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In re G.K.

Court of Appeal of Iowa

November 6, 2013

IN THE INTEREST OF G.K., Minor Child, G.K., Minor Child, Appellant.

Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.

A minor appeals from the adjudicatory order finding he committed a delinquent act.

Sara Reindl, Mason City, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Adam D. Sauer, County Attorney, for appellee.

Michael G. Byrne of Winston & Byrne, P.C., Mason City, for mother.

Theodore Hovda, Garner, for father.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

BOWER, J.

A minor appeals from the adjudicatory order finding he committed a delinquent act, contending the evidence was insufficient to support the finding. On de novo review, see In re A.K., 825 N.W.2d 46, 49 (Iowa 2013), we affirm as modified and remand with directions.

I. Background Facts and Proceedings

A reasonable fact-finder could find the following facts from the evidence presented. At the time of the act G.K. was residing in a youth shelter. About 8:30 in the morning, he was walking past the staff desk toward his bedroom while another youth was walking away. G.K. turned around and went back to the living room. Once there, G.K. went up to the other youth who was standing behind a couch, put him in a headlock/chokehold, and took him to the floor. G.K. maintained the headlock/chokehold for thirty to forty-five seconds before staff grabbed G.K.'s forearm and forcibly released the other youth. When a supervisor arrived, staff called the police. After the police arrived they took photographs of the victim's neck, showing a red mark just to the right of his larynx, and interviewed him. A delinquency petition was filed charging G.K. with assault causing bodily injury in violation of Iowa Code section 708.1(1) and .2(2) (2013).

At the adjudicatory hearing the staff and police testified to the facts above. G.K. moved for judgment of acquittal at the end of the State's evidence. The court denied the motion. G.K. denied the assault, contending they were just messing around like they did frequently, and he never intended to hurt the victim. G.K. testified the victim had "my arm in a hold" earlier that day. He also testified his hold on the victim was under his armpit, not around his neck, he maintained the hold for only five to ten seconds, and he let the victim out of the hold willingly, without intervention from the staff. The victim did not testify. G.K. moved for judgment of acquittal at the close of his evidence. The court took the motion under advisement and denied the motion in its adjudicatory order.

The juvenile court made explicit credibility findings.

The testimony of the child is not reasonable and consistent with other evidence the Court believes. The child has made inconsistent statements through the pendency of this matter, and even admitted to previously fabricating allegations of physical abuse by his mother in order to manipulate the District Court into granting his father custody. His counsel indicated that prior to his most recent shelter placement, the child acted the way he thought he needed to be removed from his father's care, demonstrating further calculation and manipulation that not only weighs against his credibility, but is terribly concerning to the Court. Overall, the child's motive, ...

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