Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Buchanan County, Missouri. The Honorable Daniel F. Kellogg, Judge.
Anne V. Kiske, St. Joseph, MO, for appellant.
Summer A. Duke, St. Joseph, MO, for respondent.
Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.
Gary D. Witt, Judge
A.B. appeals the judgment of the Circuit Court of Buchanan County, Missouri, Juvenile Division, sustaining the allegations against him that he committed the delinquent act of sexual molestation in the first degree pursuant to 566.067.1. A.B. argues on appeal that the trial court erred in finding sufficient evidence to establish beyond a reasonable doubt that he had the requisite mental state (i.e. that the actions were taken " for the purpose of arousing or gratifying sexual desire of any person" ). For the reasons set forth below, the judgment is reversed.
FACTS AND PROCEDURAL HISTORY
D.H., a five-year-old boy, was found by his father on a trampoline with another
five-year-old boy with both of their pants down and touching each other's genitals. D.H.'s father testified that when he asked D.H. where he had learned this behavior, D.H. told him that he learned it from A.B. A.B. was the son of family friends who was twelve-years old and had been to the home of D.H. on multiple occasions. Based on this report and further investigation, A.B. was alleged by the Juvenile Officer (" J.O." ) to have committed the delinquent act of sexual molestation in the first degree under section 566.067.1 against D.H.
Testimony adduced at a bench trial established that incidents between A.B. and D.H. occurred on two or three occasions in the summer of 2013. The evidence was inconsistent as to exactly what happened. At various times each of the children stated that each touched the other's genitals and at other times each of the children stated that they each put the other's genitals in their mouths. The incidents occurred in a bedroom and there were parents and other children present in the house. There was no evidence that either child achieved an erection or ejaculation as a result of any of the incidents. Both children were consistent throughout that each incident was very brief, lasting only a few seconds. D.H. testified that A.B. told him not to tell anyone about what happened.
D.H. was unable to describe at trial what had happened until after taking a short break to confer with counsel. In his very brief testimony, D.H. told the court " he sucked my penis and he kissed my butt cheek and we did it to each other." D.H. stated it happened two times. D.H.'s father (" J.H." ) described seeing his son on the trampoline with another five-year-old boy with their pants down. J.H. asked D.H. where he had learned that " crap." D.H. told him that A.B. taught him.
Detective Mike Wilkerson (" Det. Wilkerson" ), a detective with the Buchanan County Sheriff's Department, took a statement from A.B. in the presence of A.B.'s parents and Juvenile Officer Peau (" Officer Peau" ). Detective Trenny Wilson (" Det. Wilson" ), a St. Joseph police officer, conducted forensic interviews with both D.H. and A.B. Det. Wilson conducted the interviews as part of her second job interviewing children on behalf of the Buchanan County Sheriff's Department. The information provided in these statements was consistent with the evidence set forth above.
At the close of the State's evidence, A.B. moved for a finding that the State did not meet its burden in proving all three elements of the crime pursuant to section 566.067.1 in that the State presented no evidence that the acts were done for the purpose of sexual arousal or gratification. The court denied the motion, stating: " Well, I think the only inference could be if a 13-year-old [sic] is touching a five-year-old's penis, I don't know what the other inference would be." A.B. then presented evidence.
Dr. Gregory Sisk (" Dr. Sisk" ), a clinical psychologist who has maintained a contract with the Missouri Children's Division for over thirty years testified for A.B. Dr. Sisk has conducted thousands of child interviews over the years, with forty-five percent of those involving allegations of sexual abuse. Dr. Sisk conducted an evaluation of A.B. which included a " typical battery" of tests such as a measurement of intelligence and academic function, personality tests, tests on family life and a juvenile sex offender risk assessment test. Dr. Sisk stated ...