N.J.K. v. Juvenile Officer, WD 63012.

• Decision Date: 27 July 2004
• Docket Number: No. WD 63012.,WD 63012.
• Citation: 139 S.W.3d 250
• Parties: In the Interest of N.J.K., Appellant, v. JUVENILE OFFICER, Respondent.
• Court: Missouri Court of Appeals

139 S.W.3d 250

In the Interest of N.J.K., Appellant, v. JUVENILE OFFICER, Respondent.

No. WD 63012.

Missouri Court of Appeals, Western District.

July 27, 2004.

Appeal from the Circuit Court, Jackson County, William Stephen Nixon, J Kathleen A. Jeanetta, Kansas City, MO, for appellant.

James E. Herbertson, Kansas City, MO, for respondent.

Before PATRICIA BRECKENRIDGE, P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.

PER CURIAM.

This is an appeal from a Juvenile Court judgment sustaining the Juvenile Officer's petition, which alleged that the juvenile, N.J.K., committed the delinquent act of child molestation in the first degree. The issue is whether there was sufficient evidence to prove beyond a reasonable doubt that the juvenile committed the delinquent act. We affirm.

Factual and Procedural Background

In early February 2002, N.J.K. (hereinafter, N.K.) was sixteen years old and living with his father and stepmother. On the evening of February 3rd, N.K. was at home with his stepmother, who was babysitting her two grandchildren, a four-year-old girl and her eight-year-old brother. N.K.'s father was not at home that evening. N.K.'s stepmother testified that she was in the upstairs family room while the three children played down in the basement. At some point, the eight-year-old came up to the family room and sat with Stepmother. The little boy eventually told her that his sister and N.K. went upstairs and told him not to come. Stepmother went upstairs to N.K.'s bedroom where she found the door closed and the light off. She opened the door, turned on the light, and found the little girl on the bed with her pants and underwear pulled down. N.K., fully clothed, was also lying on the bed with his head about six to twelve inches from the little girl's "vagina area," according to Stepmother. Stepmother did not observe N.K. touching the little girl. Stepmother picked up the little girl, carried her downstairs, and called the police. Stepmother asked the little girl if N.K. had forced her to remove her clothing, and the little girl said "no." The police came to investigate, but no arrest was made.

Later that evening, the little girl's parents took her to Children's Mercy Hospital, where she underwent a physical examination to determine if she had been sexually assaulted or raped. There was no physical evidence that the child had been sexually assaulted, and no evidence was collected that incriminated N.K. The little girl made no statements regarding any alleged assault or molestation at that time.

About three weeks later, the little girl was interviewed by Julie Donelon at the Child Protection Center (CPC). In that videotaped interview, which was played at the hearing, the little girl denied that anyone had touched her inappropriately, and she did not mention N.K. at all. Ms. Donelon referred her for a sexual abuse assessment.

The sexual abuse assessment was conducted by Beth Banker at the CPC over three sessions during March. The first session was primarily a get-acquainted session at which the subject of sexual abuse was not broached. In the second session, the little girl identified the genital area on a drawing as the girl's "coochie."¹ The little girl was given Raggedy Ann dolls and asked to depict a scenario similar to what occurred on the night of the alleged molestation. Still, the little girl did not indicate that any abuse had occurred. In the third session with Ms. Banker, the child stated that she understood about bad touches, she knew that the person doing the touching was the person at fault, and that she would tell her mommy if anyone touched her in a bad way. Toward the end of that session, the little girl stated that she wanted to forget the touching by N.K. that had occurred in N.K.'s room. She did not elaborate. Ms. Banker gave her anatomically correct dolls and asked her to show what kind of touching happened. She pointed to the genital areas on the girl doll and on the boy doll but did not say or do anything further. When asked if there was anything she wanted to tell N.K. about the touching, she replied, "Don't talk to [stating her own name] or be by her! Stop doing what you're not supposed to do." Ms. Banker recommended play therapy for the child to "address probable sexual abuse."

On March 14, in the midst of the sessions with Ms. Banker, the child's mother took her to the Metropolitan Organization to Counter Sexual Abuse for an assessment. The child's mother identified some behavioral problems the child had been having, including wetting her pants, sleeping problems, and "some sexualized play and talk." The child began attending weekly sessions with therapist Heather Mills. The sessions included discussions about different types of touches. Beginning in April and through May and June, Ms. Mills and the child read a book together entitled, "A Very Touching Book," which, according to Ms. Mills, discusses good touches, bad touches, and secret touches. Ms. Mills acknowledged that children learn a lot about their genitalia and about sexuality by reading that book. For the first four months of her therapy, the little girl made no disclosures that she had been touched inappropriately. On July 18, however, after watching a video entitled "Little Bear" — which discusses child sexual abuse, the disclosure of such abuse, and "secret touches" on the Little Bear's breasts, vagina, and bottom — the little girl responded, after being asked, that she knew how Little Bear felt because that was what N.K. had done to her.

On August 13, Jan Chance, an investigator with Missouri Division of Family Services, went to the little girl's home to interview her. The child told Ms. Chance that when she was at her grandmother's house, N.K. had touched her "under her clothes" on her "private parts." The little girl indicated on a drawing where she had been touched, pointing to the breasts, genitals, and buttocks areas.

At her next therapy session, on August 15, the little girl told Ms. Mills that she wanted to talk about what N.K. had done to her. The little girl asked that her mother be with them. She asked if her mother could draw the pictures and tell the therapist what had happened. The therapist suggested that Mother draw the pictures and the little girl tell her what happened. The little girl then revealed to Ms. Mills, in front of her mother, that N.K. had touched her breasts and the inside of her vagina with his hands while her clothes were off. She also stated that N.K. had made her touch him and indicated where by pointing to the penis of a boy figure on a drawing her mother had made. Then, on August 19, when she was alone with Ms. Mills, and aided by anatomically correct dolls, she demonstrated what N.K. had done to her by putting the boy doll's hand on the girl doll's breast and genital area. She also put the boy doll's mouth to the girl doll's genital area and then stated, "He licked me there." Finally, she put the girl doll's mouth on the boy doll's penis. When asked what else N.K. did, she stated, "he spit" but did not explain further.

On September 4th, the little girl was again interviewed by Ms. Donelon of the CPC. A videotape of that interview also was presented at the hearing. In that interview, the child revealed to Ms. Donelon that N.K. had kissed her mouth and touched her "boobies," "coochie," and "bottom" with his hands under her clothes. She pointed to these body parts on drawings. She stated that it happened at her grandmother's house and that it had happened more than once. She also talked about how N.K. said they were going to play hide-and-seek and how he had "pulled" her to come with him; about Stepmother's discovery of them in N.K.'s bedroom; and about Stepmother's actions thereafter, including calling the police. She denied, though, that there had been any oral-genital contact with N.K. or that he had touched her other than with his hands.

In the meantime, on May 30th, N.K.'s Father took him to the Lee's Summit police station to be questioned. Father claimed, vaguely, that N.K. had "confessed" to Father that he had "done this" or "committed this offense" on the little girl.² He, therefore, felt that N.K. should talk to the police. Despite being told that he could accompany N.K. while he was being questioned, Father chose not to do so. He also allowed N.K. to be interviewed without an attorney being present.

In October 2002, the Juvenile Officer filed a petition against N.K. alleging one count of child molestation in the first degree in violation of section 566.067,³ a class B felony. By this time, N.K. was residing with his mother in Kansas. N.K. filed a motion to suppress the statement he had given to the police. After a suppression hearing, at which Father and the interrogating officer testified, the court granted the motion to suppress. N.K. also moved to exclude the out-of-court statements made by the little girl to various witnesses, including Beth Banker, Julie Donelon, Jan Chance, and Heather Mills, on the basis that the hearsay statements lacked sufficient indicia of reliability and trustworthiness as required under section 491.075. Because the case was being heard by the court, the court reserved ruling on the motion until after the evidence had been presented.

At trial, the little girl was called to testify. She was unable to identify N.K. in the courtroom. She testified that she had discussed N.K. with her mother, but forgot what she told her mother about him. She also stated that she had discussed N.K. with Heather Mills, although she could not remember what about. Then she denied even discussing N.K. with Ms. Mills. There was no cross-examination, and the child was excused. The Juvenile Officer next offered the testimony of Stepmother, the testimony of Ms. Donelon of the CPC and the two videotapes of her interviews with the child, and the testimonies of Ms. Banker, Ms. Chance, and Ms. Mills.

N.K. presented no evidence and moved to dismiss. He also...