IN THE SUPREME COURT OF IOWA

No. 16–2141

Filed April 13, 2018

IN RE THE DETENTION OF RONALD TRIPP,

RONALD TRIPP,

Appellant.

Appeal from the Iowa District Court for Fayette County, John 

Bauercamper, Judge.

A person committed under the Sexually Violent Predator Act 

appeals his commitment. REVERSED AND REMANDED.

Jill Eimermann, Assistant Public Defender, Des Moines, for 

appellant.

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

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

APPEL, Justice.

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

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

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

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

convicted of certain sexual offenses.

Ronald Tripp claims in this case that he was unlawfully committed 

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

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

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

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

district court erred in refusing to dismiss the SVP commitment 

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

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

admission of hearsay evidence at the SVP hearing.

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

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

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

expert witness testimony.

I. Background Facts and Proceedings.

A. Original Conviction for a Sexually Violent Offense, 

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

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

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

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

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

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

requirements of the sex offender registry under Iowa Code section 
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692A.113 (2011) and for harassment under Iowa Code section 

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

misdemeanors for sex offender exclusion zone violations and three simple 

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

was incarcerated. Tripp discharged his sentence and was released from 

prison in June 2012.

Upon the completion of his sentence for his underlying offense, 

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

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

special sentence is placed on the corrections continuum under Iowa 

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

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

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

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

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

sexual abuse. The State dismissed the criminal charge but pursued 

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

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

parole judge. After receiving evidence, the administrative parole judge 

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

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

hearing was a preponderance of evidence. The administrative parole

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

corrections violation report were correct and adopted them wholesale as 

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

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

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

C. Subsequent SVP Proceedings.

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

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

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

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

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

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

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

matter was scheduled for trial.

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

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

motions prior to trial.

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

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

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

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

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

suggested the State had problems with its criminal prosecution and 

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

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

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

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

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

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

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

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

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

special sentence under Iowa Code chapter 903B.
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According to Tripp, “[a] special sentence is not the same as being 

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

sentence, regardless of severity, the penalty is the same, namely a twoyear incarceration for a first violation and a five-year incarceration for 

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

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

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

underlying criminal sentence.

The State responded that under existing caselaw, a person 

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

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

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

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

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

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

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

authorities from other jurisdictions supported its view that a person who 

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

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

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

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

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

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

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

motion to dismiss the State offered into evidence a parole violation 

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

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

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

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

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

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

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

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

purpose at trial.

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

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

in limine.

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

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

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

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

charges that were ultimately dismissed could not be admitted. While 

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

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

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

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

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

information might be admissible under Iowa Rule of Evidence 5.703, 

Tripp noted that rule 5.403 requiring the exclusion of prejudicial, 

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

evidence can override any such admission.

While an administrative parole judge found that Tripp had violated 

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

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

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

again asserted that the administrative parole judge applied a lower 

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

The State responded by characterizing Stenzel as standing only for 

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

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

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

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

in several important respects.

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

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

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

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

underlying facts, including offering minors money to undress and jump 

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

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

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

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

court admitted the exhibits for the limited purpose of considering the 

motion in limine.

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

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

determined that Tripp committed the offense and thereby violated his 

parole. The State argued that the administrative determination 

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

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

case that Tripp qualified as a sexually violent predator.

Third, the State asserted that experts consider parole revocation 

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

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

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

parole.

Fourth, the State asserted that information about “other children 

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

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

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

determine that Tripp met a particular dynamic risk factor of sexual 

preoccupation. The State emphasized that Stenzel was not designed to 

change how various instruments were used by experts to indicate future 

risk.

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

matter proceeded to trial.

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

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

the three complaints related to the 2011 harassment charges contained 

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

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

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

charging documents based on Stenzel. The district court admitted the 

exhibit subject to the objection.

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

violation prepared by the department of corrections related to the 2011 

harassment charges. The report provides additional details beyond those

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

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

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

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

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

underwear and asked for a hug.”

The report further provides information about the 2011 charges 

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

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

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

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

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

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

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

harassment and exclusionary zone charges in 2011.

Tripp also offered testimony about the 2011 events. Tripp

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

the harassment complaints. He admitted there were minors at the 

location and that his interaction with them involved skinny dipping. 

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

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

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

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

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

that he was not wearing swimming trunks underneath his clothing.

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

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

offered into evidence the department of corrections violation report, 

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

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

amended trial informations, and documents related to the dismissal of 

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

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

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

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

court admitted the evidence subject to the objection.

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

Salter described two diagnostic tests, the Static-99R and the Static2002R. Salter testified these tests require the examiner to consider a

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

including age, number of previous offenses, and various victim 

characteristics. Salter explained the examiner assigns a numerical value 

to each factor based on their interview with the individual and 

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

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

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

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

2013 revocation as an index offense which influences how various scores 

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

the 2013 parole revocation.

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

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

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

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

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

witness. Tripp established that Salter was relying upon a report 

containing facts about which she had no personal knowledge. Tripp 

recognized that the court was reserving objections, but emphasized that 

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

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

subject to the objection.

Salter then continued her testimony by citing the results of a 

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

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

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

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

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

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

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

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

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

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

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

authorities deem appropriate to consider in SVP cases. According to 

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

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

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

again overruled the objection. Salter then testified

[t]here were multiple reports of sexual offending that came 

out of that [police report]. They only prosecuted one, but 

there was also a report from a five-year-old, there was [a] 

report from a 15-year-old, there were multiple reports that 

he would get kids in his trailer and offend against them.

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

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

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

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

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

sentence for the indecent contact crime.”

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

concluded that “it is acceptable under certain circumstances for an 

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

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

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

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

admission of specific exhibits and testimony.

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

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

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

Evidence presented at the parole revocation hearing 

disclosed that Tripp fondled an adult female acquaintance 

who was traveling with him in his vehicle when he offered to 

give her a ride. Trip[p] touched her breast and thighs, and 

tried to touch her vagina despite multiple attempts to block 

the assault. His parole was revoked and he was returned to 

prison.

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

high due to the parole violation, sexual preoccupation, and “sexually 

deviant life style in the trailer park,” among other factors. The district 

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

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

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

committed.

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

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

presently confined when serving a sentence for violation of Iowa Code 

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

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

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

Tripp denied having committed and that were ultimately dismissed.

II. Standard of Review.

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

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

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

487, 488 (Iowa 2010).

With respect to hearsay challenges, the standard of review is 

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

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

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

(Iowa 2001).

III. Motion to Dismiss.

A. Interplay Between “Presently Confined” Under Iowa Code 

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

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

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

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

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

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

underlying the sexually violent offense that resulted in his incarceration. 

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

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

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

The State did, in the alternative, seek commitment under the recentovert-act prong of Iowa Code section 229A.4(2). The State asserts there 

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

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

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

Iowa Code section 229A.4(2).

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

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

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

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

the district court.

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

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

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

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

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

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

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

offered sufficient evidence to survive dismissal for lack of substantial 

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

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

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

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

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

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

the offered exhibits, including 6A and 6B, are admitted for 

the limited purpose of the motion in limine. If counsel for 

the State wants to use them for any other purpose later in 

the proceeding, they will need to be offered again.

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

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

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

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

information, and documents related to dismissal of the 2013 criminal 

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

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

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

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

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

objections.

We first consider whether Exhibit 7, which includes the criminal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

parole judge, Exhibit 8.

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

there is a question whether it should nevertheless be considered for 

purposes of determining whether the State offered sufficient evidence to 

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

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

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

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

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

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

introduced other evidence or otherwise employed different tactics to 

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

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

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

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

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

double jeopardy provision of Hawaii Constitution, court on appeal only 

considers properly admitted evidence at trial in sufficiency review); 

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

(considering only properly admitted evidence in sufficiency review as a 

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

Here, however, the procedural posture is materially different than 

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

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

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

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

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

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

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

district court admission of evidence because it was subject to the 

objection raised by Tripp.

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

remanding a substantial evidence case where evidence is stricken on 

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

produce in reliance upon the strength of the erroneously admitted 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

shoehorn otherwise inadmissible evidence into the case.” (quoting 

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

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

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

substantive evidence of the matters asserted therein.”).

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

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

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

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

additional available evidence as cumulative in reliance on the district 
19

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

overt act disclosed pretrial to the opposing party that it reasonably 

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

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

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

recent overt act—inadmissible hearsay evidence. The State further 

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

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

no reasonable basis for assuming that the hearsay evidence would be 

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

Dullard does not apply here.

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

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

department of corrections report asserts that charging documents are 

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

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

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

shows the charge was brought, but nothing more.

The findings of fact and conclusions of law of the administrative 

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

903B are also threadbare. The administrative parole judge simply 

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

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

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

 1Exhibits 6A and 6B—discs recording the proceedings of the administrative 

parole hearing—were not offered by the State at trial. These exhibits, however, do not 

contain any admissible, nonhearsay evidence showing a recent overt act. While the 

deposition of the victim was apparently made part of the record of the parole revocation 

proceeding, the deposition is not part of Exhibits 6A and 6B.
20

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

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

offered discs containing the evidentiary record presented to the 

administrative parole judge in the pretrial hearing, the district court 

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

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

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

The question, then, is whether this limited documentary evidence

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

provides substantial evidence to allow a reasonable finder of fact to 

conclude that Tripp committed a recent overt act beyond a reasonable 

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

The State certainly proved that the department of corrections had 

prepared a report stating a criminal complaint against Tripp had been 

filed and seeking revocation of his release under Iowa Code chapter

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

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

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

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

doubt, that a recent overt act occurred?

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

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

independent determination of what the acts were, whether the alleged 

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

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

whether there was a misidentification, or whether the evidence 

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

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

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

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

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

commitment.

IV. Conclusion.

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

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

REVERSED AND REMANDED.

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

who concur in part and dissent in part.
22

#16–2141, In re Det. of Tripp

MANSFIELD, Justice (concurring in part and dissenting in part).

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

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

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

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

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

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

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

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

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

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

an established line of authority holding that in weighing the sufficiency 

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

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

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

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

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

community. The release was not successful. In June 2011, the fiftynine-year-old Tripp was charged with a probation violation for offering to 

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

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

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

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

admitted the violation and was incarcerated. Following a subsequent 

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

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

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

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

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

Because Tripp was not criminally convicted on the 2013 charge, 

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

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

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

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

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

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

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

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

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

incident, the district court stated,

Evidence presented at the parole revocation hearing 

disclosed that Tripp fondled an adult female acquaintance 

who was traveling with him in his vehicle when he offered to 

give her a ride. Tripp touched her breast and thighs, and 

tried to touch her vagina despite multiple attempts to block 

the assault. His parole was revoked and he was returned to 

prison. . . . The state relies on these events as establishing a 

recent overt act.

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

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

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

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

statute then it becomes necessary to determine whether a recent overt 

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

purpose.

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

without a remand because the State failed to present substantial 

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

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

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

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

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

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

which consisted of the criminal complaint and the trial information that 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

act without any hearsay problems.

For all these reasons, substantial evidence would have supported a 

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

Unfortunately, the majority has decided to rewrite our law 

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

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

admitted during trial, including evidence that may have been admitted 

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

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

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

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

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

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

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

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

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

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

notice that it may need more evidence.

I would not water down our previously clear precedent. The 

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

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

The majority cites no precedent from any jurisdiction for applying its 

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

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

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

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

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

necessary, the “recent overt act” theory.

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

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

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

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

complete sex offender treatment—may well warrant his continued 

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

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

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

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

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

dissent in part.