IN THE COURT OF APPEALS OF IOWA
No. 22-1958 Filed May 8, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
DOUGLAS ARTHUR HAGENOW, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County,
DeDra Schroeder, Judge.
A defendant appeals his convictions for sexual abuse. AFFIRMED.
Alexander Smith of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messamer, L.L.P., Des Moines, for appellant.
Brenna Bird, Attorney General, and Aaron Rogers, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Greer and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Douglas Arthur Hagenow appeals his convictions for sexual abuse,
contending that insufficient evidence supports his convictions because the
witnesses are not credible and challenging the district court’s ruling on his pretrial
motions. Upon our review, we affirm Hagenow’s convictions.
I. Background Facts and Proceedings.
In 2009, the Hagenow family moved from New Zealand back to the United
States and settled in Mason City, Iowa. Hagenow opened a children’s gymnastics
gymnasium. His wife, a homemaker, sometimes helped around the family
business. Together, they had five children: two sons, Michael and Christopher; a
set of twin daughters, R.H. and A.H.; and their youngest daughter, K.H. During
this time, the family lived and worked at the gymnasium.
At night, while the rest of the family slept, ten-year-old A.H. went into her
parents’ bedroom and lay next to Hagenow. Hagenow massaged A.H.’s body,
starting with her shoulders to her ribs, then thighs, before moving to her inner
thighs. He then digitally penetrated her. A.H. testified that “his penis would get
hard.” Sometimes he would have her touch him, too. Other nights, “he would rub
his penis against [her] vagina.” This occurred multiple times, “and it was the same
process every time, same steps, same order.” A.H. testified she knew when her
father expected her that night because “[Hagenow] would be more touchy during
the day/evening, and that’s how I kind of had more of a signal.”
In 2011, the family leased a new space and moved the gymnastics
business. While it was being renovated, they resided in two different rental
houses. Their first home was temporary because of its small size and, after less 3
than one year, they had moved again to the second rental home, which the family
called “the Newman house.” Because this house was larger, A.H. and R.H. had
their own bedrooms, Christopher and Michael slept in the living room, and K.H.
slept in the parents’ room. The mother slept on an air mattress, and Hagenow
slept on a standard twin mattress, with K.H. between them. It was in this room that
A.H.’s abuse continued each week in the same routine as the old gymnasium. The
mother never awoke during these occasions. A.H. recalled that the last time
Hagenow abused her and asked her to reciprocate, she was fourteen years old
and “pushed [her] hand away from him.”
R.H., then age twelve, also testified she was abused at the Newman house
in a manner called “morning cuddles.” At least once per week, Hagenow would
ask R.H. to come to the bed with him and “reach under [her] pants and underwear
to touch [her] vagina.” He would also put her hand on his penis and have her move
her hand on it. R.H. said she “would try to push him away” but that Hagenow
“would not listen, and he would just continue.” There were other times where their
interactions became violent. One time, Hagenow pinned her down on the bed with
his body. Another time, Hagenow held R.H. against the wall and “was trying to
make out with [her]” on her face, mouth, and neck while she tried to escape. The
mother witnessed the struggle and repeated, “That’s enough, Doug” several times
before he released R.H. Of the incident, R.H. described being “terrified” and “trying
to get away.”
Seven-year-old K.H. was first abused by Hagenow while living at the
Newman house. She testified that while “halfway asleep,” Hagenow told her that
“what he was going to do was going to feel good. And then he went under the 4
sheets, he pulled [her] underwear down, and he started to touch [her], touch [her]
genitals with his mouth.” K.H. described “his genitals [as] erect.” This happened
twice. Afterward, he asked K.H. “to go over to him and touch his genitals.” When
K.H. did not do as he wanted, he “turned around, gave [K.H.] the cold shoulder for
the rest of the night.” K.H. testified that her mother never noticed anything because
Hagenow “was very careful enough to make it quiet.” But the mother testified that
she awoke on several occasions after hearing Hagenow “masturbating” while K.H.
was in the bed.
The girls were rewarded when they complied with what Hagenow wanted
them to do. A.H. testified that after incidents of abuse, Hagenow would make them
“feel, like, special, like [they] meant something.” Similarly, K.H. stated she “trusted
him; and all I want[ed] was his love, for him to accept me.” She recalled getting “a
lot of positive feedback during the time of the abuse.” But much like when
Hagenow ignored K.H. after she did not do what he wanted, there were
consequences for not complying, like Hagenow withholding attention and affection
from the girls.
In May 2014, R.H. attended a youth ministry program. During one session
about forgiveness, youth pastor Katie Zickefoose shared her childhood sex-abuse
experience. Touched by her story and her willingness to forgive her abuser, R.H.
wrote Zickefoose a letter where she vaguely disclosed her own abuse. After
receiving the letter, Zickefoose met with R.H. in person, and R.H. identified her
abuser as her father, Hagenow. Because Zickefoose was a mandatory reporter,
she discussed with R.H. that she had to report the abuse, and R.H. wanted to be
present. R.H., Christopher acting as her support person, and Zickefoose called 5
the Iowa Department of Human Services (DHS)1 and reported the abuse.
Zickefoose also notified the mother once the report had been made. The mother
testified, “You know, I believed it from the get-go,” explaining that “there was not a
moment in my head that I didn’t believe her.” When the DHS contacted the mother
about the allegations, they jointly completed a safety plan wherein the mother
agreed to prevent contact between Hagenow and the girls, to cooperate with the
investigation, and start R.H. in therapy.
Because Hagenow resided in the home with R.H. and other minors, the
youth ministry paid for the mother and children to stay in a hotel room for the night.
While at the hotel, the mother asked A.H. whether she had also been sexually
abused, and A.H. said, “Yes.”
As part of its investigation, the DHS scheduled forensic interviews for R.H.,
A.H., and K.H. at the Child Protection Center. Hagenow “told [the mother] that
under no circumstances could [she] go to this meeting” or tell them K.H. co-slept
with them because the DHS would remove the girls from the home. The mother
“panicked.” Despite the DHS’s instructions to prevent contact, the parents called
a “family meeting.” R.H. protested at having to see her abuser, stating, “No, I don’t
want to. I don’t want to see him at all.” But the family meeting took place with
Hagenow in the same room as the girls. At the meeting, the parents decided the
best solution was to flee the country. They planned for the mother and children to
hide in Minnesota, apply for New Zealand passports, and then cross into Canada
1 In 2022, the legislature merged the Iowa Department of Human Services and the
Iowa Department of Public Health to create the Iowa Department of Health and Human Services. But at the time of the report, it was still the Iowa Department of Human Services. 6
illegally to avoid border patrol. Once in Canada, they would fly to New Zealand
because “[t]hey’ll be watching the planes” in the United States and “come and take
the girls” for trying to escape. A.H. was “relieved” to move back to New Zealand
because she “had distance away from [her] abuser, that it wouldn’t happen again.”
The mother, the girls, and Michael packed up and traveled to the Red Roof
Inn in Minnesota. Hagenow and Christopher, who lived outside the home with his
then-girlfriend, stayed behind. In Minnesota, Michael was tasked with “taking the
photos, editing the photos, doing the research to make sure that everything gets
accepted the first time,” and applying for their passport renewals. The parents
confiscated everyone’s cellphones, and the mother had only a prepaid “burner”
phone to contact Hagenow “because he was so afraid that DHS would be listening
in to [the] calls.”
During the nearly three weeks they stayed in Minnesota, authorities
struggled to locate the family after realizing the girls did not show up to school or
the forensic interviews. The Mason City Police Department contacted Hagenow
for a welfare check, and Hagenow told officers that he did not know where the
mother and children were. Zickefoose also became concerned when R.H. did not
come back to the youth group after the DHS report, so she texted her, “Hey, how
you doing? Everything okay?” but did not receive an immediate response. Despite
everyone’s concerns for the children, the authorities did not take any court action
at that time to force cooperation with the investigation.
Meanwhile, in Minnesota, two issues arose. First, the renewed passports
could not be mailed to a hotel address, which prevented their escape. Second,
the mother, Michael, and A.H. received a disturbing phone call from Hagenow. 7
Michael testified that during the conversation, emotions ran high because “[t]here
was, you know, talk of [Hagenow] committing suicide.” The mother described
Hagenow as “distraught,” stating his “life is over.” She was worried he would step
in front of a train. A.H. testified that her mother said, “If we come back, would you
not do anything, not kill yourself?” and Hagenow replied, “Yeah.”
Michael recalled that he and the mother later had a second phone
conversation with Hagenow. In it, they determined that
in order for us to come back down to Mason City, that [R.H.] would have to say that she made up the allegations. . . . Otherwise, as soon as we came back, if that wasn’t made apparent during the phone call, DHS would have been involved and would have acted more assertively this time and try and keep the kids away from the parents.
After the conversation, the mother shared the plan with R.H. R.H. drafted a script
to follow, stating that “it would help my mind that I could reference it and make sure
that I’m lying the right way.” She testified she “had no choice” in the plan and
submitted because she “had nowhere to go.” By phone, R.H., the mother, and
Hagenow’s attorney participated in her forced recantation, wherein R.H. said the
abuse did not occur. Michael described R.H. as “sacrificing herself to keep us
together, to kind of give in in such a way where she just had to give up.” Despite
being unable to contact the mother or R.H., the DHS closed their investigation after
Hagenow’s attorney sent them R.H.’s recantation.
The family returned to Iowa and reunited with Hagenow. R.H., A.H., and
K.H. all testified they were never sexually abused again by Hagenow after R.H.’s
disclosure, and K.H. “was not allowed to sleep in [her] parents’ bed anymore.” K.H.
also testified that she felt her father’s love was “conditional” on the abuse 8
occurring, and once it stopped, “he stopped caring about [her].” A.H. noticed a
similar shift, with Hagenow not showing her love or affection once the abuse
stopped.
Other changes were made. To prevent R.H. from contacting Zickefoose,
Michael helped Hagenow install tracking software on her cellphone. The software
“could capture audio, forward text messages,” location, and other data to
Hagenow. They also set up a “geo fence location” around both the youth ministry
center and the Crisis Intervention Services, which would notify Hagenow if R.H.’s
cellphone entered that area. R.H. was unaware of the software on her cellphone.
According to A.H., her twin came back to Iowa “a totally different person.”
Formerly a straight-A student in advanced classes who loved music and singing,
R.H. started skipping school and eventually dropped out. She “wasn’t sleeping”
and was “having nightmares of [Hagenow] and blood.” Michael testified that R.H.
“slowly started to go more down into the road of depression.” Hagenow was still
not living in the home, staying at the new gymnasium during the renovations, and
agreed to give R.H. space. But the mother recalled one incident where he banged
on the bathroom door while R.H. was showering and demanded she open the door
so he could use the restroom. After a brief verbal altercation between him and the
mother, Hagenow stated, “No. This is my house, this is my rules” and stormed in
to use the restroom. After, the mother went into the bathroom to check on R.H.,
she found her huddled in the corner of the shower, “just wrapped up like she was
scared shitless.” At this point, the mother decided, “I need to do something,
because it wasn’t going well.” R.H. expressed wanting to go into foster care
“because [she] just could not be around [Hagenow] anymore.” But R.H.’s maternal 9
grandmother in New Zealand agreed to take R.H. in, and R.H. moved there at the
age of sixteen. R.H. was excited to go because “being an ocean away from
[Hagenow]” made her feel safe.
Around this same time, the renovations on the business were completed
enough that the family moved from the Newman house to what they called the
“new gym.” Hagenow continued to distance himself from A.H. and K.H., and the
family lived at the new gym for several years.
In 2019, R.H. redisclosed her sexual abuse to New Zealand law
enforcement. While an investigation occurred, no formal charges were filed.
Still at the new gym, in 2020, K.H. disclosed to the mother that she had
been sexually abused by Hagenow. The mother did nothing about K.H.’s
disclosure because her immigration status prevented her from financially taking
care of the children without Hagenow. After K.H.’s disclosure, the three sisters
communicated over messaging that they had all been sexually abused by
Hagenow, although they never shared any details with one another.
In 2021, R.H. redisclosed her abuse a third time and included what
happened to her sisters in the report. When A.H. heard this, she was angry with
R.H. and “kept telling her, ‘It’s my story. I should have the choice on when I’m
ready to tell it.’ But [R.H.] said, ‘Your story is—is interwoven with mine. Therefore,
I couldn’t not tell your story with my story.’” Based on R.H.’s allegations, the Mason
City Police Department investigated, working with New Zealand law enforcement
as part of its inquiry. This time, the mother allowed K.H. to be interviewed at the 10
Child Protection Center,2 and all three girls participated, with R.H. appearing
virtually because she was still in New Zealand. Each of the girls disclosed that
Hagenow sexually abused them as minors in their separate interviews.
Hagenow was charged with: Count I, second-degree sexual abuse; and
Counts II and III, third-degree sexual abuse. While being held in jail pretrial, he
communicated with the outside world through jail-monitored text messages. He
directed his brother to liquidate the gymnastics business and use the funds to
“negotiate with girls [to get] all charges dropped.” He told the mother “to sell
everything. Like, he was saying, ‘Don’t be stupid. Sell, sell, sell. Take cash only.
No checks.’” Initially hesitant, the mother was eventually persuaded to liquidate
the gymnasium and move in with her son. The mother testified that the majority of
the funds went to the lease buyout on the new gym, but each of her children
received $4100 and she received $3800. Any other proceeds and funds went to
the mother’s living expenses because she was still unable to work due to her
immigration status.
When the State attempted to amend the trial information to add charges,
Hagenow moved to sever the counts into three trials. Neither party’s motion was
successful. In the order denying Hagenow’s motion, the court concluded that each
count was part of a “common scheme or plan” and there was no unfair prejudice
to the defendant by not separating them.
Two weeks pretrial, Hagenow’s counsel withdrew based on an ethical
conflict. The State resisted the withdrawal because R.H. had already been flown
2 By this time, R.H. and A.H. were no longer minors and could consent to their own
interviews. Only K.H. required parental permission to attend the interview. 11
in at State expense for her deposition and the trial. Because the conflict was
unresolvable, the court granted the withdrawal and continued the trial for a later
date.
Three weeks before the continued trial, Hagenow moved for substitute
counsel. At a hearing on the motion, Hagenow made several requests for
court-expensed transcription of evidence already available in another format, for
court-expensed expert testimony on witness credibility, for evidence that did not
exist, and for court-expensed software to view seized data. Most of these requests
were denied. Instead, the court allowed Hagenow access to a blank laptop
computer while in jail to view the seized evidence. Hagenow also alleged his trial
counsel was neglectful and “simply ignores his client” because he was not
answering his numerous voicemail messages.
Hagenow further claimed that he and his counsel had a “fundamental
difference” regarding trial strategy. Hagenow wanted to assert that the mother and
children were alleging sexual abuse purely to liquidate the business and share the
proceeds of the sale. Hagenow’s counsel opined that it was a “losing defense” but
agreed to ask questions regarding the economic-advantage defense to appease
his client.
The court ultimately denied Hagenow’s motion for substitute counsel. It
determined Hagenow had alternative ways to contact his attorney, his trial counsel
had hired additional staff since the complaints, and the parties seemed agreeable
to the compromises proposed by the court. Hagenow and his counsel “both
indicated that they [were] ready to proceed with trial as scheduled” at the end of
the hearing. 12
After a four-day trial, the jury found Hagenow guilty of the crimes as
charged. He appeals, arguing insufficient evidence supports the convictions and
that the court abused its discretion when denying his pretrial motions.
II. Sufficiency of the Evidence.
Hagenow first contends that insufficient evidence supports his convictions
because the witnesses are not credible. We review sufficiency-of-the-evidence
claims for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202
(Iowa 2022). Viewing the evidence in the light most favorable to the State, a verdict
is binding on our court if “supported by substantial evidence.” Id.
While we reserve credibility determinations for the factfinder, see id.,
Hagenow relies on State v. Smith to argue we have previously placed restraints
on our deference to the jury’s findings. 508 N.W.2d 101, 103 (Iowa Ct. App. 1993).
The limitation Smith relied on derived from the “Graham rule,” in which a witness
gave blatantly contradictory testimonies at two separate trials. Id.; accord Graham
v. Chi. & N.W. Ry. Co., 119 N.W. 708, 711 (Iowa 1909). Hagenow is correct that
we have previously placed limits on the jury’s credibility determinations when “the
testimony of a witness may be so impossible, absurd, and self-contradictory that
the court should deem it a nullity." State v. Mitchell, 568 N.W.2d 493, 503
(Iowa 1997) (internal citations omitted). Part of the reason the Graham rule was
applied was because there was no other corroborating evidence available; the
witness’s testimony was the only evidence. Fazio v. Brotman,
371 N.W.2d 842, 844 (Iowa Ct. App. 1985). But we also note that “Smith is an
outlier,” State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022), and that “the
circumstances . . . were extreme,” State v. Schondelmeyer, No. 14-0621, 13
2015 WL 1817030, at *3 (Iowa Ct. App. Apr. 22, 2015). The set of circumstances
required to vacate a conviction based on Smith is “exceedingly rare.” State v.
Atkins, No. 20-0488, 2021 WL 3895198, at *3 (Iowa Ct. App. Sept. 1, 2021). We
find such circumstances are not present here.
First, despite Hagenow’s request for us to make a credibility determination,
we have never permitted appellate courts to masquerade as jurors. See State v.
Garduno-Rodriguez, No. 17-1165, 2018 WL 3057543, at *3 (Iowa Ct. App.
June 20, 2018) (“We do not sit to judge the credibility of witnesses nor to reweigh
the evidence.”); State v. Kissel, No. 16-0887, 2017 WL 6032585, at *2 (Iowa Ct.
App. Nov. 22, 2017) (“We thus leave the credibility determination to the jury, where
it belongs.”). It is not our role on appellate review “to resolve conflicts in the
evidence, to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the jury.” State v.
Mathis, 971 N.W.2d 514, 519 (Iowa 2022) (citation omitted). We similarly reserve
for the jury the ability “to reject certain evidence, and credit other evidence.” Id.
at 518 (citation omitted). We therefore decline Hagenow’s request for us to make
such a credibility determination now.
Second, while Hagenow claims the witnesses’ testimonies at times lacked
particulars, this is distinguishable from the circumstances in Smith and Graham.
We do not require victims of child sex abuse to recall every detail with perfect
clarity, and in fact, they rarely do. See Atkins, 2021 WL 3895198, at *3 (“The
inconsistencies raised in this appeal are of the kind commonly found in
prosecutions for child sex abuse, and they do not render the substance of the
testimony impossible, as was found in Smith.”). Over an entire decade had passed 14
between the incidents of abuse and the eventual trial, and the temporal particulars
of the offense are not required for conviction. See id. (finding inconsistencies in
the victim’s testimony “regarding the particular time and location of specific
instances of abuse over the relevant time period do not preclude a conviction”).
Even if some of the details are lost to time, R.H., A.H., and K.H. all detailed the
same general set of facts. See State v. Veverka, No. 22-0255, 2023 WL 5949004,
at *5 (Iowa Ct. App. Sept. 13, 2023) (“[The witness’s] statements were not so
inconsistent or otherwise deficient that the district court was required to find her
unbelievable.”).
Hagenow also asks us to require more than just the victims’ testimonies to
justify his convictions. While we have never required corroboration and in fact
expressly reject it in our procedural rules, see Iowa R. Crim. P. 2.21(3)
(“Corroboration of the testimony of victims shall not be required.”), this testimony
was reinforced by other circumstantial evidence, which distinguishes it from
Graham. 119 N.W.2d 708, 709 (where the “plaintiff’s case rested upon the
testimony of [the witness] alone”). Here, the State introduced the testimonies of
family members, those involved in the investigations, and supporting exhibits.
Their testimonies were generally consistent with one another, and a full record
validates their assertions. The State admitted multiple disclosures, including a
forced recantation with applicable testimony, and corroboration even among the
victims, who had not shared the details of their abuse with one another. Physical
evidence was unavailable given the delayed disclosure of the abuse, but it was not
required. See State v. Howland, No. 22-0519, 2023 WL 3613259, at *1 (Iowa Ct.
App. May 24, 2023) (restating victim testimony is sufficient and “need not be 15
corroborated by physical evidence” (citation omitted)). But none of this evidence
is necessary for Hagenow’s convictions.
Viewing the evidence in the light most favorable to the State, the victims’
testimonies “alone [are] sufficient for conviction.” See State v. Donahue,
957 N.W.2d 1, 10–11 (Iowa 2021). Their testimonies established a consistent
pattern of sexual abuse, in stark contrast to the narratives from Smith. 508 N.W.2d
at 103. The jury was instructed to convict Hagenow if the State proved all of the
following:
1. On or about between January 1, 2009 and May 1, 2014, the defendant performed a sex act with [the victim]. 2. The defendant performed this sex act while [the victim] was [the age applicable to the degree of sexual abuse charged].
The testimonies of the victims and family members establish both the occurrence
of the sex acts and the timeline. The age of abuse was narrowed down based on
the house in which the abuse occurred, and the jury was free to believe such
testimony reflected the victim’s age at the time. Further, the type of abuse was
alleged by each victim, and the jury was similarly instructed to compare it to the
definition of “sex act” provided in its instructions as “any sexual contact”:
1. By penetration of the penis into the vagina or anus. 2. Between the mouth of one person and the genitals of another. 3. Between the genitals of one person and the genitals or anus of another. 4. Between the finger or hand of one person and the genitals or anus of another person. 5. By a person’s use of an artificial sex organ or a substitute for a sexual organ in contact with the genitals or anus of another.
R.H.’s, A.H.’s, and K.H.’s testimonies detailed Hagenow’s sexual touching of their
genitals, either with his hands, penis, or mouth, and how the acts were motivated 16
by sexual desires. The record is replete with explicit evidence of Hagenow’s
intentions with his daughters, using them for his own sexual arousal and
stimulation. It is not up to us to question the validity of such testimony but to
consider whether sufficient evidence supported the jury’s verdict. See
Mathis, 971 N.W.2d at 519. By itself, the testimony is sufficient evidence. See
Donahue, 957 N.W.2d at 10–11. We therefore affirm Hagenow’s convictions.
III. Pretrial Motions.
Hagenow next argues that the denial of his motions to sever the counts and
for substitute counsel constituted an abuse of discretion. We consider each in turn.
A. Denial of Motion to Sever or Bifurcate Counts.
Early on in the proceedings, Hagenow moved to sever or bifurcate the
counts into separate trials, and the district court denied his motion. We review the
court’s “refusal to sever multiple charges against a single defendant for abuse of
discretion.” State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013) (quoting State v.
Elston, 735 N.W.2d 196, 198 (Iowa 2007)). To determine whether the counts
should be separated into individual trials, we use a two-part analysis. See
Elston, 735 N.W.2d at 198–99. We first consider whether the offenses
“constitute[d] parts of a common scheme or plan” such that they should be tried
together in a single trial. See Iowa R. of Crim. P. 2.6(1). We then balance the
prejudice to the defendant against the court’s interests in judicial economy. See
Romer, 832 N.W.2d at 181–83.
Hagenow challenges the court’s finding that similar acts on different victims
satisfy the test for a common scheme or plan, arguing there must be some
“common link” between offenses. State v. Oetken, 613 N.W.2d 679, 688 17
(Iowa 2000). To determine whether the offenses are part of a common scheme or
plan, we “consider factors such as intent, modus operandi, and the temporal and
geographic proximity of the crimes.” Romer, 832 N.W.2d at 181. We also consider
whether “[t]he defendant carried out similar acts in similar ways.” State v. Umana,
No. 11-0667, 2012 WL 4513859, at *6 (Iowa Ct. App. Oct. 3, 2012). The Iowa
Supreme Court has found a connection between acts when they were “motivated
by [a] desire to satisfy sexual desires through the victimization of children.” Elston,
735 N.W.2d at 199. The district court found Hagenow’s crimes motivated by such
desires, and we agree.
Based on the evidence, Hagenow had clear sexual intentions that he turned
into patterned behavior. Hagenow’s relationship with the victims created an
opportunity for him to isolate the children and perpetuate the abuse. See
Umana, 2012 WL 4513859, at *6 (finding a common scheme or plan when the
defendant “used his position of trust and authority” to victimize children). Further,
the incidents themselves happened in the same location during the same
timeframe and followed a distinct pattern. See Elston, 735 N.W.2d at 199 (finding
a common scheme or plan when “[a]ll of the transactions allegedly occurred in
close geographic proximity within the [family’s] small home”). Each occasion
started out as seemingly-innocent “morning cuddles” or simply snuggling in bed.
He would massage or rub the child before graduating to touching the child’s
genitals with his hands or mouth. Then he would ask the child to touch him and
attempt to manipulate them to get what he wanted. If the child did not comply,
Hagenow would withhold love and attention; if she gave in, he would shower her
with affection. See Romer, 832 N.W.2d at 182–83 (concluding a common scheme 18
or plan exists when the defendant “displayed a similar modus operandi with all of
the minors involved” through patterned behavior across multiple victims); see also
State v. Johnson, No. 22-1139, 2023 WL 8069231, at *4 (Iowa Ct. App.
Nov. 21, 2023) (factoring the similarity of acts “starting with massages before
progressing” to other sexual contact into a common-scheme analysis). Hagenow
followed a distinct pattern in committing these offenses, despite having several
victims. Accordingly, we find no abuse of discretion in the district court’s
determination that the three offenses were part of a common scheme or plan.
In the second part of the analysis, “[t]o prove the district court abused its
discretion in refusing to sever charges, [the defendant] bears the burden of
showing prejudice resulting from joinder outweighed the State’s interest in judicial
economy.” Elston, 735 N.W.2d at 199 (citation omitted). Hagenow makes two
arguments on this point: (1) prior-bad-acts evidence is inherently prejudicial and
(2) the prejudice outweighs the court’s interests in judicial economy.
First, Hagenow contends that our evidentiary rules prevent admission of
prior-bad-acts evidence and having cumulative testimony improperly bolstered the
witnesses’ credibility. See Iowa R. Evid. 5.404(b) (preventing evidence of other
acts from being admitted for propensity purposes). But Iowa courts have expressly
rejected this argument over and over when considering bifurcation of counts. See
Romer, 832 N.W.2d at 183 (“[The defendant’s] only arguments in this area pertain
to our evidentiary rule on propensity, which we have unequivocally established as
distinct from an analysis under our law dealing with joinder of offenses.”); State v.
Lam, 391 N.W.2d 245, 250 (Iowa 1986) (“The two rules deal with different
questions, making the wholesale importation of the evidentiary rule into the law 19
dealing with joinder of offenses inappropriate.” (citation omitted));
Johnson, 2023 WL 8069231, at *5 (rejecting the defendant’s propensity-rule
argument based on Romer precedent); State v. Monsoon,
No. 21-0213, 2022 WL 951179, at *1 (Iowa Ct. App. Mar. 30, 2022) (“[T]he Iowa
Supreme Court has squarely rejected an Iowa Rule of Evidence 5.404(b) analysis
in the formula.”). To the extent that he suggests any change, we follow existing
precedent and decline to sever the counts based on any prejudice resulting from
prior bad acts. See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014)
(acknowledging “it is the role of the supreme court to decide if case precedent
should no longer be followed”).
Hagenow then argues the prejudice outweighed the judicial economy of a
single trial because each child’s testimony was only necessary for their respective
trial. But we disagree. R.H., A.H., and K.H.’s stories are all completely intertwined.
R.H.’s first disclosure and recantation sparked questions about her sisters and
eventually, led to their own disclosures to their mother. Then, R.H.’s two later
disclosures resulted in A.H.’s and K.H.’s willingness to come forward. Their
timelines are interconnected, which makes separation into three trials impractical
if not impossible. Further, nearly every witness would testify in all three trials and
their testimonies would include “the same operative facts.” Romer, 832 N.W.2d
at 183. Even if the victims did not testify to their own abuse in their sisters’ trials,
they would still be needed to testify to other matters, such as the timeline,
Hagenow’s motives and actions around the time of the abuse, and the events that
sparked the disclosures. In addition, the interest in judicial economy here is
especially high given that R.H. had to be flown from New Zealand for depositions 20
and trial. Finally, the jury was properly instructed to alleviate any potential
prejudice. See id. (considering whether the jury “had a cautionary instruction which
instructed the jury to look at each of the . . . counts separately and reach a verdict
on each count separately” in undue-prejudice analysis). We therefore do not find
any abuse of discretion by the court in balancing such prejudice against the high
interest in keeping the counts together in a single trial.
B. Denial of Motion for Substitute Counsel.
Next, Hagenow contends the district court abused its discretion when
denying his motion for substitute counsel. While the parties disagree on the
appropriate standard of review, our review is for an abuse of discretion. 3 See
Tejeda, 677 N.W.2d at 749. “We will only find an abuse of discretion if the trial
court exercised its discretion on clearly untenable or unreasonable grounds.” State
v. Petty, 925 N.W.2d 190, 194 (Iowa 2019).
Hagenow alleges there was a breakdown in attorney-client communication
and the court neglected its “duty to inquire” into that relationship. See
Tejeda, 677 N.W.2d at 751–52. “A complete breakdown in communication
between an attorney and a defendant is sufficient cause justifying the appointment
of substitute counsel.” Petty, 925 N.W.2d at 196 (citation omitted). But here the
district court made a complete inquiry. While we do not require the court to
“conduct a hearing every time a dissatisfied defendant lodges a complaint about
3 Hagenow claims that our review is de novo because the right to counsel is
constitutional. While our review of the court’s failure to rule on requests for substitute counsel implicates a constitutional right and is de novo, State v. Tejeda, 677 N.W.2d 744, 749 (Iowa 2004), the district court ruled on Hagenow’s motion. We therefore review his denied request for an abuse of discretion. See id. 21
his attorney,” Tejeda, 677 N.W.2d at 751, the court did just that. Not only did the
court hold a hearing on the motion, but it deliberately went through each of
Hagenow’s concerns one-by-one. While it could not produce evidence that did not
exist or expense inadmissible witnesses, the court resolved what issues it could.
It coordinated access to certain evidence Hagenow requested and when there
were concerns about getting a laptop to Hagenow, the court promised, “let’s make
it happen.” As for Hagenow’s criticisms of his attorney “neglect[ing] this particular
case,” the court confirmed with Hagenow’s counsel that he had recently hired
additional staff, which would alleviate some of the communication issues. It also
made certain that Hagenow had multiple methods of contacting his trial counsel,
such as phone calls, voicemail messages, and written correspondence. Finally,
the court addressed the “fundamental difference” in strategy between Hagenow
and his attorney. Hagenow and his attorney reached a compromise, where
counsel agreed to pursue Hagenow’s preferred defense strategy despite his
professional reservations. The court then confirmed whether the parties were
prepared for trial, and they responded affirmatively.
To the extent that Hagenow contends the court improperly denied his
request for substitute counsel, we disagree. Hagenow has not met his burden in
showing that new counsel is necessary based on a complete breakdown in
communication. See State v. Lopez, 633 N.W.2d 774, 778–79 (Iowa 2001). “The
court has considerable discretion whether to grant substitute counsel, and
eleventh-hour requests for substitute counsel are generally disfavored.” State v.
Boggs, 741 N.W.2d 492, 506 (Iowa 2007). Moreover, we generally view such
requests with suspicion when they are employed on two separate occasions mere 22
weeks before trial. See Tejeda, 677 N.W.2d at 750 (“Last-minute requests for
substitute counsel, insofar as they constitute a delay tactic, are disfavored.”); see
also State v. Atley, 564 N.W.2d 817, 839 (Iowa 1997) (Lavorato, J., dissenting)
(noting that judges “must be wary of defendants who employ complaints about
counsel as dilatory tactics”). Most importantly, Hagenow’s arguments lack merit
and suggest more generally a distaste for his attorney’s methods than a real
communication issue. For example, Hagenow complained about his attorney’s
decision to use hard-copy photographs rather than create a digital slide show
presentation despite Hagenow simultaneously acknowledging that was not a
sufficient reason for new counsel. This issue is completely irrelevant to his trial
counsel’s ability to represent him. See Lopez, 633 N.W.2d at 781 (finding the
defendant’s unrelated concerns did not establish the breakdown of attorney-client
communication because they “had nothing to do with defense counsel’s
representation”). The Iowa Supreme Court also found that a
general frustration and dissatisfaction with defense counsel expressed by a defendant does not alone render counsel unable to perform as a zealous and effective advocate. The focus of the inquiry is not on the defendant’s relationship with his or her attorney, but “the adequacy of counsel in the adversarial process.” In reality, “a person accused of a crime is often genuinely unhappy with an appointed counsel who is nevertheless doing a good job.” Thus, not all criticism lodged by a defendant against defense counsel requires new counsel.
Boggs, 741 N.W.2d at 506 (internal citations omitted). As the district court noted,
“This appears to be a situation where an attorney with a busy and active practice
has to attempt to try to attend to many cases and matters. [Hagenow] did not
specify any issue that he ultimately was unable to discuss” with his attorney.
Based on the hearing, we find much of Hagenow’s frustrations involved issues with 23
evidence and the proceedings themselves rather than his counsel. But even still,
most if not all of the issues were alleviated at the pretrial hearing. The court
conducted a thorough inquiry, and the parties conveyed their apparent satisfaction
and preparedness for trial before the hearing concluded. Accordingly, we find no
abuse of discretion by the court. In fact, it surpassed its duty to address Hagenow’s
concerns, encourage communication with his trial counsel, provide him with largely
unfettered access to evidence, secure him a laptop, and ensure the parties were
ready to continue to trial.
IV. Disposition.
Because sufficient evidence supports Hagenow’s convictions and the
district court did not abuse its discretion in denying his motions, we affirm.
AFFIRMED.