In re S.A.A., ___ N.C. App. ___, 795 S.E.2d 602 (Dec. 20, 2016)

The State failed to introduce sufficient evidence of sexual battery. The 13-year-old juvenile was adjudicated delinquent in part based on two counts of sexual battery against two 11-year-old female schoolmates. It was alleged that he draped his arms around the girls’ shoulders in order to smear a glowing liquid on them during an evening of Halloween trick-or-treating. The State failed to introduce sufficient evidence that the juvenile touch the tops of the girls’ breasts for a sexual purpose. One girl testified that the juvenile rubbed “this green glow stick stuff” on her leaving glowing liquid on her shirt above her collarbone. The other girl testified that the juvenile reached his arm around her shoulder and “put this weird green glowing stuff” on her arm and back, also touching her “boobs” over her sweatshirt. In criminal cases involving adult defendants the element of acting for the purpose of sexual arousal, sexual gratification, or sexual abuse may be inferred from the very act itself. However, an intent to arouse or gratify sexual desires may not be inferred in children under the same standard. Rather, a sexual purpose does not exist without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting. Here, the juvenile denied touching either girl’s breasts, saying that he only put his hand around their shoulders; this account was supported by witnesses. Neither the location nor the alleged manner of the touching was secretive in nature; rather, the incident occurred on a busy public street on Halloween. The evidence was undisputed that the juvenile have been wiping green glowing liquid on trees, signs, and other young people during the evening. Nothing about his attitude suggested a sexual motivation; neither girl said that he made any sexual remarks. And when the girls ran away, he did not try to pursue them.