Opinion
NO. 2023-CA-0412
10-05-2023
STATE of Louisiana IN the INTEREST OF D.J.
Jason Rogers Williams, DISTRICT ATTORNEY, Brad Scott, Patricia Amos, Orleans Parish District Attorney’s Office, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA Annette Fuller Roach, LOUISIANA APPELLATE PROJECT, P. O. Box 6547, Lake Charles, LA 70606-6547, COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM JUVENILE COURT ORLEANS PARISH, NO. 2022-339-02-DQ-C, SECTION "C", Honorable Candice Bates Anderson, Judge
Jason Rogers Williams, DISTRICT ATTORNEY, Brad Scott, Patricia Amos, Orleans Parish District Attorney’s Office, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA Annette Fuller Roach, LOUISIANA APPELLATE PROJECT, P. O. Box 6547, Lake Charles, LA 70606-6547, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase, Judge Rachael D. Johnson)
Judge Roland L. Belsome
1The juvenile, D.J., appeals his adjudication as a delinquent for three crimes: one count of armed robbery, in violation of La. R.S. 14:64, one count of unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4, and one count of illegal possession of a firearm by a juvenile, in violation of La. R.S. 14:95.8. D.J. also appeals the juvenile court’s disposition, which ordered him to be placed in custody with the Office of Juvenile Justice ("OJJ") for a term of juvenile life for the offense of armed robbery with a firearm, two years for the offense of unauthorized use of a motor vehicle, and six months for the offense of illegal possession of a firearm.
Based upon our review of the evidence and testimony introduced during the adjudication hearing, and for the reasons that follow in this opinion, we find that the State introduced sufficient evidence, both admissible and inadmissible, to prove the essential elements of each of the three charged offenses beyond a reasonable doubt. Thus, we find the evidence produced by the State has met the minimum standard to sustain the adjudication of D.J. as a delinquent for the three charged offenses, and we affirm the adjudication and disposition.
Factual Background
2On November 30, 2022, D.J. was apprehended for unauthorized use of a motor vehicle. This stemmed from an armed robbery incident the night before involving the same car. Detective April Augustine, of the New Orleans Police Department ("NOPD") spotted an Infiniti QX3 which was involved in an armed robbery that Det. Augustine was working that morning. After following the car, she located it outside a barbershop. There, Det. Augustine spotted a "black male with a black puff jacket and fur hood walking towards the barber shop." She recognized this male from her previous investigation the night before. The person, who was later identified as D.J., was arrested after leaving the barbershop. Det. Augustine did not see D.J. park or get out the car. The arresting officers handed her a key fob that they removed from D.J.’s person. When pressed, the fob activated the car that was connected to the robbery.
The arresting officers also delivered to Det. Augustine a gun that they found behind a dresser in the barbershop wrapped up in the black puff jacket. The gun was a pistol with an extended magazine which was also identified as the weapon shown in the video of the carjacking. Det. Augustine’s observations of the scene were as follows:
[Det. Augustine]: Okay. Initially, I was outside of the barber shop after I was informed that he was apprehended. I relocated to the infinity [sic]. Officers they did confiscate the gun and they brought it to me, and I secured the firearm in my vehicle temporarily that was recovered from inside the barber shop wrapped inside the black jacket.
…
[Defense counsel]: Okay. And so when the gun was recovered, you weren’t present, right?
[Det. Augustine]: No.
[Defense counsel]: Okay.
[Det. Augustine]: Not present in the barbershop.
3[Defense counsel]: In the barbershop, right. But it’s your understanding from the investigation that the gun that was recovered in the barber shop was recovered stuffed behind a dresser or a counter of some sort, right?
[Det. Augustine]: Yes, a dresser.
The other witness called to testify was Detective Anita McKay. She was assigned to work the carjacking case. After reviewing the initial police report, she went to the scene of the offense. At the scene, she was told that the building near where the incident took place was equipped with video. The video surveillance footage of the robbery was described in Det. McKay’s testimony:
"So there was a gentleman clad in a red hoodie/shirt and he opened the driver door of the victim’s vehicle and he was armed with a firearm, reached in and pulled her from the vehicle. The victim began to scream in a panic. Another guy exited the driver seat who had on a very distinctive face mask. He came around as if he was going to assist the other gentleman. And there was a third person who had his arm reached out of a partially cracked window from the rear seat. Once the victim was fully out of her vehicle, the guy in the red shirt, he gets in her vehicle and the two vehicles fled the location behind one another."
The first individual was identified as K.B. He is a juvenile co-defendant in the armed robbery charge. K.B. exited his vehicle, opened the victim’s car door, and pulled her out. Det. McKay identified the timestamped footage . She testified that after she saw the video, a member of her investigative team showed her an Instagram social media account that was owned by D.J. It contained a still image a young man wearing a "very distinctive full-faced mask", which was the same mask that was seen in the video footage of the robbery. When she was asked about her knowledge that the social media still shot came from D.J.’s account on cross-examination, Det. McKay stated that "resource detectives" determined that the 4account belonged to D.J. Over defense objections on the grounds of lack of proper authentication and hearsay, the juvenile court accepted the still photographic image from social media into the record as State’s Exhibit 3.
The time stamp was November 29, 2022, at 7:36 a.m.
As discussed in footnotes 2 and 3, I also disagree with the majority’s reasoning and findings as to the juvenile court’s rulings on hearsay testimony and the admissibility of the video evidence and social media image. And even in consideration of evidence that I find inadmissible, I conclude that the entirety of evidence is insufficient to establish the essential elements of each charged offense and that the adjudications must be reversed.
Procedural Background
On December 8, 2022, the State filed a petition of delinquency alleging that (1) on or about November 29, 2022, D.J. committed the offense of armed robbery with the use of firearm against Yvette Alfonso; (2) on or about November 30, 2022, D.J. committed the offense of unauthorized use of a motor vehicle belonging to Yvette Alfonso; and (3) on or about November 30, 2022, D.J. committed the offense of illegal possession of a firearm by a juvenile.
On December 13, 2022, the court held an answer hearing and allowed the State to amend its petition to add K.B. as an additional defendant. At the answer hearing, D.J. entered a denial on all three counts. The State notified the court that it would file an amended petition to correct the information in the allegations. The adjudication hearing was set for February 6, 2023. On February 6, 2023, the juvenile court granted a written motion to continue in favor of the State until March 20, 2023.
K.B was named as a co-defendant for the charge of armed robbery with the use of a firearm against Yvette Alfonso but the rest of the charges against D.J, stayed the same. Individually, K.B. was charged with a separate count of armed robbery against Anthony Willhide.
D.J.’s fourth assignment of error argues that the trial court erred in admitting the video surveillance footage, because it was not properly authenticated and the State failed to lay a proper foundation. I agree.
"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." La. C.E. art. 901(A). "Such evidence may come in the form of testimony by a witness with knowledge that the matter is what it is asserted to be; indications of the item’s distinctive characteristics, including its contents, …; or evidence describing the process or system used to produce the item and showing that the process or system produces an accurate result." State v. Rice, 17-0446, pp. 2-3 (La. 6/29/17), 222 So.3d 32, 33. Similar to the case of State in the Interest of J.H., unpub., 22-0324, pp. 11-12 (La. App. 4 Cir. 8/9/22), 369 So.3d 827, as clarified on reh’g (La. App. 4 Cir. 8/19/22), the State failed to offer testimony from someone who maintained the video surveillance system that recorded the video, to testify regarding the process or system by which it was created and to attest to the accuracy of the video. And, in this case, other than the time, date, and location stamp on the video, there are no identifying markers of the area shown in the video. Det. McKay made a statement that she was familiar with the area depicted in the video. While this statement identifies the location, Det. McKay did not testify to being familiar with the system that recorded the footage and, therefore, Det. McKay could not testify that this video accurately reflects the time or date of the video. Cf. State v. Groves, 20-0450, pp. 29-32 (La. App. 4 Cir. 6/10/21), 323 So.3d 957, 975-977 (finding that the FBI Agent provided significant, detailed testimony about the discovery and retrieval of videos from social media, laying the proper foundation and authentication of evidence).
In this case, as in J.H., I find Det. McKay’s testimony fails to lay the proper foundation for the authentication of this video evidence.
K.B. remained in custody with his bond set at $105,000.
D.J. also raises an assignment of error regarding the erroneous admission of this exhibit for lack of proper foundation and authentication. I find merit in D.J.’s argument.
In State v. Groves, supra, this Court discussed the proper foundation for authentication of social media posts. As in this case, the evidence at issue was retrieved from social media accounts, and included screen shot images. FBI Agent Bender testified that she collected the social media evidence at issue and she participated in the investigation of the subject shootings. Agent Bender testified to her training as an undercover online employee, her methods for investigating social media accounts and obtaining that evidence. This Court noted, "Agt. Bender provided significant information about the social media evidence. Namely, she identified the videos and still shots from the videos; Defendants as the people in the videos; the dates of the videos; and her method of obtaining the videos." Groves, 20-0450, pp. 31-32, 323 So.3d at 977.
In this case, the State offered only the testimony of Det. McKay, who testified that she obtained the social media image from other detectives. Det. McKay provided no testimony as to the method for obtaining the social media post or connecting the account with D.J. Consequently, I find that the State failed to lay a proper foundation to authenticate this evidence and the trial court abused its discretion in overruling the defense’s objection and admitting it into evidence. Nevertheless, in a review for sufficiency, the appellate court reviews all admissible and inadmissible evidence erroneously admitted. State v. Falkins, 12-1654, p. 8 (La. App. 4 Cir. 7/23/14), 146 So.3d 838, 845.
Before the date of the adjudication hearing, defense counsel filed a motion to dismiss the State’s petition for its failure to file an amendment specifying the locations and times of the alleged offenses.
The juvenile court denied this motion before stalling the adjudication hearing.
5D.J. was charged with all three crimes and was adjudicated as a delinquent on March 20, 2023. At that same hearing, K.B. was a co-defendant in the armed robbery charge. K.B.’s status is not at issue in this appeal. D. J. filed a motion and notice of appeal and designation of record, and motion for appointment of appellate counsel on March 31, 2023. The court granted the motions on August 4, 2023. The return date for the notice of appeal was set for June 24, 2023, but D.J. requested and the court subsequently granted an extension to file his original brief.
The extension was granted because counsel had recently received a total hip replacement.
After his adjudication, D.J. waived the delay for disposition. The juvenile court sentenced him to juvenile life for armed robbery with a firearm, two years in custody for the unauthorized use of a motor vehicle, and six months in custody for illegal possession of a firearm by a juvenile.
Pursuant to La. Ch. C. art. 897.1, "[a]fter adjudication of a felony-grade delinquent act based upon a violation of La. R.S. 14:64, armed robbery, … the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement without benefit of probation or suspension of imposition or execution of sentence."
D.J. timely noticed his intent to appeal the adjudication and disposition.
Discussion
Appellant (D.J.) makes eight assignments of error. D.J.’s first three assignments of error, and main contention, are that the State did not meet its burden of proving beyond a reasonable doubt that the appellant committed the crimes with which he is charged.
The five remaining assignments of error raised by D.J., but not discussed herein, are as follows:
4. The juvenile judge committed reversible error in allowing into evidence the video of the alleged armed robbery, because the video was not properly authenticated and the State failed to lay a proper foundation for its admission. Further, the error is not harmless because the detective relied upon the surveillance video in her investigation and testimony and no other evidence was admitted to establish the crime of armed robbery occurred.
5. The juvenile judge committed reversible error by admitting into evidence the handgun purportedly removed from the barber shop by an unidentified person, as a proper chain of custody was not established.
6. The juvenile judge committed reversible error by admitting the Instagram social media image into evidence despite the lack of foundation, authentication, or proof that the individual pictured in the image was D.J. or that it was D.J.'s account.
7. The juvenile judge erred in overruling well grounded hearsay objections, in violation of D.J.’s constitutional rights to confrontation and fair trial. Further, the admission of the hearsay testimony was not harmless because it was the sole evidence presented against D.J. for the charged offenses.
8. The juvenile judge imposed an illegally excessive disposition for the offense of unauthorized use of a motor vehicle.
[1–3] 6D.J. correctly identifies the State’s burden of proof as follows:
When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of
proof beyond a reasonable doubt. The fact-finder weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. However, we are mindful that the touchstone of Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979)] is rationality and that irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law." State v. Mussall, 523 So.2d [1305] at 1310 [La.1988]. (Some citations omitted.)
D.J. argues that the testimony, video evidence, and Instagram image were not enough for the State to meet their burden of proof for properly identifying D.J. as the culprit in the crime.
Neither of the State’s witnesses interviewed the victim in the carjacking. The victim did not testify at the adjudication hearing and did not make any out-of-court identification of the robber. The appellant argues that there was insufficient foundation to enter either the video and social media pages into evidence.
[4] We do not agree that the State’s foundation was inadequate. Det. McKay was able to identify the building to which the camera was affixed and testified that she recognized the streets and the landmarks shown in the video. Her testimony 7adequately authenticates the video. Detectives were notified of a social media page belonging to D.J. The page had a post showing a man wearing a distinct type of face mask similar to that worn by the robber in the video. The detective was the leader of a team of investigators who worked together to find the Instagram account. She was able to see the account for herself and, as such, was able to identify it for the court.
[5] The State’s case is built primarily upon circumstantial evidence. When the State relies upon circumstantial evidence to prove the elements of a crime,
[t]he reviewing court "does not determine whether another possible hypothesis has been suggested by defendant which could explain the events in an exculpatory fashion; rather, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the alternative hypothesis is sufficiently reasonable that a rational factfinder could not ‘have found proof of guilt beyond a reasonable doubt.’ [State v. ]Captville, 448 So.2d [676] at 680 [(La. 1984)] (emphasis in original; citations omitted). State v. Jones, 2016-1502 (La. 1/30/18), 318 So. 3d 678, 682.
This standard of review is set forth in Jackson, supra. The standard was not original to the Jackson court and it has been cited in our appellate courts and Supreme Court in an unbroken chain of jurisprudence since Jackson was decided in 1979. In State v. Green, 588 So.2d 757, 758 (La. App. 4 Cir. 1991), we wrote that, "If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted." We hold that the evidence admitted at trial, when viewed in the light most favorable to the prosecution would support the trial court’s adjudication.
[6] In regards to the charge of unauthorized use of a motor vehicle, D.J. contends that the State had to prove "1) D.J. took or used the Infiniti QX3; 2) that the Infiniti QX3 belonged to another person; and, 3) that the owner did not consent 8to D.J. taking or using the Infiniti QX3." D.J. argues that the State never showed ownership, or identified the person driving the car. Again, using the analytical method dictated by Jackson and Green, supra, we find that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found proof beyond a reasonable doubt that D.J. committed the offense charged. Det. Augustine identified a key fob, which was recovered off D.J.’s person at the barbershop. When pressed, the fob activated the stolen vehicle. Det. Augustine also testified that she and her colleagues followed the Infiniti vehicle because they had identified it as the vehicle that was reported stolen in the carjacking. She also identified D.J. as the person who was seen walking away from the car and toward the barbershop. Taken together, these known facts support the trial court’s adjudication.
[7] Using the same standard, we also reject D.J.’s argument that the State’s evidence was insufficient to support the adjudication regarding the weapon possession charge. Det. Augustine testified under oath that she saw D.J. walking to the barbershop wearing a "black puff jacket". She testified that after D.J. was apprehended, the arresting officers located that same puff jacket behind a dresser in the barber shop wrapped around the gun that is the object of the possession charge. The jacket and the gun were concealed in a place to which D.J. had access at the time that he was apprehended. The circumstantial evidence would dictate that the only way that the weapon got into the jacket and became wrapped in the jacket and concealed in the area where D.J. was arrested is if he wrapped the weapon and hid it.
[8] On the last assignment of error, D.J. claims that a sentence of two years for unauthorized use of a motor vehicle is too harsh. La. R.S. 14:68.4(c) states that 9"When the misappropriation or taking amounts to less than a value of one thousand dollars, the offender shall be imprisoned for not more than six months, or fined not more than one thousand dollars, or both." D. J. says that the imposition of a two year sentence is excessive because the State offered no proof of the value of the vehicle. The State argues that La. R.S. 14:68.4 requires proof only if it involves section (c) and that "this record contains information on the make and model of the vehicle (an Infiniti QX3) and excellent video showing its condition at the time it was taken from Yvette Alfonso". We accept the State’s argument. The fact that the car in question could be seen in the video to be in excellent condition and of a make and model in the upper end of the spectrum of automobiles would lead any rational trier of fact to conclude that the vehicle in question had a value in excess of the statutory amount.
CONCLUSION
For the reasons above, we hold that the adjudication by the trial court was correct and should be upheld.
AFFIRMED
JENKINS, J., DISSENTS AND ASSIGNS REASONS
JOHNSON, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE JENKINS
JENKINS, J., DISSENTS AND ASSIGNS REASONS
1I respectfully dissent from the majority opinion. Upon my review of this record, and in light of applicable law and jurisprudence, I find the evidence and testimony presented in this case to be insufficient to sustain the adjudication of the juvenile for all three of the charged offenses.1a For the following reasons, I find the juvenile court was manifestly erroneous in adjudicating D.J. a delinquent for the charged offenses.
Insufficient Evidence for Armed Robbery
In regards to the offense of armed robbery, I find the State failed to prove the identity of D.J. as the perpetrator of the offense. To support an adjudication for the offense of armed robbery, the State must prove beyond a reasonable doubt that D.J. took "anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." La. R.S. 14:64. In addition to proving the statutory elements of the offense, the State must prove the identity of the defendant as the perpetrator. 2 State v. Draughn, 05-1825, p. 8 (La. 1/17/07), 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). "When a key issue at trial is whether the defendant was the perpetrator of the crime, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof beyond a reasonable doubt." State v. Holmes, 05-1248, p. 8 (La. App. 4 Cir. 5/10/06), 931 So.2d 1157, 1162 (citing State v. Bright, 98-0398 (La. 4/11/00), 776 So.2d 1134, 1147).
In this case, the State did not introduce testimony of the alleged victim of the armed robbery. Moreover, the State did not introduce testimony from anyone who identified D.J., either prior to trial or as an in-court identification, as the perpetrator of the offense.
In support of the allegation of armed robbery, the State presented testimony only from Det. McKay and introduced video surveillance footage of the alleged offense. Det. McKay did not identify the victim in her testimony and she testified that she did not meet with or interview the victim of the armed robbery. Moreover, Det. McKay testified that the victim did not make an identification of D.J. or the other juvenile, K.B., alleged to have committed the offense. Det. McKay’s testimony regarding the armed robbery consisted of a description of what she viewed on the video surveillance footage.
The video surveillance footage was introduced over defense counsel’s objection on the grounds of lack of authentication. In consideration that this Court’s reviews all admissible and inadmissible evidence introduced at the adjudication, we have reviewed the video surveillance footage.2a The recording 3runs for a total of one minute and forty seconds; but, the video footage of the alleged offense runs for approximately twenty-five seconds. The scene appears to be a street or an alley next to a building, but with no identifying street or building signs in the video. A white sedan or sport utility vehicle ("the victim’s vehicle") pulls into view and stops; the license plate, make, and model of the car are not visible. Within ten seconds, another, very similar looking white sedan or sport utility vehicle pulls alongside the driver side of the victim’s vehicle. A person in a red hoodie and wearing a face mask exits the front passenger door of the second vehicle, opens the driver door of the victim’s vehicle and pulls the driver out. A second person, wearing a black shirt and patterned head covering or mask, emerges from the driver door of the second vehicle, walks around and in between the two vehicles for 1-2 seconds, then quickly returns to the driver seat of the second vehicle as the person in the red hoodie gets into the driver seat of the victim’s vehicle. The two vehicles then pull out of frame, in reverse. I also note that both persons from the second vehicle appear to be holding objects in their right hands.
After viewing this video, Det. McKay testified that she learned of a social media account, which other detectives determined to be the account of D.J. From 4that social media account, the State introduced a screen shot image, which the juvenile court admitted into evidence over defense counsel’s objection.3a State’s Exhibit 3 is a screen shot from a social media account, which appears to show a person wearing a patterned head covering/mask and a white shirt. The screen shot image does not include D.J.’s name. Although there is a screen name at the top of the image, Det. McKay did not refer to any screen name in her testimony. In addition, Det. McKay did not testify that D.J. was identified as the person pictured in the image, only that he was identified as the user of the account; she did not make an in-court identification of D.J. as the person in the social media image; and, she did not testify regarding the relevance or connection between the social media image and the armed robbery that occurred on November 29, 2022.
Based upon my review of the testimony and evidence introduced in support of the charge of armed robbery, I find the State failed to negate any reasonable probability of misidentification in order to support a finding beyond a reasonable doubt that D.J. is one of the persons who perpetrated the alleged offense on November 29, 2022. The State presented no evidence or testimony identifying 5D.J. as one of the persons in the video. The State argues, and the majority agrees, that the person wearing a "distinctive face mask" in the video is the same person pictured in the social media image, who was identified by "resource detectives" as D.J. The majority concludes that this is sufficient evidence to convince a rational trier of fact beyond a reasonable doubt that D.J. is the perpetrator of the armed robbery. I completely disagree.
I have viewed both the video surveillance footage and the social media image. The video surveillance footage is taken at such a distance that I find the facemask or any identifying features of the perpetrator, alleged to be D.J., are not clearly identifiable. The social media image, seemingly taken at night and backlit by an overhead light, shows an individual wearing a patterned mask, whose facial features or other identifying features are not visible. I note that Det. McKay did not testify to being personally familiar with D.J., and, as stated previously, she provided no testimony that the victim, any witness, or herself identified D.J. as the person in the video or in the social media image. Det. McKay stated that "resource detectives" identified D.J. as the person whose social media account was used to post the image, but, there was no testimony or evidence presented that D.J. is the person in the social media image. Moreover, other than the "distinctive face mask", Det. McKay offered no testimony connecting the person pictured in the social media image to the person who appears in the video surveillance footage for approximately 2 seconds. Therefore, I find the testimony and evidence presented at trial completely insufficient to convince a rational trier of fact beyond a reasonable doubt that D.J. was the perpetrator of the armed robbery.
6 Insufficient Evidence for Unauthorized Use of a Motor Vehicle
The offense of unauthorized use of a motor vehicle is defined as, "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." La. R.S. 14:68.4(A). Louisiana jurisprudence construes the statutory definition of unauthorized use of a motor vehicle to require a showing of mens rea or criminal intent, which can be satisfied by showing that the person knowingly used the vehicle without the consent of the owner. State in Interest of J.K., 22-0308, pp. 13-14 (La. App. 4 Cir. 7/13/22), 344 So.3d 674, 684 (citing State in Interest of C.T., 16-0939, p. 3, n. 3 (La. 10/18/17), 236 So.3d 1210, 1212). In support of the allegation of unauthorized use of a motor vehicle, the State presented only the testimony of Det. Augustine. Det. Augustine testified that she became involved in the investigation of an "armed carjacking" that occurred on November 29, 2022, when she and her partners "spotted the vehicle" on November 30, 2022. Although Det. Augustine testified that the Infinity was the vehicle stolen on the previous day, her testimony did not establish the known ownership of that vehicle. The State produced no evidence or testimony establishing the ownership of the vehicle at issue. In addition, on cross-examination, Det. Augustine clearly stated that she did not see D.J. inside the vehicle, did not observe the vehicle as it was being parked, and did not see D.J. exit the vehicle. The State produced no testimony or evidence that D.J. was inside that vehicle at any time. Although Det. Augustine testified that she was present when another officer activated a key fob 7that unlocked the Infinity, Det. Augustine did not testify to observing the key fob being recovered from D.J.
Based on the testimony presented, I find the State failed to prove that D.J. used the motor vehicle at issue and that D.J. knowingly used the motor vehicle without the consent of the owner. Consequently, I find insufficient evidence for any reasonable trier of fact to find beyond a reasonable doubt that D.J. committed the offense of unauthorized use of a motor vehicle.
Insufficient Evidence for Illegal Possession of a Firearm by a Juvenile
An adjudication for illegal possession of a firearm by a juvenile requires a finding that the juvenile had actual, not merely constructive, possession of a gun. State in Interest of R.P., 14-0468, p. 4 (La. App. 4 Cir. 9/10/14), 150 So.3d 76, 79 (quoting State in Interest of R.D., 12-0619, p. 4 (La. App. 4 Cir. 10/3/12), 126 So.3d 504, 506); see La. R.S. 14:95.8 ("[i]t is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person.").
In support of the charge, the State presented the testimony of Det. Augustine, who clearly stated that she was not present when other officers recovered the handgun. Det. Augustine testified that other officers went inside the barbershop and emerged with a firearm that they handed to her to secure in evidence. Det. Augustine affirmed in her testimony that she learned from other officers that the gun was recovered from behind a dresser in the barbershop and was not taken from D.J.’s person.
I find Det. Augustine’s testimony insufficient to establish the essential elements of the offense, because she could not testify that D.J. had actual 8possession of the firearm. Moreover, according to her testimony, no officer could provide testimony that D.J. was in actual possession of the firearm. Det. Augustine specifically stated under cross-examination that other officers told her the firearm was located from behind the dresser inside the barbershop and was not recovered off of D.J.’s person. Consequently, I find insufficient evidence to sustain the adjudication of illegal possession of a firearm by a juvenile. Moreover, I find the majority’s affirmation of this adjudication directly conflicts with the jurisprudence of this Court, holding that La. R.S. 14:95.8(A) requires actual possession rather than constructive possession. State in the Interest of R.D., 12-0619, p. 4 (La. App. 4 Cir. 10/3/12), 126 So.3d 504, 506; State in the Interest of T.M. 11-1238, p. 9 (La. App. 4 Cir. 3/28/12), 88 So.3d 1228, 1235, writ granted on other grounds, 12-0964 (La. 12/14/12), 104 So.3d 418.
After review of all evidence presented at this adjudication, viewing the evidence in the light most favorable to the prosecution, I do not find that any rational trier of fact could have found the State proved the essential elements of the three charged offenses beyond a reasonable doubt. Based on review of the law and facts, as required in our review of a juvenile delinquency adjudication, I find the juvenile court was manifestly erroneous in adjudicating D.J. delinquent for the charged offenses. Therefore, I would reverse D.J.’s adjudications and disposition.