Opinion
No. 2-918 / 02-0044
Filed February 12, 2003
Appeal from the Iowa District Court for Polk County, Karla J. Fultz, Associate Juvenile Judge.
A juvenile appeals from an order adjudicating him delinquent for committing the offense of assault with intent to commit sexual abuse. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Sr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Mark Taylor, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer and Hecht, JJ.
Adam was adjudicated delinquent by the juvenile court for committing assault with intent to commit sexual abuse in violation of Iowa Code section 709.11 (2001). He appeals, contending there was insufficient evidence to support the finding of delinquency beyond a reasonable doubt. We affirm.
I. Background Facts and Proceedings.
On August 2, 2001 at approximately 1:00 a.m., sixteen-year-old Adam and his eighteen-year-old friend Joseph Wall went to the home of seventeen-year-old Lori, in Mitchellville. Lori's friend, fifteen-year-old Brianna, was with her watching a movie. Lori's parents were not at home.
As a result of an incident which occurred shortly after Adam and Wall arrived, the State filed a delinquency petition charging Adam with assault with the intent to commit sexual abuse. Following a contested adjudicatory hearing, the juvenile court entered an order adjudicating Adam as a delinquent. Adam appeals from the adjudication.
II. Scope of Review.
Juvenile delinquency proceedings are reviewed de novo. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). Questions of both law and fact are subject to review. Id. While we give weight to the fact-findings of the juvenile court, especially when considering the credibility of witnesses, those findings do not bind us. Id. The State must prove the delinquent act alleged by proof beyond a reasonable doubt. Iowa Code § 232.47(10).
III. Discussion.
Adam concedes that he committed an assault, but claims there was insufficient evidence to find that he committed the assault with intent to commit sexual abuse.
Pursuant to section 709.1, sexual abuse is any nonconsensual sex act. "Sex act" is defined in section 702.17. An act constituting a "sex act" requires some touching of the anus or genitalia. Iowa Code § 702.17. Fondling a breast may involve a sexual purpose but it is not a "sex act." State v. Baldwin, 297 N.W.2d 337, 340 (Iowa 1980). To determine whether a defendant had the specific intent to commit sexual abuse, we apply the following standard.
The overt act must reach far enough towards the accomplishment, toward the desired result, to amount to the commencement of the consummation, not merely preparatory. It need not be the last proximate act to the consummation of the offense attempted to be perpetrated, but it must approach sufficiently near it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.
State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989) (citations omitted).
In Radeke, the defendant made an appointment with a female real estate agent to see a rural house. Id. at 477. During the viewing, he got behind the agent, put his hands over her mouth, grabbed her around the waist, and instructed that if she did what he said, he would not hurt her. Id. He told her to unbutton her blouse. Id. She complied and then pulled away from him. Id. Defendant apologized and left after the victim told him the owners were on their way home. Id. at 478. Although defendant's actions never amounted to a sex act, the court found sufficient evidence to infer intent to commit sexual abuse. Id. at 479. Defendant lied about his background and admitted to police that he would have had sex with her if she agreed. Id. at 478. The fact that Radeke ultimately left without committing sexual abuse was of limited relevance. Id. (citation omitted). His deception, assault, and desire to have sex with the victim was enough for a reasonable inference of intent to commit sexual abuse. Id. at 479.
In the instant case, neither Adam nor his friend committed a sex act as defined under Iowa law. As a result, the fighting issue in this appeal is whether or not the State presented sufficient evidence of Adam's intent to commit sexual abuse. Intent can rarely be proved by direct evidence. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Instead, we examine the circumstantial evidence and the inferences drawn from the evidence. Id. The State presented evidence that Adam and Wall came to Lori's home late at night when they knew their victims had no other company. According to Lori, the boys asked to enter her home to use the bathroom. The events which followed suggest they had other plans. After Adam and Wall entered the home, Lori went to an adjacent room to retrieve a telephone and the boys followed her. As she reached for the telephone, the boys pushed her to a bed, got on top of her, and held her down. Adam held one of Lori's arms and Wall held the other. Wall grabbed Lori's breast under her bra. Lori resisted the boys by pushing and kicking. Afraid that she might be raped, she began to cry and screamed to her friend for help. Brianna came into the bedroom. At first, she believed the boys were engaging in horseplay, but quickly realized they were not. She demanded the boys get up and go home. In response, Adam and Wall turned their attention to Brianna. She testified they pushed her onto another bed in the room. Meanwhile, Lori left the house and yelled for help in the street. Adam and Wall each held one of Brianna's arms while Wall tried to grab her breasts under her shirt. She resisted by kicking and screaming. Fearing someone might hear Brianna and call the police, Wall placed his hand over her mouth to muffle her screams. Like Lori, she feared she would be sexually abused and began to cry. Brianna curled into a fetal position and eventually freed herself. Lori reentered the house to help her friend. She found Brianna running in a hallway and took her outside.
Adam's version is substantially different. He testified that Lori brought him to her room where the two kissed. According to Adam, Wall entered the room and wanted to leave. At that point, Lori pulled him onto the bed and then he held her hands down while Wall tickled her. When Brianna arrived in the room, the boys did the same thing to her. Adam indicated that Wall accidentally kneed Brianna and the boys stopped. The girls left the house and the boys went home. The juvenile court obviously did not find Adam's testimony to be credible.
On our de novo review of the record, we conclude the testimony of Lori and Brianna support the inference that Adam acted with the intent to commit sexual abuse. See State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994) (element of intent seldom susceptible to proof by direct evidence, but depends on inferences drawn from circumstantial evidence); State v. Howard, 404 N.W.2d 196, 198 (Iowa Ct.App. 1987) ("The fact finder may determine intent by such reasonable inferences and deductions as may be drawn from facts proved by evidence in accordance with common experience and observation."). We affirm the juvenile court's decision that Adam committed a delinquent act.