from the Iowa District Court for Polk County, Scott D.
Chapman appeals following his guilty plea to child
endangerment. AFFIRMED IN PART, VACATED IN PART, AND
C. Smith, State Appellate Defender, (until withdrawal) and
Martha J. Lucey, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
State originally charged Chad Chapman with two counts of
second-degree sexual abuse of a child under the age of
twelve. In time, the State amended the charge to child
endangerment, an aggravated misdemeanor. See Iowa
Code § 726.6(1), (7) (2017). Chapman entered an
Alford plea to the charge based on the same minutes of
testimony supporting the original charges. The district court
adjudged Chapman guilty and filed a sentencing order that
included the following dispositions: a special sentence
committing Chapman to department of corrections custody for
ten years, a "law enforcement initiative surcharge (if
applicable)," restitution of fees and costs, and
placement on the sex offender registry.
appeal, Chapman argues the district court erred in (1)
imposing the special sentence and law-enforcement-initiative
surcharge; (2) ordering restitution of court costs
"without first determining his reasonable ability to pay
such costs"; and (3) determining his offense was
sexually motivated, a predicate to placement on the sex
State concedes error on the first point and agrees we must
"vacate those parts of Chapman's sentence."
See id. §§ 903B.2 (authorizing special
sentence only for "[a] person convicted of a misdemeanor
or a class 'D' felony offense under chapter 709,
section 726.2, or section 728.12"), 911.3 (authorizing
surcharge only for criminal violations under "a. Chapter
124, 155A, 453B, 713, 714, 715A, or 716" and "b.
Section 719.7, 719.8, 725.1, 725.2, or 725.3").
to the second issue, the supreme court recently addressed the
timing of restitution orders and ability-to-pay
determinations. See State v. Albright, 925 N.W.2d
144, 160-62 (Iowa 2019). The court stated, "Until the
court issues the final restitution order, the court is not
required to consider the offender's reasonable ability to
pay . . . . Once the court has all the items of restitution
before it, then and only then shall the court make an
assessment as to the offender's reasonable ability to
pay." Id. Based on Albright, we vacate
the order for payment of court costs pending completion of a
final restitution order. See id. at 162-63.
leaves us with the third issue-Chapman's placement on the
sex offender registry. Iowa Code section 692A. 126(1)(v)
requires a person convicted "on or after July 1,
2009," of "[a]ny indictable offense in violation of
chapter 726 if the offense was committed against a minor or
otherwise involves a minor" to register as a sex
offender "[i]f a judge or jury makes a determination,
beyond a reasonable doubt, that [the] conviction [was]
sexually motivated." "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." Iowa Code § 229A.2(10);
see also id. § 692A. 101 (29) (adopting same
definition). The district court found "beyond a
reasonable doubt that the offense committed was sexually
motivated within the meaning of [Iowa Code] [s]ection 692A.
126." Chapman argues the "finding is not supported
by substantial evidence."
agree our review is for substantial evidence. That standard
flows from the definition of "sexually motivated,"
which, as noted, requires a judge or jury determination of
sexual motivation by proof beyond a reasonable doubt, on par
with findings supporting commission of the underlying
offense. See id. § 692A.126(1)(v); State v.
Grandberry, 619 N.W.2d 399, 401 (Iowa 2000)
("[W]hen a challenge is made to a criminal sentence on
the basis that the court improperly considered unproven
criminal activity, the issue presented is simply one of the
sufficiency of the record to establish the matters relied
on." (citing State v. Longo, 608 N.W.2d 471,
474 (Iowa 2000))); State v. Rodriguez, No. 15-1002,
2016 WL 4051696, at *1 (Iowa Ct. App. July 27, 2018)
(reviewing "sexually motivated" finding for
substantial evidence). The standard requires us to view the
evidence in the light most favorable to the State. See
State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). At the
same time, "[e]vidence raising only 'suspicion,
speculation, or conjecture is not substantial.'"
State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)
State attempts to support the district court's finding of
sexual motivation by pointing to the minutes of testimony
which, as noted, contained information pertaining to the
original sex abuse charges. In the State's view,
State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998),
allowed the court to rely on those minutes not just to find a
factual basis for the underlying crime but also to make
required findings at sentencing. We disagree.
Gonzalez, the court stated the "minutes of
testimony attached to a trial information do not
necessarily provide facts that may be relied upon and
considered by a sentencing court." 582 N.W.2d at 517
(emphasis added). The court continued, "The sentencing
court should only consider those facts contained in the
minutes that are admitted to or otherwise established as
true." Id. (citation omitted). And, the court
stated, "Where portions of the minutes are not necessary
to establish a factual basis for a plea, they are deemed