State of Louisiana in the Interest of C.D.S.

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NOT DESIGNATED FQR PUBLICATION STATE OF LOUISIANA CUURT OF APPEAL FIRST CIRCUiT NO 2012 KJ 0807 STATE OF LOUISIANA IN THE INTEREST OF C S D e P Judgment Rendered AUG 2 2 2012 Appealed from Juvenile Court In and for the Parish of East Saton Rouge State of Louisiana Case No 1O1b10 The Honorable Pamela Taylor Johnson Judge Presiding Sean Collins Baton Rouge Hillar C District Counsel for Appellant Louisiana Moore III Attorney Dylan C Alge Baton Rouge Louisiana S D C Counsel for Appellee State of Louisiana BEFORE C CARTER GUIDRY AND GA JJ J DRY I GAIDRY J A fifteen child identified herein as C was alleged to old year S D be delinguent pursuant petition filed to the by the State on Louisiana Children Code s January 12 2012 according to a The petition charged the alleged commission of domestic abuse battery count one simple criminal damage to property where the damage is less than fve hundred dollars count two and resisting an officer count three violations of La R S After an S 108 S 56 3 35 14 La R 14 and La R 14 respectively adjudication hearing the juvenile court adjudicated C a delinquent S D based on the commission of simple battery a violation of La R 14 S 35 and as alleged simple criminal damage to At the disposition property hearing the juvenile court committed C to the secure custody of the S D Department of Public Safety and Corrections for six months on both counts to be served conditions cutively cons with credit for time served and certain On appeal C ar that the juvenile court erred in S D ues ordering the sentences to be served consecutively and in denying the motion for judgment of acquittal on count one After a thorough review of the record and the errors assigned we affirm the adjudications amend the dispositions and affirm the disposition order as amended STATEMENT OF FACTS On January 2012 C a Baton Rouge r had a physical S D sident altercation whil away from home s child back was cut with a razor According to her mother N the S blade during the altercatian After the child returned home h mother called the polic b the child planned r cause to return to the scene of the altercation The child date ofbirth is September 24 1996 s 2 When the police arrived at the I residence the child back was bleeding and she was taken to the hospital s for treatment S N and the child retu rned home at about 8 p m and the child 00 attempted to leave the home again Noting that it was after the child 6 s 00 m p curfew N refus allow her to leave When the child insisted that S dto she was leaving N stood in front of the door and the child physically S attacked her According to N the child repeatedly hit the upper portion of S her body with closed fists as S N attempted to push her away The child then pushed a 19 tel to the floor and knocked over a glass table inch vision breaking both items S N instructed her other waiting for the police her point the child fled from daughter to call the niece arrived and she the home S police While N was opened the door At that Since the child was not present when the police frst arrived at the home they made follow visits to the up residence that night and apprehended the child aft she returned home r ASSIGNMENT OF ERROR NUMBER UNE In the first assignment of error C contends that the juvenile court S D d err in ordering her six dispositions to be served consecutively th mor Applying La Code Crim P art 493 the child argues the juvenile court 1 should have ordered that the misdemeanor dispositions be served grade The child notes that the offenses arose out of the same concurrently incident and were joined in one petition In its response brief the State concedes the juvenile court erred in ordering that the dispositions be served consecutively but contends the case should be remanded for a new disposition hearing to allow the juv court to determine how to impose nile an aggregate six commitment month 3 The Louisiana sCode specifically provides for the joinder sChildren of two or more delinquent acts in the same delinquency petition whether based upon felony or misdemeanor offenses if th acts are of the same or similar character or constitute parts of the same transaction La Ch Code ar 845 Although La Ch Code art 899 authorizes the confin C C ment of a juvenile in the custody of the Department of Public Safety and Corrections after a misdemeanor delinquency adjudicatian the article grade does not for any provide specific of terms custody Instead the Code states generally for misdemeanor adjudications that n judgment of grade o disposition shall remain in force for a period exceeding the maximum term of for ment imprisor the offense La Ch Code adjudication which A 900 art forms the basis for the The Code thus expressly addresses the custodial disposition only of a single misdemeanor grade delinquent act and does not provide a rule for delinquency adjudications based on several misdemeanor acts charged in different counts in the grade same under th petition authority of La Ch Code art C 845 The s Children Code provides that where procedures are not provided for in that code th court is mandated to proc in accordance with the Code of ed Criminal Procedure See La Ch Code arts 104 03 In State zn the lnterest of B 2005 La 6 906 So J 0913 OS 24 2d 392 per curiam the Louisiana Supreme Court held that La Code Crim P art 493 governed the disposition of a child adjudicated delinquent for 1 misdemeanor offenses State acts charged charged in the by capping a the single petition relator in a disposition to a for grade misdemeanor total of six months linquency d petition Therein the with various rade misdemeanor acts apparently stemming from a single incident in Baton Rouge at the end of 2003 Following the relator admission to the s 4 acts of possession of violation of La R 14 and S 95 8 firearm in a possession of marijuana in violation of La R 40 the juvenile court S 966 entered a disposition committing him to the custody of the Department of ublic F Safety and Corrections for consecutive terms of six months In capping the total disposition that could be imposed at six months the Supreme Court reasoned Under the authority ofi La art S a trial judge in the P Cr C 3 af case misdemeanor arising offenses out of the same transaction and charged in the same bill of information may impose consecutive sentences just as th court may in any other lony f case or misdemeanor but P Cz C La art 1 493 specifically limits the defendant overall sentencing exposure in s the particular circumstance of sic joined misdemeanor offenses to a total of six manths in jail Interest ofB 906 So at 394 J 2d Based on the Supreme Court holding in Interest ofB we find the s J juvenile court erred herein in ordering the dispositions to run consecutively as opposed to Because this case involves two misdemeanor concurrently offenses arisin out of the same transaction and alleged in the same petition the total disposition imposed of number rror d amend the one cannot has merit disposition order exceed six months Thus assignment In Interest of B the Supreme Court J of the nile juv court to provide for concurrent not consecutive dispositions and affirmed the disposition order as amended Similarly we find no need to remand the instant case We amend the disposition order of the juvenile court to provide for concurrent and not consecutive terms of secure custody and hereby affirm the disposition order as amended ASSIGNMENT OF ERROR NUMBER TWQ In the second assignment of error C argues that the juvenile S D court erred in denying her motion for acquittal on the domestic abuse battery 5 offens in alleged count one of the The child contends that petition although th adjudication on count one is based on the commission of a responsive offense the appellate court must look to the original offense alleged in the petition to determin if there was sufficient evid to sustain nce the adjudication The child argues that the State failed to show that a battery had been committed by one household member upon another household member within the meaning of La R 14 S 35 3 At the outset we note that when the child was ound guilty of a lesser degree of the offense alleged on count one the judgment of the juvenile court was in effect an acquittal of the greater offense See La Code Crim P art 598 In arguing that this court must look to the alleged offense to A determine the sufficiency of the evidence to sustain the adjudication of the lesser offense the child relies on State v Collins 2009 La App 1 st 2102 Cir 6 43 So 244 writ denied 201 La 2 57 So 10 28 3d 1893 11 4 3d 31 l cert S U denied 132 S 99 1 L 27 20l 1 Ct 2d Ed Therein the defendant waived his right to a jury trial and the trial court entered responsive verdicts of aggravated battery on attempted second degree murder charges On appeal the deFendant argued that the Stat in failing to present evidence that he had any physical contact with either victim or caused any of the victims injuries did not prove all of the essential elements of the off of nse aggravated battery The defendant claim that d the State was required to prove every element despite the fact that the convictions were by way of responsive verdicts Citing State ex rel Elaire v Blackburn 424 So 24b 2S 1 La 19 cert denied 461 U 959 2d 52 2 S 103 Ct S 2432 77 2d Ed L 131 1983 S this court held that a compromise verdict is allowed for whatever reason the fact finder deems Z As detailed herein it is not necessary to address the merits of this argument The child does not in any manner challenge the adjudication on count two 6 to be fair as long as the evidence is sufFicient to sustain a conviction for the 3 charged offense Collcns merely a pp lies the p rop osition that if there is ri0 objection to an instruction on a responsive v then the reviewing court rdict may affirm the conviction if the evidence would have supported a conviction of the greater offense whether or not the evidence supports the conviction of the responsive offense returned by the fact finder Collins 43 So at 250 3d Nonetheless there is no need to look to the greater offense if the evidence supports a conviction for the responsive offense returned by the fact finder Thus the child reliance on Collins is clearly misplaced and there is no s support for the argument set forth in this assignment of error As further discussed below the adjudication in this case clearly fits the evidence and this court is not required to find sufficient evidenc of the original offense which did not form the basis of the adjudication The adjudication will be uP held if the record supports the juvenile court finding on the lesser s offense The child does not appear to dir challenge the sufficiency of the ctly evidence in support of the delinquent act for which she was adjudicated on count one Nonetheless out of an abundance of caution this court notes that the evidence presented herein clearly established the elements of the simple battery the intentional use of force or violence upon the person of another without the consent of the victim La R 14 S 33 La R 14 S 35 The constitutional standard of review for determining the sufficiency of the evidence is whether viewing the evidence in the light most favorable to the pros any rational trier of fact could conclude that th State cution 3 compramise A verdict is a verdict which does not fit the evidence but which for whatever reason the trier of act deemed to be a fair verdict See S ex rel F 424 ale laire 2d So at 251 7 l proved the essential elements of the crime La Ch Code art 883 La Code Crim P beyond art a reasonable doubt See Jackson v Virginia 443 82l S U 307 319 99 S 2781 2789 6l L 560 1979 However in a Ct 2d Ed juvenile delinquency proceeding an appellate caurt is constitutionally mandated to review the law and facts La Const art V A 14 B See State in the Inter ofL C 96 La App 1 st Cir 6 696 So est 251 97 20 2d 66 670 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 on revi the appellate court should taot disturb this factual w inding iin the absenc of manifest error Reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review State in the Interest of Wilkerson 542 So 577 581 La App 1 st 2d Cir 1989 Herein the child mother testified that the child repeatedly hit her s with her fists in the head and shoulder area without her consent There was no testimony or evidence in conflict with this testimony It is well settled that an appellate court cannot set aside a juvenile court findin of fact in ss the absence of manifest error or unless those findings are clearly wrong See State in the Interest of D 2004 La App lst Cir 2 90b H 21QS OS 11 2d So 554 SS9 Based 0 f on our careful review of the record the juvenile s court finding that there was proof beyond a reasonable doubt of simple battery was not manifestly erroneous or arly cl wrong Considering the foregoing the second assignment of error lacks merit ADJUDICATIONS AFFIRMED DISPOSITIONS AMENDED AND DISPOSITION ORDER AS AMENDED AFFIRMED 8

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