from the Iowa District Court for Boone County, Paul G.
Crawford, District Associate Judge.
defendant appeals his conviction for assault.
J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames,
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Mullins, J., and Blane, S.J.
POTTERFIELD, PRESIDING JUDGE.
Pogwizd II appeals from his conviction for assault, a simple
misdemeanor. Pogwizd maintains the district court erred
by admitting into evidence statements of the alleged victim
through the testimony of third-party witnesses in violation
of the Confrontation Clause and rules prohibiting the
admission of hearsay.
Background Facts and Proceedings.
August 10, 2016, Pogwizd was arrested and charged with
domestic abuse assault with intent to inflict serious injury
(involving his girlfriend). Pogwizd entered a plea of not
the trial began in December, the State informed the court
that it did not anticipate the girlfriend would be testifying
and filed a document it titled "Statements, " in
which it asked the court "to make a pretrial ruling on
the admissibility of statements made by the [girlfriend] in
this case." The statements were separated into four
categories based on when and how the statements were made to
a third party: statements made to school nurse MaryAnn
Moklestad before the police arrived; statements made to
police detective John Mayse before the ambulance arrived;
statements made at the hospital to Dr. Kathryn Howe; and
statements made to Detective Mayse a number of hours later at
the police station.
record, immediately before the start of trial, the court,
prosecutor, and defense counsel went through each category of
statements. The prosecutor argued why the State believed the
statements were admissible through the third party witnesses,
and Pogwizd resisted each based on "hearsay and a
violation of [Pogwizd's] right to confrontation."
court made a number of preliminary rulings, indicating that
certain statements made to the school nurse, the detective
before the ambulance arrived, and the doctor may be
admissible as exceptions to the hearsay rule if the State was
able to provide a proper foundation. The court ruled to
exclude the girlfriend's statements to the detective made
at the police station a number of hours after the incident.
The court did not rule on Pogwizd's Confrontation Clause
trial, Pogwizd objected a number of times during the
State's direct examination of school nurse, Detective
Mayse, and Dr. Howe. Each time, Pogwizd stated the objection
was for hearsay purposes and the court overruled the
jury convicted Pogwizd of the lesser-included crime of
assault. He was later sentenced to four days in jail.
State maintains that Pogwizd has failed to preserve error on
his claim that evidence was admitted in violation of the
Confrontation Clause. We agree.
is generally recognized that a motion in limine does not
preserve error since error does not occur until the matter is
presented at trial." State v. Delaney, 526
N.W.2d 170, 177 (Iowa Ct. App. 1994). "An objection
should be made at trial to preserve error." Id.
While there is an exception to this general rule "if the
prior ruling on the motion in limine 'amounts to an
unequivocal holding concerning the issues raised, '"
such was not the case here. Id. (citation omitted).
Even the rulings the court did make-involving Pogwizd's
hearsay objections-were contingent, stating that if the State
met certain requirements in front of the jury, the court
believed some evidence would be admissible. The court did not
rule on Pogwizd's Confrontation Clause claim. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)
("[I]ssues must be both raised and decided by the
district court before we will decide them on appeal.").
Moreover, Pogwizd appeared to understand the need to object
during trial, as he objected on the basis of hearsay several
times during trial-all during testimony the court had made
preliminary rulings on.
Pogwizd has failed to preserve error on his Confrontation
Clause claims, we do not consider them further. See State
v. Tangie, 616 N.W.2d 564, 569 (Iowa 2000) ("[T]he
court made it clear it would not rule on the hearsay
objection until the evidence was offered at trial, and it
gave no indication at all how it would rule on a
Confrontation Clause argument had the argument been presented
to it. We conclude the defendant has failed to preserve a
Confrontation Clause argument and has therefore waived
challenges the district court's rulings on his hearsay
objections, which allowed the school nurse and police
detective to testify as to statements made to them by the
girlfriend based on the excited-utterance exception,
see Iowa R. Evid. 5.803(2), and allowed Dr. Howe to
testify as to the statements based on the medical-diagnosis
exception, see Iowa R. Evid. 5.803(4).
'is a statement, other than one made by the declarant
while testifying at . . . trial, . . . offered in evidence to
prove the truth of the matter asserted.'" State
v. Newell, 710 N.W.2d 6, 18 (Iowa 2006) (citation
omitted). Such statements "must be excluded as evidence
at trial unless admitted as an exception or exclusion under
the hearsay rule or some other provision." Id.
(citation omitted). We review rulings on the admissibility of
hearsay evidence for correction of errors at law. State
v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). Here, we
consider each grouping of statements that were objected to in
Made to School Nurse. During the State's direct
examination of the school nurse, the following exchange took
Q. And on August 10, 2016, were you working at Page
A. Yes, I was there doing paperwork getting things ready
for the 2016/17 school year.
Q. And school wasn't in session at this time, was it?
A. It was not in session. It was really my first day back
with the secretary.
Q. [D]id anything unusual happen while you were working?
A. Yes, that morning the secretary called me to come up to
the front desk.
Q. And what did you see when you came up to the front desk?
A. At that time there was a young lady that was there. She
was crying, shaking, trembling, just was very scared.
Q. And that's, what, your opinion of how you observed
A. Yes, yes.
Q. Did you notice anything else about her?
A. Um, well, that her hair was wet. Just that she was just
shaking and very scared and since she was crying and just
really out of control with fear it looked like, I took her
back to my little cot where I have the children lay down
during the school day and I just had her sit there and
that's where I talked to her more.
Q. Okay. And what happened next?
A. Then I asked her, you know, what's going on because
she kept crying. I was trying to calm her down, talk to
her, get to know her, because I did not know her and
that's when she said her boyfriend tried toâ
DEFENSE COUNSEL: Objection, hearsay.
THE COURT: Overruled for reasons cited previously.
Q. What did she tell you?
A. That's when she told me her boyfriend tried to drown
Q. And did she say anything else to you?
A. Just that she was so scared. She was scared to go back
to the house. She was very worried about her belongings at
the house. She really wanted to get back there and get
things out of the house, but she was very scared and just
shaking and crying.
Q. And what she told you was consistent with what you saw her