In re J.A.H.

• Decision Date: 15 September 2009
• Docket Number: No. ED 92114.,ED 92114.
• Citation: 293 S.W.3d 116
• Parties: In the Interest of J.A.H.
• Court: Missouri Court of Appeals

293 S.W.3d 116

In the Interest of J.A.H.

No. ED 92114.

Missouri Court of Appeals, Eastern District, Division Three.

September 15, 2009.

Patricia Harrison, Brad Williams, Rule 13, Laura Stobie, Rule 13, Latasha Barnes, Rule 13, Saint Louis, MO, for Appellant.

Laura M. Sexton, Union, for Respondent.

OPINION

GLENN A. NORTON, Presiding Judge.

J.A.H. ("Juvenile") appeals the judgment of the juvenile court finding him to have committed the delinquent act of statutory sodomy in the first degree in violation of section 566.062 RSMo 2000,¹ ordering Juvenile into the legal and physical custody of the Division of Youth Services and ordering Juvenile to register as a Missouri state sex offender. We reverse.

I. BACKGROUND

On January 1, 2006, a petition was filed against Juvenile asserting three criminal counts for acts occurring sometime between December 1, 2002, and September 1, 2004. Almost three years later, on August 15, 2008, an amended petition was filed against Juvenile. The amended petition asserted only one count of statutory sodomy in the first degree, but the charge was based on two separate acts allegedly committed against Juvenile's cousin, T.H. According to the allegations in the petition, each act occurred sometime during the summer of 2003 or the summer of 2004. Specifically, Count I of the amended petition alleged,

During the summer of 2003 or summer of 2004, in the County of Franklin, State of Missouri, the juvenile, [J.H.], had deviate sexual intercourse with T.H., a person less than 14 years of age, to wit: the juvenile put his genitals in the mouth of T.H. and on a different occasion the juvenile touched the genitals of T.H. with a sponge while showering together. Said act would constitute the felony of statutory sodomy in the first degree in violation of Section 566.062 RSMo., were it committed by an adult.²

In the summer of 2003, Juvenile was eleven years old and T.H. was eight years old.

In June 2008, Juvenile, who at the time was a resident of Kentucky, was brought into the custody of the Franklin County Juvenile Justice Center. On September 22 and 30, 2008, over two and a half years after the filing of the original petition, a hearing on the petition was held. At the time of the hearing, Juvenile was sixteen years old. Both T.H. and Juvenile testified at the hearing. The following evidence was adduced.

Between 2002 and 2004, Juvenile was living with his aunt and uncle. T.H. is also the nephew of aunt and uncle, and he often visited the house to play with Juvenile. T.H. testified that one occasion, he and Juvenile took a shower together because they were running late for a family function. T.H. claims that during this shower, Juvenile took a hard sponge and rubbed it back and forth against T.H.'s penis. Juvenile did not say anything to T.H. at the time and stopped when T.H. asked him to. T.H. could not recall what year this happened, but thought he was five or six years old at the time.³

T.H. also testified that he and Juvenile frequently played "doctor" or "hospital." T.H. was the patient and would lie on top of Juvenile's bunk bed while Juvenile would push on his chest (mimicking CPR) and would pretend to give him shots. T.H. testified that on one occasion Juvenile got on top of T.H. and put his penis in T.H.'s mouth. According to T.H., Juvenile then got off the bunk bed and shook his fist at T.H. saying, "I'll hurt you if you tell anyone."

T.H. was unable to recall many details about the incident. For example T.H. was unable to remember what Juvenile was wearing. T.H. could not recall for how long Juvenile's penis was in his mouth. T.H. was unable to describe where Juvenile's penis touched his mouth. T.H. also could not remember how old he was when this alleged incident took place, but he guessed he was "five or six, maybe seven."⁴

T.H. claims that after each incident he attempted to tell aunt what happened but she said, "no tattle telling." T.H. testified that later, when he told aunt again what had happened, she talked to T.H.'s father and grandmother, and the three adults told T.H. not to tell his mother. At the hearing, aunt testified that she did not recall T.H. telling her that Juvenile put his penis in T.H.'s mouth; if he had, she would have found out exactly what happened and dealt with the situation appropriately. Aunt testified that the first she knew about the allegation was when she was contacted by the Franklin County investigator. At that point, she questioned Juvenile and talked to T.H.'s parents, who told her that they believed nothing had happened. However, the evidence also showed that the first report of acts of abuse committed by Juvenile was the report filed in Franklin County by T.H.'s mother.

At the time the report of abuse was made in Franklin County, Juvenile was residing in Woodbine, Kentucky. In response to the report filed by T.H.'s mother, Juvenile was interviewed by Kentucky police. An audiocassette copy of the interview was forwarded to Franklin County police in October 2005. During the interview, Juvenile denied that he committed the acts alleged by T.H.

T.H. was interviewed in June 2005, by Jennifer Hale, a forensic interviewer for the Child Advocacy Center. A video recording of this interview was admitted into evidence over Juvenile's objection.⁵

At the September 2008 hearing before the juvenile court, Juvenile continued to deny that he committed the acts alleged by T.H. At the close of evidence, the court stated to Juvenile on the record, "I'm convinced beyond a reasonable doubt that you did the actions set forth in the amended petition in this matter." The court held a dispositional hearing, at which Juvenile requested that he be allowed to live either with his aunt or uncle in Missouri, or with his mother in Kentucky, under electronic monitoring. Ultimately, the court entered its order and judgment finding Juvenile to have committed the delinquent act of statutory sodomy in the first degree, ordering Juvenile into the legal and physical custody of the Division of Youth Services and ordering Juvenile to register as a Missouri state sex offender. Juvenile appeals.

II. DISCUSSION

Juvenile asserts four points on appeal. In Juvenile's first point on appeal, he argues that the juvenile court erred in finding sufficient evidence that he committed the delinquent act of statutory sodomy in the first degree. Because we find Juvenile's first point on appeal to be dispositive, we decline to address the remaining three points.

A. Standard of Review

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, 235-36 (Mo.App. W.D.2000). We will not disturb the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "[I]n determining the sufficiency of the evidence, we view the evidence and reasonable inferences which may be drawn therefrom in the light most favorable to the verdict and we ignore all evidence and inferences to the contrary." C.L.B., 22 S.W.3d at 236.

B. Allegation of Statutory Sodomy

Juvenile was charged with committing the delinquent act of statutory sodomy in the first degree under section 566.062.1. "A person commits the crime of statutory sodomy in the first degree if he has deviate sexual intercourse with another person who is less than fourteen years old." Section 566.062.1. Deviate sexual intercourse is defined as "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person ... done for the purpose of arousing or gratifying the sexual desire of any person." Section 566.010(1) (emphasis added).

1. Juvenile Officer was Required to Prove the Requisite Mens Rea Beyond a Reasonable Doubt

In its judgment, the juvenile court found that the Juvenile Officer proved beyond a reasonable doubt that Juvenile committed the acts alleged in the amended petition. Although it is clear that the court believed T.H.'s testimony that Juvenile rubbed T.H.'s penis with a sponge in the shower, and on another occasion, touched his penis to T.H.'s mouth, the judgment makes no specific finding that Juvenile committed these acts for the purpose of sexual arousal or gratification.⁶ On appeal, Juvenile argues that the judgment of the juvenile court finding that Juvenile committed the act of statutory sodomy in the first degree was not supported by the evidence because the Juvenile Officer failed to prove that the acts alleged in the petition were committed by Juvenile for the purpose of sexual arousal or gratification. We agree.

Juvenile Officer argues that because Juvenile denied any sort of contact occurred at all, intent was not at issue in this case, and therefore no proof of intent was required.⁷ Regardless, however, of whether Juvenile admitted or denied the acts alleged, Juvenile Officer has the burden of proving each and every element of a criminal offense beyond a reasonable doubt. In the Interest of V.L.P., 947 S.W.2d 546, 547 (Mo.App. W.D.1997). Here, intent to cause sexual arousal or gratification is a specific element of the crime charged. Section 566.010(1). Thus, there must be some evidence from which the juvenile court could find beyond a reasonable doubt that Juvenile intended to do the act for the purposes of sexual arousal or gratification. Without such evidence, we must find that Juvenile Officer failed to meet its burden of proof on this element.

2. Juvenile Officer Failed to Prove that Juvenile Committed the Acts Alleged in the Petition for the Purpose of Sexual Arousal or Gratification

An actor's mental state will often rest on circumstantial evidence and permissible inferences. State v. Morton, 229 S.W.3d 626, 630 (Mo.App. S.D.2007). The determination of whether a touching is for the purpose of arousing or gratifying sexual desire is dependent upon the circumstances of the...