State of Iowa v. Robert Paul Krogmann

                    IN THE COURT OF APPEALS OF IOWA

                                  No. 21-1617
                              Filed March 8, 2023


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT PAUL KROGMANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Delaware County, Linda M.

Fangman, Judge.



      Robert Krogmann appeals his convictions for attempted murder and willful

injury causing serious injury. REVERSED AND REMANDED FOR NEW TRIAL.



      Jamie L. Hunter and Angela Campbell of Dickey, Campbell, & Sahag Law

Firm, PLC, Des Moines, for appellant.

      Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Heard by Greer, P.J., Chicchelly, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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GAMBLE, Senior Judge.

       Robert Krogmann appeals following his convictions for attempted murder

and willful injury causing serious injury. We reverse and remand for a new trial.

I. Background Facts and Prior Proceedings

       Krogmann and J.S. began a relationship in 2007. But they broke up in

January 2009. Then J.S. reached out to Krogmann to get a small kitchen appliance

back from him; they got back together. But things were not the same, instead they

were tense.    J.S. discovered Krogmann was communicating with women on

Match.com, so she ended their relationship. Krogmann wanted her back and

would call her fifty times a day for “days on end.” He even showed up at her house

unannounced while she was gone, and J.S.’s brother, Michael, had to convince

Krogmann to leave. But J.S. never felt like Krogmann was a danger, and she even

went to visit him at his house after they broke up.

       Around this same time, Krogmann’s family became increasingly concerned

about him. His older brother always had concerns about Krogmann’s mental

health, but he believed Krogmann’s mental health was declining even further.

Krogmann’s sister-in-law thought Krogmann’s mental health was the worst she had

ever seen it and that Krogmann was fixated on J.S. Krogmann had told his mother

he wanted to go to J.S.’s house and kill himself there. His son, Jeff, believed

Krogmann was suicidal, so he took Krogmann’s long guns away from him on

March 11.

       This all led up to March 13. J.S. was having a “lazy morning, drinking

coffee” because she was off of work that week. Then Krogmann showed up at

J.S.’s house. He asked to come inside, and J.S. let him in. He asked if they could
                                            3


get back together; she said no. He responded by asking for a hug, and she

obliged. J.S. turned around to get her cup of coffee and when she turned back

around, Krogmann was pointing a handgun at her.

       J.S. asked Krogmann if he was going to shoot her, he replied that they were

both going to die together and “[i]f he couldn’t have [her], then no one was gonna.”

Then he shot her, but she couldn’t feel anything. He said “he didn’t want to spend

the rest of his life in jail and he was gonna finish it and then he shot again.” “[H]e

said he was gonna kill [her] and then was gonna shoot himself.” J.S. asked him to

call 911, but he said he could not because he purposefully left his phone in the car

so he would not be able to call for help.

       Krogmann shot J.S. a third time, and the bullet went through her spine,

causing her to fall immediately. She asked him to get her pillow and a rosary. The

two said a prayer together before Krogmann remarked he didn’t think it would take

her that long to die.

       Eventually, Krogmann retrieved J.S.’s phone and called Jeff to say he shot

J.S. and Jeff needed to call 911 right away. Jeff left work for J.S.’s house and

called 911. As some point, Krogmann also called 911 and informed dispatch that

“someone had been shot.” Meanwhile, Krogmann let J.S. call her mother. She

told her mother that she loved her and asked her mother to tell her father and

daughters that she loved them, and then she asked her mom to call Michael.

Krogmann responded by ending the phone call and turning off her phone.

Meanwhile, J.S.’s mother called Michael and told him to get to J.S.’s home as fast

as he could.
                                           4


       Jeff showed up and took the gun away from Krogmann. Michael arrived

just after Jeff and chased Krogmann out of the house with a broom. Krogmann

and Jeff left while Michael stayed with J.S.

       Emergency personnel took J.S. to a regional medical center so she could

be airlifted to the University of Iowa Hospital, where she remained for three weeks.

She underwent multiple surgeries. As a result of her injuries, she has no strength

in one of her hands, walks with a cane due to a lack of feeling in her feet, and

wears a brace on her leg from the knee down because her ankle “doesn’t work at

all.” She is in constant pain every day.

       As for Krogmann, officers followed Jeff to Krogmann’s house and took

Krogmann into custody as he headed back home. Once in custody, Jack Liao, a

special agent with the Iowa Division of Criminal Investigation, was assigned to

interview Krogmann. That interview was videotaped. Special Agent Liao found

Krogmann seated in a restraint chair that restrained his arms and legs. Special

Agent Liao asked for the arm restraints to be removed because he would not

normally interview suspects in restraint chairs. A deputy loosened the restraints

on Krogmann’s arms and later his hands, but Krogmann remained restrained in

the chair by his legs. At the beginning of the interview Krogmann began by asking

if J.S. was okay. Then Krogmann went over what happened at J.S.’s home that

morning. He admitted shooting J.S. At times during the interview Krogmann talked

very softly or in a whisper. And sometimes there were long pauses in between

Special Agent Liao’s questions and Krogmann’s answers.

       The State charged Krogmann with attempted murder and willful injury

causing serious injury. The jury in his first trial found Krogmann guilty of both
                                           5


counts. Krogmann appealed, and the supreme court affirmed his convictions.

State v. Krogmann, 804 N.W.2d 518, 520 (Iowa 2011).                 Then he sought

postconviction relief (PCR), which the PCR court denied. This court affirmed the

PCR court. Krogmann v. State, No. 15-0772, 2017 WL 363226, at *10 (Iowa Ct.

App. Jan. 25, 2017). However, the supreme court granted further review, found

structural error, and granted Krogmann a new trial.         Krogmann v. State, 914

N.W.2d 293, 318–25 (Iowa 2018).

         Krogmann filed notice of his intent to rely on the defense of diminished

capacity on retrial. The State filed a motion in limine seeking to exclude, among

other things, “[a]ny out of court statements made by the defendant that are offered

by the defendant at trial and not subject to an exception.” Krogmann resisted.1

Krogmann explained the video of Special Agent Liao’s interview of him would

contain his out-of-court statements but could be offered for purposes other than to

prove the truth of the matter asserted like to demonstrate his mental and emotional

state and his ability to follow the conversation around the time of the shooting.

Following a hearing on the parties’ motions in limine, the court determined

Krogmann’s out-of-court statements were

         [g]enerally . . . considered hearsay by [Iowa] Rule of
         Evidence 5.801(d)(2)(A) as well as State v. Veal, 564 N.W.2d 797,
         808 (Iowa 1997). However, an exception to those general rules may
         be applicable. As such, [that portion] of the State’s motion in limine
         is sustained unless and until a proper foundation is laid for an
         exception.

It filed an additional order specifically addressing Krogmann’s ability to introduce

the video of Special Agent Liao’s interview with Krogmann—exhibit A. The court


1   Krogmann also filed a motion in limine.
                                          6


determined exhibit A would not be admissible because it amounted to hearsay

without an exception and Krogmann could not offer his own out-of-court

statements under Veal, 564 N.W.2d at 808.

       The case proceeded to a jury trial.       The parties presented numerous

witnesses, including respective expert witnesses who testified as to Krogmann’s

ability to form specific intent. Special Agent Liao testified. During his testimony,

he noted his entire interview with Krogmann was recorded.               In response,

Krogmann made an offer of proof for exhibit A. Counsel explained:

               So we think that Mr. Liao’s testimony has opened the door to
       offering that exhibit. It is the best evidence of what the substance of
       Mr. Liao’s testimony was. It shows Mr. Krogmann’s demeanor. It
       shows time frames. It shows how many times and how he was being
       questioned and the State did elicit testimony from Mr. Liao about
       what was going on in the interview. They were asked about—he was
       asked, did he seem to track and understand; was he following the
       conversation; was this a normal conversation; were these—this was
       not unusual. There was nothing unusual about the interview. And I
       think that the video itself actually shows the opposite, Your Honor. It
       shows the demeanor of the defendant as being confused at times,
       not responsive at times. There’s long pauses. He’s talking so softly,
       it’s not a normal conversation. It’s not just someone speaking softly,
       it is something different. It is showing, we think, the demeanor of the
       defendant and the current mental state of the defendant at that
       particular time.
               So because—the officer is also shown a transcript, an
       unofficial transcript of the recording by the State and the best
       evidence of that interview is simply the actual interview. So we would
       offer Exhibit A as a court’s exhibit for an offer of proof.

The court reaffirmed its pre-trial rulings on exhibit A and found Special Agent Liao’s

testimony did not open the door to the video.

       Following deliberations, the jury returned guilty verdicts on both counts.

Krogmann filed motions in arrest of judgment and for new trial, which the district

court denied.
                                          7


       Krogmann appeals.

II. Discussion

       A. Sufficiency of the Evidence2

       We review Krogmann’s challenge to the sufficiency of the evidence for

corrections of errors at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Guilty verdicts must be supported by substantial evidence, which is “that upon

which a rational trier of fact could find the defendant guilty beyond a reasonable

doubt.” State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010) (citation omitted).

While we consider all evidence, we view it in the light most favorable to the State.

Id. So “[e]vidence is not insubstantial merely because we may draw different

conclusions from it; the ultimate question is whether it supports the finding actually

made, not whether the evidence would support a different finding.” State v. Lacey,

968 N.W.2d 792, 800–01 (Iowa 2021) (citation omitted).

       Krogmann appears to only challenge the sufficiency of the evidence

establishing his specific intent to kill J.S. with respect to his attempted-murder

conviction. The marshalling instruction3 for attempted murder required the jury to

find the following three elements satisfied:



2 Section V of Krogmann’s appellate brief argues the evidence at trial was
insufficient to support his convictions and the weight of the evidence did not
support his convictions. These are two distinct inquires, and only the former
implicates double jeopardy. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
Because success on the sufficiency challenge would require us to remand for
judgment of acquittal and end our inquiry, we start with that issue and bifurcate the
two claims raised in section V of Krogmann’s appellate brief. Because we
conclude Krogmann is entitled to new trial on an evidentiary issue, we do not reach
his weight-of-the-evidence challenge.
3 Krogmann did not object to instruction eighteen, the marshalling instruction.

“Where, as here, the jury was instructed without objection, the jury instructions
                                         8


              1. On or about March 13, 2009, the defendant shot [J.S.]
              2. By his acts, the defendant expected to set in motion a force
       or chain of events which would cause or result in the death of [J.S.]
              3. When the defendant acted, he specifically intended to
       cause the death of [J.S.]

Krogmann asserts he could not have had the specific intent to kill J.S. because,

even if he was capable of forming such specific intent, the evidence establishes

he had additional ammunition in his revolver but chose not to shoot J.S. again and

he sought out help for J.S.—contradicting a finding that he intended to kill J.S. We

disagree. J.S. testified Krogmann made several statements about intending to kill

her as he shot her three times at close range with a high-caliber handgun. He left

his phone in his vehicle during the shooting so he wouldn’t be tempted to call for

help. Viewing this evidence in the light most favorable to the State, we conclude

the State established sufficient evidence Krogmann specifically intended to cause

the death of J.S. when he shot her three times.

       B. Exhibit A

       We move on to consider the admissibility of exhibit A. We generally review

evidentiary rulings for an abuse of discretion. Powers v. State, 911 N.W.2d 774,

780 (Iowa 2018). “An abuse of discretion occurs when the trial court exercises its

discretion ‘on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citation

omitted). However, “[w]e review evidentiary rulings on hearsay for errors at law.”

State v. Skahill, 966 N.W.2d 1, 8 (Iowa 2021).




become the law of the case for the purposes of reviewing the sufficiency of the
evidence.” State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).
                                         9


       Krogmann’s challenge to the court’s exclusion of exhibit A is persuasive on

two fronts: the video did not amount to hearsay and it should have been admitted

under the best evidence rule.4

       Hearsay is an out-of-court statement offered “into evidence to prove the

truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c). A statement

can be an oral or written assertion or even nonverbal conduct if intended as an

assertion.5 Iowa R. Evid. 5.801(a). Hearsay is not admissible unless an exception

applies. See Iowa R. Evid. 5.802. However, we need not consider whether a

hearsay exception applies when evidence “is not offered to show the truth of the

matter asserted” because it is not hearsay. State v. Plain, 898 N.W.2d 801, 812

(Iowa 2017).

       We do not just blindly accept an offering party’s explanation that proposed

evidence would not be used for the truth of the matter asserted. See State v.

Hollins, 396 N.W.2d 701, 705 (Iowa 1986). “Rather, we review the relevant record

to determine if the purpose voiced by the [offering party] can reasonably be found

to be the real purpose for which the challenged testimony was offered.” Id. “For

us to conclude the [the offering party]’s purpose in offering challenged [evidence]


4 Krogmann argues Special Agent Liao’s testimony “opened the door” to the
admissibility of the video under the rule of completeness. Indeed, our supreme
court has recognized, “[T]he rule of completeness in Iowa Rule of Evidence 5.106
might be characterized as posing an open-the-door concept.” State v. Huser, 894
N.W.2d 472, 507 (Iowa 2017). However, while Krogmann mentioned that the State
“opened the door to offering” the video in his argument to the district court, he did
not raise the rule of completeness at the trial that he now asserts on appeal, so we
decline to address it. See Meier v. Senecaut, 641 N.W.2d 352 (Iowa 2002).
5 Nonverbal conduct amounts to a statement when it conveys information; for

example, if someone acts out prior events to explain what happened to them, that
amounts to a nonverbal assertion or statement. See State v. Dessinger, 958
N.W.2d 590, 599 (Iowa 2021).
                                          10


was in fact to explain” or demonstrate some responsive conduct or behavior, “that

conduct [or behavior] must itself be relevant to some aspect of the [offering party]’s

case.” Id. at 705–06. If the challenged evidence is relevant to the offering party’s

case only if the statements contained in the challenged evidence are accepted as

true, then the challenged evidence is actually being offered for the truth of the

matter asserted, amounting to inadmissible hearsay unless some hearsay

exception applies. Id. at 706.

       With that in mind, we turn to Krogmann’s desired use of exhibit A. The State

contends the real reason for Krogmann’s offer of the video was to put his out-of-

court statements in front of the jury without cross-examination. The State posits

he sought to prove the truth of his statements under the guise of seeking sympathy

for his mental illness. So, according to the State, Krogmann’s statements are

hearsay and no exception applies. But the State’s argument is unpersuasive. The

substance of Krogmann’s statements is inculpatory. He confesses to shooting J.S.

and goes along with many of Special Agent Liao’s questions.              And at oral

argument, the State had difficutly identifying a statement that Krogmann offered to

prove the truth of the matter asserted.

       Krogmann makes it clear that he did not want to admit the video for the

purpose of introducing his out-of-court statements. Certainly, if he sought to admit

his verbal statements made in the video those would amount to hearsay. But the

real reason Krogmann sought to introduce the video was to show his demeanor

during the interview to demonstrate his mental instability on the day of the

shooting. And Krogmann’s mental instability is at the heart of his defense.
                                        11


       Krogmann’s demeanor during the interview was hotly contested. Special

Agent Liao testified on direct examination that Krogmann was able to track,

understand, and follow the conversation. He could comprehend and stay on topic.

He was responsive and volunteered information.         He was not intoxicated or

impaired by drugs.      Special Agent Liao agreed on cross-examination that

Krogmann was talking quietly and whispering at times, there were long pauses,

and it was not a quick conversation. But he also testified it was not a fluid

conversation and it seemed Krogmann was “cognizantly thinking of almost a short

answer as opposed to a normal conversation.” Krogmann’s conduct on the video

was relevant to establish his mental instability regardless of whether the

statements made in the video are considered as true. See id.

       We conclude Krogmann really did seek to admit the video for a purpose

other than to introduce the statements in the video for their truth.       Instead,

Krogmann offered the video as evidence of his diminished capacity. The State’s

expert formed his opinion that Krogmann had the capacity to form specific intent

without even watching the video. But Krogmann’s expert found the video of

Krogmann writhing around in his chair, panting, not looking at the officer, covering

his face, and looking away to be informative in coming to her opinion that

Krogmann lacked capacity to form specific intent. From the video, the jury would

have been able to observe his conduct, demeanor, and ability to follow a

conversation. None of that amounts to hearsay. And contrary to the State’s

position, his nonverbal conduct did not amount to out-of-court statements because

his conduct was not intended to convey information—rather it is merely indicative

of his state of mind on the day of the shooting. See Dessinger, 958 N.W.2d at 599.
                                           12


       In addition to misclassifying the evidence sought to be admitted as hearsay,

the district court was also misguided in relying on Veal. 564 N.W.2d at 808–09.

In Veal, the defendant sought to admit her own out-of-court statements. Id. at 808.

Specifically, Veal attempted to admit her statements under the excited utterance

exception, as statements by a party opponent, and statements against her

interest.6 Id. at 808–09. But Veal is inapplicable to the present case because

Krogmann is not attempting to introduce his out-of-court statements like the

defendant in Veal. Instead, he is attempting to introduce his conduct and behavior

following the shooting to demonstrate his state of mind. So we think the district

court missed the mark by excluding exhibit A under Veal.

       Instead, we think the present case is more akin to State v. Decker, 744

N.W.2d 346, 356 (Iowa 2008), which addressed the admissibility of an

interrogation video wherein permissible and impermissible evidence were

intertwined. In Decker, the court permitted the State to introduce the video “for the

limited purpose of allowing the court to ‘see the defendant and observe his

demeanor.’” 744 N.W.2d at 356. That is what Krogmann sought to do. “Our rules

of evidence allow evidence to be admitted for a limited purpose even though that

same evidence is inadmissible for another purpose.” Id. “When admissibility is

limited, the court ‘restrict[s] the evidence to its proper scope and instruct[s] the jury




6  Veal also raised a constitutional claim based on the Iowa and federal
Constitutions, claiming her right to present a defense was impinged. Veal, 564
N.W.2d at 809. The supreme court concluded there were no constitutional
implications because the proposed evidence did not reach the heart of the case
and “a reasonable jury could not have reached a different verdict based on the
statements Veal sought to introduce.” Id.
                                         13


accordingly.’” Id. (alterations in original) (quoting Iowa R. Evid. 5.105). There is

no reason that could not have happened here.

       We are cognizant that Decker was a bench trial, while Krogmann had a jury

trial, and Decker warned of the potential danger of prejudice even with a limiting

instruction in jury trials. See id. But we do not have that concern under these facts

because Krogmann has already admitted to the most prejudicial and incriminating

fact—he admits to shooting J.S. And the specifics of Krogmann’s statements in

the video are almost indiscernible because he speaks so softly during the

interview.

       We also think after the State elicited testimony from Special Agent Liao

about his interview with Krogmann the “best evidence” rule required admission of

exhibit A. “The ‘Best Evidence’ rule requires production of original documents

unless their absence is sufficiently explained.” State v. Khalsa, 542 N.W.2d 263,

268 (Iowa 1995). The purpose of the best evidence rule is to secure the most

reliable information as to the contents of documents when those terms are

disputed. Id. So “[w]hen a party is attempting to prove the contents of a writing,

recording, or photograph, the courts require the original to be produced, unless it

falls under exceptions carved out by the Iowa Rules of Evidence.” Id. Here there

is a slight nuance, the content of the recording sought to be proven isn’t the terms

of the conversation between Krogmann and Special Agent Liao but instead how

Krogmann was acting during the conversation.

       The State and Krogmann largely disagreed as to how Krogmann acted

during the interview, making the best evidence rule applicable. See id. (concluding

the best evidence rule did not apply when the defendant objected to the
                                        14


introduction of transcripts of properly admitted audiotapes but did not contest the

reliability or accuracy of the transcripts). And the video showing Krogmann during

the interview is the best evidence.

      Special Agent Liao watched the video of the interview within forty-eight

hours before he testified. He had a difficult time remembering the details of the

interview, which is understandable considering more than twelve years had

passed. Nevertheless, Special Agent Liao testified to his impressions of how

Krogmann acted during the conversation. And Krogmann’s expert described what

she saw on the video. Her description of Krogmann’s conduct was different from

Special Agent Liao’s.    But any uncertainty as to what transpired during the

interview could have been put to bed by admitting exhibit A. As the old saying

goes, “A picture is worth a thousand words, although here, we have a video—a

series of pictures.” Ransdell v. Huckleberry Ent., LLC, No. 19-0545, 2020 WL

5650728, at *1 (Iowa Ct. App. Sept. 23, 2020). “A video is often the best evidence

of the [event] as opposed to someone describing it.” Id. at *7. Likewise, the video

here is the best evidence of Krogmann’s conduct and demeanor right after the

shooting rather than having Special Agent Liao and the expert describe it. See

State v. Williams, 197 N.W. 991, 994 (Iowa 1924) (“The photographs themselves

were the best evidence of what they showed.”). The jury should have been allowed

to see the video.

      Taking all of this into consideration, we conclude the court erred in excluding

exhibit A as hearsay and abused its discretion in excluding it on other grounds.

See State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014) (recognizing hearsay

challenges are reviewed for legal error and all other evidentiary challenges are
                                            15


reviewed for an abuse of discretion). Now we must determine whether exclusion

of exhibit A was harmless. “Reversal is required for evidentiary error when ‘the

error affects a substantial right of the party.’” State v. Montgomery, 966 N.W.2d

641, 661 (Iowa 2021) (quoting Iowa R. Evid. 5.103(a)).                “We presume the

defendant’s rights have been prejudiced unless the State can affirmatively

establish otherwise. The State overcomes the presumption of prejudice if it can

establish that there was overwhelming evidence of the defendant’s guilt.” Id.

(citation omitted). Here, exhibit A goes to the heart of Krogmann’s defense of

diminished responsibility. And the parties elicited conflicting expert testimony as

to Krogmann’s ability to form specific intent. So we conclude the exclusion of

exhibit A was not harmless and retrial is necessary. However, we caution that

exhibit A should not be admitted without jury instructions limiting the scope of the

jury’s consideration of the exhibit.7

       C. Remaining Claims

       “Because we find the case must be remanded for a new trial, we will

consider any remaining issues that may arise again on retrial.” Zaw v. Birusingh,

974 N.W.2d 140, 168 (Iowa Ct. App. 2021) (quoting Kinseth v. Weil-McLain, 913

N.W.2d 55, 73 (Iowa 2018)). As for Krogmann’s numerous remaining claims, we

only address Krogmann’s claim that his convictions should merge.



7 A limiting instruction is an important tool for the district court to utilize to minimize
the potential for any undue prejudice. See State v. Martin, 704 N.W.2d 665, 673
(Iowa 2005); see also State v. Esse, No. 03-1739, 2005 WL 2367779, at *4 (Iowa
Ct. App. Sept, 28, 2005) (“Pursuant to Iowa Rule of Evidence 5.105, when
evidence is admissible for one purpose, but not for another, the district court shall,
upon request, restrict the evidence to its proper scope and give a limiting
instruction.”).
                                        16


       Krogmann already raised this claim in his PCR action. Krogmann, 914

N.W.2d at 325. Our supreme court addressed the issue because it was likely to

arise again and concluded merger does not apply to attempted murder and willful

injury causing serious injury. Id. The supreme court was correct that the issue

would reoccur. Krogmann puts forth the same argument as he did in his PCR

action. He recognizes current supreme court precedent forecloses his claim but

argues those cases, including his own PCR appeal, were wrongly decided. We do

not have the ability to overturn supreme court precedent. See State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa

Supreme Court precedent.”).      Moreover, as the State highlights, Krogmann’s

challenge is barred by issue preclusion. “Issue preclusion is a type of res judicata

that prohibits parties ‘from relitigating in a subsequent action issues raised and

resolved in [a] previous action.’” Barker v. Iowa Dep’t of Pub. Safety, 922 N.W.2d

581, 587 (Iowa 2019) (alteration in original) (citation omitted).       So should

Krogmann be convicted of both counts on retrial, the offenses will not merge as

the supreme court already determined. Krogmann, 914 N.W.2d at 325.

III. Conclusion

       Sufficient evidence supports Krogmann’s conviction for attempted murder,

so he is not entitled to judgment of acquittal. However, the district court should

have permitted Krogmann to introduce exhibit A because it was not hearsay and it

was the best evidence of Special Agent Liao’s interview of Krogmann. So we

reverse the district court’s ruling on exhibit A. We reverse Krogmann’s convictions

and remand for new trial.

       REVERSED AND REMANDED FOR NEW TRIAL.