In re Interest of J.R., ED 109245

CourtCourt of Appeal of Missouri (US)
Writing for the CourtColleen Dolan, J.
Citation633 S.W.3d 899
Parties In the INTEREST OF: J.R.
Docket NumberNo. ED 109245,ED 109245
Decision Date19 October 2021

633 S.W.3d 899


No. ED 109245

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 19, 2021

Kristina S. Olsen, 1010 Market St. Ste. 1100, St. Louis, MO 63101, For Appellant.

James A. Michaels, Jr., 920 N. Vandeventer Blvd., St. Louis, MO 63108, For Respondent.


Colleen Dolan, J.

J.R. ("Juvenile") appeals the judgment adjudicating him delinquent after a bench trial pursuant to § 211.031.1(3).1 The trial court found that Juvenile shot a firearm at two women and discharged a firearm into a habitable structure--conduct that, had he been an adult, would have constituted the crimes of assault in the first degree and unlawful use of a weapon. In his two points on appeal, Juvenile challenges the exclusion of a video and the sufficiency of the evidence. Exclusion of the video constituted prejudicial error. Therefore, we reverse and remand.

I. Factual and Procedural Background

The Juvenile Officer put on the following evidence at the September 29, 2020 bench trial. D.J.2 testified that she was asleep in her home at 12:30 p.m. on Sunday, May 30, 2020, when her sister woke her up to tell her there were kids throwing things at her car and house. D.J. said there were 20 or 30 kids out front throwing bottle rockets, water balloons, Jell-O balloons, and sticks. She went outside and moved her car to the back of the house. Then D.J. saw Juvenile messing with her car again and told him to get away from it. Juvenile told D.J. to send her sister out to fight with his girlfriend. D.J. told him that was not happening.

633 S.W.3d 902

Shortly thereafter, Juvenile brought a chair up to D.J.’s front porch, sat down, and would not leave when she asked. At this point, D.J. was standing inside her house looking out the door, which was opened part way. She said that while Juvenile was sitting there, he showed her a gun he had clutched in his pants. D.J. was on the phone with her friend, M.S., who lived nearby, and asked her to come over. When M.S. arrived, Juvenile said he had been looking for her. D.J. testified that at that point, Juvenile stepped out onto the street, pulled the gun from his waistband, and held it in the air. Then, she said, "he shoots the gun." After the shot was fired, D.J. said she snatched M.S. and pulled her into the house, kept the door cracked about six inches, and then fired her own gun--a .40 caliber--through that opening. D.J. testified that she saw Juvenile shooting back at her and her house, and that another person was shooting also: "He shot multiple times, and then someone else shot at me as well. So there [were] two people shooting at me." D.J. said the other person was "some girl named [J.]"3

The police arrived about 20 to 30 minutes after the shooting stopped. One girl among the children outside of the house had been shot and was taken to the hospital.4 D.J. testified that when the police brought Juvenile to her and asked if this was the guy, she said yes. She did not tell the police anything about the girl shooter that day, claiming she was "too hysterical." According to D.J., Juvenile had been coming to her door showing her his gun and making threats for weeks and he and other kids had been harassing her for months. She had never reported this to the police.

M.S. testified that she saw Juvenile pull a small black gun out of his pants right before D.J. snatched her into the house. Once inside, M.S. laid on the floor and heard multiple gunshots being fired. She did not actually see Juvenile fire the gun. M.S. testified that when the police arrived, Juvenile was trying to walk away, so she told the police to stop him. She also testified that she found out later there was another shooter, a girl, and that a neighbor had recorded the incident. M.S. got the video a few days later and reported it to the police.

D.J.’s teenage sister, R.S., testified that she had been in a fight with some girls prior to the day of this incident and that, for a couple of months, Juvenile had been coming to D.J.’s house trying to get R.S. to fight the girls again. R.S. testified that she was looking out the window and saw Juvenile step to the street and "cock the gun back." R.S. testified that "after [Juvenile] got done firing the gun," a girl with blue and black braids "picked up the gun and fired, emptied out the whole clip into our house. And that's when my sister fired back." Several short videos taken on R.S.’s phone from inside the house were admitted into evidence. None of them show Juvenile or anyone else shooting at M.S., D.J., or her house. On one video, a boy is seen handing a chair to Juvenile. The rest of the videos depict chaotic screaming and crying inside the home.

The evidence technician officer who investigated the crime scene testified that she searched D.J.’s house and porch, the walkway leading from the porch to the street, the street, and the sidewalk area across the street. Thirteen cartridge casings fired from two types of guns were

633 S.W.3d 903

recovered: seven 9mm casings were found in the street, and six .40 caliber casings were found on the walkway, front porch, and inside D.J.’s house.5 Sometimes casings go missing--they can roll or be kicked away--the officer said, but she had tried to be as thorough in her search as possible. Only D.J.’s .40 caliber weapon was seized, no other gun was ever found. Photographs of the ballistics damage to D.J.’s home were also admitted into evidence.

Juvenile put on the following evidence. An investigating officer testified that after the day of the incident, he received a video purportedly taken from inside a neighbor's house. He did not know who recorded it. The officer testified "it's a bad video" and said he could not "really tell what exactly is going on." He agreed that the video shows somebody on the street shooting, but he could not tell if that person was male or female. He also pointed out that the video is not dated or time stamped.

B.E., another teenager outside of D.J.’s house that day, testified that she was there during the entire shooting incident. B.E. said that at first there was just arguing, then a girl grabbed a gun from Juvenile's pants and shot it once into the air, at which point D.J. started shooting into the crowd of kids and hit a girl. "And then that's when [J.], she started shooting at the house and she let out all the bullets." B.E. testified that she never saw the gun in Juvenile's hand and never saw him fire it. Though she was still there when the police arrived and knew they were taking Juvenile into custody, B.E. did not tell them what she had seen.

During B.E.’s testimony, Juvenile attempted to introduce into evidence the video taken from the neighbor's house. When shown the video exhibit, B.E. was asked if she had seen what was on the video, and she said yes. Then she was asked, "Do you know what it shows?" Again, B.E. said yes and started to describe what it showed when the Juvenile Officer objected, claiming the video lacked foundation because it was unknown what day or time the video was recorded and by whom and because the investigating officer had testified the video was not clear. The trial court asked who took the video, and Juvenile represented that it was a neighbor but argued that it did not matter that someone else created the video "if [B.E.] can testify to what is on the video, that it represents fairly and accurately and completely what she saw that day." The Juvenile Officer also argued that because the video was taken from someone else's vantage point, B.E. would not be able to testify that it is a fair and accurate depiction of the scene.

The trial court sustained the objection: "You can't lay the foundation with this witness. You need the person who took the video, first of all, in order to lay the foundation." The trial court permitted Juvenile to make the following offer of proof, via counsel's narrative, as to what was on the video:

If the video was played for the Court, it would show that there was a girl in the street shooting a gun. [Juvenile] was running away from the gunshots. After the gunshots occurred, the girl in the video continues to walk around with a gun in her hand. You also would hear, if it was played, that [D.J.] shot several times, not just one time. And then you would also see [Juvenile] run back to the scene after his friend was shot to try to assist his friend who was injured at the time.
633 S.W.3d 904

The trial court noted the offer of proof, and did not change the ruling.

The trial court found beyond a reasonable doubt that Juvenile had committed assault in the first degree because he attempted to cause serious physical injury to D.J. and M.S. by shooting at them and unlawful use of a weapon because he discharged a firearm into a habitable structure. The trial court assumed jurisdiction over Juvenile and adjudicated him delinquent; the dispositional hearing immediately followed. The trial court committed Juvenile to the custody of the Division of Youth Services for appropriate placement and ordered restitution to D.J.6

This appeal follows.

II. Standard of Review

In a juvenile delinquency proceeding, due process requires proof beyond a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT