Opinion
NO. 2011-CA-0873
12-14-2011
STATE OF LOUISIANA IN THE INTEREST OF K.E.
Katherine M. Franks JUVENILE REGIONAL SERVICES COUNSEL FOR APPELLANT Leon A. Cannizzaro, Jr. District Attorney Brad Scott Assistant District Attorney COUNSEL FOR APPELLEE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2011-075-02-DQ-B, SECTION "B"
Honorable Tammy M. Stewart, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard)
Katherine M. Franks
JUVENILE REGIONAL SERVICES
COUNSEL FOR APPELLANT
Leon A. Cannizzaro, Jr.
District Attorney
Brad Scott
Assistant District Attorney
COUNSEL FOR APPELLEE
AFFIRMED
The defendant, K.E., was charged by delinquency petition with simple battery, a violation of La. R.S. 14:35. After a disposition hearing, the juvenile court adjudicated K.E. as delinquent for having committed simple battery and committed K.E. to the Department of Public Safety and Corrections for six months; however, the execution of the sentence was suspended and K.E. was placed on active probation for one year. K.E. was also asked to make monetary restitution in the amount of $60.00 through the Court's restitution program. For the following reasons, we hereby affirm the judgment of the juvenile court.
Pursuant to Uniform Rules of the Courts of Appeal—Rules 5-1 and 5-2, the initials of the juvenile are used in this opinion in lieu of his name.
The Court also noted that if K.E. successfully completed the first six months of probation, the Court would transition him to six months inactive probation for the remainder of the sentence.
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FACTS
Two witnesses testified at the hearing, Derek Barthe, an armed security guard for Bayou State Security, and the defendant K.E. Mr. Barthe testified that he was employed as a security guard in the French Quarter on March 6 and 7, 2011, when he noticed a young man spray painting on junction boxes and walls. Mr. Barthe testified that although the young man got away from him the night of the 6th, he again witnessed him later that night (early morning of March 7th), at the Elysian Fields Parking Lot, spray painting the same exact emblem that he was spray painting earlier. At that point, Mr. Barthe testified that he grabbed him by the arm, asked him why he was spray painting on the walls, and told him to put his hands behind his back. Mr. Barthe testified that K.E. hit him in the arm and twice in his side, causing Mr. Barthe's phone to be knocked off his belt. Thereafter, Mr. Barthe testified that K.E.'s brother "hit me in the back of the head and in the back and then the white guy (friend of K.E.'s brother) kicked me in the - behind my knee driving my knee into the ground." At that point, Mr. Barthe testified that two guys, who worked at Dragon's Den, ran to his assistance and helped him restrain K.E., who was then placed into handcuffs. According to Mr. Barthe, K.E.'s brother and friend ran away with Mr. Barthe's cell phone and spray paint. Mr. Barthe testified that he had damage to his property consisting of his pants (which cost $59 to replace) and his cell phone, which was never recovered.
K.E. testified that he, his brother, and friend were waiting to be picked up by his grandmother at 12:00 am on March 7, 2011 when a stranger (Mr. Barthe) asked him why he was spray painting on other people's property and slammed him into a wall. K.E. denied spray painting anything on the day in question. K.E. testified that his brother and friend ran away but that his brother came back to "try to get the house key, and the guy (Mr. Barthe) started chasing him." K.E. testified that two guys ran from Dragon's Den and slammed him on the ground in order to assist Mr. Barthe in holding him down. K.E. testified that he was confused when Mr. Barthe approached him because he did not know who he was. When asked whether K.E. attempted to hit or break away from Mr. Barthe, he testified "[n]o, I didn't. I have no power to, because he had both my hands."
On appeal, K.E. argues that the evidence presented at trial established that Mr. Barthe, without authorization, grabbed and detained him and that he acted in self-defense in resisting the unlawful arrest. K.E. further argues that the evidence adduced at trial does not support the adjudication of delinquency.
STANDARD OF REVIEW
For a court to adjudicate a child delinquent, "the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition." La. Ch.C. art. 883. "The criteria for evaluating sufficiency of evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all elements of the crime proved beyond a reasonable doubt." State in the Interest of D.M., 02-2528, p. 8 (La. App. 4 Cir. 7/2/03), 851 So.2d 1216, 1221, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Appellate review ofjuvenile cases extends to law and fact. La. Const. Art. V, § 10(B); State in the Interest of Batiste, 367 So.2d 784 (La.1979). However, great deference is given to the juvenile court judge's fact findings and determinations of credibility. State in the Interest of D.L., 30,878, p. 3 (La. App 2 Cir. 6/24/98), 715 So.2d 623, 626.
La. R.S. 14:19 provides as follows:
A. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.
Although this Court is split on the issue of whether the State or the defense has the burden of proving self-defense in a non-homicide case, we have analyzed the evidence under both standards of review and find that the evidence sufficiently establishes that K.E. did not act in self-defense. Specifically, we agree with the State's argument that K.E. single handedly defeated his claim of self-defense when he testified that he never hit Mr. Barthe. By testifying that he never hit Mr. Barthe, K.E. admitted that he did not subjectively think that any force was necessary. Because there is no evidence in the record to reflect that K.E. believed force was necessary under the circumstances, we find no merit to his argument that he acted in self-defense. We also find no merit in K.E.'s argument that he was resisting an unlawful arrest. Mr. Barthe was simply detaining K.E. until the police arrived to arrest him upon seeing K.E. spray painting, for the second time, on private property. Mr. Barthe never told K.E. that he was under arrest and never held himself out to have the power to arrest.
The juvenile court adjudicated K.E. guilty of committing a battery on Mr. Barthe. La. R.S. 14:33 defines battery as "the intentional use of force or violence upon the person of another or the intentional administration of a poison or other noxious liquid or substance to another." La. R.S. 14:35 defines simple battery as "a battery committed without the consent of the victim."
The juvenile court judge was in the best position to judge the credibility of the witnesses. Given that Mr. Barthe testified that K.E. struck him three times and knocked his phone off of his belt, we do not find that the juvenile court judge erred in finding that K.E.'s behavior constituted a battery upon Mr. Barthe. Viewing the evidence in a light most favorable to the prosecution, we find that the juvenile court judge did not err by adjudicating K.E. delinquent.
AFFIRMED