In the Interest of: D.G.E. v. Juvenile Officer ( 2020 )

In the Missouri Court of Appeals
Western District
IN THE INTEREST OF: D.G.E., )
Appellant, ) WD82856
v. ) Consolidated with WD82857
)
JUVENILE OFFICER, ) FILED: April 21, 2020
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY
THE HONORABLE MATTHEW P. HAMNER, JUDGE
BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, ALOK AHUJA AND
CYNTHIA L. MARTIN, JUDGES
D.G.E. appeals the juvenile court’s judgment finding him delinquent. He
contends the court erred in finding that he committed an act that, if committed by an
adult, would have constituted first-degree sexual misconduct in violation of Section
566.093.1(1), RSMo 2016.1 D.G.E further argues that the court erred in determining
that he had violated his probation by exposing his genitals under circumstances in
which he knew such conduct was likely to cause affront or alarm. Lastly, he asserts that
he was denied a fundamentally fair hearing and effective assistance of counsel in that
his counsel failed to object to several hearsay statements and improper opinion
testimony from a lay witness. For reasons explained herein, the judgment of the
1 Unless otherwise noted, all statutory references are to the Revised Statutes of Missouri 2016.
juvenile court is reversed and D.G.E. is ordered discharged from the effects of each
disposition.
FACTUAL AND PROCEDURAL HISTORY
In March 2019, K.C. received Snapchat messages to her phone from an
individual named “NGL.” After receiving the initial messages, K.C. asked NGL to
identify himself. NGL identified himself as D.G.E., and K.C. told him her name. During
the course of this conversation, D.G.E. asked K.C. if she would “send nudes.” K.C. told
D.G.E. no, and he then asked if it was “okay if he sends [her] some.” K.C. again told
him no. The conversation ended, but the two resumed speaking the following weekend.
During that second conversation, K.C. sent a photo of her face to D.G.E. and
asked him to send her a picture of his face. D.G.E. initially refused, stating “oh, I’m
ugly.” K.C. indicated, however, that D.G.E. did eventually send a picture of his face
“[n]ot like on Snap[chat], but, like from imaging and stuff.” K.C. said that she could not
see what D.G.E. looked like from the photo because the image was too dark and only
showed a portion of his face. D.G.E. then sent another photo that K.C. labeled as a
“dick pic,” which she later clarified meant a picture of a penis. K.C. stated that, although
D.G.E. made no explicit representation of ownership, she believed the photo to be a
depiction of D.G.E.’s penis. K.C. asserted that the picture offended her and that she
“felt gross” after receiving it.
K.C. told her brother about the photo, and he informed K.C.’s parents.
Subsequently, A.B., K.C.’s stepsister, contacted D.G.E. through the Facebook
Messenger application. A.B. stated that she contacted him to “figure out who he was
and why – and what he did wrong because it was kind of upsetting.” A.B. told D.G.E.
2
“that child pornography was illegal and that he probably should not be doing that,
especially to someone younger than him.” D.G.E. acknowledged “that he did send [a
picture of a penis] but it was not his and that it was something that he got online.” A.B.
stated that she still believed that the penis contained in the photo was D.G.E.’s,
however, because “the deal with Snapchat is he sent a live picture, meaning it had to be
his and it could not be from his gallery. So that's — that's why I texted him.” A.B.
conceded that she never saw any of the messages that D.G.E. sent to K.C.
D.G.E. told A.B. that he had apologized to K.C. and “that it was not a big deal.”
A.B. informed D.G.E. that she “believed otherwise and . . . that my parents were very,
very upset and that they were going to press charges against him.” D.G.E. then
separately contacted both A.B. and K.C.’s stepmother to apologize multiple times “for
his actions.” During trial, Juvenile Officer Jason Moore read into the record, without
objection, a portion of a written statement from A.B. in which she stated, “The next day
at school many people told me [D.G.E.] was bragging about sending nudes to my sister,
[K.C.].”
After D.G.E. was taken into custody, C.E., D.G.E.’s mother, provided D.G.E.’s
phone to Kyle Towles from the Morgan County Sheriff’s Office. Towles used the data
extraction program Cellebrite to examine the contents of K.C.’s and D.G.E’s phones.
He stated that he was unable to find any evidence of a Snapchat discussion on either
phone. Towles indicated that due to the nature of Snapchat and the age of the phones,
he was not surprised that he did not find any evidence of the conversation on K.C.’s
phone and was only a “little more surpris[ed]” not to find evidence of the conversation
on D.G.E.’s phone.
3
During the examination of D.G.E’s phone, however, Towles discovered 18,000
images located in the phone’s cache image drive. 2 Towles examined every photo
contained within the phone and discovered what he described as “a large quantity of
both adult and child pornography.” Towles stated that the pornographic images
contained “multiple pictures of penises” and that the images he was able to identify as
child pornography were saved and entered into evidence as Juvenile Officer’s Exhibits 1
through 39.3 C.E. stated that, at the time of offense, D.G.E. resided in her home along
with D.G.E.’s father and her two daughters. C.E. asserted that her older daughter had
autism and that she had no reason to believe either daughter was responsible for the
pornographic images found on the phone.
At the time of the offense, D.G.E. was serving a probationary term on a previous
finding of delinquency, in which the court determined that he had subjected a person to
sexual contact without that individual’s consent. Consequently, a motion to modify a
previous order of disposition was filed, alleging that D.G.E. had: (1) “expos[ed] his
genitals, by sending a digital photo image of his penis via Snap Chat [sic] to K.C., under
circumstances in which he knew such conduct was likely to cause affront or alarm; and
2 Towles described cache images as:
Everything you can imagine from what's called cache images. So when you use a
website, in order to speed up the next time you visit that website, a computer device —
essentially a cell phone is a computer – computer devices save that information on that
website to speed the process of using that specific website.
So if you go to Google a lot, Google will have -- you know, the search bar will be
downloaded a hundred times, and each time – each time you open up a website it tries to
download that portion of the website so the next time you use it it's quicker. It's like the
hyperlinks. Whenever you Google something, if you Googled it before, it turns purple
versus blue. That's because it's cached in your computer.
3These exhibits are not part of the record before this court. Rule 30.05 requires that exhibits in criminal
cases be deposited as provided in Rule 81.16, which obligates the appellant, here D.G.E., to deposit any
exhibits necessary for the determination of any point relied on. Rule 30.05; Rule 81.16.
4
(2) “knowingly possessed, on his cell phone, multiple sexually explicit images of minor
children being subjected to sexual contact with adults.”
The Juvenile Officer subsequently filed a separate allegation of delinquency
alleging that D.G.E. had committed the offenses of first-degree sexual misconduct and
possession of child pornography, mirroring the allegations set forth in the motion to
modify. The juvenile court heard both cases on the same day and determined shortly
thereafter that the first-degree sexual misconduct claim had been proven beyond a
reasonable doubt in both the modification and delinquency proceedings. 4 The juvenile
court committed D.G.E. to the custody of the Division of Youth Services for an indefinite
period of time in both cases. D.G.E. appeals.
STANDARD OF REVIEW
“Juvenile proceedings are reviewed as in the same manner as other court-tried
cases.” D.C.M v. Pemiscot Cty. Juvenile Office, 578 S.W.3d 776, 786 (Mo. banc. 2019)
(citation and quotations omitted). We will, therefore, affirm a judgment in a juvenile
proceeding “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.” Ivie v. Smith, 439
S.W.3d 189, 198-99 (Mo. banc 2014). “The credibility of the witnesses and the weight
their testimony should be given is a matter to be determined at the hearing by the circuit
court, which is free to believe none, part, or all of their testimony.” Pemiscot Cty., 578
S.W.3d at 786 (citation and quotations omitted).
4 For the sake of clarity, the Juvenile Officer did not specifically invoke Section 566.093 in its motion to
modify, but the language of the petition plainly tracks the language of the offense of sexual misconduct in
the first degree.
5
Where, as here, “a juvenile is alleged to have committed an act that would be a
criminal offense if committed by an adult, the standard of proof, like that in criminal
trials, is beyond a reasonable doubt.” Id. Consequently, we must determine “whether
there is sufficient evidence from which the fact finder could have found the defendant
guilty beyond a reasonable doubt.” J.N.C.B. v. Juvenile Officer, 403 S.W.3d 120, 124
(Mo. App. 2013). “In determining the sufficiency of the evidence, we view the evidence
and reasonable inferences which may be drawn therefrom in the light most favorable to
the verdict and we ignore all evidence and inferences to the contrary.” Id. (citation and
quotations omitted).
ANALYSIS
In Point I, D.G.E. contends the juvenile court erred in finding that D.G.E. had
committed an act that would have been first-degree sexual misconduct if committed by
an adult because there was insufficient evidence to prove: (1) that D.G.E. had
“exposed” his genitals; and (2) that any genitals depicted in any digital photo exchanged
between D.G.E. and K.C were his genitals, as required by Section 566.093. As a
determination in favor of D.G.E. on either of his allegations of error would require a
ruling in favor of D.G.E.,5 we need only address his second allegation.
In its first amended petition, the Juvenile Officer alleged that D.G.E. had
committed the offense of first-degree sexual misconduct in violation of Section
566.093.1(1).6 That provision provides that an individual commits first-degree sexual
5The Juvenile Officer has the burden of proving every element of the criminal offense. In Interest of
S.B.A., 530 S.W.3d 615, 623 (Mo. App. 2017).
6The Juvenile Officer did not specify under which subsection of Section 566.093 it was alleging
delinquency, but the language of its petition plainly, and exclusively, tracks Section 566.093.1(1).
6
misconduct if such individual “[e]xposes his or her genitals under circumstances in
which he or she knows that his or her conduct is likely to cause affront or alarm[.]” §
566.093.1(1). In this point on appeal, D.G.E. contends there was insufficient evidence
to prove that the genitals depicted in any photo exchanged during his conversation with
K.C. were his genitals.
In support of the Juvenile Officer’s petition, the court heard evidence that: D.G.E.
had asked K.C. to “send nudes” and later asked her if it was “okay if he sends [her]
some.” K.C. testified that she believed the photo of the penis she received to be an
image of D.G.E.’s penis. A.B. testified that, although she had never seen any of the
messages from D.G.E., she believed that the image sent by D.G.E. was a photo of his
penis because D.G.E. “sent a live [Snapchat] picture, meaning that it had to be his and
it could not be from his [phone’s] gallery.” A.B. further stated that D.G.E. had
apologized to her and her mother many times “for his actions” towards K.C. Juvenile
Officer Moore read into the record, without objection, a portion of a written statement
from A.B. in which she stated, “The next day at school many people told me [D.G.E.]
was bragging about sending nudes to my sister, [K.C.].”
Towles stated that he could not find any evidence of the Snapchat conversation
but that the absence of the messages was not surprising due to the nature of Snapchat
and the phones used by K.C. and D.G.E. During a search of D.G.E.’s phone, Towles
discovered a large quantity of adult and child pornography in the phone’s cache.
D.G.E’s mother, C.E., stated that her two daughters also lived in the home with D.G.E.
but that she had no reason to believe that either were responsible for the pornography
found on the phone.
7
To support the court’s finding of delinquency, the Juvenile Officer directs our
attention to J.N.C.B., 403 S.W.3d at 125, as endorsement for the principle that, “[p]roof
of conduct before, during or after the offense are circumstances from which one’s
participation in the offense may be inferred.” However, the Juvenile Officer ignores the
limitations to such inference, which were explained in great detail by the J.N.C.B. court.
See id. at 126-29.
The participation inference employed by the Juvenile Officer is an example of a
permissive inference. See id. at 127. “A permissive inference suggests to the
[factfinder] a possible conclusion to be drawn if the State proves certain predicate facts,
but does not require the [factfinder] to draw that conclusion.” Id. (alteration in original)
(footnote omitted) (citation omitted). The inference at issue here suggests that, in the
absence of direct evidence of a defendant’s participation, the factfinder may infer
participation from the conduct the defendant undertakes close in time to the offense.
Such inference may be valid, but, “to satisfy due process concerns, there must be a
‘”rational connection” between the basic facts that the prosecution proved and the
ultimate fact presumed, and that the latter is “more likely than not to flow from” the
former.’” Id. (quoting Ulster Co. Court v. Allen, 442 U.S. 140, 142 (1979)).
Here, some rational connection exists between the basic facts proved by the
Juvenile Officer and the ultimate fact required by Section 566.093.1(1) — that D.G.E.
exposed his genitals. The mere existence of a rational connection, however, is not
enough. As the court in J.N.C.B reiterated, the ultimate fact “must more likely than not
to flow from” the basic facts proved by the Juvenile Officer. Id. (quoting Ulster, 442 U.S.
at 142). Distilled to their essence, the basic facts proved by the Juvenile Officer which
8
support the proposition that D.G.E. exposed his genitals are: (1) that he asked for K.C.
to provide “nudes”; (2) that he asked if he could send her “some”; (3) that, during a
conversation several days later, K.C. received an image of a penis from D.G.E.; (4) that
D.G.E. apologized numerous times “for his actions”; and (5) that he was heard bragging
at school the following day about sending “nudes” to K.C. The question, therefore, is
whether this evidence supports a finding that the ultimate fact — that D.G.E. exposed
his genitals —is more likely than not to flow from these basic facts.
In support of its contention that the inference is properly invoked, the Juvenile
Officer raises a series of arguments that we have grouped into three overarching
arguments: (1) that D.G.E. has improperly challenged A.B’s testimony about the inner-
workings of Snapchat by presenting evidence on appeal that it did not present below;
(2) that the juvenile court was not required to believe any of D.G.E.’s testimony; and (3)
that D.G.E.’s request that K.C. send and receive nudes, in combination with his actions,
consistently supports the use of the inference.
As for the first argument, the Juvenile Officer is correct that D.G.E.’s presentation
of pages from Snapchat’s website in an attempt to discredit A.B.’s testimony is not
properly before this court. D.G.E. did not present those pages, or the information
contained therein, to the juvenile court. “We do not convict the trial court of error when
it was never given an opportunity to correct such error.” State v. Renfrow, 495 S.W.3d
840, 843 (Mo. App. 2016). The time for that challenge has passed. If D.G.E. believed
that A.B. was incompetent to provide testimony explaining the inner-workings of
Snapchat, he could have engaged in a voir dire examination of A.B., challenged A.B’s
testimony on cross-examination, or contemporaneously moved to strike A.B.’s
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testimony from the record. Because he chose none of these options, A.B.’s testimony is
properly before this court. See id. Nevertheless, A.B. stated that she did not see any
message exchanged between K.C. and D.G.E., which, even under our deferential
standard of review, severely limits the probative value of her testimony.
Similarly, the Juvenile Officer’s second argument — that the juvenile court was
free to disbelieve D.G.E.’s statements maintaining that the penis contained in the image
sent to K.C. was not his — accurately summarizes the applicable standard of review. It
is well-settled that “[t]he credibility of the witnesses and the weight their testimony
should be given is a matter to be determined at the hearing by the circuit court, which is
free to believe none, part, or all of their testimony.” Pemiscot Cty., 578 S.W.3d at 786
(citation and quotations omitted). The fact that the credibility of witnesses is left to the
juvenile court, however, does not allow the court to leverage that disbelief to carry the
Juvenile Officer’s burden.
As discussed supra, the Juvenile Officer carries the burden to prove all elements
of Section 566.093.1(1) beyond a reasonable doubt. Id. While the court was
unquestionably free to disbelieve D.G.E., see id., that disbelief cannot, without other
supporting facts, prove beyond a reasonable doubt that the picture sent to K.C. actually
depicted D.G.E.’s penis. Put another way, the question before this court is not whether
the juvenile court believed D.G.E.’s statements – it plainly did not; instead, the question
is whether the remaining facts adduced by the Juvenile Officer support the inference
that D.G.E. committed the offense of first-degree sexual misconduct. This is the issue
addressed by the Juvenile Officer’s third overarching argument.
10
The Juvenile Officer and the dissenting opinion assert that that the phrase “send
nudes” has a particular colloquial meaning in which it functions as a request for nude
images of the person upon which the request is made. No evidence was presented that
D.G.E.’s use of this phrase meant “send your nudes.” However, the Juvenile Officer
and the dissent contend that the evidence was sufficient to support the finding of
delinquency because, inter alia, D.G.E. necessarily implied that the exposed penis was
his by sending a picture of a penis several days after using the phrase “send nudes.”
Even if we agreed that the phrase “send nudes” could be understood to mean
that an individual “send his or her nudes,” the ultimate fact — that D.G.E. exposed his
genitals — is not more likely than not to flow from that factual basis. Simply, the use of
the phrase “send nudes” combined with: (1) K.C. receiving a photo of a penis during a
conversation held several days later; (2) D.G.E.’s subsequent bragging about sending
nudes; and (3) D.G.E’s subsequent apologizing “for his actions,” cannot support a
finding of the ultimate facts beyond a reasonable doubt. The Juvenile Officer attempts
to stretch the inference of participation from temporally-related conduct to also permit
the court to infer the facts necessary to prove the extent, nature, and meaning of that
participation. This request would require the court to stack too many inferences upon a
single proven fact.
The dissent acknowledges that K.C.’s testimony is brief “and may not be a model
of precision,” but nonetheless relies upon fragmented excerpts to reach the conclusion
that D.G.E. is guilty beyond reasonable doubt because he sent an image of his penis.
However, when understood in the context of the entire line of questioning, there is
nothing in K.C.’s testimony that assists in connecting the request to “send nudes” with
11
her receiving the photo days later. During her testimony, K.C. described the photo as
follows:
[JUVENILE OFFICER]: Okay. Then what happened?
[K.C.]: Then I thought he was, like, going to send a picture of his face, but
he just, like, did that instead.
[JUVENILE OFFICER]: Okay. And when you say that, I know you're
uncomfortable. What did he send you a picture of?
[K.C.]: A dick pic.
[JUVENILE OFFICER]: Okay. A dick pic?
[K.C.]: (Witness nodded.)
[JUVENILE OFFICER]: In biological terms, what is that, picture of what
part of the body?
[K.C.]: How am I supposed to explain that? Between his legs.
[JUVENILE OFFICER]: Okay. Have you heard of a penis?
[K.C.]: Yeah.
[JUVENILE OFFICER]: Is that what you're describing, a picture of a
penis?
[K.C.]: Yeah.
[JUVENILE OFFICER]: And did he represent to you that that was a picture
of him?
[K.C.]: No, not the picture of his face. I thought it was going to be his face,
but yeah.
[JUVENILE OFFICER]: But you thought it was a picture of him?
[K.C.]: Yeah.
[JUVENILE OFFICER]: Because he was going to send you a picture of
him?
[K.C.]: Well, that's what I thought.
12
[JUVENILE OFFICER]: Okay. And you were offended by that?
[K.C.]: Yeah. I felt gross.
[JUVENILE OFFICER]: So after that happened, did you tell anyone?
[K.C.]: I told him I was going to tell my brother. He goes, please don't.
Then I told my brother anyway. My brother told my parents and my sister
called the cops.
[JUVENILE OFFICER]: Were you able to see the person's photo well
enough to identify that person?
[K.C.]: No.
It is apparent from a review of the transcript that K.C. was nervous and had
difficulty testifying. While the court understands and is sympathetic to those difficulties,
our analysis must be guided by the record before this court. The dissenting opinion
seizes on two lines of questioning to support its conclusion. The first, being this
exchange:
[JUVENILE OFFICER]: And did he represent to you that that was a picture
of him?
[K.C.]: No, not the picture of his face. I thought it was going to be his face,
but yeah.
The dissenting opinion understands this testimony to be K.C.’s confirmation that D.G.E.
had represented to her that the penis in the image was his. Apparently confused by the
answer it received, however, the Juvenile Officer asked an immediate follow-up
question, in which this exchanged occurred:
[JUVENILE OFFICER]: But you thought it was a picture of him?
[K.C.]: Yeah.
[JUVENILE OFFICER]: Because he was going to send you a picture of
him?
13
[K.C.]: Well, that's what I thought.
This collective testimony only establishes the basis for K.C.’s belief that D.G.E. sent her
an image of his penis. Regardless of whether the belief was reasonable, Section
566.093.1(1) requires proof that D.G.E. exposed his genitals, not that K.C. merely
believed he did.
The second line of questioning that the dissenting opinion addresses is this
exchange between K.C. and the Juvenile Officer:
[JUVENILE OFFICER]: In biological terms, what is that, picture of what
part of the body?
[K.C.]: How am I supposed to explain that? Between his legs.
[JUVENILE OFFICER]: Okay. Have you heard of a penis?
[K.C.]: Yeah.
[JUVENILE OFFICER]: Is that what you're describing, a picture of a
penis?
[K.C.]: Yeah.
(Emphasis added). The dissent focuses on K.C.’s use of the pronoun “his” as an
expression of her understanding that the image depicted D.G.E’s penis. This isolated
sentence, however, is unmoored from the larger context. More precisely, K.C.’s use of
the “his” pronoun is followed by the first line of testimony discussed supra, in which she
stated that she believed the image depicted D.G.E.’s penis because she thought D.G.E.
was going to send a picture of himself. This circular testimony fails to overcome the
fundamental lack of proof that D.G.E. actually sent a photo of his own genitals and
cannot support a factual finding of guilt beyond a reasonable doubt.
14
Further, the record is bereft of any other supporting connections. For example,
the Juvenile Officer did not ask K.C. to describe the penis depicted in the image. Any
number of relevant facts concerning the image, such as similarities in the surroundings
captured in the photos or between D.G.E.’s outward facing physical characteristics and
the characteristics of the penis contained in the image she received (for example,
similar skin color) could have provided valid bases for the inference that the penis was,
in fact, D.G.E.’s. These do not exist in the record and would have been particularly
relevant in light of testimony from A.B. that D.G.E. said the penis “was not his and that it
was something that he got online.”
Further, A.B. cannot provide the missing link based on her concession that she
lacked any personal knowledge about the photo because she never saw the messages
exchanged between K.C. and D.G.E.7 Nothing in the record demonstrates that the
ultimate fact — that D.G.E. exposed his genitals — is more likely than not to flow from
any of the basic facts established by the Juvenile Officer. Circumstantial evidence can
undoubtedly support a conviction beyond a reasonable doubt. J.N.C.B., 403 S.W.3d at
129. Indeed, “[c]ircumstantial evidence alone can be sufficient to support a conviction,
and the evidence [presented] need not demonstrate the impossibility of innocence.”
State v. Allen, 508 S.W.3d 181, 186 (Mo. App. 2017). Here, however, the Juvenile
Officer has not presented sufficient facts to support a reasonable inference.
This court confronted a similar issue in State v. Waller, 163 S.W.3d 593 (Mo.
App. 2005). In Waller, the State presented evidence that a local sheriff’s deputy was
7 A finding that A.B. cannot provide a link between D.G.E. and the photo does not indulge evidence or
inference contrary to the juvenile court’s verdict. A.B. stated that she never saw the messages
exchanged between K.C. and A.B. Therefore, our determination that she cannot provide the necessary
link does not consider contrary evidence, it simply restates the evidence adduced by the Juvenile Officer.
15
called to investigate a report of trash dumping. 163 S.W.3d at 594. The deputy
recovered several trash bags dumped on the side of the road, which contained “a
handful” of mail addressed to Gary and April Waller, and their daughter Crystal Waller.
Id.
Upon investigation, the deputy discovered that the Waller family had been
evicted and no longer lived at the address shown on the dumped mail. Id. at 594-95.
The posting date for the mail preceded the date on which the Wallers were evicted. Id.
at 595. The Waller family acknowledged leaving trash and debris in the home but
denied dumping anything near the roadway. Id. Further investigation revealed that a
real estate broker was hired to clean and prepare the house for market after the
foreclosure. Id.
Gary and April Waller were prosecuted for littering, and the circuit court found
both guilty beyond a reasonable doubt. Id. In reversing the judgment against Gary,8 we
noted that the only evidence of guilt was the mail itself, and therefore “it [was] possible
that any one of the three Wallers committed the crime, or that any one of them did not
commit the crime.” Id. at 596 (emphasis in original). We acknowledged that Gary
“might have committed the crime, and perhaps, even more probably than not, that he
did commit the crime.” Id. We cautioned, “[h]owever, to conclude that Gary committed
this crime beyond a reasonable doubt require[d] a healthy dose of speculation,
supposition, and conjecture, which [was] not sufficient to provide a basis for a rational
resolution of the issue of guilt beyond a reasonable doubt.” Id.
8
Our ruling in Waller only contemplated the sufficiency of the evidence as to Gary Waller because April
Waller’s challenge was addressed in a separate appeal. Id. at 594 n.3.
16
Although D.G.E.’s case does not present an issue of multiple potential
perpetrators, it does present this court with at least two potential versions of D.G.E.’s
participatory acts – only one of which violates Section 566.093.1(1). Here, as in Waller,
we can infer from the evidence that D.G.E. might have exposed his genitals, but it
“requires a healthy dose of speculation, supposition, and conjecture, which is not
sufficient to provide a basis for a rational resolution of the issue of guilt beyond a
reasonable doubt.” Id. Indeed, “[t]he concept of reasonable doubt is inconsistent with a
procedure that permits an otherwise unassisted leap from aggregate likelihood to a
conclusion of guilt.” J.N.C.B., 403 S.W.3d at 129 (quoting Charles R. Nesson,
Reasonable Doubt and Permissible Inferences: The Value of Complexity, 92 HARV. L.
REV. 1187, 1208 (1979)).
Contrary to the dissent’s assertion, our finding that the evidence is insufficient to
support a determination of guilt beyond a reasonable doubt does not require this court
to invoke the now-abrogated “corroboration rule.” See State v. Porter, 439 S.W.3d 208,
211-13 (Mo. banc 2014). Our ruling does not disturb any factual or credibility
determination made by the juvenile court. Instead, we recognize that, even while
viewing the evidence in the light most favorable to the juvenile court’s ruling and
ignoring all contrary evidence, the Juvenile Officer’s evidence is simply insufficient. The
problem with K.C.’s testimony is not that it appears contradictory, but that it does not
provide a factual basis upon which the court could find, or infer, beyond a reasonable
doubt that D.G.E. exposed his penis. See J.N.C.B., 403 S.W.3d at 124. We
acknowledge that our standard of review is deferential, but no court is free to “supply
17
missing evidence or give [the Juvenile Officer] the benefit of unreasonable, speculative
or forced inferences.” State v Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003).
While the Juvenile Officer may have established that D.G.E. had furnished a
pornographic photo to K.C., knowing that she was a minor, the Juvenile Officer failed to
demonstrate beyond a reasonable doubt that D.G.E. exposed his genitals. Therefore,
the evidence in this case is insufficient to prove an essential element of the offense that
if committed by an adult, would constitute first-degree sexual misconduct. Point I is
granted.
In Point II, D.G.E. contends that the juvenile court erred in finding that D.G.E. had
violated his probation “by exposing his genitals, by sending a digital photo image of his
penis via Snap Chat [sic] to K.C., under circumstances in which he knew such conduct
was likely to cause affront or alarm.” D.G.E. challenges this finding on the same
grounds expressed in Point I. As our review of Point II is identical to Point I, Point II is
granted for the reasons articulated in Point I.
In Point III, D.G.E. contends that he was provided ineffective assistance of
counsel, in that his counsel failed to object to several pieces of testimony regarding the
inner-workings of Snapchat and hearsay statements made by D.G.E. We need not
reach this question, however, because our holding in D.G.E.’s first two points is
dispositive and renders Point III moot.
CONCLUSION
Because the Juvenile Officer failed to meet its burden of proof, the judgment of
the juvenile court is reversed, and D.G.E. is ordered discharged from the effects of each
disposition.
18
________________________________
LISA W HITE HARDWICK, JUDGE
Judge Martin concurs.
Judge Ahuja dissents in separate opinion.
19
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
IN THE INTEREST OF: D.G.E., )
Appellant, )
) WD82856
v. ) (consolidated with WD82857)
)
JUVENILE OFFICER, ) FILED: April 21, 2020
Respondents. )
DISSENTING OPINION
I respectfully dissent. Unlike the majority, I believe the testimony of the
victim K.C. is sufficient, standing alone, to support a finding that D.G.E. sent her a
picture of his penis. The evidence was therefore sufficient to support the circuit
court’s determination that D.G.E. committed an act which would have constituted
the offense of first-degree sexual misconduct if committed by an adult. Because
D.G.E.’s other arguments for reversal are meritless, I would affirm the judgment of
the circuit court.
Although K.C.’s testimony was brief, multiple aspects of her testimony
support the reasonable inference that D.G.E. sent her a picture of his penis. K.C.
testified that, after D.G.E. identified himself during their first Snapchat
conversation,
then he asked me if I send nudes. I said no. And he's like – later on he
asked me if it's okay if he sends me some. I'm like, no.
When D.G.E. asked K.C. on Snapchat if she “send[s] nudes,” it certainly is a
reasonable inference – and arguably, the only plausible inference – that he was
asking her if she sent nudes of herself. It is implausible that D.G.E. was asking
K.C. if she would share with him nude images which she had acquired on the
internet or otherwise. The reasonable understanding of his question is that he was
asking her if she would share nude pictures of herself with him. The fact that
D.G.E. then asked “if it’s okay if he sends me some” must be read in the context of
his earlier question. A reasonable inference is that he was proposing to send K.C.
nude pictures of himself.
The pair corresponded on Snapchat again a few days later. The parties’
second Snapchat “conversation” began with them exchanging pictures of
themselves. K.C. testified that she sent D.G.E. “a picture of my face,” and “[t]hen I
asked him to send one of his face, too.” K.C. testified that, after some initial
hesitation, D.G.E. ultimately sent her a picture of his face, although the picture was
dark, and “[t]here was just a light showing a little bit of his face.” D.G.E. then “took
a picture . . . with his wall.”
K.C. testified that “[t]hen I thought he was, . . . going to send a picture of his
face, but he just . . . did that instead.” K.C. explained that D.G.E. sent her “[a] dick
pic.” When asked to explain “what part of the body” the picture depicted, K.C.
testified, “[b]etween his legs.” Clearly reticent, K.C. agreed with counsel that she
was describing “a picture of a penis.”
The Juvenile Officer’s counsel then asked K.C.: “did he represent to you that
that was a picture of him?” She responded: “No, not the picture of his face. I
thought it was going to be his face, but yeah.” K.C. further testified that she
“thought it was a picture of him,” because she thought “he was going to send [her] a
picture of him.”9
9
Although D.G.E. later claimed that the image he sent to K.C. was downloaded from the internet, it is
significant that in her testimony, K.C. was explicit when she or D.G.E. sent an image from a photo archive. Thus,
she testified that she sent D.G.E. a picture of her face “from my images,” and that, when he responded with a picture
of his face, he sent it “[n]ot like on Snap, but . . . from imaging and stuff.” K.C. did not describe the penis picture in
the same way.
2
K.C.’s testimony supports the inference that D.G.E. asked her, early in their
first conversation, if they could exchange nude pictures of themselves. During a
later conversation, after D.G.E. sent her two pictures of himself (one poorly lit, and
one “with his wall”), he then sent her a “dick pic” showing what was “between his
legs.” K.C. testified that D.G.E. represented to her “that that was a picture of him.”
While this testimony may be brief, and may not be a model of precision, I fail
to see how this evidence would not be sufficient for the circuit court, as fact-finder,
to conclude that D.G.E. had sent K.C. a picture of his own penis. K.C. testified that
D.G.E. sent her a picture of what was “between his legs,” and represented to her
that it was a picture of him. This was clearly sufficient evidence to support the
circuit court’s adjudication that D.G.E. had committed acts constituting first-degree
sexual misconduct. No speculation, or forced or unreasonable inferences, are
necessary to support the judgment: K.C. testified that D.G.E. sent her a picture of
what was “between his legs,” and then confirmed that it was a picture of him. It is
noteworthy that, in closing arguments, neither D.G.E.’s counsel, nor his parents
(who appeared pro se), argued that the evidence was insufficient to establish that
the picture D.G.E. sent depicted his own body. Instead, counsel argued that,
because the Snapchat conversation had not been preserved on either K.C.’s or
D.G.E.’s phone, there was insufficient evidence that D.G.E. sent K.C. any pictures
at all.
The majority opinion highlights possible uncertainties in K.C.’s testimony,
and emphasizes that K.C. failed to provide factual details to support her testimony
that the picture D.G.E. sent depicted what was “between his legs.” But any
vagaries in K.C.’s testimony, or her failure to specify the precise basis on which she
concluded that the image was of D.G.E., could have been explored in cross-
examination. And ultimately, any lack of precision in K.C.’s testimony was for the
fact-finder to weigh – not for this Court to seize as a basis to deny K.C.’s testimony
3
any probative value. In State v. Porter, 439 S.W.3d 208 (Mo. 2014), the Missouri
Supreme Court recently rejected the “corroboration rule” in sufficiency-of-the-
evidence cases. The “corroboration rule” (which was applied exclusively in sexual-
offense prosecutions) held that, “‘when the evidence of [the victim] is of a
contradictory nature or leaves the mind of the court clouded with doubt, [the victim]
must be corroborated, or the judgment cannot be sustained.’” Id. at 211 (quoting
State v. Tevis, 136 S.W. 339, 341 (Mo. 1911)).
The Supreme Court rejected the “corroboration rule” because the rule is
fundamentally inconsistent with the standard of review appellate courts are
required to apply in judging the sufficiency of the evidence in criminal cases.
[T]he corroboration rule requires an appellate court to engage in
credibility determinations that are the province of the trier of fact. To
apply the corroboration rule, the court must make what amounts to a
factual determination that the testimony is sufficiently contradictory
and insufficiently corroborated. By requiring appellate courts to make
these determinations, the corroboration rule is inconsistent with the
appropriate standard of review for challenges to the sufficiency of the
evidence. That standard is premised on the notion that appellate
courts are not a “super juror” with the power to override factual
determinations supported by sufficient evidence. Appellate courts
defer to factual determinations because the trier of fact, whether a
judge or jury, is “in a better position not only to judge the credibility of
the witnesses and the persons directly, but also their sincerity and
character and other trial intangibles which may not be completely
revealed by the record.” The corroboration rule requires appellate
courts to make factual determinations they are ill-equipped to make.
Rather than second-guessing the trier of fact, Missouri appellate courts
simply should abide by the well-established standard of review for
challenges to the sufficiency of the evidence to support a criminal
conviction.
Id. at 212 (citations omitted).
The majority applies a mode of analysis similar to that used in the now-
discredited “corroboration rule” cases. The majority’s review of K.C.’s testimony has
left “‘the mind of the court clouded with doubt.’” Porter, 439 S.W.3d at 211 (quoting
Tevis, 136 S.W. at 341). But whether we have doubts concerning the meaning or
4
credibility of K.C.’s testimony is not the issue; the only question we are asked to
answer is whether any reasonable fact-finder could have interpreted K.C.’s
testimony to establish D.G.E.’s guilt, viewing that evidence in the light most
favorable to the court’s judgment. J.N.C.B. v. Juvenile Officer, 403 S.W.3d 120, 124
(Mo. App. W.D. 2013).
Proper application of these principles is illustrated in United States v. White
Bull, 646 F.3d 1082 (8th Cir. 2011), in which a defendant in a sex-abuse prosecution
argued that the prosecution had failed to prove the he had touched a minor’s
genitals. The defendant “argue[d] that because [the victim] drew a circle on a
gender-neutral figure to indicate what she meant by the terms ‘private part’ and
‘middle,’ it was unclear whether she was referring to the ‘groin, lower abdomen,
anus, vulva, thighs, or some other part of her anatomy.’” Id. at 1089. Despite some
potential vagueness in the victim’s testimony, the appellate court held that the
evidence was sufficient to sustain the defendant’s conviction. The court emphasized
that “[t]he question in a sufficiency-of-the-evidence challenge is not whether a
reasonable jury could possibly conceive of an alternative interpretation of the
evidence at trial.” Id. “Instead, we ask whether any reasonable jury could have
concluded that this evidence shows that [defendant] touched . . . [the victim’s]
genitalia.” Id. (emphasis omitted). In countless cases, this Court has held that
evidence was sufficient to support a conviction, even though critical testimony may
have been somewhat vague, inconsistent, or reasonably subject to different
interpretations.10
10
See, e.g., State v. Hankins, 531 S.W.3d 77, 81-82 (Mo. App. S.D. 2017) (rejecting the defendant's
arguments that there was insufficient evidence to support his conviction because the child-victim's identification of
him was inconsistent, and the victim’s description of the area of her body which the defendant touched was
imprecise); State v. White, 466 S.W.3d 682, 691 (Mo. App. E.D. 2015) (rejecting defendant’s argument that “that
there was insufficient evidence to support his convictions . . . because [the victim’s] testimony was vague,
contradictory and did not provide specific dates or details”; “Any inconsistencies were for the jury's determination
as the fact-finder.”); State v. Jackson, 439 S.W.3d 276, 279–80 (Mo. App. E.D. 2014) (holding it was for the jury to
resolve inconsistencies between victim’s trial testimony and out-of-court statements); State v. Benn, 341 S.W.3d
203, 211 (Mo. App. W.D. 2011) (“[I]t was reasonable for the jurors to infer that the victim’s reference to her
5
I am concerned that, contrary to our standard of review, the majority has
adopted the least charitable and most skeptical possible reading of the victim’s
testimony. While the majority may have “conceive[d] of an alternative
interpretation of the evidence,” White Bull, 646 F.3d 1089, there was plainly
sufficient evidence in this case to support the circuit court’s findings.
D.G.E.’s other arguments for reversal are meritless. He argues that his act of
sending a picture of his penis to K.C. does not constitute the act of “expos[ing] his
. . . genitals” within the meaning of § 566.093.1(1), RSMo 2016, because he and K.C.
were not in each other’s physical presence. D.G.E. recognizes that, to rule in his
favor on this argument, we would have to overrule our prior en banc decision in
State v. Bouse, 150 S.W.3d 326 (Mo. App. W.D. 2004). Bouse held that the term
“exposes” in a similarly worded statute (§ 566.083, RSMo 2000), did not require that
the defendant and the victim be physically present together, but was satisfied by
pictures of his penis which the defendant sent to his victim as attachments to an e-
mail. In the course of holding that the term “exposes” could apply to the sharing of
pictures by electronic means, Bouse engaged in an extended discussion of the
history of indecent exposure laws in Missouri, concluding that when it enacted a
new criminal code in 1979, the legislature intentionally chose to abrogate the
common-law requirement that the exposure occur in a public place or in the victim’s
physical presence. 150 S.W.3d at 332-3. While at least one other jurisdiction has
explicitly rejected Bouse’s interpretation of the term “exposes,”11 I see no reason to
re-examine Bouse, which interpreted a statute which has not been materially
amended since the decision issued.
‘private spot,’ or ‘bad spot,’ coupled with her action of pointing to her genital region between her legs and circling
the same area on an anatomical drawing, indicated that [the defendant] licked her genitals.”).
11
State v. Lopez, 907 N.W.2d 112, 118-22 (Iowa 2018); see also State v. Legassie, 171 A.3d 589, 594-96
(Me. 2017) (concluding that transmission of digital image of defendant’s genitals by Facebook messaging did not
constitute “exposure”).
6
Finally, D.G.E. argues that he received ineffective assistance of counsel,
based on his attorney’s failure to object to certain testimony by K.C.’s step-sister,
A.B. As explained above, however, the circuit court’s adjudication is fully
sustainable without reference to A.B.’s testimony. D.G.E. has therefore failed to
demonstrate that he was prejudiced by his counsel’s failure to object to A.B.’s
testimony, even if the failure to object was otherwise incompetent.
Alok Ahuja, Judge
7