In re J.S. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0298
Filed 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.
AFFIRMED.
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.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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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
1The doctor believed the child was indicating that J.S.’s tongue had entered the child’s
anus but stated that “it wasn’t completely clear.” Due to the young child’s limited language
abilities, the doctor explained:
. . . I had felt the need to go back and re-ask things in different ways to see
if her answer was consistent to make sure that she was understanding what
I was saying and that I was understanding what she was answering. And
I felt that I was following her. After I spent some time with her to be able to
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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.
catch on to some of her phonetic difficulties and things like that, I felt that I
was able to understand her and that she was understanding what I was
asking.
When the doctor asked the child to point out where she had been touched, the child
indicated to her anal area.
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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 give them weight, especially those concerning
witness credibility. See id.III. Sufficiency of the Evidence.
A person who performs a sex act with a person under the age of twelve
commits second-degree sex abuse. See Iowa Code §§ 709.1, 709.3(1)(b). A sex
act is defined as:
sexual contact between two or more persons by any of the following
1. Penetration of the penis into the vagina or anus.
2. Contact between the mouth and genitalia or by contact
between the genitalia of one person and the genitalia or anus of
another person.
3. Contact between the finger or hand of one person and the
genitalia or anus of another person . . . .
4. Ejaculation onto the person of another.
5. By use of artificial sexual organs or substitutes therefor in
contact with the genitalia or anus.
Id. § 702.17.
J.S. argues there is insufficient evidence that a sex act occurred because
the child testified J.S. touched her over her clothing. However, skin-to-skin contact
is not necessary for a sex act to occur. See State v. Phipps, 442 N.W.2d 611, 613
(Iowa Ct. App. 1989) (“We hold that a lack of skin-to-skin contact alone does not,
as a matter of law, put defendant’s conduct outside the definition of “sex act” as
found in Iowa Code section 702.17 (1987).”). Rather, “[t]he sexual nature of the
contact can be determined from the type of contact and the circumstances
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surrounding it.” State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). The sexual
nature of the contact may be demonstrated by the fact that no nonsexual purpose
of the contact is discernible. See id.Based on the evidence in the record, giving the juvenile court’s credibility
findings the deference they are due, we find the State proved beyond a reasonable
doubt that J.S. committed a delinquent act. Taking into account the circumstances
surrounding it, there is no doubt that the conduct the child consistently described
was sexual in nature. The act the child described meets the definition of a sex act
under section 702.17. Because the evidence beyond a reasonable doubt supports
a finding that J.S. committed an act that would be second-degree sexual abuse if
committed by an adult, we affirm J.S.’s adjudication a delinquent child.
AFFIRMED.