In RE the Detention of Jonathan Edwin Stenzel Jonathan Edwin Stenzel

IN THE SUPREME COURT OF IOWA
No. 11–0687

Filed March 1, 2013

IN RE THE DETENTION OF
JONATHAN EDWIN STENZEL

JONATHAN EDWIN STENZEL,

Appellant.

Appeal from the Iowa District Court for Linn County, Douglas S.

Russell (motion to dismiss), Robert E. Sosalla (summary judgment), and

Ian K. Thornhill (trial and order of commitment), Judges.

An individual committed as a sexually violent predator appeals the

order of commitment. DISTRICT COURT JUDGMENT AFFIRMED IN

PART AND REVERSED IN PART; CASE REMANDED FOR NEW TRIAL.

Dean A. Stowers (until withdrawal), and then Nicholas A. Sarcone

of Stowers Law Firm, West Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines and

John B. McCormally, Assistant Attorneys General, for appellee.
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MANSFIELD, Justice.

This sexually violent predator (SVP) civil commitment proceeding

presents three distinct issues. First, it requires us to determine whether

the State may wait until the conclusion of a person’s overall prison term

to bring an SVP proceeding, when the person has received consecutive

sentences for a sexually violent offense and for another offense, with the

sentence for the other offense to be served after the sentence for the

sexually violent offense. Second, we must decide whether sufficient

evidence supports the jury’s finding that the respondent here is an SVP.
Finally, we must decide whether it was reversible error for the district

court to permit the State’s expert to testify at trial as to how the State

uses its prosecutorial discretion to select the persons against whom it

will commence SVP proceedings.

We conclude that a person serving consecutive sentences, one of

which is for a sexually violent offense, is “presently confined” within the

meaning of our civil commitment statute. See Iowa Code § 229A.4(1)

(2009). Thus, an SVP petition is timely if it is filed before the

respondent’s anticipated release from prison, so long as the current term

of imprisonment includes a sentence for a sexually violent offense. Id.

In addition, we find sufficient evidence to support the jury’s verdict that

the respondent here was an SVP. Yet, we hold that it was error to admit

expert testimony on the State’s procedure for selecting persons against

whom SVP proceedings are filed. For this reason, we reverse the

judgment of the district court and remand for a new trial.

I. Facts and Procedural Background.

Jonathan Stenzel has been incarcerated virtually his entire adult
life. In 1981, when he was nineteen years old, he committed a burglary.

He pled guilty and was sent to prison in 1982. The burglary, by Stenzel’s
 3

admission, arose out of an incident where he beat up a thirteen-year-old

girl and ripped her blouse. Stenzel acknowledges that while in prison, he

began having fantasies of rape.

In 1986, Stenzel was released from prison. Within a few months,

Stenzel had entered a bookstore, pulled a knife on an elderly employee,

and threatened to kill her if she didn’t do what he asked. He then

attempted to have intercourse with the employee and eventually forced

her to perform oral sex on him. He left the store with her bra and said

he would be coming back.
Before Stenzel had been apprehended for that crime, he broke into

a house ten days later and set it on fire.

Ultimately, Stenzel was caught and charged with both crimes. He

pled guilty to second-degree sexual abuse in connection with the

bookstore rape, and first-degree burglary and second-degree arson in

connection with the home burglary/arson.

On March 24, 1987, the district court imposed sentences of

twenty-five years for the sexual abuse, twenty-five years for the burglary,

and ten years for the arson. The burglary and arson sentences were to

be served concurrently to each other and consecutive with the sexual

abuse sentence. The department of corrections designated the sexual

abuse offense as the “lead” offense. Using the longer of the two

concurrent sentences, it calculated a tentative release date for Stenzel of

May 1, 2010.

Stenzel served approximately the first ten years of his prison term

at the state prison in Anamosa and did not receive any sex offender

treatment there. In 1997, he was transferred to Mount Pleasant, where
he participated in a Sex Offender Treatment Program. The program

lasted approximately two years and involved a number of assignments
 4

and activities. Stenzel generally received good marks for his behavior at

Mount Pleasant. He worked at the prison library and participated in

one-on-one sessions with female counselors without any significant

disciplinary problems.1

While at Mount Pleasant, Stenzel claims he received in 1998 or

1999 a document from prison officials indicating that he had completed

his sexual abuse sentence. The record does not contain such a

document.

Following his time at Mount Pleasant, Stenzel was transferred to a
voluntary program, the Interchange Freedom Initiative, housed at the

Newton Correctional Facility. There, he participated in a Christian

rehabilitation program and lived in an “honors dorm,” where he could

come and go freely and his room had an ordinary door instead of bars.

As Stenzel’s release date was approaching, the State began the

process for Stenzel’s civil commitment. On April 6, 2010, the State filed

a petition alleging Stenzel was a sexually violent predator under Iowa

Code chapter 229A, Iowa’s civil commitment statute. The State

accompanied its petition with a “Statement of Probable Cause” detailing

Stenzel’s criminal history. The probable cause statement asserted that

the 1986 sexual assault and the 1981 burglary were sexually motivated

offenses. It also included the assessment of a forensic psychologist, Dr.

Barry Leavitt, that Stenzel met the criteria for being classified a sexually

violent predator. That day, the district court made a preliminary

determination that probable cause existed to believe Stenzel was a

sexually violent predator.

1Stenzel did acknowledge that he was disciplined for “borrowing” cassette tapes
from a fellow inmate.
 5

Stenzel filed a motion to dismiss on September 16. He argued that

the State had not met its burden of showing either (1) that Stenzel had

committed some “recent overt act” of sexual violence or (2) that he was

presently confined. See Iowa Code § 229A.4(1)–(2). Specifically, Stenzel

argued that, according to the department of corrections calculations, he

had long ago completed his sentence for second-degree sexual abuse.

Therefore, based on our decision in In re Detention of Gonzales, 658

N.W.2d 102 (Iowa 2003), Stenzel maintained he was no longer “confined.”

See Gonzales, 658 N.W.2d at 104 (stating that the “confinement”
referenced in the statute “means confinement for a sexually violent

offense”).

On November 17, 2010, the district court denied Stenzel’s motion

to dismiss, reasoning that because of the consecutive nature of the

sentences, “the defendant was still serving a sentence for a sexually

violent offense” when the State filed its SVP petition. Stenzel then filed a

motion to enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2)

which was also denied.

On January 18, 2011, Stenzel filed a motion for summary

judgment. This was denied on the basis that Iowa Code section 901.8

controlled Stenzel’s case and required that the court construe the

consecutive sentences as “one continuous term of imprisonment.” See

Iowa Code § 901.8.

The matter proceeded to a jury trial where the State offered

testimony from Stenzel and Dr. Leavitt. Stenzel had argued in his trial

brief that Dr. Leavitt should not be permitted to testify as to (1) hearsay

information relating to Stenzel’s 1981 and 1986 offenses and (2) the
process by which Stenzel was referred for SVP proceedings. On the

stand, Dr. Leavitt offered his opinion that Stenzel suffered from
 6

paraphilia, not otherwise specified (non-consent), as well as an antisocial

personality disorder, and that Stenzel met the statutory criteria for a

sexually violent predator. See Iowa Code § 229A.2(11) (“ ‘Sexually violent

predator’ means a person who has been convicted of or charged with a

sexually violent offense and who suffers from a mental abnormality

which makes the person likely to engage in predatory acts constituting

sexually violent offenses, if not confined in a secure facility.”). Dr. Leavitt

testified he had interviewed Stenzel for approximately four-and-a-half

hours and concluded that he had engaged in “minimization,” or the
downplaying of important elements of his behavior and crimes.

Dr. Leavitt also testified that he had performed three actuarial risk

assessments concerning Stenzel. These procedures are designed to

determine the risk of reoffending based on the historical recidivism

percentages of offenders with certain scores. Stenzel placed in the high

risk category on one of the assessments, in the moderate risk category on

the second, and in the highest risk category on a third. Dr. Leavitt

testified that these assessments actually underestimate the risk of future

sexually violent crime, given that they only reflect reported incidents.

Two other aspects of Dr. Leavitt’s testimony form part of the basis

of this appeal. Dr. Leavitt based his conclusion that Stenzel was an SVP,

in part, upon the rigorous selection process by which the State

determines who should be committed in the first place.

Q. Doctor Leavitt, the Directors’ Review Committee
begins at the prison with all sex offenders? A. That is
correct.

Q. They decide a case meets criteria, they refer it to
where? A. They refer it to the Multidisciplinary Review
Committee.
 7
Q. And who makes up that committee? A. That
would be made up of various people within—both within and
outside of the Department of Corrections.

Q. Do they refer every case they get? A. No. It was
my understanding that they review a very small percentage,
a very small percentage of cases get referred for—to the next
step.

That such a small percentage of people emerge from the screening

process was a consideration in Dr. Leavitt’s overall determination. He

noted that “one of the considerations I look at is the fact that an

individual has already . . . been deemed relatively high risk enough to

have made it to this particular point in the process.” Dr. Leavitt also

briefly alluded to the fact that a court already has made an initial

probable cause determination that Stenzel is a sexually violent predator.

Q. And then from there, a smaller number are referred
to the Attorney General’s Office? A. That would be correct.

Q. What happens next? A. At that point in time,
there is—if the Court has found probable cause on a case—

The State later highlighted the selectivity of the process in its

closing argument:

I want to start by just explaining a little bit about how we got
here. We heard a little bit about this, but these are unusual
cases. They don’t come up all of the time. And there’s a
screening process that goes into this and it’s pretty sensitive
and not many people meet the criteria as a sexually violent
predator.

The way it begins is that the Department of
Corrections—they review every sex offender in the place.
That goes through a process called the Directors’ Review
Committee and they look at the files of all the sex offenders
and they decide if these people meet criteria or not.

Some of them—a small number get referred up to the
next level, which is called the Multidisciplinary Team which
is a group of . . . doctors, but also some social workers and
some people with some other types of experiences. If they
decide that a person meets criteria, then it gets referred to
 8
an expert and in this case, we brought in Doctor Barry
Leavitt.

....

If Doctor Leavitt finds somebody meets criteria, that
goes to another committee; the Prosecutors’ Review
Committee. Again, another screening process. And if that
committee agrees, then somebody is recommended for SVP
and then at that point, Doctor Leavitt goes out and does
another evaluation—or whoever the expert is. In this case—
in this case, it’s Doctor Leavitt.

They do another evaluation. Sometimes they change
their mind on that. In this case, at every step of the way,
Mr. Stenzel has been considered to meet criteria for SVP, but
what’s really—what’s important is what do you think? It’s
up to you.

Stenzel objected to testimony describing the selection process. He

insisted that Dr. Leavitt’s testimony regarding the selection process

amounted to hearsay and was not a reasonable basis for Dr. Leavitt’s

opinion under Iowa Rule of Evidence 5.703. Stenzel further objected that

it violated Iowa Rule of Evidence 5.403 and his own due process rights

because “what [Dr. Leavitt]’s really doing is just saying because we’re

here, [Stenzel]’s high risk.” The district court overruled the objections,

but gave the jury a limiting instruction at that time:

These statements are not to be considered by you as
proof of what is actually contained in the statements or for
the truth of the matter asserted in there. The statements
can only be considered by you in evaluating Doctor Leavitt’s
testimony, his opinions that he’s giving as part of his
testimony.2

2The jury was further instructed at the close of evidence as follows:
Throughout the testimony of the Petitioner’s expert, Dr. Leavitt,
he referred to sources he consulted in forming his opinion. These
included various things including documents, reports and statements
that persons other than Respondent had made. These documents,
reports and statements were made out of court and not under oath.
Those matters, as I am sure you know, are hearsay. The only reason
they were received and allowed in the expert’s testimony is because I
have found that those are the type of subjects that may be relied upon by
 9

In addition to offering testimony as to how individuals are selected

for the SVP process, Dr. Leavitt testified that the 1981 burglary and the

1986 burglary/arson—not just the 1986 bookstore sexual abuse—were

sexually motivated. Dr. Leavitt explained that the 1981 burglary

included an element of sexual violence. He noted that charges were

originally filed, then dropped, for assault with intent to commit sexual

abuse. He pointed out that Stenzel attempted to bite the thirteen-year-

old’s breast once inside the house. Dr. Leavitt also testified that Stenzel

admitted later that there may have been a sexual component to the 1981
incident. In his trial testimony, though, Stenzel said he could not recall

biting the girl’s breast or whether other charges had been filed.

Over Stenzel’s objection, Dr. Leavitt also used the minutes of

testimony to amplify on Stenzel’s 1986 burglary and arson convictions.

He informed the jury that Stenzel took women’s clothing with him when

he left the house. He noted that Stenzel had also inserted a steak knife

into a picture of one of the little girls in the family. In addition, according

to the minutes, Stenzel had left a meat cleaver and another knife on a

waterbed. All this, according to Dr. Leavitt “had elements of sexual

deviance to it.”

Moreover, Dr. Leavitt added details about the sexual assault in the

bookstore. He noted that Stenzel had been reading a book titled Rape in

the store before he attacked the elderly woman with a knife as she was

trying to close up for the day.

____________________________
an expert in forming opinions of the kind that he testified to you about.
Those matters are to be used by you, not as proof of what is contained in
them. Those matters may be used by you only in evaluating Dr. Leavitt’s
testimony and the opinions that he gave and in determining whether or
not those opinions have validity.
 10

Stenzel called several witnesses in his defense. One was a former

acquaintance of Stenzel in prison. This individual had been released and

owned a business in Colorado. He testified that he wanted to hire

Stenzel to work for him. Another witness was the former librarian at the

Newton Correctional Facility. She testified that Stenzel worked for her “a

very long time,” did what he was asked to do, was “very respectful,” and

was “not ever aggressive.” She also testified that students from Grinnell

(primarily female) would come in to teach the inmates and she “did not

ever see Jon interact inappropriately with any person.”
A female correctional officer at Newton testified that she interacted

with Stenzel for about ten or eleven years and never observed him to be a

violent person. He was “very helpful,” “[a]lways willing to do anything

that anyone asked,” and “peaceful, mellow, got along with the other

offenders.” He was someone that she enjoyed talking to, and he never

acted in a way toward anyone that would be considered sexually

inappropriate.

At the close of the evidence, the jury returned a verdict finding that

Stenzel was a sexually violent predator. Stenzel now appeals.

On appeal, Stenzel argues: (1) the district court erred in denying

his motions to dismiss and for summary judgment, because the State

brought this SVP proceeding too late—i.e., years after Stenzel had

completed his sentence for second-degree sexual abuse; (2) the jury’s

finding that Stenzel was a sexually violent predator was not supported by

substantial evidence; and (3) the district court erred in admitting Dr.

Leavitt’s testimony describing the civil commitment selection process and

the background to Stenzel’s crimes that came from the minutes of
testimony or from sources other than the convictions themselves and

Stenzel’s own admissions.
 11

II. Standard of Review.

We review the district court’s ruling on a motion to dismiss for

errors at law. Geisler v. City Council of Cedar Falls, 769 N.W.2d 162, 165

(Iowa 2009). Likewise, rulings on summary judgment motions are

reviewed for errors at law. Keokuk Junction Ry. v. IES Indus., Inc., 618

N.W.2d 352, 355 (Iowa 2000); see also Iowa R. App. P. 6.907.

Although we generally review the district court’s admission of

hearsay evidence for errors at law, “when the basis for admission of

hearsay evidence is the expert opinion rule, which provides no hard and
fast rule regarding admissibility, we will employ an abuse of discretion

standard.” Kurth v. Iowa Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001).

Under this standard, we reverse only if the district court exercised its

discretion on clearly untenable or unreasonable grounds. Ranes v.

Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). “A ground or

reason is untenable when it is not supported by substantial evidence or

when it is based on an erroneous application of the law.” Id. (quoting

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)).

III. Legal Analysis.

A. Was the Proceeding Timely Commenced? Section 229A.4 of

the Iowa Code governs the State’s petition for civil commitment. Section

229A.4 “plots two separate courses for the civil commitment of a sexually

violent predator.” In re Det. of Shaffer, 769 N.W.2d 169, 173 (Iowa 2009).

In the first course, the State may only seek civil commitment of a person

who has committed a recent overt act. Iowa Code § 229A.4(2).

Commitment of a nonconfined person absent a “recent overt act” showing

would “raise serious constitutional issues.” Gonzales, 658 N.W.2d at
105.
 12

The second course is the subject of this appeal. Section 229A.4(1)

applies to persons who are presently confined:

If it appears that a person presently confined may be a
sexually violent predator and the prosecutor’s review
committee has determined that the person meets the
definition of a sexually violent predator, the attorney general
may file a petition alleging that the person is a sexually
violent predator and stating sufficient facts to support such
an allegation.

Iowa Code § 229A.4(1). This section does not require the State to allege a

recent overt act; it is only necessary that the person be presently

confined.

Our inquiry must begin with chapter 229A’s plain meaning, if one

exists. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996) (“Precise,

unambiguous language will be given its plain and rational meaning in

light of the subject matter.”). At first blush, the State’s petition would

appear to be timely because Stenzel was then incarcerated at the Newton

Correctional Facility.

However, in Gonzales, we held that the State could not bring an

SVP petition against an individual who had been convicted of indecent

contact with a child, released from prison, and then sentenced to prison
for operating a motor vehicle without the owner’s consent. 658 N.W.2d

at 102. As we explained, “confinement” as used in the statute “means

confinement for a sexually violent offense.” Id. at 104. We adopted this

interpretation for a number of reasons:

(1) [I]n each of the statutes, “confinement” and “sexually
violent offense” or “sexually violent predator” appear in the
same sentence; (2) by interpreting the statute as the State
urges us (applying the “confined person” basis for
commitment) the State would be relieved of showing a
“recent overt act” . . . ; and (3) the result would not be a
reasonable application of the statute because it would allow
the State to reach back in time, seize on a sexually violent
 13
offense for which a defendant was discharged, and couple
this with a present confinement for a totally different—or
even perhaps a trivial—offense and use chapter 229A to
confine the person. Iowa Code section 4.4 provides that, in
construing a statute, “it is presumed that . . . [a] just and
reasonable result is intended.” The result urged by the State
would not be just nor reasonable.

Id. at 104–05. We added that allowing the State to commit people

confined for a nonsexual offense without a recent overt act would raise

constitutional concerns, and we construed the statute to avoid such

concerns. Id. at 105.

Since Gonzales was decided, we have held that the presently

confined inquiry is not a hypertechnical one. Shaffer, 769 N.W.2d at

174. In Shaffer, the question was whether a person was presently

confined under chapter 229A if his sexual abuse sentence had actually

expired and, as a result, he was unlawfully imprisoned at the time the

State sought civil commitment. Id. at 175. Declining to adopt a

“hypertechnical definition of the phrase ‘presently confined,’ ” we held

that the person was confined, even if an improper calculation of earned

time had led to an improper sentence. Id. at 174.

We noted in Shaffer that “[t]here is no doubt Shaffer was
imprisoned at the Anamosa State Penitentiary in the custody of the

department of corrections . . . when the State filed the petition for civil

commitment.” Id. at 173. “Moreover, the State never relied on any legal

basis to justify his custody other than his sexual abuse conviction.” Id.

at 174.

The question we must now answer is whether the State may bring

an SVP petition against an individual who has been continuously

confined on a term of imprisonment that includes a sentence for a
sexually violent offense, so long as the State brings the petition before
 14

the person’s prison term expires. We believe it can. To begin with, such

a person is presently confined. See Iowa Code § 229A.4(1). While

Gonzales qualified the meaning of that language in the case of a person

who had been released from prison after serving the sentence for his

sexually violent offense and was now being incarcerated for something

else, the present circumstances are different. Stenzel’s sentence for

sexual abuse is part of his current prison term.3

Indeed, if we adopted Stenzel’s position here, we would get what we

tried to avoid in Gonzales, a result that “would not be just or
reasonable.” 658 N.W.2d at 105; see also Iowa Code § 4.4(3). Under

Stenzel’s reading of the statute, whether the State could wait until the

conclusion of Stenzel’s prison term to bring an SVP petition would

depend on an essentially ministerial matter, namely, “Which of the

consecutive sentences went first?” Also, if the first installment of the

inmate’s sentence were for the sexually violent offense, as here, the State

would have to file an SVP petition years before the inmate’s anticipated

discharge. This is highly illogical. It would seem much fairer to both

parties for the SVP determination to be made at the point when the

inmate would otherwise be released, not when he or she still has years of

imprisonment to serve and his or her psychological profile and behavior

could change. It is noteworthy that in this case, Stenzel was able to

present evidence of his good behavior when interacting with women

during the latter years of his imprisonment after he had been transferred

to Newton. That evidence would not have been available to him had this

3In Gonzales, we interpreted 229A.4(1) to require present confinement for a
sexually violent offense, because otherwise the State could “reach back in time, [and]
seize on a sexually violent offense for which a defendant was discharged.” 658 N.W.2d
at 105 (emphasis added). Stenzel was not discharged; he remained in prison on a term
arising in part from a sexual abuse conviction.
 15

SVP proceeding gone to trial at the expiration of the sexual abuse

“portion” of Stenzel’s sentence.

Stenzel’s reading of the statute also appears to be at odds with

Iowa Code section 229A.3(1). This provision states in part:

When it appears that a person who is confined may meet the
definition of a sexually violent predator, the agency with
jurisdiction shall give written notice to the attorney general
and the multidisciplinary team established in subsection 4,
no later than ninety days prior to any of the following events:

a. The anticipated discharge of a person who has been
convicted of a sexually violent offense from total confinement
....

Iowa Code § 229A.3(1)(a) (emphasis added). In other words, section

229A.3 contemplates that the first steps in the SVP process that precede

the filing of a petition may occur no later than ninety days before the

discharge of a person from prison. This tying of the process to the

anticipated discharge date would make no sense, however, if the petition

in some instances had to be filed while an inmate was in the middle of

his or her prison term. See State v. Adams, 810 N.W.2d 365, 369 (Iowa

2012) (indicating that we must “construe the statute in its entirety”).4

As we have already pointed out, chapter 229A establishes an

either–or proposition. Either the State must establish a recent overt act
of sexually violent behavior, Iowa Code § 229A.4(2), or it must show that

the individual is presently confined. Id. § 229A.4(1). See Huss, 688

4We have held that written notice to the attorney general under section 229A.3
is not a mandatory prerequisite to the filing of a petition under section 229A.4(1). See
In re Det. of Willis, 691 N.W.2d 726, 728 (Iowa 2005) (stating that “a failure to give the
statutory notice at least ninety days prior to anticipated discharge does not invalidate
the proceedings later taken on the attorney general’s petition filed pursuant to section
229A.4(1)”); In re Det. of Huss, 688 N.W.2d 58, 63 (Iowa 2004). Yet, at the same time, it
remains true that the statute generally contemplates a two-stage process, the second
stage of which would presumably occur after the first stage.
 16

N.W.2d at 65 (noting that “under section 229A.4(1) the offense leading to

the current confinement may be a substitute for the requirement of

showing a recent overt act if it was a sexually violent offense”). In In re

Detention of Willis, we explained why it was constitutional not to require

a recent overt act for an individual who was presently confined:

Determining whether a past act of sexual violence has
become too stale to serve as a predictor of future acts of a
similar nature is not a precise task. The significance of a
recent overt act in predicting future conduct is not the act
but the inference against a particular propensity that arises
from the absence of an overt act. The absence of sexually
predatory acts in a setting of secure confinement does not
paint the same picture as the absence of such acts in a
normal life situation. We have generally upheld the
statutory scheme presented by Iowa Code chapter 229A
against substantive due process challenges. See In re
Detention of Garren, 620 N.W.2d 275, 282–83 (Iowa 2000).
We reach a similar conclusion when focusing specifically on
Willis’s contention that a failure to require a showing of a
recent overt act other than the act for which he was
imprisoned violates substantive due process.

. . . In not expressly requiring a recent overt act for
petitions for commitment filed under section 229A.4(1), the
legislature could reasonably conclude that the filing of a civil
commitment petition must necessarily be delayed during the
period of confinement under a criminal judgment and
therefore allow a petition to be filed at the conclusion of that
confinement notwithstanding the absence of an additional
overt act.

In re Det. of Willis, 691 N.W.2d 726, 729–30 (Iowa 2005). Allowing the

State to bring the SVP petition at the end of a prison term that includes a

sentence for a sexually violent offense is consistent with this analysis.

Regardless of the portion of the sentence that the inmate may be

technically serving, he or she is still in “secure confinement,” thus

limiting the opportunity to commit “sexually predatory acts.” See id. at

729. Therefore, it is reasonable for the State to bring its petition “at the
conclusion of that confinement.” Id. at 730.
 17

Furthermore, Iowa Code section 901.8 provides:

If a person is sentenced for two or more separate
offenses, the sentencing judge may order the second or
further sentence to begin at the expiration of the first or
succeeding sentence. . . . [I]f consecutive sentences are
specified in the order of commitment, the several terms shall
be construed as one continuous term of imprisonment.

Iowa Code § 901.8 (emphasis added). In denying Stenzel’s summary

judgment motion, the district court correctly noted that we have applied

this statute in other contexts. In State v. Patterson, a defendant received

two consecutive terms of imprisonment of less than a year each but more
than a year long when added together. 586 N.W.2d 83, 83 (Iowa 1998).

We held that the defendant had been “sentenced to confinement for a

period of more than one year,” for purposes of determining whether he

should be held in county jail or turned over to the custody of the

department of corrections under Iowa Code section 903.4 if his probation

were revoked. Patterson, 586 N.W.2d at 84. In Thompson v. State, we

held that section 901.8 requires consecutive sentences to be treated as

one continuous term for calculating disciplinary detention. 524 N.W.2d

160, 162–63 (Iowa 1994).

Stenzel argues that “the purpose of [section] 901.8 is to preserve

order and discipline within the state’s penal institutions.” Applying

section 901.8 here, he contends, would not serve that purpose. Yet we

do not think section 901.8’s purpose is so narrow. In Patterson, the

consecutive sentences had been suspended. 586 N.W.2d at 84. Thus,

the underlying question in Patterson was not one of order and discipline

but administrative logic and consistency. Similarly, in State v. Kapell, we

held that section 901.8 forbid the court from sentencing a defendant to a
five-day term in county jail followed by a two-year prison sentence. 510

N.W.2d 878, 880 (Iowa 1994). Kapell does not appear to be a decision
 18

about order and discipline but ease of administration. The same

administrative considerations are present here. As we have pointed out

above, it would not be administratively sound for the State to have to

bring an SVP proceeding against a defendant who has over a decade still

to serve in prison simply because the sexually violent offense was first in

the sequence of consecutive prison sentences.

A decision from Washington is also on point. See Fair v. State, 161

P.3d 466, 470 (Wash. Ct. App. 2007), aff’d sub nom. In re Det. of Fair,

219 P.3d 89 (Wash. 2009). The Washington Court of Appeals considered
whether due process required the State to prove a recent overt act when

a person’s sexually-violent-offense sentence had previously ended but he

remained in custody for a robbery conviction. Id. at 469. Although Fair

primarily involves due process issues, the reasoning is helpful here,

especially given that our Gonzales interpretation of section 229A.4(1) was

intended in large part to respond to constitutional concerns:

While . . . Fair’s sentence for the sexual offense had
expired before the State filed its SVP petition, this difference
is not relevant. Fair was in continuous confinement from
the time he returned to prison on the second degree child
molestation conviction until his scheduled release date on
the first degree robbery conviction. He was not released into
the community between the incarceration for the sexually
violent offense and the robbery sentence and, thus, he had
no opportunity to commit a ROA [recent overt act] in the
community. Requiring proof of a ROA under these
circumstances would be absurd.

Fair, 161 P.3d at 470. On appeal, the Washington Supreme Court

agreed with the appellate court. See Fair, 219 P.3d at 94 (noting that

requiring the State to show a recent overt act when a person has been

“continuously incarcerated for child molestation and other nonsexual
crimes” would be “contrary to the statute and our due process

jurisprudence”).
 19

We accordingly affirm the district court’s denial of Stenzel’s

motions to dismiss and for summary judgment, and hold that an SVP

civil commitment respondent is presently confined when, at the time the

State files its petition, he or she has been continuously incarcerated on a

term that includes a sentence for a sexually violent offense.

B. Was There Substantial Evidence to Support the Jury’s

Finding that Stenzel Was a Sexually Violent Predator? Stenzel also

argues that his commitment is not supported by sufficient evidence. If

the jury’s determination is not supported by substantial evidence, we
must reverse the order of commitment. See In re Det. of Hennings, 744

N.W.2d 333, 340 (Iowa 2008).

Here the jury needed to find beyond a reasonable doubt that

Stenzel had a mental abnormality causing him serious difficulty

controlling his behavior. See Iowa Code §§ 229A.2(11), .7(5)(a); see also

In re Det. of Barnes, 689 N.W.2d 455, 458 (Iowa 2004). It also needed to

find beyond a reasonable doubt that Stenzel was more likely than not to

commit a sexually violent offense in the future, absent confinement. See

Iowa Code § 229A.2(4). In conducting our sufficiency review, we must

consider all evidence admitted during trial, including evidence that may

have been admitted erroneously.

The rationale for doing this is based on the reliance by the
State upon the trial court’s decision to admit the evidence
and the possibility that the State would have been able to
introduce other evidence if error would have been found at
trial, or otherwise employed different tactics to avoid a
dismissal.

State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003).

We believe substantial evidence supports the verdict here. At trial,
the State presented statistical, clinical, and anecdotal evidence—some in

Stenzel’s own words—from which a reasonable jury could conclude that
 20

Stenzel suffered from an abnormality causing serious difficulty

controlling behavior that made it more likely than not he would reoffend.

Dr. Leavitt testified that he diagnosed Stenzel with paraphilia, not

otherwise specified, (non-consent), as well as antisocial personality

disorder. He based his conclusion on his recent interview of Stenzel and

an examination of the details of his prior crimes. Dr. Leavitt also

considered possible mitigating factors, such as Stenzel’s treatment, his

behavior, and his time in prison. As related by Dr. Leavitt, Stenzel

sexually assaulted a bookstore employee at knifepoint in 1986; he
attempted to bite a girl’s breast during the 1981 burglary; and he

stabbed a girl’s photograph, took women’s clothing, and left a meat

cleaver and another knife on a waterbed during the 1986

arson/burglary. Stenzel himself admitted to having sexually violent

fantasies in prison, although he testified he no longer does. He also

admitted, “I still struggle with wanting to respond aggressively in

situations.” Dr. Leavitt concluded, “I believe . . . that [Stenzel] continues

to remain vulnerable to the very impulses and urges that he had

maintained and developed over the course of multiple years of his

lifetime . . . [H]e maintains a continued vulnerability to those rape

fantasies and urges.” Dr. Leavitt also agreed with the antisocial

personality diagnosis that Stenzel had been given in prison mental health

evaluations. He said that this is an “added risk factor” for controlling his

behavior.

Stenzel argues that Dr. Leavitt’s testimony, on its own, did not

establish he has a mental abnormality causing him serious difficulty

controlling his behavior. Yet we have held that a diagnosis of an
antisocial personality disorder affecting a respondent’s ability to control

behavior—a diagnosis Dr. Leavitt made here—can support a jury finding
 21

that someone is a sexually violent predator. In re Det. of Altman, 723

N.W.2d 181, 185–86 (Iowa 2006); see also Barnes, 689 N.W.2d at 461

(finding sufficient evidence that respondent “had a serious difficulty

controlling his behavior” where the State’s expert found he had antisocial

personality disorder as well as a high score on a psychopathy checklist).

Stenzel also argues the jury could not reasonably have made such a

finding when Stenzel presented witnesses who testified that he could

control his behavior in prison. The jury was not required, however, to

find that evidence conclusive as to how Stenzel would act if released from
incarceration. In Altman and Barnes, the respondents offered contrary

expert testimony, but we held that the fact finder was free to accept the

testimony of the State’s expert instead. Altman, 723 N.W.2d at 185;

Barnes, 689 N.W.2d at 461. Although Stenzel’s lay witnesses offered

testimony in favor of his position, Dr. Leavitt supported his assessment

with an interview and other factors. Some aspects of Stenzel’s own

testimony supported the State’s case. In short, the State presented

sufficient evidence that Stenzel suffered from a mental abnormality and

had serious difficulty controlling his behavior. See Hennings, 744

N.W.2d at 340 (“Evidence is substantial if a jury could reasonably infer a

fact from the evidence.”).

Dr. Leavitt also concluded that Stenzel was more likely than not to

commit a sexually violent offense in the future, if not confined. See Iowa

Code § 229A.2(11). Dr. Leavitt relied on three actuarial risk tools. See In

re Det. of Pierce, 748 N.W.2d 509, 513–14 (Iowa 2008) (discussing

actuarial risk assessments and stating that they “were relevant to

determine whether Pierce is an SVP within the meaning of the Act”). On
the Static-99R, which examines ten risk factors, Stenzel scored a six.

This score placed him in the high risk category, meaning he had a
 22

recidivism rate of “2.9 times higher than the recidivism rate of the typical

sex offender.” According to Dr. Leavitt, people in that risk category have

a recidivism rate of between 17.4 to 32.7% in five years, and 23 to 42.8%

in ten years. Cf. id. (explaining that the respondent was in the high risk

category on the same instrument which was associated with a fifty-two

percent rate of reconviction over a period of fifteen years).

On the Static-2002R, a fourteen-factor assessment, Stenzel scored

a six, placing him in the moderate risk category. People in this category

have between a 5.4 and a 22% recidivism rate over five years, and
between a 28.2 and a 31.1% recidivism rate over ten years. However, Dr.

Leavitt explained that these statistics do not account for the “20 to 30-

some percent” who committed a future sexually violent offense but were

not “detected.”

Finally, on the Minnesota Sex Offenders Screening Tool—Revised,

a sixteen-factor test, Stenzel scored a fourteen. According to Dr. Leavitt,

seventy-two percent of offenders with results above thirteen were

arrested for committing a sexually violent offense within six years of their

release. See id. at 514 (discussing the same figures).

Dr. Leavitt used these assessments, coupled with his clinical

judgment of Stenzel’s particular circumstances—specifics of his crimes,

treatment, and response to treatment—to conclude that Stenzel

“continues to be more likely than not to reoffend at some time in the

future with a future sexually violent offense.” Stenzel did not call an

expert who had reached a different conclusion. Stenzel did present

supportive testimony from lay witnesses. Nonetheless, reviewing the

record, we are convinced there was substantial evidence from which the
jury could find that Stenzel was a sexually violent predator within the

meaning of the statute. See Iowa Code § 229A.2(11).
 23

Stenzel points out on appeal that Dr. Leavitt conceded the

actuarial tests have a positive correlation of 0.6. Thus, according to

Stenzel’s interpretation, “it would seem that these instruments only get it

right slightly more than half the time.” Stenzel also urges that even

according to Dr. Leavitt, only one of the tests showed more than a fifty

percent likelihood of Stenzel’s reoffending. However, Dr. Leavitt’s

testimony was extensive, and it was based upon both the actuarial

instruments and his individualized evaluation of Stenzel. It was for the

jury to decide whether or not to accept his opinion. See Altman, 723
N.W.2d at 185 (holding there was substantial evidence to support the

jury’s finding that the respondent was a sexually violent predator in the

face of the respondent’s contrary expert testimony, because “ ‘[i]t was for

the jury to decide which of the experts was more credible . . . and whose

opinion . . . the jury would accept’ ” (citation omitted)).

Stenzel further argues that Dr. Leavitt’s risk assessments were

improperly inflated because Dr. Leavitt relied on inadmissible evidence

concerning the SVP commitment process and the 1981 and 1986 crimes.

As previously noted, though, we consider even improperly admitted

evidence for purposes of a sufficiency review. See Dullard, 668 N.W.2d at

597. Accordingly, we affirm the denial of Stenzel’s motion for a directed

verdict and now turn to the evidentiary issues.

C. Was It Proper to Admit Expert Testimony About the State’s

Selection Process for Civil Commitments and About the

Respondent’s Criminal Case Files? Stenzel argues the district court

improperly allowed Dr. Leavitt to testify about (1) the process used by the

State to decide which inmates will become the subject of SVP
proceedings and (2) material (such as minutes of testimony) found in

Stenzel’s criminal case files. Stenzel maintains Dr. Leavitt’s testimony on
 24

these subjects was hearsay and not a proper basis for expert opinion

under Iowa Rule of Evidence 5.703. Stenzel also asserts it was unfairly

prejudicial under rule 5.403.5 The State responds that Dr. Leavitt

confirmed other experts in the field rely on both categories of

information. See Iowa R. Evid. 5.703 (“If of a type reasonably relied upon

by experts in the particular field in forming opinions or inferences upon

the subject, the facts or data need not be admissible in evidence.”). The

State adds that Dr. Leavitt’s testimony in these areas was more probative

than prejudicial.6
1. Dr. Leavitt’s testimony regarding the civil commitment selection

process. Early in his testimony, Dr. Leavitt was asked to explain the

process of civil commitment in Iowa. He then informed the jury that out

of the universe of sex offenders due to be released, “some” are referred by

the directors’ review committee to the multidisciplinary team, and of

those only “a very small percentage” are in turn referred to the attorney

general’s office. He testified that “multiple independent evaluators” are

used. When the case reaches the attorney general’s office, Dr. Leavitt

might be asked to serve as a preliminary independent evaluator. If so,

and if he finds the individual meets the SVP criteria, he would present

5In addition, Stenzel insists that Dr. Leavitt’s testimony about the selection
process violated his due process rights. The State contends that this argument was not
preserved below. In light of our disposition of this appeal, we need not reach the due
process argument.
6The State argues Stenzel did not preserve error on his rule 5.403 argument as
it relates to Leavitt’s testimony that the earlier convictions were sexually related. The
State notes that Stenzel “did not lodge an objection pursuant to rule 5.403 prior to Dr.
Leavitt’s testimony about whether his other convictions were sexually related.”
However, immediately after Dr. Leavitt testified—unprompted, initially—that the 1986
burglary was sexually related, Stenzel objected “for the reasons we previously
discussed,” which included rule 5.403 objections. Likewise, Stenzel offered the “same
objection” before Dr. Leavitt answered a question calling for the “basis” of the 1981
charge for assault with intent to commit sexual abuse.
 25

his findings to a review committee which would then decide whether to

file an SVP petition. On occasions in the past, the attorney general has

not filed an SVP petition even though the independent evaluator

concluded the individual met the statutory criteria.

Out of the presence of the jury, Dr. Leavitt admitted he relied on

this winnowing process in part to support his opinion that Stenzel fell

into a high risk category. However, he was not able to quantify the

percentage of inmates who are screened out. Dr. Leavitt indicated that

his source of information was “discussions with various personnel in the
process.”7

Having presented testimony through Dr. Leavitt about the

screening process, the State highlighted it in closing argument, where it

was essentially the first topic covered. The State’s counsel argued to the

jury that there is “a screening process that goes into this and it’s pretty

sensitive and not many people meet the criteria as a sexually violent

predator.” After recapping that screening process, counsel concluded,

“In this case, at every step of the way, Mr. Stenzel has been considered to

meet criteria for SVP, but what’s really—what’s important is what do you

think?”

Our rules of evidence provide that an expert may base his or her

opinion on evidence that is not otherwise admissible. See Iowa R. Evid.

5.703; Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182 (Iowa 2004) (“If

the trial judge determines the hearsay is ‘reasonably relied upon’ by

7As the State notes, Stenzel’s counsel did not initially object to each question
about the screening process. However, following one of his objections, there was a
lengthy session outside the presence of the jury that included voir dire of Dr. Leavitt
and extensive argument of counsel. Following that session, the district court indicated
that Dr. Leavitt would be allowed to testify about the process. The State concedes on
appeal that Stenzel preserved error on his rule 5.703 and rule 5.403 objections to
testimony about the screening process.
 26

experts as required by the rule, the court has discretion to admit the

underlying hearsay evidence.” (citation omitted)). But rule 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. Thus, in Gacke, we rejected hearsay evidence as a basis of expert

opinion in a nuisance case against a hog farm. 684 N.W.2d at 181–84.

The experts based their opinion on questionnaires filled out by people

who experienced problems with the odor emanating from the farm. Id. at

183. This was impermissible, we held, because the questionnaires were
used to show more than the factual basis of the experts’ opinions.

[T]he questionnaires addressed matters that went far beyond
the documentation of odors and breathing problems upon
which the experts relied. Individuals completing the
questionnaires not only described the odor they experienced,
but also answered questions asking for their “opinion as to
the origin of the odor,” as well as “any other information
concerning . . . the persons responsible that [the responding
individuals thought] might be important.”

Id.

Likewise, in State v. Vincik, we held that the district court did not

abuse its discretion in declining to admit an expert’s testimony

concerning what he had been told by other persons regarding a criminal

defendant’s mood before allegedly killing his wife. 398 N.W.2d 788, 795
(Iowa 1987). The expert opined that the defendant could not recall

events surrounding his wife’s killing, an opinion he based in part on out-

of-court statements from the defendant’s friends and neighbors. Vincik,

398 N.W.2d at 788. We upheld the district court’s refusal to admit the

basis of the expert’s opinion because “this record does not show that

psychologists ordinarily or reasonably rely upon such information.” Id.
at 796.
 27

We conclude the district court abused its discretion in admitting

Dr. Leavitt’s testimony about the selection process for several reasons.

First, there was no evidence that psychologists generally rely on the

existence of a government-run screening process when they make a

diagnosis of sexual deviancy. All Dr. Leavitt said was that psychologists

doing this particular forensic assignment for SVP proceedings rely on

that process. This is not enough. Rule 5.703 requires that the facts and

data be viewed as reasonably reliable by experts in “the particular field.”

We believe “particular field” means the group of people who possess the
relevant “scientific, technical, or other specialized knowledge,” see Iowa

R. Evid. 5.702, not the more narrow category of people who regularly

testify for a given side as experts in a given kind of case.

Second, rule 5.703 is limited to “facts or data” that could be

“reasonably relied upon.” Dr. Leavitt’s knowledge of the selection process

fell short of that. With respect to the initial screening, Dr. Leavitt said,

“It is my understanding that there was a screening process,” but he

added, “I am not privy to the exact mechanism involved.” He claimed

that only a “very small percentage of cases” advance to the attorney

general’s office for potential filing but he could not give actual figures;

and what he could say was based on discussions with unnamed “various

personnel.” Moreover, as Stenzel notes, Dr. Leavitt participated in that

screening process. His own opinions were part of the reason that Stenzel

continued through it. Rule 5.703 was not intended to be a mechanism

for experts to self-bolster their own opinions. See Brunner v. Brown, 480

N.W.2d 33, 35 (Iowa 1992) (“If the underlying evidence is furnished by a

biased witness, it probably will be excluded.”); see also State v. Barrett,
445 N.W.2d 749, 751 (Iowa 1989) (“[Rule 5.703] does not empower one

expert witness to state other experts also subscribe to the witness’s
 28

stated conclusion.”). And an expert’s own testimony regarding

reasonable reliance is not conclusive, “being only one factor in the

consideration.” Brunner, 480 N.W.2d at 35.

Third, and perhaps most important, rule 5.403 can override rule

5.703. If the probative value of allowing the expert to testify to

underlying facts and data “is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury,” the

evidence should be excluded. See Iowa R. Evid. 5.403.

We employ a two-part test to decide whether evidence should
be excluded under rule 5.403. First, we consider the
probative value of the evidence. Second, we balance the
probative value against the danger of its prejudicial or
wrongful effect upon the triers of fact.

State v. Huston, __ N.W.2d __, __ (Iowa 2013) (citations and internal

quotation marks omitted).

Here the jury has to make a very important prediction about the

future that is necessarily fraught with some uncertainty—does an

offender “suffer[] from a mental abnormality which makes the person

likely to engage in predatory acts constituting sexually violent offenses, if

not confined in a secure facility”? See Iowa Code § 229A.2(11). In

making that decision, it would undoubtedly give jurors comfort to be
told—as Stenzel’s counsel put it—that the State has “weaned out all of

the people who shouldn’t be subject to the process and gotten down to

just a few.”

The prosecutor’s closing argument serves as a useful barometer of

the prejudicial character of the evidence. Right off the bat, the State told

the jury that “not many people meet the criteria as a sexually violent

predator.” The State then reviewed the hoops that Stenzel’s case had to
get through. Finally, the State wrapped up this portion of its closing
 29

argument by asking, “In this case, at every step of the way, Mr. Stenzel

has been considered to meet criteria for SVP, but what’s really—what’s

important is what do you think?” One might regard that compound

statement/question as an artful attempt at reverse psychology.

This aspect of the trial strikes us as lacking in probative value and

unfairly prejudicial to the respondent. We would not allow the State in a

criminal case to offer evidence that the district court had to approve the

trial information, thereby determining that there was probable cause to

detain the defendant to answer the charge. See State v. Petersen, 678
N.W.2d 611, 614 (Iowa 2004). Nor would we allow a county attorney’s

office to show that it prosecutes only a percentage of the cases referred to

it, or that it brings cases only after an internal review has found

sufficient evidence for a jury to conclude the defendant is guilty beyond a

reasonable doubt.

We recently held in a child endangerment case that rule 5.403

barred the admission of a department of human services finding that the

defendant had committed child abuse, explaining:

We see no probative value to the DHS determination
the abuse report against Huston was founded. Whether or
not the abuse report was deemed founded is irrelevant to
any issue for the jury to decide. Additionally, we see a real
danger the jury will be unfairly influenced by that agency
finding, which gives the “imprimatur” of a purportedly
unbiased state agency on a conclusion that Huston was
guilty of child abuse.

Huston, __ N.W.2d at __. A similar principle should apply here. It is for

the jury to decide whether Stenzel meets the definition of an SVP.

Introducing evidence that a lengthy selection process, including

representatives inside and outside the department of corrections, picked
out Stenzel to be one of the few candidates for SVP status presents a
 30

“real danger the jury will be unfairly influenced” by a purportedly

unbiased “imprimatur.” Id.

We believe an SVP case from Kansas supports this view. In re Care

& Treatment of Foster, 127 P.3d 277, 286 (Kan. 2006). In that case,

without objection, the civil commitment selection process was described

by the State in opening statement, by an expert for the State in his

testimony, and by the State in closing argument. Id. at 280–82. For

example, the State advised the jury in its opening statement that “this

respondent . . . has been through many layers of review and analyses
until we finally get here, and that’s the ultimate determination for you to

make.” Id. at 283 (emphasis omitted). An expert for the State testified

that the multidisciplinary team does a “review of the information and

make[s] a determination whether they see the person as a high risk to

offend.” Id. at 281. The State then reiterated at closing argument that

“this man has gone through many levels of reviews.” Id. at 282

(emphasis omitted).

Without even reaching the expert testimony and the closing

argument, the Kansas Supreme Court found the improper opening

statement alone warranted a new trial, noting:

Stated simply, we see no reason whatsoever, even in a
noncriminal proceeding, why the State’s attorney—or the
State’s evidence—need mention the levels of review of the
case that occurred before it was brought to this jury. More
important, we conclude that these statements by the State,
and this type of State evidence, “stack the deck” against
Foster.

Id. at 286. The undue prejudice in such circumstances is significant

because “a jury has a natural tendency to look for guidance from those

clothed in authority, i.e., a multidisciplinary team of professionals, a
team of prosecutors, and a district court judge, even when the guidance
 31

is not intended.” Id. When the State highlights such details, it also has

the effect of commenting on the credibility of the State’s own witness or

injecting the prosecutor’s own opinion into the trial. Id. Finally, the

court noted that the State’s reference to an earlier probable cause

determination by a court—something Dr. Leavitt briefly alluded to—was

“the most troubling aspect of the opening statement.” Id. at 287. The

court noted:

Because the result a judge supposedly desires may be
inferred by the jury from a look, a lifted eyebrow, or an
inflection of the voice to the extent a new trial is warranted,
a fortiori an attorney’s reference to a judge’s prior decision
supporting the attorney’s case can certainly influence a jury
to the extent that reversal is required.

Id.

We agree with these observations on the unfair and improper

influence created when the State and its expert comment on the details

of the civil commitment selection process. Although the present appeal

concerns the admission of evidence, whereas Foster was a prosecutorial

misconduct case, the endpoint is the same: the introduction of such

unfairly prejudicial information to the jury requires a new trial.

It is true that the district court gave limiting instructions. But a

limiting instruction may not be enough, State v. Henderson, 696 N.W.2d

5, 12 (Iowa 2005), and we find it was not enough here. See also Huston,

__ N.W.2d at __ (“We do not believe it would have been proper in this case

to allow testimony that the child abuse report was determined to be

founded even with a limiting instruction.”). In closing argument, the

State clearly sought to drive home the point that Stenzel was one of a few

sex offenders that the State had selected, following a lengthy process, for
SVP proceedings. “Although a statement may be purportedly offered for

a non-hearsay purpose, the district court must still determine if the
 32

party’s true purpose in offering the evidence was in fact to prove the

statement’s truth.” McElroy v. State, 637 N.W.2d 488, 501–02 (Iowa

2001). Notably, the State does not tell us why Dr. Leavitt’s testimony

concerning the selection process was needed; it asserts only that Dr.

Leavitt’s references to that process were “minimal” and there was

sufficient foundation for his testimony.

We only find reversible error when the admission of improper

evidence affects a party’s substantial rights. Gacke, 684 N.W.2d at 183.

“The admission of hearsay evidence ‘is presumed to be prejudicial error
unless the contrary is affirmatively established.’ ” Id. (quoting Frunzar v.

Allied Prop. & Cas. Ins. Co., 548 N.W.2d 880, 887 (Iowa 1996)). The State

has not affirmatively established that testimony on the selection process

did not tip the balance here. Although Stenzel certainly had committed

at least one violent sexual offense in the past, he had spent the last

twenty-three years in prison, had undergone sex offender treatment, and

had passed a relatively uneventful decade at Newton, which resulted in

two female officials from that prison testifying at trial on his behalf.

Furthermore, only one of Stenzel’s three actuarial test scores (the

Minnesota Sex Offenders Screening Tool—Revised) directly translated

into a projected recidivism rate of greater than fifty percent. Additionally,

as Stenzel has demonstrated, that high score depended upon the 1981

burglary being classified as sexually related. That was a matter of some

contention at trial, as we further discuss below.

Accordingly, because of the improper admission of testimony

regarding the selection process, we must reverse and remand for a new

trial. See Gacke, 684 N.W.2d at 185 (“[T]he Gackes have failed to rebut
the presumption of prejudice flowing from the improper admission of this

evidence. Therefore, we reverse and remand for a new trial.”).
 33

2. Dr. Leavitt’s testimony detailing Stenzel’s 1981 and 1986

offenses. Stenzel also contends the district court committed reversible

error in allowing Dr. Leavitt to testify about certain “criminal history

records” relating to his past offenses. Because we have already

determined that a retrial is required, we will address this issue. It is

likely to arise again on remand. See State v. Dudley, 766 N.W.2d 606,

615 (Iowa 2009) (addressing “the other issues in this appeal that are

likely to arise upon remand”).

At trial, Dr. Leavitt testified his opinions were based in part upon
some of the facts surrounding Stenzel’s 1981 and 1986 offenses. He

testified that he learned this information from

Comprehensive records from the Iowa Department of
Corrections, various criminal history records, presentence
investigation reports, police and/or investigative reports,
disciplinary reports, treatment records from the Department
of Corrections, and I believe minutes of testimony from his
previous and most current criminal offense . . . convictions.

Asked whether these were the type of records commonly relied upon by

forensic psychologists, Dr. Leavitt testified, “Yes, they are.”

Accordingly, on the stand, Dr. Leavitt filled in numerous details.

He pointed out that, after the 1981 home invasion, Stenzel initially had

also been charged with assault with intent to commit sexual abuse. He

testified that Stenzel broke into the neighbor’s house with a handgun

and attacked the thirteen-year-old girl “both physically and sexually.” In

addition, Dr. Leavitt described Stenzel having read a book on rape in the

bookstore in 1986 before sexually assaulting the elderly employee. Dr.

Leavitt also explained that the 1986 burglary/arson had elements of

“sexual deviance” in that Stenzel had put a knife in a photo of a girl, had
taken women’s clothing from the house, and had left a meat cleaver and

knife on a waterbed.
 34

Although some of these particulars were apparently acknowledged

by Stenzel when Dr. Leavitt interviewed him, others came from the

minutes of testimony. Minutes of testimony contain “a full and fair

statement of the witness’ expected testimony.” Iowa R. Crim. P. 2.5(3).

So Dr. Leavitt seems to have based his opinion that Stenzel was a

sexually violent predator, at least in part, on material summarizing

testimony the State expected at trial. Dr. Leavitt agreed that the minutes

were “the best record we have of those events.”

Other state courts have explored the extent to which experts in
SVP proceedings can testify about the respondent’s past offenses beyond

what the convictions, the plea proceedings (if there was a plea), and the

trial records (if there was a trial) divulge. These decisions have reached

varying outcomes. For instance, a recent Virginia case considered expert

testimony regarding details of unadjudicated sexual misconduct in an

SVP civil commitment proceeding. Lawrence v. Commonwealth, 689

S.E.2d 748, 750 (Va. 2010). There, an expert witness diagnosed an

alleged sexually violent predator with paraphilia and based this

conclusion on incidents that did not result in formal charges. Id.

Specifically, the expert relied on a police report, which included “alleged

victims and witnesses [who] were in some cases not identified and none

[of whom] were available for cross-examination.” Id. at 752. The Virginia

Supreme Court concluded, based on Virginia’s rules of evidence, that the

trial court abused its discretion in admitting the basis of testimony,

despite a limiting instruction like the one here, because it “improperly

included numerous details about unproven past allegations of sexual

misconduct against Lawrence.” Id. at 752. The court noted that,
although the standard of review was for abuse of discretion, the trial

court did not have discretion to admit clearly inadmissible evidence. Id.
 35

at 751; see also Commonwealth v. Wynn, 671 S.E.2d 137, 141 (Va. 2009)

(reaching a similar result).

The New Jersey Supreme Court, on the other hand, endorsed the

use of presentence reports as a basis for expert testimony in SVP civil

commitment proceedings. In re Civil Commitment of J.M.B., 964 A.2d

752, 772 n.9 (N.J. 2009). The Washington Supreme Court has permitted

expert testimony based on “police reports, legal records, treatment

records, juvenile records, psychological and psychiatric evaluations, and

medical records.” In re Det. of Marshall v. State, 125 P.3d 111, 113
(Wash. 2005). That case did not specify whether “legal records” included

minutes of testimony or their equivalent.

The Nebraska Supreme Court seems to have struck a balance by

requiring that criminal history records bear some “indicia of reliability” in

order to serve as the basis for expert opinion in SVP cases. In re A.M.,

797 N.W.2d 233, 261 (Neb. 2011). That court found that due process

required the records to have some independent reliability apart from the

expert’s reliance on them. Id. at 261–62. One such indicator is whether

the defendant pled guilty to the crimes to which the records relate. Id. at

261; see also In re Commitment of Williams, 841 So. 2d 531, 531–32 (Fla.

Dist. Ct. App. 2003) (holding that experts could refer to facts in police

reports in an SVP proceeding, but distinguishing the situation where

neither criminal charges had been brought nor a conviction obtained

based on those reports), overruled on other grounds by In re Commitment

of DeBolt, 19 So. 3d 335, 338 (Fla. Dist. Ct. App. 2009). In A.M., the

court remanded for the tribunal to determine whether certain police

reports bore sufficient indicia of reliability. 797 N.W.2d at 261–62.
After considering these authorities, we believe it was improper for

Dr. Leavitt to testify in an SVP proceeding about the existence of a
 36

criminal charge that was dropped, and that it was also potentially

improper for him to testify from the minutes of testimony. Both of these

items are prepared by the prosecutor for prosecution purposes. See Iowa

R. Crim. P. 2.5(1), (3). The trial information is a statement of what the

prosecution expected (at one point) to prove; the minutes are a statement

of what the prosecution expected witnesses to testify. Whether we

consider these from the standpoint that they are not truly “facts or data,”

see Iowa R. Evid. 5.703, or from the standpoint that the danger of unfair

prejudice substantially outweighs their probative value, see id. r. 5.403,
we question the basic fairness of the State’s using materials that it

generated exclusively to prosecute Stenzel criminally as a factual ground

for committing him as an SVP at the conclusion of his sentence. We

believe a prophylactic rule against expert testimony on these matters is

an appropriate interpretation of our rules of evidence.

In appropriate circumstances, an expert may testify about facts

learned from other records, although the defendant may raise case-

specific objections under rule 5.703, rule 5.403, or any other applicable

rule of evidence. Additionally, Stenzel’s own admissions, whether in the

form of a plea, a statement in court, or a statement to Dr. Leavitt, are not

hearsay and do not raise the same level of concern, either.

The record in this case does not clearly disclose the source of Dr.

Leavitt’s knowledge for all the statements he made concerning Stenzel’s

1981 and 1986 offenses. On remand, we ask the district court to apply

the principles we have set forth here.

IV. Conclusion.

Based on the foregoing, we hold that the State brought this
proceeding against Stenzel in a timely fashion and that Stenzel’s motions

to dismiss and for summary judgment were properly denied. We also
 37

conclude the evidence presented below was sufficient to support the

jury’s finding that Stenzel was a sexually violent predator and that

Stenzel’s directed verdict motion was correctly overruled. However, we

find that the State’s expert should not have been permitted to testify

about the winnowing process by which the State selects certain violent

sex offenders for SVP commitment proceedings. We therefore reverse the

judgment of the district court and remand for a new trial. At the new

trial, the district court should also reconsider the admissibility of expert

testimony about the specifics of Stenzel’s prior offenses in light of the
discussion in the preceding section.8

DISTRICT COURT ORDER AFFIRMED IN PART AND REVERSED

IN PART; CASE REMANDED FOR NEW TRIAL.

8Stenzel also argued on appeal that the district court should have given certain
jury instructions requested by him. We believe our resolution of this appeal moots that
argument and renders it unnecessary for us to reach it.