State of Iowa v. Robert Paul Krogmann

IN THE SUPREME COURT OF IOWA

No. 21–1617

Submitted September 13, 2023—Filed December 1, 2023

STATE OF IOWA,

Appellee,

vs.

ROBERT PAUL KROGMANN,

Appellant.

On review from the Iowa Court of Appeals.

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

Fangman, Judge.

The State seeks further review of a court of appeals decision ordering a

new trial in an attempted murder case because of an error in the application of

the hearsay rule. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED; WRIT OF CERTIORARI GRANTED AND SUSTAINED IN
PART; REMANDED FOR REDETERMINATION OF COSTS.
Mansfield, J., delivered the opinion of the court, in which Christensen,

C.J., and Waterman, McDonald, and May, JJ., joined. McDermott, J., filed a

dissenting opinion, in which Oxley, J., joined.

Angela Campbell (argued) and Jamie L. Hunter of Dickey, Campbell &

Sahag Law Firm, PLC, Des Moines, for appellant.

Brenna Bird, Attorney General, and Martha E. Trout (argued), Assistant

Attorney General, for appellee.
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MANSFIELD, Justice.
I. Introduction.

Fourteen years ago, Robert Krogmann fired three shots from a .44

Magnum at close range at his former girlfriend, nearly killing her. He was

convicted of attempted murder and willful injury causing serious injury. His

convictions were affirmed on direct appeal. State v. Krogmann, 804 N.W.2d 518,

527 (Krogmann I) (Iowa 2011).

In 2018, on postconviction relief, we granted Krogmann a new trial

because an improper asset freeze had interfered with his defense rights.

Krogmann v. State, 914 N.W.2d 293, 326 (Krogmann II) (Iowa 2018). The State

retried Krogmann, and in 2021, he was again convicted of attempted murder and

willful injury. Krogmann appealed once more, and the court of appeals has now

vacated his convictions and ordered a third trial. The court of appeals reasoned

that the district court erroneously excluded from evidence a video of Krogmann’s

interview with law enforcement right after the shooting; Krogmann sought to

introduce the video to support his defense of diminished capacity. The court of

appeals determined that the interview was not hearsay because it wasn’t being

used to show the truth of what Krogmann said but to illustrate Krogmann’s
behavior and demeanor after the shooting.

On further review, we now hold that the court of appeals was right about

the legal significance of the interview but wrong about its practical significance.

The video was not hearsay: Krogmann’s statements were inculpatory, not

exculpatory, and the real purpose of using the video was to show Krogmann’s

mental state during the interview, a subject on which a prosecution witness had

already testified. So the video should have been admitted at trial. However, the

refusal to admit the video didn’t affect Krogmann’s substantial rights. All things
considered, the video would not have provided meaningful help to Krogmann’s
 3

diminished capacity defense. Because we find the error with respect to the video

harmless, and we also reject Krogmann’s other claims of error, we conclude that

Krogmann’s convictions and sentence should be affirmed. We do, however,

uphold certain objections by Krogmann to the award of costs and remand only

for recalculation of those costs.

II. Background Facts and Procedural History.

A. Background Facts. Robert Krogmann and J.S. began dating in 2007.

At the time, both were divorced and in their forties. They had known each other

since childhood, having attended the same middle school and high school in

Delaware County.

Krogmann had struggled with certain mental health issues over the years

and had been diagnosed with depression and bipolar disorder. He had been

hospitalized for treatment a few times, the most recent being in 2006.

In late January 2009, Krogmann decided to break off the relationship with

J.S. Then for a while, the couple got back together. But J.S. noticed that

Krogmann was communicating with other women through an online dating site.

J.S. decided to end the relationship once and for all. As she put it, “I told him

that I wasn’t going to do it anymore and that I was done.”
Krogmann did not accept that decision. He called and texted J.S. many

times a day, brought flowers to her at work, and showed up at her home in

Dundee unannounced. J.S. told Krogmann that he needed to move on.

Krogmann worked as a farmer and also as a part-time sales representative

at a John Deere farm equipment dealership. On March 12, Krogmann’s employer

asked him to travel the next day to Sigourney, about two hours away, to pick up

a new planter. Krogmann said he could not do that. That evening, Krogmann

played cards with his friends and appeared to be acting normally.
 4

On March 13, around 7:40 a.m., Krogmann called the dealership and

reiterated that he could not go to Sigourney. However, Krogmann did agree to

pick up a check from a dealership customer who lived about twenty minutes

away. Krogmann had retrieved the check by about 8:15 a.m. that morning.

That same day, around 8:30 a.m., Krogmann appeared—again without

warning—at J.S.’s home. She let him in and they talked for a little while in the

kitchen. Krogmann asked if they could get back together and J.S. said no.

Krogmann then asked if he could give J.S. a hug and she agreed.

J.S. went to get a cup of coffee. When she turned back around, Krogmann

was pointing a handgun at her—a .44 Magnum. Krogmann told J.S. that they

were going to die together that day. He added that if he couldn’t have her, no one

could.

Krogmann fired his first shot, striking J.S. in the stomach. J.S., still

standing, asked Krogmann to call 911. Krogmann replied that he had left his

phone in his vehicle on purpose so he wouldn’t be able to call. He said he was

going to kill her and then kill himself. He told her that he was not going to spend

the rest of his life in jail.

Krogmann fired a second shot, which went through J.S.’s hand and arm.
J.S. again begged Krogmann to call 911, but he repeated that he would not do

so. Krogmann also refused to get J.S.’s phone out of the bedroom.

Krogmann fired a third shot, which struck J.S. in the spine and caused

her to collapse on the ground. J.S. again asked Krogmann for her phone; he once

more declined. Krogmann did agree to get J.S. a pillow and her rosary. While

doing so, he told her, “I really didn’t think it would take this long for you to die.”

Krogmann then retrieved J.S.’s phone from the other room and used it to

call his son Jeff. J.S. heard Krogmann say, “I did it. I shot [J.S.].” Jeff had
 5

actually taken some of Krogmann’s guns from him two days before the shooting

because he was concerned that Krogmann was going to hurt himself.

J.S. believed she was going to die. She wanted to speak to her mother one

last time. Krogmann dialed J.S.’s mother on the phone. J.S. told her mother that

she loved her. She asked her mother to tell her father and her girls that she loved

them as well and to call her brother, M.S.

At this point, Krogmann ended the phone call with J.S.’s mother and used

the phone to call 911 himself. Krogmann provided the dispatcher with J.S.’s

home address and asked her to send an ambulance because “someone’s been

shot.” The dispatcher asked who had been shot and how they had been shot.

Krogmann didn’t respond and continued to ask for an ambulance. He then hung

up.

The dispatcher called back, told Krogmann that she had paged an

ambulance, and asked Krogmann to tell her “what’s going on.” Krogmann said

that J.S. had been shot. He reiterated, “just please hurry.” Again, the dispatcher

asked, “how did she get shot and where was she shot at.” Krogmann responded,

“just send an ambulance.”

The dispatcher pressed for more information:

911 dispatcher: Please tell me what happened? What
happened?

Krogmann: A squabble, a squabble between the two of us.

911 dispatcher: A squabble?

Krogmann: Um-hm.

911 dispatcher: Okay, and where is the gun now?

Krogmann: I have it.

911 dispatcher: You have it?

Krogmann: Um-hm.
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911 dispatcher: And how did she get shot?

Krogmann: I shot her.

911 dispatcher: You shot her?

Krogmann: Um-hm.

Krogmann asked the operator to hurry and to “please save her.”

Soon thereafter, people began arriving at J.S.’s home. Krogmann’s son Jeff

came in and took Krogmann’s gun away. J.S.’s brother, M.S., showed up and

used a broom to chase Krogmann out of the house. Several minutes later, law

enforcement and first responders arrived.

When law enforcement reached the scene, Krogmann had already

departed, and Jeff was in the process of leaving “in a hurry.” Law enforcement

followed Jeff to his father’s home. Jeff then called his father and asked him to

come home. Krogmann drove home as requested by his son and was observed to

be driving properly. Krogmann stopped the vehicle at the house, exited on

command by law enforcement, and was apprehended. The officers recounted

that Krogmann did not seem to be impaired, was calm, and cooperated with their

requests. He did not resist. One officer commented that “there was nothing . . .

out of the ordinary” about Krogmann’s arrest. When placed in the patrol car,

Krogmann asked how J.S. was doing.

Krogmann was taken to the Delaware County Sheriff’s office, where he was

left in the office but placed in a restraint chair that bound him by his shoulders,

hands, and feet. Within about an hour, Special Agent Jack Liao of the Iowa

Division of Criminal Investigation arrived and interviewed Krogmann. Krogmann

confessed to shooting J.S. and said he had done “a terrible thing.” This interview

was recorded on video. During the course of the interview, Agent Liao arranged

for Krogmann’s arm and hand restraints to be removed.
 7

Meanwhile, J.S. was airlifted to University of Iowa Hospitals and Clinics

with life-threatening injuries. She had received a laceration in her liver four

inches long and two inches deep. She lost part of her small intestine and colon.

She sustained a fracture of her right arm. One of her vertebrae was shattered,

and her spinal cord was damaged.

J.S. was hospitalized for three weeks and underwent multiple surgeries.

She was in a wheelchair and had a colostomy bag for a year. To this day, she

walks with a cane because she has no feeling or balance in her feet. She is unable

to work and lives in constant pain.

B. Krogmann’s First Trial and First Appeal. On March 23, the State

charged Krogmann by trial information with one count of attempted murder, a

class “B” felony, and one count of willful injury causing serious injury, a class

“C” felony. Iowa Code §§ 707.11, 708.4(1) (2009). Krogmann’s case went to trial

in November of that year. Krogmann, who had a significant history of mental

illness, raised a diminished capacity defense. A jury found him guilty, rejecting

that defense. Krogmann was sentenced to consecutive terms of imprisonment

totaling thirty-five years.

Krogmann appealed. Krogmann I, 804 N.W.2d 518. His primary argument
was that the district court had erred in freezing all of his roughly $3.4 million in

assets at the county attorney’s request, thereby impairing his ability to present

a defense. Id. at 521–23. While Krogmann was allowed to pay his retained

counsel, Krogmann pointed out that he had been refused permission to use his

assets to post bail or pay for a jury consultant. Id. at 522.

In October 2011, we affirmed Krogmann’s convictions and sentence,

holding that he had not preserved error on his objections to the asset freeze. Id.

at 523–25, 527. Nonetheless, we remarked that “[w]e [were] troubled by the
State’s effort to tie up a criminal defendant’s personal assets without citing any
 8

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

court to relevant [adverse] authority.” Id. at 525. We added that “[w]e [were] 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.” Id.

C. Krogmann’s Application for Postconviction Relief and Appeal. A

year later, Krogmann filed an application for postconviction relief, alleging,

among other things, that his 2009 trial counsel had provided ineffective

assistance in failing to assert proper objections to the asset freeze. Krogmann II,

914 N.W.2d at 301. The postconviction-relief application went to a hearing in

January 2015. Id. A jury consultant testified to recommendations she would

have made at the original trial; she “was highly critical of the voir dire [approach

followed] by Krogmann’s trial counsel.” Id. at 302. “Krogmann [himself] testified

that if he had bonded out, he would have hired additional” attorneys and would

have been able to communicate more readily with counsel. Id. at 303.

The district court denied Krogmann’s application. Id. at 305. Krogmann

appealed again, and we transferred the case to the court of appeals. Id. That
court affirmed the district court’s ruling. Id. We then granted Krogmann’s

application for further review. Id.

In June 2018, we ordered a new trial for Krogmann. Id. at 326. We held

that the asset freeze violated Krogmann’s rights to counsel under the Sixth

Amendment to the United States Constitution and article I, section 10 of the

Iowa Constitution, and that Krogmann’s trial counsel had breached an essential

duty in not properly objecting to it. Id. at 308, 318–21. We further held,

specifically under article I, section 10, that the improper asset freeze amounted
to a structural error, which meant that Krogmann was not required to prove the
 9

prejudice normally required for an ineffective assistance of counsel claim. Id. at

324–25. Two members of our court dissented from our decision. Id. at 326–30

(Mansfield, J., dissenting).

D. Krogmann’s Second Trial. Krogmann’s second trial began on August

17, 2021. Again, his defense was diminished capacity; Krogmann acknowledged

that he had shot J.S. three times.

Agent Liao testified for the State. He explained that during his interview of

Krogmann shortly after the shooting, Krogmann had no detectable signs of

intoxication or impairment. According to Agent Liao, Krogmann tracked the

questions he was being asked and stayed on topic. Agent Liao also testified to

Krogmann’s admissions in the interview. These included Krogmann’s statements

that he had “shot, shot, shot at [J.S.],” that J.S. had told him to stop, and that

he (Krogmann) had done “a terrible thing.”

On cross-examination, Krogmann’s counsel inquired further about

Krogmann’s demeanor during the interview. Agent Liao admitted that Krogmann

was speaking quietly, whispering at times, and that there would sometimes be a

long pause between the question and the answer. Agent Liao could not recall

whether he had asked Krogmann during the interview why he was so tired. He
admitted, however, that he had watched the video of the interview within the last

forty-eight hours before giving his trial testimony.

On redirect, the State used the transcript of the video of the interview to

refresh Agent Liao’s recollection. Thereafter, Krogmann moved for the admission

of the video itself. Krogmann’s counsel argued that the video showed Krogmann’s

demeanor and mental state shortly after the shooting, that the State had opened

the door by asking Agent Liao about these matters, that the video was not being

offered for the truth of any statements made by Krogmann, and that the video
was the best evidence of the interview. As it had before trial, the State objected
 10

to the admission of the video. The district court—which had previously ruled that

the video amounted to inadmissible hearsay—reiterated that ruling and

sustained the State’s objection.

Delaware County Sheriff John LeClere also testified. He was the first

responder to arrive at the crime scene. Over Krogmann’s objection, the State

wrapped up their questioning of Sheriff LeClere as follows:

Q. Is it unusual to take a .4[4], a gun that can take down a
deer, shoot someone three times in the mass, center mass, and not
think that they’re going to die?

A. I would think --

MS. CAMPBELL: Objection, Your Honor, relevance, personal
knowledge and argumentative.

THE COURT: Overruled.

A. I think the only reason to shoot a person would be to take
their life.

Krogmann sought unsuccessfully to introduce evidence of his $1.5 million

civil settlement with J.S. Before trial the district court had granted the State’s

motion in limine to exclude that evidence, and it stood by that ruling at trial.

Both sides offered expert testimony on diminished capacity. Each side’s
expert acknowledged that Krogmann had suffered from depression and bipolar

disorder and had a long history of hospitalizations for mental illness and prior

suicide attempts. However, the State’s expert and Krogmann’s expert differed as

to whether Krogmann had the capacity to form the specific intent to kill J.S.

Also, over the objection of Krogmann’s counsel, the State’s expert

Dr. James Dennert was allowed to testify on the legal meaning of and

justification for the diminished responsibility defense. Specifically, Dr. Dennert

explained,
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My understanding is . . . that we don’t want to hold people
responsible for actions if they really weren’t in some way, and if the
person is unable to form an intent to do an action, it seems unfair
to hold that person responsible for committing the action. That’s a
different question from whether the person intended -- well, I’m not
going -- that’s good enough.

Unlike Dr. Dennert, Krogmann’s expert Dr. Tracy Thomas had reviewed

the video of Liao’s interview of Krogmann, and she testified that it was an

important contemporary record of Krogmann’s condition directly after the

shooting.

As part of the final jury instructions, the district court advised the jury as

follows:

If a person has the opportunity to deliberate and uses a
dangerous weapon against another, you may, but are not required
to, infer that the weapon was used with specific intent to kill.

Krogmann objected to this instruction on the ground that it applied only

to first-degree murder cases, not attempted murder cases in which no death

occurred.

At the conclusion of the trial, a jury again found Krogmann guilty of

attempted murder and willful injury causing serious injury. As before, he was

sentenced to consecutive terms of imprisonment totaling thirty-five years.
E. The Current Appeal. Krogmann appealed. In the present appeal,

Krogmann maintains that the district court erred in excluding the video of his

interview with Agent Liao, in admitting Sheriff LeClere’s testimony that “the only

reason to shoot a person would be to take their life,” in excluding evidence of the

civil lawsuit and settlement, in allowing Dr. Dennert to testify on the law of

diminished responsibility, in instructing the jury that all assaults are specific-

intent crimes for the purposes of diminished responsibility, and in instructing

the jury that it could infer intent to kill from Krogmann’s use of a dangerous
weapon against J.S. Krogmann also contends that the verdict was contrary to
 12

the law and evidence, that the attempted murder count and the willful injury

causing serious injury count should have merged, and that costs were assessed

in error.

We transferred the case to the court of appeals. After hearing argument,

the court of appeals issued a decision on March 8, 2023, that reversed and

remanded for a new trial. The court agreed with Krogmann that the video of his

interview with Agent Liao shortly after the shooting should have been admitted.

In the court of appeals’ view, the video was not being offered for the truth of the

matter asserted; Krogmann’s statements on the video were actually inculpatory.

Instead, Krogmann sought to use the video “as evidence of his diminished

capacity.” As the court of appeals put it, “[f]rom 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.” The court of appeals also concluded that the

trial court’s refusal to admit the video violated the “best evidence rule,” because

the video was “the best evidence of Krogmann’s conduct and demeanor right after

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

The court of appeals did not reach Krogmann’s remaining arguments other than

to reject his contention that the two counts should merge.
We granted the State’s application for further review.

III. Standard of Review.

Generally, we review district court decisions regarding the admission of

evidence for an abuse of discretion. State v. Dessinger, 958 N.W.2d 590, 597

(Iowa 2021). But “[w]e review evidentiary rulings on hearsay for errors at law.”

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

“We review challenges to jury instructions for correction of errors at law.”

State v. Ross, 986 N.W.2d 581, 584 (Iowa 2023).
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“We review for abuse of discretion a ruling denying a motion for a new trial

on grounds the verdict is against the weight of the evidence.” State v. Wilson, 941

N.W.2d 579, 584 (Iowa 2020) (quoting State v. Heard, 934 N.W.2d 433, 439 (Iowa

2019)).

“We review the district court’s . . . order [on costs] for errors of law.” State

v. McMurry, 925 N.W.2d 592, 595 (Iowa 2019) (quoting State v. Petrie, 478

N.W.2d 620, 622 (Iowa 1991) (per curiam)). “[W]e seek to ‘determine whether the

court’s findings lack substantial evidentiary support, or whether the court has

not properly applied the law.’ ” Id. (quoting State v. Bonstetter, 637 N.W.2d 161,

165 (Iowa 2001)).

IV. Legal Analysis.

A. Refusal to Admit Video of Krogmann’s Interview. The district court

excluded the video of Krogmann’s interview because it believed it was hearsay.

However, the court of appeals concluded that the interview should have been

admitted because it was not truly hearsay; it was not being offered for the truth

of statements made by Krogmann. After watching the video, we agree with the

court of appeals. In fact, we are somewhat puzzled as to why the State fought so

hard to keep the video out of evidence.
“Hearsay ‘is a statement, other than one made by the declarant while

testifying at the trial . . . offered in evidence to prove the truth of the matter

asserted.’ ” State v. Veverka, 938 N.W.2d 197, 199 (Iowa 2020) (omission in

original) (quoting State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003)). The

interrogation video was clearly an out-of-court statement, but Krogmann did not

seek to enter it to prove the truth of his statements therein.

Virtually nothing that Krogmann says on the video can be viewed as

exculpatory. He admits he shot J.S. and did a terrible thing. Krogmann’s version
 14

of events differs from J.S.’s only in that he claims he went to the truck to get his

gun before shooting her. This difference hardly strikes us as helpful to his case.

At the same time, the video bore upon Krogmann’s diminished

responsibility defense because it showed his mental state soon after the

shooting. Significantly, the State introduced testimony at the 2021 trial from

Agent Liao about Krogmann’s demeanor and reactions during the interview. Why

would Agent Liao’s testimony as to how Krogmann appeared twelve years ago be

relevant, but not a contemporaneous 2009 video showing the same thing?

We agree with the district court and the State that Krogmann’s stated

purpose for introducing the evidence isn’t controlling. As we said recently,

[W]hen the out-of-court statement is used to prove something other
than the truth of the matter asserted, such as responsive conduct,
the statement may be admissible as nonhearsay. However, “the
court must determine whether the statement is truly relevant to the
purpose for which it is being offered, or whether the statement is
merely an attempt to put before the fact finder inadmissible
evidence.”

Dessinger, 958 N.W.2d at 603 (citation omitted) (quoting State v. Mitchell, 450

N.W.2d 828, 832 (Iowa 1990)); see also Hawkins v. Grinnell Reg’l Med. Ctr., 929

N.W.2d 261, 265–66 (Iowa 2019) (“We do not rely on the purpose urged by the

party offering the alleged hearsay; rather we look at the true purpose for which

the party offered the testimony.”). Also, even if the proffered statements are

relevant and are not hearsay, they may be excluded if their probative value is

substantially outweighed by other considerations such as unfair prejudice. See

Iowa R. Evid. 5.403; see also Veverka, 938 N.W.2d at 202 (noting that the

admissibility of evidence covered by a hearsay exception is subject to rule 5.403).

Here, though, we believe an objective assessment of the facts and

circumstances confirms that Krogmann was trying to use the video to prove his
mental state, not to impart to the jury his version of what had happened through
 15

his own out-of-court statements. The case of State v. Veal, where the defendant

tried that stratagem, is therefore inapplicable, and the district court erred in

relying on it. See 564 N.W.2d 797, 808 (Iowa 1997), overruled in part on other

grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998), vacated, 527 U.S. 1001

(1999).

Nor do we believe there would have been any unfair prejudice to the State

in admitting the video.1 From our admittedly imperfect vantage point, we

question whether the video even would have assisted Krogmann’s diminished

responsibility defense. Much of the video appears to show Krogmann reacting in

shame to his own actions. When Krogmann actually speaks on the video, he

describes, in a self-serving way, the decision-making process he went through

that morning, while blaming his victim for not caring sufficiently about him.

Consider the State’s own summary of the video:

These [statements by Krogmann] include Krogmann’s inquiries into
whether [J.S.] is “okay,” the Miranda warning, Krogmann saying he
“went over to talk to her,” that he “loved her so much,” he “was so
good to her and wanted to marry her,” she “let him in,” she “didn’t
want me,” his gun was in his truck on the passenger seat, she told
him to leave and move on with his life, he wanted to tell her “how
much it hurt him,” “she didn’t care,” he was “tired,” he shot her, she
should have “just told him,” she said [s]he wanted a pillow, called
his son Jeff, he called 911 from her cell phone, that he “sometimes”
carries a gun, the gun was in his truck and he did not recall when
he put it in the truck, he kept the gun for the “varmints at the farm,”
he made up his mind to talk to her that morning, inquired about
counsel, long pauses where Krogmann shifts in the chair and does
not respond but sighs, said “if she’d just told me the truth,” he could

1Our rules of evidence allow evidence to be admitted for a limited purpose with a
cautionary instruction even though that same evidence is inadmissible for another purpose. See
Iowa R. Evid. 5.105. “When admissibility is limited, the court ‘restrict[s] the evidence to its proper
scope and instruct[s] the jury accordingly.’ ” State v. Decker, 744 N.W.2d 346, 356 (Iowa 2008)
(alterations in original) (quoting Iowa R. Evid. 5.105). State v. Decker involved the use of an
otherwise inadmissible video to show the defendant’s demeanor—a related issue to that
presented here. Id.
 16

not reach in the truck to get the gun, and she did not run because
she had nowhere to go.

(Citations omitted.) We struggle to see how these statements—which together

form Krogmann’s detailed narrative of how and why he shot J.S.—demonstrate

that Krogmann lacked the capacity to form a specific intent to shoot her.2

This court has recognized the diminished responsibility defense since

1964. See State v. Gramenz, 126 N.W.2d 285, 288 (Iowa 1964) (“We have not

heretofore considered the theory of diminished responsibility.”); id. at 290 (“We

approve of the trial court’s instruction which, under the facts of the case,

permitted the jury to consider evidence of defendant’s mental condition on the

issue of willfulness, deliberation and premeditation.”). “The diminished

responsibility defense allows a defendant to negate the specific intent element of

a crime by demonstrating due to some mental defect she did not have the

capacity to form that specific intent.” Anfinson v. State, 758 N.W.2d 496, 502

(Iowa 2008).

But a jury will undoubtedly consider any asserted diminished

responsibility defense in the light of trial facts that tend to establish the

defendant’s specific intent. For example, in State v. Jacobs, “[a]ll agreed the

defendant suffered from bipolar affective disorder.” 607 N.W.2d 679, 684 (Iowa
2000). But we affirmed the trial court’s rejection of that defense, noting that the

actual facts surrounding the defendant’s criminal conduct tended to undermine

the opinions of his expert. Id. at 685. In Lamasters v. State, a first-degree murder

case, we determined that the defendant’s trial counsel had not been ineffective

2One aspect of the video that might have aided Krogmann’s defense is that it shows him

tied to a chair by arm, shoulder, and leg restraints. (During the course of Agent Liao’s interview,
the arm and shoulder restraints were removed.) The presence of these restraints—as opposed to
handcuffs, say—could suggest that law enforcement viewed Krogmann as posing a special type
of risk due to his mental health condition. Agent Liao testified about these restraints, but seeing
them in use might have resonated more with the jury.
 17

in failing to raise a diminished responsibility defense, despite the defendant’s

history of methamphetamine use and mental illness, noting that the defendant’s

“elaborate efforts to conceal the killing” and his “carr[ying] on [of] ordinary

activities” during that time tended to undermine such a defense. 821 N.W.2d

856, 869 (Iowa 2012).

Diminished responsibility claims have fallen short in our courts in many

contexts when there is strong evidence that the defendant possessed the required

specific intent. See State v. Watkins, 659 N.W.2d 526, 534 (Iowa 2003)

(acknowledging testimony that the “defendant suffered from posttraumatic

stress disorder, borderline personality disorder, and depression” and

determining that it “was insufficient to show a diminished responsibility on

defendant’s part with respect to any particular volitional act”); State v. Myers,

653 N.W.2d 574, 581 (Iowa 2002) (rejecting an argument of diminished capacity

with respect to a defendant’s “guilty-plea [where the] colloquy . . . support[ed]

the State’s claim that she, in fact, did understand what she was doing”); State v.

Buck, 510 N.W.2d 850, 853–54 (Iowa 1994) (finding no prejudice, even if the

defendant failed to properly waive the right to a jury trial in a case involving

defenses of insanity and diminished responsibility, because the evidence of
defendant’s specific intent was “overwhelming”); State v. Freeman, 404 N.W.2d

188, 191 (Iowa Ct. App. 1987) (finding that the factual evidence including the

defendant’s own statements “refute[d] defendant[’]s argument he was suffering

from a multiple personality disorder at the time of the offense”); State v. Griffin,

389 N.W.2d 858, 861 (Iowa Ct. App. 1986) (finding no reversible error in failure

to instruct on diminished capacity given the overwhelming evidence of guilt).

This leads to where we ultimately part company with the court of appeals.

The court of appeals declined to find that the exclusion of the video had been
harmless, noting that it “goes to the heart of Krogmann’s defense of diminished
 18

responsibility.” But that begs the question of how strong that defense was and

how much the video would have bolstered it. After studying the record as a whole,

we are convinced that the exclusion of the video did not affect Krogmann’s

“substantial right[s].” Iowa R. Evid. 5.103(a); see also State v. Richards, 809

N.W.2d 80, 90 (Iowa 2012) (applying this standard to wrongfully excluded

evidence); State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (applying this standard

to errors regarding the admission of hearsay evidence).3

Krogmann’s own statements, both on the video and as related by J.S.,

provided strong evidence of his specific intent to kill her on March 13, 2009. This

evidence of intent was bolstered by the 911 recording of Krogmann’s call made

just minutes after the shooting. On the call, Krogmann initially tried to deflect

the dispatcher’s inquiries as to how J.S. had been shot. Eventually, Krogmann

admitted to the dispatcher that there had been a “squabble” and that he had

“shot [J.S.].” Throughout the communication, Krogmann comes across as

mentally composed even as he is summoning medical help for J.S. Notably,

Krogmann’s own expert admitted that she focuses on the defendant’s behavior

and mental health “right around the time of the offense.” As she put it, “I have

to take the behavior and the statement that the individual is making,
observations of them as close to the event as possible and from that make a

determination regarding their mental state.”

Krogmann’s expert characterized the video as showing Krogmann

“writhing around in his chair,” “panting,” “can’t even look at the officer,”

“covering his face,” and “unable to organize his thoughts.” According to

3Because this is a case involving nonconstitutional error, the standard in Iowa Rule of

Evidence 5.103(a) applies, rather than the more stringent standard requiring the State to show
the error was harmless beyond a reasonable doubt. See State v. Buelow, 951 N.W.2d 879, 890
(Iowa 2020) (nonconstitutional error); State v. Gibbs, 941 N.W.2d 888, 900 (Iowa 2020)
(constitutional error).
 19

Krogmann’s expert: “[Krogmann’s] responses to the detective are very short. He

often does not respond to the detective’s questions, and the responses are

oftentimes not completely relevant to the question.” Even if these

characterizations were accurate, and our view of the video is rather different and

closer to Agent Liao’s characterization, we fail to see how they would lead a jury

to conclude that Krogmann lacked the capacity to form an intent to kill J.S.

The four family members who testified on Krogmann’s behalf did not

meaningfully support his diminished responsibility defense, either. Instead, they

confirmed that at the time of the shooting Krogmann farmed, had a part-time

outside job, drove his vehicle every day, attended social events, and visited with

family. They also reported Krogmann was very upset that J.S. had broken up

with him and made statements about committing suicide.

In addition, the State offered testimony that Krogmann engaged in

“ordinary activities” such as playing cards and clearing his calendar with his

employer so he would have time to go over to J.S.’s home that morning. See

Lamasters, 821 N.W.2d at 869 (citing evidence that the defendant “carried on

ordinary activities” as undermining his “defense of diminished capacity”). Like

the excluded video and the admitted 911 call, this evidence paints the picture of
a distraught, spurned lover, not someone who lacked the mental capacity to form

an intent to do what he did. The totality of the evidence of Krogmann’s intent to

kill, including the video, is simply overwhelming.

The dissent’s contrary view cannot be squared with the facts or the law.

This trial wasn’t a “battle of the experts” because there was so much direct

evidence of Krogmann’s specific intent to kill J.S. This included Krogmann’s

statements to J.S. and the 911 calls. The 911 calls are especially compelling

because it took a call back from the dispatcher and repeated pressing from the
 20

dispatcher before a reluctant but composed Krogmann admitted who had shot

J.S., namely Krogmann himself.

And if the video taken at the sheriff’s office had been admitted, it too would

have provided powerful direct evidence of Krogmann’s specific intent. There

again Krogmann admitted to shooting J.S. and to having done a “terrible thing.”

The dissent does not dispute that Krogmann made these statements and that

his narrative of what happened—although it took a while to come out—was clear

and consistent. Krogmann spoke graphically on the video of being hurt when

J.S. said she would not have him and then deciding to shoot her.

Turning to the law, the dissent overlooks that the harmless-error standard

is the same whether for admitted or for excluded evidence. See, e.g., State v.

Sullivan, 679 N.W.2d 19, 31 (Iowa 2004) (“[T]he district court abused its

discretion in admitting [the evidence at issue] and such admission was

prejudicial, that is, it affected [the defendant’s] substantial rights . . . .” (emphasis

added)); State v. Montgomery, 966 N.W.2d 641, 661 (Iowa 2021) (“We must decide

whether the erroneous exclusion of this evidence was harmless. Reversal is

required for evidentiary error when ‘the error affects a substantial right of the

party.’ ” (emphasis added) (quoting Iowa R. Evid. 5.103(a))); State v. Paredes, 775
N.W.2d 554, 571 (Iowa 2009) (“Reversal of a ruling which admits or excludes

evidence is not necessary unless a substantial right of a party is affected.”

(emphasis added)).4

4Other jurisdictions have found harmless error in cases involving wrongful exclusion of

video evidence. See, e.g., State v. Leniart, 215 A.3d 1104, 1128 (Conn. 2019) (“Although we agree
with the Appellate Court that polygraph pretest interview evidence is not per se inadmissible
. . . therefore, that the video was improperly excluded on that basis, we conclude that any error
in the exclusion of the video was harmless.”); State v. Blank, 955 So. 2d 90, 133 (La. 2007) (“After
careful review of the entire transcript of the . . . interrogation . . . and the videotaped version in
the record, we find nothing to support defendant’s argument that had the jury seen the . . .
interrogation, they would have concluded that defendant’s statement was coerced.”); State v.
Botelho, 83 A.3d 814, 824 (N.H. 2013) (“Thus, we conclude that the court’s exclusion of the two
 21

Furthermore, we are not obligated to decide an appeal based on the

argument the State chooses to emphasize. Here, the State—mistakenly—placed

a large wager on the video being inadmissible hearsay. But the State did hedge

its bets by raising harmless error, and we may decide the case on that basis.

Lastly, the dissent errs when it tries to add the votes of the court of appeals’

panel to its own vote total. We have the utmost respect for our colleagues on the

third floor, but our duty is to make our decisions on our own. We are not

persuaded by the brief harmless error discussion in the court of appeals opinion,

which did not delve into the specific facts of this case.

For the foregoing reasons, we conclude that the failure to admit the video,

while erroneous, was harmless and not a basis for a new trial.5

B. Admission of Sheriff LeClere’s Testimony Regarding “the Only

Reason to Shoot a Person.” Krogmann next argues that the district court

disputed sections of the police interview was neither clearly untenable nor unreasonable to the
prejudice of the defendant’s case.”); McCracken v. State, 887 P.2d 323, 328 (Okla. Crim. App.
1994) (“We have viewed the video tape in question and find that any error in failing to allow the
jury to view the tape was harmless in light of the overwhelming evidence of Appellant’s guilt.”);
State v. Cottier, 755 N.W.2d 120, 132 (S.D. 2008) (“Even if the trial court erred in failing to admit
the video, ‘the error was harmless as the evidence was cumulative of other evidence presented
independently at trial.’ ” (quoting State v. Davi, 504 N.W.2d 844, 855 (S.D. 1993))).
5However, we do not share the court of appeals’ view that the district court’s refusal to

admit the video violated the “best evidence” rule. That rule provides, “[a]n original writing,
recording, or photograph is required to prove its content, unless these rules or a statute provides
otherwise.” Iowa R. Evid. 5.1002. Here the real issue wasn’t the content of the video; it was the
content of the interview. The video may have been, in layperson’s terms, “the best evidence” of
that interview, despite some issues with its sound quality. Yet that doesn’t mean its exclusion
implicated rule 5.1002. See State v. Khalsa, 542 N.W.2d 263, 268 (Iowa Ct. App. 1995); 7 Laurie
Kratky Doré, Iowa Practice Series Evidence § 5.1002:2, at 1366–67 (2023–2024 ed. 2023).
We note also that the State failed to make a separate harmless error argument in its
answering brief, as it did with respect to the LeClere and Dennert testimony discussed later in
this opinion. However, the State did argue in its answering brief that “the video did not offer any
evidence that would have impacted the issue in the case[:] whether Krogmann could form specific
intent.” Krogmann responded to this single sentence with three pages of argument in his reply
brief. The gist of Krogmann’s rebuttal was that the video was “exceptionally material.” The court
of appeals later agreed with Krogmann and concluded that any error was not harmless. The
question of harmless error is properly before us.
 22

should have sustained his objection to Sheriff LeClere’s testimony that “the only

reason to shoot a person would be to take their life.” We agree with Krogmann.

We are not persuaded by the State’s contention that this testimony involved

“scientific, technical, or other specialized knowledge [that would] help the trier

of fact.” Iowa R. Evid. 5.702. Jurors can understand the consequences of

pointing a gun at someone at close range and firing it three times. See State v.

Leahy, 54 N.W.2d 447, 453 (Iowa 1952) (finding error when the district court

admitted an officer’s testimony as to the purpose for which the defendant

withdrew his gun). They do not need guidance from a law enforcement officer

testifying on the ultimate issue of intent.

Yet we also conclude that the erroneous admission of this testimony did

not affect Krogmann’s substantial rights. See Iowa R. Evid. 5.103(a); State v.

Neiderbach, 837 N.W.2d 180, 205 (Iowa 2013) (finding no reversible error in the

improper admission of expert testimony). There was a great deal of other evidence

presented regarding Krogmann’s actions and intent on March 13, 2009—

evidence that was obviously more substantial. The jury was instructed that they

were to determine Krogmann’s intent. Although it was unnecessary and

gratuitous for the prosecution to offer this testimonial preview of their closing
argument, we also trust the jurors not to have given this exercise in theatrics

any meaningful weight. “Jurors didn’t fall off the turnip truck and into the

courtroom.” State v. Veal, 930 N.W.2d 319, 335 (Iowa 2019). We decline to

disturb the jury verdict on this ground.

C. Refusal to Admit Evidence of Civil Case and Settlement. J.S.

brought a civil suit against Krogmann for her injuries resulting from the

shooting. Krogmann paid $1.5 million to settle that suit. During his criminal

trial, Krogmann sought to introduce evidence of the civil case and its settlement.
 23

We agree that the district court did not abuse its discretion in excluding this

evidence.

Prior to trial, the district court granted the State’s motion in limine,

rejecting Krogmann’s argument that the civil suit showed J.S.’s bias against him.

As the district court pointed out, “as it is undisputed that the Defendant shot

[J.S.] three times, her bias need not be explained by bootstrapping a later civil

suit.” However, the district court’s pretrial ruling allowed the defense to reurge

the admissibility of the civil case at trial if another theory of relevance emerged.

At trial, following J.S.’s testimony that she was unable to go back to work

due to her injuries, Krogmann sought again to introduce evidence of the civil

settlement. This time, his counsel argued that “the State has slightly opened the

door by asking her about her not being able to work.” The district court rejected

this argument as well, reasoning that the civil settlement wasn’t relevant to the

severity of J.S.’s injuries and whether or not they left her unable to work.

We agree with the district court’s ruling. Neither of these theories of

relevance adds up, so the evidence was inadmissible. The $1.5 million settlement

might temper the jury’s view of Krogmann (which would be an improper purpose

for admitting it), but it doesn’t show that J.S. would have additional bias against
him or that she wasn’t seriously injured.

On appeal, Krogmann conjures two new theories of admissibility. First, he

maintains that the evidence “could have been used to show that the Defendant

accepted responsibility for the consequences of shooting [J.S.].” We are not

persuaded. Acceptance of responsibility might be a relevant sentencing

consideration, but it isn’t a relevant trial consideration. In any event, it is a

curious argument to make when Krogmann’s trial defense was to assert

diminished responsibility.
 24

Second, Krogmann implies that he wanted to show J.S.’s receipt of $1.5

million—not her injuries—was the real reason she stopped working.6 But the

mere existence of the settlement wouldn’t tend to show that; Krogmann would

have needed a lot more in his offer of proof. He didn’t provide it. No abuse of

discretion occurred here.

D. Admission of Expert Testimony Regarding the Legal Meaning of

Diminished Responsibility. At trial, over Krogmann’s objection, the State’s

mental health expert Dr. Dennert was allowed to testify concerning why the law

recognizes a diminished responsibility defense. Dr. Dennert told the jury that “if

the person is unable to form an intent to do an action, it seems unfair to hold

that person responsible for committing the action.”

We believe this legal dissertation should not have been permitted. It is the

job of the district court, not a paid expert, to explain the applicable criminal law

to the jury. See Oldham v. Shenandoah Cmty. Sch. Dist., 461 N.W.2d 207, 208

(Iowa Ct. App. 1990) (“[E]xperts may not give opinions on questions of law or

questions of law mixed with facts.”).7

6Also, Krogmann’s counsel conceded during closing argument that J.S. had suffered a

serious injury from the near-fatal shooting: “There is no question she had and has and continues
to have and will always have a serious injury . . . .” Therefore, Krogmann’s current argument
that he needed to introduce the civil settlement to raise a question about J.S.’s decision to stop
working—and thus raise a question about the severity of her injuries—clashes with the position
he took at trial.
7Notably, the district court initially sustained Krogmann’s objection to this line of
questioning but allowed Dr. Dennert to respond when the prosecutor artfully repackaged the
question so that it asked less overtly for a legal explanation:

Q. I want to be clear, diminished responsibility does not mean someone --
or what diminished responsibility means in this context is basically a legal excuse
for behavior; correct?

MR. STATLER: Objection, Your Honor. Calls for a legal conclusion.

THE COURT: Sustained.
 25

Yet we agree with the State that any error here did not affect substantial

rights. This isolated answer from Dr. Dennert was a tiny island in a sea of

admissible evidence and proper argument on the subject of diminished

responsibility. As Krogmann points out in his main brief, diminished

responsibility was “the main fighting issue in the case.” The district court

instructed the jury on the law to be applied, and there is no indication that the

jury failed to follow those instructions. Furthermore, although Krogmann

criticizes the district court for permitting Dr. Dennert’s “commentary,” he does

not direct us to any particular fallacy in what Dr. Dennert said. We overrule this

claim of error.

E. Trial Court Instructions that Said Specific Intent Was an Element

of Assault in a Diminished Capacity Case. Krogmann next contends that the

district court erred in instructing the jury that specific intent is a required

element of assault in a diminished capacity case. According to Krogmann, this

hamstrung his trial strategy. Presumably believing that a jury was unlikely to

BY MS. KRISKO: Q. Diminished responsibility is something that is not
saying that the action wasn’t done but just that the person shouldn’t or could not
be responsible for his own action?

MR. STATLER: Objection, Your Honor. That’s the same question. It’s
asking for an excuse.

MS. KRISKO: May I respond?

THE COURT: Actually, it’s overruled. I’ll let him answer that question.

THE WITNESS: Could you read me back the question?

(The requested portion of the record was read by the court reporter.)

A. My understanding is . . . that we don’t want to hold people responsible
for actions if they really weren’t in some way, and if the person is unable to form
an intent to do an action, it seems unfair to hold that person responsible for
committing the action. That’s a different question from whether the person
intended -- well, I’m not going -- that’s good enough.
 26

acquit him altogether, Krogmann sought to get the jury to acquit him of the most

serious crimes charged based on diminished capacity and instead land on one

or more forms of assault as a lesser included offense.

Notably, Krogmann’s expert Dr. Thomas testified that at the time of the

shooting Krogmann lacked capacity to form specific intent—period. Supported

by its own expert, the State argued the other side of the same coin at closing—

namely, that Krogmann had specific intent to support all charges and there was

no room for a compromise verdict. As the prosecutor put it at the end of her

rebuttal argument, “If he didn’t have the specific intent, he didn’t have it. But if

he did, he is guilty of both [attempted murder and willful injury causing serious

injury].”

It is established law in Iowa that assault is a specific-intent crime. Thirteen

years ago, in State v. Fountain, we made clear “that assault includes an element

of specific intent.” 786 N.W.2d 260, 265 (Iowa 2010). We reasoned that although

the legislature had amended the assault statute in 2002 and declared that

“assault as defined in this section is a general intent crime,” it had not altered

the actual elements of assault, including specific intent. Id. at 264 (quoting 2002

Iowa Acts ch. 1094, § 1 (codified at Iowa Code § 708.1 (2003))). As we put it, “the
legislature did not change the elements of an assault; it merely designated

assault as a general intent crime.” Id. at 265. We reaffirmed Fountain in State v.

Benson, where we reiterated that “regardless of the legislature’s designation,

assault substantively is a specific-intent crime under section 708.1 based upon

the language in the statute.” 919 N.W.2d 237, 245 (Iowa 2018).

Fountain did contain the following statement: “Although we do not decide

the effect or constitutionality of [the 2002] amendment to the assault statute, we

believe the amendment was simply an attempt to prevent a defendant charged
with assault from relying on the defenses of intoxication and diminished
 27

capacity.” 786 N.W.2d at 265. Krogmann seizes on this language to argue that it

is at least an open question whether diminished capacity is a defense to assault

in Iowa. But we place less stock in this stray language than Krogmann does. For

one thing, in reality Fountain did decide the “effect” of the 2002 amendment—

namely, that the amendment didn’t alter the status of assault as a specific-intent

crime. Also, what the legislature might “attempt” to do, as recognized in Fountain,

and what it succeeded in doing are two different things.

In State v. Beck, the court of appeals confronted the precise question

presented today—whether diminished capacity can negate the specific-intent

element of assault. 854 N.W.2d 56, 58–59 (Iowa Ct. App. 2014). After discussing

Fountain and the 2002 amendment at length, the court concluded that

diminished capacity would be a defense to assault. Id. at 64–65. Among other

things, the court noted a long line of precedent from our court “holding the

defense [of diminished capacity] is available in any case in which the State must

[prove] specific intent.” Id. at 65. Also, the court emphasized that “[t]he plain

language of the 2002 amendment and the legislature’s own explanation of the

2002 amendment evidence[] only that the legislature intended to say the assault

statute should be interpreted in such a way as to not require the State to prove
specific intent as an element of the offense of assault.” Id. Because “the 2002

amendment did not achieve the stated legislative intent of removing the specific

intent elements from the offense of assault . . . the expected legal consequence

does not follow.” Id. at 66.

We agree with the court of appeals’ analysis in Beck. One cannot

coherently say that (1) assault is a specific-intent crime, but (2) diminished

responsibility is not a defense to assault. And Krogmann offers no logical path

to that destination in his brief. Either diminished capacity negates specific intent
or it doesn’t. Our precedent holds it does. We find no error here.
 28

F. Trial Court Instruction that Allowed the Jury to Infer Specific

Intent to Kill from Krogmann’s Use of a Dangerous Weapon Against J.S. As

noted, Krogmann objected to the district court’s giving of an instruction that

allowed the jury to infer an intent to kill from Krogmann’s use of a dangerous

weapon.

An Iowa State Bar Association uniform jury instruction states:

700.8 Murder In The First Degree - Dangerous Weapon
Inference. If a person has the opportunity to deliberate and uses a
dangerous weapon against another resulting in death, you may, but
are not required to, infer that the weapon was used with malice,
premeditation and specific intent to kill.

Iowa State Bar Ass’n, Iowa Crim. Jury Instruction 700.8 (2023) (emphasis

omitted). In State v. Green, we approved the giving of this instruction, noting that

it “accurately stated the law, and there was substantial evidence . . . to support”

it. 896 N.W.2d 770, 781 (Iowa 2017). Likewise, no error occurred when it was

given here.

Krogmann points out that Green was a first-degree murder case and that

the uniform instruction is designated for first-degree murder cases. He contends

that such an instruction does not belong in an attempted murder case in which

“deliberation” is not a part of the crime. But this misses the key point: in this
attempted murder case, the instruction accurately stated the law and was

supported by the evidence. See id. The instruction permits an inference of

“malice, premeditation and specific intent to kill.” Iowa State Bar Ass’n, Iowa

Crim. Jury Instruction 700.8. The first two are not elements of attempted

murder, but the third was in this case.

Therefore, the court did not err in giving the instruction. See State v. Mart,

20 N.W.2d 63, 66 (Iowa 1945) (“We have held repeatedly that an intent to kill
may be inferred from the use of a deadly weapon in a deadly manner. Such intent
 29

may be thus inferred though the wound inflicted does not prove fatal.” (citation

omitted)).

G. Refusal to Grant a New Trial. Krogmann argues that the district court

abused its discretion in failing to grant a new trial on the ground that the verdict

was contrary to the law and the evidence. We are not persuaded. Krogmann’s

actions and statements provided ample evidence from which a jury could find he

intended to kill J.S. The gist of Krogmann’s position is that if he really intended

to kill J.S., he would have discharged the remaining bullets in his gun instead

of stopping after shooting her three times and calling 911. But this was at best

an argument for the jury, and not a particularly good one in our view. Often

people who commit acts of criminal violence regret those acts immediately. That

doesn’t mean they lacked mens rea in the first place. We affirm the denial of a

new trial.

H. Refusal to Merge the Counts. Krogmann contends that his willful

injury causing serious injury conviction should merge with his attempted

murder conviction. Krogmann raised this argument in the postconviction-relief

proceedings after his initial convictions. We rejected it then, and we reject it now.

Krogmann II, 914 N.W.2d at 325. Our prior appellate ruling is the law of the case
and, in any event, we stand by it. One can seriously injure someone without

intending to kill them, and one can attempt to kill someone without seriously

injuring them.

I. Award of Costs. Krogmann also challenges the award of prosecution

costs. A hearing on court costs occurred below after the entry of the judgment of

conviction and sentence. The district court sustained some of Krogmann’s

objections, including an objection to payment of expert fees for an individual who

never testified. Thereafter, Krogmann filed a second notice of appeal. We treat
 30

the second notice of appeal as an application for writ of certiorari, grant the writ,

and proceed to review Krogmann’s objections to these costs.

The State is entitled to recover “court costs” from a convicted defendant.

Iowa Code § 910.1(2) (2021). As a general matter, taxation of costs in criminal

cases is governed by Iowa Code chapter 625, unless there is other law to the

contrary. See, e.g., State v. Basinger, 721 N.W.2d 783, 785–86 (Iowa 2006); see

also Iowa Code § 625.1 (“Costs shall be recovered by the successful against the

losing party.”). Against this backdrop, we consider Krogmann’s specific

objections.8

Krogmann contends that the district court erred in ordering him to pay

Dr. Dennert’s fees and expenses in excess of the $150 per day cap in Iowa Code

section 622.72. See Iowa Code § 622.72 (“[A]dditional compensation shall not

exceed one hundred fifty dollars per day while so employed.”). We agree with the

State that section 815.5 applies here as an exception to section 622.72. See id.

§ 815.5 (“Notwithstanding the provisions of section 622.72, reasonable

compensation as determined by the court shall be awarded . . . expert witnesses

called by the state in criminal cases.”). In our view, this means that Dr. Dennert’s

reasonable compensation for the time spent in his actual court appearance and
court testimony is recoverable. But the only cap lifted is the $150 per diem in

section 622.72. Otherwise, the taxable cost is still based on the concept of a

witness allowance. See id. § 625.14. The State is not entitled to treat as a taxable

cost time spent by Dr. Dennert prior to trial, his air fare from out of state, or his

rental car and hotel expense. To that extent, we uphold Krogmann’s challenge to

the costs.

8Krogmann accepts that for court costs, we should apply the law that was in effect at the

time of his trial.
 31

Krogmann also objects to paying the sheriff’s fee for attempting to serve

someone who could not be located and who did not testify. We sustain this

objection as well. This item does not fall within a recognized category of court

costs.

Lastly, Krogman objects to being assessed the State’s costs for a transcript

of Dr. Dennert’s deposition. The deposition wasn’t introduced into evidence at

trial. We agree with the district court that this transcript can be assessed as a

court cost because the language of section 815.13 covers the issue. See id.

§ 815.13 (allowing the cost of transcripts requested by the prosecution to be

recovered from the defendant if the defendant is found guilty).

V. Conclusion.

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

We sustain the writ in part as to the award of costs and remand for recalculation

of costs only.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
AFFIRMED; WRIT OF CERTIORARI GRANTED AND SUSTAINED IN PART;
REMANDED FOR REDETERMINATION OF COSTS.
Christensen, C.J., and Waterman, McDonald, and May, JJ., join this
opinion. McDermott, J., files a dissenting opinion, in which Oxley J., joins.
 32

#21–1617, State v. Krogmann

MCDERMOTT, Justice (dissenting).
Robert Krogmann’s trial centered on one question: Did he have the mental

capacity to form the specific intent to commit murder? He sought to play a video

of an investigative interview from shortly after the shooting as evidence of his

mental state. Although Krogmann confesses to the shooting in the video, the

State fought hard to exclude it. The majority concludes that the district court

erred in not admitting the video, but it nonetheless affirms Krogmann’s

convictions today by declaring the video’s exclusion “harmless.” I find nothing

harmless about the error and believe that withholding the video from the jury

stripped Krogmann of evidence critical to his defense. Any conviction, if one is to

be had, must come from a unanimous jury of his peers, not a majority of

appellate judges. I thus respectfully dissent.

The State had to prove that Krogmann acted with specific intent. The lack

of mental capacity to form a specific intent is known as “diminished

responsibility.” Anfinson v. State, 758 N.W.2d 496, 502 (Iowa 2008). Evidence of

diminished responsibility is important to determine someone’s capacity to form

specific intent. Id. Diminished responsibility does not mean that someone is
insane; a person may be sane but still not have the mental capacity to form

specific intent because of a mental disease or disorder. See State v. Collins, 305

N.W.2d 434, 436–37 (Iowa 1981). Compare State v. Jacobs, 607 N.W.2d 679, 684

(Iowa 2000) (discussing diminished responsibility as a common law defense),

with Iowa Code § 701.4 (2009) (insanity defense codified). A defendant does not

need to prove diminished responsibility. Skinner v. Ruigh, 351 N.W.2d 182, 185

(Iowa 1984). The burden rests with the State to prove that Krogmann was able

to—and did—form the specific intent required to commit the crime. See State v.
Rinehart, 283 N.W.2d 319, 323 (Iowa 1979).
 33

One of the State’s primary witnesses, Agent Liao, conducted the video-

recorded interview with Krogmann. The fifty-nine-minute video begins with

Krogmann strapped to a chair at his wrists, ankles, waist, and around his

shoulders. Agent Liao had the wrist restraints removed early in the interview,

and later requested that the shoulder restraints also be removed. But the video

shows Krogmann remained fastened to the chair at all times by his ankles and

waist. Krogmann’s first sentence to the investigator is a question about whether

the victim was okay. Krogmann speaks softly in the video, often seemingly

whispering, and at times there are long pauses between the investigator’s

questions and his responses.

Both the prosecution and the defense believed the question of Krogmann’s

mental capacity complex enough to require the hiring of expert medical witnesses

to testify on the subject. Expert witnesses are permitted only when “scientific,

technical, or other specialized knowledge will help the trier of fact to understand

the evidence or to determine a fact in issue.” Iowa R. Evid. 5.702. Both experts

agreed that Krogmann suffers from depression and bipolar disorder and noted

his long history of hospitalizations for mental illness and prior suicide attempts.

But the experts clashed in their views about whether Krogmann lacked the
mental capacity to form the requisite specific intent on the day of the shooting.

Krogmann’s medical expert, Dr. Thomas, testified about the importance of

the video as the only means of observing Krogmann’s behavior on that day. She

described Krogmann on the video as “writhing around in his chair,” “panting,”

at times unable to “even look at the officer,” “covering his face,” and “unable to

organize his thoughts.” The State’s medical expert, Dr. Dennert, never watched

the video before forming his opinion, despite acknowledging that in preparing to

offer an opinion in a case like this, he tries to gather all information, including
“any videos.” He testified about his conclusions regarding Krogmann’s mental
 34

capacity at the time of the shooting based largely on other people’s

characterizations of Krogmann’s behavior that day.

When parties offer competing testimony from expert witnesses—creating

the proverbial “battle of the experts”—juries often must decide which of the

experts is more credible. Had the jury seen the video and found its contents

enlightening (as I do), the jury might well have considered Dr. Dennert’s

opinion—acquired without the benefit of the video—insufficiently informed and

thus less credible. From my review of the record, compared to watching the video,

oral testimony falls far short of conveying how Krogmann was behaving in his

chair, responding to questions, and otherwise visually and audibly expressing

his state of being on the day of the shooting. The ratio in the saying “a picture is

worth a thousand words” conveys an intuitive truth; with a video that ratio

multiplies.

One might suppose that there’s an element of irrationality in any shooting

of another human being, but Krogmann’s conduct that day presents layers of it.

After shooting J.S. three times, Krogmann proceeds to grant her request for him

to get her a pillow. He shortly thereafter leaves the room again in response to

J.S.’s request to retrieve her phone so she can call her mother. After a call to his
son, Krogmann calls 911, giving the address of the house (with J.S.’s assistance)

and asking the dispatcher to send an ambulance because someone has been

shot. Krogmann didn’t immediately answer the dispatcher’s question about who

shot the victim in this call (he just continued to request that they send an

ambulance). But in a second 911 call about two minutes later, he tells the

dispatcher that he shot her. In that second call, he continues to urge the

ambulance to hurry and to “please save her.”9 As the State’s witnesses testified,

9After Krogmann’s son arrives at the scene—the first to arrive, ahead of both police and

paramedics—Krogmann lets his son take possession of the gun. His son testified that he had
 35

a shooter calling an ambulance for a victim after a shooting isn’t unheard of. But

it’s a course of conduct certainly at odds with itself, raising salient questions

about Krogmann’s mental capacity at the time. And one could certainly conclude

that his conflicted actions fit with his peculiar behavior in the interview recorded

a short time later.

The majority correctly concludes that the district court committed error

when it denied the defense’s request to play the video to the jury. We presume

that an erroneous evidentiary ruling constitutes prejudicial error. State v. Nims,

357 N.W.2d 608, 609 (Iowa 1984) (en banc). That error requires reversal unless

the record affirmatively establishes that the evidence in question did not affect

the jury’s finding of guilt. State v. Elliott, 806 N.W.2d 660, 669 (Iowa 2011). Most

of our cases applying harmless error analysis to evidentiary rulings deal with

erroneously admitted evidence. See, e.g., State v. Hildreth, 582 N.W.2d 167, 170

(Iowa 1998) (finding harmless error for the erroneous admission of hearsay

testimony). Rarely have we had occasion to apply harmless error analysis to

erroneously excluded evidence.

Most cases finding an evidentiary error to be harmless rely on one of two

theories: the cumulative nature of the evidence in question, or overwhelming
evidence of guilt. State v. Freeman, 297 N.W.2d 363, 367 (Iowa 1980). We most

frequently find harmless error when the evidence at issue is cumulative—in other

words, when the evidence restates a fact already established by other evidence.

See, e.g., State v. Russell, 893 N.W.2d 307, 318 (Iowa 2017) (finding harmless

error when erroneously admitted testimony was merely cumulative of other

evidence at trial). Even in the rare cases involving the erroneous exclusion of

evidence at trial, we have found that if the evidence is merely cumulative of other

taken away some of Krogmann’s guns two days earlier because he was worried about his father
harming himself.
 36

evidence presented, there is no prejudice to the defendant. See, e.g., State v.

McClain, 125 N.W.2d 764, 770 (Iowa 1964) (holding that the exclusion of an FBI

report finding no flammable accelerants at the scene of a fire was harmless error

because four witnesses testified to the same fact at trial).

But the video of Krogmann’s interview doesn’t represent cumulative

evidence of an undisputed fact already in the record. The testimony by

Dr. Thomas and Agent Liao characterizing Krogmann’s behavior in the video was

contradictory, not cumulative. Agent Liao testified that Krogmann was calm and

cooperative during the interview, and that he tracked the questions, stayed on

topic, and was able to respond. But if Krogmann appeared calm and cooperative,

one might legitimately wonder why he remained firmly tethered to the chair at

the waist and ankles as if he were behaving in a deranged manner. Dr. Thomas,

as mentioned, described Krogmann as writhing in his chair, unresponsive to

some questions, and unable to organize his thoughts. No other evidence

presented at trial similarly shows Krogmann’s appearance, demeanor, reactions,

or responses to resolve the witnesses’ divergent characterizations of Krogmann’s

mental state during the interview.10

So we turn to the ground that the majority finds dispositive in this case:
that other evidence in the record provides “overwhelming” evidence of

Krogmann’s guilt. The majority is unimpressed by Krogmann’s diminished

responsibility defense and finds that the video wouldn’t have added much to

bolster it. That the video didn’t matter much might come as a surprise to the

parties. The State’s appeal brief includes no argument that the video’s inclusion

was harmless error; indeed, the word “harmless” doesn’t even appear in it.

10Agent Liao watched the video within forty-eight hours of his testimony. The State also

used a transcript created from the video to refresh Agent Liao’s memory while on the witness
stand.
 37

What’s more, the State’s vigorous efforts throughout the case urging the district

court not to admit the video suggest that the State, for its part, was quite nervous

about the video’s potential impact on the jury.

In declaring evidence of Krogmann’s intent to commit murder “simply

overwhelming,” the majority recounts testimony that Krogmann performed

ordinary tasks around the time of the shooting. But both experts testified that

Krogmann suffers from depression and bipolar disorder, and that people who

suffer from mood disorders can behave normally between manic episodes. The

State’s expert (Dr. Dennert) testified that he saw nothing in the record suggesting

Krogmann suffered a manic episode on the day of the shooting. But he did not

watch the video showing Krogmann’s behavior shortly after the shooting before

forming his opinion. Krogmann’s expert (Dr. Thomas) testified that she believed

his demeanor in the interview video showed that he was experiencing a

depressive, manic, or other episode because of his mental health disease or

disorder. Dr. Thomas emphasized the importance of actually seeing on the video

Krogmann’s behavior around the time of the shooting in assessing his mental

capacity.

The majority also makes much of the fact that Krogmann didn’t
immediately answer the dispatcher’s question about who shot the victim in the

initial 911 call. I don’t find this particularly revealing considering that in a follow-

up 911 call about two minutes later, Krogmann tells the dispatcher that he shot

her. Recall, of course, that Krogmann himself made the initial 911 call to seek

help for J.S.

The majority also cites several cases in which diminished responsibility

claims have failed. But in none of the cited cases was important admissible

evidence kept from the fact-finder, as in this case. Cases in which a diminished
responsibility defense was in some fashion rejected are of little help in answering
 38

the question this case presents. The majority’s cited cases on diminished

responsibility are factually so distinct from this case that one struggles to find

in them anything at all to guide the harmless error analysis here. See State v.

Watkins, 659 N.W.2d 526, 534 (Iowa 2003) (affirming a conviction after a bench

trial where the diminished responsibility defense lacked even “theoretical

application” to the “knowingly” element of the crime); State v. Myers, 653 N.W.2d

574, 581 (Iowa 2002) (affirming a guilty plea where both the defendant and her

lawyer “made it clear at the plea hearing that she waived any defense of

diminished responsibility”); State v. Buck, 510 N.W.2d 850, 853–54 (Iowa 1994)

(affirming a conviction in a bench trial where the defendant claimed that the

state’s introduction of evidence about the defendant’s diminished responsibility

defense in its case-in-chief prejudiced him because it prevented him from

withdrawing it as a defense); State v. Freeman, 404 N.W.2d 188, 191–92 (Iowa

Ct. App. 1987) (affirming a conviction in a bench trial where the defendant

presented testimony about his personality disorder that differed from his own

expert’s testimony); State v. Griffin, 389 N.W.2d 858, 861 (Iowa Ct. App. 1986)

(rejecting an ineffective-assistance-of-counsel claim premised on the lawyer not

asking for a diminished responsibility instruction where the only evidence
related to the defendant being diabetic and there was no evidence he actually

suffered from a diabetic reaction constituting diminished responsibility at the

time).

The court of appeals reversed the district court and ordered a new trial,

declaring that the video “goes to the heart of Krogmann’s defense of diminished

responsibility.” It’s worth noting that what the majority believes is “simply

overwhelming” in this record has actually split the ten appellate judges who have

now heard this case 5–5, with all three court of appeals judges on the panel
unwilling to find the error harmless and two members of this court likewise
 39

unable to find harmless error in our further review. We obviously don’t decide

cases adding a court of appeals panel’s votes to ours. But the numbers convey a

deeper point: if the question is close enough to divide this many appellate judges

this narrowly, you have to wonder whether evidence of Krogmann’s guilt is

indeed so overwhelming.

The “overwhelming evidence” test that the majority applies in this case

appears to me indistinguishable from a determination that our court simply

thinks that the jury arrived at the correct result notwithstanding the error. The

“correct result” test, as it’s sometimes called, refers to an appellate court’s

consideration of all the admissible evidence—including any evidence improperly

excluded in the district court—and then deciding whether it thinks the jury’s

finding of guilt was the correct result. This test has been rejected by courts and

commentators. See, e.g., Kotteakos v. United States, 328 U.S. 750, 764 (1946)

(“[T]he question is, not were they right in their judgment, regardless of the error

or its effect upon the verdict. It is rather what effect the error had or reasonably

may be taken to have had upon the jury’s decision.”); 7 Wayne R. LaFave et al.,

Criminal Procedure § 27.6(b), at 134–40 (4th ed. 2015) (discussing

nonconstitutional harmless error standards states have adopted instead of the
correct result test and noting “it is doubtful that any court today continues to

adhere to that standard”); Dick R. Schlegel, The Evolution of Harmless Error in

Iowa: Where Do We Go from Here?, 43 Drake L. Rev. 547, 590–91 (1995) (arguing

against the correct result test and asserting that “[t]he appellate courts should

not, under any circumstances, declare a particular error harmless on the basis

of overwhelming evidence of the defendant’s guilt”).

Although we avoid the correct result verbiage, one might be forgiven for

thinking that we’ve simply engaged in correct result analysis by another name
when we find harmless error based on our own belief that the evidence of guilt
 40

is “simply overwhelming,” as the majority states here. “It is not within the power

of [an appellate court] to determine the guilt of a defendant who has not waived

the jury right, nor . . . by reviewing the facts ourselves and pronouncing the

defendant without-a-doubt guilty.” Neder v. United States, 527 U.S. 1, 32 (1999)

(Scalia, J., concurring in part and dissenting in part).

Considering evidence and weighing its probative force with and against the

other evidence presented is a quintessential jury function. When the court

usurps this function, it “denie[s] the defendant the benefit of the presumption of

innocence, the effect of his plea of not guilty, and his right to have the jury decide

whether the State met its heavy burden to prove the intent element.” State v.

Trudo, 253 N.W.2d 101, 110 (Iowa 1977) (en banc) (McCormick, J., dissenting).

Though it may at first seem “convenient” not to go through the expense of

another trial, it must be

remembered that delays and little inconveniences in the forms of
justice are the price that all free nations must pay for their liberty
in more substantial matters; that these inroads upon this sacred
bulwark of the nation are fundamentally opposite to the spirit of our
constitution; and that, though begun in trifles, the precedent may
gradually increase and spread to the utter disuse of juries in
questions of the most momentous concern.

Neder, 527 U.S. at 39–40 (Scalia, J., concurring in part and dissenting in part)

(quoting 4 William Blackstone, Commentaries *350 (1765)). The determination of

guilt must reside not with appellate judges but with twelve impartial members

of Krogmann’s community—the jury. Krogmann’s jury did not have the

opportunity to weigh relevant, admissible evidence when it considered the issue

that anchored his defense. I thus respectfully dissent and would remand for a

new trial.

Oxley, J., joins this dissent.