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In re Z.N.

Court of Appeals of Iowa

March 22, 2017

IN THE INTEREST OF Z.N., Minor child, Z.N., Minor child, Respondent-Appellant.

         Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge.

         The juvenile appeals the juvenile court orders adjudicating him delinquent for committing second-degree sexual abuse and placing him in the state training school. AFFIRMED

          Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux City, for appellant.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Z.N. appeals his delinquency adjudication based on a finding he committed second-degree sexual abuse, in violation of Iowa Code section 709.3(1)(B) (2015), by having sexual contact with an individual under the age of twelve.

         I. Background Facts and Proceedings.

         K.K., the complaining witness, was born in July 2003 and was approximately twelve years old at the time of the delinquency adjudication hearing and four years old at the time of the first instance of abuse. Z.N. was born in 1998 and was approximately seventeen years old at the hearing and nine years old at the time of the first instance of abuse.

         K.K. and Z.N. met as children because their parents were family friends. On multiple occasions, the parents would get together at Z.N.'s house and the children would play in the basement. In April 2015, K.K. wrote a letter to her school counselor reporting that Z.N. sexually abused her multiple times in the basement of Z.N.'s home between 2008 and 2011. At trial, K.K. could not recall the exact amount of instances of abuse but estimated it was approximately six times. The record indicates a divorce between K.K.'s parents reduced the amount of contact between K.K. and Z.N., and in late 2011, the abuse presumably stopped.

         On June 24, 2015, a delinquency petition was filed alleging Z.N. committed sexual abuse in the second degree by engaging in a sex act with a child under the age of twelve between January 1, 2013 and July 2014. In October 2015, the State amended the petition by changing the dates of the alleged abuse to include the periods between April 1, 2008, and December 31, 2011. Z.N. resisted the amendment claiming unfair prejudice because it was untimely. The trial court granted the amendment and set trial for November 24, 2015. After multiple continuances, the trial was held on January 6, 2016.

         At trial, K.K. testified about the sexual abuse that took place when she was four to eight years old. She stated, beginning in the summer of 2008, while K.K. and Z.N. were in the basement and the adults were upstairs at Z.N.'s house, Z.N. asked her on multiple occasions to go in the closet and touch his penis with her hands and mouth.[1] K.K. testified that although she does not remember exactly how many times Z.N. asked her to touch his penis with her mouth and hand, she thought it happened approximately six times between 2008 and 2011. On cross-examination, the defense focused largely on details surrounding the abuse, including what items were in the closet at the time of the abuse, what was said at the time of the abuse, and what other people were doing while Z.N. was asking her to touch his penis. K.K. had some difficulty recalling all of the peripheral facts. K.K.'s mother also testified at trial. She stated that on multiple occasions, K.K. did not want to go downstairs to play with Z.N.[2]

         In its February 2016 order, the court adjudicated Z.N. delinquent for committing sexual abuse in the second degree. The court held a dispositional hearing in April 2016 and ordered the transfer of guardianship to the Iowa Department of Human Services (DHS) for placement in the state training school. Z.N. appeals the delinquency adjudication and the dispositional order.

         II. Standard of Review.

         We review delinquency proceedings de novo. In re A.K., 825 N.W.2d 46, 49-52 (Iowa 2013). We review issues of both law and fact under this standard. In re D.L.C., 464 N.W.2d 881, 882 (Iowa 1991). Though we are not bound by them, we give weight to the factual findings of the juvenile court, especially regarding the credibility of witnesses. A.K., 825 N.W.2d at 49. We presume Z.N. to be innocent, and the State has the burden of proving beyond a reasonable doubt that he committed the delinquent acts. See Id.

         III. ...


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