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In re J.S.

Court of Appeals of Iowa

December 20, 2017

IN THE INTEREST OF J.S., Minor Child, J.S., Appellant.

         Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.

         J.S. appeals from the order adjudicating him a delinquent child.

          Timothy J. Tupper of Tupper Law Firm, Davenport, for appellant.

          Thomas 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. [*]

          DOYLE, PRESIDING JUDGE.

         J.S. 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.

         I. Background Facts and Proceedings.

         The 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."[1]

         At the 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.

         The 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.

         II. Scope and Standard of Review.

         We 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 ...


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