IN THE SUPREME COURT OF IOWA

No. 10–0113

Filed October 7, 2011

STATE OF IOWA,

Appellee,

vs.

ROBERT PAUL KROGMANN,

Appellant.

Appeal from the Iowa District Court for Dubuque County, 

Lawrence H. Fautsch, Judge.

The defendant appeals his convictions for attempted murder and 

willful injury. AFFIRMED.

Dean Stowers of Stowers Law Firm, West Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, Martha E. Trout and Jim Kivi, 

Assistant Attorneys General, and John Bernau, County Attorney, for 

appellee.

Matthew McCusker, Seattle, Washington, and Sonia Chopra, 

Oakland, California, for amicus curiae American Society of Trial 

Consultants.
2

MANSFIELD, Justice.

Robert Krogmann appeals his convictions, following a jury trial, for 

attempted murder and willful injury. Krogmann contends the district 

court erred in granting the State’s pretrial request to freeze all his 

personal assets and requiring that he apply to the court for permission to 

use those assets for his legal defense. Krogmann also maintains the 

prosecutor committed reversible misconduct by asking an inflammatory 

question at trial.

Although we have concerns about the propriety of the asset freeze, 

we find that Krogmann failed to preserve error. We also find that error 

was not preserved as to the single incident of asserted prosecutorial 

misconduct and that this incident would not have amounted to reversible 

error in any event. For these reasons, we affirm Krogmann’s convictions.

I. Background Facts and Proceedings.

On March 13, 2009, defendant Robert Krogmann, an individual 

with a history of depression and bipolar disorder, went to the home of his 

former girlfriend Jean Smith in an attempt to revive their recently ended 

relationship. While there, he shot Smith three times with a handgun. 

The first bullet entered Smith’s stomach, the second her arm, and the 

third her spine. According to Smith, Krogmann told her “that if he 

couldn’t have me, no one was going to have me and that we were both 

going to die there together that day.”

Krogmann then called his son Jeff and told him what he had done. 

Jeff rushed to Smith’s house dialing 911 while en route. When Jeff 

arrived, he found Smith lying on the floor with her robe soaked in blood. 

Jeff convinced his father to turn over the gun.

Krogmann was arrested shortly thereafter. On March 23, 2009, 

the State charged Krogmann with one count of attempted murder, a 
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class “B” felony, and one count of willful injury causing serious injury, a 

class “C” felony. See Iowa Code § 707.11 (2009) (attempted murder); id. 

§ 708.4(1) (willful injury causing serious injury).

On March 24, 2009, the State applied for an order freezing all of 

Krogmann’s assets. The unverified application stated that Smith had 

suffered severe injuries necessitating lengthy hospitalization, that 

Krogmann would be required to reimburse the victim for out-of-pocket 

expenses associated with hospitalization and after-care, that Krogmann 

would be subject to civil litigation, and that Krogmann “has a number of 

assets that he may attempt to sell or transfer to avoid his financial 

obligations to the victim of his offenses.”

On March 30, 2009, the district court entered the requested order 

freezing all of Krogmann’s roughly $3.4 million in assets.1 The order 

said:

All of the Defendant’s assets shall be frozen. The Defendant 

shall make application to the Court for the sale or transfer of 

an asset at which time the Court will determine whether 

good cause has been shown to grant the application.

Because of a mailing error by the county attorney, Krogmann’s 

attorney did not receive notice of the State’s application until March 30, 

2009. Unaware that the court had already granted the State’s requested 

order, Krogmann filed a resistance on April 2, 2009. The resistance 

stated, in its entirety:

COMES NOW the Defendant, by counsel, and hereby 

resists the State’s application for order, and in support 

thereof states:

 1The initial report and inventory prepared by the conservator indicated that 

Krogmann, a farmer, had approximately $3.3 million in assets—$2,758,000 in real 

estate; $18,834.84 in mortgages, notes, deposits and cash; and $520,912.53 in 

miscellaneous property, largely farm products and equipment. A subsequent court 

order referenced an updated inventory of “approximately $3.4 million.”
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1. The State asks the Court to freeze Defendant’s 

assets.

2. The State has cited no authority for such nor does 

any exist.

3. Should the Court deem hearing necessary on the 

State’s application, the undersigned will not be available for 

hearing for one and one half weeks starting 4/6/09 due to 

being in trial in federal court.

WHEREFORE, Defendant prays the Court deny the 

State’s application for order, and prays for such further and 

other relief as may be fair and just.

The district court took no action on Krogmann’s resistance, so on 

April 28, 2009, he filed an application for interlocutory appeal with this 

court. In that application, Krogmann pointed out that the district court 

had frozen his assets without a hearing and had cited no authority in its 

order. Krogmann argued that the district court “acted without 

authority,” citing State ex rel. Pillers v. Maniccia, 343 N.W.2d 834 (Iowa 

1984). He also maintained that the district court violated his “right to 

due process as guaranteed by the Fourteenth Amendment to the United 

States Constitution.”

Krogmann’s application was treated as one for discretionary review 

and denied by this court on May 26, 2009.

Krogmann’s bond was initially set at $750,000 cash only but was 

increased to $1 million cash only on June 1, 2009. To manage his frozen 

assets in accordance with the court order while he was in jail, Krogmann 

voluntarily established a conservatorship on April 13, 2009, naming an 

attorney (not his criminal defense lawyer) as conservator. Because of the 

asset-freeze order and the conservatorship, disbursement requests had 

to be made by the conservator and then approved by the probate court.2 

 2The order appointing conservator provided, “The Conservator appointed 

hereunder shall adhere to the Order of the District Court in the criminal case and make 

application to the Court for authority to sell or transfer any assets other than in the
5

Thus, court permission was required to pay legal fees and other defenserelated expenses.

This process led to some delays in payments to Krogmann’s 

defense lawyer. Also, two specific defense-related requests were rejected 

by the probate court after having been resisted by either Smith or the 

State. On July 20, 2009, following Smith’s objection, the court denied 

Krogmann’s request to use his farmland as security to post bail. Then, 

on October 30, 2009, following State objections, the court denied 

Krogmann’s request to expend funds on a jury consultant.

At the October 27, 2009 pretrial conference preceding the criminal 

trial, the parties discussed the jury consultant at some length. 

Krogmann’s defense attorney explained his plan to use the consultant to 

assist with jury selection. The State countered that the consultant would 

be “a luxury, not a necessity.” Ultimately, the district court decided that 

the defendant would be allowed to use the consultant if he were able to 

retain one. The State then filed an objection in the probate court the 

next day, reiterating its view that funds for a consultant should be 

denied because “a jury consultant is consider[ed] a luxury rather than a 

necessity” and the defendant has no “right” to a jury consultant. On 

October 30, 2009, the probate court3 denied the request for jury 

consultant funds without explanation. Accordingly, Krogmann 

proceeded to trial on November 2, 2009, without a jury consultant.

Because there had been a change of venue, Krogmann went to trial 

in Dubuque County. Krogmann presented a diminished capacity 

________________________________

normal course of the farming operation where the transfer is made for good and 

valuable consideration.”

3The same judge who had conducted the pretrial conference and who would 

preside over the criminal trial the following week denied this request in his capacity as 

probate judge.
6

defense. The jury did not accept the defense and found him guilty of 

both charges on November 6, 2009. Krogmann was subsequently 

sentenced to a term of incarceration of up to twenty-five years for the 

attempted murder and a term of incarceration of up to ten years for the 

willful injury, with the terms to run consecutively.

Separate from the asset-freeze order, the State had also filed a 

criminal restitution lien under Iowa Code section 910.10 (2009) on June 

18, 2009. Following his convictions, Krogmann was ordered to pay 

$35,570.14 in restitution to Smith and $18,219.54 in restitution to the 

Delaware County Sheriff’s Department and the State for its prosecution 

expenses.

Krogmann filed a notice of appeal on January 14, 2010. On 

appeal, Krogmann argues that the asset freeze was contrary to Iowa law 

and also violated his constitutional rights to due process, to be free from 

unreasonable seizures, and to counsel. Additionally, Krogmann argues 

that the State deprived him of the right to a fair trial when it asked him 

during cross-examination, “Shot anybody today?”

II. Standard of Review.

In considering alleged violations of constitutional rights, our 

standard of review is de novo. State v. Lyman, 776 N.W.2d 865, 873 

(Iowa 2010). “[W]e make an independent evaluation [based on] the 

totality of the circumstances as shown by the entire record.” State v. 

Brooks, 760 N.W.2d 197, 204 (Iowa 2009) (internal quotation marks 

omitted). “Each case must be evaluated in light of its unique 

circumstances.” Id.

“A temporary injunction is a preventive remedy to maintain the 

status quo of the parties prior to final judgment and to protect the 

subject of the litigation.” Lewis Invs., Inc. v. City of Iowa City, 703 
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N.W.2d 180, 184 (Iowa 2005) (internal quotation marks omitted). Our 

review is for an abuse of discretion. Id. The decision to issue a 

temporary injunction “requires great caution, deliberation, and sound 

discretion.” PIC USA v. N.C. Farm P’ship, 672 N.W.2d 718, 722 (Iowa 

2003) (internal quotation marks omitted). We usually will not overturn 

such a decision unless there has been an abuse of discretion or violation 

of a principle of equity. Id.

Prosecutorial misconduct claims are reviewed for abuse of 

discretion. State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). Abuse is 

found if “a court acts on grounds clearly untenable or to an extent clearly 

unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa 2006).

III. The Asset Freeze.

The threshold question we must answer is whether Krogmann 

preserved error in the district court on his objections to the asset freeze. 

As noted by the State, Krogmann filed only a one-page resistance to the 

State’s application in the district court, after the application had been 

granted, in which he argued that no authority existed for the asset 

freeze. Although Krogmann later filed a slightly more detailed application 

for interlocutory appeal, that filing was with our court, not the district 

court. Krogmann never supplemented his original resistance in the 

district court. After learning the district court had granted the State’s 

application before receiving his resistance, Krogmann made no effort to 

urge the district court to withdraw its order nor did he seek a hearing 

before the court.

The doctrine of error preservation has two components—a 

substantive component and a timeliness component. Krogmann had to 

alert the district court to his specific objections, and he had to do so in a 

timely manner. In this case, Krogmann’s one-page resistance said only 
8

that “[t]he State has cited no authority for [the asset freeze] nor does any 

exist.” Krogmann did not raise any of the constitutional arguments that 

he presents in his current appeal. In fact, he did not even argue to the 

district court that the asset freeze was unconstitutional. This was 

insufficient to preserve error on his constitutional arguments. See State 

v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (stating that “[a] party 

challenging the constitutionality of a statute must alert the court to what 

specific constitutional provisions are allegedly compromised by the 

statute” (internal alteration and quotation marks omitted)).

Krogmann did insist there was “no authority” for the asset freeze. 

Some time ago, in Maniccia, we held that a district court could not enter 

an injunction barring a person charged with a crime from disposing of 

property that might otherwise be used to reimburse the crime victim or 

the county. 343 N.W.2d at 834. As we put it, “[A] court of equity has no 

inherent power to issue the injunction requested by petitioner.” Id. at 

835. The only difference here is that the State sought the order within 

the criminal case, instead of filing a separate civil action for injunctive 

relief.

Also, the State has the statutory right to seek a criminal restitution 

lien to protect both its interests and those of the victim. See Iowa Code 

§ 910.10.4 Indeed, it requested and received such a lien. Under these 

circumstances, one might well question the State’s ability to obtain 

 4Section 910.10(1) provides, “The state or a person entitled to restitution under 

a court order may file a restitution lien.” The restitution lien must set forth certain 

information, including “[t]he amount of restitution the person has been ordered to pay 

or is likely to be ordered to pay.” Iowa Code § 910.10(2)(g). As noted above, 

Krogmann’s judgment and sentence required him to pay approximately $36,000 in 

victim restitution and $18,000 in restitution to the State.
9

inherent injunctive relief beyond the statutory remedy already afforded 

by section 910.10.5

But our regular error preservation rules also require parties to 

alert the district court “to an issue at a time when corrective action can 

be taken.” Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 

(Iowa 2000). Krogmann failed to do this. Upon learning that the district 

court had already entered the asset freeze, he never requested a hearing 

nor sought dissolution of the order.6 Krogmann was aware the district 

court had failed to rule on his objection to the asset freeze before 

granting it. Yet he never sought out the court and requested a ruling on 

that objection. “There is no procedural rule solely dedicated to the 

preservation of error doctrine, and a party may use any means to request 

the court to make a ruling on an issue.” See Meier v. Senecaut, 641 

N.W.2d 532, 539 (Iowa 2002). Still, when a court fails to rule on a 

matter, a party must request a ruling by some means. Id.

Krogmann refers us to other filings where he raised objections to 

the asset freeze.7 Yet for various reasons, we find those filings 

insufficient to preserve error. First, Krogmann refers us to his April 28, 

 5The State notes on appeal that section 910.10(5) provides, “This section does 

not limit the right of the state or any other person entitled to restitution to obtain any 

other remedy authorized by law.” (Emphasis added.) Still, this begs the question of 

how the asset freeze was “authorized by law.”

6Had this been a temporary injunction in a civil case, the rules make it clear 

that a motion to dissolve would be an appropriate procedural avenue:

A party against whom a temporary injunction is issued without notice 

may, at any time, move the court where the action is pending to dissolve, 

vacate or modify it. Such motion shall be submitted to that court. A 

hearing shall be held within ten days after the filing of the motion.

Iowa R. Civ. P. 1.1509.

7After oral argument, Krogmann submitted a document entitled “supplemental 

record references” to support his assertions of error preservation. The State moved to 

strike this filing but also responded to it. We deny the motion to strike but have 

considered both the “supplemental record references” and the State’s response to them.
10

2009 application for an interlocutory appeal and a stay of the freeze 

order. That application mentioned the lack of a prior hearing, Maniccia, 

and the Fourteenth Amendment right to due process. That application, 

however, was directed at us, not the district court. While Krogmann 

apparently mailed an informational copy to the district court clerk, he 

did not request the district court to take action.

Next, Krogmann calls attention to his postverdict motion for new 

trial. In that motion, Krogmann argued as grounds for new trial that he 

could not hire a jury consultant because of the asset freeze and that his 

due process rights were violated when defense counsel needed additional 

funds and a hearing had to be held “via the conservatorship.” However, 

a motion for new trial is not the appropriate time to raise matters for the 

first time that could have been raised earlier. See Hobbiebrunken v. 

G & S Enters., Inc., 470 N.W.2d 19, 23 (Iowa 1991); State v. Winquist, 247 

N.W.2d 256, 259 (Iowa 1976). We have previously held that a defendant 

cannot await the outcome of a jury trial “and then raise an issue of 

which he was aware from the beginning.” State v. Traywick, 468 N.W.2d 

452, 455 (Iowa 1991); accord State v. Jackson, 397 N.W.2d 512, 514 

(Iowa 1986).

Krogmann also points us to a motion to continue trial that he filed 

shortly before the November 2, 2009 trial date. In that motion, he raised 

the Sixth Amendment to the U.S. Constitution. However, his argument 

there was that denying a continuance would deprive him of rights 

guaranteed by the Sixth Amendment. The motion did not even mention 

the asset freeze.

Lastly, Krogmann directs us to several filings and developments in 

the conservatorship proceeding, not the criminal case. As noted, shortly 

after the district court issued the order in the criminal case freezing his 
11

assets, Krogmann voluntarily established a conservatorship. Thereafter, 

the conservator had to obtain probate court approval whenever 

additional funds were needed for Krogmann’s defense. On September 2, 

2009, Krogmann’s defense counsel responded directly when the victim 

objected to the conservator’s request for additional criminal defense 

funds, stating that such objections “chill[ed]” his defense. On September 

18, the probate court ruled that it “will not refuse to pay these sums as 

the Defendant has a right to competent counsel under the Sixth 

Amendment . . . .” On October 20, 2009, the conservator submitted a 

letter from Krogmann’s defense counsel to the probate court invoking 

this language and requesting additional money.

While these events illustrate certain effects of the asset-freeze 

order, they cannot be deemed objections to the order itself. Also, they 

were filed in a separate proceeding, the conservatorship, not the criminal 

case.

On a related note, Krogmann emphasizes that the probate court 

denied permission for him to use his personal assets as security for bail 

and to hire a jury consultant. If this were an appeal in the 

conservatorship, we might be able to review those particular rulings. 

Since this appeal is from the judgment in the criminal case, however, 

those matters are relevant only as consequences of the asset freeze. As 

we have noted, Krogmann did not make a timely or sufficient objection to 

that freeze.8

Our determination that Krogmann has failed to preserve error does 

not mean we approve of the asset freeze. We are troubled by the State’s 

 8Krogmann has not pursued an ineffective assistance counsel claim on this 

appeal relating to the asset freeze or the conservatorship. Our opinion does not 

preclude Krogmann from pursuing such a claim in the context of a postconviction relief 

proceeding.
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effort to tie up a criminal defendant’s personal assets without citing any 

rule or statute, without making a verified filing, and without citing the 

district court to relevant authority (Maniccia). We are also troubled by 

the State’s attempts to use the asset freeze, once it was in place, to object 

to defense expenditures not on the ground they would jeopardize 

restitution or other victim compensation (the alleged reasons for the 

asset freeze), but simply because the State deemed them unnecessary.

IV. Krogmann’s Claim of Prosecutorial Misconduct in the 

Criminal Trial.

We turn now to Krogmann’s argument that he was denied a fair 

trial due to prosecutorial misconduct. When Krogmann took the stand 

in his own defense, he testified that he had been diagnosed with bipolar 

disorder, had suffered from depression, and had at times been 

hospitalized. He also testified that on March 13, 2009, he had no intent 

to hurt Jean Smith but was “quite depressed” and had been “suicidal 

just two days previous.” Krogmann also mentioned attempts to commit 

suicide after he was arrested.

The State’s cross-examination of Krogmann then began as follows:

Q. Mr. Krogmann, you were suffering, you said, from 

bipolar disorder on March 13th? A. I was suffering from 

depression, bipolar is my—I’m diagnosed bipolar but I would 

say I was very depressed.

Q. And today you’re suffering from bipolar; isn’t that 

correct? A. When you—when you have bipolar, you—you 

try to medicate or you try to be medicated by medications.

Q. Sir, excuse me, my question was: You have that 

disease today? A. I have bipolar, yes.

Q. Okay. Shot anybody today?

MR. BROWN: Your Honor, I object.

MR. KIVI: I’ll withdraw that question.
13

MR. BROWN: It’s argumentative.

THE COURT: Sustained.

Krogmann argues that the question, “Shot anybody today?” was 

highly inflammatory and necessitates a new trial. We do not believe, 

however, that Krogmann has preserved a claim of prosecutorial 

misconduct. He objected only that the question was argumentative; the 

district court sustained the objection and the question was withdrawn; 

Krogmann then asked for no further relief such as a mistrial. Krogmann 

cannot obtain a new trial based on prosecutorial misconduct when he 

failed to move for a mistrial at the time. State v. Radeke, 444 N.W.2d 

476, 479 (Iowa 1989); State v. Dahlstrom, 224 N.W.2d 443, 449 (Iowa 

1974). Based on the exchange quoted above, the district court had no 

reason to believe that Krogmann wanted anything further done with 

respect to the prosecutor’s improper question.

Furthermore, to prevail on a claim of prosecutorial misconduct, the 

defendant must show both the misconduct and resulting prejudice. 

State v. Ruble, 372 N.W.2d 216, 218 (Iowa 1985). We consider:

“(1) the severity and pervasiveness of misconduct; (2) the 

significance of the misconduct to the central issues in the 

case; (3) the strength of the State’s evidence; (4) the use of 

cautionary instructions or other curative measures; (5) the 

extent to which the defense invited the misconduct.”

State v. Boggs, 741 N.W.2d 492, 508–09 (Iowa 2007) (quoting State v. 

Graves, 668 N.W.2d 860, 869 (Iowa 2003) (internal citations omitted)). 

The most significant factor is the strength of the State’s evidence. Id. at 

509. “Prejudice can, but usually does not, result from isolated 

prosecutorial misconduct.” State v. Anderson, 448 N.W.2d 32, 34 (Iowa 

1989). “Ordinarily a finding of prejudice results from [p]ersistent efforts 
14

to inject prejudicial matter before the jury.” State v. Webb, 244 N.W.2d 

332, 333 (Iowa 1976).

In this case, the prosecutor’s questioning was directed toward a

legitimate trial theme: If Krogmann’s mental condition was such that he 

lacked capacity to commit attempted murder on March 13, 2009, how 

could he function satisfactorily on other occasions despite the same 

mental condition? Still, the phrasing of the question was inflammatory 

and improper. However, we do not believe this isolated incident of 

misconduct was so severe or pervasive that it affected Krogmann’s right 

to a fair trial. We think it unlikely that the prosecutor’s “glib” and 

“sarcastic”9 treatment of a tragic incident would have scored many points 

with the jury; it is just as likely, in our view, that it would have offended 

them.10 We find no reversible error.

V. Conclusion.

For the foregoing reasons, we affirm Krogmann’s convictions.

AFFIRMED.

All justices concur except Zager, J., who takes no part.

 9We borrow these adjectives from the State’s own appellate brief.

10In fact, Krogmann’s counsel tried to use this question against the State during 

his closing argument. This effort stopped when the prosecutor objected and the district 

court sustained the objection.