In the Interest of K.H., Minor Child

IN THE COURT OF APPEALS OF IOWA
No. 19-0199
Filed January 9, 2020
IN THE INTEREST OF K.H.,
Minor Child,
K.H., Minor Child,
Appellant.
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Appeal from the Iowa District Court for Scott County, Gary P. Strausser,
District Associate Judge.
A juvenile appeals his adjudication as a delinquent for assault with intent to
commit sexual abuse. AFFIRMED.
Steven W. Stickle (until withdrawal) of Stickle Law Firm, P.L.C., Davenport,
G. Brian Weiler (until withdrawal), Davenport, and Grishma Arumugam, Davenport,
for appellant.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Mullins and May, JJ.
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TABOR, Presiding Judge.
The question in this appeal is whether the State proved beyond a
reasonable doubt that thirteen-year-old K.H. assaulted a younger boy with the
intent to commit sexual abuse. Because sufficient credible evidence supports the
elements of that offense, we affirm the delinquency adjudication.
I. Facts and Prior Proceedings
J.W. visited K.H.’s house one evening in the fall of 2017. The two boys
played in K.H.’s room while the adults gathered around a bonfire outside. One of
those adults was John, the boyfriend of K.H.’s mother.
John came inside to use the restroom and through the bedroom door
overheard K.H. tell J.W. to “touch it, touch it.” J.W. said “no.” Through a peep hole
in the door, John could see K.H. approach J.W. as he sat on the bed. K.H. was
holding his cell phone in one hand and pulling on the elastic waistband of his pants
with his other hand. John—who saw himself as a “father figure” for K.H.—barged
into the boy’s room and directed J.W. to go find his own father downstairs. John
then told K.H. he was in “big trouble.”
In his testimony, nine-year-old J.W. recalled K.H. pulling his pants down
and exposing his penis. J.W. said K.H.’s conduct made him “uncomfortable” and
“mad.” But J.W. answered “no” when asked if K.H. urged him to touch his penis.
K.H. did testify that John entered the room just as K.H. was approaching him.
In an interview with police, K.H. denied showing his penis to J.W., but
acknowledged John came into his room and accused him of “doing some weird
stuff.”
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The State petitioned the juvenile court to find K.H. was delinquent. The
court held a hearing in July 2018. At the close of the State’s evidence, the court
denied K.H.’s motion for directed verdict. The court found substantial evidence
that K.H. assaulted J.W. The court noted: “The child did not specifically testify that
it was insulting or offensive.” But the court found it sufficient that K.H.’s act of
exposing his penis “made [J.W.] mad and it was clear that he was uncomfortable.”
K.H. now appeals the delinquency finding.
II. Scope and Standard of Review
The State bears the burden of proving beyond a reasonable doubt that the
juvenile committed the delinquent act alleged. Iowa Code § 232.47(10) (2018).
We review delinquency proceedings de novo. In re A.K., 825 N .W.2d 46, 49 (Iowa
2013). Despite our de novo review, we give weight to the factual findings of the
juvenile court, especially as to witness credibility, though they do not bind us. Id.
III. Analysis
To prove K.H. carried out the delinquent act of assault with intent to commit
sexual abuse, the State had to prove he assaulted J.W. with the intent to commit
a sex act. See Iowa Code §§ 709.1, 709.11(3). An assault is “[a]ny act . . .
intended to place another in fear of immediate physical contact which will be
painful, injurious, insulting, or offensive, coupled with the apparent ability to
execute the act.” Id. § 708.1(2)(b); see State v. Trane, 934 N.W.2d 447, 455 (Iowa
2019). The term “sex act” includes contact between the finger or hand of one
person and the genitalia of another. See Iowa Code § 702.17(3).
On appeal, K.H. contends the State did not prove he committed an assault.
He does not specifically contest the proof of his intent to commit a sex act. But he
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does allege in passing that the State did not prove “an alleged exposure” beyond
a reasonable doubt. Exposing one’s penis is not strictly an element of the offense,
but it may reveal the sexual intent of the perpetrator.
K.H. dwells on the tepid testimony of J.W. who denied under oath that K.H.
asked him to touch his penis. Conspicuously absent from K.H.’s argument is any
mention of the testimony of his mother’s then boyfriend. That adult’s testimony
solidified the State’s case.
To be sure, the juvenile court recognized “inconsistencies” between J.W.’s
testimony and John’s testimony. Yet the court resolved that contradiction by
crediting John’s testimony that he heard K.H. repeatedly ask J.W. to touch his
penis. The court did what it was designed to do. See Tim O'Neill Chevrolet, Inc.
v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996) (“The trier of fact—here, the district
court—has the prerogative to determine which evidence is entitled to belief.”)
Here, we leave determinations of credibility for the trier of fact, who was in a better
position to evaluate them. See State v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000).
All in all, the State’s evidence established an assault with intent to commit
sexual abuse. In the seclusion of his bedroom, K.H. pressed the younger boy to
touch his exposed penis. K.H. moved toward J.W. as he sat on the older boy’s
bed. That conduct evidenced an intent to place J.W. in fear of immediate physical
contact with K.H.’s genitalia. The record shows J.W. believed that contact would
be insulting or offensive; he said “no” to K.H.’s commands and later described his
reaction as uncomfortable and “mad.” See A.K., 825 N.W.2d at 53 (upholding
assault-with-intent conviction when victim testified he found touching of genitalia
through his pants to be “embarrassing”). K.H. was asking J.W. to commit a sex
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act, which would have led to sexual abuse with a child. See generally State v.
Spargo, 364 N.W.2d 203, 211 (Iowa 1985) (holding consent was not defense to
charge of assault with intent to commit sexual abuse because child legally could
not consent to sex act).
After our de novo review of the evidence, we defer to the juvenile court’s
assessment of witness credibility and find substantial evidence to support the
court’s delinquency adjudication.
AFFIRMED.