NOT DESIGNATED FOR PUBLICATION

PETTIGREW, J.

The fourteen-year-old juvenile, M.E., was alleged to be delinquent according to a petition filed by the State on December 20, 2013, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of aggravated rape, a violation of La. R.S. 14:42 (victim under the age of thirteen) (prior to revision by 2015 La. Acts Nos. 184, § 1 and 256, § 1) (count one) and indecent behavior with a juvenile, a violation of La. R.S. 14:81 (count two), which was alleged to have occurred on December 8, 2013.1 With the agreement of all parties, prosecution was deferred pending the completion of an informal adjustment agreement signed on February 11, 2014, for a period not to exceed eighteen months.

The informal adjustment agreement was terminated on November 24, 2014, and the matter was reassigned for trial on August, 10, 2015. At the conclusion of the State's case, the juvenile moved for a directed verdict arguing that the State failed to meet its burden of proof. The juvenile court granted the motion as to aggravated rape of a child under the age of thirteen, but found that a responsive verdict was applicable. The juvenile was subsequently adjudicated a delinquent as to the responsive offense of sexual battery, a violation of La. R.S. 14:43.1, and indecent behavior with a juvenile, a violation of La. R.S. 14:81. His counsel filed a motion to vacate the adjudication and dismiss the petition, which the juvenile court denied. At his disposition hearing, the juvenile was committed to custody with the Office of Juvenile Justice for a period of three years on count one and one year on count two. The juvenile court ordered that the dispositions run concurrently. On appeal, the juvenile alleges the juvenile court erred in (1) denying his motion to dismiss the petition pursuant to Louisiana Children's Code article 841B; (2) adjudicating the juvenile without competent evidence proving the elements of the offenses beyond a reasonable doubt; (3) imposing a disposition of commitment that was not supported by the evidence.

For the following reasons, we affirm the juvenile's sexual battery adjudication and disposition (count one), but we reverse the juvenile's indecent behavior with a juvenile adjudication and disposition (count two).

FACTS

Detective Leigh Rice with the East Baton Rouge Sheriff's Office testified that she investigated a complaint involving the juvenile and the victim, A.H., after the juvenile's aunt walked into a bedroom in her home in East Baton Rouge Parish on December 8, 2013, and found the victim sitting on the juvenile's lap.2 The juvenile's aunt noticed that the juvenile's pants were unzipped, and the victim's leggings and underwear were pulled down. She immediately brought both children to Our Lady of the Lake Hospital.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the juvenile contends that his motion to dismiss the petition should have been granted because his informal adjustment agreement was improperly terminated. Specifically, the juvenile contends that the State moved to terminate the petition despite his compliance and that the juvenile court failed to extend the initial term of the agreement after it allegedly expired on August 12, 2014.

Louisiana Children's Code article 840 provides:

The informal adjustment agreement at issue was entered into by the parties on February 11, 2014, and specified that it "shall not exceed eighteen (18) months." On the date that the agreement was entered, a review hearing was set for June 10, 2014. On that date, a status conference was set for August 12, 2014. On August 12, 2014, the status conference was reassigned. On September 9, 2014, the status conference was held by telephone, and the court maintained a review date of November 24, 2014. On November 24, 2014, on motion of the State, the informal adjustment agreement was terminated, and the matter was assigned for trial.

During the termination hearing, the State argued that the juvenile was "denying anything to have to do with the sex assault[,]" and it did not "see the purpose of [the juvenile] staying on [the agreement] with the purpose of sex offender treatment if he's not going to take full advantage of the treatment[.]" The juvenile's counsel responded that the juvenile had been participating in the treatment and "if he didn't do anything, he didn't do anything. He's participating. He can't lie so it's — it's up to the D.A. with what he does." The juvenile court pointed out that the report from the juvenile's counselor stated that he completed sex offender counseling and that the agreement did not "require [the juvenile] to admit anything." The State responded that it had no way of knowing whether the juvenile was rehabilitated because he had not acknowledged that he committed a sexual offense and "if he didn't do anything, then let's have the trial and I guess he can show that the evidence does not go beyond a reasonable doubt." When the juvenile court asked for the juvenile's response, his counsel stated, "I mean, Your Honor, I mean, we're open to other options; but the district attorney makes that call at this point." The parties then set a trial date. Although the juvenile court noted that the State moved to terminate the agreement "over [the juvenile's counsel's] objection," the transcript of the hearing does not indicate that the juvenile's counsel entered an objection to the termination.

The juvenile was subsequently adjudicated delinquent. Prior to disposition, the juvenile filed a motion to vacate the adjudication and dismiss the petition based on his alleged successful completion of the informal adjustment agreement. The juvenile argued that the State's "only complaint regarding juvenile defendant's compliance was that the juvenile defendant did not `confess' to a crime." The juvenile further argued that there was no request for an extension of the initial six month period of his informal adjustment agreement and that the juvenile court failed to order an extension. Thus, he complained that he had a right to have the agreement discharged and the petition dismissed at the conclusion of the initial six month period. He attached reports from his probation officer and counselor.

At the hearing on the motion, the State alleged that because the Louisiana Children's Code does not provide a ground for vacating an adjudication due to an improperly terminated informal adjustment agreement, the appropriate remedy for the juvenile was a writ application with this court at the time the agreement was terminated. See La. Ch. Code art. 887. The State clarified that "the basis for the State terminating the [agreement] was that the agreement was for [the juvenile] to get sex offender treatment" and it did not "believe he was getting that." In response to the juvenile's complaint that the agreement was illegal because its initial term extended beyond six months, the State argued that the juvenile "acquiesed [sic] to enter into an 18-month informal adjustment agreement" and waived "any issues as far as it going beyond six months[.]" The State also claimed that the juvenile "knowingly" entered into the agreement and that it "was to his benefit." According to the State, the agreement was not illegal and "the [juvenile] has every right to enter into an agreement with the State and, if the parties come to an agreement that we want you to be on probation for longer than six months, if you agree to that, then you're waiving your arguments."

After hearing argument from both the juvenile and the State, the juvenile court denied the motion to dismiss, noting that "the code clearly allows the [informal adjustment agreement] to go up to two years." The juvenile court further stated:

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. In its manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State in the Interest of D.H., 2004-2105, pp. 7-8 (La. App. 1 Cir. 2/11/05), 906 So.2d 554, 559-560. If the juvenile court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. If there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

To the extent that the juvenile complains that his informal adjustment agreement was improperly extended beyond the initial six-month period allowed under Article 840, we determine that argument was waived. See La. Code Crim. P. art. 841A; State in the Interest of L.W., 2009-1898, p. 10 (La. App. 1 Cir. 6/11/10), 40 So.3d 1220, 1227, writ denied, 2010-1642 (La. 9/3/10), 44 So.3d 708. The juvenile did not object to the initial agreement being set for eighteen months, nor did he enter such an objection at any of the subsequent hearings prior to the November 24, 2014 hearing, on which date the agreement was terminated. Moreover, a review hearing was held six months after the agreement was signed. The parties appeared that day, and the minute entry indicates that "the review hearing assigned for hearing this date was satisfied." Additionally, at the time the juvenile contends the agreement "expired," August 12, 2014, he had not yet completed counseling. (The reports attached to the juvenile's motion indicate that he completed sexual offender counseling on October 30, 2014.) Thus, in order for him to be in compliance with the agreement, as he argues he was, the agreement would have to have been extended beyond an initial six-month period. It also appears that the juvenile failed to object to the termination of the agreement.3

In light of the record reviewed in its entirety, the juvenile court's finding that the juvenile had not satisfied the terms of the agreement is reasonable. Although the letters from the juvenile's counselor attached to his motion indicate that he completed sexual offender counseling, the juvenile court stated that it reviewed the record and believed that the district attorney's office "acted in good faith" in its determination that the juvenile had not complied with the agreement. The juvenile court pointed out that there were "concerns early and often in the course . . . of the proceedings" and the termination of the agreement was "not a surprise" to the juvenile or his counsel. We cannot say that the juvenile court's finding was manifestly erroneous or clearly wrong. Therefore, we find no error in the juvenile court's ruling denying the motion to vacate the adjudication and dismiss the petition.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the juvenile contends that the State failed to prove guilt beyond a reasonable doubt. According to the juvenile, there were "internal inconsistencies in the evidence offered by the State." Specifically, he contends that his mother's testimony contained contradictory statements and that the victim's trial testimony varied "significantly in every important detail from the statement she made to the [Children's Advocacy Center] forensic interviewer three days after the alleged event."4

Initially, we note that the State's brief, relying on State v. Steele, 387 So.2d 1175 (La. 1980), acknowledges a double jeopardy violation in that the same evidence was used to adjudicate the juvenile of both sexual battery and indecent behavior with a juvenile. The procedure for remedying a violation of double jeopardy is to vacate the conviction and sentence of the less severely punishable offense. State v. Dudley, 2006-1087, pp. 14-16 (La. App. 1 Cir. 9/19/07), 984 So.2d 11, 21-22, writ not considered, 2008-1285 (La. 11/20/09), 25 So.3d 783. Accordingly, the juvenile's adjudication and disposition on count two, the less severely punishable offense, are reversed.

In a juvenile proceeding, the State's burden of proof is the same as in a criminal proceeding against an adult — to prove beyond a reasonable doubt every element of the offense alleged in the petition. See La. Ch. Code art. 883; In Re Winship, 397 U.S. 358, 365-367, 90 S.Ct. 1068, 1073-1074, 25 L.Ed.2d 368 (1970); State in the Interest of D.P.B., 2002-1742, p. 4 (La. 5/20/03), 846 So.2d 753, 756. The standard established by La. Code Cr. P. art. 821B is whether, after 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). However, in juvenile proceedings, the scope of review of this court extends to both law and facts. See La. Const. art. V, § 10B; see also State in Interest of D.M., 2011-2588, p. 4 (La. 6/29/12), 91 So.3d 296, 298 (per curiam); State in Interest of Batiste, 367 So.2d 784, 788 (La. 1979); In Interest of L.C., 96-2511, p. 3 (La. App. 1 Cir. 6/20/97), 696 So.2d 668, 670. A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV, § 1; La. Const. art. I, § 2. In conducting the review under Jackson, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; see State v. Wright, 98-0601, p. 2 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.

When a case involves circumstantial evidence and the fact finder reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Taylor, 97-2261, p. 6 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932.

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 or prove the commission of the offense by the defendant. State v. Lilly, 2012-0008, p. 25 (La. App. 1 Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386; see also State v. Hampton, 97-2096, p. 3 (La. App. 1 Cir. 6/29/98), 716 So.2d 417, 418. As it pertains to this case, La. R.S. 14:43.1A(1) (prior to its revision by 2015 La. Acts No. 256, § 1) defines sexual battery as the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender when the offender acts without the consent of the victim.

The victim, who was eight-years old at the time of trial, testified that she was at her aunt's house playing in her cousin's room. The victim's cousin and friend were playing a video game, and the juvenile was lying on the bed waiting for his turn to play. At some point, the juvenile (who was the victim's stepbrother) went into the bathroom and returned. According to the victim, the juvenile told her to sit on his lap and pulled his pants down. The juvenile then pulled the victim's leggings and underwear down while she was standing. She testified that her cousin and friend did not see the juvenile or her with their clothes removed. The juvenile again told the victim to sit on his lap, which she did. She heard her aunt coming toward the room, and she got off of the juvenile's lap. The victim testified that the juvenile's "private part" touched her "butt." She stated that it hurt "a little" and that she told the juvenile to stop, but he refused. The victim explained the incident as feeling "sort of like getting a shot." According to the victim, that was not the first time that the juvenile "did that to [her]." She denied sitting in the juvenile's lap to play video games.

The victim's (and juvenile's) cousin who was present at the time of the offense, E.H., testified at trial. E.H. denied the victim sitting on his own lap. E.H. testified that on the day of the incident, he was playing video games with his cousin when the victim sat on the juvenile's lap. According to E.H., the juvenile left the room, went to the bathroom, and then returned. E.H. noticed that the juvenile's pants were unzipped when he sat on the bed after returning from the bathroom. He noticed the victim sit on the juvenile's lap, but did not pay attention to what they were doing on the bed. E.H. testified that he heard the victim tell the juvenile to stop while she was sitting on his lap, but the juvenile ignored her. When E.H.'s mother (the victim's aunt) entered the room, she told the victim to get off of the juvenile's lap and to come into the hallway. E.H. noticed that the juvenile's pants were unzipped, but testified that the victim's dress was down. E.H. saw the juvenile's underwear, but did not see his penis. E.H. testified that while they were in the hallway, his mother lifted the victim's dress up to see whether her underwear was pulled down.

E.H.'s mother (the victim and juvenile's aunt) testified that the juvenile and victim were at her house on December 8, 2013. She walked into her son's bedroom and saw the victim sitting on the juvenile's lap. Once she walked in, the juvenile picked the victim up from his lap. She saw the victim "fixing" her clothes, and when she walked over to the juvenile, she noticed that his pants were unzipped and his penis was erect. E.H.'s mother testified that the victim was wearing a sweater dress with leggings, and the victim's leggings and underwear were pulled down to just above her knee. She took both children to Our Lady of the Lake Hospital.

The victim's father (juvenile's stepfather) testified. According to his testimony, he met the victim and the juvenile at the hospital. The juvenile told him that he was in the bathroom masturbating prior to walking out into the bedroom and pulling the victim onto his lap. He testified that the juvenile was acting "guilty."

The juvenile's mother (victim's stepmother) testified that the juvenile told her that he was having "hormonal issues" and went to the bathroom to masturbate. He admitted that the victim sat on his lap while he had an erection and his pants were unzipped. The juvenile claimed that he did it to hurt his mother because he felt that she loved the victim more than she loved him. The victim told her stepmother that she was on the juvenile's lap, and the juvenile touched her.

The juvenile gave a statement to Detective Rice, wherein he stated that the victim was sitting on everyone's laps, but that he did touch the victim, and he would continue to touch the victim as long as he was left alone with her. The juvenile further stated that he was a victim of molestation from an uncle who was incarcerated at the time of the statement.

The juvenile testified that on the date of the incident, he was playing video games in his cousin's room, and the victim was playing with blocks. He claimed that he stepped out to use the bathroom, but forgot to zip his pants. He returned to the room, and continued to play video games. According to the juvenile, the victim wanted to play video games with the boys and began "bouncing back from to lap to lap to lap . . . trying to get the stick — get the controller." He stated that when he attempted to push the victim off of his lap to stop her from grabbing the controller, their aunt walked into the room. He denied telling his mother what happened and claimed that he was upset with his mother for showing favoritism. According to the juvenile, while in the parking lot of the hospital, his mother told him that "she knew she should have killed [the juvenile] a long time ago." However, he denied stating that he did something to the victim in order to "lash out" at his mother. He also denied telling his mother and stepfather that he was masturbating in the bathroom.

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, 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. Hampton, 716 So.2d 418-419. Further, the juvenile court's findings of fact in a juvenile case are subject to the manifest error standard of review. Accordingly, the appellate court should not disturb reasonable evaluations of credibility and reasonable inferences of fact absent manifest error. State in the Interest of Wilkerson, 542 So.2d 577, 581 (La. App. 1 Cir. 1989).

Herein, the victim testified that the juvenile walked into the bathroom, returned, and told her to sit on his lap. She stated that the juvenile pulled her leggings and underwear down, pulled his pants down, and the juvenile's "private part" touched her "butt," which she testified hurt "a little," She further testified that she asked the juvenile to stop, but he refused. Any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the essential elements of sexual battery and the juvenile's identity as the perpetrator of that offense. Further, after undertaking our State's constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his last assignment of error, the juvenile contends that the disposition entered was excessive and that the juvenile court abused its discretion by imposing the most restrictive disposition without any evidence that the juvenile's welfare or the safety of the public required custody. He argues that the predisposition investigation report recommended probation and that the juvenile court failed to consider the evidence of mitigating factors.

Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A juvenile court judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. See State v. Hurst, 99-2868, pp. 10-11 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.

After adjudicating a child to be delinquent, a court is required to impose the "least restrictive disposition" authorized by Articles 897 through 900 of the Louisiana Children's Code, "which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society." See La. Ch. Code art. 901B. Commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate under any of the following circumstances: (1) there is an undue risk that during the period of a suspended commitment or probation the child will commit another crime; (2) the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment; (3) a lesser disposition will deprecate the seriousness of the child's delinquent act; and (4) the delinquent act involved the illegal carrying, use, or possession of a firearm. La. Ch. Code art. 901C; State in Interest of J.W., 95-1131, pp. 3-4 (La. App. 1 Cir. 2/23/96), 669 So.2d 584, 586, writ denied, 96-0689 (La. 4/26/96), 672 So.2d 911.

The penalty for sexual battery, in pertinent part, is imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for not more than ten years. See La. R.S. 14:43.1C(1). In a juvenile disposition, the judgment of disposition may not remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication. La. Ch. Code art. 898A. The disposition in this case of three years does not exceed the maximum term of imprisonment for the felony forming the basis for the adjudication of delinquency.

A predisposition report was filed prior to the disposition hearing. The Office of Juvenile Justice recommended that the juvenile be placed on one year active probation with a suspended commitment. The office recommended several conditions and a service plan for the juvenile. At the disposition hearing, the State submitted into evidence a letter from the Office of Juvenile Justice dated September 21, 2014, and a copy of the juvenile's medical records from Northlake Behavioral Health System dated June 4, 2015. The State argued that in order for the juvenile to have all of his rehabilitative needs met, he needed to be in an environment where he could have services provided. The State opined that because it was being reinforced in the juvenile's current placement that he did not "do anything wrong," the placement was not appropriate. The State expressed concerns with the predisposition report because the service plan recommended did not specifically address the sex offense. According to the State, the juvenile's medical records revealed that while in his current placement, he was admitted to the hospital under threats of suicide and homicidal thoughts.

Prior to committing the juvenile to the custody of the Office of Juvenile Justice for three years, the juvenile court explained that it heard the evidence in the case and did not find the juvenile's version of events to be credible. The juvenile court stated that it was "very difficult for [it] to believe there [sic] can be rehabilitation without an acknowledgment that the event even happened." The court expressed concerns about the juvenile's current placement and noted that it was "not sure how to ensure that [the juvenile] gets the treatment and therapy that he needs in that environment." The court recessed in order to consider the disposition. After taking a recess, the parties returned to the courtroom, and the juvenile court stated that it reviewed the factors for disposition as well as mitigating factors under Article 901, and "consider[ed] each and every one of these factors" before concluding that "the factors in this case . . . cut towards commitment." The juvenile court further stated that its "sincere hope and wish" was that the juvenile did not serve three years and added that it would like to place the juvenile on parole early.

After review of the record, we find no abuse of discretion in the juvenile court's imposition of the three-year disposition. The juvenile court considered "each and every" factor under Article 901 prior to concluding that commitment was in the best interest of the juvenile. We do not find that the disposition imposed was excessive. This assignment of error is without merit.

SEXUAL BATTERY ADJUDICATION AND DISPOSITION AFFIRMED (COUNT ONE); INDECENT BEHAVIOR WITH A JUVENILE ADJUDICATION AND DISPOSITION REVERSED (COUNT TWO).