### IN THE SUPREME COURT OF IOWA

No. 12

– 2176
Filed November 15 , 20 13

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 20 05, 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 postcon viction relief an d 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

- de gree 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 bec ause it wa s not “an order vacating, dismissing, or reversing the conviction and sentenc e in a case for which no further proceedings can be or wil l 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 the3

prior criminal case testimony even though the State did not show the witnesses were no longer a vailabl e; (3) substantial evidence support s the district court’s finding of innocence on the existing record , so a remand is necessary for the district c ourt to consider the full record, including the prior testimony

. For these reasons, we reverse the dis trict court’s
order and remand for further proceedings consistent with this opinion.
I. Facts and Procedural Background.
This case began with a party that DeSim one , then forty

- five years old, hosted i n October 2004. DeSimone lived i n the upstairs apartme nt of a h ouse 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 mis sing. 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 h ospital, 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 evide nce 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 se ized bedding from the defendant’ s home. The laboratory examination of the ite ms 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 W L 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 tog ether in DeSimone’s bedroom, with Samantha asleep

— although clothed

— on DeSimone’s bed. Following De S imone’ s conviction, the district court sentenced him t o a term of incarceration not to exceed fifteen years. The court of appeals
affirmed his conviction a nd 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 a t 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

1 In Brady v. Maryland , the United State s Supreme Court held that due process
re quires the prosecution to disclos e 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 favo rable to the defendant; and (3) the evidence was material to the issue of guilt.” DeSimone , 803 N.W.2d at 103 (citation and inte rnal quotation marks omitted)

.5

exculpatory information it had received fro m 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.
Alt hough DeSimone di d not take the stand in his original trial , he testified during his second criminal trial. At the conclusion of th is 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 t ook place in district court on November 13. Prior to the hearing, DeSimone had served a series of requests f or 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 respons e, 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 of ficer observed no “visible signs of injury on Samantha” and Samantha did not complain to him of any injuries caused by DeSimone; (3) Saman tha was intoxicated when
the officer questioned her; (4) an investigating officer from the Clinton Police Department f

ound “no evidence of manipulation of physical objects by anyone and . . . no evidence of anyone trying to hide e vidence” at

2 A 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 cla im she had been raped during her 911 call from the grocery store ; (9) the physician in the emergency room found no evidence of physic al 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 impri sonment hearing. In addition, he was the only witness to testify at the hearing. In his testimony, DeSimone stated he had brough t a keg of
beer to the October 2004 party and knew the guests, including the underage guests, were consuming alcohol throughou t the night. DeSimone testified he drank whiskey during the party but was not
drunk

. De Simone testified that Samantha became very in toxicated during the party. A round 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. A fter DeSimone
went back u pstairs, a n altercation occurred, after which DeSimone told
all of the g uests 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 f ollowing 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 d id 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 n ot demonstrated. See Iowa R. Evid. 5.804( b )(1) ( describing the hearsay exception for former testimony when the declarant is unavailable )

. On November 21, 201 2, 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 retrial8

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 t he State’s
admissions and DeSimone’ s in

- person testimony, which the d istrict court
fou nd credible, the district court concluded that DeSimone had not committed sexual assault or any lesser included crime. See id.
The State no w appeals, challenging all thr ee 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 Fo llowing 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. T o be considered wrongfully imprisoned, t he 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 inca rceration 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 convin cing 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); s ee 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) (“ I f [the criteria of section 663A.1(1)] are met, the court then proceeds to the second inquiry: whether that person meets the require ments of section 663A.1(2).”). An individual must satisfy both section 663 A.1(1) and section 663A.1( 2 ) to be d eemed 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 p erson’ 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 by10

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 followin g 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 e ither 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 te rmination of the proceedings. According to the State, i f 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 Dr ainage 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 impo rtance 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 of11

the entire statute or related statutes.” ( C itation 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 al l its provisions are examined. ” ( C itation and
in ternal 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 hel d 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 c onviction and (2) an end to further pro ceedings a gainst 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 s ection 663A.1(1)( d ) and state wh at 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 rec eived “an order vacating, dismissing, or reversing the
conviction and sen tence” 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 wa s “in a case” where the re can be or
will be no fur ther 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 i nterpretation. If the order had to be the last thing to occur, then a wrongful imprisonment cause of action would not12

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 tria l 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 possibil ity that some proceedings

— e.g. , an unsuccessful retrial

— can occur between the order vacating the original
conviction and the ultimate determination that no furth er proceedings
can or will be hel d. 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 proceedi ngs can or will be held; it does not indicate those related elements must come into existence simultaneously or in direct sequence

. Given an ambiguous statu te, we now revert to additional principles of statutory interpretation, namely that statutes are to be read so they
make s ense and achieve the legislature’s purposes

. See St ate v. McCullah , 787 N.W.2d 90, 94 (Iowa 2010) (“We strive for a reasonable interpretation that best achieves the statute’ s purp ose and avoids absurd results.” (C itation and interna l quotation marks omitted

. ) )

. The State’s construction would lead to an odd result . T he 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 eligibili ty 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 like13

Samantha through an additional trial ) just to avoid the possibility of wrongful imprisonment liability.
Moreo ver, 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
pe rson’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 Stat e’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 vacat ing 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 w as 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, t his wording would have preclude d the wrongful imprisonment cause of action from being pursued in a case
such as McCoy

— where the conviction was reversed because a confe ssion14

was improperly admitted

— or here

— where the conviction was reversed
bec ause of a Brady violation. The House version of the bill, howev er, 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 Govern or 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 cont emplates 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 vac ated 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 . Unle ss the criminal conviction wa s 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 proceedings15

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 inte rest 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 t he state dismissed
the charges). Yet the State’s interest in not having to pay compensation
to someone wh o 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/ne ws/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 s eventeen jurisd ictions 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 case law (at least implicitly) that an individual may

3 See , e.g. , Me. Rev. Stat. Ann. tit. 14, § 8241(2)(C) (2003) (requ iring 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 exonerat ion from the governor indicating the individual did not commit the crime).16

bring a claim after being acquitted on retrial. 4 This demonstrate s 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 re quires the following elements to be present:
T he 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 brough t by any prosecuting attorney, city

4 Twelve 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) ; Co lo . Rev. St at . § 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. C ode 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); Est ate of Knight v. State , A

- 2900

- 05T3, 2007 WL 837120 (N.J. Super. Ct. App. Div. Mar. 21, 200 7 ) (stating that after release from custody, when the wrongful imprisonment claim accrues, “the [wrongful imprisonment] action could be stayed or placed on the inact ive 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. St ate , 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 jurisd iction 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 o rder 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 a ssociated 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.
I n 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 , 96 5 ( Ohio 1989).
The court further held that the individual s’ 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 th at time, it
was uncontroverted that we ha d vacated his conviction and sentence in 2011 and that no further proce edings 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 I nnocence 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 dete rmination

. The district court reasoned the State had failed to show the witnesses were unavailable, an essential requirement18

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
t he courts of this state, . . . except as otherwise provided by rules of the Iowa Supreme Court”). However, there are situ ations where the legislature has carved out exceptions to th e 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 dir ected when it enacted chapter
663A.
Section 663A.1(2) instructs the district court to “make a
determination” once it receives “an order va cating, 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, w ith out a party asking for it. As

5 In 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 s h all 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 withou t 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 unde r 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 t ime, 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 i ndividual even being aware th e distr ict court was acting

. Thus, section s 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 eviden ce. De Simone 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 proceed20

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 author izes a “cause of action,” but that does
not mean the section 663A.1(2) preliminary determination must be subject to the same procedural r equirements that attend a typical civil
action

. In fact, w e have previously stated that the section 663A.1(2) determination is only “a predicate review and assessment of the claim”
that de cides 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 c ourt to serve as a gate keeper 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 impracti cal 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, suc h a requirement could disadvant age the recently

- freed prisoner by increasing the time and co st 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 stack s 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 pre vailing approach allows the previous21

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 N o state statutorily prohibi ts prior criminal case testimony from being considered

. See State Compensation
Laws , The Innocence Project, http://www.innocenceproject.org/news/
Law View1.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 testi mony given in the prior criminal proceedings was excluded based upon a hearsay objection

. 8

6 See Cal. Code Regs. tit. 2, § 641( b ) (2013) (“The Board may consider as substantive evidence the prior testimony of witne sses claimant had an opportunity to
cross

- examine, and evidence admitted in prior proceedings for which claimant had an opportunity to object.”); Co lo . Rev. St at . § 13

- 65

- 102(5)(f)( II ) (“The district court shall use any transcripts that are within the cour t 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 cert ificate 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).

7 See 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 therei n.”); see also United States v. Brunner , 200 F.2d 276, 279 (6th Cir. 195 2 ) (approving Keegan ).

8 See 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
cr iminal 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 h is 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 int erpreted 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) . O klahoma’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 writte n 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 i mprisoned, including any lesser included offenses, was n ot 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 post conviction 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 a s part of the actual innocence determinatio n, 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
Consti tution provides, ‘No person . . . shall be compelled in any criminal
case to be a witness against himself

. . . . ’ ” (quo ting 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, the23

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
evid ence and can simply submi t the State’s case to the jury to determine whether the prosecution has carried its burden ). L imiting 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 t o 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 tri als, 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 Inno cence? 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 DeS imone had not committed
sexual abuse or a lesser included offense. Although our resolution of the
prev ious issue would ordinarily require a remand for the court to
reconsider its section 663A.1(2) determination in light of the prior trial transcripts, su ch 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 imp risonment 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 f ound him credible. There
are some inconsisten cies 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
engage d 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 Cm ty. 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 co urt to reconsider its section 66 3A.1(2) determination in light of

a more com plete record, i.e., one that includes the testimony from the prior criminal trials.

9 This 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 up hold 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
.