Where there is insufficient evidence from which the court could find that Juvenile committed the acts alleged for the purpose of sexual arousal or gratification, adjudication for statutory sodomy and requirement to register as sex offender are reversed.  In the Interest of J.A.H., No. 92114 (Mo. App. E.D., September 15, 2009), Norton, J.

Juvenile appeals the judgment of the juvenile court finding him to have committed the delinquent act of statutory sodomy in the first degree in violation of Section 566.062, ordering Juvenile into the legal and physical custody of the Division of Youth Services and ordering Juvenile to register as a sex offender.

T.H. testified that on one occasion, he and Juvenile took a shower together because they were running late for a family function.  T.H. claims that during this shower, Juvenile took a hard sponge and rubbed it back and forth against T.H.'s penis.  Juvenile did not say anything to T.H. at the time and stopped when T.H. asked him to.  T.H. could not recall what year this happened, but thought he was five or six years old at the time.

T.H. also testified that he and Juvenile frequently played "doctor" or "hospital."  T.H. was the patient and would lie on top of Juvenile's bunk bed while Juvenile would push on his chest (mimicking CPR) and would pretend to give him shots.  T.H. testified that on one occasion Juvenile got on top of T.H. and put his penis in T.H.'s mouth.  According to T.H., Juvenile then got off the bunk bed and shook his fist at T.H. saying, "I'll hurt you if you tell anyone."

T.H. was unable to recall many details about the incident.  For example T.H. was unable to remember what Juvenile was wearing. T.H. could not recall for how long Juvenile's penis was in his mouth.  T.H. was unable to describe where Juvenile's penis touched his mouth.  T.H. also could not remember how old he was when this alleged incident took place, but he guessed he was "five or six, maybe seven."

Deviate sexual intercourse is defined as "any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person . . . done for the purpose of arousing or gratifying the sexual desire of any person."  Section 566.010(1), RSMo (emphasis added).

Although it is clear that the court believed T.H.'s testimony that Juvenile rubbed T.H.'s penis with a sponge in the shower, and on another occasion, touched his penis to T.H.'s mouth, the judgment makes no specific finding that Juvenile committed these acts for the purpose of sexual arousal or gratification.

Regardless, however, of whether Juvenile admitted or denied the acts alleged, Juvenile Officer has the burden of proving each and every element of a criminal offense beyond a reasonable doubt.

With respect to the shower incident, the court found absolutely no evidence from which a finder of fact could infer that Juvenile had the requisite intent.

With respect to the allegation that Juvenile touched his penis to T.H.'s mouth, the evidence showed that on one occasion when Juvenile and T.H. played "doctor," Juvenile got on top of T.H. and put his penis in T.H.'s mouth.  The details are vague.  T.H. could not recall exactly where Juvenile's penis hit his mouth.  T.H. was also unable to estimate how long Juvenile's penis touched his mouth.  However, T.H. did recall that at some point Juvenile got off the bunk bed and shook his fist at T.H. saying, "I'll hurt you if you tell anyone."

The evidence fails to support a finding that Juvenile touched his genitals to T.H.'s mouth for the purpose of sexual arousal or gratification.  There is no evidence that Juvenile used the game of doctor for his or T.H.'s sexual arousal or gratification.  For example, there was no evidence that Juvenile's penis was erect.  There was no evidence that Juvenile's penis was in T.H.'s mouth for any significant duration of time.  There was no evidence of a sexual statement made by Juvenile to T.H.  Juvenile Officer argues that Juvenile's threat to hurt T.H. if he told anyone is sufficient evidence of the requisite intent; however, the court disagreed.  Statutory sodomy in the first degree requires more than knowledge that the act is wrong; the statutes require proof that the act was done with the intent to cause sexual arousal or gratification.  Sections 566.062.1 and 566.010(1), RSMo.  Thus, while Juvenile's threat may show that he knew what he was doing was wrong, this is not the mens rea required under the statutes.

In this case, where Juvenile was eight or nine and T.H. was five, six or seven, and there was no evidence regarding the Juvenile's behavioral development or knowledge of sexual subject matter, the court is unwilling to find that an eight or nine year old touches his penis to the mouth of a five or six year old for no discernible reason other than sexual arousal or gratification.

There was insufficient evidence from which the court could find that Juvenile committed the acts alleged for the purpose of sexual arousal or gratification. Reversed.