In re B.H.

• Decision Date: 26 May 2016
• Docket Number: No. 2013-364-Appeal.,No. 2014-19-Appeal.,12-1040-1,2013-364-Appeal.,2014-19-Appeal.
• Parties: In the Matter of B.H.
• Court: Rhode Island Supreme Court

In the Matter of B.H.

No. 2013-364-Appeal.

No. 2014-19-Appeal.

12-1040-1

Supreme Court of Rhode Island

May 26, 2016

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Goldberg, for the Court. The respondent, B.H., appeals from adjudications of delinquency entered in the Family Court. The Family Court trial justice found the respondent delinquent on two charges of first-degree child molestation sexual assault (first-degree child molestation) in violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.2. On appeal, the respondent primarily contends that the evidence at the delinquency proceeding was insufficient to establish sexual penetration—an element of both of the charges of first-degree child molestation of which the respondent was adjudged to be delinquent. We agree that the evidence was insufficient on this element, and we remand to the Family Court with directions to enter adjudications of delinquency on the lesser-included offense of second-degree child molestation sexual assault (second-degree child molestation) and for resentencing.

Facts and Travel

In August 2012, the Cranston Police Department filed delinquency petitions with the Family Court, alleging that, when respondent was thirteen years old, he committed two offenses that, if committed by an adult, would constitute the offense of first-degree child molestation andone offense that, if committed by an adult, would constitute the offense of second-degree child molestation. The two complainants, Kevin and Henry, are twin brothers who were eleven years old at the time of the offenses.¹ The state alleged that respondent committed first-degree child molestation against Kevin and Henry when he forced the victims to penetrate his anus with their penises and that he committed second-degree child molestation when he touched Kevin's penis with his hand.² Because the testimony of the two complainants is central to the primary issue respondent raises on appeal, we recount it in some detail.

The conduct giving rise to all three offenses occurred during a sleepover in August 2011. After a day of fishing, Kevin, Henry, and respondent had a sleepover at the home of the twins' maternal grandparents. During the sleepover, the three boys shared the same room. Kevin testified that, after the three boys had retired to the bedroom that evening, respondent asked Kevin to put Kevin's penis "in [respondent's] butt." Because Kevin trusted respondent, who was his best friend, and because respondent threatened to tell his grandmother "something" if he refused, Kevin complied. When asked whether his penis went "inside of [respondent's] butt," Kevin responded in the affirmative. Kevin also testified that respondent expressed a desire to insert respondent's penis into Kevin's "butt" but that Kevin refused. On cross-examination, it became apparent that Kevin was unable to recall the specifics of this episode with any great detail, and he repeatedly stated that he did not remember the details. However, Kevin wasemphatic that his penis went "in" and "inside" respondent's "butt."³ It is evident from the transcript that it was difficult for Kevin to testify about what transpired during the sleepover. The trial justice later explained in her bench decision that Kevin "was noticeably upset, crying, [and] sometimes almost sobbing" during the course of his testimony.

Like Kevin, Henry had difficulty testifying about this episode; he testified that "I don't like talking about it." The trial justice later described each twin as "visibly shaken" during his testimony. Henry's testimony was similar to his brother's. He testified that respondent proposed that the boys engage in "[a]n experiment to see if we wanted to be gay" and that the experiment was "[t]o stick my penis in his butt." Henry testified that he placed his penis "inside [respondent's] butt."⁴ Like Kevin, Henry explained that he complied with respondent's request because respondent threatened to tell his grandmother that they "were trying to do something" if he did not. Henry also testified that respondent placed his penis on Henry's body and that he, like his brother, refused to allow respondent to insert his penis into Henry's "butt." As was true for Kevin's testimony, cross-examination revealed that Henry could not recall many specifics of the episode. Nevertheless, when defense counsel asked whether Henry put his penis "inside of [respondent]," Henry responded that he did. On redirect examination, Henry was asked, "[W]hen you mean [respondent's] butt, what is that part of [the] body used for?" Henry did not answer this question.⁵

The twins' mother testified that, when she picked up her children the day after the sleepover, a hysterical Kevin told her that "[respondent] wanted them to do it in the bum bum of them, and * * * [respondent] looks like he enjoyed it." Finally, Det. Sean Maloney of the Cranston Police Department testified that, after he explained the arraignment procedure in Family Court to respondent, respondent stated: "I understand. I did it. I did not force them. It was experimental."

At the close of the state's case, respondent moved to dismiss the petitions. With respect to the first-degree child molestation charges, defense counsel argued that the twins' testimony that they placed their penises "in" or "inside" respondent's "butt" was insufficient to establish sexual penetration—an essential element of the offense. Defense counsel also argued— incorrectly, we conclude—that, if the state had established sexual penetration, the state was required, in the circumstances of this case, to prove that respondent "acted with the intent for sexual arousal or sexual gratification" and that it had not done so.

The trial justice denied respondent's motion, concluding that the testimony of both Kevin and Henry was sufficient to establish sexual penetration. The trial justice explained her rationale as follows:

"[I]n or inside the butt, as described by each victim, is more than sufficient to satisfy the requirement of the statute for sexual penetration. In or inside the butt is an intrusion, however slight. In or inside the butt is certainly where the anal opening is located.

"This Court does not expect a child, now thirteen years old, to describe a horrific act that occurred two years ago when the child was eleven years old, with such specificity and adult language that it mirrors the language of the statute. Using one's common sense, the victims each were truthful, credible[,] and consistent in describing the act[,] and[,] when questioned and challenged many times, each testified consistently at different times that their penis[es were] inside [respondent's] butt. Inside plainly means an intrusion, however slight, in the anal opening."

Although the trial justice also rejected respondent's argument that the state was required to prove that respondent acted with the intent of sexual arousal or gratification, she nonetheless went on to conclude that the state had in fact proven that respondent's conduct was intended for sexual arousal or gratification. She explained:

"[T]he [r]espondent's specific request of each victim to penetrate his butt with their penis[es], [r]espondent's description and instruction on how to perform the act which he called an experiment and his willingness to participate and [his] engaging in the act was for the sole and exclusive purpose of sexual gratification or arousal. There was no other reason or purpose for [r]espondent to make such a suggestion to two very young[,] inexperienced boys whose innocence and trust in him practically guaranteed compliance.

"Further, [r]espondent's later request to penetrate the victims, which request was refused by them, adds another layer to [r]espondent's quest for sexual gratification or arousal.

"Even though th[e] element [that the accused act with the intent for sexual arousal or gratification] is not essential to [prove] when the act is purposeful penile penetration, that element does exist here."

Concluding that the state had met its burden of proving that respondent committed first-degree child molestation upon Kevin and Henry, the trial justice adjudged respondent delinquent on those charges. The respondent timely appealed.

Standard of Review

On appeal from an adjudication of delinquency, our task "is to review the record to determine 'whether legally competent evidence exists therein to support the findings made by the Family Court trial justice.'" In re Miguel A., 990 A.2d 1216, 1220 (R.I. 2010) (quoting In re Andrey G., 796 A.2d 452, 456 (R.I. 2002)). In passing on the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); cf. In re Miguel A., 990 A.2d at 1223 (reciting a similar standard for this Court's review of a motion for a judgment of acquittal).

Analysis

Sufficiency of Evidence on Sexual Penetration

The respondent argues that the evidence in this case, which establishes, at most, that Kevin and Henry each inserted his penis "in" and "inside" respondent's "butt," is insufficient to establish sexual penetration—an essential element of the offense of first-degree child molestation. We agree.

Section 11-37-8.1 provides that "[a] person is guilty of first[-]degree child molestation sexual assault if he or she engages in sexual penetration with a person fourteen (14) years of age or under." (Emphasis added.) In turn, § 11-37-1(8...