Opinion
2022 KJ 0307
09-16-2022
STATE OF LOUISIANA IN THE INTEREST OF E.M.
Warren L. Montgomery District Attorney J. Bryant Clark, Jr. Assistant District Attorney Covington, Louisiana and David Rex English Assistant District Attorney Slidell, Louisiana Attorneys for the State of Louisiana Annette Roach Lake Charles, Louisiana Attorney for Appellant, E.M.
NOT DESIGNATED FOR PUBLICATION
Appealed from the City Court of East St. Tammany, Juvenile Division Parish of St. Tammany, State of Louisiana No. 21 JC3027 The Honorable Bryan D. Haggerty, Judge Presiding
Warren L. Montgomery
District Attorney
J. Bryant Clark, Jr.
Assistant District Attorney
Covington, Louisiana
and
David Rex English
Assistant District Attorney
Slidell, Louisiana
Attorneys for the State of Louisiana
Annette Roach
Lake Charles, Louisiana
Attorney for Appellant,
E.M.
BEFORE: WHIPPLE, C.J., GUIDRY AND WOLFE, JJ.
WOLFE, J.
E.M., a sixteen-year-old juvenile, was alleged to be delinquent by juvenile delinquency petition based on two counts of attempted simple burglary, violations of La. R.S. 14:27 and 14:62 (counts I and II). He denied the allegations. At the adjudication hearing, he adopted the motion to suppress identification filed by D.B., the juvenile apprehended with him and similarly alleged to be delinquent, as well as the argument offered by D.B. The motion was denied. Following an adjudication hearing, E.M. was adjudged delinquent as alleged on both counts. Following a disposition hearing, the juvenile court ordered that E.M. be placed in the custody of the Office of Juvenile Justice for twenty-four months on each count, suspended, with twenty-four months supervised probation. The dispositions were ordered to run concurrently. E.M. now appeals, challenging the sufficiency of the evidence and the denial of the motion to suppress. We affirm the adjudications and dispositions.
Pursuant to Rules 5-1(a) and 5-2 of the Uniform Rules-Courts of Appeal, we reference the minor by his initials.
A joint adjudication hearing was held on the petitions alleging E.M. and D.B. to be delinquent. D.B. was also adjudged delinquent and appealed to this court. See State in Interest of D.B. , 2022-0028 (La.App. 1st Cir. 7/29/22), 2022 WL 3010210 (unpublished).
FACTS
At the adjudication hearing, Karen Embree testified that on July 29, 2021, at approximately 9:00 p.m. or 9:30 p.m., she was sitting on the porch of her home in Slidell. Embree saw two individuals walking "really slow" down her neighborhood street, wearing hoods, long pants, and "kind of masks on their face[s]." Embree stood and turned to walk inside, then looked back over her shoulder and noticed the individuals had also turned and were walking back in the same direction from which they had come. Embree testified that she went inside and told her husband, Sean Fagan, that "something just [did not] seem right." Although COVID-19 was still a problem at the time, Embree indicated that she found it suspicious the individuals were wearing masks in July and walking slowly down the street.
Fagan testified that Embree came inside and told him "there were two strange people acting suspicious outside." Fagan went outside and saw "two youngsters" walking "a little aimlessly" and looking over fences. Fagan began discretely following the juveniles, staying 20 to 30 yards behind them. Fagan testified that he saw the juveniles "pull on" the passenger side door handles of two vehicles. When the juveniles noticed Fagan, they "took off quite quickly." Fagan returned to his home and told Embree to call 911. During the 911 call, Fagan described the juveniles as two males, one of whom was approximately 5' 11" tall and wearing a black hoodie with the hood up and khaki pants, and the other of whom was approximately 6'1" tall and wearing a grey or tan hoodie with black lettering and khaki pants. Fagan could not determine the juveniles' race.
When the police arrived, Fagan advised them of what he saw. A short time later, the police returned, stated "we think we got them," and asked Fagan to accompany them for "an in-car I.D." The police drove Fagan down the street to where two juveniles were detained. From the rear driver's side seat of the police car, at a distance of approximately 50-60 feet, Fagan positively identified the juveniles.
At trial, Fagan indicated the area where the juveniles were detained was well lit, he could see the juveniles clearly, and he had no doubt that E.M. and D.B. were the same individuals he saw walking in front of his house and pulling on car door handles. Fagan testified his identification was based on his observation of the juveniles' weight, height, and clothing. Fagan stated that the juveniles were wearing the same clothing as when he first saw them - one wearing a black hoodie and khaki pants and the other wearing a grey hoodie with black writing and khaki pants. Fagan indicated the attire was unusual given that it was approximately 92 degrees outside with 88% humidity. Fagan further explained that he previously operated a security company and had experience reading body language and recognizing when someone was "up to no good."
SUFFICIENCY OF THE EVIDENCE
In assignment of error number 1, the juvenile contends the evidence introduced at the adjudication hearing, when viewed under the standard of review applicable in juvenile delinquency proceedings, was insufficient to prove beyond a reasonable doubt that he committed the crime of attempted simple burglary. He argues the adjudications and dispositions must be reversed and set aside as the evidence was insufficient to establish his identity or to prove beyond a reasonable doubt that he either attempted to enter two vehicles or that he had the specific intent to commit a felony or theft therein.
In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed the 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. Accordingly, in delinquency cases, the standard of review for the sufficiency of evidence is that enunciated in Jackson v. Virginia, 443 U.S. 307,319,99 S.Ct. 2781,2789,61 L.Ed.2d 560 (1979), i.e, whether 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. See La. Code Crim. P. art. 821; State in Interest of T.C., 20181246 (La.App. 1st Cir. 12/21/18), 269 So.3d 716, 718. In conducting sufficiency review, a reviewing court must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. La. R.S. 15:438; State v. Currie, 2020-0467 (La.App. 1st Cir. 2/22/21), 321 So.3d978, 982.
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.
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. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. 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. 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. In the absence of internal contradictions and irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trial court, is sufficient to support a conviction. However, 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 La. Const, art. 5, § 10; State in Interest of T.C., 269 So.3d at 719-20.
Louisiana Revised Statutes 14:62(A) provides, in pertinent part, "[s]imple burglary is the unauthorized entering of any ... vehicle,... with the intent to commit a felony or any theft therein, other than as set forth in La. R.S. 14:60." To be guilty of simple burglary, a defendant must have the specific intent to commit a felony or theft therein at the time of his unauthorized entry. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Such state of mind can be formed in an instant. Specific intent need not be proven as a fact, but may be inferred from the defendant's actions and the circumstances of the transaction. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. Armentor, 2019-1267 (La.App. 1st Cir. 7/31/20), 309 So.3d 762, 767, writ denied, 2020-01032 (La. 2/17/21), 310 So.3d 1149. Additionally, flight and attempt to avoid apprehension are circumstances from which the trier of fact may infer guilty conscience. It is not necessary for a simple burglary conviction that an actual theft occur. State v. Hooker, 623 So.2d 178, 184 (La.App. 2d Cir. 1993).
In addition to proof of specific intent to commit a felony or any theft therein, attempted simple burglary requires proof that the defendant did, or omitted to do, an act "for the purpose of and tending directly toward the accomplishing of his object," sometimes referred to as an overt act. See La. R.S. 14:27(A) and Reporter's Comment (1950) thereto. The attempt statute itself makes a distinction between an action that is mere preparation, which is insufficient to support a finding of an attempt, and an action for the purpose of, and tending directly toward, accomplishing an object, which is an essential element of the attempt statute. State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 661-62. "Preparation" has been defined generally as the devising or arranging of the means necessary for the commission of the crime. Ordodi, 946 So.2d at 662.
The difference between mere preparation and an overt act is not precisely defined. The Reporter's comment to the attempt statute states "[t]he distinction between preparation and an overt act sufficient for an attempt is one of nearness and degree which defies concise definition, and which can best be approximated by an examination of the jurisprudence." See La. R.S. 14:27, Reporter's Comment (1950). Thus, a defendant's actions that are mere preparation and those that are an act for the purpose of and tending directly toward the accomplishing of an object may be understood to exist on a continuum. See Ordodi , 946 So.2d at 662.
Where a defendant's actions fall on the continuum is a fact question for the jury or trier of fact. In determining whether a defendant's action is an overt act which is an attempt, the totality of the facts and circumstances presented by each case must be evaluated. The overt act need not be the ultimate step toward, or the last possible act in, the consummation of the crime attempted. The distinction between actions that are mere preparation and actions that constitute an overt act sufficient for attempt is one of degree and is dependent on the particular facts of each case. Thus, the determination of a defendant's actions as being mere preparation or acts sufficient to constitute an attempt will be fact specific to each case. Ordodi, 946 So.2d at 662.
In support of his argument, the juvenile relies upon State v. Jacobs, 504 So.2d 817, 821 (La. 1987) and State v. Marcello, 385 So.2d 244, 245 (La. 1980). Those cases are factually distinguishable because they involved a "place to stay" defense. See State v. Winslow, 29,888 (La.App. 2d Cir. 10/29/97), 702 So.2d 22, 25. In both cases there were facts to support an innocent explanation for the conduct alleged to indicate specific intent to commit a felony or a theft. See Jacobs, 504 So.2d at 821 ("the prosecution attempted to prove its theory that relator and his brother had just broken into the house and were caught before they could get away with anything. On the other hand, relator's theory of innocence was that his brother was staying temporarily in the house (concededly by means of an unauthorized entry) and that he was supplying his brother with food. Even if relator's brother's testimony is completely disregarded, the evidence presented by the prosecution is at least as consistent with relator's theory as it is with the prosecution's theory."); Marcello, 385 So.2d at 245 ("Marcello testified that he had entered the building to clean up before looking for employment that evening. He had been sleeping in an air conditioning unit on the roof and had climbed down a ladder to enter the third-floor ladies' restroom. Marcello washed with soap and water in the lavatory. Then, wiping his face with a wet paper towel, he entered the hallway from the restroom. ... His activity in the building negates any implication that he intended the offense charged."). There was no argument or evidence in the instant case that the juveniles were seeking shelter in the automobiles at issue.
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 attempted simple burglary beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. The juvenile court was not clearly in error in adjudicating the child a delinquent and finding him guilty of attempted simple burglary. See State in Interest of D.B., 2022 WL 3010210 at *2-4 (addressing the same arguments raised by D.B. and reaching the same conclusion based on the same evidence).
The circumstantial evidence presented excluded every reasonable hypothesis of innocence. The only reasonable hypothesis for why the juvenile was pulling on car door handles late at night while wearing a hooded sweatshirt, with the hood covering his head in the heat of summer, is that he was attempting to enter vehicles without being identified. Further, the juvenile fled when he realized he had been discovered. The juvenile's flight and attempt to avoid apprehension are circumstances from which the juvenile court could infer guilt. This evidence is bolstered by the juvenile's suspicious behavior of walking "really slow" and "a little aimlessly," and looking over fences just prior to attempting to enter the vehicles. The only reasonable hypothesis from the evidence is that the juvenile intended to commit a theft or felony after gaining entrance to the vehicles. Further, based on the totality of the circumstances, the juvenile's pulling on car door handles was an overt act tending toward committing a theft or felony in the vehicles at issue. See State in Interest of Nelson, 533 So.2d 91, 92 (La.App. 4th Cir. 1988) (scraping fresh putty from a window was an overt act sufficient to prove that the attempt to enter a house was made with the specific intent to commit a felony or any theft therein); see also State v. Frosch, 2001-1033 (La. 3/22/02), 816 So.2d 269, 270 (per curiam) (probable cause to arrest for attempted simple burglary established by the "defendant's jiggling of the truck's door handle at a late hour in a neighborhood where cars had been stolen in the past, combined with the defendant's subsequent flight from police.").
This assignment of error is without merit.
MOTION TO SUPPRESS
In assignment of error number 2, the juvenile contends the juvenile court erred in denying the motion to suppress the identification of the juvenile. He argues there was no description of the lighting in the area where Fagan followed the juveniles, Fagan could not describe the juveniles' faces, there were inaccuracies between Fagan's initial description of the juveniles' clothing, no mask was found in D.B.'s possession although D.B. was reported to have been wearing one, it was night time, and Fagan got no closer than twenty to thirty yards to the juveniles.
An identification procedure is suggestive if it unduly focuses a witness's attention on the suspect. State v. Earl, 2014-1534 (La App. 1st Cir. 4/24/15), 2015 WL 1893190, *7 (unpublished), writ denied, 2015-1042 (La. 4/22/16), 191 So.3d 1044. In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Supreme Court allowed evidence of a suggestive pretrial identification from a single photograph by an undercover police agent after determining that it was reliable. The Court concluded that "reliability is the linchpin in determining the admissibility of identification testimony[.]" Brathwaite , 432 U.S. at 114, 97 S.Ct. at 2253.
Thus, a defendant attempting to suppress an identification must prove the identification was suggestive and that there was a substantial likelihood of misidentification by the eyewitness. Further, a determination that the identification should be considered suggestive does not, in and of itself, indicate a violation of the defendant's right to due process. It is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. If the identification procedure is determined to be suggestive, courts look to several factors to determine, from the totality of the circumstances, if the suggestive identification presents a substantial likelihood of misidentification. These factors include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. A trial court's determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. Earl, 2015 WL 1893190 at *8.
One-on-one confrontations between a suspect and victim are not favored by the law, but they are permissible when justified by the overall circumstances. This procedure is generally permitted when the accused is apprehended within a short time after the commission of the offense and is returned to the crime scene for an on-the-spot identification. Such a prompt in-the-field identification, under appropriate circumstances, promotes accuracy and expedites the release of innocent suspects. Earl, 2015 WL 1893190 at *8.
At the adjudication hearing, the juvenile adopted the argument of counsel for D.B. Argument was made that Fagan viewed the juveniles at night, after stating he had not earlier seen their faces. Argument was also made that the fact that Fagan did not see the faces of the suspects demonstrated his lack of attention. In regard to the accuracy of the prior description, it was argued Fagan's "all black" clothing description was inaccurate for failing to mention white lettering on the hooded sweatshirt and the fact that the pants were khaki.
Written motions by co-defendants are presumed to have been made on behalf of all defendants unless the contrary appears. La. Code Crim. P. art. 842; State in Interest of T.B., 2020-0929 (La.App. 1st Cir. 2/19/21), 320 So.3d 1143,1149 n.6.
On appeal, in regard to the opportunity of the witness to view the criminal at the time of the crime, the juvenile again points out Fagan testified that he did not see the faces and could not determine the race of the juveniles who allegedly committed the offenses. The juvenile also notes Fagan testified he followed behind the juveniles at a distance of twenty to thirty yards. However, in regard to the witness's degree of attention, the juvenile concedes that "at the time the offenses were alleged to have occurred, Mr. Fagan's attention and focus were on the [juveniles]." In regard to the accuracy of the witness's prior description of the criminal, the juvenile argues Fagan failed to mention either the white lettering or the name emblazoned on the hoodie, and described the suspects as wearing "all black," while E.M. and D.B. wore khaki pants. The juvenile argues Fagan's statement that the juveniles were present in court was made without a specific identification noted on the record and could not have been based on Fagan's observation of the juveniles at the time of the incident because he did not see their faces. In regard to the level of certainty demonstrated at the confrontation, the juvenile concedes that this factor was satisfied. In regard to the time between the crime and the confrontation, the juvenile also concedes that this factor was satisfied.
After careful review, we find no abuse of discretion in the juvenile court's determination that Fagan's identification of the juvenile on the day of the incident was admissible at the adjudication hearing. See State in Interest of D.B., 2022 WL 3010210 at *2-4 (reaching the same conclusion based on the same evidence). Even if the identification was suggestive, based upon the totality of the circumstances we find that it did not present a substantial likelihood of misidentification. Although Fagan was unable to view the faces of the suspects, and even considering the fact that the incident occurred after dark, Fagan had an extended opportunity to view the suspects as he followed them long enough to see them pulling on the car door handles of multiple vehicles. Further, Fagan, who had experience in operating a security company, watched the suspects with a high degree of attention, noting details concerning their clothing, height, mannerisms, and body language. While Fagan's initial description of the clothing worn by the suspects may not have included details concerning white lettering on one of the hooded sweatshirts, Fagan was able to provide the most important identifying factor, i.e., the suspects were wearing hooded sweatshirts in the heat of summer. Additionally, Fagan had "no doubt" in his identification. Finally, the time between the crime and the confrontation was minimal.
We also reject the argument that Fagan's identification of the juveniles was insufficiently specific. The identification in context was as follows:
[State]: How close did you get to the individuals?
[Fagan]: On the street or while in the squad car?
[State]: While in the squad car.
[Fagan]: About from me to the flag away. Maybe 50 feet, 60 feet. About that.
[State]: And could you see them clearly?
[Fagan]: Yeah.
[State]: And based upon what you saw, were those the same two people -
[Fagan]: Yes.
[State]: - you saw walking in front of your house pulling on car doors?
[Fagan]: Yes.
[State]: No doubt in your mind?
[Fagan]: No.
[State]: Can you identify them here today?
[Fagan]: lean.
[State]: They are both here today?
[Fagan]: They are.
This assignment of error is also without merit.
ADJUDICATIONS AND DISPOSITIONS AFFIRMED.