                       IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0416
                               Filed March 18, 2020


IN THE INTEREST OF J.F.,
Minor Child,

J.F., Minor Child,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic,

District Associate Judge.



       J.F. appeals a juvenile court order adjudicating him delinquent on one count

of sexual abuse in the third degree. AFFIRMED.



       Danielle M. Ellingson of Eggert, Erb, Kuehner & DeBower, P.L.C., Charles

City, for appellant.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.



       Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.

       J.F. appeals a juvenile court order adjudicating him delinquent based on

findings he committed the delinquent act that would constitute one count of sexual

abuse in the third degree if he was an adult.1 The key challenge is sufficiency of

the evidence to support the adjudication.

       “We consider the sufficiency of the evidence in juvenile delinquency

adjudications de novo.” In re T.H., 913 N.W.2d 578, 582 (Iowa 2018). “Although

we give weight to the factual findings of the juvenile court, especially regarding the

credibility of witnesses, we are not bound by them.” In re A.K., 825 N.W.2d 46, 49

(Iowa 2013). “We presume the child is innocent of the charges, and the State has

the burden of proving beyond a reasonable doubt that the juvenile committed the

delinquent acts.” Id.

       The fighting issue boils down to a “he says, she says” dynamic. The State

asserts J.F. committed sexual abuse in the third degree with another minor. J.F.

denies any sexual abuse occurred. “Any sex act between persons is sexual abuse

by either of the persons when the act is performed with the other person in any of

the following circumstances: . . . 3. Such other person is a child.” Iowa Code

§ 709.1(3).   A person commits third-degree sexual abuse “when the person

performs a sex act under” several circumstances, including when “[t]he other

person is twelve or thirteen years of age.” Id. § 709.4(1)(b)(2). A sex act includes



1A violation of state law that would constitute a public offense if committed by an
adult is a delinquent act when committed by a minor child. See Iowa Code
§ 232.2(12)(a) (2017). Here, the public offense in question was performing a sex
act upon a person who was twelve or thirteen years of age. See Iowa Code
§ 709.4(1)(b)(2).
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“any sexual contact between two or more persons by . . . [c]ontact between the

finger or hand of one person and the genitalia . . . of another person.”           Id.

§ 702.17(2). “[S]kin-to-skin contact is not required in order to establish a ‘sex act’

under section 702.17.” State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994).

       To respond, J.F. contends there is insufficient evidence of any criminal act.

At the core of this delinquency proceeding are S.F.’s allegations against her

schoolmate J.F. The events took place over three days during the winter of 2017–

2018. The juvenile court called these days “Days 1–3,” but the exact dates and

order of events were unclear. The court noted “that it occurred before April [2018]

and while S.F. was 12 years old.” On each of these three days, S.F. went over to

the house of her classmate, K.B., to do homework and play.

       On Day 1, S.F. testified she remembered jumping on the trampoline at

K.B.’s house. K.B. did not remember exactly what day this happened, but “it was

a day separate from the other two instances and [she] could not remember if it was

before or after.” Regardless, both girls recalled two male peers, J.F.—whose

backyard connected with K.B.’s at the boundary corner—and I.R., coming over that

day. Both girls also remembered that while the boys were at K.B.’s, they ran away

with S.F.’s boots and did not give them back until K.B.’s mother intervened.

       S.F. testified that the same day, J.F. asked if they wanted to go to his house

to play. K.B. testified this happened on a different day, a Wednesday. The juvenile

court identified this as happening on Day 2, which it also identified as a

Wednesday. In any event, the girls went to J.F.’s house and while there, K.B.

played basketball in the backyard with J.F., I.R., and another boy, E.J. It is unclear

whether S.F. also played basketball with them, but there is no dispute that she was
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present. At some point, S.F. and the boys began playing a game called “Smash

or Pass,” in which someone names a person and another participant replies with

whether they would have sex with that person. K.B. was not involved in the game.

K.B. testified that everyone else also played truth or dare and she overheard

someone—she believed it was S.F.—say, “I dare you to touch my boobs.” K.B.

glossed over this comment and did not see if anything happened afterward. K.B.

left before the other children to get ready for church, which she often attended on

Wednesday nights.

       After K.B. left, S.F. and the boys kept playing Smash or Pass. S.F. testified

that the game became awkward but she continued to play along. Then, J.F. and

E.J. began “hovering” beside S.F., one on either side of her, close enough that

their sides were touching her. S.F. stated that all three boys began touching her

body over her clothes with their hands. According to S.F., all three boys touched

her buttocks, and J.F. and E.J. touched her vagina.2

       The next day, which the juvenile court called Day 3, but which S.F. recalled

being Day 2, S.F. and K.B. went over to J.F.’s house to play with him and the two

other boys. K.B. left when it got dark out. S.F. stayed and “played along” with the

boys. S.F. claims that at some point, the boys told her to bend over and each boy

took a turn humping her from behind, touching their penises to her buttocks while

clothed. Then, J.F. and E.J. touched S.F.’s breasts over her shirt. They next asked

S.F. to pull up her shirt, S.F. complied, and J.F. and E.J. touched her breasts again



2 The State filed delinquency petitions against all three boys, and their adjudicatory
hearings were held together. Only J.F.’s delinquency adjudication is at issue in
this appeal.
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underneath her shirt. After that, J.F. pulled up a pornographic video on his cell

phone. While watching the video, J.F. rubbed S.F.’s thigh, touched her vagina

over her clothes, and had her touch his penis over his clothes.

       S.F. testified she, her siblings, and K.B. went to J.F.’s house one other time.

K.B. recalled it being the next day, a Thursday. S.F. recalled playing hide and

seek; K.B. recalled playing tag. S.F. testified that during the game J.F. made a

comment about his penis, but no sexual contact occurred that day.

       Eventually, S.F. told her school guidance counselor about what had

happened while she was at J.F.’s house. She also told her mother. She underwent

a forensic interview, and the police began investigating.         The State filed a

delinquency petition.

       At the contested adjudicatory hearing, the court heard testimony from S.F.,

K.B., the school guidance counselor, the forensic interviewer, an investigator with

the local police department, and J.F.’s mother. None of the boys testified at the

hearing, as was their right.

       S.F. was thirteen at the time of the adjudicatory hearing.         During her

testimony, she had to be reminded several times to move the microphone closer

and speak loudly enough for the court to hear. The court reporter noted S.F. had

“no audible response” many times while she was testifying. Both the court and the

prosecutor had to remind S.F. that even though she was nervous she had to speak

up. Several times, S.F. stated that she did not remember or did not know what

happened when asked about the events of the three days but then would testify

about what happened.       She also acknowledged that she had changed her

testimony from an earlier deposition when she said the boys had humped her after
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she dropped her phone and bent down. She testified that she had lied earlier

because she was scared.

       To explain the inconsistencies, the forensic interviewer testified that it was

rare for someone who has experienced abuse to recall the specific date on which

an incident occurred. She also testified that people vary in how they remember

events that happened on more than one occasion, with some people remembering

each separate incident, and some people meshing the incidents together. Then,

the police investigator testified about his investigation generally as well as about

interviews he did with J.F. and the other boys. During this interview, J.F. denied

the allegations.

       In his defense, J.F.’s mother testified that J.F. would not have been home

during the periods of time that S.F. alleged if it was during basketball season. She

also observed that J.F. and I.R. would not have hung out at her house until

November 21, but, after that, I.R. “was over quite a few times,” sometimes when

she was not home. She recalled several instances when E.J. was at her house

and he and J.F. were outside playing basketball. She maintained that while she

was not home some evenings, her children would not have played outside because

it was against her rules. J.F.’s mother submitted a calendar showing the dates of

J.F.’s basketball practices.

       After the hearing, the juvenile court determined the State had proved J.F.

committed the delinquent act that would constitute sexual abuse in the third degree

beyond a reasonable doubt because

       [J.F.] touched his hand to S.F.’s vagina over her clothing on Day 2
       after having discussed whether or not they would like to have sex
       with each other. On Day 3, he rubbed his penis against S.F.’s
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       buttocks, grabbed her breasts over and under her shirt, viewed
       pornography with her on his phone, touched his hand to S.F.’s vagina
       over her clothing and had her touch his penis over his clothing with
       her hand. These sex acts were done while two other boys were
       engaging in similar contact with S.F. S.F. was 12 or 13 when these
       acts occurred.

       The court found S.F.’s testimony credible and noted that, while K.B. did not

witness any touching, K.B.’s testimony corroborated S.F.’s about the general

events of the three days. Important to the court was the fact that

       [s]hortly after Day 3, [K.B.] and S.F. had a falling out . . . . [T]he fact
       that they are not friends any longer and that their version of events
       are fairly consistent does lend credibility to both of them as they
       clearly have not conspired to fabricate a story against any of the
       boys.

       In the end, the court did not find J.F.’s mother’s testimony compelling. The

court noted, “While [J.F.’s mother] is overly confident that her children never go

outside or have friends over without her knowing, it seems these incidents would

not have occurred much earlier than the end of November.” The court discounted

the mother’s testimony because “there is about a 3–4 month window of when this

could have occurred” and the calendar entries proved nothing “other than she

works until 4 and there are some afternoons when she is not home for at least a

period of time.”

       On appeal, J.F. argues reasonable doubt exists, claiming because the

juvenile court misstated the facts and S.F.’s testimony was not credible, the State

failed to prove beyond a reasonable doubt that a sex act occurred. J.F. claims that

because the court “muddled” the facts about each day, and because some

testimony is conflicting, there is insufficient evidence to adjudicate him delinquent.

J.F. sees these misstatements as the court “grasping to find truth in testimony for
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an [a]djudication.” J.F. also alleges that S.F. was not a credible witness because

she had no response to many questions, could not answer certain questions, said

she did not remember many facts, and admitted she had not told the truth.

       After a de novo review of the record, we conclude there was sufficient

evidence for the district court to find that J.F. committed the delinquent act that

would constitute sexual abuse in the third degree. There is no dispute that S.F.

was twelve years old when the alleged sex acts occurred. Her descriptions of the

sex acts remained consistent overall. Furthermore the described behaviors fit the

definition of sex acts. The juvenile court was in the best position to observe S.F.’s

demeanor and judge her credibility.       We give weight to the juvenile court’s

credibility findings. See T.H., 913 N.W.2d at 583 (“Upon our de novo review, we

also consider the findings of the juvenile judge who heard the testimony and

evaluated the credibility of the witnesses.”). After considering all the evidence

presented, we find there was sufficient evidence to adjudicate J.F. delinquent.

       AFFIRMED.
