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, twentyeight 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.