Opinion
No. 4-700 / 04-0666
Filed December 22, 2004
Appeal from the Iowa District Court for Jones County, Thomas L. Koehler, Judge.
J.B. challenges an adjudication that he committed the public offense of assault with intent to commit sexual abuse. AFFIRMED.
Catherine K. Levine, Des Moines, and Darin H. Luneckas of Luneckas Newhouse, P.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Connie S. Ricklefs, County Attorney, and Robert A. Hruska, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Joshwas adjudicated delinquent for committing the public offense of assault with intent to commit sexual abuse. See Iowa Code § 709.11 (2003); see also id. § 232.2(12)(a) (defining "delinquent act" as "[t]he violation of any state law or local ordinance which would constitute a public offense if committed by an adult . . ."). On appeal, Josh contends the State failed to prove its case. The State responds that Josh did not preserve error by filing a motion for judgment of acquittal. We believe error was preserved. See In re C.G.B., 643 N.W.2d 208, 210 (Iowa Ct.App. 2002); see also State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Accordingly, we proceed to the merits.
The State has the burden of proving the allegations of its petition beyond a reasonable doubt. Iowa Code §§ 232.47(4), (10). Our review to determine whether the State satisfied this burden is de novo. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996).
Assault and sex abuse are the two key components of the charged crime. The district court defined assault as:
Any act (a) intended to cause pain or injury to the victim or (b) intended to result in physical contact insulting or offensive to the victim, or (c) intended to place the victim in fear of immediate physical contact which would have been painful, injurious, insulting or offensive.
Sexual abuse is defined as a sex act that is "done by force or against the will of the other." Iowa Code § 709.1.
The following testimony of fourteen-year-old L.T. supports the delinquency adjudication. Josh invited her to his house, stating several other friends were meeting there. L.T. asked Josh if that was okay with his mother. L.T. heard his mother say she didn't care. She went to L.T.'s house. Josh was outside. He led her into the home. No one else was downstairs, but L.T. could hear sounds coming from upstairs. Josh told L.T. to go upstairs. He led her into a room with a couch, mattress, television, and entertainment set. L.T. sat on the couch. Josh came over and forced her to kiss him. L.T. felt "[v]iolated" and moved to the mattress. Josh moved as well. Josh asked L.T. to kiss him. She "didn't want to do anything like that" and got up to leave. Josh grabbed her leg and L.T. fell on the mattress. Josh got on top of her, held her hands and again kissed her. L.T. screamed and struggled. Josh unbuckled L.T.'s belt and tried to remove her pants. L.T. continued to struggle. She felt scared. She got away from the mattress and began walking away. Josh threw her onto the bed in his room and continued to try to get her pants down. At the same time he touched her breasts and stomach. "[H]e just kept saying that we were going to have sex." Josh then unzipped his shorts, "pulled out his groin" and rubbed it on her. L.T. hit Josh. He grabbed her arms and started tying her right hand with a jump rope. L.T. pushed him, ran to the stairs and went out the door. On arriving home, she told her sister and brother of the incident.
There is also evidence detracting from this testimony. Josh's parents testified they were home on the day of the claimed assault. They stated Josh was sitting downstairs in direct view of them, except for a period when he went to buy groceries with his father. The district court as fact finder accorded less weight to this testimony than to that of L.T., stating "[t]he testimony of the parents of Josh is simply not credible." We can and do consider this credibility determination. In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991).
There was also seemingly contradictory testimony from Josh's wrestling coach. He stated he went to pick up a nail gun from Josh's father around noon or 12:30 on the afternoon of the claimed assault. He found Josh and his mother and father home in their pajamas. This testimony does not necessarily refute L.T.'s statement, as she claimed the assault occurred between 2:00 P.M. and 2:45 P.M.
Finally, there is testimony from police officers confirming that they did not corroborate L.T.'s statement. We are not persuaded that this testimony mandates reversal. First, such corroboration is not required. Iowa R. Crim. P. 2.21(3) (stating "[c]orroboration of the testimony of victims shall not be required"). Second, while one of the officers conceded more could have been done, he also stated these additional efforts likely would not have netted physical corroborative evidence. Third, if corroboration were required, we find it in Josh's statement to an officer that "things might have went a little too far."
The officer stated L.T. should have been taken to the Child Protection Center within twenty-four hours of the assault, but he admitted that the Center restricted its physical exam of victims to their genitalia. In this case, no sexual intercourse took place.
We conclude the State proved the allegations of its petition. We accordingly affirm the delinquency adjudication for assault with intent to commit sexual abuse.