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) , Judge s

.

A defendant challenges his willful injury and crimin al 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 an d Prior Proceedings The jury heard the following evidence at McNeal ’ s trial. Matthew Browning was working in Paul Aleksiak ’ s t ool shop the night of February 22,
2015 , when his f riend , 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 Edm u ndson 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 beat3

you to it. ” When inte rviewed 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 minut es 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 ninetie th day would be June 28 th . So I guess we would need to slide this in for June 23rd. ” Mc Neal 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 he ad 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 defend ant wishing to take the plea offer that was made. The assistant county attorney then represented th at 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 surg ery 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 becau se 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 c ourt 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 of fice 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 p osition: 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 complai ns 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 D ocument Management System) records. C ounsel 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 r ule 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 cou nty 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 witnes ses 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 23 rd until June 30 th

. ” 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 cou rt 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 woul d 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 selec tion started on June 23, but because of prejudicial comments made by an other 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: “ An d 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 tri al on June 2 6th 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 ” and7

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
p retext. ” 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 lis t 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 t hen 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 Mc Neal guilty of willful injury causing serious injury and criminal trespass. On August 21, McNeal filed post trial 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 “ t he 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 possessi on 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 speed y - trial grounds, we need not reach McNeal ’ s three remaining issues.
II. Scope and Standard s 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 counse l 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 observatio n in rejecting9

McNeal ’ s posttrial motions that it did not recall “ any objection r aised on [June] 26th as to the c ourt ’ 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 1 6, 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. S ee 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) ; c f. State v. Edgerly , 571 N.W.2d 25, 29 (Iowa 1997) (finding defendant was not required to renew objection to evidence if pret rial 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 previ ous 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 : I f a de fendant 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 t he 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 inform ation “ toll ” the speedy

- trial time

2 The F ederal and Iowa C onstitutions 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 do es 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 p urpose 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 establ ished 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 a nd 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 avoi ding 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 [ f ederal Speedy T rial] 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 nin e 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 S peedy T rial A ct) ) ; 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 lice nse to evade the [ S peedy T rial] 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 S upreme C ourt 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

. C t

. , 677 P.2d 1206, 1212 (Cal. 1984) (en banc) (dismissing prosecution where jury was empaneled on Nov ember 27, the last day of the statutory period, but trial was delayed until December 3). The time period for bringin g McNeal to trial started on March 30, 2015, when the State filed the trial information. T he n inety

- 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

- tria l 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 but13

continuing the presentation of evidence until it was able to secure its medical witnesses. The district court accepted the State ’ s proposal

— bifurcating t he trial between jury selection, w hich ended up occurring on Friday, June 26 , and the remainder of the trial , which commenc ed on July 7. The evidentia ry portion of the trial began nine days after the speedy

- trial deadline. On appeal, t he 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; th e 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 rela tively short trial. Id

. Similarly, in Scaife , the appeals court decided the district court did not intend “ to evade the spirit ” of the S peedy T rial A ct by conducting voir dire within the statutory time limits and then ordering a eleven

- day recess so the judge could attend a mandatory ju dicial 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, i n 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 t he 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 select ing a jury within the rule ’ s time

frame but postpon ing 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. S ee Enn enga , 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 ” ).
T he speedy

- trial rule serves several purposes, including reliev ing “ 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 . a t 703 (citation omitted)

. None of these
purposes is fulfilled by the half

- measure of sele cting a jury followed by a suspension of the criminal proce edings 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 w ould be postponed , and the possible impairment of the defense would continue until the evidence was presented. To decide McNeal w as “ 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
g ood

- 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 strengt h 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, t he State contends it had good cause for a continuance beyond the ninety

- day speedy

- trial deadline because it was “ unable to procure a16

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

con clusions. ” 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 ba sed 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.
I t was evident from the p rofessional statement s 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 St ate 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 s ecure 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 b ecause 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

. Accor dingly, 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.