State Of Louisiana in the Interest of M.G. ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 KJ 1205
STATE OF LOUISIANA IN THE INTEREST OF M. G.
Judgment Rendered: , SUN 15 2023
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. JJ -0172- 2021, Division G
The Honorable Scott Gardner, Judge Presiding
Gregory Webb Counsel for Appellant
Prairieville, Louisiana M. G.
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
J. Bryant Clark, Jr.
Hugo F. Treschwig, III
Assistant District Attorneys
Covington, Louisiana
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
Chi. -'
r2 d.- SSenfti w i 1 4n - o Son S
THERIOT, J.
The juvenile, M.G, 1 was charged by amended petition in juvenile court with
one count of first-degree rape of a victim under the age of thirteen, in violation of
La. R.S. 14: 42( A)( 4). 2 M.G. entered a plea of not true and, following a hearing,
was adjudicated delinquent by the juvenile court. At a disposition hearing, the
juvenile court placed M.G. in the custody of the Office of Juvenile Justice until he
turns twenty- one years of age. The sentence was suspended and M.G. was placed
on supervised probation until his twenty- first birthday, subject to special
conditions. On appeal, the juvenile raises nine assignments of error. After a
thorough review of the record and the assignments of error, we affirm the
adjudication and disposition.
FACTS
In December of 2018, eleven -year- old R.H., the victim in this matter,
disclosed to his friend M.K. that he had previously been raped by M.G., the
juvenile. Shortly thereafter, R.H. told his mother about the same incident, and she
immediately called the police. R.H. testified that his family and M.G.' s family
were friends and would often spend time together, with R.H. playing with M.G.' s
younger brothers. R.H. stated that one day, when he went to get a glass of water at
M.G.' s house, M.G. pulled him behind a sheet of drywall that was propped against
a wall, pulled his pants down, and anally penetrated him. R.H. was six or seven
years old when this occurred.
SUFFICIENCY OF THE EVIDENCE
Pursuant to Rules 5- 1( a) and 5- 2 of the Uniform Rules of Louisiana Courts of Appeal, the
initials of the juveniles and their family members involved in this matter will be used instead of
their names. See also La. R.S. 46: 1844( W); State v. Mangrum, 2020- 0243 ( La. App. 1st Cir.
2122/ 21), 321 So. 3d 986, 989 n. l, writ denied, 2021- 00401 ( La. 10/ l/ 21), 324 So. 3d 1050.
2 The amended petition charges M.G. with one count of aggravated rape of a victim under the
age of thirteen and alleges that the act occurred during the time period of January 26, 2013
through January 24, 2017. In 2015, the Louisiana legislature amended La. R.S. 14: 42 to be
referred to as first degree rape, rather than aggravated rape. 2015 La. Sess. Law Serv. Act 184
H. B. 139) ( West).
2
In his third and fourth assignments of error, M.G. asserts that the juvenile
court erred in finding R.H.' s testimony and allegations credible, and the State
failed to prove that M.G. was at least ten years old on the date of the alleged
incident.'
It is axiomatic that in a juvenile adjudication proceeding, as in any criminal
trial, the State must prove beyond a reasonable doubt every element of the offense
alleged in the petition. La. Ch. Code art. 883 (" In order for the court to adjudicate a
child delinquent, the state must prove beyond a reasonable doubt that the child
committed a delinquent act alleged in the petition."); In Re Winship, 397 U.S.
358, 365, 90 S. Ct. 1068, 1073, 25 L.Ed.2d 368 ( 1970) (" The same considerations
that demand extreme caution in factfinding to protect the innocent adult apply as
well to the innocent child."); State in the Interest of D. P. B., 2002- 1742 ( La.
5120/ 03), 846 So. 2d 753, 756- 57.
A conviction based on insufficient evidence cannot stand as it violates Due
Process. See U.S. Const. amend. XIV; La. Const. art. 1, § 2. The constitutional
standard of review for juveniles is likewise identical to adults. La. Ch. Code art.
883; State in the Interest of E. S., 2018- 01763 ( La. 10122/ 19), 285 So. 3d 1046,
1054. The standard of review for the sufficiency of the evidence to uphold a
conviction is whether or not, viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319, 99
S. Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979). See La. Code Crim. P. art. 821( B); State
v. Ordodi, 2006- 0207 ( La. 11129106), 946 So. 2d 654, 660. The Jackson standard
of review, incorporated in Article 821, is an objective standard for testing the
3 When issues are raised on appeal contesting the sufficiency of the evidence and alleging one or
more trial errors, the reviewing court should first determine the sufficiency of the evidence.
State v. Dutton, 2018- 0593 ( La. App. 1st Cir. 12128/ 18), 270 So. 3d 597, 609, writ denied, 2019-
0124 ( La. 5128119), 273 So. 3d 315.
N,
overall evidence, both direct and circumstantial, for reasonable doubt. State v.
Landry, 2019- 0486 ( La. App. 1 st Cir. 2121120), 297 So. 3d 8, 14.
Because a review of the law and facts in a juvenile delinquency proceeding
is constitutionally mandated, an appellate court must review the record to
specifically determine if the trial court was clearly wrong in its factual findings.
See State in the Interest of D.M., 97- 0628 ( La. App. 1st Cir. 11/ 07/ 97), 704
So. 2d 786, 789- 90. In a juvenile case, when there is evidence before the trier of
fact that, upon its reasonable evaluation of credibility, furnished a factual basis for
its finding, the appellate court should not disturb this factual finding in the absence
of manifest error. Reasonable evaluations of credibility and reasonable inferences
of fact should not be disturbed upon review. State in the Interest of Wilkerson,
542 So. 2d 577, 581 ( La. App. 1st Cir. 1989). When analyzing circumstantial
evidence, La. R.S. 15: 438 provides that the factfinder must be satisfied that the
overall evidence excludes every reasonable hypothesis of innocence. State v.
Patorno, 2001- 2585 ( La. App. 1st Cir. 6121102), 822 So. 2d 141, 144.
Louisiana Revised Statute 14: 41( A) defines " rape" as " the act of anal, oral,
or vaginal sexual intercourse with a male or female person committed without the
person' s lawful consent." First degree rape is a " rape committed ... where the
anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of
the victim because it is committed . . . [ w] hen the victim is under the age of
thirteen years. Lack of knowledge of the victim' s age shall not be a defense." La.
R.S. 14: 42( A)( 4). First degree rape is a general intent crime. State in the Interest
of E.S., 2018- 01763 ( La. 10/ 22/ 19), 285 So. 3d 1046, 1055; see also La. R.S.
14: 11 and La. R.S. 14: 42. General criminal intent is present whenever there is
specific intent, and also when the circumstances indicate that the offender, in the
ordinary course of human experience, must have adverted to the prescribed
0
criminal consequences as reasonably certain to result from his act or failure to act.
La. R.S. 14: 10( 2).
As stated above, in December of 2018, R.H. disclosed to his friend M.K. that
he had been raped by M.G. M.K. testified at the adjudication hearing that, while
on a family camping trip organized through their home school organization, R.H.
told him that M.G. pulled him into a room and raped him. R.H. then told M.K.' s
mother the same thing. M.K.' s mother also testified that R.H. told her that the
juvenile raped him. She testified that R.H, used the word " rape" to describe what
happened but did not provide any more information. M.K.' s mother did not ask
R.H. any questions but encouraged R. H. to tell his parents. R.H. then told his
mother about what happened after leaving the campground.
R.H.' s mother, C. H., testified that her family met M.G.' s family through
church prior to R.H.' s birth, and that she had known M.G. for most of his life. The
families were very close, sharing holidays and vacations together and later home
schooling their children together. C. H. stated that in 2014, while C. H. and her
family were leaving M.G.' s family' s house, M.G.' s little sister said that the boys
were " kissing butts." C.H. and her husband went home and, with their children,
tried to get to the bottom of what M.G.' s little sister meant by this. The children
told C. H. and her husband that while at M.G.' s house, M.G.' s younger brothers,
K.G. and C. G., " engaged with [R.H] in having [ R.H.] watch them kiss each other' s
butts." C. H. testified that the families remained close after this incident until May
of 2018, when C. H.' s daughter and M.G.' s sister had a falling out which ultimately
terminated the relationship between the families.
C.H. further testified that while the family was discussing the kissing
between the younger boys, R.H. experienced his first ever panic attack. According
to C. H., the panic attacks continued, and were accompanied by insomnia, night
terrors, a lack of appetite, and suicidal thoughts. C. H. testified that these symptoms
5
only began to subside once R.H. disclosed the alleged rape and the family was able
to get R.H. the help he needed. C. H. testified that, after returning home from the
camping trip in December of 2018, R.H. stated, " I just wanted to tell you that I told
M.K.] and his mom that [ M.G.] had raped me." C. H. testified that R.H. did not
want to talk about it or provide additional details at that time, and that she
immediately told her husband what R.H. said and then called the police.
R.H. testified that when his family would go to M.G.' s house, he would
normally play with M.G.' s younger brothers, K.G. and C. G. R.H. recounted that
one day, while playing a board game with K.G. and C. G. in their room, R.H. left
the room to go get a glass of water. As he was walking to the kitchen, M.G. pulled
him behind a sheet of drywall that was resting lengthwise against a wall, pulled
down R.H.' s pants, stuck his penis inside of R.H., and then pulled out. M.G. then
told R.H. not to tell anyone and walked away. R.H. testified that he did not know
the date this happened, but that he was six or seven years old. He further stated that
the rape occurred in between the two times that R.H., K.G., and C. G. played the
kissing game." R.H. confirmed that he experienced insomnia and panic attacks,
but testified that those symptoms did not begin during the conversation with his
family about the " kissing game" as his mother had previously stated. R.H. further
testified that he did not tell anyone about what happened until the camping trip in
December of 2018, when he saw M.G. walking with some kids and that " set
something off in [ his] brain."
R.H. confirmed that he gave a forensic interview at Hope House. A
recording of that interview was played at the adjudication hearing. R.H.' s account
of the rape during the interview was largely consistent with his testimony. R.H.
stated that after M.G. raped him, R.H. then went back into the room with K.G. and
C. G. and told them what happened. The boys told R.H. that it was fine and that
M.G. would get a spanking. R.H., K.G., and C. G. then went outside to play, at
0
which point K.G. and C.G. pulled R.H. behind a tree and told him that he better not
tell anyone what happened or they would " scold" his " Ping A." When asked what
he thought the boys meant by " scold,"
R.H. said he thought they meant that they
would " flip the situation" and tell people that R.H. was the one that did it. R,H.
stated that M.G. was eleven or twelve when this happened. R.H. stated that M.G.
had his penis inside of him for about five seconds. When asked whether anything
came out of M.G.' s penis, R.H. said no because M.G. hadn' t hit puberty yet.
When asked whether M.G.' s penis was hard or soft, R.H. said it was " medium."
Jennifer Batina, a clinical therapist at Hope House, testified that she treated
R.H. for approximately six months after he disclosed his sexual abuse during a
forensic interview. Mrs. Batina stated that, throughout her treatment of R.H., his
statements were consistent with his initial disclosure in which he alleged that he
was sexually assaulted multiple times, and that M.G.' s brothers, K.G. and C. G.,
threatened R.H. to keep him from telling anyone what happened.
Sergeant Scott Davis, who previously supervised the Special Victims Unit of
the St. Tammany Parish Sheriff' s Office ( STPSO), testified that he received a call
in January of 2020 from R.H.' s father asking him to review a complaint involving
his son. Prior to that phone call, STPSO Detective Jacob Jenkins was assigned to
the case and conducted the investigation. Although the case was referred to STPSO
on December 8, 2018, no arrest warrant was issued until January of 2020. Absent
any further investigation, Sergeant Davis determined that there was enough
information in the initial report to substantiate a warrant for M.G.' s arrest.
M.G.' s parents both testified during the juvenile' s case -in -chief. M.G.' s
father testified that the family' s home suffered damage from Hurricane Isaac,
which made landfall on August 29, 2012, and which led to the family replacing the
sheetrock in much of the home. Accordingly, for approximately ten months from
late 2012 to 2013, the home was filled with building materials, including sheets of
7
drywall. M.G.' s mother confirmed this time frame. M.G.' s mother also testified
that the " kissing game" occurred sometime in 2012 before a church group meeting,
and that her daughter informed her of it in 2013. M.G.' s parents both testified. to
hosting a church group in the beginning of 2012. M.G.' s mother confirmed that she
posted a photograph to her Facebook page on March 25, 2012 of the church group
meeting held at the family' s home. Three of M.G.' s siblings, M.J. G., K.G., and
C. G., also testified that the " kissing game" occurred prior to a church group
meeting at their home.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence,
one witness' s testimony, if believed by the fact finder, is
sufficient support for a requisite factual conclusion. State v. Robinson, 2002- 1869
La. 4/ 14/ 04), 874 So. 2d 66, 79, cert. denied, 543 U.S. 1023, 125 S. O. 658, 160
L.Ed. 2d 499 ( 2004). It is well settled that, if found to be credible, the testimony of
the victim of a sex offense alone is sufficient to establish the elements of the
offense, even where the State does not introduce medical, scientific, or physical
evidence. State v. Lily, 2012- 0008 ( La. App. 1 st Cir. 9/ 21/ 12), 111 So. 3d 45, 62,
writ denied, 2012- 2277 ( La. 5/ 31/ 13), 118 So. 3d 386. The trier of fact makes
credibility determinations and may, within the bounds of rationality, accept or
reject the testimony of any witness. State v. Casey, 1999- 0023 ( La. 1/ 26/ 00), 775
So. 2d 1022, 1034; see also State v. Mussall, 523 So. 2d 1305, 1310 ( La. 1988).
This court must recognize that the juvenile court judge observed the conduct and
demeanor of the witnesses and was in the best position to determine credibility and
weigh the evidence. See State in the Interest of D. P.B., 846 So. 2d at 760. We
therefore afford great deference to the trier of fact.
In the instant case, the juvenile court specifically stated in its rationale for
adjudicating M.G. delinquent that it found the testimony of [R.H.] " clear, credible,
and consistent[.]" Moreover, a thorough review of the record reveals that R.H. was
8
unequivocal about what happened, where it happened, and how it happened. R.H.' s
statements throughout the investigation and the adjudication hearing were largely
consistent with one another, and were corroborated by R.H.' s mother' s
observations about R.H.' s increased anxiety, panic attacks, and insomnia.
Accordingly, we cannot say that the juvenile court erred in finding R.H. credible.
Having found sufficient evidence to support the juvenile court' s finding that
M.G. sexually assaulted R.H., we now turn to the issue of when the assault
occurred. The juvenile contends that, based on R.H.' s assertion that the incident
occurred in between the two " kissing game" incidents, which occurred prior to a
church group in early 2012, the assault would have occurred around the same time.
M.G. was born on January 25, 2003, meaning that pursuant to this timeline of
events, M.G. was nine years old when the incident occurred.
Louisiana Children' s Code article 804( 3) defines a "[ d] elinquent act" as " an
act committed by a child of ten years of age or older which if committed by an
adult is designated an offense under the statutes or ordinances of this state[.]"
According to the Comments to this section:
The age of ten is provided for consistency as the threshold age
required for prosecution of a child as a delinquent in order to avoid
problems of capacity to commit a crime ( R. S. 14: 13) and to reflect the
fact that an offender under the age of ten is more properly regarded as
a member of a troubled family. When a child under ten is accused of
an offense, the charge can be processed as a family in need of services
case under Title VII or, in the interim, as a child in need of
supervision case under Title VII(A).
The juvenile is correct that the defense introduced evidence that the incident
occurred in early 2012, at which time he would have been nine years old and did
not meet the threshold age required for the commitment of a delinquent act. R.H.
testified that the rape happened at M.G.' s house, behind a piece of drywall, and
that it occurred in between two " kissing games," which occurred a week apart from
one another. M.G.' s family members also testified that the " kissing game"
9
incident occurred prior to a church group meeting at their home in 2012. However,
M.G.' s father testified that the time frame in which the family would have had
pieces of sheetrock in the home was in late 2012 through 2013, after the home
suffered hurricane damage.
C. H., R.H.' s mother, testified that she learned of the " kissing game" incident
in 2014. She explained that M.G.' s family moved into a new trailer in 2015 or
2016, and that she was informed of the " kissing game" while the family lived in
the old trailer. C. H. further testified that R.H.' s panic attacks and other symptoms
began at the same time that the family learned about the " kissing game."
Finally, R.H. testified that the rape occurred when he was six or seven years
old. R.H. was born on January 18, 2007, making the time of the incident 2013 or
2014. M.G. turned ten on January 25, 2013.
When there is conflicting testimony about factual matters, the resolution of
which depends upon a determination of the credibility of the witnesses, the matter
is one of the weight of the evidence, not its sufficiency. The trier of fact' s
determination of weight given evidence is not subject to appellate review. An
appellate court will not re -weigh evidence to overturn a fact finder' s determination
of guilt. State v. Alexander, 2014- 1619 ( La. App. 1st Cir. 9/ 18/ 15), 182 So. 3d
126, 131, writ denied, 2015- 1912 ( La. 1/ 25/ 16), 185 So. 3d 748. Although evidence
of age is necessary for jurisdictional purposes, it is not an essential element of the
delinquent act" which must be proven beyond a reasonable doubt. It is only the
alleged " offense" which the child is accused of committing that need be proven
beyond a reasonable doubt. State in the Interest of Lewis, 386 So. 2d 1079, 1087
La. App. 3d Cir. 1980).
We find that, in the light most favorable to the prosecution, a rational trier of
fact could have found that R.H.' s statements established that M.G. committed first
degree rape by engaging in anal sex with R.H., who was under the age of thirteen.
10
The district court was entitled to rely on the testimony of R.H. to adjudicate M.G.
delinquent, and we defer to the juvenile court' s determination of each witness' s
credibility. Additionally, although there was conflicting testimony as to when the
incident occurred and as such, M.G.' s age at the time of the incident, we find that
the State presented substantial and credible evidence that the incident occurred
sometime around 2013 or 2014, when M.G. was over the age of ten and thus
capable of committing a delinquent act. Therefore, we find that these combined
assignments of error lack merit.
412 EVIDENCE ADMISSIBILITY
In the juvenile' s first and second assignments of error, he asserts that the
juvenile court erred in excluding portions of C.G.' s testimony pursuant to La. Code
Evid. art. 412, and erred in including portions of C. G.' s testimony in the proffered
testimony where those portions were not objected to by the State.
Prior to the adjudication hearing, the State filed a motion in limine to
exclude any evidence of allegations of sexual assault made against R.H., the
victim. The juvenile filed a motion for an in camera review of evidence regarding
sexual activity between R.H. and C. G., M.G.' s younger brother. Specifically, C. G.
reported during the course of the investigation that he and R.H. had a sexual
encounter while he was sleeping over at R.H.' s house. C. G. stated that the two
boys masturbated together, and then engaged in anal sex with one another. C. G,
stated that he was not able to penetrate R.H. because he was " only half hard" but
that R.H. was able to penetrate him. C. G. further reported that he confronted R.H.
about their previous sexual activity while they were on the camping trip in
December of 2018, stating that it made him uncomfortable and that he did not want
to do it again, to which R.H. agreed. Later that same day, R.H. disclosed for the
first time that he was raped by M.G. The juvenile then filed a memorandum in
opposition to the State' s motion in limine, arguing that La. Code Evid. art. 412 was
11
inapplicable to the offered evidence pursuant to State v. Smith. 4 The trial court
deferred ruling on these motions prior to the adjudication hearing, in order to better
assess the purpose for which the evidence might be used.
At the adjudication hearing, C. G. testified to the sexual conduct between
himself and R.H., at which point the State objected on the grounds that the
testimony was inadmissible La. Code Evid. art. 412 evidence. M.G. argued that the
purpose of the testimony was to impeach R.H.' s credibility, where the encounter
between C. G. and R.H. was similar to R.H.' s allegations against M.G., and where
R.H. might have invented the story against M.G. in order to avoid any potential
repercussions for C. G. and R.H.' s behavior. The juvenile court sustained the
State' s objection, stating:
I have withheld on whether or not this was 412 versus non 412 or
nonadmissible [ sic] under 412 versus otherwise admissible under
State v. Smith] and its progeny. I rule that it is not evidence of a false
allegation of sexual conduct on the part of the alleged victim, and I
also rule that it is not admissible in the time context in which it was
disclosed. Thus, I exclude, and sustain the objection.
The court ordered that C.G.' s remaining testimony be in the form of proffer
testimony. In the proffered testimony, C. G. reiterated that he spoke to R.H. about
their encounter during the camping trip and told him that he did not want to do it
again.
Louisiana Code of Evidence article 412( A)( 1) provides that "[ w]hen an
accused is charged with a crime involving sexually assaultive behavior, reputation
or opinion evidence of the past sexual behavior of the victim is not admissible."
This provision is subject to two narrow exceptions: when the evidence is used to
determine whether or not the accused was the source of either semen or injury, or
when the evidence is offered by the accused to demonstrate the victim' s consent to
4 In State v. Smith, 98- 2045 ( La. 918199), 743 So. 2d 199, 202- 03, the Louisiana Supreme Court
held that La. Code Evid. art. 412 is inapplicable in sexual assault cases where defendant seeks to
question witnesses regarding the victim' s prior false allegations concerning sexual behavior for
impeachment purposes.
12
the behavior. La. Code Evid. art. 412( A)(2)( a) and ( b). Before an accused can offer
evidence under these exceptions, the accused shall make a written motion in
camera to offer such evidence. The motion shall be accompanied by a written
statement of evidence setting forth the names and addresses of persons to be called
as witnesses. La. Code Evid. art. 412( C)( 1). Louisiana Code of Evidence article
412( D) provides that the motion shall be made within the time for filing pre-trial
motions specified in La. Code Crim. P. art. 5215 unless:
1) The evidence is of past sexual behavior with the accused, and the
accused establishes that the motion was not timely made because of
an impossibility arising through no fault of his own; or,
2) The evidence is of past sexual behavior with someone other than the
accused, and the accused establishes that the evidence or the issue to
which it relates is newly discovered and could not have been obtained
earlier through the exercise of due diligence.
The juvenile stipulated that C. G. disclosed this encounter with R.H. on the
26th or 27th of August, 2021. However, the juvenile' s motion for an in camera
review of the proposed testimony was not filed until April 15, 2022, only ten days
prior to the adjudication hearing, which began on April 25, 2022. The record
reflects that the juvenile did not follow the requirements of La. Code Evid. art.
412( 0) and ( D) by making a written motion for an in camera review of the
proposed evidence relating to the past sexual behavior of the victim within the time
of filing for pre- trial motions. Rather, even though the original petition was filed in
this matter in March of 2021 and the information was known to the juvenile in
August of that same year, the juvenile waited until ten days prior to the
adjudication hearing to notify the court of the proposed evidence. Accordingly, we
find that the juvenile' s motion was procedurally untimely, and the juvenile court
was correct in granting the State' s objection to the evidence on these grounds. See
State v, Kinsel, 2000- 1610 ( La. App. 5th Cir. 3/ 28/ 01), 783 So. 2d 532, 538, writ
5 La. Code Crim. P. art. 521( A) provides that "[ p] retrial motions shall be made or filed within
thirty days after receipt of initial discovery, unless a different time is provided by law or fixed by
the court upon a showing of good cause why thirty days is inadequate."
13
denied, 2001- 1230 ( La. 3/ 28/ 02), 812 So. 2d 641; State v. Billings, 93- 1542 ( La.
App. 3d Cir. 5/ 4194), 640 So. 2d 500, 501, writ denied, 94- 1437 ( La. 10/ 7/ 94), 644
So. 2d 631, citing Michigan v. Lucas, 500 U.S. 145, 149, 111 S. Ct. 1743, 1746,
114 L.Ed.2d 205 ( 1991) ( upholding the constitutionality of the notice and hearing
requirements of Michigan' s rape shield statute, even though such requirements
may diminish a criminal defendant' s right to present relevant evidence).
M.G. further contends that the juvenile court erred in including certain
portions of C. G.' s testimony in C.G.' s proffered testimony where those portions
were not objected to by the State. A thorough review of C.G.' s proffered testimony
indicates that the juvenile is incorrect in his assertion that information contained in
the proffer transcript " was not objected to and was not testimony of any sexual
conduct between C. G. and R.H." In the portion of the transcript referenced by
M.G., C. G. testified to his conversation with R.H. regarding their previous sexual
encounter and C.G.' s feelings about what happened. Accordingly, the testimony
involves evidence of R.H.' s past sexual behavior and is therefore inadmissible
pursuant to La. Code Evid. art. 412. For these reasons, we find that the arguments
raised by the juvenile in his first and second assignments of error are without merit.
TIMELY ADJUDICATION
In his fifth and sixth assignments of error, M.G. asserts that the juvenile
court erred in granting the State' s motion to continue the adjudication hearing and
in denying M.G.' s motion to dismiss the adjudication as untimely under La. Ch.
Code art. 877.
The Louisiana Children' s Code explicitly provides time limitations within
which the State must adjudicate juvenile delinquency matters. La. Ch. Code art.
877( B) states that "[ ilf the child is not continued in custody, the adjudication
hearing shall commence within ninety days of the appearance to answer the
petition." If the hearing is not timely commenced, " upon motion of the child, the
14
court shall release a child continued in custody and shall dismiss the petition." La.
Ch. Code art. 877( C). However, La. Ch. Code art. 877( D) provides that "[ fJor good
cause, the court may extend such period." The time limits in La. Ch. Code art. 877
are mandatory and may not be extended absent a showing of good cause. It is
incumbent upon the State to make a showing of good cause and obtain an
extension before the period has run. State in the Interest of J.M., 2013- 2573 ( La.
12/ 9/ 14), 156 So. 3d 1161, 1163. As the term is used in the Children' s Code, " good
cause"
is determined on a case- by- case basis and must be fully supported in the
record. State in the Interest of L.D., 2014- 1080 ( La. 10/ 15/ 14), 149 So. 3d 763,
765 ( per curiam).
In considering what constitutes good cause, juvenile judges
should not apply a draconian definition. Rather, the judge should be mindful of
those situations where defense motions or causes beyond the control of the State
may impinge on its ability to prepare for the hearing. See State in the Interest of
R.D. C., Jr., 93- 1865 ( La. 2/ 28/ 94), 632 So. 2d 745, 749.
In the instant case, M.G. personally appeared to answer the petition on April
19, 2021. Because he was not in continued custody, the hearing should have
commenced within ninety days from that date, or July 19, 2021. However,
following a request for a defense continuance and upon agreement by both the
State and M.G., an initial hearing was set for August 30, 2021. However, on
August 29, 2021, Hurricane Ida made landfall in Louisiana and the adjudication
hearing was reset. A pre- trial conference was held on September 27, 2021, at
which point both parties agreed to a new hearing date of January 20, 2022.
However, on January 10, 2022, the State filed a motion to continue the January 20,
2022 hearing date, to which M.G. objected. Following a hearing on January 13,
2022, the juvenile court continued the matter and a hearing date was ultimately set
for April 25, 2022. M.G. then filed a motion to dismiss the petition, which the
juvenile court denied.
15
The State' s basis for seeking a continuance on January 10, 2022 was that it
was "
unable to prepare for trial due to an ongoing investigation by St. Tammany
Parish Sheriff' s [ O] ffice of allegations made against R.H., the alleged victim[,]" by
C. G., the juvenile' s younger brother. The State alleged that, while conducting a
witness interview of C. G. on August 26, 2021, C. G. alleged that R.H. anally
penetrated him. The State relayed this accusation to the sheriffs office, who
opened an investigation which was ongoing at the time that the motion to continue
was filed. Noting delays in the ongoing investigation caused by Hurricane Ida,
staffing issues, and the holiday season, as well as the delayed disclosure of the
allegation and that a person accused of delinquent or criminal behavior has
attendant rights, the State maintained that it was unable to prepare for adjudication
on the instant issue and requested a continuance pending completion of the
investigation.
According to the hearing transcript, the juvenile conceded that there was
some substantive basis for [ the continuance] motion,"
but argued that a delay
would not necessarily cure those concerns. The juvenile court ultimately granted
the continuance over the juvenile' s objection, finding " good cause based upon the
motion itself." The adjudication was reset to March 14, 2022.
On April 20, 2022, the juvenile court heard M.G.' s motion to dismiss the
petition pursuant to La. Ch. Code art. 877. The juvenile court denied the motion,
citing State in the Interest of M.P., 2020- 00567 ( La. 1114120), 303 So. 3d 622 ( per
curiam),
and finding that the January 2022 continuance granted to the State was
done in the best interest of the juvenile, and to accommodate the schedule of both
the juvenile and defense counsel.
In State in the Interest of M.P., the Louisiana Supreme Court reviewed the
lower court' s ruling reversing the juvenile court and dismissing the adjudication as
untimely. State in the Interest of M.P, 303 So. 3d at 622- 23. There, the
16
adjudication was continued several times until it finally occurred nearly seven
months after the juvenile answered the petition. However, while the juvenile
objected to the continuances and findings of good cause, the juvenile never sought
supervisory review of those adverse rulings, nor did the juvenile file a motion to
dismiss, as required by La. Ch. Code art. 877( 0). Accordingly, the court found that
the appellate court erred in reversing the juvenile court and reinstated the juvenile
court' s adjudication and disposition. Id.
In the instant case, the juvenile objected to the State' s January 2022
continuance and filed a motion to dismiss, but did not object to the juvenile court' s
denial of the motion to dismiss and did not seek supervisory review. Moreover, the
record reflects that after the juvenile court granted the State' s continuance and set
an adjudication date in March of 2022, the juvenile agreed to yet another
continuance until April 2022.
We believe that the juvenile' s acquiescence to multiple continuances,
coupled with the juvenile court' s findings that the State' s motion to continue
established good cause for a continuance and that a continuance was in the best
interest of the juvenile and necessary to accommodate both the State and the
juvenile, is sufficient to support a finding of good cause as required by La. Ch.
Code art. 877( D). In so doing, we give deference and validity to the actions of the
juvenile court judge, who concluded it necessary to continue the adjudication
hearings. It can be reasonably assumed that because the juvenile court judge found
the continuance to be supported by the State' s motion, the judge had good cause
and did not continue the hearing date indiscriminately or arbitrarily. See State in
the Interest of D.M., 2012- 787 ( La. App. 5th Cir. 5130113), 119 So. 3d 763, 767,
writ denied, 2013- 1562 ( La. 217/ 14), 131 So. 3d 853. Moreover, because the
juvenile court established good cause to grant the State' s January 2022 continuance
and set the adjudication hearing outside the 90 -day limit established by La. Ch.
17
Code art. 877( B), the juvenile court did not err in denying the juvenile' s motion to
dismiss the petition. Therefore, we find that these combined assignments of error
raised by the juvenile are without merit.
DENIAL OF POST -TRIAL MOTIONS
In the juvenile' s seventh, eighth, and ninth assignments of error, he asserts
that the juvenile court erred in denying his motion in arrest of judgment, motion to
vacate adjudication, and motion for acquittal.
Although the juvenile' s brief lists the above -referenced assignments of error,
the brief contains no argument pertaining to these assignments, nor does it contain
any citations to the record or any relevant legal authority. Pursuant to Rule 2-
12. 4( B)( 4) of the Uniform Rules of Louisiana Courts of Appeal, all specifications
or assignments of error must be briefed, and the appellate court may consider as
abandoned any specification or assignment of error that has not been briefed.
Similarly, "[ t]he court may disregard the argument on an assignment of error or
issue for review if suitable reference to the specific page numbers of the record is
not made." Uniform Rules of Louisiana Courts of Appeal, Rule 2- 12. 4( B)( 3); see
also State v. Jarvis, 2021- 1181 ( La. App. 1st Cir. 2125122), 340 So. 3d 1137, 1141-
42 (" A mere statement of an assigned error in brief without argument or citation of
authority does not constitute briefing."). Thus, we consider these assignments of
error abandoned and the assignments of error are without merit. Accordingly, the
juvenile' s adjudication and disposition are hereby affirmed.
ADJUDICATION AFFIRMED; DISPOSITION AFFIRMED.
18
STATE OF LOUISIANA FIRST CIRCUIT
IN THE INTEREST COURT OF APPEAL
OF M.G. STATE OF LOUISIANA
0 NO. 2022 IBJ 1205
CHUTZ, J., dissenting.
The record in this matter does not establish the district court had subject matter
jurisdiction to adjudicate M.G. as a delinquent child, because the evidence does not
establish by a preponderance of the evidence, much less beyond a reasonable doubt,
that M.G. was ten years of age at the time of the alleged delinquent act! Louisiana
Children' s Code article 102 provides, " The provisions of this Code shall be liberally
construed to the end that each child and parent coming within the jurisdiction of the
court shall be accorded due process ...." ( Emphasis added.) Louisiana Children' s
Code article 303( A) provides, in pertinent part, " A court exercising juvenile
jurisdiction shall have exclusive original jurisdiction over: ( 1) Delinquency
proceedings pursuant to Title VIII," as set forth in La Ch. Code articles 801, et seq.
La. Ch. Code art. 801. provides:
The purpose of this Title is to accord due process to each child
who is accused of having committed a delinquent act and ensure that
he shall receive, preferably in his own home, the care, guidance, and
control that will be conducive to his welfare and the best interests of the
state and that in those instances when he is removed from the control
of his parents, the court shall secure for him care as nearly as possible
equivalent to that which the parents should have given him."
Emphasis added).
La. Ch. Code art 804 provides, in pertinent part,
As used in this Title:
1)( Child" means any person under the age oftwenty- one, including
a) "
an emancipated minor, who commits a delinquent act before attaining
seventeen years of age.
1 Louisiana Children' s Code article I04 provides, in pertinent part: " Where procedures are not
provided in this Code, or otherwise by law, the court shall proceed in accordance with: ( t) The
Code of Criminal Procedure in a delinquency proceeding ...."
Delinquent act" means an act committed by a child of ten years of
3) "
age or older which if committed by an adult is designated an offense
under the statutes or ordinances of this state, or of another state if the
offense occurred there, or under federal law, except traffic violations....
4) " Delinquent child" means a child who has committed a delinquent
act.
Emphasis added).'
In order for the court to adjudicate a child delinquent, the state must prove
beyond a reasonable doubt that the child committed a delinquent act alleged in the
petition. La. Child. Code Ann. art. 883. The burden of proof, beyond a reasonable
doubt, is no less severe than the burden of proof required in an adult proceeding.
State in Int. of T. B., 2020- 0929 ( La. App. 1 Cir. 2119121), 320 So. 3d 1143, 1150.
With regard to M.G.' s age at the time of the alleged delinquent act, the
amended complaint alleges that M.G. " during the time period of January 26, 2013
through January 24, 2017" did commit aggravated rape upon R.H. M.G.' s date of
birth was January 25, 2003, so in order for him to have been ten years of age or older
at the time of the alleged delinquent act, the act would have had to take place after
January 26, 2013. As the majority notes, R.H. testified the " rape" occurred between
two " kissing game" incidents that took place on separate days at M.G.' s house.
According to the testimony of various family members of both R.H. and M.G., the
families gathered together before various small group church meetings, of which one
or more took place at M.G.' s parents' home. According to the record, the small group
z The Comments to Article 804(3) relevantly provide, as follows:
The age of ten is provided for consistency as the threshold age required for
prosecution of a child as a delinquent in order to avoid problems of 'capacity to
commit a crime ( R. S. 14. 13) and to reflect the fact that an offender under the age
often is more properly regarded as a member of a troubled family. When a child
under ten is accused of an offense, the charge can be processed as a family in need
of services case under Title VII or, in the interim, as a child in need of supervision
case under Title VII(A).
Emphasis added.)
2
meetings that M.G.' s family participated in occurred during 2012. R.H. testified that
he visited M.G.' s house about once a week and " it was a few days after the first butt
kissing event" that M.G. raped him behind a piece of sheet rock. If the alleged
delinquent act occurred in 2012, as this testimony supports, M.G. was nine years old
when the act occurred.
Because R.H. described that the delinquent act took place behind a piece of
sheet rock at M.G.' s parents' house, some of the testimony focused on the period of
time within which repair work was being done on the house following Hurricane
Isaac. M.G.' s father testified the hurricane caused damage in August 2012, and the
repairs were completed by September 2013. No testimony establishes the precise
date within this time period on which the alleged delinquent act occurred. While
R.H. testified at one point that he was " around six," he also testified that he did not
know " what age" he was when the " rape occurred."' This testimony alone is not
sufficient to establish that M.G. was ten years old at the time of the alleged
delinquent act.
While the majority references the testimony of C. H., R.H.' s mother, to support
a conclusion that the "`` kissing game' incident[ s] occurred in 2014," rather than in
2012, a close reading of her testimony reveals merely that C.H. learned of the kissing
games in 2014. Her testimony does not support a finding that the " kissing game"
incidents or the alleged delinquent act actually occurred in 2014. The record as a
whole demonstrates that the parents did not learn of the " kissing game" incidents
until 2014, and because R.H. did not report the " rape" until 2018, they had no
knowledge of the alleged delinquent act until then.
Even when considering the record evidence in the light most favorable to the
prosecution, a rational trier of fact could not have concluded that M.G. was ten years
3 R.H.' s date of birth was January 18, 2007, establishing he was four years younger than M.G.
3
old at the time of the incident. Thus, the record does not establish that a " delinquent
act" occurred. The district court' s delinquency adjudication and the majority' s
affirmation do not afford due process to MG. As such, I would reverse the
delinquency adjudication.
4