49 So. 3d 460

La. Ct. App.

2010

49 So.3d 460 (2010)

STATE of Louisiana in the Interest of K.M.

No. 2010-CA-0649.

Court of Appeal of Louisiana, Fourth Circuit.

September 29, 2010.

*461 Lеon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for The State of Louisiana.

*462 Joshua Perry, Juvenile Regional Services, New Orleans, LA, for Appellee.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge PAUL A. BONIN).

TERRI F. LOVE, Judge.

K.M. appeals the judgment of the Juvenile Court for the Parish of Orleans, adjudiсating K.M. delinquent on the charge of illegal carrying of a weapon. We find no error in the juvenile court's adjudication of K.M. delinquent. We find no error in the trial court's denial of the motion to dismiss. We further find that the motion to suppress was properly denied, as the police officer had reasonable suspicion that K.M. was trespassing on school property and had authority to seize the knife pursuant to the plain view doctrine and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

On November 13, 2009, K.M. was charged by delinquency petition with violating one count of La. R.S. 14:95, relative to the illegal carrying of a weapon. K.M. denied the charge and appeared for an adjudication hearing on January 27, 2010.

Prior to hearing the merits, the trial court denied K.M.'s motion to dismiss, which was based on the assertion that La. R.S. 14:95 is unconstitutional on its face. Proceeding with the merits, the trial court heard testimony from the arresting officer, Sergeant Mark Joseph. Sgt. Joseph testified that on November 6, 2009, at approximately 3:40 p.m., he was working a paid security detail for O. Perry Walker High School, a position he held for over two years. Sgt. Joseph stated that he observed K.M. and two other females outside of the school in the "common area" between O. Perry Walker and Delgado Community College, which is also the dismissal area for the O. Perry Walker students. He explained that some of the area belongs to Delgado and some to O. Perry Walker, but that K.M. was on O. Perry Walker рroperty. When questioned further regarding K.M.'s exact location, Sgt. Joseph stated that he observed K.M. and the two females walk from the Delgado parking lot onto O. Perry Walker property.

Sgt. Joseph stated that he approached the three females because they were not wearing a school uniform. He explained that it was customary practice that students who are not in O. Perry Walker uniforms are not allowed on campus. Sgt. Joseph inquired why the females were there; they stated they were waiting on an O. Perry Walker student. Sgt. Joseph asked fоr identification; the other two females produced identification, but K.M. claimed she did not have proof of identification. At that time, K.M. voluntarily opened her purse (apparently to show Sgt. Joseph that she did not have identification), revealing a knife. Sgt. Joseph explainеd that he was standing within an arm's reach of K.M. and could see right into her purse. Sgt. Joseph took possession of the knife, which had a reddish-brown substance on the blade, and placed K.M. under arrest. Sgt. Joseph stated that K.M. had possession of the purse, which he described as a large shоulder bag, the entire time he observed her. At trial, Sgt. Joseph made a positive identification of K.M. and the knife.

Kevin Comeaux, Dean of Students at O. Perry Walker, was called to testify on behalf of K.M. Mr. Comeaux testified that he was not present when Sgt. Joseph initially stopped K.M. Consequently, hе could not say whether K.M. was on O. Perry Walker property or Delgado property at the time. Mr. Comeaux could only confirm *463 that he saw a police squad car in the Delgado ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍parking lot when he came on the scene.

Following the testimony, the trial court denied K.M.'s motion tо suppress physical evidence, i.e., the knife, and adjudicated K.M. guilty as charged. On February 24, 2010, K.M. was committed to the Department of Public Safety and Corrections for a period of time not to exceed six months. The sentence was suspended, and K.M. was placed on inactivе probation for six months. K.M.'s timely appeal followed.

On appeal, K.M. asserts three assignments of error: 1) The trial court erred in denying K.M.'s motion to dismiss, which asserted that La. R.S. 14:95 is unconstitutional on its face; 2) The trial court erred in adjudicating K.M. delinquent absent proof beyond a reasonable doubt; and 3) The trial court erred in denying K.M.'s motion to suppress physical evidence.

MOTION TO DISMISS

La. R.S. 14:95(A) lists five circumstances meeting the definition of illegal carrying of a weapon. The circumstance applicable to this case is set forth in La. R.S. 14:95(A)(1), which includes the definition of illegal cаrrying of a weapon as "[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person."

K.M. argues that the statute, as written and as applied to K.M., is unconstitutional becаuse it allows proof of the criminal intent element by preponderance, rather than beyond reasonable doubt. More specifically, K.M. maintains that the statute would allow a conviction on a mere showing that K.M. probably intended to use the knife as a dangerous weapon rather than that she intended beyond a reasonable doubt to use the knife as a dangerous weapon. We find no merit in this assignment of error.

As a general rule, statutes are presumed to be constitutional; therefore, the party challenging the validity of a statute has the burden of proving its unconstitutionality. City of New Orleans v. Louisiana Assessors' Retirement and Relief Fund, 2005-2548, (La.10/1/07), 986 So.2d 1. In the present case, K.M. has offered no such proof. The fact that La. R.S. 14:95 contains the language "intended for probable use as a dangerous weapon" does not diminish the requirement that the State рrove all elements of the charged offense beyond a reasonable doubt. Accordingly, and considering the discretion afforded the trial court in dismissing matters for good cause under La. Ch.C. art. 876, we find no error in the trial court's denial of the motion to dismiss.

ADJUDICATION OF DELINQUENT

The State's burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍against an adult, is to prove every element of the offense alleged beyond a reasonable doubt. State in the Interest of W.B., 2008-1458, (La.App. 4 Cir. 4/22/09), 11 So.3d 60, 61; La. Ch.C. art. 883. Likewise, in juvenile proceedings the appellate court grants deference to the trier-of-fact that observed the demeanor of the witnesses and was in the best position to determine credibility and the weight to be given the evidence. State in Interest of J.N., 2007-1229 (La.App. 4 Cir. 5/7/08), 984 So.2d 910.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whеther, 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 *464 560 (1979). The 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. 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, p. 9 (La.6/29/01), 796 So.2d 649, 657, citing State v. Captville, 448 So.2d 676, 678 (La. 1984). This 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.

La. R.S. 14:95 provides, in pertinent part:

A. Illegal carrying of weapons is:

(1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person.

La. R.S. 14:2(3) defines "dangеrous weapon" as "any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." The term "dangerous weapon" is not limited to those instrumentalities which are inherently dangerous, but includes any instrumentality which in the manner used, is calculated or likely to produce death or great bodily harm. State v. Bonier, 367 So.2d 824, 826 (La.1979); See also State in the Interest of Ruschel, 411 So.2d 1216 (La. App. 4 Cir.1982); State v. Ragas, 2007-3 (La.App. 5 Cir. 5/15/07), 960 So.2d 266. Moreover, it is well established that the "dangerousness" of the instrumentality by reason of the manner in which it is used is a question for the trier of fact. Bonier, 367 So.2d at 826, citing State v. Murff, 215 La. 40, 39 So.2d 817, 823 (1949).

In State v. Fluker, 311 So.2d 863, 866 (La.1975), the Louisiana Supreme Court enunciated the appropriate test to be applied in prosecutions for illegal carrying of weapons, that is, "under the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍facts and circumstances of the case as disclosed by the evidence, the manner in which defendant carried the weapon evinced an intent to conceal its identity."

Sgt. Joseph asked K.M. for identification. After K.M. stated that she did not have identification, she voluntarily opened her large purse and revealed a knife. Sgt. Joseph testified that he could see into her purse, and he took possession of the knife and placed K.M. under arrest. We find that thе trial court was presented sufficient evidence to find that the manner in which K.M. carried the knife in her purse evinced intent to conceal the knife's identity.

Under the circumstances presented in the case sub judice, we find no error in the trial court's determination that the knife in K.M.'s possession was considered a dangerous weapon.

MOTION TO SUPPRESS

Trial courts are vested with great discretion when ruling on motions to suppress. Consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Long, 2003-2592 (La.9/9/04), 884 So.2d 1176.

The right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Atkins, 2005-0823 (La.App. 5 Cir. 3/14/06), 926 So.2d 591. The requirements for a valid Terry stop and for any search *465 incident to the stop was codified in La. C.Cr.P. art. 215.1(A), which provides in pertinent part: "A law enforcement officer may stop a person in a public place whоm he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions."

The Fourth Amendment to the U.S. Constitution and La. Const. art. I, § 5 protect individuals from unreasonable searches and seizures. A seаrch conducted without a warrant is per se unreasonable unless justified by one of the specifically established exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971).

The plain view doctrine is an exception to the rule that a search and seizure conducted without a warrant is presumed unreasonablе. See Coolidge, 403 U.S. at 465, 91 S.Ct. at 2037. Seizure of evidence under the plain view doctrine is permissible when: (1) there is prior justification for an intrusion into the protected area; and (2) it is immediately apparent without close inspection that the items are evidence or contraband. Horton v. California, 496 U.S. 128, 135-136, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990); See also State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108.

In the instant case, Sgt. Jоseph was justified in approaching K.M., considering the evidence that K.M. was on O. Perry Walker property and was not wearing a school uniform. We find that Sgt. Joseph had reasonable suspicion that K.M. was trespassing on school property. Moreover, based on Sgt. Joseph's ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tеstimony, which was accepted as credible by the trial court, the knife was immediately apparent when K.M. voluntarily opened her purse. Thus, we find that Sgt. Joseph had authority to seize the knife pursuant to the plain view doctrine, and the motion to suppress was properly denied.

DECREE

For the foregoing reasons, K.M.'s adjudication is affirmed

AFFIRMED

ARMSTRONG, C.J., Concurs in the Result.

BONIN, J. Concurs with Reasons.

ARMSTRONG, C.J., Concurs in the Result.

I respectfully concur in the result reached by the majority.

BONIN, J., Concurs with Reasons.

I respectfully concur in the affirmation of the delinquency adjudication for the offense of illegal carrying of a weapon. I write separately on two issues.

First, I address K.M.'s argument that the language of that portion оf La. R.S. 14:95 A(1) upon which her adjudication is founded is unconstitutional. The statute provides, in pertinent part that the "[i]llegal carrying of weapons is ... [t]he intentional concealment of ... [an] instrumentality... intended for probable use as a dangerous weapon, on one's person ..." (emphasis supplied). K.M. only argued in the juvenile court that the abovе italicized language allows the prosecution to convict a person of the crime of illegal carrying of weapons on burden of proof that the person probably intended to use a concealed instrument as a dangerous weapon. Because of this, K.M. suggests, this statutе permits a criminal conviction on a less demanding standard of proof than that of proof beyond a reasonable doubt. See In *466 re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ("[T]he Due Process Clause [of the federal constitution] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). K.M. asserts that the statute is unconstitutional on its face and as it has been applied to her.

The source of the current R.S. 14:95 is Section 1, Article 95 of the old Criminal Code, enacted by the Louisiana Legislature in 1943. See Acts 1942 No. 43 § 1. The text of that statute defined the illegal carrying of weapons as "[t]he intentional concealment of any firearm, or other instrumentality customarily used as a dangerous weapon, on one's person ..." This portion of the statute remained the same until 1956, when the definition was slightly altered to read: "[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for use as a dangerous weapon, on one's person..." See Acts 1956 No. 345 (italics supplied to indicate the amended portion of the statute). In 1958, this clause of the statute ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was amended again to insert the word "probable," reflecting the current version of this part of the statute. See Acts 1958 No. 379.

But our review is restricted to a consideration of the precise claim raised by K.M. in the juvenile court. See Scott v. American Tobacco Co., Inc., 09-461, p. 8-9 (La. App. 4 Cir. 4/23/10), 36 So.3d 1046, 1052-53. K.M. did not argue in the juvenile court that the statute is unconstitutional on account of vagueness or overbreаdth, see Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) and Skilling v. United States, 561 U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (Scalia, J., concurring); see also. State v. Griffin, 495 So.2d 1306, 1308 (La.1986).

Second, I write separately to emphasize that the proper standard of review of an adjudication in a delinquency proceeding is, as provided by La. Const. art. V, § 10 B, civil, not criminal. See State in the Interest of Batiste, 367 So.2d 784, 788 (La. 1979); see also State in Interest of S.O., 10-551 (La.App. 4 Cir. 9/3/10), 49 So.3d 1 (Bonin, J., concurring).

Although the proper standard of review of the sufficiency of the evidence is less deferential to the lower court's findings, there is nevertheless no clear error in the juvenile judge's adjudication of K.M. as delinquent. This Court reviewed the physical evidence in this case. In brief defense counsel mischaracterized the knife as a "cheese knife" with harmless attributes, when in faсt it is fully capable of being used to physically harm another person. The juvenile judge was reasonable and not clearly wrong in finding beyond a reasonable doubt (1) that this knife was intentionally concealed on K.M., and (2) that the concealed knife was intended for probable use as a dangerous weapon.