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 instruction5stated:

 

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
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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 “goaldirected” 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.