Opinion
NO. 2011-CA-0983
03-07-2012
STATE OF LOUISIANA IN THE INTEREST OF J.G.
LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY OF ORLEANS PARISH MATTHEW CAPLAN ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH Counsel for State of Louisiana ALI PEARSON JUVENILE REGIONAL SERVICES Counsel for Defendant/Appellant
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2011-108-02-DQ-E, SECTION "E"
HONORABLE TRACEY FLEMINGS-DAVILLIER, JUDGE
JAMES F. MCKAY III
JUDGE
(Court composed of Judge James F. McKay III, Judge Dennis R. Bagneris, Sr.,
Judge Edwin A. Lombard)
LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY OF ORLEANS PARISH
MATTHEW CAPLAN
ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH
Counsel for State of Louisiana
ALI PEARSON
JUVENILE REGIONAL SERVICES
Counsel for Defendant/Appellant
AFFIRMED
The defendant, J.G. appeals the judgment of the trial court adjudicating her delinquent. Based upon the record before this Court we affirm the trial court's judgment.
On July 29, 2010, the defendant, J.G. and the victim, C.H. both worked at the Tambourine and Fan Summer Camp Program at 900 North Villere Street. C.H. testified that on that day J.G. asked to borrow C.H.'s cell phone. C.H. gave the defendant her Motorola T-Mobile CLIQ, valued at less than five-hundred dollars ($500.00). C.H. claims that J.G. left the premises without returning the phone. C.H. ultimately called the police to report the theft.
As J.G was a juvenile at the time of the commission of the offense, she will be referred to by her initials. La. C.Ch. art. 412.
As C.H. was a juvenile at the time of the commission of the theft against her, she will be referred to by her initials. La. C.Ch. art. 412.
Officer Eugene Smothers investigated C.H.'s complaint. Officer Smothers used J.G.'s application for employment in an attempt to make contact with J.G. After unsuccessfully trying to contact her through emergency contact numbers and at her listed home address, an arrest warrant was issued for J.G.
On April 15, 2011, J.G. was petitioned with one count of theft in violation of La. R.S. 14:67. On June 14, 2011, J.G. appeared in juvenile court for an adjudication hearing. At the conclusion of the hearing J.G. was adjudicated delinquent as charged. The trial court entered a disposition of commitment to the Department of Public Safety and Corrections for a period of time not to exceed six (6) months. The execution of the commitment was suspended and J.G. was placed under active probation under the supervision of Office of Juvenile Justice for six (6) months.
STANDARD OF REVIEW
Pertinent to this appeal, the proper standard of review of an adjudication in a delinquency proceeding, as provided by Louisiana Const. art. V, § 10 B, is civil, not criminal. See State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). The Louisiana Supreme Court there decided that
Except as otherwise provided by the constitution, this Court's jurisdiction in civil cases extends to both law and facts; in criminal matters, its appellate jurisdiction extends only to questions of law. La. Const. 1974, art. 5, s. 5(C). Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const. 1974, art. 5, ss. 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this Court in juvenile delinquency proceedings extends to both the law and the facts. Cf. State in the Interest of Williams, 325 So.2d 854 (La. App. 2d Cir. 1976).
See also In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400 ("The hallmark of special juvenile procedures is their non-criminal nature.").
In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. R.S.14:67. The standard for the State's burden of proof in a juvenile delinquency proceeding is "no less strenuous then the standard of proof required in a criminal proceeding against an adult." State in the Interest of G.M., (La.App. 5 Cir. 4/14/93), 617 So.2d 219, 221; State in the Interest of A.G., 630 So.2d 909, 910 (La.App. 4th Cir. 12/30/93). As a court of review, we grant great deference to the juvenile court's factual findings, credibility determinations, and assessment of witness testimony. State ex rel. W.B., 2008-1458, p. 1 (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61, writ denied, 2009-1129 (La.1/22/10), 25 So.3d 139.
In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard of review is applicable in juvenile delinquency cases. State in the Interest of T.E., 2000-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417. In addition, La. Const. art. V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong. See State in the Interest of Batiste, 367 So.2d 784 (La.1979); State in the Interest of S.S., 557 So.2d 407 (La.App. 4th Cir.1990); State ex rel. T.W., 2009-0532 (La.App. 3 Cir. 10/7/09), 21 So.3d 465; State ex rel. E.D.C., 39,892 (La.App. 2 Cir. 5/11/05), 903 So.2d 571. In sum, we apply the "clearly wrong-manifest error" standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.
ASSIGNMENTS OF ERROR
The defendant asserts three assignments of error for review.
In her first assignment of error, J.G. asserts that the trial court erred in finding that she did not carry her burden of proof articulated in La. R.S. 15:439 which states that " The burden of proof is upon him alleging the existence of a fact."
In any criminal prosecution, the State must sustain the heavy burden of proving every element of the crime charged beyond a reasonable doubt. State v. Hollingsworth, 337 So.2d 461, 464 (La.1976). The crime of theft, pursuant to La. R.S. 14:67, is as follows:
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
The defendant is asserting that evidence adduced against her was insufficient to sustain delinquency adjudication.
Viewed in the light more favorable to the prosecution, the State produced evidence sufficient to convince the juvenile court that all elements of the crime were proven beyond a reasonable doubt. The State established that the defendant did take a thing of value, a cell phone. Although C.H. admitted to loaning J.G. her cell phone, she expected the phone to be returned. The State established through the testimony of C.H. and Officer Smothers, the investigating officer, that J.G. obtained the cell phone through means of fraudulent conduct, practices, or misrepresentations. J.G. borrowed C.H.'s cell phone and by her own admission J.G. testified that she was out of minutes and had to call her mother to inform her that there was an early dismissal from summer camp. And finally, the State proved that J.G. took C.H.'s cell phone with the intent to deprive her permanently of the cell phone. The trial court found that the State did meet its burden of proof by establishing all of the elements of the crime of theft.
It appears from the record that this day, July 29, 2010, was the last day of that camp program.
Conversely, the defendant argued that she had given the cell phone to a young boy at the camp to return the phone to C.H., but, based on her testimony, she failed to remember the name of the child. In fact, she failed to present any supportive evidence or witnesses to support her assertions that she either attempted to or did in fact return the phone to C.H. other than her own uncorroborated testimony. Therefore, the defendant failed to carry her burden pursuant to La. R.S. 15:439 as the burden of proof is upon him alleging the existence of a fact. This assignment of error is without merit.
In the appellant's second assignment of error, she asserts that the trial court erred in allowing the State to introduce evidence of J.G.'s prior deferred disposition, which was dismissed pursuant to La. Ch. C. art. 896.
First and foremost, pursuant to La. C. Crim. Pro. art. 61, captioned the "District attorney; powers and duties," the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.
The trier of fact, in this case, the juvenile court, is charged with making credibility determinations. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Brumfield, 93-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d 312. Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. Id. A trier of fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984). We recognize that the juvenile judge observes the conduct and demeanor of the witnesses and is thus in a far better position to determine credibility and weigh the evidence. State in the Interest of D.L., 30,878, p. 3 (La.App. 2 Cir. 6/24/98), 715 So.2d 623, 626. Thus, we afford great deference to the judge's findings of fact and to his determination of credibility of the witnesses and the weight to be given to their testimony. State in the Interest of J.N., 07-1229, p. 8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915
The record reflects that the defendant objected to the State's introduction of the defendant's prior juvenile adjudicated delinquency for theft, which was entered into by the defendant as a Deferred Dispositional Agreement and dismissed pursuant to La. Ch. C. art. 896.
In the instant matter, the defendant took the stand in her own defense. Her credibility was called into question and it was within the trial court's discretion to take into account the defendant's entire prior juvenile record. See. La. C.E. art. 609.1.
The defendant argues that pursuant to La. C. E. art. 609.1(F), as a juvenile, the record can only be used pursuant to habitual offender law. However, the article specifically says generally that the record is not admissible. We can only interpret this to mean that it is clearly covered by an abuse of discretion standard and as such we find that the juvenile judge, as the sole trier of fact, has complete access to the juvenile's record. Therefore, we find no abuse of discretion in the trial court's decision to allow J.G.'s prior record into evidence.
Art. 609.1. Attacking credibility by evidence of conviction of crime in criminal cases
A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense:
(1) When the witness has denied the conviction or denied recollection thereof;
(2) When the witness has testified to exculpatory facts or circumstances surrounding the conviction; or
(3) When the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.
D. Effect of pending postconviction relief procedures. The pendency of an appeal or other postconviction relief procedures does not render the conviction inadmissible, but may be introduced as bearing upon the weight to be given the evidence of the conviction.
E. Effect of pardon or annulment. When a pardon or annulment, based upon a finding of innocence, has been granted, evidence of that conviction is not admissible to attack the credibility of the witness.
F. Juvenile adjudications. Evidence of juvenile adjudications of delinquency is generally not admissible under this Article, except for use in proceedings brought pursuant to the habitual offender law, R.S. 15:529.1.
In her third assignment of error, J.G. asserts that the trial court erred in adjudicating her delinquent of theft as the evidence adduced at trial was insufficient to sustain the adjudication.
As noted above, the State met its burden of proof to adjudicate the defendant delinquent pursuant to La. R.S. 14:67, to wit, theft of a cell phone.
Based on the record before this Court, we conclude that the juvenile court judge, as the rational trier of fact, found, after examining both the facts and the law, that the essential elements of the charged offenses were proven beyond a reasonable doubt. We cannot conclude that this decision was manifestly erroneous or clearly wrong. Accordingly, we affirm the judgment adjudicating J.G. delinquent for criminal theft.
AFFIRMED