State of Louisiana in the Interest of C.N.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-80

STATE OF LOUISIANA IN THE INTEREST OF
C.N.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 33904
HONORABLE CYNTHIA CLAY GUILLORY, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Billy Howard Ezell, Candyce G. Perret, and Charles G.
Fitzgerald, Judges.

ADJUDICATIONS AFFIRMED; DISPOSITION VACATED
AND REMANDED WITH INSTRUCTIONS.

Bertha M. Hillman
Louisiana Appellate Project
222 North Vermont Street
Covington, LA 70433
(985) 209-2376
COUNSEL FOR DEFENDANT/APPELLANT:
C.N.

Stephen C. Dwight
District Attorney
Dale R. Lee
Assistant District Attorney
John E. Turner
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

C.N.,1 a juvenile, was adjudicated delinquent for inciting to riot resulting in

death, a violation of La.R.S. 14:329.1, 14:329.2, and 14:329.7, and accessory after

the fact to second degree murder, a violation of La.R.S. 14:25. C.N. appeals and

alleges there was insufficient evidence to support the convictions. After review,

we affirm the adjudications. However, we vacate the disposition and remand to the

juvenile court with instructions to impose a separate disposition for each

adjudication and enter into the record a written judgment of the dispositions in

accordance with La.Ch.Code art. 903. Additionally, at the new disposition

hearing, the juvenile court is ordered to advise C.N. of the time limitation for filing

an application for post-conviction relief.

FACTUAL AND PROCEDURAL HISTORY:

On January 23, 2021, C.N. went to a movie theater in the late afternoon with

two of her friends. They did not stay at the theater; instead, the girls walked to a

nearby Walmart, then to an Academy sporting goods store.2 When they returned to

the theater, they encountered another group of approximately seven girls that

included the victim, M.L (“M.L.’s group”). Girls in M.L.’s group made some

insulting remarks, but C.N. and her friends left and walked to Walmart again. A

fourth girl, R.B., met them there. C.N. had contacted R.B. to let her know M.L.’s

group was in the area. Thereafter, the driver who was dropping R.B. off took all

four girls back to the theater.

1
Initials of the juvenile and the victim are used pursuant to La.R.S. 46:1844(W) and
Uniform Rules—Courts of Appeal, Rule 5-2.
2
Two of the girls C.N. was with stole a taser and mace from Academy but gave them
away before the events at issue.

Once back at the theater, C.N. and her friends (hereinafter referred to as

“R.B.’s group”) decided to walk back to Walmart. M.L.’s group also went to

Walmart at this point.3 Apparently, M.L.’s group was outside of the store, calling

for R.B to come fight. R.B.’s group, which included C.N., remained inside and

asked a Walmart employee about obtaining some mace but they could not find any.

The group then looked at kitchen knives, but finally decided to steal pocket knives.

R.B. told C.N. and another girl, B.G., that she wanted to scare off the other girls.

After taking the knives, M.L.’s group found a spot in the store to charge C.N.’s

phone; while they did so, a friend called C.N. and told her that girls in M.L.’s

group were on Instagram, online, stating they were about to fight. C.N. then

activated her Instagram account to record and live stream events, titling the

Instagram video feed “Fittin’ to Fight.”4 M.L.’s group entered Walmart, and as

M.L. approached R.B., the latter’s group backed up. M.L. “ran up on” R.B., and

the two girls traded punches. R.B. had the stolen pocket knife in her hand and

stabbed M.L in the chest. Thereafter, R.B.’s group ran out of the store and got into

a truck, which drove them back to the theater.5 Extensive video evidence of the

events, including Walmart surveillance videos as well as C.N.’s Instagram live

stream, was admitted into evidence.

M.L. was treated at the scene by an officer who was providing off-duty

security for Walmart at the time. M.L. was later pronounced deceased. Medical

testimony showed that the cause of death was a stab wound to M.L.’s trunk.

3
The trial testimony indicated that M.L.’s group arrived at Walmart ahead of C.N.’s
group. However, the testimony was that C.N.’s group was not “hunting” or “chasing after”
M.L.’s group.
4
C.N. testified that the other girls’ video had the same title.
5
The driver of the truck was not identified.

2

After returning to the theater, R.B.’s group walked to Academy again to

charge C.N.’s phone. R.B. bought slippers because she had lost her original

footwear at Walmart. While at Academy, two of the girls were apprehended, but

C.N. and R.B. remained at large. C.N. and R.B. attempted to elude police in an

area neighborhood. Both were eventually apprehended and taken into custody.

On February 8, 2021, the Calcasieu Parish District Attorney’s Office filed a

petition alleging that C.N. should be adjudicated delinquent for inciting to riot

resulting in death, a violation of La.R.S. 14:329.1, 14:329.2, and 14:329.7, and

accessory after the fact to second degree murder, a violation of La.R.S. 14:25. The

adjudication hearing began on May 13, 2021 and continued on May 14 and May 17.

On May 20, the juvenile court adjudicated C.N. delinquent.6

On June 21, 2021, the juvenile court held a disposition hearing and ordered

C.N. to serve four years in a secure facility. Subsequently, the court conducted

two dispositional review hearings on October 4, 2021 and January 3, 2022; the

court continued C.N. in secure placement. 7 C.N. now appeals, assigning one

assignment of error: “The evidence is insufficient to support the convictions.” C.N.

also asserts two issues for review: (1) “The State failed to prove beyond a

reasonable doubt that R.B. was guilty of second degree murder. R.B. acted in self

defense or in the alternative could only be found guilty of manslaughter. Therefore,

C.N. is not guilt[y] of accessory after the fact to second degree murder[;]” and (2)

“The State failed to prove beyond a reasonable doubt that C.N. incited a riot.”

6
On May 17, the court recessed to May 20 due to inclement weather.
7
Such hearings are required by La.Ch.Code art. 906(B).

3

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, there are several errors patent as well as issues

requiring discussion.

First, the petition, filed February 4, 2021, was filed more than forty-eight

hours after the continued custody hearing held January 27, 2021, in violation of

La.Ch.Code art. 843. The remedy for the untimely filing of the petition is release.

La.Ch.Code art. 843(B). However, once a juvenile is adjudicated a delinquent, the

issue of timeliness becomes moot. State in the Interest of J.L., Jr., 592 So.2d 435

(La.App. 5 Cir. 1991), writ denied, 597 So.2d 1031 (La.1992). Accordingly, no

action is required as the issue is now moot.

Next, C.N.’s place of birth was not listed in the petition as required by

La.Ch.Code art. 845. This is a defect as to form only, and C.N. has alleged no

prejudice as a result; thus, the error is harmless. La.Ch.Code art. 845(B); State in

the Interest of D.D., 11-1384 (La.App. 3 Cir. 3/7/12), 86 So.3d 171.

Furthermore, the juvenile court failed to advise C.N. of her rights at the

appearance to answer the petition as required by La.Ch.Code art. 855. Article 855

requires the court to first determine if the child is capable of understanding

statements about his or her rights and then to advise the juvenile of the nature of

the proceedings, the nature of the allegations of the petition, the right to an

adjudication hearing, the right to appointed counsel, the privilege against self-

incrimination, the range of authorized responses, and the possible consequences of

4

his or her admission that the allegations are true, including the maximum and

minimum dispositions which may be imposed. However, the record indicates that

C.N. was represented by counsel and denied the allegations. Accordingly, the

error is harmless. See State in 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.

The adjudication hearing was also not timely held. Louisiana Children’s

Code Article 877 provides, in pertinent part:

A. When the child is charged with a crime of violence as
defined in R.S. 14:2(B) and the child is continued in custody pursuant
to Chapter 5 of this Title, the adjudication hearing shall commence
within sixty days of the appearance to answer the petition. In all other
cases, if the child is continued in custody pursuant to Chapter 5 of this
Title, the adjudication hearing shall commence within thirty days of
the appearance to answer the petition.

....

D. For good cause, the court may extend such period.

Although not listed in La.R.S. 14:2(B) as a crime of violence, “this list of

enumerated crimes is merely illustrative, not exhaustive, [and] unlisted offenses

may be denominated as crimes of violence under the general definition of the term

as provided by the statute.” State v. Oliphant, 12-1176, p. 8 (La. 3/19/13), 113

So.3d 165, 170. A “crime of violence” is defined as:

an offense that has, as an element, the use, attempted use, or
threatened use of physical force against the person or property of
another, and that, by its very nature, involves a substantial risk that
physical force against the person or property of another may be used
in the course of committing the offense or an offense that involves the
possession or use of a dangerous weapon.

La.R.S. 14:2(B). A riot is defined in La.R.S. 14:329.1 as:

a public disturbance involving an assemblage of three or more persons
acting together or in concert which by tumultuous and violent
conduct, or the imminent threat of tumultuous and violent conduct,

5

results in injury or damage to persons or property or creates a clear
and present danger of injury or damage to persons or property.

Furthermore, inciting to riot is defined in La.R.S. 14:329.2 as “the endeavor

by any person to incite or procure any other person to create or participate in a

riot.” Thus, we conclude that inciting to riot meets the definition of a crime of

violence; therefore, the adjudication hearing was required to commence within

sixty days of the appearance to answer the petition, which it did not. The answer

hearing was held on February 8, 2021, and the adjudication hearing commenced

May 13, 2021. However, at the February 8, 2021 answer hearing on the motion of

the State, the court ordered the adjudication hearing set for April 5, 2021. On

April 5, 2021, defense counsel requested a continuance, and when asked by the

State if the defense would waive the delays until the next trial setting, defense

counsel agreed. The matter was continued and fixed for May 18, 2021. Two days

later, on motion of the State, the matter was fixed five days earlier, for May 13,

2021, the date the adjudication ultimately commenced. Since C.N. did not object

to the setting of the hearing outside of the time period, actually moved for the

continuance, and waived delays until the next trial setting, we find that the time

period was extended for good cause, and that no error patent should be recognized.

See State in the Interest of K.K., 14-479 (La.App. 3 Cir. 12/17/14), 153 So.3d

1280, and State in the Interest of S.D., 13-1028 (La.App. 3 Cir. 2/12/14)

(unpublished opinion).

Finally, the disposition imposed was indeterminate as separate dispositions

for each offense were not imposed. C.N. was adjudicated delinquent based on her

commission of inciting to riot and accessory after the fact to second degree murder.

The court sentenced her to the Louisiana Department of Public Safety and

6

Corrections, Office of Juvenile Justice, in a secure facility for a period not to

exceed four years with review in ninety days to determine whether her educational,

medical, and mental health needs were being met.

The failure to impose separate dispositions for each convicted offense is an

error patent in violation of La.Ch.Code art. 104 and La.Code Crim.P. art. 879.

State in the Interest of S.C.J., 09-1272 (La.App. 3 Cir. 2/3/10), 28 So.3d 1206, writ

denied, 10-496 (La. 4/5/10), 31 So.3d 363; State in the Interest of J.G., 94-194

(La.App. 5 Cir. 7/26/94), 641 So.2d 633. Although there is no provision in the

Children’s Code requiring the disposition to be determinate, La.Ch.Code art. 104

provides in pertinent part:

Where procedures are not provided in this Code, or otherwise
by law, the court shall proceed in accordance with:

(1) The Code of Criminal Procedure in a delinquency
proceeding and in a criminal trial of an adult.

Louisiana Code of Criminal Procedure Article 879 provides for the

imposition of a determinate sentence when a defendant is sentenced to

imprisonment. Separate sentences must be imposed for more than one conviction.

State v. Hongo, 625 So.2d 610, 612 (La.App. 3 Cir. 1993), writ denied, 93-2774

(La. 1/13/94), 631 So.2d 1163. This court has previously held that error patent

occurs when a separate disposition is not imposed for each adjudicated offense in a

juvenile case, citing La.Code Crim.P. art. 879 as authority. State in the Interest of

L.D.L., Jr., 98-794 (La.App. 3 Cir. 10/28/98) (unpublished opinion), and State in

the Interest of R.D.B., 98-773 (La.App. 3 Cir. 10/28/98) (unpublished opinion).

See also State in the Interest of E.M., 18-171 (La.App. 1 Cir. 6/1/18) (unpublished

opinion), writ denied, 18-1097 (La. 7/16/18), 247 So.3d 118, where the first circuit

7

found the trial court’s failure to impose a separate disposition on each adjudication

rendered the disposition indeterminate.

Considering the foregoing, we vacate the disposition and remand for the

juvenile court to impose a separate disposition for each adjudication and to enter

into the record a written judgment of the dispositions in accordance with

La.Ch.Code art. 903.

Lastly, Louisiana Code of Criminal Procedure Article 930.8 requires the trial

court to inform a defendant at sentencing that he has two years from the finality of

his or her conviction and sentence to file an application for post-conviction relief.

Although the Louisiana Children’s Code contains no similar provision, this court

has required this notice be given to juveniles. See State in the Interest of C.C.H.,

21-19 (La.App. 3 Cir. 5/5/21), 319 So.3d 940; State in the Interest of R.J.H., 21-20

(La.App. 3 Cir. 5/5/21), 319 So.3d 964; State in the Interest of J.J.M., 16-347

(La.App. 3 Cir. 11/9/16), 207 So.3d 609.

Accordingly, the juvenile court is ordered, at the new disposition hearing, to

advise C.N. of the time limitation for filing an application for post-conviction

relief.

ASSIGNMENTS OF ERROR:

C.N. asserts two issues for review through counsel, but both are assertions

that the evidence adduced at the adjudication hearing was insufficient to support

the two adjudications of delinquency.

The general test for sufficiency is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

8

99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)).
In order for this Court to affirm a conviction, however, the record
must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Regarding delinquency adjudications, the supreme court explained the

hybrid nature of such sufficiency reviews in a per curiam reversing an appellate

court’s assessment:

Finally, the court of appeal emphasized that juvenile delinquency
proceedings are essentially civil in nature, State in the Interest of
Batiste, 367 So.2d 784, 789 (La.1979), and that review of a
delinquency adjudication is therefore subject not only to the due
process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979), but also to a broader standard by which an
appellate court reviews both the facts and law, specifically, the trial
court’s factual findings, for clear or manifest error, “to determine
whether there is sufficient evidence to satisfy the standard of proof
beyond a reasonable doubt.” [State in the Interest of ] C.D., 11-0121,
p. 6[ ][La.App. 4 Cir. 6/29/11),] 69 So.3d [1219,] [ ] 1223 (citation
omitted). Given the loose ends in the state’s case, the court of appeal
concluded “the trial court was clearly wrong in determining that the
state had proven the identification of C.D. beyond a reasonable doubt.”
Id., 11-0121 at 10-11, 69 So.3d at 1224-25.

However, as a matter of due process, the court of appeal erred
in losing sight of the basic principle on review that the rational fact
finder test of Jackson v. Virginia, “does not permit a reviewing court
to substitute its own appreciation of the evidence for that of the [fact
finder].”State v. Lubrano, 563 So.2d 847, 850 (La.1990) (citing State
ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983)). Thus, an
appellate court should ordinarily not assume “the role of the fact-
finder to weigh the respective credibilities of the witnesses” and
thereby “second guess the credibility determinations of the trier of fact
beyond . . . sufficiency evaluations under the Jackson standard of
review.” Graffagnino, 436 So.2d at 563.

9

....

Argument of counsel at the close of the hearing brought all of
the circumstances considered by the court of appeal to the attention of
the juvenile court, including discrepancies in the defense case with
respect to where and how defendant spent the afternoon before his
arrest and whether defendant did, or (in his opinion) did not resemble
anyone else in the Fischer Housing Development. In the end, the
juvenile court found Dobard’s testimony sufficient to negate any
reasonable probability of misidentification and because that credibility
determination appears rationally based on the evidence presented at
the adjudication hearing, the court’s finding forecloses second
guessing by an appellate court under the rational fact finder test of
Jackson v. Virginia. Moreover, even under a broader, civil standard
of review, we find no clear or manifest error in the trial court’s
credibility determination. See Rosell v. ESCO, 549 So.2d 840, 844-45
(La.1989) (“When findings are based on determinations regarding the
credibility of witnesses, the manifest error—clearly wrong standard
demands great deference to the trier of fact’s findings. . . . [unless]
documents or objective evidence so contradict the witness’s story, or
the story itself is so internally inconsistent or implausible on its face,
that a reasonable fact finder would not credit the witness’s story. . . . a
factfinder’s finding . . . based on its decision to credit the testimony of
one of two or more witnesses . . . can virtually never be manifestly
erroneous or clearly wrong.”) (citing, inter alia, [State v.] Mussall
[523 So.2d 1305, (1988)]); see also Foley v. Entergy Louisiana, Inc.,
06-0983, p. 10 (La.11/29/06), 946 So.2d 144, 153 (“If the factual
findings are reasonable in light of the record reviewed in its entirety, a
reviewing court may not reverse even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence
differently.”) (citation omitted).

State in the Interest of C.D., 11-1701, pp. 5-6, 8-9 (La. 7/2/12), 93 So.3d 1272,

1276, 1277-78.

In her first assignment of error, C.N. argues the State did not prove that she

was an accessory after the fact to second degree murder. Louisiana Revised

Statutes 14:25 defines “accessory after the fact” as:

An accessory after the fact is any person who, after the
commission of a felony, shall harbor, conceal, or aid the offender,
knowing or having reasonable ground to believe that he has
committed the felony, and with the intent that he may avoid or escape
from arrest, trial, conviction, or punishment.

10

An accessory after the fact may be tried and punished,
notwithstanding the fact that the principal felon may not have been
arrested, tried, convicted, or amenable to justice.

Although C.N. recites the elements of accessory after the fact found in

La.R.S. 14:25, she focuses solely on the requirement that a felony must be

committed, arguing only that the State failed “to prove the guilt of the principal

[R.B.] beyond a reasonable doubt.” To this point, C.N. argues R.B. did not

commit second degree murder because the killing was justified, or, alternatively,

was manslaughter. Implicit in C.N.’s arguments of self-defense and manslaughter

is the acknowledgement that a homicide occurred.

Second degree murder is defined by La.R.S. 14:30.1, which states in

pertinent part:

A. Second degree murder is the killing of a human being:

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

Justifiable homicide is defined by La.R.S. 14:20, which states in pertinent

part:

A. A homicide is justifiable:

(1) When committed in self-defense by one who reasonably
believes that he is in imminent danger of losing his life or receiving
great bodily harm and that the killing is necessary to save himself
from that danger.

(2) When committed for the purpose of preventing a violent or
forcible felony involving danger to life or of great bodily harm by one
who reasonably believes that such an offense is about to be committed
and that such action is necessary for its prevention. The
circumstances must be sufficient to excite the fear of a reasonable
person that there would be serious danger to his own life or person if
he attempted to prevent the felony without the killing.

As already mentioned, C.N. acknowledges that R.B. killed M.L. by stabbing

her with the knife. However, C.N. urges that the homicide at issue was justified as

11

self defense. C.N. notes testimony by B.G. that the girls in their group armed

themselves simply to scare the other girls away. Further, B.G. noted that they were

backing up when the altercation began. Thus, C.N, argues that R.B. was not the

aggressor, and, instead, was being “taunted and followed by seven girls who

announced on social media that they wanted to fight.”

In discussing killing in self-defense, this court has explained:

Defendant does not deny that he shot and killed the victim, nor
did he deny it at trial. Rather, he argues that the State failed to
disprove that he acted in self-defense. Killing in self-defense is
governed by La.R.S. 14:20(A), which states, in pertinent part, “[a]
homicide is justifiable: (1) When committed in self-defense by one
who reasonably believes that he is in imminent danger of losing his
life or receiving great bodily harm and that the killing is necessary to
save himself from that danger.” (Emphasis added).

Defendant contends that the killing was justifiable because he
had his back against the wall, and was surrounded by the victim and
the victim's two friends, Doucet and Jones. Further, he contends that
shooting the victim was the only way he could escape.

The Defendant’s claim that Jones had a firearm was disputed by
both Doucet and Jones at trial. The evidence given by his own mother
defeats his claim of justifiable self-defense. The essence of his
defense is that he was justified in responding to an attempted punch
by shooting his opponent in the chest at close range. We recognize
that Dejean had two friends with him. Thus, Defendant may have
genuinely felt endangered; further, some level of fear was objectively
reasonable. However, the level of force he used to defend himself
was far beyond what was necessary under the circumstances.

In the context of self-defense in a manslaughter prosecution,
our court has observed in State v. Griffin, 06-543, pp. 12, 14 (La.App.
3 Cir. 9/27/06), 940 So.2d 845, 851, 854, writ denied, 07-2
(La.9/14/07), 963 So.2d 995, the following:

The State had the burden of proving the Defendant
did not stab Marcus Conway in self-defense; therefore,
we must determine whether the Defendant reasonably
believed that he was in imminent danger of losing his life
or receiving great bodily harm and that killing Marcus
was necessary to save himself from that danger. The
standard in La.R.S. 14:20 is whether the Defendant’s
subjective belief that he was in danger was reasonable.

12

State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640
So.2d 488.

Factors to consider in determining
whether a defendant had a reasonable belief
that the killing was necessary are the
excitement and confusion of the situation,
the possibility of using force or violence
short of killing, and the defendant’s
knowledge of the assailant’s bad character.
State v. Hardeman, 467 So.2d 1163 (La.App.
2d Cir.1985). Although there is no
unqualified duty to retreat, the possibility of
escape is a factor to consider in determining
whether a defendant had a reasonable belief
that the use of deadly force was necessary to
avoid the danger. State v. Brown, 414 So.2d
726 (La.1982).

State v. Spivey, 38,243, p. 6 (La.App. 2 Cir.
5/12/04), 874 So.2d 352, 357.

State v. Mincey, 08-1315, pp. 2-3 (La.App. 3 Cir. 6/3/09), 14 So.3d 613, 615.

In this case, there was no evidence that M.L. or any of the girls in her group

were armed. B.G. testified that she did not see any of the girls in that group with

any weapons. C.N. testified that she saw no knife in M.L.’s hands, although M.L.

had her hands up, ready to fight. Based on the record, it is clear that R.B. stabbed

an unarmed person. Thus, even if the victim was advancing on R.B., the latter’s

response used disproportionate force in response and the homicide was not

justified. In light of Mincey, we conclude that R.B.’s act of killing of M.L. was not

justified pursuant to La.R.S. 14:20. Thus, justification does not negate C.N.’s

adjudication as an accessory.

Regarding her alternative argument that R.B. was guilty of manslaughter

rather than second degree murder, similar reasoning applies. Manslaughter is

defined by La.R.S. 14:31, which states in pertinent part:

A. Manslaughter is:

13

(1) A homicide which would be murder under either Article 30
(first degree murder) or Article 30.1 (second degree murder), but the
offense is committed in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his
self-control and cool reflection. Provocation shall not reduce a
homicide to manslaughter if the jury finds that the offender’s blood
had actually cooled, or that an average person’s blood would have
cooled, at the time the offense was committed[.]

As the second circuit has discussed:

The question now before this court is whether Garrett’s
provocation of Defendant was sufficient to deprive an average person
of self-control and cool reflection thereby causing Defendant to act in
sudden passion or heat of blood, which would reduce the charge to the
lesser responsive charge of attempted manslaughter. The record
indicates that Garrett was the initial aggressor who admitted that he
armed himself with a metal rod, threatened Defendant and struck first
after being given a “threatening look.” Garrett’s role as the aggressor,
however, quickly reversed when the shower rod came apart and he
began to retreat. Defendant testified that, when the rod came apart, he
began hitting Garrett until he backed up and fell, at which point
Defendant continued to hit him at least three more times.

A trier of fact could reasonably conclude that an average person
would not be so angered by this quick, ineffective attack that he
would lose all self-control and cool reflection and start slashing
another man’s throat. Further, Defendant admitted in his testimony
that he was not so angry that he could not control himself. We are
also not persuaded by Defendant’s argument that he did not have
enough time to calm down during the short chase before the attack; an
average person would not have reacted in such a violent manner.

Accordingly, we find the evidence in this case sufficient to
support Defendant’s conviction of attempted second degree murder
and, further, that Defendant failed to carry his burden necessary to
reduce the conviction to attempted manslaughter.

State v. Logan, 45,136, pp. 12-13 (La.App. 2 Cir. 4/14/10), 34 So.3d 528, 536, writ

denied, 10-1099 (La. 11/5/10), 50 So.3d 812.

The “fight” described by B.G. and C.N., and depicted on Walmart security

videos, was between an unarmed girl and a girl with knife. There was no evidence

that M.L. had any intention of escalating the altercation beyond a fistfight. As in

Logan, a factfinder could reasonably conclude that an average person would not

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lose self-control and stab another person under these facts. Thus, we find the State

proved the underlying felony beyond a reasonable doubt—that R.B. committed

second degree murder—and further, that C.N. was an accessory to second degree

murder.

For the reasons discussed, C.N.’s arguments that she is not an accessory to

second degree murder lack merit.

As for the second offense, C.N. argues that the evidence adduced by the

State did not support its delinquency adjudication for inciting to riot. Inciting to

riot is defined by La.R.S. 14:329.2 as “the endeavor by any person to incite or

procure any other person to create or participate in a riot.” As previously stated,

“riot” is defined by La.R.S. 14:329.1 as:

[A] public disturbance involving an assemblage of three or more
persons acting together or in concert which by tumultuous and violent
conduct, or the imminent threat of tumultuous and violent conduct,
results in injury or damage to persons or property or creates a clear
and present danger of injury or damage to persons or property.

C.N. argues that the evidence at the adjudication proceeding did not

establish that she took any action to incite or procure other people to engage in the

altercation at issue. C.N. admitted on cross-examination that she and R.B. texted

one another after C.N. saw M.L.’s group at the theater:

Q. . . . . “Okay. So, when I come, we fighting. Then we leaving”?
That’s what R.B. texted you, right?

A. Oh, yes, sir.

Q. So, that’s before the stabbing, right?

A. Yes, sir.

Q. So, you saying that you didn’t know you were going to fight
before you got to Walmart isn’t true, is it?

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A. I didn’t know what she - - at first I didn’t know what she was
talking about, but then whenever we seen - - whenever we seen the
girls, that’s when we knew.

Q. Okay. When you saw the girls when?

A. When we was at the movies.

C.N. also acknowledged that she went live on Instagram before the incident. She

also testified that she understood that her initial contact with R.B. to let her know

that M.L.’s group was at the theater “set all this into motion,” as the prosecutor put

it. However, C.N. also stated that she did not know at the time that the initial

contact with R.B. would cause events to unfold in the way they did.

In response, the State cites a case from this court:

Defendant asserts that on May 17, 2012, he was jumped and
severely beaten by individuals known as “the Crowley boys.” As a
result, he “decided to confront” the boys for “a fair fist fight” the next
night. En route to the apartment where the boys apparently lived,
Defendant was joined by Lee Hill. Defendant asserts that Lee Hill
armed himself “without encouragement or procurement” by
Defendant, and that Hill acted on his own when he began firing a gun
indiscriminately outside the residence of the Crowley boys.
Defendant acknowledges the shooting “may have resulted in the death
of Ray Ryan.”

....

Though Ms. Johnson’s testimony [State witness] was
questionable at points, her testimony nonetheless provided support for
the proposition that Defendant ordered a group of three or more
persons to “surround” the apartment (though she claimed to have
intervened and prevented such from happening) and that Defendant
ordered an unspecified number of people to run up the stairs and later
to shoot at the apartment. While Mr. McMahon’s testimony did not
fully corroborate Ms. Johnson’s with respect to Defendant’s “orders”
or “commands,” he did agree with the State’s suggestion that
Defendant was the leader of the group.

Defendant’s statement to the authorities provided some
additional support, as Defendant himself admitted that he discussed
the fight with several others before it occurred. We cannot say that
discussing a fight is necessarily proof of incitement, especially since
the fight did not occur immediately thereafter. He often used the

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word “we” when referring to the anticipated fight, though he claimed
to have later decided he would handle the matter on his own.
Nonetheless, both Teri Johnson and Kenneth McMahon described a
large group, twelve to twenty people, moving towards the scene on
the night of the incident. While Defendant recalled walking over with
only his girlfriend and her brother, he also claimed to have been
heavily intoxicated and had even “blacked out” earlier in the day.

State v. Johnson, 15-843, pp. 1-2, 14-15 (La.App. 3 Cir. 3/2/16), 186 So.3d 348,

349, 356, writ denied, 16-667 (La. 4/7/17), 218 So.3d 108.

The State summarizes its argument as follows:

In the instant case, C.N. clearly knew that R.B. wanted to fight
some of the girls in the other group who were present. She clearly
told R.B. of the girls’ presence, and she was clearly aware of R.B.’s
intent when she arrived. She was cooperative to the point of
procuring weapons, which escalated a potential fist fight into a deadly
encounter. To constitute a riot one has to create a public disturbance
(such as a fight involving at least four girls on one side and at least
seven on the other) involving an assemblage of three or more persons
acting together or in concert (there were initially three in C.N.’s group
until she texted R.B. which made four with perhaps others on the way)
which by tumultuous and violent conduct, (a stabbing) or the
imminent threat of tumultuous and violent conduct, results in injury of
damage to persons (the death of M.L.) or property or creates a clear
and present danger of injury or damage to persons or property (four
girls armed with knives before a fist fight creates a clear and present
risk of injury.)

....

There is certainly more evidence of her guilt than the defendant in the
Johnson case.

We note that the weakness of the State’s case in Johnson was related to the

credibility of the prosecution’s chief witness. In the present case, credibility is not

at issue. In the briefs, as at the adjudication hearing, there does not appear to be a

disagreement regarding the underlying facts. Instead, the difficulty in the present

case lies in ascertaining whether the proven facts match the statutorily prescribed

elements of the crime, pursuant to Kennerson, 695 So.2d 1367, and C.D, 69 So.3d

1219.

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Regarding such a sufficiency analysis, Johnson was actually a stronger case,

as it included evidence that the defendant actually issued orders to the group

involved in his offense. There can be little doubt that the act of giving commands

to a group, exhorting it to violent or disruptive action, is equivalent to “inciting” or

“procuring” said group. We have found little guidance other than Johnson but note

a statement from a Louisiana Supreme Court case that pre-dates Jackson v.

Virginia: “For speech to constitute this conduct of inciting to riot, it must be a

willful, intentional ‘endeavor’ to gain as an immediate result, and specifically from

that speech, the participation of three or more persons in combination to do

violence.” State v. Douglas, 278 So.2d 485, 487 (La.1973).

The evidence in the current case shows that C.N. went to a movie theater

with two other girls. Apparently, R.B. initiated the plan to go to the movie theater

that day, but did not arrive for quite some time. C.N. and the other two girls

encountered M.L.’s group who had some prior disagreement with R.B., and C.N.

contacted R.B. to let her know M.L.’s group was there. R.B. responded that she

was on the way and that she intended to fight. After R.B. arrived, she and C.N.,

along with two other girls, went to Walmart. M.L.’s group, who was also at

Walmart, challenged R.B to come outside. The latter contacted her sister to come,

and the group inquired about getting mace. When they were unsuccessful, R.B.’s

group, including C.N., armed themselves with folding knives. After receiving a

phone call that M.L.’s group was live streaming on Instagram, C.N. also initiated a

live stream titled “Fittin to Fight[.]” Subsequently, R.B. and M.L. had an

altercation and R.B. stabbed M.L., killing her.

The evidence against C.N. falls short of the level of proof reached in

Johnson, as there is no indication that C.N. exerted any level of command or other

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conscious direction of the events at issue. In the terms set forth in Douglas, it

seems questionable that C.N.’s actions constituted a “willful, intentional endeavor

to gain as an immediate result . . . the participation of three or more persons in

combination to do violence.” B.G. testified at the adjudication hearing and stated

that C.N. did not go to Walmart to fight. C.N. testified that the group planned to

meet at the movies that morning and that C.N. and the other two girls were waiting

on R.B when they first encountered M.L.’s group.

However, after C.N. texted R.B. that M.L.’s group was at the theater, R.B.

indicated there would be a fight and R.B. procured a ride to meet C.N. C.N.

admitted setting in motion the tragic events at issue. The factfinder could

rationally have determined that C.N. knew that a group fight would develop from

her initial contact with R.B., as the latter had animosity toward some of the other

girls. The other group had about seven girls; C.N. was with two other girls and

R.B. joined them due to C.N.’s contact. C.N. knew that R.B. intended to fight and

that R.B. had contacted her sisters to come.

For the reasons discussed, we affirm the adjudication based on the offense of

inciting a riot.

DECREE:

For the foregoing reasons, C.N.’s adjudications are affirmed. However, this

court vacates the disposition and remands for the juvenile court to impose a

separate disposition for each adjudication and to enter into the record a written

judgment of the dispositions in accordance with La.Ch.Code art. 903. At the new

disposition hearing, the juvenile court should advise C.N. of the time limitation for

filing an application for post-conviction relief in accordance with La.Code Crim.P.

art. 930.8.

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ADJUDICATIONS AFFIRMED; DISPOSITION VACATED AND
REMANDED WITH INSTRUCTIONS.

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

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