                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1524
                             Filed January 13, 2016

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WALTER RAY NOREM,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Dickinson County, Patrick M. Carr,

Judge.



      A defendant appeals his conviction for first-degree kidnapping and

second-degree sexual abuse. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Joseph A. Fraioli, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Genevieve

Reinkoester, Assistant Attorneys General, for appellee.



      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2



TABOR, Judge.

       Rejecting his intoxication defense, a jury convicted Walter Norem of

kidnapping and sexual abusing his wife, Dawn. On appeal, Norem raises four

issues.   First, he challenges the sufficiency of the evidence for first-degree

kidnapping. Second, he contends his attorney did not properly challenge the

elements of second-degree sexual abuse in moving for judgment of acquittal.

Third, he alleges his attorney should have objected to the jury instruction

explaining the extent of confinement and removal necessary to prove kidnapping.

Fourth and finally, the defense argues a psychiatrist called by the State in

rebuttal impermissibly opined on Norem’s ability to form specific intent.

       On the sufficiency challenge, we find ample evidence Norem removed his

wife from a Milford parking lot, transported her to their rural residence, confined

her there, and—as a consequence of that removal and confinement—she was

intentionally subjected to sexual abuse and torture. On the ineffective-assistance

claims, we find Norem failed to show, but for counsel’s omissions, there existed a

reasonable probability of a different outcome. On the expert witness issue, we

find no prejudice because the challenged opinion on intent was cumulative to

another expert’s view not contested on appeal. Accordingly, we affirm.

I.     Background Facts and Proceedings

       Dawn and Walter Norem1 were married and lived in rural Harris, Iowa.

Their two adult daughters both had residences about fourteen miles away in

Milford. Dawn worked in Milford as a dietary manager at a nursing center. A


1
  Because the defendant and victim share a surname, we will refer to Walter as Norem
throughout this opinion and will refer to Dawn by her first name.
                                       3



back injury prevented Norem from working. He also suffered from anxiety. In

early November 2012, Norem had been feeling increasingly anxious and was not

sleeping well.

       To deal with his anxiety, on the morning of November 14, 2012, Norem

took his prescribed dose of lorazepam. Norem met his wife at her workplace

around 3:30 p.m., and the couple went shopping.            Norem took another

lorazepam during the afternoon. They returned to pick up Dawn’s car and both

drove home, arriving around 7:00 p.m. Norem seemed “agitated and growly.”

Norem recalled taking another lorazepam and a double dose of the muscle

relaxant, Flexeril. He testified he “washed” down the pills with a glass of white

wine. He believed the combination of alcohol and pills would help him sleep.

Norem testified he poured another glass of wine “threw it down and then

everything went black.” He told the jury he did not “remember anything the rest

of the night.”

       What he purportedly does not remember, Dawn will never forget. Dawn

testified Norem grew more agitated and angry as the evening wore on. Norem

began calling Dawn vulgar names. He urged Dawn to get his shotgun and shoot

him because she had already “killed Superman”—referring to himself. Dawn

refused. Norem retrieved the shotgun and ammunition and told Dawn to load the

gun. He also dropped a shotgun shell into the pocket of Dawn’s work smock.

She refused to load the gun and decided to leave their home, hoping Norem

would “cool off.” Dawn drove to Wal-Mart in Spirit Lake. While walking the

aisles, she received numerous telephone calls from Norem. She did not always
                                        4



answer. When she did answer, he called her names such as “stupid bitch and a

whore and things like that.” Between 9:00 p.m. and midnight, Dawn received a

total of seventy calls from Norem.

      Dawn also received a call from their daughter Desire, who said her father

was at her trailer looking for Dawn. Dawn told Desire she did not “need to be

involved with this.” Desire testified her father was distraught but did not appear

to be intoxicated, though he said he had been drinking.

      As Dawn drove aimlessly, Norem continued to call, telling her to come

home. At one point she was “almost home,” she had “turned up the gravel” when

Norem said over the phone, “I’m going to get the gun.” So she turned around

and drove back to Milford. Dawn arrived at the apartment complex where her

other daughter, Destiny, lived. Dawn sat in the car in the complex’s parking lot

for a moment to gather herself because she did not want to risk her

grandchildren seeing her so upset.

      Dawn answered a phone call from Norem, thinking he was at home. They

were arguing back and forth when “he came flying in with the Suburban. I could

tell he was mad, because he didn’t even park the truck right.         Threw it in

‘park’ . . . the door flew open,” and he charged over to her car. Norem blocked

her in; Dawn tried to start her car to back up, but it stalled. Her window was

rolled down a few inches; Norem grabbed it with his hands, shattering the glass.

      Norem then reached in the car and pulled Dawn out by her hair. He threw

her onto the pavement and punched her. She tried to reach for a cell phone, but

Norem smashed it. Norem continued to pummel Dawn, who realized her head
                                        5



was bleeding. She begged him: “Babe stop, I’m bleeding.” But Norem did not

stop, saying, “I don’t care if you’re fucking bleeding.” Norem pulled Dawn by her

hair back into her car but it would not start.   He then “shoved” her into the

Suburban and drove toward their home.

       Somewhere along Dickinson County Road A34 (also known as 220th

Street), Norem parked the Suburban and told down Dawn “if she had enough,

she could get out.” He rolled down the passenger side window, so she could

open the door because the door did not open from the inside. Dawn did not get

out. She testified, “I looked around at my surroundings, and I had nowhere to run

or nowhere to go to. There were no buildings, no houses. It was just fields.”

She also was concerned Norem would run over her with the Suburban. After she

declined his offer to get out, Norem drove toward their rural home.         Dawn

testified his driving was “all over the road, because he was more worried about

yelling at me and punching me on the way home than even watching the road.”

Dawn recalled “when we turned onto the gravel, he just floors it, buries it to the

wood . . . it seemed like 100 miles an hour by the time we got to the driveway.”

At the driveway, he slammed on the brakes, hit the mailbox, and “took out the

mirror on the side of the truck.”

       Norem opened the passenger side door and pulled Dawn out by her hair.

He punched her a few more times while continuing to yell and call her names.

He then shoved her into the house. Inside the Iiving room, she saw the loaded

shotgun on floor. While Norem was in the kitchen, Dawn slid the shotgun under

the couch.    Norem said he was going upstairs to bed and asked, “Are you
                                          6



coming?” When Dawn did not reply, he came into the living room and yelled,

“Get your ass upstairs.” He then followed Dawn upstairs.

       Still bleeding from her head injuries, Dawn left blood stains on the banister

and the walls of the stairway. When they got to the bedroom, Norem undressed.

Norem continuously called Dawn vulgar names while hitting her with a closed fist.

Norem then began to masturbate. He grabbed her by the hair and forced her to

perform oral sex. Dawn recalled Norem “choking” her with his penis, telling her

to “take it all and asking, ‘Who’s the whore?’” When she could not answer, she’d

“get another hit.” Dawn testified she was having difficulty breathing because of

the amount of blood in her nose. Norem then pushed her away and ejaculated

on her knee saying “You see this? You’re not worth this because you’re a stupid

whore.” Norem then went to the bathroom to clean off the blood.

       When he returned to the bedroom, he again hit Dawn. He then took off

her clothes, threw her on her stomach, and tried to force her to have anal sex.

When he could not get another erection, he flipped her onto her back and shoved

his hands into her vagina. He then straddled her chest, using his legs to pin

down her arms, and again forced her to perform oral sex while he continued to

strike her head. Norem again went to clean himself up and came back to bed,

hitting her several more times before finally falling asleep.

       Dawn’s alarm was set for 4:00 a.m., the normal time she prepared to go to

work. When the alarm went off, Norem asked what the noise was, and Dawn

told him she had to go to work. Norem told her she was not going anywhere

looking how she did. Dawn said she would call someone to cover for her, and he
                                        7



laid back down. Before falling back to sleep, Norem told Dawn: “I hope you die a

slow, miserable death.” Dawn waited until she was sure Norem was asleep

before grabbing some clothes and leaving. Her Chihuahua, Ruby, followed her

out the door. Dawn chose to drive the family’s Tahoe, because the headlights

did not come on automatically.     She waited until she was at the end of the

driveway before turning on the lights as to not risk waking Norem up.

      En route to Milford, Dawn called a coworker to cover her shift. But the

coworker was unable to understand Dawn because she was so upset and

agreed to meet Dawn at the nursing home. When Dawn arrived, she was frantic.

She did not want to stay because she feared Norem might come after her. Her

coworkers were able to keep her there and called the police.

      Milford Police Officer Andy Yungbluth was first on the scene. He testified

Dawn “had a lot of blood coming from her face. She had been very badly beaten

up.” The Chihuahua also had Dawn’s blood on it. Dawn was sitting in a fetal

position and became very tense around Officer Yungbluth. A female officer from

Arnolds Park, Stacy Schomaker, also responded to the 911 call.           Officer

Schomaker was able to interact with Dawn. When Dawn was placed in the

ambulance, she asked to have the overhead light turned off because she did not

want Norem to follow.

      At the hospital, nurse Lynelle Swenson treated Dawn.              Swenson

described Dawn as “terrified; very, very scared; very apprehensive.” Dawn had

significant bruising, contusions, and swelling to her face and body. Emergency

Room Doctor Nalini Payer examined Dawn, noting the patient had pain in her
                                       8



back, left hand, and ribs. Dawn also suffered a non-displaced broken nose and a

hematoma on her forehead.

       As Dawn was being treated, law enforcement officers continued their

investigation. Osceola County Deputy Sherriff Matt Julius visited Norem’s home

at about 5:45 a.m., but no one answered the door. Deputy Julius returned with

an arrest warrant around 10:30 a.m. and found Norem’s daughter, Destiny, and

her fiancé at the home. They had been there for about thirty minutes. Norem

turned himself into law enforcement. Norem said he had no memory from the

night before, but Destiny’s fiancée told him that he had beaten up Dawn. Norem

said he was “crushed” when he found out what happened.

       On November 26, 2012, the State charged Norem with kidnapping in the

first degree, in violation of Iowa Code section 710.2 (2013), and sexual abuse in

the first degree, in violation of Iowa Code section 709.2, among other offenses.

The State amended the charges several times. Ultimately, Norem faced counts

of kidnapping in the first degree and sexual abuse in the second degree. Norem

entered a plea of not guilty, and a jury trial commenced on October 29, 2013. On

November 1, 2013, the jury found Norem guilty on both counts.

       At sentencing, the district court merged the sexual assault into the

kidnapping conviction and imposed a sentence of life in prison without the

possibility of parole.   In December 2014, the Iowa Supreme Court granted

Norem’s motion for delayed appeal.
                                          9



II.      Scope and Standards of Review

         “On the issue of sufficiency of the evidence, we review claims for

correction of errors at law.”    State v. Robinson, 859 N.W.2d 464, 467 (Iowa

2015).    A jury finding of guilt will only be disturbed if it is not supported by

substantial evidence. Id. We look at the record as a whole but view it in the light

most favorable to the State. Id. Substantial evidence is evidence that would

convince a rational trier of fact the defendant is guilty beyond a reasonable

doubt. Id. We review ineffective-assistance-of-counsel claims de novo. State v.

McNeal, 867 N.W.2d 91, 99 (Iowa 2015).              We review evidentiary rulings,

including decisions regarding the admissibility of expert testimony, for an abuse

of discretion. State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015).

III.     Analysis

         Norem largely focuses on his conviction for first-degree kidnapping—

alleging insufficient evidence, a faulty jury instruction, and improper expert

testimony. His only claim regarding the second-degree sexual abuse conviction

involves his counsel’s failure to challenge the State’s proof that during the

commission of the sexual abuse Norem used or threatened to use force creating

a substantial risk of death or serious injury. See Iowa Code § 709.3(1)(a). But

because any level of sexual abuse would merge into the kidnapping count, the

defense concedes that whether counsel’s omission resulted in prejudice

“depends on whether the Court agrees that evidence was sufficient to support a

finding of kidnapping in the first degree.” In light of that contingency, we turn first
                                          10



to the question whether substantial evidence supported Norem’s first-degree

kidnapping conviction.

       A. Substantial Evidence of First-Degree Kidnapping

       The jury determined the State proved beyond a reasonable doubt the

following elements of first-degree kidnapping:

              1. On or about the 14th or 15th day of November, 2012, the
       defendant confined Dawn Norem at the parties’ residence or
       removed Dawn Norem from Milford, lowa, to the parties’ residence.
              2. The defendant did so with the specific intent to:
                     a. inflict serious injury upon Dawn Norem, or
                     b. subject Dawn Norem to sexual abuse.
              3. The defendant knew he did not have the authority or
       consent of Dawn Norem to do so.
              4. As a result of the confinement or removal, Dawn Norem
       was intentionally subjected to torture or sexual abuse.

       The jury also answered a special interrogatory, finding the kidnapping

began in Milford.

       The marshalling instruction reflected Iowa Code sections 710.1 and 710.2.

       Iowa Code section 710.1 defines kidnapping, in relevant part, as follows:

       A person commits kidnapping when the person either confines a
       person or removes a person from one place to another, knowing
       that the person who confines or removes the other person has
       neither the authority nor the consent of the other to do so; provided,
       that to constitute kidnapping the act must be accompanied by one
       or more of the following:
              ....
              3. The intent to inflict serious injury upon such person, or to
       subject the person to a sexual abuse.

       Iowa Code section 710.2 describes kidnapping in the first degree as

follows: “when the person kidnapped, as a consequence of the kidnapping,

suffers serious injury, or is intentionally subjected to torture or sexual abuse.”
                                         11



       Norem argues the evidence presented by the State was insufficient to

support the verdict because Dawn was not subjected to sexual abuse as a

“consequence” of the confinement and removal. See Iowa Code § 710.2. He

contends his “intervening act” of stopping the Suburban on the shoulder of

County Road A34 and giving Dawn the “opportunity to exit” ended the

kidnapping.2     Norem asserts that after the stop “his demeanor changed

markedly” and “he did not physically restrain Dawn within the vehicle at that

point.” The defense claims the kidnapping ended “when Dawn chose to remain

in Norem’s truck and accompany him back to their residence.” 3 Norem argues

after that point any confinement or removal the jury could find was “incidental to

the sex act itself.”

       The State disputes Norem’s characterization of the record, pointing to

Dawn’s testimony that her husband remained combative after she chose not to

get out of the Suburban. The State calls Norem’s offer to let Dawn out an “empty

gesture” that did nothing to interrupt her ongoing confinement and removal.

       Viewing the evidence in the light most favorable to the State, we find

substantial evidence in the record to show that as a consequence of Norem’s

acts of confinement or removal, Dawn was intentionally subjected to sexual




2
  Norem cites recent unit-of-prosecution cases for support regarding intervening acts.
See, e.g., State v. Ross, 845 N.W.2d 692, 705 (Iowa 2014); State v. Velez, 829 N.W.2d
572, 584 (Iowa 2013).
3
  Norem concedes the confinement and removal up until the point when he pulled over
met the statutory definition of kidnapping in the third degree. See Iowa Code § 710.4
(“All other kidnappings are kidnapping in the third degree.”).
                                             12



abuse and torture.4 A reasonable jury could find the fourteen-mile trip from the

parking lot in Milford to the Norems’ home in rural Harris was one continuous

confinement and removal.          Dawn had been beaten and dragged into the

Suburban; she was bleeding, had no phone, and was significantly smaller than

her angry husband. Dawn’s lesser-of-two-evils choice did not constitute an end

to her involuntary confinement and removal. Even after the brief stop, Norem

recklessly drove the Suburban down the gravel road to their residence. When

they arrived, Norem pulled her out of the vehicle, punched her some more, and

shoved her into the house. Inside the house was the shotgun he had asked

Dawn to use earlier in the evening.               After she hid the shotgun, Norem

commanded Dawn to go upstairs where he continued to beat her and forced her

to perform multiple sex acts. Based on the totality of the evidence, the jurors

were free to reject Norem’s argument that his offer to let Dawn go meant the

confinement and removal was only incidental to the sexual abuse.

       We do not believe the evidence of first-degree kidnapping was insufficient

as a matter of law.       See Robinson, 859 N.W.2d at 481–82 (asking whether

evidence presented “a sufficient basis to allow the jury to regard the case as

presenting more than sexual abuse”). The State’s evidence allowed the jury to


4
  Norem does not present a separate argument concerning the torture alternative. Our
supreme court has defined “torture” in Iowa Code section 710.2 as including either
physical injury or mental anguish. See State v. White, 668 N.W.2d 850, 857 (Iowa 2003)
(upholding a first-degree kidnapping conviction where White repeatedly called the victim
demeaning names and terrorized her by cocking a shotgun in front of her). The district
court instructed the jury that “torture” means “the intentional infliction of severe physical
or mental pain.” We believe a reasonable factfinder could determine Norem’s assertion
of control over Dawn throughout the night, his persistent use of derogatory names, and
his relentless physical assaults constituted torture.
                                        13



regard Norem’s conduct as far exceeding sexual abuse.           Given the vicious

abduction of his wife and his repeated acts of violence, Norem had no basis to

think Dawn voluntarily accompanied him to their home. See State v. Bayles, 551

N.W.2d 600, 609 (Iowa 1996). The record contained substantial proof that as a

result of Norem’s confinement and removal, Dawn was intentionally subjected to

sexual abuse and torture. We will not disturb the jury’s verdict on the first-degree

kidnapping count.

      B. Ineffective Assistance of Counsel

      Norem alleges his trial attorney was ineffective in two ways.        First, he

contends counsel failed to adequately move for judgment of acquittal on the

second-degree sexual abuse count. Second, he argues counsel failed to object

to the jury instruction on confinement and removal.

      To succeed on these allegations, Norem must show by a preponderance

of the evidence that counsel failed to perform an essential duty and prejudice

resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We “indulge

a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. Prejudice is the reasonable

probability of a different outcome. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa

2001). On direct appeal, we may either determine the record is adequate and

decide the claims or find the record is inadequate and preserve them for

postconviction relief proceedings. See State v. Neitzel, 801 N.W.2d 612, 624–25

(Iowa Ct. App. 2011). Here, the record is adequate to decide both claims.
                                          14



          1. Second-Degree Sex Abuse

       Norem claims his attorney failed to effectively move for judgment of

acquittal on the count of sexual abuse in the second degree. At trial, defense

counsel mistakenly argued the State did not prove Dawn suffered serious injury,

an element necessary to enhance sexual abuse to first degree. Counsel did not

raise an argument concerning sexual abuse in the second degree. Sexual abuse

is elevated from third to second degree if the State can show that “during the

commission of sexual abuse” the defendant used or threatened to use “force

creating a substantial risk of death or serious injury.” Iowa Code § 709.3(1)(a).

       We agree Norem’s trial counsel breached an essential duty. But because

we found substantial evidence to support his conviction for first-degree

kidnapping, Norem concedes he suffered no prejudice from counsel’s omission.

His brief acknowledges: “Norem’s conviction for sexual abuse in the second

degree ‘merged’ with his conviction for kidnapping in the first degree, thereby

rendering moot any prejudice resulting from the ‘level’ of sexual abuse for which

Norem was convicted because any level of sexual abuse satisfies the ‘sexual

abuse’ element.” Accordingly, Norem gains no relief on this issue.

          2. Kidnapping Jury Instruction

       Norem also challenges his counsel’s effectiveness for failing to object to

the jury instruction describing the extent of confinement and removal necessary

to prove kidnapping. The challenged instruction5 stated:




5
 The instruction tracked Iowa Criminal Jury Instruction 1000.5 (2012), promulgated by a
committee of the Iowa State Bar Association.
                                          15



              [C]onfinement or removal requires more than what is
      included in the commission of the crime of sexual abuse.
              A person is “confined” when her freedom to move about is
      substantially restricted by force, threat or deception. The person
      may be confined either in the place where the restriction began or
      in a place to which she has been removed.
              No minimum time of confinement or distance of removal is
      required. It must be more than slight. The confinement or removal
      must have significance apart from the sexual abuse.
              In determining whether confinement or removal exists, you
      may consider whether:
              1. The risk of harm to Dawn Norem was increased.
              2. The risk of detection was reduced.

      Norem contends counsel should have objected because the jury

instruction was missing critical “intensifiers” from the case law. Under State v.

Rich, 305 N.W.2d 739, 745 (Iowa 1981), the risk of harm to the victim must be

substantially increased and the risk of detection must be significantly reduced as

a result of the confinement or removal.

      After Norem’s case was tried in 2013, our supreme court decided State v.

Robinson, 859 N.W.2d 464 (Iowa 2015), in which the defendant challenged the

same uniform jury instruction. The Robinson court dismissed the kidnapping

charges for insufficient evidence, viewing the jury instructions as law of the case.

One justice wrote separately to opine that the confinement instruction

“constituted reversible error.” Id. at 487 (Wiggins, J., specially concurring). The

special concurrence expressed: “Even a cursory review of our case law would

have revealed we repeatedly emphasized the risk of harm must be substantial

and the lessened detection and ease of escape must be significant.” Id. at 492.

The special concurrence believed that reasonably competent counsel would

have considered the claim regarding the confinement instruction to be “worth
                                           16



raising”—despite the fact that our appellate courts have said we are reluctant to

disprove of uniform instructions.6 Id.

       Assuming Norem’s trial counsel had a duty to object to the confinement

instruction without the intensifiers, we cannot find Norem suffered prejudice as a

result of counsel’s omission. In our de novo review of the record, we find no

reasonable probability the jurors would have acquitted Norem of kidnapping if

they had been instructed that in determining the existence of confinement or

removal, they could consider whether the risk of harm to Dawn was substantially

increased and whether Norem’s risk of detection was significantly reduced.

       As the State points out on appeal, the distance traveled and remoteness

of the location where the defendant takes the victim “weigh heavily” in the

determination of whether the confinement and removal is more than incidental to

committing the underlying offense. See, e.g., State v. Newman, 326 N.W.2d

796, 801–02 (Iowa 1982) (driving victim to road “unoccupied by dwellings”

increased the risk of harm to the victim and lessened the risk of detection); State

v. Knupp, 310 N.W.2d 179, 182–83 (Iowa 1981) (finding substantial increase in

risk of harm to victim and significantly lessened risk of detention when defendant

pulled the victim into his vehicle, drove away before she could escape, and took

her six or seven blocks to a point under a bridge); State v. Holderness, 301

N.W.2d 733, 740 (Iowa 1981) (holding “asportation from the city to the country



6
   The special concurrence also urged a “reformulation of the ISBA’s instruction” to
“include the concept that the defendant’s confinement of the victim substantially
increased the risk of harm, significantly lessened the risk of detection, or significantly
facilitated the risk of escape.” Robinson, 859 N.W.2d at 492. We note the ISBA
committee has made that change to Iowa Criminal Jury Instruction 1000.5 (2015).
                                        17



removed the victim to a more isolated area, thus decreasing the likelihood of any

passersby coming upon the scene”).

       Here, Norem forcibly removed Dawn from her car in a public parking lot in

Milford, just outside their daughter’s apartment building; broke the cell phone in

her possession; and transported her fourteen miles to their rural home in a

vehicle with a passenger door that did not open from the inside. While Norem

gave Dawn the opportunity to leave the vehicle, he did so in a secluded place

with no people around to provide her assistance. When she did not take him up

on the offer, the confinement and removal continued with Norem driving

recklessly down the gravel road to their home and shoving her inside.          This

removal significantly reduced the risk of detection as the sex abuse occurred in

the couple’s rural home. It also substantially increased the risk of harm to Dawn

as the home was isolated and Norem had access to a shotgun.              Given the

strength of the State’s evidence of confinement and removal, we find no

reasonable probability of a different outcome had counsel objected to the uniform

jury instruction.

       C. Expert Testimony

       Lastly, Norem argues the district court erred in allowing the State to elicit

expert testimony on his capability of forming specific intent to commit kidnapping

in the first degree. Norem asserted intoxication as a defense. At trial he testified

he had no memory of the events in question because he washed down high

dosages of anxiety medication and a muscle relaxant with several glasses of
                                           18



wine. On rebuttal, the State called two psychiatrists—Dr. James Trahan and Dr.

James Dennert—to testify regarding Norem’s ability to form specific intent.

       Norem’s trial counsel objected to the State calling these expert witnesses,

arguing their opinions would not rebut Norem’s intoxication defense. The court

asked the prosecution: “What do you expect to elicit from these psychiatrists?”

The prosecutor said the experts would testify that “just because he blacked out,

does not negate his intent. His actions did show deliberate, goal-oriented

behavior that went on throughout the evening.” The court decided to let the

expert testimony “unfold.”

       The State asked both experts whether they had formed an opinion as to

whether Norem had the “ability to form an intent” on the night of November 14

and morning of November 15, 2012.           Counsel objected on both occasions,

asserting the experts were being asked to offer an opinion on “the ultimate

question that is involved in this case.”

       On appeal, Norem challenges only the testimony of Dr. Dennert. The

defense alleges the district court abused its discretion in allowing Dennert to

opine that Norem was “capable of forming intent” at the time of the crimes.

Dennert explained his opinion was based on information that Norem engaged in

a number of behaviors that “certainly appeared to be goal-directed.           What

[Norem] said during those times also suggested that his intent was to do exactly

what he did.” In his brief, Norem contends Dennert’s opinion was “exactly the

kind of evidence that ‘essentially passes on the guilt or innocence of the

defendant’” and should have been excluded under State v. Myers, 382 N.W.2d
                                          19



91, 97 (Iowa 1986) (holding “expert opinions as to the truthfulness of a witness is

not admissible pursuant to rule [5.]702”).

       Under Iowa Rule of Evidence 5.702, an expert may testify “[i]f scientific,

technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue.” If admissible under rule 5.702,

expert testimony also must survive Iowa Rule of Evidence 5.403. State v. Buller,

517 N.W.2d 711, 713 (Iowa 1994). Even if relevant, expert evidence should be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice. See Iowa R. Evid. 5.403. Under Iowa Rule of Evidence 5.704, opinion

testimony “is not objectionable because it embraces an ultimate issue to be

decided by the trier of fact.” But under these rules, “a witness cannot opine on a

legal conclusion or whether the facts of the case meet a given legal standard.” In

re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 2005).

       Norem raises an interesting question concerning the admissibility of expert

opinions on the ability of a defendant to form specific intent.         He points to

authority showing jurisdictions across the country are split on the issue. See

State v. Stewart, 870 S.W.2d 752, 755 (Ark. 1994) (collecting cases).             The

Arkansas Supreme Court decided the prosecution’s expert testimony on criminal

intent had the potential to be misleading and confusing to the jury. Id. at 756.

Norem argues the admissibility of Dr. Dennert’s testimony presents a “substantial

issue of first impression in Iowa.”7




7
  Norem asked the supreme court to retain his appeal, but the supreme court transferred
the case to us.
                                        20



       Even if our court could embrace Norem’s novel argument that an expert

may not offer an opinion that a defendant relying on an intoxication defense was

capable of forming specific intent, Norem would not be entitled to relief on this

record. Any error in admitting Dr. Dennert’s opinion was harmless because it

was cumulative to the State’s earlier rebuttal testimony from Dr. Trahan, which is

not challenged on appeal. “To warrant reversal, an error must have prejudiced

the defendant.” State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App. 1999).

“When evidence is merely cumulative, it cannot be said to injuriously affect the

complaining party’s rights.” Id.

       Norem abandoned his objection to Dr. Trahan’s testimony on appeal. He

argues Dr. Trahan did not opine on his individual capacity to form intent. We

disagree. During Dr. Trahan’s testimony, this exchange occurred:

              [Question]: Based on your interview with Mr. Norem . . . did
       you have an opportunity to form an opinion on whether or not Mr.
       Norem’s intoxication affected his ability to form an intent to do the
       things that he did?
              [The Court after denying a defense objection]: Sir, you may
       answer the question if you recall it. The question is, do you have
       such an opinion?
              [Dr. Trahan]: Yes, I do have that opinion.

Dr. Trahan then testified that based on his interview with Norem, “it was very

clear that he was behaving in a very goal-directed manner the entire time.” The

psychiatrist explained that by “goal-directed” he meant “not an accidental type of

behavior” and provided an illustration of a drunk person accidentally falling from a

step versus a drunk person purposefully jumping from a ledge and landing in a

swimming pool below. Dr. Trahan further testified Norem “was doing things that,

if he were highly intoxicated, he would not have been able to do.” Trahan opined
                                        21



it was “highly unlikely” that Norem “did not know what he was doing.” Dr. Trahan

added: “Whether he remembered it or not is a different matter.”

       The prosecutor asked Dr. Trahan: “If he didn’t remember it because he

was intoxicated, does that mean he is not responsible?” Dr. Trahan answered:

“Absolutely not.”

       The jury heard from both psychiatrists that Norem engaged in “goal-

directed” behavior that signaled his capacity to form criminal intent. Even if we

concluded the district court abused its discretion by allowing Dr. Dennert’s

testimony, the jury still would have heard Dr. Trahan’s opinion that Norem’s

behavior was directed toward a specific goal.       Norem cannot show he was

prejudiced by the district court’s failure to sustain the objection to Dr. Dennert’s

testimony when “substantially the same evidence is in the record” without

objection on appeal. See State v. Brotherton, 384 N.W.2d 375, 379 (Iowa 1986).

       AFFIRMED.
