The opinion
IN THE SUPREME COURT OF IOWA
No. 16–2141
Filed April 13, 2018
IN RE THE DETENTION OF RONALD TRIPP,
RONALD TRIPP,
Appellant.
Appeal from the Iowa District Court for Fayette County, John
Bauercamper, Judge.
A person committed under the Sexually Violent Predator Act
appeals his commitment. REVERSED AND REMANDED.
Jill Eimermann, Assistant Public Defender, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller and Keisha
F. Cretsinger, Assistant Attorneys General, for appellee.
2
APPEL, Justice.
As in State v. Wygle, ___ N.W.2d ___ (Iowa 2018), this appeal
involves the relationship between Iowa Code chapter 229A (2016), which
provides for the civil commitment of sexually violent predators, and Iowa
Code chapter 903B, which imposes a special sentence on persons
convicted of certain sexual offenses.
Ronald Tripp claims in this case that he was unlawfully committed
as a sexually violent predator (SVP). Tripp asserts the State failed to
prove either that he was presently confined for a sexually violent offense
under Iowa Code section 229A.4(1) or that he committed a recent overt
act under Iowa Code section 229A.4(2). As a result, Tripp asserts, the
district court erred in refusing to dismiss the SVP commitment
proceeding against him. In the alternative, Tripp claims the district
court improperly allowed an expert witness to be a conduit for the
admission of hearsay evidence at the SVP hearing.
For the reasons expressed below, we reverse the district court.
Because we hold that the district court erred in not granting the motion
to dismiss, we do not address the hearsay issue with respect to the
expert witness testimony.
I. Background Facts and Proceedings.
A. Original Conviction for a Sexually Violent Offense,
Revocation of Probation, and Discharge of Prison Sentence. In 2010,
Tripp was convicted of indecent contact with a child, a sexually violent
offense under Iowa Code section 229A.2(10)(a) (2009). The district court
placed Tripp on probation. The district court also imposed a ten-year
special sentence pursuant to Iowa Code section 903B.2.
In 2011, Tripp was charged with failing to abide by the
requirements of the sex offender registry under Iowa Code section
3
692A.113 (2011) and for harassment under Iowa Code section
708.7(1)(b). Ultimately, Tripp pled guilty to three aggravated
misdemeanors for sex offender exclusion zone violations and three simple
misdemeanors for harassment. Tripp’s probation was revoked and he
was incarcerated. Tripp discharged his sentence and was released from
prison in June 2012.
Upon the completion of his sentence for his underlying offense,
Tripp began serving his ten-year special sentence under Iowa Code
section 903B.2. Under Iowa Code section 903B.2, a person subject to a
special sentence is placed on the corrections continuum under Iowa
Code chapter 901B and is subject to the procedures set out in Iowa Code
chapters 901B, 905, 906, and 908 and the rules adopted under these
provisions for persons on parole. Id. § 903B.2.
B. Revocation of Release Under Iowa Code Section 903B.2. In
May of 2013, Tripp was charged with assault with attempt to commit
sexual abuse. The State dismissed the criminal charge but pursued
revocation of Tripp’s release under Iowa Code section 903B.2.
On October 11, 2013, a hearing was held before an administrative
parole judge. After receiving evidence, the administrative parole judge
revoked his release. In a brief order, the administrative parole judge
noted that the burden of proof born by the state in a parole revocation
hearing was a preponderance of evidence. The administrative parole
judge came to the conclusion that facts stated in a department of
corrections violation report were correct and adopted them wholesale as
findings of fact. As a result, the administrative parole judge revoked
Tripp’s release and ordered Tripp to serve a two-year sentence as
provided in Iowa Code section 903B.2 (2013).
4
C. Subsequent SVP Proceedings.
1. Two-pronged petition. Before Tripp was discharged from his two
year incarceration under Iowa Code section 903B.2, the State filed a
petition seeking civil commitment of Tripp as an SVP under Iowa Code
chapter 229A. The State alleged Tripp was presently confined at the time
of the filing of the petition under Iowa Code section 229A.4(1). The State
also alleged that Tripp had committed a recent overt act under Iowa Code
section 229A.4(2). A district court judge found probable cause and the
matter was scheduled for trial.
2. Pretrial motions. Prior to his trial, Tripp filed a motion to
dismiss and a motion in limine. The district court held a hearing on the
motions prior to trial.
At the pretrial hearing the day of trial, Tripp argued that the SVP
petition must be dismissed. Tripp noted the State must prove the
elements of either of the two SVP tracks “beyond a reasonable doubt.”
He focused his fire on the allegation in the State’s petition that Tripp was
presently confined for purposes of Iowa Code section 229A.4(1). Tripp
suggested the State had problems with its criminal prosecution and
proceeded with “the easier route” of a parole revocation where the rules
of evidence are relaxed and the burden of proof is lower. He argued that
the record developed at the parole hearing included only the deposition of
the alleged victim, the deposition of a police officer, the victim’s impact
statement, and a letter with the testimony of Tripp denying the charges.
Thus, while Tripp conceded he was confined at the time of the SVP
hearing, it was not because of the conviction for his 2010 offense or the
offense charged in 2013, which was ultimately dismissed. Instead,
according to Tripp, he was being confined because of a violation of his
special sentence under Iowa Code chapter 903B.
5
According to Tripp, “[a] special sentence is not the same as being
on probation or parole.” Tripp noted that for a violation of a special
sentence, regardless of severity, the penalty is the same, namely a two-
year incarceration for a first violation and a five-year incarceration for
subsequent violations. Tripp asserted the two-year/five-year regime
established by Iowa Code chapter 903B was “arbitrary” and
“fundamentally different” than a return to prison to serve all or part of an
underlying criminal sentence.
The State responded that under existing caselaw, a person
convicted of a qualifying offense is still being punished for that offense by
a special sentence under Iowa Code chapter 903B. See State v. Harkins,
786 N.W.2d 498, 505 (Iowa Ct. App. 2009). The State advanced what
amounted to a cause-in-fact argument—Tripp would not have been
subject to Iowa Code chapter 903B special sentence but for his
conviction of a sex offense in 2010. As a result, Tripp was presently
confined as a result of his original 2010 offense. The State asserted that
authorities from other jurisdictions supported its view that a person who
is on parole and then returned to prison may be subject to SVP
commitment. See People v. Felix, 87 Cal. Rptr. 3d 482, 490 (Ct. App.
2008); Barber v. State, 988 So. 2d 1170, 1178 (Fla. Dist. Ct. App. 2008);
In re Commitment of Bush, 699 N.W.2d 80, 92 (Wis. 2005).
Further, the State argued, even if Tripp was not presently confined,
the SVP petition could be supported under the overt-act prong of the
statute. With respect to the overt-act theory, at the hearing on the
motion to dismiss the State offered into evidence a parole violation
report, Exhibit 5; documentation of the dismissed case that was
submitted as evidence in the parole violation hearing, Exhibit 7; and the
parole revocation order, Exhibit 8. Tripp did not object to the offer of
6
Exhibits 5 and 8, but objected to Exhibit 7 as containing impermissible
hearsay. The State responded, in part, by offering two discs, Exhibit 6A
and 6B, which contained testimony presented at the parole hearing. The
district court accepted the exhibits for purposes of the motion in limine,
but with the clear admonition that they must be reoffered for any
purpose at trial.
The district court declined to rule on the motion to dismiss, taking
the motion under advisement. The district court next took up the motion
in limine.
Tripp argued that under our decision in In re Detention of Stenzel,
827 N.W.2d 690 (Iowa 2013), certain types of evidence, such as testifying
from police reports or testifying from minutes of testimony, are not
admissible. Thus, Tripp argued, this type of evidence from the 2013
charges that were ultimately dismissed could not be admitted. While
Tripp pled guilty to three simple misdemeanor offenses in 2011, he
argued they were not sexually violent offenses and any hearsay related to
them should be excluded under Stenzel, 827 N.W.2d at 710.
Tripp also sought to prevent the State’s experts from using police
generated hearsay in forming their opinions. To the extent any such
information might be admissible under Iowa Rule of Evidence 5.703,
Tripp noted that rule 5.403 requiring the exclusion of prejudicial,
confusing, misleading, delaying, time wasting, or needlessly cumulative
evidence can override any such admission.
While an administrative parole judge found that Tripp had violated
his special parole, Tripp argued, administrative agency findings were not
admissible under State v. Huston, 825 N.W.2d 531, 539 (Iowa 2013), and
Goodwin v. State, 585 N.W.2d 749, 753 (Iowa Ct. App. 1998). Tripp
7
again asserted that the administrative parole judge applied a lower
standard of proof than is required under Iowa Code chapter 229A.
The State responded by characterizing Stenzel as standing only for
the proposition that it cannot create its own evidence and that, as a
result, documents prepared by the prosecution, such as charges or
minutes of testimony, should not be admitted when the charges have
been dismissed. But, the State argued, the reach of Stenzel was limited
in several important respects.
First, the State suggested, the details of the offenses may be
admitted from other sources, such as admissions of the defendant.
Specifically, the State argued that Tripp had admitted the allegations in
the harassment misdemeanors. As a result of his guilty plea, the
underlying facts, including offering minors money to undress and jump
into the river, were admissible. The State offered the complaint, guilty
pleas, and the minutes of evidence as Exhibit 2, the report of violation as
Exhibit 3, and an admission of probation violation by Tripp as Exhibit 4.
Tripp objected to Exhibits 2 and 3 as violations of Stenzel. The district
court admitted the exhibits for the limited purpose of considering the
motion in limine.
Second, the State noted that in this case, while not convicted
criminally of the crime charged in 2013, an administrative parole judge
determined that Tripp committed the offense and thereby violated his
parole. The State argued that the administrative determination
“essentially operates as [if] it [were] a conviction.” As a result, the State
asserted, it could offer the details of that offense in order to present its
case that Tripp qualified as a sexually violent predator.
Third, the State asserted that experts consider parole revocation
an “index offense” which then determines the scoring and assessment of
8
other prior offenses and allegations. As a result, experts should be able
to at least reference the underlying charges that led to the revocation of
parole.
Fourth, the State asserted that information about “other children
in the trailer park” in police reports related to Tripp’s 2010 conviction
could be relied upon by the State’s experts. The presence of other
children, according to the State, provided a basis for their expert to
determine that Tripp met a particular dynamic risk factor of sexual
preoccupation. The State emphasized that Stenzel was not designed to
change how various instruments were used by experts to indicate future
risk.
The district court reserved ruling on the motion in limine and the
matter proceeded to trial.
3. Evidentiary issues at trial. At trial, the State called Tripp as its
first witness. In its interrogation of Tripp, the State sought admission of
the three complaints related to the 2011 harassment charges contained
in Exhibit 2. The complaints alleged that on three occasions Tripp
offered three minor girls “$10 each to strip nude and jump in the water”
at a bridge over Otter Creek. Tripp objected to the admission of the
charging documents based on Stenzel. The district court admitted the
exhibit subject to the objection.
The State also sought to admit through Tripp Exhibit 3, a report of
violation prepared by the department of corrections related to the 2011
harassment charges. The report provides additional details beyond those
contained in the harassment complaints. Among other things, the report
indicated “[the State had] statements from 6 different girls (ranging in
age from 13 to 14) who were approached [by] Tripp,” that Tripp “made
inappropriate comments” before offering them money to take off their
9
clothes and jump into the water, and “Tripp had also shown them his
underwear and asked for a hug.”
The report further provides information about the 2011 charges
against Tripp for violating Iowa Code section 692A.113 related to
exclusion zones for sex offenders. Specifically, the report alleged that
Tripp was seen getting his phone out and attempting to take pictures of
four or five kids selling Kool-Aid from a stand. Tripp objected to
admission of Exhibit 3 under Stenzel and as hearsay. The district court
admitted the exhibit subject to the objections. Tripp did not object,
however, to Exhibit 4, a document showing that Tripp pled guilty to the
harassment and exclusionary zone charges in 2011.
Tripp also offered testimony about the 2011 events. Tripp
admitted being at the Otter Creek location on the three dates charged in
the harassment complaints. He admitted there were minors at the
location and that his interaction with them involved skinny dipping.
Tripp stated that one of the boys at the location hollered at a girl asking
her to jump naked in the water and that Tripp simply repeated what the
boy had said when asked by the girl. He further admitted that he
showed the minors his underwear in response to requests that he jump
into the water. Tripp claimed he exposed his underwear to demonstrate
that he was not wearing swimming trunks underneath his clothing.
The State also explored with Tripp the circumstances of Tripp’s
revocation of parole under Iowa Code chapter 903B in 2013. The State
offered into evidence the department of corrections violation report,
Exhibit 5. The report made reference to an “attached complaint” but no
such complaint was attached to the exhibit. The complaint, original and
amended trial informations, and documents related to the dismissal of
the charges, however, were all assembled in Exhibit 7, which the State
10
offered into evidence. The State also offered the findings of fact and
conclusions of law of the administrative parole judge as Exhibit 8. Tripp
objected only to Exhibit 7 on Stenzel and hearsay grounds. The district
court admitted the evidence subject to the objection.
The State next called an expert witness, Anna Salter, to testify.
Salter described two diagnostic tests, the Static-99R and the Static-
2002R. Salter testified these tests require the examiner to consider a
number of factors that affect an individual’s likelihood to reoffend,
including age, number of previous offenses, and various victim
characteristics. Salter explained the examiner assigns a numerical value
to each factor based on their interview with the individual and
documentary evidence. The sum of these numbers is then used to
calculate the individual’s risk of reoffending based on actuarial data.
The State asked Salter to explain her scoring of Tripp on the
factors in each diagnostic test. Salter testified that she used Tripp’s
2013 revocation as an index offense which influences how various scores
are calculated. At this point, she did not describe the underlying facts of
the 2013 parole revocation.
Tripp began to object, however, when the State sought to establish
the basis of some of Salter’s scoring. When the State asked why Salter
assigned a point against Tripp for having a five-year-old male victim,
Salter testified that she relied on police reports from May 2010 regarding
a five-year-old victim. At this point, Tripp engaged in voir dire with the
witness. Tripp established that Salter was relying upon a report
containing facts about which she had no personal knowledge. Tripp
recognized that the court was reserving objections, but emphasized that
the court should disallow testimony about the matter as it was “in no
11
way reliable, nor is it credible.” The district court admitted the evidence
subject to the objection.
Salter then continued her testimony by citing the results of a
forensic interview of the child conducted by St. Luke’s Hospital Child
Protection Center. Tripp objected on grounds of Stenzel and “credibility.”
The district court admitted the testimony subject to the objection. When
Salter sought to describe the results of the forensic interview of the
mother, Tripp again objected on the ground that even if Salter could
utilize the interview for scoring purposes, that did not necessitate a
reading into the record of the details of the allegations. The district court
overruled the objection. Salter then read a description of the mother’s
statements indicating that when Tripp rode up to her and the boy, the
boy blurted out to her that “I suck Ron’s pee pee and he sucks mine.”
Later, Salter offered testimony about “dynamic factors” that some
authorities deem appropriate to consider in SVP cases. According to
Salter, one of the dynamic factors is sexual preoccupation. Salter again
referenced the 2010 police reports. Tripp’s attorney objected on grounds
of “hearsay, Stenzel, prejudicial more than probative.” The district court
again overruled the objection. Salter then testified
[t]here were multiple reports of sexual offending that came
out of that [police report]. They only prosecuted one, but
there was also a report from a five-year-old, there was [a]
report from a 15-year-old, there were multiple reports that
he would get kids in his trailer and offend against them.
4. District court ruling. After the bench trial, the district court
issued findings of fact and conclusions of law adverse to Tripp. With
respect to the pending motion to dismiss, the district court overruled it,
finding that Tripp was presently confined as a result of violation of his
12
Iowa Code chapter 903B special sentence “which was part of his
sentence for the indecent contact crime.”
The court also addressed the motion in limine. The district court
concluded that “it is acceptable under certain circumstances for an
expert witness to rely on facts not in evidence or crimes not charged or
resulting in conviction, based upon the facts of the case.” As a result, the
court denied the “blanket motion in limine.” The district court, however,
did not rule on the specific objections interposed by Tripp to the
admission of specific exhibits and testimony.
The district court then turned to the merits of the case. In its
findings of fact the district court canvased the evidence from Tripp’s
parole revocation hearing in 2013. According to the district court,
Evidence presented at the parole revocation hearing
disclosed that Tripp fondled an adult female acquaintance
who was traveling with him in his vehicle when he offered to
give her a ride. Trip[p] touched her breast and thighs, and
tried to touch her vagina despite multiple attempts to block
the assault. His parole was revoked and he was returned to
prison.
The district court concluded that Tripp’s risk of reoffending was
high due to the parole violation, sexual preoccupation, and “sexually
deviant life style in the trailer park,” among other factors. The district
court found that the State had shown beyond a reasonable doubt that
Tripp had a greater than fifty percent chance of reoffending. As a result,
the district court granted the State’s SVP petition and ordered Tripp
committed.
Tripp appealed. On appeal, he launches a two-pronged attack on
his civil commitment as an SVP. First, Tripp asserts he was not
presently confined when serving a sentence for violation of Iowa Code
chapter 903B. As a result, Tripp argues, he cannot be civilly committed
13
under Iowa Code section 229A.4(1). Second, Tripp asserts the district
court erred by allowing hearsay evidence of prior alleged sex offenses that
Tripp denied having committed and that were ultimately dismissed.
II. Standard of Review.
The district court’s ruling on a motion to dismiss and its
construction of Iowa Code chapter 229A and 903B are reviewed for errors
at law. Stenzel, 827 N.W.2d at 697; Waters v. Iowa Dist. Ct., 783 N.W.2d
487, 488 (Iowa 2010).
With respect to hearsay challenges, the standard of review is
generally for errors at law. Stenzel, 827 N.W.2d at 697. When experts
rely on hearsay testimony, however, we have applied an abuse of
discretion standard. Id.; Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5
(Iowa 2001).
III. Motion to Dismiss.
A. Interplay Between “Presently Confined” Under Iowa Code
Section 229A.4(1) and Revocation of Release Under Iowa Code
Section 903B.2. As in Wygle, this case raises a legal question regarding
the interplay between Iowa Code section 229A.4(1) and the revocation of
release under Iowa Code section 903B.2. ___ N.W.2d at ___. In Wygle,
we held the “presently confined” provision of Iowa Code section 229A.4(1)
does not apply to a person who has been discharged from the sentence
underlying the sexually violent offense that resulted in his incarceration.
Id. at ___. Tripp is thus not “presently confined” under Iowa Code section
229A.4(1) by virtue of being subject to a chapter 903B special sentence.
B. Overt-Act Alternative Under Iowa Code Section 229A.4(2).
The State did, in the alternative, seek commitment under the recent-
overt-act prong of Iowa Code section 229A.4(2). The State asserts there
was sufficient evidence to find an overt act in the 2013 charges, and as a
14
result, even if Tripp was not presently confined under Iowa Code section
229A.4(1), the State met its burden on showing a recent overt act under
Iowa Code section 229A.4(2).
There are several problems with the State’s theory. First, the
district court made no finding of a recent overt act in its ruling, and
thus, even if there is substantial evidence in the record to support an
overt act, the case would need to be remanded for further fact finding by
the district court.
In any event, whether there was a recent overt act under Iowa
Code section 229A.4(2) sufficient to support the SVP petition is a
question of fact. It must be proved beyond a reasonable doubt by
admissible evidence. See Iowa Code §§ 229A.7(4), .5 (2016).
At trial, the State presented no in-court testimony on the alleged
events in 2013. Instead, the State offered several exhibits related to
these events. In order to resolve the question of whether the State
offered sufficient evidence to survive dismissal for lack of substantial
evidence on a “recent overt act,” we must examine the contents of each
exhibit and determine whether it was properly admitted into evidence. In
examining the evidence at trial, we must take into account the
admonition of the district court at the pretrial hearing on the motion to
dismiss and the motion in limine. At the hearing, the district court
clearly stated in response to the State’s offer of exhibits that
the offered exhibits, including 6A and 6B, are admitted for
the limited purpose of the motion in limine. If counsel for
the State wants to use them for any other purpose later in
the proceeding, they will need to be offered again.
At trial on the merits, the State did not offer Exhibits 6A and 6B—
two audio discs of the proceedings before the administrative parole judge.
The State did offer Exhibit 5—a violation report related to the 2013
15
events, Exhibit 7—the criminal complaint, information, amended
information, and documents related to dismissal of the 2013 criminal
charge, and Exhibit 8—the findings of fact and conclusions of law of the
administrative parole judge. At trial, Tripp did not object to the
admission of Exhibits 5 and 8, but continued to object to Exhibit 7 on
“hearsay and Stenzel” grounds. The district court admitted Exhibits 5
and 8 into the trial record and admitted Exhibit 7 subject to the
objections.
We first consider whether Exhibit 7, which includes the criminal
complaint that details the specifics of the allegations in 2013, was
admissible on the question of whether the State showed a recent overt
act. We note that the question of whether Exhibit 7 may be used as
substantive evidence in the proceeding to prove a recent overt act is a
different question from whether the evidence may be used by an expert
in forming an opinion. Hearsay facts and data may, under certain
circumstances, be utilized by an expert in forming an opinion under Iowa
Rule of Evidence 5.703. Further, under appropriate circumstances, such
evidence may be disclosed to the jury to show the basis for the expert’s
opinion. See Carter v. Wiese Corp., 360 N.W.2d 122, 133 (Iowa Ct. App.
1984). In the context of an SVP litigation, determining which
circumstances are appropriate is a delicate question. See, e.g., In re Care
& Treatment of Colt, 211 P.3d 797, 804 (Kan. 2009) (holding expert
testimony based on hearsay evidence inadmissible); In re A.M., 797
N.W.2d 233, 261–62 (Neb. 2011) (holding hearsay may be utilized by
expert under certain circumstances but not disclosed to the factfinder).
But even if the hearsay evidence may be used by an expert to support an
opinion and, under certain circumstances, might even be disclosed to the
factfinder to show the basis of the expert’s opinion, any hearsay evidence
16
that is admitted under rule 5.703 is not admissible for proving the fact of
the matter asserted. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182
(Iowa 2004) (holding hearsay used by expert inadmissible for truth of the
matter asserted); see also People v. Anderson, 495 N.E.2d 485, 489 (Ill.
1986) (emphasizing hearsay used by experts for limited purpose of
explaining the basis of expert’s testimony inadmissible for truth of matter
asserted); People v. Swanson, 780 N.E.2d 342, 350 (Ill. App. Ct. 2002)
(finding expert reports of others relied upon by trial expert admissible to
show basis of trial expert’s opinion, but not substantively admissible);
State v. Wilkes, 908 N.Y.S.2d 495, 497 (App. Div. 2010) (noting it is
settled law that “hearsay testimony given by experts is admissible for the
limited purpose of informing the jury of the basis for the experts[’]
opinion[s]” (alterations in original) (quoting People v. Campbell, 602
N.Y.S.2d 282, 284 (App. Div. 1993))).
As a result, regardless of whether the hearsay in Exhibit 7 could be
considered facts or data that may be used by an expert in forming an
expert opinion, it is not admissible on the question of whether the State
has shown the statutory requirement of a recent overt act. See Iowa
Code § 229A.4(2). The only admissible evidence offered by the State at
trial to prove a recent overt act arising from events in 2013 was the
conclusory report prepared by the department of corrections, Exhibit 5,
and the findings of fact and conclusions of law of the administrative
parole judge, Exhibit 8.
Even though Exhibit 7 was inadmissible to show a recent overt act,
there is a question whether it should nevertheless be considered for
purposes of determining whether the State offered sufficient evidence to
support the overt-act theory. In State v. Dullard, we held that it was an
error for the court of appeals to exclude consideration of an erroneously
17
admitted handwritten note from its sufficiency-of-evidence review. 668
N.W.2d 585, 597 (Iowa 2003). We explained that the admissible evidence
should have been considered on a sufficiency-of-the-evidence review
because, if the evidence had been excluded at trial, the state might have
introduced other evidence or otherwise employed different tactics to
avoid dismissal. Id. We cited Dullard with approval in Stenzel, 827
N.W.2d at 701–02. Other cases follow an approach similar to Dullard.
See McDaniel v. Brown, 558 U.S. 120, 131, 130 S. Ct. 665, 672 (2010);
Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). But see State
v. Maldonado, 121 P.3d 901, 910 & n.13 (Haw. 2005) (holding under
double jeopardy provision of Hawaii Constitution, court on appeal only
considers properly admitted evidence at trial in sufficiency review);
Rushing v. Commonwealth, 726 S.E.2d 333, 339 & n.4 (Va. 2012)
(considering only properly admitted evidence in sufficiency review as a
result of Virginia statute, appellate procedure, and rules of evidence).
Here, however, the procedural posture is materially different than
that in Dullard. Unlike in Dullard, the district court in this case did not
admit the evidence without qualification at trial. Instead, the district
court admitted the evidence subject to Tripp’s objection. At trial, then,
the district court did not rule “it’s in” but instead ruled “maybe it’s in.”
Thus, the State was on notice that it was at risk on the question of
admission of the evidence. The State then elected to rest its case without
offering further evidence. The State could not reasonably rely on the
district court admission of evidence because it was subject to the
objection raised by Tripp.
Further, as noted by a New Jersey court, the rationale for
remanding a substantial evidence case where evidence is stricken on
appeal is that “the State may have additional evidence that it did not
18
produce in reliance upon the strength of the erroneously admitted
evidence.” State v. Baker, 549 A.2d 62, 66 (N.J. Super. Ct. App. Div.
1988). But the State could not have reasonably relied on the strength of
the evidence offered in this case. The State had no reasonable basis to
believe that the complaint in Exhibit 7, which detailed an alleged sexual
offense, would be admissible over Tripp’s hearsay objection on the
question of whether the State proved a recent overt act under Iowa Code
section 229A.4(2). See Iowa R. Evid. 5.801(c); State v. Tompkins, 859
N.W.2d 631, 642 (Iowa 2015) (explaining details of a criminal complaint
are inadmissible to show the truth of the matter asserted); State v.
Doughty, 359 N.W.2d 439, 442 (Iowa 1984) (same). The State may have
had a colorable claim that the evidence could be considered by an expert
in making a determination of dangerousness if it had sufficient indicia or
reliability under Iowa Rule of Evidence 5.703, but even if the evidence
could be relied upon by an expert in forming an opinion it is plainly not
admissible for any other purpose. See State v. Neiderbach, 837 N.W.2d
180, 205 (Iowa 2013) (“[R]ule 5.703 is intended to give experts
appropriate latitude to conduct their work, not to enable parties to
shoehorn otherwise inadmissible evidence into the case.” (quoting
Stenzel, 827 N.W.2d at 705)); Gacke, 684 N.W.2d at 183 (“[E]vidence
admitted under this rule is admitted for the limited purpose of showing
the basis for the expert witnesses’ opinions; it is not admissible as
substantive evidence of the matters asserted therein.”).
In addition, the State did not list the victim or any other person as
a witness of an overt act prior to trial. In fact, the pretrial disclosures
reveal that the State did not have any direct, nonhearsay evidence of an
overt act. This clearly was not a case in which the State declined to offer
additional available evidence as cumulative in reliance on the district
19
court ruling. 1 The State points to no admissible evidence of a recent
overt act disclosed pretrial to the opposing party that it reasonably
decided not to offer in order to avoid offering cumulative evidence.
In short, the State did not rely on the unqualified admission of
evidence by the district court during trial. It offered what it had on the
recent overt act—inadmissible hearsay evidence. The State further
assumed the risk that the evidence posttrial might be found to be
inadmissible, either by the district court, or this court on appeal. It had
no reasonable basis for assuming that the hearsay evidence would be
found admissible to prove an overt act after it rested. As a result,
Dullard does not apply here.
We now turn to analysis of what has been shown by the two
exhibits that were admitted into the record without objection. While the
department of corrections report asserts that charging documents are
attached, there were no such documents attached to the exhibit. The
report simply asserted that a charge of assault with intent to commit
sexual abuse was filed and sought revocation of parole. This document
shows the charge was brought, but nothing more.
The findings of fact and conclusions of law of the administrative
parole judge on the revocation of Tripp’s release under Iowa Code chapter
903B are also threadbare. The administrative parole judge simply
incorporated the findings of fact in the report. But, the report offered
into evidence only presents the fact that Tripp had been charged with a
crime. Nowhere in the two documents is there a discussion of the nature
1Exhibits 6A and 6B—discs recording the proceedings of the administrative
parole hearing—were not offered by the State at trial. These exhibits, however, do not
contain any admissible, nonhearsay evidence showing a recent overt act. While the
deposition of the victim was apparently made part of the record of the parole revocation
proceeding, the deposition is not part of Exhibits 6A and 6B.
20
of the allegations against Tripp, the nature of the evidence of the
violation, or a reasoned evaluation of the evidence. While the State
offered discs containing the evidentiary record presented to the
administrative parole judge in the pretrial hearing, the district court
clearly instructed the State that if the evidence was to be used for any
other purpose than the motion in limine, the State would need to be
offered the exhibits at trial. The State made no such offer on the discs.
The question, then, is whether this limited documentary evidence
of actions taken by state actors, with conclusions but virtually no facts,
provides substantial evidence to allow a reasonable finder of fact to
conclude that Tripp committed a recent overt act beyond a reasonable
doubt as required in SVP proceedings. See Iowa Code § 229A.7(5)(a).
The State certainly proved that the department of corrections had
prepared a report stating a criminal complaint against Tripp had been
filed and seeking revocation of his release under Iowa Code chapter
903B. The State also proved that an administrative parole judge, after a
hearing, determined by a preponderance of the evidence that a violation
of law occurred. But does this bare record, without more, provide a basis
for the district court to make a determination, beyond a reasonable
doubt, that a recent overt act occurred?
We think not. No evidence admitted at trial directly related to a
recent overt act. The district court had no way at trial of making an
independent determination of what the acts were, whether the alleged
acts occurred, whether they were recent, whether they were overt,
whether they were sexual in nature, whether the witnesses were credible,
whether there was a misidentification, or whether the evidence
cumulatively on the question of recent overt act was thick or thin. There
was simply no principled basis for the district court to conclude on the
21
record presented at trial that the State proved beyond a reasonable doubt
that Tripp engaged in a recent overt act. As a result, the recent-overt-act
prong does not provide an alternate basis to uphold Tripp’s SVP
commitment.
IV. Conclusion.
For the above reasons, the judgment of the district court is
reversed and the matter remanded to the district court for dismissal.
REVERSED AND REMANDED.
All justices concur except Mansfield, Waterman, and Zager, JJ.,
who concur in part and dissent in part.
22
#16–2141, In re Det. of Tripp
MANSFIELD, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. The majority
correctly determines that Ronald Tripp was not “presently confined” for a
sexually violent offense at the time the State filed its sexually violent
predator (SVP) petition. However, there is substantial evidence that
Tripp committed a “recent overt act”—namely, the attempted sexual
abuse of a woman in 2013. This was the State’s alternative ground for
SVP commitment of Tripp. The district court failed to make a finding
here only because it didn’t think it had to. Accordingly, I would remand
for a trial on this alternative ground. I find the majority’s refusal to order
a remand very troubling. Among other things, the majority contravenes
an established line of authority holding that in weighing the sufficiency
of evidence, we consider all admitted evidence, including evidence that
may have been admitted erroneously. See, e.g., In re Det. of Stenzel, 827
N.W.2d 690, 701 (Iowa 2013).
To recap, Tripp had been convicted of indecent contact with a child
in July 2010. However, since then he had been released into the
community. The release was not successful. In June 2011, the fifty-
nine-year-old Tripp was charged with a probation violation for offering to
pay young teenage girls $10 each to strip naked and jump from a bridge
into a pond where children swam on a regular basis. Tripp also showed
the girls his underwear and asked for a hug. Tripp’s GPS monitor
indicated he had been at the pond three consecutive days. Tripp
admitted the violation and was incarcerated. Following a subsequent
release, Tripp was charged in May 2013 with assault with intent to
commit sexual abuse after he repeatedly groped a woman who was giving
him a ride. The State decided to dismiss the charge and instead revoke
23
Tripp’s parole. Revocation was granted and Tripp was reincarcerated.
While in prison Tripp failed sex offender treatment (SOTP).
Because Tripp was not criminally convicted on the 2013 charge,
and had intermittent periods of freedom following the 2010 conviction, I
agree the State was obligated to prove a recent overt act in order to
commit him under chapter 229A. See In re Det. of Wygle, ___ N.W.2d ___,
___ (Iowa 2018) (Mansfield, J., dissenting).
The State took steps toward meeting that burden at the SVP trial
by alleging and attempting to prove the 2013 incident was a recent overt
act. See Iowa Code § 229A.2(8) (2016) (defining a recent overt act as
“any act that has either caused harm of a sexually violent nature or
creates a reasonable apprehension of such harm”). With respect to that
incident, the district court stated,
Evidence presented at the parole revocation hearing
disclosed that Tripp fondled an adult female acquaintance
who was traveling with him in his vehicle when he offered to
give her a ride. Tripp touched her breast and thighs, and
tried to touch her vagina despite multiple attempts to block
the assault. His parole was revoked and he was returned to
prison. . . . The state relies on these events as establishing a
recent overt act.
The majority correctly notes that the district court did not actually find
that the 2013 groping was a recent overt act. It didn’t have to, because it
ruled that Tripp was presently confined within the meaning of Iowa Code
section 229A.4(1). But if there is no present confinement under the
statute then it becomes necessary to determine whether a recent overt
act occurred, see Iowa Code § 229A.4(2)(a), and I would remand for that
purpose.
I strongly disagree with the majority’s view that we must reverse
without a remand because the State failed to present substantial
evidence at the SVP trial of an overt act. The State carried its burden
24
with three exhibits. Exhibit 5, the parole violation report from May 2013
that charged an assault with intent to commit sexual abuse, was
admitted into evidence. So was Exhibit 8, the board of parole’s order
determining that all facts in the parole violation report were correct and
revoking Tripp’s parole. Also admitted into evidence was Exhibit 7,
which consisted of the criminal complaint and the trial information that
contained further details on Tripp’s groping of the woman. At the SVP
trial, Exhibit 7 was “admitted subject to the ruling on the motions taken
under advisement.” The court later denied those motions, and so we
must presume Exhibit 7 was admitted. Furthermore, Tripp made no
effort at trial to present an alternate version of the 2013 incident.
Notably, Exhibits 5 and 8—whose admissibility is conceded by the
majority—amounted to substantial evidence of a recent overt act by
themselves. Exhibit 5, the parole violation report, states that Tripp “was
arrested on 5-13-2013 and charged with Assault with Intent to Commit
Sexual Abuse (please see copy of attached complaint).” The complaint is
actually part of Exhibit 7 and describes the victim’s account of the
incident in some detail. Exhibit 8 is the parole revocation order. It
provides, “The facts contained in the Parole Violation Report are correct .
. . .” Those documents collectively are enough to establish a recent overt
act without any hearsay problems.
For all these reasons, substantial evidence would have supported a
finding beyond a reasonable doubt that a recent overt act had occurred.
Unfortunately, the majority has decided to rewrite our law
governing sufficiency of evidence reviews. Until now, that law was clear:
“In conducting our sufficiency review, we must consider all evidence
admitted during trial, including evidence that may have been admitted
erroneously.” Stenzel, 827 N.W.2d at 701; accord State v. Dullard, 668
25
N.W.2d 585, 597 (Iowa 2003); State v. Burgdorf, 861 N.W.2d 273, 278
(Iowa Ct. App. 2014). Thus, even if Exhibit 7 should not have been
admitted, it may be considered as part of the sufficiency review.
The majority now changes this rule. Henceforth, if the trial court
has not ruled on the admissibility of the evidence before the State has
rested its case, and later admits it, the State may not rely on the
evidence for sufficiency review if the appellate court finds it should not
have been admitted. The majority reasons that where the district court
has not admitted the evidence before the State rests, the State is on
notice that it may need more evidence.
I would not water down our previously clear precedent. The
majority’s approach will lead to confusion and complication in bench
trials, where the court typically reserves ruling on evidentiary objections.
The majority cites no precedent from any jurisdiction for applying its
approach in a civil case, such as an SVP proceeding. Notably, double
jeopardy isn’t an issue in SVP proceedings. See In re Det. of Bradford,
712 N.W.2d 144, 151 (Iowa 2006); In re Det. of Garren, 620 N.W.2d 275,
283–84 (Iowa 2000). Thus, the State could have brought successive SVP
actions against Tripp based on the “presently confined” theory and, if
necessary, the “recent overt act” theory.
I agree with the court that SVP laws can raise serious due process
concerns, but the issue of whether Tripp can be retried has nothing to do
with due process. If in fact Tripp recently attempted to rape a woman,
then this fact—coupled with Tripp’s prior sex offenses and his failure to
complete sex offender treatment—may well warrant his continued
confinement under chapter 229A. The fact finder should have an
opportunity to decide the issue. I would not deny this opportunity by
casting about for novel concepts of litigation fault-finding.
26
For all these reasons, I concur in part and dissent in part.
Waterman and Zager, JJ., join this concurrence in part and
dissent in part.