Opinion
2018 KJ 1431
02-28-2019
STATE OF LOUISIANA IN THE INTEREST OF D.P.
Hillar C. Moore, III District Attorney Dylan C. Alge Courtney Myers Assistant District Attorneys Baton Rouge, LA Attorneys for Plaintiff State of Louisiana Katherine M. Franks Madisonville, LA Attorney for Defendant/Appellant D.P.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Juvenile Court In and for the Parish of East Baton Rouge State of Louisiana
No. JU111878, Div. "B" The Honorable Pamela Taylor Johnson, Judge Presiding Hillar C. Moore, III
District Attorney
Dylan C. Alge
Courtney Myers
Assistant District Attorneys
Baton Rouge, LA Attorneys for Plaintiff
State of Louisiana Katherine M. Franks
Madisonville, LA Attorney for Defendant/Appellant
D.P. BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The juvenile, D.P., was charged by juvenile petition with four counts of armed robbery, in violation of La. R.S. 14:64. He denied the allegations and, following an adjudication hearing, was adjudicated a delinquent on all four counts. The juvenile court ordered the juvenile to serve a twenty-four-month commitment for each adjudication, with the terms to run concurrently. D.P. now appeals, designating one assignment of error. We affirm the adjudications. We vacate the dispositions and remand for a new disposition hearing, with instructions.
FACTS
On the night of August 26, 2017, Bronan Francois was working at The Spanish Moon, a nightclub on Highland Road in Baton Rouge. According to Bronan, at about 10:00 p.m., while he was outside on break, a tall man wearing a ski mask (with eyes and mouth holes) approached him and lifted his shirt to reveal a silver pistol. Bronan gave $30 to the perpetrator, who then left. Bronan testified the perpetrator was a light-skinned black male who appeared to be wearing a couple layers of clothing.
On August 27, 2017 at about 2:00 a.m., Adam Fontenot left The Spanish Moon and got into his car. According to Adam, a person in a ski mask (with eyes and mouth holes) opened Adam's car door, pointed a handgun at him, and told him to give him whatever cash he had. Adam gave his wallet to the perpetrator, who took the cash, tossed the wallet back to Adam and told him to leave.
Two days later, on August 29, 2017, at about 11:00 p.m., Tiffany Beshear and her friend Olivia Crumpesten left The Spanish Moon and got into Tiffany's car. Tiffany was driving. According to Tiffany, before Olivia could close her door, a light to medium skinned black man wearing a ski mask (with eyes and mouth holes) pulled opened Olivia's door and pointed a silver revolver in her face, demanding money. Olivia testified she did not have any money, so she offered the perpetrator her credit card. Tiffany did not have any money either; she gave the perpetrator her purse. When he looked through the purse and saw there was no cash, he threw the purse back at Tiffany and told her they could go.
Two days later, on August 31, 2017, at about 2:00 a.m., Officer Caleb Deroussel and Officer Michael Zytler, both with the Baton Rouge Police Department and in separate units on Highland Road, received a call about a suspicious person behind a dumpster on The Spanish Moon property. As Officer Zytler neared the club, he saw a person, later identified as fifteen-year-old D.P., throw some items. D.P. was standing near a canal, or drainage ditch, that runs behind The Spanish Moon. The officers apprehended D.P. and searched the canal. They found a ski mask and a .25 caliber semi-automatic handgun. D.P. was placed in Officer Deroussel's police unit. Adam Fontenot, who had been robbed four days before, was at The Spanish Moon again at this time. Adam identified the gun found in the canal as the same gun that was pointed at him when he was robbed; and he identified D.P. in the unit as having a similar build, height, and skin color as the person who had robbed him. D.P. denied committing any of the offenses and was ultimately arrested.
At the adjudication hearing, D.P.'s mother testified that she had previously lived on Myrtle Avenue with her four children, including D.P. Her house was about a half-block from The Spanish Moon. According to D.P.'s mother, when the police searched her house after D.P.'s arrest, they found a gun in a dresser drawer in the bedroom of her older son (not D.P.). Corporal Andrew DeSalvo, with the Baton Rouge Police Department, testified that this gun, found in D.P.'s home in a drawer in a "guest room" was a .38 Special revolver.
D.P. did not testify. Defense counsel did not cross-examine any of the witnesses who were robbed.
ASSIGNMENT OF ERROR
In his sole assignment of error, D.P. argues there was insufficient evidence to adjudicate him delinquent for the offenses of armed robbery. Specifically, D.P. contends that the State did not prove his identity as the person who robbed the victims.
In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch. Code art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T., 95-2187 (La. App. 1 Cir. 6/28/96), 677 So.2d 1071, 1074.
In State in Interest of Giangrosso, 385 So.2d 471, 476 (La. App. 1 Cir. 1980), affirmed, 395 So.2d 709 (La. 1981), we stated:
In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974. We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt.Thereafter, in State in Interest of Giangrosso, 395 So.2d 709, 714 (La. 1981), the Supreme Court affirmed this court, concluding that a rational trier of fact could have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State in Interest of Batiste, 367 So.2d 784 (La. 1979). See In Interest of L.C., 96-2511 (La. App. 1 Cir. 6/20/97), 696 So.2d 668, 669-70.
Accordingly, on appeal the standard of review for the sufficiency of evidence, enunciated in Jackson v. Virginia, i.e., viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt, is applicable to delinquency cases. See La. Code Crim. P. art. 821. Where the issue is the defendant's identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. See State v. Jones, 94-1098 (La. App. 1 Cir. 6/23/95), 658 So.2d 307, 311, writ denied, 95-2280 (La. 1/12/96), 666 So.2d 320. Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La. App. 1 Cir. 11/7/97), 704 So.2d 786, 789-90.
In the absence of specific procedures provided by the Louisiana Children's Code, the court shall proceed in accordance with the Louisiana Code of Criminal Procedure. See La. Ch. Code art. 803.
D.P. argues that his identity as the perpetrator was not established. According to D.P., the witnesses had only moments to view the robber, who was wearing a ski mask. D.P. avers that Tiffany Beshear described the robber as a tall and skinny black man. D.P. suggests his mother indicated that any of her four sons could have been in possession of the gun, which was left in a sofa given to her (the mother) by her boss, and that other guns and a ski mask were found in his brother's room, not his (D.P.'s) room. While none of the witnesses could identify D.P. because he had his face covered, the circumstantial evidence was sufficient to prove that it was D.P. who committed the armed robberies.
In his brief, D.P. addresses the five-factor test in determining the reliability of identification of a suspect discussed in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). D.P.'s reliance on Manson is misplaced. This decision is concerned with the admissibility, not the sufficiency, of identification testimony. Once the identification testimony is introduced into evidence, as in the instant matter, a Brathwaite analysis becomes irrelevant. There was no hearing conducted to suppress the identification of D.P., so the issue of the admissibility of such evidence is not before us. See State v. White, 2016-0611 (La. App. 1 Cir. 10/28/16), 206 So.3d 387, 390-91.
Both Bronan and Adam described the gun used by the perpetrator as a silver pistol. The State introduced (as State's Exhibit 3) the silver .25 caliber semi-automatic handgun that the police found in the canal where D.P. was apprehended on August 31, 2017. At the adjudication hearing, both Bronan and Adam identified the gun marked as State's Exhibit 3 as the gun the robber possessed. Adam also testified that four days after he was first robbed on August 27, 2017, he was at The Spanish Moon again when D.P. had been apprehended by the canal. At that time, the police officers showed D.P. and the .25 caliber semi-automatic handgun to Adam. Adam testified that the gun was the same gun used to rob him, and that the person (D.P.) in the police unit had the same build, height, and skin color as the person who had robbed him.
Tiffany and Olivia, who were together at The Spanish Moon two days after Adam had been robbed, described the gun pulled on them as a small silver gun with a revolver. The State introduced (as State's Exhibit 2) the .38 Special revolver that had been found by the police in D.P.'s home. At the adjudication hearing, the State showed this .38 Special revolver to Tiffany and Olivia, who both identified it as the gun the perpetrator pointed at them.
D.P. was spotted at about 2:00 a.m. by the police near the canal that runs behind The Spanish Moon. When Officer Zytler passed D.P. in his unit, he saw D.P. duck into the "corridors" and throw some items. Officer Zytler and Officer Deroussel found in the canal a ski mask and the .25 caliber semi-automatic handgun, identified by Bronan and Adam. According to Officer Zytler, the ski mask was found on the ground at the southern part of the canal, within one foot of where D.P. had been standing. According to Officer Deroussel, as he was patting down D.P. for weapons, D.P., unsolicited, stated that he did not "have anything to do with what was going on around here."
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 trier of fact. State ex rel. T.C., 2009-1669 (La. App. 4 Cir. 2/16/11), 60 So.3d 1260, 1263. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Id; See also Tibbs v. Florida, 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d 652 (1982). 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. T.C., 60 So.3d at 1263. 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. Id. See State v. Vessell, 450 So.2d 938, 943 (La. 1984). In the absence of internal contradictions and irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State ex rel. D.J., 2000-1592 (La. App. 5 Cir. 3/28/01), 783 So.2d 558, 562.
In adjudicating D.P. delinquent, the juvenile court, as the trier of fact, clearly accepted the testimony of the State's witnesses and found that the essential elements of armed robbery and, particularly, the identity of D.P., were proven beyond a reasonable doubt. After a thorough review of the record, we find the evidence supports the court's adjudications. Additionally, after undertaking the mandated review of the law and facts in a juvenile proceeding, we cannot conclude that the court's finding were manifestly erroneous or clearly wrong in its adjudications of delinquency based on the commissions of armed robbery.
The assignment of error is without merit.
DISPOSITION ERRORS
In its dispositions, the juvenile court failed to require that D.P. be committed without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, as mandated by La. Ch. Code art. 897.1(B). Accordingly, we remand to the juvenile court for correction of the illegally lenient dispositions originally imposed. The juvenile court further failed to require that D.P. be "confined in secure placement," as mandated by Article 897.1(B).
Louisiana Children's Code article 897.1 was amended by 2018 La. Acts, No. 467, and applies to all children in the custody of the Department of Public Safety and Corrections, office of juvenile justice, on or after August 1, 2018. --------
DECREE
For the foregoing reasons, the adjudications are affirmed. The dispositions, however, are vacated, and this matter is remanded for a new disposition hearing, with the following instructions. The juvenile court shall inform D.P. of the two-year prescriptive period for filing postconviction relief as required by La. Code Crim. P. art. 930.8(C). Further, the judgment of dispositions and minute entry should reflect this notice regarding postconviction relief given to D.P. Finally, the new dispositions shall state that they be imposed without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence; and further that the dispositions require that D.P. be "confined in secure placement," as mandated by Article 897.1(B).
ADJUDICATIONS AFFIRMED, DISPOSITIONS VACATED, AND REMANDED FOR A NEW DISPOSITION HEARING, WITH INSTRUCTIONS.