IN THE COURT OF APPEALS OF IOWA

No. 17-0133

Filed March 21, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

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. AFFIRMED.

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.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2

POTTERFIELD, Presiding Judge.

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 

 

1 Pogwizd filed an application for discretionary review, which our supreme court granted. 

See Iowa Code § 814.6(2)(d) (2016). 
3

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 

 

2 Pogwizd also objected based on relevancy and whether the evidence violated the rule 

against prior-bad-acts evidence, but those rulings have not been challenged on appeal.
4

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 
5

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 
6

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? A. Yes.

Q. So she was visibly scared? A. Yes, she was visibly scared.

Q. And she said she was afraid to go back to her apartment? 

A. She was afraid to go back.

DEFENSE COUNSEL: Objection, hearsay.

THE COURT: Overruled.

Q. You said she was afraid to go back to her apartment? A.

She was afraid to go back.

Q. And that her boyfriend tried to drown her? A. Yes, that 

her—yeah, she was very scared to go back in case her boyfriend 

was there, but she had told me that her boyfriend had tried to drown 

her, yes.

Q. And what happened next? A. I called for the secretary to 

call the police, call 911.

Q. And did anyone arrive from the police department? A. Yes.

Q. Okay. And how soon after she went to your office and you 

sat her in the back did the police arrive? A. Probably five minutes.

. . . .

Q. During this time are the doors of the school locked, 

typically? A. Our doors are always locked. I did tell her that she was 

safe at our school because our doors are locked. The only way you 

can get in is by pressing a button and a doorbell will ring.

Q. And did she mention anything about trying to get into the 

school? A. She was trying to get into—

DEFENSE COUNSEL: Objection, hearsay.

THE COURT: Can you lay further foundation, [prosecutor]?

Q. When she is in the back near your cot and while she was 

visibly shaking and scared, during that time did she say anything 

about trying to get into the school? A. Yeah. She was trying to get 

into the school, but she was also trying to get into other homes to 

find a place to be safe.

Q. And that’s what she told you? A. That she was trying to be 

safe.
7

The district court allowed the school nurse to testify about the girlfriend’s 

statements because it determined they were admissible as excited utterances. 

See Iowa R. Evid. 5.801(2) (“A statement relating to a startling event or condition, 

made while the declarant was under the stress of excitement that it caused.”). 

The application of the exclusion lies largely within the 

discretion of the trial court, which should consider (1) the time lapse 

between the event and the statement, (2) the extent to which 

questioning elicited the statements that otherwise would not have 

been volunteered, (3) the age and condition of the declarant, (4) the 

characteristics of the event being described, and (5) the subject 

matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). 

Here, the time lapse between the assault and the statements was not long. 

The girlfriend had escaped from the residence and then traveled on foot 

approximately one block in an attempt to find help. Although the exact amount of 

time that had lapsed is not clear from the record, it appears it was a matter of 

minutes. Cf. Atwood, 602 N.W.2d at 782 (upholding a statement as an excited 

utterance made “at most two and one-half hours” after the event); State v. Mateer, 

383 N.W.2d 533, 535 (Iowa 1986) (made more than an hour after the event); State 

v. Stafford, 23 N.W.2d 832, 835–36 (Iowa 1946) (made fourteen hours later).

Although the school nurse testified that she asked the girlfriend a general question 

about what had happened, “the fact that a statement was prompted by a question 

does not automatically disqualify it as an excited utterance.” State v. Harper, 770 

N.W.2d 316, 320 (Iowa 2009). Additionally, the school nurse testified she asked 

the question because the girlfriend “kept crying” and the nurse was “trying to calm 

her down, talk to her, get to know her, because I did not know her.” The school 

nurse described that the girlfriend was “crying, shaking, trembling, just was very 
8

scared” and “just really out of control with fear.” Moreover, the girlfriend’s hair was 

still wet, and she described that Pogwizd had tried to drown her. Her condition at 

the time of the statements supports the court’s determination the statements were 

excited utterances. See State v. Watts, 441 N.W.2d 395, 398 (Iowa Ct. App. 1989). 

The subject matter of the girlfriend’s statements was “clearly probative,” explaining 

why her hair was wet, why she ran to the school, and why she was visibly upset. 

See Atwood, 602 N.W.2d at 782.

The circumstances surrounding the girlfriend’s statements supported the 

district court’s determination the excited-utterance exception applied to the 

statements made to the school nurse.

Statements Made to Police Detective. Similarly, the district court allowed 

the police detective to testify as to statements made by the girlfriend because it 

found they were exited utterances. During the State’s direct examination of the 

detective, the following took place:

Q. Do you recall approximately what time you received that 

dispatch? A. It was approximately 9:40 in the morning.

. . . .

Q. And how long did it take you to get to Page School when 

you heard the dispatch? A. Three, four minutes.

. . . .

Q. And how did [the girlfriend] appear to you when you saw

her with nurse Moklestad? A. [The girlfriend] was very upset. She 

was crying. Her hair was wet. She had a little bit of blood on her 

shirt. She was very distraught. Like I said, in and out of like crying, 

weeping to [the nurse], said she was in some pain. Asked her what 

pain she had. She had a little bit of a cut on her lip. She complained 

of some neck and back pain. At that time I called for an ambulance 

to come and check her out, so that was my initial contact.

Q. Okay. And while you’re speaking with her in that back 

room, you said you—based on what she told you, you called 

paramedics? A. Yes, I did.

Q. And did she tell you anything else in that back room before 

paramedics arrived?
9

DEFENSE COUNSEL: Objection. Calls for hearsay.

THE COURT: Overruled. You can answer.

A. Yes. When I was waiting for the paramedics to arrive I 

asked her what had transpired, what had happened. She stated that 

her boyfriend and her had gotten into some kind of an argument and 

she had stated that he was very upset. She stated that he was very

upset that she didn’t want to go to work with him that morning and 

she didn’t know why he was so upset but he was, that he grabbed 

her by the head and pushed her head into the wall. She said he had 

hit her a few times with an open hand and then she said he had drug 

her into the bathroom and pushed her head into the tub with water 

and tried to drown her. Like I said, she was weeping and crying. She 

was very upset. So she’s telling me this in between, you know, crying 

at the same time. She also made the same statement when the 

paramedics arrived to them when they asked her what had happened 

to her.

Here, the analysis is very similar to that regarding the girlfriend’s statements to the 

school nurse. The statements were made only a few minutes after the initial 

statements and the girlfriend was still “very upset,” “crying,” and “very distraught.” 

The officer asked a general question about “what had transpired,” and the girlfriend 

responded with a probative response. 

For the same reasons as stated above, we cannot find the district court 

erred in determining the statements to the officer were excited utterances. See id.

at 783 (applying the same test when the statements were made in response to a 

question by a police officer).

Statements Made to Doctor. Pogwizd objected a number of times during 

the State’s examination of Dr. Howe. The court overruled each of the hearsay 

objections, finding that the statements were admissible as the medical diagnosis 

exception. See Iowa R. Evid. 5.803(4) (providing a statement that is “made for—

and is reasonably pertinent to—medical diagnosis or treatment” and “[d]escribes 

medical history, past or present symptoms or sensations, or the inception or 
10

general cause of symptoms or sensations” is admissible as an exception to the 

rule against hearsay). 

The girlfriend was taken by ambulance from the school to the emergency 

room, where she was seen by Dr. Howe. During direct examination by the State, 

Dr. Howe testified as follows:

Q. And as part of your examination when you see a patient—

you mentioned there is different types of injuries as far as aggressive 

injuries and defensive injuries. Do you look at a patient for these 

things? A. Yes.

Q. Okay. Especially the way she was admitted are you 

looking at these things? A. Yeah. If you’re coming in with an assault,

then we look for signs of injury, and part of that is looking for what 

you think looks like a mechanism of injury and essentially that means 

like does what they say like happened kind of match up with their 

injury.

Q. Okay. And so do you ask questions? A. Yeah.

Q. And why do you ask questions? A. You ask the questions 

to see what happened so you can fix it.

Q. And is that a standard practice? A. Yes.

Q. And is . . . that reasonably relied upon by medical

professionals to ask questions of the patient of the mechanism of 

injury? A. Yes.

Q. Why do you do that? A. So we know how someone was 

injured.

Q. Why don’t you just try to derive it by looking at them without 

even talking to them? A. Because how someone is injured can

sometimes tell you how it’s best to fix it. So you can order the right 

tests to evaluate it in the proper way.

. . . .

Q. And did you ask these types of questions to [the girlfriend] 

at the hospital? A. I did.

Q. And did these questions help in your diagnosis? A. Yes.

Q. And what did you ask [the girlfriend]? A. I asked her about 

what had happened and if she had any injuries.

Q. And what did she say had happened?

DEFENSE COUNSEL: Objection, hearsay.

THE COURT: Overruled.

A. She said she had been assaulted.

Q. Do you ask like who assaulted her or do you— A. She said 

it was her boyfriend.
11

Q. Why do you ask that question like who assaulted? A. Part 

of it is to see if she feels safe because that’s the other thing that we 

try to determine in the emergency room is if people are safe.

Q. Okay. Does that help in kind of reaching if people 

answering your questions if they feel safe in the emergency room? 

A. Yeah. There’s times that we need to call the police to make sure 

someone is safe so they can go home.

Q. And just like any other diagnosis, you don’t want them to 

be placed back in the environment? A. Yes.

. . . .

Q. Does she say what physically happened to her the night 

before? A. Yeah. Is it okay if I look at my notes?

. . . .

DEFENSE COUNSEL: Objection, relevance. 403. Hearsay.

THE COURT: Hearsay overruled for reasons already 

established on the record outside of the jury.

. . . .

Q. What did she tell you happened the night before?

DEFENSE COUNSEL: Same objections, Your Honor.

THE COURT: Okay. The Court is going to overrule on 

hearsay. I think it does talk about excited utterance circumstances 

as well as the medical, statements of medical condition testimony. 

. . . .

Q. What did she tell you? A. The night before he had thrown 

her down and struck her head against a door several times.

Q.: And did she tell you what happened that morning between 

her and Dominic? A. They got in another fight.

. . . .

Q. And what did she say had happened? A. At that time she 

told me that he had thrown her against the floor, drug her by her hair, 

hit her head against the floor and held her head under water in the 

bathtub.

Q. And does she say anything about being fearful of him? A. 

She was afraid for her life.

DEFENSE COUNSEL: Objection, hearsay. Move to strike.

THE COURT: Overruled for both excited utterance and 

medical condition testimony. . . .

Q. And did she say anything about what she felt was going to 

happen to her that morning by being dragged and placed in the 

bathtub? A. She thought he was attempting to drown her.

Q. And in your report you mention that she stated “I was 

scared he was going to kill me this time.”

DEFENSE COUNSEL: Objection. Leading, hearsay.

THE COURT: Leading part is sustained.

Q. Did she say anything about being in fear of whether or not 

he was going to kill her this time? A. Yeah. Her exact words as I put 
12

in my note were quote I was scared he was going to kill me this time 

end quote.

“The rationale for the [medical-diagnosis] exception is that statements made by a 

patient to a doctor for the purposes of medical diagnosis or treatment are ‘likely to 

be reliable because the patient has a selfish motive to be truthful.’” State v. Smith, 

876 N.W.2d 180, 185 (Iowa 2016) (citation omitted). Thus, the question is whether 

each of the statements admitted into evidence over Pogwizd’s objection was

admissible for another reason or was “reasonably pertinent to diagnosis or 

treatment.” Id. 

Following Pogwizd’s objections, Dr. Howe was allowed to testify as to 

statements made by the girlfriend that “she had been assaulted”; “he[3] had thrown 

her down and struck her head against a door several times”; “she thought he was 

attempting to drown her”; and she had thought “he was going to kill [her] this time.” 

We believe the first three statements fall within the medical-diagnosis 

exception, as they provided the treating physician with the mechanisms of injury 

the girlfriend complained of and provided insight into injuries she may have

sustained that were less immediately apparent, such as to her lungs or skull. The 

girlfriend’s statement regarding her belief Pogwizd intended to kill her “this time”4

 

3

In Smith, our supreme court considered whether a statement identifying the perpetrator 

of the physical injury was necessary information for effective medical treatment. 876 

N.W.2d at 186. The court declined to create a categorical rule allowing the admission of 

such statements under the medical-diagnosis exception. Id. at 188. Instead, the trial court 

must make a case-by-case determination depending on the foundation laid by the medical 

personnel. Id. However, we need not determine if such an identification would meet the 

test here, as Pogwizd did not object to the doctor’s testimony that the girlfriend identified 

“her boyfriend” as the assailant. 

4 Pogwizd did not object at pre-trial, trial, or on appeal that the question about the fight the 

night before this event or the statement he was going to kill her “this time” suggested prior 

bad acts.
13

provided scant insight for either diagnosis or treatment. However, even if this final 

statement does not fall within the medical-diagnosis exception, it is admissible as 

an excited utterance.

The girlfriend was taken from the school to the hospital by ambulance, 

where she was seen by Dr. Howe in the emergency room. Dr. Howe testified that 

when she saw her, the girlfriend was “anxious,” “tearful,” and “upset.” The doctor 

asked what happened and if the girlfriend had sustained any injuries, and the 

girlfriend responded with the statement that Pogwizd had attempted to drown her 

and she “was scared he was going to kill [her] this time.” Because the amount of 

time between the assault and the statement was not long—within an hour,5the 

questions by Dr. Howe were general in nature, the girlfriend was still “under the 

stress of excitement that” the assault caused, and the statements were probative, 

the girlfriend’s statement that she believed Pogwizd “was going to kill [her] this 

time” was admissible as an excited utterance. 

III. Conclusion.

Because each of the claims Pogwizd complains of were properly admitted 

pursuant to an exception to the hearsay rule and his claim regarding the 

Confrontation Clause was not preserved for our review, we affirm.

AFFIRMED.

 

5 Dr. Howe testified the girlfriend was admitted at 9:41 a.m.; Detective Mayse testified was 

originally dispatched to the school at “approximately 9:40 in the morning.”