DREW, J.
Charles Ray Davis was convicted by a jury of three counts of molestation of a juvenile, La. R.S. 14:81.2(A). He was adjudicated on count three as a second-felony habitual offender and sentenced as follows:
The three sentences were ordered to be served concurrently. The defendant was ordered to register as a sex offender and to pay court costs or, in default, to serve an additional one year in jail.
We analyze defendant's seven assignments of error in five categories, as variously preserved through various timely motions:
We affirm all three convictions.
The record reflects that the defendant is indigent. Accordingly, we strike the default jail time should he fail to pay court costs.
We affirm the sentences on Counts Two and Three. We amend the sentence on Count One, and as amended, affirm.
Davis was charged with violating La. R.S. 14:81.2(A) and (C) on Count One, and with violating La. R.S. 14:81.2(A) and (E)(1) on Counts Two and Three. All relevant criminality occurred in the early Fall of 2010.
The state filed a successful notice of intent to use videotaped testimony of the victims at Gingerbread House Children's Advocacy Center.
The state successfully excluded testimony from Tremaine Lee Haas, who would have testified that he was falsely accused of inappropriate sexual conduct by M.G.
Haas testified in a closed hearing that M.G. had written his name on her bedroom wall, accusing him of inappropriate conduct. The trial court cogently stated its reasoning in granting the state's motion.
• she referred to Davis as "Uncle Dolla" and he lived at her house;
• he had three incidents of inappropriate sexual contact with her;
• the first time happened in September 2010, on which date Davis was drunk when he entered her room;
• he rubbed her stomach and legs, asked her for five minutes, removed his clothing, got on top of her, and put his penis inside of her vagina;
• she jumped up and Davis left her room;
• the second time was the following week when she and Davis were alone at her home because her mother had gone to the country;
• Davis entered her room and began feeling under her clothes, but stopped when he heard M.G.'s brother enter the home;
• the third time was October 7, 2010, when
• both girls were in
• Davis also touched
• she did not tell her family members or teachers about what Davis did;
• Davis never told her not to tell anyone; and
• he never gave her anything after the three incidents.
• her nickname was "My-My" and she referred to Davis as "Dolla";
• he was her mother's boyfriend, and he sometimes stayed at her house;
• she sometimes slept over at M.G.'s, as they went to the same school;
• she was born on December 22, 1998;
• Davis touched her breasts at M.G.'s home on October 7, 2010;
• he also touched other bodily areas through her clothes;
• Davis never touched her in her own home;
• she did not tell her family about this;
• Davis never threatened her and never gave her anything.
• she was born on April 9, 1996;
• she called the defendant "Dolla";
• Davis was her mother's boyfriend;
• he sometimes stayed over at her home;
• he had touched her breasts on top of her clothing;
• she saw Davis touch M.T.-1 and grab her chest;
• she told her older siblings about Davis touching her, and
• Davis never threatened her and never gave her anything.
• M.G.'s hymen and anus were normal, with no bleeding;
• such results were not unusual, in that not all abuse causes injury and that an injury may heal over time, and tissue can heal or stretch; and
• it was possible that the child's hymen had healed from recent abuse.
• he never molested these alleged victims;
• he shared a child with Tracey Turner (mother of M.T.-1 and M.T.-2);
• he had prior criminal convictions;
• he sometimes stayed over at his girlfriend's home;
• he was never in charge of M.G., and was alone with her only if everyone else had left or if he had to take her to school; and
• he never gave M.G. money to "hush up."
The defendant argues that all required elements of the charged crimes were not proven beyond a reasonable doubt. In support, he further asserts:
• that there was no evidence of any physical injury or trauma to M.G. (the one victim who alleged penetration);
• the lack of any immediate reports of the three alleged victims despite living in homes surrounded by trusted family members as well as daily contact with trusted school officials;
• the lack of any evidence that the defendant threatened the alleged victims or their family members; and
• the lack of any evidence that the defendant offered, promised, or gave anything of value to the alleged victims in return for the silence.
Our law relative to appellate review of sufficiency is well settled.
A conviction for molestation of a juvenile requires proof that:
Specific criminal intent is the state of mind that exists when the offender actively desired the prescribed criminal consequences to follow his act or failure to act
The term "lewd" is defined as lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. "Lascivious" is the excitement of lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals relative to sexual relations.
It is not disputed that the defendant was over the age of 17, that all three victims were under the age of 17 at the time of the sexual offense, and that the defendant was more than two years older than each victim.
There was evidence that the defendant had touched the breasts of M.T.-1 and M.T.-2, and that he engaged in sexual intercourse with M.G.
A rational trier of fact could have found that the defendant's behavior justified a finding of a lewd and lascivious act on each count.
With regard to the last element, specifically the use of influence by virtue of a position of control or supervision over the juvenile, M.G. testified that the defendant was her uncle who lived with her, and she was alone with him during one of the incidents of sexual contact.
Both M.T.-1 and M.T.-2 testified that the defendant was their mother's boyfriend, that he was the father of their youngest sibling, and that he also lived with them. In illustrating the various relationships that involved supervision and control, this court has noted that our jurisprudence reflects numerous cases involving molestation accomplished by virtue of control and/or supervision by non-custodial parents, babysitters, relatives, friends, and neighbors.
Defendant argues that there was no evidence presented of any physical injury or trauma to M.G. A conviction for the crime of molestation of a juvenile does not require such a showing.
The defendant points out the lack of any immediate reports by the alleged victims despite living with trusted family members and having daily contact with school officials. The jury rejected this argument. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have found sufficient evidence to render the three guilty verdicts.
The state successfully sought to exclude the testimony of Tremaine Lee Haas. The defendant complains that this ruling denied his constitutional right to a fair trial, to which the state responds that no prejudicial error was shown, and there was nothing in the excluded testimony that deprived the defendant of his right to a fair trial. The right of an accused sex offender to present a defense must be balanced against the victim's interests in
The criteria to be used by the trial court in considering a motion for new trial is set out in La. C. Cr. P. Art. 851.
The decision on a motion for a new trial rests within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 2010-2072 (La.11/19/10), 48 So.3d 275.
The trial court held a closed hearing to determine whether reasonable jurors could find that the victim had made prior false accusations. Based on the defendant's argument, it does not appear that the exceptions applied to the facts at hand. In
The defendant argues that there was never an inquiry into any of the three minor victims' alleged competency in that the victims were never asked the difference between right and wrong in court or during the Gingerbread House interviews.
The state responds that the defense did not object to the introduction of the videos or photographs. Without a contemporaneous objection, the defendant is barred from raising this claim on appeal, pursuant to La. C. Cr. P. art. 841. In addition, the state argues that the introduction of the videotaped testimony complied with the statutory requirements of La. R.S. 15:440 and each of the three victims did, in fact, testify in open court and were subject to cross-examination by the defense.
The statutory provisions regarding the admissibility of videotaped recordings are found in La. R.S. 15:440 et seq.
The defendant argues that since the jury foreperson reported a verdict on only two of the three charges, the judge should not have ordered further deliberations. Though the defendant technically objected to continued deliberation, no contemporaneous motion for a mistrial was made. Our law on mistrials is clear.
This transcript does not support any claim of a deadlocked jury. The trial court's colloquy with the foreperson was reasonable and brief. The jury only required a total of three and one-half hours to reach all three verdicts. The trial court was reasonable in allowing further deliberation.
The defendant attacks his sentences on Counts One and Three
At the time the defendant molested the victim referenced in Count One, that child was over 13 years of age. This exposed him to a sentence of five to 20 years at hard labor, a fine of up to $10,000, or both.
As error patent, we note that part of defendant's sentence on Count One was ordered to be served without benefits. When this crime was committed, La. R.S. 14:81.2(C) did not provide for any denial of benefits. Accordingly, we remove that prohibition.
At the time the defendant molested the other two victims, those children were not yet 13 years old. The sentencing parameters for Counts Two and Three were from 25 to 99 years at hard labor, with at least 25 years to be served without benefits. In addition, the defendant was adjudicated as a second felony offender on Count Three, further increasing his maximum exposure to 198 years at hard labor without benefits on that count alone.
We affirm all convictions and the sentences on Counts Two and Three. We amend the sentence on Count One by deleting any prohibition against benefits. As amended, we affirm that sentence.
AFFIRMED IN PART, AMENDED IN PART, AND, AS AMENDED, AFFIRMED.
It is the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (1993); State v. Bonnett, 524 So.2d 932 (La.App. 2d Cir.1988), writ denied, 532 So.2d 148 (1988). The trier of fact senses first hand the testimony and unless the fact finder's assessment of believability is without any rational basis it should not be disturbed by a reviewing court. State v. Mussall, 523 So.2d 1305 (La.1988); State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (1992).
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.
In a prosecution for sexually assaultive behavior, art. 412 prevents the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. If the defendant wishes to offer evidence pursuant to one of the exceptions, he must file a notice of intent to do so. La. C.E. art. 412 C. The court must then hold a closed hearing to determine whether the offered evidence is admissible. La. C.E. art. 412(E). State v. Frith, 32,796 (La.App.2d Cir.12/8/99), 747 So.2d 1269, writ denied, 2000-0419 (La.1/26/01), 781 So.2d 1256.
When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied. State v. Smith, 98-2045 (La.9/8/99), 743 So.2d 199.
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
La. R.S. 15:440.5. Admissibility of videotaped statements; discovery by defendant.
Second, a sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A trial court has broad discretion in sentencing offenders. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La. App.2d Cir.11/3/10), 55 So.3d 90.
A trial court has wide discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id. As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802.
