C.A.R.A. v. Jackson Cnty. Juvenile Office (In re Interest of C.A.R.A.)

• Decision Date: 06 July 2021
• Docket Number: WD83967
• Parties: IN THE INTEREST OF: C.A.R.A., Appellant, v. JACKSON COUNTY JUVENILE OFFICE, Respondent.
• Court: Court of Appeal of Missouri (US)

IN THE INTEREST OF: C.A.R.A., Appellant, v. JACKSON COUNTY JUVENILE OFFICE, Respondent.

WD83967

MISSOURI COURT OF APPEALS WESTERN DISTRICT

July 6, 2021

Appeal from the Circuit Court of Jackson County

The Honorable Jalilah Otto, Judge

Before Division Two: Mark D. Pfeiffer, P.J., and Alok Ahuja and Karen King Mitchell, JJ.

The Circuit Court of Jackson County entered a judgment finding that C.A.R.A., a juvenile, committed acts which would constitute first-degree statutory sodomy if committed by an adult. The court ordered C.A.R.A. to be committed to the custody of the Director of Family Court Services for residential placement. C.A.R.A. appeals. He argues that the evidence was insufficient to prove that he committed acts constituting first-degree statutory sodomy. C.A.R.A. also argues that the circuit court violated his right to confront adverse witnesses when it permitted the Juvenile Officer's witnesses to testify by two-way videoconferencing technology, due to the risks posed by the ongoing COVID-19 pandemic.

We conclude that C.A.R.A.'s sufficiency-of-the-evidence argument lacks merit. We also conclude, however, that the circuit court violated C.A.R.A.'s right to confrontation under the United States and Missouri Constitutions when it allowed the Juvenile Officer's witnesses to testify remotely, without making a finding that this was necessary or justified by exceptional circumstances. Given that conclusion, we would normally reverse the circuit court's judgment, and remand for further proceedings. Because of the general interest and importance of the Confrontation Clause issue, however, we do not finally decide C.A.R.A.'s appeal, but instead order that this appeal be transferred to the Missouri Supreme Court for final disposition.

Factual Background

On November 1, 2019, the Jackson County Juvenile Officer filed a first amended petition in the circuit court, alleging that C.A.R.A. committed acts which would constitute first-degree statutory sodomy under § 566.062¹ if committed by an adult. The Juvenile Officer alleged that, on April 30, 2019, C.A.R.A. had deviate sexual intercourse with the Victim by inserting his finger into Victim's vagina. At the time of the alleged offense, C.A.R.A. was one month short of his thirteenth birthday; the Victim was five years old. The offense allegedly occurred while Victim was at the home of a babysitter. (The first amended petition also alleged additional offenses which are not at issue in this appeal.)

On June 1, 2020, prior to the adjudication hearing, C.A.R.A. filed an "Objection to Virtual Adjudication, and Request to Appear in Person." C.A.R.A. objected to an adjudication by videoconference technology and argued that he had constitutional and statutory rights to physically confront adverse witnesses. The Juvenile Officer filed a response, arguing that in light of the on-going COVID-19 pandemic, and consistent with orders issued by the Missouri Supreme Court² and the Presiding Judge of the Sixteenth Judicial Circuit,³ the court should hold C.A.R.A.'s adjudication hearing using videoconferencing technology.

On June 19, 2020, the circuit court held C.A.R.A.'s adjudication hearing using a "hybrid" format. The judge, the judge's staff, C.A.R.A., and C.A.R.A.'s attorney were all present in the courtroom in person. The Victim, Victim's mother, and a third-party witness for the Juvenile Officer provided testimony remotely by means of the Cisco Webex videoconferencing software. The attorneys for the Juvenile Officer, a Deputy Juvenile Officer, C.A.R.A.'s mother and grandparents (and their attorneys), a representative of Victim Services, and Victim's father all attended the adjudication hearing remotely using the videoconferencing software.

At the start of the adjudication hearing, C.A.R.A. repeated his objection to the Juvenile Officer's witnesses testifying remotely, and argued that such remote testimony violated his rights to due process, to equal protection, and to confront the witnesses against him. The family court overruled C.A.R.A.'s objection:

[I]n reviewing the Supreme Court order and [the Presiding Judge's] order that were put in place in response to the COVID-19 pandemic that has affected the entire world, the Supreme Court has permitted the use of Webex in all types of hearings at this time in the State of Missouri.

So we have a hybrid here. Just for the record, the setup is such that I am in the courtroom with my staff. Mr. Stokely [(C.A.R.A.'s counsel)] is here. [C.A.R.A.] is here. The placement providers [C.A.R.A.'s grandparents] are here in the courtroom on Webex camera. The juvenile officer, as well as the witnesses that are going to be called today, are also on the Webex. Counsel for the placement providers are on the Webex. As well as [C.A.R.A.'s] mother is on the Webex and counsel for mother is also on the Webex.

. . . There also is a camera pointed to the gallery or the well of the courtroom so everyone on the Webex can not only see me, but they can also see the courtroom, including [C.A.R.A.] and Mr. Stokely.

And there's a large . . . chalkboard-sized projection on the wall of what's going on with the Webex. So Mr. Stokely and [C.A.R.A.] can see who is on the Webex call and who is talking at any given time. So everyone can see everyone basically in realtime.

. . . And with that being said . . . I will order that we are going forward at this time in this manner.

In addition to testimony from Victim, Victim's mother, and Victim's babysitter, the court admitted into evidence, over C.A.R.A.'s objection, a video recording of Victim's forensic interview, a summary of that interview, and a marked-up anatomical drawing used during the interview. C.A.R.A. did not put on any evidence.

The circuit court sustained the allegation of first-degree statutory sodomy beyond a reasonable doubt. The court also sustained the remaining allegations in the first amended petition, which C.A.R.A. had admitted. Following a dispositional hearing, the court ordered that C.A.R.A. be committed to the custody of the Director of Family Court Services for residential placement.

C.A.R.A appeals.

Discussion

C.A.R.A. raises three Points on appeal. In his first Point, C.A.R.A. challenges the sufficiency of the evidence to support a finding that he committed acts which would constitute first-degree statutory sodomy, because the evidence fails to support a finding that his conduct constituted "deviate sexual intercourse" as defined by statute. In Point II, C.A.R.A. argues that allowing remote testimony by the Juvenile Officer's witnesses violated his right to confront the witnesses against him. In Point III, C.A.R.A. argues that, if the Victim's testimony by videoconference violated his right to confrontation, then the circuit court also erred in admitting the recording of the Victim's forensic interview under § 491.075, because the Victim did not "appear at trial," and there was no showing that she was unavailable.

We conclude that C.A.R.A.'s second and third Points have merit, and that he is entitled to a new adjudicatory hearing because the circuit court violated his right to confront the adverse witnesses. We separately address C.A.R.A.'s first Point, however, which makes a sufficiency-of-the-evidence argument. "The[ ] same double jeopardy principles [applicable to criminal prosecutions] have been applied tojuvenile delinquency proceedings." In re R.B., 186 S.W.3d 255, 257 (Mo. 2006) (citing Breed v. Jones, 421 U.S. 519 (1975)). And in criminal cases, "[t]he double jeopardy clause of the United States constitution precludes a second trial after a reversal based solely on the insufficiency of evidence." State v. Barber, 635 S.W.2d 342, 345 (Mo. 1982); accord State v. Lehman, 617 S.W.3d 843, 844 n.2 (Mo. 2021) ("'[I]f a conviction is reversed solely due to evidentiary insufficiency the double jeopardy clause requires judgment of acquittal.'" (quoting State v. Liberty, 370 S.W.3d 537, 553 (Mo. 2012)). Therefore, because C.A.R.A.'s sufficiency-of-the-evidence claim would entitle him to dismissal of the first-degree statutory sodomy allegation, not merely a new trial, we consider Point I despite our disposition of Points II and III. See, e.g., State v. Matthews, 552 S.W.3d 674, 681 n.6 (Mo. App. W.D. 2018) (despite reversal for new trial based on erroneous admission of evidence, separately considering a criminal defendant's sufficiency-of-the-evidence arguments); State v. Feldt, 512 S.W.3d 135, 154-55 (Mo. App. E.D. 2017) (same).

"Review of juvenile proceedings is analogous to other court-tried cases. The judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." J.N.C.B. v. Juv. Officer, 403 S.W.3d 120, 124 (Mo. App. W.D. 2013) (citations omitted).

I.

In his first Point, C.A.R.A. argues that the evidence was insufficient to establish that he committed acts which would constitute first-degree statutory sodomy if committed by an adult.

Under § 566.062.1, "[a] person commits the offense of statutory sodomy in the first degree if he or she has deviate sexual intercourse with another person who is less than fourteen years of age." Section 566.010(3) defines "deviate sexual intercourse" as

any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the penis, female genitalia, or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim.

C.A.R.A. argues that the evidence was insufficient to establish that his act of inserting his finger into the Victim's vagina was "done for the purpose of arousing or gratifying the sexual desire of any person or for the purpose of terrorizing the victim." We disagree.

We apply the same standards to C.A.R.A.'s sufficiency-of-the-evidence argument as are applied...