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State v. Pogwizd

Court of Appeals of Iowa

March 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
DOMINIC WAYNE POGWIZD II, Defendant-Appellant.

          Appeal from the Iowa District Court for Boone County, Paul G. Crawford, District Associate Judge.

         The defendant appeals his conviction for assault.

          Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Mullins, J., and Blane, S.J. [*]


         Dominic Pogwizd II appeals from his conviction for assault, a simple misdemeanor.[1] 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.

         I. Background Facts and Proceedings.

         On 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 guilty

         Before 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.

         On the 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."

         The 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 objection.

         During 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 objection.[2]

         The jury convicted Pogwizd of the lesser-included crime of assault. He was later sentenced to four days in jail.

         Pogwizd appeals.

         II. Discussion.

         A. Error Preservation.

         The State maintains that Pogwizd has failed to preserve error on his claim that evidence was admitted in violation of the Confrontation Clause. We agree.

         "It 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.

         Because 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 it.").

         B. Hearsay.

         Pogwizd 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).

         "Hearsay '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 turn.

         Statements Made to School Nurse. During the State's direct examination of the school nurse, the following exchange took place:

Q. And on August 10, 2016, were you working at Page Elementary School?

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 her?

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 to—

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 her.

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 visibly?


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