In the Interest of A.K., Minor Child A.K., Minor Child

IN THE SUPREME COURT OF IOWA
No. 12–0608
Filed January 4, 2013
IN THE INTEREST OF A.K., Minor Child
A.K., Minor Child,
Appellant.
Appeal from the Iowa District Court for Lyon County, Robert J.
Dull, District Associate Judge.
Juvenile appeals from his adjudication as a delinquent.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Michael J. Jacobsma and Missy J. Clabaugh of Jacobsma &
Clabaugh PLC, Sioux Center, for appellant.
Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant
Attorney General, and Carl J. Petersen, County Attorney, for appellee.
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HECHT, Justice.
A juvenile accused of sexually abusing and assaulting three
children appeals from his delinquency adjudication. He contends the
juvenile court should have excluded evidence of a prior bad act and that
there was insufficient evidence to support the findings that he committed
the delinquent acts. Upon our de novo review, we affirm the juvenile
adjudication as to six of the seven counts of delinquency and reverse as
to one count.
I. Background Facts and Proceedings.
In August and September 2011, two petitions were filed alleging
fifteen-year-old A.K. was a delinquent child pursuant to Iowa Code
chapter 232 for committing a total of three counts of sexual abuse in the
second degree and four counts of assault with intent to commit sexual
abuse involving three different victims. 1 A.K. denied the charges, and an
adjudicatory hearing was held in January 2012.
At the adjudicatory hearing, D.E. 2 testified regarding events that
happened on the night of July 1, 2011: That night, he walked to the
figure eight races at the county fairgrounds with his sisters and some
friends. 3 A.K. pulled up in a white car and offered to give them a ride,
and the group accepted. After arriving at the races, the group split up,
but later A.K. approached D.E. and asked him if he wanted to play truth
1FileNo. JVJV500105 alleged A.K. committed three acts which would constitute
sexual abuse in the second degree against D.E. and one act which would constitute
assault with intent to commit sexual abuse against J.E. File No. JVJV500109 alleged
A.K. committed three acts which would constitute assault with intent to commit sexual
abuse against K.D.
2D.E. was eight years old when the alleged abuse occurred, but was nine by the
time of the adjudicatory hearing.
3Although D.E. and the other children were not sure of the date of the incident,
police were able to narrow down the time frame to July 1 based on A.K.’s phone records
and the racing schedule.
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or dare. A.K. and D.E. got into A.K.’s parked car, and A.K. touched him
“inappropriately.” After the races ended, A.K. offered to drive D.E. to a
farm to look at the animals and obtained permission from D.E.’s older
sister. A.K. drove D.E. to a remote location, and they got into the back
seat. A.K. pulled down his pants and removed D.E.’s pants. A.K. lifted
D.E. onto his lap and touched his penis to D.E.’s anus. He also rubbed
D.E.’s penis with his hand, and put D.E.’s penis in his mouth. A.K. then
took D.E. back to town to meet his sister. D.E. did not tell anyone about
the incident until several days later.
D.E.’s twin sister, J.E., also testified. She corroborated D.E.’s
testimony about riding to the races with A.K. and about D.E. leaving with
A.K. both during and after the races. She also testified that later in the
summer, A.K. asked her if she wanted to ride her bike out to Blue Scout
Island with him. She agreed. They entered an old burned-out house,
and A.K. dared her to pull her pants down. She did. He looked at her
and then she pulled her pants up and she left. He neither touched her
nor moved toward her. She waited to tell anyone about the incident until
several days later.
D.E. and J.E.’s older sister testified about the night of the races
and corroborated that D.E. and A.K. disappeared during the races and
were found together in A.K.’s car. She also corroborated that A.K. left
with D.E. in his car after the races to go to the farm. All three children
described the interior of A.K.’s car in specific detail, including the fact
that the steering wheel was covered in tape because A.K. told them the
air bag had been set off.
K.D. 4 testified that A.K. was friends with his brother and
sometimes came to his house along with other friends to watch TV after
4K.D. was eleven years old at the time of the incident and at the time of trial.
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school. On three occasions during the summer of 2011, A.K. tickled
him, and the horseplay escalated as A.K. rubbed K.D.’s penis through his
pants for about twenty minutes. K.D. testified that he did not tell anyone
about the incidents because he was embarrassed. He acknowledged that
his brother and another friend were in the room when the incidents took
place but that they did not seem to notice anything.
A.K. did not testify but introduced testimony from his mother,
father, and sister that the car described by the children was inoperable
and parked in South Dakota at his father’s apartment on July 1, 2011.
A neighbor and an acquaintance testified that they recalled seeing A.K.
on a bicycle on the evening of July 1. Some other children who had been
at K.D.’s house on the days in question testified that roughhousing was
common and that they did not see A.K. rubbing K.D.’s penis. A.K. also
introduced evidence tending to show that D.E. and J.E. had changed
elements of their stories when they had talked to friends, members of law
enforcement, and a counselor.
The juvenile court adjudicated A.K. a delinquent on all seven
counts. A.K. appealed. He contends the district court erred in allowing
evidence of a prior bad act admitted by A.K. to an investigating officer.
He also contends there was insufficient evidence to support the
adjudication.
II. Scope of Review.
Delinquency proceedings are special proceedings that serve as an
alternative to the criminal prosecution of a child. In re J.A.L., 694
N.W.2d 748, 751 (Iowa 2005). The objective of the proceedings is the
best interests of the child. Id. We review delinquency proceedings de
novo. Id. Although we give weight to the factual findings of the juvenile
court, especially regarding the credibility of witnesses, we are not bound
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by them. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). 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. Iowa Code § 232.47(10) (2011). Our review of the
juvenile court’s admission of other-acts evidence is for an abuse of
discretion. J.A.L., 694 N.W.2d at 751.
The State argues that our de novo standard of review of the
sufficiency of the evidence for juvenile adjudications is inappropriate and
unwarranted by Iowa Code chapter 232. The State contends that
although our caselaw has long held that our review is de novo and that
we consider the facts anew to determine whether the State has met its
burden to prove the child engaged in acts of delinquency, the statute has
not supported such review since 1965 and urges us to adopt a standard
of review identical to the review we conduct in criminal cases. Such a
standard would require us to determine whether, viewing the light in the
evidence most favorable to the State, any reasonable fact finder could
have found beyond a reasonable doubt that the juvenile committed the
delinquent acts. See State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003).
As the State describes, before 1965, proceedings under chapter
232 were “in equity.” Iowa Code § 232.13 (1962). Thus our review on
appeal was de novo, as it is in all equity cases. See Iowa R. App. P.
6.907. However, chapter 232 was substantially revised in 1965, and the
provision expressly requiring delinquency proceedings to be tried in
equity was removed. Compare Iowa Code § 232.13 (1962), with Iowa
Code § 232.58 (1966). In its place was the directive that “an interested
party . . . may appeal to the supreme court for review of questions of law
and fact.” Id. § 232.58 (1966). Identical language is still in effect in
section 232.133(1) (2011). However, in cases following the revision of
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chapter 232, we continued to assert that our review was de novo without
acknowledging that particular change in the statutory language. See,
e.g., In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972). Instead, we
cited to the old rule of appellate procedure which indicated that our
review of equity cases was de novo. Id.
The State points out that other states and federal jurisdictions
apply the same standard of review to sufficiency-of-the-evidence claims
in juvenile cases as in criminal cases. These other jurisdictions have
reasoned that because the State has the same “beyond a reasonable
doubt” burden in both juvenile and adult criminal proceedings, the
standards and scope of appellate review should also be the same in
juvenile and criminal proceedings. See United States v. DeLeon, 768 F.2d
629, 631 (5th Cir. 1985) (concluding standard of review of federal
juvenile adjudication is whether, viewing evidence in light most favorable
to the government, a reasonable fact finder could have found beyond a
reasonable doubt the juvenile committed the alleged act); In re Jose D.R.,
186 Cal. Rptr. 898, 901 (Ct. App. 1982) (holding standard of review in
juvenile adjudications is same as in criminal convictions because
standard of proof below is identical in the two proceedings); In re W.C.,
657 N.E.2d 908, 923 (Ill. 1995) (holding the standard of review in
juvenile adjudication is whether, after viewing evidence in light most
favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt); J.D.P. v.
State, 857 N.E.2d 1000, 1010 (Ind. Ct. App. 2006) (holding that in
reviewing sufficiency of evidence in juvenile adjudication the appellate
court considers the evidence most favorable to the judgment and the
reasonable inferences drawn therefrom and affirms if those inferences
constitute substantial evidence); In re A.D., 771 A.2d 45, 48 (Pa. Super.
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Ct. 2001) (holding review of sufficiency of evidence of juvenile
adjudication is same as reviewing substantial evidence to support a
criminal conviction).
While the State accurately describes the changes to chapter 232 in
1965, we do not think the revision requires a change in our standard of
review. The revised language provides that an interested party may
appeal “for review of questions of law and fact.” Iowa Code § 232.133(1).
This language is compatible with our framework of de novo review which
in other contexts requires this court to review the “facts as well as the
law [to] determine from the credible evidence [the parties’] rights anew.”
State ex rel. Turner v. Younker Bros., Inc., 210 N.W.2d 550, 567 (Iowa
1973) (emphasis added); see also In re Marriage of Winegard, 257 N.W.2d
609, 613 (Iowa 1977). Further, we have continued to assert that juvenile
proceedings are in equity and subject to de novo review for more than
forty years since the amendments identified by the State. Certainly if the
legislature had intended such a dramatic change in the scope of our
appellate review in juvenile proceedings, it would have seen fit to more
explicitly revise the statute to correct our misunderstanding at some
point during the last four decades.
Although the State contends there is “no legitimate reason or
policy” supporting the application of different standards of review in
juvenile adjudications and adult criminal convictions, juvenile
delinquency proceedings are different in significant ways from adult
criminal proceedings. The primary goal of juvenile proceedings is to
further the best interests of the child—not to punish but instead to help
and educate the child. See Iowa Code § 232.1; Henderson, 199 N.W.2d
at 119. The State has not explained how a change in our standard of
review would promote the best interests of the juvenile. Notably, none of
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the cases from other jurisdictions cited by the State address this issue.
The rationale offered by the other courts focuses solely on the similar
burden placed on the State in both types of proceedings.
We note that de novo review of the evidence may promote efficiency
when there is an evidentiary error below because we can review the
evidence anew, without considering the inadmissible evidence, to
determine whether the State has proven the child committed the acts
beyond a reasonable doubt. See J.A.L., 694 N.W.2d at 753. If we applied
the more deferential review urged by the State, we would have to remand
for a new trial when evidentiary error was not harmless and keep the
child in limbo longer.
Further, juvenile proceedings differ from criminal proceedings in
another important respect. Neither statutory nor constitutional
provisions guarantee juveniles the right to a jury trial. See Iowa Code
§ 232.47(2); McKeiver v. Pennsylvania, 403 U.S. 528, 533, 545–47, 91
S. Ct. 1976, 1980, 1986–87, 29 L. Ed. 2d 647, 654, 661–62 (1971); In re
Johnson, 257 N.W.2d 47, 50–51 (Iowa 1977). This important distinction
between adult and juvenile proceedings favors a more in-depth appellate
review of the facts supporting and opposing an adjudication.
Some fear that because of the unique nature of juvenile
proceedings, juveniles will often “receive[] the worst of both worlds . . .
get[ting] neither the protections accorded to adults nor the solicitous care
and regenerative treatment postulated for children.” Kent v. United
States, 383 U.S. 541, 556, 86 S. Ct. 1045, 1054, 16 L. Ed. 2d 84, 94
(1966). Others have argued that the lack of a right to jury trial renders
juvenile proceedings especially vulnerable to inaccurate fact finding and
unfair resolutions because they are presided over by a single judge.
Martin Guggenheim & Randy Hertz, Reflections on Judges, Juries, and
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Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 Wake
Forest L. Rev. 553, 576–77, 593 (1998) [hereinafter Guggenheim].
Although de novo appellate review may not provide the same measure of
protection that a jury trial would, we see no reason to abandon it lightly,
especially given that we do not think it mandated by statute. 5
Given these considerations, we decline to change our standard of
review of the sufficiency of the evidence supporting a juvenile
adjudication.
III. Discussion.
A. Prior Acts Evidence. During the testimony of Detective
Birkey, who had interviewed A.K. regarding the allegations, this exchange
took place:
Q: Okay. And after you asked that did [A.K.’s father]
or A.K. volunteer that he had touched a five-year-old child
inappropriately in Sioux Falls?
MR. JACOBSMA: Objection. Relevance.
MR. PETERSON: It goes to intent, Your Honor. It’s my
perception that the defense counsel, especially in [K.D.’s]
case, is alleging that this was roughhousing and had no
sexual intent. Part of the intent is specific intent to commit
a sexual assault.
THE COURT: The objection’s overruled. You may
answer the question.
5Studies have shown that a defendant is more likely to be found guilty after a
bench trial than a jury trial. Guggenheim, 33 Wake Forest L. Rev. at 562–63. While
these studies cannot discern who is “right” in the situations where the fact finders
disagree as to guilt, scholars have offered suggestions explaining why judges are more
likely to vote for conviction than are juries. Of primary concern is that judges are
routinely exposed to inadmissible, prejudicial, extra-record evidence, particularly in
juvenile cases. Id. at 571. Often this evidence (such as a confession obtained in
violation of the juvenile’s constitutional rights) will suggest, if not downright prove, that
the juvenile committed the alleged act. Id. at 571–72. Although appellate courts
“indulge in a fiction that a trial judge is capable of putting inadmissible information out
of her mind[,] . . . empirical evidence suggests, and some judges have forthrightly
acknowledged, such highly prejudicial information inevitably affects a judge, even if
only at a subconscious level.” Id. at 572 (footnotes omitted).
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THE WITNESS: I asked him if he had ever touched
anyone inappropriately, and he said, “No, no, actually--”
then he stopped, and I said, “never.” And he said, “Well,
yeah, once.” And he told me he had touched the vagina of a
five-year-old girl in Sioux Falls. According to police reports I
already had, I believe she was four at the time.
MR. PETERSON: And so you were aware of this
incident in Sioux Falls, South Dakota?
THE WITNESS: Yeah, I was.
In this appeal, A.K. contends this testimony should have been
excluded pursuant to Iowa Rule of Evidence 5.404(b) as evidence of a
prior bad act. However, the only ground urged for exclusion at trial was
relevance, which is not relied on in the appeal. The State contends this
general “relevance” objection was insufficient to preserve error on
5.404(b) grounds and notes that A.K. has abandoned his relevancy
objection on appeal. We need not decide whether error was preserved on
this issue or whether, if preserved, the “other acts” evidence was
admissible, however, because the evidence challenged by A.K. does not
affect the outcome of our decision on de novo review as to the sufficiency
of the evidence supporting any of the seven counts of delinquency alleged
in this case.
B. Sufficiency of the Evidence. A.K. was charged with seven
separate delinquent acts. With regard to the three alleged offenses
involving D.E., A.K. was charged with committing acts that would have
violated Iowa Code section 709.3, sexual abuse in the second degree.
Specifically this meant that the State had to show that A.K. committed
sexual abuse against a person who was under the age of twelve. Iowa
Code § 709.3(2). Sexual abuse is defined as “any sex act” with another
person who is a child. Id. § 709.1(3). A “sex act” does not necessarily
require skin to skin contact. State v. Pearson, 514 N.W.2d 452, 455
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(Iowa 1994). Thus it was the State’s burden to prove A.K. committed
three different sex acts with D.E.
Our de novo review of the evidence convinces us that the State has
proven beyond a reasonable doubt that A.K. committed three acts of
sexual abuse against D.E. D.E. testified that A.K. sucked on his penis;
rubbed his penis; and that he placed D.E., nude, on top of his naked
groin and that A.K.’s penis touched D.E.’s anus. These are clearly sex
acts. Although counsel for A.K. was able to identify several variances in
D.E.’s accounts given to different people before trial, we do not find the
variances to be significant or destructive to the eight-year-old’s
credibility. We further note that D.E.’s clear and accurate description of
the interior of A.K.’s car adds significantly to his credibility. Although
A.K. offered the testimony of his sister and others to establish that the
car D.E. and the other children described was inoperable and was
parked in another state at the time of the alleged abuse, we, as did the
juvenile court, find the testimony of D.E. and the other children more
credible than the testimony of A.K.’s witnesses. Accordingly, we affirm
the juvenile court’s determination that A.K. committed delinquent acts
that would constitute three violations of section 709.3(2) if he were an
adult.
Similarly, regarding the allegations involving K.D., we conclude the
State has proven beyond a reasonable doubt that A.K. committed three
acts which would constitute assaults with intent to commit sexual abuse
in violation of section 709.11. As to each of these offenses, the State
must prove that A.K. committed an assault, as defined in section 708.1,
with the intent to commit sexual abuse. Assault is defined, in relevant
part, as any of the following:
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1. Any act which is intended to cause pain or injury
to, or which is intended to result in physical contact which
will be insulting or offensive to another, coupled with the
apparent ability to execute the act.
2. Any act which is intended to place another in fear
of immediate physical contact which will be painful,
injurious, insulting, or offensive, couple with the apparent
ability to execute the act.
Iowa Code § 708.1(1)–(2).
K.D.’s testimony was uncontroverted that A.K. engaged in
horseplay with K.D. which escalated into A.K. rubbing K.D.’s penis
through his pants for extended periods of time on three different
occasions. On at least one occasion, K.D. told A.K. to stop, and A.K. did
not. Although A.K. solicited testimony from other boys who were present
on one or more of the occasions and who did not observe the rubbing,
the boys corroborated that A.K. had been at the house during the
relevant time frame and that A.K. had wrestled or engaged in horseplay
with K.D. K.D. testified that he did not like to be touched that way by
A.K. and he found it embarrassing. We find K.D.’s testimony more
credible than the testimony opposing it. The State proved beyond a
reasonable doubt that A.K. committed three acts of assault with intent to
commit sexual abuse against K.D.
However, we find the State has not met its burden to prove A.K.
committed an assault against J.E. as the crime is defined under Iowa
Code section 708.1(1) and (2). J.E.’s uncontroverted testimony was that
after she willingly accompanied A.K. to the abandoned house, A.K. dared
her to pull down her pants. She complied at first but after a few
moments pulled up her pants and ran away. J.E. testified that A.K. was
across the room from her when he spoke to her. A.K. did not touch her,
move toward her, or make any verbal utterance threatening her with
physical contact. We cannot conclude beyond a reasonable doubt on
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this record that A.K. assaulted J.E. Accordingly, we reverse the juvenile
court’s adjudication of A.K. as to this count.
IV. Conclusion.
For the reasons stated above, we affirm the juvenile court’s
adjudication of A.K. as a delinquent as alleged in counts I, II, and III of
File No. JVJV500105 (D.E.) and counts I, II, and III of File No.
JVJV500109 (K.D.). We reverse the juvenile court’s adjudication of A.K.
as a delinquent as to count IV of File No. JVJV500105 (J.E.).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.