State Ex Rel. Wh

62 So. 3d 839, 2011 WL 1798096
CourtLouisiana Court of Appeal
DecidedApril 6, 2011
Docket2010-CA-1418
StatusPublished

This text of 62 So. 3d 839 (State Ex Rel. Wh) 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. Wh, 62 So. 3d 839, 2011 WL 1798096 (La. Ct. App. 2011).

Opinion

62 So.3d 839 (2011)

STATE of Louisiana In the Interest of W.H.

No. 2010-CA-1418.

Court of Appeal of Louisiana, Fourth Circuit.

April 6, 2011.

*842 Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant, W.H.

Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

The juvenile judge adjudicated W.H., a child under seventeen years of age,[1] delinquent for violations of attempted unauthorized entry of a dwelling and of aggravated assault. At the disposition hearing, the juvenile judge committed W.H. to the custody of the Department of Public Safety and Corrections for these felony-grade delinquent acts.[2] W.H. appeals to us. See LA. CH.C. ARTS. 330 B and 337. W.H. assigns two errors: (1) that the evidence is insufficient to support a finding beyond a reasonable doubt that he committed the delinquent acts, and (2) that the juvenile judge erred in denying his pretrial motion to suppress an out-of-court identification.

Because we conclude from a review of the facts and the law that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that W.H. committed the delinquent acts, we determine that the evidence is sufficient for the adjudications. We also conclude that the juvenile court did not abuse its discretion in denying the motion to suppress the identification. Accordingly, we affirm the adjudication and disposition.[3] We explain our conclusions in detail in the following Parts.

I

In this Part we explain why we conclude that the juvenile-court judge was not clearly wrong in finding beyond a reasonable doubt that W.H. committed the delinquent acts of attempted unauthorized entry of a dwelling and aggravated assault. In a delinquency-adjudication proceeding, the state must prove all essential elements of the delinquent acts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); LA. CH.C. ART. 883.

In Louisiana, the child is constitutionally entitled to appellate review of his adjudication under the manifestly erroneous-clearly wrong standard. See LA. CONST. ART. 5, § 5, 10, 18 and 19; see also State in the Interest of Batiste, 367 So.2d 784, 789 (La. 1979). This is a broader standard than the minimum standard mandated by the federal constitution and memorialized in Jackson v. Virginia, 443 U.S. 307, *843 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).[4]See State in the Interest of D.R., 10-0405, pp. 12-13 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 934.

The manifest error-clearly wrong standard is well-known. Nolan v. Mabray, 10-373, pp. 9-10 (La.11/30/2010), 51 So.3d 665, 672. We do not disturb a fact-finder's findings if, after a review of the entire record, we conclude that the findings are reasonable and not clearly wrong. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Especially on matters of credibility, an appellate court affords great deference to a fact-finder's findings. Id. If, however, "documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face," we might well find manifest error despite a purported credibility determination by the fact-finder. Id. at 845.

In this case, we specially note at the outset that there are no documents or objective evidence. The judge as trier of fact accepted as credible the uncontroverted testimony of the only witnesses: the victim, Luis Ibanez, and an investigating officer, Tamara Woods. Thus, our review is principally directed to determining whether there is sufficient evidence as to each essential element of each of the delinquent acts charged and to determining whether testimony of the witnesses is internally inconsistent or implausible on its face.

A

We first review the charge of attempted unauthorized entry of an inhabited dwelling. "Unauthorized entry of an inhabited dwelling is the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person." LA. R.S. 14:62.3 A. "Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward accomplishing his object is guilty of an attempt to commit the offense intended." LA. R.S. 14:27 A. And "it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose." Id. Additionally, "any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime attempted or intended was actually perpetrated by such person in pursuance of such attempt." LA. R.S. 14:27 C; see also LA. C.CR.P. ART. 814(43); see also State v. Little, 01-2218, p. 1 (La.3/28/02), 814 So.2d 547, 548.

The uncontroverted testimony of Mr. Ibanez was that he was at home on the evening of June 22, 2010 when W.H. knocked at his door. W.H. first asked permission to enter the home, which permission Mr. Ibanez refused. W.H. then began to insist on entering the home so that he could smoke marijuana. Mr. Ibanez continued to repeatedly refuse entry. *844 W.H. then threatened Mr. Ibañez that he would return and "do something" to Mr. Ibanez. W.H. left the home and returned with a gun, which Mr. Ibanez saw in W.H.'s pants.

On the porch of Mr. Ibanez's home, W.H. pointed the gun in Mr. Ibanez's face and demanded to be let into the home. At that point Mr. Ibanez yielded to W.H.'s demand and W.H. entered the home. Once inside the home W.H. was asked by Mr. Ibanez to at least give him the bullets for the gun. W.H. replied, "you're f___ crazy," and subsequently left Mr. Ibanez's home. At that point Mr. Ibanez telephoned the police.

Not long after, the police arrested W.H. around the corner from Mr. Ibanez's home and brought him to Mr. Ibanez, who identified him. He also identified W.H. as the perpetrator during the trial.

We discern no internal inconsistency or implausibility in Mr. Ibanez's testimony. We cannot find that the judge was clearly wrong in finding beyond a reasonable doubt that each element of attempted unauthorized entry of an inhabited dwelling had been proven. That finding is reasonable.

B

We now review the charge of aggravated assault. Assault is defined as "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." LA. R.S. 14:36. One definition of a battery is "the intentional use of force or violence upon the person of another." LA. R.S. 14:33. "Aggravated assault is an assault committed with a dangerous weapon." LA. R.S. 14:37 A. On this charge too there was only the uncontroverted testimony of Mr. Ibanez, which the judge, as trier of fact, accepted as credible.

As we noted earlier, when leaving Mr. Ibañez's home the first time, W.H. said that he would come back to "do something" to Mr. Ibañez. Upon his return, W.H. put the gun in Mr. Ibanez's face and "put the clip back." When he was leaving the second time, W.H., according to Mr. Ibanez, said he wanted to come back and kill him.

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Related

In Re WINSHIP
397 U.S. 358 (Supreme Court, 1970)
Manson v. Brathwaite
432 U.S. 98 (Supreme Court, 1977)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
State v. McNeal
785 So. 2d 957 (Louisiana Court of Appeal, 2001)
State v. Robinson
386 So. 2d 1374 (Supreme Court of Louisiana, 1980)
State v. Levi
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State v. Green
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State v. Guy
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State v. Woodberry
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State v. Kemp
896 So. 2d 349 (Louisiana Court of Appeal, 2005)
State v. Raines
788 So. 2d 635 (Louisiana Court of Appeal, 2001)
State v. Bonier
367 So. 2d 824 (Supreme Court of Louisiana, 1979)
State in Interest of Batiste
367 So. 2d 784 (Supreme Court of Louisiana, 1979)
State v. Little
814 So. 2d 547 (Supreme Court of Louisiana, 2002)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
State v. Broadway
753 So. 2d 801 (Supreme Court of Louisiana, 1999)
State v. Jackson
55 So. 3d 767 (Supreme Court of Louisiana, 2011)
Nolan v. Mabray
51 So. 3d 665 (Supreme Court of Louisiana, 2010)
State ex rel. D.R.
50 So. 3d 927 (Louisiana Court of Appeal, 2010)
State ex rel. C.J.
60 So. 3d 46 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
62 So. 3d 839, 2011 WL 1798096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-wh-lactapp-2011.