In the Interest of J.F., Minor Child ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0416
Filed March 18, 2020
IN THE INTEREST OF J.F.,
Minor Child,
J.F., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,
District Associate Judge.
J.F. appeals a juvenile court order adjudicating him delinquent on one count
of sexual abuse in the third degree. AFFIRMED.
Danielle M. Ellingson of Eggert, Erb, Kuehner & DeBower, P.L.C., Charles
City, for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.
J.F. appeals a juvenile court order adjudicating him delinquent based on
findings he committed the delinquent act that would constitute one count of sexual
abuse in the third degree if he was an adult.1 The key challenge is sufficiency of
the evidence to support the adjudication.
“We consider the sufficiency of the evidence in juvenile delinquency
adjudications de novo.” In re T.H., 913 N.W.2d 578, 582 (Iowa 2018). “Although
we give weight to the factual findings of the juvenile court, especially regarding the
credibility of witnesses, we are not bound by them.” In re A.K., 825 N.W.2d 46, 49
(Iowa 2013). “We presume the child is innocent of the charges, and the State has
the burden of proving beyond a reasonable doubt that the juvenile committed the
delinquent acts.” Id.
The fighting issue boils down to a “he says, she says” dynamic. The State
asserts J.F. committed sexual abuse in the third degree with another minor. J.F.
denies any sexual abuse occurred. “Any sex act between persons is sexual abuse
by either of the persons when the act is performed with the other person in any of
the following circumstances: . . . 3. Such other person is a child.” Iowa Code
§ 709.1(3). A person commits third-degree sexual abuse “when the person
performs a sex act under” several circumstances, including when “[t]he other
person is twelve or thirteen years of age.” Id. § 709.4(1)(b)(2). A sex act includes
1A violation of state law that would constitute a public offense if committed by an
adult is a delinquent act when committed by a minor child. See Iowa Code
§ 232.2(12)(a) (2017). Here, the public offense in question was performing a sex
act upon a person who was twelve or thirteen years of age. See Iowa Code
§ 709.4(1)(b)(2).
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“any sexual contact between two or more persons by . . . [c]ontact between the
finger or hand of one person and the genitalia . . . of another person.” Id.
§ 702.17(2). “[S]kin-to-skin contact is not required in order to establish a ‘sex act’
under section 702.17.” State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994).
To respond, J.F. contends there is insufficient evidence of any criminal act.
At the core of this delinquency proceeding are S.F.’s allegations against her
schoolmate J.F. The events took place over three days during the winter of 2017–
2018. The juvenile court called these days “Days 1–3,” but the exact dates and
order of events were unclear. The court noted “that it occurred before April [2018]
and while S.F. was 12 years old.” On each of these three days, S.F. went over to
the house of her classmate, K.B., to do homework and play.
On Day 1, S.F. testified she remembered jumping on the trampoline at
K.B.’s house. K.B. did not remember exactly what day this happened, but “it was
a day separate from the other two instances and [she] could not remember if it was
before or after.” Regardless, both girls recalled two male peers, J.F.—whose
backyard connected with K.B.’s at the boundary corner—and I.R., coming over that
day. Both girls also remembered that while the boys were at K.B.’s, they ran away
with S.F.’s boots and did not give them back until K.B.’s mother intervened.
S.F. testified that the same day, J.F. asked if they wanted to go to his house
to play. K.B. testified this happened on a different day, a Wednesday. The juvenile
court identified this as happening on Day 2, which it also identified as a
Wednesday. In any event, the girls went to J.F.’s house and while there, K.B.
played basketball in the backyard with J.F., I.R., and another boy, E.J. It is unclear
whether S.F. also played basketball with them, but there is no dispute that she was
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present. At some point, S.F. and the boys began playing a game called “Smash
or Pass,” in which someone names a person and another participant replies with
whether they would have sex with that person. K.B. was not involved in the game.
K.B. testified that everyone else also played truth or dare and she overheard
someone—she believed it was S.F.—say, “I dare you to touch my boobs.” K.B.
glossed over this comment and did not see if anything happened afterward. K.B.
left before the other children to get ready for church, which she often attended on
Wednesday nights.
After K.B. left, S.F. and the boys kept playing Smash or Pass. S.F. testified
that the game became awkward but she continued to play along. Then, J.F. and
E.J. began “hovering” beside S.F., one on either side of her, close enough that
their sides were touching her. S.F. stated that all three boys began touching her
body over her clothes with their hands. According to S.F., all three boys touched
her buttocks, and J.F. and E.J. touched her vagina.2
The next day, which the juvenile court called Day 3, but which S.F. recalled
being Day 2, S.F. and K.B. went over to J.F.’s house to play with him and the two
other boys. K.B. left when it got dark out. S.F. stayed and “played along” with the
boys. S.F. claims that at some point, the boys told her to bend over and each boy
took a turn humping her from behind, touching their penises to her buttocks while
clothed. Then, J.F. and E.J. touched S.F.’s breasts over her shirt. They next asked
S.F. to pull up her shirt, S.F. complied, and J.F. and E.J. touched her breasts again
2 The State filed delinquency petitions against all three boys, and their adjudicatory
hearings were held together. Only J.F.’s delinquency adjudication is at issue in
this appeal.
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underneath her shirt. After that, J.F. pulled up a pornographic video on his cell
phone. While watching the video, J.F. rubbed S.F.’s thigh, touched her vagina
over her clothes, and had her touch his penis over his clothes.
S.F. testified she, her siblings, and K.B. went to J.F.’s house one other time.
K.B. recalled it being the next day, a Thursday. S.F. recalled playing hide and
seek; K.B. recalled playing tag. S.F. testified that during the game J.F. made a
comment about his penis, but no sexual contact occurred that day.
Eventually, S.F. told her school guidance counselor about what had
happened while she was at J.F.’s house. She also told her mother. She underwent
a forensic interview, and the police began investigating. The State filed a
delinquency petition.
At the contested adjudicatory hearing, the court heard testimony from S.F.,
K.B., the school guidance counselor, the forensic interviewer, an investigator with
the local police department, and J.F.’s mother. None of the boys testified at the
hearing, as was their right.
S.F. was thirteen at the time of the adjudicatory hearing. During her
testimony, she had to be reminded several times to move the microphone closer
and speak loudly enough for the court to hear. The court reporter noted S.F. had
“no audible response” many times while she was testifying. Both the court and the
prosecutor had to remind S.F. that even though she was nervous she had to speak
up. Several times, S.F. stated that she did not remember or did not know what
happened when asked about the events of the three days but then would testify
about what happened. She also acknowledged that she had changed her
testimony from an earlier deposition when she said the boys had humped her after
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she dropped her phone and bent down. She testified that she had lied earlier
because she was scared.
To explain the inconsistencies, the forensic interviewer testified that it was
rare for someone who has experienced abuse to recall the specific date on which
an incident occurred. She also testified that people vary in how they remember
events that happened on more than one occasion, with some people remembering
each separate incident, and some people meshing the incidents together. Then,
the police investigator testified about his investigation generally as well as about
interviews he did with J.F. and the other boys. During this interview, J.F. denied
the allegations.
In his defense, J.F.’s mother testified that J.F. would not have been home
during the periods of time that S.F. alleged if it was during basketball season. She
also observed that J.F. and I.R. would not have hung out at her house until
November 21, but, after that, I.R. “was over quite a few times,” sometimes when
she was not home. She recalled several instances when E.J. was at her house
and he and J.F. were outside playing basketball. She maintained that while she
was not home some evenings, her children would not have played outside because
it was against her rules. J.F.’s mother submitted a calendar showing the dates of
J.F.’s basketball practices.
After the hearing, the juvenile court determined the State had proved J.F.
committed the delinquent act that would constitute sexual abuse in the third degree
beyond a reasonable doubt because
[J.F.] touched his hand to S.F.’s vagina over her clothing on Day 2
after having discussed whether or not they would like to have sex
with each other. On Day 3, he rubbed his penis against S.F.’s
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buttocks, grabbed her breasts over and under her shirt, viewed
pornography with her on his phone, touched his hand to S.F.’s vagina
over her clothing and had her touch his penis over his clothing with
her hand. These sex acts were done while two other boys were
engaging in similar contact with S.F. S.F. was 12 or 13 when these
acts occurred.
The court found S.F.’s testimony credible and noted that, while K.B. did not
witness any touching, K.B.’s testimony corroborated S.F.’s about the general
events of the three days. Important to the court was the fact that
[s]hortly after Day 3, [K.B.] and S.F. had a falling out . . . . [T]he fact
that they are not friends any longer and that their version of events
are fairly consistent does lend credibility to both of them as they
clearly have not conspired to fabricate a story against any of the
boys.
In the end, the court did not find J.F.’s mother’s testimony compelling. The
court noted, “While [J.F.’s mother] is overly confident that her children never go
outside or have friends over without her knowing, it seems these incidents would
not have occurred much earlier than the end of November.” The court discounted
the mother’s testimony because “there is about a 3–4 month window of when this
could have occurred” and the calendar entries proved nothing “other than she
works until 4 and there are some afternoons when she is not home for at least a
period of time.”
On appeal, J.F. argues reasonable doubt exists, claiming because the
juvenile court misstated the facts and S.F.’s testimony was not credible, the State
failed to prove beyond a reasonable doubt that a sex act occurred. J.F. claims that
because the court “muddled” the facts about each day, and because some
testimony is conflicting, there is insufficient evidence to adjudicate him delinquent.
J.F. sees these misstatements as the court “grasping to find truth in testimony for
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an [a]djudication.” J.F. also alleges that S.F. was not a credible witness because
she had no response to many questions, could not answer certain questions, said
she did not remember many facts, and admitted she had not told the truth.
After a de novo review of the record, we conclude there was sufficient
evidence for the district court to find that J.F. committed the delinquent act that
would constitute sexual abuse in the third degree. There is no dispute that S.F.
was twelve years old when the alleged sex acts occurred. Her descriptions of the
sex acts remained consistent overall. Furthermore the described behaviors fit the
definition of sex acts. The juvenile court was in the best position to observe S.F.’s
demeanor and judge her credibility. We give weight to the juvenile court’s
credibility findings. See T.H., 913 N.W.2d at 583 (“Upon our de novo review, we
also consider the findings of the juvenile judge who heard the testimony and
evaluated the credibility of the witnesses.”). After considering all the evidence
presented, we find there was sufficient evidence to adjudicate J.F. delinquent.
AFFIRMED.