text:
    STATE of Louisiana v. John E. MURPHY.
    No. 09-KA-432.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr. District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Michael Morales, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

|2Pefendant was charged with possession of clonazepam, a violation of LSA-R.S. 40:969 C, and pled not guilty at his arraignment. Defendant’s motion to suppress was denied by the trial court and defendant was tried by a six-person jury which found defendant guilty as charged. Thereafter, the trial court sentenced defendant to four years at hard labor. Defendant now appeals on the basis of two assignments of error.

Evidence presented at trial revealed the following:

Detective Leon James testified he is assigned to the Street Crimes Unit of the Jefferson Parish Sheriffs Office. On the evening of May 29, 2008, he and his partner, Detective Daniel Kerr, were on duty in an unmarked vehicle. While stopped at the intersection of Garden Road and the Westbank Expressway, Detective James saw a silver vehicle traveling eastbound on the Expressway. The |3officer could see the vehicle’s driver was not wearing a seat-belt. Detective James followed the car and activated his unit’s overhead lights and siren. The driver of the silver car pulled over and stopped.

The officers exited their vehicle. Detective James approached the driver’s side of the silver car, while Detective Kerr approached on the passenger side. Detective James testified the car had three occupants, and defendant was sitting in the back seat. Based on the number of people in the vehicle, Detective James radioed for additional officers.

Detective James asked the car’s driver, Shawn Allen, for his driver’s license and proof of insurance. Allen was unable to produce either of those items. Detective James began to write Allen a traffic citation. At that point, Detective Kerr told James he saw drug paraphernalia and suspicious substances on the front passenger floorboard, where Robert Jones was sitting. Detective Kerr testified he saw a plastic bag containing a white/brown powder which he believed was either cocaine or heroin. Kerr also saw a syringe and a packet of Kool-Aid on the floorboard.

The officers ordered the three men to exit the car and told them they were being detained. Detective James testified that he ran the three subjects’ names on the police database and learned there were outstanding attachments on both defendant and Allen. Detective James arrested defendant and Allen on the warrants, handcuffed them, and advised them of their rights.

Deputy Eric Blandford testified that he searched defendant incident to his arrest. In defendant’s right shoe he found a clear plastic bag containing yellow pills and several plastic bags containing white and off-white powder as well as a rock-like substance. Deputy Blandford turned those items over to Detective Kerr.

|4Petective Kerr testified he field-tested the substances recovered from the floorboard and from defendant, with the exception of the pills. The powder and rock-like substances tested negative for narcotics. Rather than perform chemical tests on the pills, Detective Kerr consulted a drug directory in order to identify them. Detective Kerr did not specify in his testimony what he determined the pills to be.

Daniel Waguespack testified at trial he is a forensic scientist with the Jefferson Parish Sheriffs Office. The trial court accepted him as an expert in the testing, analysis, and identification of controlled dangerous substances. Mr. Waguespack testified that in connection with this case, he examined nine round, yellowish, tablets marked R-84. He did not perform any chemical tests on the pills. Instead, he conducted a visual inspection. Based on the color and shape of the tablets and the numbering on them, Mr. Waguespack determined they were clonazepam, a Schedule IV drug. He included his findings in a lab report.

Mr. Waguespack testified he performed chemical tests on the other substances seized in this case, and those tests were negative for controlled dangerous substances. Mr. Waguespack found they consisted of caffeine, acetaminophen, aspirin, and soap.

By this appeal, defendant first argues the evidence at trial was insufficient to prove he possessed clonazepam, since the State’s witnesses only performed visual inspections of the pills seized from his shoe, and no chemical testing was done. The State responds that the identification of a controlled dangerous substance at trial does not require direct scientific evidence when circumstantial evidence establishes the identity of the substance beyond a reasonable doubt. In this case, the State argues, the testimony at trial was sufficient to prove beyond a reasonable doubt that the pills recovered from defendant’s shoe were clonazepam.

|fiMr. Waguespack, an expert in forensic chemistry, testified he has worked in that field for 40 years. He has been employed by the Jefferson Parish Sheriffs Office since 1994, and prior to that he worked in the New Orleans Police Department’s Crime Laboratory. He has had extensive specialized training, and has taught at the police academy.

Mr. Waguespack testified he did not perform any chemical tests on the pills. Upon performing a visual examination, he determined the pills looked alike, and they were manufactured pharmaceuticals. He consulted a logo index issued by the Drug Enforcement Administration and an internet website called Just Drug Identification. Based on the color and shape of the tablets, as well as the numbering on them, Mr. Waguespack determined they were clonazepam, a Schedule IV drug. Mr. Waguespack indicated in his Scientific Analysis Report that the tablets were “Positive for Clonazepam.”

Like Mr. Waguespack, Detective Kerr used a reference book to identify the pills by their shape, color, and markings. However, the prosecutor failed to elicit from Detective Kerr what he determined the pills to be.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 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. Ortiz, 96-1609, p. 12 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Miller, 06-451, pp. 7-8 (La.App. 5 Cir. 10/31/06), 945 So.2d 773, 778. Where circumstantial evidence forms the basis of the conviction, the rule is, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must 16exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard; rather, it provides a helpful basis for determining the existence of reasonable doubt. State v. McFarland, 07-26, p. 7 (La.App. 5 Cir. 5/29/07), 960 So.2d 1142, 1146, writ denied, 07-1463 (La.1/7/08), 973 So.2d 731. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Id.

To support a conviction for possession of a controlled dangerous substance, the State must prove that the defendant knowingly possessed an illegal drug. State v. Decay, 07-966, p. 7 (La.App. 5 Cir. 6/19/08), 989 So.2d 132, 137, writ denied, 08-1634 (La.4/13/09), 5 So.3d 161. The identity of the drug is an essential element of the charged offense. State in the Interest of J.W., 597 So.2d 1056, 1058 (La.App. 2 Cir.1992); State v. James, 517 So.2d 291, 293 (La.App. 1 Cir.1987).

Even without the benefit of direct scientific evidence, we find that the expert testimony of Mr. Waguespack was sufficient to show the pills contained clonazepam. The Louisiana Supreme Court has adopted the view of the federal courts that the “ ‘government need not introduce scientific evidence to prove the identity of a substance ... as long as there is sufficient lay testimony or circumstantial evidence from which a jury could find that a substance was identified beyond a reasonable doubt, the lack of scientific evidence does not warrant reversal.’ ” State v. Harris, 02-1589, p. 6 (La.5/20/03), 846 So.2d 709, 713 (quoting United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir.1990), cert. denied, 495 U.S. 939, 110 S.Ct. 2190, 109 L.Ed.2d 518 (1990)). The supreme court further found, “[ijdentification based upon familiarity through law enforcement coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.” Harris, 02-1589 at 6, 846 So.2d at 714 (citing United States v. Harrell, 737 F.2d 971, 978-79 (11th Cir.1984)).

Further, in a case factually similar to the instant matter, the Third Circuit found the evidence at trial was sufficient to support the defendant’s conviction for possession with intent to distribute hydrocodone. State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, writ denied, 08-1083 (La.1/9/09), 998 So.2d 712. In that case, officers recovered pills from under the back seat of a police car after the defendant exited the vehicle. Id., 07-1237 at 14, 981 So.2d at 743. At trial, an expert in forensic chemistry testified that the pills contained hydrocodone. He stated he had not performed chemical analysis on the pills, but had identified them by visual inspection and comparison to pictures in a book. Id., 07-1237 at 14, 981 So.2d at 744. Additionally, a police officer testified he had seen similar pills in the past in connection with his job, and that the pills at issue were hydrocodone pills. Id. Relying in part on State v. Harris, the Third Circuit found there was sufficient lay and expert testimony from which the jury could find beyond a reasonable doubt that the pills at issue were hydrocodone. Carter, 07-1237 at 16, 981 So.2d at 745.

Based on the foregoing, we conclude that the expert testimony of Mr. Wagues-pack was sufficient to support a finding beyond a reasonable doubt that the pills seized from defendant were clonazepam.

Defendant next argues the trial court erred in allowing the State to introduce evidence of the counterfeit substances retrieved from defendant’s shoe, as those substances constituted inadmissible “other crimes” evidence. The State contends the evidence at issue was admissible as res gestae.

During a bench conference at the beginning of trial, defense counsel asked the court to prohibit any mention of the “bunk” substances seized from defendant’s |sshoe. Defense counsel argued such mention would constitute inadmissible “other crimes” evidence. The prosecutor responded that in order to show that defendant possessed the clonazepam pills illegally (i.e., without a prescription), it was necessary for the State to explain the circumstances in which the officers found the pills. Defense counsel also pointed out that simple possession of counterfeit drugs is not a crime. The Court initially ruled that the evidence at issue was inadmissible, since its prejudicial effect would outweigh its probative value. But after further consideration, the judge reversed himself and ruled that the evidence was admissible as res gestae, and that it was also admissible to show knowledge and intent. The court based its ruling on this Court’s opinion in State v. Hopson, 97-509 (La.App. 5 Cir. 11/25/97), 703 So.2d 767.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404 B; State v. Prieur, 277 So.2d 126, 128 (La.1973). But evidence of other crimes, wrongs, or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” LSA-C.E. art. 404 B(1). In State v. Taylor, 01-1638, pp. 10-11 (La.1/14/03), 838 So.2d 729, 741, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the Louisiana Supreme Court discussed the admissibility of “other crimes” evidence categorized as res gestae:

Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness without which the state’s case would lose its “narrative momentum and cohesiveness, ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

In the instant case, we find that the State showed the requisite connexity between the charged conduct and the uncharged conduct. The “bunk” substances at issue here were recovered together with the pills that were the subject of the instant charge. This Court has found evidence of other crimes or bad acts was admissible as res gestae under circumstances similar to those in this case.

In State v. Hopson, supra, police officers stopped the defendant for driving a vehicle without a license plate. The officers saw the defendant throw something out of the car’s window. On further inspection, the officers found the defendant had discarded two envelopes containing marijuana and a rock of crack cocaine wrapped in plastic. Hopson, 97-509 at 2, 703 So.2d at 768. The trial court allowed the marijuana evidence to be admitted at the defendant’s trial for possession of cocaine. Id. at 4, 703 So.2d at 770. An officer testified at trial that the rock of crack was two to four feet away from the envelopes. On appeal, the defendant argued the marijuana was improperly admitted at trial, as it was impermissible other crimes evidence. This Court found that the marijuana evidence and the testimony about it were admissible as res gestae. Id. at 5, 703 So.2d at 770.

In State v. Snavely, 99-1223 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, writ denied, 00-1439 (La.2/16/01), 785 So.2d 840, officers found a handgun in the defendant’s pocket after they arrested him for possession with intent to distribute cocaine. The defendant was tried on the cocaine charge, and the gun was admitted into evidence at his trial. This Court found that the evidence pertaining to the discovery of the gun constituted an integral part of the crime of possession with intent to distribute cocaine, and was thus admissible as res gestae. This Court noted that the “evidence was used merely to complete the story of the crime on trial and allow the state to accurately present its case.” Snavely 99-1223 at 7, 759 So.2d at 956.

In State v. Colomb, supra, the Louisiana Supreme Court found that the marijuana recovered from the defendant’s person at the same time officers discovered a gun in the van he was driving was admissible as res gestae evidence at the defendant’s trial for possession of a firearm by a convicted felon. The supreme court reasoned that

evidence of the defendant’s marijuana possession contemporaneous with the police discovery of the firearm in his truck provided not only narrative completeness to a case which began as a narcotics stop but also formed an integral part of the context facts in which jurors evaluated the state’s case for defendant’s exercise of dominion and control over the weapon found under the passenger seat of the van.

Colomb, 98-2813 at 4, 747 So.2d at 1076.

Based on the foregoing, we find the evidence at issue was admissible as res gestae. However, even if the trial court erred in allowing admission of the counterfeit materials, the erroneous admission of other crimes evidence is subject to harmless error analysis. State v. Williams, 05-318, p. 4 (La.1/17/06), 921 So.2d 1033, 1036, writ denied, 06-0973 (La.11/3/06), 940 So.2d 654. An error is harmless when the verdict is “surely unattributable to the error.” Id. The evidence against defendant at | ntrial was overwhelming, even without the admission of the counterfeit substances. Uncontroverted testimony showed the clonazepam was found inside of defendant’s shoe. In view of the strong evidence against defendant, it can be said that any error the trial court made in admitting the counterfeit substances into evidence was harmless beyond a reasonable doubt.

Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920, regardless of whether defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Upon inspection of the record, no errors patent were found.

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant, John E. Murphy, are affirmed.

AFFIRMED.

      . It appears from the record that the State subsequently filed a habitual offender bill of information in this case. The habitual offender proceedings are not included in the record, and they are not part of this appeal.

      . Allen was ultimately cited for failure to wear a seatbelt, driving without a license, and failure to provide proof of insurance.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . While it is not illegal under Louisiana law to simply possess “bunk," or counterfeit drugs, it is illegal to possess with intent to distribute counterfeit narcotics. See, e.g., LSA-R.S. 40:967 A(2); LSA-R.S. 40:971.1


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Richard BELL.
    No. 2009-K-0574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.

      ■ Autumn Snyder Harrell, Justin C. Harrell, Orleans Indigent Public Defenders, New Orleans, LA, for Richard Bell.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|, Richard Bell moved to suppress from evidence at his trial a .357 Magnum and a marijuana “cigar” seized from his bedroom by a police officer who had entered his apartment without a warrant. La. C. Cr. P. art. 703 A. The district court denied the motion to suppress and Mr. Bell applied for supervisory writs in this court. See La. Const. Art. V, § 10(A) and La. C. Cr. P. art. 912.1 C(1). We ordered additional briefing as well as oral argument in order to more closely examine Mr. Bell’s contention that the prosecution had not established one of the limited and well-recognized exceptions for entry into his home without a warrant and for conducting a “protective sweep” of his bedroom once inside the home. We conclude that an exception to the search warrant requirement justified the warrantless entry, but that the police, having accomplished the purpose for their entry, were nevertheless unreasonable in later entering into Mr. Bell’s bedroom. For the reasons which follow, we grant the writ and reverse the trial court’s ruling.

I

Richard Bell was in the bedroom of his apartment on the evening of August 19, 2008. At approximately 10:50 p.m., Mr. Bell and his girlfriend, Unique Tolliver, were roused. Six police officers had entered the apartment and announced their presence. Ms. Tolliver left their bedroom to speak with the police and closed the door behind her. Along with their two minor children, Mr. Bell remained in the bedroom.

Six police officers had been on patrol in the apartment complex when they observed a man, one Cameron Mack, smoking a marijuana joint in the hallway. When Mr. Mack noticed the officers observing him, he discarded the joint and dashed into Mr. Bell’s apartment. The officers pursued him into the apartment through the unlocked front door. Mr. Mack was seized inside and immediately brought outside the apartment by some of the officers. It was at this point that Ms. Tolliver left her bedroom and shut the door behind her. Ms. Tolliver told the officers that she knew Mr. Mack, but that he was not a resident of her apartment. Officers were in the midst of interviewing Ms. Tolliver when they heard a noise coming from the back area of the apartment, prompting them to enter the bedroom where they found Mr. Bell with the contraband. Once the officers learned that Mr. Bell previously had been convicted of a felony, he was arrested for violating La. R.S. 14:95.1 and for simple possession of marijuana, a violation of La. R.S. 40:966 D(l). This prosecution ensued.

|sMr. Bell argues that the trial court erred in denying his motion to suppress on two grounds: (1) that the Fourth Amendment does not allow for a warrantless entry into a home when the police, even with probable cause, are in “hot pursuit” of a wanted person whose offense is a misdemeanor, and (2) that the Fourth Amendment does not extend to the full “sweep” of his apartment, and especially his bedroom, which the officers conducted under the particular circumstances of this case. The prosecution argues that there is no constitutional distinction between a felony and a misdemeanor when officers are in “hot pursuit” of a person whom the police have probable cause to believe committed a crime. The prosecution also argues that the officers, once lawfully inside the apartment, were authorized to conduct a “protective sweep” of the entire apartment to ensure their personal safety during the investigation.

At the outset of the discussion, we emphasize that there is no dispute that the police officers had probable cause to believe that Mr. Mack had committed a misdemeanor. There is also no dispute that the officers had removed Mr. Mack from the apartment at least some short while before other officers approached Mr. Bell’s bedroom. Finally, there is no suggestion that Ms. Tolliver was viewed by any of the officers as a confederate of Mr. Mack or as a threat to the officers’ safety.

II

The Fourth Amendment protects “the right of the people to be secure in their ... houses ... against unreasonable searches and seizures.” U.S. Const. amend. IV. “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) (emphasis added). The Louisiana Constitution similarly protects the right of each person to keep his home free of unreasonable searches or seizures. La. Const. Art. I § 5. Warrantless searches are per se unreasonable under the Fourth Amendment, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Because the evidence sought to be suppressed in this case was seized from within Mr. Bell’s home without a warrant as ordinarily required by the federal and Louisiana constitutions, the prosecution bears the burden of establishing that the evidence was seized pursuant to one of the limited exceptions to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29, 31 (La.1985); State v. Kelly, 06-0475, pp. 1-2 (La.App. 4 Cir. 11/21/06), 946 So.2d 222, 223; La. C. Cr. P. art. 703 D.

To penetrate the broad protections afforded the home, the police must show probable cause and exigent circumstances to justify warrantless entry into the premises. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, the United States Supreme Court expressed this principle:

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Id. Of course, “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Although the actions of Mr. Mack must be considered, our discussion is limited to Mr. Bell, the householder, and emphasize that it is his home which the police entered. The Fourth Amendment only protects persons against unreasonable searches and seizures. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is reasonableness.”). For the police to violate a defendant’s Fourth Amendment protection, the defendant

must have had a “reasonable expectation of privacy” which involves both a person’s subjective expectation of privacy and an expectation that society is prepared to recognize as “reasonable.” See Katz, at 361, 88 S.Ct. 507 (Harlan, J., concurring). The determination of a motion to suppress involves “the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In order to obtain the remedial benefits of a Fourth Amendment violation through the suppression or exclusion of evidence, it is necessary to establish not only that the search was illegal, but “also that [the defendant] had a legitimate expectation of privacy” in the premises searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (citing Rakas, at 131, n. 1, 99 S.Ct. 421). Mr. Bell’s expectation of privacy is at its height in his own home, for it is the “physical entry of the home that is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Having determined that Mr. Bell had a legitimate expectation of privacy in the premises searched, we now turn to the question of whether the police Improperly entered Mr. Bell’s home in pursuit of Mr. Mack after observing Mr. Mack commit a crime.

Ill

Mr. Bell first argues that the Fourth Amendment does not allow for a warrantless entry into a home when the police are in “hot pursuit” of a wanted person whose offense is a misdemeanor. We find it helpful in our resolution of this controversy to distinguish between the attributes of offenses classified as misdemeanors and as felonies. Possession of marijuana, by way of illustration, is a misdemeanor offense for first-time offenders — a relatively minor offense punishable by a fine of not more than five hundred dollars, a prison sentence of not more than six months, or both. Because a person convicted on that charge is not subject to punishment at hard labor, a person charged with possession of marijuana is not entitled to a jury trial. La. R.S. 14:2 A(6) and La. R.S. 40:966 E. Further, a person convicted of a first-time marijuana charge will not be entitled to an appeal, because appellate jurisdiction extends only to those cases that are triable by jury. La. Const. art. 5 § 10; La. C. Cr. P. art. 912.1. Cases for ordinary street crimes like possession of marijuana must be processed and brought to trial quickly, as the constitution tolerates relatively brief delays for simple misdemeanor offenses. State v. Reaves, 376 So.2d 136, 138 (La.1979) (citing Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)) (“[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”).

Felony offenses, on the other hand, require considerably more process, as felony offenders may be punished by death or imprisonment at hard labor. La. R.S. 14:2 A(4). A person charged with a felony must be present at all critical stages of the prosecution. La. C. Cr. P. art. 831. He has a right to an adversarial preliminary ^hearing and a trial by jury of at least six jurors. See La. Const. art. I, §§ 14, 17; La. C. Cr. P. arts. 291, 782. Along with possible punishment at hard labor, felony convictions carry collateral political and civil ramifications: limiting the right to vote while incarcerated and precluding felons from qualifying for elective public office. La. Const. art. I § 10. There are, then, clear differences in procedural, substantive, and collateral consequences depending upon whether the offense is classified as a misdemeanor or felony.

We now turn to the effect of the nature of the underlying offense on a police officer’s ability to immediately pursue an offender from a public place into a private place when the offense was committed in the officer’s presence.

Relying on language in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), Mr. Bell argues that the “hot pursuit” exception to the warrant requirement is confined to circumstances in which the underlying offense is a felony. The United States Supreme Court noted that “it is difficult to conceive of a warrant-less home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). The holding in Welsh, however, did not exclude misdemeanor offenses entirely. Instead, the Court only held that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Id. No bright line was drawn distinguishing an exigency based upon a misdemeanor rather than a felony. The police officers may have had reasonable suspicion that Mr. Mack was committing a felony, but they only had probable cause that he had committed a misdemeanor. In Louisiana, a first offense possession of marijuana charge is, as we have noted, a relatively laminor offense, but it is punishable with incarceration. It is, therefore, more serious than the offense in Welsh, which involved a non-jailable traffic offense.

In United States v. Santana, the United Stated Supreme Court recognized the exigent circumstances inherent in a true hot pursuit situation, holding that by escaping to a private place, “a suspect may not defeat an arrest which has been set in motion in a public place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). We have defined exigent circumstances as those “exceptional circumstances which, when coupled with probable cause, justify an entry into a ‘protected’ area that, without those exceptional circumstances, would be unlawful.” State v. Fournette, 08-0254, p. 19 (La.App. 4 Cir. 7/2/08), 989 So.2d 199, 211, writs denied, 08-1815, 08-1824 (La.4/17/09), 6 So.3d 789. Santana, Payton, and Four-nette, however, only applied the hot pursuit exigency to an arrest for a felony. Santana, 427 U.S. at 41, 96 S.Ct. 2406; Payton, 445 U.S. at 574, 100 S.Ct. 1371, and Fournette, 08-0254 p. 1, 989 So.2d at 200. Payton left to the lower courts the application of the exigent circumstances

exception, by expressly declining to consider the scope of the exigent circumstances exception that may justify a warrantless home arrest. Payton, 445 U.S. at 583, 100 S.Ct. 1371. Accordingly, our jurisprudence does not preclude a finding of exigency under the circumstances of the case at bar. See, e.g., State v. Robinson, 08-0652, p. 21 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, 625 (finding the totality of the circumstances and the inherent necessities of the situation objectively established exigent circumstances in an in-home arrest for marijuana possession where it was unknown whether other narcotics were on the premises that might be destroyed); State v. Brown, 99-0640, p. 10 (La.App. 4 Cir. 5/26/99), 733 So.2d 1282, 1288 (finding exigent circumstances when police pursued a defendant to arrest him for driving without a license); State v. Ennis, 96-0811 (La.App. 4 Cir. 6/12/96), 676 So.2d 196, 199 (“Exigent circumstances arose when the officers observed [the defendant] take a small plastic bag from his mouth and place it in his hand and flee into the residence”); State v. Byas, 94-1999 (La.App. 4 Cir. 12/15/94) 648 So.2d 37, 39 (finding exigent circumstances where the subject of the pursuit “could have escaped or destroyed contraband if the officers did not follow him into the house”).

The United States Supreme Court has addressed the difference between a felony and a misdemeanor offense as it informs police authority to undertake a custodial arrest in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). The police officer in Atwater performed a full custodial arrest on Mrs. Atwater after observing her driving a vehicle with her children while none of them were wearing seatbelts. The Supreme Court rejected Mrs. Atwater’s contention that the Court should forbid custodial arrest in the case of offenses that do not authorize jail time as punishment. Atwa-ter pointed to common law and founding-era principles that officers had no authority to conduct a warrantless arrest for a misdemeanor offense that did not qualify as a “breach of the peace.” Id. at 328, 121 S.Ct. 1536, citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Court in Atwater disagreed with that position, noting that this common-law rule was only “sometimes expressed” that way. Id. Indeed, the Court explained that the Carroll decision “conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the ‘usual rule’ at common law was that ‘a police officer [could] arrest without warrant ... one guilty of a misdemeanor if committed in his presence.’” Id., citing Carroll at 156-157, 45 S.Ct. 280. Thus, the Court in Atwater concluded, “what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform.” Id. at 329, 121 S.Ct. 1536. The Atwater Court, after a linthorough discussion of founding-era principles leading to the drafting and ratification of the Fourth Amendment, further stated: “[w]e simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.” Id. at 340, 121 S.Ct. 1536 (discussion of original intent at 336-340). Accordingly, we cannot agree with Mr. Bell’s contention that a bright-line rule exists that precludes officers from pursuing an offender into a home for a crime committed in their presence simply because the underlying offense is not a felony.

Mr. Bell also argues that State v. Lala, 08-0484, (La.App. 4 Cir. 12/3/08), 1 So.3d 606, further supports his argument that a distinction between a felony and a misdemeanor if not made ought to be made. In Lala, police pursued a woman into her home after observing her yelling in the street and attempting to get the attention of passing drivers. Assuming that Ms. Lala was publicly intoxicated — a violation of Section 54-405 of the New Orleans Municipal Code — the police followed her into her home and recovered cocaine therein. This court found that the police’s pursuit of Ms. Lala into her home was unreasonable not simply because public intoxication is a minor offense but because police failed to demonstrate a sufficient State interest to overcome the unreasonableness of a warrantless home entry. Lala, supra at 615. The most important and dispositive factor, however, in Lala is that Ms. Lala’s behavior, strange as it was, only gave rise to reasonable suspicion warranting further police investigation; the police lacked the probable cause essential to arrest her on that charge, and once she “retreated into the home, any concern for public safety was alleviated.” Id. It is a crucial distinction in our case that the police had probable cause to arrest Mr. Mack [ nwhen they immediately pursued him into Mr. Bell’s home to complete an arrest for a crime committed in their presence.

Moreover, in a case with facts more akin to ours, the Louisiana Supreme Court approvingly noted police authority to pursue a fleeing criminal from a public place into a private place when there is probable cause to arrest him. State v. Walker, 06-1045, p. 5-6 (La.4/11/07), 953 So.2d 786, 790. In Walker (which upheld evidence seized pursuant to the arrest of a man suspected of taking part in a drug transaction who fled into a third person’s home when the police approached him), the court explained:

[E]ven granting “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, 445 U.S. at 601, 100 S.Ct. 1371 (footnote omitted), it has long been settled that a person may not frustrate an otherwise lawful arrest on probable cause which the police are entitled to make in a public place without a warrant, United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), simply by stepping across the threshold of his home. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (“ [A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place.”).

Id. Here, officers observed Mr. Mack smoke and discard a marijuana joint in a public place, giving rise to probable cause for his arrest. Mr. Mack may not, under Santana, elude capture for a valid arrest that was set in motion in a public place by escaping to a private place. Mr. Bell’s privacy was infringed upon first by Mr. Mack, and then by the police. The Louisiana Supreme Court in Walker acknowledged that the officer’s “intrusion on the owner’s privacy interests by entering her residence on the heels of an intruder and removing him without her express consent scarcely added to the initial disruption caused by the defendant’s | ^unauthorized entry into the home after he ignored the officer’s attempt to stop him outside the premises.” Id. at 791. Under similar circumstances here, the police were justified in pursuing Mr. Mack into Mr. Bell’s apartment for the limited purpose of effecting his arrest for a crime he committed in their presence in a public place.

IV

The second issue in this case is whether officers conducted a valid “protective sweep” of Mr. Bell’s apartment after gaining entry in pursuit of Mack — and after Mack had been apprehended and taken outside of the apartment. Police may conduct a protective sweep of the premises as part of permissible “reasonable steps to ensure their safety after, and while making, the arrest.” Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The Supreme Court in Buie confected a two-tiered system of justification for such sweeps, analogizing them to searches incident to arrest and to stops and frisks, holding that:

[A]s an incident to arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 334, 110 S.Ct. 1093. From the two tiers described above, this case presents an issue regarding the second tier, in which the area searched expands beyond the area immediately adjoining the place of arrest, and for which an officer must offer articulable suspicion in justification. In this case, police entered the premises in pursuit of only one offender, Mr. Mack, for the limited purpose of apprehending him for a relatively minor, nonviolent offense. Once Mr. Mack was secured and |istaken from the residence, officers collected a plastic bag of marijuana on the kitchen table, which Mr. Mack confessed belonged to him. Other officers remained inside to interview Ms. Tolliver, who was the only other person that officers encountered upon pursuing Mr. Mack into his intended refuge. Mr. Mack had been arrested and removed from the residence when other officers interviewed Ms. Tolliver, who was not suspected of any crime. Some time later, police heard a “noise,” prompting a sweep of the back bedroom of the residence. In this sweep, officers discovered Mr. Bell in a back bedroom, where next to him — in plain view- — were both a firearm and a cigar containing marijuana.

The protective sweep doctrine allows officers to protect themselves in arrest situations that implicate danger. The second tier of Buie permits an extended sweep of the premises when officers demonstrate articulable facts giving rise to a reasonable belief that the premises harbor an individual posing a danger to those on the scene. Buie, supra at 334, 110 S.Ct. 1093. Requiring this from officers ensures that the scope of such a sweep remains closely tied to its protective purposes. See Buie, supra at 336, n. 3, 110 S.Ct. 1093 (comparing a protective sweep to a Terry pat-down, noting that, while both constitute “searches” under the Fourth Amendment, they are permitted on less than probable cause because of their limited scope for officer safety). Here, six police officers pursued Mack into a private residence for the narrow purpose of arresting him for a minor criminal offense committed in their presence. Officers did not conduct the protective sweep until after they had accomplished this objective and Mack had been taken from the residence. Officers conducted the sweep in the midst of interviewing Ms. Tolliver, a witness, at her kitchen table. The officers only asserted that an unelaborated “noise” gave rise to their sweep of Mr. Bell’s apartment. Officers had gained warrant-less entry to Mr. Bell’s residence |14for a limited purpose: to arrest Mr. Mack on probable cause for being in possession of marijuana. Officers had probable cause to arrest only Mr. Mack; they did not suspect Ms. Tolliver of any crime and had no reason to believe that Mr. Mack was accompanied by hidden confederates. Mr. Mack was arrested for only this offense, and to be reasonable, a full-blown protective sweep of Mr. Bell’s entire home must be supported by articulable facts indicating that the area to be swept harbors an individual posing a danger to those on the arrest scene. In the absence of facts implicating such a danger, the officers have neither articulated nor demonstrated that, once Mack was apprehended and secured outside the apartment, a protective sweep was still necessary for their safety. The officers must articulate their sense of danger and not a sense of mere curiosity. Under the circumstances here, the officers’ protective sweep of Mr. Bell’s bedroom was unreasonable. Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests. See Maryland v. Buie, supra at 337, 110 S.Ct. 1093; Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889; Richards v. Wisconsin, 520 U.S. 385, 395-396, 117 S.Ct. 1416, 137 L.Ed.2d 615, and see generally Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549.

V

The prosecution asserts that the officers were authorized to seize the evidence found in Mr. Bell’s bedroom because it was in “plain view.” It is established that there are certain circumstances under which the police may seize evidence in plain view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). To determine whether these circumstances exist, there is a two-fold inquiry: first, whether there was a valid prior intrusion, and second, whether the | ^observation was made within the permitted scope of the intrusion. See, e.g., Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

An essential predicate to a valid warrantless seizure of incriminating evidence is “that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In this case, there are two intrusions by the police into Mr. Bell’s home: the initial entry through the front door in pursuit of Mr. Mack and the subsequent entry into Mr. Bell’s bedroom. The “prior intrusion” at issue here is the officers’ entrance not into his apartment but into Mr. Bell’s bedroom. The officers were not in a position to observe Mr. Bell or the evidence until they opened his bedroom door. Since we find this intrusion unreasonable, the evidence will be suppressed because the police were not validly in a position to make the observation to begin with.

While we find that officers were reasonable in apprehending Mr. Mack pursuant to a chase in hot pursuit, the officers were not justified in lingering in the residence once they had accomplished their purpose. Under these circumstances, the police have not articulated a reasonable suspicion of danger. It is unreasonable to extend to the police the authority to conduct a protective sweep when officers are unable to demonstrate a basis for the belief that their safety might be in jeopardy. While the officers were narrowly authorized to intrude into Mr. Bell’s home (and privacy) in pursuit of Mr. Mack, subsequent entry into Mr. Bell’s bedroom was not within the scope of that limited intrusion. Furthermore, there was not a valid prior intrusion into the back bedroom because the officers failed to articulate facts that would necessitate a protective sweep under Buie. It was pursuant to this unreasonable intrusion into Mr. Bell’s bedroom that the officers |16seized evidence in plain view. Because the intrusion into Mr. Bell’s bedroom was not within the scope of the officers’ initial limited intrusion into his home, and because the officers did not independently offer a reasonable basis for intrusion into the bedroom, the officers were never validly in a position to observe the evidence in plain view. Therefore, the plain view “exception” is unavailing under these facts.

VI

Having captured their suspect and removed the intruder from Mr. Bell’s home, the police were unreasonable under these circumstances in advancing deeper into the recesses of his home. Accordingly, we reverse the trial court’s ruling. The evidence seized from the bedroom of Mr. Bell’s residence is suppressed. The matter is remanded to the trial court for further proceedings consistent with our decision.

WRIT GRANTED; REVERSED AND REMANDED.

      . Mr. Mack was also arrested for simple possession of marijuana. There is nothing in the record about the disposition of the marijuana in the plastic bag, which was found on the kitchen table of the apartment and of which Mr. Mack confessed ownership.

      . The trial court emphasized that the apartment complex was in a high crime area. The officers may have had reasonable suspicion to believe that Mr. Mack was committing or had committed a felony, such as possession with intent to distribute marijuana.

      . Although the court's holding in Walker was based on the fact that the defendant did not have a reasonable expectation of privacy when he fled into a third person's home, we find helpful guidance in the factual similarities and the court’s discussion of hot pursuit.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana In the Interest of R.J.
    No. 2009-CA-1026.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Ilona Prieto Picou, Juvenile Regional Services, New Orleans, LA, for R.J.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge, TERRI F. LOVE, Judge, DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

[, This appeal arises from juvenile proceedings in which the juvenile court judge dismissed the case based upon two other adjudications involving the same juvenile and the interest of judicial economy. We find that the juvenile court judge’s reasons did not constitute good cause for dismissal and reverse.

PROCEDURAL HISTORY

R.J. was charged with simple burglary of an inhabited dwelling, pursuant to La. R.S. 14:62.2. R.J. entered a plea of not guilty. The juvenile court judge received a letter from the Office of Juvenile Justice stating that it had custody of R.J. On the date of trial, the juvenile court judge dismissed R.J.’s case, pursuant to La. Ch.C. art. 876. The State’s devolutive appeal followed.

GOOD CAUSE FOR DISMISSAL

The juvenile court may dismiss a petition on its own motion for “good cause.” La. Ch.C. art. 876. The juvenile court is given great discretion when determining whether a case should be dismissed for good cause. State in the Interest of S.R., 08-0785, p. 4 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 65. “Although neither the Children’s Code nor the jurisprudence defines ‘good cause,’ it generally means ‘[a] legally sufficient reason.’ ” S.R., 08-0785, p. 4, 995 So.2d at 65-66, quoting Bryan A. Garner, Black’s Law Dictionary, 235 (8th ed.2004). Good cause must be supported by the record and is determined on a case-by-case basis. State in the Interest of M.B., 97-0524, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147. “The juvenile court is vested with broad discretion to arrive at solutions which balance the needs of the child with the interests of society.” State in the Interest of Davis, 96-0337, p. 2 (La.App. 4 Cir. 10/30/96), 683 So.2d 879, 880.

The State was prepared to proceed to trial with witnesses and victims. However, the juvenile court judge dismissed R.J.’s case based on the following:

The Court typically would sentence the juvenile in this matter to one year secure custody with a recommendation to the Stop Program. The Court finds it to be in the interest of judicial economy, in the best interest of the child and the parent that this matter be dismissed under Article 876. The Court sees no reason to supervise the juvenile under multiple cases while the juvenile is in the custody of OJJ. The Court deems it to be more appropriate for OJJ, for the juvenile, and for judicial economy, for the juvenile to be supervised under one matter.
The juvenile is in secure care right now serving 18 months on one case, one year on one case, the Court does not deem it to be in the best interest of juvenile for us to mess up his counseling, mess up his education, and bring him to Court on multiple days, in multiple Sections of Court to review it. The Court also doesn’t deem it to be in the best interest of the Office of Juvenile Justice who has to now transport the juvenile from a facility that’s outside the parish, which pulls probation officers off the street, counselors out of the correctional facility, and security guards out of the facility for the purpose of providing multiple reviews on the same juvenile.

In the present case, the juvenile court judge cited to other adjudications of R.J. to constitute good cause and cited to no authority on which to base a finding of good cause. This Court, in State in the Interest of Ruffin, 98-0126, pp. 3-4 (La.App. 4 Cir. 7/22/98), 716 So.2d 450, 451, held that a case was properly dismissed because the juvenile was convicted and sentenced as an adult. We reasoned “[t]hat good cause consisted of a finding that defendant’s conviction and sentence as an adult served society’s interests and that continued participation in the juvenile system would serve no purpose.” Id.

In contrast, when as in this case the juvenile is facing multiple counts of juvenile delinquency, we cannot conclude that the continued viability of each delinquency proceeding serves no purpose. See La. Ch.C. art. 879(B) (providing that “[a]ll proceedings in a juvenile delinquency case involving ... a delinquent act which is a second or subsequent felony-grade adjudication shall be open to the public”); La. Ch.C. art. 901 D(7) (providing that in determining whether to suspend the disposition or probation a factor the court shall consider is the child’s lack of a history of prior delinquency when the child committed the instant delinquent act); La. Ch.C. art. 824(3) (providing that in determining bail a factor the court shall consider is the “child’s prior delinquency record.”).

Also, the right of the victim to have the delinquency charges against his attacker adjudicated should be taken into consideration. Indeed, the Children’s Code contains several provisions recognizing the rights of the victim of an alleged delinquent act. See La. Ch.C. art. 811.1 (outlining the rights of the victim of an alleged delinquent act); La. Ch.C. art. 811.2 (providing for a Victim of Juvenile Crime Compensation Fund); La. Ch.C. art. 811.3 (defining victim, victim’s family, and juvenile crime victim). Accordingly, we find that the existence of multiple adjudications of the same juvenile did not constitute good cause for dismissal pursuant to La. Ch.C. art. 876.

J¿DECREE

For the above mentioned reasons, we find that the juvenile court did not find good cause to dismiss R.J.’s case. We reverse and remand for further proceedings.

REVERSED AND REMANDED.


author: PER CURIAM.

text:
    STATE of Louisiana in the Interest of L.A.
    Nos. 2009-CA-1029, 2009-CA-1030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Ilona Prieto Picou, Juvenile Regional Services, New Orleans, LA, for L.A. and M.C.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   PER CURIAM.

| Jn each of these two juvenile delinquency cases, the same juvenile court judge dismissed the State’s case against a juvenile who had allegedly been found incompetent to proceed in another section of juvenile court. In dismissing the cases, the judge relied on the finding of another section of juvenile court that the juvenile was presently incompetent to proceed. The judge also relied on the fact the other section was continuing to supervise the juvenile. A juvenile’s incapacity to proceed is not good cause for dismissal absent compliance with the procedures outlined in the Louisiana Children’s Code for determining capacity to proceed. See La. Ch.C. arts. 832-838. Nor is the pendency of another juvenile proceeding in which the juvenile is being supervised good cause for dismissal. The juvenile court judge thus abused its discretion in dismissing these cases. Therefore, we reverse and remand for further proceedings.

JUVENILE COMPETENCY STATUS

Although the juvenile court judge relied on La. Ch.C. art. 876 in dismissing these cases, we find the governing provisions in these cases are the Children Code articles providing the procedure for determining capacity to proceed, La. Ch.C. arts. 832-838, which provide:

|s* Article 832 provides that a juvenile’s mental incapacity to proceed is raised by filing a written motion. Article 832 further provides that upon the filing of such a motion the delinquency proceeding is stayed and no further steps can be taken until the juvenile is determined to have the mental capacity to proceed.
• The filing of such a motion raising the juvenile’s capacity to proceed triggers the juvenile court to order a mental examination under La. Ch.C. art. 833, which provides such an exam shall be ordered “at any time when the court has reasonable ground to doubt the child’s mental capacity to proceed.”
• Within seven days after the mental exam is ordered, the juvenile court is required to appoint a sanity commission; the sanity commission is then required to report to the court within thirty days on the juvenile’s mental status. La. Ch.C. art. 834. The order appointing the sanity commission is required to set forth the time and date of the contradictory hearing at which the juvenile’s capacity to proceed will be determined pursuant to La. Ch.C. art. 836.
• At that contradictory hearing, the report of the sanity commission is admissible, the members of the commission may be called as witnesses, and other evidence may be presented.
• Following the mandatory contradictory hearing, if the juvenile court determines the juvenile presently lacks the capacity to proceed, then the available special dispositions are enumerated in La. Ch.C. art. 837 B and include: “Dismiss the petition in accordance with Article 876.” La. Ch.C. art. 837 B(1).

Absent compliance with the above statutory procedures for determining competence to proceed, the special disposition option set forth in La. Ch.C. art. 837(1) of dismissing the petition under La. Ch.C. art. 876 is unavailable.

State in the Interest of L.A,

L.A. was charged with one count of second degree battery, pursuant to La. R.S. 14:34.1, and entered a plea of not guilty. L.A.’s case was continued due to an allegedly pending competency determination in another matter. Several months after L.A.’s plea of not guilty, the juvenile court judge noted that L.A. was deemed incompetent in the other pending matter. Following another section of juvenile court’s determination of incompetency, the judge stated, at a competency status hearing, that L.A.’s competency was not yet determined. However, at the next competency status hearing, the juvenile court judge stated that competency in this case had “not been re-established.” Further, the juvenile court judge dismissed the case, pursuant to La. Ch.C. art. 876, because it was in the “best interest of judicial economy and in the best interest of the juvenile that he be supervised under one case.” The State’s appeal followed.

The juvenile court judge did not order a mental examination or convene a sanity commission. Instead, the juvenile court judge relied solely upon the alleged incompetency determination in another section of juvenile court. The judge dismissed L.A.’s case pursuant to La. Ch.C. art. 876 on the following grounds:

[T]he Court finds it to be in the best interest of the judicial economy and the best interest of the child that he be supervised under one case in the custody of D.H.H. as opposed to under multiple cases in the custody of D.H.H. Competency has not be [sic] re-established as of yet. The Court is going to allow him to remain with the lowest numbered case, which is 2008-346-01-DQ-E. This case is closed.
The Court dismisses this matter under Article 876. Note State’s objection. As the Court has previously stated the Court finds it to be in the best interest of the juvenile and the best interest of the judicial economy not to supervise this juvenile on competency status between multiple Sections of Court for the same issue. It’s not in the best interest or economically feasible for D.H.H. to appear multiple times with multiple employees in multiple Sections of Court for the same issue of competency. And it’s not in the best interest of OJJ to supervise this | ¡¡juvenile on multiple cases for the same issue of competency.

Once a juvenile’s competency becomes an issue, the law mandates the filing of a delinquency petition and states that the “mental capacity of the child to proceed shall be determined by the court after a contradictory hearing.” La. Ch.C. art. 832 and 836. Dismissal pursuant to La. Ch.C. art. 876 is available after the contradictory hearing wherein the juvenile court judge “determines by a preponderance of the evidence that the child lacks the mental capacity to proceed.” La. Ch.C. art. 837. Therefore, we find that the juvenile court judge improperly dismissed L.A.’s case because the juvenile court judge did not comply with the statutorily enumerated procedures.

State in the Interest of M.C.

The State petitioned in juvenile court to have M.C. adjudicated a delinquent for violating La. R.S. 40:966(A), possession with the intent to distribute marijuana. The juvenile court judge held the pre-trial hearing at which M.C. entered a not guilty plea.

The juvenile court judge held a status hearing in this matter at which M.C.’s counsel raised the issue of M.C.’s competency. The judge noted that competency also has been raised in another section of juvenile court (Section F). The judge further noted that it would adopt the recommendation of the evaluation that was provided to the initial section. The judge thus vacated the trial date and set the matter for a competency status hearing. M.C.’s counsel also filed a written Motion to Raise Competency alleging that M.C. had been unable to assist defense counsel in preparing a defense and that he was “in special education classes at school and receives social security for his mild to moderate mental handicap.”

|fiM.C. was evaluated by three court-appointed medical experts: Dr. Rafael Sal-cedo, a forensic psychologist; Dr. Daliah Bauer, a clinical psychologist; and Dr. Sarah DeLand, a psychiatrist. All three mental health professionals submitted written reports. According to the experts’ reports, M.C. was in custody at the time of these evaluations and was facing two charges: possession with intent to distribute marijuana (this case) and armed robbery (the Section F case). The experts in their reports opined as follows:

• Dr. Salcedo found that it possible that M.C. “may be irrestorably incompetent as a result of his significant cognitive limitations.”
• Dr. DeLand recommended that M.C. be placed again in active psychiatric treatment as his untreated Attention Deficit Hyperactivity Disorder put him at risk. She opined that M.C. is able to understand the proceedings and is able to assist his attorney.
• Dr. Bauer found that M.C. met the diagnosis of Learning Disability with a Rule Out diagnosis of Mild Mental Retardation. She found that M.C. has a limited ability to understand his available defense and that he may benefit from a few legal rights education sessions to help him in developing a greater understanding of his legal rights.

The juvenile court held the scheduled competency status hearing. At the hearing, the juvenile court reviewed the experts’ reports and stated for the record that “Section F has determined that the juvenile is not competent and incapable of assisting his attorney in preparation for the case. The juvenile is being held as to the Section F matter.” The juvenile court judge then set the matter for another competency status hearing. At the hearing, the juvenile court dismissed M.C.’s case pursuant to La. Ch.C. art. 876 on the following grounds:

The Court believes it to be in the best interest of the juvenile and the best interest of judicial economy. The report has been issued stating that competency is un-restorable. The juvenile is in the custody of |7D.H.H. [Department of Health and Human Resources]. In the event that the juvenile is ultimately re-storable, he will be adjudicated under the lowered number case [the Section F case].

The juvenile court orally enumerated the following reasons for its decision: M.C.’s competence was non-restorable, M.C. was being supervised by another section of juvenile court, judicial economy, impact on other agency resources (D.H.H. and Office of Juvenile Justice), and the best interest of the child.

In the present matter, the juvenile court responded to the motion raising M.C.’s capacity to proceed by adopting the recommendations of the mental health experts appointed in the other sections — Section F and the continued custody section. The juvenile court thus never ordered its own mental examination or sanity commission. Nor did the juvenile court hold a contradictory hearing; rather, the juvenile court held two competency status hearings. Given the juvenile court’s failure to follow the statutorily enumerated procedures for determining M.C.’s capacity to proceed, we find the special disposition option provided by Article 837 B(1) of dismissing the ease did not apply. Accordingly, we find the juvenile court lacked good cause to dismiss the State’s case against M.C.

DECREE

For the forgoing reasons, the judgments of the juvenile court are reversed, and these matters are remanded for further proceedings.

REVERSED AND REMANDED.

      . Because these two cases present essentially the same issue, this Court consolidated them on our own motion for purposes of deciding these appeals.

      . Because La. Ch.C. art. 836 provides that “[t]he issue of the mental capacity of the child to proceed shall be determined by the court after a contradictory hearing,” a contradictory hearing is mandatory. In the Children's Code, the meaning of the word "may” is permissive and “shall” is mandatory. La. Ch.C. art. 107. In State in the Interest of C.P., 06-0889 (La.App. 4 Cir. 2/07/09), 952 So.2d 758, we did not hold that the juvenile court's ability to review the expert’s reports obviates the need for a contradictory hearing. In that case, the issue was whether La. Ch.C. art. 837 mandates that the members of the sanity commission be called as witnesses at the contradictory hearing. The state in that case contended that because the two members of the sanity commission were not present at the hearing it was not a contradictory hearing as mandated by La. Ch.C. art. 836. Rejecting that argument, we reasoned that the plain language of La. Ch.C. art. 837 indicates that the members of the commission "may” testify at the hearing.

      . The juvenile court in this case did not appoint its own experts; rather, it opted to adopt the recommendations of the experts appointed by the other juvenile court sections — Section F and the continued custody section.


author: ROLAND L. BELSOME, Judge.

text:
    Mario MASS v. Bradley J. BARTHOLOMEW, M.D. and St. Charles General Hospital.
    No. 2009-CA-0660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 2009.
    Ivan A. Orihuela, Riguer Silva, LLC, Kenner, LA, for plaintiff/appellant.
    Nairda Colon, Sheri Sport Faust, James P. Waldron, Frilot, L.L.C., New Orleans, LA, for defendant/appellee, St. Charles General Hospital.
    John R. Cook IV, Curry & Friend, PLC, New Orleans, LA, for Defendant/Appellee, Dr. Bradley J. Bartholomew.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

b The question before us is whether the trial court erred in dismissing Mario Mass’ medical malpractice claims for failure to obtain an expert.

Mr. Mass sought an evaluation from Dr. Bradley Bartholomew for back pain. Mr. Mass’ complaints included difficulty sleeping; stabbing, sharp throbbing, pulsing, intermittent pain; and limitations on the distances he was able to walk. Dr. Bartholomew reviewed Mr. Mass’ previous MRIs and determined he had disc hernia-tions at L4-5.

Dr. Bartholomew ordered an additional MRI for an updated assessment of Mr. Mass’ condition. That MRI revealed “isolated pathology at L4-5, along with large, broad, posterior protrusion that projects into central canal and severely compromises thecal sac.” At a follow up visit, Dr. Bartholomew recommended surgery, discussing fusion and/diseetomy as options. Within weeks of that recommendation, Mr. Mass underwent a “right L4-5 discectomy with right L-4 laminectomy, and an L4-5 interbody fusion with autologous bone chips.”

|2The following day, a repeat MRI showed a “large recurrent possible residual disc at L4-5 and stenosis at L3-4.” Dr. Bartholomew recommended a “repeat dis-cectomy and total laminectomy at L4.” Mr. Mass agreed to the subsequent procedure.

One year later, Mr. Mass filed a complaint with the Louisiana Patients’ Compensation Fund (PCF). In that complaint he alleges that St. Charles General Hospital and Dr. Bartholomew breached the applicable standards of care by 1) failing to obtain informed consent for the procedures at issue; 2) failing to adequately train and supervise its employees and physicians in the care of patients undergoing a discectomy and/or a laminectomy; 8) failing to provide appropriate medical care; and 4) failing to have the appropriate equipment and staff necessary to provide care. After discovery the medical review panel unanimously concluded that the evidence did not support that there was a deviation from the standard of care by the hospital or Dr. Bartholomew. Subsequent to the panel’s opinion, Mr. Mass filed the instant lawsuit against St. Charles General Hospital and Dr. Bartholomew.

Because Mr. Mass had not identified an expert at the medical review stage of the case, the defendants propounded additional discovery asking him to identify the expert witnesses that were going to be called to support his claims. That additional discovery was submitted on March 22, 2006, but went unanswered. On September 28, 2006, St. Charles General filed a motion for summary judgment based on plaintiff’s failure to obtain a qualified medical expert.

|sSt. Charles General’s motion for summary judgment was originally set for hearing on January 12, 2007, but was continued at the plaintiffs request. The hearing was reset for February 9, 2007. On the hearing day, issues were raised regarding Dr. Bartholomew’s employment status at the hospital. The trial judge deferred any ruling on the issues allowing St. Charles General time to supplement its motion for summary judgment with additional documentation.

In the interim, Dr. Bartholomew filed a motion for summary judgment. On July 25, 2008, the parties appeared for hearing of St. Charles General’s and Dr. Bartholomew’s motions for summary judgment. Mr. Mass was still without an expert witness, but presented the trial court with the affidavit of Maria Barrayo, his ex-wife. The trial court rejected the affidavit as untimely and granted summary judgment in favor of the defendants.

On appeal Mr. Mass argues that the trial court was manifestly erroneous in granting the defendants’ motions for summary judgment because an expert witness is not necessary in this case. He also contends that the trial court erred when it failed to consider his ex-wife’s affidavit as evidence to overcome the summary judgments.

This Court’s review of the record on a motion for summary judgment is de novo.

The burden of proof for a plaintiff in a medical malpractice case is set forth in La. R.S. 9:2794 A. The statute requires the plaintiff to establish the standard of |4care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries resulting there from. Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233. These requirements are generally satisfied by expert medical testimony. However, jurisprudence has recognized exceptions in instances of obvious negligence, these exceptions are limited to “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Id., at 1234; see also, Williams v. Memorial Medical Center, 03-1806 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044.

Mr. Mass contends that this case is one that can be determined without expert testimony citing to Williams v. Metro Home, 02-0535 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224. In Williams, a paraplegic developed bed sores due to the neglect of his home healthcare nurse. Id. Certain obvious acts of negligence such as those set forth by the Supreme Court in Pfiffner may not need expert testimony; however the negligence and damages complained of in this case are not as evident. Therefore, an expert witness is imperative to Mr. Mass’ case. He must present more than mere allegations to overcome summary judgment. See Smith v. MacArthur Surgical Clinic, 610 So.2d 245 (La.App. 3 Cir.1992). Without evidence establishing the standard of care and the breach of that standard, he is unable to prove essential elements of his case, and therefore cannot satisfy his burden at trial. La. C.C.P. art. 966 C(2).

The trial court had previously informed Mr. Mass that he needed to obtain an expert witness if he was going to maintain his cause of action. At the hearing for the summary judgments, on July 25, 2008, Mr. Mass still had not obtained an expert witness, but rather offered an affidavit from his ex-wife. The trial judge found the affidavit to be untimely and did not allow it to be entered into evidence, which decision was within her discretion and consistent with Uniform District Court Rule 9.9(b) and La. C.C.P. art. 966(B). Also see, Buggage v. Volks Constructors, 06-0175 (La.5/5/06) 928 So.2d 536.

Finding that Mr. Mass would not be able to meet his burden of proof at trial without an expert witness, the motions for summary judgment were granted in favor of St. Charles General Hospital and Dr. Bradley Bartholomew. Mr. Mass’ claims were dismissed with prejudice. We do not find that the trial court erred in its rulings. Accordingly we affirm.

AFFIRMED.

      . Mr. Mass' Petition for Damages was filed on November 15, 2005.

        . La. R.S. 9:2794 A reads in pertinent part:
      A. In a malpractice action based on the negligence of a physician ... the plaintiff shall have the burden of proving:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, . .. under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3)That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      . "Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body, from which a lay person can infer negligence.” Pfiffner, supra, 643 So.2d at 1233.


text:
    STATE of Louisiana v. George K. MILANEZ.
    No. 2009-KA-1396.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.
    Leon A. Cannizzaro, Jr., District Attorney, Brad M. Scott, Assistant District Attorney, New Orleans, LA. for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for George K. Milanez.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

l/fhe defendant, George Milanez, was granted an out of time appeal from two convictions which occurred six weeks before Hurricane Katrina struck the Gulf Coast. He now seeks a new trial on the grounds that he has been deprived of his right to a meaningful appeal of his convictions due to the unavailability of his trial transcript in this case. We vacate Mr. Milanez’s convictions and sentences and remand the case for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mr. Milanez was charged with one count of being a convicted felon in possession of a firearm and with one count of possession of marijuana with the intent to distribute. At his arraignment, he pled not guilty to both charges. The court denied a motion to suppress evidence. The State then amended the second count of the bill of information to charge Mr. Milanez -with distribution of marijuana. A twelve-person jury found him guilty as charged on both counts. Sentencing was delayed due to other matters before the court and then further delayed by the intervention of Hurricane Katrina. The court denied Mr. Milanez’s motion for new trial and sentenced him to fifteen years on count one and thirty years on count two, to be served concurrently.

JoTRIAL TRANSCRIPT AVAILABILITY

Mr. Milanez subsequently filed a pro se writ application with this Court seeking to have his convictions reversed because the record and transcripts had not been lodged on appeal. This Court transferred the pleading to the trial court and the court granted Milanez an out of time appeal. The court reporter who sat for the trial later certified that she could not prepare the transcript of the trial because all of the tapes and/or stenographer notes were lost during the flooding, which inundated the city, and her home, following Hurricane Katrina.

In his sole assignment of error, Mr. Milanez contends that his convictions and sentences must be vacated because the trial transcript is unavailable. The State concedes this argument, and we agree.

This Court has repeatedly held that a defendant has both a constitutional and statutory right to a review of a complete record of all the evidence upon which a judgment of conviction and imprisonment is based. State v. Johnson, 07-0851, p. 2 (La.App. 4 Cir. 9/12/07), 967 So.2d 538, 539, citing State v. Sublet, 05-0123, p. 3 (La.App. 4 Cir. 5/18/05), 904 So.2d 778, 780:

La. Const. art. I, § 19 provides in pertinent part: “No person shall be subjected to imprisonment ... without the right of review based upon a complete record of all evidence upon which the judgment is based.” See also, La. C. Cr. P. art. 843, which requires that all trial proceedings be recorded. Louisiana jurisprudence has consistently held that where appellate counsel was not trial counsel and no transcript of the testimony of trial is available, a defendant’s right to “appellate review is rendered meaningless ... and the interests of justice require that a defendant be afforded a new, fully-recorded trial.” State v. Ford, 338 So.2d 107, 110 (La.1976). See also, State v. Harris, 01-1910 (La.App. 4 Cir. 4/24/02), 817 So.2d 1164; State v. Johnson, 01-1909 (La.App. 4 Cir. 1/23/02), 807 So.2d 1071.

| -¡The remedy for a defendant whose trial transcript is unavailable through no fault of his own is a new trial. See Johnson; Sublet; Harris; Johnson; State v. Clark, 00-0348 (La.App. 4 Cir. 12/13/00), 776 So.2d 1249.

Mr. Milanez has been deprived of his right to a meaningful appeal of his convictions due to the unavailability of the transcript in this case. Because the unavailability of the transcript cannot be attributed to Mr. Milanez, we vacate his convictions and sentences and remand the case for further proceedings.

DECREE

For the above mentioned reasons, we vacate Mr. Milanez’s convictions and remand the case for further proceedings.

VACATED AND REMANDED.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana in the interest of C.B.
    No. 2009-CA-1114.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, for Appellant.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

IgC.B., a minor, appeals the judgment rendered by the Juvenile Court for the Parish of Orleans, adjudicating him delinquent for the offense of Unauthorized use of a Motor Vehicle, La.Rev.Stat. § 14:68.4. For the reasons set forth below, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On April 27, 2009, defendant, C.B., was arrested and detained at approximately 9:00 a.m. on the 5200 block of St. Claude Ave. in the Parish of Orleans. On April 28, 2009, a petition alleging one count of violation of La.Rev.Stat. § 14:68.4, Unauthorized use of a Motor Vehicle, was filed against C.B. in the Juvenile Court for the Parish of Orleans. An adjudication hearing was held in this matter on May 27, 2009, of which there is a complete transcript in the record. The State presented testimony from Officer John Blatcher of the New Orleans Police Department as well as testimony from Larry Glass, the victim. C.B. testified on his own behalf, but called no witnesses.

|sTestimony of Officer Blatcher

Officer Blatcher testified that, sometime after 7:00 a.m. on April 27, 2009, he responded to a dispatch call to investigate an automobile theft at a convenience store located at 5104 St. Claude Ave. in New Orleans. Officer Blatcher began obtaining information from Larry Glass, the victim. Mr. Glass informed him that his vehicle, a Krispy Kreme delivery van (2003 Chevrolet Astro), had been stolen at approximately 5:30 or 6:00 a.m. from this location. Officer Blatcher testified that while he was speaking with Mr. Glass, the van pulled up, with two individuals inside: an adult male and C.B. Officer Blatcher stated that as he approached the van, the adult male attempted to flee but was apprehended, and C.B. remained in the van. Both C.B. and the adult male (later identified as Earl Benson) were arrested. Officer Blatcher testified that there was no damage to the van’s steering column and that the keys were in the ignition.

Testimony of Larry Glass

Mr. Glass, a driver for Krispy Kreme Doughnuts, testified that on the morning of April 27, 2009, at approximately 5:30 a.m., he made a delivery to a convenience store at 5104 St. Claude Avenue. He stated that he left the van running and went inside to make his delivery. After a few moments, he returned to find that the van was gone. Mr. Glass did not see the persons) who took the van. Mr. Glass reported the incident, and Officer Blatcher arrived to investigate.

At approximately 9:10 a.m., while speaking with Officer Blatcher on the scene, Mr. Glass said he observed his van pull into the parking lot of a business next door to where the van was stolen. At that time, he observed the driver of the van, an adult male (Earl Benson) standing outside the vehicle. The adult male jumped back into the van, but as Officer Blatcher approached, he exited the van |4and fled. Mr. Benson was soon apprehended. Mr. Glass stated that there was no damage to the van’s steering column, and that the keys were in the ignition.

Testimony of C.B.

C.B. testified that he arrived at a convenience store on St. Claude Ave. He stated that while in the store, Mr. Benson, whom he had known from the neighborhood, asked him for a few dollars to go to court. C.B. testified that Mr. Benson was wearing a black Krispy Kreme shirt while in the store. Thereafter, C.B. and Mr. Benson left the store and got into the van. C.B. testified that he asked who the van belonged to, and that Mr. Benson said it was his work van. After C.B. got in the van, Mr. Glass approached and indicated that the van was his. C.B. testified that he was sitting in the passenger seat of the van when Officer Blatcher placed him between the front seats to put handcuffs on him.

C.B. testified that he did not know the van was stolen. He testified that Mr. Benson told him that the van in question was his work van. C.B. believed Mr. Benson because he was wearing a black Krispy Kreme shirt while in the store and in the van. He stated that there was no damage to the van’s steering column, and that the keys were in the ignition.

At the conclusion of the hearing, C.B. was adjudicated delinquent of unauthorized use of a motor vehicle. On July 1, 2009, a disposition hearing was held, and C.B. was committed to the Department of Public Safety and Corrections for one year. Execution of the commitment was suspended, and C.B. was placed on probation. C.B.’s timely appeal followed.

| ¡¡ASSIGNMENT OF ERROR

The sole assignment of error by C.B., appellant, is that there was an insufficiency of evidence to adjudicate C.B. delinquent of La.Rev.Stat. § 14:68.4, Unauthorized use of a Motor Vehicle.

STANDARD OF REVIEW

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Jackson standard has been held to be the clear standard of review for Louisiana appellate courts by the Louisiana Supreme Court. State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, 18. It specifically requires that the appellate court must determine that the evidence was sufficient to convince a rational trier of fact “that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 1982-2206 (La.2/27/84), 448 So.2d 676, 678). Said standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 2000-1810 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

LAW AND ANALYSIS

La. R.S. 14:68.4(A) defines Unauthorized use of a Motor Vehicle as follows:

Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other’s consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.

The Louisiana Supreme Court has held that a conviction for unauthorized use of a movable as “requiring a showing of mens rea or criminal intent.” State v. Bias, 1981-0287 (La.6/22/81), 400 So.2d 650, 652-3. This can be construed to require the existence of “fraudulent intent.” Id, at 652. In State v. Coleman, 2002-1487 (La.App. 4 Cir. 10/9/02), 830 So.2d 341, this Court found that the elements of La.Rev. Stat. § 14:68.4 are established if the State proves that a defendant knowingly used a motor vehicle without the owner’s consent.

In order to adjudicate a child delinquent, the State must prove beyond a reasonable doubt that the child committed the delinquent act alleged in the petition. La. Ch.Code art. 888. The standard for the State’s burden of proof in a juvenile delinquency proceeding is “no less strenuous then the standard of proof required in a criminal proceeding against an adult.” State in the Interest of A.G., 1993-1171 (La.App. 4 Cir. 12/30/93), 630 So.2d 909, 910. When a conviction is based on circumstantial evidence, La.Rev.Stat. § 15:438 provides that such evidence “must exclude every reasonable hypothesis of innocence.” State v. Langford, 1985-1067 (La.2/24/86), 483 So.2d 979, 983; State v. Thomas, 2002-1523, p. 4 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, 28.

C.B. argues that the evidence presented at his adjudication hearing was insufficient to sustain a determination of delinquency for unauthorized use of a motor vehicle. In particular, C.B. argues that the State did not prove the necessary mens rea or criminal intent to sustain such adjudication. C.B. relies upon State v. Stevenson, 2002-1152 (La.App. 4 Cir 1/22/03), 839 So.2d 203, 206, in which this Court reversed a conviction for unauthorized use of a motor vehicle where “the evidence failed to establish that the defendant took or used the vehicle with the knowledge that it was stolen.” The defendant was the driver of a rental vehicle that was fraudulently obtained by another passenger. The defendant did not attempt to elude the police, and there was no broken glass, no damage to the |7steering column, and no evidence of forced entry that could have made defendant aware of the circumstances by which the passenger obtained the car.

C.B. further relies on State in the Interest of H.N., L.C., T.B., 1997-0982 (La.App. 4 Cir. 7/8/98) 717 So.2d 666, in which this Court reversed delinquency findings for unauthorized use of a motor vehicle where the juvenile defendants denied knowing that the car in question was stolen when they accepted a ride. This Court noted that there was no forced entry into the vehicle, no damaged steering column, and further noted that the keys were in the ignition.

The State asks that this Court to accept the credibility determination of the trier of fact to uphold the adjudication. The trier of fact, in this case the juvenile court judge, is charged with making credibility determinations. State v. Woods, 2000-2712, p. 6 (La.App. 4 Cir. 11/9/00), 828 So.2d 6, 10; State v. Brumfield, 1993-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316. It is also the trier of fact’s duty to weigh the evidence. The trier of fact may accept or reject testimony, in whole or in part. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35.

CONCLUSION

In this matter, Officer John Blatcher and Mr. Glass testified that they saw the stolen van pull up to the adjacent business from where it was taken, with C.B. and Mr. Benson inside the van. It is undisputed that Mr. Benson was wearing a black Krispy Kreme shirt that he had obtained from the van. C.B. states that Mr. Benson was wearing said shirt when he asked C.B. for a few dollars. The trier of fact may have believed Officer Blatcher and Mr. Glass that they witnessed the van pull up with Mr. Benson and C.B. inside. Nevertheless, such a determination does not establish the necessary mens rea or “fraudulent intent” required to sustain a conviction under La.Rev.Stat. § 14:68.4.

[ sThis Court reversed the adjudications in State in the Interest of O.B., 1989-0867 (La.App. 4 Cir. 3/14/90), 559 So.2d 31, 33, and declared:

Aside from the inference which could be drawn from O.B. and W.L’s presence in the stolen vehicle, the state provided insufficient evidence to prove that O.B. and/or W.L took or used the vehicle with the knowledge that it was stolen.

In O.B., this Court determined that the juveniles who fled the vehicle in question after the high speed chase “accepted a ride from an acquaintance and did not know the car was stolen until it was stopped by the police.” Id., at 33. This Court further determined that the juveniles, seated in the back seat, could not see the broken steering column or glass pieces in the driver’s seat floor.

Similarly, the State produced no evidence that C.B. knew that the vehicle was stolen. The mere inference of wrongful conduct by C.B.’s presence in the van does not, beyond a reasonable doubt, create the necessary mens rea or criminal intent required to be convicted or adjudicated delinquent under La.Rev.Stat. § 14:68.4. Mr. Benson was wearing a black Krispy Kreme shirt while in possession of the Krispy Kreme van and while talking to C.B. The steering column on the vehicle was unharmed. The keys were in the ignition, and there was no visible sign of forced entry that would have led C.B., the passenger, to believe that the vehicle was stolen. In previous Unauthorized use of motor vehicle cases, this Court has consistently considered such circumstances as indicative of a defendant’s lack of knowledge that the vehicle in question had been stolen.

The State merely elicited evidence that C.B. was in the van with Mr. Benson when it arrived. Such a determination does not amount to the State proving beyond a reasonable doubt that C.B. “knowingly used the motor vehicle without the owner’s consent,” as required by State v. Coleman, supra. The State elicited |9no evidence that a rational trier of fact could conclude that C.B. had the necessary criminal intent beyond a reasonable doubt to be adjudicated delinquent of Unauthorized use of a motor vehicle, as required by State v. Bias, supra.

Accordingly, the determination of the Juvenile Court of the Parish of Orleans, adjudicating C.B. delinquent for violation of La.Rev.Stat. § 14:68.4, unauthorized use of a vehicle, is reversed, and the sentence vacated.

REVERSED.