In re D.L.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUITNov 1, 2017
2017 KJ 0891 (La. Ct. App. Nov. 1, 2017)

2017 KJ 0891

11-01-2017

STATE OF LOUISIANA IN THE INTEREST OF D.L., JR.

Hillar C. Moore, III District Attorney and Otha Curtis Nelson, Jr. Cristopher J.M. Casler Assistant District Attorneys Baton Rouge, Louisiana Attorneys for Appellee State of Louisiana Jack Harrison Baton Rouge, Louisiana Attorney for Defendant/Appellant D.L., Jr.


APPEALED FROM THE JUVENILE COURT EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER JU110830 HONORABLE ADAM J. HANEY, JUDGE Hillar C. Moore, III
District Attorney
and
Otha Curtis Nelson, Jr.
Cristopher J.M. Casler
Assistant District Attorneys
Baton Rouge, Louisiana Attorneys for Appellee
State of Louisiana Jack Harrison
Baton Rouge, Louisiana Attorney for Defendant/Appellant
D.L., Jr. BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ. MCDONALD, J.

D.L., a child, was alleged to be delinquent and/or in need of supervision by petition based on one count of first degree rape in violation of LSA-R.S. 14:42A(1) (count 1); one count of first degree rape in violation of LSA-R.S. 14:42A(2) (count 2); one count of first degree rape in violation of LSA-R.S. 14:42A(5) (count 3); and one count of simple robbery in violation of LSA-R.S. 14:65 (count 4). He denied the allegations, and following an adjudication hearing, the juvenile court found him not guilty of counts 1 and 2 and dismissed those charges, and adjudged him delinquent as to counts 3 and 4. Following a disposition hearing, the juvenile court committed D.L. to the secure custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, until his 21st birthday, without benefit of parole, probation, or suspension of sentence. He now appeals, challenging the sufficiency of the evidence on both counts. For the following reasons, we affirm the adjudications of delinquency and disposition.

Two other juveniles, M.P. and T.H., were also charged and adjudicated for the same crimes, and each of their adjudications are the subject of separate appeals. See State in Interest of T.H., 17-0890 (La. App. 1 Cir. 11/1/17), ___So.3d ___, and State in Interest of M.P., 17-0892 (La. App. 1 Cir. 11/1/17), ___ So.3d ___.

Although the minutes of the disposition hearing, which were signed by the clerk of the juvenile court, provided separate adjudications for each count, the transcript of that hearing did not reflect separate dispositions. Nevertheless, this court has found it is appropriate in juvenile cases for a court to declare a single disposition for multiple adjudications. See State In Interest of J.C., 09-2000 (La. App. 1 Cir. 7/15/10), 2010 WL 2802104 at *5 (unpublished). The disposition herein until D.L.'s 21st birthday was the mandatory disposition based upon a violation of LSA-R.S. 14:42, first degree rape. LSA-Ch.C. art. 897.1A. Moreover, although the record does not contain information as to the dates of D.L.'s custody, this Court further notes that, even if he has been in custody since December 22, 2016 (the same date as the other two juveniles), the disposition until D.L.'s 21st birthday results in a custody period of 5 years, 4 months, and 17 days, which is less than the maximum term of imprisonment for the felony of simple robbery, and accordingly, it is within the limits of the statute. See LSA-Ch.C. art. 898A; LSA-R.S. 14:65.

FACTS

The victim, T.S., age fourteen at the time of this offense, testified at trial. According to T.S., she resided in an apartment at Scotland Square Apartments (in East Baton Rouge Parish) with her grandmother, mother, younger brother, and younger sister. On the morning of December 17, 2016, T.S.'s father, E.S., who did not live with them, picked up the children, and they returned to the apartment after lunch. That afternoon, T.S.'s grandmother asked T.S. to go to the mailbox and check the mail. While walking alone to the mailbox, T.S. was stopped by two boys (later identified as D.L. and M.P., also charged as noted herein). Although T.S. did not know the boys, she described herself as friendly and answered the boys' questions about her name, age, and whether she had a boyfriend. The boys walked with T.S. to the mailbox, and M.P. asked T.S. for a hug. When she hugged him, D.L. took her cell phone out of her back pants pocket and ran off with it. T.S. asked M.P. to help her get her phone back, and M.P. offered to take her to D.L.

The initials of the victim and her family members are used in order to keep her identity confidential pursuant to LSA-R.S. 46:1844W and Uniform Rules - Courts of Appeal, Rule 5-2.

As they approached an area behind the apartments where a dumpster was located, T.S. saw D.L. with her phone. T.S. saw another boy (later identified as T.H.) on the other side of a nearby fence/gate. When T.S. asked for her phone, the boys began passing it back and forth, and D.L. told her she was not getting the phone back until she let one of the boys "yeah," which T.S. was aware meant to have sex. Although T.S. told them she was not that kind of girl, she testified that the boys forced her. According to T.S., the boys pulled her pants down and despite her efforts to pull them up, the boys bent her over and "hit" her from behind, meaning to have intercourse from the back. T.S. testified the boys kept switching positions, with one sticking his penis in her mouth while the other was behind her having intercourse with her. T.S. unequivocally testified that both M.P. and D.L. put their penises in her vagina, and at least one of them, possibly both, put his penis in her mouth. T.S. told one of the boys she had surgery on her mouth to try to avoid putting his penis in her mouth. During this activity, T.H. threw a condom to one of the boys, and at some point, T.H. came over the fence. Although T.S. recalled that T.H. got behind her, she was unsure what he did while behind her. In her statement with the Children's Advocacy Center, T.S. stated that T.H.'s pants were down, but she did not see his penis and was unsure whether he put his penis in her vagina. T.S. testified that T.H. was not present when D.L. originally took her phone, and the only time T.H. had the phone was when they were playing with it.

T.S., knowing that her father was at the apartment and hoping that he would catch the boys, told the boys there was $1,000 at the apartment that she would give them to get her phone back. When the boys agreed, T.S. walked to the apartment with M.P. and D.L. According to T.S., T.H. had jumped back over the fence and left. T.S. entered the apartment with M.P. and D.L., but when her grandmother, who is deaf, came out of the bathroom and yelled, one boy called to the other and they both ran outside. As T.S. also ran outside, she saw her brother and told him that the boys attacked her and took her phone. Her brother then called their father, who was out looking for T.S., and as the father returned, he and T.S. got into his car in pursuit of the boys. They eventually got out of the car and ran after the boys but were unable to catch them. T.S. identified the three boys in court as the ones who committed these acts.

T.S. testified she did not try to run or stop them when they began pulling her pants down because there were two boys on that side of the fence with her. When asked if she tried to "punch" them, T.S. testified that the boys told her if she hit them, they would hit her. T.S. testified that she did not consent to the sexual activity and did not consent to the taking of her phone, which she never got back.

T.S.'s brother testified at trial that he also went to look for T.S. after his father called saying that he could not find her. As he returned to the apartment, he saw two boys, one in the apartment and one on the side of the building. T.S. was outside and told him the boys raped her. He called their father and told him what T.S. said, and when the boys started running, he tried to chase them until he saw them climb over a fence. He called the police while T.S. and their father looked for the boys. T.S.'s father, E.S., also testified at trial that he became concerned and went to look for T.S. As he returned to the apartment, T.S. and her brother ran toward him, and his son said some boys took T.S.'s phone and raped her. E.S. and T.S. pursued them in his car, then on foot, but were unable to catch them. Subsequently, E.S. obtained information from calling people and social media as to the name of one of the boys, which he gave to the police.

Officer Amy Krumm with the Baton Rouge Police Department responded to the call and, after obtaining a statement from T.S., went to the area of the dumpster, where she found a condom. Officer Krumm described T.S. as crying and emotionally upset. She observed dirt and grass stains on T.S.'s pants around the knees and up the legs and buttocks areas and noted that her hair was somewhat disheveled.

Wanda Pezant, a certified nurse practitioner, accepted by the court as an expert sexual assault nurse, examined T.S. that evening at the hospital. T.S. was very tearful, but alert and oriented during the examination. Nurse Pezant observed vaginal bruising, abrasions and redness and anal abrasions and redness. She also observed hymenal notching, which she testified was consistent with forced sexual intercourse. The injuries to the vaginal area were consistent with sexual intercourse. The injuries to the anal area were consistent with penetration, and although scarring and trauma in this area may often be found in cases of consensual sex, it is less common to see the abrasions and friction in the direction observed on T.S., which was the basis for her opinion that these injuries were consistent with forced penetration. Nurse Pezant opined that these injuries, while they may seem minor, were pretty dramatic and consistent with forced sexual assault, and she further opined that T.S.'s statement was very consistent with the documented injuries.

Although a rape kit was performed, at the time of the trial, the investigating officers were unaware of any DNA results. The condom found at the scene, the recorded statement of T.S. to the Children's Advocacy Center, the recorded statements of the three boys, T.H., M.P., and D.L., and surveillance video of the area were admitted into evidence. The surveillance video did not include the area where the sexual assault was alleged to have occurred, but did include some limited footage of two of the boys following T.S. Each of the boys provided varying versions of the events, which each gradually included more incriminating details as the versions changed. In his statement to police, D.L. admitted to taking T.S.'s phone and to putting his penis in her mouth. Although he claimed the vaginal sex occurred in T.S.'s apartment, he admitted to vaginal sex and also confirmed that T.S. offered to give them $1,000 for her stuff, which prompted them to go to the apartment. In his statement to police, M.P. admitted to putting his penis in T.S.'s mouth, and after putting on the condom, tried to put it in her vagina. M.P. also confirmed that T.S. offered them $1,000 and told them she had surgery on her mouth. T.H. admitted giving a condom to M.P. and holding the phone at one point, but then giving it back to D.L. T.H. denied touching T.S.

The juvenile court noted that it considered the statements of each juvenile only as to that juvenile, not the others. The court found the statements of T.S. credible and found the statements of each of the juveniles to be self-serving, noting each juvenile's statement changed multiple times, but each time became more consistent with T.S. The court found that T.S.'s account of the events made sense to the court, while the juveniles' statements, based upon the facts, did not make sense. The juvenile court found each of the juveniles guilty of first degree rape, in violation of LSA-R.S. 14:42A(5), and simple robbery, in violation of LSA-R.S. 14:65.

The district court's action in considering the statements separately avoided a potential Bruton problem. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

SUFFICIENCY OF THE EVIDENCE

In his two assignments of error, D.L. asserts the evidence was insufficient to adjudicate him delinquent for either first degree rape or simple robbery.

In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. LSA-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 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), 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 ... . We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt. [Citation omitted.]


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 sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, 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. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also LSA-C.Cr.P. art. 821B; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; and State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). It is well settled that, if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence, or prove the commission of the offense by the defendant. State v. Lilly, 12-0008 (La. App. 1 Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 12-2277 (La. 5/31/13), 118 So.3d 386.

In the absence of specific procedures provided by the Louisiana Children's Code, courts exercising juvenile jurisdiction in delinquency proceedings shall proceed in accordance with the Louisiana Code of Criminal Procedure. See LSA-Ch.C. art. 803. --------

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 Cir. 11/7/97), 704 So.2d 786, 789-90. 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, the appellate court should not disturb this factual finding on review 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 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, LSA-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 in Interest of D.F., 08-0182 (La. App. 1 Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 08-1540 (La. 3/27/09), 5 So.3d 138. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).

First Degree Rape

Louisiana Revised Statute 14:41A defines "rape" as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. Louisiana Revised Statute 14:42 provides, in pertinent part:

A. First degree rape is a rape committed . . . where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: . . . (5) When two or more offenders participated in the act.
B. For purposes of Paragraph (5), "participate" shall mean:
(1) Commit the act of rape.
(2) Physically assist in the commission of such act.


D.L. does not deny that he engaged in sexual intercourse with T.S., but rather he argues the State failed to prove T.S.'s lack of consent, and accordingly, the evidence was insufficient to convict him of first degree rape, as the incident was not shown to be a "rape." D.L. cites several cases in support of his argument that the State was required to prove not only that two or more offenders participated in the act, but also was required to prove another statutory "element" sufficient to show lack of lawful consent. The cases cited by D.L. do not support his argument. In State v. Conway, 556 So.2d 1323, 1327 (La. App. 3 Cir.), writ denied, 563 So.2d 876 (La. 1990), the Court rejected, as completely unreasonable, defendant's argument that LSA-R.S. 14:42A(5) sought to criminalize sex between two participants. The Court found that the use of the term "offenders" did not make the act between two or more participants illegal, but rather the State had the burden of proving the victim was raped. Id. D.L. argues that the victim in Conway resisted to the utmost, thereby satisfying LSA-R.S. 14:42A(1). While the Conway court discussed the victim's resistance therein, there was certainly no requirement that two subsections of LSA-R.S. 14:42A be proven in order to convict of the crime. In State v. Watson, 529 So.2d 94, 96 (La. App. 4 Cir. 1988), writ denied, 535 So.2d 740 (La. 1989), the defendant argued that LSA-R.S. 14:42A(5) criminalized group sex. The Watson court rejected that argument, finding the State was required to prove that the victim was raped, not simply that group sex occurred. Id. at 97. Based upon the facts of Watson, D.L. argues that the evidence was insufficient under either subsection A(1) or A(5). However, the Watson court clearly stated that the sanctions of LSA-R.S. 14:42A(5) applied, not that proof of two subsections was required. Id. at 97. Next, D.L. seizes upon language in State v. McDonald, 02-909 (La. App. 3 Cir. 2/5/03), 838 So.2d 128, 133, writ denied, 03-0807 (La. 10/17/03), 855 So.2d 758, that defendant "could also be viewed as a principal to violating the first three subsections of [LSA-]R.S. 14:42, as well." Again, there is no requirement that proof of more than one subsection of LSA-R.S. 14:42A is necessary to support a conviction. The fact that the evidence may prove more than one subsection applies does not render proof of more than one necessary. Moreover, the clear statutory language provides that the rape is deemed to be without the lawful consent of the victim if "any one or more" of the enumerated circumstances is proven. LSA-R.S. 14-.42A. Accordingly, whether more than one circumstance was proven in each of the cases cited by D.L. is of no moment, as the statute clearly provides that any one of the circumstances is sufficient, but more than one is also allowable.

In this case, T.S. testified that when she asked for her phone, the boys told her she had to let them have sex with her before she could get it back. She testified that she told them she was not that type of girl, but they forced her and began pulling her pants down. T.S. testified the boys pushed her to bend her over, and she felt something forcefully pushing in her. According to T.S., D.L. and M.P. both put their penises in her vagina. While D.L. argues that T.S. did not fight, scratch or kick the boys, did not yell or scream, walked back to her apartment with two of the boys arm-in-arm, still concerned about getting her phone back, and remained calm during all of this, D.L.'s arguments do not take into account the entirety of T.S.'s testimony, which the juvenile court specifically found to be credible. When D.L. took her phone, T.S. initially felt somewhat uncomfortable, but was not scared, as the boys were her age and she thought they would not hurt her and they were "playing." However, when they pulled her pants down, she did think they were going to hurt her. T.S. testified that she did not cooperate, and although she tried to remain calm, she was trying to get away from them. She also testified that she did not stop them because there were three boys and only one of her, and she did not think she could run. According to T.S., D.L told her he would hit her if she hit him. T.S. testified she did not scream or yell, because it was a bad neighborhood and no one would come help because they hear screaming often. She testified that her reasoning for bringing them to the apartment was to have her father catch them. T.S. unequivocally testified that she did not want to have sex with any of the boys and she did not give them permission to have sex with her.

The testimony of T.S. that she did not consent to sexual intercourse with any of the boys, which was supported by the testimony of Nurse Pezant that the injuries she observed to T.S.'s vagina and anus were consistent with forced penetration, was sufficient to prove a lack of consent to this sexual assault. Moreover, because more than two offenders participated in the acts, the intercourse is further deemed to be without lawful consent of the victim. LSA-R.S. 14:42A(5). This Court further notes that D.L. fled from the apartment complex, and although an individual's flight does not in and of itself indicate guilt, it can be considered as circumstantial evidence that the individual has committed a crime, as flight shows consciousness of guilt. State v. Williams, 610 So.2d 991, 998 (La. App. 1 Cir. 1992), writ denied, 617 So.2d 930 (La. 1993). Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that D.L. was guilty of first degree rape herein where two or more offenders participated in the act. Further, after undertaking our constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

Simple Robbery

D.L. does not deny that he took T.S.'s phone, but rather he argues that the State failed to prove that force or intimidation was used when he took it. Louisiana Revised Statute 14:65A defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. The Supreme Court has found that the element of force or intimidation need not occur before or contemporaneously with the taking, but rather recognized that the elements of force and intimidation can be proven by evidence that it occurred in the course of completing the crime. State v. Meyers, 92-3263 (La. 7/1/93), 620 So.2d 1160, 1163.

In this case, although T.S. did not testify to force used at the time of the taking, and although she felt somewhat uncomfortable but not scared initially, the totality of the evidence, including the actions of the boys in leading her to the dumpster area, where she then felt that she was unable to run because she was outnumbered, supports the element of force or intimidation used by D.L. herein in completing the crime of robbery of the phone from T.S. Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that D.L. was guilty of simple robbery. Further, after undertaking our constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

ADJUDICATIONS AND DISPOSITION AFFIRMED.