In re R.B., SC 86979.
| Citation | 186 S.W.3d 255 |
| Decision Date | 21 March 2006 |
| Docket Number | No. SC 86979.,SC 86979. |
| Parties | In the Interest of R.B. |
| Court | United States State Supreme Court of Missouri |
John J. Smith, St. Charles, for appellant.
Benicia Baker — Livorsi, St. Charles for respondent.
Timothy C. Mooney, St. Louis, Dulcie Green Wink, Houston, TX, Amicus Curiae for Justice For Children.
This is an appeal from the dismissal of a petition that alleged two counts of delinquency against R.B., a juvenile. The juvenile officer appeals claiming that evidence had been improperly rejected by the family court commissioner who heard the case. This Court has jurisdiction as it involves the validity of a state statute. Mo. Const. art. V, sec. 3. However, because the juvenile officer lacks the right to appeal, the appeal is dismissed.
R.B., a juvenile at the time of the alleged incident, was charged with one count of first degree child molestation and one count of sexual misconduct involving a child. At trial, the juvenile officer attempted to elicit the testimony of the alleged victim, a 10-year-old girl. During her testimony she became upset to the extent that she could not continue. At that point, the commissioner declared her to be unavailable for testimony and prevented R.B.'s counsel from cross-examining her.
The juvenile officer proceeded with his case by calling the detective who had first investigated the allegations. He asked the detective what the alleged victim had told him during his investigation of the alleged incident. Defense counsel objected based on hearsay and a violation of R.B.'s constitutional right to confrontation, as recently declared in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The testimony was then allowed, but not for the truth of the matters asserted, and only as an indication of why the officer proceeded as he did. The detective recounted the statements made to him by the alleged victim, and then testified that, pursuant to departmental policies, he ceased questioning the victim so that a forensic interview could be scheduled. When the juvenile officer then sought to introduce the videotape of the forensic interview, R.B.'s counsel objected on the ground that R.B. had not been given an opportunity to cross-examine the alleged victim as is required by Crawford. The objection was overruled and the videotape was received into evidence.
After the conclusion of the hearing and after taking the matter under advisement, the commissioner issued her opinion recommending the petition be dismissed for failure to prove beyond a reasonable doubt that R.B. committed the offenses. As a basis for that recommendation, the commissioner determined that the videotape was inadmissible under Crawford, a ruling that cast doubt on the validity of section 491.075, which permits a child victim's testimony to be used as substantive evidence in sexual misconduct cases even though the child has not been subjected to cross-examination. Thereafter, the administrative judge of the family court adopted and confirmed the findings and recommendations of the commissioner and entered judgment accordingly. The juvenile officer now appeals the judgment dismissing the petition claiming that the videotape testimony of the alleged victim was improperly rejected.
The right to appeal is statutory in nature. State v. Burns, 994 S.W.2d 941, 941 (Mo. banc 1999). As such, if a statute does not provide for appeal under certain circumstances, then appeal cannot be had. Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996). Section 211.261 sets out the limited situations in which the juvenile officer may appeal. That section provides:
1. An appeal shall be allowed to the juvenile officer from any final judgment, order or decree made under this chapter, except that no such appeal shall be allowed concerning a final determination pursuant to subdivision (3) of subsection 1 of section 211.031 [] ....
2. Notwithstanding the provisions of subsection 1 of this section, an appeal shall be allowed to the juvenile officer from any order...
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