D.G.E. v. Juvenile Officer, WD 82856

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Lisa White Hardwick, judge
• Citation: 599 S.W.3d 503
• Parties: In the Interest of: D.G.E., Appellant, v. JUVENILE OFFICER, Respondent.
• Docket Number: C/w WD 82857,WD 82856
• Decision Date: 21 April 2020

599 S.W.3d 503

In the Interest of: D.G.E., Appellant,
v.
JUVENILE OFFICER, Respondent.

WD 82856
C/w WD 82857

Missouri Court of Appeals, Western District.

Filed: April 21, 2020

Craig A. Johnston, Columbia for appellant.

Robert J. Seek, Eldon for respondent.

Before Division Three: Lisa White Hardwick, Presiding Judge, Alok Ahuja and Cynthia L. Martin, Judges

Lisa White Hardwick, judge

D.G.E. appeals the juvenile court’s judgment finding him delinquent. He contends the court erred in finding that he committed an act that, if committed by an adult, would have constituted first-degree sexual misconduct in violation of Section 566.093.1(1), RSMo 2016.¹ D.G.E further argues that the court erred in determining that he had violated his probation by exposing his genitals under circumstances in which he knew such conduct was likely to cause affront or alarm. Lastly, he asserts that he was denied a fundamentally fair hearing and effective assistance of counsel in that his counsel failed to object to several hearsay statements and improper opinion testimony from a lay witness. For reasons explained herein, the judgment of the juvenile court is reversed and D.G.E. is ordered discharged from the effects of each disposition.

FACTUAL AND PROCEDURAL HISTORY

In March 2019, K.C. received Snapchat messages to her phone from an individual named "NGL." After receiving the initial messages, K.C. asked NGL to identify himself. NGL identified himself as D.G.E., and K.C. told him her name. During the course of this conversation, D.G.E. asked K.C. if she would "send nudes." K.C. told D.G.E. no, and he then asked if it was "okay if he sends [her] some." K.C. again told him no. The conversation ended, but the two resumed speaking the following weekend.

During that second conversation, K.C. sent a photo of her face to D.G.E. and asked him to send her a picture of his face. D.G.E. initially refused, stating "oh, I'm ugly." K.C. indicated, however, that D.G.E. did eventually send a picture of his face "[n]ot like on Snap[chat], but, like from imaging and stuff." K.C. said that she could not see what D.G.E. looked like from the photo because the image was too dark and only showed a portion of his face. D.G.E. then sent another photo that K.C. labeled as a "dick pic," which she later clarified meant a picture of a penis. K.C. stated that, although D.G.E. made no explicit representation of ownership, she believed the photo to be a depiction of D.G.E.’s penis. K.C. asserted that the picture offended her and that she "felt gross" after receiving it.

599 S.W.3d 506

K.C. told her brother about the photo, and he informed K.C.’s parents. Subsequently, A.B., K.C.’s stepsister, contacted D.G.E. through the Facebook Messenger application. A.B. stated that she contacted him to "figure out who he was and why – and what he did wrong because it was kind of upsetting." A.B. told D.G.E. "that child pornography was illegal and that he probably should not be doing that, especially to someone younger than him." D.G.E. acknowledged "that he did send [a picture of a penis] but it was not his and that it was something that he got online." A.B. stated that she still believed that the penis contained in the photo was D.G.E.’s, however, because "the deal with Snapchat is he sent a live picture, meaning it had to be his and it could not be from his gallery. So that's — that's why I texted him." A.B. conceded that she never saw any of the messages that D.G.E. sent to K.C.

D.G.E. told A.B. that he had apologized to K.C. and "that it was not a big deal." A.B. informed D.G.E. that she "believed otherwise and ... that my parents were very, very upset and that they were going to press charges against him." D.G.E. then separately contacted both A.B. and K.C.’s stepmother to apologize multiple times "for his actions." During trial, Juvenile Officer Jason Moore read into the record, without objection, a portion of a written statement from A.B. in which she stated, "The next day at school many people told me [D.G.E.] was bragging about sending nudes to my sister, [K.C.]."

After D.G.E. was taken into custody, C.E., D.G.E.’s mother, provided D.G.E.’s phone to Kyle Towles from the Morgan County Sheriff’s Office. Towles used the data extraction program Cellebrite to examine the contents of K.C.’s and D.G.E.’s phones. He stated that he was unable to find any evidence of a Snapchat discussion on either phone. Towles indicated that due to the nature of Snapchat and the age of the phones, he was not surprised that he did not find any evidence of the conversation on K.C.’s phone and was only a "little more surpris[ed]" not to find evidence of the conversation on D.G.E.’s phone.

During the examination of D.G.E.’s phone, however, Towles discovered 18,000 images located in the phone’s cache image drive.² Towles examined every photo contained within the phone and discovered what he described as "a large quantity of both adult and child pornography." Towles stated that the pornographic images contained "multiple pictures of penises" and that the images he was able to identify as child pornography were saved and entered into evidence as Juvenile Officer’s Exhibits 1 through 39.³ C.E. stated that, at the time of offense, D.G.E. resided in her home along with D.G.E.’s father and her two daughters. C.E. asserted that her older

599 S.W.3d 507

daughter had autism and that she had no reason to believe either daughter was responsible for the pornographic images found on the phone.

At the time of the offense, D.G.E. was serving a probationary term on a previous finding of delinquency, in which the court determined that he had subjected a person to sexual contact without that individual’s consent. Consequently, a motion to modify a previous order of disposition was filed, alleging that D.G.E. had: (1) "expos[ed] his genitals, by sending a digital photo image of his penis via Snap Chat [sic] to K.C., under circumstances in which he knew such conduct was likely to cause affront or alarm; and (2) "knowingly possessed, on his cell phone, multiple sexually explicit images of minor children being subjected to sexual contact with adults."

The Juvenile Officer subsequently filed a separate allegation of delinquency alleging that D.G.E. had committed the offenses of first-degree sexual misconduct and possession of child pornography, mirroring the allegations set forth in the motion to modify. The juvenile court heard both cases on the same day and determined shortly thereafter that the first-degree sexual misconduct claim had been proven beyond a reasonable doubt in both the modification and delinquency proceedings.⁴ The juvenile court committed D.G.E. to the custody of the Division of Youth Services for an indefinite period of time in both cases. D.G.E. appeals.

STANDARD OF REVIEW

"Juvenile proceedings are reviewed as in the same manner as other court-tried cases." D.C.M v. Pemiscot Cty. Juvenile Office , 578 S.W.3d 776, 786 (Mo. banc. 2019) (citation and quotations omitted). We will, therefore, affirm a judgment in a juvenile proceeding "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Ivie v. Smith , 439 S.W.3d 189, 198-99 (Mo. banc 2014). "The credibility of the witnesses and the weight their testimony should be given is a matter to be determined at the hearing by the circuit court, which is free to believe none, part, or all of their testimony." Pemiscot Cty. , 578 S.W.3d at 786 (citation and quotations omitted).

Where, as here, "a juvenile is alleged to have committed an act that would be a criminal offense if committed by an adult, the standard of proof, like that in criminal trials, is beyond a reasonable doubt." Id. Consequently, we must determine "whether there is sufficient evidence from which the fact finder could have found the defendant guilty beyond a reasonable doubt." J.N.C.B. v. Juvenile Officer , 403 S.W.3d 120, 124 (Mo. App. 2013). "In determining the sufficiency of the evidence, we view the evidence and reasonable inferences which may be drawn therefrom in the light most favorable to the verdict and we ignore all evidence and inferences to the contrary." Id. (citation and quotations omitted).

ANALYSIS

In Point I, D.G.E. contends the juvenile court erred in finding that D.G.E. had committed an act that would have been first-degree sexual misconduct if committed by an adult because there was insufficient evidence to prove: (1) that D.G.E. had "exposed" his genitals; and (2) that any genitals depicted in any digital

599 S.W.3d 508

photo exchanged between D.G.E. and K.C were his genitals , as required by Section 566.093. As a determination in favor of D.G.E. on either of his allegations of error would require a ruling in favor of D.G.E.,⁵ we need only address his second allegation.

In its first amended petition, the Juvenile Officer alleged that D.G.E. had committed the offense of first-degree sexual misconduct in violation of Section 566.093.1(1).⁶ That provision provides that an individual commits first-degree sexual misconduct if such individual "[e]xposes his or her genitals under...