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State ex rel. D.J.S.

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

STATE IN THE INTEREST OF D.J.S.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 27944 HONORABLE W. MITCHELL REDD, DISTRICT JUDGE

          Annette Fuller Roach Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: D.J.S.

          John F. DeRosier District Attorney Elizabeth B. Hollins Cynthia Guillory Assistant District Attorneys Fourteenth Judicial District COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE

         The minor, D.J.S., [1] appeals from his adjudication as delinquent after having been found to have committed the offense of telephone harassment, in violation of La.R.S.14;285(A)(2). For the reasons set forth herein, we affirm.

         DISCUSSION OF THE RECORD

         On August 17, 2015, the State of Louisiana filed a petition seeking to have the juvenile, D.J.S., ten years of age at the time, declared a delinquent for having committed the offense of telephone harassment, by making obscene or threatening phone calls to the principal of the school he attended, prior to his expulsion based on other behavior. The petition specifically alleged that D.J.S.:

[V]iolated Louisiana Revised Statute 14:285.A. (1) (Telephone Harassment) in that, on or about July 9, 2015, he did engage in or institute at least eight (8) telephone calls to Joy Fox, W/F, age 52, principal of R.W Vincent Elementary School, 1634 Beglis Parkway, Sulphur, Calcasieu Parish, Louisiana, by using profane language in attempt to coerce, intimidate, or harass the victim, without the victim's consent.

         Through his attorney, D.J.S. entered a denial of the charge, and a hearing on the petition was originally set for September 18, 2015. The hearing was continued and reset on multiple occasions primarily because of the non-appearance of D.J.S. and his parent, but also on three occasions on motion of the state. An adjudication hearing was finally held on May 26, 2017.

         During the adjudication hearing, Ms. Fox testified that D.J.S. attended her school for two years. She stated that she received a telephone call on May 15, 2015, at 10:04 a.m., during which the caller asked, "When is the talent show?" Ms. Fox testified that she recognized the voice as that of D.J.S., and when she looked at the number on the caller ID, she recognized the number as that of his mother, Stacy Bigalow. Ms. Fox said that after she responded that they were not having a talent show, she asked that the caller identify himself. She stated that the caller's response was, "This is your death threat, bitch." Ms. Fox hung up the phone and contacted the school system's risk management office, who in turn contacted the Calcasieu Parish Sheriffs Office.

         Ms. Fox testified that she recognized DJ.S.'s voice because she had dealt with him several times a week for an extended period of time, either for disciplinary issues and in general conversation, and she recognized the phone number due to her extensive contact with DJ.S.'s mother. She stated that the caller's phone number matched the phone number of D.J.S.'s mother on the school's emergency contact card. The card listed D.J.S.'s home number as 274-7823.[2] Ms. Fox testified that the other phone numbers listed on the card were 707-4830 (D.J.S.'s aunt), 377-7804 (Evette Sibley), and 707-2081 (Karen Thomas).

         According to Ms. Fox, D.J.S. had visited her office fourteen times, and she had visited with him on other occasions outside the school office as well. She testified that from October 8, 2014 through January 26, 2015, D.J.S. went to her office every morning and afternoon and visited with either her or the assistant principal. She said that these visits were started in an effort to curtail the problems that the school was having with D.J.S.[3] When he was in the office for these visits, Ms. Fox testified that she spoke with him individually with no other students present. She stated that after these visits ended in January 2015 (at his mother's request), D.J.S. visited the office nine more times, ending on April 16, 2015, which was his last day to attend the school prior to his suspension pending a hearing. She stated that there was no doubt in her mind that the call she received was from D.J.S., although she admitted that she had not previously heard his voice over the phone. She said that she recognized his voice and knew the number. She stated that the last time she had contact with D.J.S., prior to the call, was at a hearing held on May 4, 2015, and the last time he was present at school was April 16, 2015, as he did not complete the school year.

         Corporal Patrick Bordelon, of the Calcasieu Parish Sheriffs Office, responded to the school that same day. Ms. Fox testified that she informed Corporal Bordelon that she recognized the phone number as D.J.S.'s mother's cell phone number, and she provided him D.J.S.'s emergency contact information. She said that she did not provide him with the other phone numbers on the card. Ms. Fox testified that the only phone number used by the school was (337) 217-4690.

         Corporal Bordelon testified that after he arrived at the school the principal advised him that she had been receiving harassing phone calls, and she believed they were being made by a student who was recently expelled. She told Corporal Bordelon that she recognized D.J.S.'s voice. As Corporal Bordelon was taking down information, he stated that the phone rang. He said that Ms. Fox looked down, recognized the number, and said, "That's him, again." Corporal Bordelon testified that he answered the phone, announced who he was, and asked for the name of the caller. He stated that there was silence on the other end and then the caller hung up. Corporal Bordelon recalled that "they" called back two or three more times.[4] Before he answered the phone, he stated that he wrote down the phone number to include in his report. Corporal Bordelon testified that Ms. Fox told him who was calling, so he got the school's emergency contact card and wrote down the juvenile's name, date of birth, and contact information. He said that he noticed that the phone number he wrote down for one of the calls was listed on D.J.S.'s emergency contact card.[5]

         Corporal Bordelon identified the numbers on the emergency contact card as 274-7832, [6] 707-4830, 377-7804, and 707-2081. When shown his offense report, he stated that the numbers listed in his report were 244-3622 and 563-6530 and that these numbers were either from the caller ID and/or D.J.S.'s emergency contact card. When shown the emergency contact card in court, Corporal Bordelon acknowledged that the two numbers in his report differed from those on the card, and he affirmed that possibly six numbers were associated with this offense.

         Laura Phenice, the assistant principal at R.W. Vincent Elementary School, testified that her contact with D.J.S. was mostly for disciplinary reasons, which she summarized during her testimony. She said that during the time that D.J.S. was checking in with her on a daily basis, he also came into contact with Ms. Fox because their offices were directly across the hall from each other. Ms. Phenice testified that after the daily check-ins stopped at the request of D.J.S.'s mother, his behavior continued to escalate, so both she and Ms. Fox "put him up for expulsion."

         Dewanis Kim Broussard, a hearing officer and a supervisor with the child welfare and attendance office for the Calcasieu Parish School Board, testified that she received a request for the expulsion of D.J.S. from R.W. Vincent Elementary School on April 17, 2015. She stated that although an expulsion hearing was held, she was forced to end the hearing due to the behavior of D.J.S.'s mother. She said that the matter was turned over to another hearing officer, who held a second hearing on May 4, 2015. Ms. Broussard testified that the second hearing officer noted that Ms. Bigalow was extremely rude and disrespectful, that she accused Ms. Fox and Ms. Phenice of mishandling D.J.S., and that she called Ms. Phenice an "F-B." Ms. Broussard testified that following this hearing, a decision was made to place D.J.S. in an alternative school starting May 5, 2015.

         Deanna Conn, a juvenile investigator with the Public Defender's Office, testified that she subpoenaed the May 15, 2015 records for the phone numbers listed in the offense report, 244-3622 and 563-6530, and also for 274-7823, Ms. Bigalow's number.[7] Introduced into evidence were the records received from AT&T, the carrier for phone numbers (337) 274-7823 and (337) 244-3622.[8]Attached to the records was a verification of authenticity by a custodian of records for AT&T. Ms. Conn learned that (337) 244-3622 was registered to Mary Chapman, and she was not able to determine Ms. Chapman's relationship to this matter. She testified that she later learned that this phone number was "related to" Ms. Bigalow's sister, Brandy Wilkens, who Ms. Conn stated had nothing to do with this matter. Ms. Conn testified that she inspected the voice usage phone log for (337) 244-3622 and contacted AT&T to determine how to interpret the records, as she was unable to interpret many of the coding items on the records herself. She testified that she was informed by an unnamed AT&T representative that voice usage was reflected as an originating number (the person sending the call) and a terminating number (the person receiving the call.) Ms. Conn stated that her inspection of the phone log revealed that there were no phone calls on May 15, 2015, from (337) 244-3622 to the school number, (337) 217-4690.

         Ms. Conn testified that the first entry in the phone log was at 11:52, which was in Universal Time (UTC), [9] the time the provider AT&T gave in the records. This had to be translated to Central Time (CT), the applicable time zone in this case. Again, Ms. Conn stated that the unnamed AT&T employee informed her that she should use a website, timetemp.com, to convert the time from UTC to CT. She explained that she did this by typing in the date of the offense and using the time converter button, which showed the list of times for the entire day. She stated that the first phone call that the records picked up for that day was at 11:52, which was 6:52 a.m. CT, and there were no calls on May 15, 2015, from (337) 244-3622 to the school number. Ms. Conn testified that (337) 244-3622 was active with AT&T on May 15, 2015, and according to her, it could not be active with another cell phone provider at the same time.

         Ms. Conn testified she also reviewed the subscriber information from AT&T for (337) 274-7823 and learned that the phone was active on May 15, 2015 and was registered to Ms. Bigalow. Using the time converter, she learned that the first phone call shown on the records from Ms. Bigalow's phone was made at 5:53 UTC, which was 12:53 a.m. CT, but there was no log of any calls made to the school number.

         Ms. Conn testified she also subpoenaed records from Sprint. She said that she learned that (337) 563-6530 was registered to Devon Martin, but she was not able to identify his relationship to this matter. She also inspected the phone log for (337) 563-6530 and learned that "[t]hat number was not active at that time of May 15, 2015."

         Ms. Conn testified that her review of the records showed that none of the numbers she subpoenaed records for showed calls made to the school. She reiterated that (337) 244-3622 came from the offense report, and it was her understanding that it was one of the numbers that showed up on the caller ID. She testified she got (337) 274-7823 from the offense report "from the school information sheet." Ms. Conn testified that the provider records were certified as being authentic, and she had no reason to think that they were not valid.

         Ms. Conn testified that according to her investigation, only one provider could provide service for a phone number at any given time. The prosecutor showed Ms. Conn a print-out from the internet showing that 274-7823 listed Sprint Spectrum as the provider. The print-out showed that the phone number was assigned on June 28, 2001, but it did not specifically show who the carrier was on May 15, 2015. The AT&T records showed that AT&T was providing service for this number on May 15, 2015.

         Ms. Conn explained on cross-examination that records from May 14, 2015 were not given by the phone companies, but they did include records from May 16, 2015, ...


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