In re Interest of T.P.B., No. ED 100463.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: LISA S. VAN AMBURG, Presiding Judge.
• Citation: 441 S.W.3d 177
• Docket Number: No. ED 100463.
• Decision Date: 09 September 2014
• Parties: In the Interest of T.P.B. Minor.

441 S.W.3d 177

In the Interest of T.P.B. Minor.

No. ED 100463.

Missouri Court of Appeals, Eastern District, Division Five.

Sept. 9, 2014.

441 S.W.3d 179

Amanda Page Faerber, St. Louis, MO, for Appellant.

Carolyn Whitehorn, Margaret Gangle–Casinger, (co–counsel), St. Louis, MO, for Respondent.

LISA S. VAN AMBURG, Presiding Judge.

I. INTRODUCTION

Minor T.P.B. appeals the judgment of the Juvenile Division of the Circuit Court of the City of St. Louis finding her guilty of Assault in the Second Degree, section 565.060.1(3), R.S.Mo. (Cum.Supp.2007). On appeal, T.P.B. argues that the juvenile court erred by finding her guilty of “[r]ecklessly caus[ing] serious physical injury to another person,” section 565.060.1(3), when the petition charged her with “knowingly caus[ing] physical injury to another person by means of a ... dangerous instrument,” section 565.060.1(2), R.S.Mo. (Cum.Supp.2007).¹ In addition,

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T.P.B. argues that there was insufficient evidence that she actually participated in the charged assault. We reverse the juvenile court's judgment and order that T.P.B. be discharged.

II. FACTS

Viewed in a light most favorable to the judgment, In re A.G.R., 359 S.W.3d 103, 108 (Mo.App.W.D.2011), the following facts were adduced at trial. On the afternoon of February 2, 2013, victim A.C. and a friend took a bus across town to a house of a girl they knew from middle school. When they knocked on the door, T.P.B. and three other girls answered. One of the girls told A.C. to “[g]et off [her] porch,” whereafter A.C. left the porch and began walking away from the house. T.P.B. and the three girls then followed A.C. down the sidewalk and “jumped” her. As a result of several kicks and punches which she weathered during the attack, A.C. suffered bruising, small cuts to her lip, and a concussion.

III. STANDARD OF REVIEW

“Juvenile proceedings are reviewed under the same standard as any other court-tried case.” In re T.B., 351 S.W.3d 243, 244 (Mo.App.E.D.2011). We affirm the juvenile court's judgment “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.” In re A.G.R., 359 S.W.3d at 108.

IV. DISCUSSION

In her first point, T.P.B. argues that the juvenile court erred by finding her guilty of an offense with which she was never charged. Specifically, T.P.B. asserts that the juvenile court found her guilty of “[r]ecklessly caus[ing] serious physical injury to another person,” section 565.060.1(3), when the petition charged her with “knowingly caus[ing] physical injury to another person by means of a ... dangerous instrument,” section 565.060.1(2). T.P.B. claims that this error deprived her of fair notice—the fundamental ability to prepare and present a defense appropriate to the crime of which she was found guilty—in violation of the due process clause of the Fourteenth Amendment of the United States Constitution and article I, section 10 of the Missouri Constitution. In reply, respondent Juvenile Officer contends that T.P.B.'s allegation of error is not preserved, because she failed to object when the juvenile court stated it found her guilty of violating section 565.060.1(3), rather than 565.060.1(2). Additionally, the Juvenile Officer argues that the elements of section 565.060.1(2) and 565.060(3) are “substantially the same and as such [T.P.B.] was not denied notice of the charge or prejudiced in her defense.”

We agree with the Juvenile Officer that T.P.B.'s allegation of error is not preserved, because the transcript reveals that she did not object when she first learned that the court found her guilty of violating section 565.060.1(3).² In Missouri, “[c]onstitutional violations are waived if not raised at the earliest possible opportunity.” Garris v. State, 389 S.W.3d 648, 651 (Mo. banc 2012) (alteration in original) (quoting State ex rel. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998) ). However, “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage

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of justice has resulted therefrom.” Rule 30.20.

Here, we exercise our discretion to review T.P.B.'s first point for plain error. See T.S.G. v. Juvenile Officer, 322 S.W.3d 145, 149 (Mo.App.W.D.2010) (“It has long been settled that due process and fair treatment are required in juvenile court adjudications....”). The first step in the plain error review process is to determine whether the juvenile court committed a plain error that is “evident, obvious and clear.” State v. Wrice, 389 S.W.3d 738, 742 (Mo.App.E.D.2013). If so, the second step is to determine “whether the error resulted in manifest injustice or a miscarriage of justice.” Id. Accordingly, we now examine the relevant law on notice and due process.

“Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must set forth the alleged misconduct with particularity.” In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). “[C]onvicting a juvenile of a separate and distinct offense for which [s]he was not specifically charged is a violation of [due process].” J.D.B. v. Juvenile Officer, 2 S.W.3d 150, 156 (Mo.App.W.D.1999) ; see also State v. Miller, 372 S.W.3d 455, 467 (Mo. banc 2012) (“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.” (quoting Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) )).

Nevertheless, “the notice requirement of the Due Process Clause is satisfied when one is charged with a greater offense but convicted of an uncharged lesser-included offense.” T.S.G., 322 S.W.3d at 149 ; State v. Hagan, 79 S.W.3d 447, 454 (Mo.App.S.D.2002) (“A person cannot be convicted of a crime with which he was not charged unless it is a lesser included offense of a charged...