State ex rel. T.W.

21 So. 3d 465, 9 La.App. 3 Cir. 532, 2009 La. App. LEXIS 1739, 2009 WL 3191403
CourtLouisiana Court of Appeal
DecidedOctober 7, 2009
DocketNo. JAK 09-532
StatusPublished
Cited by12 cases

This text of 21 So. 3d 465 (State ex rel. T.W.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. T.W., 21 So. 3d 465, 9 La.App. 3 Cir. 532, 2009 La. App. LEXIS 1739, 2009 WL 3191403 (La. Ct. App. 2009).

Opinion

SAUNDERS, Judge.

JpFACTS AND PROCEDURAL HISTORY

The State of Louisiana filed a petition for delinquency on August 12, 2008, contending the Juvenile, T.W., should be adjudicated a delinquent in that he committed armed robbery, in violation of La.R.S. 14:64. The trial court heard evidence on February 11, 2009, and found T.W. to be a delinquent child. The trial court then rendered a disposition, remanding the Juvenile to the Department of Juvenile Justice until the age of twenty-one.

The Juvenile was convicted of having robbed Cigarettes and Checks on Kaliste Saloom Road in Lafayette at 10:30 a.m. on August 8, 2008, while armed with a gun. The owner of the store indicated $12,000.37 was taken during the robbery. A Motion for Expedited Appeal and Designation of Record was filed on February 23, 2009, and subsequently granted. The Juvenile is now before this court asserting the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

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 armed robbery beyond a reasonable doubt.
2. The juvenile court failed to conduct a disposition hearing as required by La. Child. Code art. 893.
3. The juvenile judge failed to address the needs of [T.W.] in arriving at the disposition in this case[,] and the imposition of juvenile life is excessive.
4. The juvenile judge erred when it agreed with the prosecutor that it lacked discretion and was required to impose a disposition of secure confinement until [T.W.’s] twenty-first birthday.
5. Trial counsel rendered ineffective assistance by failing to move the court for dismissal of the Petition due to the State’s failure to timely set the adjudication hearing.

JaLAW AND DISCUSSION OF THE MERITS:

Assignment of Error No. 1

In his first assignment of error, T.W. contends the evidence introduced at the adjudication hearing was insufficient to prove all of the elements of the offense of armed robbery beyond a reasonable doubt.

In a juvenile proceeding, the 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 [468]*468L.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 in the interest of D.P.B., 02-1742, pp. 4-5 (La.5/20/03), 846 So.2d 753, 756. “[AJppellate review in juvenile delinquency proceedings extends to both law and facts.” State in the interest of L.T., 99-487, p. 6 (La.App. 3 Cir. 10/13/99), 747 So.2d 148,152.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict a 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, the appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.

State in the interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.

L[W]hen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La. 1988).

State v. Hughes, 05-992, pp. 5-6 (La.11/29/06), 943 So.2d 1047,1051.

“Identification by a single witness may support a conviction despite considerable alibi testimony. State in the Interest of Johnson, 461 So.2d 551 (La.App. 3 Cir.1984); State v. Brian, 502 So.2d 293 (La.App. 3 Cir.1987).” State v. Henry, 95-428, p. 6 (LaApp. 3 Cir. 10/4/95), 663 So.2d 309, 311, writ denied, 96-681 (La.5/16/97), 693 So.2d 793. “In Louisiana, a defendant can be convicted on the uncorroborated testimony of an alleged accomplice.” State v. Mitchell, 35,970, p. 10 (La.App. 2 Cir. 5/8/02), 818 So.2d 807, 814.

Luis Farfan (Farfan), the manager of Cigarettes and Checks, testified that he was robbed at gun point on August 8, 2008, between 10:30 and 11:00 a.m. by two men. Farfan described one-man as tall and the other as a little shorter. The taller man was five feet six or seven inches, and the shorter man was five feet three or four inches. The two men were dressed in black and wore sunglasses, and one had a red bandana over his face. He did not recall what the other man’s face was covered with. However, he testified that neither of the men wore a shirt over his face. [469]*469The taller man, who wore the red bandana, possessed the gun. Farfan testified that one of the men was black.

Helen Mouton (Mouton) testified that she lived on Rosedale Drive and could see the back of Cigarettes and Checks from her home. On August 8, 2008, Mouton was having a yard sale and testified regarding what she saw that day as follows:

|4I told him we were having a yard sale and that we were in the driveway and looking towards the street and where my little table was about twelve (12) feet from the street and that we saw — first of all, we saw two guys walking down the street that we had previously seen in the neighborhood. And we waved to them, and they waved back to us.
Her testimony continued as follows:

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Bluebook (online)
21 So. 3d 465, 9 La.App. 3 Cir. 532, 2009 La. App. LEXIS 1739, 2009 WL 3191403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-tw-lactapp-2009.