APPEAL FROM JUVENILE COURT ORLEANS PARISH. NO. 2013-310-02-DQ-E, SECTION " E" . Honorable Yolanda King, Judge.
LEON A. CANNIZZARO, JR., District Attorney, DONNA ANDRIEU, Assistant District Attorney, Chief of Appeals, CHRISTOPHER J. PONOROFF, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.
KATHERINE M. FRANKS, LOUISIANA APPELLATE PROJECT, Abita Springs, LA, COUNSEL FOR APPELLANT/ M.J.
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins). BELSOME, J., DISSENTS WITH REASONS.
[2014-0622 La.App. 4 Cir. 1]
SANDRA CABRINA JENKINS, JUSTICE.
M.J., a juvenile, appeals the delinquency adjudication for prostitution by solicitation, a violation of La. R.S. 14:82(A)(2). M.J. contends there is insufficient evidence to support this adjudication. M.J. submits that the State had the burden to prove that M.J. was not a victim of sex trafficking at the time of the alleged violation of La. R.S. 14:82 and failed to carry that burden of proof. M.J. also asserts that the juvenile court committed reversible error in denying the motion to recuse.
In light of the arguments presented by M.J., we consider the effect, if any, of recent legislation relative to juvenile victims
of sex trafficking on the prosecution of juveniles for the offense of prostitution. After our review of the record in light of the applicable law and the arguments presented, we affirm the adjudication of M.J. as a delinquent for a violation of La. R.S. 14:82. However, due to the juvenile court's clear error in failing to hold a disposition hearing and in assessing an excessive fee, we vacate the disposition and remand this case for a disposition in accordance with the law.
[2014-0622 La.App. 4 Cir. 2] FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2013, the State filed a delinquency petition charging M.J. with one count of prostitution, a violation of La. R.S. 14:82. On December 2, 2013, M.J. appeared to answer the petition and entered a denial to the allegations. After M.J. entered a denial, the juvenile court ordered that M.J. be placed on strict house arrest under the supervision of the Electronic Monitoring Program (EMP). The juvenile court then set the adjudication hearing for January 27, 2014. On January 22, the juvenile court granted a defense motion for continuance, and reset the adjudication hearing for February 3, 2014.
On January 23, 2014, the juvenile court held a status hearing in this case. On that date, the juvenile court remanded M.J. to the Youth Study Center pending the adjudication hearing set on February 3, 2014. On January 30, 2014, the defense filed a motion for immediate release of M.J. pending adjudication, or, in the alternative, seeking " any of the alternatives to detention that the Court may wish to impose." As grounds for immediate release, the defense's motion stated that the juvenile court remanded M.J. to the Youth Study Center without holding a continued custody hearing and without setting bail for M.J. See La. Ch. C. arts. 819, 820, 821, 823. On January 31, 2014, the juvenile court signed an order [2014-0622 La.App. 4 Cir. 3] denying the motion for immediate release and the defense sought supervisory review the same day. This court declined to exercise supervisory jurisdiction and denied the writ application.
On February 3, 2014, the matter came before the juvenile court for adjudication. Prior to the commencement of the adjudication hearing, the defense filed a written motion for recusal of the judge and immediate reallotment of the case. At the commencement of the proceeding, the defense counsel raised the motion for recusal with the juvenile court. The juvenile court stated the motion had not been filed 72 hours prior to the trial date, in accordance with prior orders from the court, and denied the motion for recusal. The defense then stated it was ready to argue its motion to quash the petition, filed on January
31, 2014. The juvenile court also denied the motion to quash without a hearing or arguments from counsel. The defense made an oral motion for continuance or a stay to seek writs on the juvenile court's rulings and the defense further stated it was not prepared to proceed to adjudication. The juvenile court denied the motion for continuance or stay and immediately proceeded with the adjudication hearing.
At the adjudication hearing, the State presented the testimony of Sergeant Richard Welch of the New Orleans Police Department. Sgt. Welch testified that on October 30, 2013, he was working " in an overtime capacity undercover with [NOPD Eighth District] narcotics unit looking for prostitution-based crimes in the [2014-0622 La.App. 4 Cir. 4] French Quarter." Sgt. Welch was dressed in plain clothes for the assignment. At approximately 12:45a.m., Sgt. Welch was standing near the corner of Bourbon Street and St. Louis Street when he was approached by an individual, whom he identified in court as M.J. Sgt. Welch testified that M.J. asked if he " wanted to party" to which Sgt. Welch responded " of course." Sgt. Welch asked M.J. what kind of partying they would be doing. M.J. told Sgt. Welch " touch me to make sure I know you're not a cop." In response, Sgt. Welch rubbed M.J.'s shoulder and thigh. Sgt. Welch stated, " at that point, he told me it would be $150 for his ass." Sgt. Welch testified that he interpreted M.J.'s statement as a solicitation of anal sex. Sgt. Welch agreed to the offer; he then gave a signal to a NOPD " takedown team" that conducted the actual arrest of M.J.
On cross-examination, Sgt. Welch testified that there were no other witnesses to his conversation with M.J. Sgt. Welch stated that M.J. was dressed as a female, but he knew the individual was a male. Sgt. Welch acknowledged that M.J. did not make an explicit statement about having sexual intercourse with him, only the statement of " $150 for his ass." Sgt. Welch was unaware that M.J. was a juvenile at the time of the arrest. He learned M.J. was a juvenile " about 20 minutes after" the arrest. Sgt. Welch did not conduct any further investigation of M.J. after the arrest and he was not aware of any such investigation being conducted by other officers. The arrest for prostitution was based solely on Sgt. Welch's interaction with M.J.
[2014-0622 La.App. 4 Cir. 5] Following Sgt. Welch's testimony, the State rested its case, subject to rebuttal. The defense moved for a judgment of acquittal on the grounds that the State had not met the requisite burden of proof to adjudicate M.J. a delinquent for prostitution; the defense argued that the State had to prove M.J. was not a juvenile victim of sex trafficking at the time of the alleged commission of the offense. The juvenile court heard arguments from both sides and denied the defense motion for judgment of acquittal. The defense objected to the court's ruling on the motion, again requested a stay or continuance to seek supervisory review, and stated it was unprepared to present its case in chief at that time. The juvenile court denied a stay or continuance. The defense rested its case without presenting any testimony or evidence.
After closing arguments, the juvenile court adjudicated M.J. a delinquent for prostitution, a violation of La. R.S. 14:82. Immediately following the adjudication, the juvenile court imposed its disposition. The juvenile court imposed a six-month
commitment to the Department of Public Safety and Corrections, suspended the commitment, and placed M.J. on one year of active probation with specific conditions. The juvenile court also assessed a $55 court processing fee payable to the Judicial Expense Fund.
This timely appeal followed.
[2014-0622 La.App. 4 Cir. 6] STANDARD OF REVIEW
Although juvenile delinquency proceedings implicate aspects of criminal proceedings, juvenile proceedings are nonetheless civil in nature. State ex. rel. D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930; In re C.B., 97-2783, p. 10, (La. 3/4/98), 708 So.2d 391, 396-97. Due to the unique civil nature of juvenile proceedings, the scope of appellate review extends to both law and facts. La. Const. art. V § 10(B); State in the Interest of J.T., 11-1646, p.5, 94 So.3d at 852. " Therefore, as in review of civil cases, a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong." State ex. rel. C.N., 11-0074, p. 5 (La.App. 4 Cir. 6/29/11), 69 So.3d 711, 714 (citing State in the Interest of Batiste, 367 So.2d 784 (La. 1979)). We, therefore, apply the clearly wrong/manifest error standard of review " to determine whether there is sufficient evidence of proof beyond a reasonable doubt to adjudicate a child a delinquent." State ex.rel. D.R., 10-0405, p. 8, 50 So.3d at 932; La. Ch. C. art. 883.
Assignments of Error No. 1 and No. 2
In the first assignment of error, M.J. contends there is insufficient evidence to sustain the delinquency adjudication for prostitution. M.J. argues that an act of prostitution by a juvenile does not constitute a delinquent act under La. Ch. C. art. 804(3) without proof that the juvenile was not a victim of sex trafficking at the [2014-0622 La.App. 4 Cir. 7] time of the alleged act of prostitution. Relying on recent Louisiana legislation relative to human trafficking, M.J. asserts that the State bears the burden to overcome a statutory presumption, pursuant to La. Ch. C. art. 725, that juveniles engaged in acts of prostitution are victims of sex trafficking and shall not be prosecuted for unlawful acts committed as a result of trafficking. M.J. argues that by failing to allege or introduce evidence establishing that M.J. was not a victim of sex trafficking, the State failed to carry its burden to prove that M.J. committed a delinquent act as defined by La. Ch. C. art. 804(3). M.J. further contends, in the related second assignment of error, that the juvenile court committed reversible error by finding the State did not have the burden of proving M.J. was not a victim of sex trafficking. By failing to apply that burden of proof on the State, M.J. argues the juvenile court clearly erred in finding there was sufficient evidence beyond a reasonable doubt to adjudicate M.J. delinquent for a violation of La. R.S. 14:82.
In order to adjudicate a juvenile delinquent, the State must prove beyond a reasonable doubt that the juvenile committed the delinquent act alleged in the petition. La. Ch. C. art. 883. The burden of proof in a juvenile delinquency proceeding is no less strenuous than the standard of proof in an adult criminal proceeding. See State in the Interest of J.T., 11-1646, p. 5
(La.App. 4 Cir. 5/16/12), 94 So.3d 847, 852; State ex. rel. C.B., 09-1114, p.6 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 528. Where an adjudication is based on circumstantial [2014-0622 La.App. 4 Cir. 8] evidence, such evidence " must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State ex. rel. C.B., 09-1114, p.6, 28 So.3d at 528 (citing State v. Langford, 483 So.2d 979, 983 (La. 1986)).
When evaluating the sufficiency of the evidence to support a juvenile adjudication, this court has a constitutional duty to review the law and facts of the case. La. Const. art. V § 10(B). The Jackson v. Virgina standard applied in all criminal proceedings requires " a bare review of facts through the prism of one of the parties, the prosecution," to determine whether any rational trier of fact could be convinced beyond a reasonable doubt; whereas, Louisiana courts apply a broader standard in juvenile cases, which " looks to this particular trier of fact and whether his or her decision that there was proof beyond a reasonable doubt is not clearly wrong and is reasonable." State ex rel. DR., 10-0405, pp. 13-14, 50 So.3d at 934-35. This scope of review remains highly deferential to the trier of fact and does not permit the appellate court to substitute its own factual and credibility determinations for those of the trier of fact. Id.; State in the Interest of C.D., 11-1701, p. 6 (La. 7/2/12), 93 So.3d 1272, 1276. Applying this standard, we must ...