State in the Intrest of M.L. L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAK 08-363

STATE IN THE INTEREST

OF

M. L. L.

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APPEAL FROM THE
JEANERETTE CITY COURT
PARISH OF IBERIA, NO. 2114
HONORABLE CAMERON B. SIMMONS, CITY COURT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

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

DELINQUENCY REVERSED; DISPOSITION VACATED; CASE
REMANDED.

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
M. L. L.

Walter James Senette, Jr.
Assistant District Attorney
Sixteenth Judicial District Court
5th Floor, Courthouse Building
Franklin, LA 70538
Counsel for Plaintiff/Appellee:
City of Jeanerette

EZELL, JUDGE.

The Juvenile, M.L.L., was charged by Petition of Delinquency with aggravated

burglary, a violation of La.R.S. 14:60. On November 15, 2007, an initial hearing was

held, and M.L.L. entered a denial to the allegation. On December 20, 2007, an

adjudication hearing was held where the city court judge adjudicated M.L.L.

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

was held, and the city court judge ordered M.L.L. to serve two years in the custody

of the Department of Public Safety and Corrections with a recommendation for a

non-secure placement.1

The Juvenile is now before this court alleging the following assignments of

error:

1. The trial court erred in that the disposition of thirteen-year-old
M.L.L. into the custody of the Office of Youth Development (OYD) was
not supported by the record of the case because M.L.L. was a first
offender who OYD thought could be successfully rehabilitated on
probation. The court gave no reason for its refusal to follow the
recommendations of the State and instead imposed a harsh two-year
term of placement with OYD.

2. The disposition is illegal and a remand is necessary because there
was no evidence or consideration at the disposition hearing regarding
the best interests of M.L.L. or what disposition would be most consistent
with the purposes of the Children’s Code.

FACTS

M.L.L., along with two other juveniles, entered the Idens’ residence without

permission, and some items were taken.

1
The transcript of the disposition hearing indicates that the city court judge
mistakenly stated the Juvenile was committed to the custody of the “State of
Louisiana,” instead of the Department of Public Safety and Corrections. See La.Ch.
Code art. 899.

1

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 the Juvenile’s

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

1980).

To support an adjudication of delinquency, the Children’s Code Articles and

jurisprudence require a juvenile court judge to find 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 “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.

At the adjudication proceeding, the city court judge 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

2

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 14:62.3,
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 Statute 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].

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.

In this case, the city court judge clearly found that the State failed to prove

M.L.L. committed the offense of aggravated burglary but also found that M.L.L.

committed a lesser included offense or offenses. 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.

3

Guilty of unauthorized entry of an inhabited dwelling.
Guilty of attempted unauthorized entry of an inhabited dwelling.
Not guilty.

However, it is unclear whether the city court judge found M.L.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.2

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

fact was a judge, this issue was addressed when the trier of fact was a jury, which

lends guidance. In State v. Broadnax, 219 La. 1003, 45 So.2d 604, 608 (1950), the

court held that, “[t]he 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.” Additionally, in Broadnax, the court explained in pertinent part:

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 53 Am.Jur., “Trial”, sec. 1036, p. 716, we find the following:
“Because inartificial expressions and words are sometimes employed in
framing a verdict, the first object in the construction of a verdict is to
learn the intent of the jury, and when this can be ascertained, such effect
should be given to the verdict, consistent with legal principles and
construing it as a whole, as will most nearly conform to the intent. The
jury’s intent is to be arrived at by regarding the verdict liberally, with
all reasonable intendments in its support and with the sole view of
ascertaining the meaning of the jury, and not under the technical rules
of construction which are applicable to pleadings. In the interpretation
of an ambiguous verdict, the court may make use of anything in the
proceedings that serves to show with certainty what the jury intended,
and for this purpose, reference may be had, for example, to the

2
The State asserts in its brief that the city court judge found the Juvenile
committed the offense of unauthorized entry of an inhabited dwelling. In the
Appellant’s brief, the attorney does not refer to the offense or offenses which the city
court judge found the Juvenile committed.

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pleadings, the evidence, the admissions of the parties, the instructions,
or the forms of verdict submitted.” (All italics ours.)

The same work continues in sec. 1050, p. 727: “* * * every
reasonable construction should be adopted for the purpose of working
the verdict into form so as to make it serve. Further, if, by reference to
the record, any uncertainty in the verdict can be explained, it is
sufficient to sustain the appropriate judgment.”

....

And, further, in § 1409, p. 1107, it is stated:

“In construing a verdict the object is to arrive at the intention of
the jury, and when this can be ascertained, if it is consistent with legal
principles, such effect should be given to their finding as will conform
to the intent.”

“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 10-13, 45 So.2d, 606-07. 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, this court must try to construe the city court judge’s finding by

reviewing the record to ascertain with reasonable certainty his intention.

The “Petition for Delinquency” charged the Juvenile 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’ located [at] 2109
Deslatte Street. Once entry was gain [sic] into the residence the subject

5

stolen [sic] a 9MM Handgun, thus arming themselves as they left the
residence.

The caption of the minute entry of the initial hearing includes a typed charge

of aggravated burglary and handwritten the charge of unauthorized entry. However,

information obtained from the city court clerk’s office indicates that there was neither

a petition of delinquency filed charging the Juvenile with unauthorized entry nor an

amendment to the original petition adding an unauthorized entry charge.

Nevertheless, at the beginning of the adjudication proceeding, the city court judge

stated that “I am going to find this matter is of proper posture to come 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.”

The State, in its brief to this court, claims that it orally amended the bill of

information at the initial hearing from aggravated burglary to simple burglary. The

minute entry of the initial hearing states only that the juvenile court advised the

Juvenile of the “NATURE OF THE ALLEGATIONS IN THE PETITION,” and

information obtained from the city court clerk’s office indicates that a transcript or

a recording of the initial hearing is not available.

The minute entry from the adjudication proceeding reflects that the State

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

of the adjudication proceeding does not indicate such an amendment was made.

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

Development at the city court judge’s request, states the city court judge found the

Juvenile committed the offense of simple burglary.

At the disposition hearing, the city court judge stated in pertinent part:

6

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

....

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.[3]

....

M.L. admits that he was involved in this particular action.

....

Given the age of the juveniles, in the matter of State of Louisiana, in the
interest of M.L., the Court is satisfied that given the nature of the effect,
that it is going to be the order of the court that M.L. is going to be
ordered to serve two years in the custody of the State of Louisiana.
Remand him into the custody of the Office of Youth Development for
placement with a recommendation for non-secure custody.

We note that at the disposition hearing the city court judge did not refer to the offense

or offenses which he had found the Juvenile committed.

Finally, the custody order signed by the city court judge provides that the

Juvenile was adjudicated delinquent on the offense of simple burglary, a violation of

La.R.S. 14:62.

After reviewing the record, this court finds that it cannot ascertain with

reasonable certainty the intent of the city court judge regarding his finding as to

which lesser included offense or offenses the Juvenile committed.

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

court found the trial court lacked authority to clarify its verdict. Nazar was originally

charged with one count of aggravated battery, but the charge was amended to simple

3
This statement by the city court judge regarding the juveniles removing the
firearm from the Idens’ residence, appears to be inconsistent with his finding at the
adjudication hearing.

7

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

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

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

appealed 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 under

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

According to the Statute, 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 statue 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.

Id. at 781-82.

Therefore, we reverse the Juvenile’s adjudication of delinquency, vacate the

disposition, and remand the matter to the city court judge for further proceedings.

Additionally, this court orders an acquittal for the charge of aggravated

burglary. The ruling of the city court judge clearly indicates that the State failed to

present sufficient evidence to support a finding that M.L.L. committed aggravated

8

burglary; rather, the evidence shows M.L.L. committed a lesser included offense or

offenses. Louisiana Code of Criminal Procedure Article 598(A) provides that “When

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

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 remedy of entering an acquittal on the original charge of aggravated

burglary differs from the remedy applied in cases where the trier of fact finds a

defendant guilty of a non-crime, a non-responsive crime, or an insolubly ambiguous

verdict. For example, in State v. Joshlin, 00-2921 (La.App. 1 Cir. 11/9/01), 804

So.2d 106, the jury found the defendant guilty of attempted insurance fraud. The

appellate court found the verdict was insolubly ambiguous, and the verdict returned

by the jury did not clearly convict or acquit the defendant of the charged offense. In

State v. Mayeux, 498 So.2d 701 (La.1986), the defendant was found guilty of a non-

responsive verdict and the supreme court found that the verdict was “wholly invalid,”

amounted to a conviction of a “non-crime,” and could not operate as a conviction nor

an acquittal. In Nazar, 675 So.2d 780, the court followed Mayeux and held the

defendant’s conviction of a non-crime did not operate as an acquittal or a conviction

for double jeopardy purposes. In Vincent, 387 So.2d 1097, the supreme court found

the jury’s verdict was non-responsive to the charged crime, vacated the conviction

and sentence, and remanded the matter. There was no mention in the opinion that an

acquittal should be ordered regarding the offense originally charged. See also, State

v. Thibodeaux, 380 So.2d 59 (La.1980).

For the reasons discussed above, this court orders the entry of an acquittal as

to the charged offense of aggravated burglary.

9

CONCLUSION

We reverse the Juvenile’s adjudication of delinquency, vacate his disposition,

and remand the matter to the city court judge for further proceedings. Additionally,

an order of an acquittal is entered for the charge of aggravated burglary.

DELINQUENCY REVERSED; DISPOSITION VACATED; AND
REMANDED.

10