State of Iowa v. Richard Owen Busch ( 2020 )


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  •                     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 plea1 to 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.
    3The 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.9 In 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.
    

Document Info

Docket Number: 19-1612

Filed Date: 12/16/2020

Precedential Status: Precedential

Modified Date: 4/17/2021