APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE PETER H. LIEBERMAN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON APRIL 26, 2010
[¶1.] W.T.M. was adjudicated delinquent after the juvenile court found beyond a reasonable doubt that W.T.M. touched his penis to one side of another child's buttocks with the specific intent to arouse or produce sexual gratification in violation of SDCL 22-22-7. We reverse.
[¶2.] On June 21, 2008, eleven-year-old W.T.M. was playing with C.K., an eight-year-old boy, and a young girl in a neighborhood park across from C.K.'s house. The three children played "pirates" together before W.T.M. and C.K. played a "truth or dare" game outside the park behind a house in close proximity to C.K.'s home. W.T.M. had learned "truth or dare" from another friend. As part of the game, W.T.M. dared C.K. to let W.T.M. touch his penis to C.K.'s "butt." When C.K. hesitated, W.T.M. offered C.K. a small action figure toy for complying. C.K. pulled down his own pants and underwear. W.T.M. pulled his shorts down just far enough so that his penis was showing above the waistband. W.T.M. touched his bare penis to one side of C.K.'s bare buttock. C.K. would later testify that W.T.M.'s penis felt "squishy."
[¶3.] K.K., C.K.'s mother, called him in for dinner just as the contact occurred. When C.K. emerged from a hillside beside a house rather than the park, C.K.'s mother began to question him about why he was playing by the house because C.K. was forbidden from playing by neighboring houses. K.K. noted that C.K. was evasive and questioned him further. C.K. told his mother what W.T.M. had done. However, K.K. understood that W.T.M. had C.K. pull down C.K.'s pants and W.T.M. had "stuck his penis in [C.K.'s] butt." K.K. called the police and made a report.
[¶4.] Two uniformed police officers responded and took K.K.'s statement. According to their report, they responded to a report of a sexual assault. C.K. told the responding officer, "I was with my friend [W.T.M.] and he pulled down my pants and he put his here, (pointing to his rear end)." When asked if W.T.M. went inside his "butt" C.K. replied "No, he just touched it." K.K. was asked if she had looked to see if there was any injury to C.K., blood, swelling, or anything out of place, to which she replied, "No."
[¶5.] C.K. showed the officer the secluded area behind the house where the contact occurred. C.K. also indicated that when he initially refused to pull down his pants, W.T.M. offered him first a small action figure toy and then a dollar to do so. C.K. also explained that the two boys had been playing "truth or dare," and the dare was for C.K. to allow W.T.M. to touch his "pee pee" to C.K.'s "butt."
[¶6.] C.K. was taken by K.K. to a hospital for examination. An emergency room physician conducted a visual examination of C.K. but found no signs of injury.
A forensic examination kit was performed. A pediatrician conducted an interview of C.K. and K.K. The report indicated the details of the touching. It also noted that C.K. was eight years old, had been adopted by K.K. at age three, and had been formally diagnosed with Fetal Alcohol Syndrome (FAS). No rectal trauma was revealed during the examination. C.K.'s clothing was collected for forensic testing. Counseling was recommended and C.K. was referred to Child's Voice for an interview the following Monday.
[¶7.] The uniformed officers located W.T.M.'s home about an hour after the initial report by K.K. and spoke with W.T.M.'s mother, T.K. At the home was T.K.'s boyfriend, K.R. K.R. called for W.T.M. who was in his bedroom. W.T.M. came into the living room and sat down, but before the police officers could say anything K.R. asked W.T.M. "what the hell were you doing at the park?" W.T.M. looked down at the ground and replied "C.K. dared me to do it."
[¶8.] One of the officers interrupted and asked W.T.M. if he had been at the park playing with C.K. After W.T.M. replied in the affirmative, W.T.M. also told the officer he had come home and changed clothes. The officer asked T.K. for consent to take W.T.M.'s clothing. T.K. provided the clothing. The officer informed T.K. that a detective would be in contact with her at a later time and that "they would be brought in for questioning."
[¶9.] Detective Sean Kooistra (Kooistra) called T.K. and asked her to bring W.T.M. to the Law Enforcement Center for an interview. On June 27, 2008, at 9 a.m., T.K. arrived with W.T.M. for the interview. W.T.M. admitted to touching his penis to one side of C.K.'s buttock and that it was done as part of the game "truth or dare." Kooistra also asked W.T.M. whether he had offered the small action figure toy to C.K., which W.T.M. confirmed. W.T.M. denied offering C.K. a dollar in exchange for the contact.
[¶10.] Kooistra asked W.T.M. where he had learned the "truth or dare" game. W.T.M. replied that he had learned it from some of the older children in the neighborhood and that it involved both girls and boys. According to W.T.M., the boys dared the girls to let the boys kiss them. Kooistra asked W.T.M. if he had also kissed the girls. W.T.M. vehemently shook his head no. Kooistra asked if anyone had ever tried to touch W.T.M.'s penis or buttocks. Kooistra asked this ...