State Of Louisiana in the Interest of D.B. ( 2022 )


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  •                  NOT DESIGNATED FOR PUBLICATION
    STATE OF LOUISIANA
    COURT OF APPEAL,
    FIRST CIRCUIT
    2022 KJ 0028
    STATE OF LOUISIANA IN THE INTEREST OF D.B.
    DATE OF JUDGMENT.- .
    JUL 2 9 2022
    ON APPEAL FROM THE CITY COURT OF EAST ST. TAMMANY, JUVENILE
    DIVISION, PARISH OF ST. TAMMANY, STATE OF LOUISIANA,
    DOCKET NUMBER 21 JC 3026
    HONORABLE BRYAN D. HAGGERTY, JUDGE
    Warren L. Montgomery                          Counsel for Appellee
    District Attorney                             State of Louisiana
    Covington, Louisiana
    D. Rex English
    Assistant District Attorney
    Slidell, Louisiana
    Jerry Bryant Clark
    Assistant District Attorney
    Covington, Louisiana
    Katherine M. Franks                           Counsel for Defendant -Appellant
    Madisonville, Louisiana                       D.B.
    BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
    Disposition: ADJUDICATIONS AND DISPOSITIONS AFFHZWD.
    Col -\
    c         Ak' -
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    C041urs
    CHUTZ, I
    D.B., I a seventeen -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 and moved to
    suppress evidence of his identity as the perpetrator.             The motion was denied.
    Following an adjudication hearing, he was adjudged delinquent as alleged on both
    counts.     Following a disposition hearing, the juvenile court placed D.B.             in the
    custody of the Office of Juvenile Justice for twenty-four months on each count, with
    twelve     months    of   each   disposition    suspended   and   the   dispositions   to   run
    concurrently.    The juvenile now appeals, challenging the sufficiency of the evidence
    and the denial of his motion to suppress.         For the following reasons, we affirm the
    adjudications and dispositions.
    FACTS
    Karen Embree testified at the adjudication hearing.            She lived with her
    husband, Sean Fagan, in Slidell.       On July 29, 2021, at approximately 9: 00 p. m. or
    9: 30 p.m., she was sitting on her porch waiting for her daughter to arrive home.
    Embree saw two individuals outside.        They were wearing hoods and long pants even
    though it was the middle of summer.            They were also walking " really slow." They
    had " kind of masks on their face[ s]."    She conceded, however, that " Covid" was still
    a problem. at that time.    When Embree stood up to turn around and walk back inside,
    she noticed the individuals had also turned around and were now walking back in the
    same direction from which they had come. Embree went inside her house and alerted
    Fagan testified that on July 29, 2021, Embree alerted him that there were two
    strange
    Z: people acting suspicious outside."           Fagan went outside and saw " two
    Pursuant to Rules 5- 1( a) and 5- 2 of the Uniform Rules -Courts of Appeal, we reference the
    minor by his initials,
    I
    youngsters."      The juveniles'- were walking around " a little aimlessly" and looking
    over fences.      Fagan began following the juveniles, staying 20 to 30 yards behind
    them.     The juveniles " pull[ ed] on car [ door] handles," on the passenger side, of two
    vehicles.     After the juveniles noticed Fagan, they " took off quite quickly."           Fagan
    returned to his home and told Embree to call 911.            Fagan described the individuals
    based on weight, clothing, number of people, and height, specifically stating that one
    of them was approximately 5'        11"   tall, while the other one was approximately 6'          1"
    tall.     Fagan told the police dispatcher the shorter juvenile was wearing a "             black
    hoodie, hood up."        Fagan stated the taller juvenile was wearing " a grey hoodie,
    maybe tan, with black lettering, khaki pants I believe."
    After the police arrived, Fagan advised them of the observations he had made
    concerning the juveniles. Thereafter, the police approached him, stating, " we                  think
    we got them,"      and asked if he could " do an in -car I.D." Fagan told the police he had
    not seen the faces of the juveniles, but had observed their clothes, height, and weight.
    The police transported Fagan in the rear of the police unit on the driver' s side
    to where the juveniles were being detained down the street.              Fagan made a positive
    identification fi-om approximately 50- 60 feet away.' He indicated he had " no doubt"
    in his mind.      He further indicated he could see the juveniles clearly.          The area was
    well lit.      There were streetlights, lights from passing traffic,         and light from the
    spotlight on the police unit.    The juveniles were wearing exactly the same clothes that
    they had been wearing when Fagan initially saw them.                One of the juveniles was
    wearing a black " hoody"       and khaki pants.      The taller juvenile was wearing a grey
    hoody" with black writing and khaki pants.            Fagan indicated, given that it was 92
    degrees outside with 88 percent humidity, it was unusual that the juveniles " were                    in
    I The record indicates that the second subject involved in the incident was also a juvenile.
    On cross- examination, Fagan indicated he made an identification of the juveniles from
    approximately 25 yards away.
    3
    hoodies with hoods up."        At the time of the identification, police officers were
    standing around."
    Fagan also identified the juveniles at the adjudication hearing. He indicated he
    had " no doubt" in his mind.
    SUFFICIENCY OF THE EVIDENCE
    In assignment of error number one, the juvenile contends the evidence was
    insufficient to establish his specific intent to enter the vehicles with the specific intent
    to commit a theft or felony within them.       He argues no evidence was presented that
    he entered the cars, opened the doors, or took anything from inside of the cars.          He
    further argues there was no evidence the cars were locked at the time of the incident.
    Lastly, he argues no evidence was presented he was found with any burglary tools to
    establish his intent to commit a theft.
    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 f-act could have found the State proved the
    essential elements of the crime beyond a reasonable doubt.         See La. Code Crim. P.
    art. 821. 4   State in Interest of T.C.,   2018- 1246 ( La. App. 1st Cir. 12/ 21/ 18),   
    269 So. 3d 716
    , 718.     In reviewing sufficiency, we also 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
    4 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.
    4
    hypothesis of innocence is excluded. La. R.S. 15: 438; State v. Currie, 2020- 0467
    La. App. 1st Cir. 2/22/21),       
    321 So. 3d 978
    , 982.
    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 factfinder.
    Moreover, conflicting testimony as to factual matters is a question of the weight of
    the evidence, not its sufficiency.       State in Interest of T.C., 269 So. 3d at 719. Such a
    determination rests solely with the trier-offact who may accept or reject, in whole or
    in part, the testimony of any witness.              A trier-offact' s determination as to the
    credibility of a witness is a question of fact entitled to great weight.       A trier -of f-act' s
    credibility 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( A); State in Interest of T.C., 269 So. 3d
    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 R.S. 14: 60."     La. R.S. 14: 62( A).   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.         State v. Godholt, 2006- 0609 ( La. App. 1st Cir. 11/ 3/ 06),      
    950 So. 2d 727
    , 730.           Specific intent is that state of mind that 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
    5
    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 f-act.       State v. Armentor, 2019- 1267 (           La. App.   Ist 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 f-act 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
    act that is mere preparation, which is insufficient to support a finding of an attempt,
    and an act 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 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.
    0
    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. Ordodi, 946 So.2d at 662. 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.
    Viewing the evidence in the light most favorable to the prosecution,          any
    rational trier -of f-act 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.    The circumstantial evidence in this case 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, when the juvenile realized he had been
    discovered, he quickly fled.   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
    The
    aimlessly" and looking over fences just prior to attempting to enter the vehicles.
    only reasonable hypothesis from the evidence is that the juvenile intended to commit
    The juvenile court found that
    a theft or felony after gaining entrance to the vehicles.
    the juvenile' s intention was to commit a theft or felony and the evidence excluded
    7
    other reasonable hypothesis.       Moreover,     based   on    the    totality   of   the
    any
    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 two, the juvenile contends the juvenile court
    erred in denying the motion to suppress his identification. He argues the show -up
    identification by Fagan should not have been used to establish identity beyond a
    reasonable doubt because it was suggestive, prejudicial, and very likely to result in
    irreparable misidentification.
    An identification procedure is suggestive if it unduly focuses a witness'
    attention on the suspect.    State v. Earl, 2014- 1534 ( La App. 1st Cir. 4/ 24/ 15),        
    2015 WL 18931
    .90, * 7, writ denied, 2015- 1042 ( La. 4/ 22/ 16), 191 So3d 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.              In
    that decision, the court concluded that "   reliability is the linchpin in determining the
    admissibility of identification testimony[.]"     Earl, 2015 V&     1893190 at * 7 ( quoting
    B ra thwa ite, 
    432 U.S. at 114
    , 
    97 S. Ct. at 2253
    ).
    RN
    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.     Even should the identification be considered
    suggestive, that alone does not 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' 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 pennissible 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. 
    Id.
    At the adjudication hearing, the juvenile argued Fagan viewed the individuals
    apprehended by the police, i.e.,   the juvenile and his friend, at night and after he had
    stated he had not seen their faces. The juvenile argued 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, the juvenile argued Fagan' s " all black" clothing description
    X
    was inaccurate for failing to mention white lettering on the hooded sweatshirt and the
    fact that the pants were khaki.
    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 did not see the faces of the
    suspects and the incident occurred at night. The juvenile also notes Fagan followed
    the suspects "    from a distance."     In regard to the witness' degree of attention, the
    juvenile concedes Fagan was paying attention as he followed the suspects, but relies
    on the fact that Fagan was unable to discern any facial features because of distance
    and darkness.       In regard to the accuracy of the witness' prior description of the
    suspects, the juvenile again relies upon Fagan' s failure to mention white lettering on
    the hooded sweatshirt and the fact that the pants were khaki as opposed to the "                    all
    black"   clothing description given to officers.            In regard to the level of certainty
    demonstrated at the confrontation, the juvenile concedes that Fagan was certain in his
    identification,
    ication,   but argues Fagan only briefly glimpsed the individuals apprehended by
    the police as the police unit drove by them while they were flanked by police officers
    and spotlighted.     In regard to the time between the crime and the confrontation, the
    juvenile argues there was possibly over an hour delay between Fagan' s viewing of
    the   individuals     apprehended      by    the   police    and   the    show -up     identification.
    Additionally, the juvenile argues " [ e] yewitness identifications have been found to be
    notoriously unreliable and have resulted in a number of convictions being set aside."
    Lastly, he argues the legislature enacted La. C.Cr.P. art. 253 to set standards and
    procedures for conducting physical and photographic lineups, but no procedures are
    listed for show -up identifications.
    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.      Based upon the totality of the circumstances, even if the
    identification    was   suggestive,    it   did   not   present a       substantial   likelihood    of
    C1
    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, due to Fagan' s
    experience in operating a security company, he 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 sweat shirts, he 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.
    This assignment of error is without merit.
    ADJUDICATIONS AND DISPOSITIONS AFFIRMED.
    11
    

Document Info

Docket Number: 2022KJ0028

Filed Date: 7/29/2022

Precedential Status: Precedential

Modified Date: 7/29/2022