In re E.M.

Full title: STATE OF LOUISIANA, IN THE INTEREST OF E.M.

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Jun 1, 2018

2018 KJ 0171 (La. Ct. App. Jun. 1, 2018)

Opinion

2018 KJ 0171

06-01-2018

STATE OF LOUISIANA, IN THE INTEREST OF E.M.

Annette Roach Louisiana Appellate Project Lake Charles, Louisiana Attorney for Appellant, Juvenile - E.M. Hillar C. Moore, III, District Attorney and Cristopher J.M. Casler, Assistant District Attorney Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana

WELCH, J.

NOT DESIGNATED FOR PUBLICATION Appealed from The Juvenile Court In and for the Parish of East Baton Rouge, State of Louisiana
Docket Number JU111651 | Division A The Honorable Adam J. Haney, Judge Presiding Annette Roach
Louisiana Appellate Project
Lake Charles, Louisiana Attorney for Appellant,
Juvenile - E.M. Hillar C. Moore, III, District Attorney

and
Cristopher J.M. Casler, Assistant District Attorney
Baton Rouge, Louisiana Attorneys for Appellee,
State of Louisiana BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.

The State of Louisiana alleged fifteen-year-old juvenile, E.M., to be delinquent according to a petition filed on July 24, 2017, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of three counts of aggravated assault with a firearm (counts one, four, and five), violations of La. R.S. 14:37.4; illegal carrying of weapons (count two), a violation of La. R.S. 14:95; and illegal possession of a handgun by a juvenile (count three), a violation of La. R.S. 14:95.8. All five counts were alleged to have occurred on or about June 9, 2017. The juvenile entered a denial to the allegations.

Following an adjudication hearing, the juvenile was adjudicated delinquent on counts one, two, and four. The juvenile court dismissed counts three and five. At the disposition hearing, the juvenile court committed the juvenile to the custody of the Department of Public Safety and Corrections ("DPSC") until his twenty-first birthday. On appeal, the juvenile raises two assignments of error. For the following reasons, we affirm the juvenile's adjudications of delinquency. We vacate the juvenile's disposition and remand this matter to the juvenile court for the imposition of a separate disposition for each adjudication.

FACTS

On June 9, 2017, Baton Rouge City Police Department Officer Tonya Edlund was dispatched to the 5500 block of McClelland Street in response to a group of juveniles being threatened with a firearm. Officer Edlund made contact with the suspect, later identified as the juvenile, E.M., and asked him to step toward her vehicle. The officer conducted a pat down of the juvenile and located a revolver in his right pocket. Thereafter, Officer Darrel Carter, Jr., also with the Baton Rouge City Police Department, transported the juvenile to his home, advised the juvenile of his rights, and spoke with the juvenile and his mother. The juvenile stated that he found the revolver on the ground and that he "pulled" it on the other juveniles because they were robbing an elderly man.

The juvenile victims testified at trial. Fifteen-year-old J.M. testified that he was walking from McClelland Street to St. Katherine Street with his friend, J.F., and his cousin when the juvenile approached them. According to J.M., the juvenile pointed a gun at them, told them it was loaded, and instructed them not to follow him. J.M. testified that he thought the gun was real even though it did not "even look that real." On cross-examination, J.M. confirmed that he had been in a fight with an elderly man that day, and the juvenile tried to intervene, but that helping the elderly man "wasn't his intention."

Sixteen-year-old J.F. testified that the juvenile "pulled out a gun," pointed it at them, and said, "Don't follow me." J.F. further explained that he and his friends engaged in a fight with an elderly man, and the juvenile tried to intervene in the fight. According to J.F., the juvenile "pulled [a] gun out" and told J.F. that if he jumped in, he was going to shoot him. J.F. stated that he thought the gun was real.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, the juvenile argues that the evidence was insufficient to support his adjudications for both counts of aggravated assault with a firearm. Specifically, he contends that the State failed to prove that the victims were in apprehension of receiving a battery. In the alternative, the juvenile argues that he acted in self-defense or defense of others.

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.C. 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^st Cir. 6/28/96), 677 So.2d 1071, 1074. In State in Interest of Giangrosso, 385 So.2d 471, 476 (La. App. 1^st Cir. 1980), this court stated:

In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974; see State in Interest of Batiste, 367 So.2d 784 (La. 1979). 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, 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979), and State in Interest of Batiste, 367 So.2d 784 (La. 1979). See In Interest of L.C., 96-2511 (La. App. 1^st Cir. 6/20/97), 696 So.2d 668, 669-670.

Accordingly, on appeal the standard of review for sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, 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. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; and State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988).

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 juvenile court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La. App. 1^st Cir. 11/7/97), 704 So.2d 786, 789-790. In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. State in Interest of Wilkerson, 542 So.2d 577, 581 (La. App. 1^st Cir. 1989). The Jackson standard is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State ex rel D.F., 2008-0182 (La. App. 1^st Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 2008-1540 (La. 3/27/09), 5 So.3d 138.

As applicable here, La. R.S. 14:37.4 defines aggravated assault with a firearm as, "an assault committed with a firearm." Pursuant to La. R.S. 14:36, an assault "is an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." A battery includes "the intentional use of force of violence upon the person of another." La. R.S. 14:33. The elements of assault are: (1) the intent-to-scare mental element (general intent); (2) conduct by the defendant of the sort to arouse a reasonable apprehension of bodily harm; and, (3) the resulting apprehension on the part of the victim. State v. Gardner, 2016-0192 (La. App. 1^st Cir. 9/19/16), 204 So.3d 265, 267-68; State in Interest of K.M., 2014-0306 (La. App. 4^th Cir. 7/23/14), 146 So.3d 865, 872. The juvenile herein argues that the State failed to prove the third element of assault, the resulting apprehension on the part of the victims.

Here, both J.M. and J.F. testified that the juvenile pointed a gun at them. Both victims also confirmed that they thought the gun was real. J.M. stated that the juvenile told them the gun was loaded, and J.F. testified that at one point that day, the juvenile told him that if he intervened in the fight that was occurring, he would shoot him. The juvenile court's adjudications indicate that it found the third element, i.e., resulting apprehension on the part of the victims, to be satisfied from the testimony presented. Viewed in the light most favorable to the State, the evidence demonstrated that the juvenile told the victims that the gun was loaded and that it was being handled by the juvenile, who had previously threatened to shoot. See State v. Gardner, 2016-0192 (La. App. 1^st Cir. 9/19/16), 204 So.3d 265, 270; see also State in the Interest of T.H., Jr., 2011-2208 (La. App. 1^st Cir. 6/7/13), 2013 WL 2487573 (unpublished).

In the alternative, the juvenile argues that he was justified in pointing the gun at the victims because he was acting in self-defense or in defense of others, i.e., the elderly man involved in the fight. The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. The defense of justification can be claimed when the offender's conduct is in defense of persons or of property. See La. R.S. 14:18(7). 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, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19A(1)(a).¹ The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21. Louisiana Revised Statutes 14:22 provides, in pertinent part, "It is justifiable to use force or violence . . . in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person."

1 Louisiana Revised Statutes 14:9(A)(1) shall not apply where the force of violence results in a homicide. La. R.S. 14:19(A)(2).

Louisiana law is unclear as to who has the burden of proving self-defense or defense of others and what the burden is in a non-homicide case. See State v. Barnes, 590 So.2d 1298, 1300 (La. App. 1^st Cir. 1991).² In previous cases dealing with this issue, this court has analyzed the evidence under both standards of review, that is whether the defendant proved self-defense (or defense of others) by a preponderance of the evidence or whether the State proved beyond a reasonable doubt that the defendant did not act in self-defense (or defense of others). In this case, we need not and do not decide the issue of who has the burden of proving (or disproving) defense of others because under either standard, the evidence sufficiently established that the juvenile did not act in self-defense (or defense of others). See State v. Pizzalato, 93-1415 (La. App. 1^st Cir. 10/7/94), 644 So.2d 712, 714, writ denied, 94-2755 (La. 3/10/95), 650 So.2d 1174.

2 In State v. Freeman, 427 So.2d 1161, 1162-63 (La. 1983), the Louisiana Supreme Court, without resolving the issue, suggested that the defendant in a non-homicide case may have the burden of proving self-defense by a preponderance of the evidence. See Barnes, 590 So.2d at 1300-1301.

The juvenile cites State v. Landry, 381 So.2d 462 (La. 1980), in support of his position that his conduct constituted justifiable self-defense. In Landry, the defendant (a school teacher) and the victim (a student) were in an altercation on school premises. The victim ultimately was restrained and was asked to leave the building. Shortly thereafter, the victim returned with a club, which he used to strike at the defendant. The defendant retreated from the school building with the victim still in pursuit. The victim again attempted to strike the defendant as the defendant was escaping. The defendant fled to the parking lot, where he armed himself with a handgun that he obtained from his vehicle. The victim approached the defendant's general direction, still carrying the club. The Louisiana Supreme Court found that it was subjectively reasonable for the defendant to conclude that the victim was intent upon continuing the prior attack against him. Id. at 467. The court held that it was reasonable for the defendant, "having been just subjected to a violent armed assault," to conclude upon seeing the victim approaching in his direction, still carrying the weapon, that the victim's purpose was to carry out his previously-demonstrated intent to inflict serious bodily harm upon the defendant. Thus, the court held, the defendant had "ample reason to fear imminent serious personal harm at the hands of" the victim. Id.

Based on the testimony presented in the instant case, it does not appear that the juvenile's purpose in pointing the gun at the victims was to defend the elderly man or to protect himself. J.M. testified that although the juvenile did intervene, helping the elderly man was not his intention. According to J.F., when the juvenile pointed the gun at the victims, he instructed them not to follow him. Although the juvenile claimed that he only pointed the gun at the victims to defend the elderly man, the testimony appears to indicate that the altercation had ended when the juvenile pointed the gun at the victims. J.M.'s testimony suggested that the fight was over by the time the juvenile approached them with the gun, and J.F. testified that he saw the juvenile three times that day. The elderly man did not testify at trial, and there was no evidence that he felt he was in danger or that the victims physically threatened him. The testimony also weighs against a finding of self-defense, as there was no evidence that the victims posed a threat to the juvenile at the time he pointed the gun at them.

The juvenile did not testify at the adjudication hearing but, through his counsel's argument, he advanced the theory that he was acting in self-defense or the defense of others when he pointed the gun at the victims. The juvenile court obviously rejected this hypothesis of innocence and found the testimony of the victims to be credible. See Wilkerson, 542 So.2d at 581. Based on our review of record, we find that any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found beyond a reasonable doubt that the juvenile was guilty of both counts of attempted aggravated assault with a firearm. Further, after undertaking our State's constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudications on these counts. This assignment of error is without merit.

DISPOSITION AND ERROR PATENT REVIEW

This court reviews juvenile delinquency cases for patent error. See State in Interest of Handy, 559 So. 2d 795, n.1 (La. App. 1^st Cir. 1990); State in Interest of McPipe, 542 So.2d 596, n.1 (La. App. 1^st Cir.), writ denied, 548 So.2d 1244 (La. 1989). Moreover, on several occasions, this court has noted patent error in juvenile delinquency cases. See, e.g., Wilkerson, 542 So.2d at 579; State in Interest of Rodrigues, 532 So.2d 481, 482 (La. App. 1^st Cir. 1988). In his second assignment of error, the juvenile argues that the disposition imposed by the juvenile court is excessive, and he specifically complains that the juvenile court failed to articulate specific reasons for the disposition and imposed a disposition that exceeds that necessary for rehabilitation. However, it appears that there exists a patent error with regard to the disposition of the juvenile.

The duration of a juvenile disposition based on a felony-grade adjudication is governed by La. Ch.C. art. 898, which provides, in relevant part, that "no judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication."³ E.M. was adjudicated a delinquent in connection with two felony offenses: two counts of aggravated assault with a firearm (counts one and four), and one count of illegal carrying of weapons (count two). The disposition for an adjudication of aggravated assault with a firearm is set forth in La. R.S. 14:37.4(C), which provides, "[w]hoever commits an aggravated assault with a firearm shall be fined not more than ten thousand dollars or imprisoned for not more than ten years, with or without hard labor, or both." The disposition for an adjudication of illegal carrying of weapons with any firearm used in the commission of a crime of violence as defined in R.S. 14:2(B) (aggravated assault with a firearm is a crime of violence per La. R.S. 14:2(B)(33)) is set forth in La. R.S. 14:95(B)(2), which provides, in pertinent part:

3 A "felony" is any crime for which an offender may be sentenced to death or imprisonment at hard labor. La. R.S. 14:2(4). A "misdemeanor" is any crime other than a felony. La. R.S. 14:2(6). --------

Whoever commits the crime of illegal carrying of weapons with any firearm used in the commission of a crime of violence as defined in R.S. 14:2(B), shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not less than one year nor more than two years, or both. Any sentence issued pursuant to the provisions of this Paragraph and any sentence issued pursuant to a violation of a crime of violence as defined in R.S. 14:2(B) shall be served consecutively.

Here, the juvenile court only imposed one general disposition - commitment to the custody of the DPSC until E.M.'s twenty-first birthday and did not specify a different disposition for each adjudication. In this case, since there are different possible durations of disposition for each offense, the juvenile court should have given a specific disposition for each adjudication. The sentence imposed by the juvenile court is indeterminate; the juvenile court erred by failing to impose a disposition on each adjudication.

For the above reasons, the juvenile court's judgment adjudicating E.M. delinquent of two counts of aggravated assault with a firearm (counts one and four), and one count of illegal carrying of weapons (count two) is affirmed. The juvenile court's judgment committing E.M. to the DPSC until his twenty-first birthday constituted a patent error with regard to the disposition of the juvenile. Accordingly, we vacate the disposition in this matter and remand the case to the juvenile court for further proceedings in conformity with this opinion.

ADJUDICATIONS AFFIRMED; DISPOSITION VACATED AND REMANDED.

We note that the Second Circuit has repeatedly held that the burden of proving self-defense in a non-homicide case rests with the defendant to prove the defense by a preponderance of the evidence. The Third and Fifth Circuits also appear to follow that rule; however, the Fourth Circuit has split as to where the burden of proof lies. See State v. Barron, 51,491, pp. 14-15 (La. App. 2^nd Cir. 8/9/17), ___ So.3d ___, ___, 2017 WL 3401357, at *7 (and the cases cited therein).