author: ROBERT A. CHAISSON, Judge.

text:
    STATE of Louisiana v. Detroit T. LESTRICK.
    No. 13-KA-289.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, Scott U. Schlegel, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Jane L. Beebe, Attorney At Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J.
    WINDHORST, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

12In this appeal, defendant, Detroit Les-trick, seeks review of his two convictions for indecent behavior with a juvenile. For the reasons that follow, we affirm defendant’s convictions, vacate his sentences, and remand the matter for resentencing in accordance with this opinion.

PROCEDURAL HISTORY

On October 26, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with two counts of indecent behavior with a juvenile in violation of LSA-R.S. 14:81. At his arraignment, defendant pled not guilty. The matter proceeded to trial before a six-person jury on September 25, 2012. After considering the evidence presented, the jury returned a verdict of guilty as charged on September 27, 2012.

On October 3, 2012, defendant filed a motion for new trial, which the trial court heard and denied the next day. Defendant then waived sentencing delays and was sentenced on each count to a concurrent sentence of seven years at hard labor, with all but two years suspended. The trial court also ordered defendant to register as a sex offender. Defendant now appeals.

\ ¡PACTS

At approximately 3:00 a.m. on August 27, 2011, Detective Thomas Guy of the Jefferson Parish Sheriffs Office responded to a residence in Marrero in reference to a complaint of child molestation. When the detective arrived, he spoke with the mothers of the two juvenile victims before interviewing each victim separately, who were both “visibly upset.” After learning that the alleged incident occurred in Westwego, the investigation was turned over to the Westwego Police Department. Detective Brett Taylor of the Westwego Police Department then went to the Marrero residence where he spoke to the victims and their mothers: B.A. and her daughter, N.D., and S.K. and her daughter, S.K.(l).

In speaking to the victims separately, the detective found their stories to be consistent.

After failing to appear three times for forensic interviews at the Children’s Advocacy Center (CAC), N.D. and S.K.(1) were finally interviewed on October 24, 2011, by Suzanne Jolissaint. Then, on November 9, 2011, at the Audrey Hepburn Care Center at Children’s Hospital, N.D. and S.K.(1) were interviewed and medically examined by Anne Troy, a forensic nurse practitioner and an expert in child abuse pediatrics. In these interviews, and subsequently at trial, N.D. and S.K.(1) each described substantially the same events.

N.D. explained that one night defendant asked B.A. if N.D. and S.K.(l) could accompany him to his apartment in Westwe-go to check his mail. B.A., concerned for defendant because he had been drinking, allowed her daughter and S.K.(1) to accompany him. B.A. gave N.D. her cell phone to carry with her.

|4Upon arriving at his apartment, defendant and the two girls watched television. N.D. sat on the bed, defendant lay on the bed, and S.K.(1) stood up. While on the bed, defendant tried to “dig inside” the back of N.D.’s shorts. She explained that “he didn’t get that very far” and he did not touch her “butt.” After telling defendant to stop, N.D. got up and moved to the other side of the bed. Nevertheless, defendant attempted again to reach in N.D.’s shorts, prompting N.D. to stand up.

Then, after N.D. sat back down, S.K.(l) observed defendant attempt to touch N.D. a third time and warned her. N.D. stood back up. Soon thereafter, the two girls and defendant left to go to the store so he could buy another drink, and they then returned to defendant’s apartment.

N.D. and S.K.(l) lay across the bed to watch television. S.K.(l) fell asleep. Defendant soon joined the girls on the bed. Unbeknownst to N.D. at the time, she later learned that defendant was “messing with” S.K.(1), which prompted S.K.(l) to get up and state that she was ready to leave. The two girls got up off the bed and returned to the car where S.K.(l) told N.D. what had happened.

Thereafter, as defendant drove the girls back home, N.D. typed a question on her cell phone, asking S.K.(l) if she wanted to tell their mothers what had occurred with defendant. N.D. handed the phone to S.K.(l), but S.K.(l) did not know how to type on the phone, so she orally replied, “Yea, I wanna tell.” This prompted defendant to ask “Tell about what?” Not wanting defendant to know what they were talking about, N.D. fabricated a story about her sister. When N.D. wouldn’t elaborate on this, defendant attempted to get it out of S.K.(l), reaching into the back seat, tapping her, and asking “Tell about what?” While reaching back, he touched S.K.(l)’s “private area” twice.

|fiS.K.(l) explained that one night her aunt, B.A., wanted her and her cousin, N.D., to accompany defendant, B.A.’s boyfriend, to his apartment to “make sure he was okay” because he had been drinking. When they arrived at defendant’s apartment, S.K.(l) and N.D. watched television on the bed for a few minutes before leaving with defendant to go to the store so he could buy another drink. The two girls returned to defendant’s apartment with him and resumed watching television on the bed. They lay down and defendant soon joined them. S.K.(1) was half asleep when defendant started to “rub” the skin of her chest. S.K.(l) moved his hand way from her and asked him what he was doing, but he acted like he did not know what was going on. S.K.(l) stood up and demanded to leave, though defendant wanted to stay to continue watching television.

Defendant eventually brought the girls home. During the drive, S.K.(l) and N.D. were discussing whether they would tell their parents what happened, which provoked defendant to ask what they were talking about. Defendant then reached in the back seat to tap S.K.(1) and rubbed S.K.(l)’s vagina on top of her clothes.

N.D.’s mother, B.A., testified that she began dating defendant in February of 2011, he lived with her for a month or two starting in April of 2011, and they broke up sometime in June or July of 2011. Then, in August of 2011, B.A. and defendant resumed talking and seeing each other. Defendant resided in an apartment in Westwego, though he often slept at B.A.’s house.

B.A. testified that one night around the time that defendant and B.A. had resumed their relationship, defendant told B.A. he was heading over to his apartment to check the mail and he asked if N.D. and S.K.(1) could accompany | fihim. Although defendant had been drinking alcohol that night, B.A. permitted the two girls to go and gave N.D. a cell phone to carry with her. After they had been gone for a while, B.A. called her daughter, asking where they were. N.D. explained that she and her cousin were inside with defendant watching television. As more time passed, B.A. continued calling her daughter, who continued to inform her mother that they were still watching television. B.A. called defendant several times, urging him to bring the girls home. B.A. estimated that the girls were with defendant for “about 45 minutes to an hour,” leaving sometime between 9:00 and 10:00 p.m. and returning after 11:00 p.m.

Eventually when N.D. and S.K.(l) returned home that night, they retreated to N.D.’s room while B.A. fell asleep. The next morning around 7:00 a.m., with defendant present, N.D. and S.K.(1) awakened B.A., informing her that they had to tell her something and that defendant had to leave the room. After defendant left the room, the girls explained that when they were in his one-room apartment, they sat on his bed to watch television. As the girls began to describe how defendant touched them, B.A. cut them off and called defendant back into the room, at which point the girls described what he had done to them. N.D. explained that defendant had grabbed the back of her shorts. S.K.(1) explained that defendant had rubbed his hand across her chest. Defendant denied the accusations. B.A. told S.K(l) to call and inform her mother of the situation. Later, with S.K. present, the girls again explained what had occurred, while defendant continued his denial.

B.A. confronted her daughter, telling her that the accusation was serious and that she should not lie about something like this. N.D. and S.K(l) maintained their accusations. Upon observing N.D.’s demeanor in the presence of defendant as “pale,” B.A. asked defendant again if he had done what the girls were accusing him of, and he continued to deny it. In the early morning hours of August 27, |72011, B.A. called the police to report that defendant had touched the two girls. When the police arrived, N.D. and S.K.(1) described to the officer what had happened.

The defense called Mildred Ardis, who testified that she resided near defendant in August of 2011, and has known defendant his entire life and defendant’s mother since she was young. Ms. Ardis testified that on August 25, 2011, she was outside, as is her custom, from 4:00 p.m. until 10:30 p.m. visiting with defendant’s mother. On this day, during this time, Ms. Ardis testified that she did not see defendant come to his apartment. She explained that she had the vantage point to observe defendant enter his apartment and that he could not have entered his apartment without her observing him.

Verna Reed, defendant’s mother, testified that on the evening of August 25, 2011, she was visiting Mildred Ardis at her residence from 4:00 p.m. until 10:35 p.m. Ms. Reed testified that she did not see defendant come to his apartment during this time and that she was in a position to see him if he had.

Defendant took the stand and denied that he took N.D. and S.K.(1) to his apartment on August 25, 2011. He testified that on August 25, 2011, he was with B.A. all day. Later in the evening, when N.D. was home from school, B.A. and defendant got into an argument over money. Defendant stated he did not leave the house that night.

Defendant testified that on August 26, 2011, he got off work at 2:30 p.m., picked up his two children, took them to the park, then to get an Icee, and then to a movie. The movie ended around 9:30 or 10:00 p.m. after which defendant dropped his children off to his mother. Around this time, defendant received a phone call from B.A. asking to meet her. Defendant met B.A. at her sister’s house, where he picked her up along with N.D. and S.K.(l), and returned to B.A.’s house. During |sthe ride, everyone was “silent,” and defendant found them to be “acting funny.” Eventually B.A. confronted defendant about touching N.D. and S.K(l), which he denied then and continued to deny on the stand. Defendant explained that B.A. called the police on him on August 27, 2011, “over money.”

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him. He contends that the State failed to prove the elements of the offense beyond a reasonable doubt, pointing to numerous inconsistencies in the witnesses’ testimony.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Perkins, 11-162 (La.App. 5 Cir. 12/28/11), 83 So.3d 250, 255. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In the present case, defendant was charged with two counts of indecent behavior with juveniles. LSA-R.S. 14:81 provides, in pertinent part, as follows:

A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
In(l) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons.

Thus, to convict a defendant of indecent behavior with a juvenile, the State must prove that (1) there was an age difference of greater than two years between the defendant and the victim, who was not yet seventeen; (2) the defendant committed a lewd or lascivious act upon the person or in the presence of a child; and (3) the defendant intended to arouse or gratify either his own or the victim’s sexual desires. State v. Anderson, 09-934 (La.App. 5 Cir. 3/23/10), 38 So.3d 953, 957-958, writ denied, 2010-0908 (La.11/12/10), 49 So.3d 887.

For purposes of LSA-R.S. 14:81, a lewd and lascivious act is “one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner.” State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 291, writ denied, 06-1894 (La.4/20/07), 954 So.2d 154. This encompasses not only the physical touching of the victim in an indecent manner, but also indecent sexual displays in the presence of children under the age of seventeen. State v. Interiano, 03-1760 (La.2/13/04), 868 So.2d 9, 15. In determining whether an act is lewd or lascivious, one must consider the time, the place, and all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Lande, 934 So.2d at 291.

Indecent behavior with a juvenile is a specific intent crime for which the State must prove the offender’s intent to arouse or gratify his sexual desires by his actions involving a child. Specific intent to commit indecent behavior with juveniles need not be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Borden, 07-396 (La. App. 5 Cir. 5/27/08), 986 So.2d 158, 166, writ denied, 08-1528 (La.3/4/09), 3 So.3d 470.

| ]0In the present case, the evidence presented at trial established that on August 25, 2011, 26-year-old defendant brought 13-year-old N.D. and 14-year-old S.K.(1) to his apartment in Westwego. Upon arriving at his apartment, the three watched television, and at some point, the three were lying on the bed together. While on the bed, defendant inserted or attempted to insert his fingers just inside the waistband of N.D.’s shorts near her lower back three times. Also, during the course of the evening, as they were lying on the bed, defendant started to rub the skin of S.K.(l)’s chest. Defendant eventually brought the girls home, and at some point during the ride, defendant rubbed S.K.(l)’s vagina on top of her clothes. Defendant’s activities of lying on the bed with two juveniles half his age, his repeated touching of N.D., and his touching of S.K.(l)’s chest and vagina, indicate that his actions were not accidental, but rather were lewd and lascivious acts performed with the specific intent to arouse or gratify his sexual desires. Accordingly, we find that the State proved the elements of the offense as to both juveniles beyond a reasonable doubt.

In his appellate brief, defendant argues that various inconsistencies in the testimony of the State’s witnesses rendered the evidence insufficient to support his convictions. A review of the trial record confirms that there were indeed inconsistencies; however, they predominantly concerned the chronology of events. The core details of the sexual contact, on the other hand, remained consistent throughout the victims’ interviews and trial testimony.

The credibility of witnesses presenting conflicting testimony of factual matters is within the sound discretion of the trier of fact. The trier of fact shall evaluate the witnesses’ credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Jones, 985 So.2d at 240. The victim’s testimony alone can be sufficient to ^establish the elements of a sexual offense, even when the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. State v. Anderson, 38 So.3d at 959.

In the instant case, the jury was presented with all of the evidence and, by its verdict, evidently gave credence to the victims’ version of events and rejected defendant’s claim that he did not bring the girls to his apartment that evening or touch them. It is not the function of the appellate court to re-evaluate the credibility of witnesses or reweigh the evidence. State v. Cajfrey, 08-717 (LaApp. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. Accordingly, viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the State proved, beyond a reasonable doubt, that defendant was guilty of two counts of indecent behavior with a juvenile.

DENIAL OF MOTION TO CONTINUE TRIAL

On appeal, defendant also' argues that the trial court erred in denying his motion to continue the trial after the State informed the defense on the first day of trial of its intention to introduce defendant’s statement from a previous sex offense conviction.

On January 26, 2012, the State informed the defense that it would file a motion pursuant to LSA-C.E. art. 412.2 for the purpose of introducing evidence of other crimes. On March 1, 2012, the State filed its motion, in which it noticed its intent to introduce evidence of defendant’s prior guilty plea to misdemeanor carnal knowledge of a juvenile. On March 22, 2012, the trial court conducted a hearing on the State’s motion and ruled that it would determine the admissibility of the prior offense at the time the State sought to introduce it.

112Thereafter, on September 25, 2012, the first day of trial, the State provided the defense with a copy of a motion to suppress statement that had been filed in the matter of defendant’s prior guilty plea relative to a statement given by defendant in the matter. The statement had been deemed to have been “constitutionally obtained.” The State informed the defense and the court of its intention to introduce the tape recording and transcript of that prior statement.

Defense counsel then moved for a continuance asserting that he was prejudiced by the State’s late disclosure of its intent to use defendant’s prior statement and was effectively prevented from mounting a defense. After hearing the arguments of counsel, the trial court denied the motion for continuance. Defendant now seeks review of this ruling.

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor. LSA-C.Cr.P. art. 712.

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor. LSA-C.Cr.P. art. 712. The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. In addition, the denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. State v. Shannon, 10-580 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 715, writ denied, 11-0559 (La.9/30/11), 71 So.3d 283.

Further, the denial of a motion for continuance on grounds of counsel’s lack of preparedness does not warrant reversal unless counsel demonstrates specific prejudice resulting from the denial. This specific prejudice requirement has been disregarded by the Louisiana Supreme Court in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. State v. Victor, 11-Í5 (La.App. 5 Cir. 11/15/11), 82 So.3d 301, 307-308.

| ^Criminal discovery rules are intended to eliminate unwarranted prejudice which arises from surprise testimony and evidence in order to permit the defense to respond to the State’s case and allow the defense to properly assess the strength of the State’s case. A conviction is only reversible when the defendant is prejudiced as a result of the discovery violation. State v. McGinnis, 04-1286 (La. App. 5 Cir. 10/6/05), 917 So.2d 471, 484-485, writ denied,, 05-2469 (La.4/28/06), 927 So.2d 283.

In this case, we find no abuse of discretion in the district court’s denial of defendant’s motion to continue trial. Defense counsel first learned of the State’s intention to introduce other crimes evidence on January 26, 2012-nine months before trial. Then, on March 1, 2012, nearly seven months before trial, defense counsel learned the specific prior conviction sought to be introduced. On March 22, 2012, the court conducted a hearing on the State’s motion and ruled that it would determine the admissibility of the prior offense at the time the State sought to introduce it.

Thus, although defense counsel did not learn until the first day of trial that the State planned to introduce defendant’s statement from his prior conviction, counsel knew long before trial of the State’s intent to introduce evidence of defendant’s conviction. In fact, defense counsel admitted, when he was arguing the continuance, that he received notice prior to trial that the State was going to put on evidence of defendant’s prior conviction as evidence of lustful disposition, and in fact, there was a hearing on the issue. Given that defense counsel had knowledge of the State’s intent to use the prior offense to which defendant admitted his guilt since January of 2012, his ability to prepare a defense was in no way hampered. Moreover, we note that the trial judge, in denying the continuance, stated that defense counsel would have an opportunity to work with his client and 114the statement prior to the presentation of the evidence. Other than the bare assertion of an inability to mount a defense, defendant has failed to demonstrate how he was specifically prejudiced by the statement’s introduction or by the trial court’s denial of his motion to continue.

Accordingly, given these circumstances, we find no abuse of discretion in the trial court’s denial of defendant’s motion for continuance.

DENIAL OF MOTION FOR MISTRIAL

In another assigned error, defendant argues that the trial court erred in denying his motion for a mistrial when the prosecutor commented upon inadmissible other crimes evidence. Defendant contends he was unfairly prejudiced by the prosecutor’s questioning him about whether or not the police had been called in reference to a previous argument he had with B.A.

During the State’s cross-examination of defendant regarding his relationship with B.A., the following exchange took place:

[STATE]: All right. So you in June, y’all got into a big argument about money?
[DEFENDANT]: Yes.
[STATE]: How big?
[DEFENDANT]: We broke up.
[STATE]: Okay. A bunch of shouting?
[DEFENDANT]: It wasn’t — it was just — you know, it was like a argument.
[STATE]: All right. And when did she call the cops on you in June?
[DEFENDANT]: What you talking about? She never called no cops on me in June.
[STATE]: But y’all had a fight over money.
[DEFENDANT]: All right. That was a argument.
h.JSTATE]: Okay. Y’all argued over money, right?
[DEFENDANT]: Yeah. We didn’t — I did not fight her.
[STATE]: So she called the cops on you to report you?
[DEFENDANT]: No. What is you talking about?

At this point, the defense moved for a mistrial. The following occurred during the subsequent bench conference:

[DEFENSE]: He’s — I mean do you have evidence that he- — she called the cops on him?
[STATE]: She didn’t.
[THE COURT]: She didn’t.
[DEFENSE]: Well, that’s the point. He’s—
[THE COURT]: You didn’t understand that?
[DEFENSE]: No, I understand — now I understand, but he’s inferring to the jury’s mind that there’s some sort of police thing—
[THE COURT]: No, I don’t think so.
[DEFENSE]: — that’s going on.
[THE COURT]: I think the jury understands.
⅜ sK *
[DEFENSE]: Well, maybe so but he can’t say things like that that aren’t true. He’s putting it in their minds that there was some sort of police conduct or a physical fight, and the police were called. I object and I ask for a mistrial. He can’t — he can’t do that.
[THE COURT]: Your motion’s denied.

The State then resumed questioning as follows:

[STATE]: In June [B.A.] never called the cops, right?
[DEFENDANT]: No.

| ^Defendant now argues that the trial court erred in denying his motion for mistrial. Specifically, defendant contends that the State’s questioning regarding whether or not the police had been called in reference to a previous argument he had with B.A. constituted inadmissible other crimes evidence which was unfairly prejudicial.

Except under certain statutory or jurisprudential exceptions, evidence of other crimes or bad acts committed by the defendant is inadmissible at trial. LSA-C.E. art. 404(B)(1). State v. Walker, 03-1072 (La.App. 5 Cir. 12/30/03), 865 So.2d 172, 174. LSA-C.Cr.P. art. 770(2) provides that a mistrial shall be granted, upon motion of the defendant, when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. State v. Ven-tris, 10-889 (LaApp. 5 Cir. 11/15/11), 79 So.3d 1108,1122.

As a general rule, LSA-C.Cr.P. art. 770 does not apply to testimony by a state witness, since a witness is not considered a “court official.” However, an impermissible reference to another crime deliberately elicited of a witness by the prosecutor is imputable to the State and triggers the rule mandating a mistrial. State v. Amaud, 12-899 (LaApp. 5 Cir. 5/16/13), 113 So.3d 1218, 1223. In State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, 906, cert, denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999), the Louisiana Supreme Court stated that the “comment must not ‘arguably’ point to a prior crime; to trigger mandatory mistrial pursuant to Article 770(2), the remark must ‘unmistakably’ point to evidence of another crime,” and “the imputation must ‘unambiguously’ point to defendant.”

| l7In the instant case, we find that a mandatory mistrial was not warranted pursuant to the provisions of LSA-C.Cr.P. art. 770. Defendant was a witness and not a court official within the meaning of Article 770. Further, the remark at issue does not “unmistakably” point to evidence of another crime, or even allege criminal activity. Moreover, as evidenced by the prosecutor’s subsequent questions, he intended to show that the police had not been called with regard to their argument in June. Given these circumstances, we find that a mandatory mistrial was not warranted under the provisions of LSA-C.Cr.P. art. 770.

Rather, the prosecutor’s questions fall under the discretionary mistrial provisions of LSA-C.Cr.P. art. 771. That article provides as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:

(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and is warranted only when trial error results in substantial prejudice to defendant that deprives him of a reasonable expectation of a fair trial. Whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed absent an abuse of discretion. State v. Chairs, 12-363 (La.App. 5 Cir. 12/27/12), 106 So.3d 1232, 1244, writ denied, 13-0306 (La.6/21/13), 118 So.3d 413.

11sIn the instant case, it is noted that defense counsel did not request an admonition under LSA-C.Cr.P. art. 771. Further, defendant has failed to show that he was substantially prejudiced by the questioning regarding whether police had been called out for a previous argument. In fact, through the State’s questioning, it was made clear that the police had not been called out. See State v. Johnson, 11-238 (La.App. 5 Cir. 12/28/11), 83 So.3d 1075, 1080. Accordingly, we find no abuse of discretion in denying defendant’s request for a mistrial.

OTHER CRIMES EVIDENCE

In his final assignment of error, defendant argues that the trial court erred in permitting the State to introduce evidence of his prior misdemeanor guilty plea to carnal knowledge of a juvenile. He contends the prior conviction was more prejudicial than probative because it served no purpose other than to depict defendant as a chronic offender and because the prior offense was not even similar to the instant offense.

In its pre-trial “Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to LSA-C.E. art. 412.2,” the State submitted that the evidence of defendant’s prior guilty plea to carnal knowledge of a juvenile was admissible because the present and prior offenses were committed against victims under the age of 17, indicating defendant’s lustful disposition toward children.

At the hearing on the motion, the trial court ruled that it would determine the admissibility of the prior offense at the time the State sought to introduce it. On September 26, 2012, before presentation of evidence commenced, the trial court ruled that the prior offense was admissible. Subsequently, near the conclusion of trial, defendant admitted during direct examination that he had previously pled guilty to carnal knowledge of a juvenile wherein he was 18 years old when he engaged in sexual intercourse with a 15-year-old female he claimed was his | ^girlfriend. Defendant now contends that the admission of this prior conviction was more prejudicial than probative and further claims that any error in its admission cannot be deemed harmless.

LSA-C.E. art. 412.2 governs the admission of evidence of similar crimes, wrongs, or acts in sex offense cases. It provides, in pertinent part, as follows:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may-be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

LSA-C.E. art. 403 provides that, “[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.”

Accordingly, pursuant to LSA-C.E. art. 412.2, evidence of a prior sexual offense is admissible if relevant and if the probative value of the evidence outweighs its prejudicial effect. Rulings on the admissibility of evidence will not be disturbed absent an abuse of discretion. State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, 218.

In State v. Williams, 11-876 (La.App. 5 Cir. 3/27/12), 91 So.3d 437, 441, unit denied, 12-1013 (La.9/21/12), 98 So.3d 334, the defendant was charged with molestation of a 9-year-old girl and this Court found his prior conviction of carnal knowledge of a 13-year-old girl was highly relevant, and thus admissible, to show his lustful disposition toward young girls. Additionally, this Court noted that although the charged offense involved touching and the prior conviction involved intercourse, there is no requirement that the prior act be identical in nature to the 1 ^charged offense. In finding the prior offense “not so prejudicial so as to warrant its exclusion under LSA-C.E. art. 403,” this Court reasoned:

There was no indication that the other crimes evidence confused or misled the jury. The evidence was presented in an orderly manner, and the trial judge gave a limiting instruction regarding the prior conviction when the State presented the certified copy of defendant’s prior conviction and prior to jury deliberations. The trial court also clearly instructed the jurors that they were not to find guilt in this case based on the other sexual offense.

State v. Williams, 91 So.3d at 442

In this case, we find that the trial court did not err in ruling the prior conviction admissible. Defendant was charged with indecent behavior with two juvenile girls, ages 13 and 14, and the evidence of the prior act with a 15-year-old girl was relevant to show defendant’s lustful disposition toward teenage girls. Additionally, although the present offenses involved only touching, and the previous offense involved intercourse, there is no requirement that the prior offense be identical in nature to the charged offense. State v. Williams, 91 So.3d at 441. Rather, defendant’s engaging in sexual behavior with girls around the same age indicates his lustful disposition toward young teenage girls.

We also find, as did the trial court, that the evidence of the prior offense is more probative than prejudicial. There was no indication that the other crimes evidence misled or confused the jury. The evidence was presented in an orderly manner with the evidence of defendant’s prior offense being presented at the conclusion of trial. In addition, the trial court gave the jury a limiting instruction, advising them as follows:

Evidence that the defendant was involved in the commission of an offense other than the offenses for which he is on trial is to be considered only for a limited purpose. Such evidence may be considered for its bearing on any matter to which it is relevant. Remember the accused is on trial only for the offenses charged. You may not find him guilty of these offenses merely because he may have committed another offense.

|21Based on the foregoing, the evidence of the prior conviction was clearly relevant to show defendant’s lustful disposition, and further, the probative value of the other sexual offense evidence outweighed the danger of unfair prejudice to defendant. Accordingly, we find that the trial court did not abuse its discretion in admitting the evidence of defendant’s prior conviction of carnal knowledge of a juvenile.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that defendant’s sentences are illegal and must be vacated. The trial court sentenced defendant, on each count, to seven years at hard labor, and suspended all but two years on each count. The trial court did not place defendant on probation. Although a trial court is permitted to suspend the imposition of a sentence under LSA-C.Cr.P. art. 893, it must place the defendant on probation when it does so. State v. Ramirez, 96-302 (La.App. 3 Cir. 11/6/96), 684 So.2d 52, 54.

Since the trial court suspended portions of each of defendant’s sentences, but did not place defendant on probation, we find that defendant’s sentences are illegal. Accordingly, we vacate defendant’s sentences and remand the matter for resentencing in accordance with LSA-C.Cr.P. art. 893.

We further note, as part of this error patent review, that the trial court failed to advise defendant of the prescriptive period for post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. On remand for resentencing, we instruct the trial court to advise defendant of the prescriptive period under this article.

| ¡^Accordingly, for the reasons set forth herein, we affirm defendant’s convictions, vacate his sentences, and remand the matter to the trial court for resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED; MATTER REMANDED FOR RESENTENCING

      . To observe the principle of protecting minor victims and victims of sexual offenses set forth in LSA-R.S. 46:1844(W)(3), the victim and any witness whose name can lead to the victim’s identity, i.e., parent, sibling, or relative with the same last name as the victim, will be identified by initials only. To differentiate between S.K. and her daughter, who share the same initials, the child will be designated by ''S.K.(l),” the mother by ''S.K.”

      .S.K. is B.A.'s niece, and S.K.(l) is B.A.'s great niece. Further, defendant was B.A.’s boyfriend.

      . In the video recording of N.D.'s CAC interview, as N.D. explained how defendant dug in her shorts, she demonstrated what defendant did, inserting her fingers just inside the waistband of her shorts near her lower back.

      . It is noted that S.K.(1) had previously made allegations against another man, T.R., an ex-boyfriend of B.A. and the father of B.A.’s son. However, the police were not called because S.K.(1) admitted that the allegations were not true. It is further noted that both S.K. and S.K.(1) asked the prosecutor to drop the charges against defendant in this case.

      . In the CAC interview, S.K.(1) gestured to her vaginal area when speaking of her "private part.”


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Donald JONES.
    Nos. 12-KA-640, 12-KA-641.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Jody Fortunato, Assistant District Attorneys, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

| gDefendant, Donald Jones, seeks a Crosby appeal of his convictions for misdemeanor resisting arrest and felony possession of marijuana, second offense, violations of La. R.S. 14:108 and La. R.S. 40:966, respectively. Defendant argues the trial court erred in failing to grant his motion to suppress. For the following reasons, we find defendant’s assignment of error to be without merit and affirm his convictions. Due to two errors patent however, we remand this matter to the trial court.

PROCEDURAL HISTORY

On January 11, 2012, the Jefferson Parish District Attorney filed a bill of information in case number 12-109, charging defendant with possession of marijuana in violation of La. R.S. 40:966(0 (count one) and with resisting an officer in violation of La. R.S. 14:108. The Jefferson Parish District Attorney filed ^another bill of information on January 26, 2012, in case number 12-422, charging defendant with possession of marijuana, second offense, in violation of La. R.S. 40:966(C). Defendant was arraigned on January 31, 2012, and pled not guilty to possession of marijuana and resisting an officer in case number 12-109. Defendant was arraigned on March 1, 2012 in case number 12-422 and pled not guilty to the second offense possession of marijuana charge. Also on March 1, 2012, the state dismissed count one of the bill of information filed in case number 12-109.

On February 17, 2012, defendant filed, inter alia, a motion to suppress the evidence against him. On March 8, 2012, and March 13, 2012, the trial court held a hearing on defendant’s motion to suppress. At the conclusion of this hearing, the trial court denied defendant’s motion and defendant objected.

Defendant thereafter withdrew his former not guilty pleas and, under State v. Crosby, 338 So.2d 584 (La.1976), pled guilty as charged to resisting an officer in case number 12-109 and possession of marijuana, second offense, in case number 12-422. The transcript reveals that defendant reserved the right to challenge the denial of his motion to suppress. The trial court sentenced defendant to six months in Parish Prison for resisting an officer and to five years imprisonment with the Department of Corrections for possession of marijuana, second offense.

The state then filed a multiple offender bill as to the marijuana possession charge to which defendant had already pled guilty. Defendant waived his rights with regard to this multiple offender bill and pled guilty to it. The trial court subsequently vacated defendant’s original sentence on the possession charge and resen-tenced him to six years imprisonment with the Department of Corrections. This enhanced sentence was imposed without benefit of probation or suspension of sentence, and was ordered to run concurrently with the sentence imposed in case number 12-109 for resisting arrest. The trial court reaffirmed that the plea was|4taken pursuant to Crosby, and then granted defense counsel’s oral motion to appeal.

On March 14, 2012, defense counsel filed a written motion for appeal in case numbers 12-109 and 12-422, which the trial court granted on March 20, 2012. Thereafter, defendant filed a motion to consolidate appeals with this Court. He explained that the two appellate numbers referred to two separate trial court case numbers that were charged under separate bills of information, but arose out of the same set of facts and were consolidated for purposes of the suppression hearing. He added that the matters were resolved by a Crosby plea, reserving his right to appeal the denial of the motion to suppress. Defendant asked that this Court consolidate the matters for appeal in the interest of judicial economy. On September 11, 2012, this Court ordered that the matters in 12-KA-640 and 12-KA-641 be consolidated.

JURISDICTIONAL NOTE

This Court’s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164, p. 1 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287 (citing La. Const, of 1974, art. 5 § 10; La.C.Cr.P. art. 912.1). Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, 00-164 at 1-2, 762 So.2d at 1287 (citing La. Const, of 1974, art. 1 § 17; La.C.Cr.P. art. 779; State v. Robinson, 94-864, pp. 2-3 (La. App. 5 Cir. 3/15/95), 653 So.2d 669, 670).

In the present case, defendant was charged with and pled guilty to resisting an officer in violation of La. R.S. 14:108 in district court case number 12-109 (appeal number 12-KA-640). He was also charged with possession of marijuana in [ ¿violation of La. R.S. 40:966(C) in the same bill of information. However, the possession of marijuana charge was later dismissed. A bill of information was later filed in district court case number 12-422 (appeal number 12-KA-641), charging defendant with second offense possession of marijuana, a felony. La. R.S. 14:108(0 sets forth the penalty for resisting an officer: “Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.” A violation of La. R.S. 14:108 is a misdemeanor. See State in Interest of S.L., 11-883, p. 2 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2. On this basis, we find that this misdemeanor was not triable by a jury. Accordingly, the proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La.C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750, p. 3 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La.10/24/08), 992 So.2d 1033.

The long standing policy of this Court is to avoid converting matters that are improperly filed as appeals to writ applications. However, this Court will make an exception if the interest of justice would be better served by converting the filing to a writ application. Trepagnier, 07-749 c/w 07-750 at 3-4, 982 So.2d at 188.

In Trepagnier, the defendant was charged with a felony in one bill of information and with three misdemeanors in a separate bill of information. The defendant waived his right to a jury trial on the felony charge and all charges were | ñtried by the judge. The defendant was found guilty as charged on all counts. The defendant filed a motion for appeal and designation of record in both the felony and misdemeanor cases. On defense counsel’s motion, this Court consolidated the cases on appeal. In its opinion, this Court noted the jurisdictional issue regarding the appeal of the defendant’s misdemeanor convictions. It acknowledged that the proper procedure for seeking review of a misdemeanor conviction is an application for writ of review, however, this Court found that the facts of the misdemeanor and felony convictions were intertwined to the point that the interest of justice would be better served by considering the matters together. Accordingly, this Court converted the defendant’s appeal of his misdemeanor convictions to a writ application.

In State v. Christophe, 12-82 (La.App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied, 12-2432 (La.4/19/13), 111 So.3d 1029, the defendant was charged by bill of information with two felony counts of first degree vehicle negligent injuring. In a separate bill of information, the defendant was also charged with one misdemeanor count of vehicular negligent injuring, arising out of the same incident. The defendant appealed all three convictions. On appeal, this Court acknowledged that the proper procedural vehicle for a defendant to seek review of a misdemeanor conviction was by application for a writ of review. However, this Court noted that it had previously granted the defendant’s Motion to Consolidate the felony and misdemeanor appeals. Thus, the defendant asserted that because all charges arose out of one incident, judicial economy warranted this Court viewing the appeal on the misdemeanor as the equivalent of a writ application. Considering this Court’s grant of the defendant’s motion to consolidate, this Court decided both the defendant’s felony and misdemeanor convictions would be addressed simultaneously in the appeal.

|7In this case, on the trial court level, the misdemeanor case was grouped together with the felony case for purposes of the motion to suppress hearing. Additionally, defendant’s guilty pleas and his sentencing in both matters occurred simultaneously. The misdemeanor and felony convictions appear intertwined to the point that the interest of justice is better served by considering the matters together. Accordingly, since this Court will already be reviewing the same suppression issue in defendant’s felony appeal, judicial economy dictates considering these matters together. Moreover, on September 11, 2012, this Court ordered that the matters in 12-KA-640 and 12-KA-641 be consolidated for review in one appeal.

Accordingly, considering this Court’s grant of defendant’s motion to consolidate, and the intertwined nature of the facts from which these convictions arise, we address both defendant’s felony and misdemeanor convictions simultaneously in this appeal.

FACTS

Because this case is before us on guilty pleas, the facts were gleaned from the bill of information, arrest reports, and the transcript of the hearing on the motion to suppress.

At this hearing on defendant’s motion to suppress, Deputy Paul Dupuis testified that on December 17, 2011, headquarters dispatched him to the 1400 block of South Wilson Street in reference to possible drug activity or drug sales. The dispatch call described a tip regarding a black male with a hooded sweatshirt, outside of an orange and white house. Deputy Dupuis, who was familiar with the area from working in it for the previous three years, testified:

| J’ve been to the house several times on other drug arrests and other activities, so I was very familiar with right where to go. As I came into the area, I came down the street. I saw two black males in front of the house, one of them very large in size, probably upwards of 400 pounds. The second one would be Mr. Jones, [defendant,] standing in the driveway.

Deputy Dupuis then got out of his vehicle and asked the men to identify themselves. One of the men “complied” with Deputy Dupuis and stopped. The other man, defendant, however did not respond to Deputy Dupuis and began backing up towards the side alley of the house. Deputy Dupuis followed defendant to the area behind the house. Deputy Dupuis testified:

As I kept giving him verbal commands to identify himself, he briskly started walking to the rear of the house, he was standing there and would not remove his hand from his jacket, cause I asked him several times, I gave verbal commands very loudly, remove your hands from your jacket, and he fled on foot. He fled up the side of the house across two empty lots, through another backyard, where I have close pursuit, never lost sight of him. He went over a three foot chain link fence, and as he was — he actually made a complete circle. As he was coming up the side of 1346 South Wilson, he threw down a clear bag of green leafy vegetable matter which I picked up while in pursuit.... [A]s he entered South Wilson, [Officer Brinser] was out there waiting for him. Where [Officer Brinser and I] handcuffed him, we read him his rights.

Officer Emily Brinser testified that she came to the 1400 block of South Wilson in response to radio dispatch calls in reference to a “black male standing in front of an orange and white house selling drugs.” Officer Brinser was familiar with the area and familiar with the orange and white house, stating that it was known as a “drug activity house.” When Officer Brin-ser arrived at South Wilson street, she saw a “few black males ... standing outside of the orange and white house.” One of these men matched the description of her dispatch call, “wearing a black hooded sweatshirt and dark colored jeans.” Deputy Dupuis was already at the scene when Officer Brinser arrived, and Deputy Du-puis’ chase of defendant started soon thereafter. Although Officer Brinser was not part of the chase, she |flsaw defendant running from the back of the house with Deputy Dupuis chasing him. She was at the end of the residence’s driveway with her taser drawn when she encountered defendant. She ordered defendant to the ground and he complied. Officer Brinser testified that she and Deputy Dupuis handcuffed defendant and that Deputy Du-puis read defendant his Miranda rights.

Deputy John Louis Walsdorf and Deputy Nunamaker came to the scene in response to a request for assistance with a subject running. By the time they arrived however, defendant was already in custody. Deputies Walsdorf, Nunamaker, and Dupuis walked the area and the entire length of the chase “looking for anything that could have been thrown throughout the path where” Deputy Dupuis followed defendant. They didn’t find anything. They then transported defendant to the Jefferson Parish Correctional Center.

Later at the police station, Kimberly Stierwald, a JPSO crime scene technician, tested the vegetable matter Deputy Du-puis had picked up during his chase of defendant. Ms. Stierwald’s test indicated that the substance was marijuana weighing 7.6 grams.

DISCUSSION

This matter is before this Court as an appeal pursuant to Crosby, supra. Defendant argues the trial court erred in denying his motion to suppress, arguing that because Deputy Dupuis did not have reasonable suspicion to stop him, the subsequently found marijuana should be suppressed. For the following reasons, we find that while this matter is properly before us on appeal pursuant to Crosby, supra, defendant’s assignment of error lacks merit.

Crosby Pleas

In the instant case, defendant entered a guilty plea pursuant to State v.Crosby, 338 So.2d 584 (La.1976). He now seeks appellate review of the trial |incourt’s denial his motion to suppress evidence. Ordinarily, when a defendant enters a guilty plea, he waives all pre-plea nonjurisdictional defects. State v. Torres, 281 So.2d 451 (La.1973). However, in State v. Crosby, supra, the Louisiana Supreme Court determined that the Louisiana courts of appeal may review assignments of error specifically reserved at the time a guilty plea is made and “where the trial court accepted the guilty plea so conditioned.” Id. at 588. The Crosby court only extended this ruling to those “assignments of error specifically reserved at the time of the plea of guilty.” Id.

Here, the trial court specifically stated that it was accepting defendant’s guilty pleas pursuant to Crosby, supra, and informed defendant that he could seek review of the trial court’s denial of his motion to suppress. On this record, we conclude that defendant presented a detailed specification of which adverse rulings he sought to preserve on appeal and his assignment regarding the trial court’s failure to grant his motion to suppress is properly before this Court.

Assignment of Error

As to the merits of defendant’s argument, that the trial court erred in denying his motion to suppress, we recognize the well established law in this field.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. War-rantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 09-508, pp. 4-5 (LaApp. 5 Cir. 12/29/09), 30 So.3d 897, 901. The 11T exclusionary rule bars, as illegal fruit, physical and verbal evidence obtained either during or as a direct result of an unlawful invasion. The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of illegality, or “fruit of the poisonous tree.” State v. Nicholas, 06-903, p. 6 (LaApp. 5 Cir. 4/24/07), 958 So.2d 682, 686-87 (quotation omitted).

The state bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Honeycutt, 08-126, p. 6 (LaApp. 5 Cir. 5/27/08), 987 So.2d 250, 253. The trial judge’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. Id. at 6, 987 So.2d at 253-54.

There are three recognized tiers of interaction between police and citizens under the Fourth Amendment: (1) mere communication between officers and citizens where there is no coercion or detention, with such communication not implicating the Fourth Amendment; (2) the investigatory stop where the police may briefly seize a person if the officer has reasonable suspicion, supported by specific and articulable facts, that the person is, or is about to be, engaged in criminal conduct or is wanted for past criminal acts; and, (3) a custodial arrest where the police must have probable cause to believe that the person has committed a crime. State v. Kang, 01-1262, p. 3 (LaApp. 5 Cir. 2/23/04), 866 So.2d 408, 412, writ denied, 04-0944 (La.11/24/04), 888 So.2d 226.

Reasonable suspicion is not required every time an officer approaches a citizen in a public place. Police officers possess the same right as any citizen to approach an individual and ask a few questions. State v. Jackson, 00-3083, p. 3 (La.3/15/02), 824 So.2d 1124, 1126 (per cu-riam), citing Florida v. Bostick, 501 liy.U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A police officer’s action of merely approaching an individual does not implicate the protections of the Fourth Amendment. State v. Jackson, swpra at 3, 824 So.2d at 1126.

However, law enforcement officers must have a reasonable suspicion of criminal activity in order to stop and interrogate an individual. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bel-ton, 441 So.2d 1195, 1198 (La.1983), cert, denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). In order to conduct such an investigatory stop, the police officer must have reasonable suspicion that the person is committing, has committed, or is about to commit an offense. Reasonable suspicion is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Honeycutt, supra at 7, 987 So.2d at 254.

The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Sam, 08-220, p. 5 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769, writ denied, 08-1984 (La.5/15/09), 8 So.3d 577. In determining whether an officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. A reviewing court must take into account the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes are | 13factors that may support reasonable suspicion for an investigatory stop. Sam, 08-220 at 5-6, 988 So.2d at 769-70. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. State v. Loeb, 09-341, p. 7 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 922, writ denied, 10-0681 (La.10/15/10), 45 So.3d 1110.

When evaluating the totality of the circumstances, a defendant’s evasive conduct in response to police presence is a factor that is accorded significant weight. State v. Enclade, 03-353, p. 6 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 13. The Louisiana Supreme Court has recognized that it has expressly held or at least implied that the defendant’s flight from police officers is the most important factor in the totality of the circumstances analysis. State v. Morgan, 09-2352, p. 8 (La.3/15/11), 59 So.3d 403, 408. An individual’s mere presence in a high-crime area, standing alone, is insufficient to justify an investigatoiy stop; however, his presence in a high-crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of the officers, gives rise to reasonable suspicion for an investigatory stop. Loeb, 09-341 at 7, 34 So.3d at 922. “Given the highly suspicious nature of flight from a police officer, the amount of additional information required in order to provide officers a reasonable suspicion that an individual is engaged in criminal behavior is greatly lessened.” Morgan, 09-2352 at 9, 59 So.3d at 409 (quotation omitted).

For purposes of the Fourth Amendment, a person is “seized” when that person submits to the police show of authority or is physically contacted by the police. California v. Hodan D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); State v. Sylvester, 01-607, p. 3 (La.9/20/02), 826 So.2d 1106, 1108. Under the Louisiana Constitution, a person is also “seized” when an actual stop is imminent. An actual stop is imminent “when the police come upon an individual with such force, that regardless of the individual’s attempts to flee or elude the 114encounter, an actual stop of the individual is virtually certain [to occur].” State v. Sylvester, supra (quoting State v. Tucker, 626 So.2d 707, 712 (La.1993)). Factors to consider in determining whether an actual stop is imminent are the proximity of the police in relation to the defendant at the outset of the encounter, whether the individual has been surrounded by the police, whether the police approached the individual with their weapons drawn, whether the police and/or the individual are on foot or in motorized vehicles during the encounter, the location and characteristics of the area where the encounter takes place and the number of police officers involved in the encounter. State v. Stanfield, 05-839, p. 7 (La.App. 5 Cir. 3/14/06), 925 So.2d 710, 716.

Here, defendant argues that the “dispatch” did not provide the officer with reasonable suspicion. He explains that he was observed standing on private property and when the officer approached him he chose to walk further onto his private property and was pursued. Defendant contends that the pursuit made it clear that he was not free to leave. Defendant explains that his decision to take flight and then abandon contraband was clearly in response to the illegal police provocation of demanding that he identify himself and the pursuit for failing to promptly comply with the officer’s demands.

The state responds that the trial court did not abuse its discretion in denying defendant’s motion to suppress the evidence. The state contends that defendant fled and abandoned contraband at a point where Deputy Dupuis had not made physical contact with defendant and where no actual or imminent stop had occurred. As such, the state concludes that the abandoned evidence was lawfully obtained.

Here, we find that when Deputy Dupuis exited his vehicle and asked defendant for his name, Deputy Dupuis had not “stopped” defendant such that | ^defendant’s Fourth Amendment rights were implicated. See State v. Sylvester, 01-607 (La.9/20/02), 826 So.2d 1106 (finding that no protected stop occurred where officers were on patrol in response to various citizen complaints of drug activity in a specific area and approached two men they saw inside a parked vehicle), State v. Thomas, 98-1024 (La.App. 5 Cir. 3/10/99), 734 So.2d 39 (finding that officers did not impermissibly stop the defendant when they recognized the defendant as a person who had been frequently interviewed and arrested, drove up to the sidewalk, exited their vehicle, approached and questioned the defendant). However, we also find that, after defendant had fled, Deputy Du-puis did stop and arrest defendant.

Both the United States and the Louisiana Supreme Courts have addressed the question of whether an officer had reasonable suspicion to stop an individual in circumstances similar to this matter.

In Illinois v. Wardlow, 528 U.S. 119,120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that an individual’s unprovoked flight through a high-crime area in response to the approach of the police provides reasonable suspicion to justify an investigatory stop. The Supreme Court stated, “[h]eadlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”

In State v. Lewis, 00-3136, p. 4 (La.4/26/02), 815 So.2d 818, 821 (per cu-riam), cert, denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002), the Louisiana Supreme Court determined that with or without reasonable suspicion, the officers had a right to approach and ask a few questions. The court found that the request for identification without any greater show of authority did not transform the encounter into a forcible detention and did not “provoke” defendant into flight. The Supreme Court further suggested that even assuming the foot 11Bchase initiated by the officer when the defendant turned and ran signaled that an “imminent actual stop” was about to occur, the totality of the circumstances known to the officer at the time, including the complaints of drug activity, the “hot spot” nature of the area, the defendant’s nervousness, and most important, his unprovoked headlong flight from the officer, gave rise to reasonable suspicion for an investigatory detention. See also State v. Loeb, supra; State v. Morgan, supra.

Applying this jurisprudence, we find that Deputy Dupuis had sufficient reasonable suspicion to stop defendant. Deputy Dupuis arrived at the scene after responding to a dispatch call regarding alleged drug activity at a house he knew was involved in such activity. Upon responding to the call and arriving at the house, Deputy Dupuis observed defendant standing outside wearing clothing that matched those of the person reported to be involved in the drug activity. Furthermore, when Deputy Dupuis approached defendant and asked for his name, defendant kept his hands in his pockets and began to flee. At this point, Deputy Dupuis had the necessary reasonable suspicion to stop defendant.

Because we find that Deputy Dupuis had the reasonable suspicion necessary to stop defendant when defendant began to flee, we find that defendant’s constitutional rights were not violated when Deputy Du-puis pursued defendant and picked up the marijuana that he threw down. Therefore, we find that the trial court correctly denied defendant’s motion to suppress and defendant’s assignment of error on this appeal lacks merit.

ERRORS PATENT

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (LaApp. 5 Cir.1990). Our review reveals two errors patent requiring correction. |17Both relate to discrepancies between the transcript and the commitment in case number 12-KA-641, district court case number 12-109.

First, the transcript reflects that defendant pled guilty pursuant to Crosby. However, the commitment reflects that defendant pled under “Alford vs North Carolina.” Second, that transcript also reflects that the enhanced sentence was ordered to run concurrently with the sentence imposed in district court case number 12-109. However, the commitment in this case does not reflect the same.

Generally, if a discrepancy exists between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983).

Accordingly, we remand this case to the trial court and order it to amend the commitment to conform to the transcript. See State v. Francois, 04-1147, p. 6 (LaApp. 5 Cir. 3/29/05), 900 So.2d 1005, 1010; State ex reí. S.J., 10-990 (LaApp. 5 Cir. 5/24/11), 66 So.3d 1142, 1147. After making these change entries in the commitment, the trial court is also ordered to direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which defendant has been sentenced and to the Department of Correction’s Legal Department. See La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06),' 937 So.2d 846 (per curiam).

CONCLUSION

For the foregoing reasons, we find defendant’s assignment of error to be without merit and therefore affirm his conviction. Due to two errors patent however, we remand this matter to the district court and order that it correct defendant’s commitment to conform to the transcript and to transmit that commitment to the officer in charge of the institution to which defendant has been sentenced and to the Department of Correction’s Legal Department.

AFFIRMED, REMANDED

      . La.C.Cr.P. art. 779(A) provides: "A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.”

      . Further, although defendant was also originally charged with another misdemeanor, possession of marijuana, in the same bill of information, a charge that was later dismissed, when the state charges a defendant with two or more misdemeanors in a single bill of information or indictment, La.C.Cr.P. art. 493.1 limits the maximum aggregate penalty that may be imposed for all of the misdemeanors to six months of imprisonment or a fine of one thousand dollars, or both. Chess, 00-164 at 2, 762 So.2d at 1287. As such, when two or more misdemeanors are joined in a single bill of information, the case is not triable by a jury. See Chess, 00-164 at 2, 762 So.2d at 1287-88.

      . Such a "conversion should be the exception, not the rule as it contradicts the authority granted to appellate courts by the supreme law for his state.” State v. Flowers, 11-376, p. 3 (La.App. 5 Cir. 12/13/11), 81 So.3d 910, 910 n. 3.

      . Generally, an error patent review is not conducted on misdemeanor convictions. Nevertheless, this Court has on occasion in the past considered a misdemeanor appeal as an application for supervisory review of the case and has conducted an error patent review. See State v. Carruth, 94-147, 94-148, p. 6 (La.App. 5 Cir. 9/27/94), 643 So.2d 1319, 1322.

      . Compare State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196, 1197 (per cu-riam) ("[ajbsent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas i.e., to preserve review of evidentiary rulings which ‘go to the heart of the prosecution’s case’ that the defendant would otherwise waive by entering an unqualified guilty plea.”).

      . Furthermore, after Deputy Dupuis recovered this marijuana, he had probable cause to arrest defendant for possession of marijuana and resisting arrest.


text:
    STATE of Louisiana in the Interest of J.A.J.
    No. 13-KA-245.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2013.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, Louisiana, for Plaintiff/Appellee.
    Christina N. Lewis, Attorney at Law, Luling, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

1 ¡Juvenile-defendant, J.A.J., appeals his adjudication as a delinquent for resisting an officer in violation of La. R.S. 14:108. We find the state presented sufficient evidence to prove that J.A.J.’s refusal to move on when ordered to do so interfered with the detectives’ and federal agents’ detention and arrests of multiple suspects. However, our review of the record reveals that the trial court failed to conduct a disposition hearing as required by La. Ch.C. art. 892. Accordingly, we affirm JAJ.’s adjudication but vacate his disposition and remand this matter to the trial court for a disposition hearing.

PROCEDURAL HISTORY

On July 19, 2012, the St. Charles Parish District Attorney filed a delinquency petition in the Twenty-Ninth Judicial District Court charging J.A.J. with resisting an officer in violation of La. R.S. 14:108. J.A.J. denied the allegations against him at his appearance to answer on August 10, 2012. The trial |scourt conducted an adjudication hearing on December 7, 2012. On that date, the trial court adjudicated J.A.J. delinquent as charged and entered a judgment of disposition that J.A.J. be sentenced to six months in a juvenile detention facility; however, the trial judge suspended the sentence and placed J.A.J. on active probation for a period of one year with the St. Charles Parish Juvenile Probation Department. This timely appeal follows.

FACTUAL BACKGROUND

On June 18, 2012, Detectives Robert Calbracie and Michael Wright, with the St. Charles Parish Sheriffs Office, assisted Immigration and Customs Enforcement (ICE) agents in an investigation on Bonura Drive in St. Charles Parish. The investigation involved multiple possible illegal immigrants who allegedly returned to the United States after being convicted as felons and previously deported. Detective Wright explained that the detectives and ICE agents chased a number of fleeing suspects on foot; the detectives did not apprehend any of suspects but returned to meet the ICE agents, who captured at least seven or eight individuals. The agents detained the suspects for questioning to confirm their immigration status and made several arrests. Detectives Cal-bracie and Wright assisted the ICE agents by providing security for the scene, which Detective Calbracie described as a relatively large and active investigation.

Detective Calbracie testified that while he assisted the agents in their detention and ongoing arrests of the suspects, he noticed a juvenile with a video camera walk within five to ten feet of the agents and the numerous handcuffed Rsuspects. Detective Calbracie testified that he advised the juvenile that he could record the scene but for his safety, the officers’ safety, and the suspects’ safety, he instructed the juvenile to move “further away.” Although the juvenile walked away, he quickly returned and repositioned himself on the other side of a law enforcement vehicle. Detective Calbracie warned the juvenile not to interfere with their investigation and to “move on.”

Detective Calbracie testified that the juvenile continued to insert himself into the investigation, which he described as “very distracting when you’re trying to watch 15 people and then you got onlookers trying to poke their heads in and keep approaching.” Detective Calbracie explained that from his experience criminals sometimes approach a law enforcement scene to intervene and keep the officers occupied or distracted. Detective Calbracie also testified that he noticed someone, later identified as the juvenile’s mother, “kind of like signaling him to keep coming back.”

Detective Wright testified that he also told the juvenile to step away and warned that if he failed to move on he would be arrested. Detective Wright explained that it is frustrating for a bystander to enter into a detective’s “reactionary gap” — a safe distance in which an officer can observe a threat, decide how to address it, and act upon it. Detective Wright testified that the juvenile closed in on that gap several times, standing within five to six feet of the detectives, and returned multiple times after being warned to move on. Detective Wright further testified that at times he could not see the juvenile as the juvenile | ¡¡circled behind him; he explained that this caused him to divert his attention from the “already convicted dangerous felons” to address the interfering juvenile who continuously distracted the agents and detec-fives from the situation at hand. Detective Calbracie testified that the juvenile refused to comply with the detectives’ warnings to step farther away from the scene and that after at least four warnings, he arrested the juvenile — later identified as J.A.J.

DISCUSSION

In his sole assignment of error, J.A.J. contends that the state presented insufficient evidence against him to support his adjudication for the charged offense of resisting an officer in violation of La. R.S. 14:108.

Standard of Review

In a juvenile delinquency 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. State in Interest of S.L., 11-883 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 830. In determining the sufficiency of the evidence, the reviewing court must determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to convince a rational trier of fact that all of the elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U'.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).'

Though delinquency proceedings may in many ways mirror criminal proceedings, they are nonetheless civil in nature. State in Interest of R.V., 11-138 (La.App. 5 Cir. 12/13/11), 82 So.3d 402, 408 (citing State ex reí. D.R., 10-0405 | r/La.App. 4 Cir. 10/13/10), 50 So.3d 927, 930). Because juvenile proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts. Id. at 408. “This ‘clearly wrong’ or ‘manifestly erroneous’ standard of review is the same as is applied in other civil cases.” Id.

Law and Analysis

The trial court adjudicated J.A.J. a delinquent for resisting an officer in violation of La. R.S. 14:108. La. R.S. 14:108, in pertinent part, provides:

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:

(d) Congregation with others on a public street and refusal to move on when ordered by the officer.

The Louisiana Supreme Court has stated that the refusal to move on when ordered by police is not a crime unless it obstructs police in their official duties in making a lawful arrest, seizure of property, or service of process. State v. Huguet, 369 So.2d 1331, 1333-35 (1979); see also State v. Washington, 98-545 (La.App. 5 Cir. 12/16/98), 725 So.2d 587, 590. In 2006, the legislature amended La. R.S. 14:108 to further prohibit conduct that obstructs or interferes with an officer acting in his official capacity while “detaining” a suspect.

In this appeal, J.A.J. argues that under La. R.S. 14:108 the state must prove that he interfered or obstructed the arresting officer while acting in his official |7capacity and that because Detective Calbracie acted in a backup capacity, he cannot be found delinquent for resisting an officer under La. R.S. 14:108.

However, we find the evidence supports a finding that Detective Calbracie did in fact participate in the detention and questioning of the suspects and thus could be the detaining officer for purposes of La. R.S. 14:108. Further, even if Detective Calbracie had not personally detained or questioned the suspects but had merely acted in a back-up capacity to the federal agents, we find the evidence presented sufficient to support J.A.J.’s adjudication.

The Louisiana Supreme Court has recognized that “[i]n making an arrest, for their own safety and that of their suspect, the police may take reasonable steps to assert complete command of the situation.” City of Lafayette v. Desormeaux, 06-1730 (La.10/16/07), 967 So.2d 477, 481-82. The Court also found that actions distracting officers and interfering with the “overall arrest operation” constitutes a violation of La. R.S. 14:108. Id. at 480-81 (quoting State v. Patterson, 98-2643 (La.App. 4 Cir. 3/29/00), 758 So.2d 955, 961, rev’d on other grounds, 00-1212 (La.3/28/01), 783 So.2d 1243).

Further, in State v. Johnson, 534 So.2d 529 (La.App. 5 Cir.1988), this Court found sufficient evidence of resisting an officer when the defendant refused to move on when instructed by an officer acting in a back-up capacity. In Johnson, a detective and three officers called for back-up assistance to provide crowd control as they prepared to execute a search warrant. One deputy, along with other officers, responded to the scene. As the officers proceeded to execute the search warrant, the defendant began to yell obscenities. The responding deputy asked the defendant several times to step back and to move on; initially, the defendant | scompIied but she subsequently returned. The responding deputy again asked the defendant to step back; the defendant refused and continued to yell obscenities, which ultimately resulted in her arrest.

In Johnson, this Court found that the defendant obstructed the police officers’ execution of the search warrant by her continued attempts to interfere and her refusal to move on when instructed to do so by the responding deputy, who had responded to the scene in a back-up capacity to provide crowd control for the officers executing the search warrant. Id. at 530.

Here, the record reflects that J.A.J. repeatedly interjected himself into a large and active “arrest operation” in which federal agents detained and arrested multiple suspects. Detectives Cal-bracie and Wright testified that J.A.J.’s actions distracted them and compromised the security for the ICE agents’ overall investigation, detention, and arrest of the suspects. The testimony and video evidence presented at the adjudication hearing show that the detectives — while in full uniform with badges displayed prominently around their necks — gave J.A.J. multiple warnings to move on prior to his arrest.

We find that the evidence, viewed in the light most favorable to the prosecution, is sufficient to support the judgment adjudicating J.A.J. a delinquent for resisting an officer in violation of La. R.S. 14:108. This assignment of error is without merit.

ERRORS PATENT REVIEW

This Court has determined that in juvenile cases, La.C.Cr.P. art. 920 mandates an errors patent review. State in Interest of D.S., 11-116 (La.App. 5 Cir. 12/28/11), 83 So.3d 1131,1139.

|9La. Ch.C. art. 892 requires the trial court to conduct a disposition hearing prior to entering a judgment of disposition. The purpose of such a hearing is to hear evidence in order to make a determination of whether the child is in need of treatment or rehabilitation. State in Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39. Absent a waiver by the juvenile, which does not appear in this record, the trial court erred in failing to conduct a hearing prior to entering a judgment of disposition. See State in Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200, 202.

CONCLUSION

Accordingly, we affirm J.A.J.’s adjudication for resisting an officer in violation of La. R.S. 14:108 but vacate his disposition and remand this matter to the trial court for a disposition hearing in accordance with La. Ch.C. arts. 892 and 893.

ADJUDICATION AFFIRMED; DISPOSITION VACATED; REMANDED.

      . At the time of the June 13, 2012 alleged offense, J.A.J. would have been fourteen-years old. Pursuant to the requirements for confidentiality in juvenile proceedings set forth in La. Ch.C. art. 412, the juvenile-defendant herein is referred to by initials only.

      . An adjudication hearing is conducted by the juvenile judge. LA. Ch.C. art. 882. In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883.

      . The Louisiana Children’s Code refers to a judgment of disposition rather than a sentence. La. Ch.C. arts. 678(A) and 684(A).

      . La. Ch.C. art. 892 requires the trial court to conduct a disposition hearing prior to entering a judgment of disposition. The purpose of such a hearing is to hear evidence in order to make a determination of whether the child is in need of treatment or rehabilitation. State in Interest of C.D., 95-160 (La.App. 5 Cir. 6/28/95), 658 So.2d 39.

      . La. Ch.C. art. 301(1) indicates that St. Charles Parish does not have a separate juvenile court created by law. Therefore, pursuant to La. Ch.C. art. 301(2), the Twenty-Ninth Judicial District Court for the Parish of St. Charles has original juvenile jurisdiction for juvenile proceedings within its parish.

      . The record refers to a Detective “Right” and “Wright.” Throughout this opinion, we will refer to the detective as Detective Wright.

      . Detective Calbracie testified that he worked in his capacity as a detective and a law enforcement agent for the St. Charles Parish Sheriff’s Office on June 13, 2012, and that providing security when necessary to ensure the safety of an investigation and other officers was in his job description. He further testified that he had the power to make arrests for offenses committed in his presence and that he participated in the questioning of the detained suspects.

      . The detectives seized the video camera following J.A.J.'s arrest. Detectives Calbracie and Wright made a CD copy of the video from the camera. The video is of very poor quality, nearly inaudible and at times appears to be in slow motion. Detective Calbracie testified that the CD of the video is of inferior quality to the original he viewed on the video camera. Detective Calbracie admitted that the original video is no longer available and that he could have inadvertently erased the original video when he transposed it to a CD.

      . Detective Calbracie testified as the juvenile walked away he called the detectives "freakin faggots.”

      . The testimony reflects that there were three law enforcement vehicles on the scene.

      . The record reflects that J.A J.’s mother was also arrested at the scene.

      . Detective Wright testified that in this situation he believed an appropriate reactionary gap to be 21 to 30 feet.

      . In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C. art. 883.

      .As the Louisiana Supreme Court stated in State ex ret. Batiste, 367 So.2d 784, 788 (La. 1979):
      [j]uvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const.1974, art. 5, ss 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of

        review of this court in juvenile delinquency proceedings extends to both the law and the facts.

      . Detective Calbracie indicated that he also participated in the detention and questioning of the suspects. In describing the arrest scene, Detective Calbracie testified that several suspects were seated on the ground for questioning and that, "we were speaking with these individuals.”

      . The defendant in Johnson became combative during her arrest and a struggle ensued.

      . See Desormeaux, supra.; Patterson, supra.

      . Detective Wright testified that at some point J.A.J. would circle around and approach die detectives from behind, thus diverting his attention away from the scene.

      . La. Ch.C. art. 893 discusses the evidence to be produced at a disposition hearing and provides:
      A. At the disposition hearing, unless the child waives the presentation, the court shall hear evidence as to whether the child is in need of treatment or rehabilitation and shall make and file its findings.
      B. All evidence helpful in determining the proper disposition, including oral and written reports, the report of the predisposition investigation, any reports of mental evaluation, and all other evidence offered by the child or the state shall be received by the court and may be relied upon to the extent of its probative value even though not admissible at the adjudication hearing. Upon motion of the district attorney or the child, the court may hear testimony from the victim of the offense.
      C. Counsel for the state and for the child shall be afforded an opportunity to present evidence and to examine and controvert written reports so received and to cross-examine individuals preparing the reports or other witnesses who give testimony at the hearing. Sources of confidential information need not be disclosed.
      D. If the court finds that the child is in need of treatment or rehabilitation as a delinquent child, the court shall proceed immediately to make any appropriate disposition authorized by Articles 895 through 899.