State in the Interest of S.C. J.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-1272

STATE OF LOUISIANA

IN THE INTEREST OF

S.C.J.

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

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22545
HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE

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

JAMES T. GENOVESE
JUDGE

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

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
James T. Genovese, Judges.

ADJUDICATIONS AFFIRMED; DISPOSITION VACATED;
CASE REMANDED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR THE JUVENILE/APPELLANT:
S.C.J.

John F. DeRosier
District Attorney – Fourteenth Judicial District
Carla S. Sigler, Assistant District Attorney
1020 Ryan Street
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

On July 22, 2009, the State filed a petition charging the juvenile, S.C.J.,1 with

armed robbery with the use of a firearm and attempted second degree murder. An

adjudication hearing was held on August 31, 2009, and the trial court found that the

juvenile committed attempted armed robbery and attempted second degree murder.

A disposition hearing was held on September 18, 2009, and the trial court

ordered that the juvenile be placed with the “Department” for a period not to exceed

two years in a non-secure or secure facility. Additionally, the trial court ordered a

psychological evaluation and ordered that the juvenile be brought before the court on

January 11, 2010, for reevaluation. S.C.J. appeals the adjudications and disposition.

For the following reasons, we affirm the trial court’s adjudications, vacate the

disposition, and remand for the imposition of new and separate dispositions.

FACTS

On June 22, 2009, the victim, twenty-one-year-old Demetrius Mitchell

(Demetrius), stole a compact disc (CD) player from S.C.J.’s car. Later that night,

while at his home, Demetrius received a call from S.C.J. who told him that he had a

bullet with his name on it and that he needed to pay him $200.00. Demetrius gave the

CD player to his grandmother, and she returned it.

The next day, Samekia Ceasar (Samekia) called Demetrius to come to her

house to look at some puppies. While looking at the puppies in Samekia’s backyard,

Demetrius saw S.C.J. and S.C.J.’s brother, Josh, coming toward him. S.C.J. cocked

the gun he was holding and said, “Where [sic] my money at?” or “You got my

money?” S.C.J.’s brother punched Demetrius, and Demetrius grabbed him. S.C.J.

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, initials are being used
to protect and maintain the privacy of the minor involved in these proceedings.

1

hit Demetrius on the head with a metal object, and Demetrius heard “Pow.” A single

bullet struck Demetrius’ arm and back. S.C.J. and his brother fled. Demetrius

testified that the brothers patted down his pockets and asked “where is my money,”

but they did not take anything because he did not have anything.

ASSIGNMENTS OF ERROR

S.C.J. assigns the following errors:

1) The evidence introduced at the adjudication hearing of this case
when viewed under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to
prove all of the elements of the offense of attempted second
degree murder beyond a reasonable doubt.

2) The evidence introduced at the adjudication hearing of this case
when viewed under the Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to
prove all of the elements of the offense of attempted armed
robbery beyond a reasonable doubt.

3) Alternatively, prosecution of both attempted second degree
murder and the underlying offense of armed robbery violated the
Double Jeopardy Clause.

4) The record does not contain a written judgment of disposition as
is required by the Children’s Code.

Assignments of Error Numbers 1 and 2:

S.C.J. asserts that the evidence presented by the State was insufficient to

support the adjudications.

In State ex rel. J.M., 99-136, pp. 2-3, (La.App. 3 Cir. 6/2/99), 742 So.2d 6, 7,

this court held in pertinent part:

In a case involving a juvenile, the State has the burden of proving,
beyond a reasonable doubt, the commission of the alleged delinquent
act. La.Ch.Code art. 883. This burden of proof is no less strenuous than
that required in the criminal proceeding against an adult. State In
Interest of Tatom, 463 So.2d 35 (La.App. 5 Cir.1985). On review, the
standard for due process, fashioned by the United States Supreme Court
in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

2

(1979), is applicable to determine whether the evidence was sufficient
to support an adjudication of delinquency in a Juvenile matter. State In
Interest of T.L., 514 So.2d 217 (La.App. 5 Cir.1987). Essentially, while
we review whether the evidence in support of the adjudication of a
Juvenile is sufficient[,] we must determine, viewing the evidence in a
light most favorable to the prosecution, whether any rational trier of fact
could find from the evidence adduced, proof of guilt beyond a
reasonable doubt. State In Interest of Wilkerson, 542 So.2d 577
(La.App. 1 Cir.1989). Furthermore, it is well settled that appellate
review in juvenile delinquency proceedings extends to both law and
facts. La. Const. Art. V, § 10(B) (1974); State In Interest of Batiste, 367
So.2d 784 (La.1979). In Wilkerson, 542 So.2d 577, 581 [citations
omitted], the court stated:

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
review the appellate court should not disturb this factual
finding in the absence of manifest error. Reasonable
evaluation of credibility and reasonable inferences of fact
should not be disturbed upon review.

Louisiana Revised Statutes 15:438 provides “[t]he rule as to circumstantial

evidence is: assuming every fact to be proved that the evidence tends to prove, in

order to convict, it must exclude every reasonable hypothesis of innocence.”

Attempted Armed Robbery

In State v. Stone, 615 So.2d 38, 40 (La.App. 3 Cir.), writ denied, 623 So.2d

1302 (La.1993) (emphasis added), this court explained in pertinent part:

To prove an attempted armed robbery, the State had to prove that
the defendant 1) had a specific intent to commit the crime of armed
robbery, and 2) did an act for the purpose of and tending directly toward
the commission of the crime of armed robbery. State v. Clay, 576 So.2d
1099 (La.App. 3d Cir.), writ denied, 580 So.2d 669 (La.1991).

Article 14:64 requires: 1) a taking, 2) of anything of value,
3) belonging to another, 4) from the person of another or from his
immediate control, 5) by use of force or intimidation, 6) while armed
with a dangerous weapon.

Intent is a state of mind which need not be proven as a fact, but
may be inferred from the facts and circumstances of the transaction and
the actions of the defendant. State v. Boyer, 406 So.2d 143 (La.1981).

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Specific intent is an ultimate legal conclusion to be resolved by the trier
of fact. State v. Graham, 420 So.2d 1126 (La.1982).

The above evidence does not prove, beyond a reasonable doubt,
that defendant possessed the intent to take anything from the store. To
convict of attempted armed robbery, there must be sufficient evidence
to establish the intent to take something of value even though the act of
taking need not be established.

S.C.J. argues that the evidence shows that he attempted to reclaim the money

owed to him by the victim and that he did not attempt to rob the victim. In S.C.J.’s

brief to this court, counsel points out that “S.C.J. also informed the detective that in

addition to the CD player, $200.00 and some CD’s were also taken.” Additionally,

S.C.J. asserts that there was no taking and that the State failed to prove that he had

the specific intent to take the victim’s property.

The victim testified that the night before, when S.C.J. called, he said to pay him

$200.00. According to the victim, when S.C.J. came into Samekia’s backyard

holding the gun, he said to the victim, “Where [sic] my money at?” When the State

asked the victim if he owed S.C.J. any money, the victim responded, “No, ma’am.”

The victim explained that S.C.J. and his brother patted down his pockets and asked

where their money was, but he did not have anything for them to take. Additionally,

the victim clarified that although the medical records from the hospital where he was

taken after the shooting reflected that he stated, “They robbed me,” the correct

statement was that they tried to rob him.

Samekia testified that when S.C.J. entered the backyard with the gun in his

hand, he asked the victim, “What is up now?” She recalled that when Josh came into

the backyard, he asked the victim, “What you got in your pocket?”

Detective Brent Young of the Calcasieu Parish Sheriff’s Office testified that

the victim told him that Josh patted him down while S.C.J. held the gun.

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Additionally, Detective Young stated in pertinent part:

Q. Officer, what day did you speak with Demetrius, the victim?

A. It was after the incidence [sic], a couple of days.

Q. Okay. Now, you said that Demetrius admitted to you that he
burglarized [S.C.J.]’s car, correct?

A. Yes.

Q. Okay. And Demetrius also admitted to you that he knew [S.C.J.] did
not intend to shoot him; is that correct?

A. He stated that, yes.

Q. Now, you had a conversation with [S.C.J.] at the police station; is that
correct?

A. Yes.

Q. Okay. And he told you that $200 was also missing; is that correct?

A. Yes. But we had nothing to substantiate that.

Q. Okay. And you also asked [S.C.J.] if Josh patted down Demetrius;
is that correct?

A. Correct.

Q. And he denied that; is that correct?

A. Correct.

Q. So his story also is different from Samekia’s in that regard, correct?

A. Correct.

Q. Okay. Now, during your conversation with [S.C.J.], you and him
spoke about Josh, also; is that correct?

A. Correct.

Q. Joshua Ardie. Okay. And [S.C.J.] told you that Josh did ask
Demetrius if [he] had the money to just give it back; is that correct?

A. Correct.

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Q. So in other words, he was saying he didn’t pat him down; he just told
him to give the money back that he had stolen; is that correct?

....

Q. Samekia Ceasar told you that Josh patted Demetrius down?

A. Correct.

Q. Correct. But [S.C.J.] is saying that Josh did not pat him down; is that
correct?

A. Correct.

Q. Okay. And during your conversation with [S.C.J.], he said that Josh
did say, “If you have the money, return it”?

A. Correct.

Q. Okay. Neither [S.C.J.] nor Josh took money from Demetrius; is that
correct?

A. Demetrius stated that while it was missing, that it’s unknown if it was
taken during the incident or it was just merely misplaced prior to the
incident.

Q. Okay. And they didn’t take anything else from Demetrius; is that
correct?

A. It doesn’t appear, no.

Q. Okay. So nothing of value was taken from the victim; is that correct?

A. It doesn’t appear.

THE COURT: What she just asked you about what he told you about
the money being taken, what did you say?

MR. YOUNG: At the time when he was interviewed at the hospital, he
indicated his wallet was taken. However, later on in the investigation,
we had nothing to substantiate whether a wallet was taken during the
incident or not. At the time the warrants were issued, we only had the
story of the victim saying that he was patted down, [and] that his wallet
was missing after the shooting incident.

THE COURT: Okay. What would you be looking for to substantiate
that?

6

MR. YOUNG: Well, he later changed his statement, indicating that he
didn’t know if the wallet was taken[,] or he merely misplaced the wallet
prior to the incident.

When questioned by the State as to the reason S.C.J. and his brother patted down the

victim, Detective Young responded, “It appears they were demanding payment for

items stolen, yes.”

In State v. Rubin, 04-1531 (La.App. 3 Cir. 4/6/05), 899 So.2d 180, writ denied,

05-1218 (La. 12/16/05), 917 So.2d 1106, this court explained that in proving the

element of armed robbery of the thing belonging to another, it is not essential that the

thing of value be owned by the victim, but that the defendant is not the owner of the

thing and that the victim had a greater right to possession of the thing of value at the

time of the taking than did the defendant.

A review of the record does not indicate that the thing of value attempted to be

taken by S.C.J. from the victim belonged to S.C.J. Although Detective Young

testified that S.C.J. claimed that the victim took $200.00 from him, he testified that

there was nothing to substantiate that claim. No other testimony was presented to

show that the victim took $200.00 from the juvenile. In fact, the victim testified that

he returned the stolen CD player to the juvenile and that he did not owe S.C.J. any

money. Consequently, S.C.J.’s argument that he was merely reclaiming money he

was owed is not supported by the evidence.

However, the record before this court indicates that S.C.J., while armed with

a gun, demanded money from the victim and that he and his brother patted down the

pockets of the victim in search of something of value. Accordingly, after reviewing

the evidence pursuant to the Jackson standard, we find that the State presented

sufficient evidence that S.C.J. had the specific intent to take something of value from

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the victim while armed with a gun even though the act of taking was not established.

Accordingly, this assignment of error lacks merit.

Attempted Second Degree Murder

Louisiana Revised Statutes 14:27(A) defines attempt as:

Any person who, having a specific intent to commit a crime, does
or omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances,
he would have actually accomplished his purpose.

Louisiana Revised Statutes 14:30.1(A) defines second degree murder as:

[T]he killing of a human being:

(1) When the offender has a specific intent to kill or
to inflict great bodily harm; or

(2) When the offender is engaged in the perpetration
or attempted perpetration of aggravated rape, forcible rape,
aggravated arson, aggravated burglary, aggravated
kidnapping, second degree kidnapping, aggravated escape,
assault by drive-by shooting, armed robbery, first degree
robbery, second degree robbery, simple robbery, cruelty to
juveniles, second degree cruelty to juveniles, or terrorism,
even though he has no intent to kill or to inflict great
bodily harm.

First, S.C.J. argues that the State limited the attempted murder charge to the

felony-murder doctrine and points out that the State included in the petition only the

language that the victim was shot “during the perpetration of an armed robbery.”

However, we find that the State did not limit the charge to La.R.S.14:30.1(A)(2), the

subsection establishing the felony-murder doctrine, but merely recited the facts in this

case. See State v. Landfair, 07-751 (La.App. 5 Cir. 3/11/08), 979 So.2d 619, writ

denied, 08-1143 (La. 1/9/09), 998 So.2d 713.

8

In the instant matter, the trial court in its reasons for adjudication stated in

pertinent part:

All right. After hearing all the evidence, the court does find that
the State met their [sic] burden of proof with regards to the attempted
arm [sic] robbery, not armed robbery, but attempted armed robbery.

There was discussion of the money before. There was discussion
about both the victim and the witness about money that day, and he had
a weapon with him. And I find that they did prove that beyond a
reasonable doubt.

And the court also[,] pursuant to [La.R.S. 14:30.1(A)(2),] finds
that they [sic] met their burden of proof with regards to attempted
second-degree murder with an intent to kill or inflict great bodily harm
does not have to be present if they were engaged in the perpetration or
attempt of the armed robbery, which the court found they [sic] met the
burden of proof.

After reviewing the reasons set forth by the trial court, we find that it did not

exclude a finding of specific intent, that it had previously found that sufficient

evidence was presented to support the attempted armed robbery, and that it had no

need to determine if there was sufficient evidence to support specific intent.

Moreover, the State argued specific intent in closing arguments, stating in

pertinent part:

Clearly, he had the specific intent. The [statute] provides just by
his actions, going there with a loaded gun. And he had already said he
had a bullet with his name on it. The threats had already been made. He
followed through on his threats. We [have] borne our burden of proof,
Your Honor.

Consequently, although the trial court limited its finding to attempted second

degree murder based upon the armed robbery, this court is not limited in its review

of the sufficiency of the evidence to that specific theory.

S.C.J. argues that, while the record should not be examined for specific intent

to kill because the State limited its charge and the trial court limited its ruling to the

9

felony-murder doctrine, there is insufficient evidence to support a finding of specific

intent. S.C.J. argues that if he had intended to shoot the victim, he would not have

hit him in the head with the gun.

In State v. Corley, 97-235, p. 6 (La.App. 3 Cir. 10/8/97), 703 So.2d 653, 659,

writ denied, 97-2845 (La. 3/13/98), 712 So.2d 875, this court explained in pertinent

part:

“Specific intent is the 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.” State v.
Carroll, 95-859, p. 4 (La.App. 3 Cir. 1/31/96), 670 So.2d 286, 288.
“Specific criminal intent is a state of mind and need not be proven as
fact, but may be inferred from the circumstances present in the case and
from the action of the defendant.” Id. at 289.

In this case, the victim testified that S.C.J. called him the night before the

shooting and threatened him by stating that he had a bullet with his name on it. The

victim and Samekia testified that on the morning of the shooting, while in the

backyard, S.C.J. entered the backyard with a gun in his hand and that he cocked the

gun. According to Samekia, S.C.J. walked toward them with the gun cocked to the

side, and she feared that he would shoot them. Samekia testified that “[H]e [S.C.J.]

hit him one time with the gun and came up with it, and when he was going back down

to hit him again with the gun, the gun went off.” Referring to S.C.J. hitting the victim

with the gun, the State asked Samekia, “Was he holding it like to discharge it where

his finger would touch the trigger?” She responded, “Yes, ma’am.”

On cross examination, S.C.J.’s attorney asked the victim, “[Y]ou told him

[Detective Young] that you knew [S.C.J.] didn’t intend to shoot you, correct?” And

the victim responded, “Well, I said he looked shocked after he shot me.”

Sergeant Roy Jones of the Calcasieu Parish Sheriff’s Office testified that S.C.J.

10

admitted bringing the gun to Samekia’s house, but stated that he removed the clip

prior to meeting up with the victim.

Officer Christopher Cormier, who testified that he is a “deputy sheriff crime

scene I.D. officer with the Calcasieu Parish Sheriff’s Office,” also testified that, based

upon a shell casing that was found, he believed that the weapon, which was not

recovered, was a .380.

Deputy Lee Greanery, a crime scene technician with the Calcasieu Parish

Sheriff’s Office, testified that he observed and photographed the shirt the victim was

wearing at the time of the shooting. He explained that around the bullet hole in the

shirt, there appeared to be powder burns associated with a close range shooting.

When asked by the State, “Would this be consistent . . . with someone who was hit

in the head and accidently shot?” he responded, “[f]rom my experience[,] I would say

no. But I can’t be 100 percent positive . . . .”

The evidence in the record reveals that S.C.J. threatened to shoot the victim the

night before and that he sought out the victim while carrying a gun. When he found

the victim, he cocked the gun. And, when he hit the victim in the head, his finger was

on the trigger. Additionally, in Officer Greanery’s opinion, it was not an accidental

discharge.2 Thus, we find that the State presented sufficient evidence to the trial court

for it to find that S.C.J. had specific intent to kill or inflict great bodily harm upon the

victim. Having found that S.C.J. had the specific intent to kill the victim, we need not

address S.C.J.’s argument in brief that attempted second degree felony murder is a

non-crime.

2
Officer Greanery testified that he had been a crime scene investigator for seven years, that
he had been with the sheriff’s office for fifteen years, and that he had seen his “share” of shootings.
There was no discussion of whether Officer Greanery qualified as an expert in this field, but S.C.J.
did not challenge or rebut his testimony.

11

Accordingly, this assignment of error is without merit.

Assignment of Error Number 3:

S.C.J. argues that prosecution of both attempted second degree murder and the

underlying offense of armed robbery violated the double jeopardy clause of both the

federal and state constitutions.

In State v. Sandifer, 95-2226, p. 5 (La. 9/5/96), 679 So.2d 1324, 1329, the court

explained: “[T]he Double Jeopardy Clause, under both the ‘additional fact’ and the

‘same evidence’ tests, prevents an offender from being convicted of both a felony

murder and the underlying felony. State ex rel. Adams v. Butler, 558 So.2d 552, 553

(La.1990).”

The remedy for a double jeopardy violation involving a felony-murder

conviction is that the less severely punishable conviction and sentence are vacated

and set aside. State ex rel. Boyd v. State, 98-378 (La. 10/9/98), 720 So.2d 667, and

State v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La.

9/4/09), 17 So.3d 948.

However, because we find that sufficient evidence was presented to support

the attempted second degree murder conviction based upon the specific intent to kill,

and not simply based upon the felony murder doctrine, there is no double jeopardy

violation.

Accordingly, this assignment of error is without merit.

Assignment of Error Number 4:

In assignment of error number four, S.C.J. contends that the trial court erred by

not setting forth a written disposition in the record. We agree.

12

Louisiana Children’s Code Article 903 provides in pertinent part:

B. The court shall enter into the record a written judgment of
disposition specifying all of the following:

(1) The offense for which the child has been adjudicated a
delinquent.

(2) The nature of the disposition.

(3) The agency, institution, or person to whom the child is
assigned.

(4) The conditions of probation, if applicable.

(5) Any other applicable terms and conditions regarding
the disposition.

(6) The maximum duration of the disposition and, if
committed to the custody of the Department of Public
Safety and Corrections, the maximum term of the
commitment.

....

D. An extract of the minutes of court specifying the information
required by Paragraph B of this Article and signed by the court shall be
considered a written judgment of disposition.

Counsel for S.C.J. and the State concede that a Judgment of Commitment and

Order Granting Custody setting forth the disposition was prepared but not included

in the record. Counsel for S.C.J. attaches a copy of same to her brief. Information

from the clerk of court’s office reflects that the original Judgment of Commitment

signed by the trial judge has not been received; thus, the document has not been filed

in the record.

We now turn our attention to an error patent review. Although the Louisiana

Children’s Code is silent as to whether a juvenile proceeding warrants an error patent

13

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.

In our error patent review, we note that the sentence imposed by the trial court

is indeterminate. The trial court erred by failing to impose a disposition on each

adjudication. See State in the Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641

So.2d 633.

S.C.J. was charged with armed robbery with use of a firearm and attempted

second degree murder, and he was adjudicated by the trial court on these counts. The

transcript of the disposition by the trial court provides in pertinent part:

I am accepting the recommendation to place him with the Department
for - - not to exceed two years. The only thing I’m going to do
differently is place him in the Department for evaluation determining
the most appropriate placement. . . .

So, I’m not saying secure now[,] and I’m not saying nonsecure.

The trial court also ordered reevaluation of the disposition on January 11, 2010.

Hence, there is but one disposition for two adjudications.

Accordingly, we vacate the disposition and remand the matter to the trial court

for imposition of a separate disposition for each adjudication. Additionally, we order

the trial court to enter into the record a written judgment of the dispositions in

accordance with La.Ch.Code art. 903.

DECREE

The Juvenile’s adjudications for attempted armed robbery with use of a firearm

and attempted second degree murder are affirmed. The disposition for these

adjudications is vacated, and the matter is remanded to the trial court for imposition

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of new and separate dispositions for each adjudication with the trial court entering

into the record written judgment of these dispositions.

ADJUDICATIONS AFFIRMED; DISPOSITION VACATED; CASE
REMANDED WITH INSTRUCTIONS.

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