In the Interest of: D.J.T.S. v. Juvenile Officer

• Court: Missouri Court of Appeals
• Decided: April 25, 2023
• Docket: WD85142
• Status: Published

Opinion

Corrected Opinion May 22, 2023

MISSOURI COURT OF APPEALS WESTERN DISTRICT

IN THE INTEREST OF: D.J.T.S., ) ) Appellant, ) ) v. ) WD85142 ) JUVENILE OFFICER, ) Filed: April 25, 2023 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY THE HONORABLE PATRICK K. ROBB, JUDGE

BEFORE: DIVISION ONE: W. DOUGLAS THOMSON, PRESIDING JUDGE, LISA WHITE HARDWICK, JUDGE, AND KAREN KING MITCHELL, JUDGE

D.J.T.S. appeals from the juvenile court’s judgment finding that he committed the

delinquency offense of making a terrorist threat. He contends the juvenile court erred in

finding him delinquent because his statements about shooting up a basketball game did

not communicate a true threat and were protected by his constitutional right of free

speech. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In December 2021, the Juvenile Officer of Buchanan County (“Juvenile Officer”)

filed a petition alleging that 14-year-old D.J.T.S. committed the delinquency offense of making a terrorist threat in the second degree. §§ 211.031.1(3) and 574.120. 1 The

petition alleged that D.J.T.S. made an “express or implied threat . . . by communicating to

other students that he was going to ‘shoot up’ the basketball game at Bode Middle School

later that evening and kill multiple people, and in doing so, [D.J.T.S] recklessly

disregarded the risk of causing the evacuation, quarantine or closure of Bode Middle

School.” At the adjudication hearing, the juvenile court heard testimony from three

students and the school principal about D.J.T.S.’s statements and conduct during the two-

day period before a girls’ basketball game was scheduled to take place on December 15,

2021.

V.B., a student and basketball player, testified that, “the day before [the basketball

game], [D.J.T.S.] told a lot of people not to come to school.” The next day during

science class, D.J.T.S. told her about “his” gun, and that he was going to “cut the

cameras” at the basketball game and “kill people.” He showed her pictures of the gun

and said he was going to shoot “180 people or more.” He also asked her “a lot of

questions about the game.” She reported the threat to school officials because D.J.T.S.’s

statements made her feel scared and uncomfortable about what might happen.

D.C., a student in the same science class, testified that D.J.T.S. threatened to shoot

up “the basketball game that was later that night at our school.” When the incident was

being investigated, D.C. gave a statement to the vice-principal regarding the threat.

Another student, P.K., testified that D.J.T.S. said he had a gun during the science class

1 All statutory references are to the Revised Statutes of Missouri 2016, as updated by the 2022 Cumulative Supplement.

2 and that he was going to shoot up the girls’ basketball game.” When questioned about

the incident, P.K. told school officials that he thought D.J.T.S. was joking.

Dr. Sarah Barmann-Smith, the principal of Bode Middle School, testified that she

called D.J.T.S. into the office on December 15, 2021, to investigate reports that he had

warned students not to come to school because he was going to use his weapon at the

school basketball game. D.J.T.S. acknowledged making the statement. He first told

Barmann-Smith that he didn’t know why he said it and then subsequently said he was

joking about the shooting. In response to questions, he showed Barmann-Smith various

pictures on his phone of him holding a gun. He told her that the gun belonged to his

father. D.J.T.S. was taken into custody by the school resource officer (a St. Joseph police

officer), shortly after talking with Barmann-Smith.

D.J.T.S. did not put on any evidence at the adjudication hearing. After closing

arguments, the juvenile court found the allegations to be true beyond a reasonable doubt

and assumed jurisdiction over D.J.T.S. The juvenile court found that D.J.T.S.’s

comments “went beyond making a [joke].” The juvenile court noted that D.J.T.S.

“actually showed pictures that logically would make people think that he has the

capability to follow through with those statements” and acknowledged that two of the

three students who heard the threat were concerned enough to pass the information to

others. The court also found that D.J.T.S. communicated a plan when he stated that he

would “cut the cameras” prior to commencing the shooting. The juvenile court

concluded that “it’s reasonable to infer that if [D.J.T.S.] would have not been brought

into custody and would have been free in light of that information of the pictures, the

3 statements, the threat, that it’s highly likely that the basketball game would not have

taken place.”

After a dispositional hearing, the court placed D.J.T.S. on probation under

supervision by the Juvenile Officer. D.J.T.S. appeals.

STANDARD OF REVIEW

“Juvenile proceedings are reviewed 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.” D.C.M., 578 S.W.3d at 786 (citation

and quotations omitted). Questions of law are reviewed de novo. B.O. v. Juvenile Office,

595 S.W.3d 506, 509 (Mo. App. 2020) (citation omitted).

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.” D.C.M., 578 S.W.3d at 786 (citations omitted).

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

4 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 his sole point on appeal, D.J.T.S. contends the juvenile court erred in finding

him delinquent because his statements about shooting up his middle school basketball

game did not communicate a true terroristic threat. Instead, D.J.T.S. contends he was

joking and that his comments were not serious enough to be unprotected by the

constitutional right of free speech.

To prove the delinquency offense of making a terrorist threat in the second degree,

the juvenile officer was required to show beyond a reasonable doubt that D.J.T.S. “(1)

was aware he was communicating an express or implied threat to cause an incident

endangering human life and (2) consciously disregarded a substantial and unjustifiable

risk of causing the evacuation or closure of the school.” D.C.M., 578 S.W.3d at 786-87;

Section 574.120.1(1). Evidence of “definite, declaratory statement[s]” can indicate the

speaker’s “awareness of the intent to cause danger to human life.” Id. “[T]he desired

reaction of the listener” may also “constitute some evidence of the intent of the person

making the statement.” Id. Additionally, it is not necessary for the building to have been

evacuated or placed on lockdown in order to prove the offense of making a terrorist threat

in the second degree. D.C.M., 578 S.W.3d at 787.

When D.J.T.S told his classmates at Bode Middle School that he was going to

shoot up the girls’ basketball game on December 15, 2021, he communicated an express

threat to cause an incident endangering human life. V.B. testified that D.J.T.S. told her of

5 his plan to “cut the cameras” at her basketball game and kill “180 people or more.” He

showed her pictures of the gun that he planned to use in the shooting. He gave a specific

date, time frame, and location to carry out his plans and warned students not to come to

school on December 15, 2021. During his science class on that date, he also told fellow

students D.C. and P.K. that he had a gun and he intended to shoot up the girls’ basketball

game that evening. Given the collective testimony, the evidence was sufficient to show

that D.J.T.S. made definite, declaratory statements of his intent to target the basketball

game attendees and endanger human lives.

The record also indicates that D.J.T.S. intended to frighten students with his

threats and that he achieved that objective. After hearing the statements, V.B. felt

“scared” and “uncomfortable” about what would happen at her basketball game. She and

D.C. both reported the threats to school authorities. Although D.J.T.S. later told the

school principal that he was joking about the shooting, the fact that he showed photos of

himself with a gun was a sufficient basis for the juvenile court to determine that his

actions “would make people think that he has the capability to follow through with [his]

statements.” D.J.T.S. contends the court erred in determining that his statements

constituted a “true threat” outside the protections of the First Amendment.

Under the First Amendment, the “government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.” State v. Metzinger,

456 S.W.3d 84, 95 (Mo. App. E.D. 2015) (citations omitted). “The protections afforded

by the First Amendment, however, are not absolute.” Id. “There are certain well-defined

and narrowly limited classes of speech, the prevention and punishment of which have

6 never been thought to raise any Constitutional problem.” Id. “These limited areas

include speech expressed as part of a crime, obscene expression, incitement, and fraud.”

Novak v. City of Parma, 932 F.3d 421, 427 (6th Cir. 2019) (internal quotation marks and

citation omitted).

Accordingly, “the First Amendment allows states to ban ‘true threats.’”

Metzinger, 456 S.W.3d. at 95 (citing Virginia v. Black, 538 U.S. 343, 358 (2003)). “True

threats encompass those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular individual or

group of individuals.” Black, 538 U.S. at 359 (internal quotation marks and citations

omitted). These threats “must be distinguished from idle, careless talk, exaggeration,

jests, or political hyperbole.” Metzinger, 456 S.W.3d at 95 n. 10. A true threat is proven

by evidence of a declaratory statement that expresses “an intent to cause an incident

involving danger to human life,” and showing that the listener was placed “in fear that the

threat would be carried out.” Id. at 96.

As discussed herein and by the juvenile court, D.J.T.S. communicated location-

specific and detailed threats to commit a violent crime by using his gun to shoot up the

Bode Middle School basketball game on December 15, 2021. He vowed to kill more

than 180 people. He warned students not to come to school, showed photos of himself

holding his gun, and repeated the threat to multiple students his science class. D.J.T.S.

confirmed that he engaged in this conduct, and he showed photos of the gun to the school

principal. The principal found the incident alarming enough that she promptly reported it

to police, and D.J.T.S. was taken into custody to prevent any violence or disruption of the

7 basketball game. Based on this evidence, the juvenile court drew the reasonable

inference “that if [D.J.T.S had] not been brought into custody and would have been free

in light of the information of the pictures, the statements, the threat, it’s highly likely that

the basketball game would not have taken place.”

The record establishes that more than one individual who heard D.J.T.S.’s

statements believed them to be a true threat. Novak, 932 F.3d at 427. Moreover, at the

time he made the statements, D.J.T.S. gave no indication that he intended the threats as a

joke or exaggeration. Consequently, D.J.T.S.’s statements to students that he was going

to shoot up the basketball game went beyond the scope of protected speech. Id. Viewed

in the light most favorable to the judgment, there was sufficient evidence for the juvenile

court to find that D.J.T.S. committed the offense of making a terrorist threat in the second

degree. We deny the point on appeal.

CONCLUSION

The judgment is affirmed.

______________________________________________ LISA WHITE HARDWICK, JUDGE All Concur.