State in the Interest of J.R., III

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-345

STATE IN THE INTEREST OF J.R., III

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. J-2016-052
HONORABLE E. DAVID DESHOTELS, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

John E. Demoruelle
Attorney at Law
Post Office Drawer B
Oberlin, Louisiana 70655
(337) 639-2220
Counsel for Defendant/Appellant:
J.R., III

H. Todd Nesom
District Attorney
Luke H. Abrusley
Joe Green
Assistant District Attorneys
Post Office Box 839
Oberlin, Louisiana 70655
(337) 639-2641
Counsel for Appellee:
State of Louisiana

James Robinson, Sr.
On behalf of his minor child
J.R., III
In Proper Person
110 Duplichain Lane
Kinder, Louisiana 70648
Defendant/Appellant

KEATY, Judge.

The Juvenile, J.R., III, 1 appeals the trial court’s adjudication of him as

delinquent for third degree rape and sexual battery. For the following reasons, we

affirm the trial court’s adjudication, amend the trial court’s disposition, and remand

with instructions.

FACTS AND PROCEDURAL BACKGROUND

On January 9, 2016, the Juvenile, J.R., III, along with X.M., and the victim,

T.W., spent the night at Johnny and Pearl Lavergne’s residence. At that time, the

Juvenile was thirteen years old; X.M was fifteen years old, and T.W. was fourteen

years old. During the night and into the early morning hours of the following day,

the Juvenile engaged in anal intercourse and oral sex with T.W. without his

consent. As a result, a petition was filed charging the Juvenile with second degree

rape and second degree sexual battery. Following the presentation of evidence at

the hearing, the trial court adjudicated the Juvenile delinquent for third degree rape

and sexual battery. It imposed a disposition on each count of two years in the

custody of the Office of Juvenile Justice with placement in a non-secure facility, to

run concurrently. One year was suspended, and the Juvenile was placed on two

years of probation subject to special conditions.

The Juvenile is before this court seeking review of his delinquency

adjudication. 2 On appeal, and in his only assignment of error, the Juvenile

1
Pursuant to Uniform Rules—Courts of Appeal, Rule 5–2 and La.R.S. 46:1844(W), the
initials of the parties will be used to protect and maintain the privacy of the minor children
involved in this proceeding.
2
Defense counsel originally filed a brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396 (1967); however, after being ordered by this court to file a new brief in compliance
with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, counsel submitted a brief in which he
contended the evidence presented by the State was insufficient to adjudicate the Juvenile
delinquent.

contends there was insufficient evidence to sustain the adjudication. The

Juvenile’s father also submitted a pro se brief wherein he contends the State erred

by presenting insufficient evidence for a rational trier of fact to conclude that the

Juvenile committed the two crimes for which he was adjudicated.

DISCUSSION

I. Error Patent Review

As noted by this court in State in the Interest of T.T., 96-6, p. 2 (La.App. 3

Cir. 5/8/96), 677 So.2d 466, 467-68 (quoting State in the Interest of C.D., 95-160

(La.App. 5 Cir. 6/28/95), 658 So.2d 39, 41):

The Louisiana Children’s Code is silent as to whether a juvenile
criminal proceeding is entitled to an error patent review on appeal.
However, La.Ch.C. art. 104 states the Louisiana Code of Criminal
Procedure governs in matters which are not provided for in the
Children’s Code. Thus, we are mandated by La.C.Cr.P. art. 920 to
conduct an error patent review despite the fact defense counsel did not
request it.

After conducting an error patent review, we find one error patent regarding the trial

court’s advising the Juvenile of his rights, two issues requiring discussion, and an

error patent concerning credit for time served.

First, the trial court’s minutes indicate the Juvenile was not advised of his

rights when he appeared to answer the allegations of the delinquency petition as

required by La.Ch.Code art. 855. Pursuant to La.Ch.Code art. 855, the trial court

must first determine if the juvenile is capable of understanding his rights, and if so,

must advise the child of his rights, including the nature of the proceedings, the

nature of the allegations of the petition, the right to an adjudication hearing, the

right to appointed counsel, and the right against self-incrimination. In this case, we

find that any error in failing to apprise the Juvenile of his rights pursuant to

La.Ch.Code art. 855 is harmless as he was represented by counsel and entered a

2

plea of not guilty to the allegations contained in the petition. See State in the

Interest of D.B, 13-1364 (La.App. 3 Cir. 4/23/14), 137 So.3d 1282, writ denied,

14-1092 (La. 1/9/15), 157 So.3d 596; see also State in the Interest of C.P., 12-192

(La.App. 3 Cir. 6/6/12), 91 So.3d 1273.

Second, the Juvenile’s disposition hearing was not held within thirty days

after the adjudication as required under La.Ch.Code art. 892. Louisiana Children’s

Code Article 892 provides: “Prior to entering a judgment of disposition, the court

shall conduct a disposition hearing. The disposition hearing may be conducted

immediately after the adjudication and shall be conducted within thirty days after

the adjudication. Such period may be extended for good cause.”

At the close of the August 4, 2016 adjudication proceeding in this matter, the

trial court asked: “Sentencing will be when?” In response, the prosecutor stated:

“October 13, 2016.” There was no objection by the Juvenile or his attorney. A

similar issue was before this court in State in the Interest of C.C., 13-417 (La.App.

3 Cir. 10/9/13), 124 So.3d 56. The juvenile was adjudicated delinquent on

December 6, 2012, and the disposition hearing was originally set for January 29,

2013, which was beyond the thirty-day time limitation set forth in La.Ch.Code art.

892. On error patent review, this court addressed the untimely holding of the

disposition hearing and found that the error was harmless because C.C. failed to

allege that “any prejudice resulted from the delay.” Id. at 59.

More recently, in State in the Interest of D.B., 14-85, p. 2 (La.App. 3 Cir.

5/7/14), 141 So.3d 296, 298, addressing the untimeliness of an answer hearing, this

court found that supreme court jurisprudence suggests that “a juvenile’s failure to

object to the untimely setting of a hearing constitutes a good cause extension of the

time period.” Louisiana Children’s Code Article 892, like La.Ch.Code art. 854,

3

allows for an extension of the time period for good cause. Accordingly, we find

that the Juvenile’s failure to object to the setting of the disposition hearing outside

of the time limit constituted good cause for an extension of the time period; thus,

La.Ch.Code art. 892 was complied with, and no error patent occurred.

Third, the Juvenile did not answer the allegations of the petition within

fifteen days as required by La.Ch.Code art. 854; however, there is no indication in

the record that the Juvenile objected to the untimely hearing. In accordance with

D.B., 141 So.3d 296, we find that the Juvenile’s failure to object constitutes good

cause for an extension of the time period, and no error patent occurred.3

Finally, the record before this court does not indicate the Juvenile was given

credit for time spent in secure detention, if any, prior to the imposition of

disposition, as required by La.Ch.Code art. 898. Accordingly, this court amends

the Juvenile’s disposition to give him credit for time served in a secure detention

facility prior to the imposition of disposition, if any. We further remand this

matter to the trial court with instructions to note the amendment in the custody

order and in the trial court’s minutes. See State in the Interest of J.A., 15-641

(La.App. 3 Cir. 12/2/15), 179 So.3d 959, writ denied, 15-2317 (La. 3/4/16), 188

So.3d 1058.

II. Assignment of Error

The Juvenile contends the evidence presented by the State was insufficient

to prove his guilt beyond a reasonable doubt. The Juvenile points to the purported

3
The Petition was filed on April 27, 2016. The answer hearing was held on May 24,
2016. There is no indication in the record when this hearing was set. Presumably, if the Juvenile
objected to the untimely setting of the hearing, he would have done so at the answer hearing, and
this would be reflected in the trial court’s minutes. Since the minutes do not so indicate and
given the fact that any violation is rendered moot upon adjudication, we need not order
supplementation of the record with the order setting the hearing, if one exists.

4

conflicting evidence presented at the adjudication hearing concerning consent to

the acts in question.

In a juvenile criminal proceeding:

[T]he state’s burden of proof is the same as in a criminal
proceeding against an adult—to prove beyond a
reasonable doubt every element of the offense alleged in
the petition. La. Ch.Code art. 883; In re Winship, 397
U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In
reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled
by the standard enunciated by the United States Supreme
Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). . . . [T]he appellate court must
determine that the evidence, viewed in the light most
favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime
had been proved beyond a reasonable doubt.” State v.
Captville, 448 So.2d 676, 678 (La.1984).

State ex rel. D.P.B., 02-1742, pp. 4-5 (La.5/20/03), 846 So.2d 753,
757 (first alteration ours). Additionally, in a juvenile criminal
proceeding, the trial court’s findings of fact are subject to the manifest
error standard of review, and the appellate court should not disturb the
trial court’s reasonable evaluations of credibility and inferences of
fact absent manifest error. State in the Interest of C.P., 12-192
(La.App. 3 Cir. 6/6/12), 91 So.3d 1273. In the absence of internal
contradiction or irreconcilable conflict with any physical evidence, a
single witness’ testimony is sufficient to support a factual conclusion
if it is credited by the trial court. State v. Davis, 45,662 (La.App. 2
Cir. 11/3/10), 57 So.3d 1066, writ denied, 10-2677 (La.4/25/11), 62
So.3d 85. Further, discrepancies in factual testimony which require a
determination of the witnesses’ credibility go to the weight of the
evidence, not its sufficiency. Id.

J.A., 179 So.3d at 961.

In this case, the trial court adjudicated the Juvenile delinquent based on the

commission of the lesser offense of third degree rape under the following

subsection of La.R.S. 14:43:

A. Third degree rape is a rape committed when the anal, oral,
or vaginal sexual intercourse is deemed to be without the lawful
consent of a victim because it is committed under any one or more of
the following circumstances:

5

....

4) When the offender acts without the consent of the victim.

For the charge of second degree sexual battery, the trial court’s finding of

guilt of the lesser offense of sexual battery was based on the following subsection

of La.R.S. 14:43.1:

A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any instrumentality or any
part of the body of the offender, directly or through clothing, or the
touching of the anus or genitals of the offender by the victim using
any instrumentality or any part of the body of the victim, directly or
through clothing, when any of the following occur:

(1) The offender acts without the consent of the victim.

In its oral reasons for adjudicating the Juvenile delinquent for third degree

rape, the trial court found that T.W. “is credible.” The trial court noted T.W. failed

to consent by explaining: “And when he said that he didn’t want to and he said no,

no means no.” With respect to the trial court’s adjudication for second degree

sexual battery, it held that “[T.W.’s] testimony is credible[,]” and he failed to

consent.

Keeping in mind the foregoing, we look to the evidence presented at the

adjudication hearing. X.M., who was fifteen years old at the time of the

proceeding, testified that on the night of January 9, 2016, and the following

morning, he was at Johnny Lavergne’s residence with the Juvenile and T.W. X.M.

stated that Pearl Lavergne (hereinafter “Mrs. Pearl”) was present at the home. He

testified that the boys were in the bed watching television in the middle bedroom.

X.M. revealed that while they were laying in the bed, T.W. removed his clothes

even though neither X.M. nor the Juvenile asked him to do so. X.M. indicated that

T.W. rolled onto his side and the Juvenile “humped” him. X.M. stated that the

6

Juvenile then asked T.W. to suck his penis, which he did. After being shown a

statement that he gave to Deputy Charles Earl, X.M. testified that while the

Juvenile was “humping” T.W., the Juvenile kept punching X.M. to have sex with

T.W. X.M. revealed that after the Juvenile had sex with T.W., the three watched

television for a little while and then X.M. had sex with T.W. X.M. testified that

after everything was over, T.W. attempted to leave the room saying he was going

to “tell on [them].” X.M. stated that he and the Juvenile told T.W. not to tell. X.M.

revealed that they did not stop T.W. from leaving the room, although X.M. was

lying on the floor in front of the door, the place he chose to sleep after “everything

was over.”

With respect to consent, X.M. testified that T.W. never said “[n]o” “[w]hile

[the Juvenile] was humping” him. X.M. advised that prior to them getting into bed,

T.W. told the Juvenile that he, i.e., T.W., wanted the Juvenile to have sex with him,

i.e., T.W. X.M. explained that T.W. never told him, i.e., X.M., that he, i.e., T.W.,

wanted to have sex with the Juvenile, nor did T.W. tell X.M. that he did not want

to have sex with the Juvenile. X.M. indicated that T.W. never told the Juvenile

that he did not want to suck his penis. X.M. testified that T.W. never tried to fight

the boys off and never tried to stop them from having sex with him. According to

X.M., he slept on the floor after the incidents while the Juvenile and T.W. slept in

the bed.

Deputy Kevin Sickey of the Allen Parish Sheriff’s Office was the case agent

involved in investigating the matter. With the consent of the Juvenile’s mother,

Deputy Sickey recorded the Juvenile’s statement, which was played for the trial

court during the adjudication hearing. We have reviewed the recorded statement.

Therein, the Juvenile initially denied engaging in sexual activities with T.W. In

7

the second part of the interview, however, the Juvenile admitted to receiving a

“blow job” from T.W. and said T.W. did not object.

David Duplichan of the Family and Youth Counseling Agency testified that

he interviewed T.W. The recording of the interview, which we have also reviewed,

was played for the trial court. In the interview, T.W’s description of the events

that occurred between him and the Juvenile were similar to his description of the

events he provided at the adjudication hearing. T.W. also revealed additional

information in the interview. Specifically, T.W. stated that the Juvenile told him

that he, i.e., T.W., was going to be the woman that night. T.W. further stated that

the Juvenile put some type of gel on his penis and told T.W. that he was putting it

on there so it would go in his buttocks.

Mr. Duplichan testified that he found the following observations significant

during his interview of T.W.:

A [T.W.] was much more expansive when he was talking about
pleasant things, the dogs, you know, possibly getting a new car.
When we got into the events of what he tells me happened, his body
language, he tightened up. He became more hesitant in his answers.
None of that is pleasant to talk about and it was obvious in his
demeanor doing it. Some of the things that he mentioned - And I look
at the video and you can see [T.W.], he just at his age and his
intellectual level does not impress me as someone who would know
that Vaseline is used on a penis so that it would go in easier.

....

A Yeah. Significant to me was the body language, the demeanor,
the difference between when he was talking at the rapport building
versus when we were talking the actual incident, the mention of the
Vaseline, the fact that he misspelled penis. . . .

....

A The way that he spelled penis. He spelled it three different
ways on the three different drawings. His embarrassment at just
saying the word. Those are all things that I noticed that I thought
were significant.

8

....

A Again, the use of the lubricant, the things that he was telling me
happened versus the almost kid-like demeanor in not wanting to say
the word, in the way that we spell the word, just indicated, you know,
this was - what he was telling me was beyond something that he
should know about.

On cross-examination, Mr. Duplichan agreed that during the interview, T.W.

said that he had watched a similar incident happen to someone else a year before;

thus, in the following exchange, Mr. Duplichan acknowledged that this could

explain T.W.’s knowledge of something otherwise age inappropriate:

Q And therefore he knew about this. It’s not age inappropriate
that he knew about this because he had personally seen it himself
before?

A He did say that he had seen that, yes, sir.

T.W. testified at the adjudication hearing. At the time of the incident, he

lived with his mother, Ms. Williams.4 T.W. confirmed that the interview given to

Mr. Duplichan was a true account of the incident. At the adjudication hearing,

T.W. testified that he was in the middle of X.M. and the Juvenile in bed watching

television while X.M. and the Juvenile were on their phones watching videos of

“nasty stuff.” T.W. revealed that the Juvenile grabbed him on his penis. T.W.

stated that he “told [the Juvenile] to stop and he didn’t listen.” T.W. testified that

the Juvenile and X.M.’s response was: “‘If you tell, I won’t talk to you again.’”

T.W. indicated that he got up and “tried to get out of the room but they had the

door blocked to where [he] couldn’t get out.” T.W. testified that he attempted to

leave the room “lots of times.” T.W. stated that the Juvenile and X.M. each put

their penis in his mouth and in his rectum without his permission and despite the

4
T.W. testified at the adjudication hearing that he lived with his mother, Kristy Williams,
after having lived with his “other” mother, Mrs. Pearl, until 2010.

9

fact that he told them to stop. His testimony reveals that the Juvenile held T.W.

down while X.M. was on top of him, and when the Juvenile “put his penis in

[T.W.’s] butt[,]” X.M. was on the other side of T.W. T.W. stated that he tried to

stop them by telling them to leave him alone, but he was unsuccessful. T.W.

revealed that he told the boys to stop “[l]ots of times.” T.W. confirmed at the

adjudication hearing that he never told the Juvenile that it was okay to do this.

T.W. testified that he was scared and that he felt there was nothing he could have

done to stop this. T.W. stated that the incidents ceased at approximately 1:00 a.m.

T.W. testified that he told the boys he was going to “tell on them[,]” which he did

“the next day.” T.W. advised that the next morning, he told his mother, Kristy

Williams (hereinafter “Ms. Kristy”), and she told Mrs. Pearl.

On cross-examination, T.W. testified that he left the bedroom a few minutes

after the incident, but he returned because “that’s where [he] was sleeping at.”

T.W. revealed the other two boys were still in there and were laughing and cutting

up until around 3:00 a.m. T.W. stated that he asked Mrs. Pearl if the Juvenile

could come over that day. T.W. testified that at one point, Mrs. Pearl asked him

what was wrong, and he said nothing to her.

On redirect examination, T.W. explained that on the morning following the

incident, the Juvenile left Mrs. Pearl’s house. T.W. stated that he did not ask

Mrs. Pearl if the Juvenile could come back over to the house. He explained that he

misunderstood the earlier question on cross-examination wherein he said that he

had asked Mrs. Pearl if the Juvenile could come back over that day. T.W. clarified

that on the previous evening and prior to the incident, he asked Mrs. Pearl if the

Juvenile could spend the night. T.W. testified that he did not ask Mrs. Pearl if the

Juvenile could come back over to the house after the incident occurred.

10

At the hearing, Mrs. Pearl testified that X.M. was at her house. Mrs. Pearl

stated that the Juvenile was at her mother-in-law’s house, which was located

“across the field,” and Mrs. Pearl called him over because her five-year-old son

wanted to see him. Mrs. Pearl explained that T.W. visited her house later that

evening and asked her if the Juvenile could spend the night. Mrs. Pearl noted that

she raised T.W. until he was ten years old. Mrs. Pearl revealed that she never

entered the bedroom where the boys were staying, but she “heard a lot of bumping

going on in the room, which [she] thought [was] the boys [] playing around.”

Mrs. Pearl explained that “[the Juvenile] and [T.W.] play - [they] grew up together,

so they made lots of noises as kids. So [she] didn’t go into [the bedroom] to look

at what was going on.”

Mrs. Pearl revealed that around 1:30 a.m., T.W. stepped out of the room

with a “strange look on his face.” According to Mrs. Pearl’s testimony, when she

asked him what was wrong, T.W. said nothing. Mrs. Pearl opined that T.W. was

mad because “his mom didn’t come and pick him up[]” as originally planned and

that “[h]e usually gets like that.” Mrs. Pearl stated that she was awakened that

morning at 8:30 by a phone call from Ms. Kristy who said that she needed to come

over to speak with her. At this point, all three of the boys were gone, according to

Mrs. Pearl’s testimony. Mrs. Pearl explained that Ms. Kristy arrived and was

accompanied by T.W, who was crying. Mrs. Pearl noted that “[T.W.] was

walking . . . really really funny” and told her that the boys “were bullying him in

the room.” Mrs. Pearl testified that Ms. Kristy said: “‘[T.W.], tell her what they

did to you.’” Mrs. Pearl stated that after T.W. told her what happened, the

Juvenile’s mother arrived. Mrs. Pearl stated that T.W. told the Juvenile’s mother

about the incident, who subsequently called the Juvenile to the house. Mrs. Pearl

11

explained that when she asked the Juvenile about the incident, “he said that he

didn’t do anything[,] and he took off running out of the house.” Mrs. Pearl

testified that she called her daughter who then contacted the police.

On cross-examination, Mrs. Pearl explained that the Juvenile had left her

house shortly before they had supper on the evening in question, and T.W. asked

her if the Juvenile could come back for a sleepover. According to Mrs. Pearl’s

testimony, the Juvenile then returned from his mother’s house next door.

Mrs. Pearl was asked about whether T.W. told her anything when he came out of

the bedroom on the evening in question, and she responded:

A No, [X.M.] stood in front of him. Because [T.W.] was looking
puzzled and then I said, “[T.W.], what’s wrong?” And then [X.M.]
came out. And then the next thing you know, [T.W.] was back in the
room. He didn’t say anything. [X.M.] was standing in front of him.

Tammy Smith, a sexual assault nurse examiner with Lake Charles Memorial

Hospital, was accepted by the trial court as an expert in her field. Ms. Smith

testified that she examined T.W. on January 10, 2016, following a sexual assault

report. Ms. Smith explained that T.W. told her that “he was assaulted on [January

10, 2016] after midnight” by X.M., his step-cousin, and the Juvenile, his cousin.

Ms. Smith testified that T.W. explained that he was held down by his shoulders.

According to her testimony, he reported that his mouth and his rectum were

penetrated by the Juvenile’s penis. Ms. Smith indicated that T.W. said his rectum

was also penetrated by X.M.’s penis and finger, and X.M. fondled T.W.’s genitalia

under his clothing. Ms. Smith revealed that T.W. said Vaseline was used as a

lubricant during the assault. Ms. Smith testified that T.W. told her he was on his

stomach during the assault, and the other two boys laid on top of him.

Ms. Smith detailed what T.W. told her had happened that night:

12

A He said, “I was in my bed . . . he started and reached over me
while I was watching TV.” And I said, “Who was reaching?” And he
said, “[the Juvenile]. And then he grabbed my penis. Both of them
were watching bad stuff - some freaky stuff on their phones. [The
Juvenile] said that I was going to play the role of a woman. He turned
me over[,] and he put his penis in my rear end. I told him to stop. He
didn’t stop. I told him that I had pain problem back there and he still
didn’t care. [X.M.] was there. He, [X.M.], did it after [the Juvenile].
[X.M.] . . . ” And then this is me, I said, “[X.M.] did what after [the
Juvenile]?” “He put his penis in my rear end.” And then I clarified
and I said, “When did [the Juvenile] put his penis in your mouth?”
“Before he put it in my rear end.” “While [X.M.] was doing it, [the
Juvenile] just stayed there. After [X.M.] got done, then [the Juvenile]
came back and put his penis back in. After he was done, I left and I
saw my mom. I wanted to tell but then [X.M.] came out and went to
the bathroom. I went back to the bedroom. When he came back, I
told [X.M.] to get out of the bed and sleep on the floor. I went to
sleep. When I woke up, I came back to her house. When I got there, I
told her.” And [Ms. Kristy] was who he was saying that he told.

Ms. Smith testified that the toluidine blue dye she used during T.W.’s exam

to determine whether his skin was broken revealed tears on the outside of his anus

at the one o’clock and the seven o’clock positions. He also exhibited redness and

tenderness in his anal area, according to her testimony.

On cross-examination, Ms. Smith confirmed that she could not determine

whether the incident was consensual or forced. Ms. Smith testified that she could

only report what T.W. revealed to her prior to the exam and that he told her he did

not have consensual sex with anyone in the five days prior to this incident.

Deputy Earl of the Allen Parish Sheriff’s Office interviewed X.M. and also

was present during the second part of Deputy Sickey’s interview with the Juvenile.

Deputy Earl testified that during the interview, the Juvenile initially told him that

he had no anal or oral sexual interaction with the victim. Deputy Earl explained

that after the Juvenile’s mother told him to tell the truth, he “admitted that he got a

blow job after [X.M.] had sex with . . . [T.W.]. But he never admitted to anything

else.”

13

As for his interview with X.M., Deputy Earl testified that X.M. never said

T.W. took his clothes off voluntarily or that T.W. requested that the Juvenile have

sex with him, i.e., T.W. A review of the recorded statement introduced at trial,

which this court has reviewed, reveals that X.M. said the Juvenile “humped” T.W.

first, and after he finished, he hit X.M. and made X.M. “do it.” X.M. stated that

after this, the Juvenile made T.W. “suck him,” according to the recorded statement.

The Juvenile testified at the adjudication hearing that he was thirteen years

old at the time of the hearing. When asked if he had sex with T.W., he replied,

“Yes, sir. I just got a blow job.” He testified that the “blow job” was not forced

and that T.W. had asked the Juvenile to have sex with him. Other than saying he

was not going to talk to T.W. anymore, the Juvenile testified that he made no

threats.

On cross-examination, the Juvenile denied having sex with T.W. with the

exception of receiving a “blow job” and testified that X.M. was the only one who

had sex with T.W. The Juvenile stated that he did not force X.M. to have sex with

T.W. The Juvenile admitted that he lied to Deputy Sickey when he said nothing

happened. He further testified that X.M. lied in court and to the detectives when

he said the Juvenile had sex with T.W. The Juvenile stated that T.W. was lying

when he said the Juvenile had sex with him.

We find that T.W.’s testimony sufficiently established the elements of the

offenses of third degree rape and sexual battery. We, therefore, affirm the trial

court’s adjudication of the Juvenile as delinquent for third degree rape and sexual

battery.

14

II. Pro Se Brief

The Juvenile’s father filed a pro se brief contending the State failed to prove

its case beyond a reasonable doubt because T.W. consented to the acts. He argues

that if items that were seized, i.e., the Juvenile and X.M.’s cell phones, blankets,

and boys’ clothing, substantiated T.W.’s version of events, then the State would

have introduced them at trial. The Juvenile’s father attached to his brief a

detective’s report not introduced in evidence at trial in support of his contention

that T.W. consented to the sexual acts.

In reviewing a claim of insufficient evidence, this court cannot consider

evidence which is not introduced at trial. “Evidence outside the record may not be

reviewed by appellate courts. See, e.g., State v. Hilaire, 216 La. 972, 45 So.2d

360 (1950).” State in the Interest of J.C.R., 14-1146, p. 4 (La.App. 3 Cir. 3/4/15),

157 So.3d 1284, 1287. Thus, the information contained in the detective’s report

cannot be considered by this court. As discussed above, the evidence presented at

trial was sufficient to support the adjudication of delinquency for third degree rape

and sexual battery. T.W.’s testimony, found credible by the trier of fact, was

sufficient to establish the elements of both crimes for which the Juvenile was

adjudicated delinquent. The father’s claim, therefore, is without merit.

CONCLUSION

This court affirms the trial court’s adjudication of the Juvenile as delinquent

for third degree rape and sexual battery. We amend the Juvenile’s disposition to

give him credit for time served in a secure detention facility prior to the imposition

of disposition, if any, and affirm as amended. We further remand this matter to the

trial court with instructions to note the amendment in the custody order and in the

trial court’s minutes.

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AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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