                                                          Supreme Court

                                                          No. 2014-307-Appeal.
                                                          (13-988-1)




       In re Kyle A.                 :




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                                                               Supreme Court

                                                               No. 2014-307-Appeal.
                                                               (13-988-1)




               In re Kyle A.                 :




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

                                         OPINION

       Justice Flaherty, for the Court. The respondent, Kyle A., appeals from an adjudication

that he was delinquent for engaging in second-degree child molestation sexual assault in

violation of G.L. 1956 § 11-37-8.3. The respondent also was ordered to register as a sex

offender. On appeal, the respondent argues that there was insufficient evidence to support the

trial justice’s finding that he touched the complainant for the purposes of sexual gratification

and, therefore, it was error to adjudicate him to be delinquent. The matter came before us on

December 9, 2015, pursuant to an order directing the parties to appear and show cause why the

issues raised by this appeal should not summarily be decided. After considering the parties’ oral

and written arguments and examining the record, we are of the opinion that cause has not been

shown and that this case can be decided without further briefing or argument. For the reasons

given below, we affirm the adjudication of the Family Court.




                                              -1-
                                                  1

                                         Facts and Travel

          During a one-day bench trial that took place before a justice of the Family Court on June

3, 2014, the state presented four witnesses: the complainant, respondent’s sister Molly, East

Providence Det. Mark Jones, and Dr. Christine Barron. 1 The respondent did not testify, nor did

he call any witnesses.

          Erin, the complainant, testified that during the summer of 2013 she, then thirteen, was a

friend of Molly and her fifteen-year-old brother, Kyle. Erin said that when she stayed overnight

at Molly’s house, the pair would sleep either in Molly’s bedroom or on the living room couch.

One day that summer, Erin and Molly spent the day swimming in Molly’s backyard pool.

Around eleven or twelve that night, Erin and Molly relaxed on the living room couch while

watching television before falling asleep a couple of hours later. However, Erin’s sleep was

interrupted twice that night by Kyle, who had been with the girls in the living room earlier that

evening. While she was sleeping on the couch, Erin awoke and noticed that Kyle was standing

over her and that he was “reaching.” Although he did not touch her, Erin was troubled by

respondent’s presence and told him to go away because she was trying to sleep. Erin said that,

after respondent left, she pulled the blanket back over her and went back to sleep.

          Erin awoke about two hours later to find Kyle standing over her again. This time,

however, she felt Kyle’s hand under her blanket and shorts, touching her vagina over her

underwear. Erin pushed Kyle away and told him to get away from her. According to Erin,

Molly also woke up at this point and told her brother to stop bothering them. Kyle left the room

and did not return for the rest of the night. Erin did not tell Molly what had happened until the



1
    We use pseudonyms to protect the privacy of complainant and respondent’s sister.


                                                -2-
following day. According to Erin, Molly said that she would tell her mother about the incident.

Erin, however, said that she did not report the incident to anyone, including her own mother,

because “she didn’t want anyone else to know.”

          Nevertheless, the incident came to light at the end of that summer.        On July 31,

Dr. Christine Barron met with Molly at the Aubin Child Protection Center at Hasbro Children’s

Hospital. 2 During that meeting, Molly told Dr. Barron about the incident that had occurred

between Kyle and Erin. Molly told Dr. Barron that Erin had been sleeping at her house and she

awoke to find her brother leaning over Erin, touching her in her genital area. According to Dr.

Barron, Molly told her that she actually saw the incident and that Erin had asked her not to tell

anyone because she was afraid to disclose what had happened. Doctor Barron reported what

Molly had revealed to her to Det. Mark Jones of the East Providence Police Department. The

ensuing investigation ultimately led to respondent’s arrest and subsequent finding of

delinquency.

          However, when Molly testified, she was somewhat reticent about the details that she

shared earlier with Dr. Barron. According to Molly, respondent did “not really” hang out with

her and Erin and he usually slept in his own room when Erin spent the night. She also denied

telling Dr. Barron that she had seen her brother touch Erin. Rather, she said that she was merely

repeating to Dr. Barron what Erin had told her had occurred.

          During his closing argument, respondent’s counsel argued that the state had failed to

meet its burden of proving that respondent’s touching of Erin was intentional or that it had been

done for the purposes of sexual gratification. With respect to the issue of intentional touching,

respondent argued that the evidence was insufficient because no one had testified that they had



2
    The reason for Molly’s meeting with Dr. Barron is not relevant to this appeal.


                                                 -3-
seen respondent’s hand touch Erin and that it could have been an accidental touching by Molly,

who was sleeping on the same couch. Alternatively, respondent argued that, if a touching had

occurred, it was at most innocent or accidental because there was no evidence that respondent

rubbed, attempted to penetrate, moved his fingers, or said anything to Erin. The state countered

that respondent had planned the touching for about two hours, and, from the totality of the

circumstances, the trial justice could infer that respondent intentionally touched Erin for sexual

gratification or arousal.

        In her decision, the trial justice found Erin to be an honest and consistent witness who

clearly testified that she was touched intentionally by respondent, and not by Molly accidentally.

She also specifically found that Molly did, in fact, witness her brother touch Erin on the night in

question. Regarding the elements in § 11-37-8.3 requiring that the “intentional touching” be “for

the purpose of sexual arousal, gratification or assault,” the trial justice found that the evidence

was sufficient for her to reach that conclusion. Specifically, she stated that respondent was

                        “a young man who came in twice for the same thing and
                        succeeded the second time. Oh, yes, I believe that. I
                        believe he was standing over [Erin] the first time and if she
                        hadn’t woken up and said get out of here, go away, a
                        touching might have occurred on that occasion. That was
                        his plan, to touch her. So he came in for the second time
                        and he did that. That was his plan, to touch her genital
                        area. Not because he was curious, not because this was an
                        accident, not because he meant to put the sign of the cross
                        on her forehead and put his hand on her crotch instead. He
                        came in under that blanket, under her shorts to touch her
                        genital area because it gratified him. That was his plan.

                               “* * * This is a boy who, well, maybe he was about
                        fourteen or fifteen years old himself at the time, and
                        wanting to experience some sort of sexual gratification by
                        touching this young lady’s genital area. It was purposeful.
                        That was his intent. He had a plan. He executed that plan
                        on the second attempt and this Court believes the State has
                        met each and every element of second degree child



                                                -4-
                       molestation and      this    Court   finds   the   Respondent
                       delinquent.”


       At the sentencing hearing, the trial justice indicated that she “had some very serious

concerns regarding [respondent’s] behaviors and the actual act for which he was charged and

found delinquent” and ordered respondent to register as a sex offender. The trial justice declined

respondent’s request to stay execution of registration, finding that “presently * * * he has had a

sexual offender evaluation, that he has been found to be a moderate to high risk of behavior and I

find that the statute requires registration and he shall register as a sex offender.” The respondent

timely appealed to this Court.

                                                    2

                                       Standard of Review

       When reviewing an appeal from an adjudication of delinquency, this Court reviews the

record to determine “whether legally competent evidence exists therein to support the findings

made by the Family Court trial justice.” In re Malik D., 730 A.2d 1070, 1072 (R.I. 1999).

Importantly, the “factual findings of a trial justice sitting without a jury are granted an extremely

deferential standard of review.” State v. Gianquitti, 22 A.3d 1161, 1165 (R.I. 2011). For that

reason, we will not upset the trial justice’s findings unless respondent establishes that she

“overlooked or misconceived material evidence or was otherwise clearly wrong.” In re David

G., 741 A.2d 863, 865 (R.I. 1999).

                                                    3

                                             Analysis

       The sole issue to be decided is whether legally sufficient evidence existed to support the

finding that respondent was delinquent because his actions were motivated by sexual arousal or




                                                   -5-
gratification. 3   The Family Court justice found that respondent was delinquent because he

committed an offense that, if committed by an adult, would constitute second-degree child

molestation sexual assault in violation of § 11-37-8.3. Section 11-37-8.3 says that “[a] person is

guilty of a second degree child molestation sexual assault if he or she engages in sexual contact

with another person fourteen (14) years of age or under.” Section 11-37-1(7) defines “[s]exual

contact” as “[t]he intentional touching of the victim’s or accused’s intimate parts, clothed or

unclothed, if that intentional touching can be reasonably construed as intended by the accused to

be for the purpose of sexual arousal, gratification, or assault.” The respondent argues that the

trial justice was clearly wrong because she failed to account for his youth, arguing that this “one-

time touch—though misguided—was most likely a product of age-appropriate curiosity.” A

curiosity, he argues, that “often revolves around the opposite sex and is distinct from pleasure-

seeking gratification.” We do not agree.

        To support his argument, respondent cites to State v. Brown, 586 A.2d 1085, 1087-89

(R.I. 1991), in which we held that a single incident of a momentary touch of a child’s vagina on

the outside of a child’s clothing, where the defendant did not move his hand or fingers and no

words were spoken, could not be reasonably construed as having been done for sexual

gratification. It is true that both Brown and this case involve a brief, momentary touching where

fingers did not move and words were not spoken, but the similarity ends there. Unlike the

defendant in Brown, respondent entered the room twice during the middle of the night while Erin

slept, and on the second occasion he did not just reach under her blanket—he reached into her

shorts so that he could touch her vagina through her underwear.




3
 On appeal, respondent does not contest the Family Court’s finding that he reached under Erin’s
shorts and touched her vagina over her underwear.


                                               -6-
       In seeking to mitigate this fact, respondent compares his actions to those of the

defendants in State v. Tracy, 816 A.2d 1275 (R.I. 2003) (mem.) and State v. Hammond, 733

A.2d 727 (R.I. 1999) (mem.). In Tracy, 816 A.2d at 1276-77, there was evidence that the adult

defendant fondled the ten-year-old victim’s pelvic region under her underwear in a circular

motion and squeezed her buttocks. And in Hammond, 733 A.2d at 729, the defendant pulled

down his daughter’s pants, pulled up her leg, put his hand between her legs for about five

minutes, and then warned her not to tell anyone about the incident, or else she would “really get

it if she did tell.” The fact that the conduct in those cases might have been more egregious than

the actions of this respondent does nothing to undermine the trial justice’s finding that he

touched Erin for the purposes of sexual gratification in violation of § 11-37-8.3.

       The respondent next directs us to cases in other jurisdictions that illustrate the difficulty

of comparing the relative behavior of children and adults. We agree with the respondent that it

is not always permissible to “impute the same intent into a child’s action that one could

reasonably impute into the actions of an adult” and that determining the intent of sexual

gratification in minors must be determined on a case-by-case basis. In re A.J.H., 568 N.E.2d

964, 968 (Ill. App. Ct. 1991). However, the state’s evidence that he entered the room on two

occasions and placed his fingers over Erin’s vagina is not in dispute. In In re Matthew K., 823

N.E.2d 252, 253-54, 254 (Ill. App. Ct. 2005), the defendant used the uncontroverted testimony

of a child psychiatrist to establish that the defendant’s touching of the victim was “simply a brief,

socially inept * * * behavior that occurred.” But, in this case the trial justice, from the evidence

brought forth at trial, made a reasonable inference that Kyle touched Erin for his sexual

gratification and there is simply no foundation for us to hold that she was clearly wrong when

she made her finding. The record is devoid of any evidence that supports the respondent’s




                                                -7-
argument that his actions were merely curiosity-satisfying and not intended for sexual

gratification or arousal.

                                            Conclusion

        For the reasons set forth in this opinion, we affirm the adjudication of the Family Court.

The papers in this case may be remanded to that tribunal.




                                                -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        In re Kyle A.

CASE NOS:             No. 2014-307-Appeal.
                      (13-988-1)

COURT:                Supreme Court

DATE OPINION FILED: April 15, 2016

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

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Family Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kathleen A. Voccola

ATTORNEYS ON APPEAL:

                      For Petitioner: Christopher R. Bush
                                      Department of Attorney General

                      For Respondent: Angela M. Yingling
                                      Office of the Public Defender
