The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 16, 2022
2022COA65
No. 20CA1539, People in Interest of J.O. — Juvenile Court — Delinquency; Crimes — Unlawful Sexual Contact — Intent — Sexual Gratification — Sexual Abuse
In this juvenile delinquency appeal, a division of the court of
appeals vacates a juvenile’s adjudication for the offense of unlawful
sexual contact because it concludes that the evidence was
insufficient to prove beyond a reasonable doubt that the juvenile
acted for the purposes of sexual gratification or abuse. In resolving
the appeal, the division holds that the trier of fact must consider a
juvenile’s age and maturity before it can infer the requisite intent
that the juvenile acted with a sexual purpose. The division also
clarifies that it may not — and often will not — be appropriate for a
fact finder to ascribe the same intent to a juvenile’s act that one
could reasonably ascribe to the same act if performed by an adult. COLORADO COURT OF APPEALS 2022COA65
Court of Appeals No. 20CA1539 City and County of Denver Juvenile Court No. 19JD570 Honorable Pax Moultrie, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of J.O.,
Juvenile-Appellant.
JUDGMENT VACATED
Division IV Opinion by JUDGE BROWN Richman and Pawar, JJ., concur
Announced June 16, 2022
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant ¶1 J.O. appeals his juvenile delinquency adjudication for the
offense of unlawful sexual contact, contending that the evidence
was insufficient to prove beyond a reasonable doubt that he acted
for the purposes of sexual gratification or sexual abuse. Because
we agree, we vacate J.O.’s delinquency adjudication.
¶2 In resolving this appeal, we hold as a matter of first impression
that the trier of fact must consider the juvenile’s age and maturity
before it can infer the requisite intent that the juvenile acted with a
sexual purpose. And we clarify that it may not — and often will not
— be appropriate for a fact finder to ascribe the same intent to a
juvenile’s act that one could reasonably ascribe to the same act if
performed by an adult.
I. Background
¶3 The prosecution presented the following evidence during a
one-day bench trial.
¶4 In May 2019, at the end of the school day, eleven-year-olds
J.O. and M.L. were working on a writing project. J.O. sat next to
M.L. and asked her why they were not friends anymore. When M.L.
responded that she did not want to be friends anymore, J.O.
“slapped [her] on [her] boob” with “the back of his hand.”
1 ¶5 After class ended, a teacher noticed that M.L. and J.O. were
“running around their lockers” and “chasing each other.” The
teacher testified that J.O. and M.L. were both laughing at first
during the encounter, but then M.L. began to look “visibly upset.”
The teacher testified that M.L. yelled at J.O. to stop and leave her
alone. After J.O. left, the teacher went over to M.L. and M.L. told
her that J.O. had “touched her sexually” and said “sexual things.”
M.L. did not explain further — either then or at trial — what “sexual
things” J.O. said. The teacher reported the incident to the
principal.
¶6 Three days later, during a forensic interview, M.L. said that
when she and J.O. were at the lockers, J.O. started to “move his
hands” all over her body. She said that J.O. then touched her
genitals with his “butt or something,” which felt “weird and
disturbing.” J.O. touched her genitals with his hand, his “front
private” touched her butt, and “his butt touched [her] butt” as he
was “spinning around her.”
¶7 M.L. said that J.O. never touched her under her clothes. At
one point during the encounter, M.L. told J.O. to stop and go away.
2 J.O. then went to his locker, grabbed his things, and left for the
day.
¶8 M.L. testified at trial that J.O. did not say anything to her
when he was trying to touch her by her locker.
¶9 At the close of trial, the court entered its findings:
[J.O.] is charged with unlawful sexual contact. The elements of that include that he unlawfully and knowingly subjected [M.L.] to sexual contact, that he knew the victim did not consent. And the Court will note that the definition of sexual contact is contact, among other things, for the purpose of sexual gratification.
....
The Court finds that clearly there was contact, that it was unlawfully and knowingly done. . . . It was clear [M.L.] did not consent.
. . . And the Court finds that it was for the purpose of sexual gratification. The Court notes the touching was not pulling her hair, touching her head, twisting an arm. It was contact in sexual parts of [M.L.]’s body. Her breast, her genital area, and her butt.
So the Court finds that the People have proven all the elements of [unlawful sexual contact] beyond a reasonable doubt.
¶ 10 The court adjudicated J.O. delinquent and sentenced him to
one year of probation.
3 II. Sufficiency of Evidence
¶ 11 J.O. argues that the evidence presented at trial was
insufficient to prove beyond a reasonable doubt that he acted with
the statutorily required sexual purpose. We agree.
A. Standard of Review
¶ 12 The prosecution must prove every element of a charged crime
beyond a reasonable doubt. People v. Snyder, 874 P.2d 1076, 1080
(Colo. 1994). “We review the record de novo to determine whether
the evidence presented was sufficient in both quantity and quality
to sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,
¶ 63; see also People in Interest of J.R., 216 P.3d 1220, 1221 (Colo.
App. 2009) (“When reviewing the sufficiency of the evidence
supporting an adjudication of juvenile delinquency, the standards
are the same as those used in a criminal case.”). We must
determine whether the evidence, viewed in the light most favorable
to the prosecution, was both substantial and sufficient to support
4 the conclusion by a reasonable mind that the defendant was guilty
beyond a reasonable doubt. People v. Griego, 2018 CO 5, ¶ 24.1
¶ 13 We review questions of statutory interpretation de novo.
People v. Diaz, 2015 CO 28, ¶ 9. Our primary task is to ascertain
and give effect to the intent of the General Assembly. People v.
Lovato, 2014 COA 113, ¶ 21. We look first to the language of the
statute itself, giving the words their commonly accepted meaning
and avoiding a strained or forced interpretation. Id.
B. Unlawful Sexual Contact
¶ 14 Section 18-3-404(1)(a), C.R.S. 2021, provides that “[a]ny actor
who knowingly subjects a victim to any sexual contact commits
unlawful sexual contact if . . . [t]he actor knows that the victim does
not consent.” As relevant here, sexual contact includes “the
knowing touching of the clothing covering the immediate area of the
victim’s or actor’s intimate parts if that sexual contact is for the
purposes of sexual arousal, gratification, or abuse.” § 18-3-
1 The People contend that J.O. did not preserve this issue, but a defendant need not raise a sufficiency of the evidence claim at trial to preserve the issue for appellate review. McCoy v. People, 2019 CO 44, ¶ 26.
5 401(4)(a), C.R.S. 2021. “Intimate parts” include genitalia, buttocks,
and breasts. § 18-3-401(2).
¶ 15 On appeal, J.O. does not contend that the evidence was
insufficient to establish that he knowingly touched M.L.’s clothing
covering her intimate parts or that such contact was without M.L.’s
consent. Instead, J.O. contends that the evidence was insufficient
to establish that he acted for the purposes of sexual gratification or
sexual abuse.
C. Sexual Gratification
1. Sexual Purpose May Not Be Inferred Solely from the Act
¶ 16 When the juvenile court found that J.O. engaged in sexual
contact for the purpose of sexual gratification, it explained that the
“touching was not pulling her hair, touching her head, twisting an
arm. It was contact in sexual parts of [M.L.]’s body.”
¶ 17 The juvenile’s intent — whether he acted “for the purposes of
sexual arousal, gratification, or abuse” — is a separate element
from whether he touched the clothing covering the victim’s intimate
parts. § 18-3-401(4)(a); Page v. People, 2017 CO 88, ¶¶ 18-19
(identifying the elements of unlawful sexual contact as “knowingly
touching the victim’s intimate parts with sexual purpose and
6 knowing that the victim does not consent” and explaining that “[t]he
unlawful sexual contact statute expressly requires that the
defendant act with a sexual purpose”). Had the legislature intended
the mere act of touching an intimate part without consent to
constitute unlawful sexual contact, it would not have included the
words “if that sexual contact is for the purposes of sexual arousal,
gratification, or abuse” in the statutory definition of the offense.
See § 18-3-401(4)(a); People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001)
(“Courts should not presume that the legislature used language
‘idly and with no intent that meaning should be given to its
language.’”) (citation omitted); cf. A.B. v. Juv. Officer, 447 S.W.3d
799, 806 (Mo. Ct. App. 2014) (interpreting a similarly worded
statute and reasoning that, had the legislature “considered the
mens rea to automatically accompany the act, it would not have
specifically identified them as two separate elements in its definition
of ‘sexual contact’”).
¶ 18 To the extent the court viewed the fact that J.O. touched the
“sexual parts of [M.L.]’s body” — standing alone — as sufficient to
establish that J.O. acted with the requisite purpose, it misapplied
the law by conflating two elements. The statutorily required intent
7 cannot be inferred solely from the act of touching. See A.B., 447
S.W.3d at 806 (“We are also not persuaded that intent can be
inferred from the act alone.”); In re T.S., 515 S.E.2d 230, 233 (N.C.
Ct. App. 1999) (“[T]he element ‘for the purpose of arousing or
gratifying sexual desire’ may not be inferred solely from the act
itself . . . .”).
¶ 19 On review of a challenge to the sufficiency of the evidence,
however, we are not bound by what the juvenile court articulated as
the basis for its finding; rather, we must consider all the evidence to
determine whether any rational trier of fact might accept it as
sufficient to support a finding of guilt beyond a reasonable doubt.
See People in Interest of J.G., 97 P.3d 300, 302-03 (Colo. App. 2004)
(finding evidence sufficient to support adjudication despite juvenile
court’s contrary finding on review of the magistrate’s judgment).
2. Circumstantial Evidence Required to Infer Intent in Juveniles
¶ 20 In this case, there is no direct evidence of J.O.’s intent, such
as an admission by J.O. that he touched M.L. for his or her sexual
gratification. But a defendant’s intent can, and often must, be
proved by circumstantial evidence. People v. Taylor, 655 P.2d 382,
384 (Colo. 1982) (“[W]e have repeatedly recognized that direct proof
8 of the defendant’s state of mind is rarely available and,
consequently, resort must necessarily be had to circumstantial
evidence on this element.”); People v. Hines, 2021 COA 45, ¶ 37 (“A
jury may properly infer intent from the defendant’s conduct and the
circumstances of the offense.”). And whether a defendant acted
with the requisite mental state to sustain a conviction for unlawful
sexual contact can be inferred from the nature of and the
circumstances surrounding the sexual touching. See People v.
West, 724 P.2d 623, 624, 631 (Colo. 1986) (concluding that the
evidence was sufficient to sustain a finding of sexual contact where
witnesses testified they twice saw the middle-aged defendant, while
swimming and playing in a pool with a ten-year-old boy he met that
day, deliberately place one hand on the boy’s buttocks and another
over the boy’s genital area, each time for about five seconds, if not
“for a considerably longer period of time”); People v. McCoy, 2015
COA 76M, ¶ 47 (concluding that where adult defendant, who
claimed to be a physician, lured two victims to his home by telling
them he worked in television, questioned them about their sexual
histories and sexual fantasies, and physically examined them —
including touching their genitals — the jury could reasonably
9 conclude that he examined the victims for the purpose of sexual
gratification), aff’d on other grounds, 2019 CO 44.
¶ 21 J.O. does not argue that intent cannot be inferred from the
circumstantial evidence surrounding the contact. Nor does he
argue that the standard for evidentiary sufficiency is age dependent.
Instead, he argues that courts cannot assume, when one child
touches another child’s intimate parts, that the child’s intentions
are the same as would be evidenced by similar acts engaged in by
an adult. In other words, he argues that “it is not justified to
impute the same intent into a child’s action that one could
reasonably impute into the actions of an adult.” In re M.H., 2019 IL
App (3d) 180625, ¶ 16, 127 N.E.3d 1146, 1150 (citation omitted).
¶ 22 We are not aware of, and the parties have not cited, any
Colorado precedent articulating what type or quantity of
circumstantial evidence might be sufficient to prove beyond a
reasonable doubt that a juvenile acted for the purpose of sexual
gratification. But several other states have addressed the issue.
¶ 23 We find M.H. most persuasive. In that case, the juvenile was
eleven at the time of the incident. Id. at ¶ 1, 127 N.E.3d at 1147.
At trial, the prosecution presented evidence that the juvenile told
10 the victim, who was eight, that he was “curious about seeing a girl
naked.” Id. at ¶ 9, 127 N.E.3d at 1149. The victim testified that
she and the juvenile went to her mother’s bedroom and took off
their pants. Id. The juvenile “touched his penis to [the victim’s]
vaginal area from behind” and told the victim that “this is
something everybody does, people feel good about this.” Id. at ¶¶ 9-
10, 127 N.E.3d at 1149.
¶ 24 The appellate court acknowledged that the State could prove
the juvenile acted for the purpose of sexual gratification or arousal
by circumstantial evidence and identified the kinds of evidence that
might suffice. Id. at ¶ 17, 127 N.E.3d at 1150.
Circumstantial evidence of sexual gratification may include the removal of clothing, heavy breathing, placing the victim’s hand on the accused’s genitals, an erection, or other observable signs of arousal. Sexually explicit comments by the accused may also support a finding that the accused acted for purposes of sexual gratification or arousal.
Id. (citation omitted).
¶ 25 The court in M.H. instructed that the trier of fact must
consider all the evidence, including the juvenile’s age and level of
maturity, before deciding whether intent can be inferred under the
11 circumstances. Id. at ¶ 18, 127 N.E.3d at 1150. And it explained
that
[t]he closer the accused is to the age of majority, the more plausible it is for the court to infer that the accused acted for the purpose of sexual gratification and arousal. Sexual conduct by 11 to 13 year olds “is more apt to be innocent than similar conduct by older minors.”
Id. (citing and quoting In re Donald R., 796 N.E.2d 670, 678 (Ill.
App. Ct. 2003) (Holdridge, J., specially concurring)).
¶ 26 Given M.H.’s age — eleven at the time of the incident — the
court held that “the trier of fact could not infer that M.H. acted for
the purpose of sexual gratification or arousal when he touched his
penis to [the victim’s] vagina.” Id. at ¶ 19, 127 N.E.3d at 1150. The
only evidence the State presented to establish that M.H. had acted
with the requisite purpose was the act itself and M.H.’s statements
to the victim. Id. at ¶ 20, 127 N.E.3d at 1150-51. Rather than
demonstrating that M.H. acted for the purpose of sexual
gratification or arousal, the evidence “show[ed] M.H.’s immaturity
and his complete lack of understanding of sex.” Id. at ¶ 20, 127
N.E.3d at 1151. In the absence of any other evidence of the type
articulated, the court concluded that the State failed to present
12 sufficient evidence that M.H. acted for the purpose of sexual
gratification or arousal and reversed M.H.’s conviction. Id. at ¶ 21,
127 N.E.3d at 1151.
¶ 27 Courts in other jurisdictions have concluded that evidence was
insufficient to establish that a juvenile acted with a sexual purpose
for reasons similar to those articulated in M.H. See, e.g., In re
S.A.A., 795 S.E.2d 602, 605-06 (N.C. Ct. App. 2016) (reasoning
that, for juveniles, sexual purpose “does not exist without some
evidence of the child’s maturity, intent, experience, or other factor
indicating his purpose in acting,” and finding that the evidence was
insufficient to establish that the thirteen-year-old juvenile acted for
“the purpose of arousing or gratifying sexual desire” when he wiped
green liquid from a Halloween costume on the shoulders and
breasts of two eleven-year-old girls (quoting In re K.C., 742 S.E.2d
239, 242-43 (N.C. Ct. App. 2013))); In re Kyle O., 703 N.W.2d 909,
915 (Neb. Ct. App. 2005) (collecting cases from other jurisdictions
“refus[ing] to automatically make the same inference of sexual
gratification where the actor was a child rather than an adult,” and
finding that the evidence was insufficient to establish that the
twelve-year-old juvenile acted for the purpose of sexual gratification
13 or arousal when he pulled down the pants of a five-year-old child,
grabbed the child’s penis, and remarked to other children about the
small size of the penis); In re A.J.H., 568 N.E.2d 964, 968 (Ill. App.
Ct. 1991) (holding that “it is not justified to impute the same intent
into a child’s action that one could reasonably impute into the
actions of an adult,” and finding that the evidence was insufficient
to establish that a thirteen-year-old girl intended to sexually “gratify
or arouse” when she put her hand on the penis of a five-year-old
boy she was babysitting and told the boy not to tell anyone); cf. In re
Donald R., 796 N.E.2d at 676 (concluding that a reasonable fact
finder could infer that a sixteen-year-old boy acted for the purpose
of sexual gratification or arousal when he exposed his penis to a
six-year-old girl and had her touch his penis, based in part on the
fact that he was significantly closer to adulthood). We find these
out-of-state authorities persuasive.
¶ 28 Whether a juvenile acted for the purpose of sexual gratification
must be determined on a case-by-case basis. The trier of fact must
consider all the relevant circumstances, including the juvenile’s age
and maturity, before it can infer the requisite intent. It may not —
and often will not — be appropriate for a fact finder to ascribe the
14 same intent to a juvenile’s act that one could reasonably ascribe to
the same act if performed by an adult.
¶ 29 We have not been asked to and do not hold that a juvenile is
not capable of acting for the purpose of sexual gratification. But
there must be other evidence of the juvenile’s sexual purpose
beyond the sexual contact itself — for example, removing clothing,
heavy breathing, placing the victim’s hand on the accused’s
genitals, an erection, other observable signs of arousal, the
relationship of the parties, sexually explicit comments, coercing or
deceiving the victim to obtain cooperation, attempting to avoid
detection, or instructing the victim not to disclose the occurrence.
See M.H., ¶ 17, 127 N.E.3d at 1150; see also Kyle O., 703 N.W.2d at
917 (collecting cases that identify the types of circumstantial
evidence required to establish that a juvenile acted with a sexual
purpose); In re Jerry M., 69 Cal. Rptr. 2d 148, 153-54 (Ct. App.
1997) (listing circumstances relevant to proving intent to satisfy
sexual desires, including the age and sexual maturity of the
accused minor and whether the minor has reached puberty). These
examples are not exhaustive. And the presence of one or a
combination of these facts may or may not be sufficient, when
15 considered with the totality of the evidence, to establish that a
juvenile acted for the purpose of sexual gratification in a given case.
3. The Evidence Was Insufficient to Establish that J.O. Acted for the Purpose of Sexual Gratification
¶ 30 The People contend that the following evidence, when viewed
as a whole and in the light most favorable to the prosecution, is
substantial and sufficient to support a conclusion by a reasonable
mind that J.O. acted for the purpose of sexual gratification:
• at eleven years old, J.O. was “not a young child”;
• J.O. touched the clothing over three of M.L.’s intimate
parts;
• M.L. told the teacher that J.O. had said “sexual things” to
her in the hallway; and
• J.O. touched M.L. after he “indicated a desire for a
relationship” and “was rebuffed.”
¶ 31 We reject the People’s characterization of the “relationship”
evidence. The only evidence presented at trial was that J.O. asked
M.L. why she did not want to be friends anymore. There was no
evidence that J.O. desired a sexual or romantic relationship with
M.L. or that the two had ever had that type of relationship. The
16 “relationship” evidence in no way demonstrates that J.O.’s conduct
toward M.L. was for the purpose of sexual gratification. We note
that the juvenile court did not mention the nature of the
relationship between J.O. and M.L. when finding that J.O. acted for
the purpose of sexual gratification.
¶ 32 Even viewed in the light most favorable to the prosecution, the
remaining evidence is not substantial and sufficient to support a
conclusion by a reasonable fact finder that J.O. acted for the
purpose of sexual gratification.
¶ 33 An eleven-year-old boy touched the clothing covering the
intimate parts of an eleven-year-old girl in a classroom and in a
crowded school hallway in front of classmates and at least one
teacher. As noted, J.O.’s intent cannot be inferred from the act of
touching alone. And the prosecution did not present other evidence
from which the court could infer that J.O. acted for the purpose of
sexual gratification — for example, that J.O. admitted he touched
M.L. for his or her sexual gratification, removed any clothing (his or
M.L.’s), placed M.L.’s hands on his intimate parts, touched M.L. in a
way that mimicked sexual acts, breathed heavily, had an erection or
any other observable signs of arousal, or told M.L. not to tell anyone
17 what he had done. See M.H., ¶ 17, 127 N.E.3d at 1150; A.J.H., 568
N.E.2d at 968.
¶ 34 True, M.L. told a teacher that J.O. had said “sexual things” to
her, but M.L. never elaborated on what “sexual things” meant.
Without more detail, it is speculative to conclude that the
unspecified “sexual things” J.O. said revealed the requisite intent.
See People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999) (“[V]erdicts in
criminal cases may not be based on guessing, speculation, or
conjecture.”). Although the prosecution is entitled to the benefit of
every reasonable inference that may fairly be drawn from the
evidence, “there must be a logical and convincing connection
between the facts established and the conclusion inferred.” Clark v.
People, 232 P.3d 1287, 1292 (Colo. 2010); see also People v. Dash,
104 P.3d 286, 289 (Colo. App. 2004) (“More than a modicum of
evidence is necessary to support a conviction beyond a reasonable
doubt.”).
¶ 35 There was also no indication that the juvenile court
specifically considered J.O.’s age and maturity or whether the same
sexual motivation could be ascribed to his conduct as would be
ascribed to the conduct of an adult. (In fairness to the juvenile
18 court, no published Colorado appellate decision previously
instructed it to do so.)
¶ 36 We do not condone J.O.’s behavior or seek to minimize its
impact on M.L. On this record, however, we conclude that the
evidence presented at trial was insufficient for a reasonable fact
finder to find beyond a reasonable doubt that J.O. acted for the
purpose of sexual gratification. Consequently, we vacate J.O.’s
adjudication of juvenile delinquency.
D. Sexual Abuse
¶ 37 Even if the evidence was insufficient for the juvenile court to
have found that J.O. acted for the purpose of sexual gratification,
the prosecution argues that we may affirm the juvenile court’s
judgment on alternative grounds — namely, that the evidence
presented was sufficient for the court to have found that J.O. acted
for the purpose of sexual abuse. See People v. Cousins, 181 P.3d
365, 370 (Colo. App. 2007) (holding that a trial court’s decision may
be upheld on any ground supported by the record).
¶ 38 To subject a victim to sexual contact for the purpose of sexual
abuse, the actor must act for the “purpose of causing sexual
humiliation, sexual degradation, or other physical or emotional
19 discomfort of a sexual nature.” People v. Espinosa, 2020 COA 63,
¶ 21. The prosecution can prove that the sexual contact was for the
purpose of “abuse” — meaning “pain, injury, or discomfort” — by
showing that the defendant specifically targeted the victim’s
intimate parts for that purpose. Lovato, ¶¶ 32-33.
¶ 39 The prosecution’s theory of the case was that J.O. acted for
the purpose of sexual gratification, not for the purpose of sexual
abuse. Consequently, neither party presented evidence or
argument specifically relating to sexual abuse. Still, the
prosecution argues that, because the unwelcome touching occurred
in a public forum — a school classroom and hallway — and caused
M.L. discomfort, J.O. “sought to cause [M.L.] emotional discomfort
of a sexual nature” and thus acted for the purpose of sexual abuse.
¶ 40 In support of its argument, the prosecution cites In re Mark R.,
757 A.2d 636, 638-39 (Conn. App. Ct. 2000), in which the court
found sufficient evidence that a juvenile acted for the purpose of
sexual abuse when he grabbed the victim’s hands in a school
hallway, pushed her against the wall, attempted to pull down her
pants, smacked “the victim’s buttocks more than once,” and
20 “touched the victim’s breasts inside her shirt” in front of several
people. Id.
¶ 41 The People also cite Kyle O., 703 N.W.2d at 917, where the
juvenile pulled down another boy’s pants, grabbed the boy’s penis,
and commented to other children about the small size of the boy’s
penis. The court in Kyle O. opined that it “would be very easy to
construe Kyle’s conduct as being for the purpose of humiliating,
bullying, or annoying” the boy, but it explained that, “[a]lthough
some jurisdictions criminalize sexual contact for the purpose of
humiliating or degrading a person, Nebraska does not.” Id. at 918.
¶ 42 Like the juveniles in Mark R. and Kyle O., J.O. touched M.L. in
a public setting in front of peers. But the conduct in those cases —
disrobing or attempting to disrobe the victims and grabbing the
victims’ intimate parts unclothed or inside clothing — was more
egregious. And, at least in the case of Kyle O., the juvenile’s
comments were evidence of an intent to humiliate the victim. Id. at
917. As a result, we do not find these cases persuasive.
¶ 43 The prosecution presented no evidence that M.L. suffered any
pain or injury from J.O.’s contact and no evidence that the
emotional discomfort M.L. felt when J.O. touched her was sexual in
21 nature. On this record, we conclude that the evidence was
insufficient for a reasonable fact finder to have found beyond a
reasonable doubt that J.O. acted for the purpose of sexual abuse.
III. Disposition
¶ 44 We vacate the delinquency adjudication.
JUDGE RICHMAN and JUDGE PAWAR concur.