In re D.M.
| Decision Date | 03 July 2012 |
| Docket Number | No. ED 97662.,ED 97662. |
| Citation | 370 S.W.3d 917 |
| Parties | In the Interest of D.M. |
| Court | Missouri Court of Appeals |
370 S.W.3d 917
In the Interest of D.M.
No. ED 97662.
Missouri Court of Appeals,
Eastern District,
Division One.
May 29, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied July 3, 2012.
[370 S.W.3d 919]
Sarah Johnson, St. Louis, MO, Marsha L. Levick, Philadelphia, PA, for appellant.
Margaret E. Gangle, St. Louis, MO, for respondent.
CLIFFORD H. AHRENS, Presiding Judge.
Fifteen-year old D.M. appeals the judgment of the family court, juvenile division, of the circuit court finding that she committed the offense of assault while on school property in violation of § 565.075 RSMo. D.M. asserts that the trial court erred by relying on evidence outside the record, specifically hearsay and propensity evidence from her abuse and neglect file, to support its finding that she committed the charged offense. D.M. further asserts that, absent such evidence, the record is insufficient to prove the charge beyond a reasonable doubt. We affirm.
In the fall of 2011, D.M. was a new student in the tenth grade at a charter high school in the City of St. Louis. On the morning of September 15, D.M. had an altercation with a school security officer after she was asked to leave the building due to an outburst stemming from an administrator's demand that she remove a sweater that violated the dress code. The State, through the juvenile officer, filed a delinquency petition charging D.M. with assault while on school property. An adjudication and disposition hearing was held in October during which the following evidence was adduced.1
School Security Officer Roy Robinson was called to the Spanish wing of the school where D.M. was shouting obscenities at two school administrators. Robinson asked D.M. to leave the building through the nearest exit, about 20 feet away, but she refused, so he placed his hands on her shoulders to guide her toward the door. She resisted, and he persevered, pushing her toward the exit. When they arrived at the doorway, she threw up her hands and swung at him. Robinson pushed D.M. through the door and to the ground. He instructed her to turn over from her back to her front. She refused and grabbed, scratched, and kicked at him. He grabbed her by the hair to turn her over. Assistant Principal Steven Ayotte grabbed her legs, and Robinson was able to secure D.M. in handcuffs. They helped her sit upright. She continued to be belligerent and shout profanities. They called the police, and she was transported to juvenile detention. Robinson sustained scratches on his neck and arm in the incident and was treated with a tetanus shot. D.M. testified that she didn't mean to hit or kick Robinson and that he “choked [her] against the wall.”
[370 S.W.3d 920]
After the close of the evidence but prior to its formal adjudication, the court directed the following comments to school officials:
It's a double-edged sword when I know the kids. I know [D.M.], and [her] parents' rights were terminated when she was one year old. [D.M.] is in foster care ... I know that she's on medication. She's bipolar. She has seizures. And the problem with ... all these charter schools, they get these kids in school and they have no idea what they're dealing with. She has a behavioral IEP. The previous school she was in, she had over seventeen behavioral referrals. She had four suspensions. The kid's got some serious, serious problems. And you guys invite these kids into your school, and you don't know anything about them, and then you kick them out of the schools.... She has a behavioral IEP because I ordered it. And if [the school] doesn't have that behavioral IEP then we've got some problems. She had seventeen behavior referrals from the previous school.
[ brief exchange with social worker about D.M.'s current placement ]
Everything they said [D.M.] did, [she] did. There's no question about it. I know she cursed him out; I know she hit him; I know she kicked him. I know all of that stuff, that stuff she did. The problem that we have is that [the school] isn't prepared. And if you're going to invite these kids in there, you've got to be ready to handle them. If you don't know anything about the kids, you need to find out something about these kids, and that's the major problem with these charter schools.
Court: Did you curse that man out?
D.M.: No.
Court: That security guard?
D.M.: Yes. I told him to quit f'n touchin' me. I told him nicely.
Court: Did you push him? Hit him? Did you fight back?
D.M.: No, until he choked me.
Court: I didn't ask you that. Did you fight him back.
D.M.: No ... Yes.
Court: Don't lie to me.
D.M.: Yes, when he had me on the ground, yes.
Court: So everything you said you did, you did. I already know that.
D.M.: I didn't mean to scratch him.
Court: I know you didn't mean to scratch him.
After further inquiry and discussion with D.M.'s court-appointed and educational advocates, the court found beyond a reasonable doubt that D.M. committed the offense of assault while on school property. Proceeding to disposition, it ordered D.M. released from detention and returned to her previous residential school where she had been adjusting and performing well. The court also ordered educational, psychiatric, and psychological tests and placed D.M. on court supervision and under the guardianship of Children's Division. Throughout the post-trial transcript, the court repeatedly admonished the school for its performance with respect to D.M.
D.M. now appeals the judgment, asserting that the trial court erred by relying on inadmissible propensity evidence from her abuse and neglect file to find that she committed the charged offense (point I). D.M. further asserts that, absent such evidence, the record is insufficient to prove the charge beyond a reasonable doubt (point II).
[370 S.W.3d 921]
D.M. essentially contends that the trial judge improperly relied on his knowledge of her past conduct to...
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