In re B.H., 138 A.3d 774

Respondent (age 13 at time of alleged conduct) was adjudicated delinquent in Family Court on two counts of first-degree child molestation and one count of second-degree child molestation arising from a 2011 sleepover with eleven-year-old twins (Kevin and Henry).
The state alleged first-degree molestation based on the twins’ testimony that they put their penises “in” or “inside” the respondent’s “butt,” and alleged a separate touching incident as second-degree molestation.
Trial justice found the twins credible and concluded their testimony proved sexual penetration and that respondent acted for sexual arousal/gratification; respondent was adjudged delinquent on the two first-degree counts.
On appeal respondent argued the evidence was insufficient to prove sexual penetration (an element of first-degree child molestation).
The Supreme Court reviewed whether the twins’ use of the slang term “butt” established intrusion into the anal opening (required for sexual penetration) and whether adjudication should be entered on a lesser-included offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether testimony that the victims’ penises were “in/inside” respondent’s “butt” proved sexual penetration (anal opening) required for first-degree child molestation	The state argued the testimony showed anal intercourse or at least an intrusion into the anal opening sufficient to satisfy the statutory definition of sexual penetration	Respondent argued the word “butt” was ambiguous and the testimony was too imprecise to prove intrusion into the anal opening beyond a reasonable doubt	The Court held the testimony was insufficient to prove intrusion into the anal opening; conviction for first-degree child molestation vacated
Whether the conduct could be treated as second-degree child molestation (lesser-included) despite reversal of the greater charge	The state argued (and the majority concluded) the trial justice’s findings and the record supported entry of judgment on the lesser-included offense because second-degree molestation is necessarily included and intent for sexual arousal was found	Respondent argued remand for entry of a lesser adjudication is unfair because the case was tried only on the greater offense and neither party argued for the lesser at trial or on appeal	The Court remanded for entry of adjudications of delinquency on second-degree child molestation and resentencing; concurrence/dissent argued this is unfair and would dismiss the petition

In re Miguel A., 990 A.2d 1216 (R.I. 2010) (standard for appellate review of sufficiency of evidence in delinquency adjudication)
Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (evidence must be such that any rational trier of fact could find essential elements beyond a reasonable doubt)
State v. McDonald, 602 A.2d 923 (R.I. 1992) (precise and specific testimony required to prove penetration in sexual-assault cases)
State v. Silvia, 798 A.2d 419 (R.I. 2002) (second-degree child molestation is a lesser-included offense of first-degree child molestation)
State v. Eiseman, 461 A.2d 369 (R.I. 1983) (appellate entry of judgment on lesser-included offense where evidence supports it and defendant not prejudiced)
State v. Erminelli, 991 A.2d 1064 (R.I. 2010) (intent to sexually arouse may be inferred where intimate-contact facts support that inference)