                IN THE SUPREME COURT OF IOWA
                              No. 12–2176

                        Filed November 15, 2013


STATE OF IOWA,

      Appellant,

vs.

DAVID R. DESIMONE,

      Appellee.



      Appeal from the Iowa District Court for Clinton County, Marlita A.

Greve, Judge.



      The State of Iowa appeals from an order finding that an individual

was a wrongfully imprisoned person. REVERSED AND REMANDED.



      Thomas J. Miller, Attorney General, Jeffrey S. Thompson, Deputy

Attorney General, and Meghan L. Gavin and William A. Hill, Assistant

Attorneys General, for appellant.



      Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport,

for appellee.
                                            2

MANSFIELD, Justice.

         This case presents several substantive and procedural issues

under      Iowa    Code   section     663A.1      (2011),     our     state’s    “wrongful

imprisonment” law. In 2005, David DeSimone was tried before a jury on

a charge of third-degree sexual abuse, found guilty, and sentenced to

prison.       Six years later, this court granted postconviction relief and

overturned DeSimone’s conviction and sentence, necessitating a new

trial.    See DeSimone v. State, 803 N.W.2d 97, 106 (Iowa 2011).                      The

second trial resulted in DeSimone’s acquittal.
         Subsequently, DeSimone filed an application to be declared a

wrongfully imprisoned individual under section 663A.1.                       The district

court granted DeSimone’s application, finding he had proved by clear

and convincing evidence that he had not committed third-degree sexual

abuse or any lesser included offense.                  See Iowa Code § 663A.1(2)(a)

(2011).

         The State now appeals the district court’s ruling. First, it argues

DeSimone’s        acquittal   could   not       form    the   basis    for   a   wrongful

imprisonment claim because it was not “an order vacating, dismissing, or

reversing the conviction and sentence in a case for which no further

proceedings can be or will be held against an individual.” Id. 663A.1(2).

Second, the State argues the district court should have considered the

testimony that had been presented at DeSimone’s two criminal trials in

making the wrongful imprisonment determination.                        Third, the State

contends that even without the prior testimony, substantial evidence

does not support the district court’s finding that DeSimone was innocent.

         We    hold:   (1) DeSimone     was       eligible    to    bring    a   wrongful
imprisonment claim when he was acquitted on retrial following our order

vacating his conviction; (2) the district court erred in not considering the
                                    3

prior criminal case testimony even though the State did not show the

witnesses were no longer available; (3) substantial evidence supports the

district court’s finding of innocence on the existing record, so a remand

is necessary for the district court to consider the full record, including

the prior testimony.   For these reasons, we reverse the district court’s

order and remand for further proceedings consistent with this opinion.

      I. Facts and Procedural Background.

      This case began with a party that DeSimone, then forty-five years

old, hosted in October 2004. DeSimone lived in the upstairs apartment
of a house owned by his uncle. One of the persons attending the party

was Samantha, a seventeen-year-old. Based on testimony and exhibits

presented at the first trial, the court of appeals set forth the facts as

follows:

      Defendant had been given money by others to purchase a
      keg of beer for the party. Samantha drank six to twelve
      glasses of beer and admitted blacking out or passing out
      twice.   Following the second episode, Samantha found
      herself naked in defendant’s bed. She noticed her tampon
      was missing. She said the defendant forced her to engage in
      sexual intercourse and fellatio. She left defendant’s house
      after midnight, went to a nearby store, and called a friend
      and the police.

           After talking briefly with Samantha, the police took her
      to the hospital, where she was examined for sexual assault.
      She told police she had vomited on the defendant’s bed, the
      bedroom floor, and her hair. She also said the defendant
      had grabbed her neck and choked her.           The hospital
      examination did not find any evidence of trauma to her neck
      or genital area. The laboratory examination of the sexual
      abuse protocol kit returned no evidence of semen.

            The police obtained a search warrant and seized
      bedding from the defendant’s home.           The laboratory
      examination of the items seized from the defendant’s home
      found evidence of the defendant’s blood and dried semen.
      The tests did not reveal any blood, vomit, or other biological
      materials attributable to Samantha on the items seized.
                                          4

See State v. DeSimone, No. 05–1740, 2007 WL 750649, at *1 (Iowa Ct.

App. 2007).

       Notwithstanding a paucity of physical evidence to support the

State’s case, the jury at the first trial in 2005 found DeSimone guilty of

third-degree sexual abuse.          See Iowa Code § 709.4 (2003) (defining

sexual abuse in the third degree).            Samantha testified that DeSimone

told her he was not going to ejaculate on her, so as not to leave any

physical evidence.      In addition, an eyewitness, Joe Baker, testified he

had seen DeSimone and Samantha together in DeSimone’s bedroom,
with    Samantha       asleep—although          clothed—on      DeSimone’s       bed.

Following DeSimone’s conviction, the district court sentenced him to a

term of incarceration not to exceed fifteen years. The court of appeals

affirmed his conviction and sentence in 2007. See DeSimone, 2007 WL

750649, at *3.

       Thereafter, DeSimone filed an application for postconviction relief.

The application asserted, among other things, that the State had

committed a Brady violation.1 At the first trial, a high school senior who

later became a friend of Samantha testified.            She claimed that on the

night of the alleged assault she saw a girl, presumably Samantha, run

across the street in a direction heading away from DeSimone’s house at

the very time Samantha said she had fled. However, it turned out the

time records for this witness’s employer indicated she was still at work at

that time.       DeSimone alleged the State’s failure to disclose the


         1In Brady v. Maryland, the United States Supreme Court held that due process

requires the prosecution to disclose exculpatory evidence to the accused. 373 U.S. 83,
87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215, 218 (1963). To establish a Brady
violation, the defendant must prove “(1) the prosecution suppressed evidence; (2) the
evidence was favorable to the defendant; and (3) the evidence was material to the issue
of guilt.” DeSimone, 803 N.W.2d at 103 (citation and internal quotation marks omitted).
                                            5

exculpatory information it had received from the witness’s employer

violated due process and required a new trial.

       The district court and the court of appeals rejected DeSimone’s

contentions, but in 2011, on further review, we found that a Brady

violation had occurred. See DeSimone, 803 N.W.2d at 106. We vacated

DeSimone’s conviction and sentence, and ordered a new trial. Id.

       The second trial took place from March 26 through 29, 2012.

Although DeSimone did not take the stand in his original trial, he

testified during his second criminal trial. At the conclusion of this trial,
the jury found him not guilty of all charges.

       Following his acquittal, on April 3, DeSimone filed an application

to be determined a wrongfully imprisoned person under Iowa Code

section 663A.1. A hearing took place in district court on November 13.

Prior to the hearing, DeSimone had served a series of requests for

admissions on the State, attempting to get the State to admit certain

facts elicited at the first trial that were favorable to him.2 In response,

the State, “subject to any further testimony in the transcript,” admitted

the following: (1) the        law enforcement officer            who responded to

Samantha’s 911 call from the grocery store found no evidence of vomit

on Samantha or at DeSimone’s home; (2) the officer observed no “visible

signs of injury on Samantha” and Samantha did not complain to him of

any injuries caused by DeSimone; (3) Samantha was intoxicated when

the officer questioned her; (4) an investigating officer from the Clinton

Police Department found “no evidence of manipulation of physical objects

by anyone and . . . no evidence of anyone trying to hide evidence” at


        2A transcript had been prepared of the testimony given at the first trial, but not

of the testimony given at the second trial, which resulted in an acquittal.
                                     6

DeSimone’s home; (5) a Division of Criminal Investigation criminalist

found no blood, vomit, or DNA on the samples he analyzed, except for a

small amount of blood inside the knee of Samantha’s jeans—Samantha

was menstruating at the time of the alleged assault; (6) the criminalist

found no sperm on a vaginal swab of Samantha; (7) the nurse who

performed the rape protocol on Samantha shortly after she made the

allegation against DeSimone observed no physical injuries of any kind;

(8) Samantha did not claim she had been raped during her 911 call from

the grocery store; (9) the physician in the emergency room found no
evidence of physical injury or sexual assault when he examined

Samantha; and (10) in the emergency room, Samantha did not claim she

had passed out, blacked out, or become delusional on the night of the

party.

         DeSimone put these admissions into evidence at the wrongful

imprisonment hearing. In addition, he was the only witness to testify at

the hearing. In his testimony, DeSimone stated he had brought a keg of

beer to the October 2004 party and knew the guests, including the

underage guests, were consuming alcohol throughout the night.

DeSimone testified he drank whiskey during the party but was not

drunk.

         DeSimone testified that Samantha became very intoxicated during

the party. Around 9:00 p.m., according to DeSimone’s account, he saw

her in the hallway and believed she was going to vomit. He took her to

the downstairs bathroom after he realized the upstairs bathroom was

occupied by several other guests. While Samantha was in the downstairs

bathroom, DeSimone waited in the downstairs kitchen. After DeSimone
went back upstairs, an altercation occurred, after which DeSimone told

all of the guests he wanted them to leave.
                                    7

      DeSimone testified that after he asked everyone to leave, Samantha

and a few others stayed behind and attempted to get the other guests to

depart. According to DeSimone, Samantha then sat down, put her head

on the upstairs kitchen table, and passed out.     DeSimone testified he

went downstairs for a while, and when he returned he saw Samantha

and Joe Baker engaged in sexual activity in the kitchen. DeSimone said

he went to bed at that time and did not see or hear anything until

around six or seven the following morning when Baker woke him up and

requested to use his cell phone.    DeSimone testified he did not know
where Samantha was at that time and did not know when or how

Samantha left the apartment. He denied ever engaging in sexual activity

with her.

      The State did not present any new evidence at the wrongful

imprisonment hearing. Instead, it simply asked the district court to take

judicial notice of the prior criminal case file.    DeSimone, however,

objected to the State’s request to the extent it included the trial

transcripts.   DeSimone argued this prior testimony could be received

only if the witnesses were unavailable, something the State had not

demonstrated.    See Iowa R. Evid. 5.804(b)(1) (describing the hearsay

exception for former testimony when the declarant is unavailable).

      On November 21, 2012, the district court entered a detailed order

finding DeSimone was a wrongfully imprisoned person under section

663A.1.     The court reasoned as follows.     First, the court accepted

DeSimone’s position that the prior criminal trial transcripts could not be

considered because the State had failed to show the witnesses were

unavailable. Second, the court concluded that DeSimone met the criteria
set forth in Iowa Code section 663A.1(1) for wrongful imprisonment,

because his conviction had been vacated and his acquittal on retrial
                                     8

meant that “no further proceedings can be or will be held.”       See Iowa

Code § 663A.1(1)(e). Third, the court concluded that DeSimone also met

the criteria set forth in section 663A.1(2) for wrongful imprisonment

because he had shown by clear and convincing evidence that he was

factually innocent.     See id. § 663A.1(2).     Relying on the State’s

admissions and DeSimone’s in-person testimony, which the district court

found credible, the district court concluded that DeSimone had not

committed sexual assault or any lesser included crime. See id.

      The State now appeals, challenging all three aspects of the district
court’s order. We retained the appeal.

      II. Standard of Review.

      We review a district court’s ruling on an individual’s application to

establish he or she was a wrongfully imprisoned person for errors at law.

State v. McCoy, 742 N.W.2d 593, 596 (Iowa 2007). The district court’s

findings of fact will be upheld if supported by substantial evidence. Id.

      III. Legal Analysis.

      A. Can an Acquittal on Retrial Following the Reversal of a

Conviction Form the Basis for a Wrongful Imprisonment Claim?

Under Iowa law, an individual may seek damages under the Iowa Tort

Claims Act if he or she is found by the district court to be a “wrongfully

imprisoned person.”    See Iowa Code ch. 663A; McCoy, 742 N.W.2d at

596. To be considered wrongfully imprisoned, the individual must first

meet the following criteria:

             a. The individual was charged, by indictment or
      information, with the commission of a public offense
      classified as an aggravated misdemeanor or felony.

            b. The individual did not plead guilty to the public
      offense charged, or to any lesser included offense, but was
      convicted by the court or by a jury of an offense classified as
      an aggravated misdemeanor or felony.
                                    9
             c. The individual was sentenced to incarceration for a
      term of imprisonment not to exceed two years if the offense
      was an aggravated misdemeanor or to an indeterminate term
      of years under chapter 902 if the offense was a felony, as a
      result of the conviction.

             d. The individual’s conviction was vacated or
      dismissed, or was reversed, and no further proceedings can
      be or will be held against the individual on any facts and
      circumstances alleged in the proceedings which had resulted
      in the conviction.

            e. The individual was imprisoned solely on the basis
      of the conviction that was vacated, dismissed, or reversed
      and on which no further proceedings can be or will be had.

Iowa Code § 663A.1(1).

      If the individual meets the criteria of section 663A.1(1), the court

then makes the second determination: whether it can be shown by clear

and convincing evidence that the individual did not commit the offense or

a lesser included offense, or that the offense in question was not

committed at all. Id. § 663A.1(2); see McCoy, 742 N.W.2d at 597 (“The

second essential finding is the claimant did not commit the offense or the

offense was not committed by any person.”); State v. Dohlman, 725

N.W.2d 428, 431 (Iowa 2006) (“If [the criteria of section 663A.1(1)] are

met, the court then proceeds to the second inquiry: whether that person
meets the requirements of section 663A.1(2).”).

      An individual must satisfy both section 663A.1(1) and section

663A.1(2) to be deemed wrongfully imprisoned and to proceed with a

claim under the Iowa Tort Claims Act. See McCoy, 742 N.W.2d at 597

(“The two separate findings reveal that the right to sue the state under

the State Tort Claims Act as a ‘wrongfully imprisoned person’ not only

requires the person qualify as a ‘wrongfully imprisoned person,’ but also

requires the person be a ‘wrongfully imprisoned person’ who did not
commit the offense or whose offense of conviction was not committed by
                                    10

any person.”); Dohlman, 725 N.W.2d at 431 (“If the criteria of both

section 663A.1(1) and section 663A.1(2) are met, the individual qualifies

as a wrongfully imprisoned person.”).

       The State’s initial argument on appeal is that a wrongful

imprisonment claim cannot be brought following a not-guilty jury verdict.

The State focuses on the beginning of section 663A.1(2), which provides:

       Upon receipt of an order vacating, dismissing, or reversing
       the conviction and sentence in a case for which no further
       proceedings can be or will be held against an individual on
       any facts and circumstances alleged in the proceedings
       which resulted in the conviction, the district court shall
       make a determination whether there is clear and convincing
       evidence to establish either of the following findings . . . .

Iowa Code § 663A.1(2).     Based on this language, the State argues the

order vacating the conviction must also result in the termination of the

proceedings. According to the State, if a retrial later takes place, then

the order vacating the conviction did not occur “in a case for which no

further proceedings can be or will be held.” Id.

       We disagree with the State. To begin with, statutes must be read

in their entirety. Hardin County Drainage Dist. 55, Div. 3, Lateral 10 v.

Union Pacific R.R., 826 N.W.2d 507, 512 (Iowa 2013) (stating that the
court “examine[s] statutory language holistically”); Mall Real Estate,

L.L.C. v. City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (“[W]e do not

place undue importance on any single or isolated portion, but instead

consider all parts of an enactment together.”); State v. Adams, 810

N.W.2d 365, 369 (Iowa 2012) (“[W]e must construe the statute in its

entirety.”).   We   determine    whether   a   statute   is   ambiguous   or

unambiguous by reading the statute as a whole. See Mall Real Estate,

828 N.W.2d at 198 (“Ambiguity may arise from specific language used in
a statute or when the provision at issue is considered in the context of
                                   11

the entire statute or related statutes.” (Citation omitted.)); State v.

Hutton, 796 N.W.2d 898, 904 (Iowa 2011) (“Ambiguity may arise either

from the meaning of particular words or from the general scope and

meaning of a statute when all its provisions are examined.” (Citation and

internal quotation marks omitted.)).

      In this case, the operative language actually appears earlier.

Section 663A.1(1)(d) requires that “[t]he individual’s conviction was

vacated or dismissed, or was reversed, and no further proceedings can be

or will be held against the individual on any facts and circumstances
alleged in the proceedings which had resulted in the conviction.” Iowa

Code § 663A.1(1)(d).     This wording does not indicate that the two

required developments—(1) reversal of the conviction and (2) an end to

further proceedings against the individual—must occur simultaneously

or in direct sequence. Both events simply have to have occurred.

      Turning to section 663A.1(2), it appears in context to be simply an

attempt to paraphrase section 663A.1(1)(d) and state what the district

court must have in hand before it makes the second determination as to

whether the individual is actually innocent.    Thus, the district court

must have received “an order vacating, dismissing, or reversing the

conviction and sentence” and this must be “in a case for which no

further proceedings can be or will be held.” Id. § 663A.1(2). But again,

the statute does not specifically require that no proceedings occurred

after the order, just that the order was “in a case” where there can be or

will be no further proceedings.

      True, the phrase “[u]pon receipt” might suggest that the order

vacating the conviction has to have been the final act, but even the State
does not argue for that interpretation. If the order had to be the last

thing to occur, then a wrongful imprisonment cause of action would not
                                    12

be available in a case like McCoy, where our decision reversing the

defendant’s conviction did not end matters until the county attorney later

decided not to bring the defendant to trial again. See 742 N.W.2d at 595.

In short, we believe section 663A.1(2), read with section 663A.1(1)(d), is

ambiguous and allows for the possibility that some proceedings—e.g., an

unsuccessful retrial—can occur between the order vacating the original

conviction and the ultimate determination that no further proceedings

can or will be held.        Under that construction, the use of “in”

communicates that the order to vacate, dismiss, or reverse the conviction
must be within the same case in which no proceedings can or will be

held; it does not indicate those related elements must come into

existence simultaneously or in direct sequence.

      Given an ambiguous statute, we now revert to additional principles

of statutory interpretation, namely that statutes are to be read so they

make sense and achieve the legislature’s purposes.             See State v.

McCullah, 787 N.W.2d 90, 94 (Iowa 2010) (“We strive for a reasonable

interpretation that best achieves the statute’s purpose and avoids absurd

results.” (Citation and internal quotation marks omitted.)).

      The State’s construction would lead to an odd result.             The

defendant’s potential status as a wrongfully imprisoned person would

depend entirely on whether the State elected to retry the defendant

following the reversal of his or her original conviction—unless insufficient

evidence were the basis for the reversal.       It is not logical that the

individual’s eligibility for relief under section 663A.1 should turn on a

decision completely in the State’s control.        Indeed, if the State’s

interpretation of section 663A.1 were correct, the State might have an
incentive to retry even weak cases (and to put alleged victims like
                                   13

Samantha through an additional trial) just to avoid the possibility of

wrongful imprisonment liability.

      Moreover,   we   have    previously    noted   that    our   wrongful

imprisonment statute is “a response to the mounting evidence of

innocent persons who have been wrongfully convicted and imprisoned in

this country.” McCoy, 742 N.W.2d at 596. It is difficult to see how a

person’s imprisonment becomes any less wrongful—assuming the

individual can prove actual innocence by clear and convincing evidence—

just because the State attempted unsuccessfully to retry him or her
instead of dropping the charges.            In other words, the State’s

interpretation of section 663A.1 in no way advances the underlying

purposes of the statute.

      We also believe the legislative history is relevant.   Originally, as

passed by our House of Representatives, the legislation would have

required the court vacating the conviction to have made one of two

findings as part of its order: either “[t]hat the offense for which the

individual was convicted and sentenced, including any lesser-included

offenses, was not committed by the individual,” or “[t]hat the offense for

which the individual was convicted and sentenced was not committed by

any person, including the individual.”      See H.F. 674, 77th G.A., Reg.

Sess. (Iowa 1997) (passed March 31, 1997).           The House Judiciary

Committee official explanation states that this would have limited relief

to the circumstances where the conviction was reversed “either because

the offense was committed by another person or the offense was a

fabrication.” See id. Explanation; see also Dohlman, 725 N.W.2d at 432

(quoting this language). Clearly, this wording would have precluded the
wrongful imprisonment cause of action from being pursued in a case

such as McCoy—where the conviction was reversed because a confession
                                     14

was improperly admitted—or here—where the conviction was reversed

because of a Brady violation.

      The House version of the bill, however, was amended in the Senate

to reflect its current form.    See S. Amendment 3570, 77th G.A., Reg.

Sess. (Iowa 1997). The amendment eliminated the requirement that the

court vacating the conviction had to find actual innocence. Id. Instead,

it provided that if the individual passed the initial hurdle in section

663A.1(1), the district court would then need to make a subsequent

determination of innocence by clear and convincing evidence. Id. The
House later approved the amended version, and the Governor signed it.

See H. Amendment 1913, 77th G.A., Reg. Sess. (Iowa 1997); 1997 Iowa

Acts ch. 196, § 1 (codified at Iowa Code § 663A.1 (Supp. 1997)). Thus,

the amended, final form of the law allows for the conviction to have been

vacated on the basis of something other than actual innocence, such as

the grounds in McCoy and the present case.

      Of course, under the original House version, as soon as the

conviction had been vacated on the basis of the defendant’s innocence, it

would be clear no further proceedings could go forward against that

defendant.     Thus, it is not surprising that the statute, reflecting its

origins, reads somewhat as if it contemplates no subsequent events in

the criminal case after the “order vacating, dismissing, or reversing the

conviction and sentence.” See Iowa Code § 663A.1(2) (2011). But once

the Senate eliminated the requirement that the conviction had to have

been vacated on the basis of innocence, it is logical to read the statute as

allowing for developments in the criminal case after the conviction was

reversed. Unless the criminal conviction was reversed on the basis of
insufficient evidence, the case will almost always continue, at least

temporarily.    See McCoy, 742 N.W.2d at 595 (noting that proceedings
                                          15

continued after the defendant’s conviction was vacated due to an

improperly admitted confession until the county attorney moved to

dismiss the charges in the interest of justice); Cox v. State, 686 N.W.2d

209, 211 (Iowa 2004) (noting that even after the complaining witness

recanted and the defendant’s conviction was vacated, a new trial was

ordered and the proceedings did not terminate until the state dismissed

the charges). Yet the State’s interest in not having to pay compensation

to someone who actually committed a crime is protected by the added

requirement that the district court make an innocence determination by
clear and convincing evidence.

       Our reading of Iowa’s statute is consistent with the stance taken

by   other     jurisdictions     that   have    similarly    structured      wrongful

imprisonment laws. In addition to Iowa, the federal government, twenty-

eight states, and the District of Columbia have enacted legislation to

provide    compensation        for   wrongfully imprisoned        persons.       State

Compensation Laws, The Innocence Project, http://www.innocence

project.org/news/LawView1.php (last visited Nov. 6, 2013) (listing all

states with wrongful imprisonment compensation statutes). While some

jurisdictions have more restrictive laws that, for example, require a

governor’s pardon,3 seventeen jurisdictions have statutes organized like

ours. That is, they require a conviction to have been reversed or vacated

followed by a determination of actual innocence.                  All but one have

indicated by statute or caselaw (at least implicitly) that an individual may



       3See,  e.g., Me. Rev. Stat. Ann. tit. 14, § 8241(2)(C) (2003) (requiring a pardon
and written finding from the governor); Md. Code Ann., State Fin. & Proc. § 10-501(b)
(LexisNexis 2009) (requiring a pardon from the governor indicating the conviction was in
error); Tenn. Code Ann. § 9-8-108(a)(7) (2012) (requiring exoneration from the governor
indicating the individual did not commit the crime).
                                           16

bring a claim after being acquitted on retrial.4 This demonstrates at a

minimum that our interpretation of Iowa’s statute would not put our

state outside the mainstream in this area.

       For example, Ohio’s wrongful imprisonment statute has parallels

to Iowa’s. It requires the following elements to be present:

       The individual’s conviction was vacated, dismissed, or
       reversed on appeal, the prosecuting attorney in the case
       cannot or will not seek any further appeal of right or upon
       leave of court, and no criminal proceeding is pending, can be
       brought, or will be brought by any prosecuting attorney, city


       4Twelve of these seventeen jurisdictions statutorily provide that an individual is

allowed to bring a claim after acquittal on retrial. See 28 U.S.C. § 2513(a)(1) (2006);
2013 Cal. Legis. Serv. 94 (West); Colo. Rev. Stat. § 13-65-102(2)(a)(II) (2013); D.C. Code
§ 2-422(1) (LexisNexis 2012); 735 Ill. Comp. Stat. Ann. 5/2-702(c)(2) (West Supp. 2013);
La. Rev. Stat. Ann. § 15:572.8(G)(2) (2012 & Supp. 2013); Mass. Gen. Laws Ann. ch.
258D, § 1(B)(ii) (West Supp. 2013); Miss. Code Ann. § 11-44-3(1)(c) (West 2013); Neb.
Rev. Stat. Ann. § 29-4603(2) (LexisNexis 2009); N.Y. Ct. Cl. Act § 8-b(3)(b)(ii) (McKinney
1989 & Supp. 2013); 2013 Wash. Sess. Laws 1100, ch. 175, § 4(c)(ii); W. Va. Code Ann.
§ 14-2-13a(d)(1) (LexisNexis 2009).
        Of the remaining five jurisdictions that (like Iowa) are silent on the matter, two
of them have court decisions indicating such claims are appropriate. See Walden v.
State, 547 N.E.2d 962, 967 (Ohio 1989); Estate of Knight v. State, A-2900-05T3, 2007
WL 837120 (N.J. Super. Ct. App. Div. Mar. 21, 2007) (stating that after release from
custody, when the wrongful imprisonment claim accrues, “the [wrongful imprisonment]
action could be stayed or placed on the inactive list pending the outcome of the retrial
of the criminal case”).
       Two other jurisdictions have not decided the issue directly but have cases that
leave the door open to the possibility of bringing a claim after an acquittal on retrial.
See Wilhoit v. State, 226 P.3d 682, 686 (Okla. 2009) (allowing a claimant who was
successful in a retrial prior to the effective date of the wrongful imprisonment statute to
pursue a claim under the statute despite not first obtaining a factual innocence
determination from the trial court); Miller v. State, 226 P.3d 743, 749 (Utah Ct. App.
2010) (discussing a determination of factual innocence can be sought by a person who
has already received postconviction relief as long as he has no pending retrial or
appeal).
        One jurisdiction with a similar statutory scheme appears to disallow claims
following an acquittal on retrial. See Fla. Stat. Ann. § 961.02(4) (West 2012); Fessenden
v. State, 52 So. 3d 1, 2 (Fla. Dist. Ct. App. 2010) (discussing the statutory requirement
that an order vacating a conviction be based on exonerating evidence cannot be met in
a situation where a case is reversed and remanded due to procedural error). However,
our statute differs from Florida’s in that it does not limit the right to seek recovery
based on the reason for the reversal.
                                         17
        director of law, village solicitor, or other chief legal officer of a
        municipal corporation against the individual for any act
        associated with that conviction.

Ohio Rev. Code Ann. § 2743.48(A)(4) (LexisNexis 2008 & Supp. 2013).

Thus,     the   statute    does    not   specifically   authorize    a    wrongful

imprisonment claim to be brought following acquittal on retrial. Instead,

like Iowa’s law, it requires that the conviction have been vacated and that

no further proceedings can or will be brought.

        In Walden v. State, the Ohio Supreme Court allowed claims

brought by two former inmates to proceed after they had been acquitted
on retrial based on self-defense. See 547 N.E.2d 962, 965 (Ohio 1989).

The court further held that the individuals’ not guilty verdicts in their

second trials should not be given preclusive effect.           Id. at 966–67.   A

fundamental premise of the Ohio Supreme Court’s opinion was that

wrongful imprisonment claims could be brought after an acquittal on

retrial; otherwise, the opinion’s analysis does not make sense.

        DeSimone filed his application on April 3, 2012. At that time, it

was uncontroverted that we had vacated his conviction and sentence in

2011 and that no further proceedings would occur relating to the facts

and circumstances of his original conviction. We hold the district court

correctly decided DeSimone was eligible for relief under section

663A.1(1).

        B. Should the District Court Consider Prior Criminal Trial

Testimony in Making the Actual Innocence Determination Even

Without a Showing that the Witnesses Are Unavailable?                    The State

next asserts the district court erred when it declined to consider the prior

testimony from DeSimone’s two criminal trials in making the wrongful
imprisonment determination. The district court reasoned the State had

failed to show the witnesses were unavailable, an essential requirement
                                          18

of the former testimony exception to the hearsay rule. See Iowa R. Evid.

5.804(b)(1). Therefore, it excluded this evidence.5

        The district court’s approach was not unreasonable.                    See id.

5.1101(a) (stating that the rules of evidence “apply in all proceedings in

the courts of this state, . . . except as otherwise provided by rules of the

Iowa Supreme Court”).            However, there are situations where the

legislature has carved out exceptions to the rules of evidence. See, e.g.,

Iowa Code § 232.96(4)–(6) (child in need of assistance cases); id.

§ 252K.316 (interstate child support enforcement proceedings); id.
§ 631.11 (small claims); id. § 812.5 (competency hearings); id. § 822.7

(stating the court “may receive proof of affidavits, depositions, oral

testimony, or other evidence” in a postconviction application hearing);

see also Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002) (discussing

the trial on the merits of a postconviction relief application). We need to

ask, therefore, what the legislature directed when it enacted chapter

663A.

        Section    663A.1(2)    instructs      the   district   court   to    “make   a

determination” once it receives “an order vacating, dismissing, or

reversing the conviction and sentence in a case for which no further

proceedings can be or will be held against an individual.”                   Iowa Code

§ 663A.1(2).      Two things about this language should be noted.                First,

there is no mention of a hearing. Instead, the court is simply told to

make a “determination.” Second, the court is apparently authorized to

make this determination sua sponte, without a party asking for it. As

        5In McCoy, the individual seeking relief “submitted the trial transcript of the
underlying criminal trial as evidence to support his application.” 742 N.W.2d at 595.
There is no indication the state objected. Id. Thus, we have not previously decided
whether a party may successfully assert a hearsay objection to consideration of prior
trial testimony.
                                    19

soon as the triggering events have occurred, “the district court shall

make a determination.” Id. But if the court can make the determination

on its own, it can only do so on the basis of the existing record, including

prior testimony. In short, the directive to the district court to make a

determination with or without a request is inconsistent with DeSimone’s

notion that the district court may not rely upon the existing record in

making that determination.

      Also bolstering the State’s view are the belt-and-suspenders

provisions regarding notice in the statute. If the district court finds the
person was wrongfully imprisoned, it is not only required to enter an

order, it is also required to “[o]rally inform the person and the person’s

attorney that the person has a right to commence a civil action against

the state under chapter 669 on the basis of wrongful imprisonment.”

See id. § 663A.1(3)(b). Additionally, the clerk is required to forward a

copy of the order to the wrongfully imprisoned person, “together with a

copy of this section.”   Id. § 663A.1(4).   At the same time, there is no

requirement to issue an order if the person is not found to be wrongfully

imprisoned. All this strongly suggests that the wrongful imprisonment

determination can potentially occur without the affected individual even

being aware the district court was acting.      Thus, sections 663A.1(2),

663A.1(3), and 663A.1(4) point toward the conclusion that the legislature

expected district courts would be able to make wrongful imprisonment

determinations on the existing record, without taking new evidence.

      DeSimone points out that the 663A.1 section heading reads,

“Wrongful imprisonment—cause of action.”        However, this heading is

appended to the entire section, not 663A.1(2). Reading the statute as a
whole, one can readily conclude that section 663A.1(2) describes a

preliminary determination that enables the individual to then proceed
                                     20

with a full-blown “civil action” and “claim” as discussed in sections

663A.1(3)(b) and 663A.1(5) through 663A.1(8).       In short, the statute

taken as a whole certainly authorizes a “cause of action,” but that does

not mean the section 663A.1(2) preliminary determination must be

subject to the same procedural requirements that attend a typical civil

action.

      In fact, we have previously stated that the section 663A.1(2)

determination is only “a predicate review and assessment of the claim”

that decides if “[a] person is entitled to commence a civil action.” McCoy,
742 N.W.2d at 596 (citing Dohlman, 725 N.W.2d at 430–31).            “This

additional procedure permits the district court to serve as a gatekeeper of

such claims to insure only meritorious claims for damages will be filed

with the State Appeals Board.” Id.

      In addition, we think it would be impractical and undesirable for a

completely new trial to be mandated whenever an individual whose

conviction and prison sentence have been vacated seeks a wrongful

imprisonment determination. Witnesses would have to be brought back

to testify again, in some cases for the third time. While the State is the

appellant in this case, such a requirement could disadvantage the

recently-freed prisoner by increasing the time and cost involved in such a

proceeding.   In this case, DeSimone—to his attorney’s credit—avoided

that burden by serving the State with requests for admissions asking it

to admit helpful facts from the first trial.   However, in the future the

State would likely employ the same tactic. Thus, the district court would

be faced with dueling stacks of admissions concerning the prior

proceedings. Why not let the court review the real thing?
      Also, a review of other jurisdictions with wrongful imprisonment

statutes indicates that the prevailing approach allows the previous
                                            21

criminal trial testimony to be considered.                Several jurisdictions have

expressly said so in their wrongful imprisonment statutes.6 Although the

federal statute does not directly address the subject, longstanding federal

precedent is to the same effect.7             No state statutorily prohibits prior

criminal case testimony from being considered. See State Compensation

Laws, The Innocence Project, http://www.innocenceproject.org/news/

LawView1.php (last visited Nov. 6, 2013) (providing a list of all wrongful

imprisonment compensation statutes). We have found only one reported

statutory wrongful imprisonment case where testimony given in the prior
criminal proceedings was excluded based upon a hearsay objection.8

        6See Cal. Code Regs. tit. 2, § 641(b) (2013) (“The Board may consider as

substantive evidence the prior testimony of witnesses claimant had an opportunity to
cross-examine, and evidence admitted in prior proceedings for which claimant had an
opportunity to object.”); Colo. Rev. Stat. § 13-65-102(5)(f)(II) (“The district court shall
use any transcripts that are within the court records for the judicial district of any
proceeding involving the case that is the subject of the petition that the petitioner or the
respondent wants the district court to consider.”); 735 Ill. Comp. Stat. Ann. 5/2-702(f)
(“In any hearing seeking a certificate of innocence, the court may take judicial notice of
prior sworn testimony or evidence admitted in the criminal proceedings related to the
convictions which resulted in the alleged wrongful incarceration, if the petitioner was
either represented by counsel at such prior proceedings or the right to counsel was
knowingly waived.”); Va. Code Ann. § 19.2-327.11(D) (2008 & Supp. 2013) (allowing the
court to inspect the whole or part of any record in a proceeding where an individual
seeks a writ of actual innocence).
        7See United States v. Keegan, 71 F. Supp. 623, 637 (S.D.N.Y. 1947) (“The fact

that this duty [to grant a certificate of innocence] has been imposed upon the trial
court, would create the inference that the court would rely primarily on the record of
the trial of petitioner had therein.”); see also United States v. Brunner, 200 F.2d 276,
279 (6th Cir. 1952) (approving Keegan).
       8See  Morales v. State, 705 N.Y.S.2d 176, 179 (Ct. Cl. 2000). In Morales, the
court applied hearsay principles to exclude expert testimony from the underlying
criminal trial in an action brought under the Unjust Conviction and Imprisonment Act.
Id. at 177, 179. In that case, the exclusion of the expert testimony worked against the
previously imprisoned individual, who had sought to use that former testimony in his
wrongful imprisonment proceeding. Id. at 179. The court further noted that New
York’s Unjust Conviction and Imprisonment Act authorized courts to admit evidence
only “as permitted by law.” Id. at 179 & n.5; see also N.Y. Ct. Cl. Act § 8-b[1]. It
interpreted the “permitted by law” language as embodying the requirements of New
York’s hearsay rule. Morales, 705 N.Y.S.2d at 179 & n.5. Iowa’s statute has no such
language.
                                     22

      The    evidentiary   ground    rules   for   wrongful    imprisonment

proceedings were recently addressed in an Oklahoma Supreme Court

decision. See Courtney v. State, 307 P.3d 337 (Okla. 2013). Oklahoma’s

wrongful imprisonment statute has a similar framework to Iowa’s.             To

obtain relief, unless there has been a full pardon on the basis of a written

finding by the governor that the individual was actually innocent, the

individual must show “by clear and convincing evidence that the offense

for which the individual was convicted, sentenced and imprisoned,

including any lesser included offenses, was not committed by the
individual.” Okla. Stat. Ann. tit. 51, § 154(B)(2)(e)(2) (West 2008).

      In    Courtney,   the   applicant   sought    the   required      judicial

determination of innocence following a postconviction hearing that had

resulted in a vacated sentence. See 307 P.3d at 340. The Oklahoma

Supreme Court stated the actual innocence determination is “an

ancillary issue to be determined in a supplemental proceeding” in which

the court “makes use of the evidence adduced at the post-conviction

relief proceeding as well as other evidence.” Id. at 340–41.

      Along the lines of Courtney, we believe the prior evidence should be

considered, but the parties should be able to present additional relevant

and material evidence as part of the actual innocence determination, if

they timely request an opportunity to do so.        In a criminal trial, the

defendant has an absolute right not to testify. State v. Washington, 832

N.W.2d 650, 656 (Iowa 2013) (“The Fifth Amendment to the United States

Constitution provides, ‘No person . . . shall be compelled in any criminal

case to be a witness against himself . . . .’ ” (quoting U.S. Const. amend.

V)); State v. Walls, 761 N.W.2d 683, 685 (Iowa 2009) (discussing that the
Fourteenth Amendment Due Process Clause makes the Fifth Amendment

right against self-incrimination binding on the states).        In fact, the
                                       23

defendant has no obligation to present evidence at all. State v. Kemp,

688 N.W.2d 785, 789 (Iowa 2004) (“The State has the burden to prove

every fact necessary to constitute the crime . . . .”); State v. Hansen, 203

N.W.2d 216, 220 (Iowa 1972) (noting a defendant has the right to offer no

evidence and can simply submit the State’s case to the jury to determine

whether the prosecution has carried its burden).       Limiting the actual

innocence determination to the prior criminal trial record would be

inconsistent with those rights. At the same time, fairness dictates that

the State should have a similar opportunity to present other admissible
evidence bearing upon the actual innocence question.

      For the foregoing reasons, we hold the district court should

consider evidence that was admitted at the prior criminal trial or trials,

including   prior   testimony,    in    making   the   section    663A.1(2)

determination.   Either party may also present additional evidence, as

DeSimone did in this case.

      C. Was There Substantial Evidence to Support the District

Court’s Finding of Actual Innocence? We last turn to the State’s claim

that there was no substantial evidence to support the district court’s

finding under section 663A.1(2) that DeSimone had not committed

sexual abuse or a lesser included offense. Although our resolution of the

previous issue would ordinarily require a remand for the court to

reconsider its section 663A.1(2) determination in light of the prior trial

transcripts, such a remand would be unnecessary if the existing finding

were not supported by substantial evidence.       In that case, we would

simply reverse with instructions to deny DeSimone’s application.

      Under section 663A.1(2), innocence can be shown by clear and
convincing proof that the individual did not commit the acts or that the

acts in question did not constitute a crime. McCoy, 742 N.W.2d at 598.
                                          24

To find actual innocence, “[t]he district court must have no serious or

substantial doubt about the person’s criminal involvement in the crime

of conviction.” Id. at 600 n.7.

       As we have noted above, at the wrongful imprisonment hearing,

DeSimone introduced the State’s responses to requests for admissions

that confirmed the lack of physical evidence in the case. DeSimone also

testified in person, and the court specifically found him credible. There

are some inconsistencies between DeSimone’s November 2012 hearing

testimony and the recorded statement that DeSimone gave to police in
November 2004, shortly after the events in question.9 For example, in

his original statement, DeSimone said that he was pretty drunk on the

evening of the party but denied that Samantha had anything to drink at

the party. He also said he remembered seeing Samantha sleeping with

her head down at his kitchen table, but did not mention that he saw her

engaged in sexual activity with Baker in the kitchen. Still, we believe

there is substantial evidence, on the record that was before the district

court, to support its finding of actual innocence. See Mitchell v. Cedar

Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013) (“Substantial

evidence is evidence that a reasonable person would find sufficient to

reach a given conclusion.”).          Therefore, a remand is needed for the

district court to reconsider its section 663A.1(2) determination in light of

a more complete record, i.e., one that includes the testimony from the

prior criminal trials.

       9This  recorded statement was admitted as an exhibit in the second criminal
trial.  DeSimone concedes the recording was not subject to the district court’s
evidentiary ruling excluding the transcripts of prior testimony. The recording is part of
our record on appeal. However, it is not clear that the district court actually had the
recording before it when it ruled on DeSimone’s wrongful imprisonment application. At
the wrongful imprisonment hearing, the State did not refer to the recorded statement or
the other previous criminal trial exhibits.
                                    25

      IV. Conclusion.

      For the foregoing reasons, we uphold the district court’s conclusion

that DeSimone met the eligibility criteria set forth in section 663A.1(1),

but we reverse its ruling that the prior criminal trial testimony could not

be considered in making the section 663A.1(2) determination.           We

remand for further proceedings.

      REVERSED AND REMANDED.
