author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Deterrance T. PURVIS, Appellant
    No. 51,215-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017.

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, JANET L. SILVIE, ERICA N. JEFFERSON, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STONE, and COX, JJ.
   STONE, J.

hThe defendant, Deterrance T. Purvis, was convicted by a jury of possession of marijuana with intent to distribute, in violation of La. R.S. 40:966(A)(1), and sentenced to 15 years at hard labor. Purvis was also convicted of resisting an officer, in violation of La. R.S. 14:108, and sentenced to six months in parish jail. For the following reasons, Purvis’ convictions and sentences are affirmed.

FACTS

On July 27, 2015, Caddo Parish Sheriffs officers, in a joint effort with the Shreveport Police Department, were en route to conduct a drug bust at Pinky’s, a store located near the intersection of Alabama and Poland Streets. This particular area was targeted because of numerous complaints of drag activity. While approaching Pinky’s, officers observed three men standing around an illegally parked Chevrolet Suburban (“Suburban”). After the officers approached the Suburban, one of the men, Purvis, consented to being searched. The search uncovered 14 individual bags of marijuana in Purvis’ back pocket. Thereafter, Purvis was arrested.

Purvis was charged by bill of information with possession of marijuana with intent to distribute and felony resisting an officer with force or violence. Purvis subsequently filed a motion to suppress, alleging he was unlawfully stopped and searched and urged the trial court to exclude any evidence concerning the recovered marijuana. After a hearing on the motion, the trial court denied Purvis’ request.

The jury found Purvis guilty of possession with intent to | ¡..distribute and the lesser responsive charge of misdemeanor resisting an officer. He was sentenced to 15 years at hard labor for possession with intent to distribute and 6 months in a parish jail for resisting an officer. Purvis now appeals.

DISCUSSION

Assignment of Error # 1

Purvis argues the evidence presented at trial was insufficient to support a verdict of possession of marijuana with intent to distribute. According to Purvis, while the state demonstrated he was in possession of marijuana, they failed to show he intended to sell it. He emphasizes that no scales, money, or other paraphernalia associated with selling drugs were found at the scene.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the case in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Carter, 42,894 (La.App. 2 Cir. 01/09/08), 974 So.2d 181, writ denied, 08-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C.Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La. 02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App. 2 Cir. 01/14/09), 1 So.3d 833, writ denied, 09-0310 (La. 11/06/09), 21 So.3d 297.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. |aA reviewing court affords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App. 2 Cir. 02/25/09), 3 So.3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App. 2 Cir. 05/09/07), 956 So.2d 758, writ denied, 07-1209 (La. 12/14/07), 970 So.2d 529.

La. R.S. 40:966(A)(1) provides:

(A) Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(l)To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I [.]

When determining whether a defendant is in possession with intent to distribute, the state must prove that the defendant knowingly possessed the drug with the specific intent to distribute it. State v. Taylor, 39,651 (La.App. 2 Cir. 04/06/05), 900 So.2d 212; State v. Johnson, 34,902 (La.App. 2 Cir. 09/26/01), 796 So.2d 201, unit denied, 03-2631 (La. 11/08/04), 885 So.2d 1124.

Specific intent to distribute may be inferred from the circumstances surrounding the transactions and the actions of the defendant. State v. Allen, 41,548 (La.App. 2 Cir. 11/15/06), 942 So.2d 1244; Taylor, supra. When relying on circumstantial evidence, the state must prove that the amount of the substance and the manner in which it was carried/packaged was inconsistent with personal use. State v. Moore, 40,311 (La.App. 2 Cir. 01/13/06), 920 So.2d 334. The test for determining whether intent to distribute exists includes five factors: (1) packaging in a form usually associated with distribution; (2) evidence of other sales or attempted sales by the defendant; (3) a large amount or quantity of the drug such as to create an | inference of intent to distribute; (4) expert or other testimony that the amount was inconsistent with personal use; and (5) the existence of any paraphernalia, such as baggies or scales, evidencing an intent to distribute. Moore, supra.

At trial, Agent John Witham (“Agent Witham”) of the Caddo Parish Sheriffs Office Narcotics Division testified that, on the night in question, while traveling east Poland Street towards Pinky’s, he observed a Suburban parked in a no parking zone and facing the wrong direction. He further observed several people gathered around the Suburban, and the Suburban doors were open. Agent Witham testified that as he drove by, he rolled down his window and shined his flashlight on the people around the Suburban. He stated he smelled marijuana, but did not stop because he was expected at Pinky’s. Agent Witham instead alerted the police unit following him that he smelled marijuana around the Suburban and advised the officers to make contact with the group of people.

Agent Stacey Coleman (“Agent Coleman”) testified that he was driving behind Agent Witham. According to Agent Coleman, after Agent Witham flashed his light on the Suburban, Purvis, who had been standing near the opened passenger side door, hurriedly moved away from the Suburban and appeared to be trying to distance himself from the vehicle. Agent Coleman activated his lights and siren and summoned Purvis to his patrol vehicle. He then ordered Purvis to place his hands on the vehicle and began frisking him.

Agent Coleman stated that while frisking Purvis, he felt a large bulge in Purvis’ rear right pocket. According to Agent Coleman, Purvis consented to being searched and Agent Coleman removed a purple Crown Royal bag Rfrom Purvis’ pocket. Inside the bag, Agent Coleman discovered 14 individual bags of marijuana, having a total weight of 28 grams. Agent Coleman testified that when he attempted to arrest and handcuff Purvis, Purvis fled. A foot pursuit ensued for two blocks. While running, Purvis fell to the ground, and Agent Coleman fell on top of Purvis to prevent his further escape. Purvis began elbowing the agent’s waist and neck, refusing to be handcuffed. With the assistance of a fellow police officer, Agent Coleman was able to handcuff Purvis. During Pur-vis’ return to the Suburban, Agent Coleman read Purvis his Miranda rights. Agent Coleman indicated that after he Mimndized Purvis, Purvis freely and voluntarily confessed that the 14 bags of marijuana belonged to him and that he sold drugs for money.

Agent Carl Townley (“Agent Townley”), a lieutenant with the Caddo Parish Sheriffs Office, testified that when examining a scene and determining whether a person is in possession of marijuana versus selling marijuana, he looks at the packaging, defendant’s statements, and what evidence is present—or not present—at the scene. Agent Townley testified that he was present during Purvis’ arrest and paraphernalia consistent with personal consumption, such as smoking devices, were not found in or near the Suburban. In his expert opinion, the 14 individual bags containing approximately 2 grams of marijuana each, were previously weighed and packaged for sale, not personal use. He testified that if the marijuana had [r,been intended for personal consumption, the drugs would be in one small serving bag instead of the smaller individual bags.

The state presented sufficient evidence for a jury to find Purvis guilty of possession with intent to distribute. As noted by Agent Townley, to determine whether drugs are being used for personal consumption or for distribution, one must look at the totality of the circumstances. Here, it is not disputed that Purvis was in possession of marijuana. Purvis confessed that he is a drug dealer, and he was arrested in an area known for street-level drug activity. The marijuana was in 14 individual 2-gram bags, not in one small bag. Furthermore, no smoking devices or paraphernalia, which are necessary for personal usage, were found at the scene. These things taken together provide enough circumstantial evidence to infer that Purvis had the requisite intent to distribute the 14 bags of marijuana. The jury apparently accepted Agents Coleman and Townley’s testimonies as credible and found that Purvis was in possession with intent to distribute beyond a reasonable doubt.

Assignment of Error # 2

Purvis argues the trial court erred in denying his motion to suppress evidence of the marijuana on the basis that the officers lacked reasonable suspicion to stop Purvis and lacked probable cause for his arrest. Purvis argues Agent Coleman’s only justification for stopping and frisking him was Purvis “walking away from a vehicle.” He contends that this does not 17amount to reasonable suspicion, and Agent Coleman had no grounds to frisk Purvis.

It is well established that a law enforcement officer may temporarily detain and interrogate persons reasonably suspected of criminal activity. 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. Elliott, 09-1727 (La. 03/16/10), 35 So.2d 247. Before such investigatory stop may occur, it must be based on reasonable belief that the suspect has been, is, or is about to commit a crime. State v. Lewis, 32,211 (La.App. 2 Cir. 08/18/99), 738 So.2d 1212, 1214. Reasonable cause for such a stop is something less than probable cause, but the detaining officer “must have ‘artic-ulable knowledge’ of particular facts that, in conjunction with reasonable inferences, provide reasonable grounds to suspect the detainee of criminal activity.” Id. Specifically, a court must objectively look at all of the information known to the law enforcement officer involved in the stop. Elliot, supra.

An individual’s presence in a high-crime area, or nervous/evasive behavior, alone is insufficient to justify an investigatory stop. State v. Morgan, 09-2352 (La. 03/15/11), 59 So.3d 403. Both activities, however, may be highly suspicious and may be one of several factors considered when finding reasonable suspicion. State v. Belton, 441 So.2d 1195 (La. 1988); Morgan, supra. Moreover, the Louisiana Supreme Court has “expressly held or at least implied” that a defendant’s flight from a police officer is the most important factor when examining the totality of the circumstances. Morgan, supra.

Probable cause to arrest an individual exists when reasonable and trustworthy facts known to the officer cause him to believe that the | sindividual has committed an offense. State v. Surtain, 09-1835 (La. 03/16/10), 31 So.3d 1037.

The trial court properly denied the motion to suppress. The police had reasonable suspicion to stop Purvis based on the totality of the circumstances. Purvis was stopped in a high-crime area where numerous complaints had been made concerning drug dealing and activity. Agent Witham noticed the Suburban was illegally parked and obstructing traffic and smelled marijuana emanating from the vehicle as he drove by. In addition, after Agent Wit-ham shined his light on the group and informed Agent Coleman of his observations, Agent Coleman witnessed Purvis hurriedly walk away from the vehicle. The circumstances support Agent Coleman’s reasonable suspicion that Purvis may be engaged in criminal activity and his decision to stop and frisk Purvis for officer safety. Furthermore, upon feeling a large bulge in Purvis’ right rear pocket, Agent Coleman obtained Purvis’ verbal consent before reaching into his pocket. As a result, both the stop and the subsequent seizure were lawful, and the trial judge was correct in denying Purvis’ motion to suppress.

Finally, Purvis briefly argues the lack of reasonable suspicion to stop and frisk him means Agent Coleman lacked probable cause to arrest him. As previously explained, Agent Coleman possessed reasonable suspicion to conduct a stop and frisk. The subsequent search of Purvis’ pocket was valid and resulted in discovery of marijuana. Thus, there existed reasonable and trustworthy facts to support a finding of probable cause to arrest Purvis.

| ^Assignment of Error # S

Lastly, Purvis argues that, despite having a criminal history, a 15-year sentence for the possession of 28 grams of marijuana is excessive. According to Purvis, the trial court did not adequately consider any possible mitigating factors because it did not order a presentence investigation (PSI) and instead, only considered his prior convictions.

La. C. Cr. P. art. 881.1 precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when a defendant fails to file a motion to reconsider sentence, the appellate court’s review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La. 1993); State v. Jones, 41,449 (La.App. 2 Cir. 09/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La. App. 2 Cir. 02/25/98), 707 So.2d 164.

Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La. 1992); State v. Livingston, 39,390 (La.App. 2 Cir. 04/06/05), 899 So.2d 733; State v. White, 37,815 (La.App. 2 Cir. 12/17/03), 862 So.2d 1123.

A sentence violates La. Const, art. I § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La. 01/15/02), 805 So.2d 166.

| ipThe trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7; State v. Diaz, 46,750 (La.App. 2 Cir. 12/14/11), 81 So.3d 228.

At sentencing, the trial court noted Pur-vis was previously convicted of (1) illegal use of a weapon in 2007, (2) attempted possession with intent to distribute in 2008, and (3) illegal use of a firearm in 2014. Despite his criminal record, Purvis argued he was remorseful for his actions and could be rehabilitated. However, the trial court stated that regardless of Purvis’ remorse, it could not ignore Purvis’ previous record, and concluded Purvis is in need of correctional treatment in a custodial environment.

At the time of Purvis’ offenses, a person convicted of possession with intent to distribute marijuana could be imprisoned for not less than 5 years and no more than 30 years at hard labor and is subject to pay a fine of not more than $50,000.00. La. R.S. 40:966(B)(3). Purvis’ 15-year sentence for possession with intent to distribute is well within the sentencing ranges. Considering Purvis’ previous criminal history, the trial court did not abuse its discretion in sentencing him.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Deterrance T. Pur-vis are affirmed.

AFFIRMED.

      . While Purvis assigns as error the sufficiency of evidence on his resisting an officer conviction, he does not argue the merits of that conviction. As such, it is deemed abandoned.

      . According to Coleman, Purvis resisted arrest so violently that all Coleman could do was grab "his arms just to hold on” until assistance arrived.

      , After Agent Townley’s testimony, the parties stipulated that the substance seized from Pur-vis was marijuana.


source: Caselaw Access Project

author: Judge Regina Bartholomew Woods

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF K.L.
    NO. 2016-CA-1151
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, J. Taylor Gray, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Tenee Felix, LOUISIANA CENTER FOR CHILDREN’S RIGHTS, 1100-B Milton Street, New Orleans, LA 70122, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
   Judge Regina Bartholomew Woods

| í This is a juvenile delinquency case. The juvenile, K.L., appeals his delinquency adjudication for possession of marijuana. For the following reasons, we affirm.

FACTUAL BACKGROUND

At approximately 3:20 p.m. on December 5, 2014, Mr. Tyrell Gaddies, a behavior mentor and math teacher at Crescent Leadership Academy in New Orleans, Louisiana, was assigned to bus detail, which involved supervising students as they boarded the school bus. During bus detail that day, Mr. Gaddies observed an apparent hand-to-hand transaction between K.L. and another student who was known to have issues with marijuana. Mr. Gaddies testified that he knew K.L. because he was his behavior mentor. For these reasons, Mr. Gaddies boarded the bus and asked K.L. to remove what he had placed into his pocket. KL. removed only his left hand from his pocket. Mr. Gaddies then asked KL. to remove his right hand from his pocket. KL. produced an empty right hand. Mr. |2Gaddies further testified that he asked K.L. to empty both pockets. K.L., however, emptied only his left pocket. Mr. Gaddies then reached into KL.’s right pocket and retrieved a plastic bag that contained marijuana. After he retrieved the marijuana, Mr. Gaddies notified the New Orleans Police Department (“NOPD”); NOPD School Resource Officer Abram Pedesclaux responded. Officer Pedesclaux testified that he was given custody of the bag of marijuana. He prepared a police report and placed the marijuana into Central Evidence and Property. He identified the marijuana at the adjudication hearing.

PROCEDURAL BACKGROUND

On May 10, 2016, K.L. was charged by delinquency petition with possession of marijuana in violation of La. R.S. 40:966(E)(1). On May 24, 2016, K.L. appeared in juvenile court for arraignment and pled not guilty.

On June 7, 2016, K.L. filed a motion to suppress evidence. At K.L.’s request, the suppression hearing was conducted in conjunction with the adjudication hearing, which was held on September 20, 2016. Ultimately, the juvenile court denied KL.’s motion to suppress and adjudicated K.L. delinquent of possession of marijuana in violation of La. R.S. 40:966(E)(1). On that same date, the juvenile court committed K.L. to secure care custody for six months, but suspended the execution of the sentence and placed K.L. on active probation for eighteen months. It is from this adjudication of delinquency that KL. appeals.

DISCUSSION

Recently, this court adopted a practice of conducting an error patent review in juvenile delinquency cases. State in Interest of W.B., 16-0642, p. 4 (La. App. 4 Cir. 12/7/16), 206 So.3d 974, 978; See State in the Interest of S.J., 13-1026, p. 4 (La.App. 4 Cir. 11/6/13), 129 So.3d 676, 679 (citing State in the Interest of A.H., 10-1673, p. 9 (La.App. 4 Cir. 4/20/11), 66 So.3d 679, 685). A review of the record in this case revealed no errors patent.

Although defense counsel did not designate it as an assignment of error, counsel raised sufficiency of the evidence in her brief. In a juvenile adjudication proceeding, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch.C art. 883; State in the Interest of D.M., 97-0628, p. 4 (La.App. 1 Cir. 11/07/97), 704 So.2d 786, 789. On appeal, the standard of review for the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the state proved the essential elements of the crime beyond a reasonable doubt; this standard is applicable to delinquency cases. La. C.Cr.P. art. 821. Interest of D.M., 97-0628 at p. 5, 704 So.2d at 789. Further, in a juvenile delinquency proceeding, an appellate court is constitutionally mandated to review the law and facts. La. Const. art. 5, § 10(B). Accordingly, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. State in the Interest of L.C., 96-2511, p. 3 (La.App. 1 Cir. 6/20/97), 696 So.2d 668, 670; Interest of D.M., 97-0628 at p. 4, 704 So.2d at 789-90. Here, because the sufficiency of the evidence depends on the validity of the school official’s search of the student, we will address these issues together.

|4K.L.’s sole assignment of error is whether the juvenile court erred in denying his motion to suppress. The trial court is vested with great discretion when ruling on a motion to suppress. State v. Williams, 95-1971, p. 8 (La.App. 4 Cir. 11/16/95), 665 So.2d 112, 116 (citing State v. Scull, 93-2360, p. 9 (La. App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245).

This case involves a school official’s search of a student. The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. U.S. Const, amend. IV. The basic purpose of this Amendment, as recognized in countless decisions of the Supreme Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1985). The Supreme Court “has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the [Supreme] Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon ‘governmental action’—that is, ‘upon the activities of sovereign authority.’” Id. (citing Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921)). Accordingly, the Fourth Amendment is applicable to the activities of civil as well as criminal authorities. T.L.O., 469 U.S. at 335, 105 S.Ct. at 739 (1985). Because school officials act in furtherance of publicly mandated educational and disciplinary policies, school officials act as representatives of the state in carrying out searches and other disciplinary functions pursuant to such policies. Id., 469 U.S. at 336, 105 S.Ct. at 740. Therefore, the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by school officials.

The Fourth Amendment requires that searches and seizures be reasonable. The determination of the standard of reasonableness of a search requires “balancing the need to search against the invasion which the search entails.” Id., 469 U.S. at 337, 105 S.Ct. at 740 (citing Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967)). We must balance the “individual’s legitimate expectations of privacy and personal security” against the “government’s need for effective methods to deal with breaches of public order.” Id. To receive the protection guaranteed by the Fourth Amendment, the expectation of privacy must be one that society is “prepared to recognize as legitimate.” Id., 469 U.S. at 338, 105 S.Ct. at 741 (citing Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)).

The Supreme Court has balanced school children’s legitimate expectation of privacy with the school’s equally legitimate need to maintain an environment conducive to learning by removing the warrant requirement and allowing the search of a student based on reasonableness under all the circumstances. The reasonableness standard is intended to ensure that the interests of students will be | (¡invaded no more than is necessary to achieve the legitimate end of preserving order in the schools. T.L.O., 469 U.S. at 343, 105 S.Ct. at 743.

The determination of reasonableness is a twofold inquiry: first, whether the search was justified at its inception; second, whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341, 105 S.Ct. 733, 739 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)).

A search is “justified at its inception” when there are reasonable grounds for suspecting that the search will yield evidence that the student has violated, or is violating, either the law or the rules of the school. T.L.O., 469 U.S. at 342, 105 S.Ct. at 743.

In New Jersey v. T.L.O., 469 U.S. at 328, 105 S.Ct. at 735, a student was caught smoking in the bathroom, which was a violation of the school rules. When questioned by a school official, the student denied that she had been smoking and further denied that she smoked at all. The school administrator demanded to search the student’s purse. Pursuant to the search, the school official discovered cigarettes, a package of cigarette rolling papers associated with marijuana usage, marijuana, a pipe, plastic bags, a fairly substantial amount of money, a list of students who owed that student money, and two letters that implicated the student in marijuana dealing. The Supreme Court found that the school official’s search of the student was reasonable because the student had been accused of smoking and adamantly denied the accusation and the student’s possession of cigarettes corroborated the accusations. Id., 469 U.S. at 345, 105 S.Ct. at 744.

|7In State in the Interest of R.W., 2013-0076, p. 1 (La.App. 4 Cir. 5/23/13) (unpub.) 2013 WL 6924973, a school official noticed a student, R.W., associating with another student who was smoking. Id. The school official observed R.W. hand something that he assumed to be a cigarette to the other student, who was smoking shortly thereafter. Id. The court held that it was reasonable for the school official to search R.W. because the school official observed R.W. associate with, and hand what he assumed to be a cigarette to, another student who was observed smoking Id.

Here, Mr. Gaddies observed K.L. receive something from a student known to have issues with marijuana. Further, K.L. was evasive when asked to empty his pockets. Therefore, Mr. Gaddies’ search of K.L. was reasonable under all circumstances. Because we find that Mr. Gaddies’ search of K.L. was reasonable, the marijuana found pursuant to the search was legally seized and usable as evidence against K.L. during his delinquency proceeding.

In her brief, defense counsel argues that school officials are prohibited from searching a student absent individualized, reasonable suspicion and that Mr. Gaddies’ search of K.L. was a random search. Defense counsel states the test set forth by the United States Supreme Court in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) “is the only one that deserves significant attention.” In Vemonia, the Supreme Court held that a public school district’s policy of randomly drug testing student athletes did not violate the student’s federal or state constitutional right to be free from unreasonable searches. Id., 515 U.S. at 664-65, 115 S.Ct. at 2396. The Supreme Court concluded that the ^school’s policy was reasonable and constitutional because of the relative unobtrusiveness of the search and the severity of the need met by the search. Id. Defense counsel’s reliance on this case is misplaced because K.L. was not subjected to random urinalysis. Instead, Mr. Gaddies had an individualized, reasonable suspicion to search K.L. because Mr. Gaddies was familiar with K.L. and observed an apparent hand-to-hand-transaction between K.L. and another student who Mr. Gaddies knew had issues with marijuana. Further, KL.’s evasiveness when Mr. Gaddies asked him to empty his pockets also prompted the search.

In her brief, defense counsel asserts that La. R.S. 17:416.3(A)(2)(a)-(b) establishes the parameters of school officials’ search of students. Defense counsel argues that pursuant to this statute, Mr. Gaddies’ search of K.L. is prohibited. Defense counsel’s argument is misdirected because this statute reflects the standards set forth in T.L.O, supra; therefore, pursuant to both La. R.S. 17:416.3(A)(2)(a)-(b) and T.L.O., supra, Mr. Gaddies’ search of K.L. was reasonable and proper.

A search conducted by a school official is permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not | exceedingly intrusive in light of the age and sex of the student and the nature of the infraction. T.L.O., 469 U.S. at 326, 105 S.Ct. at 735.

In T.L.O., 469 U.S. at 325, 105 S.Ct. at 734, a teacher reported that a student, T.L.O., was smoking in the bathroom, which gave the school official reason to suspect that if T.L.O. was carrying cigarettes they would likely be in her purse. Id. at 345-46, 745, 105 S.Ct. 733, 739. The Supreme Court held that it was not unreasonable for the school official to search T.L.O.’s purse for cigarettes. Id.

In Interest of B.W., supra, a school official caught a group of students smoking in the bathroom and saw a student, R.W., hand what he suspected to be a cigarette to another student. R.W. denied having cigarettes or lighters. Because the school official smelled smoke on R.W.’s person, he requested that R.W. empty the contents of his schoolbag. After R.W. had emptied the contents of his bag, the school official noticed a small zipper on the outside of the bag that R.W. had not opened. The school official requested that R.W. empty that compartment. Four small bags of crack cocaine were discovered in that compartment. This court held that the search was reasonable at its inception and was not improper in scope or the manner preformed. Id.

Here, scope is not at issue. Mr. Gaddies observed what he believed to be a hand-to-hand transaction between K.L. and another student known to have issues with marijuana. Further, K.L. was evasive when asked to empty his pockets. Mr. Gaddies searched only the pocket that K.L. refused to empty and discovered marijuana. Therefore, the search was reasonable and proper in scope and in the manner performed.

DECREE

1 mFor the aforementioned reasons, we affirm KL.’s adjudication of delinquency.

AFFIRMED

JENKINS, J., CONCURS IN THE RESULT

JENKINS, J., CONCURS IN THE RESULT

hi respectfully concur in the result. Upon review of the record and in light of the applicable standard set forth in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), I cannot say that the trial court erred in denying KL.’s motion to suppress.

      . Pursuant to the requirements of confidentiality of juvenile proceedings as set forth in La. Ch.C. art. 412, the juvenile, who was fourteen at the time of the charged offense, is referred to by his initials, K.L.

      . The Fourth Amendment of the United States Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . La. R.S. 17: (A)(2)(a)-(b) states:
      The teacher, principal, school security guard, or administrator may search the person of a student or his personal effects when, based on the attendant circumstances at the time of the search, there are reasonable grounds to suspect that the search will reveal evidence that the student has violated the law, a school rule, or a school board policy. Such a search shall be conducted in a manner that is reasonably related to the purpose of the search and not excessively intrusive in light of the age or sex of the student and the nature of the suspected offense.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Roman FORD
    16-869
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 2017

      Paula C. Marx, Louisiana Appellate Project, P. 0. Box 80006, Lafayette, LA 70698-0006, Telephone: (337) 991-9757, COUNSEL FOR: Defendant/Appellant-Roman Ford
    Winston White, Assistant Attorney General, Louisiana Department of Justice, P.O. Box 94005, Baton Rouge, LA 70804, Telephone: (225) 326-6200, COUNSEL FOR: Plaintiff/Appellee-State of Louisiana
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

laCourtney LeBlanc, a Lieutenant at the Iberia Parish Jail, participated in the October 11, 2014 shake-down of Defendant, Roman Ford’s cell. Lieutenant LeBlanc testified that two inmates complained of Defendant having a sharp object in his cell and complained that Defendant was making threats. When Lieutenant LeBlanc and Deputy Keith Moneaux went to check the cell, the Defendant and three other , inmates were in the cell block. According to Lieutenant LeBlanc, the following happened when she and the other deputy entered the cell block:

Deputy Moneaux and myself both entered. I had each inmate one at a time get out of their bunk and put their hands behind their head and step out one at a time. Mr. Ford was the last one in the cell. He was on the bottom bunk closest to the restroom. Whenever he— As the rest were entering—The information was given was that he was the one who had the “shank”; so initially I focused on him just to see if there was anything else and to pay attention to that area. I did see him attempt to reach on his side. He was covered with his blanket, but I could see his hand under the blanket and he looked he [sic] was trying to grab for some type of item or something on his mat. He was the last one it [sic]. It was Deputy Moneaux and myself in there. And he stood up and asked for the restroom. I tpld him he could not go to the restroom at the time because history is [sic] the jail is that, if there is contraband or something, people will try to flush it to get rid of it. He was denied the restroom. The second—We told him “no”. He was standing up by the restroom and we heard—well, I heard what sounded like a metal object hit the floor. [A]nd the second he was far enough away from it, myself and Deputy Moneaux grabbed him and escorted him out the cell. Deputy Moneaux went straight to where we—where I heard the item fall and he picked up the “shank”.

Lieutenant LeBlanc described the shank as being what appeared to be a screw that had been taken out of the floor and sharpened.

Deputy Keith Moneaux testified that when he walked into the cell, he focused on Defendant since he was the inmate accused of having the shank. When Deputy Moneaux entered the cell, Defendant was fidgety and moving around on the mattress. Defendant was told to exit the cell but stated that he needed to use the restroom first. According to Deputy Moneaux, Defendant actually entered the | ^bathroom stall. The officers told him he needed to wait and to exit the bathroom area, immediately. As Defendant was exiting the bathroom area Deputy Moneaux heard something hit the floor. When asked what he heard specifically, Deputy Moneaux testified:

A. It was the actual “shank”.
Q. Describe the noise you heard.
A. Like a “ping”. It hit like a drain on the floor in the stall.
Q. Who else was in the cell when that occurred?
A. It was just me and Mr. [sic] LeBlanc.
Q. Any other inmates?
A. No, sir. The other inmates were already exited the dorm.
Q. What did, what did you do at that point?
A. We actually got Mr. Roman Ford out and then I went back immediately and found the object that he had dropped.

On August 25, 2015, Defendant was charged by bill of information with one count of introducing or possessing contraband in a municipal or parish jail, a violation of La.R.S. 14:402(E). Defendant entered a plea of not guilty to the charge on September 8, 2015. A jury trial took place on January 27, 2016, and Defendant was found guilty as charged. Thereafter, on February 1, 2016, Defendant was charged as a habitual offender and entered a plea of not guilty. On May 12, 2016, the trial court found the Defendant was a fourth felony offender. On that same date, the trial court sentenced Defendant to five years at hard labor on the underlying charge of possessing contraband in a municipal or parish jail. Defendant filed a Motion for Appeal, which was granted.

On August 2, 2016, the trial court vacated the previous sentence and sentenced Defendant as a fourth felony offender to twenty years at hard labor without benefit of probation, parole, or suspension of sentence.

|4Pursuant to a motion filed by the District Attorney’s Office, on September 12, 2016, the trial court ordered the 16th Judicial District Attorney’s Office recused. The Attorney General of the State of Louisiana was notified of the need to appoint counsel. By letter dated October 28, 2016, the Attorney General accepted the appointment.

Defendant is now before this court alleging three assignments of error, one of which is also discussed in the error patent section. For the reasons that follow, we affirm Defendant’s conviction and amend the sentence imposed.

ERRORS PATENT and ASSIGNMENT OF ERROR NO. 2

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent that is also assigned as error number two in Defendant’s brief.

The court minutes reflect that the court imposed a twenty year hard labor sentence on Defendant without any restriction of benefits. However, the sentencing transcript indicates that the trial court imposed Defendant’s twenty year sentence without the benefit of parole, probation, or suspension of sentence. “[W]hen the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. The trial court improperly denied parole eligibility on Defendant’s habitual offender sentence imposed for his conviction of introducing into or possessing contraband in any municipal or parish prison or jail, a violation of La.R.S. 14:402. Although Section G of La.R.S. 15:529.1 requires habitual offender sentences to be imposed without the benefit of probation or suspension of sentence, it does not authorize the trial court to deny parole eligibility. “[T]he restrictions on parole eligibility imposed on multiple offender sentences under La.R.S. 15:529.1 ‘are those called for in the reference statute.’” State v. Tate, 99-1483, pp. 1-2 (La. 11/24/99), 747 So.2d 519, 520 (citation Uomitted). The applicable penalty provision for introducing into or possessing contraband in any municipal or parish prison or jail does not authorize the trial court to impose any portion of the sentence without the benefit of parole. La. R.S.14:402(G). Therefore, Defendant’s sentence must be amended to delete the denial of parole eligibility and the trial court is instructed to make an entry in the court minutes reflecting that change. See State v. Barfield, 11-515 (La.App. 3 Cir. 11/23/11), 81 So.3d 760, writ denied, 11-2818 (La. 4/13/12), 85 So.3d 1246.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Defendant contends the trial court erred in denying him the right to present evidence relating to the events leading up to the shakedown of his cellblock. Defendant argues that evidence of these events was relevant to this case, and the trial court’s denial of admission of this evidence violated the Defendant’s right to present a defense.

During the cross-examination of Lieutenant LeBlanc, Defendant asked Lieutenant LeBlanc if there had been issues with Shane Norman (the initial complainant about the shank) causing a ruckus in the cell. The State objected, stating the evidence was not relevant. Defendant’s counsel responded:

It is part of her report. One the [sic] reasons they went, not just to investigate the shank, is because Norman and Romero were punching up on a mattress on the wall causing some ruckus. So it is in her report and part of the reason they went was to investigate that.

The State argued the ruckus related to an earlier complaint and had nothing to do with the shank incident. After having the jury escorted out of the courtroom, the trial court stated that it would allow the question and answer and then make a ruling.

The following colloquy took place between defense counsel and Lieutenant Le-Blanc out of the jury’s presence:

Q. With regards to the booking cell that Mr. Roman Ford was being housed in, there was an issue that y’all were—that had been | r,made that y’all were going to investigate regarding, or was there an issue regarding Shane Norman causing some ruckus because he was boxing up against the mattress?
A. I do remember that. I believe that they had called about or we had heard a noise. That was previously before we entered the cell. They were making noise. And two or three of the deputies went to investigate and they saw that he had his mat—wrapped up and tied his mattress and he was just boxing it. They were told to “cease and desist”, or stop doing that, which they did, and we had no further issues with that. But that—I don’t know if that’s what you are asking. That wasn’t the reason we had to enter the cell.
Q. Do you recall your statement that was made on October 11th?
A. The report?
Q. Yeah.
A. Yes, ma’am.
Q. And in making that statement you talk about the complaints made by inmates, the alleged complaints about Roman Ford having a sharp object, then you talk about an altercation.
A. Uh-hum. (Affirmative response.)
Q. And they were told about what was happening. Do you recall in your report you write, “So all of the above mentioned deputies went to do a shake down.”
A. Okay?
Q. So the shake down wasn’t a result of those two (2) different issues?
A. No, ma’am. The report that had to deal with the shank happened to be a summary, I guess, of the different issues that we were having that entire night of the outcome of that. There wasn’t a separate report. Just for instance, the incident concerning the shank and the investigation for that.
Q. Do you recall at what time the complaint was made about the other commotion that was going on in that cell?
A. No, ma’am. I don’t recall the tima
Q. Do you recall at what time the complaints were made regarding the other issues that were going in the cell with Shane Norman?
A. No, ma’am.
|7Q. Okay. Do you recall what time the complaints were made with regards to the sharp object that they were alleging Roman Ford had?
A. No, ma’am.

When the trial court asked Lieutenant LeBlanc if the issue regarding Mr. Norman’s punching was a reason to enter the cell, Lieutenant LeBlanc responded, “No, sir.” The trial court then ruled that it would sustain the State’s objection for the following reasons:

—based upon the fact that there is some mention of that. It has no relevancy. Her testimony is that she acknowledged that there was is [sic] some incident, but there is no—the testimony is that that was not a basis to enter their cell, as they did with regards to the evidence in question in this case.

Defense counsel then engaged in the following colloquy with the trial court in response to the ruling:

MISS DEMAHY:
With the basis—We are also saying that the issues in that cell with other inmates is aiso relevant to this case.
THE COURT:
Okay?
MISS DEMAHY:
Because I mean it could be other inmates in this situation that have a shank. And to say that nothing else was going on in that cell, other them [sic] going to look for a shank, is giving the jury a swayed idea of what actually took place in that cell in the days leading up to their shake down.

After hearing defense counsel’s argument, the trial court reiterated its finding that the evidence was not relevant:

Okay. I have ruled on that issue. Based upon the fact that the testimony, although you have drawn out there this is this [sic] other issue, the testimony was that this witness testified pursuant to your questioning that th [sic] only reason for entering the cell, which was entering the cell, was because of the complaint that was consistent with, I think, the prior testimony and the testimony of this witness was with regards to the complaint about the shank, which has been testified to, to other extraneous evidence that you have drawn out. It lahas no relevancy in this Court’s position based upon the objection to that issue.
And she said that issue was handled without going into the cell. That is her testimony.

When defense counsel questioned whether the trial court was finding the evidence irrelevant, the following colloquy ensued:

THE COURT:
You are trying to get in evidence—It is my understanding you are trying to get her to answer questions about Shane Norman and the problems with Shane Norman. That was the—
MISS DEMAHY:
Or just the problem that they had other issues that took place in that cell prior to the shake-down involving other inmates. I think that is relevant to the case.
THE COURT:
Okay?
MISS DEMAHY:
So that is why I am asking her questions regarding any other issues that they had in that cell prior to the shake down.
THE COURT:
And the objection was that, with regards to Shane Norman, the issue is not relevant. I allowed testimony to see if that was part of the reason that they went into the cell. The evidence has been that it was not. So based upon the totality of that evidence that is before me, I’ll sustain the objection by the State as to your further questioning about an issue about Shane Norman that has nothing to do with the shank and that has been testified to was not a reason to enter into the cell, and that has been testified to was resolved by speaking with him without entering the cell. That is what I have heard from this witness. So that is the ruling of the Court.
MISS DEMAHY:
Okay.
THE COURT:
So with that, all of this has been done outside the presence of the jury.

ybeqal Analysis

It is well-settled that a defendant has the constitutional right to present a defense, but that right does not come without limits: “A defendant in a criminal case is constitutionally guaranteed the right to present a defense. However, this guarantee does not grant the right to the admission of any type of evidence.” State v. Clark, 95-1046, p. 23 (La.App. 3 Cir. 3/6/96), 670 So.2d 624, 636, writ denied, 96-861 (La. 9/20/96), 679 So.2d 431 (citing State v. Hill, 610 So.2d 1080 (La.App. 3 Cir. 1992)). While being mindful of a defendant’s right to present a defense, a trial court must exercise reasonable control over the admission of evidence:

La.Code Evid. art. 103 states that “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected .... ” La.Code Evid. art. 611(A)(2) states, in part, that “[t]he court ... shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... [a]void needless consumption of time .... ” In State v. Ellis, 94-599, p. 22 (La.App. 5 Cir. 5/30/95), 657 So.2d 341, 353, the court noted that “[t]he questions of relevancy and admissibility are within the wide discretion of the trial judge. His determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135 (La.1992); State v. Mayeaux, 570 So.2d 185 (La. App. 5th Cir. 1990), writ denied, 575 So.2d 386 (La.1991).”

Id. at 638-39.

Recently, the supreme court stated the following regarding a defendant’s right to present his defense versus the admission of irrelevant evidence:

However, the Supreme Court has subsequently made clear that the fundamental right to present a defense does not require the trial court to admit irrelevant evidence or evidence with such little probative value that it is substantially outweighed by other legitímate considerations. In Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), the Court stated that “while the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, Imconfusion of the issues, or potential to mislead the jury.” 547 U.S. at 326, 126 S.Ct. 1727.

State v. Coleman, 14-402 (La. 2/26/16), 188 So.3d 174,197, cert. denied, — U.S. -, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016). The supreme court also stated that even if evidence is erroneously excluded, the error would be subject to the harmless error standard. Id.

As for the relevancy of the evidence in the present case, defense counsel asserts the evidence of the “prior ruckus” would have given the jury a complete picture of what transpired in the cell leading up to the shakedown. Defense counsel implies that other inmates involved in the ruckus could have had a shank. As stated by defense counsel, “Relevant evidence is that which tends to make the existence of a fact at issue more probable or less probable. La. Code Evid. art. 401.” State v. Jeanlouis, 96-474, p. 6 (La.App. 3 Cir. 11/6/96), 683 So.2d 1355, 1360, writ denied, 96-2822 (La. 4/18/97), 692 So.2d 446. The trial court, however, found there was no evidence that the prior ruckus had anything to do with the shank; thus, the evidence was not relevant.

Considering the abuse of discretion standard as to a trial court’s finding, of relevance, Defendant has not shown the trial court abused its discretion in determining the evidence was not relevant. There was no clear testimony that the ruckus happened near the time the shank was found or that the ruckus had anything to do with the shank. Whether or not anyone else possessed the shank at some point does not change the fact that the Defendant was found in possession of the shank.

Furthermore, even if the evidence was erroneously excluded, we find its exclusion would be harmless. The testimonies of both Lieutenant LeBlanc and Deputy Moneaux support a finding that the Defendant possessed a shank while in his cell. Louisiana Revised Statute 14:402(E) provides, in pertinent part:

11tIt shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises or any municipal or parish prison or jail or to take or send or attempt to take or send therefrom, or to give or to attempt to give to an inmate of any municipal or parish prison or jail, any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit:
(6) Any firearm or any instrumentality customarily used as a dangerous weapon, including explosives or combustibles, except through regular channels as authorized by the officer in charge of any institution herein, or any plans for the making or manufacturing of such weapons or devices.

It appears from Defendant’s opening statement, the questioning of the witnesses, and Defendant’s brief on appeal, that he does not contest the fact that the shank found in his cell was a dangerous weapon. The only question at trial was whether the Defendant was the person who possessed the shank. Although defense counsel made a vague statement that other inmates could have had the shank during the ruckus, no specific testimony was offered that Defendant was holding the shank for someone else or that the shank actually belonged to someone else. Considering the officers’ testimonies, the evidence was sufficient to support the jury’s finding that Defendant possessed the shank. Therefore, even if the trial court erroneously excluded evidence of the prior ruckus, the error is harmless.

ASSIGNMENT OF ERROR NO. 3

In this assignment, Defendant asserts his right to counsel was violated by his lack of representation at the habitual offender arraignment. According to the minutes of the habitual offender arraignment, Defendant’s counsel was not present. The minutes indicate after the State read the habitual offender bill, the Court “on behalf of the defendant” entered a plea of not guilty. The record does show Defendant was represented by counsel at his adjudication hearing and sentencing.

This court has held the failure to advise a defendant of his rights to a hearing and to be advised of the State’s burden of proof is harmless where he is adjudicated |1⅞¾ multiple offender after a full hearing and he does not testify or acknowledge his status as a habitual offender. State v. Pitre, 04-1134 (La.App. 3 Cir. 2/9/05), 893 So.2d 1009; State v. Beverly, 03-1348 (La.App. 3 Cir. 3/3/04), 867 So.2d 107); State v. Gobert, 09-607 (La.App. 3 Cir. 12/9/09), 24 So.3d 1013 at 1015, writ denied, 09-2830 (La. 6/18/10), 38 So.3d 321]. In State v. Tarver, 02-973, 02-974, 02-975 (La.App. 3 Cir. 3/12/03), 846 So.2d 851, writ denied, 03-1157 (La. 11/14/03), 858 So.2d 416, this court found that arraignment for an underlying charge was not a critical stage requiring the presence of counsel. In reaching this finding, this court noted that in Louisiana, there is no confrontation of witnesses or presentation of evidence at arraignment. Tarver, 846 So.2d at 857. Additionally, we noted that available defenses are not lost if not pled at arraignment, and motions to quash are required to be filed after arraignment. Id. This court also distinguished a case wherein the defendant was unrepresented at both arraignment and trial. Id. (distinguishing State v. Fraychineaud, 620 So.2d 338 (La.App. 5 Cir. 1993)).

Likewise, the habitual offender arraignment in the present case should not be considered a critical stage at which counsel was required because no evidence was admitted or a guilty plea entered that could have undermined Defendant’s constitutional rights. Louisiana Revised Statute 15:529.1(D)(l)(a) provides:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegations of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the | ^record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph. The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies as set forth in the information.

As stressed in Tarver, there is no confrontation of witnesses or presentation of evidence at the habitual offender arraignment. Additionally, there is no provision stating that available defenses are lost if not pled at the habitual offender arraignment, and objections to the charges' must be filed after arraignment. Finally, a not guilty plea was entered on behalf of the Defendant at his arraignment, and the Defendant was subsequently represented by counsel at his adjudication hearing. Thus, we find the habitual offender arraignment in the present case was not a critical stage requiring the presence of counsel.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed. Defendant’s sentence is affirmed, but amended to delete the denial of parole eligibility, and the trial court is ordered to enter a minute entry reflecting this change.

AFFIRMED, AS AMENDED.


author: KEATY, Judge.

text:
    STATE of Louisiana IN the INTEREST OF S.C., M.C., K.C., and A.C.
    16-740
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 2017

      S. Marie Johnson, Public Defender’s Office, 106 West Berard Street, St. Martin-ville, Louisiana 70582, (337) 394-1446, Counsel for Appellant: N.D. (mother)
    Shentell Brown, Attorney at Law, 110 West Washington Street, New Iberia, Louisiana 70560, (337) 365-4006, Counsel for Appellee: B.C. (father)
    M. Bofill Duhé, District Attorney, W. Claire Howington, Assistant District Attorney, Sixteenth Judicial District, 300 Iberia Street, Suite 200, New Iberia, Louisiana 70560, (337) 369-4420, Counsel for Appellee: State of Louisiana
    Robert “Bobby” Odinet, Assistant District Attorney, 415 South Main Street, St. Martinville, Louisiana 70582, (337) 394-2220, Counsel for Appellee: State of Louisiana
    Charlotte Bordenave, Barry L. LaCour, Mental Health Advocacy Service, Child Advocacy Program, 302 Dulles Drive, Suite U-47, Lafayette, Louisiana 70506, (337) 262-2030, Counsel for Appellees: S.C. (child), M.C. (child), K.C. (child), A.C. (child)
    Court composed of John D.' Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   KEATY, Judge.

hThe mother, N.D., appeals the trial court’s, judgment ordering S.C., M.C., K.C., and A.C to remain in foster care. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

N.D. is the biological mother and B.C. is the biological father of four children: S.C., born on January 6, 2011; M.C., born on May 27, 2012; K.C., born on May 28, 2013; and A.C., born on March 8, 2015. On October 26, 2015, the State of Louisiana, Department of Children and Family Services (DCFS) received a report that N.D. and B.C. were not adequately supervising the children. The children were placed in the temporary custody of the DCFS pursuant to an Oral Instanter Order on October 27, 2015, and a confirmed written Instanter Order dated October 28, 2015. At the time of their removal from their parents’ custody, the children were the following ages: four years old; three years old; two years old; and seven and one-half months, respectively. Following an adjudication hearing on March 8, 2016 and April 6, 2016, the trial court determined they were children in need of care. A disposition hearing was held on April 25, 2016, and the parties stipulated to the continued custody of the children with the State. Following the hearing, the trial court signed the disposition judgment.

On May 11, 2016, N.D. filed the instant appeal from the April 25, 2016 judgment. On appeal and in her sole assignment of error, N.D. contends the trial court erred in granting judgment in favor of the State, adjudicating S.C., M.C., K.C., and A.C. as children in need of care. B.C. has not appealed.

1 .STANDARD OF REVIEW

“We review the juvenile court’s findings of fact under the manifest error standard of review[.]” State ex rel. J.Y.M. 09-1335, p. 5 (La.App. 3 Cir. 8/4/10), 45 So.3d 1128, 1132. In State ex rel. D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560, the first circuit noted:

[I]t is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. [In re A.J.F., 00-948 (La. 6/30/00), 764 So.2d 47.] Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. Id.; see Resell v. ESCO, 549 So.2d 840 (La.1989). If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.; see Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La. 4/3/02), 816 So.2d 270.
In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

DISCUSSION

In her sole assignment of error, N.D. contends the trial court erred in granting judgment in favor of the State, adjudicating the minor children in need of care. Louisiana Children’s Code Article 606 sets forth the grounds on which a child can be found in need of care providing, in pertinent part:

A. Allegations that a child is in need of care must assert one or more of the following grounds:
(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an [.interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is a victim of neglect.
B. A child whose parent is unable to provide basic support, supervision, treatment, or services due to inadequate financial resources shall not, for that reason alone, be determined to be a child in need of care.

Abuse and neglect are defined in La.Ch. Code art. 603. “Abuse” is “any one of the following acts which seriously endanger the physical, mental, or emotional health and safety of the child[.]” La.Ch.Code art. 603(2). Those acts include “[t]he infliction, attempted infliction, or, as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.” La.Ch.Code art. 603(2)(a). “Neglect” is defined in La.Ch. Code art. 603(16) as:

[T]he refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.

Adjudication of a child in need of care is warranted when a parent shows a repeated pattern of placing a child at risk and exposing a child to a lack of adequate shelter. State ex rel. AR, 99-813 (La.App. 1 Cir. 9/24/99), 754 So.2d 1073. At the adjudication hearing, the state bears the burden of proving by a preponderance of the evidence that the child is a child in need of care. La.Ch.Code art. 665; State ex rel. L.B., 08-1539 (La. 7/17/08), 986 So.2d 62. It is not the state’s duty “to prove |4its case beyond a reasonable doubt, by clear and convincing evidence, or to disprove every hypothesis of innocence.” State ex rel. L.B., 986 So.2d at 64.

In the instant matter, the petition alleged the children were victims of neglect as defined in La.Ch.Code art. 603(16), “due to the parents’ inability to provide shelter for the family and failure to supervise the children[.]” The adjudication hearing took place on March 8, 2016 and April 6, 2016 where counsel on behalf of the State and the children presented the following witnesses: Tian Cino, Tatinisha Washington, Bobby Bernard, Jr., B.C, and N.D.

Initiation of Investigation

Cino testified that she and B.C. were family friends. According to Cino’s testimony, B.C., N.D., and their four children moved into Cino’s house because their trailer had burned down. They remained there for a couple of months during which time Cino became concerned about the children’s welfare and contacted DCFS.

Washington, a DCFS employee assigned to investigate the matter, testified that she received an initial report on October 26, 2015, regarding neglect and lack of adequate supervision. The report, according to Washington, stated that children, ages two, three, and four years old, were outside unsupervised. The report, according to Washington, further noted the baby was sleeping in a car seat all day and night and was given a frozen Air-Head for teething purposes. Washington visited Cino’s residence on October 27, 2015, wherein she interviewed both parents and observed the children. Washington revealed both parents admitted to giving A.C. a frozen AirHead “for teething purposes.”

Children’s Medical Issues

Cino testified A.C. was small and did “not really” grow or gain weight. She indicated, however, that all of the children were small as babies and their “development was always slower than normal.” Cino stated a majority of A.C.’s nutrition came from a baby bottle containing a mixture of baby formula and rice cereal. She said all of the children were fed on a regular basis. Cino revealed that she changed A.C.’s diapers and noticed her bottom was raw, chaffed, and red. According to her testimony, Cino treated A.C.’s diaper rash with cornstarch since N.D. and B.C. neglected to treat it.

N.D. agreed with Cino’s testimony regarding the cornstarch, but disagreed with respect to the parents’ alleged failure to treat the diaper rash. N.D. testified that she and B.C. had diaper rash medication, and they “were already treating it.” N.D. stated she changed A.C.’s diaper “[e]very time she was wet or dirty.” N.D. and B.C. revealed two of their children wore diapers, and B.C. noted they were cleaned with wet wipes at each diaper change.

Washington testified that A.C. was very small. Washington advised that B.C. said his kids grew at a slower rate and blamed A.C.’s small size on his own mother or grandmother, who were also small. Washington observed A.C. was unable to hold her head up or crawl, which she found inappropriate. Washington noted that prior to the children’s removal, she brought them to St. Martin Hospital to undergo physical examinations. Washington stated that she spoke to Nurse Deborah Higginbotham, who was concerned about A.C.’s health. Washington learned that seven-month-old A.C. weighed approximately ten pounds, which someone suggested was not normal. Washington said A.C. was diagnosed with malnourishment, although the parents did not express concern over her diagnosis |nor advise that they were seeking treatment for same. Washington revealed the children were removed from their parents’ custody on October 27, 2015, and placed in foster care under the direction of Bernard.

Bernard was employed by the DCFS as a foster care worker and responsible for reunifying the children with their parents. Bernard testified that A.C. weighed approximately ten pounds in October 2015 and that she weighed approximately eight pounds when she was born in March 2015. He revealed A.C.’s initial physical examination indicated she was severely underweight. Bernard testified that A.C. was developmentally delayed as she was not able to sit up, hold her head up, or crawl. He advised that A.C. was unable to pull up when she turned one year old. Bernard stated that A.C. was participating in the Early Steps program wherein she was assigned to a teacher and a physical therapist because she was diagnosed with developmental delays. He noted that as of March 2016, AC.’s weight had increased to approximately seventeen pounds, she was beginning to crawl, and she was sitting upright unassisted.

Bernard testified that the other three children have had multiple foster care placements and underwent initial physical examinations. Bernard stated KC.’s physical exam was normal with the exception of strained vision and that she “is now wearing glasses.” Bernard testified that M.C.’s physical exam was normal, she needed glasses, and was referred to mental health services for Post-Traumatic Stress Disorder (PTSD). Bernard revealed M.C. was “thriving” in her current placement and was very active. With respect to S.C.’s physical exam, Bernard noted she was referred to treatment for PTSD and Attention Deficit Hyperactive Disorder (ADHD) and that her placement with her foster family was going well.

|7The children’s medical records from St. Martin Hospital, dated October 27, 2015, were admitted into evidence at the hearing. It was noted therein that A.C. weighed ten pounds and eight ounces, was small for her age, and was undernourished. The medical records revealed that N.D. stated A.C. was “not sitting up or crawling but is attempting to crawl[.]” The records indicated that S.C., M.C., and K.C.’s diagnoses were normal.

The mother, N.D., testified that A.C. weighed eight pounds, three ounces at birth and found it odd that she only gained two pounds while in her care. N.D. indicated she fed A.C. cereal and formula every four hours and “when she got old enough, she was on baby food.” N.D. admitted A.C. did not receive her two-month-old vaccinartion shots because it was not a legal requirement. According to N.D.’s testimony, the only shots A.C. had received were “[t]he ones in the hospital" KD. stated the other children were up to date on their vaccination shots. N.D. testified that she brought A.C. to the doctor for regular checkups. N.D. testified that when A.C. was around two to two and one-half months old, a doctor put her on cereal because she was not getting enough nutrients from her soy-based formula. N.D. attempted to address the problem by adding rice or oatmeal cereal to A.C.’s formula; however, she failed to gain weight. According to N.D.’s testimony, she did not return to the doctor with A.C. With respect to A,C.’s October 27, 2015 physical examination, N.D. testified that the doctor did not provide instructions regarding how to care for A.C.’s malnourishment; rather, the discharge report instructed her to follow up with a pediatrician because A.C. was underweight. N.D. said she did not follow up due to the removal of the kids.

B.C. testified that they brought A.C. to the doctor twice before she was removed. According to his testimony, one appointment occurred when AC. was | Raround two and one-half months old because B.C. was concerned about her weight. B.C.’s testimony is identical to N.D.’s in that the doctor advised that A.C. was not getting enough nutrition from the soy formula. B.C. revealed that A.C. started gaining weight after they introduced cereal into her formula. B.C. explained A.C. was allergic to regular milk just like ninety percent of his family. B.C. testified that most of his sixteen children, along with other family members, developed slowly. B.C. testified that prior to AC.’s removal, she was sitting up and holding her head up, although not completely on her own. B.C.’s testimony also mirrors N.D.’s testimony with respect to the vaccination shots.

Outside Activity

Cino explained that the children never went outside to play; rather, they stayed in the house a majority of the time. Cino discussed the issue with the parents although she was told, “when they learned to behave[,] they could go outside.” B.C. agreed the children spent all day inside because they lived close to roads and the highway. He said accidents happened in the neighborhood, and people drove down the road “ridiculously fast[.]”

Inadequate Supervision

Cino advised the children usually woke up around 4:30 to 5:00 a.m. while N.D. and B.C. would still be sleeping. Cino stated her backyard was close to Interstate 10 such that the children could have proceeded to it unsupervised. Cino revealed “two different occasions where [the children] actually got out of [her] house and went to the car outside while everyone was asleep.” She said the first incident occurred when someone down the road saw the children and called a family member. Cino advised the second incident occurred when she woke up one morning, saw her front door was ajar, and saw the children outside. Cino testified |9that the parents thereafter took measures to prevent the children from going outside by barricading the door in the room. She said the children’s door had a lock with a latch at the top, although they would climb up the car seat to unlock it and escape. Cino testified that the parents told her the children were climbing up the car seat. Cino stated that N.D. and B.C. “didn’t really spend a whole lot of time in the rooms with us.” Cino advised that a majority of the time, N.D. and B.C. were in the kitchen or the other room and N.D. would get up and check on the children when “they heard stuff going on [.] ”

Washington testified that N.D. “wasn’t aware of the children being outside [unsupervised]; however [B.C.] said that he was inside the home watching the children from outside of a window.”

Verbal and Physical Abuse

Cino said the parents physically disciplined and verbally abused their children. Cino revealed the children were required to go to bed between 4:30 and 5:00 p.m., although they would not fall asleep until approximately 9:00 to 9:30 p.m. Cino indicated that during this time period, the parents would fuss at them until the children “would finally just give up and be tired” and would fall asleep. Cino admitted the children would start shaking when they were in trouble. Cino stated N.D. and B.C. would spank the children, except for A.C., on a daily basis. According to Cino’s testimony, B.C. spanked the children with a thick stick wrapped in duct tape with the children’s names written on it. Cino called DCFS following an incident when the three older girls poured A.C.’s bottle on N.D., who was sleeping. Cino advised that N.D. became angry, called them “fing brats[,]” and threatened to “break their fingers.... [and] beat their butts.” Cino stated she recorded the incident and played the recording for the social workers who went to 11flthe house. Cino was not in possession of the recording at the hearing. Washington testified that she spoke with Cino and listened to the recording of N.D. “verbally cursing at the children and yelling at the kids.” Cino testified that she witnessed a fight between N.D. and B.C., which she believed dealt with A.C. Cino revealed B.C. “was to the point that he was ready to take the girls and leave, because he ... said [N.D.] got real close to the baby and ... screamed at her.”

Cino testified that A.C. spent a majority of the time in her car seat. She noted N.D. would remove her from the car seat “once or twice on a daily basis ... for a little bit.” Cino stated that during their two-month stay, she twice observed N.D. holding A.C. for more than an hour. A.C. and the other girls were bathed about once a week, according to Cino. She stated that if the children did not bathe, the parents washed them down or wiped their faces and feet, but “[n]ot really so much their bodies.” Washington noted the older three children were dressed but really dirty. Washington said they looked like they had not recently bathed and had a “bad odor.” N.D. stated that she bathed the children “about twice a week” although she “wiped them down when [she] didn’t give them a bath.” B.C. testified the children were not bathed daily because “they were never really dirty” since “most of the time they just played in the house.” B.C. stated the children were bathed approximately two or three times weekly. The hospital medical records note that S.C., K.C., and M.C. were unkempt, wore dirty clothes, and were not clean.

Washington revealed that B.C. said he used “a paint stick” to discipline the children, although she could not view it because he said it was broken. Washington testified the children did not have any bruises or marks on their bodies. She indicated that she observed all of the children, but they would not speak.

JjjN.D. testified that she may have called her older girls “fucking brats.” N.D. said she raised her voice at and spanked her children but never beat them. N.D. said A.C.’s crib was destroyed by the fire; therefore, she had been sleeping in a car seat. N.D. admitted they would put the children down for bed around 6:00 p.m.; however, it would take three hours for them to fall asleep. N.D. agreed that if the children would not lay down and watch television, she would fuss at them every day for approximately three hours. N.D. stated the fussing included cursing and screaming. N.D. testified that she and/or B.C. would spank them every day. N.D. revealed that B.C. was present when she would fuss or spank the children, and vice versa. N.D. indicated that B.C. had a stick that he spanked the children with; however, she could not recall whether the children’s names were written on it.

B.C. said N.D. was his fiancée. He agreed that he and N.D. spanked the children, but that it was not every night; rather, it was when they would not listen. He said they put the children down to sleep at 6:00 every night, but they would play around. After fussing at them for about twenty or thirty times, he would whip them for not going to bed. He said that the children sometimes would go to sleep quickly. B.C. said the stick did not have the children’s names on it; however, it was wrapped with tape to prevent splinters. B.C. never heard N.D. call the children “fucking brats,” and he denied calling them pejorative names.

N.D.’s Substance Abuse and/or Other Medical Issues

Washington advised that N.D, was supposed to be receiving treatment at Tyler Mental Health Clinic, but she was unable to do so “due to her current pregnancy.” Washington stated that N.D. was due to give birth to her fifth child in April 2016. Washington revealed N.D. denied using illegal substances, even though a drug test she took on November 4, 2016 tested positive for cannabinoids | T2and THC 345. Washington testified that N.D. had two or three previous cases with the DCFS arising from “drug exposed newborns” where she did not cooperate with the agency for treatment and services.

Bernard testified that his concerns with N.D. were her substance abuse issues, pregnancy, and her interaction with her children. He stated N.D. was discharged from the Healthy Start Program for not making contact with the agency. Bernard advised that N.D. refused to take additional drug tests following her November 4, 2015 drug test.

B.C.’s Substance Abuse and/or Other Medical Issues

Washington testified that B.C. was receiving treatment for PTSD at Tyler Mental Health Clinic. She stated B.C. “denied any drug ... usage[,]” although a drug test administered to him on November 4, 2015, tested positive for THC 370.

Bernard’s concern with B.C. was his substance abuse issues. Bernard testified B.C. was prescribed medications, i.e., Ce-lexa, Trazodone, and Seroquel, for his Bipolar disorder and PTSD. B.C. admitted to smoking marijuana in lieu of Seroquel or Trazodone because the prescriptions made him feel like a zombie or he could not afford them “due to the issue with Medicaid.” Bernard agreed that B.C.’s drug test was positive for THC; however, he did not have the results of the drug test at the hearing to substantiate his claim.

Lack of Housing

Washington testified that N.D. and B.C. were considered homeless by DCFS immediately prior to the removal of the children. Cino testified that B.C. and N.D.’s trailer had burned down and that they initially moved in with a friend whose home was unsuitable. Cino revealed the family subsequently moved into her home.

| ^Washington advised that during her initial investigation, Cino wanted the parents to leave her residence that day. Washington noted:

Once [Ciño] stated that the family had to leave the home, [B.C.] stated that he had friends by Miss Patricia LeBlanc that he could move to. I spoke with Miss Patricia before removing the children. She said she was going to allow them to stay there for two (2) weeks; however[,] she had an open investigation with the needs for children that were not able to go to their home. And that was the only family member or friend that [B.C.] gave to me at that time.

After the hearing, the trial court found the children were in need of care, partially because the parents were not concerned with A.C. “not gaining any type of appropriate weight as the child aged.” It stated that the parents’ failure to bring A.C. to “physician after physician after physician” to determine why she was not gaining weight constituted neglect. The trial court revealed that “having [A.C.] sit in a car-seat [sic] for all these extended periods of time is abuse.” It further explained: “[Between the baby weight and ... sitting in the carseat [sic], the baby’s physical development was substantially delayed. The baby couldn’t hold its head up. The baby had limited use or limited strength in the baby’s extremities.”

With respect to the bath situation, the trial court stated:

[T]o bathe children, especially little girls, once a week, you can .,. only clean a child so much with baby wipes. They need soap. They need to get the dead skin off their body. They need to get whatever else that’s in their hair. They need to .,. take a bath. I find that to be very abusive.

The trial court also discussed the verbal abuse as follows:

What I also find to be abusive is the mother cursing out little children, especially little girls ,.. because those children grow up thinking that’s the appropriate way to act because they learned from their parents. Using the P word and whatever else word. That ,.. really bothers me and this was done to all the children. The bathing was done to all the children. I understand that the baby, in my opinion, suffered more than the other kids. And to keep children locked up in |14the house without being active, playing outside, I And that to be neglect.

In her appellate brief, N.D. contends that A.C.’s failure to gain weight arose from malabsorption rather than parental neglect. As noted above, however, the trial court’s finding of neglect was not based upon A.C.’s failure to gain weight; rather, it was based on the parents’ failure to bring her to more than one physician until a definite diagnosis could be obtained to determine why the child could not gain weight. We find that the evidence supports the trial court’s conclusion in this regard.

N.D. further argues that there was no testimony indicating the parents’ method of cleaning the children caused them harm. Neglect, however, is “the refusal or unreasonable failure of a parent ... to supply the child with necessary ... care, ... for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.” La.Ch.Code art. 603(1). The State provided testimony that N.D. bathed the children one or two times per week and were wiped down with baby wipes in between baths. These wipe-downs were limited to hands and feet, according to the testimony. Washington revealed when she observed the children, they were dirty, had a bad body odor, and did not appear to have been recently bathed. The medical records noted the older children were unkempt, dirty, and needed a bath. The foregoing evidence was sufficient to allow the trial court to conclude that the parents’ failure to adequately care for the children by regularly bathing them impaired their physical, mental, or emotional health.

In State in Interest of I.B.W., 13-517 (La.App. 3 Cir. 10/9/13), 124 So.3d 567, this court found that the evidence was sufficient to support the trial court’s [ 1Bfinding that the infant was in need of care and that continued custody was necessary. The evidence included testimony from the child protection investigator that he received a report of dependency approximately one week after the infant’s birth. The investigator indicated the mother had two other children in state custody and that she was not complying with her case plan which required her to attend substance abuse treatment. The mother had also tested positive for narcotics on six occasions while she was pregnant.

In State in Interest of Dronet, 417 So.2d 1356 (La.App. 3 Cir. 1982), this court affirmed the trial court’s judgment rendering the child in need of care. The record revealed the mother would habitually hitchhike and take the child with her. Upon return from these hitchhiking trips, the child would be dirty, had a bad diaper rash, and was in poor health.

In State ex rel. L.M., 46,078 (La.App. 2 Cir. 1/26/11), 57 So.3d 518, the second circuit found that the trial court’s adjudication of the mother’s four children in need of care was not manifestly erroneous. It noted her children frequently did not have clean clothes and that the mother failed to make sure they were bathed or dressed appropriately.

Our review of the evidence in the record indicates that the State offered sufficient evidence to support a finding that there were reasonable grounds to believe the minor children were in need of care and that continued custody was necessary for their safety and protection. Accordingly, we cannot say that the trial court was manifestly erroneous or clearly wrong in its determination that the children were in need of care. Thus, N.D.’s argument is without merit.

^gDECREE

The trial court’s judgment ordering S.C., M.C., K.C., and A.C, to remain in foster care is affirmed. All costs of this appeal are assessed to the mother, N.D.

AFFIRMED.

      . Initials are used to protect the confidentiality of the parties pursuant to La.Ch.Code art. 412.

      . At the time of the two hearings at issue, N.D. was pregnant with and had given birth to her fifth child.