State in the Interest of N.W.L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-347

STATE IN THE INTEREST OF

N.W.L.

************

APPEAL FROM THE
JEANERETTE CITY COURT
PARISH OF IBERIA, NO. 2115
HONORABLE CAMERON B. SIMMONS, CITY JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

DELINQUENCY REVERSED;
DISPOSITION VACATED; CASE REMANDED.

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
N.W.L.

J. Phil Haney
District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
Post Office Box 268
Jeanerette, Louisiana 70544
(337) 276-5603
Counsel for:
State of Louisiana

SULLIVAN, Judge.

N.W.L., a juvenile, was charged by Petition for Delinquency with aggravated

burglary, a violation of La.R.S. 14:60. At his initial hearing, N.W.L. entered a denial.

On December 20, 2007, an adjudication hearing took place, and N.W.L. was adjudged

delinquent. Following a disposition hearing on January 24, 2008, the trial court

ordered that N.W.L. be placed into the custody of the Department of Public Safety

and Corrections (Office of Youth Development) for two years with a recommendation

for non-secure placement.

N.W.L. now appeals his adjudication and disposition.

FACTS

The State alleged that N.W.L., along with two other juveniles, entered the

residence of the Iden family in Jeanerette without permission, while a fourth juvenile

stood lookout outside the residence. Afterwards, the Idens discovered that a pistol

was missing.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile

criminal proceeding is entitled to an error patent review, this court has found that

such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See

State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081.

After reviewing the record, we find an error patent regarding N.W.L.’s adjudication

which requires reversal. See State v. Vincent, 387 So.2d 1097 (La.1980).

The Children’s Code articles and jurisprudence require a trial court to find that

a juvenile violated a specific statute or ordinance; a general finding of delinquency

is insufficient. Louisiana Children’s Code Article 804(3) defines delinquent act as

1

“an act committed by a child of ten years of age or older which if committed by an

adult is designated an offense under the statutes or ordinances of this state.”

Louisiana Children’s Code Article 883 provides: “In 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.” Additionally, “[f]or an

adjudication of delinquency . . . it must be proved that the juvenile violated a specific

statute or ordinance, and every element of the crime must be proved.” State v.

Melanson, 259 So.2d 609, 613 (La.App. 4 Cir. 1972). See also, State ex rel. D.P.B.,

02-1742 (La. 5/20/03), 846 So.2d 753.

The Petition for Delinquency charged N.W.L. with aggravated burglary, a

violation of La.R.S. 14:60. Additionally, the petition provided, in pertinent part:

On September 20, 2007 at 1800 hrs the said juvenile participated
in committing a burglary at the residence of the Idens’ [sic] located [at]
2109 Deslatte Street. Once entry was gain [sic] into the residence the
subject stolen [sic] a 9MM Handgun, thus arming themselves as th[e]y
left the residence.

The caption of the minute entry of the initial hearing, however, contains the charges

of aggravated burglary and unauthorized entry. The State asserts that it orally

amended the bill of information at the initial hearing to add the charge of

unauthorized entry of an inhabited dwelling to the original charge of aggravated

burglary. The minute entry of the initial hearing indicates that the trial court advised

N.W.L. of the “nature of the allegation in the petition.” Information obtained from

the trial court indicates that no written charge of unauthorized entry of an inhabited

dwelling is available.1 Nevertheless, at the beginning of the adjudication proceeding,

the trial court stated: “I am going to find this matter is of proper posture to come

1
In response to this court’s inquiry regarding a related appeal by M.L.L., one of N.W.L.’s
accomplices, the trial court advised that no transcript or recording of the initial hearing is available.

2

before the court for purposes for adjudication hearing under the delinquency code as

a result of the charges brought against each of the Juveniles for aggravated burglary

and an unauthorized entry.”

At the adjudication hearing, the trial court found, in pertinent part:

Considering the taped statement that was issued by the fourth juvenile
that was [sic] previous [sic] been tried in this matter. He seemed to be
pretty clear based upon that statement that the four of them went to the
house for the purposes of gaining entrance to the home and removing
the firearm of [sic] the gun; specifically at the urging of N.L. and that
M.L. actually was his co-conspirator to the fact that he went in the house
with him specifically for that . . . .

I do believe that the state has established beyond a reasonable doubt that
on or about the [sic] September 20, 2007 that the juveniles did in fact
enter the home of Idens for the purpose of committing a theft and that
such entry was in fact both [sic] an unauthorized entry of an inhabited
dwelling pursuant to the provisions of La. Revised Statute 14:62.3.

The issue of the aggravated burglary, one of the basic tenants [sic] of
aggravated burglary, is that after entering the individual or in this case
as principle [sic] individuals arm themselves with a dangerous weapon.
The testimony and the evidence seem to be very clear that some items
were taken from the home. And in this case the only testimony, other
than the fact that a gun is missing during the occurrence of this burglary,
and the evidence would suggest that the gun was taken in the burglary.

However, the testimony of the witnesses, including the testimony of the
other juvenile that was there, that he didn’t see the gun; he didn’t see
anybody with the gun. All he saw was some bullets that were taken.
Making it impossible for the court to conclude that the States [sic]
carried the burden of proven [sic] beyond a reasonable doubt that an
aggravated burglary was committed, because I can’t find that someone
armed themselves with a dangerous weapon specifically the gun.

I do believe that the defendants, as juveniles, did in fact commit a
violation as previously stated of La. Revised Statute 14:60.3 [sic],
Unauthorized entry of an inhabited dwelling. It is a felony grade
adjudication. In addition to that, I also believe that they committed a
violation of La. Revised Statute 14:62, which is a simple burglary. And
by that also violation of La. Revised Statue [sic] 62.2, which is a simple
burglary of an inhabited dwelling. The dwelling being the home of the
Iden’s [sic] as specifically testified in this [sic].

3

As a result of this finding I am going to find that both N.L. and M.L. are
delinquent offenders as a result of this offense.2

The minute entry from the adjudication hearing reflects that the State amended

the aggravated burglary charge to simple burglary. However, the transcript of the

adjudication hearing does not indicate that such an amendment was made.

Nevertheless, the pre-disposition report, which was prepared by the Office of Youth

Development at the trial court’s request, states that the trial court found that N.W.L.

committed the offenses of simple burglary and unauthorized entry of an inhabited

dwelling.

The responsive verdicts listed in La.Code Crim.P. art. 814(A)(42) for

aggravated burglary are as follows:

Guilty.
Guilty of attempted aggravated burglary.
Guilty of simple burglary.
Guilty of attempted simple burglary.
Guilty of simple burglary of an inhabited dwelling.
Guilty of attempted simple burglary of an inhabited dwelling.
Guilty of unauthorized entry of an inhabited dwelling.
Guilty of attempted unauthorized entry of an inhabited dwelling.
Not guilty.

After carefully reviewing the record, however, we are unable to determine

whether the trial court found that N.W.L. committed unauthorized entry of an

inhabited dwelling only, unauthorized entry of an inhabited dwelling and simple

burglary, or unauthorized entry of an inhabited dwelling, simple burglary, and simple

burglary of an inhabited dwelling.3

2
The minute entry from the adjudication hearing does not indicate the specific offense or
offenses which the trial court found that N.W.L. committed.
3
The State asserts that the trial court found that N.W.L. committed the offense of
unauthorized entry of an inhabited dwelling. N.W.L. asserts that the trial court found that he had
committed simple burglary, simple burglary of an inhabited dwelling, and unauthorized entry of an
inhabited dwelling.

4

Although there are no reported cases dealing with this issue when the trier of

fact was a judge, this issue has been addressed when the trier of fact was a jury. In

State v. Broadnax, 216 La. 1003, 1018, 45 So.2d 604, 608 (1950), the court held that

“the first object of the appellate court in construing the verdict is to ascertain with

reasonable certainty the intention of the jury, which intent may be ascertained or

arrived at by reference to the indictment or information and the charge of the court.”

The Broadnax court further explained:

There are certain well recognized rules of construction to be used
in determining whether a verdict returned by a jury is so obscure,
uncertain, and meaningless as to be invalid.

....

“In arriving at the intention of the jury the verdict should receive
a liberal rather than a strict construction. The verdict is not to be
construed as strictly as a pleading, but is to have a reasonable
intendment and construction. It should be construed with reference to
the pleadings, and it should be construed with reference to the evidence,
instructions, the proceedings at the trial, the forms of verdict submitted,
and to the entire record; and if, when so construed, it is definite and
clearly expresses the intention of the jury and is otherwise legal,
technical objections or mere inaccuracies of expression will not render
it void. If the intention of the jury can be ascertained with reasonable
certainty, the verdict will be sustained.”

The appellate courts of this country have recognized, accepted,
and followed these rules. . . .

Id. at 216 La. at 1010-13, 45 So.2d at 606-07 (quoting 23 C.J.S. Criminal Law, §

1409, p. 1107). See also, State v. Williams, 386 So.2d 1342 (La.1980) and State v.

Odle, 02-226 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, writ denied, 03-625 (La.

6/20/03), 847 So.2d 1219.

Consequently, we must try to construe the trial court’s finding by reviewing the

record to ascertain, with reasonable certainty, its intention. At the disposition

hearing, the trial court stated, in pertinent part:

5

Ok, this under Docket #2114 in the interest of M.L., it’s an aggravated
burglary charge [that] occurred on or about September 20, 2007.

N.L. is #2115. . . .

In this case, the court really hasn’t changed its mind that a confession as
it originally implicated these young people that for the most part that it
was N.L., M.L. and D.J. who went into the house, while D.A. acted as
a lookout and while they were in the house did physically remove the
firearm that belonged to the Idens.

....

In the matter of the State of Louisiana, in the interest of N.L., I am
satisfied based upon the documentation that has been provided and the
recommendations made therein; the review of the school records and the
testimony of the parties, that again there are not sufficient community
based resources to avoid the need for removal of the juvenile from the
community. I am also going to remand N.L. to the custody of the State
of Louisiana, for a period of two years, with the Office of Youth
Development, with the recommendation for non-secure placement.

At the disposition hearing, the trial court never referred to the specific offense or

offenses which he had found that N.W.L. committed. The custody order signed by

the trial court provides that N.W.L. was adjudicated delinquent on the offenses of

simple burglary and unauthorized entry of an inhabited dwelling.

After reviewing the record, we are unable to ascertain with reasonable certainty

regarding which offense or offenses the trial court determined that N.W.L. committed.

Having so found, we must determine the proper remedy for this error.

In State v. Nazar, 96-175 (La.App. 4 Cir. 5/22/96), 675 So.2d 780, the

appellate court found that the trial court lacked authority to clarify its verdict. Nazar

was originally charged with aggravated battery, but the charge was amended to

simple battery. The trial court found the defendant guilty of attempted simple battery,

a non-verdict. The State filed a motion to clarify the verdict. The trial court vacated

its previous verdict and found the defendant guilty of simple battery. Nazar appealed

6

to the Criminal District Court Appellate Division, which reversed the conviction and

acquitted him of the charge. The fourth circuit granted the State’s application to

review the ruling.

On appeal, one of the arguments asserted by the State was that the trial court

had authority to replace the invalid verdict with a valid verdict pursuant to La.Code

Crim.P. art. 813. The fourth circuit held, in pertinent part:

According to the State, the trial court may vacate its prior verdict
and find the defendant guilty of simple battery. La.C.Cr.P. art. 813
provides:

If the court finds that the verdict is incorrect in form or is
not responsive to the indictment, it shall refuse to receive
it, and shall remand the jury with the necessary oral
instructions. In such a case the court shall read the verdict,
and record the reasons for refusal.

Under La.C.Cr.P. art. 820 all provisions regulating responsive
verdicts and the effect of verdicts shall apply to cases tried without a
jury. Contrary to the State’s position, La.C.Cr.P. art. 813 does not
provide for a motion to clarify the verdict. The State cites no article of
the Code of Criminal Procedure or statute which gives the trial court
authority to change its prior verdict. The trial court had no authority to
vacate a prior verdict of guilty on attempted simple battery (even though
not a recognized crime) and to find the defendant guilty of the greater
offense of simple battery. The trial court erred by “clarifying” the
verdict to guilt [sic] of simple battery.

Id. at 781-82.

We agree with the holding in Nazar and conclude that the fourth circuit’s

reasoning is applicable to situations where an appellate court is unable to ascertain

the lower court’s finding as to which offense(s) the defendant has been found guilty

of committing. Accordingly, we reverse N.W.L.’s adjudication of delinquency,

vacate his disposition, and remand the matter to the trial court for further proceedings.

Louisiana Code of Criminal Procedure Article 598(A) provides that “[w]hen

a person is found guilty of a lesser degree of the offense charged, the verdict or

7

judgment of the court is an acquittal of all greater offenses charged in the indictment

and the defendant cannot thereafter be tried for those offenses on a new trial.” The

ruling of the trial court clearly indicates that the State failed to present sufficient

evidence to support a finding that N.W.L. committed aggravated burglary; rather, the

evidence shows that N.W.L. committed a lesser included offense or offenses.

Therefore, we order that N.W.L. be acquitted of the charge of aggravated burglary.

Our disposition of the error patent addressed herein pretermits discussion of

N.W.L.’s assignments of error and other errors patent.

CONCLUSION

We reverse N.W.L.’s adjudication of delinquency, vacate his disposition, and

remand the matter to the trial court for further proceedings. Additionally, an order

of acquittal is entered for the charge of aggravated burglary.

DELINQUENCY REVERSED; DISPOSITION VACATED; CASE

REMANDED.

8