People In Interest of J.O.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 16, 2022

2022COA65

No. 20CA1539, People in Interest of J.O. — Juvenile Court —
Delinquency; Crimes — Unlawful Sexual Contact — Intent —
Sexual Gratification — Sexual Abuse

In this juvenile delinquency appeal, a division of the court of

appeals vacates a juvenile’s adjudication for the offense of unlawful

sexual contact because it concludes that the evidence was

insufficient to prove beyond a reasonable doubt that the juvenile

acted for the purposes of sexual gratification or abuse. In resolving

the appeal, the division holds that 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. The division also

clarifies that it may not — and often will not — be appropriate for a

fact finder to ascribe the same intent to a juvenile’s act that one

could reasonably ascribe to the same act if performed by an adult.
COLORADO COURT OF APPEALS 2022COA65

Court of Appeals No. 20CA1539
City and County of Denver Juvenile Court No. 19JD570
Honorable Pax Moultrie, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of J.O.,

Juvenile-Appellant.

JUDGMENT VACATED

Division IV
Opinion by JUDGE BROWN
Richman and Pawar, JJ., concur

Announced June 16, 2022

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Juvenile-Appellant
¶1 J.O. appeals his juvenile delinquency adjudication for the

offense of unlawful sexual contact, contending that the evidence

was insufficient to prove beyond a reasonable doubt that he acted

for the purposes of sexual gratification or sexual abuse. Because

we agree, we vacate J.O.’s delinquency adjudication.

¶2 In resolving this appeal, we hold as a matter of first impression

that the trier of fact must consider the juvenile’s age and maturity

before it can infer the requisite intent that the juvenile acted with a

sexual purpose. And we clarify that it may not — and often will not

— be appropriate for a fact finder to ascribe the same intent to a

juvenile’s act that one could reasonably ascribe to the same act if

performed by an adult.

I. Background

¶3 The prosecution presented the following evidence during a

one-day bench trial.

¶4 In May 2019, at the end of the school day, eleven-year-olds

J.O. and M.L. were working on a writing project. J.O. sat next to

M.L. and asked her why they were not friends anymore. When M.L.

responded that she did not want to be friends anymore, J.O.

“slapped [her] on [her] boob” with “the back of his hand.”

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¶5 After class ended, a teacher noticed that M.L. and J.O. were

“running around their lockers” and “chasing each other.” The

teacher testified that J.O. and M.L. were both laughing at first

during the encounter, but then M.L. began to look “visibly upset.”

The teacher testified that M.L. yelled at J.O. to stop and leave her

alone. After J.O. left, the teacher went over to M.L. and M.L. told

her that J.O. had “touched her sexually” and said “sexual things.”

M.L. did not explain further — either then or at trial — what “sexual

things” J.O. said. The teacher reported the incident to the

principal.

¶6 Three days later, during a forensic interview, M.L. said that

when she and J.O. were at the lockers, J.O. started to “move his

hands” all over her body. She said that J.O. then touched her

genitals with his “butt or something,” which felt “weird and

disturbing.” J.O. touched her genitals with his hand, his “front

private” touched her butt, and “his butt touched [her] butt” as he

was “spinning around her.”

¶7 M.L. said that J.O. never touched her under her clothes. At

one point during the encounter, M.L. told J.O. to stop and go away.

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J.O. then went to his locker, grabbed his things, and left for the

day.

¶8 M.L. testified at trial that J.O. did not say anything to her

when he was trying to touch her by her locker.

¶9 At the close of trial, the court entered its findings:

[J.O.] is charged with unlawful sexual contact.
The elements of that include that he
unlawfully and knowingly subjected [M.L.] to
sexual contact, that he knew the victim did not
consent. And the Court will note that the
definition of sexual contact is contact, among
other things, for the purpose of sexual
gratification.

....

The Court finds that clearly there was contact,
that it was unlawfully and knowingly done. . . .
It was clear [M.L.] did not consent.

. . . And the Court finds that it was for the
purpose of sexual gratification. The Court
notes the touching was not pulling her hair,
touching her head, twisting an arm. It was
contact in sexual parts of [M.L.]’s body. Her
breast, her genital area, and her butt.

So the Court finds that the People have proven
all the elements of [unlawful sexual contact]
beyond a reasonable doubt.

¶ 10 The court adjudicated J.O. delinquent and sentenced him to

one year of probation.

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II. Sufficiency of Evidence

¶ 11 J.O. argues that the evidence presented at trial was

insufficient to prove beyond a reasonable doubt that he acted with

the statutorily required sexual purpose. We agree.

A. Standard of Review

¶ 12 The prosecution must prove every element of a charged crime

beyond a reasonable doubt. People v. Snyder, 874 P.2d 1076, 1080

(Colo. 1994). “We review the record de novo to determine whether

the evidence presented was sufficient in both quantity and quality

to sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,

¶ 63; see also People in Interest of J.R., 216 P.3d 1220, 1221 (Colo.

App. 2009) (“When reviewing the sufficiency of the evidence

supporting an adjudication of juvenile delinquency, the standards

are the same as those used in a criminal case.”). We must

determine whether the evidence, viewed in the light most favorable

to the prosecution, was both substantial and sufficient to support

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the conclusion by a reasonable mind that the defendant was guilty

beyond a reasonable doubt. People v. Griego, 2018 CO 5, ¶ 24.1

¶ 13 We review questions of statutory interpretation de novo.

People v. Diaz, 2015 CO 28, ¶ 9. Our primary task is to ascertain

and give effect to the intent of the General Assembly. People v.

Lovato, 2014 COA 113, ¶ 21. We look first to the language of the

statute itself, giving the words their commonly accepted meaning

and avoiding a strained or forced interpretation. Id.

B. Unlawful Sexual Contact

¶ 14 Section 18-3-404(1)(a), C.R.S. 2021, provides that “[a]ny actor

who knowingly subjects a victim to any sexual contact commits

unlawful sexual contact if . . . [t]he actor knows that the victim does

not consent.” As relevant here, 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.” § 18-3-

1 The People contend that J.O. did not preserve this issue, but a
defendant need not raise a sufficiency of the evidence claim at trial
to preserve the issue for appellate review. McCoy v. People, 2019
CO 44, ¶ 26.

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401(4)(a), C.R.S. 2021. “Intimate parts” include genitalia, buttocks,

and breasts. § 18-3-401(2).

¶ 15 On appeal, J.O. does not contend that the evidence was

insufficient to establish that he knowingly touched M.L.’s clothing

covering her intimate parts or that such contact was without M.L.’s

consent. Instead, J.O. contends that the evidence was insufficient

to establish that he acted for the purposes of sexual gratification or

sexual abuse.

C. Sexual Gratification

1. Sexual Purpose May Not Be Inferred Solely from the Act

¶ 16 When the juvenile court found that J.O. engaged in sexual

contact for the purpose of sexual gratification, it explained that the

“touching was not pulling her hair, touching her head, twisting an

arm. It was contact in sexual parts of [M.L.]’s body.”

¶ 17 The juvenile’s intent — whether he acted “for the purposes of

sexual arousal, gratification, or abuse” — is a separate element

from whether he touched the clothing covering the victim’s intimate

parts. § 18-3-401(4)(a); Page v. People, 2017 CO 88, ¶¶ 18-19

(identifying the elements of unlawful sexual contact as “knowingly

touching the victim’s intimate parts with sexual purpose and

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knowing that the victim does not consent” and explaining that “[t]he

unlawful sexual contact statute expressly requires that the

defendant act with a sexual purpose”). Had the legislature intended

the mere act of touching an intimate part without consent to

constitute unlawful sexual contact, it would not have included the

words “if that sexual contact is for the purposes of sexual arousal,

gratification, or abuse” in the statutory definition of the offense.

See § 18-3-401(4)(a); People v. J.J.H., 17 P.3d 159, 162 (Colo. 2001)

(“Courts should not presume that the legislature used language

‘idly and with no intent that meaning should be given to its

language.’”) (citation omitted); cf. A.B. v. Juv. Officer, 447 S.W.3d

799, 806 (Mo. Ct. App. 2014) (interpreting a similarly worded

statute and reasoning that, had the legislature “considered the

mens rea to automatically accompany the act, it would not have

specifically identified them as two separate elements in its definition

of ‘sexual contact’”).

¶ 18 To the extent the court viewed the fact that J.O. touched the

“sexual parts of [M.L.]’s body” — standing alone — as sufficient to

establish that J.O. acted with the requisite purpose, it misapplied

the law by conflating two elements. The statutorily required intent

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cannot be inferred solely from the act of touching. See A.B., 447

S.W.3d at 806 (“We are also not persuaded that intent can be

inferred from the act alone.”); In re T.S., 515 S.E.2d 230, 233 (N.C.

Ct. App. 1999) (“[T]he element ‘for the purpose of arousing or

gratifying sexual desire’ may not be inferred solely from the act

itself . . . .”).

¶ 19 On review of a challenge to the sufficiency of the evidence,

however, we are not bound by what the juvenile court articulated as

the basis for its finding; rather, we must consider all the evidence to

determine whether any rational trier of fact might accept it as

sufficient to support a finding of guilt beyond a reasonable doubt.

See People in Interest of J.G., 97 P.3d 300, 302-03 (Colo. App. 2004)

(finding evidence sufficient to support adjudication despite juvenile

court’s contrary finding on review of the magistrate’s judgment).

2. Circumstantial Evidence Required to Infer Intent in Juveniles

¶ 20 In this case, there is no direct evidence of J.O.’s intent, such

as an admission by J.O. that he touched M.L. for his or her sexual

gratification. But a defendant’s intent can, and often must, be

proved by circumstantial evidence. People v. Taylor, 655 P.2d 382,

384 (Colo. 1982) (“[W]e have repeatedly recognized that direct proof

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of the defendant’s state of mind is rarely available and,

consequently, resort must necessarily be had to circumstantial

evidence on this element.”); People v. Hines, 2021 COA 45, ¶ 37 (“A

jury may properly infer intent from the defendant’s conduct and the

circumstances of the offense.”). And whether a defendant acted

with the requisite mental state to sustain a conviction for unlawful

sexual contact can be inferred from the nature of and the

circumstances surrounding the sexual touching. See People v.

West, 724 P.2d 623, 624, 631 (Colo. 1986) (concluding that the

evidence was sufficient to sustain a finding of sexual contact where

witnesses testified they twice saw the middle-aged defendant, while

swimming and playing in a pool with a ten-year-old boy he met that

day, deliberately place one hand on the boy’s buttocks and another

over the boy’s genital area, each time for about five seconds, if not

“for a considerably longer period of time”); People v. McCoy, 2015

COA 76M, ¶ 47 (concluding that where adult defendant, who

claimed to be a physician, lured two victims to his home by telling

them he worked in television, questioned them about their sexual

histories and sexual fantasies, and physically examined them —

including touching their genitals — the jury could reasonably

9
conclude that he examined the victims for the purpose of sexual

gratification), aff’d on other grounds, 2019 CO 44.

¶ 21 J.O. does not argue that intent cannot be inferred from the

circumstantial evidence surrounding the contact. Nor does he

argue that the standard for evidentiary sufficiency is age dependent.

Instead, he argues that courts cannot assume, when one child

touches another child’s intimate parts, that the child’s intentions

are the same as would be evidenced by similar acts engaged in by

an adult. In other words, he argues that “it is not justified to

impute the same intent into a child’s action that one could

reasonably impute into the actions of an adult.” In re M.H., 2019 IL

App (3d) 180625, ¶ 16, 127 N.E.3d 1146, 1150 (citation omitted).

¶ 22 We are not aware of, and the parties have not cited, any

Colorado precedent articulating what type or quantity of

circumstantial evidence might be sufficient to prove beyond a

reasonable doubt that a juvenile acted for the purpose of sexual

gratification. But several other states have addressed the issue.

¶ 23 We find M.H. most persuasive. In that case, the juvenile was

eleven at the time of the incident. Id. at ¶ 1, 127 N.E.3d at 1147.

At trial, the prosecution presented evidence that the juvenile told

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the victim, who was eight, that he was “curious about seeing a girl

naked.” Id. at ¶ 9, 127 N.E.3d at 1149. The victim testified that

she and the juvenile went to her mother’s bedroom and took off

their pants. Id. The juvenile “touched his penis to [the victim’s]

vaginal area from behind” and told the victim that “this is

something everybody does, people feel good about this.” Id. at ¶¶ 9-

10, 127 N.E.3d at 1149.

¶ 24 The appellate court acknowledged that the State could prove

the juvenile acted for the purpose of sexual gratification or arousal

by circumstantial evidence and identified the kinds of evidence that

might suffice. Id. at ¶ 17, 127 N.E.3d at 1150.

Circumstantial evidence of sexual gratification
may include the removal of clothing, heavy
breathing, placing the victim’s hand on the
accused’s genitals, an erection, or other
observable signs of arousal. Sexually explicit
comments by the accused may also support a
finding that the accused acted for purposes of
sexual gratification or arousal.

Id. (citation omitted).

¶ 25 The court in M.H. instructed that the trier of fact must

consider all the evidence, including the juvenile’s age and level of

maturity, before deciding whether intent can be inferred under the

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circumstances. Id. at ¶ 18, 127 N.E.3d at 1150. And it explained

that

[t]he closer the accused is to the age of
majority, the more plausible it is for the court
to infer that the accused acted for the purpose
of sexual gratification and arousal. Sexual
conduct by 11 to 13 year olds “is more apt to
be innocent than similar conduct by older
minors.”

Id. (citing and quoting In re Donald R., 796 N.E.2d 670, 678 (Ill.

App. Ct. 2003) (Holdridge, J., specially concurring)).

¶ 26 Given M.H.’s age — eleven at the time of the incident — the

court held that “the trier of fact could not infer that M.H. acted for

the purpose of sexual gratification or arousal when he touched his

penis to [the victim’s] vagina.” Id. at ¶ 19, 127 N.E.3d at 1150. The

only evidence the State presented to establish that M.H. had acted

with the requisite purpose was the act itself and M.H.’s statements

to the victim. Id. at ¶ 20, 127 N.E.3d at 1150-51. Rather than

demonstrating that M.H. acted for the purpose of sexual

gratification or arousal, the evidence “show[ed] M.H.’s immaturity

and his complete lack of understanding of sex.” Id. at ¶ 20, 127

N.E.3d at 1151. In the absence of any other evidence of the type

articulated, the court concluded that the State failed to present

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sufficient evidence that M.H. acted for the purpose of sexual

gratification or arousal and reversed M.H.’s conviction. Id. at ¶ 21,

127 N.E.3d at 1151.

¶ 27 Courts in other jurisdictions have concluded that evidence was

insufficient to establish that a juvenile acted with a sexual purpose

for reasons similar to those articulated in M.H. See, e.g., In re

S.A.A., 795 S.E.2d 602, 605-06 (N.C. Ct. App. 2016) (reasoning

that, for juveniles, sexual purpose “does not exist without some

evidence of the child’s maturity, intent, experience, or other factor

indicating his purpose in acting,” and finding that the evidence was

insufficient to establish that the thirteen-year-old juvenile acted for

“the purpose of arousing or gratifying sexual desire” when he wiped

green liquid from a Halloween costume on the shoulders and

breasts of two eleven-year-old girls (quoting In re K.C., 742 S.E.2d

239, 242-43 (N.C. Ct. App. 2013))); In re Kyle O., 703 N.W.2d 909,

915 (Neb. Ct. App. 2005) (collecting cases from other jurisdictions

“refus[ing] to automatically make the same inference of sexual

gratification where the actor was a child rather than an adult,” and

finding that the evidence was insufficient to establish that the

twelve-year-old juvenile acted for the purpose of sexual gratification

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or arousal when he pulled down the pants of a five-year-old child,

grabbed the child’s penis, and remarked to other children about the

small size of the penis); In re A.J.H., 568 N.E.2d 964, 968 (Ill. App.

Ct. 1991) (holding that “it is not justified to impute the same intent

into a child’s action that one could reasonably impute into the

actions of an adult,” and finding that the evidence was insufficient

to establish that a thirteen-year-old girl intended to sexually “gratify

or arouse” when she put her hand on the penis of a five-year-old

boy she was babysitting and told the boy not to tell anyone); cf. In re

Donald R., 796 N.E.2d at 676 (concluding that a reasonable fact

finder could infer that a sixteen-year-old boy acted for the purpose

of sexual gratification or arousal when he exposed his penis to a

six-year-old girl and had her touch his penis, based in part on the

fact that he was significantly closer to adulthood). We find these

out-of-state authorities persuasive.

¶ 28 Whether a juvenile acted for the purpose of sexual gratification

must be determined on a case-by-case basis. The trier of fact must

consider all the relevant circumstances, including the juvenile’s age

and maturity, before it can infer the requisite intent. It may not —

and often will not — be appropriate for a fact finder to ascribe the

14
same intent to a juvenile’s act that one could reasonably ascribe to

the same act if performed by an adult.

¶ 29 We have not been asked to and do not hold that a juvenile is

not capable of acting for the purpose of sexual gratification. But

there must be other evidence of the juvenile’s sexual purpose

beyond the sexual contact itself — for example, removing clothing,

heavy breathing, placing the victim’s hand on the accused’s

genitals, an erection, other observable signs of arousal, the

relationship of the parties, sexually explicit comments, coercing or

deceiving the victim to obtain cooperation, attempting to avoid

detection, or instructing the victim not to disclose the occurrence.

See M.H., ¶ 17, 127 N.E.3d at 1150; see also Kyle O., 703 N.W.2d at

917 (collecting cases that identify the types of circumstantial

evidence required to establish that a juvenile acted with a sexual

purpose); In re Jerry M., 69 Cal. Rptr. 2d 148, 153-54 (Ct. App.

1997) (listing circumstances relevant to proving intent to satisfy

sexual desires, including the age and sexual maturity of the

accused minor and whether the minor has reached puberty). These

examples are not exhaustive. And the presence of one or a

combination of these facts may or may not be sufficient, when

15
considered with the totality of the evidence, to establish that a

juvenile acted for the purpose of sexual gratification in a given case.

3. The Evidence Was Insufficient to Establish that J.O. Acted for
the Purpose of Sexual Gratification

¶ 30 The People contend that the following evidence, when viewed

as a whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

mind that J.O. acted for the purpose of sexual gratification:

• at eleven years old, J.O. was “not a young child”;

• J.O. touched the clothing over three of M.L.’s intimate

parts;

• M.L. told the teacher that J.O. had said “sexual things” to

her in the hallway; and

• J.O. touched M.L. after he “indicated a desire for a

relationship” and “was rebuffed.”

¶ 31 We reject the People’s characterization of the “relationship”

evidence. The only evidence presented at trial was that J.O. asked

M.L. why she did not want to be friends anymore. There was no

evidence that J.O. desired a sexual or romantic relationship with

M.L. or that the two had ever had that type of relationship. The

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“relationship” evidence in no way demonstrates that J.O.’s conduct

toward M.L. was for the purpose of sexual gratification. We note

that the juvenile court did not mention the nature of the

relationship between J.O. and M.L. when finding that J.O. acted for

the purpose of sexual gratification.

¶ 32 Even viewed in the light most favorable to the prosecution, the

remaining evidence is not substantial and sufficient to support a

conclusion by a reasonable fact finder that J.O. acted for the

purpose of sexual gratification.

¶ 33 An eleven-year-old boy touched the clothing covering the

intimate parts of an eleven-year-old girl in a classroom and in a

crowded school hallway in front of classmates and at least one

teacher. As noted, J.O.’s intent cannot be inferred from the act of

touching alone. And the prosecution did not present other evidence

from which the court could infer that J.O. acted for the purpose of

sexual gratification — for example, that J.O. admitted he touched

M.L. for his or her sexual gratification, removed any clothing (his or

M.L.’s), placed M.L.’s hands on his intimate parts, touched M.L. in a

way that mimicked sexual acts, breathed heavily, had an erection or

any other observable signs of arousal, or told M.L. not to tell anyone

17
what he had done. See M.H., ¶ 17, 127 N.E.3d at 1150; A.J.H., 568

N.E.2d at 968.

¶ 34 True, M.L. told a teacher that J.O. had said “sexual things” to

her, but M.L. never elaborated on what “sexual things” meant.

Without more detail, it is speculative to conclude that the

unspecified “sexual things” J.O. said revealed the requisite intent.

See People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999) (“[V]erdicts in

criminal cases may not be based on guessing, speculation, or

conjecture.”). Although the prosecution is entitled to the benefit of

every reasonable inference that may fairly be drawn from the

evidence, “there must be a logical and convincing connection

between the facts established and the conclusion inferred.” Clark v.

People, 232 P.3d 1287, 1292 (Colo. 2010); see also People v. Dash,

104 P.3d 286, 289 (Colo. App. 2004) (“More than a modicum of

evidence is necessary to support a conviction beyond a reasonable

doubt.”).

¶ 35 There was also 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 the conduct of an adult. (In fairness to the juvenile

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court, no published Colorado appellate decision previously

instructed it to do so.)

¶ 36 We do not condone J.O.’s behavior or seek to minimize its

impact on M.L. On this record, however, we conclude that the

evidence presented at trial was insufficient for a reasonable fact

finder to find beyond a reasonable doubt that J.O. acted for the

purpose of sexual gratification. Consequently, we vacate J.O.’s

adjudication of juvenile delinquency.

D. Sexual Abuse

¶ 37 Even if the evidence was insufficient for the juvenile court to

have found that J.O. acted for the purpose of sexual gratification,

the prosecution argues that we may affirm the juvenile court’s

judgment on alternative grounds — namely, that the evidence

presented was sufficient for the court to have found that J.O. acted

for the purpose of sexual abuse. See People v. Cousins, 181 P.3d

365, 370 (Colo. App. 2007) (holding that a trial court’s decision may

be upheld on any ground supported by the record).

¶ 38 To subject a victim to sexual contact for the purpose of sexual

abuse, the actor must act for the “purpose of causing sexual

humiliation, sexual degradation, or other physical or emotional

19
discomfort of a sexual nature.” People v. Espinosa, 2020 COA 63,

¶ 21. The prosecution can prove that the sexual contact was for the

purpose of “abuse” — meaning “pain, injury, or discomfort” — by

showing that the defendant specifically targeted the victim’s

intimate parts for that purpose. Lovato, ¶¶ 32-33.

¶ 39 The prosecution’s theory of the case was that J.O. acted for

the purpose of sexual gratification, not for the purpose of sexual

abuse. Consequently, neither party presented evidence or

argument specifically relating to sexual abuse. Still, the

prosecution argues that, because the unwelcome touching occurred

in a public forum — a school classroom and hallway — and caused

M.L. discomfort, J.O. “sought to cause [M.L.] emotional discomfort

of a sexual nature” and thus acted for the purpose of sexual abuse.

¶ 40 In support of its argument, the prosecution cites In re Mark R.,

757 A.2d 636, 638-39 (Conn. App. Ct. 2000), in which the court

found sufficient evidence that a juvenile acted for the purpose of

sexual abuse when he grabbed the victim’s hands in a school

hallway, pushed her against the wall, attempted to pull down her

pants, smacked “the victim’s buttocks more than once,” and

20
“touched the victim’s breasts inside her shirt” in front of several

people. Id.

¶ 41 The People also cite Kyle O., 703 N.W.2d at 917, where the

juvenile pulled down another boy’s pants, grabbed the boy’s penis,

and commented to other children about the small size of the boy’s

penis. The court in Kyle O. opined that it “would be very easy to

construe Kyle’s conduct as being for the purpose of humiliating,

bullying, or annoying” the boy, but it explained that, “[a]lthough

some jurisdictions criminalize sexual contact for the purpose of

humiliating or degrading a person, Nebraska does not.” Id. at 918.

¶ 42 Like the juveniles in Mark R. and Kyle O., J.O. touched M.L. in

a public setting in front of peers. But the conduct in those cases —

disrobing or attempting to disrobe the victims and grabbing the

victims’ intimate parts unclothed or inside clothing — was more

egregious. And, at least in the case of Kyle O., the juvenile’s

comments were evidence of an intent to humiliate the victim. Id. at

917. As a result, we do not find these cases persuasive.

¶ 43 The prosecution presented no evidence that M.L. suffered any

pain or injury from J.O.’s contact and no evidence that the

emotional discomfort M.L. felt when J.O. touched her was sexual in

21
nature. On this record, we conclude that the evidence was

insufficient for a reasonable fact finder to have found beyond a

reasonable doubt that J.O. acted for the purpose of sexual abuse.

III. Disposition

¶ 44 We vacate the delinquency adjudication.

JUDGE RICHMAN and JUDGE PAWAR concur.

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