                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0247
                                  Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISACK MAHAD ABDINUR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Steven J.

Andreasen, Judge.



      Defendant challenges his conviction for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       Isack “Zack” Abdinur challenges his conviction for murder in the first degree,

in violation of Iowa Code section 707.2(1)(a) (2015). In this direct appeal, Abdinur

contends the district court erred in finding he did not prove his insanity defense

and the district court abused its discretion in granting a continuance over his

objection.

                                           I.

       The victim in this case is Cori Stead, Abdinur’s girlfriend. Abdinur and Stead

had a volatile relationship. According to numerous witnesses, they argued almost

daily. Many witnesses recounted Abdinur making threats of violence and using

hateful language. By way of example, Abdinur told Stead, “You should just die. I

wish you would die. I hate you.” He accused her of cheating. He called her “a

b*tch, a whore,” and “a slut.” Abdinur, an immigrant, told Stead, “Women in my

country, when they don’t listen to their men, we chop their heads off.” He told her

“he was going to make her pay for it if she didn’t listen to him.” On one occasion,

he told Stead’s family “if he had a beer bottle, . . . he would break it over her head,”

and “how these whores act, how they act, how women like that behave in Africa,

we kill them.”

       On the night in question, June 22, 2015, Abdinur went out to a local casino

with Stead and Stead’s niece, Leslie Cournoyer. Abdinur and Stead were living

with Cournoyer and Cournoyer’s five children. According to Cournoyer, Abdinur

had been drinking with friends when she and Stead picked him up to go to the

casino. When he got in her car, he “looked mean.” Abdinur and Stead began

arguing in the car, as they often did, and Abdinur told Stead “he wished she would
                                         3


die.” Cournoyer testified she witnessed Abdinur punch the back of Stead’s head

out of the corner of her eye. The group spent a short time at the casino. They left

around 9:00 p.m. and returned to Cournoyer’s apartment.

       Shalena Dupree, a friend of Cournoyer’s, was babysitting the children.

Dupree testified that when Abdinur, Stead, and Cournoyer returned home from the

casino Cournoyer prepared dinner. Shortly thereafter, Cournoyer, Dupree, and

the five children went into Cournoyer’s bedroom to watch a movie. Both Cournoyer

and Dupree heard Stead and Abdinur arguing outside the bedroom. Stead asked

Cournoyer to call 911. They did not call 911 because the phone was not working.

Stead then entered the bedroom, locked the door behind her, and laid on a

mattress on the floor with two of the children.   Abdinur requested entry into the

bedroom, which was denied. He then forcibly broke the lock and entered the

bedroom. According to Dupree, Abdinur told Stead “if you want the cops here then

that’s what we will get.” Cournoyer testified Abdinur then “went towards [Stead]

and grabbed her, [and] started punching her” in the face. Cournoyer told Dupree

to get out, take two of the children from the room, and ask the landlord to call 911.

Cournoyer then “jumped on [Abdinur’s] back and tried to pull him off.” After a

minute or so, Abdinur got up and walked out of the room.

       Cournoyer was helping Stead when Abdinur came back into the room with

a kitchen knife. She witnessed Abdinur stab Stead as Stead begged him to stop.

As he stabbed her, Abdinur told Stead, “This is what you want, you f*cking b*tch.

F*cking hate you.” Cournoyer grabbed two of her other children, fled to the

balcony, and yelled for help.     She heard Stead scream for help as Abdinur

continued to curse and stab her. After several minutes, Cournoyer concluded she
                                         4


had to leave the apartment and returned inside. She saw Abdinur in the doorway

still holding the knife. She saw him toss the knife towards the kitchen before she

ran outside with two of her children in tow. A short time later, she saw Abdinur

walking away from the apartment in the opposite direction.

       Several police officers testified about the events of the evening. A call came

into dispatch at approximately 12:47 a.m. on June 23, 2015. Officers responded

to the scene and cleared the home for medical personnel, but Stead was already

deceased. Officers located Cournoyer’s fifth child underneath a blanket next to

Stead’s body. The child was unharmed. There was a bloody knife on the kitchen

floor and blood in the refrigerator next to some cans of beer. Several officers

followed a trail of blood away from the apartment.          When the visible trail

disappeared, the officers used a canine to track Abdinur. As the officers walked

down an alley, Abdinur, covered in blood, stepped out from a garage and said, “It’s

me. I’m right here.” Officers located several bloody beer cans and a bloody liquor

bottle in the garage.     Although Abdinur initially complied with the officers’

commands, he became belligerent and began flailing and spitting. Physical force

was necessary to place him in a squad car and take him to the hospital to check

him for injuries.

       Officer Greg Rose testified that as he drove Abdinur to the hospital, Abdinur

said “he didn’t want to live.” Abdinur also said a previous jail stay had “made him

this way” because “they made him take drugs.” Abdinur claimed the police spilled

warm blood over his head to frame him for the murder. Abdinur received several

sutures for a wound on his hand. When at the hospital, Officer Jamie Mattas

testified that Abdinur was tearful, and made comments like, “I had hurt my love”
                                          5


and “you know, I actually did it.” From the hospital, Abdinur was taken to an

interview room at the police station.           There, he continued making similar

statements, including “I hurt my love” and “I killed my love. I don’t deserve to live.”

At other times, he indicated that he did not believe Stead was really dead.

       Abdinur was arraigned on July 7, 2015. Abdinur waived his right to trial by

jury, and the matter was tried to the bench in November 2016. At trial, Abdinur

asserted defenses of diminished responsibility and insanity. The district court

found Abdinur guilty of murder in the first degree and sentenced him to life in prison

without the possibility of parole.

                                          II.

       In Abdinur’s first claim of error, Abdinur challenges the sufficiency of the

evidence. Appellate counsel clarified the nature of the challenge during oral

argument, explaining Abdinur does not contest the sufficiency of the evidence

proving the murder but instead contends the district court erred in rejecting his

insanity defense.

       When a defendant raises a defense of insanity, he must prove the defense

by a preponderance of the evidence. See Iowa Code § 701.4. This court reviews

challenges to the sufficiency of evidence presented at trial for correction of errors

at law. See State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). We review a trial

court’s findings as we would a jury verdict. See State v. Kemp, 688 N.W.2d 785,

788–89 (Iowa 2004). We review the record in a light most favorable to the State,

and we make any legitimate inferences and presumptions that may fairly and

reasonably be deduced from the evidence in the record. See State v. Webb, 648

N.W.2d 72, 76 (Iowa 2002); State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000)
                                         6


(addressing a similar proof of insanity defense claim). “Findings of the trial court

are to be broadly and liberally construed, rather than narrowly or technically, and,

in case of ambiguity, we will construe findings to uphold, rather than defeat, the

judgment.” State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). Still, we consider all

the evidence in the record and not just the evidence supporting the verdict. See

State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Critically, we note that the finder

of fact is “free to reject certain evidence, and credit other evidence.” See State v.

Nitcher, 720 N.W.2d 547, 556 (Iowa 2006).

       The insanity defense is set forth in Iowa Code section 701.4. It provides:

       A person shall not be convicted of a crime if at the time the crime is
       committed the person suffers from such a diseased or deranged
       condition of the mind as to render the person incapable of knowing
       the nature and quality of the act the person is committing or
       incapable of distinguishing between right and wrong in relation to that
       act. Insanity need not exist for any specific length of time before or
       after the commission of the alleged criminal act.

       The statute is a codification of the common law M’Naghten standard. See

Jacobs, 607 N.W.2d at 684. The supreme court has approved of the following

explanation of the standard:

               Not every kind or degree of mental disease or mental disorder
       will excuse a criminal act. “Insane” or “insanity” means such a
       diseased or deranged condition of the mind as to make a person
       either incapable of knowing or understanding the nature and quality
       of his acts, or incapable of distinguishing right and wrong in relation
       to his act(s).
               A person is “sane” if, at the time he committed the criminal
       act, he had sufficient mental capacity to know and understand the
       nature and quality of the act and had sufficient mental capacity and
       reason to distinguish right from wrong as to the particular act.
               To know and understand the nature and quality of one’s acts
       means a person is mentally aware of the particular act(s) being done
       and the ordinary and probable consequences of them.
               ....
               Insanity need not exist for any specific length of time.
                                         7



State v. Becker, 818 N.W.2d 135, 142–43 (Iowa 2012), overruled on other

grounds by Alcala v. Marriott Intern., Inc., 880 N.W.2d 699 (Iowa 2016). See

State v. Gilmore, No. 11-0858, 2012 WL 3589810, at *7 (Iowa Ct. App. Aug. 22,

2012) (citing this language with approval). “The words ‘right’ and ‘wrong’ refer to

a legal, not moral, right or wrong.” Jacobs, 607 N.W.2d at 684.

       The parties do not dispute the first element of the defense—that Abdinur

suffered from a diseased or deranged condition of the mind. It was not disputed

Abdinur suffered from schizophrenia and had diagnoses for substance induced

mood disorder, depression, anxiety, and polysubstance abuse. He had been

hospitalized on prior occasions. He received psychiatric care several times in

Boston in 2014. A hospital report from that time called him “evasive,” “agitated,”

and “paranoid” and noted he required security intervention. In January 2015,

Abdinur was involuntarily admitted to a hospital in Sioux City due to concerns of

“severe psychosis.”    The hospital requested and received a court order to

administer long-acting medication to alleviate Abdinur’s symptoms and “extreme

violent behavior” towards staff and others. Although Abindur was ordered to

engage in a treatment plan following this hospitalization, he did not comply.

       The parties do dispute whether Abdinur’s mental condition rendered him

incapable of knowing the nature and quality of the act he committed and rendered

him incapable of distinguishing between right and wrong in relation to the act. The

State’s expert witness was Dr. Tim Kockler. Dr. Kockler is a licensed psychologist

who does a significant amount of consulting work across six states. He has

provided expert opinion in 266 criminal matters in Iowa alone. His report was
                                          8


admitted into evidence, and he provided testimony at trial. In preparing his report,

Dr. Kockler reviewed extensive criminal and psychiatric records and personally

interviewed Abdinur for three hours and fifteen minutes.           Dr. Kockler also

conducted “several hours of psychological testing.” Dr. Kockler concluded that

“despite the presence of schizophrenia, [Abdinur] understood the nature and

quality of his criminal acts before, during, and after the crimes; and also knew what

he was doing was wrong.” In support of his conclusion, Dr. Kockler explained that

Abdinur’s statements regarding the use of the knife, fleeing the scene, and

recognition that he did something wrong showed “an awareness of his . . .

surroundings . . . it speaks directly to the heart of wrongfulness.” Dr. Kockler

explained that Abdinur’s behavior, statements, and emotions “demonstrated

insight and awareness of his surroundings immediately . . . following the alleged

event.”

       The defendant’s expert was Dr. Richard Frederick.          Dr. Frederick is a

licensed psychologist board certified in forensic and assessment psychology. Dr.

Frederick has a lengthy history of performing criminal responsibility evaluations for

the Department of Justice and performing other consulting work. He testified he

has “encountered hundreds of individuals who have schizophrenia.” His report

was admitted at trial, and he testified for the defense. Dr. Frederick reviewed police

and witness statements, criminal records, and psychiatric records. He personally

interviewed Abdinur and conducted psychological testing. Unlike Dr. Kockler, Dr.

Frederick concluded “[a]t the time of the alleged homicide, because of active,

untreated schizophrenia, Mr. Abdinur was in an active state of psychosis and

dissociation and unable to appreciate the nature and quality of his actions or to
                                            9


distinguish right from wrong.” He based this determination on Abdinur’s serious

psychotic condition that manifested through “paranoia, hallucinations, delusions,

disorientation, decreased impulse control,” among other things, the recent use of

methamphetamine and alcohol, Abdinur’s account and behavior which illustrated

“substantial gaps in memory and rationality,” and the lack of a motive.

       The district court conducted a thorough and well-reasoned assessment of

the competing evidence. While the district court found certain portions of Dr.

Frederick’s report and testimony more credible than Dr. Kockler’s, the district court

ultimately found Dr. Kockler’s conclusion the defendant was not legally insane at

the time of the murder to be more persuasive. We cannot conclude this finding

was erroneous. “When conflicting psychiatric testimony is presented to the fact

finder, the issue of sanity is clearly for the fact finder to decide.” Jacobs, 607

N.W.2d at 685. “When a case evolves into a battle of experts, we, as the reviewing

court, readily defer to the district court’s judgment as it is in a better position to

weigh the credibility of the witnesses.” Id.

       Independently, the record as a whole, when viewed in the light most

favorable to the verdict, supports the conclusion Abdinur understood the nature

and quality of his act and was capable of distinguishing between legal right and

legal wrong. See id. (analyzing expert testimony along with observations of those

that encountered the defendant on a regular basis and concluding “there was

sufficient evidence to support the trial court’s rejection of the insanity and

diminished   responsibility   defenses”).       Abdinur   explicitly   expressed   his

understanding of the nature and quality of his act. Abdinur admitted in his interview

with Dr. Kockler that he knew he had a knife, that he took the knife and entered
                                         10


the bedroom, that he located Stead in the bedroom, and that he stabbed Stead.

He demonstrated he understood the consequences of his act—the injury or death

of Stead. Abdinur also demonstrated he was aware his conduct was legally wrong.

After stabbing Stead, Abdinur fled the scene to avoid the police. He stated he left,

“Because I realized something was wrong. That’s when the police came to mind.

Like leave the apartment before the cops come.” When asked why, Abdinur

replied, “Because I did something wrong. I just realized I did something wrong.”

Abdinur also admitted he went to a garage in an alley to “hide from the police”

because “I just wounded somebody.” Abdinur made similar comments to Dr.

Frederick. Abdinur stated, “I stabbed two times, she grabbed the knife. I backed

off and came back the [third] time and punctured her in the right side.” He also

demonstrated to Dr. Frederick he knew he had committed a legal wrong, stating,

“I threw the blade down and washed my hands. I had cut my hands. I grabbed a

little whisky and beer. I went to the garage at another house. I was, ‘Oh sh*t, I did

something. I need to drink these before I got to jail.’”

       The district court did not commit legal error in failing to conclude the

defendant proved his defense of insanity. See, e.g., State v. Kirwan, No. 16-1088,

2017 WL 3524772, at *4 (Iowa Ct. App. Aug. 16, 2017) (affirming murder

conviction, noting the jury was entitled to evaluate and resolve conflicting expert

opinion regarding insanity, and noting the jury was free to rely on the defendant’s

admissions regarding the act and his understanding of the same); State v.

Sherman, No. 16-0705, 2017 WL 2461498, at *3 (Iowa Ct. App. June 7, 2017)

(“Viewing the denial of the new trial ruling of the district court, we concur that

Sherman simply did not prove her defense of insanity by a preponderance of the
                                          11


evidence, as required by statute. It necessarily follows that the verdict was

supported by substantial evidence.”).

                                          III.

       Abdinur’s next claim of error relates to the district court’s decision to

continue the trial beyond the one-year speedy trial deadline. See Iowa R. Crim. P.

2.33(2)(c) (“All criminal cases must be brought to trial within one year after the

defendant’s initial arraignment pursuant to rule 2.8 unless an extension is granted

by the court, upon a showing of good cause.”).

       By way of background, Abdinur was arraigned on July 7, 2015. The matter

was tolled in July and August upon the request for a competency evaluation

pursuant to Iowa Code chapter 812. In September 2015, Abdinur waived his right

to speedy trial and jointly moved to continue the trial until January 26, 2016. The

motion was granted.      Subsequently, Abdinur requested new counsel due to

conflicts with his appointed counsel. In January 2016, as trial approached, the

district court granted Abdinur’s request for new counsel, and the parties again

jointly moved to continue trial until May 24, 2016, which the district court granted.

In May 2016, the State moved to continue trial. In support of its motion, the State

noted its expert witness was not available on the scheduled trial date and the

parties had not completed discovery, including deposition. Abdinur personally

resisted the motion, although his counsel agreed the parties needed more time for

expert depositions and discovery. The district court granted the motion and set

the trial for August 23, 2016. On July 8, the district court issued an order appointing

substitute counsel—for the second time—after learning Abdinur was refusing to

communicate with his counsel.         After several attorneys withdrew from the
                                           12


appointed representation due to conflicts of interest, substitute counsel finally

entered an appearance on August 4, 2016. The State filed another motion to

continue trial due to its concerns regarding the parties’ inability to conduct

depositions due to the numerous changes in counsel and due to its concerns

regarding Abdinur receiving a fair trial. Specifically, Abdinur’s newly appointed

counsel would have had only three weeks to prepare for trial in the absence of a

continuance. The district court granted the motion, and trial was held in November

2016.

        On appeal, Abdinur presents his claim as a denial of his right to speedy trial.

However, this issue was not presented to the district court. At the time the district

court granted the continuance, Abdinur made a single, general objection, “I want

the court to be on the same date as it is right now . . . I don’t want it to be the other

one, as far as postponing it.” Defense counsel supported the continuance, noting

it was necessary to “complete depositions of the expert witnesses,” “for our expert

to review [the State’s expert] report,” and “to gather and review” medical records.

The defendant did not file a motion to dismiss based on a violation of his right to

speedy trial. Under the circumstances, error was not preserved. See State v.

Krogmann, 804 N.W.2d 518, 523 (Iowa 2011) (finding to preserve error, a

defendant “had to alert the district court to his specific objections, and he had to

do so in a timely manner”)

        In the alternative, Abdinur argues his counsel was ineffective in failing to

resist the May continuance on speedy trial grounds.             We review ineffective

assistance claims de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

To establish a claim of ineffective assistance of counsel, Abdinur must show “(1)
                                          13


his trial counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.” Id. The defendant must prove both elements by a preponderance of

the evidence. See State v. Madsen, 813 N.W.2d 714, 723 (Iowa 2012). “Courts

generally presume counsel is competent and a defendant must overcome the

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” State v. Ondayog, 722 N.W.2d 778, 785 (Iowa

2006). “Prejudice exists if there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Madsen, 813 N.W.2d at 727.

       Here, Abdinur has failed to establish counsel’s failure to resist the motion to

continue on speedy trial grounds was a breach of duty. Recall, in May 2016, the

one-year trial deadline had not yet passed. Thus, at the time the State moved to

continue trial, defense counsel was left in the position of insisting on going forward

with trial without the completion of discovery necessary to present the defendant’s

insanity defense or consenting to a continuance to allow for full preparation of the

defense. Under the circumstances, we cannot conclude counsel breached a duty

in consenting to a continuance to allow for additional time to prepare the

defendant’s case. See Johnson v. State, No. 14-1043, 2015 WL 6510327, at *2

(Iowa Ct. App. Oct. 28, 2015) (finding counsel was not ineffective in analogous

situation where “the attorney was placed on the horns of a dilemma” in choosing

between a continuance and moving forward with trial without full preparation).

       Independently, we conclude there was good cause for the delay. The

matter had been tolled for a period of time in July and August of 2015 pursuant to

chapter 812. Subsequently, Abdinur waived his right to speedy trial. The parties
                                         14


had significant difficulty in coordinating discovery and depositions due, in part, to

Abdinur’s repeated conflicts with his counsel and the substitution of new counsel.

Defense counsel consented to the continuance to allow for the full and fair

preparation of the defendant’s case. Finally, the court continued the trial from

August until November because Abdinur’s newly appointed counsel would have

had only three weeks to prepare for the scheduled trial date. The district court’s

continuance protected Abdinur’s right to present a defense and obtain a fair trial.

The district court had good cause to justify any delay in trial. See State v. Winters,

690 N.W.2d 903, 909 (Iowa 2005) (“Similarly, good cause for pretrial delay under

the speedy-trial rule can result from the need to complete pretrial discovery.”).

                                         IV.

       For these reasons, we affirm the defendant’s conviction for murder in the

first degree.

       AFFIRMED.
