               IN THE SUPREME COURT OF IOWA
                               No. 16–2141

                           Filed April 13, 2018


IN RE THE DETENTION OF RONALD TRIPP,

RONALD TRIPP,

      Appellant.


      Appeal from the Iowa District Court for Fayette County, John

Bauercamper, Judge.



      A person committed under the Sexually Violent Predator Act

appeals his commitment. REVERSED AND REMANDED.



      Jill Eimermann, Assistant Public Defender, Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, and Tyler J. Buller and Keisha

F. Cretsinger, Assistant Attorneys General, for appellee.
                                        2

APPEL, Justice.

      As in State v. Wygle, ___ N.W.2d ___ (Iowa 2018), this appeal

involves the relationship between Iowa Code chapter 229A (2016), which

provides for the civil commitment of sexually violent predators, and Iowa

Code chapter 903B, which imposes a special sentence on persons

convicted of certain sexual offenses.

      Ronald Tripp claims in this case that he was unlawfully committed

as a sexually violent predator (SVP).       Tripp asserts the State failed to

prove either that he was presently confined for a sexually violent offense

under Iowa Code section 229A.4(1) or that he committed a recent overt

act under Iowa Code section 229A.4(2). As a result, Tripp asserts, the

district court erred in refusing to dismiss the SVP commitment

proceeding against him.      In the alternative, Tripp claims the district

court improperly allowed an expert witness to be a conduit for the

admission of hearsay evidence at the SVP hearing.

      For the reasons expressed below, we reverse the district court.

Because we hold that the district court erred in not granting the motion

to dismiss, we do not address the hearsay issue with respect to the

expert witness testimony.

      I. Background Facts and Proceedings.

      A. Original    Conviction    for      a   Sexually   Violent   Offense,

Revocation of Probation, and Discharge of Prison Sentence. In 2010,

Tripp was convicted of indecent contact with a child, a sexually violent

offense under Iowa Code section 229A.2(10)(a) (2009). The district court

placed Tripp on probation.     The district court also imposed a ten-year

special sentence pursuant to Iowa Code section 903B.2.

      In 2011, Tripp was charged with failing to abide by the

requirements of the sex offender registry under Iowa Code section
                                             3

692A.113       (2011)    and   for    harassment     under    Iowa    Code   section

708.7(1)(b).      Ultimately,        Tripp   pled   guilty   to   three   aggravated

misdemeanors for sex offender exclusion zone violations and three simple

misdemeanors for harassment.             Tripp’s probation was revoked and he

was incarcerated. Tripp discharged his sentence and was released from

prison in June 2012.

      Upon the completion of his sentence for his underlying offense,

Tripp began serving his ten-year special sentence under Iowa Code

section 903B.2. Under Iowa Code section 903B.2, a person subject to a

special sentence is placed on the corrections continuum under Iowa

Code chapter 901B and is subject to the procedures set out in Iowa Code

chapters 901B, 905, 906, and 908 and the rules adopted under these

provisions for persons on parole. Id. § 903B.2.

      B. Revocation of Release Under Iowa Code Section 903B.2. In

May of 2013, Tripp was charged with assault with attempt to commit

sexual abuse.       The State dismissed the criminal charge but pursued

revocation of Tripp’s release under Iowa Code section 903B.2.

      On October 11, 2013, a hearing was held before an administrative

parole judge.     After receiving evidence, the administrative parole judge

revoked his release.        In a brief order, the administrative parole judge

noted that the burden of proof born by the state in a parole revocation

hearing was a preponderance of evidence.               The administrative parole

judge came to the conclusion that facts stated in a department of

corrections violation report were correct and adopted them wholesale as

findings of fact.       As a result, the administrative parole judge revoked

Tripp’s release and ordered Tripp to serve a two-year sentence as

provided in Iowa Code section 903B.2 (2013).
                                     4

      C. Subsequent SVP Proceedings.

      1. Two-pronged petition. Before Tripp was discharged from his two

year incarceration under Iowa Code section 903B.2, the State filed a

petition seeking civil commitment of Tripp as an SVP under Iowa Code

chapter 229A. The State alleged Tripp was presently confined at the time

of the filing of the petition under Iowa Code section 229A.4(1). The State

also alleged that Tripp had committed a recent overt act under Iowa Code

section 229A.4(2). A district court judge found probable cause and the

matter was scheduled for trial.

      2. Pretrial motions.   Prior to his trial, Tripp filed a motion to

dismiss and a motion in limine. The district court held a hearing on the

motions prior to trial.

      At the pretrial hearing the day of trial, Tripp argued that the SVP

petition must be dismissed.       Tripp noted the State must prove the

elements of either of the two SVP tracks “beyond a reasonable doubt.”

He focused his fire on the allegation in the State’s petition that Tripp was

presently confined for purposes of Iowa Code section 229A.4(1). Tripp

suggested the State had problems with its criminal prosecution and

proceeded with “the easier route” of a parole revocation where the rules

of evidence are relaxed and the burden of proof is lower. He argued that

the record developed at the parole hearing included only the deposition of

the alleged victim, the deposition of a police officer, the victim’s impact

statement, and a letter with the testimony of Tripp denying the charges.

Thus, while Tripp conceded he was confined at the time of the SVP

hearing, it was not because of the conviction for his 2010 offense or the

offense charged in 2013, which was ultimately dismissed.           Instead,

according to Tripp, he was being confined because of a violation of his

special sentence under Iowa Code chapter 903B.
                                     5

      According to Tripp, “[a] special sentence is not the same as being

on probation or parole.”    Tripp noted that for a violation of a special

sentence, regardless of severity, the penalty is the same, namely a two-

year incarceration for a first violation and a five-year incarceration for

subsequent violations.     Tripp asserted the two-year/five-year regime

established   by   Iowa    Code   chapter   903B     was   “arbitrary”   and

“fundamentally different” than a return to prison to serve all or part of an

underlying criminal sentence.

      The State responded that under existing caselaw, a person

convicted of a qualifying offense is still being punished for that offense by

a special sentence under Iowa Code chapter 903B. See State v. Harkins,

786 N.W.2d 498, 505 (Iowa Ct. App. 2009). The State advanced what

amounted to a cause-in-fact argument—Tripp would not have been

subject to Iowa Code chapter 903B special sentence but for his

conviction of a sex offense in 2010.     As a result, Tripp was presently

confined as a result of his original 2010 offense. The State asserted that

authorities from other jurisdictions supported its view that a person who

is on parole and then returned to prison may be subject to SVP

commitment.    See People v. Felix, 87 Cal. Rptr. 3d 482, 490 (Ct. App.

2008); Barber v. State, 988 So. 2d 1170, 1178 (Fla. Dist. Ct. App. 2008);

In re Commitment of Bush, 699 N.W.2d 80, 92 (Wis. 2005).

      Further, the State argued, even if Tripp was not presently confined,

the SVP petition could be supported under the overt-act prong of the

statute.   With respect to the overt-act theory, at the hearing on the

motion to dismiss the State offered into evidence a parole violation

report, Exhibit 5; documentation of the dismissed case that was

submitted as evidence in the parole violation hearing, Exhibit 7; and the

parole revocation order, Exhibit 8. Tripp did not object to the offer of
                                    6

Exhibits 5 and 8, but objected to Exhibit 7 as containing impermissible

hearsay. The State responded, in part, by offering two discs, Exhibit 6A

and 6B, which contained testimony presented at the parole hearing. The

district court accepted the exhibits for purposes of the motion in limine,

but with the clear admonition that they must be reoffered for any

purpose at trial.

      The district court declined to rule on the motion to dismiss, taking

the motion under advisement. The district court next took up the motion

in limine.

      Tripp argued that under our decision in In re Detention of Stenzel,

827 N.W.2d 690 (Iowa 2013), certain types of evidence, such as testifying

from police reports or testifying from minutes of testimony, are not

admissible.   Thus, Tripp argued, this type of evidence from the 2013

charges that were ultimately dismissed could not be admitted.       While

Tripp pled guilty to three simple misdemeanor offenses in 2011, he

argued they were not sexually violent offenses and any hearsay related to

them should be excluded under Stenzel, 827 N.W.2d at 710.

      Tripp also sought to prevent the State’s experts from using police

generated hearsay in forming their opinions.     To the extent any such

information might be admissible under Iowa Rule of Evidence 5.703,

Tripp noted that rule 5.403 requiring the exclusion of prejudicial,

confusing, misleading, delaying, time wasting, or needlessly cumulative

evidence can override any such admission.

      While an administrative parole judge found that Tripp had violated

his special parole, Tripp argued, administrative agency findings were not

admissible under State v. Huston, 825 N.W.2d 531, 539 (Iowa 2013), and

Goodwin v. State, 585 N.W.2d 749, 753 (Iowa Ct. App. 1998).         Tripp
                                     7

again asserted that the administrative parole judge applied a lower

standard of proof than is required under Iowa Code chapter 229A.

      The State responded by characterizing Stenzel as standing only for

the proposition that it cannot create its own evidence and that, as a

result, documents prepared by the prosecution, such as charges or

minutes of testimony, should not be admitted when the charges have

been dismissed. But, the State argued, the reach of Stenzel was limited

in several important respects.

      First, the State suggested, the details of the offenses may be

admitted from other sources, such as admissions of the defendant.

Specifically, the State argued that Tripp had admitted the allegations in

the harassment misdemeanors.         As a result of his guilty plea, the

underlying facts, including offering minors money to undress and jump

into the river, were admissible. The State offered the complaint, guilty

pleas, and the minutes of evidence as Exhibit 2, the report of violation as

Exhibit 3, and an admission of probation violation by Tripp as Exhibit 4.

Tripp objected to Exhibits 2 and 3 as violations of Stenzel. The district

court admitted the exhibits for the limited purpose of considering the

motion in limine.

      Second, the State noted that in this case, while not convicted

criminally of the crime charged in 2013, an administrative parole judge

determined that Tripp committed the offense and thereby violated his

parole.    The State argued that the administrative determination

“essentially operates as [if] it [were] a conviction.” As a result, the State

asserted, it could offer the details of that offense in order to present its

case that Tripp qualified as a sexually violent predator.

      Third, the State asserted that experts consider parole revocation

an “index offense” which then determines the scoring and assessment of
                                       8

other prior offenses and allegations. As a result, experts should be able

to at least reference the underlying charges that led to the revocation of

parole.

        Fourth, the State asserted that information about “other children

in the trailer park” in police reports related to Tripp’s 2010 conviction

could be relied upon by the State’s experts.          The presence of other

children, according to the State, provided a basis for their expert to

determine that Tripp met a particular dynamic risk factor of sexual

preoccupation. The State emphasized that Stenzel was not designed to

change how various instruments were used by experts to indicate future

risk.

        The district court reserved ruling on the motion in limine and the

matter proceeded to trial.

        3. Evidentiary issues at trial. At trial, the State called Tripp as its

first witness. In its interrogation of Tripp, the State sought admission of

the three complaints related to the 2011 harassment charges contained

in Exhibit 2.     The complaints alleged that on three occasions Tripp

offered three minor girls “$10 each to strip nude and jump in the water”

at a bridge over Otter Creek.       Tripp objected to the admission of the

charging documents based on Stenzel. The district court admitted the

exhibit subject to the objection.

        The State also sought to admit through Tripp Exhibit 3, a report of

violation prepared by the department of corrections related to the 2011

harassment charges. The report provides additional details beyond those

contained in the harassment complaints. Among other things, the report

indicated “[the State had] statements from 6 different girls (ranging in

age from 13 to 14) who were approached [by] Tripp,” that Tripp “made

inappropriate comments” before offering them money to take off their
                                     9

clothes and jump into the water, and “Tripp had also shown them his

underwear and asked for a hug.”

      The report further provides information about the 2011 charges

against Tripp for violating Iowa Code section 692A.113 related to

exclusion zones for sex offenders.   Specifically, the report alleged that

Tripp was seen getting his phone out and attempting to take pictures of

four or five kids selling Kool-Aid from a stand.        Tripp objected to

admission of Exhibit 3 under Stenzel and as hearsay. The district court

admitted the exhibit subject to the objections.     Tripp did not object,

however, to Exhibit 4, a document showing that Tripp pled guilty to the

harassment and exclusionary zone charges in 2011.

      Tripp also offered testimony about the 2011 events.            Tripp

admitted being at the Otter Creek location on the three dates charged in

the harassment complaints.      He admitted there were minors at the

location and that his interaction with them involved skinny dipping.

Tripp stated that one of the boys at the location hollered at a girl asking

her to jump naked in the water and that Tripp simply repeated what the

boy had said when asked by the girl.        He further admitted that he

showed the minors his underwear in response to requests that he jump

into the water. Tripp claimed he exposed his underwear to demonstrate

that he was not wearing swimming trunks underneath his clothing.

      The State also explored with Tripp the circumstances of Tripp’s

revocation of parole under Iowa Code chapter 903B in 2013. The State

offered into evidence the department of corrections violation report,

Exhibit 5. The report made reference to an “attached complaint” but no

such complaint was attached to the exhibit. The complaint, original and

amended trial informations, and documents related to the dismissal of

the charges, however, were all assembled in Exhibit 7, which the State
                                    10

offered into evidence.   The State also offered the findings of fact and

conclusions of law of the administrative parole judge as Exhibit 8. Tripp

objected only to Exhibit 7 on Stenzel and hearsay grounds. The district

court admitted the evidence subject to the objection.

      The State next called an expert witness, Anna Salter, to testify.

Salter described two diagnostic tests, the Static-99R and the Static-

2002R.     Salter testified these tests require the examiner to consider a

number of factors that affect an individual’s likelihood to reoffend,

including age, number of previous offenses, and various victim

characteristics. Salter explained the examiner assigns a numerical value

to each factor based on their interview with the individual and

documentary evidence.      The sum of these numbers is then used to

calculate the individual’s risk of reoffending based on actuarial data.

      The State asked Salter to explain her scoring of Tripp on the

factors in each diagnostic test.    Salter testified that she used Tripp’s

2013 revocation as an index offense which influences how various scores

are calculated. At this point, she did not describe the underlying facts of

the 2013 parole revocation.

      Tripp began to object, however, when the State sought to establish

the basis of some of Salter’s scoring. When the State asked why Salter

assigned a point against Tripp for having a five-year-old male victim,

Salter testified that she relied on police reports from May 2010 regarding

a five-year-old victim. At this point, Tripp engaged in voir dire with the

witness.     Tripp established that Salter was relying upon a report

containing facts about which she had no personal knowledge.           Tripp

recognized that the court was reserving objections, but emphasized that

the court should disallow testimony about the matter as it was “in no
                                     11

way reliable, nor is it credible.” The district court admitted the evidence

subject to the objection.

      Salter then continued her testimony by citing the results of a

forensic interview of the child conducted by St. Luke’s Hospital Child

Protection Center. Tripp objected on grounds of Stenzel and “credibility.”

The district court admitted the testimony subject to the objection. When

Salter sought to describe the results of the forensic interview of the

mother, Tripp again objected on the ground that even if Salter could

utilize the interview for scoring purposes, that did not necessitate a

reading into the record of the details of the allegations. The district court

overruled the objection. Salter then read a description of the mother’s

statements indicating that when Tripp rode up to her and the boy, the

boy blurted out to her that “I suck Ron’s pee pee and he sucks mine.”

      Later, Salter offered testimony about “dynamic factors” that some

authorities deem appropriate to consider in SVP cases.         According to

Salter, one of the dynamic factors is sexual preoccupation. Salter again

referenced the 2010 police reports. Tripp’s attorney objected on grounds

of “hearsay, Stenzel, prejudicial more than probative.” The district court

again overruled the objection. Salter then testified

      [t]here were multiple reports of sexual offending that came
      out of that [police report]. They only prosecuted one, but
      there was also a report from a five-year-old, there was [a]
      report from a 15-year-old, there were multiple reports that
      he would get kids in his trailer and offend against them.

      4. District court ruling.   After the bench trial, the district court

issued findings of fact and conclusions of law adverse to Tripp.        With

respect to the pending motion to dismiss, the district court overruled it,

finding that Tripp was presently confined as a result of violation of his
                                    12

Iowa Code chapter 903B special sentence “which was part of his

sentence for the indecent contact crime.”

      The court also addressed the motion in limine. The district court

concluded that “it is acceptable under certain circumstances for an

expert witness to rely on facts not in evidence or crimes not charged or

resulting in conviction, based upon the facts of the case.” As a result, the

court denied the “blanket motion in limine.” The district court, however,

did not rule on the specific objections interposed by Tripp to the

admission of specific exhibits and testimony.

      The district court then turned to the merits of the case.       In its

findings of fact the district court canvased the evidence from Tripp’s

parole revocation hearing in 2013. According to the district court,

      Evidence presented at the parole revocation hearing
      disclosed that Tripp fondled an adult female acquaintance
      who was traveling with him in his vehicle when he offered to
      give her a ride. Trip[p] touched her breast and thighs, and
      tried to touch her vagina despite multiple attempts to block
      the assault. His parole was revoked and he was returned to
      prison.

      The district court concluded that Tripp’s risk of reoffending was

high due to the parole violation, sexual preoccupation, and “sexually
deviant life style in the trailer park,” among other factors. The district

court found that the State had shown beyond a reasonable doubt that

Tripp had a greater than fifty percent chance of reoffending. As a result,

the district court granted the State’s SVP petition and ordered Tripp

committed.

      Tripp appealed. On appeal, he launches a two-pronged attack on

his civil commitment as an SVP.          First, Tripp asserts he was not

presently confined when serving a sentence for violation of Iowa Code

chapter 903B. As a result, Tripp argues, he cannot be civilly committed
                                    13

under Iowa Code section 229A.4(1). Second, Tripp asserts the district

court erred by allowing hearsay evidence of prior alleged sex offenses that

Tripp denied having committed and that were ultimately dismissed.

      II. Standard of Review.

      The district court’s ruling on a motion to dismiss and its

construction of Iowa Code chapter 229A and 903B are reviewed for errors

at law. Stenzel, 827 N.W.2d at 697; Waters v. Iowa Dist. Ct., 783 N.W.2d

487, 488 (Iowa 2010).

      With respect to hearsay challenges, the standard of review is

generally for errors at law. Stenzel, 827 N.W.2d at 697. When experts

rely on hearsay testimony, however, we have applied an abuse of

discretion standard. Id.; Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5

(Iowa 2001).

      III. Motion to Dismiss.

      A. Interplay Between “Presently Confined” Under Iowa Code

Section 229A.4(1) and Revocation of Release Under Iowa Code

Section 903B.2. As in Wygle, this case raises a legal question regarding

the interplay between Iowa Code section 229A.4(1) and the revocation of

release under Iowa Code section 903B.2. ___ N.W.2d at ___. In Wygle,

we held the “presently confined” provision of Iowa Code section 229A.4(1)

does not apply to a person who has been discharged from the sentence

underlying the sexually violent offense that resulted in his incarceration.

Id. at ___. Tripp is thus not “presently confined” under Iowa Code section

229A.4(1) by virtue of being subject to a chapter 903B special sentence.

      B. Overt-Act Alternative Under Iowa Code Section 229A.4(2).

The State did, in the alternative, seek commitment under the recent-

overt-act prong of Iowa Code section 229A.4(2). The State asserts there

was sufficient evidence to find an overt act in the 2013 charges, and as a
                                      14

result, even if Tripp was not presently confined under Iowa Code section

229A.4(1), the State met its burden on showing a recent overt act under

Iowa Code section 229A.4(2).

      There are several problems with the State’s theory.          First, the

district court made no finding of a recent overt act in its ruling, and

thus, even if there is substantial evidence in the record to support an

overt act, the case would need to be remanded for further fact finding by

the district court.

      In any event, whether there was a recent overt act under Iowa

Code section 229A.4(2) sufficient to support the SVP petition is a

question of fact.      It must be proved beyond a reasonable doubt by

admissible evidence. See Iowa Code §§ 229A.7(4), .5 (2016).

      At trial, the State presented no in-court testimony on the alleged

events in 2013.       Instead, the State offered several exhibits related to

these events.    In order to resolve the question of whether the State

offered sufficient evidence to survive dismissal for lack of substantial

evidence on a “recent overt act,” we must examine the contents of each

exhibit and determine whether it was properly admitted into evidence. In

examining the evidence at trial, we must take into account the

admonition of the district court at the pretrial hearing on the motion to

dismiss and the motion in limine.          At the hearing, the district court

clearly stated in response to the State’s offer of exhibits that

      the   offered exhibits, including 6A and 6B, are admitted for
      the   limited purpose of the motion in limine. If counsel for
      the   State wants to use them for any other purpose later in
      the   proceeding, they will need to be offered again.

      At trial on the merits, the State did not offer Exhibits 6A and 6B—

two audio discs of the proceedings before the administrative parole judge.

The State did offer Exhibit 5—a violation report related to the 2013
                                       15

events,   Exhibit   7—the   criminal    complaint,   information,   amended

information, and documents related to dismissal of the 2013 criminal

charge, and Exhibit 8—the findings of fact and conclusions of law of the

administrative parole judge.     At trial, Tripp did not object to the

admission of Exhibits 5 and 8, but continued to object to Exhibit 7 on

“hearsay and Stenzel” grounds. The district court admitted Exhibits 5

and 8 into the trial record and admitted Exhibit 7 subject to the

objections.

       We first consider whether Exhibit 7, which includes the criminal

complaint that details the specifics of the allegations in 2013, was

admissible on the question of whether the State showed a recent overt

act.   We note that the question of whether Exhibit 7 may be used as

substantive evidence in the proceeding to prove a recent overt act is a

different question from whether the evidence may be used by an expert

in forming an opinion.      Hearsay facts and data may, under certain

circumstances, be utilized by an expert in forming an opinion under Iowa

Rule of Evidence 5.703. Further, under appropriate circumstances, such

evidence may be disclosed to the jury to show the basis for the expert’s

opinion. See Carter v. Wiese Corp., 360 N.W.2d 122, 133 (Iowa Ct. App.

1984).    In the context of an SVP litigation, determining which

circumstances are appropriate is a delicate question. See, e.g., In re Care

& Treatment of Colt, 211 P.3d 797, 804 (Kan. 2009) (holding expert

testimony based on hearsay evidence inadmissible); In re A.M., 797

N.W.2d 233, 261–62 (Neb. 2011) (holding hearsay may be utilized by

expert under certain circumstances but not disclosed to the factfinder).

But even if the hearsay evidence may be used by an expert to support an

opinion and, under certain circumstances, might even be disclosed to the

factfinder to show the basis of the expert’s opinion, any hearsay evidence
                                    16

that is admitted under rule 5.703 is not admissible for proving the fact of

the matter asserted. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182

(Iowa 2004) (holding hearsay used by expert inadmissible for truth of the

matter asserted); see also People v. Anderson, 495 N.E.2d 485, 489 (Ill.

1986) (emphasizing hearsay used by experts for limited purpose of

explaining the basis of expert’s testimony inadmissible for truth of matter

asserted); People v. Swanson, 780 N.E.2d 342, 350 (Ill. App. Ct. 2002)

(finding expert reports of others relied upon by trial expert admissible to

show basis of trial expert’s opinion, but not substantively admissible);

State v. Wilkes, 908 N.Y.S.2d 495, 497 (App. Div. 2010) (noting it is

settled law that “hearsay testimony given by experts is admissible for the

limited purpose of informing the jury of the basis for the experts[’]

opinion[s]” (alterations in original) (quoting People v. Campbell, 602

N.Y.S.2d 282, 284 (App. Div. 1993))).

      As a result, regardless of whether the hearsay in Exhibit 7 could be

considered facts or data that may be used by an expert in forming an

expert opinion, it is not admissible on the question of whether the State

has shown the statutory requirement of a recent overt act.       See Iowa

Code § 229A.4(2). The only admissible evidence offered by the State at

trial to prove a recent overt act arising from events in 2013 was the

conclusory report prepared by the department of corrections, Exhibit 5,

and the findings of fact and conclusions of law of the administrative

parole judge, Exhibit 8.

      Even though Exhibit 7 was inadmissible to show a recent overt act,

there is a question whether it should nevertheless be considered for

purposes of determining whether the State offered sufficient evidence to

support the overt-act theory. In State v. Dullard, we held that it was an

error for the court of appeals to exclude consideration of an erroneously
                                    17

admitted handwritten note from its sufficiency-of-evidence review. 668

N.W.2d 585, 597 (Iowa 2003). We explained that the admissible evidence

should have been considered on a sufficiency-of-the-evidence review

because, if the evidence had been excluded at trial, the state might have

introduced other evidence or otherwise employed different tactics to

avoid dismissal.   Id.   We cited Dullard with approval in Stenzel, 827

N.W.2d at 701–02. Other cases follow an approach similar to Dullard.

See McDaniel v. Brown, 558 U.S. 120, 131, 130 S. Ct. 665, 672 (2010);

Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). But see State

v. Maldonado, 121 P.3d 901, 910 & n.13 (Haw. 2005) (holding under

double jeopardy provision of Hawaii Constitution, court on appeal only

considers properly admitted evidence at trial in sufficiency review);

Rushing v. Commonwealth, 726 S.E.2d 333, 339 & n.4 (Va. 2012)

(considering only properly admitted evidence in sufficiency review as a

result of Virginia statute, appellate procedure, and rules of evidence).

      Here, however, the procedural posture is materially different than

that in Dullard. Unlike in Dullard, the district court in this case did not

admit the evidence without qualification at trial.     Instead, the district

court admitted the evidence subject to Tripp’s objection. At trial, then,

the district court did not rule “it’s in” but instead ruled “maybe it’s in.”

Thus, the State was on notice that it was at risk on the question of

admission of the evidence. The State then elected to rest its case without

offering further evidence.   The State could not reasonably rely on the

district court admission of evidence because it was subject to the

objection raised by Tripp.

      Further, as noted by a New Jersey court, the rationale for

remanding a substantial evidence case where evidence is stricken on

appeal is that “the State may have additional evidence that it did not
                                    18

produce in reliance upon the strength of the erroneously admitted

evidence.”   State v. Baker, 549 A.2d 62, 66 (N.J. Super. Ct. App. Div.

1988). But the State could not have reasonably relied on the strength of

the evidence offered in this case. The State had no reasonable basis to

believe that the complaint in Exhibit 7, which detailed an alleged sexual

offense, would be admissible over Tripp’s hearsay objection on the

question of whether the State proved a recent overt act under Iowa Code

section 229A.4(2).   See Iowa R. Evid. 5.801(c); State v. Tompkins, 859

N.W.2d 631, 642 (Iowa 2015) (explaining details of a criminal complaint

are inadmissible to show the truth of the matter asserted); State v.

Doughty, 359 N.W.2d 439, 442 (Iowa 1984) (same). The State may have

had a colorable claim that the evidence could be considered by an expert

in making a determination of dangerousness if it had sufficient indicia or

reliability under Iowa Rule of Evidence 5.703, but even if the evidence

could be relied upon by an expert in forming an opinion it is plainly not

admissible for any other purpose. See State v. Neiderbach, 837 N.W.2d

180, 205 (Iowa 2013) (“[R]ule 5.703 is intended to give experts

appropriate latitude to conduct their work, not to enable parties to

shoehorn otherwise inadmissible evidence into the case.” (quoting

Stenzel, 827 N.W.2d at 705)); Gacke, 684 N.W.2d at 183 (“[E]vidence

admitted under this rule is admitted for the limited purpose of showing

the basis for the expert witnesses’ opinions; it is not admissible as

substantive evidence of the matters asserted therein.”).

      In addition, the State did not list the victim or any other person as

a witness of an overt act prior to trial. In fact, the pretrial disclosures

reveal that the State did not have any direct, nonhearsay evidence of an

overt act. This clearly was not a case in which the State declined to offer

additional available evidence as cumulative in reliance on the district
                                          19

court ruling. 1    The State points to no admissible evidence of a recent

overt act disclosed pretrial to the opposing party that it reasonably

decided not to offer in order to avoid offering cumulative evidence.

       In short, the State did not rely on the unqualified admission of

evidence by the district court during trial. It offered what it had on the

recent overt act—inadmissible hearsay evidence.                  The State further

assumed the risk that the evidence posttrial might be found to be

inadmissible, either by the district court, or this court on appeal. It had

no reasonable basis for assuming that the hearsay evidence would be

found admissible to prove an overt act after it rested.                 As a result,

Dullard does not apply here.

       We now turn to analysis of what has been shown by the two

exhibits that were admitted into the record without objection. While the

department of corrections report asserts that charging documents are

attached, there were no such documents attached to the exhibit.                    The

report simply asserted that a charge of assault with intent to commit

sexual abuse was filed and sought revocation of parole. This document

shows the charge was brought, but nothing more.

       The findings of fact and conclusions of law of the administrative

parole judge on the revocation of Tripp’s release under Iowa Code chapter

903B are also threadbare.            The administrative parole judge simply

incorporated the findings of fact in the report. But, the report offered

into evidence only presents the fact that Tripp had been charged with a

crime. Nowhere in the two documents is there a discussion of the nature

       1Exhibits  6A and 6B—discs recording the proceedings of the administrative
parole hearing—were not offered by the State at trial. These exhibits, however, do not
contain any admissible, nonhearsay evidence showing a recent overt act. While the
deposition of the victim was apparently made part of the record of the parole revocation
proceeding, the deposition is not part of Exhibits 6A and 6B.
                                    20

of the allegations against Tripp, the nature of the evidence of the

violation, or a reasoned evaluation of the evidence.      While the State

offered discs containing the evidentiary record presented to the

administrative parole judge in the pretrial hearing, the district court

clearly instructed the State that if the evidence was to be used for any

other purpose than the motion in limine, the State would need to be

offered the exhibits at trial. The State made no such offer on the discs.

      The question, then, is whether this limited documentary evidence

of actions taken by state actors, with conclusions but virtually no facts,

provides substantial evidence to allow a reasonable finder of fact to

conclude that Tripp committed a recent overt act beyond a reasonable

doubt as required in SVP proceedings. See Iowa Code § 229A.7(5)(a).

      The State certainly proved that the department of corrections had

prepared a report stating a criminal complaint against Tripp had been

filed and seeking revocation of his release under Iowa Code chapter

903B. The State also proved that an administrative parole judge, after a

hearing, determined by a preponderance of the evidence that a violation

of law occurred. But does this bare record, without more, provide a basis

for the district court to make a determination, beyond a reasonable

doubt, that a recent overt act occurred?

      We think not. No evidence admitted at trial directly related to a

recent overt act.   The district court had no way at trial of making an

independent determination of what the acts were, whether the alleged

acts occurred, whether they were recent, whether they were overt,

whether they were sexual in nature, whether the witnesses were credible,

whether there was a misidentification, or whether the evidence

cumulatively on the question of recent overt act was thick or thin. There

was simply no principled basis for the district court to conclude on the
                                    21

record presented at trial that the State proved beyond a reasonable doubt

that Tripp engaged in a recent overt act. As a result, the recent-overt-act

prong does not provide an alternate basis to uphold Tripp’s SVP

commitment.

      IV. Conclusion.

      For the above reasons, the judgment of the district court is

reversed and the matter remanded to the district court for dismissal.

      REVERSED AND REMANDED.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who concur in part and dissent in part.
                                     22
                                                #16–2141, In re Det. of Tripp
MANSFIELD, Justice (concurring in part and dissenting in part).

      I respectfully concur in part and dissent in part.        The majority

correctly determines that Ronald Tripp was not “presently confined” for a

sexually violent offense at the time the State filed its sexually violent

predator (SVP) petition.    However, there is substantial evidence that

Tripp committed a “recent overt act”—namely, the attempted sexual

abuse of a woman in 2013. This was the State’s alternative ground for

SVP commitment of Tripp.       The district court failed to make a finding

here only because it didn’t think it had to. Accordingly, I would remand

for a trial on this alternative ground. I find the majority’s refusal to order

a remand very troubling. Among other things, the majority contravenes

an established line of authority holding that in weighing the sufficiency

of evidence, we consider all admitted evidence, including evidence that

may have been admitted erroneously. See, e.g., In re Det. of Stenzel, 827

N.W.2d 690, 701 (Iowa 2013).

      To recap, Tripp had been convicted of indecent contact with a child

in July 2010.     However, since then he had been released into the

community.    The release was not successful.      In June 2011, the fifty-

nine-year-old Tripp was charged with a probation violation for offering to

pay young teenage girls $10 each to strip naked and jump from a bridge

into a pond where children swam on a regular basis. Tripp also showed

the girls his underwear and asked for a hug.           Tripp’s GPS monitor

indicated he had been at the pond three consecutive days.               Tripp

admitted the violation and was incarcerated.       Following a subsequent

release, Tripp was charged in May 2013 with assault with intent to

commit sexual abuse after he repeatedly groped a woman who was giving

him a ride. The State decided to dismiss the charge and instead revoke
                                       23

Tripp’s parole.   Revocation was granted and Tripp was reincarcerated.

While in prison Tripp failed sex offender treatment (SOTP).

       Because Tripp was not criminally convicted on the 2013 charge,

and had intermittent periods of freedom following the 2010 conviction, I

agree the State was obligated to prove a recent overt act in order to

commit him under chapter 229A. See In re Det. of Wygle, ___ N.W.2d ___,

___ (Iowa 2018) (Mansfield, J., dissenting).

       The State took steps toward meeting that burden at the SVP trial

by alleging and attempting to prove the 2013 incident was a recent overt

act.   See Iowa Code § 229A.2(8) (2016) (defining a recent overt act as

“any act that has either caused harm of a sexually violent nature or

creates a reasonable apprehension of such harm”). With respect to that

incident, the district court stated,

       Evidence presented at the parole revocation hearing
       disclosed that Tripp fondled an adult female acquaintance
       who was traveling with him in his vehicle when he offered to
       give her a ride. Tripp touched her breast and thighs, and
       tried to touch her vagina despite multiple attempts to block
       the assault. His parole was revoked and he was returned to
       prison. . . . The state relies on these events as establishing a
       recent overt act.

The majority correctly notes that the district court did not actually find

that the 2013 groping was a recent overt act. It didn’t have to, because it

ruled that Tripp was presently confined within the meaning of Iowa Code

section 229A.4(1).    But if there is no present confinement under the

statute then it becomes necessary to determine whether a recent overt

act occurred, see Iowa Code § 229A.4(2)(a), and I would remand for that

purpose.

       I strongly disagree with the majority’s view that we must reverse

without a remand because the State failed to present substantial

evidence at the SVP trial of an overt act. The State carried its burden
                                     24

with three exhibits. Exhibit 5, the parole violation report from May 2013

that charged an assault with intent to commit sexual abuse, was

admitted into evidence.    So was Exhibit 8, the board of parole’s order

determining that all facts in the parole violation report were correct and

revoking Tripp’s parole.    Also admitted into evidence was Exhibit 7,

which consisted of the criminal complaint and the trial information that

contained further details on Tripp’s groping of the woman. At the SVP

trial, Exhibit 7 was “admitted subject to the ruling on the motions taken

under advisement.”     The court later denied those motions, and so we

must presume Exhibit 7 was admitted.          Furthermore, Tripp made no

effort at trial to present an alternate version of the 2013 incident.

      Notably, Exhibits 5 and 8—whose admissibility is conceded by the

majority—amounted to substantial evidence of a recent overt act by

themselves. Exhibit 5, the parole violation report, states that Tripp “was

arrested on 5-13-2013 and charged with Assault with Intent to Commit

Sexual Abuse (please see copy of attached complaint).” The complaint is

actually part of Exhibit 7 and describes the victim’s account of the

incident in some detail.    Exhibit 8 is the parole revocation order.     It

provides, “The facts contained in the Parole Violation Report are correct .

. . .” Those documents collectively are enough to establish a recent overt

act without any hearsay problems.

      For all these reasons, substantial evidence would have supported a

finding beyond a reasonable doubt that a recent overt act had occurred.

      Unfortunately, the majority has decided to rewrite our law

governing sufficiency of evidence reviews. Until now, that law was clear:

“In conducting our sufficiency review, we must consider all evidence

admitted during trial, including evidence that may have been admitted

erroneously.” Stenzel, 827 N.W.2d at 701; accord State v. Dullard, 668
                                     25

N.W.2d 585, 597 (Iowa 2003); State v. Burgdorf, 861 N.W.2d 273, 278

(Iowa Ct. App. 2014).     Thus, even if Exhibit 7 should not have been

admitted, it may be considered as part of the sufficiency review.

      The majority now changes this rule. Henceforth, if the trial court

has not ruled on the admissibility of the evidence before the State has

rested its case, and later admits it, the State may not rely on the

evidence for sufficiency review if the appellate court finds it should not

have been admitted. The majority reasons that where the district court

has not admitted the evidence before the State rests, the State is on

notice that it may need more evidence.

      I would not water down our previously clear precedent.            The

majority’s approach will lead to confusion and complication in bench

trials, where the court typically reserves ruling on evidentiary objections.

The majority cites no precedent from any jurisdiction for applying its

approach in a civil case, such as an SVP proceeding. Notably, double

jeopardy isn’t an issue in SVP proceedings. See In re Det. of Bradford,

712 N.W.2d 144, 151 (Iowa 2006); In re Det. of Garren, 620 N.W.2d 275,

283–84 (Iowa 2000). Thus, the State could have brought successive SVP

actions against Tripp based on the “presently confined” theory and, if

necessary, the “recent overt act” theory.

      I agree with the court that SVP laws can raise serious due process

concerns, but the issue of whether Tripp can be retried has nothing to do

with due process. If in fact Tripp recently attempted to rape a woman,

then this fact—coupled with Tripp’s prior sex offenses and his failure to

complete sex offender treatment—may well warrant his continued

confinement under chapter 229A.           The fact finder should have an

opportunity to decide the issue. I would not deny this opportunity by

casting about for novel concepts of litigation fault-finding.
                                    26

      For all these reasons, I concur in part and dissent in part.

      Waterman and Zager, JJ., join this concurrence in part and

dissent in part.
