                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1606
                              Filed October 12, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER CLAY MCNEAL,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski (pretrial) and Richard H. Davidson (trial), Judges.



       A defendant challenges his willful injury and criminal trespass convictions

on speedy-trial grounds. REVERSED AND REMANDED FOR DISMISSAL.



       Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



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


TABOR, Judge.

      We are asked to decide if the State violated Christopher McNeal’s right to

a speedy trial under Iowa Rule of Criminal Procedure 2.33(2)(b) by selecting a

jury within ninety days of filing the trial information but not starting to present

evidence until nine days after the deadline. Because we conclude this “start-and-

stop” procedure did not satisfy the State’s obligation to bring McNeal to trial

within the bounds of the rule and the State failed to show good cause for the

delay, we reverse McNeal’s convictions and remand for dismissal of the trial

information.

      I.       Facts and Prior Proceedings

      The jury heard the following evidence at McNeal’s trial.            Matthew

Browning was working in Paul Aleksiak’s tool shop the night of February 22,

2015, when his friend, McNeal, showed up.        Browning told McNeal to leave

because Aleksiak had not given Browning permission to allow anyone else inside

the shop. Browning continued to “beat on” electric motors with a sledgehammer

as McNeal eventually walked out the door.             The next thing Browning

remembered: “I came to, and I had a big icicle of blood and drool and tears

hanging from my cheeks.”

      The next day, Browning went to the Jennie Edmundson Hospital, where

neurosurgeon John Treves discovered Browning had suffered a skull fracture

and an epidural hematoma. Dr. Treves testified he found “a small divot in the

bone where there was a compressive force applied.”

      Browning testified he later confronted McNeal about what happened and

McNeal allegedly told Browning: “You were shaking a hammer at me. I just beat
                                          3


you to it.” When interviewed by police, McNeal denied any involvement in the

assault.

       In a five-count trial information filed March 30, 2015, the State charged

McNeal with attempt to commit murder, first-degree burglary, willful injury, and

two assaults. The original minutes of testimony listed ten potential witnesses,

including Dr. Evelyn Reher, M.D.; Tracie Kerns, R.N.; and Dr. Crystal Seluk, D.O.

McNeal filed a written arraignment and plea of not guilty on April 20, 2015, in

which he demanded his right to a speedy trial under rule 2.33(2)(b). Trial was

scheduled for June 9, 2015.

       On June 2, the State presented the defense with a written plea offer. On

June 9, McNeal appeared before the district court, and defense counsel made a

record on McNeal’s rejection of the State’s plea offer.1 Defense counsel advised

the court his client was demanding a speedy trial and “the ninetieth day would be

June 28th. So I guess we would need to slide this in for June 23rd.” McNeal

confirmed he did not wish to waive his right to a speedy trial: “No sir. I would like

to get out as soon as I can.” The court continued the trial until June 23.

       The next day, June 10, the State filed a notice of an additional witness for

Dr. Treves, who was expected to testify concerning Browning’s head injury. On

June 12, the State again expanded its witness list, filing a notice of five additional

witnesses, including minutes of testimony for four additional medical personnel

from the Council Bluffs hospital.


1
  The cover of the transcript available in our record does not list an assistant county
attorney as appearing at the June 9, 2015 hearing, and the fifteen minutes of reported
proceedings do not include any statements from the State.
                                         4


       On June 16, the parties appeared for a pretrial conference. The State

made an oral motion to continue the trial beyond June 23. The assistant county

attorney started by explaining:

       It’s my understanding—I wasn’t in court here last week, but it was
       my understanding that there was some record made about the
       defendant waiving speedy trial and his desire to go to trial. And
       that I think there was some record made about the offers made to
       the defendant with regards to resolving this case, as well as
       another case that he has, which is FECR147758. And so it was our
       understanding as he came to court last week that we had a plea
       deal. And then on the 9th of June, pretty much everything fell apart
       in terms of the defendant wishing to take the plea offer that was
       made.

The assistant county attorney then represented that the State had been “working

since that time to schedule expert witnesses in this case.” She told the court the

State had been “unable to nail down times” the experts were available. The

assistant county attorney said the three doctors the State needed to prove the

element of serious injury were unavailable for the June 23 trial date.         She

specified: “One is in Europe, one is a neurosurgeon and is in surgery next week

and can’t inconvenience, obviously, the people that need brain surgery, and the

other is a radiologist that is unavailable because of work commitments, as well.”

       The State acknowledged it was late in attempting to schedule the

witnesses because of its expectation McNeal would accept its plea offer. The

State then proffered what it believed to be a solution to its speedy-trial dilemma:

“And so we’re just simply asking the court at this time if we could pick the jury on

Tuesday, the 23rd. That would effectively toll the speedy trial in this case until

such time as the State is able to then schedule those expert witnesses.”
                                           5


       The assistant county attorney told the court:

               Unfortunately, as we sit here at this moment, Your Honor, I
       don’t have a date certain for those doctors. I know that Dr. Seluk,
       the ear, nose, and throat doctor is back from Europe on June 30th,
       but I’ve been unable, because she’s in surgery this afternoon, to
       confirm exactly when that means that she is back in the office or
       would be able to come in and testify.
               . . . [W]e’re in a little bit of flux in terms of what our schedule
       is. This is certainly not a situation that the State would normally
       find itself in or want to find itself in, to be noticing witnesses this
       late. But because of the representation or understanding that the
       plea offer was going to be taken, we simply had not noticed or
       attempted to schedule these witnesses to come in for trial, you
       know, as of last week.

       The defense challenged the State’s position:

       We are presented here with a situation where the State has added
       some witnesses eleven days before the trial starts, and—actually,
       seven working days before the trial starts. All of these witnesses
       were known all along, and now the State complains that some of
       these witnesses are unavailable for trial.

Defense counsel pointed out the State had not issued subpoenas for any of its

witnesses, according to EDMS (Electronic Document Management System)

records. Counsel confirmed McNeal was asking for his trial to be held within

ninety days and then articulated the issue that is before us today: “[T]he legal

question then becomes, by picking the jury before—within the ninety and having

the trial beyond the ninety, is that still compliant with rule 2.33(2)(b), which says

that a defendant must be brought to trial?” Counsel argued it was “a pretext” and

“a ruse” to do just part of the trial and then recess until the State’s witnesses

were available. Counsel contended it was not fair to the defendant to circumvent

the speedy-trial demands. He acknowledged “medical personnel are difficult to

get to court” but insisted “that’s something the State knew about” when it chose

to file this case in March.
                                          6


      The assistant county attorney responded:

      It’s horribly inconvenient to all of these medical professionals just to
      have to show up on, say, June 9th, where we thought a plea was
      going to be entered. I think it’s a little ridiculous to say that we
      should have had all witnesses just sitting around, waiting for that
      time and issuing subpoenas to them when we didn’t know if it was
      going to go to trial or not. That certainly is not an efficient way to try
      a case.

      The district court found “good cause to adjust the trial schedule” based on

the State’s explanation that “one of the doctors [was] out of the country from

June 23rd until June 30th.” The court did not believe the State’s request was “a

ruse or merely a pretext to void Mr. McNeal’s speedy-trial rights.” The court

continued:

            I think we need to pick that jury on June 23rd. I think it
      makes sense to try to let the jury hear all of the testimony at once in
      some kind of sequential fashion. And if we know that the rest of the
      doctors or—would be available, I would think by July 7 we really
      need to get them going July 7, at the very latest. And if there’s still
      a doctor in Europe or one doing surgery or whatever it is, you’ll just
      have to subpoena them and get them here on that day or do
      without them.

      Jury selection started on June 23, but because of prejudicial comments

made by another assistant county attorney, the original jury panel was

“contaminated” and a new panel had to be convened on June 26. In making a

record on June 23, the district court stated: “And as originally planned, testimony

and the trial itself will proceed on July 7th.”       The assistant count attorney

asserted: “[T]he State has chosen in all caution to pick that jury on the 26th to

make sure we are within the defendant’s right to a speedy trial on June 26th

when that jury is chosen.” Defense counsel then alleged the other prosecutor’s

comments during voir dire were “a deliberate attempt to poison the panel” and
                                         7


added he was “pleased” the trial could be “rescheduled consistent with his

ninety-day right to speedy trial.”

       Jury selection restarted on June 26. After the jury was chosen, defense

counsel returned to the issue of bifurcating the jury selection from the

presentation of the evidence, arguing: “[I]t does in retrospect appear to be a

pretext.”   Counsel contended the State “got a continuance” based on its

professional statement that the doctors listed as witnesses were not available to

testify but now indicated it only intended to call Dr. Treves, who was added to the

State’s witness list on June 10.

       The assistant county attorney responded: “Obviously, there’s ten days

between now and trial. I can call the witnesses that are listed on my minutes. I

admit I need to give the defense some notice of who those witnesses are.” The

court then recessed the trial until July 7. Before presenting its case in chief, the

State dismissed the two counts of assault.

       After hearing from the State’s four witnesses, including Dr. Treves as the

only medical expert, the jury returned verdicts finding McNeal guilty of willful

injury causing serious injury and criminal trespass. On August 21, McNeal filed

posttrial motions, alleging, among other things, that his right to a speedy trial was

violated by “the tactic of picking a jury within the [ninety]-day speedy-trial time-

frame and later taking testimony after the speedy-trial time limit has lapsed.” At

the September 16, 2015 sentencing hearing, the court stated “there was no intent

to circumvent the speedy-trial rule but rather to follow it” and found “the trial was

commenced within ninety days.”
                                          8


       McNeal appeals, urging four grounds for reversal: (1) the district court

erred in its speedy-trial rulings, (2) the State failed to prove the identity of the

perpetrator and that McNeal was in immediate possession and control of a

dangerous weapon, (3) McNeal’s trial counsel was ineffective in not making two

evidentiary objections, and (4) the district court erred in allowing the State to

show a demonstrative sledgehammer to the jury.             Because we reverse on

speedy-trial grounds, we need not reach McNeal’s three remaining issues.

       II.    Scope and Standards of Review

       We review McNeal’s claim the State failed to meet its burden to bring him

to trial within ninety days for the correction of legal error. See State v. Orte, 541

N.W.2d 895, 898 (Iowa Ct. App. 1995).                We review a district court’s

determination the State carried its burden to show “good cause” for the delay for

an abuse of discretion. See State v. Winters, 690 N.W.2d 903, 907–08 (Iowa

2005). But the district court’s discretion to hold a trial beyond the ninety-day

deadline is “circumscribed,” and we strictly construe the speedy-trial rule in favor

of the liberty interest of the accused. See id. at 908 (citation omitted); see also

State v. Taylor, 881 N.W.2d 72, 76 (Iowa 2016).

       III.   Preservation of Error

       The State argues McNeal failed to preserve error on his speedy-trial claim

by “acquiescing” in the district court’s adjournment of the trial after jury selection.

The State elevates a statement by McNeal’s counsel on June 23 that he was

“pleased” that after a prosecutor’s prejudicial statements during jury selection,

the trial could be rescheduled consistent with McNeal’s ninety-day right to a

speedy trial. The State also points to the district court’s observation in rejecting
                                          9


McNeal’s posttrial motions that it did not recall “any objection raised on [June]

26th as to the court’s intent to select a jury and then adjourn.”

       McNeal argues in reply that he “clearly asserted his right to a speedy trial

at the June 16th hearing” and “clearly argued against a bifurcated trial.” McNeal

contends when the court ruled a bifurcated trial would not violate his speedy-trial

rights, the matter was preserved.

       We agree with McNeal on the error-preservation issue. On June 16, the

district court determined there was “good cause to adjust the scheduling of the

trial” and decided it would not violate McNeal’s speedy-trial rights to pick a jury

on June 23 and start opening statements on July 7. Because the court issued a

final ruling on the speedy-trial issue on June 16, McNeal was not required to

complain again about the unusual procedure on June 23 or June 26 to preserve

error. See United States v. Brown, 819 F.3d 800, 822–23 (6th Cir. 2016) (finding

defendant’s oral objection to violation of speedy-trial act arising from district

court’s “start-and-stop plan” was sufficient to preserve error); cf. State v. Edgerly,

571 N.W.2d 25, 29 (Iowa 1997) (finding defendant was not required to renew

objection to evidence if pretrial ruling on motion in limine provided final

determination of admissibility). Moreover, defense counsel’s statement on June

23 that he was “pleased” to restart voir dire with an untainted pool of prospective

jurors did nothing to alter the court’s previous order bifurcating the jury selection

from the remainder of the trial.
                                          10


         IV.    Analysis

         Not many rules of criminal procedure announce their express purpose.

Our speedy-trial rule does.      “It is the public policy of the state of Iowa that

criminal prosecutions be concluded at the earliest possible time consistent with a

fair trial to both parties.” Iowa R. Crim. P. 2.33(2).2 One of the time constraints

imposed by rule 2.33(2) is the ninety-day deadline for bringing a defendant to

trial:

                If a defendant indicted for a public offense has not waived
         the defendant’s right to a speedy trial the defendant must be
         brought to trial within [ninety] days after indictment is found or the
         court must order the indictment to be dismissed unless good cause
         to the contrary be shown.

Iowa R. Crim. P. 2.33(2)(b).

         Under rule 2.33(2)(b), a criminal charge cannot go forward if trial does not

commence within ninety days of the State filing the charging instrument unless

the State can establish one of three things: (1) defendant waived speedy trial,

(2) the delay can be attributed to the defendant, or (3) good cause exists for the

delay. Taylor, 881 N.W.2d at 76. The burden of proving an exception rests

entirely on the State, and the defendant is not required to show prejudice as a

result of the delay. Id.

         In this case, we pursue a two-part analysis. First, we consider what it

means to be “brought to trial” within rule 2.33(2)(b). Specifically, does holding

jury selection within ninety days of the trial information “toll” the speedy-trial time


2
  The Federal and Iowa Constitutions both guarantee the right to a speedy trial. See
U.S. Const. amend. VI; Iowa Const. art. I, § 10. Rule 2.33(2) is a more stringent
codification of those constitutional rights. See Ennenga v. State, 812 N.W.2d 696, 701
(Iowa 2012). McNeal does not raise a separate constitutional claim in this appeal.
                                           11


period, as the prosecutor asserted in the district court, allowing the State’s

presentation of the evidence to start well after the clock had run without violating

the defendant’s rights? Or does that “start-and-stop” plan for the commencement

of a trial merely pay “lip service” to the purpose of the speedy-trial rule? Second,

if McNeal was not effectively “brought to trial” by selecting a jury and then

adjourning for eleven days,3 we consider whether the State established an

exception to the speedy-trial rule. Because McNeal demanded speedy trial and

the delay was not attributable to him, the only exception in play for the State was

“good cause” for the delay.

       A. Bifurcation Circumvented the Speedy-Trial Rule

       Turning to the first question, our supreme court has held the phrase

“brought to trial” means the time when “the jury is impaneled and sworn.” State

v. Jones, 281 N.W.2d 13, 17 (Iowa 1979) (addressing situation where jury was

selected and sworn on May 9 and presentation of evidence began the next day).

But as McNeal argues on appeal, this holding “does not contemplate occasions

where the jury may be selected only to have trial recessed for an unusually long

period of time, with the specific intent of avoiding dismissal.”

       While Iowa’s appellate courts have not addressed the propriety of the

bifurcated trial procedure at issue here, federal “appellate courts have

consistently condemned attempts by the district courts to ‘evade the spirit of the

[federal Speedy Trial] Act by conducting voir dire within the statutory time limits

and then ordering a prolonged recess with [the] intent to pay mere “lip service” to

3
 The opening statements and presentation of the evidence started on July 7, which was
eleven days after the June 26 jury selection and nine days after the June 28 speedy-trial
deadline.
                                        12

the Act’s requirements.’” Brown, 819 F.3d at 810 (second alteration in original)

(quoting United States v. Scaife, 749 F.2d 338, 343 (6th Cir. 1984) (finding “start-

and-stop” procedure violated the spirit of the Speedy Trial Act)); see also United

States v. Crane, 776 F.2d 600, 601–02 (6th Cir. 1985) (vacating conviction based

on speedy-trial violation when voir dire occurred within the time period, but the

rest of trial was delayed for two weeks); United States v. Gonzalez, 671 F.2d

441, 444 (11th Cir. 1982) (cautioning decision finding no speedy-trial violation

was not to be viewed “as a license to evade the [Speedy Trial] Act’s spirit by

commencing voir dire within the prescribed time limits and then taking a

prolonged recess before the jury is sworn and testimony is begun”). Similarly,

the California Supreme Court determined a defendant was not truly “brought to

trial” where swearing in the jury was a “mere device” to avoid the impact of the

speedy-trial requirements. See Rhinehart v. Mun. Ct., 677 P.2d 1206, 1212 (Cal.

1984) (en banc) (dismissing prosecution where jury was empaneled on

November 27, the last day of the statutory period, but trial was delayed until

December 3).

      The time period for bringing McNeal to trial started on March 30, 2015,

when the State filed the trial information.    The ninety-day window closed on

Sunday, June 28, 2015. Trial was set for June 9, but the State did not subpoena

any witnesses for that date, believing McNeal would accept its plea offer. On

June 9, McNeal appeared before the district court, rejected the plea offer, and

declined to waive his speedy-trial right. The court continued trial until June 23.

On June 16, the parties appeared for a pretrial hearing, at which the State

proposed impaneling a jury on June 23 to satisfy the speedy-trial deadline but
                                         13


continuing the presentation of evidence until it was able to secure its medical

witnesses. The district court accepted the State’s proposal—bifurcating the trial

between jury selection, which ended up occurring on Friday, June 26, and the

remainder of the trial, which commenced on July 7. The evidentiary portion of

the trial began nine days after the speedy-trial deadline.

       On appeal, the State argues the “relatively brief recess” of eleven days

between jury selection and presentation of the evidence did not “convert good-

faith efforts to empanel a jury within the speedy-trial period into a nefarious

attempt to circumvent speedy-trial requirements.” The State points to Gonzalez,

671 F.2d at 443–44, and Scaife, 749 F.2d at 343, where recesses of similar

length did not result in dismissals. But the procedural postures in those cases

differ from McNeal’s situation.

       In Gonzalez, a jury was picked on Thursday, November 13, the last day of

the speedy-trial period; the trial court offered to begin opening statements and

testimony the following Monday, November 17, but indicated, thereafter, a

previously scheduled judicial conference would require a recess until Monday,

November 24. 671 F.2d at 444. Gonzalez expressed a preference for starting

on November 24 to avoid splitting up the evidence in a relatively short trial. Id.

Similarly, in Scaife, the appeals court decided the district court did not intend “to

evade the spirit” of the Speedy Trial Act by conducting voir dire within the

statutory time limits and then ordering a eleven-day recess so the judge could

attend a mandatory judicial conference. 749 F.2d at 343. Moreover, both Scaife

and his attorney signed a written waiver of the right to speedy trial. Id.
                                          14


       By contrast, in the instant case, McNeal consistently demanded a speedy

trial; no offer was made to start the presentation of evidence on the Monday after

Friday’s jury selection; it was the district court, not McNeal, who expressed a

desire for the jury to hear “all of the testimony at once in some kind of sequential

fashion”; and the reason for the recess was not judicial business but the State’s

failure to subpoena any medical witnesses for a trial date within the ninety-day

speedy-trial period.

       Under these circumstances, we conclude McNeal’s right to a speedy trial

under rule 2.33(2)(b) was not satisfied by selecting a jury within the rule’s time-

frame but postponing the actual presentation of evidence until nine days after the

speedy-trial deadline had expired. Contrary to the State’s position on appeal, we

do not find the length of the recess to be insubstantial.4 See State v. Hines, 225

N.W.2d 156, 159 (Iowa 1975) (“[W]e are unimpressed that the [then sixty]-day

limitation was exceeded by only [fifteen] days.”); see also State v. Miller, 637

N.W.2d 201, 205 (Iowa 2001) (“[A] procedural deadline cannot be escaped

merely by showing it has been violated ‘only a little bit.’” (citation omitted)). Nor

do we believe the court’s goal of avoiding piecemeal presentation of the evidence

justified its decision to bifurcate. See Ennenga, 812 N.W.2d at 705 (explaining

under rule 2.33(2)(a), the length of the delay and the lack of prejudice have no

bearing on whether a trial information was timely “found”).

       The speedy-trial rule serves several purposes, including relieving “an

accused of the anxiety associated with a suspended prosecution,” providing

4
 We are also concerned that the substantial length of time between selecting jurors and
beginning the presentation of evidence runs the risk of exposing those jurors to
extrajudicial information about the case.
                                          15


“reasonably prompt administration of justice,” and preventing the harm of

“possible impairment of the accused’s defense due to diminished memories and

loss of exculpatory evidence.”      Id. at 703 (citation omitted).   None of these

purposes is fulfilled by the half-measure of selecting a jury followed by a

suspension of the criminal proceedings for days or weeks while the State

secures its witnesses. The anxiety associated with the prosecution would not

subside with the selection of the jury, the administration of justice would be

postponed, and the possible impairment of the defense would continue until the

evidence was presented. To decide McNeal was “brought to trial” when the jury

was selected but no trial was forthcoming for eleven days would render illusory

his right to a speedy trial within ninety days.

       B. No Good Cause Shown

       Because McNeal was not brought to trial within ninety days of the trial

information, we must turn to the question of good cause for the delay. “The

good-cause test under our speedy-trial rules relies only on one factor: the reason

for the delay.” Taylor, 881 N.W.2d at 77. But the reason for the delay is not

“evaluated entirely in a vacuum.” State v. Petersen, 288 N.W.2d 332, 335 (Iowa

1980) (explaining shortness of the period, failure of the defendant to demand a

speedy trial, or absence of prejudice are legitimate considerations only insofar as

they affect the strength of the reason for delay). If, as here, the defendant has

demanded a speedy trial, a stronger reason for the delay is needed to constitute

good cause. See Miller, 637 N.W.2d at 205.

       On appeal, the State contends it had good cause for a continuance

beyond the ninety-day speedy-trial deadline because it was “unable to procure a
                                         16


critical fact witness.” The district court record does not support this contention.

At the June 16 hearing, the State told the court “five to seven doctors” were

named in the minutes and “the three that we need” to prove the element of

serious injury were “unavailable” for the trial scheduled to start on Tuesday, June

23. The State said Dr. Seluk planned to be in Europe from June 23 until June

30—that information formed the basis of the court’s decision to recess the trial

until July 7.5   The State also asserted a neurosurgeon and a radiologist it

planned to call as witnesses were unavailable in the “next week” because of

“work commitments.”

       The assistant county attorney’s broad and general assertion on June 16

that the essential doctors were unavailable as witnesses at any time during the

“next week” did not satisfy the State’s burden to show good cause for delaying

the presentation of evidence until July 7.      See Winters, 690 N.W.2d at 909

(finding “bare assertion by the prosecutor” that depositions could not be

completed before expiration of the speedy-trial deadline was insufficient to show

good cause). “[G]ood cause to avoid speedy trial must be rooted in facts, not

conclusions.” Taylor, 881 N.W.2d at 77. This situation differs from Petersen,

where the supreme court found good cause for a fourteen-day delay beyond the

speedy-trial deadline when, among other reasons, the State had requested to

continue one trial date based on a “material expert witness” being on vacation

out of state.    See 288 N.W.2d at 334–35.        The court noted “a less serious



5
  As it happens, the State did not call Dr. Seluk to testify, but relied solely on the
testimony of Dr. Treves, who was not noticed as a witness until June 10, one day after
McNeal rejected the State’s plea offer on the original trial date.
                                       17


reason” sufficed to show good cause because Petersen had not demanded a

speedy trial. Id. at 335. Here, McNeal consistently demanded a speedy trial.

      It was evident from the professional statements of the assistant county

attorney on June 16 that the State was scrambling to schedule its medical

witnesses for trial after learning McNeal rejected its plea offer on June 9. The

State had not issued subpoenas for any of the doctors for the June 23 trial date.

Nor had the State identified a “date certain” when any of them would be available

to testify. Instead of taking the necessary measures to secure its witnesses for

trial within the ninety days provided by the rule, the State instead proposed the

more facile remedy of picking a jury on June 23 and then “tolling the speedy trial

in this case until such time as the State is able to schedule those expert

witnesses.” Perhaps because the State mistakenly believed it could satisfy its

obligation to bring McNeal to trial under rule 2.33(2)(b) by empaneling a jury

within the ninety-day deadline, it did not advance an adequate reason for

delaying the presentation of evidence.       Accordingly, we reverse McNeal’s

convictions and remand to the district court for dismissal of those charges. See

Taylor, 881 N.W.2d at 80.

      REVERSED AND REMANDED FOR DISMISSAL.
