IN THE INTEREST OF J.S., Minor Child, J.S., Appellant.
from the Iowa District Court for Scott County, Christine
Dalton Ploof, District Associate Judge.
appeals from the order adjudicating him a delinquent child.
Timothy J. Tupper of Tupper Law Firm, Davenport, for
J. Miller, Attorney General, and Gretchen Witte Kraemer,
Assistant Attorney General, for appellee State.
Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.
appeals from the order adjudicating him delinquent after the
juvenile court determined the evidence showed he committed an
act that would have constituted sexual abuse in the second
degree, in violation of Iowa Code sections 709.1 and
709.3(1)(b) (2015), if he were an adult. See Iowa
Code § 232.2(12) (defining a delinquent act as the
violation "of any state law . . . which would constitute
a public offense if committed by an adult"). J.S.
contends the evidence is insufficient to show he committed a
"sex act" as defined by the statute because the
child testified J.S. touched her through her clothing.
Because the evidence beyond a reasonable doubt supports a
finding that J.S. committed a sex act with a child, we affirm
the order adjudicating him a delinquent child.
Background Facts and Proceedings.
child told her father that J.S. licked her butt while they
were watching a movie on television. She repeated the
statement to the police officers who investigated the
incident. J.S.'s brother, who was in the room at the time
of the incident, initially stated that J.S. tried to have sex
with the child and had touched the child's "butt
with his private parts." The child also told a doctor at
the Child Protection Response Center that J.S. had touched
her while they watched television. Specifically, when asked
what areas of her body J.S. touched, the child said
"tongue in ass."
adjudication hearing, the child testified that J.S. touched
or licked her butt over her clothes. J.S.'s brother
testified that he had lied when making his initial statements
that J.S. touched the child, claiming he had done so because
he had been mad at J.S. J.S. denied any inappropriate contact
with the child.
juvenile court found that despite the discrepancies in the
child's account of what occurred, her statements were
"not inconsistent" and consistently described
contact between J.S.'s mouth and the child's anus. In
contrast, the juvenile court found the testimony from J.S.
and his brother was not credible. Although the court was
unable to conclude that there was skin-to-skin contact
between J.S. and the child, it ultimately determined that a
sex act occurred by considering it in context:
[T]his court looks at the circumstances and the very act to
determine the sexual nature of the contact. The child
actually perceived that her inner butt was being licked by
[J.S.]'s tongue. It is impossible to think of a
non-sexual purpose for the mouth of one person to come In
contact with the inside butt or anal area of a four-year-old
child. The child reacted by running to the bathroom and
crying. When asked what was wrong, she told her parents she
had been licked by [J.S.]. Her reaction spoke to the sexual
nature of his act, and her parent's immediate
interpretation of her statement also speaks to the obvious
sexual nature of the contact.
Scope and Standard of Review.
review delinquency proceedings de novo to determine whether
the State proved beyond a reasonable doubt the child
committed the delinquent act. See In re A.K., 825
N.W.2d 46, 49 (Iowa 2013). Though we are not bound by the
juvenile court's factual findings, we ...