                 IN THE SUPREME COURT OF IOWA
                                  No. 12–0608

                             Filed January 4, 2013


IN THE INTEREST OF A.K., Minor Child

A.K., Minor Child,

      Appellant.


      Appeal from the Iowa District Court for Lyon County, Robert J.

Dull, District Associate Judge.



      Juvenile     appeals    from   his   adjudication   as   a   delinquent.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



      Michael J. Jacobsma and Missy J. Clabaugh of Jacobsma &

Clabaugh PLC, Sioux Center, for appellant.



      Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant

Attorney General, and Carl J. Petersen, County Attorney, for appellee.
                                           2
HECHT, Justice.
       A juvenile accused of sexually abusing and assaulting three

children appeals from his delinquency adjudication.                 He contends the

juvenile court should have excluded evidence of a prior bad act and that

there was insufficient evidence to support the findings that he committed

the delinquent acts.       Upon our de novo review, we affirm the juvenile

adjudication as to six of the seven counts of delinquency and reverse as

to one count.

       I. Background Facts and Proceedings.

       In August and September 2011, two petitions were filed alleging

fifteen-year-old A.K. was a delinquent child pursuant to Iowa Code

chapter 232 for committing a total of three counts of sexual abuse in the

second degree and four counts of assault with intent to commit sexual

abuse involving three different victims. 1 A.K. denied the charges, and an

adjudicatory hearing was held in January 2012.

       At the adjudicatory hearing, D.E. 2 testified regarding events that

happened on the night of July 1, 2011:              That night, he walked to the

figure eight races at the county fairgrounds with his sisters and some

friends. 3 A.K. pulled up in a white car and offered to give them a ride,
and the group accepted. After arriving at the races, the group split up,

but later A.K. approached D.E. and asked him if he wanted to play truth


       1FileNo. JVJV500105 alleged A.K. committed three acts which would constitute
sexual abuse in the second degree against D.E. and one act which would constitute
assault with intent to commit sexual abuse against J.E. File No. JVJV500109 alleged
A.K. committed three acts which would constitute assault with intent to commit sexual
abuse against K.D.
       2D.E.  was eight years old when the alleged abuse occurred, but was nine by the
time of the adjudicatory hearing.
       3Although   D.E. and the other children were not sure of the date of the incident,
police were able to narrow down the time frame to July 1 based on A.K.’s phone records
and the racing schedule.
                                             3

or dare. A.K. and D.E. got into A.K.’s parked car, and A.K. touched him

“inappropriately.” After the races ended, A.K. offered to drive D.E. to a

farm to look at the animals and obtained permission from D.E.’s older

sister. A.K. drove D.E. to a remote location, and they got into the back

seat. A.K. pulled down his pants and removed D.E.’s pants. A.K. lifted

D.E. onto his lap and touched his penis to D.E.’s anus. He also rubbed

D.E.’s penis with his hand, and put D.E.’s penis in his mouth. A.K. then

took D.E. back to town to meet his sister. D.E. did not tell anyone about

the incident until several days later.

      D.E.’s twin sister, J.E., also testified.              She corroborated D.E.’s

testimony about riding to the races with A.K. and about D.E. leaving with

A.K. both during and after the races. She also testified that later in the

summer, A.K. asked her if she wanted to ride her bike out to Blue Scout

Island with him. She agreed. They entered an old burned-out house,

and A.K. dared her to pull her pants down. She did. He looked at her

and then she pulled her pants up and she left. He neither touched her

nor moved toward her. She waited to tell anyone about the incident until

several days later.

      D.E. and J.E.’s older sister testified about the night of the races

and corroborated that D.E. and A.K. disappeared during the races and

were found together in A.K.’s car. She also corroborated that A.K. left

with D.E. in his car after the races to go to the farm. All three children

described the interior of A.K.’s car in specific detail, including the fact

that the steering wheel was covered in tape because A.K. told them the

air bag had been set off.

      K.D. 4 testified that A.K. was friends with his brother and

sometimes came to his house along with other friends to watch TV after

      4K.D.   was eleven years old at the time of the incident and at the time of trial.
                                    4

school.   On three occasions during the summer of 2011, A.K. tickled

him, and the horseplay escalated as A.K. rubbed K.D.’s penis through his

pants for about twenty minutes. K.D. testified that he did not tell anyone

about the incidents because he was embarrassed. He acknowledged that

his brother and another friend were in the room when the incidents took

place but that they did not seem to notice anything.

      A.K. did not testify but introduced testimony from his mother,

father, and sister that the car described by the children was inoperable

and parked in South Dakota at his father’s apartment on July 1, 2011.

A neighbor and an acquaintance testified that they recalled seeing A.K.

on a bicycle on the evening of July 1. Some other children who had been

at K.D.’s house on the days in question testified that roughhousing was

common and that they did not see A.K. rubbing K.D.’s penis. A.K. also

introduced evidence tending to show that D.E. and J.E. had changed

elements of their stories when they had talked to friends, members of law

enforcement, and a counselor.

      The juvenile court adjudicated A.K. a delinquent on all seven

counts. A.K. appealed. He contends the district court erred in allowing

evidence of a prior bad act admitted by A.K. to an investigating officer.

He also contends there was insufficient evidence to support the

adjudication.

      II. Scope of Review.

      Delinquency proceedings are special proceedings that serve as an

alternative to the criminal prosecution of a child.     In re J.A.L., 694

N.W.2d 748, 751 (Iowa 2005). The objective of the proceedings is the

best interests of the child. Id. We review delinquency proceedings de

novo. Id. Although we give weight to the factual findings of the juvenile

court, especially regarding the credibility of witnesses, we are not bound
                                     5

by them. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). 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.   Iowa Code § 232.47(10) (2011).       Our review of the

juvenile court’s admission of other-acts evidence is for an abuse of

discretion. J.A.L., 694 N.W.2d at 751.

      The State argues that our de novo standard of review of the

sufficiency of the evidence for juvenile adjudications is inappropriate and

unwarranted by Iowa Code chapter 232.           The State contends that

although our caselaw has long held that our review is de novo and that

we consider the facts anew to determine whether the State has met its

burden to prove the child engaged in acts of delinquency, the statute has

not supported such review since 1965 and urges us to adopt a standard

of review identical to the review we conduct in criminal cases. Such a

standard would require us to determine whether, viewing the light in the

evidence most favorable to the State, any reasonable fact finder could

have found beyond a reasonable doubt that the juvenile committed the

delinquent acts. See State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003).

      As the State describes, before 1965, proceedings under chapter

232 were “in equity.” Iowa Code § 232.13 (1962). Thus our review on

appeal was de novo, as it is in all equity cases.     See Iowa R. App. P.

6.907. However, chapter 232 was substantially revised in 1965, and the

provision expressly requiring delinquency proceedings to be tried in

equity was removed.     Compare Iowa Code § 232.13 (1962), with Iowa

Code § 232.58 (1966). In its place was the directive that “an interested

party . . . may appeal to the supreme court for review of questions of law

and fact.”   Id. § 232.58 (1966).   Identical language is still in effect in

section 232.133(1) (2011).   However, in cases following the revision of
                                    6

chapter 232, we continued to assert that our review was de novo without

acknowledging that particular change in the statutory language.      See,

e.g., In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972).       Instead, we

cited to the old rule of appellate procedure which indicated that our

review of equity cases was de novo. Id.

      The State points out that other states and federal jurisdictions

apply the same standard of review to sufficiency-of-the-evidence claims

in juvenile cases as in criminal cases.   These other jurisdictions have

reasoned that because the State has the same “beyond a reasonable

doubt” burden in both juvenile and adult criminal proceedings, the

standards and scope of appellate review should also be the same in

juvenile and criminal proceedings. See United States v. DeLeon, 768 F.2d

629, 631 (5th Cir. 1985) (concluding standard of review of federal

juvenile adjudication is whether, viewing evidence in light most favorable

to the government, a reasonable fact finder could have found beyond a

reasonable doubt the juvenile committed the alleged act); In re Jose D.R.,

186 Cal. Rptr. 898, 901 (Ct. App. 1982) (holding standard of review in

juvenile adjudications is same as in criminal convictions because

standard of proof below is identical in the two proceedings); In re W.C.,

657 N.E.2d 908, 923 (Ill. 1995) (holding the standard of review in

juvenile adjudication is whether, after viewing evidence in light most

favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt); J.D.P. v.

State, 857 N.E.2d 1000, 1010 (Ind. Ct. App. 2006) (holding that in

reviewing sufficiency of evidence in juvenile adjudication the appellate

court considers the evidence most favorable to the judgment and the

reasonable inferences drawn therefrom and affirms if those inferences

constitute substantial evidence); In re A.D., 771 A.2d 45, 48 (Pa. Super.
                                      7

Ct. 2001) (holding      review of sufficiency of evidence      of juvenile

adjudication is same as reviewing substantial evidence to support a

criminal conviction).

      While the State accurately describes the changes to chapter 232 in

1965, we do not think the revision requires a change in our standard of

review.    The revised language provides that an interested party may

appeal “for review of questions of law and fact.” Iowa Code § 232.133(1).

This language is compatible with our framework of de novo review which

in other contexts requires this court to review the “facts as well as the

law [to] determine from the credible evidence [the parties’] rights anew.”

State ex rel. Turner v. Younker Bros., Inc., 210 N.W.2d 550, 567 (Iowa

1973) (emphasis added); see also In re Marriage of Winegard, 257 N.W.2d

609, 613 (Iowa 1977). Further, we have continued to assert that juvenile

proceedings are in equity and subject to de novo review for more than

forty years since the amendments identified by the State. Certainly if the

legislature had intended such a dramatic change in the scope of our

appellate review in juvenile proceedings, it would have seen fit to more

explicitly revise the statute to correct our misunderstanding at some

point during the last four decades.

      Although the State contends there is “no legitimate reason or

policy” supporting the application of different standards of review in

juvenile   adjudications    and   adult   criminal   convictions,   juvenile

delinquency proceedings are different in significant ways from adult

criminal proceedings.      The primary goal of juvenile proceedings is to

further the best interests of the child—not to punish but instead to help

and educate the child. See Iowa Code § 232.1; Henderson, 199 N.W.2d

at 119. The State has not explained how a change in our standard of

review would promote the best interests of the juvenile. Notably, none of
                                      8

the cases from other jurisdictions cited by the State address this issue.

The rationale offered by the other courts focuses solely on the similar

burden placed on the State in both types of proceedings.

      We note that de novo review of the evidence may promote efficiency

when there is an evidentiary error below because we can review the

evidence anew, without considering the inadmissible evidence, to

determine whether the State has proven the child committed the acts

beyond a reasonable doubt. See J.A.L., 694 N.W.2d at 753. If we applied

the more deferential review urged by the State, we would have to remand

for a new trial when evidentiary error was not harmless and keep the

child in limbo longer.

      Further, juvenile proceedings differ from criminal proceedings in

another   important      respect.   Neither   statutory   nor    constitutional

provisions guarantee juveniles the right to a jury trial. See Iowa Code

§ 232.47(2); McKeiver v. Pennsylvania, 403 U.S. 528, 533, 545–47, 91

S. Ct. 1976, 1980, 1986–87, 29 L. Ed. 2d 647, 654, 661–62 (1971); In re

Johnson, 257 N.W.2d 47, 50–51 (Iowa 1977). This important distinction

between adult and juvenile proceedings favors a more in-depth appellate

review of the facts supporting and opposing an adjudication.

      Some fear that because of the unique nature of juvenile

proceedings, juveniles will often “receive[] the worst of both worlds . . .

get[ting] neither the protections accorded to adults nor the solicitous care

and regenerative treatment postulated for children.”            Kent v. United

States, 383 U.S. 541, 556, 86 S. Ct. 1045, 1054, 16 L. Ed. 2d 84, 94

(1966). Others have argued that the lack of a right to jury trial renders

juvenile proceedings especially vulnerable to inaccurate fact finding and

unfair resolutions because they are presided over by a single judge.

Martin Guggenheim & Randy Hertz, Reflections on Judges, Juries, and
                                             9

Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 Wake

Forest L. Rev. 553, 576–77, 593 (1998) [hereinafter Guggenheim].

Although de novo appellate review may not provide the same measure of

protection that a jury trial would, we see no reason to abandon it lightly,

especially given that we do not think it mandated by statute. 5

       Given these considerations, we decline to change our standard of

review    of   the    sufficiency    of   the    evidence     supporting       a   juvenile

adjudication.

       III. Discussion.

       A. Prior Acts Evidence.                During the testimony of Detective

Birkey, who had interviewed A.K. regarding the allegations, this exchange

took place:

             Q: Okay. And after you asked that did [A.K.’s father]
       or A.K. volunteer that he had touched a five-year-old child
       inappropriately in Sioux Falls?

               MR. JACOBSMA: Objection. Relevance.

             MR. PETERSON: It goes to intent, Your Honor. It’s my
       perception that the defense counsel, especially in [K.D.’s]
       case, is alleging that this was roughhousing and had no
       sexual intent. Part of the intent is specific intent to commit
       a sexual assault.

            THE COURT: The objection’s overruled.                        You may
       answer the question.

       5Studies   have shown that a defendant is more likely to be found guilty after a
bench trial than a jury trial. Guggenheim, 33 Wake Forest L. Rev. at 562–63. While
these studies cannot discern who is “right” in the situations where the fact finders
disagree as to guilt, scholars have offered suggestions explaining why judges are more
likely to vote for conviction than are juries. Of primary concern is that judges are
routinely exposed to inadmissible, prejudicial, extra-record evidence, particularly in
juvenile cases. Id. at 571. Often this evidence (such as a confession obtained in
violation of the juvenile’s constitutional rights) will suggest, if not downright prove, that
the juvenile committed the alleged act. Id. at 571–72. Although appellate courts
“indulge in a fiction that a trial judge is capable of putting inadmissible information out
of her mind[,] . . . empirical evidence suggests, and some judges have forthrightly
acknowledged, such highly prejudicial information inevitably affects a judge, even if
only at a subconscious level.” Id. at 572 (footnotes omitted).
                                    10
             THE WITNESS: I asked him if he had ever touched
      anyone inappropriately, and he said, “No, no, actually--”
      then he stopped, and I said, “never.” And he said, “Well,
      yeah, once.” And he told me he had touched the vagina of a
      five-year-old girl in Sioux Falls. According to police reports I
      already had, I believe she was four at the time.

            MR. PETERSON: And so you were aware of this
      incident in Sioux Falls, South Dakota?

                THE WITNESS: Yeah, I was.

      In this appeal, A.K. contends this testimony should have been

excluded pursuant to Iowa Rule of Evidence 5.404(b) as evidence of a

prior bad act. However, the only ground urged for exclusion at trial was

relevance, which is not relied on in the appeal. The State contends this

general “relevance” objection was insufficient to preserve error on

5.404(b) grounds and notes that A.K. has abandoned his relevancy

objection on appeal. We need not decide whether error was preserved on

this issue or whether, if preserved, the “other acts” evidence was

admissible, however, because the evidence challenged by A.K. does not

affect the outcome of our decision on de novo review as to the sufficiency

of the evidence supporting any of the seven counts of delinquency alleged

in this case.

      B.   Sufficiency of the Evidence.      A.K. was charged with seven

separate delinquent acts.      With regard to the three alleged offenses

involving D.E., A.K. was charged with committing acts that would have

violated Iowa Code section 709.3, sexual abuse in the second degree.

Specifically this meant that the State had to show that A.K. committed

sexual abuse against a person who was under the age of twelve. Iowa

Code § 709.3(2). Sexual abuse is defined as “any sex act” with another

person who is a child. Id. § 709.1(3). A “sex act” does not necessarily

require skin to skin contact.    State v. Pearson, 514 N.W.2d 452, 455
                                       11

(Iowa 1994).     Thus it was the State’s burden to prove A.K. committed

three different sex acts with D.E.

         Our de novo review of the evidence convinces us that the State has

proven beyond a reasonable doubt that A.K. committed three acts of

sexual abuse against D.E. D.E. testified that A.K. sucked on his penis;

rubbed his penis; and that he placed D.E., nude, on top of his naked

groin and that A.K.’s penis touched D.E.’s anus. These are clearly sex

acts. Although counsel for A.K. was able to identify several variances in

D.E.’s accounts given to different people before trial, we do not find the

variances to be significant or destructive to the eight-year-old’s

credibility. We further note that D.E.’s clear and accurate description of

the interior of A.K.’s car adds significantly to his credibility. Although

A.K. offered the testimony of his sister and others to establish that the

car D.E. and the other children described was inoperable and was

parked in another state at the time of the alleged abuse, we, as did the

juvenile court, find the testimony of D.E. and the other children more

credible than the testimony of A.K.’s witnesses. Accordingly, we affirm

the juvenile court’s determination that A.K. committed delinquent acts

that would constitute three violations of section 709.3(2) if he were an

adult.

         Similarly, regarding the allegations involving K.D., we conclude the

State has proven beyond a reasonable doubt that A.K. committed three

acts which would constitute assaults with intent to commit sexual abuse

in violation of section 709.11.      As to each of these offenses, the State

must prove that A.K. committed an assault, as defined in section 708.1,

with the intent to commit sexual abuse. Assault is defined, in relevant

part, as any of the following:
                                   12
             1. Any act which is intended to cause pain or injury
      to, or which is intended to result in physical contact which
      will be insulting or offensive to another, coupled with the
      apparent ability to execute the act.

             2. Any act which is intended to place another in fear
      of immediate physical contact which will be painful,
      injurious, insulting, or offensive, couple with the apparent
      ability to execute the act.

Iowa Code § 708.1(1)–(2).

      K.D.’s   testimony was   uncontroverted   that   A.K.   engaged   in

horseplay with K.D. which escalated into A.K. rubbing K.D.’s penis

through his pants for extended periods of time on three different

occasions. On at least one occasion, K.D. told A.K. to stop, and A.K. did

not. Although A.K. solicited testimony from other boys who were present

on one or more of the occasions and who did not observe the rubbing,

the boys corroborated that A.K. had been at the house during the

relevant time frame and that A.K. had wrestled or engaged in horseplay

with K.D. K.D. testified that he did not like to be touched that way by

A.K. and he found it embarrassing.      We find K.D.’s testimony more

credible than the testimony opposing it.    The State proved beyond a

reasonable doubt that A.K. committed three acts of assault with intent to

commit sexual abuse against K.D.

      However, we find the State has not met its burden to prove A.K.

committed an assault against J.E. as the crime is defined under Iowa

Code section 708.1(1) and (2). J.E.’s uncontroverted testimony was that

after she willingly accompanied A.K. to the abandoned house, A.K. dared

her to pull down her pants.     She complied at first but after a few

moments pulled up her pants and ran away. J.E. testified that A.K. was

across the room from her when he spoke to her. A.K. did not touch her,

move toward her, or make any verbal utterance threatening her with

physical contact.   We cannot conclude beyond a reasonable doubt on
                                     13

this record that A.K. assaulted J.E. Accordingly, we reverse the juvenile

court’s adjudication of A.K. as to this count.

      IV. Conclusion.

      For the reasons stated above, we affirm the juvenile court’s

adjudication of A.K. as a delinquent as alleged in counts I, II, and III of

File No. JVJV500105 (D.E.) and counts I, II, and III of File No.

JVJV500109 (K.D.). We reverse the juvenile court’s adjudication of A.K.

as a delinquent as to count IV of File No. JVJV500105 (J.E.).

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
