
    STATE of Louisiana in the Interest of C.J.
    No. 2014-CA-0241.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 2014.
    Opinion on Rehearing for Clarification Sept. 3, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Mithun Kamath, Law Clerk, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant.
    
      (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge SANDRA C. JENKINS).
   EDWIN A. LOMBARD, Judge.

|,The juvenile, C.J., appeals his adjudication as a delinquent, arguing that the evidence is insufficient, the sentences were imposed without the requisite disposition hearing, and the fee assessed exceeds the statutory maximum. After review of the record in light of the applicable law and arguments of the parties, we affirm the juvenile’s adjudication, but vacate the sentences and fee imposed and remand the matter back to the trial court for a disposition hearing in accordance with La. Ch. Code art. 892.

Relevant Facts and Procedural History

On June 10, 2018, the fourteen-year old juvenile was arrested and removed from Odyssey House (where he had been sent by court order to receive substance abuse treatment) after Jerry Glen Estopinal, principal/teacher at Odyssey House Academy, saw him strike another juvenile (C.E.) three times on the back of the head and then, after being removed from the area to speak with a counselor, return and slap another juvenile (on the back of the head). The purported victims did not give a statement to the arresting officer.

On June 19, 2013, the juvenile was charged by petition with two counts of simple battery, a violation of La.Rev.Stat. 14:35. Represented by counsel, he |2denied the charges. On motion by defense counsel and in accordance with La. Ch.Code art. 834, the juvenile court appointed a competency commission. Based on the reports of the commission members, the court determined on February 4, 2014, that the juvenile was competent to proceed. On that same date, the court set and held the adjudication hearing. The following evidence was adduced.

The only witness, Mr. Estopinal, testified that on the morning of the incident C.J. walked into the cafeteria (where the resident students were gathered before beginning their group therapy sessions), approached C.E. and struck him on the head three times. According to Mr. Estopinal, C.E. “screamed a little bit and winced in pain and complained and held his head” after C.J. struck him. The counselor separated the students, taking C.J. out of the cafeteria. After five to ten minutes, C.J. returned alone to the cafeteria and “punched the other student [J.B.] in the back of the head ... once or twice, maybe three times.... ” According to Mr. Esto-pinal, the attack was unprovoked and J.B. “just sort of grabbed his head and winced and went over like that and kind of cried and complained.” The police were called and C.J. was arrested. On cross-examination, Mr. Estopinal stated that he had no knowledge of prior confrontations of C.J. and C.E. or J.B.

At the end of Mr. Estopinal’s testimony, alleging that the State failed to meet its burden of proof, defense counsel moved for a judgment of acquittal. The motion was denied and both sides rested without further testimony. Defense counsel again asserted in closing argument that the State failed to meet its burden because it put forth no evidence that the victims did not consent to the battery and, alternatively, because Mr. Estopinal could not testify as to what happened between |3the boys (who shared a dorm room) prior to the incident there was no evidence that C.J. did not act in self-defense.

After a brief recess, the juvenile was adjudicated delinquent as to both counts of simple battery. The trial court immediately sentenced the juvenile to concurrent six month commitments to the Department of Public Safety and Corrections, suspended the sentence and placed the juvenile on one-year active probation under the supervision of the Office of Juvenile Justice. In addition, the juvenile court ordered that the “parents are accessed a $55.00 fee....”

This appeal is timely.

Assignment of Error No. 1

The juvenile argues that the court erred in adjudicating him delinquent “merely upon an observance of an aggressive act.”

Battery is defined as “the intentional use of force or violence upon the person of another.” La.Rev.Stat. 14:33. “Simple battery is a battery committed without the consent of the victim.” La.Rev.Stat. 14:35. The juvenile asserts that because the victims did not testify the State faded to prove the victim’s non-consent and “[i]n this case, the simple slaps were not egregious injuries warranting an automatic invalidation of consent.”

Consent is defined as the “Agreement, approval, or permission as to some act or purpose.” Black’s Law Dictionary 323 (8th ed. 2004). Consent may be express, i.e., “clearly and unmistakably stated,” or implied, ie., “inferred from one’s conduct.” Id.

The juvenile’s argument is without merit. The response of the two victims in this case, as observed and testified to by Mr. Estopinal, was clearly neither explicit nor implied. Both victims reacted with pain and complaints. Given our | Jimited role in viewing the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. KM., 10-0649, pp. 4-5 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463-464, we must find that the evidence is sufficient to support the juvenile’s adjudication on both counts of simple battery.

Assignment of Error No. 2

The juvenile argues that the court erred in failing to conduct the required disposition hearing and in assessing an excessive fee. We agree.

Pursuant to La. Ch.Code art. 892, the court “shall conduct a disposition hearing” prior to entering a judgment of disposition. Although “[t]he disposition hearing may be conducted immediately after the adjudication,” La. Ch.Code art. 892, “unless the child waives a presentation, the court shall hear evidence as to whether the child is in need of treatment or rehabilitation and shall make and file its findings.” La. Ch. Code art. 893.

There is no indication in the record that the juvenile waived a presentation in this case. The transcript reveals that immediately after adjudicating him delinquent, the court imposed sentence. The record indicates that the child has serious emotional issues, including a suicide attempt in the intervening months between arrest and adjudication, but the court articulated no oral or written reasons for its disposition and, thus, apparently did not consider whether the juvenile is in need of treatment as mandated by La. Ch.Code art. 893. In addition, the $55.00 fee assessed is in excess of that authorized by La.Rev. Stat. 13:1595.2. Accordingly, the disposition is vacated.

1RConclusion

The juvenile’s adjudication is affirmed, but we vacate the disposition (sentences and fee) and remand the matter back to the juvenile court for a disposition hearing in accordance with La. Ch.Code art. 893 and assessment of fees authorized by La. Rev.Stat. 18:1595.2

ADJUDICATION AFFIRMED; DISPOSITION VACATED; REMANDED.

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons.

|,I respectfully dissent from the majority in that I find the State failed to establish “lack of consent,” an element of simple battery, beyond a reasonable doubt. “While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature ... Because delinquency proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts.” State ex rel D.R., 10-0405, p. 5 (La.App. 4 Cir. 10/18/10), 50 So.3d 927, 930 (citations omitted). Thus, on appellate review, this Court applies the clearly wrong or manifest error standard of review in juvenile cases. Id., 10-0405, p. 9, 50 So.3d at 932. Additionally, “in order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. Art. 883.

The trial court adjudicated C.J. a delinquent for two counts of simple battery, a violation of La. R.S. 14:35. Lack of consent is an element of the offense and pursuant to La. Ch. C. Art. 883 must be established beyond a reasonable doubt. The State claims that under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standards the circumstantial evidence, namely Mr. Estopinal’s testimony, was sufficient for the trial court to adjudicate C.J. a delinquent.

LThe only evidence presented was that of Mr. Estopinal, who admitted that he had no knowledge of the interaction among the juveniles. He was only able to testify as to his observations, but could not state what led to the interaction or what may have provoked it. He testified that at the time he was trying to supervise all the juveniles and prepare for group therapy. Thus, Mr. Estopinal’s speculating that “nothing that particular day” incited the incident simply because he did not observe anything falls short of the beyond a reasonable doubt burden of proof. Additionally, although immediately after the victims complained about the slaps, neither filed a complaint nor provided a statement to the arresting officer. Likewise, neither victim testified at trial to offer an account of what led or may have provoked the incident.

I find Mr. Estopinal’s testimony alone insufficient to establish beyond a reasonable doubt that the alleged battery was committed without consent. For these reasons, I find the trial court erred in adjudicating C.J. a delinquent for two counts of simple battery. Considering I find the evidence insufficient to prove beyond a reasonable doubt simple battery, I find the disposition hearing issue moot.

ON APPLICATION FOR REHEARING

(Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge . SANDRA C. JENKINS).

EDWIN A. LOMBARD, Judge.

_JjOn application for rehearing, counsel for the juvenile correctly points out that the standard of review in a juvenile proceeding is a dual one. Although the State’s burden of proof in a juvenile proceeding is the same as in a criminal proceeding, delinquency proceedings are civil in nature and our scope of review extends to both law and facts. State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979). As such, however, “a factual finding made by a trial court in a juvenile adjudication may not be disturbed by an appellate court unless the record evidence as a whole does not furnish a basis for it, or it is clearly wrong.” State in the Interest of J.J., 13-0548, pp. 2-3 (La.App. 4 Cir. 9/25/13), 125 So.3d 1248, 1250; see also In re A.J.F., 00-0948 (La. 6/30/00), 764 So.2d 47, 61 (“an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong”); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (“if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would, have weighed the evidence differently”). Thus, even where there are two permissible views of the evidence, the fact finder’s choice cannot be clearly wrong and an appellate court may not substitute its opinion for that of the juvenile court | ¿judge “who is in the unique position to see and hear the witnesses as they testify.” In re A.J.F., 764 So.2d at 62.

As previously narrated, Mr. Estopinal testified that C.J. walked into the cafeteria and struck C.E. on the head three times and then, after being removed for five to ten minutes, returned and punched J.B. in the back of the head “once or twice, maybe three times;” both C.E. and J.B. reacted in pain and, according to Mr. Estopinal, the attack was unprovoked. Although appellate counsel suggests that there may have been a prior provocation in a shared dorm room, the defense presented no evidence relating to a prior provocation at the delinquency hearing and, contrary to appellate counsel’s suggestion, the burden was not on the State to prove the absence of any prior provocation.

Accordingly, because we were remiss in omitting reference to the civil standard of review, we grant rehearing for the limited purpose of iterating that under both the “rational fact-finder” (criminal) standard of Jackson v. Virginia and the “clearly wrong-manifest error” (civil) standard of Rosell v. ESCO, the testimony of Mr. Es-topinal supports the trial court judgment adjudicating the juvenile a delinquent.

REHEARING GRANTED FOR CLARIFICATION ONLY.

LOVE, J., dissents and assigns reasons.

LOVE, J., dissents and assigns reasons.

hi respectfully dissent from the majority’s granting of rehearing for clarification only. I would grant the application for rehearing and reverse the trial court’s ruling finding C.J. a delinquent in violation of La. R.S. 14:35. 
      
      . As is customary, juveniles are referred to only by initials.
     