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State ex rel. D.H.

Court of Appeals of Louisiana, Fourth Circuit

April 22, 2015

STATE OF LOUISIANA IN THE INTEREST OF D.H

APPEAL FROM JUVENILE COURT ORLEANS PARISH. NO. 2013-254-03-DQ-C, SECTION " C" . Honorable Candice Bates Anderson, Judge.

Katherine M. Franks, LOUISIANA APPELLATE PROJECT, Abita Springs, LA, FOR APPELLANT, D.H.

Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, FOR APPELLEE/STATE OF LOUISIANA.

Court composed of Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Madeleine M. Landrieu, Judge Joy C. Lobrano, Judge Rosemary Ledet. BONIN, J., DISSENTS WITH REASONS. LOBRANO, J., DISSENTS WITH REASONS.

OPINION

Madeleine M. Landrieu, J.

[2014-0626 La.App. 4 Cir 2] D.H., a juvenile, appeals the trial court's judgment adjudicating her delinquent of committing theft, a violation of La. R.S. 14:67.10. For the reasons that follow, we reverse the judgment of the trial court.

FACTS AND PROCEEDINGS BELOW

D.H. is a thirteen-year- old straight-A, seventh-grade student and promising athlete. She was arrested, along with her mother,[1] at Rouses Supermarket in New Orleans East for theft of approximately $33.00 worth of meat. After the adjudication hearing, the trial court adjudicated D.H. as delinquent and gave her a public reprimand.

DISCUSSION

In her sole assignment of error, D.H. asserts that the evidence was insufficient to establish the elements of theft beyond a reasonable doubt. We agree.

Page 1067

Louisiana Children's Code article 833 states that " [i]n order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition." Louisiana [2014-0626 La.App. 4 Cir 3] Constitution Article V, § 10(B) mandates that an appellate court review both law and facts when reviewing juvenile adjudications. Therefore, as in the 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 in the Interest of Batiste, 367 So.2d 784 (La.1979). Thus, we apply the " clearly wrong-manifest error" standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt. State in the Interest of J.J., 2013-0548, p.3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250.

Louisiana Revised Statute 14:67.10 defines theft of goods as " the misappropriation or taking of anything of value which is held for sale by a merchant, either without the consent of the merchant to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations." Theft is a crime which requires specific intent. State v. Mercadel, 12-0685, p. 10 (La.App. 4 Cir. 7/24/13), 120 So.3d 872, 879. Specific 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).

The following evidence was adduced at the adjudication hearing.

Karl Thomas, a loss prevention officer at Rouses, testified that he observed D.H. and her mother in the store with a shopping cart. He noticed two purses and several packages of meat in the top part of the basket, the area where a small child [2014-0626 La.App. 4 Cir 4] would sit. He saw nothing else in the basket. Mr. Thomas testified that D.H. and her mother " circle[d] around" the cart, and D.H.'s mother concealed the items in the purses. Mr. Thomas stated that he saw the mother put all of the meat into the different purses. On cross-examination, Mr. Thomas reiterated that he did not see D.H. conceal the meat in either of the purses. The mother handed one purse to D.H., and they proceeded to walk out of the store. After D.H. and her mother had proceeded past all points of sale, Mr. Thomas, along with two other employees, identified themselves and asked to speak with the mother regarding the situation. The mother eventually admitted to having stolen items in her purse. Mr. Thomas asked D.H. if there was anything in her purse. D.H. nodded and began crying. Mr. Thomas recovered three packs of steaks from the mother's purse and a package of ground meat from D.H.'s purse.[2]

D.H.'s mother testified that she was stopped at Rouses on the day in question because she " had put stuff in [her] purse and in [D.H.'s] purse." [3] The mother testified that at the time she concealed the items, D.H. was in another aisle. She testified that D.H. did not know that there were stolen items in her purse.

In adjudicating D.H. delinquent, the judge stated, " I don't think you ever had the intention to go in Rouses and steal from them, but once your mother made

Page 1068

that decision, she pulled you in this." This factual determination is not in accordance with the adjudication. To adjudicate D.H. delinquent, the judge had to find that [2014-0626 La.App. 4 Cir 5] D.H. possessed the requisite specific intent to commit theft, or steal. We agree with the trial court that the evidence was insufficient to establish that D.H. has this specific intent. Accordingly, the judge erred in adjudicating D.H. delinquent for committing theft.

CONCLUSION

We find insufficient evidence in the record to support this delinquency adjudication. Therefore, we reverse the juvenile court's judgment adjudicating D.H. delinquent for the crime of theft.

REVERSED

DISSENT

BONIN, J., DISSENTS WITH REASONS.

I respectfully dissent.

The specific intent involved in a theft of goods is the " intent to deprive the merchant permanently of whatever may be the subject of the misappropriation or taking ... and may be inferred when a person ... [i]ntentionally conceals on his person or otherwise goods held for sale." La. R.S. 14:67.10 A(1). The circumstantial evidence suffices in this case to establish beyond a reasonable doubt that the taking without payment of steaks and ground meat from the supermarket was done with the intent to deprive the merchant permanently of those goods. And, of course, one is guilty as a principal when aiding and abetting in the commission of a crime. See La. R.S. 14:24. Consequently I find that the trial judge was not necessarily clearly wrong in adjudicating D.H. a delinquent despite the distasteful aspects of her prosecution.

But, as Judge Lobrano explains in her dissenting opinion, the juvenile judge committed legal error in failing to consider an authorized outcome under La. Ch.C. art. 884 B, and thus I would conditionally vacate the delinquency adjudication and, like JUDGE LOBRANO, remand for the juvenile judge to consider whether the best interests of this child, including avoiding stigmatization, is served by adjudication under Article 884 B incorporating La. Ch.C. art. 730(7).

LOBRANO, J., DISSENTS WITH REASONS.

I respectfully dissent. I would vacate the court's delinquency adjudication and disposition and remand the case to determine whether the evidence warrants a finding that D.H.'s family is in need of services rather than finding that D.H. is a delinquent.

Immediately after the adjudication hearing, the judge stated the following:

. . . Unfortunately, mom, you have put your daughter in this situation and you did steal something from Rouses. And it's too bad that I'm going to have to adjudicate this young lady delinquent for theft because she intentionally concealed an item that was in her purse.
. . . I don't think you ever had the intention to go in Rouses and steal from them, but once your mother made that decision, she pulled you in this.
. . . I'm really sorry because I tried to find any way possible to not have you adjudicated delinquent for this charge. Because I know you are a good kid who has good grades, and you made a decision based on something that your mother made you do, okay.
So really at this point I would -- ODAP is obviously relieved of supervision, and I really do not want to -- do you want to waive delays? Because really what I'd like to do is give her a public reprimand, okay. . . .

Page 1069

So at this time I'm going to give [D.H.] what I consider a public reprimand, which means that you are not going to go on any probation. This is not something that will follow your record, . . .
So I'm going to admonish you not to have any further violations of the law; not to get into any further trouble. I'm not going to put you under anybody's supervision.
So your disposition is that I'm going to order that you do not become a follower and learn to be leader. And I am also going to close your case, and there are no fees that will be owed in this case.

The court erred in finding that there was no other option but to find D.H. a delinquent, especially in light of the authority provided to the court under La. Ch.C. art. 884(B) to recharacterize a child as a member of a family in need of services (F.I.N.S.), rather than a delinquent child.[1] One of the grounds for adjudicating a child as a member of a family in need of services is that " a caretaker has caused, encouraged, or contributed to the child's behavior enumerated in this Article or to the commission of delinquent acts as defined in Title VIII." La. Ch.C. art. 730(7). The court properly found that D.H.'s mother caused, encouraged, and contributed to D.H.'s behavior in question. Thus, the court's decision is clearly not in the best interest of D.H. and is in error for failing to determine whether the evidence warrants the requested adjudication of delinquency or the Article 884(B) authorized adjudication of F.I.N.S. Therefore, I would vacate the court's delinquency adjudication and disposition and remand the case to determine whether the evidence warrants a finding that D.H. is a F.I.N.S. child rather than finding that D.H. is a delinquent.


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