IN THE COURT OF APPEALS OF IOWA

No. 19-1612

Filed December 16, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

RICHARD OWEN BUSCH,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J. 

Harris, Judge.

Richard Busch appeals a sentence requiring him to register as a sex 

offender. AFFIRMED.

Alfredo Parrish and Gina Messamer of Parrish Kruidenier Dunn Boles 

Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney 

General, for appellee.

Heard by Doyle, P.J., and May and Ahlers, JJ.
2

MAY, Judge.

Richard Busch appeals a sentence requiring him to register as a sex 

offender. We affirm.

I. Facts and Prior Proceedings

In 2015, Busch shared a home with two roommates. One roommate, J.E., 

is the father of three children. The children would stay at the home sometimes. 

It is undisputed that something inappropriate happened on the evening of 

December 16, 2015, when Busch was alone with one of the children, C.E. That 

night, C.E. told a sibling that Busch had sexually touched him as they watched 

television. C.E.’s sibling called their mother. 

After a lengthy investigation, the State charged Busch with second-degree 

sexual abuse, a class “B” felony in violation of Iowa Code § 709.3(1)(b) (2015). 

The State alleged Busch had “commit[ted] sexual abuse upon C.E., a child under 

the age of twelve.” Initially, Busch pled not guilty. His defense team engaged in 

extensive discovery. They deposed several witnesses, including C.E.

Ultimately, Bush filed a written guilty plea1to child endangerment in violation 

of Iowa Code section 726.6(1)(a),

2 which provides:

1. A person who is the parent, guardian, or person having custody or 

control over a child or a minor under the age of eighteen with a 

mental or physical disability, or a person who is a member of the 

household in which a child or such a minor resides, commits child 

endangerment when the person does any of the following:

a. Knowingly acts in a manner that creates a substantial risk 

to a child or minor’s physical, mental or emotional health or safety.

 

1 The document was entitled “Waiver of rights and plea of guilty.” Technically, it 

was a request for the court to permit Busch to change his original plea of not guilty 

to a plea of guilty to the child-endangerment charge. See Iowa R. Crim. P. 2.8(2). 

2 Child endangerment in violation of Iowa Code section 726.6(1)(a) is an 

aggravated misdemeanor. See Iowa Code § 726.6(7).
3

Bush’s written plea included this explanation of the plea agreement:

I will plead guilty to the amended charge of child 

endangerment. In exchange for my plea of guilty:

a. The State will amend and substitute the charge listed in the 

trial information which is Sexual Abuse in the Second Degree, 

a Class B Felony, in violation of Iowa Code § 709.3(1)(b);

b. The State of Iowa will argue for prison and placement on the 

Registry;

c. Mr. Busch will argue for a deferred judgment and/or 

suspended sentence and that he should not be placed on the 

Registry;

d. The State will keep open the option that if Mr. Busch is placed 

on the Registry, the State of Iowa will consider an agreement 

not to resist removal from the Registry if Mr. Busch can show 

he has been in compliance with all the terms and conditions 

of his probation; and

e. The partied [sic] agree to a pre-plea presentence investigation 

report.

We note the plea’s mention of “the Registry.” This refers to the sex offender 

registry governed by Iowa Code chapter 692A. Under section 692A.126(1)(v), a 

defendant convicted of child endangerment “shall be required to register” as a sex 

offender “[i]f a judge or jury makes a determination, beyond a reasonable doubt, 

that” the offense was “sexually motivated.” In this case, Busch and the State 

agreed that the issue of sexual motivation would be determined by the judge at 

Busch’s sentencing hearing.

Busch’s written plea also included some admissions. In paragraph ten, 

Busch admitted: “The minutes of testimony as to the child endangerment offense 

are true to the extent necessary to support this guilty plea.” In paragraph fourteen, 

Busch admitted:

On or about December 16, 2015, in Black Hawk County, Iowa, I, as 

a person who was a member of the household in which a minor 

resided, knowingly acted in a manner that created a substantial risk

to C.E.’s physical, mental or emotional health or safety.
4

I have read the trial information and the minutes of testimony 

and acknowledge that they are substantially correct, and I ask the 

Court to find me guilty of the offense previously listed.

No witnesses were called at the sentencing hearing. Instead, by mutual 

agreement, the parties submitted evidence in the form of exhibits. The State 

offered Exhibits F and G, which were transcripts of C.E.’s deposition testimony. 

Both exhibits were admitted without objection. Busch also submitted exhibits, all 

of which were admitted without objection. 

Counsel for the parties then provided the court with sentencing 

recommendations and supporting arguments. Busch addressed the court

personally. And some victim impact statements were read. 

Ultimately, the court adjudged Busch guilty of child endangerment3 and 

sentenced him to prison. The court also addressed the question of whether 

Busch’s actions were sexually motivated. The court said:

On the child endangerment charge the court hereby finds beyond a 

reasonable doubt that your actions were sexually motivated in that 

matter. The court makes that determination based upon the minutes 

of testimony as shown by the testimony of [C.E.]. In particular the 

fact that this matter was reported immediately. He immediately 

contacted his [sibling] who contacted the mother. His statements 

have remained consistent throughout this matter as to what occurred 

on the night in question. Despite all of the matters that have come 

in in an attempt to mitigate his testimony, his testimony on those 

matters has remained consistent.

Also, given the fact that you have entered a plea of guilty to a 

child endangerment in which you state that you knowingly did an act 

in the manner that created substantial risk to his mental health, 

emotional state and safety, in those minutes there exists from the 

court’s reading no other act which would have caused the type of

emotional injury which was brought about in this matter.

 

3 The court also adjudged Busch guilty of a separate domestic-abuse charge. 

Because it does not impact this appeal, we do not discuss it further.
5

The court therefore makes the determination that your acts 

were sexually motivated and that finding is beyond a reasonable 

doubt.

Busch now appeals the sentencing court’s finding that his conduct was 

sexually motivated and the resulting registration requirement.

II. Scope and Standard of Review

We typically review sentencing determinations for errors at law. State v. 

Chapman, 944 N.W.2d 864, 871 (Iowa 2020). And “[w]e will not reverse the 

decision of the district court absent an abuse of discretion or some defect in the 

sentencing procedure.” Id. (citation omitted).

But when, as here, the appellant’s challenge really raises “a sufficiency 

claim—whether the record contains sufficient evidence to support the district 

court’s determination the offense was sexually motivated”—we review for 

substantial evidence. Id. “‘Evidence is considered substantial if, when viewed in 

the light most favorable to the State, it can convince a rational [fact finder] that the 

defendant is guilty beyond a reasonable doubt.’ The [fact finder] is entitled to reject 

a party’s evidence and credit the evidence against it.” See State v. Trane, 934 

N.W.2d 447, 455 (Iowa 2019) (citation omitted). 

III. Discussion4

Busch argues the State failed to prove beyond a reasonable doubt that his 

criminal conduct toward C.E. was sexually motivated. Busch claims the district 

 

4 Much of the briefing focused on whether recent statutory amendments prohibited 

Busch from appealing after he pled guilty. See 2019 Iowa Acts ch. 140, § 28 

(codified at Iowa Code § 814.6(a)(3) (2020)). At oral argument, though, the State 

appropriately conceded that Busch’s appeal is permissible under State v. Damme, 

944 N.W.2d 98, 100–01 (Iowa 2020). We consider that issue resolved.
6

court erred in relying on the minutes of testimony5 and “in its weighing of the 

evidence relating to C.E.’s credibility.” 

We begin with Busch’s claim that the district court could not rely on the 

minutes of testimony. A “sentencing court” may “consider those facts contained in 

the minutes that are admitted to or otherwise established as true.” Chapman, 944 

N.W.2d at 872 (emphasis added) (quoting State v. Gonzalez, 582 N.W.2d 515, 

517 (Iowa 1998)). As part of his written guilty plea to child endangerment, Busch 

admitted “[t]he minutes of testimony as to the child endangerment offense are true 

to the extent necessary to support this guilty plea.” He also admitted—without 

qualification—that the minutes of testimony “are substantially correct.” At a 

minimum, these admissions permitted the “sentencing court” to “consider those 

facts contained in the minutes” that were necessary to establish the elements of 

the crime to which Busch pled guilty. Cf. id. (“Where portions of the minutes are 

not necessary to establish a factual basis for a plea, they are deemed denied by 

the defendant and are otherwise unproved and a sentencing court cannot consider 

or rely on them.” (citation omitted)).

Busch pled guilty to child endangerment in violation of section 726.6(1)(a). 

Child endangerment under section 726.6(1)(a) can only be committed through a

“[k]nowing[] act[ion] in a manner that creates a substantial risk to a child or minor’s 

 

5

Iowa Rule of Criminal Procedure 2.5(3) uses the term “minutes of evidence.” 

However, the prosecuting attorney captioned the relevant document “minutes of 

testimony.” And the parties and the district court refer to the “minutes of testimony.” 

The term “minutes of testimony” has long been used interchangeably with “minutes 

of evidence.” See, e.g., State v. Wise, 50 N.W. 59, 60 (Iowa 1891) (using “minutes

of testimony” and “minutes of the evidence” interchangeably). So, although we 

note “minutes of evidence” is technically correct, we will refer to the “minutes of 

testimony” for readability purposes.
7

physical, mental or emotional health or safety.” The minutes of testimony describe 

only one action by Busch—the touching of what C.E. referred to as his “private 

area”

6—that could establish this element. As the district court put it, “in those 

minutes there exists . . . no other act” that could fulfill the requirements of section 

726.6(1)(a). So we believe it was appropriate for the district court to rely on the 

minutes—which Busch admitted were “substantially correct”—to establish that 

Busch endangered C.E. by touching C.E.’s private area. And we also believe the 

minutes—together with Busch’s admissions—supported the district court’s 

conclusion that Busch’s endangerment of C.E. was “sexually motivated,” i.e.,

committed for “the purpose of” Busch’s “sexual gratification.” See Chapman, 944 

N.W.2d at 871 (“‘Sexually motivated’ ‘means that one of the purposes for 

commission of a crime is the purpose of sexual gratification of the perpetrator of 

the crime.’” (quoting Iowa Code §§ 229A.2(10), 692A.101(29) (2017))).

Busch raises two counter-arguments, one factual and one legal. On the 

factual front, Busch contends that because the minutes of testimony also describe 

a non-sexual act of child endangerment, the district court should not have relied 

on the sexual act (the touching of C.E.’s “private area”) described in the minutes. 

Specifically, Busch’s brief suggests that, rather than sexually touching C.E., Busch 

actually “grabbed C.E. by the back of the neck and roughly placed him in his 

bedroom when he refused to go to bed.” But Busch’s brief does not explain 

where—in the minutes of testimony—the district court could have found any

 

6 We see no reason to provide more detail. To be clear, however, nothing in the 

record suggests a non-sexual reason—such as a medical need—for Busch to 

touch C.E.’s private area. Busch does not contend otherwise.
8

mention of this non-sexual mistreatment. Although Busch’s brief cites the

sentencing transcript and a sentencing exhibit, neither item was included in the 

minutes of testimony. 

At oral argument, though, Busch drew our attention to page fifty-seven of 

the confidential appendix, which contained portions of the minutes. There, we 

found part of a letter from Busch’s counsel to the Black Hawk County Attorney’s 

Office. Through the letter, counsel provided the County Attorney with Busch’s 

version of events. According to Busch’s version: (1) Busch asked C.E. to go to 

bed in C.E.’s father’s room; (2) C.E. refused to comply—and even swore at Busch; 

(3) Busch then “indicated” to C.E. “that he would discipline him if he swore at him”

again—“but,” Busch admits, “since he was not [C.E.’s] father[,] there was not much 

he could do”; (4) Busch “tried to get [C.E.] off the couch but he would not move”; 

(5) so, ultimately, Busch “ended up physically holding [C.E.] and taking [C.E.] into 

[C.E.’s] father’s room so [C.E.] could go to bed.” 

So far as we can tell, this version of events does not admit any criminal 

behavior. We certainly do not believe it admits that Busch “[k]nowingly act[ed] in 

a manner that create[d] a substantial risk to [C.E.’s] physical, mental or emotional 

health or safety” as required by section 726.6(1)(a). 

Rather, so far as the minutes of testimony revealed, Busch’s touching of 

C.E.’s private area was the only action that met the requirements of section 

726.6(1)(a). And so the minutes of testimony, together with Busch’s admissions,

supported the district court’s conclusion that Busch’s act of child endangerment 

was sexually motivated.
9

But Busch contends the supreme court’s decision in Chapman prohibits 

courts from relying on the minutes of testimony to find sexual motivation.7 We 

acknowledge Chapman’s holding that when a defendant enters an Alford8 plea—

and, therefore, maintains their “position that [they] did not commit the underlying 

offense”—“the district court [sh]ould not consider facts identified only in the 

minutes of testimony in determining whether [the defendant’s] criminal conduct 

was sexually motivated.” Chapman, 944 N.W.2d at 874; see also id. at 877

(confirming “that the minutes of testimony may not be considered in determining 

whether a defendant’s offense was sexually motivated where the defendant has 

entered an Alford plea”). We also acknowledge Chapman’s admonition that, even 

when the defendant enters a “straight guilty plea,” the “minutes, alone” cannot “be 

used to support sex offender registration.” Id. at 873 n.2 (emphasis added). But 

Chapman also teaches that, “to the extent a defendant making a straight [guilty] 

plea admits any of the facts contained in the minutes in establishing the factual 

basis for the plea, those admissions could be considered for purposes of sex 

offender registration.” Id.

Here, Busch did not enter an Alford plea. Instead, he made a straight guilty 

plea. As part of that plea, Busch admitted the minutes of testimony “are 

substantially correct.” So we believe that—even after Chapman—the facts 

described in the minutes “could be considered for purposes of sex offender 

registration.” Id. 

 

7 The supreme court issued its decision in Chapman after the parties’ briefs were 

filed but before oral argument. 

8 North Carolina v. Alford, 400 U.S. 25 (1970).
10

Moreover, even if Busch had made no admissions, the sentencing court 

could still “consider those facts contained in the minutes that are . . . otherwise 

established as true.” Id. at 872 (emphasis added) (citation omitted). And Busch’s 

touching of C.E.’s private area was “otherwise established as true.” It was 

“established as true” through a transcript of C.E.’s deposition testimony, which the

sentencing court received without objection.9In his testimony, C.E. described the 

same touching of his “private area” that the minutes depict. C.E.’s deposition

testimony, on its own, constituted substantial evidence to support the district 

court’s finding of sexual motivation.10 See State v. Rodriguez, No. 15-1002, 2016 

WL 4051696, at *1 (Iowa Ct. App. July 27, 2016) (affirming district court conclusion 

that victim testimony and other evidence established beyond a reasonable doubt 

that the offense was sexually motivated).

But Busch claims the court should not have believed C.E. because C.E. is 

a troubled child who often does not tell the truth. And Busch provides some 

 

9 At oral argument, Busch suggested the sentencing court should not have 

considered the transcripts of C.E.’s deposition. Instead, Busch suggested, the 

sentencing court should have required C.E. to testify in person so that Busch would 

have a chance to cross examine C.E. But these issues were not preserved below. 

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental 

doctrine of appellate review that issues must ordinarily be both raised and decided 

by the district court before we will decide them on appeal.”). Rather, when the 

state offered C.E.’s deposition transcripts at the sentencing hearing, defense 

counsel said there was “no objection.” Counsel added that it had been “part of the 

plea agreement” that each side would submit exhibits at sentencing. And counsel 

never complained about C.E.’s absence from the hearing or the defense’s inability 

to cross-examine C.E. We note also that it was defense counsel—not the State—

who elicited C.E.’s deposition testimony that Busch had touched C.E.’s private 

area. 

10 The State notes: “The defendant essentially concedes that [C.E.’s deposition 

testimony] supported the district court’s finding by only arguing that the district 

court should not have believed C.E.” We think this is a fair characterization of the 

briefing.
11

support for his assertions. But the sentencing court had discretion to determine 

what evidence it found more credible. And the court chose C.E.’s versions of 

events, noting C.E.’s quick reporting and the consistency of C.E.’s reports over 

time as evidence of C.E.’s truthfulness concerning these events. We find no 

grounds to second-guess this determination.

IV. Conclusion

Substantial evidence supports the sentencing court’s determination that 

Busch’s conduct was sexually motivated. 

AFFIRMED.