In the Interest of K.H., Minor Child

• Court: Court of Appeals of Iowa
• Decided: January 9, 2020
• Docket: 19-0199
• Status: Published

Opinion

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. ________________________________________________________________

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. 2

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.” 3

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 4

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 5

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.