Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-293

                                          JULY TERM, 2013

 In re I.L., Juvenile                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
                                                       }    Family Division
                                                       }
                                                       }    DOCKET NO. 23-2-12 Frjv

                                                            Trial Judge: Linda Levitt

                          In the above-entitled cause, the Clerk will enter:

       Juvenile I.L. appeals a family division order finding him delinquent for committing a
sexual assault in violation of 13 V.S.A. § 3252(a)(1). On appeal, juvenile argues that the court’s
conclusions of law were not supported by the evidence because the State failed to prove beyond
a reasonable doubt that the victim, K.L., did not consent. We affirm.

        Many of the underlying facts are undisputed. At the time of the relevant facts, juvenile
was fifteen. He and K.L. met at school and were in an exclusive relationship. For Valentine’s
Day, the two agreed to spend the night at juvenile’s house. K.L.’s mother dropped her off at
juvenile’s house, where other people were present. In the evening, they were playing video
games and listening to music. K.L. fell asleep on the couch and woke up at 2 a.m. to juvenile
rubbing her vagina. K.L. went to juvenile’s room. After smoking a cigarette, he joined her on
the bed. By mutual agreement, they engaged in kissing, cuddling and oral sex.

         According to K.L., at this point, juvenile asked if he could put his penis in her vagina,
and she said no. He asked why, and K.L. responded that she did not want to have intercourse
and then have him not talk to her again. Juvenile asked if she trusted him, and at first she
responded in the negative. Juvenile persisted and K.L. explained that they eventually made a
“pinky promise” that he would not have sex with her and then never talk to her again. She
testified that juvenile then laid her on the bed, and held her forearms. She said she “begged him
not to,” but he “jammed his penis” into her vagina. K.L. further testified that it hurt, and that it
had been important to her not to have intercourse because she had a purity ring that symbolized
her commitment to waiting for sex until marriage. Afterwards, juvenile told K.L. that he did not
wear a condom and had ejaculated inside her and she was angry at him. Juvenile left the room
for a while, and when he returned, the two went to sleep in his bed and told each other they loved
each other. K.L. had her phone with her, but did not call anyone. The next morning, K.L.’s
friend picked her up. She told her sister and her friends what had happened. She was bleeding
and her vagina was swollen. During the day, K.L. received apologetic texts from juvenile. The
State also introduced an electronic message from juvenile to K.L. apologizing for that night.
         Juvenile testified. His version of the events that evening corresponded to K.L.’s up to a
point. He stated that the two made a pinky promise that he would not have sex with K.L. and
then not talk with her afterwards. He disagreed with K.L. about what happened next. He
testified that there was no time when K.L. told him not to put his penis her vagina. He said that
K.L. was angry with him afterwards because he ejaculated inside of her and did not wear a
condom. He explained that his later apology to K.L. was for not wearing a condom.

        The court issued a written decision. The court found that K.L. begged juvenile not to put
his penis in her vagina, and that K.L. did not consent to have intercourse with I.L. Based on
those findings, the court concluded that juvenile was delinquent, and a timely notice of appeal
followed.

        On appeal, juvenile argues that the court’s findings of fact are in error regarding the
“pinky promise.” The court’s findings state: “[K.L.] expressed her mistrust of [juvenile], fearing
that he would have intercourse with her and never speak to her again. [Juvenile] then made a
pinky promise not to put his penis in her vagina and asked her again if she trusted him. [K.L.]
said, yes.” Juvenile argues that the court misconstrued the evidence by stating that the pinky
promise was that he would not put his penis in K.L.’s vagina. According to juvenile, the actual
pinky promise was him promising not to have sex with and then ignore K.L. and this proper
understanding of the promise suggests that K.L. expected to have sex, but wanted to make sure
juvenile would not abandon her afterwards.

       Assuming, without necessarily agreeing, that the court inaccurately related the content of
the promise, and that juvenile correctly represents K.L.’s testimony that juvenile promised not to
ignore her after intercourse, it was not the crux of the case. Accepting juvenile’s version of the
promise, K.L.’s version of the subsequent events was no less clear: that she did not consent to the
intercourse. Whatever the purpose of the pinky promise, the main issue for the trial court was
whether K.L. asked juvenile not to put his penis in her vagina.∗ This was the factual discrepancy
between the parties. K.L. stated that she asked juvenile not to insert his penis inside her while
juvenile testified that she did not object. The court found K.L. more credible on this point,

       ∗
          We also note a discrepancy between the transcript’s recitation of K.L.’s testimony and
the court’s findings on whether juvenile told K.L. he would put his penis her vagina. The court
found that, after the promise, and “[w]hile lying on top of [K.L.], [juvenile] told her he would do
it. [K.L.] begged him not to. He put his penis in her vagina for a short time.” (Emphasis added.)
The transcript reflects K.L.’s testimony as follows:

               [K.L.]. And we locked pinkies. And then he laid me back down
               and we were kissing and he had my forearms and—right there.
               And then he told me he wasn’t going to do it.

               Q. Do what?

               [K.L.]. Put his penis in me. And he was sliding his penis on my
               vagina, and I begged him not to, and he jammed his penis in me.

(Emphasis added.) Whether the court or the transcript is incorrect, it does not make a difference
because K.L. testified and the court believed that K.L. begged juvenile not to penetrate her.
                                                 2
finding that K.L. “begged” juvenile to stop, and did not consent. The court did not credit
juvenile’s testimony that K.L. was only upset afterwards about his failure to wear a condom.

        Next, juvenile argues that the State failed to prove that K.L. did not consent to sexual
intercourse. Prima facie sufficiency of the evidence in a delinquency proceeding is the same as a
criminal case. When faced with such a challenge, this Court will uphold a judgment “unless no
credible evidence supports it.” In re A.C., 2012 VT 30, ¶ 19, 191 Vt. 615 (mem.). Even where
there are inconsistencies or evidence to the contrary exists, the trial court’s decision will not be
disturbed as long as credible evidence supports it. Id.

        Juvenile essentially argues that his version of events was credible whereas K.L.’s
testimony that she “begged” juvenile not to put his penis in her vagina is inconsistent with the
rest of the evidence. This is insufficient to show that the court’s findings lacked evidentiary
support. Although juvenile disagrees with the court’s view of the evidence, it was up to the court
to determine the credibility of the witnesses, and this Court will not reweigh the evidence on
appeal. See State v. Hinchliffe, 2009 VT 111, ¶ 22, 186 Vt. 487 (explaining that assessment of
credibility and weight to ascribe evidence is for factfinder). Here, K.L.’s testimony was
sufficient to establish that she did not consent to intercourse. “[W]here the victim testifies as to
all elements of the charges against a defendant, we need only recount the victim’s testimony
concerning the charges to rebut a claim of error.” State v. Brink, 2008 VT 33, ¶ 10, 183 Vt. 603
(mem.) (quotation omitted); see State v. Eaton, 134 Vt. 205, 208 (1976) (holding that victim’s
testimony of penetration was sufficient to establish that element of charge). Similarly, juvenile’s
argument that the evidence was in equipoise is without merit. The evidence is not equally
matched if the trial court believed K.L.’s version of events, rather than juvenile’s. There was
adequate evidence to support the delinquency adjudication in this case.

       Affirmed.



                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice




                                                 3
