iowa Code §§ 707.4(3),

.5(2). Because assault contains specific-intent elements, it is not a lesser-included

offense of second-degree murder. See State v. Fountain, 786 N.W.2d 260, 265

(Iowa 2010) (“The elements of assault under Iowa Code section 708.1 have not

changed since our decision in [State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001)].

Under this section, a defendant must commit an act that he intends to cause pain



3 Wadsworth asserts the debate about jury instructions “highlights the absurdity”
of the distinction between specific-intent and general-intent crimes and the
availability of a diminished capacity defense, citing the dissent in McVey, 376
N.W.2d at 589–90 (Carter, J. dissenting). Wadsworth asserts, “The jury should
have been instructed as to all offenses that reached [his] state of mind so that they
could have the whole picture as to how he processed the information that informed
his state of mind.” Again, we are not at liberty to overrule precedent.
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or injury to the victim or to result in physical contact that would be insulting or

offensive to the victim or to place the victim in fear of physical contact that will be

injurious or offensive. Because the elements of these assault alternatives include

an act that is done to achieve the additional consequence of causing the victim

pain, injury or offensive physical contact, the crime includes a specific intent

component.” (citations omitted)).

       In any event, the jury found Wadsworth guilty of the greater crime, so he

was not prejudiced by refusal to submit instructions on asserted lesser offenses.

       Because we find there is substantial evidence to support the conviction for

second-degree murder, and we find no abuse of discretion, ineffective assistance,

or error of law, we affirm.

       AFFIRMED.
