IN THE INTEREST OF Z.W.S., Minor Child, Z.W.S., Minor Child, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-158 / 08-1027
Filed April 22, 2009
IN THE INTEREST OF Z.W.S.,
Minor Child,
Z.W.S., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wright County, James A. McGlynn,
Associate Juvenile Judge.
A minor appeals from the juvenile court‟s order adjudicating him to have
committed a delinquent act. REVERSED.
Joel J. Yunek of Yunek Law Firm, Mason City, for appellant minor child.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Eric R. Simonson, County Attorney, for appellee State.
David Johnson of Brinton, Bordwell & Johnson, Clarion, for appellee
parent.
Considered by Mahan, P.J., and Miller and Potterfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
On the evening of October 13, 2006, five young girls were staying
overnight at the house of M.S. to celebrate her eighth birthday. M.T., an eightyear-old who was M.S.‟s best friend at the time, attended the birthday party. The
six girls played in the basement family room, where they planned to sleep. Z.S.,
M.S.‟s brother who was fifteen years old at the time, had a bedroom in the
basement located next to the family room. He and two friends spent the evening
hours upstairs together. Z.S. and M.S.‟s parents were home.
M.T. claims that sometime after midnight, M.S. took her by the arm and
said she had to take her somewhere. M.T. asserts that M.S. took her into Z.S.‟s
bedroom, where Z.S. was watching television, and shut the door. M.T. claims
that M.S. pulled down M.T.‟s pants and underwear, pushed her onto her hands
and knees, and held her on the ground. M.T. testified that without saying a word,
Z.S. “came and pulled down his pants and stuck his penis into my butt.” M.T.
testified that she did not actually see Z.S. or his penis, but that he stuck his penis
about “halfway” in and that he did not move it around. M.T. said that Z.S. did not
put his hands on her as he put his penis in her anus. M.T. stated that after about
ten seconds, she stood up and left the room. She testified that the incident was
not painful and that she did not scream or cry. She returned to the family room,
where all of the young girls eventually went to bed. She claims that she did not
mention the incident to anyone because M.S. threatened that if she did, she
would get in trouble, M.S. would no longer be her friend, and M.S. would smack
her in the face.
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Of the four other girls at M.S.‟s birthday party, one testified that Z.S. was
in his room after his parents had gone to bed. She testified that M.S. was going
back and forth between her brother‟s room and the family room with notes that
she gave to M.T. She also stated that she saw M.S. take M.T. into Z.S.‟s room,
but she did not see M.T. come out of Z.S.‟s room. Two of the other girls at the
party testified that they did not see M.T. or M.S. enter Z.S.‟s room. The fourth girl
testified that she did not see M.S. enter Z.S.‟s room but did not know whether
M.T. had. The record is unclear as to when each of the six girls went to sleep.
Z.S. denies ever touching M.T. He and his girlfriend and her friend were
at his house on the evening of the party. He testified that he was only downstairs
briefly earlier in the night with his girlfriend so they could find a movie to watch.
He and his mother took the two girls home around 1:00 or 1:30 a.m. Z.S. claims
that upon returning home, he had a quick snack and fell asleep on a couch
upstairs. Z.S.‟s mother testified that when she went to bed and when she woke
up, Z.S. was asleep on the upstairs couch. M.S. denied that the incident ever
occurred.
M.T. did not mention the alleged incident to anyone immediately
afterward. M.T.‟s mother testified that she did not notice any abnormal behavior
after the birthday party. There is no evidence that M.T. avoided either Z.S. or
M.S. after the alleged incident. M.T. continued to spend time with M.S. during
the following year.
M.T. invited M.S. to spend a week at her grandmother‟s
house in the summer of 2007. M.T. went to M.S.‟s house on the night of Z.S.‟s
sixteenth birthday party in September 2007, and the two girls spent time
watching the older kids at the party. Sometime before M.S.‟s ninth birthday party
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in October 2007, however, the two best friends broke up. M.T. then became best
friends with another girl. M.T. was not invited to M.S.‟s sleepover birthday party
in October 2007.
According to M.T.‟s mother, M.T. had difficulty spending the night at
friends‟ houses. M.T.‟s mother first thought this difficulty had lasted around two
years. Later, she testified the problem had developed slowly over the last year.
M.T. attended M.S.‟s birthday party in 2004 but did not spend the night. In late
October 2007, M.T.‟s mother became frustrated by M.T.‟s increasingly persistent
refusal to spend the night at friends‟ houses. She arranged for M.T. to spend the
night with her new best friend after basketball practice, but M.T. became anxious
and emotional when her mother told her of the plans. M.T.‟s mother insisted that
M.T. needed to tell her why she became so upset about spending the night with
friends. M.T. then told her mother that Z.S. had placed his penis in her anus at
M.S.‟s birthday party in October 2005.1
Following M.T.‟s accusation, the school nurse talked to M.S. about her
brother, Z.S. M.S. told the nurse that Z.S. had touched her with his penis the
previous month, September 2007.
Both girls were interviewed by forensic
investigator Tamara Bibbins.
The State filed a delinquency petition against Z.S. for two counts of sexual
abuse in the second degree in violation of Iowa Code section 709.3 (2005), one
involving M.S. and one involving M.T. After an adjudicatory hearing, the juvenile
court dismissed the charge involving M.S., who recanted at trial, saying that she
1
After determining that M.S. did not have a birthday party in 2005, M.T. decided that the
assault had actually occurred in 2006.
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had lied to get her older brother in trouble. The juvenile court adjudicated Z.S. to
have committed a delinquent act against M.T. Z.S. appeals, arguing: (1) the
evidence was insufficient to support adjudication; and (2) the juvenile court
abused its discretion in admitting testimony from M.T.‟s mother and videotapes
and testimony from the forensic interviewer who questioned M.T. as part of the
investigation of M.T.‟s allegations.
II. Standard of Review
We review juvenile delinquency proceedings de novo. In re J.D.F., 553
N.W.2d 585, 587 (Iowa 1996). We review questions of both fact and law. Id.
We give weight to the juvenile court‟s findings of fact, especially when
considering the credibility of witnesses, but are not bound by them. Id.
III. Sufficiency of the Evidence
The State has the burden of proving beyond a reasonable doubt that the
child committed a delinquent act. In re D.L.C., 464 N.W.2d 881, 882-83 (Iowa
1991). Upon our de novo review of the record, we cannot find that the State
proved Z.S.‟s guilt beyond a reasonable doubt. We give weight to the juvenile
court‟s findings that M.T.‟s testimony was “very believable” and that her credibility
was bolstered by the testimony of her mother. However, after considering all of
the evidence, we cannot find that the State presented evidence of guilt beyond a
reasonable doubt.
Z.S. consistently and repeatedly denied the allegations of sexual assault.
His mother saw him asleep on the couch upstairs when she went to bed, and he
was still sleeping there when she woke up. Three of M.T.‟s friends at the party
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do not remember M.S. ever going into Z.S.‟s bedroom. M.S. and her mother
testified at trial that Z.S. was upstairs and denied that the incident occurred.
M.T.‟s mother testified that she did not notice anything abnormal right after
the birthday party. M.T. continued to spend a significant amount of time with
M.S., who had allegedly stripped her pants and held her down during the assault.
M.T. went to M.S.‟s house, even when she knew Z.S. would be home. She
invited M.S. to spend a week‟s vacation with her at her grandmother‟s home.
The juvenile court gave substantial weight to the testimony of M.T.‟s
mother regarding M.T.‟s difficulty spending nights with friends, as corroboration
of her accusation against Z.S.
The evidence showed that M.T. had trouble
spending the night with friends before the alleged assault. M.T.‟s mother testified
that she had to take M.T. home from M.S.‟s birthday party in 2004 because M.T.
was having trouble spending the night. M.T.‟s mother also testified that she
made arrangements with M.S.‟s mother to take M.T. home if she got shy staying
overnight. This evidence significantly reduces the impact of the testimony of
M.T.‟s mother regarding M.T.‟s unwillingness to spend the night at friends‟
houses after the 2006 birthday party.
We agree with the juvenile court that “the case is a matter of „he said, she
said.‟” We do not find that the State proved Z.S. guilty beyond a reasonable
doubt after considering all the evidence. Because we reverse the juvenile court
on our de novo review, we decline to address Z.S.‟s evidentiary argument.
REVERSED.
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