               IN THE SUPREME COURT OF IOWA
                                  No. 16–0955

                               Filed April 27, 2018


STATE OF IOWA,

      Appellee,

vs.

WONETAH EINFELDT,

      Appellant.



      Appeal      from   the   Iowa   District   Court   for   Dallas   County,

Randy Hefner, Judge.



      A defendant argues that the district court erred in failing to order a

competency hearing during trial and in excluding certain evidence.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Wayne Reisetter, County Attorney, and Stacy L. Ritchie

and Ronald Forsell, Assistant County Attorneys, for appellee.
                                     2

APPEL, Justice.

      This appeal involves an important intersection involving mental

illness and the criminal justice system.        In this case, a criminal

defendant’s lawyer moved midtrial for a competency examination of his

client who, due to the stresses of trial was “incapable of aiding [him] in

her defense.”   The record reveals that the client, among other things,

testified she suffered from paranoid schizophrenia but had stopped

taking prescribed medications due to lack of funds, stated that she

wanted to stab her lawyer in the neck and wanted to kill him, declared

that she did not know why her lawyer was sitting next to her, told the

court that she had called the FBI and was told she did nothing wrong,

and further declared that she would not write notes to her lawyer during

trial for fear the lawyer would pass the notes to the prosecution. The

district court denied the motion and the case proceeded to verdict. On

appeal, the defendant claims the district court erred in not ordering a

competency examination and in excluding evidence.         For the reasons

expressed below, we reverse the judgment of the district court and

remand the case for further proceedings.

      I. Factual Background.

      Wonetah Einfeldt and her two daughters were charged with willful

injury causing bodily injury over a physical altercation between the three

women and a fourth woman named Mulika Vinson on July 14, 2015.

The case went to trial and the defendants were tried jointly.

      Prior to trial, the State sought to exclude all character evidence

about the victim, Vinson.    This included evidence related to Vinson’s

prior threatening behavior and her convictions for two assaults and an

escape in Nebraska in 2001. She was fifteen or sixteen years old at the

time of the first assault and nineteen years old at the time of the second
                                       3

assault. At the time of trial, Vinson was thirty-one years old. Further,

the State sought to exclude evidence of a shooting that occurred at

Einfeldt’s apartment complex the evening of the altercation between

Einfeldt, Einfeldt’s daughters, and Vinson. The State asserted that the

police found no evidence of Vinson’s involvement in the shooting or that

the shooting was directed at Einfeldt.         Finally, the State sought to

specifically   exclude   testimony   by    Lacey Chicoine    about    Vinson’s

reputation for violence.

       Einfeldt resisted this part of the motion in limine. She argued that

this   character   evidence   was    admissible   due   to   her   self-defense

justification defense rendering Vinson’s character relevant and probative.

With respect to the shots fired the evening of the altercation, Einfeldt

argued that the evidence was relevant because it supported Einfeldt’s

belief that Vinson was a danger to her and others.

       At a pretrial hearing, the district court judge reserved ruling on the

admissibility of Vinson’s prior felonies. The court sustained the part of

the State’s motion in limine with respect to the shots fired at Einfeldt’s

apartment complex, but emphasized that this was a preliminary ruling

and stated that Einfeldt could make an offer of proof at trial at which

point the court might reconsider its ruling. With respect to Chicoine’s

testimony about Vinson’s reputation, the court stressed that proper

foundation would have to be laid to show that Chicoine was aware of

Vinson’s reputation.

       After jury selection, but before the presentation of evidence,

Einfeldt again raised the issue of Vinson’s prior felony convictions. The

district court found that the probative value of the evidence was

outweighed by its danger of unfair prejudice, given how long ago the

convictions happened and Vinson’s age at the time.
                                     4

      Later during trial, an attorney for one of Einfeldt’s daughters made

an offer of proof concerning Chicoine’s testimony about Vinson outside

the presence of the jury.   Chicoine related that at one point she and

Vinson were dating the same man, and Vinson threatened to “kick

[Chicoine’s] ass” or “beat [her] up” if Chicoine didn’t stay away from the

man. These threats were verbally made to Chicoine over the course of

six months. Vinson never assaulted Chicoine, however. Chicoine was

not aware of Vinson ever assaulting anyone.

      The district court found that Chicoine’s testimony about threats

was only marginally relevant to the issue of Vinson’s character trait of

being prone to physical aggression.      The court noted that Vinson only

made threats and never assaulted Chicoine. The court thus excluded the

evidence as more prejudicial than probative.

      When Einfeldt made an offer of proof about the shots-fired incident

at her apartment complex, the court ruled that evidence about the

incident was inadmissible. The court found that the victim’s character

could not be proven by a specific instance of conduct in this case or,

alternatively, that there was not clear proof that Vinson was involved in

the shooting, and so the probative value of the evidence was outweighed

by the danger of unfair prejudice.

      At the beginning of the third day of trial, Einfeldt’s attorney

advised the court that his client did not remember the events of the

previous day. He called his client to the stand to further make a record

for the purpose of seeking a competency evaluation under Iowa Code

chapter 812 (2015).     When asked if she remembered the events of

yesterday, Einfeldt responded, “No, I guess not.     I don’t know.”   She

testified that she did not remember calling the prosecutor a liar or that
                                           5

she slammed her hand down and was animated with her lawyer.

Further, Einfeldt volunteered, “I just want to kill you [her lawyer].”

       Einfeldt testified that she thought her lawyer was taking her

written notes and giving them to the State and to other parties. 1 She

admitted that she told her lawyer that she wanted to stab him “with my

pen in your neck.” When asked if she could pay attention to the trial, be

helpful to her lawyer, and assist the court when asked to do things, she

responded, “Yeah. Yeah, I don’t know, I don’t hear any noises. It’s not

buzzing. I just really—I’m in control.” Einfeldt volunteered that someone

was “poisoning the water.” In light of this testimony, her lawyer told the

court that Einfeldt has suffered from mental health issues in the past

and that “the stress of the trial has caused her to be incapable of aiding

[him] in her defense.”

       When the district court asked her if she could assist her counsel,

Einfeldt said, “I just, I believe that I don’t—I kind of don’t, really. I do,

but I don’t know who he is sometimes. Right now I don’t know why he’s

sitting by me. I don’t understand this.” Einfeldt recognized, however,

that the person sitting next to her was her attorney. When the district

court asked whether she understood the charges, she stated, “I don’t,



       1A  few months after trial, Einfeldt filed a pro se motion for a new trial and in
arrest of judgment. In the motion, she continued to express her belief that her lawyer
was revealing confidential communication to the prosecution.           She accused the
prosecutor of engaging in prosecutorial misconduct by obtaining privileged
communication between Einfeldt and her attorney and using this information to cause
the State’s witnesses to change their testimony. She additionally argued that she
received ineffective assistance of counsel because her attorney disclosed confidential
information to the prosecution. In a section apparently detailing her evidence showing
that her counsel disclosed confidential communications to the prosecution, she
described statements her attorney made such as telling her of his plans to go to a
Subway after the outcome of the trial and order a Diet Coke, telling her that he finds
dance recitals boring and would rather meet with clients, and stating to her that some
evidence obtained from discovery was not admissible.
                                    6

honestly.   I called the F.B.I., and they said they don’t think I did

anything wrong.”

       When asked by the district court if she understood that she was

being tried for the assault of Vinson, she responded, “I guess I don’t

know what assault means, because I think that I have a right to defend

myself.” When asked if she thought she had a defense to the charge,

Einfeldt responded, “Yeah. I don’t know.”

       Einfeldt told the district court that she had been diagnosed with

paranoid schizophrenia, bipolar disorder, posttraumatic stress disorder,

and attention deficit disorder. She stated she had prescriptions for these

disorders but had not been taking her medication for a couple of months

because she did not have the money.

       The district court denied the request to suspend the proceedings

and order a chapter 812 examination. The district court concluded that

based on its observations, Einfeldt was capable of assisting counsel in

providing a defense and understood the nature of the charges against

her.

       The district court revisited the question prior to sentencing.   At

this juncture, the district court had the opportunity to review Einfeldt’s

medical records as well as a presentence investigation (PSI) report

prepared by the department of correctional services.

       The medical records from 2013 showed a provisional diagnosis at

Broadlawns Medical Center (Broadlawns) of paranoid schizophrenia. The

records stated that Einfeldt reported leaving Minnesota because people

wanted to kill her. She further stated that the television talked to her.

Her thought processes were characterized in the records as delusional. A

regime of drug therapy was prescribed.
                                     7

      The PSI report, among other things, noted that Einfeldt had been

diagnosed with “Schizo-Affective Disorder and Bipolar Depression” at

Broadlawns. She had episodes of paranoia in the past and had received

treatment for mental health issues. Based on Einfeldt’s self-report, and

corroborated in the interview, the PSI report stated that Einfeldt was

reporting “psychotic characteristics.”   The PSI report recommended an

assessment by a licensed professional “to more thoroughly examine the

validity and severity of these observed features.”

      The district court again declined to order a chapter 812 hearing.

The district court stressed that up until the trial, the issue of her

competency had not been presented by counsel. The district court stated

that while there had been disruptive behavior, there was no behavior

that indicated she did not understand the charge or was unable to assist

counsel with her own defense.

      The district court then moved on to sentencing, and Einfeldt was

called to the stand by her attorney.       In response to her attorney’s

questions, Einfeldt gave rambling, off-topic, and incoherent answers. For

example, when her attorney asked her to confirm that they were asking

the court to sentence her to probation, Einfeldt denied wanting to ask for

probation and denied that she and her attorney were trying to seek

probation. She announced that she did not care, and then she launched

into a narrative in which she said that she could not think of three

positive things about herself for the PSI report, that she was hurt by the

PSI report author thinking she would reoffend, and that she would have

lower recidivism because “[m]y prison number is 80655.         You never

forget that crap.” She then explained that the first crime she committed

was theft in second grade, that her mother made her stand in the cellar

for a week as punishment, that she was made to feel ashamed in school,
                                        8

that she is “a fighter” and no one messes with her, and that she never

wanted a jury trial but instead wanted a bench trial. She concluded by

denying that she cares about herself and stating, “I live my life every day

for death. I don’t want to be here.”

      After this allocution, the district court sentenced Einfeldt to a term

of up to five years’ incarceration. Einfeldt appealed.

      II. Standard of Review.

      We review whether a trial court should have ordered a competency

hearing de novo. State v. Mann, 512 N.W.2d 528, 531 (Iowa 1994); Jones

v. State, 479 N.W.2d 265, 270 (Iowa 1991).

      “Evidentiary rulings are generally reviewed for abuse of discretion.”

State v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017); see also State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003). If a trial court exercises

its discretion “on grounds or for reasons clearly untenable or to an extent

clearly   unreasonable,”    an    abuse     of   discretion   has        occurred.

Buenaventura, 660 N.W.2d at 50 (quoting State v. Rodriquez, 636 N.W.2d

234, 239 (Iowa 2001)); see also Tipton, 897 N.W.2d at 690.

     III. Overview of Requirement of Evaluation of Competency to
Stand Trial.

      A. Due Process.       Under the United States Constitution, the

United States Supreme Court has declared that the conviction of an

incompetent defendant violates due process. Pate v. Robinson, 383 U.S.

375, 378, 86 S. Ct. 836, 838 (1966). In Dusky v. United States, a one-

page opinion, the Supreme Court declared that the test for competence to

stand trial is whether the defendant has “sufficient present ability to

consult   with   his   lawyer    with   a   reasonable   degree     of    rational

understanding . . . and . . . a rational as well as factual understanding of
                                     9

the proceedings against him.”    362 U.S. 402, 402, 80 S. Ct. 788, 789

(1960) (per curium).

      The Supreme Court has also declared that in order to comport with

due process, there must be a procedural mechanism to determine

whether a competency evaluation should be conducted.               Ford v.

Wainwright, 477 U.S. 399, 417, 106 S. Ct. 2595, 2605 (1986); Pate, 383

U.S. at 387, 86 S. Ct. at 843.    The Supreme Court has said that due

process requires a threshold hearing to be held to determine if there is

sufficient doubt regarding the defendant’s mental capacity to show a

need for further evaluation.   Drope v. Missouri, 420 U.S. 162, 172, 95

S. Ct. 896, 904 (1975). Further, the Supreme Court has made it clear

that a defendant cannot waive the due process right to competency.

Pate, 383 U.S. at 384, 86 S. Ct. at 841.

      The constitutional commands of due process have been captured

in the ABA’s Criminal Justice Standards on Mental Health.          Criminal

Justice   Standards    on   Mental   Health   (Am.   Bar   Ass’n     2016),

https://www.americanbar.org/content/dam/aba/publications/criminal_

justice_standards/mental_health_standards_2016.authcheckdam.pdf

[hereinafter Mental Health Standards].     The ABA standards generally

incorporate Dusky, noting that the test for determining a defendant’s

competency when represented by counsel should be “whether the

defendant has sufficient present ability to consult with defendant’s

lawyer with a reasonable degree of rational understanding” and whether

the defendant “has a rational as well as factual understanding of the

proceedings.” Id. standard 7-5.2, at 43. The standards emphasize that

the question of competence may be raised “at any stage of the

proceedings.” Id. standard 7-4.4, at 32. Defense counsel may move for a

competency evaluation even if the motion is over the defendant’s
                                    10

objection.   Id. standard 7-4.3(c), at 31.   If a motion for a competency

evaluation is made by a represented defendant after probable cause has

been found that a criminal violation has occurred, the court should enter

an order for an evaluation if there is “a good faith doubt” as to the

competency of the defendant. Id. standard 7-4.4(a), at 32.

      B. Statutory Provisions. Iowa, like many states, has adopted a

statutory procedure to implement the federal due process requirements

as enunciated by the Supreme Court.           Iowa Code section 812.3(1)

provides that “at any stage of a criminal proceeding” a competency

hearing is required when the district court finds probable cause that

there exist “specific facts showing that the defendant is suffering from a

mental disorder which prevents the defendant from appreciating the

charge, understanding the proceedings, or assisting effectively in the

defense.” The court may make a finding of probable cause either after

application by the defendant or the defendant’s attorney, or after holding

a probable cause hearing on its own motion. Id. Probable cause exists

for a competency hearing when a reasonable person would believe that

there is a substantial question of the defendant’s competency. State v.

Kempf, 282 N.W.2d 704, 706 (Iowa 1979); see also Moore v. United

States, 464 F.2d 663, 666 (9th Cir. 1972) (noting that due process

requires that when evidence raises a reasonable doubt about the

defendant’s competency to stand trial, it is “substantial evidence”

requiring that a competency hearing be held under the rule of Pate).

When the district court orders an evaluation of competency, Iowa Code

section 812.4 establishes a timetable for the subsequent competency

hearing and the structure of the hearing.

      We have emphasized that whether to hold a competency evaluation

presents a legal question. State v. Edwards, 507 N.W.2d 393, 395 (Iowa
                                           11

1993).     As a result, “[t]he trial court’s discretion does not play a

role . . . .” Id. When a constitutional question is raised, our review of a

district court decision regarding whether to order a competency

evaluation is de novo. Id.

       In connection with application of section 812.3, we have favorably

cited Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir. 1991), for the

proposition that a hearing should be held when a reasonable trial judge

would experience doubt on whether the defendant was competent to

stand trial.     Mann, 512 N.W.2d at 531.               Griffin also stands for the

proposition that “an express doubt by the attorney for the accused is a

legitimate factor to consider.” 935 F.2d at 930.

       IV. Application of Due Process and Statutory Requirements.

       Einfeldt claims that her constitutional right to due process 2 as well

as her statutory rights under Iowa Code chapter 812 were violated by the

refusal of the district court to order a competency hearing in this case.

       Upon review of the entire record, we conclude the district court

was presented with sufficient reason to order a competency evaluation

under Iowa Code section 812.3, which is a statutory expression of state


        2Einfeldt generically refers to “due process” and does not explicitly cite the Iowa

or the United States Constitution. Under our caselaw, when a generic reference is
made to a constitutional guaranty present in both the Iowa and United States
Constitutions, the party does not offer a distinctive interpretation of the Iowa
Constitution, and the party relies primarily on cases under the Federal Constitution, we
apply the federal substantive standards, but reserve the right to apply those standards
under the Iowa Constitution in a fashion different from prevailing federal authority.
State v. Gaskins, 866 N.W.2d 1, 6 (Iowa 2015); King v. State, 797 N.W.2d 565, 571 (Iowa
2011). For independent state constitutional interpretations of the due process clause,
see State v. Cox, 781 N.W.2d 757, 768 (2010) (“[T]he Iowa Constitution prohibits
admission of prior bad acts evidence based solely on general propensity.”); War Eagle
Village Apartments v. Plummer, 775 N.W.2d 714, 721 (Iowa 2009) (holding notice by
certified mail for forcible entry and detainer violates due process under Iowa
Constitution); and Callender v. Skiles, 591 N.W.2d 182, 192 (Iowa 1999) (“We find a
putative father of a child born into a marriage may have a right to standing to challenge
paternity under the Due Process Clause of the Iowa Constitution.”).
                                      12

and federal due process requirements.        The professional statement of

Einfeldt’s attorney regarding the difficulty of representation plays an

important role.     See United States v. Sandoval, 365 F. Supp. 2d 319,

321–22, 325–26 (E.D.N.Y. 2005) (relying heavily on the opinions of

defense counsel regarding competence); Jones v. State, 362 So. 2d 1334,

1336 (Fla. 1978) (per curiam) (noting role of representations of counsel in

determining competency issues); Richard J. Bonnie, The Competence of

Criminal Defendants: Beyond Dusky and Drope, 47 U. Miami L. Rev. 539,

563 (1993) [hereinafter Bonnie] (“[T]he attorney is best situated to know

whether the defendant’s impairments compromise the defense of the

case.”). Her professed statements about wanting to kill her lawyer and

stab her lawyer in the neck with a pen, her statement that she did not

know why the lawyer was seated beside her, and her stated belief that

her lawyer would turn over her notes to the State gives one pause.

Einfeldt’s lack of memory about what occurred during the prior day at

trial is also troublesome.

         Before the district court, Einfeldt’s lawyer made a credible initial

showing that Einfeldt could not have the kind of relationship with her

lawyer to assist in the development of her legal defense due to her mental

state.    See Dusky, 362 U.S. at 402, 80 S. Ct. at 789.         Competency

evaluations include a “careful assessment of the accused’s ability to

interact with counsel.” See John T. Philipsborn, Searching for Uniformity

in Adjudications of the Accused’s Competence to Assist and Consult in

Capital Cases, 10 Psychol. Pub. Pol’y & L. 417, 422 (2004). Certainly

competence to assist counsel includes a capacity to recognize and relate

pertinent information to counsel concerning the facts of the case.

Bonnie, 47 U. Miami L. Rev. at 561. The ABA standards stress the need

for “present ability” to consult with counsel. Mental Health Standards,
                                    13

standards 7-4.2, -5.2, -8.7, at 30, 43, 62. The ABA standards also note

that a finding of incompetence to proceed may arise from any mental

disorder or condition “as long as it results in a defendant’s inability to

consult with defense counsel . . . .” Id. standard 7-4.1, at 30.

      Further, the “rational understanding” required under Dusky means

more than being “oriented to time and place” but includes accurate

perception of reality and proper response to the world around the

defendant, not disruptive behavior and a paranoid relationship with

counsel. Lafferty v. Cook, 949 F.2d 1546, 1550 (10th Cir. 1991) (quoting

Dusky, 362 U.S. at 402, 80 S. Ct. at 789). Here, we have evidence of a

previous    diagnosis    of    paranoid     schizophrenia,    along   with

contemporaneous testimony about bizarre thoughts and behavior,

including claims of collusion between defendant’s counsel and the

prosecution. See United States v. Ghane, 490 F.3d 1036, 1040–41 (8th

Cir. 2007) (finding defendant who suffered from intermittent periods of

delusional paranoia and whose behavior indicated distrust of his own

lawyers incompetent); United States v. Friedman, 366 F.3d 975, 980–81

(9th Cir 2004) (finding defendant incompetent because paranoid

schizophrenia directly prevented rational assistance in defense); United

States v. Hemsi, 901 F.2d 293, 296 (2d Cir. 1990) (finding defendant

incompetent when record revealed inability to cooperate rationally in own

defense because of paranoia); Nagi v. People, 389 P.3d 875, 879 (Colo.

2017) (noting “wild accusations of collusion between his counsel and the

prosecution” a factor indicating need for competency evaluation).

      When the record shows that the defendant wants to stab her

lawyer in the neck and kill him, believes her lawyer is turning written

notes over to the prosecution, recently has heard buzzing noises, claims

to have been told by the FBI she did nothing wrong, states she is worried
                                    14

about someone poisoning the water, and has advised the court that she

has had a history of mental health issues including a diagnosis of

paranoid schizophrenia, yet was noncompliant with prescribed drug

therapy, a reasonable trial court should at least have some doubts as to

the defendant’s competency to effectively assist in the defense as

required by Iowa Code section 812.3(1). See Maxwell v. Roe, 606 F.3d

561, 569–70 (9th Cir. 2010) (holding reasonable doubt of defendant’s

competence was created by defendant’s history of mental illness, refusal

to take prescribed antipsychotic medication, inability to control himself

in the courtroom, and exhibition of paranoia impairing attorney–client

relationship). Consistent with ABA Standard 7-4.1(d) related to inability

to consult with defense counsel, the Supreme Court has stated that any

one factor alone may sufficiently raise a reasonable doubt in the mind of

a reasonable trial judge.    Dusky, 362 U.S. at 402, 80 S. Ct. at 789;

Mental Health Standards, standard 7-4.1(d), at 30.

      There is, perhaps, the question of malingering.        The Supreme

Court addressed malingering in the context of competency evaluations in

Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373 (1996). In Cooper,

the question was whether a state could impose a heightened “clear and
convincing” standard of proof on a defendant seeking to show

incompetence.    Id. at 362, 116 S. Ct. at 1380.     In rejecting a higher

standard of proof, the Supreme Court looked at the consequences of

error. Id. at 362–63, 116 S. Ct. at 1381. According to the Cooper Court,

“For the defendant, the consequences of an erroneous determination of

competence are dire.     Because he lacks the ability to communicate

effectively with counsel, he may be unable to exercise other ‘rights

deemed essential to a fair trial.’ ” Id. at 364, 116 S. Ct. at 1381 (quoting

Riggins v. Nevada, 504 U.S. 127, 139, 112 S. Ct. 1810, 1817 (1992)
                                    15

(Kennedy, J., concurring)). On the other hand, “[b]y comparison to the

defendant’s interest, the injury to the State of the opposite error—a

conclusion that the defendant is incompetent when he is in fact

malingering—is modest.” Id. at 365, 116 S. Ct. at 1382. The teaching of

Cooper regarding comparative interests of the state and the defendant is

particularly compelling in the context of a preliminary proceeding to

simply order a mental health evaluation.

      And, it is true that Einfeldt expressed the view that trial should

continue.   So did the defendant in Kempf, who declared he desired to

plead guilty and get started on prison time to “get it over with.”     282

N.W.2d at 707.      Such statements did not defeat the assertion of

incompetence advanced by Kempf’s counsel. Id. at 707, 710; see also

Sandoval, 365 F. Supp. 2d at 324, 328 (finding defendant incompetent

despite defendant denying incompetence). They should not do so here.

      It is important that our district court judges not put the proverbial

cart before the horse in the competency setting. The district court was

not called upon in this case to make a definitive determination of

competency. See Moore, 464 F.2d at 666; Commonwealth v. Kostka, 350

N.E.2d 444, 449 (Mass. 1976).       The only question was whether the

relatively low threshold had been met to require further evaluation and a

subsequent hearing on the question of competency after a professional

evaluation. Cf. Blakeney v. United States, 77 A.3d 328, 348 (D.C. 2013)

(characterizing reasonable doubt threshold of local law on competency as

not difficult to reach by design); Bonnie, 47 U. Miami L. Rev. at 563

(characterizing the threshold for referral for further inquiry as “very low

in order to cleanse all cases of doubts about competence”).      The trial

court must take care to ensure that the preliminary hearing to determine

whether there is a bona fide doubt as to the defendant’s competency does
                                             16

not turn into a substitute for the determination of competency itself.

State v. Bishop, 667 P.2d 1331, 1334 (Ariz. Ct. App. 1983).

       Here, it was not the district court but the PSI report which came to

no specific conclusion regarding Einfeldt’s mental health but, noting a

diagnosis of schizo-affective disorder, “episodes of paranoia” in the past,

and evidence of “multiple, and fairly significant, mood and/or anxiety

disorder     indicators,”      urged     a    thorough      mental      evaluation       after

sentencing.        That was a good recommendation, but under the

incompetency caselaw, this recommendation for a mental evaluation

occurred at the wrong place and at the wrong time.

       The district court relied in part upon its observations at trial.

Such observations are, of course, relevant considerations.                      Yet, as the

Supreme Court has emphasized,

       [a]lthough a defendant’s demeanor during trial may be such
       as to obviate “the need for extensive reliance on psychiatric
       prediction concerning his capabilities,” . . . “this reasoning
       offers no justification for ignoring the uncontradicted
       testimony of . . . (a) history of pronounced irrational
       behavior.”

Drope, 420 U.S. at 179, 95 S. Ct. at 907 (first quoting Note, Incompetency

to Stand Trial, 81 Harv. L. Rev. 454, 469 (1967); then quoting Pate, 383

U.S. at 385–86, 86 S. Ct. at 842).                 Here, in addition to the bizarre

statements and conduct, there was evidence of a history of paranoid

schizophrenia. 3

       3Of   course, a past history of mental illness, without more, is insufficient to
trigger a competency hearing under Iowa Code section 812.3 or due process. Jones,
479 N.W.2d at 270; Hickey v. Dist. Ct., 174 N.W.2d 406, 410 (Iowa 1970). The question
is one of present competency, not past malady. Further, even the presence of mental
illness at trial, in and of itself, is not necessarily sufficient to trigger the requirement of
a competency hearing under Iowa Code section 812.3 and due process. See State v.
Myers, 460 N.W.2d 458, 460 (Iowa 1990); State v. Lucas, 323 N.W.2d 228, 233 (Iowa
1982). The present mental illness must be sufficient to give rise to a serious question
as to whether the defendant meaningfully understands the charges and is capable of
meaningfully assisting in the defense. Iowa Code § 812.3; Myers, 460 N.W.2d at 460.
                                      17

      The district court also relied on pretrial behavior of Einfeldt. But

as the Supreme Court has noted, “[e]ven when a defendant is competent

at the commencement of his trial, a trial court must always be alert to

circumstances suggesting a change that would render the accused

unable to meet the standards of competence to stand trial.” Drope, 420

U.S. at 181, 95 S. Ct. at 908.

      There is a question of remedy. At this late date, the possibility of

making a meaningful determination of competency at the time of trial

given the passage of time is simply not possible. See State v. Myers, 460

N.W.2d 458, 460 (Iowa 1990) (holding failure to hold a competency

hearing not capable of cure by an ex post facto determination sometime

after trial). As a result, we reverse the judgment of the district court and

remand the case for a new trial.       In any subsequent trial, the district

court should monitor the proceedings and ensure that the defendant’s

due process and statutory rights related to competency are properly

protected throughout the proceedings.

      V. Evidentiary Rulings.

      Einfeldt argues that the district court erred by disallowing evidence

of Vinson’s prior assault convictions, threats against Chicoine, and

involvement in the shots-fired incident at Einfeldt’s apartment complex.

Because these issues may reoccur on retrial, we address them.

      A. Evidence of Violent Character of Victim. Under Iowa Rule of

Evidence 5.404(a)(1), “[e]vidence of a person’s character or character trait

is not admissible to prove that on a particular occasion the person acted

in accordance with the character or trait.” An exception to this rule is

when a defendant seeks to offer “evidence of the victim’s pertinent trait.”

Id. r. 5.404(a)(2)(A)(ii). While ordinarily evidence of a victim’s prior violent

or turbulent character is immaterial and not admissible at trial, if the
                                         18

accused asserts he or she acted in self-defense, specific instances of the

victim’s conduct may be used to demonstrate his or her violent or

turbulent character. State v. Webster, 865 N.W.2d 223, 243 (Iowa 2015);

State v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977).

      Yet, if such evidence’s probative value is substantially outweighed

by danger of “unfair prejudice, confusing the issues, misleading the jury,

undue    delay,   wasting   time,   or    needlessly   presenting   cumulative

evidence,” a court may exclude the evidence. Iowa R. Evid. 5.403. We

use a two-part test to determine whether evidence should be excluded

under rule 5.403.    Webster, 865 N.W.2d at 242; State v. Huston, 825

N.W.2d 531, 537 (Iowa 2013). “First, we consider the probative value of

the evidence. Second, we balance the probative value against the danger

of its prejudicial or wrongful effect upon the triers of fact.” Webster, 865

N.W.2d at 242 (quoting Huston, 825 N.W.2d at 537).            In weighing the

probative value against the danger of unfair prejudice, we consider,

      (1) the need for the proffered evidence “in view of the issues
      and other available evidence,” (2) whether there is clear proof
      it occurred, (3) the “strength or weakness of the prior-acts
      evidence in supporting the issue sought to be prove[d],” and
      (4) the degree to which the evidence would improperly
      influence the jury.

State v. Martin, 704 N.W.2d 665, 672 (Iowa 2005) (quoting State v.

Henderson, 696 N.W.2d 5, 11 (Iowa 2005)). “Weighing probative value

against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal

of leeway to the trial judge who must make this judgment call.’ ” State v.

Putman, 848 N.W.2d 1, 10 (Iowa 2014) (quoting State v. Newell, 710

N.W.2d 6, 20–21 (Iowa 2006)).
      We believe that the district court acted within its discretion when it
found that both the evidence of Vinson’s prior felonies and Chicoine’s
testimony about threats were inadmissible under Iowa Rule of Evidence
                                     19

5.403. With respect to the prior felonies, these assaults occurred over
ten years ago, when Vinson was fifteen or sixteen and nineteen
respectively.    As our juvenile sentencing caselaw emphasizes, an
adolescent’s character is frequently not formed, and such adolescents
often develop into adults with completely different characters. See State
v. Sweet, 879 N.W.2d 811, 833 (Iowa 2016). Without any more recent
evidence of convictions for assaults, evidence of assault convictions
occurring during adolescence says very little about Vinson’s adult
character.    The district court properly excluded this evidence as being
substantially more prejudicial than probative.
      Further, we find that the district court acted within its discretion
when it excluded Chicoine’s testimony about receiving threats from
Vinson.     As the district court noted, Vinson never assaulted Chicoine.
Verbal threats are not very probative on the issue of a person’s tendency
toward physical confrontations and violence.
      B. Evidence of Shots Fired. We affirm the district court’s ruling
excluding evidence of the shots-fired incident at Einfeldt’s apartment
complex. There was simply not enough evidence linking Vinson with the
shooting or that Einfeldt or her daughters were the targets of the
shooting.    See Iowa R. Evid. 5.403; id. r. 5.404(a)(2)(A)(ii); Martin, 704
N.W.2d at 672.     The district court was within its discretion in finding
that this evidence was not relevant to Vinson’s character.
      VI. Conclusion.
      For the above reasons, the judgment of the district court is
reversed and the case remanded to the district court for further
proceedings.
      REVERSED AND REMANDED.
      All justices concur except Mansfield, Waterman, and Zager, JJ.,
who concur in part and dissent in part.
                                    20
                                                #16–0955, State v. Einfeldt
MANSFIELD, Justice (concurring in part and dissenting in part).

      I respectfully dissent in part. The majority’s reading of the record

is selective. Based on my review of the entire record, the district court

should not be reversed.     Rather, its handling of the trial should be

applauded as a model of how to deal with a difficult defendant.

      Wonetah Einfeldt made some bizarre statements during the trial.

But they were always out of the presence of the jury. When the jury was

present, Einfeldt’s behavior changed.       She made occasional, targeted

interjections, generally to express her disagreement with unfavorable

testimony. In today’s impolite world, this hardly sets her apart.

      Viewing the trial as a whole, Einfeldt showed a sophisticated

understanding of the proceedings. She ultimately worked well with her

defense counsel, heeding his undoubtedly sound advice that she not take

the stand and instead allow the defense case to be presented through the

testimony of her codefendants.

      The majority opinion sets the bar too low for when a defendant can

hold up a trial by being disruptive or making bizarre remarks.          I fear

today’s decision will make trial management more difficult for our trial

judges.

      Like the majority, I take the issue of mental illness seriously. But I

think their opinion is naive.     According to the Iowa Department of

Corrections, over half of Iowa prisoners have either a serious mental

illness or a chronic mental health diagnosis.     See Iowa Dep’t of Corr.,

Mental    Health   Information    Sharing     Program   1    (Jan.      2017),

http://idph.iowa.gov/Portals/1/Meetings/MeetingFiles/OtherFiles/95/8

d8a73aa-da57-475e-b44f-77c91800cbd0.pdf.            Mental    illness     and

criminal conduct to some extent go together. Except in exceptional cases
                                     21

when the criteria of Iowa Code section 812.3 have been met, mental

illness is not a reason to halt a criminal trial, thereby necessitating a

later do-over.

         I. The Facts Revisited.

         The majority characterizes this case as a “physical altercation

between [Einfeldt and her two daughters] and a fourth woman named

Mulika Vinson on July 14, 2015.” This sanitized description of the case

does not do justice to its facts. The evidence of Einfeldt’s guilt was quite

strong.

         The trial evidence showed that this was a deliberate, planned

beating of the victim (Vinson). Two bystanders saw what happened and

testified at trial. Most importantly, one of those bystanders managed to

record part of the beating on his cell phone. The video was replayed at

trial.    As we know from current events, video evidence can be very

powerful. It was powerful here.

         A. The Events of July 14, 2015.      On July 14, 2015, Einfeldt,

accompanied by her daughters Danielle and Beatrice Abang-Ntuen,

walked up to the front door of Vinson’s home in Perry. Vinson was at

home with her five-year-old daughter and her four-year-old son.         The

impetus for the visit was apparently an ongoing feud between Danielle

and Vinson over a male coworker.

         Meanwhile, two individuals were putting up siding on a nearby

house.      They heard the commotion and witnessed much of the

altercation.     One of them later testified that Einfeldt, Danielle, and

Beatrice were coming down the street, “angry and looking for a fight.”

According to this worker, Einfeldt and her daughters yelled at Vinson to

come out of her house, which she did. This same worker testified that

Danielle initiated the altercation and Einfeldt and Danielle then grabbed
                                   22

Vinson together and threw her to the ground. He recalled that Einfeldt

and Danielle did most of the damage to Vinson, but Beatrice also

delivered a few blows.

      The other worker likewise testified that he saw the three women

walking up to Vinson’s house, yelling for Vinson to come out. He saw

Vinson standing inside the door, reluctant to come outside, although she

eventually did.    According to this worker, Vinson kept telling the

defendants her children were watching. This worker then saw Einfeldt,

Danielle, and Beatrice dragging Vinson by the arms and beating her. He

recorded a portion of the altercation on his cell phone before he

intervened to stop it. The cell phone video, although only a few seconds

long, shows both Einfeldt and Danielle dragging and striking Vinson as

she lies helpless on the ground. Beatrice is standing and watching, just

a few feet away.

      Once the second worker intervened, Einfeldt and her two

daughters started to walk away down the street.     The worker followed

them on foot as he spoke on his cell phone with the Perry police

department. Vinson remained on the ground injured.

      The police arrived soon afterward.    Einfeldt and Danielle were

taken into custody. Einfeldt told the police, “I beat her mother____ ass,

now book me up.” When Einfeldt was advised that paramedics were with

Vinson, she said something to the effect that “she’s going to need them.”

Vinson was admitted to a hospital later that evening and treated for her

injuries.

      B. Trial Begins. On August 5, Einfeldt and both daughters were

charged with willful injury causing bodily injury.      See Iowa Code

§ 708.4(2) (2015). The defendants were tried jointly beginning on April

18, 2016.
                                    23

      Einfeldt and Danielle raised justification as a defense, while

Beatrice denied participating in the assault. All of them asserted that

Vinson had brandished a handgun in a threatening manner when she

answered the door. They admitted they didn’t see the gun after that.

      Vinson denied she had a gun.         No one found a gun.           The

construction workers never saw a gun or heard anyone say anything

about a gun.      It defies common sense that Vinson would have

brandished a gun when answering the door, then walked outside without

the gun to subject herself to the mercy of the three angry defendants.

      As the trial went on, Einfeldt was disruptive at times. During the

prosecutor’s opening statement, she made interjections out loud three

times. The third time, the court took a recess. Out of the presence of

the jury, the court had a colloquy with Einfeldt. During this colloquy,

Einfeldt took the opportunity to correct a factual statement the

prosecutor had made relating to the admissibility of Vinson’s prior

convictions.   Still, she agreed to keep quiet in the future.    She also

explained that she has anxiety and if she starts having a panic attack, it

usually starts with coughing and she would need to leave.       The court

advised her to let her attorney know “or raise your hand, and we’ll take a

recess. . . . We do want to accommodate those health issues.”

      Vinson was the State’s first witness to testify. Einfeldt kept silent

throughout her testimony. One of the bystander workers testified next.

During his cross-examination, Einfeldt said “objection” one time after he

gave a harmful answer.

      C. The Probable Cause Hearing. The next morning, before the

jury was summoned, Einfeldt’s counsel advised the court that Einfeldt

had told him “she did not remember the events of yesterday” and had

discussed “her current mental state” with him. He asked permission to
                                      24

make a record as to Einfeldt’s mental condition.          The district court

agreed.

        When questioned by her counsel, Einfeldt said she remembered

“some” of the evidence from the previous day and “want[ed] to go

forward.” But when counsel asked Einfeldt if she thought she would be

able to pass notes to him when needed, Einfeldt answered, “No, because

I don’t want you reading my notes. I don’t know if I trust—I mean, I do.

I think you’re a good person. But I just want to kill you. I don’t know

you.”     She acknowledged that the previous day she had been upset

because she thought her counsel was passing her notes to other parties.

She said she had wanted to stab her counsel with a pen in the neck,

although she didn’t. Yet she said she thought she would be able to pay

attention to the trial and was “in control.” She concluded,

        I don’t want to go [to] the hospital. I don’t want to go back. I
        don’t want to go to Oakdale. I just want to finish this, and
        whatever happens just happens. And I want my kids to be
        all right, and I just don’t know what to do. I don’t want to
        answer any more questions.

Einfeldt interjected one further comment: “I think she’s poisoning the

water.”
        At this point, Einfeldt’s counsel represented to the court, “I don’t

believe nor have ever felt threatened by her.” Nonetheless, he moved to

suspend the proceedings under Iowa Code chapter 812, relating to

competency to stand trial.

        The State opposed the motion. It urged there had been no showing

that Einfeldt did not understand the nature of the charges and their

consequences or that she was unable to assist in her defense.

        The district court questioned Einfeldt further. Einfeldt claimed she

had “a diagnosis of paranoid schizophrenia with manic bipolar, PTSD
                                    25

and ADD, or something like that.” She said she had prescriptions but

had not taken them for a couple of months for financial reasons.

      The district court denied the motion to suspend the trial.          It

explained,

      Based upon my observations, not only during the first two
      days of this trial, but during previous hearings, it appears to
      me as if Ms. Einfeldt is capable of assisting Mr. Macro in
      providing a defense.

            I do believe she understands the nature of the charges.
      Just the explanation of the defenses that she believes she
      has, suggest to me that conversely she understands the
      underlying charges.

The court added that the previous day had gone relatively smoothly and

reassured Einfeldt that if she needed to take a break, she could do so.

      D. The Trial Continues.       During the course of that morning’s

testimony, Einfeldt said, “Liar,” once during the testimony of a police

officer. She later blurted, “I never said that,” when another police officer

referred to a statement Einfeldt supposedly made. Later, she said, “Ha

ha ha,” and slapped the table when that officer claimed the only injury

he saw on a photograph of Danielle’s face was a mosquito bite.

      After the jury had been excused for the morning, defense counsel
for Danielle and Beatrice complained that Einfeldt had been putting her

head down and pulling out tissues loudly and stuffing them back in the

box, “all disruptive behavior.” The district court denied their motion for

mistrial, although it agreed these events had occurred.

      In the afternoon, Einfeldt made three brief audible comments

during the testimony of the worker who had taken a video of the

altercation. Thereafter, the State rested and the jury was excused again.

At this point, Einfeldt became a more active participant.
                                     26

        All three defense counsel argued motions for judgment of acquittal.

When they were denied, Einfeldt inquired of the district court, “Can I ask

one question off the record? Do you ever grant dismissal? I just want to

ask.”   After the prosecutor later argued for the exclusion of a defense

witness, Einfeldt asked, “Why are you guys trying to hide the truth? I

can’t understand that.” When there was a discussion about whether the

defendants would testify, Einfeldt stated, “I’m telling everybody [Vinson]

drove by my house and tried to shoot us”—a reference to an incident that

had been excluded based on a motion in limine ruling. She added, “I

[will] tell everything that you guys are trying to hide, all the lies that

you’re making people tell.” Her counsel requested a break, and the jury

then returned and two defense witnesses testified without incident.

        The day concluded with an offer of proof out of the jury’s presence.

As her attorney concluded his offer-of-proof examination of one witness,

Einfeldt added a suggestion that he ask the witness about having

received a controlled substance from Vinson. Later, while the prosecutor

was cross-examining this same witness during the offer of proof, Einfeldt

inquired, “Why are we redeposing her? What is going on?”

        When Einfeldt’s counsel requested permission to speak privately

with Einfeldt, Einfeldt said she wanted “everything on the record,” and

“she can’t take this.”    She asked generally, “Why [are] you hiding the

truth?” She added that she wanted an African-American lawyer. The

district court explained the purpose of the offer of proof to her. Einfeldt

countered,

        I want to know how come everything that’s in front of the
        jury has to be screened by you, but everything that she [(the
        prosecutor)] put in, all the lies that she told, was not
        screened by you. I don’t get it. We’re supposed to have more
        rights than her.
                                     27

The court responded that it had explained the offer of proof as best as it

could and asked Einfeldt to agree to remain quiet during the remainder

of the offer.

       The next day was uneventful until the time came to make a record

on Einfeldt’s decision whether to testify or not. She indicated she wanted

to testify and continued to argue about the shooting incident that the

district court had excluded. The district court emphasized that Einfeldt

would be able to answer the questions asked and nothing more. Einfeldt

further commented that “[t]he judge is a good guy” and later added that

she wanted a trial before the judge rather than the jury.

       The jury returned, and Einfeldt generally behaved well as defense

witnesses, including Danielle and Beatrice, testified. Meanwhile, Einfeldt

had changed her mind and decided not to testify on the advice of her

counsel. A record was made with the court out of the jury’s presence.

       Closing arguments took place the next day, the final day of trial.

Einfeldt said nothing during the prosecutor’s initial argument or the

arguments of the other defense counsel. She corrected her counsel when

he said “Beatrice” instead of “Danielle” during closing argument and

clapped at the end of that closing. Otherwise, she was quiet. However,

during the prosecutor’s rebuttal argument, Einfeldt made three brief

interjections. Following the third, the district court advised her that if

she did that again, she would have to be removed from the courtroom.

At that point, Einfeldt voluntarily got up and left.

       The jury returned guilty verdicts against Einfeldt and Danielle. It

found Beatrice guilty of the lesser-included offense of assault.

       E. Sentencing.     A presentence investigation report (PSI) was

prepared on Einfeldt. Attached to it were two records from Broadlawns

Medical Center relating to Einfeldt. In June 2013, Einfeldt appeared at
                                               28

Broadlawns for a psychiatric evaluation complaining of “feeling stressed

out.” Einfeldt stated that she had been hospitalized at age seventeen4

and had had recurring paranoia and “exacerbations of her paranoid

symptoms” since then but no other hospitalizations.                     According to the

report, she believed she was “married to the devil” and was “vague about

hearing voices.” However, she “did not want to discuss past diagnoses.”

       The Broadlawns report gave her a “provisional” diagnosis of

paranoid     schizophrenia         and       noted   “hallucinations         (questionable).”

Einfeldt was prescribed one new medication and told to follow up in a

month, but she did not return.

       Einfeldt       next    went     for    another     psychiatric        evaluation   at

Broadlawns in October 2015, after she had been charged in this case.

She said she had not returned after the first visit “because upon her

leaving she saw a body bag.” She complained again of paranoia. Once

again, the same medication was prescribed, and Einfeldt was told to

follow up in one month which, again, she did not do.

       The PSI recommended incarceration of Einfeldt.                             It further

recommended that while incarcerated, she obtain a mental health

evaluation and be screened for an assaultive behavior class or anger

management. 5

       The PSI also included Einfeldt’s version of the offense.                       There,

Einfeldt did not mention any mental health concerns.                           Instead, she

provided—in her own words and handwriting—a statement that deftly

accepted a degree of responsibility. She wrote, “I am not justifying my



       4Einfeldt   was forty-one years old at the time of this evaluation.
       5According   to the PSI, Einfeldt admitted attempting suicide as a teenager, over
twenty years before. Einfeldt denied this at the sentencing hearing and denied any
suicidal ideations or attempts.
                                     29

behavior.   I take full responsibility for the fight . . . .”   Yet she then

repeated her claims that Vinson had a gun and that she (Einfeldt) was

acting in self-defense.     Still, she concluded, “Self-defense doesn’t

constitute beating the holy crap out of someone even if they have a gun.”

      The district court began the sentencing hearing by considering

Einfeldt’s motion for new trial. That motion had, among other things,

reraised the question of competency. Concerning Einfeldt’s competency,

the court explained it had now considered the PSI and attached medical

records in addition to the trial and pretrial proceedings.       It stated as

follows,

             Here’s what I note regarding that issue: The trial
      information in this case was filed on August 5, 2015. There
      was no application for an 812 exam from that date until trial
      started on April 20[, 2016]. So I infer from that, and I believe
      it’s a reasonable inference, that up until the time Mr. Macro
      brought this issue to my attention, there was not a concern
      about Ms. Einfeldt’s legal competency.

            During the trial it did appear to me as if Ms. Einfeldt
      was participating in her defense.       She also responded
      appropriately during the colloquy regarding her decision to
      not testify.

             Without question, Ms. Einfeldt did engage in
      disruptive behavior during the trial, but that may have been
      simple disrespect. Or I think in Ms. Einfeldt’s case it was
      probably spontaneous emotional outbursts. But that is
      different from being legally incompetent.

            I did not observe behavior that suggested Ms. Einfeldt
      did not understand the charge or the proceedings or that she
      was unable to assist with her own defense.

      After denying the motion for new trial, the court proceeded to

sentencing.   Einfeldt testified she had been diagnosed with different

mental diagnoses but did not agree with those diagnoses. She elaborated

that she was not seeing a doctor or therapist or taking any medications.

She addressed the judge and said, “I do respect you.” She added, “I do
                                     30

respect the whole system. I believe in the law.” She went through much

of her prior life history, including past brushes with the law.        She

acknowledged that “there’s a[n] appeal going to be filed in this case,” and

said she understood “what reversible error is.” She stated, “I do honestly

believe the Judge was fair,” but “[t]he rules are slanted, and they’re in

favor of [the] State.” She testified that if she were put on probation, she

would have a job and a place to live and she would comply with the

terms of probation.     She made no references to any delusions or

impulses or paranoia.

      The district court sentenced Einfeldt to an indeterminate term of

five years’ incarceration. See Iowa Code § 902.9(1)(e).

     II. The District Court Properly Denied Einfeldt’s Motion to
Terminate the Trial for Purposes of a Competency Hearing.

      The fighting issue is whether the district court erred in denying

Einfeldt’s request to suspend proceedings for a competency hearing

during the second day of trial.     Had the court done so, this would of

course have necessitated a new trial at a later date.

      A. The Controlling Law. Iowa Code section 812.3 governs this

issue and provides,

      If at any stage of a criminal proceeding the defendant or the
      defendant’s attorney . . . alleges specific facts showing that
      the defendant is suffering from a mental disorder which
      prevents the defendant from appreciating the charge,
      understanding the proceedings, or assisting effectively in the
      defense, the court shall suspend further proceedings and
      determine if probable cause exists to sustain the allegations.

Iowa Code § 812.3(1) (2016).     Additionally, if the court finds probable

cause to sustain the allegations,

      [T]he court shall suspend further criminal proceedings and
      order the defendant to undergo a psychiatric evaluation to
      determine whether the defendant is suffering a mental
      disorder which prevents the defendant from appreciating the
                                      31
      charge, understanding         the     proceedings,   or   assisting
      effectively in the defense.

Id. § 812.3(2).    The psychiatric evaluation is then followed by a

competency hearing. Id. §§ 812.4–.5.

      Although Iowa has long had provisions relating to mental

incompetency of the accused, this two-step process of a probable cause

hearing followed by an evaluation and a competency hearing if necessary

dates only to 2004. See 2004 Iowa Acts ch. 1084, § 5 (codified at Iowa

Code § 812.3 (2005)).      Here, the district court followed the correct
procedure. It suspended the proceedings briefly and temporarily so that

Einfeldt’s counsel and the court could examine her, and so the parties

could provide argument and additional information to the court. Hence,

the court conducted the clearly required probable cause hearing. But it

denied Einfeldt’s request to terminate the trial so she could undergo a

psychiatric evaluation and a full-blown competency hearing.

      Under our precedent, a competency hearing should be granted

when the “record contains information from which a reasonable person

would believe a substantial question of the defendant’s competency

exists.” Jones v. State, 479 N.W.2d 265, 270 (Iowa 1991) (quoting State

v. Kempf, 282 N.W.2d 704, 706 (Iowa 1979)). We consider three factors:

“(1) the defendant’s irrational behavior, (2) any demeanor at the trial that

suggests a competency problem, and (3) any prior medical opinion on the

defendant’s competency to stand trial.” State v. Edwards, 507 N.W.2d

393, 395 (Iowa 1993).

      These   factors   illuminate    for    us   the   ultimate   question   of

competency facing the judge: whether the defendant is prevented from

“appreciating the charge, understanding the proceedings, or assisting

effectively in the defense.” Iowa Code § 812.3(1) (2016); see also State v.
                                    32

Johnson, 784 N.W.2d 192, 194 (Iowa 2010). Mental illness alone is not

sufficient to establish incompetency.     See State v. Rieflin, 558 N.W.2d

149, 152–53 (Iowa 1996), overruled on other grounds by State v. Lyman,

776 N.W.2d 865, 873 (Iowa 2010). Furthermore, we presume that the

defendant is competent to stand trial.       Lyman, 776 N.W.2d at 874

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d

699, 708 & n.3 (Iowa 2016).

      B. Applying the Law Here.          Applying each of these tests and

standards, I agree with the district court that probable cause did not

exist to stop the trial and order Einfeldt to undergo a psychiatric

evaluation and a competency hearing. There is no question that Einfeldt

understood she had been charged with assaulting and injuring Vinson

on July 14, 2015. She recognized she had been offered before trial the

opportunity to plead to two aggravated misdemeanors but without the

chance to argue for a deferred judgment. She declined this offer. She

also understood justification was her primary defense. She was able to

explain this defense to the district court during the probable cause

hearing.

      Einfeldt’s comprehension of the proceedings is vividly illustrated by

her own statements, both in and out of the presence of the jury.

Typically, Einfeldt’s interjections in front of the jury were brief comments

disputing testimony or statements that she recognized were harmful to

that defense. For example: “Lie,” “No they didn’t,” “Liar,” “Ha ha ha,” “I

never said that,” “Ha.” Sadly, these kinds of courtroom disruptions are

not all that uncommon and aren’t limited to litigants suffering from

mental illness. See United States v. Clements, 522 F.3d 790, 796 (7th

Cir. 2008) (“Clements’s behavior at trial does not suggest incompetence;
                                          33

it was merely Clements’s attempts to interject his own view of the issues

and generally frustrate the progress of the trial.”). 6

       Outside the jury’s presence, Einfeldt took the opportunity to

debate legal points with the court. She questioned why her evidence had

to undergo an offer-of-proof screening process, when the State’s did not.

She threatened to circumvent the court’s ruling excluding certain

evidence by taking the stand. When the State decided to cross-examine

a witness during the defendants’ offer of proof, she asked, “Why are we

redeposing her?”       At one point she told the court, “We’re supposed to

have more rights than [the prosecutor].” These comments demonstrate

Einfeldt’s savvy, not an inability to understand the proceedings. See id.

(“While Clements was at times disruptive, his objections, questions, and

suggestions were generally pertinent to the issues being addressed,

indicating that Clements was fully attentive to the proceedings and

readily offered suggestions and opinions about the evidence and his

defense.”).

       The record also indicates that Einfeldt was able to assist effectively

in her defense. Despite the distrust she claimed to have for her attorney

at the beginning of the second day of trial, she communicated effectively

with him about her case through the rest of the proceedings. She did not

hesitate to direct him toward facts she believed were helpful to her. She

generally consulted off the record with him when he asked. Despite her

ebullience she ultimately accepted his recommendation not to testify.

She applauded when he completed his closing argument on her behalf.


       6Other  interjections just showed that she was paying careful attention. When
counsel for one of the codefendants started cross-examining a witness who had the
same last name as this counsel, Einfeldt piped up, “No relation.” Also, as noted earlier,
Einfeldt corrected her defense counsel when he inadvertently referred to the wrong
daughter in closing argument.
                                   34

      Einfeldt apparently suffers from certain mental health conditions,

and she testified that she had some disturbing impulses. But apart from

making audible editorial comments, and a few theatrical gestures, she

generally controlled those impulses in front of the jury until she walked

out just a few minutes before the prosecutor finished her rebuttal closing

argument. It is true she made some bizarre statements, but never in the

presence of the jury. And Einfeldt’s counsel made clear that he never felt

threatened by her.

      Here we have the benefit of the trial court’s observations of

Einfeldt’s demeanor. See Johnson, 784 N.W.2d at 195. It concluded that

Einfeldt was actively engaged with her counsel in the defense of her case.

Nothing in the record contradicts that.

      This does not mean that Einfeldt’s outbursts helped her cause.

Defendants are often their own worst enemy. Yet disruptive statements

by a defendant need to be distinguished from those matters that

ultimately tip the scales under Iowa Code section 812.3. Those matters

are whether the defendant understands the charges and the proceedings

and can effectively assist her counsel. A defendant who engages in rude

or even offensive behavior in front of the jury may still be able to

effectively assist counsel. Many cases have so found. See United States

v. Perkins, 787 F.3d 1329, 1339–40 (11th Cir. 2015) (holding that the

district court did not abuse its discretion in not ordering a competency

hearing before trial because the defendant chose to “act like a . . .

lunatic” during the trial but appeared lucid in other interactions

(alteration omitted)); Paul v. United States, 534 F.3d 832, 845 (8th Cir.

2008) (finding the defendant had not shown the district court would have

found him incompetent, despite the fact that his obstreperous behavior

during trial was “unwise and detrimental to him and his cause”);
                                    35

Clements, 522 F.3d at 796 (finding the district court did not err in not

sua sponte ordering a competency hearing, despite the defendant’s

disruptive   interjections   throughout   trial,   because   “his   objections,

questions, and suggestions were generally pertinent to the issues being

addressed, indicating that [the defendant] was fully attentive to the

proceedings and readily offered suggestions and opinions about the

evidence and his defense”); United States v. Rivers, No. 95–1364, 1996

WL 167748, at *1 (2d Cir. Apr. 10, 1996) (holding that the district court

did not err in not ordering a hearing into the defendant’s competency to

stand trial, even though the defendant’s behavior at trial was “at times

unruly,” because his interjected “remarks were generally directly

responsive to what was being discussed”); Foster v. Wainwright, 686 F.2d

1382, 1383–86 (11th Cir. 1982) (per curiam) (“reject[ing] as meritless” the

defendant’s claim that the trial court erred in not ordering a hearing on

his competency to stand trial, even though the defendant frequently

interrupted the proceedings, to the point that the judge justifiably

removed him from the courtroom); State v. Woods, 348 P.3d 583, 592–93

(Kan. 2015) (holding that district court did not abuse its discretion in not

ordering a reevaluation of competency because the defendant exhibited

disruptive behavior that was unrelated to what was occurring in trial but

was “isolated and could easily be attributed to an attempt to derail the

judicial process”); State v. McCoy, 218 So. 3d 535, 617–20 (La. 2016)

(finding a second sanity commission was not justified, even when the

defendant was disruptive during trial, in part because he “exercised self-

control when he wanted to”); Commonwealth v. Holland, 73 N.E.3d 276,

286 (Mass. 2017) (affirming a determination of competency when at the

competency hearing the doctor noted that the defendant’s “outbursts

[and] bouts of uncooperativeness with attorneys . . . make him a
                                    36

problematic defendant, but not an incompetent one” (alteration omitted));

Hutto v. State, 227 So. 3d 963, 976 (Miss. 2017) (finding that after a

pretrial hearing had determined competency, a subsequent midtrial

outburst did not change the determination because the defendant was

not “incoherent and deluded during trial; rather, . . . [the defendant]

actively participated in the proceedings and engaged in discussions with

his counsel”); State v. Ramirez, No. S–1–SC–34576, 2016 WL 7029226, at

*4–5 (N.M. Dec. 1, 2016) (finding there was no basis for a reevaluation of

competency, even though defendant “was labile, crying, interrupting, and

making statements contrary to his interests during trial”).

      The   additional   information    made   available   at   the   time   of

sentencing did not alter the district court’s view of the matter, and does

not alter mine.    According to a medical record attached to the PSI,

Einfeldt received a “provisional” diagnosis of paranoid schizophrenia and

“hallucinations (questionable)” in 2013.       Yet she did not return for

another consultation until she had been criminally charged, more than

two years later. Then she didn’t return again.

      Einfeldt’s   conduct     during    sentencing   does      not   suggest

incompetence. Rather, Einfeldt testified and allocuted at some length on

her own behalf. Einfeldt’s statements—and the letter she wrote to the

judge beforehand—amounted to a detailed recital of extenuating

circumstances and a plea for clemency. She artfully complimented the

trial judge on his fairness.     In her only reference to mental health

conditions, she minimized them.          She made no odd statements

whatsoever.

      I accept as unresolved the actual status of Einfeldt’s mental

illness.    The PSI appropriately recommended a formal diagnostic

assessment of the “validity and severity” of Einfeldt’s mental health
                                    37

issues if she were sentenced to prison. However, for present purposes,

the question is whether the record establishes probable cause to believe

that Einfeldt was prevented from appreciating the charge, understanding

the proceedings, or assisting in her defense. See Iowa Code § 812.3(1),

(2). The record did not show any of these things.

      Cases finding incompetency or probable cause for incompetency

correctly focus on the effects of mental illness, rather than the mere

presence of mental illness. See, e.g., Maxwell v. Roe, 606 F.3d 561, 569–

70, 576 (9th Cir. 2010) (noting the defendant requested his attorney turn

over evidence that would be helpful to the prosecution, refused to attend

or even listen to the trial proceedings, and tried to kill himself during

trial); United States v. Ghane, 490 F.3d 1036, 1040–41 (8th Cir. 2007)

(affirming a finding of incompetency to stand trial on a “clear error”

standard of review given the defendant’s belief that the charges against

him were part of a “wide ranging government conspiracy related to events

that occurred in the early 1990s” and the defendant’s insistence on

calling irrelevant witnesses); United States v. Friedman, 366 F.3d 975,

981 (9th Cir. 2004) (affirming a finding of incompetency to stand trial

because the defendant’s “paranoid schizophrenia [was] preventing him

from working with his attorney”); Lafferty v. Cook, 949 F.2d 1546, 1549,

1555 (10th Cir. 1991) (noting the defendant refused to let his attorney

present evidence and “suffered from paranoid delusions which drove his

decision in these proceedings”); United States v. Hemsi, 901 F.2d 293,

294, 296 (2d Cir. 1990) (affirming a finding of incompetency to stand trial

where expert testimony indicated that defendant could maintain his

composure “only on rare, non-threatening occasions” and his own

attorney, even while opposing a finding of incompetence, “disclaimed any

view that [the defendant] could make any rational decisions regarding the
                                   38

defense”); Nagi v. People, 389 P.3d 875, 877, 879 (Colo. 2017) (affirming

the trial judge had a “good faith basis” to hold a competency hearing in

light of defendant’s questionable decision to represent himself in a case

involving potential life sentence plus “wild accusations” and other

“aberrant behavior”).

      I am convinced the district court gave the competency question the

serious attention it deserved and made an appropriate ruling that

applied the correct law to the facts.    Given my agreement with the

majority’s resolution of the evidentiary issues, I would affirm Einfeldt’s

conviction and sentence.

      Waterman and Zager, JJ., join this concurrence in part and

dissent in part.
