A.B. v. Juvenile Officer
| Decision Date | 12 November 2014 |
| Docket Number | WD 77226 |
| Citation | 447 S.W.3d 799 |
| Court | Missouri Court of Appeals |
| Parties | In the Interest of: A.B., Appellant, v. Juvenile Officer, Respondent. |
Anne V. Kiske, St. Joseph, MO, for appellant.
Summer A. Duke, St. Joseph, MO, for respondent.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge
A.B. appeals the judgment of the Circuit Court of Buchanan County, Missouri, Juvenile Division, sustaining the allegations against him that he committed the delinquent act of sexual molestation in the first degree pursuant to 566.067.1.1 A.B. argues on appeal that the trial court erred in finding sufficient evidence to establish beyond a reasonable doubt that he had the requisite mental state (i.e. that the actions were taken “for the purpose of arousing or gratifying sexual desire of any person”). For the reasons set forth below, the judgment is reversed.
D.H.3 a five-year-old boy, was found by his father on a trampoline with another five-year-old boy with both of their pants down and touching each other's genitals.4 D.H.'s father testified that when he asked D.H. where he had learned this behavior, D.H. told him that he learned it from A.B. A.B. was the son of family friends who was twelve-years old and had been to the home of D.H. on multiple occasions. Based on this report and further investigation, A.B. was alleged by the Juvenile Officer (“J.O.”) to have committed the delinquent act of sexual molestation in the first degree under section 566.067.1 against D.H.
Testimony adduced at a bench trial established that incidents between A.B. and D.H. occurred on two or three occasions in the summer of 2013. The evidence was inconsistent as to exactly what happened. At various times each of the children stated that each touched the other's genitals and at other times each of the children stated that they each put the other's genitals in their mouths. The incidents occurred in a bedroom and there were parents and other children present in the house. There was no evidence that either child achieved an erection or ejaculation as a result of any of the incidents. Both children were consistent throughout that each incident was very brief, lasting only a few seconds. D.H. testified that A.B. told him not to tell anyone about what happened.
D.H. was unable to describe at trial what had happened until after taking a short break to confer with counsel. In his very brief testimony, D.H. told the court “he sucked my penis and he kissed my butt cheek and we did it to each other.” D.H. stated it happened two times. D.H.'s father (“J.H.”) described seeing his son on the trampoline with another five-year-old boy with their pants down. J.H. asked D.H. where he had learned that “crap.” D.H. told him that A.B. taught him.
Detective Mike Wilkerson (“Det. Wilkerson”), a detective with the Buchanan County Sheriff's Department, took a statement from A.B. in the presence of A.B.'s parents and Juvenile Officer Peau (“Officer Peau”).5 Detective Trenny Wilson (“Det. Wilson”), a St. Joseph police officer, conducted forensic interviews with both D.H. and A.B. Det. Wilson conducted the interviews as part of her second job interviewing children on behalf of the Buchanan County Sheriff's Department. The information provided in these statements was consistent with the evidence set forth above.
At the close of the State's evidence, A.B. moved for a finding that the State did not meet its burden in proving all three elements of the crime pursuant to section 566.067.1 in that the State presented no evidence that the acts were done for the purpose of sexual arousal or gratification. The court denied the motion, stating: “Well, I think the only inference could be if a 13–year–old [sic] is touching a five-year-old's penis, I don't know what the other inference would be.” A.B. then presented evidence.6
Dr. Gregory Sisk (“Dr. Sisk”), a clinical psychologist who has maintained a contract with the Missouri Children's Division for over thirty years testified for A.B. Dr. Sisk has conducted thousands of child interviews over the years, with forty-five percent of those involving allegations of sexual abuse. Dr. Sisk conducted an evaluation of A.B. which included a “typical battery” of tests such as a measurement of intelligence and academic function, personality tests, tests on family life and a juvenile sex offender risk assessment test. Dr. Sisk stated that he deemed the tests reliable based on a lack of “patterns that might reveal tendencies to distort information.”
A.B. told Dr. Sisk that he was at D.H.'s house and they were playing. Dr. Sisk stated that “he confirmed to me that he gave D.H. the idea that they should explore each other's genitals.” “There was no erection, there was no arousal, there was no ejaculation,” just touching.
Dr. Sisk testified that on a scale of zero to thirty, A.B. scored a two on the juvenile sex offender risk assessment test, which is classified as “low risk.” He received one point for having had two incidents within six months of each other and one point for having had “one incident of prior sexual abuse as a victim.”
The testing showed A.B. to be immature and have less understanding of sexual issues than an average twelve or thirteen-year-old. Dr. Sisk viewed the events between D.H. and A.B. as follows: Dr. Sisk found no evidence of “any sort of sexual deviation or preoccupation or anything that would explain that he'd be doing it for arousal or gratification.” Dr. Sisk recommended that continued individual and family counseling would be adequate to provide A.B. with sex education and the family with improved communication skills. Dr. Sisk strongly opposed any sort of “sex offender treatment” as that would be a “misfire” and not at all appropriate or helpful to A.B. given his lack of sexual thoughts, feelings and triggers. “I don't think he has that.” A.B. needs exactly what he is already getting; that is, counseling with a therapist. Dr. Sisk opined that A.B. did not exhibit any grooming or predatory behavior. A.B. knew that his behavior with D.H. was of a wrong nature, as opposed to a sexual one.
Ada Silvey (“Silvey”) is a licensed clinical social worker who has over forty years of experience. Silvey first met A.B. the day after his interviews with Det. Wilson and Det. Wilkerson. Silvey later obtained Det. Wilson's videotaped interviews of D.H. and A.B. as well as all of the reports prepared regarding the incidents. After reviewing everything, Silvey developed a treatment plan to teach A.B. basic sexuality because when she started talking about it with him, she “realized that he knew very little of anything.” For example, A.B. did not know what the words erection, ejaculation, oral sex or masturbation meant and did not understand basic birth facts. Silvey is currently using a book designed for ages five to eight with A.B. because that is “where he is” with regard to his sexual knowledge. Silvey has never met a more “ill-informed and undeveloped” thirteen-year-old as A.B. She does not believe that he is faking. Silvey sees A.B. once or twice per week. Based on her education, training and experience, it is Silvey's opinion that A.B. was just exploring.
It is her opinion that the touching that occurred with D.H. was not sexual in nature.
As rebuttal, the J.O. presented the testimony of Joyce Estes (“Estes”), who is a licensed clinical social worker. Estes had never met or interviewed A.B. or D.H. As such she could opine only generally on normal sexual development in children in the general population. Estes offered no specific opinions regarding A.B., including no opinion whatsoever whether he had the intent to sexually gratify himself or even the knowledge or capacity for sexual gratification. Nonetheless, Estes opined that in general “mouth-to-penis contact” was an “advanced stage of sexual whatever.” When asked “when a person engages in oral sex,7 is that generally to satisfy desire, arousal and gratification?” she replied “That would definitely be the only reason I could think that they would do it....” She further opined that with an age difference of more than four years between the children, it is no longer sexual exploration but is an abusive act because “the younger child doesn't have the power to stop it, doesn't even know that they could stop it probably, wouldn't have the strength.”
Following trial, the court found “beyond a reasonable doubt that the facts contained in the petition are true.” The court found A.B. to be within the jurisdiction of the juvenile court and ordered that he be placed on probation, register with the juvenile officer as a juvenile sex offender pursuant to section 211.425, be given a sex offender psychological evaluation, and have no unsupervised contact with children under the age of seven. A.B. timely appeals. Further facts will be set forth below as necessary.
In his sole point, A.B. argues that there was insufficient evidence to find that he committed the delinquent act of sexual molestation beyond a reasonable doubt because there was no evidence from which the trial court could find that he had the requisite intent needed to establish the offense (i.e. that the actions were taken “for the purpose of arousing or gratifying sexual desire of any person”).8 A.B. contends that it was error for the trial court to infer intent where J.O. presented no evidence as to A.B.'s intent.
We review juvenile proceedings under the same standard as any other court-tried case. C.L.B. v. Juvenile Officer, 22 S.W.3d 233,...
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