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People in the Interest of J.O.

2022 COA 65. No. 20CA1539.  Juvenile Delinquency—Unlawful Sexual Conduct—Sexual Gratification or Abuse—Intent.

June 16, 2022

The prosecution presented evidence that 11-year-olds J.O. and M.L. were working on a writing project at school when J.O asked M.L. why they weren’t friends anymore. When M.L. responded that she didn’t want to be friends, J.O. “slapped [her] on [her] boob” with “the back of his hand.” After class, a teacher noticed M.L. and J.O. chasing each other around their lockers. The teacher testified that M.L. yelled at J.O. to stop and leave her alone. After J.O. left, M.L. told the teacher that J.O. had “touched her sexually” and said “sexual things.” M.L. did not explain then or at trial what “sexual things” J.O. said. The teacher reported the incident to the principal. Three days later during a forensic interview, M.L. said that J.O. moved his hands all over her body and touched her genitals with his “butt or something.” M.L. said J.O. never touched her under her clothes, and he went away when she told him to leave. The juvenile court found that the prosecution proved all of the elements of unlawful sexual contact. It adjudicated J.O. delinquent and sentenced him to one year of probation.

J.O. argued on appeal that the evidence was insufficient to prove beyond a reasonable doubt that he acted for the purposes of sexual gratification or sexual abuse. Unlawful sexual contact includes “the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.” The intent element is separate from the touching element, and the trier of fact must consider a juvenile’s age and maturity before it can infer the requisite intent that the juvenile acted with a sexual purpose. Here, there was no indication that the juvenile court specifically considered J.O.’s age and maturity or whether the same sexual motivation could be ascribed to his conduct as would be ascribed to an adult’s conduct. Therefore, the court’s finding that J.O. touched M.L.’s sexual parts was insufficient to establish that he acted with the requisite purpose or intent. Further, there was no evidence that J.O. acted for the purpose of sexual abuse.

The adjudication of delinquency was vacated.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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