J.D.B. v. Juvenile Officer

• Decision Date: 05 October 1999
• Citation: 2 S.W.3d 150
• Parties: (Mo.App. W.D. 1999) J.D.B., Appellant, v. Juvenile Officer, Respondent. WD 56732 Handdown Date:
• Court: Missouri Court of Appeals

2 S.W.3d 150 (Mo.App. W.D. 1999)

J.D.B., Appellant, v. Juvenile Officer, Respondent.

WD 56732

Missouri Court of Appeals Western District

Handdown Date: 10/05/99

Appeal From: Circuit Court of Jackson County, Hon. Jay A. Daugherty

Counsel for Appellant: Leonard L. Wagner

Counsel for Respondent: Jean R. Seeber

Opinion Summary: The juvenile contends the trial court erred in convicting him of assault for lack of insufficient evidence to prove that he placed the victim in apprehension of immediate physical injury or that he had any physical contact with the victim.

Court holds: The juvenile admitted he was trying to scare the victim, supporting the finding that he intended to place the victim in apprehension of immediate physical injury. But the victim was not in apprehension of immediate physical injury--she was only alarmed, with her doors locked, knowing the weapon was plastic and thinking it was part of Halloween. The juvenile had no physical contact with the victim, other than bumping against her car. No substantial evidence supports the third degree assault conviction.

Also, because the petition alleges sexual misconduct, and although the court had jurisdiction over the juvenile, this Court cannot allow an amendment to third degree assault--a separate offense for which he was not specifically charged--based on the juvenile's testimony.

The juvenile is to remain in the custody of the juvenile officer under the portion of the judgment not part of this appeal.

Howard and Riederer, JJ., concur.

Harold L. Lowenstein

Appellant J.D.B., a juvenile, was brought before the Circuit Court of Jackson County, Family Court Division, based on charges resulting from an incident in which he circled and then chased after the car of Bonnie Hord, a woman who lived nearby. A commissioner found J.D.B. guilty of the class C misdemeanor of third degree assault, section 565.070, RSMo Cum. Supp. 1998. The circuit court confirmed and reduced the commissioner's recommendations to judgment. On appeal, the juvenile contends the trial court erred in convicting him of assault because there was insufficient evidence to prove either that J.D.B. placed Ms. Hord in apprehension of immediate physical injury or that J.D.B. had any physical contact with Ms. Hord.

STATEMENT OF FACTS

A two count petition was filed against J.D.B. by the juvenile officer. Count I of the first amended petition alleged that J.D.B. had committed the class B misdemeanor of second degree sexual misconduct. Section 566.093, RSMo 1994. Count II, which was admitted by the juvenile, alleged that J.D.B.'s behavior was injurious to his welfare because he had carved his initials into his leg and burned both his arms with a cigarette lighter. J.D.B. was brought to trial on these two counts before a commissioner. As noted, J.D.B. admitted to Count II of the petition, that his behavior was injurious to his welfare. J.D.B. denied the sexual misconduct allegation of Count I.

At trial, after hearing the testimony of both the victim and J.D.B. on the sexual misconduct count, the commissioner determined the evidence was insufficient to prove sexual misconduct. However, the court stated its belief that J.D.B., by his own testimony, had admitted to the uncharged crime of third degree assault. In his Order Continuing Cause for dispositional hearing, the commissioner found the "[e]vidence adduced sustains the allegations as to Count I as amended to conform to the evidence as a violation of section 575.070 RSMo."¹ The commissioner's Findings and Recommendations were that the evidence sustained both the amended Count I, the third degree assault charge, and the previously admitted Count II. These Findings and Recommendations were adopted without modification by the circuit court.

The facts relating to the third degree assault charge are difficult to ascertain for several reasons. First, the trial testimony of both the victim and the juvenile was centered around the charged allegation of sexual misconduct. It was not until after this evidence was presented that the commissioner determined a third degree assault had been committed. Second, the court did not make detailed findings of fact as to third degree assault. And third, the testimony of the complaining witness, Ms. Hord, was somewhat confused and apparently unreliable. Even the commissioner remarked that he was given some pause about "her ability to relate events," and that the events "can not have occurred as she testified." The evidence will now be recounted.

At trial, witness Hord testified as to events that occurred on October 20, 1997, outside her apartment complex in Lee's Summit, Missouri. Ms. Hord testified that, at some time during the late afternoon or evening hours on that day, J.D.B. and two of his friends, wearing Halloween masks, surrounded her car and "gyrat[ed] their hips in a sexual manner." Ms. Hord became "upset" and left to run errands. Later that evening, at approximately 8:20, Ms. Hord again encountered the three teens while she was outside near her mailbox. When she saw them approaching, Ms. Hord got in her car and locked the doors. She testified that the boys again surrounded her car, this time holding the masks in their hands and also one of the boys "[n]ot J.D.B., [a]nother one" was carrying a plastic "machete." Ms. Hord testified the boys were again gyrating their hips and that J.D.B. was right next to her driver's side window "pumping his hips right into the car, so the car was moving."

At this time, Ms. Hord left, drove to Wal-Mart and called the police. When asked by the juvenile's attorney if the incident had frightened her, Ms. Hord replied, "Not frightened. Alarmed. I didn't know what they were doing." When asked if she thought the boys were going to rob her, Ms. Hord responded, "My car door was locked. What could they do?" Ms. Hord also stated that she knew the "machete" was plastic just by looking at it and that she "thought they were starting Halloween early."

At trial, J.D.B. took the stand to testify on his own behalf. The juvenile testified that while Ms. Hord was at the mailbox he remarked to his friends, "Hand me a mask. I'm about to scare this woman." J.D.B. claimed he stood by her driver's side window, walked around to the passenger side window and then chased after her car as Ms. Hord left the scene. Contrary to Ms. Hord's testimony, J.D.B. said he was wearing a Halloween mask and was carrying the "machete" when the incident occurred. When asked about the events of that evening, J.D.B. remarked, "I was just trying to scare her. It was just going to be a joke." When asked what he would like to say to Ms. Hord, the juvenile replied, "I would like to apologize for scaring her....And also, I would like to apologize for scratching her car. I didn't do it, but one of my friends did." After being questioned why he would apologize for scaring Ms. Hord, J.D.B. responded, "Because I do admit to that."

STANDARD OF REVIEW

The standard of review in a juvenile proceeding is the same as that applied in a court-tried civil case. Unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law, the judgment must be affirmed by this court. T.L.C. v. T.L.C., 950 S.W.2d 293, 295 (Mo.App. 1997) (cases cited therein omitted). The evidence is considered in the light most favorable to the judgment and all contrary inferences are disregarded. Id. This court defers to the trial court's determinations as to witness credibility and the weight to be given their testimony. Id.

ANALYSIS

Under section 565.070.1 there are six possible variances of a third degree assault charge, only two of which, subdivisions three and five, constitute a class C misdemeanor. The judgment entered by the circuit court convicted J.D.B. of a class C misdemeanor but did not indicate under which subdivision it so found. Under section 565.070.1(3) a person commits third degree assault if he or she "purposely places another person in apprehension of immediate physical injury." Under section 565.070.1(5) one commits assault if he or she "knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative." The court will address each of these variances in turn.

Under subdivision three of this subsection of the statute, it is implicit that there are two elements to such an assault charge: (1) J.D.B. must have intended to place Ms. Hord in apprehension of immediate physical injury, and (2) Ms. Hord must actually have been placed in such apprehension. Taking the evidence in the light most favorable to the judgment, the court finds only one of these elements was met.

To be guilty of third degree assault under section 565.070.1(3), J.D.B. must have intended to place Bonnie Hord in apprehension of immediate physical injury. By his own testimony, the juvenile admitted he was trying to scare Ms. Hord when he circled and then chased after her car. In addition to this direct evidence, J.D.B. testified he was wearing a mask at the time he approached the victim and was carrying a plastic weapon. Intent may be shown by circumstantial evidence. State v. Robinson, 710 S.W.2d 14, 17 (Mo.App. 1986). By the juvenile's own admission and by his actions, there is sufficient evidence in the record to support a finding that J.D.B. intended to place Ms. Hord in apprehension of immediate physical injury.

However, in order to be convicted of third degree assault under subdivision three, the victim must actually have been placed in apprehension of immediate physical injury. State v. Cavitt, 703 S.W.2d 92, 93 (Mo.App. 1985) (Stating that one element of assault under section 565.070.1(3) is "placing another person in apprehension of immediate physical injury.") (See also State v. McGuire, 924 S.W.2d 38, 39 (Mo.App. 1996) in which conviction for third degree assault of a law enforcement...