STATE of Iowa, Appellant, v. David R. DeSIMONE, Appellee.
No. 12-2176.
Supreme Court of Iowa.
Nov. 15, 2013.
Modified on Denial of Rehearing Nov. 26, 2013.
MANSFIELD, Justice.
Subsequently, DeSimone filed an applica-tion to be declared a wrongfully impris-oned individual under section 663A.1. The district court granted DeSimone’s applica-tion, finding he had proved by clear and convincing evidence that he had not com-mitted third-degree sexual abuse or any lesser included offense. See Iowa Code § 663A.K2) (a) (2011).
The State now appeals the district court’s ruling. First, it argues DeSimone’s acquittal could not form the basis for a wrongful imprisonment claim because it was not “an order vacating, dismissing, or reversing the conviction and sentence in a case for which no further proceedings can be or will be held against an individual.” Id. 663A.1(2). Second, the State argues the district court should have considered the testimony that had been presented at DeSimone’s two criminal trials in making the wrongful imprisonment determination. Third, the State contends that even with-out the prior testimony, substantial evi- dence 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 dis-trict court erred in not considering the prior criminal case testimony even though the State did not show the witnesses were no longer available; (3) substantial evi-dence supports the district court’s finding of innocence on the existing record, so a remand is necessary for the district court to consider the full record, including the prior testimony. For these reasons, we reverse the district court’s order and re-mand for further proceedings consistent with this opinion.
Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for appel-lee.
This case began with a party that DeSi-mone, then forty-five years old, hosted in October 2004. DeSimone lived in the up-stairs apartment of a house owned 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 er in DeSimone’s bedroom, with Samantha her was missing. She asleep—although clothed—on DeSimone’s bed. Following DeSimone’s conviction, the defendant forced her to engage in sexual intercourse and fellatio. She left defen-dant’s house after midnight, went to a nearby store, and called a friend and the police.
After talking briefly with Samantha, the police took her to the hospital, where she was examined for sexual assault. She told police she had vomited on the defendant’s bed, the bedroom floor, and her hair. She also said the defendant had grabbed her neck and choked her. The hospital examination did not find any evidence of trauma to her neck or genital area. The laboratory examina-tion of the sexual abuse protocol kit returned no evidence of semen.
The police obtained a search warrant and seized bedding from the defendant’s home. The laboratory examination of the items seized from the defendant’s home found evidence of the defendant’s blood and dried semen. The tests did not reveal any blood, vomit, or other biological materials attributable to Sa-mantha on the items seized.
See State v. DeSimone, No. 05-1740, 2007 WL 750649,at *1 (Iowa Ct.App.2007).
Notwithstanding a paucity of physical evidence to support the State’s case, the jury at the first trial in 2005 found DeSi-mone guilty of third-degree sexual abuse. See Iowa Code § 709.4 (2003) (defining sexual abuse in the third degree). Saman-tha testified that DeSimone told her he was not going to ejaculate on her, so as not to leave any physical evidence. In addi-tion, an eyewitness, Joe Baker, testified he had seen DeSimone and Samantha togeth-er in DeSimone’s bedroom, with Samantha asleep—although clothed—on DeSimone’s bed. Following DeSimone’s conviction, the district court sentenced him to a term of incarceration not to exceed fifteen years. The court of appeals affirmed his conviction and sentence in 2007. See De-Simone, 2007 WL 750649, at *3.
At the first trial, a high school senior who later became a friend of Sa-mantha testified. She claimed that on the night of the alleged assault she saw a girl, presumably Samantha, run across the plain street in a direction heading away from DeSimone’s house at the very time Saman-tha 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 exculpatory informa-tion it had received from the witness’s employer violated due process and re-quired a new trial.
The district court and the court of ap-peals rejected DeSimone’s contentions, but in 2011, on further review, we found that a Brady violation had occurred. See DeSi-mone, 803 N.W.2d at 106. We vacated DeSimone’s conviction and sentence, and ordered a new trial. Id.
The second trial took place from March 26 through 29, 2012. Although DeSimone did not take the stand in his original trial, he testified during his second criminal tri-al. At the conclusion of this trial, the jury found him not guilty of all charges.
Following his acquittal, on April 3, DeSi-mone filed an application to be determined a wrongfully imprisoned person under Iowa Code section 663A.1. A hearing took place in district court on November 13. Prior to the hearing, DeSimone had served a series of requests for admissions on the State, attempting to get the State to admit certain facts elicited at the first trial that were favorable to him.2
In response, the State, “subject to any further testimony in the transcript,” admitted the following: (1) the law enforcement officer who responded to Samantha’s 911 call from the grocery store found no evidence of vomit on Sa-mantha or at DeSimone’s home; (2) the officer observed no “visible signs of injury on Samantha” and Samantha did not com-plain to him of any injuries caused by DeSimone; (3) Samantha was intoxicated when the officer questioned her; (4) an investigating officer from the Clinton Po-lice Department found “no evidence of ma-nipulation of physical objects by anyone and ... no evidence of anyone trying to hide evidence” at DeSimone’s home; (5) a Division of Criminal Investigation crimi-nalist 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 menstr-ating 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 Sa-mantha shortly after she made the allega-tion against DeSimone observed no physi-cal injuries of any kind; (8) Samantha did not claim she had been raped during her 911 call from the grocery store; (9) the physician in the emergency room found no evidence of physical injury or sexual as-sault 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.
Prior to the hearing, DeSimone had also requested the State admit certain trial trans-cript facts; the State admitted some “sub-ject to any further testimony in the tran-script.” The district court found the State had failed to show the witnesses were unavail-able; therefore it declined to exclude the prior trial transcripts from evidence. The court applied the statutory standards for wrong-ful imprisonment and concluded DeSimone had satisfied the criteria in section 663A.1(1). The court further found by clear and convincing evidence under section 663A.1(2) that DeSimone had not committed third-degree sexual abuse or any lesser included offense.
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 re-turned he saw Samantha and Joe Baker engaged in sexual activity in the kitchen. DeSimone said he went to bed at that time and did not see or hear anything until around six or seven the following morning when Baker woke him up and requested to use his cell phone. DeSimone testified he did not know where Samantha was at that time and did not know how Samantha left the apartment. He denied ever engaging in sexual activity with her.
The State did not present any new evi-dence at the wrongful imprisonment hear-ing. 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 ex-tent it included the trial transcripts. De-simone argued this prior testimony could be received only if the witnesses were unavail-able, something the State had not demonstrated. See Iowa R. Evid. 5.804(h)(1) (describing the hearsay excep- tion for former testimony when the declar-ant is unavailable).
Third, the court concluded that DeSimone also met the criteria set forth in section 663A.1(2) for wrongful imprisonment be-cause he had shown by clear and convinc-ing evidence that he was factually inno-cent. See id. § 663A.1(2). Relying on the State’s admissions and DeSimone’s in-person testimony, which the district court found credible, the district court concluded that DeSimone had not committed sexual assault or any lesser included crime. See id.
The State now appeals, challenging all three aspects of the district court’s order. We retained the appeal.
We review a district court’s rul-ing on an individual’s application to estab-lish 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 up-held if supported by substantial evidence. Id.
A. Can an Acquittal on Retrial Following the Reversal of a Conviction Form the Basis for a Wrongful Impris-onment Claim?
Under Iowa law, an indi-vidual may seek damages under the Iowa Tort Claims Act if he or she is found by the district court to be a “wrongfully im-prisoned person.” See Iowa Code ch. 663A; McCoy, 742 N.W.2d at 596. To be considered wrongfully imprisoned, the in-dividual must first meet the following cri-teria:
- The individual was charged, by indictment or information, with the com-mission of a public offense classified as an aggravated misdemeanor or felony.
- The individual did not plead guilty to the public offense charged, or to any lesser included offense, but was convict-ed by the court or by a jury of an offense classified as an aggravated mis-demeanor or felony.
- The individual was sentenced to incarceration for a term of imprisonment not to exceed two years if the offense was an aggravated misdemeanor or to an indeterminate term of years under chapter 902 if the offense was a felony, as a result of the conviction.
- The individual’s conviction was va-cated 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 pro-ceedings which had resulted in the con-viction.
- The individual was imprisoned solely on the basis of the conviction that was vacated, dismissed, or reversed and on which no further proceedings can be or will be had.
Iowa Code § 663A.1(1).
If the individual meets the criteria of section 663A.1(1), the court then makes the second determination: whether it can be shown by clear and convincing evidence that the individual did not commit the offense or a lesser included offense, or that the offense in question was not committed at all. Id. § 663A.1(2); see McCoy, 742 N.W.2d at 597 (“The second essential find-ing is the claimant did not commit the offense or the offense was not committed by any person.”); State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006) (“If [the cri-teria 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 663A.1(1) and section 663A.1(2) to be deemed wrongfully imprisoned and to pro-ceed with a claim under the Iowa Tort Claims Act. See McCoy, 742 N.W.2d at 597 (“The two separate findings reveal that the right to sue the state under the State Tort Claims Act as a ‘wrongfully imprisoned person’ not only requires the person qual-ify as a ‘wrongfully imprisoned person,’ but also requires the person be a ‘wrongfully imprisoned person’ who did not commit the offense or whose offense of conviction was not committed by any person.”); Dohl-man, 725 N.W.2d at 431 (“If the criteria of both section 663A.1(1) and section 663A.1(2) are met, the individual qualifies as a wrongfully imprisoned person.”).
The State’s initial argument on appeal is that a wrongful imprisonment claim cannot be brought following a not-guilty jury ver-dict. The State focuses on the beginning of section 663A.1(2), which provides:
Upon receipt of an order vacating, dis-missing, 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 dis-trict court shall make a determination whether there is clear and convincing evidence to establish either of the follow-ing findings....
Iowa Code § 663A.1(2). Based on this language, the State argues the order va-cating the conviction must also result in the termination of the proceedings. Accord-ing to the State, if a retrial later takes place, then the order vacating the convic-tion did not occur “in a case for which no further proceedings can be or will be held.” Id.
We disagree with the State. To begin with, statutes must be read in their entirety. Hardin County Drainage Dist. 55, Div. §, Lateral 10 v. Union Pacific R.R., 826 N.W.2d 507, 512 (Iowa 2013) (stating that the court “examine[s] statuto-ry language holistically”); Mall Real Es-tate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (“[W]e do not place undue importance on any single or isolated portion, but instead consider all parts of an enactment together.”); State v. Adams, 810 N.W.2d 365, 369 (Iowa 2012) (“[W]e must construe the statute in its entirety.”). We determine whether a stat-ute is ambiguous or unambiguous by read-ing the statute as a whole. See Mall Real Estate, 818 N.W.2d at 198 (“Ambiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes.” (Citation omitted.)); State v. Hutton, 796 N.W.2d 898, 904 (Iowa 2011) (“Ambiguity may arise either from the meaning of particular words or from the general scope and meaning of a statute when all its provi-sions are examined.” (Citation and inter-nal quotation marks omitted.)).
In this case, the operative language ac-tually appears earlier. Section 663A.1(1)(d)requires that “[t]he individ-ual’s conviction was vacated or dismissed, or was reversed, and no further proceedings was reversed, and no further proceedings can or will be had.” Iowa Code § 663A.1(1).
If the individual meets the criteria of section 663A.1(1), the court then makes the second determination: whether it can be shown by clear and convincing evidence that the individual did not commit the offense or a lesser included offense, or that the offense in question was not committed at all. Id. § 663A.1(2). Based on this language, the State argues the order va-cating the conviction must also result in the termination of the proceedings. Accord-ing to the State, if a retrial later takes place, then the order vacating the convic-tion did not occur “in a case for which no further proceedings can be or will be held.” Id.
We disagree with the State. To begin with, statutes must be read in their entirety. Hardin County Drainage Dist. 55, Div. §, Lateral 10 v. Union Pacific R.R., 826 N.W.2d 507, 512 (Iowa 2013) (stating that the court “examine[s] statuto-ry language holistically”); Mall Real Es-tate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (“[W]e do not place undue importance on any single or isolated portion, but instead consider all parts of an enactment together.”); State v. Adams, 810 N.W.2d 365, 369 (Iowa 2012) (“[W]e must construe the statute in its entirety.”). We determine whether a stat-ute is ambiguous or unambiguous by read-ing the statute as a whole. See Mall Real Estate, 818 N.W.2d at 198 (“Ambiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes.” (Citation omitted.)); State v. Hutton, 796 N.W.2d 898, 904 (Iowa 2011) (“Ambiguity may arise either from the meaning of particular words or from the general scope and meaning of a statute when all its provi-sions are examined.” (Citation and inter-nal quotation marks omitted.)).
The State’s construction would lead to an odd result. The defendant’s potential status as a wrongfully imprisoned person would depend entirely on whether the State elected to retry the defendant follow-ing the reversal of his or her original conviction—unless insufficient evidence were the basis for the reversal. It is not logical that the individual’s eligibility for relief under section 663A.1 should turn on a decision completely in the State’s control. Indeed, if the State’s interpretation of sec-tion 663A.1 were correct, the State might have an incentive to retry even weak cases (and to put alleged victims like Samantha through an additional trial) just to avoid the possibility of wrongful imprisonment liability.
Moreover, we have previously noted that our wrongful imprisonment statute is “a response to the mounting evidence of inno-cent persons who have been wrongfully convicted and imprisoned in this country.” McCoy, 742 N.W.2d at 596. It is difficult to see how a person’s imprisonment be-comes any less wrongful—assuming the individual can prove actual innocence by clear and convincing evidence—just be-cause the State attempted unsuccessfully to retry him or her instead of dropping the charges. In other words, the State’s inter-pretation of section 663A.1 in no way ad-vances the underlying purposes of the stat-ute.
We also believe the legislative history is relevant. Originally, as passed by our House of Representatives, the legislation would have required the court vacating the conviction to have made one of two find-ings as part of its order: either “[t]hat the offense for which the individual was con-victed and sentenced, including any lesser-included offenses, was not committed by the individual,” or “[t]hat the offense for which the individual was convicted and sentenced was not committed by any per-son, including the individual.” See H.F. 674, 77th G.A., Reg. Sess. (Iowa 1997) (passed March 31, 1997). The House Judi-ciary 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 of-fense was a fabrication.” See id. Expla-nation; see also Dohlman, 725 N.W.2d at 432 (quoting this language). Clearly, this wording would have precluded the wrong-ful imprisonment cause of action from be-ing pursued in a case such as McCoy— where the conviction was reversed because a confession was improperly admitted—or here—where the conviction was reversed because of a Brady violation.
The House version of the bill, however, was amended in the Senate to reflect its current form. See S. Amendment 3570, 77th G.A., Reg. Sess. (Iowa 1997). The amendment eliminated the requirement that the court vacating the conviction had to find actual innocence. Id. Instead, it provided that if the individual passed the initial hurdle in section 663A.1(1),the district court would then need to make a subsequent determination of innocence by clear and convincing evidence. Id. The House later approved the amended ver-sion, and the Governor signed it. See H. Amendment 1913, 77th G.A., Reg. Sess. (Iowa 1997); 1997 Iowa Acts ch. 196, § 1 (codified at Iowa Code § 663A.1 (Supp. 1997)). Thus, the amended, final form of the law allows for the conviction to have been vacated on the basis of something other than actual innocence, such as the grounds in McCoy and the present case.
Turning to section 663A.1(2), it appears in context to be simply an attempt to paraphrase section 663A.1(1)(d) and state what the district court must have in hand before it makes the second determination as to whether the individual is actually innocent. Thus, the district court must have received “an order vacating, dismiss-ing, 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 or-der, just that the order was “in a case” where there can be or will be no further proceedings.
Given an ambiguous statute, we now revert to additional principles of stat-utory interpretation, namely that statutes are to be read so they make sense and achieve the legislature’s purposes. See State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010) (“We strive for a reasonable interpretation that best achieves the stat-ute’s purpose and avoids absurd results.” (Citation and internal quotation marks omitted.)).
Moreover, we have previously noted that our wrongful imprisonment statute is “a response to the mounting evidence of inno-cent persons who have been wrongfully convicted and imprisoned in this country.” McCoy, 742 N.W.2d at 596. It is difficult to see how a person’s imprisonment be-comes any less wrongful—assuming the individual can prove actual innocence by clear and convincing evidence—just be-cause the State attempted unsuccessfully to retry him or her instead of dropping the charges. In other words, the State’s inter-pretation of section 663A.1 in no way ad-vances the underlying purposes of the stat-ute.
We also believe the legislative history is relevant. Originally, as passed by our House of Representatives, the legislation would have required the court vacating the conviction to have made one of two find-ings as part of its order: either “[t]hat the offense for which the individual was con-victed and sentenced, including any lesser-included offenses, was not committed by the individual,” or “[t]hat the offense for which the individual was convicted and sentenced was not committed by any per-son, including the individual.” See H.F. 674, 77th G.A., Reg. Sess. (Iowa 1997) (passed March 31, 1997). The House Judi-ciary 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 of-fense was a fabrication.” See id. Explanation; see also Dohlman, 725 N.W.2d at 432 (quoting this language). Clearly, this wording would have precluded the wrong-ful imprisonment cause of action from be-ing pursued in a case such as McCoy— where the conviction was reversed because a confession was improperly admitted—or here—where the conviction was reversed because of a Brady violation.
Of course, under the original House ver-sion, as soon as the conviction had been vacated on the basis of the defendant’s innocence, it would be clear no further proceedings could go forward against that defendant. Thus, it is not surprising that the statute, reflecting its origins, reads somewhat as if it contemplates no subse-quent events in the criminal case after the “order vacating, dismissing, or reversing the conviction and sentence.” See Iowa Code § 663A.1(2) (2011). But once the Senate eliminated the requirement that the conviction had to have been vacated on the basis of innocence, it is logical to read the statute allowing for developments in the criminal case after the conviction was reversed. Unless the criminal conviction was reversed on the basis of insufficient evidence, the case will almost always con-tinue, at least temporarily. See McCoy, 742 N.W.2d at 595 (noting that proceed-ings continued after the defendant’s con-viction was vacated due to an improperly admitted confession until the county attor-ney later decided not to bring the defen-dant to trial again). In short, we believe section 663A.1(2),read with section 663A.1(1) (d), is ambiguous and allows for the possibility that some proceedings —e.g., an unsuccess-ful retrial —can occur between the order vacating the original conviction and the ultimate determination that no further proceedings can or will be held. Under that construction, the use of “in” communi-cates that the order to vacate, dismiss, or reverse the conviction must be within the same case in which no proceedings can or will be held; it does not indicate those related elements must come into existence simultaneously or in direct sequence. Both events simply have to have occurred.
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 im-prisonment determination. The district court reasoned the State had failed to show the witnesses were unavailable, an essential requirement of the former testi-mony exception to the hearsay rule. See Iowa R. Evid. 5.804(b)(1). Therefore, it excluded this evidence.5
The district court’s approach was not unreasonable. See id. 5.1101(a) (stating that the rules of evidence “apply in all proceedings in the courts of this state, ... except as otherwise provided by rules of the Iowa Supreme Court”). However, there are situations where the legislature has carved out exceptions to the rules of evidence. See, e.g., Iowa Code § 232.96(4)-(6) (child in need of assistance cases); id. § 252K.316 (interstate child support en-forcement proceedings); id. § 631.11 (small claims); id. § 812.5 (competency hearings); id. § 822.7 (stating the court “may receive proof of affidavits, deposi-tions, 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 applica-tion). We need to ask, therefore, what the legislature directed when it enacted chap-ter 663A.
Section 663A.1(2) instructs the district court to “make a determination” once it receives “an order vacating, dismissing, or reversing the conviction and sentence in a case for which no further proceedings can be or will be held against an individual.” Iowa Code § 663A.1(2). Two things about this language should be noted. First, that there is no mention of a hearing. Instead, the court is simply told to make a “deter-mination.” Second, the court is apparently authorized to make this determination sua sponte, without a party asking for it. As soon as the triggering events have oc-curred, “the district court shall make a determination.” Id. But if the court can make the determination on its own, it can do so on the basis of the existing record, including prior testimony. In short, the directive to the district court to make a determination with or without a request is inconsistent with DeSimone’s notion that the district court may not rely upon the existing record in making that determination.
Also bolstering the State’s view are the belt-and-suspenders provisions regarding notice in the statute. If the district court finds the person was wrongfully impris-oned, it is not only required to enter an order, it is also required to “[o]rally inform the person and the person’s attorney that the person has a right to commence a civil action against the state under chapter 669 on the basis of wrongful imprisonment.” See id. § 663A.1(3)(b). Additionally, the clerk is required to forward a copy of the order to the wrongfully imprisoned person, “together with a copy of this section.” Id. § 663A.1(4). At the same time, there is no requirement to issue an order if the person is not found to be wrongfully imprisoned.
All this strongly suggests that the wrong-ful imprisonment determination can poten-tially occur without the affected individual even being aware the district court was acting. Thus, sections 663A.1(2), 663A.1(3), and 663A.1(4) point toward the conclusion that the legislature expected district courts would be able to make wrongful imprisonment determinations on the existing record, without taking new evidence.
DeSimone points out that the 663A.1 section heading reads, “Wrongful impris-onment—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 sec-tion 663A.1(2) describes a preliminary de-termination that enables the individual to then proceed with a full-blown “civil ac-tion” and “claim” as discussed in sections 663A.1(3)(b) and 663A.1(5) through 663A.1(8). In short, the statute taken as a whole certainly authorizes a “cause of ac-tion,” but that does not mean the section 663A.1(2) preliminary determination must be subject to the same procedural require-ments that attend a typical civil action.
In fact, we have previously stated that the section 663A.1(2)determination is only “a predicate review and assessment of the claim” that decides if “[a] person is enti-tled to commence a civil action.” McCoy, 742 N.W.2d at 596 (citing Dohlman, 725 N.W.2d at 430-31). “This additional pro- cedure permits the district court to serve as a gatekeeper of such claims to insure only meritorious claims for damages will be filed with the State Appeals Board.” Id.
In addition, we think it would be imprac-tical and undesirable for a completely new trial to be mandated whenever an individ-ual whose conviction and prison sentence have been vacated seeks a wrongful im-prisonment determination. Witnesses would have to be brought back to testify again, in some cases for the third time. While the State is the appellant in this case, such a requirement could disadvan-tage the recently-freed prisoner by in-creasing the time and cost involved in such a proceeding. In this case, DeSimone—to his attorney’s credit—avoided that burden by serving the State with requests for admissions asking it to admit helpful facts from the first trial. However, in the fu-ture the State would likely employ the same tactic. Thus, the district court would be faced with dueling stacks of admissions concerning the prior proceedings. Why not let the court review the real thing?
Also, a review of other jurisdictions with wrongful imprisonment statutes indicates that the prevailing approach allows the previous criminal trial testimony to be considered. Several jurisdictions have ex-pressly said so in their wrongful imprisonment statutes.6
We have found only one reported statutory wrongful imprisonment case where testimony given in the prior criminal proceedings was excluded based upon a hearsay objection. See Morales v. State, 183 Misc.2d 839, 705 N.Y.S.2d 176, 179 (Ct.Cl.2000). In Morales, the court applied hearsay principles to ex-clude expert testimony from the underlying criminal trial in an action brought under the Unjust Conviction and Imprisonment Act. Id.
The evidentiary ground rules for wrong-ful imprisonment proceedings were recent-ly addressed in an Oklahoma Supreme Court decision. See Courtney v. State, 307 P.3d 337 (Okla.2013). Oklahoma’s wrong-ful imprisonment statute has a similar framework to Iowa’s. To obtain relief, unless there has been a full pardon on the basis of a written finding by the governor that the individual was actually innocent, the individual must show “by clear and convincing evidence that the offense for which the individual was convicted, sen-tenced and imprisoned, including any less-er included offenses, was not committed by the individual.” Okla. Stat. Ann. tit. 51, § 154(B)(2)(e)(2) (West 2008).
In Courtney, the applicant sought the required judicial determination of inno-cence following a postconviction hearing that had resulted in a vacated sentence. See 307 P.3d at 340. The Oklahoma Su-preme 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 evi-dence adduced at the post-conviction relief proceeding as well as other evidence.” Id. at 340-41.
Along the lines of Courtney, we believe the prior evidence should be considered, but the parties should be able to present additional relevant and material evidence as part of the actual innocence determina-tion, 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 Unit-ed States Constitution provides, ‘No per-son ... shall be compelled in any criminal case to be a witness against himself ....’” (quoting U.S. Const, amend. V)); State v. Walls, 761 N.W.2d 683, 685 (Iowa 2009) (discussing that the Fourteenth Amend-ment Due Process Clause makes the Fifth Amendment right against self-incrimina-tion binding on the states). In fact, the defendant has no obligation to present evi-dence 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, 208 N.W.2d 216, 220 (Iowa 1972) (not-ing a defendant has the right to offer no evidence and can simply submit the State’s case to the jury to determine whether the prosecution has carried its burden). Lim-iting the actual innocence determination to the prior criminal trial record would be inconsistent with those rights. At the same time, fairness dictates that the State should have a similar opportunity to pres-ent other admissible evidence bearing upon the actual innocence question.
C. Was There Substantial Evidence to Support the District Court’s Finding of Actual Innocence?
We last turn to the State’s claim that there was no substantial evidence to support the district court’s finding under section 663A.1(2)that DeSi-mone had not committed sexual abuse or a lesser included offense. Although our res-olution of the previous issue would ordi-narily require a remand for the court to re-consider its section 663A.1(2) determination in light of the prior trial transcripts, such a remand would be unnecessary if the existing finding were not supported by substantial evidence. In that case, we would simply reverse with instructions to deny DeSimone’s application.
Under section 663A.1(2), inno-cence can be shown by clear and convinc-ing proof that the individual did not com-mit the acts or that the acts in question did not constitute a crime. McCoy, 742 N.W.2d at 598. 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 con-viction.” Id. at 600 n. 7.
As we have noted above, at the wrongful imprisonment hearing, DeSimone introduced the State’s responses to re-quests for admissions that confirmed the lack of physical evidence in the case. De-Simone also testified in person, and the court specifically found him credible.
There are some inconsistencies between DeSimone’s November 2012 hearing testi-mony and the recorded statement that De-Simone gave to police in November 2004, shortly after the events in question.9
For example, in his original statement, DeSi-mone said that he was pretty drunk on the evening of the party but denied that Sa-mantha had anything to drink at the party. He also said he remembered seeing Sa-mantha sleeping with her head down at his kitchen table, but did not mention that he saw her engaged in sexual activity with Baker in the kitchen. Still, we believe there is substantial evidence, on the record that was before the district court, to sup-port its finding of actual innocence. See Mitchell v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013) (“Sub-stantial evidence is evidence that a reason-able person would find sufficient to reach a given conclusion.”). Therefore, a remand is needed for the district court to reconsid-er its section 663A.1(2) determination in light of a more complete record, i.e., one that includes the testimony from the prior criminal trials.
IV. Conclusion.
For the foregoing reasons, we uphold the district court’s conclusion that DeSi-mone met the eligibility criteria set forth in section 663A.1(1), but we reverse its ruling that the prior criminal trial testimo-ny could not be considered in making the section 663A.1(2) determination. We re-mand for further proceedings.
REVERSED AND REMANDED.
MANSFIELD
Justice