author: CADY, Justice.

text:
    In re the Detention of Robert E. SWANSON. State of Iowa, Appellee, v. Robert E. Swanson, Appellant.
    No. 02-0579.
    Supreme Court of Iowa.
    Sept. 4, 2003.

      Mark Smith, First Assistant Public Defender, and Melissa A. Anderson, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, Andrew B. Prosser and Roxann M. Ryan,
    Assistant Attorneys General, and Thomas J. Ferguson, County Attorney, for appel-lee.
   CADY, Justice.

In this appeal, we consider what constitutes a “recent overt act” for purposes of determining whether an individual is a sexually violent predator. Iowa Code § 229A.2(6) (2001). More specifically, we examine the actions of this defendant to determine whether his conduct created “a reasonable apprehension of [harm of a sexually violent nature.]” Id. We conclude that there was sufficient evidence from which a fact finder could determine that the defendant committed a recent overt act and affirm the district court judgment and order finding the defendant is a sexually violent offender who should be confined for treatment.

I. Background Facts and Proceedings.

Robert E. Swanson (Swanson) was living in a halfway house in Des Moines in early November 2001 after being released from prison. He went to an area business, ostensibly to apply for a job. An employee there, a young woman named Christine Eiselstein (Eiselstein), informed Swanson that applications were accepted at another location. She signed a work release form for Swanson, and he went on his way.

Later that evening, Swanson called Ei-selstein on the telephone at her apartment, which happened to be across the street from his halfway house. He did not identify himself initially, although he later told her his name and made reference to their meeting earlier in the day. During the course of their brief conversation, Swanson asked her whether, she was “still alone” and “wanted to be friends.” He also expressed that he had hesitated to call her because he could get in “big trouble” for doing so. After a few minutes, Eiselstein pretended to have another call and attempted to end the conversation. Before doing so, Swanson asked if he could call her again. Eiselstein said he could, but later explained that she told him this in an attempt “to get him off the phone.”

Eiselstein telephoned a friend and the police after hanging-up with Swanson. The police told her that a lone call was insufficient to warrant an extensive response. However, they recorded her complaint and told her to call back if Swanson contacted her again. Late the next evening, he did. This time, Swanson called to explain that he had spoken with the manager of Eiselstein’s apartment complex and he was taking steps to move into the complex. He also told her that he had written and sent her a letter. When asked what the letter said, Swanson told her that he wrote about himself and asked if she was interested in moving in with him, suggesting they could be friends “with no strings attached.” ■ Eiselstein promptly ended the call.

Eiselstein called the police once again and later met with an officer. The officer offered to make a report or to talk to Swanson about his actions toward her. Eiselstein deferred to the officer’s judgment about the proper approach, and the officer later went and spoke directly to Swanson. Eiselstein then left Iowa for a brief period of time. When she returned, Swanson’s letter was waiting for her. The three-page, hand-written letter stated, in part (with original punctuation and omissions signaled by * * *):

Good Evening; Neighbor ...
Since the ice was already broken a bit, earlier; I thought/felt I should at least sit down here and write a few lines; Maybe to fill in some of the gaps/holes, and; Possibly answer some questions
First of all; Just Friends ...; Okay with you? (Nothing more expected; No strings attached ... ) As I said earlier; I don’t need problems, trouble ... I’ve done a Lot of time, and; I’m tired ... (I’m soon to turn 52 in late Dec.) As I’ve already said; I’ve been thru two marriages already. * ⅜ *
I smoke ... I haven’t had a drink since early 82; (With the exception of tea/soda ... ) I like jazz, classical, and easy listening music ... A nice walk in a park would be nice; Especially in this weather! Obviously; I like/don’t mind work ... * * *
I am in hopes, by now ... You may feel at least a bit more comfortable ... I realize, that my call was an awkward situation, for both of us. And; I most likely, was more scared/concerned than you, making that call ... For me; It was a risk, that I had thought about, and debated with myself, for some time, before I even called ... It was a risk, and, a step toward trust that I thought I’d take ... From your side/end; It was also a risk; and trust. Which leads me to this ... Now that “trust” has begun, I will tell you now.... That I will Not disrespect, or, violate, or jeopardize that trust, now begun/established in anv way, shape, or form Chris ... This, is my word, and promise to you..; Right at the very beginning ...
If you have any questions of/for me ...; I will answer them to you, with honesty, and up-front and on the table ... (No smoke and mirrors. But, what has begun between us today, I’d like to see be allowed to grow. I[t] is fragile, and precious, worth more to me than the riches [sic] fields of oil or gold throughout the world. And, Pd “like” to see it mature and grow, within the lifetime I have left.
As I went outside a few minutes ago to have/take a smoke break for a few minutes, a real dumb/stupid question came to my mind (Here’s a person who’s eventually going to be a “CPA”; I wonder if she’s ever considered saving some money on her rent? Like halting it. More goes to the bank books that way ... ) *[As I said; It was just a fleeting humorous thought/question ... ]; No strings attached ... Remember ... But; Should you ever think about it..; This close neighbor, would be willing to offer. ⅜ * [Because; It actually saves two people ... And ...; Since it’s only a one bedroom ...; After all I’ve dealt with all these years ... A nice, soft, comfortable couch, would be like heaven, to me!!] (Notice I can be humorous, and witty too?) Boy; I’ll be willing to bet that, a “certain mother.” would really have kittens, if that ever happened ...; Let alone; A, certain father ....
I suppose, with that ... I’d better wrap this up, for now ... Got to get up early in the morning, to toy to find myself a job ... This isn’t a masterpiece; But; It’s at least a start ... (And; I’m glad/ pleased, that it was allowed to start....
Later Neighbor...., Bob Swanson

Eiselstein gave the letter to the police and had no further contact with Swanson. She changed her phone number and moved from her apartment. As the matter was investigated further, Swanson’s actions began to take on a greater meaning.

The investigation revealed Swanson had a long history of committing sexually violent offenses. He was charged with his first sexual offense in 1964, at the age of fourteen. In 1973, he was convicted for raping a fourteen-year-old girl. He was released from prison in 1979 and returned there in 1980 after another conviction, this time for sexual abuse in the third degree. He also allegedly assaulted another woman in 1980 who did not report the crime before the statute of limitations on the offense had run. In a letter to the governor in 1984, Swanson pleaded for additional state treatment programs for sex offenders such as him, claiming that he had raped five or six additional women between 1964 and 1973. In the same letter, he claimed he had raped at least one more woman between 1979 and 1980. Finally, while imprisoned for the second time, Swanson called or wrote several women in the Marshalltown area, apparently by randomly finding phone numbers and addresses that were listed with only a single, female name.

Based on his prior criminal record and his own admissions, Swanson had committed about ten sexually violent offenses in his lifetime. However, it was the pattern of his prior conduct that became most alarming as the investigation proceeded. On a number of times in the past, Swanson had randomly contacted single women with whom he had had little or no prior connection in an effort to befriend them. Tragically, some of these women later became victims of his violent sexual assaults.

On November 29, 2001, the State filed a petition in the district court seeking a determination of Swanson’s status as a sexually violent predator under Iowa Code chapter 229A. See id. § 229A.4. At a later hearing, the district court found that probable cause existed to believe Swanson was a sexually - violent predator and that he should be temporarily confined pending trial. See id. § 229A.5. His trial commenced in February 2002. As a procedural matter, the district court determined it would decide whether Swanson’s conduct constituted a recent overt act, and the jury would decide the other issues. After examining the evidence presented, the district court determined that Swanson’s conduct toward Eiselstein was a recent overt act. Based on this finding, combined with the jury’s additional conclusions, the district court entered a judgment that Swanson was a sexually violent predator who should be confined for treatment. Swanson appeals from the district court’s judgment and order of confinement.

II. Standards of Review.

Swanson’s challenge to the district court’s order is directed toward the sufficiency of the evidence underlying the court’s determination that he had committed a recent overt act. We recently summarized our standard of review for issues of sufficiency of the evidence in State v. Yeo, 659 N.W.2d 544, 547 (Iowa 2003):

Our review of challenges to the sufficiency of the evidence is for correction of errors at law. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000) (citing State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)). We are bound by the trial courts finding[s] [if the findings are] supported by substantial evidence upon which a “rational trier of fact could conceivably find the defendant [is a sexually violent predator] beyond a reasonable doubt.” Id. To determine whether the evidence was substantial, we consider the entirety of the evidence presented in a “light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record.” Id. Evidence is not substantial if it raises only suspicion, speculation, or conjecture. Id.

Swanson’s challenge to the order of confinement also requires us to construe portions of Iowa Code chapter 229A, the Sexually Violent Predator Act. We focus on the intent of the legislature when construing the statute, looking first and foremost to the language it chose in creating the act. Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 197 (Iowa 2003). We read the statute “as a whole and give it ‘its plain and obvious meaning, a sensible and logical construction,’ ” which does not create an “impractical or absurd result.” Id. (quoting Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980)). If it is necessary, “we look to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage” to aid our interpretation. Id. We review the district court’s construction of the statute for correction of errors at law. See State v. Mitchell, 568 N.W.2d 493, 500 (Iowa 1997).

III. Recent Overt Act.

The core of Iowa’s Sexually Violent Predator Act is found in Iowa Code section 229A.7(3), which provides, in part:

If the court or jury determines [beyond a reasonable doubt] that the respondent is a sexually violent predator, the respondent shall be committed to the custody of the director of the department of human services for control, care, and treatment until such time as the person’s mental abnormality has so changed that the person is safe to be at large.

This determination rests on a number of statutorily defined words and criteria. The most important, for the purposes of this case, is the definition of a sexually violent .predator: “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.” Id. § 229A.2(9). At trial, the statutory requirements that Swanson be convicted of a sexually violent offense and suffer from a mental abnormality did not create the same controversy as the question of whether the mental abnormality made Swanson “likely to engage in predatory acts” of sexual violence. Id. Under this requirement, the State had to show that Swanson, who was “not confined at the time” the petition for confinement was filed, committed a “recent overt act.” Id. § 229A.2(3). This phrase is defined as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” See id. § 229A.2(6). Ultimately, the nature of Swanson’s actions toward Eiselstein caused both parties to focus on whether he had committed an act that created a “reasonable apprehension of [harm of a sexually violent nature.]” Id. § 229A.2(6). We, too, must focus on this question.

The State argues that Swanson’s contacts with Eiselstein were wholly inappropriate, and were alone enough to make her apprehensive of “harm of a sexually violent nature,” triggering the provisions of the Sexually Violent Predator Act. Id. The State augments this argument with the evidence of Swanson’s prior pattern of conduct, noting that any initial uncertainty about his current actions was dispelled by knowledge of his prior actions.

Swanson argues that his prior conduct is largely irrelevant because the sole focus of the inquiry must be on his state of mind and the victim’s “reasonable apprehension of [harm of a sexually violent nature.]” Id. Under this' approach, Swanson asserts that, absent any knowledge of his past history, it is improbable that any apprehension Eiselstein may have experienced included “harm of a sexually violent nature.” Id. He argues that, without additional evidence, any conclusions relating to his intentions toward Eiselstein would be mere speculation. He also asserts that Eiselstein effectively welcomed his contact when she told him that he could call her back at the end of their first conversation. He believes that each of these factors undercut any finding of actual apprehensiveness on Eiselstein’s part, making the evidence in the case insufficient to support a finding beyond a reasonable doubt that he is a sexually violent predator.

In sorting through these arguments, we first observe that the Sexually Violent Predator Act includes an explicit statement of legislative findings. Id. § 229A.1. These findings reveal the legislature’s intent in creating the act: to ensure public safety and to provide “treatment of the committed individual rather than punishment.” In re Detention of Garren, 620 N.W.2d 275, 280 (Iowa 2000). This legislative intent guides our resolution of the issues presented. See Gardin, 661 N.W.2d at 197. It also leads us to conclude that the district court was correct in determining Swanson had committed a recent overt act that created a “reasonable apprehension of [harm of a sexually violent nature.]” Iowa Code § 229A.2(6).

Both the public safety and treatment considerations behind the act indicate that the general purpose of the statute is preventative. By its creation, the legislature sought to protect the public from a “small but extremely dangerous group of sexually violent predators” by “addressing] the risk these sexually violent predators pose to society.” Id. § 229A.1. This protection is to be achieved by civil commitment “for the long term care and treatment of the sexually violent predator.” Id. In light of the goals and purpose of the statute, we do not believe our legislature sought to establish a standard that requires the victim of the overt act to subjectively experience apprehension of harm of a sexually violent nature. Such a standard would not advance the goals of the statute and would be inconsistent with the statutory language.

When a person is not already confined, the statute takes the approach that the person subject to the proceedings must have committed a recent act that “caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.” Id.. § 229A.2(6). This language does not address the subjective apprehension of a potential victim alone, but targets an objective assessment based on all the surrounding circumstances. Without putting the act of a person in context, the purpose of the statute would not be served because it would fail to protect unsuspecting victims. Consequently, the public as a whole would not be protected. Instead, the subjective reaction of a victim to the acts of an alleged sexually violent predator is only a consideration. We now turn to the evidence by first considering the acts Swanson directed towards Eiselstein.

Swanson argues that the acts of calling Eiselstein on the telephone and sending a letter constituted innocent discourse, and he did not express or harbor any sexually violent conduct. Yet, placed in context, the acts engaged in by Swanson clearly created a “reasonable apprehension of [harm of a sexually violent nature]” to a reasonable person. Id. The circumstances known to Eiselstein — that a virtual stranger, much older than her and who had recently been released from prison, was contacting her, asking whether she wanted to be “Mends” and to move in together in her one-bedroom apartment— were clearly enough to justify concerns for her safety. Yet, Swanson’s prior conduct, which may have been unknown to Eisel-stein but was known to the State, supported a reasonable apprehension that Swanson was targeting Eiselstein like he had targeted other women before her. We think the Sexually Violent Predator Act was designed to include convicted sex offenders who target victims in such a manner. Thus, the State moved forward with commitment proceedings to protect the public — particularly Eiselstein — and to force Swanson into a treatment program on the belief that he had “antisocial personality features” that made him “una-menble to existing mental illness treatment modalities” and rendered him “likely to engage in sexually violent behavior.” Id. § 229A.1. Swanson’s view of the statute would negate this protective, preemptive effect of the act, ignore its purpose, and render it impractical. We refuse to accept his approach.

IV. Conclusion.

We agree with the district court’s conclusion that Swanson’s menacing conduct toward Eiselstein created a “reasonable apprehension of [harm of a sexually violent nature].” Id. § 229A.2(6). Swanson committed a recent overt act that — together with other factors found by the jury and unchallenged on appeal — showed beyond a reasonable doubt that he was a sexually violent predator who should be civilly confined for treatment. See id. § 229A.7(3). We affirm the district court’s judgment and order confining him for that treatment.

AFFIRMED.

      . The record contains no indication that Ei-selstein was aware of Swanson’s prior criminal history or pattern of conduct related to his sexually violent offenses.

      . One of Swanson’s victims later described one of these encounters in her testimony at his trial for her assault:
      Q. Did you speak to either one of those individuals [at the laundry]? A. Yes, sir. One of them came over. I was crocheting waiting for my things to get done, and he commented that the colors were nice, and we talked about my crocheting.... He asked me where I was going, what I was going to do after I got done with my clothes. And I told him that I had planned to watch the television show Battle Star [sic] Galactipa, that I wasn't sure if I would see it-And my clothes finished-up and he said, well, what are you going, you know, what are you going to do now? I realize you don't know me, but I have a color TV. If you want, like to come up to my apartment and watch the show there, he said, you know, there is no strings, no obligations. I don't want you to think I am hitting on you or anything but if you would like to.
      Q. Did you — what did you say or do at that point? A. I said, yeah, I would like to. I asked him what his name was and he said Bob. I packed up my clothes and followed him with my car. He drove his car and I drove mine to his apartment.
      Swanson later raped his victim at the apartment.

      . The decision to utilize this bifurcated procedure was not challenged on appeal. We do not address the propriety of this procedure.

      . Both parties presented arguments on the issue of whether the finding of a recent overt act was mandated by constitutional due process guarantees. Ultimately, the district court considered the nature of Swanson's actions and accorded him the process provided for by Iowa Code chapter 229k. See , Iowa Code §§ 229A.1-.16 (2001). As part of that analysis, the court also considered whether a recent overt act had transpired. Although we reserve for another day any other questions that might arise related to due process and chapter 229A, we,conclude that the district court's determination that Swanson had committed a recent overt act makes it unnecessary for us to further- consider any due process ramifications in this appeal.

      . As the State points out, the legislature recently amended the Sexually Violent Predator Act, adding findings relevant to its intent. See 2002 Iowa Acts ch. 1139, § 1 (effective April 30, 2002). Of course, " 'statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered.’ " Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (citation omitted). The new findings postdate the district court’s judgment and order of confinement in Swanson's case, which was entered on March 5, 2002. Thus, while we note the statute’s amendment, we do not rely on it in reaching our conclusions in this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. TROBAUGH, Appellant, v. Patrick A. SONDAG, In His Capacity as Former State Employee Assistant Public Defender, Appellee.
    No. 02-0549.
    Supreme Court of Iowa.
    Sept. 4, 2003.

      Martha M. McMinn, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Craig Kelinson, Assistant Attorney General, for appellee.
   CADY, Justice.

In this appeal, we consider when a plaintiff’s claim accrues for purposes of the statute of limitations of the Iowa Tort Claims Act in a suit for legal malpractice arising from alleged negligence in the representation of the plaintiff while he was a criminal defendant. Underlying this issue is the determination of whether a plaintiffs malpractice claim accrues only after he has achieved relief from the conviction allegedly resulting from the negligent representation. Ultimately, we conclude that the appellant’s claim accrued at the time he successfully achieved postconviction relief. For this reason, his claim was filed in a timely manner, contrary to the determination of the district court. Because we also reject the appellee’s argument that the appellant’s claim is the functional equivalent of claims barred by the Tort Claims Act, we reverse the decision of the district court and remand this case for further proceedings.

I. Background Facts and Proceedings.

In January 1989, Charles A. Trobaugh (Trobaugh) was charged in Pottawattamie County with assault with intent to inflict serious injury, assault with a dangerous weapon, and possession of a firearm by a felon. Assistant County Attorney Patrick A. Sondag (Sondag) signed the initial complaints filed against Trobaugh. Subsequent to signing the complaints, Sondag took a position as an Assistant Public Defender in the same county. He then became Trobaugh’s defense attorney in the same case in which he had signed the initial complaints. Whether Sondag informed Trobaugh of his prior employment as a county attorney and his role in initiating Trobaugh’s prosecution remains at the core of this controversy. Nevertheless, Trobaugh eventually accepted a plea agreement and pled guilty to the charges of displaying a dangerous weapon and possession of a firearm by a felon. He was then incarcerated for eleven months.

Six years later, Trobaugh again faced criminal charges, this time for a federal drug offense for which he was later convicted. Apparently because his 1989 conviction resulted in an enhancement of his federal sentence, Trobaugh began to reexamine the circumstances of his prior state court conviction. In June 1997, his new attorney discovered that Sondag had both signed the initial complaint against Tro-baugh in 1989 and represented him in his defense against the same charges.

Trobaugh immediately raised Sondag’s potential conflict of interest as a ground for relief in a pending postconviction action. This action was dismissed as time barred. A second postconviction relief action followed but was later withdrawn. He then filed a federal court action against Sondag and others alleging, among other things, conspiracy to bring about his 1989 conviction. This claim was dismissed on a motion for summary judgment. Finally, in June 2000, Trobaugh filed a third application for postconviction relief. This application was successful and he was granted a new trial in November 2000. On remand, he pled guilty to the charge of possession of a firearm by a felon while his other two related Pottawattamie County charges were dismissed.

In late November 2000, Trobaugh filed a claim for monetary damages with the State Appeal Board pursuant to the Iowa Tort Claims Act, alleging the representation by Sondag, a state employee, was tainted by legal malpractice. Shortly after the board denied his claim in April 2001, Trobaugh filed a civil claim in the district court. Sondag moved to dismiss the claim on a number of grounds, two of which he renews on appeal: (1) Trobaugh’s tort claim is barred by the two-year statute of limitations of Iowa Code section 669.13 (2001); and (2) his claim is the functional equivalent of claims barred by the Tort Claims Act. The district court granted Sondag’s motion to dismiss, concluding Trobaugh’s claims were untimely because they had accrued in June 1997 when he first discovered the potential conflict of interest. Trobaugh appeals from the court’s grant of Sondag’s motion.

II. Standards of Review.

“A motion to dismiss is properly granted only if a plaintiffs petition ‘on its face shows no right of recovery under any state of facts.’ ” Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (citation omitted). Our review of the district court’s ruling on Sondag’s motion is limited to the correction of errors at law. Id. We are bound by the district court’s findings of fact “unless not supported by substantial evidence.” McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). However, “[w]e are not bound by the district court’s application of legal principles or its conclusions of law.” Id. Ultimately, “our decision to overrule or sustain a motion to dismiss must rest on legal grounds.” Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994).

This case arises, of course, under the Iowa Tort Claims Act. See Iowa Code §§ 669.1-.24. Pursuant to the act, private citizens may sue the State for the actions of a state employee “ ‘but only in the manner and to the extent to which consent has been given by the legislature.’ ” Drahaus v. State, 584 N.W.2d 270, 272 (Iowa 1998) (quoting Swanger v. State, 445 N.W.2d 344, 346 (Iowa 1989)). Accordingly, we have acknowledged, “a private citizen’s right of suit under the Tort Claims Act is not absolute, but rather is limited by the conditions set forth by the legislature in chapter 669.” Id. This reality warrants respect for the statutory parameters marked-out by the legislature in creating the act. Nevertheless, in areas in which the act is silent or unclear, we are called upon to interpret its provisions. See Callahan v. State, 464 N.W.2d 268, 270 (Iowa 1990). We approach this task carefully, with the delimited parameters and remedial purpose of the statute in mind. See Sanford v. Mantemach, 601 N.W.2d 360, 370 (Iowa 1999); Callahan, 464 N.W.2d at 272.

III. Relief After Conviction and the Discovery Rule.

The resolution of this appeal requires us to focus on the point in time at which Trobaugh’s claim of legal malpractice was or should have been “discovered.” This approach is warranted because “a negligence claim against the State for personal injuries caused by a State employee” calls for the application of the statute of limitations provision of Iowa Code section 669.13. Vachon v. State, 514 N.W.2d 442, 444 (Iowa 1994). Importantly, we have previously interpreted section 669.13 as encompassing the “discovery rule,” under which “a cause of action based on negligence does not accrue until a plaintiff discovers the injury or by the exercise of reasonable diligence should have discovered it.” Id. at 445; see also Millwright v. Romer, 322 N.W.2d 30, 33 (Iowa 1982) (“The [discovery] rule applies in legal malpractice cases.”).

Trobaugh argues that his claim accrued under the discovery rule on November 9, 2000, the date on which the court in his third postconviction relief action concluded that he was entitled to a new trial. Therefore, because his initial State Appeal Board claim was filed in late November 2000 and his petition in the district court was filed within six months of the board’s disposition, his claim was made well within the statute of limitations for tort claims against a state employee. See Iowa Code §§ 669.5, .13. He supports this conclusion by way of analogy to conviction-related cases arising under 28 U.S.C. § 1983 and cases alleging malicious prosecution. In both types of cases, courts have determined that viable causes of action cannot be maintained in the absence of relief from the underlying conviction and thus a claim does not accrue until such relief is granted. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383, 394 (1994); Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 400 (Iowa 1998).

Sondag counters these arguments by asserting that Trobaugh discovered the alleged malpractice in June 1997 when his new attorney uncovered Sondag’s connection to both facets of the 1989 criminal case. Thus, he argues, the cause of action had accrued and the statute of limitations began to run at that point, making Tro-baugh’s later malpractice claim untimely. Sondag also refutes the applicability of cases arising in the section 1983 and malicious prosecution contexts, noting that those cases did not involve the interpretation of the Iowa Tort Claims Act as this case does.

We agree with Sondag that Trobaugh’s analogy to section 1983 and malicious prosecution cases is largely ineffective in light of the specific context in which this case arises. Both segments of claims may involve issues that overlap with a legal malpractice action under the Tort Claims Act, but the variance between the different statutory and common law claims in each of the three categories justify caution against resolving this issue by relying on section 1983 and malicious prosecution precedents. Moreover, there is a significant amount of precedent in the legal malpractice area itself that addresses claims similar to ■ those raised by Trobaugh. Thus, we turn to this body of law to guide our resolution of his appeal. .

Ultimately, our resolution hinges on whether a claim for legal malpractice in the criminal case context can be discovered prior to the plaintiff receiving relief from the conviction that allegedly resulted from negligent representation. This issue has arisen in similar forms in a number of cases in other jurisdictions. Not surprisingly, the courts facing this issue have produced a divergence of opinion on the proper approach to take.

Many courts have concluded that some form of relief from a conviction is necessary before a criminal defendant can successfully bring a civil lawsuit for legal malpractice against a former attorney. See Canaan v. Bartee, 72 P.3d 911, 915-16 (Kan.2003) (collecting cases); Berringer v. Steele, 133 Md.App. 442, 758 A.2d 574, 591-92 (2000) (same); Gibson v. Trant, 58 S.W.3d 103, 108-09 (Tenn.2001) (same). In fact, some of these courts go so far as to require a criminal defendant to prove his innocence in the course of his civil case before being allowed to recover. See Canaan, 72 P.3d at 916 (collecting cases); Berringer, 758 A.2d at 592 (same); Gibson, 58 S.W.3d at 109 (same). Under this required-relief approach, a civil claim for legal malpractice is typically considered discovered and begins to accrue at the time relief from a conviction is granted. See Shaw v. State, Dep’t of Admin., Pub. Defender Agency, 816 P.2d 1358, 1362 (Alaska 1991); Steele v. Kehoe, 747 So.2d 931, .933 (Fla.1999); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 566 (1993); Adkins v. Dixon, 253 Va. 275, 482 S.E.2d 797, 801 (1997). But see Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal. Rptr.2d 471, 25 P.3d 670, 679-80 (2001) (concluding that relief from a conviction must be achieved before a successful legal malpractice claim, but the malpractice claim accrues even in the absence of such relief). A court taking this approach to the issue generally grounds its conclusions on one of a number of policy-based considerations, including:

equitable principles against shifting responsibility for the consequences of the criminal’s action; the paradoxical difficulties of awarding damages to a guilty person; theoretical and practical difficulties of proving causation; the potential undermining of the postconviction process if a legal malpractice action overrules the judgments entered in the postconviction proceedings; preserving judicial economy by avoiding relitigation of settled matters; creation of a bright line rule determining when the statute of limitations runs on the malpractice action; availability of alternative post-conviction remedies; and the chilling effect on thorough defense lawyering.

Canaan, 72 P.3d at 916.

Of course, a number of courts have concluded that a defendant need not achieve relief from a conviction before bringing a claim for legal malpractice. See id. at 918 (collecting cases); Gibson, 58 S.W.3d at 109 (same). The upshot of this no-relief-required approach is that a claim for legal malpractice is found to accrue before relief from a conviction is achieved, often upon the discovery of the facts related to the attorney’s negligent conduct. See Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 907 (1994); Jepson v. Stubbs, 555 S.W.2d 307, 312 (Mo.1977); Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505, 511 (1995); Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 868 (Ct.App.1997). Some proponents of this approach assert that requiring relief from a conviction forces a court to entertain an untenable legal fiction:

“[Piersons convicted of a crime will be astonished to learn that, even if their lawyers’ negligence resulted in their being wrongly convicted and imprisoned, they were not harmed when they were wrongly convicted and imprisoned but, rather, that they are harmed only if and when they are exonerated.”

Gebhardt, 510 N.W.2d at 906 n. 13 (citation omitted); see also Duncan, 936 P.2d at 867-68. Other courts have concluded that the no-relief-required approach is simply the most effective choice because it permits respect for the policies behind statutes of limitations while also preserving the role of remedies allowing relief from a conviction, particularly as a consideration for a legal malpractice claim. See Fantazia v. County of Stanislaus, 41 Cal. App.4th 1444, 49 Cal.Rptr.2d 177, 182-84 (1996); Silvers v. Brodeur, 682 N.E.2d 811, 817-18 (Ind.Ct.App.1997); Gebhardt, 510 N.W.2d at 906-07; Duncan, 936 P.2d at 868; Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058, 1062 (1989).

Upon considering all of the issues presented and the wealth of commentary on this issue by other courts, we conclude that the approach that requires a defendant to achieve relief from a conviction before advancing a legal malpractice action against his former attorney is superior in this particular area of the law. In reaching this conclusion, we are persuaded by the extensive, well-reasoned policy arguments underlying the relief-required approach. See Canaan, 72 P.3d at 916. Most importantly, we believe this approach best preserves key principles of judicial economy and comity, including the avoidance of multiple proceedings related to the same factual and procedural issues, respect for other statutorily created processes such as postconviction relief, and the prevention of potentially wasteful practices such as requiring a plaintiff to file a legal malpractice claim which may never come to fruition due to one of a number of factors. See id.

We thus also conclude that a claim for legal malpractice in the criminal case context is not discovered and does not accrue until relief from a . conviction is achieved. Admittedly, this conclusion may pose difficulties for parties in that claims may rest uncontested for numerous years before accruing in the aftermath of successful relief from a conviction. See Harrington v. Toshiba Mach. Co., 562 N.W.2d 190, 192 (Iowa 1997) (citation omitted) (describing the policy considerations underlying statutes of limitations); see also Schulte v. Wageman, 465 N.W.2d 285, 286-87 (Iowa 1991) (same). Nevertheless, the very nature of many actions for relief from a conviction requires the consideration of late-discovered grounds for such relief. Despite the potential age of such claims, actions for relief are a functioning part of the criminal system, and we believe related actions may similarly operate in the civil context. In addition, the previously mentioned principles of economy and comity, as well as the advantage of having a clear demarcation of the point in time when the claim accrues, outweigh the potential hazards of arguably stale claims.

Ultimately, the application of our conclusions on these issues to Trobaugh’s claim leads us to conclude that his claim accrued upon the district court’s granting of his third postconviction relief petition on November 9, 2000. For this reason, both his State Appeal Board and civil filings were timely, contrary to the conclusion of the district court. Our determination that his claim was timely makes it necessary to consider Sondag’s alternative defense that Trobaugh’s claim is the functional equivalent of claims barred by the Tort Claims Act. We turn now to our consideration of this argument.

IY. Functional Equivalency.

As noted previously, a citizen’s right to sue a state employee under the Iowa Tort Claims Act “is limited by conditions set forth by the legislature in chapter 669.” Drahaus, 584 N.W.2d at 272. These limitations are most clearly manifested in the specific exceptions to the act, which describe the categories of claims for which the State has not waived its sovereign immunity. See Iowa Code § 669.14. Of particular importance here is the exception for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” Id. § 669.14(4). In Greene v. Friend of Court, Polk County, we recognized that this section “identifies excluded claims in terms of the type of wrong inflicted.” 406 N.W.2d 433, 436 (Iowa 1987); see also Hawkeye By-Prods., Inc. v. State, 419 N.W.2d 410, 411 (Iowa 1988). Thus, where “[t]he gravamen of plaintiffs claim ... is the functional equivalent” of the causes of action listed in Iowa Code-section 669.14(4), the claim cannot be pursued successfully against the State. Greene, 406 N.W.2d at 436; see also Hawkeye By-Prods., Inc., 419 N.W.2d at 411-12.

In his arguments before the district court, Sondag claimed that Tro-baugh’s claim for legal malpractice was the functional equivalent of claims for false imprisonment, abuse of process, and malicious prosecution, each of which are barred by Iowa Code section 669.14(4). Because the district court accepted his argument related to the timeliness of Trobaugh’s claim, it did not address this alternative defense. Nevertheless, Sondag is entitled to have this claim considered on appeal. See Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999). However, we conclude that his claim is unavailing.

Trobaugh’s claim for legal malpractice is premised on Sondag’s alleged failure to render effective assistance of counsel as exhibited by his neglecting to inform Tro-baugh of his prior employment as a county attorney and somehow inducing him to plead guilty to two of his 1989 charges. Although it is conceivable that certain facets of Trobaugh’s malpractice claim would be relevant to claims for false imprisonment, abuse of process, or malicious prosecution, his claim is focused upon the information actually provided by Sondag and the nature of their attorney-client relationship. A mere conceivable similarity between issues arising in the claim for legal malpractice and issues which may arise in a claim for false imprisonment, abuse of process, or malicious prosecution is insufficient to establish the nexus of functional equivalency. We believe the acceptance of Sondag’s argument that the gravamen of Trobaugh’s claim is the functional equivalent of the three enumerated torts would misinterpret the malpractice claim and stretch the functional equivalency principle too far. Thus, we reject Sondag’s claim that Trobaugh’s legal malpractice action is barred under an exception to the Tort Claims Act as the functional equivalent of causes of action for false imprisonment, abuse of process, or malicious prosecution.

V. Conclusion.

We reverse the district court’s grant of Sondag’s motion to dismiss and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . In a typical legal malpractice cause of action, the establishment of a prima facie claim requires the production of
      substantial evidence that shows: (1) the existence of an attorney-client relationship giving rise to a duty, (2) the attorney, either by an act or failure to act, violated or breached that duty, (3) the attorney’s breach of duty proximately caused injury to the client, and (4) the client sustained actual injury, loss, or damage.

        Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996). If the plaintiff fails to prove any of these elements, he cannot recover. Id. Ultimately, the posture of this appeal minimizes the importance of these elements in resolving Trobaugh’s claim.

      . Sondag also intimates that Trobaugh had sufficient knowledge to have "discovered” his legal malpractice claim in 1989, sometime during the course of Sondag's representation. Although there may be support for an approach marking the accrual of a claim at the point in time at which the alleged negligent representation occurs or ceases, Sondag does little to advance this argument. See Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 904-05 (1994); Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 115-16 (1993). Moreover, we believe this case is properly resolved by looking at the events of June 1997 and after and focus on this period, as the parties do primarily.

      . Although Trobaugh’s specific claim has arisen in the context of a postconviction relief action, it is conceivable that similar claims could arise in other contexts in which it is possible to achieve relief from a conviction. See Berringer v. Steele, 133 Md.App. 442, 758 A.2d 574, 590 n, 9 (2000) (noting the "various legal proceedings that occur subsequent to trial, including appeals [and] habeas corpus”); Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670, 676 (2001).

      . Both the procedural posture of this appeal and the absence of arguments by the parties on the issue lead us to avoid the question of what role, if any, the plaintiff's guilt or innocence plays in advancing a claim for legal malpractice.

      . Some courts — under both approaches— have imposed a “two track” procedure for legal malpractice claims arising in the criminal context. See Coscia, 108 Cal.Rptr.2d 471, 25 P.3d at 680; Silvers v. Brodeur, 682 N.E.2d 811, 818-19 n. 4 (Ind.Ct.App.1997); Berringer, 758 A.2d at 604; Gebhardt, 510 N.W.2d at 907; Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505, 511 (1995); Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 868-69 (1997). These courts require a plaintiff to file both an action for relief from a conviction and a civil lawsuit in a timely fashion and then, if necessary, seek the equitable powers of the court to stay the civil action while the relief action proceeds. See Coscia, 108 Cal.Rptr.2d 471, 25 P.3d at 680; Silvers, 682 N.E.2d at 818-19 n. 4; Berringer, 758 A.2d at 604; Gebhardt, 510 N.W.2d at 907; Seevers, 537 N.W.2d at 511; Duncan, 936 P.2d at 868-69. Other courts have observed that the achievement of relief from a conviction should simply be a factor in the analysis of causation and damages when establishing a legal malpractice claim. See Brewer v. Hagemann, 771 A.2d 1030, 1033-34 (Me.2001); Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058, 1062 (1989); Gibson v. Trant, 58 S.W.3d 103, 111-12 (Tenn.2001); see also Schlumm v. Terrence J. O’Hagan, P.C., 173 Mich.App. 345, 433 N.W.2d 839, 847 (1988). Although these approaches present certain advantages, we believe both are inefficient methods for allowing the pursuit of a malpractice claim, especially in light of the conclusiveness of our chosen method requiring relief from a conviction before the advancement of the civil claim.

      . In this case, the State did not appeal the district court’s determination that Trobaugh was entitled to postconviction relief. Thus, he was able to advance his civil claim assured that he had, in fact, achieved relief from his conviction. We do not decide today what effect an appeal from a court’s grant of relief would have on the accrual of a malpractice claim. See Silvers, 682 N.E.2d at 818.


author: CADY, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Brett Preston DULLARD, Appellant.
    No. 02-0356.
    Supreme Court of Iowa.
    Sept. 4, 2003.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
   CADY, Justice.

The principal questions presented in this appeal are whether the district court erred in admitting a note written by an unknown person as evidence in a trial involving the crime of possession with intent to manufacture a controlled substance and whether substantial evidence supported the conviction. On our review, we vacate the decision of the court of appeals and reverse the judgment and sentence of the district court. We remand the case for a new trial.

I. Background Facts and Proceedings.

Police officers from the city of Des Moines police department went to a home in a residential neighborhood of Des Moines in response to a report of a methamphetamine lab located at the house. The officers knocked on the front door of the house, and Brett Dullard eventually opened the door. The officers believed Dullard lived in the home with his mother. Dullard’s mother arrived at the home a short time later, and gave permission for the officers to search the residence, as well as a detached garage.

The search of the home revealed a plastic baggy containing a white powder substance. The baggy was located in the ceiling of a downstairs bedroom. The police also found a scanner capable of monitoring police communications. The white substance later tested negative for a controlled substance, but was suitable for use as a cutting agent for pure methamphetamine.

The search of the garage revealed potential methamphetamine precursors and numerous materials commonly used to manufacture methamphetamine, including six cans of starting fluid, a sack containing a white granular substance, two metal cylinders with brass fittings, a one-gallon glass jar, plastic pitchers, a container of acetone, a container of Coleman camping fluid, and three unopened boxes of Benadryl. The brass fittings on the metal cylinders were corroded with a blue substance, indicating the cylinders once contained anhydrous ammonia.

The police also found a small spiral notebook in a wooden desk located in the garage. It contained a handwritten note from an unidentified person. The note read as follows:

B—
I had to go inside to pee + calm my nerves somewhat down.
When I came out to go get Brian I looked over to the street North of here + there sat a black + white w/the dude out of his car facing our own direction— no one else was with him

The police also seized various items from a car parked in the driveway of the home. The police believed the car belonged to a female friend of Dullard’s. The items seized included an air tank sprayer and some steel and brass flexible hoses with fittings.

Dullard was charged with possession of ephedrine or pseudoephedrine with intent to use it as a precursor and with possession of ether with the intent to use it as a precursor. At trial, the State, among other evidence, introduced some of the items seized during the search. The police officers also explained how methamphetamine is manufactured from Benadryl and how the items seized can be assembled and used to manufacture methamphetamine. There was also testimony that each tablet of Benadryl contained thirty milligrams of pseudoephedrine.

The handwritten note was also introduced into evidence over Dullard’s hearsay objection. The State argued the note was not offered to prove the truth of the matters it asserted but to connect Dullard to the items in the garage used to manufacture methamphetamine and the Benadryl. The State argued the note was written to Dullard based on the first letter of his first name.

The jury found Dullard guilty of possession of ephedrine or pseudoephedrine with intent to use it as a precursor and acquitted him of the possession of ether charge. The district court sentenced him as a second offender to a term of incarceration not to exceed eight years.

Dullard appealed and claimed error on three grounds. First, he claimed the district court admitted the handwritten note into evidence in violation of the rule against hearsay. Second, he claimed there was insufficient evidence to connect him to the Benadryl in the garage or the other items found in the garage. Third, he claimed his trial counsel was ineffective.

We transferred the case to the court of appeals. The court of appeals reversed the conviction after concluding the trial court erred in admitting the handwritten note into evidence and after finding the remaining evidence presented by the State was insufficient to show Dullard possessed the Benadryl tablets. We granted further review.

II. Standard of Review.

We typically review rulings on the admission of evidence for an abuse of discretion. State v. Jordan, 663 N.W.2d 877, 879 (Iowa 2008). “Except in cases of hearsay rulings, trial courts have discretion to admit evidence under a rule of evidence.” Id. Hearsay, however, must be excluded as evidence at trial unless admitted as an exception or exclusion under the hearsay rule or some other provision. See Iowa R. Evid. 5.802. This means a district court has no discretion to deny the admission of hearsay if the statement falls within an enumerated exception, subject, of course, to the rule of relevance under rule 5.403, and has no discretion to admit hearsay in the absence of a provision providing for it. Similarly, the question whether a particular statement constitutes hearsay presents a legal issue. See United States v. McGlory, 968 F.2d 309, 332 (3d Cir. 1992). Thus, it is within this framework that we review hearsay rulings for correction of errors at law. See State v. Boss, 573 N.W.2d 906, 910 (Iowa 1998). Hearsay inadmissible under the rule is considered to be prejudicial to the nonoffering party unless otherwise established. Id.

Likewise, we review challenges to the sufficiency of evidence for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

III. Hearsay.

Hearsay “is a statement, other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted.” Iowa R. Evid. 5.801(c). Hearsay is not admissible unless it is exempt from the rule or falls within one of the exceptions. See id. 5.802.

Before considering the exemptions and exceptions to the rule against hearsay, an inquiry must first be made to determine if the evidence under consideration is “a statement ... offered in evidence to prove the truth of the matter asserted.” Id. 5.801(c). If not, it is not hearsay and is excluded from the rule by definition. 2 John W. Strong, et al., McCormick on Evidence § 249, at 100 (5th ed.1999). Thus, a declaration is excluded from the definition of hearsay when it is not a statement or is not offered to prove the truth of the matter asserted. See 4 Clifford S. Fishman, Jones on Evidence § 24:10, at 218 (7th ed.1992) [hereinafter Jones] (“categorizing a person’s words as an assertion ... does not answer the question” of whether the evidence is hearsay without also determining if “the statement is being offered to prove the truth of the matter asserted”).

A statement is defined under our rules of evidence as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Iowa R. Evid. 5.801(a). The term assertion is not similarly defined in the Iowa or federal rules of evidence. Nevertheless, it is generally recognized to be a statement of fact or belief. 4 Jones § 24:10, at 217; see also State v. Leonard, 243 N.W.2d 887, 890 (Iowa 1976) (“[The] remark was not an assertion of fact. A nonassertive utterance is not hearsay.”).

Under the State’s argument in this case, the author of the note asserts he or she is nervous and that the police are watching the house. The State acknowledges this note constitutes a written assertion under the rule, but claims it was not hearsay because it was not offered to prove the truth of the assertion, but a different proposition inferred from the words of warning. The State maintains it was offered to show the declarant’s belief that the recipient of the note needed to be told of the events because he was involved in the drug activity in the garage and was in possession of the drug lab materials.

The court of appeals considered the note in a different light. It found the relevant assertion made in the note was not the expressed assertion that the police are watching or that the author of the note is worried and upset. Instead, it found the note contained an implied proposition by the writer that Dullard possessed the methamphetamine materials. Under this approach, the court of appeals determined the note was hearsay because it was offered to show the declarant’s belief in this implied proposition, and the declarant was not available at trial to be cross-examined about the proposition. Thus, the resolution of this issue requires us to examine the concept of implied assertions and the extent to which they constitute statements under our definition of hearsay within rule 5.801(c).

The issue we confront has been imbedded in debate and controversy throughout the development of the common law, and has continued to be debated to a large degree following the adoption of the federal rules of evidence. See United States v. Zenni, 492 F.Supp. 464, 465 (E.D.Ky.1980); 4 Jones § 24:11, at 219; Craig R. Callen, Hearsay and Informal Reasoning, 47 Vand. L.Rev. 43, 45 (1994). Despite the wealth of legal commentary and some scholarly court decisions on the subject, no clear answer or approach has emerged. See Roger C. Park, “I Didn’t Tell Them Anything About You”: Implied Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn. L.Rev. 783, 802-29 (1990) (reviewing judicial treatment of implied assertions under the federal rules of evidence). In truth, many courts have not engaged in a serious examination of the subject of implied assertions as hearsay, while those who have follow divergent paths. See Park, 74 Minn. L.Rev. at 802. Legal scholars advocate a variety of positions, with a slight preference, perhaps, to favor an approach that would include most implied assertions within the definition of hearsay, at least where the declarant intended to some degree to assert the proposition. See 4 Jones § 24:12, at 222. The United States Supreme Court has never squarely addressed the issue, but has previously endorsed the concept of implied assertions as hearsay. See id. § 24:11, at 220. The federal circuit courts of appeals are fairly evenly divided on the issue. See Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 801.10[2][c], at 801-10 to 801-12 nn. 18, 15 (Joseph M. McLaughlin ed., 2d ed.2003); Callen, 47 Vand. L.Rev. at 47-48 n. 18.

The implied assertion issue arises in this ease because the words written by the out-of-court declarant are not offered to prove the truth of the words. In fact, the words themselves have no real relevance to the case. Instead, the handwritten note is offered solely to show the declarant’s belief, implied from the words and the message conveyed, in a fact the State seeks to prove — Dullard’s knowledge and possession of drug lab materials. Thus, the question is whether this implied belief of the declarant is a statement under our definition of hearsay under rule of evidence 5.801(c).

The starting point for the common law approach to implied assertions inevitably begins with the celebrated and durable case of Wright v. Tatham, 112 Eng. Rep. 488 (Ex. Ch. 1887). The case involved an action to set aside a will based on the incompetency of the testator. Id. at 489. At trial, the proponents of the will offered several letters written to the testator by various individuals concerning a variety of business and social subjects. Id. at 489-92. The purpose of the letters was to show the absent declarants must have believed the testator was able to engage in intelligent discourse on the various topics discussed in the letters. Id. at 515. This belief, therefore, constituted evidence of the testator’s competency.

In the course of holding that the statements contained in the letters were hearsay, the court in Wright, through the scholarship of Baron Parke’s opinion, utilized the now-famous example of a sea captain, who, after carefully inspecting his ship, embarked on an ocean voyage with his family, an action offered as proof of the seaworthiness of the ship. See id. at 516. Baron Parke used the illustration to show that such nonverbal conduct would nevertheless constitute hearsay because its value as evidence depended on the belief of the actor. See id. at 516-17. This illustration was important in the court’s analysis because the main problem sought to be avoided by the rule against hearsay — an inability to cross-examine the declarant— is the same whether or not the assertion is implied from a verbal statement or implied from nonverbal conduct. Thus, assertions that are relevant only as implying a statement or opinion of the absent declarant on the matter at issue constitute hearsay in the same way the actual statement or opinion of the absent declarant would be inadmissible hearsay.

This approach became the prevailing common law view, but did not escape criticism and debate over the years from legal scholars and some courts. Two central arguments surfaced to support a competing approach that advocated a separation between implied assertions and expressed assertions so that implied assertions would be removed from the rule against hearsay. One legal scholar summarized these arguments:

First, when a person acts in a way consistent with a belief but without intending by his act to communicate that belief, one of the principal reasons for the hearsay rule — to exclude declarations whose veracity cannot be tested by cross-examination — does not apply, because the declarant’s sincerity is not then involved. In the second place, the underlying belief is in some cases self-verifying:
There is frequently a guarantee of the trustworthiness of the inference to be drawn ... because the actor has based his actions on the correctness of his belief, i.e., his actions speak louder than words.

4 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 801(a)[01], at 801-61 to 801-62 (1st ed.1990) (citation omitted); see also Edmund M. Morgan, Hearsay, 25 Miss. L.J. 1, 8 (1953); Judson F. Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mnt. L.Rev. 133,136 (1961).

Once the proposition is accepted that the lack of intent to assert frees conduct from the hearsay rule, the opponents of the common law rule concluded that an unintended implication of a verbal assertion should similarly fall outside the hearsay rule. As with conduct, the opponents argue, the lack of intent to assert an implied assertion from speech also makes unintended implied assertions much less vulnerable than expressed assertions to the problem sought to be avoided by the hearsay rule. In particular, the opponents point out that there is a reduced risk of mendacity in implied assertions when the declarant has no real intention of asserting a fact sought to be proved. See Falknor, 33 Rocky Mnt. L.Rev. at 136. Consequently, the critics of the common law approach claim implied assertions should not be treated as express assertions because of lack of opportunity for cross-examination to test the veracity of the implied assertion would have no significant impact. Id.

Federal rule of evidence 801(a) appears to support the departure from the common law, evidenced more by the advisory committee note accompanying the rule than the language of the rule itself. See David E. Seidelson, Implied Assertions and Federal Rule of Evidence 801: A Continuing Quandary for Federal Courts, 16 Miss. C.L.Rev. 33, 33-34 (1995). Although the rule does not expressly address the subject of implied assertions, the advisory committee note states:

The definition of “statement” assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of “statement.” Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See [Edmund M.] Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L.Rev. 177, 214, 217 (1948), and the elaboration in [Ted] Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan. L.Rev. 682 (1962). Admittedly, evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. [Judson FJ Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky [Mnt.] L.Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).

Fed.R.Evid. 801(a) advisory committee note.

The thrust of the advisory committee note is that the same considerations that justify the specific exclusion of nonverbal conduct not intended as an assertion from the definition of a statement under rule 801(a) — the minimal dangers resulting from the inability to cross-examine the declarant — support, by analogy, the similar exclusion of nonassertive verbal conduct, as well as assertive verbal conduct offered as a basis for inferring something other than the asserted matter.

We have not previously undertaken a detailed analysis of this issue although we have determined that implicit assertions contained within verbal declarations constitute hearsay. See State v. Rawlings, 402 N.W.2d 406, 408-09 (Iowa 1987). Thus, foundational facts that must be assumed for the declaration to make sense are considered matters the declarant necessarily intended to assert. See id. We have not otherwise determined whether an assertive declaration offered as a basis for inferring something other than the matter asserted is hearsay under rule 5.801(a).

Generally, a position taken by the advisory committee on federal rules is persuasive authority for determining the meaning of our Iowa rules of evidence. See 7 James A. Adams & Joseph P. Weeg, Iowa Practice (Evidence) § 102.1, at 6 (2002-03) [hereinafter Adams & Weeg]. This is because the federal definition of hearsay and the defined terms within the definition are nearly identical to the corresponding Iowa rules. Thus, in the same manner, we typically follow federal decisions interpreting rules closely aligned to the Iowa rules and we look for guidance to the United States Supreme Court advisory committees’ notes. See State v. Hackney, 397 N.W.2d 723, 727-28 (Iowa 1986); see also Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 702, 130 L.Ed.2d 574, 584 (1995) (notes are a “useful guide in ascertaining the meaning of the Rules”); Adams & Weeg § 102.1, at 6.

On the other hand, the persuasiveness of the committee notes on implied assertions is undermined by the clear split of authority among the federal circuit courts, as well as many legal scholars. See 4 Jones § 24.12, at 223. The criticism of the advisory committee notes is capsulized by one leading scholar as follows:

The Advisory Committee’s apparent attempted rejection of Wright v. Doe d. Tatham is as unfortunate as it is incorrect. When a statement is offered to infer the declarant’s state of mind from which a given fact is inferred in the form of an opinion or otherwise, since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is properly classified as hearsay under the language of Rule 801(c). Since the matter asserted in the statement must be true, a reduction in the risk of sincerity is not present. The Advisory Committee’s reliance on the analogy to nonverbal nonassertive conduct where a reduction in the risk of fabrication is caused by a lack of intent to assert anything is thus clearly misconceived. It is further suggested that the fact that the practical importance of the concept (even if assumed theoretically sound) is so small in relation to the confusion in analysis the concept causes in the minds of those attempting to apply the hearsay rule argues strongly in favor of rejection of the concept that statements should be found to be non-hearsay solely on the basis of being offered for the truth of a different inference. With respect to those statements possessing sufficient guarantees of trustworthiness, resort to the residual hearsay exception of Rule 807 is clearly preferable.

3 Michael H. Graham, Handbook of Federal Evidence § 801.7, at 73-77 (5th ed.2001) (footnotes omitted).

The circumstances of this case, as well as other cases, can make it tempting to minimize hearsay dangers when a declaration is assertive .but offered as a basis for inferring a belief of the declarant that most likely was not a significant aspect of the communication process at the time the declaration was made. Absent unusual circumstances, the unknown declarant likely would not have thought about communicating the implied belief at issue, and this lack of intent arguably justifies excluding the assertion from the hearsay rule. Nevertheless, we are not convinced that the absence of intent necessarily makes the underlying belief more reliable, especially when the belief is derived from verbal conduct as opposed to nonverbal conduct.

Four dangers are generally identified to justify the exclusion of out-of-court statements under the hearsay rule: erroneous memory, faulty perception, ambiguity, and insincerity or misrepresentation. Park, 74 Minn. L.Rev. at 785-86; see also Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L.Rev. 177, 185-88 (1948). Yet, the distinction drawn between intended and unintended conduct or speech only implicates the danger of insincerity, based on the assumption that a person who lacks an intent to assert something also lacks an intent to misrepresent. The other “hearsay dangers,” however, remain viable, giving rise to the need for cross-examination. Moreover, even the danger of insincerity may continue to be present in those instances where the reliability of the direct assertion may be questioned. If the expressed assertion is insincere, such as a fabricated story, the implied assertion derived from the expressed assertion will similarly be unreliable. Implied assertions can be no more reliable than the predicate expressed assertion. Paul R. Rice, Should Unintended Implications of Speech be Considered Nonhearsay? The Assertive/Nonassertive Distinction Under Rule 801(a) of the Federal Rules of Evidence, 65 Temp. L.Rev. 529, 538 (1992).

The consequence of the committee’s approach is to admit into evidence a declar-ant’s belief in the existence of a fact the evidence is offered to prove, without cross-examination, just as if the declarant had explicitly stated the belief. Yet, if the declarant of the written note in this case had intended to declare his or her belief that Dullard had knowledge and possession of drug lab materials, the note would unquestionably constitute hearsay. Implied assertions from speech intended as communication clearly come within the definition of a statement under rule 5.801(a)(1). Unlike the committee, however, we do not believe indirect or unintentional assertions in speech are rehable enough to avoid the hearsay rule. We think the best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered. See State v. Nance, 533 N.W.2d 557, 561 (Iowa 1995).

We recognize this approach will have a tendency to make most implied assertions hearsay. See Christopher B. Mueller, Incoming Drug Calls and Performative Words: They’re Not Just Talking About It, Baron Parke!, 16 Miss. C.L.Rev. 117, 121-22 (1995). However, we view this in a favorable manner because it means the evidence will be judged for its admission at trial based on accepted exceptions or exclusions to the hearsay rule. It also establishes a better, more straightforward rule for litigants and trial courts to understand and apply. See 4 Jones § 24:12, at 225.

Additionally, we interpret legislative enactments consistent with common law principles when the language used by the legislature does not specifically negate the common law. State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999). Clearly, there is no explicit language in our definition of hearsay under rule 5.801(d) and (c), as with the federal rule, that categorizes implied assertions from oral or written words as nonhearsay. The rule only expressly excludes unintended conduct. The characterization arrived at by the committee is achieved by analogy to nonverbal conduct. Yet, the specific exclusion under the rule of nonverbal conduct as nonhear-say, in the absence of the specific exclusion of nonassertive verbal conduct or assertive verbal conduct offered to infer something other than the matter asserted from the definition of a statement, tends to indicate that the legislature may not have intended to exclude such implied assertions from the hearsay rule. See Seidelson, 16 Miss. C.L.Rev. at 52. Thus, the rule should be read to incorporate our common law approach. See 4 Jones § 24.12, at 224-25.

Lastly, we recognize our role is to interpret our rule according to the legislative intent as revealed by the language of the rule. Although the rule clearly distinguishes between intentional and unintentional conduct under rule 5.801(a )(2), that distinction is not made with oral or written assertions under rule 5.801(a )(1). Accordingly, we conclude that assertions implied from assertive speech constitute statements under rule 5.801(a).

IV. Exemption From Hearsay Rule.

Having determined the note to be hearsay, we next consider whether it would be admissible, as secondarily argued by the State, under the exemption to the hearsay rule applicable to the statements by co-conspirators pursuant to Iowa Rule of Evidence 5.801(d)(2)(E). This rule exempts certain statements from the operation of the hearsay rule, including “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy,” offered against a party. Id.

The theory for excluding admissions of party opponents, such as co-conspirator statements, from the rule against hearsay is based on the adversary system, rather than any presumed trustworthiness or the satisfaction of some other condition of the hearsay rule. Fed.R.Evid. 801(d)(2) advisory committee note. Co-conspirator statements become representative admissions between the co-conspirators when the declarant and the defendant’s participation in the conspiracy is established. State v. Tangle, 616 N.W.2d 564, 569 (Iowa 2000).

Without specifically addressing the extent to which implied assertions may apply to co-conspirator statements, we agree with our court of appeals that there was insufficient evidence of any conspiracy in this case. Proof of a conspiracy must include evidence independent of the co-conspirator’s statement. State v. Florie, 411 N.W.2d 689, 696 (Iowa 1987). In addition to the statement, “the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the content of the statement” must be considered. Fed. R.Evid. 801 advisory committee’s note, 1997 amendment. In this case, there was insufficient evidence to establish the speaker’s identity, the time and place the expressed or implied assertions were made, and any other circumstances supporting a conspiracy between the unknown declarant and Dullard.

Y. Exceptions to the Hearsay Rule.

Without elaborating in great detail, we also fail to find any other exception to the hearsay rule that would allow the note to be admitted. Although the note implies a belief or state of mind of the declarant, the declarant’s state of mind is not relevant to the case. See Iowa R. Evid. 5.803(3). Moreover, the state-of-mind exception to the hearsay rule does not apply to prove the truth of the belief expressed. Id. (exception permits “[a] statement of the declarant’s then existing state of mind” but does not include “a statement of ... belief to prove the fact ... believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”). Additionally, the implied assertion would fall outside the excited utterance exception. See id. 5.803(2). The relevant assertion in the note is in the form of an implied belief that Dullard possesses drug lab materials. Although the expression of a belief could constitute an excited utterance, there was insufficient evidence in this case to establish that the unknown declarant was competent to testify to the belief or that the event witnessed gave rise to any personal knowledge of the belief. There were simply no circumstances to adequately suggest the basis for the declarant’s belief implied from the note. We can find no other exceptions that would justify the admission of the note. Accordingly, the note was improperly admitted.

VI. Disposition.

Having found the note was erroneously admitted at trial, we next consider whether admission of the note resulted in prejudice to Dullard. In this case, the State did not argue the absence of prejudice. Thus, prejudice is presumed. See Ross, 573 N.W.2d at 910. That aside, the prejudice is apparent because the admission of the note played a pivotal role in establishing the possession element of the crime and Dullard was unable to cross-examine the declarant to overcome this prejudice. This is not a case in which there is otherwise overwhelming evidence of guilt. The error by the trial court in admitting the note into evidence supports reversal of the conviction.

In reversing the conviction, the court of appeals did not remand the case for a new trial. Normally, when error occurs at trial resulting in a reversal of a criminal conviction on appeal, double-jeopardy principles do not prohibit a retrial. Lockhart v. Nelson, 488 U.S. 38, 38, 109 S.Ct. 285, 289,102 L.Ed.2d 265, 272 (1988). An exception exists, however, when the defendant’s conviction is reversed on grounds that the evidence was insufficient to sustain the conviction. Id. at 39, 109 S.Ct. at 290, 102 L.Ed.2d at 272-73 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). Thus, when a reviewing court determines prejudicial trial error occurred in a criminal trial, the case will not be remanded for retrial when the evidence at trial was insufficient to support the conviction. See id. at 39, 109 S.Ct. at 290, 102 L.Ed.2d at 272-73; see also State v. Huss, 657 N.W.2d 447, 451-52 (Iowa 2003). Instead, it is dismissed.

The court of appeals found there was insufficient evidence to establish Dullard possessed the precursor. Yet, in making this determination, it specifically excluded any consideration of the erroneously admitted handwritten note. This was error. In determining whether retrial is permissible all the evidence admitted during the trial, including erroneously admitted evidence, must be considered. Id. at 40-42, 109 S.Ct. at 290-93, 102 L.Ed.2d at 273-75. 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. Thus, we must turn to a consideration of the sufficiency of all the evidence to determine the relief to be granted.

In addressing the sufficiency of evidence, we observe Dullard raised this issue on appeal based on the trial court’s failure to grant a judgment of. acquittal. He claimed there was insufficient evidence to show that he possessed or had knowledge of the Benadryl tablets found in the garage or had knowledge of the presence of the other drug materials in the garage.

The State was required to establish Dullard possessed a precursor with the intent to manufacture to sustain a conviction in this case. It sought to do this by showing constructive possession. We recently outlined the basic tenets of constructive possession in State v. Webb, 648 N.W.2d 72, 76-79 (Iowa 2002). See also State v. Cashen, 666 N.W.2d 566, 569-71 (Iowa 2003). Mere opportunity of access to the area where the contraband is located, without more, will not support a finding of possession. Webb, 648 N.W.2d at 77. However, possession may be inferred when contraband is found in an area that is “ ‘immediately and exclusively accessible ’ ” to the defendant and subject to his or her “‘dominion and control, or to the joint dominion and control’ ” of the defendant and another. Id. (quoting State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973)). If the defendant is in exclusive possession of the premises where the contraband is located, knowledge and control may be inferred. Id. However, when there is joint possession of the premises, knowledge and control by the defendant must be established by actual knowledge or circumstances from which a jury could infer knowledge. Id.

In this case, there was evidence Dullard resided in the house with his mother and that he was in joint possession of the premises. Yet, this evidence is insufficient to infer exclusive possession of the precursors. Thus, the handwritten note, which a jury could infer was written to Dullard, becomes a critical piece of evidence. It was located in the garage where the precursors were found, along with other evidence of manufacturing. Moreover, the State used the note as evidence that Dullard was involved in the operation of a drug lab and had knowledge and control of the drug lab materials in the garage. As used by the State, we find the implied assertions from the note, together with the other evidence at trial, constitute sufficient evidence that Dullard possessed and controlled the precursor. We find substantial evidence supported the conviction.

VII. Conclusion.

Based on our determination that Dullard is entitled to a new trial, it is unnecessary for us to address the other issues raised by Dullard on appeal. We conclude the judgment and sentence of the district court must be reversed based on the error in admitting the hearsay evidence. The case shall be remanded for a new trial.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND SENTENCE REVERSED AND CASE REMANDED FOR NEW TRIAL.

All justices concur except CARTER, J. and LAVORATO, C.J., who dissent.

CARTER, Justice

(dissenting).

I agree with the majority’s conclusion that the court of appeals applied an improper standard in considering the motion for judgment of acquittal as if the hearsay statement had not been admitted into evidence. Such motions must be determined on the basis of the evidence that has been admitted rather than the evidence that should have been admitted. I disagree, however, with the conclusion of the majority that, if the evidence presented by the State is viewed as including the challenged hearsay statement, the evidence was sufficient to support the verdict of guilt. The mysterious message to “B” is so lacking in probative value and the other evidence so inconclusive that, even if the message is considered to be a part of the record on which the sufficiency-of-evidence ruling is to be based, the motion for judgment of acquittal should have been sustained. I would reverse defendant’s conviction and remand for an entry of judgment of acquittal.

LAVORATO, C.J., joins this dissent.

      . We do not consider whether conduct or actions that may be associated with oral or written assertions could be used to support the admission of unintentional implied assertions under Iowa Rule of Evidence 5.801(a)(2).

      . Rule 5.801(d)(2) does not distinguish between express statements and implied statements. See 4 Jack B. Weinstein et al., Wein-stein’s Evidence ¶ 801(d)(2)(A)[01], at 801-239 (1st ed. 1990).


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Donald J. BEDARD, Appellant.
    No. 01-0956.
    Supreme Court of Iowa.
    Sept. 4, 2003.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Thomas A. DeSio, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Donald Bedard, appeals from a conviction for assaulting a peace officer in violation of Iowa Code sections 708.1(1) and 708.3A(4) (2001). He contends that he acted with justification. The court of appeals reversed his conviction, concluding that the officer who was the subject of the assault lacked legal cause to forcibly detain him and that defendant was justified in resisting. Upon reviewing the record and considering the arguments presented, we vacate the judgment of the court of appeals and affirm the district court’s judgment.

On February 23, 2001, the Urbandale Police Department received a report that an intoxicated male was starting fights at a bar in Urbandale. Officer Vestal, who was in uniform, responded to the call. He contacted the dispatcher to obtain a description of the individual and observed a male matching that description entering a Hy Vee store. The officer entered the store and approached the subject. The subject, who was the defendant, Donald Bedard, quickly turned away. The officer then narrowed the distance between them and tried to question Bedard concerning where he had been. Bedard responded that he had come from home and walked away from the officer.

The officer followed Bedard and ordered him to remove his hands from his coat pockets. When Bedard did not comply, the officer grabbed him by the arm. At this point, Bedard swung at the officer, attempting to strike him. A scuffle ensued in which Bedard was subdued and then arrested for assaulting a police officer.

Bedard waived his right to jury trial and, following a bench trial, was convicted of assaulting a peace officer. In reversing that conviction, the court of appeals concluded that the report that the suspect had been “starting fights,” without further investigation, did not create a reasonable suspicion of criminal activity. The court concluded that the act of the officer in physically restraining Bedard was unlawful, and therefore, Bedard had a right to respond with reasonable force.

In seeking to overturn the court of appeals’ reversal of Bedard’s conviction, the State advances two arguments. First, it contends that the communication concerning fights in a bar coupled with a description of the assailant was sufficient to permit an investigative stop of the suspect. Second, it argues that even if Bedard’s detainment was without legal justification he was proscribed from using force against the officer by Iowa Code section 804.12.

We need not consider either of the State’s arguments because we are satisfied that, even if the attempt to detain Bedard was unlawful and section 804.12 does not apply to an investigatory stop, Bedard was not authorized to attempt to strike the officer. The use of reasonable force in the defense of oneself is available in the following situation:

A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force.

Iowa Code § 704.3. “Reasonable force” is defined by statute as follows:

“Reasonable force ” is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one’s life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat. Reasonable force, including deadly force, may be used even if an alternative course of action is available if the alternative entails a risk to life.

Iowa Code § 704.1 (emphasis added).

While we recognize that the burden to disprove self-defense is with the State, see State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998), we are satisfied from the factual setting in which Bedard’s attempt to strike the officer took place that a reasonable person in like circumstances would not judge that attacking the officer was necessary to prevent an injury or loss. Consequently, the assaultive conduct on which Bedard’s conviction was based was not reasonable force necessary to defend himself. The court of appeals was not justified in finding otherwise.

Because we do not approve of the theory on which the court of appeals decided the case, we must consider another ground for reversal that Bedard has advanced, which the court of appeals did not reach. He argues that the evidence is insufficient to demonstrate that he intended any of his actions to be painful, injurious, or offensive.

In order for there to be a criminal assault, it must be shown that the act was either “intended to cause pain or injury to, or ... intended to result in physical contact which will be insulting or offensive to another,” or “intended to place another in fear of immediate physical contact, which will be painful, injurious, insulting, or offensive.” Iowa Code § 708.1(1), (2). These elements of proof have caused us to describe the basic assault offense, either standing alone, or as the predicate for a more serious felonious assault, as a specific-intent crime. State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001).

A 2002 amendment to section 708.1, enacted as 2000 Iowa Acts chapter 1094, section 1, introduces the statutory definition of assault with a statement that “[a]n assault as defined in this section is a general intent crime.” However, this amendment did not alter the substantive content of the statute as it pertains to the elements of the crime. The intent elements discussed in Heard remain as part of the definition of the offense and continue to be matters that the State must prove by evidence beyond a reasonable doubt.

In judging Bedard’s conduct according to the statutory elements, we are guided by the maxim that defendants will ordinarily be viewed as intending the natural and probable consequences that ordinarily follow from their voluntary acts. State v. Mayberry, 411 N.W.2d 677, 682 (Iowa 1987); State v. Rinehart, 283 N.W.2d 319, 322-23 (Iowa 1979). A reasonable trier of fact could have concluded, as did the court in the present case, that Bedard’s attempt to strike the officer was intended to place the officer in fear of immediate physical contact, which would be painful, injurious, insulting, or offensive. We reject Bedard’s contention that the evidence was insufficient to support the conviction.

We have considered all issues presented and conclude that the decision of the court of appeals should be vacated and the district court judgment affirmed.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . That statute does not mention investigatory stops. It provides:
      A person is not authorized to use force to resist an arrest, either of the person's self, or another which the person knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if the person believes that the arrest is unlawful or the arrest is in fact unlawful.
      Iowa Code § 804.12 (2001).