State of Louisiana v. Charles Hearnsberger

Judgment rendered March 1, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,906-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHARLES HEARNSBERGER Appellant

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 19-CR-30361

Honorable Amy Burford McCartney, Judge

*****

LAW OFFICE OF BRYCE J. DENNY Counsel for Appellant
By: Bryce J. Denny

CHARLES B. ADAMS Counsel for Appellee
District Attorney

EDWIN L. BLEWER, III
LEA R. HALL, JR.
ETHAN P. ARBUCKLE
Assistant District Attorneys

*****

Before STONE, COX, and ELLENDER, JJ.

ELLENDER, J.

Charles Hearnsberger appeals his sentence of 49½ years at hard labor

(of which 19½ years were suspended) following his guilty plea to attempted

molestation of a juvenile under the age of 13, La. R.S. 14:81.2 A(1) and

D(1), and 14:27. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Seventeen-year-old Hearnsberger, a student at North DeSoto High

School, was doing odd jobs for his neighbor, DeSoto Parish Sheriff’s

Deputy Kyle Martin, and his wife, also a deputy. The Martins ran a sign

shop and an event center on their property in Stonewall.

On the evening of May 27, 2019, Ms. Martin asked Hearnsberger to

walk the couple’s daughters, four-year-old PM and three-year-old KM, from

the event center back to the house. Before they started, PM told

Hearnsberger that she had to use the bathroom, so he stopped with the other

child and let PM go. Moments later, PM asked him to help wipe her.

According to subsequent interviews with PM, Hearnsberger entered the

bathroom, got down on the floor lying face-up, lifted PM, and set her bare

bottom on his face. He then stuck out his tongue and licked her private

parts, all in full view of the younger sister. He then put PM’s panties back

on, walked the girls to the house, and, before they went in, told them not to

tell anyone what had happened.

Later that evening, however, the girls told their parents what

Hearnsberger had done in the event center restroom. Deputies took him into

custody on a charge of first degree rape; ultimately he was indicted for

molestation of a juvenile under the age of 13, La. R.S. 14:81.2 A(1) and

D(1).

In an interview at the Sheriff’s Office, Hearnsberger admitted what he

did to PM, but asserted he was acting on a “voice in the back of [his] head”

telling him he “had the opportunity to do something.” He also stated that he

had been bullied by schoolmates, physically abused by his mother, had been

suicidal, and was now self-mutilating for “physical punishment.”

His father got him released on bail and, in the following weeks, took

him to Dr. Cheryl Marsiglia, a licensed psychologist in Shreveport; Dr.

Katherine Smith, a psychiatrist at Brentwood Hospital in Shreveport; and to

Dr. Bruce McCormick, another psychologist in Shreveport. The state

obtained an order to have him examined by Dr. Lisette Wise, a psychologist

in Shreveport.

In July 2021, the state amended the indictment to charge Hearnsberger

with attempted molestation of a juvenile under the age of 13, R.S. 14:81.2

A(1) and D(1) and 14:27. Hearnsberger pled guilty as charged, with no

agreement as to the precise sentence but with an acknowledged range of 0-

49½ years.1 The court ordered a presentence investigation report (“PSI”).

SENTENCING HEARING

At the sentencing hearing, in September 2021, Hearnsberger’s father,

John, testified he was a former DPSO deputy and the victim’s mother had

been his supervisor. He further disclosed that he had been married five

times, and that Hearnsberger had been in his mother’s custody, in Texas,

until 2016, but he then took custody because the boy was being bullied at

school. He added Hearnsberger had done well at North Desoto High School

1
At the Boykin hearing, defense counsel stated that the range was “zero to forty-
nine,” but in the sentencing submission he acknowledged the maximum was actually 49½
years. Additionally, following defense counsel’s statement, the court indicated that
attempt requires one-half of the longest term of imprisonment, which the court previously
told the defendant was 99 years. Defendant indicated he understood.
2

and had no discipline problems, but was socially isolated. After this

incident, he was diagnosed by defense experts with autism, impulses to hurt

himself, and was probably not able to live independently anymore. John

testified that after these proceedings, he intended to take his son to

Nacogdoches, Texas, and have him interdicted there.

The defense also offered extensive medical and school records.

Notably, Dr. Marsiglia diagnosed Hearnsberger with autism disorder – mild

to moderate range, without intellectual impairment, with language

impairment, requiring substantial supports; ADHD – combined type,

moderate to severe; major depressive disorder in partial remission;

generalized anxiety disorder; and superior verbal intellectual functioning.

She found that his “social judgment and reasoning skills are limited and

insight and adaptive function reflect someone much younger.”

Similarly, Dr. Smith, the psychiatrist, found “Autism spectrum

disorder, Major Depressive Disorder, Generalized Anxiety Disorder,” and

PTSD.

The state called several witnesses. Dep. Kyle Martin, the victim’s

father, was understandably upset about what Hearnsberger had done to his

young daughter. He called the claim of autism “unbelievably disrespectful

to people with autism,” and added, “Mind you, that wasn’t even diagnosed *

* * until after you got arrested. Give me a break.” He said he accepted the

guilty plea only to get the matter behind them, and insisted that PM was “a

different kid than she was before.”

Dep. Lori Martin, the victim’s mother, elaborated that before, PM was

outgoing and friendly, but now she is scared and “closed off,” afraid to go to

the bathroom by herself, and has been diagnosed with “precocious puberty.”
3

She described that when the girls were walking back to the house that

evening, she had seen Hearnsberger crouching down to whisper to PM, but

she did not know about the incident until KM told her later. Further, when

she confronted Hearnsberger about it, he said the accusation was “absolutely

not true.” She agreed that Hearnsberger “did not have a good social

interaction with people his own age,” but she did not believe that he was

“mentally not knowing what is going on” when the incident occurred.

Two more DPSO deputies testified. Dep. Kelby Pearah testified that

since this incident, the Martins’ girls would not come over to visit with his

girls, and he could think of no other reason than the incident with

Hearnsberger. Then, Dep. Casey Hicks testified, admitting that he had

considered killing Hearnsberger. He stated, rather vehemently, “I don’t

think he [Hearnsberger] should be sitting here today. * * * If I wasn’t a cop,

we wouldn’t be sitting here today.” Turning to Hearnsberger, he said,

“Everybody is worried about him going to the DOC. You won’t survive it,

partner. No chance of it.”

The state also called its own expert, Dr. Wise, the psychologist who

had examined Hearnsberger for one day. She acknowledged the other

doctors’ reports, but she did not find support for their impressions of impulse

disorder or anxiety disorder, and felt it would be unusual for autism not to be

diagnosed sooner than it was here. She testified that Hearnsberger had

exhibited the functionality to drive himself from Stonewall to her office, on

Knight Street in Shreveport, and back for the one-day exam, and she saw no

need for assisted living, just some treatment for mild depression.

Finally, the state offered video of PM’s and KM’s interviews at

Gingerbread House, the children’s advocacy center in Shreveport. PM
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recounted, engagingly, how Hearnsberger lifted her up, sat her on his face,

and licked her “coo-coo.” KM described seeing this happen, and telling her

mother about it later. At the conclusion of this testimony and evidence, the

court took the matter under advisement.

ACTION OF THE DISTRICT COURT

At sentencing, in December 2021, the court recapped the evidence it

had reviewed. It acknowledged the diagnoses of autism, ADHD, major

depressive disorder, etc., but found that “not all of these * * * are adequately

supported by the record[.]” The court then cited the aggravating factors it

had considered: the victim was particularly vulnerable because of her age,

the defendant was a friend and employee of the family, the victim’s sister

saw the incident, and the defendant instructed the victim not to tell her

parents. It also cited some mitigating factors: the defendant had no history

of delinquency, and he was only 18 at the time of the offense.2 However,

further aggravating factors were that the victim’s personality had changed,

and the defendant got a substantial benefit from the plea bargain, as the

original charge was first degree rape.

Taking all these facts into account, the court sentenced Hearnsberger

to the maximum, 49½ years at hard labor, but suspended 19½ years, to be

followed by five years’ probation, with sex offender registration and a no-

contact order. Hearnsberger filed a motion to reconsider, which the court

summarily denied. This appeal followed.

2
According to the personal data in the medical records and the PSI, he was
actually 17.
5

APPLICABLE LAW

An appellate court uses a two-pronged test to review sentences for

excessiveness. First, the court must find that the sentencing court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

sentencing court is not required to list every aggravating or mitigating

circumstance, so long as it adequately considered them in particularizing the

sentence to the defendant. State v. Smith, 433 So. 2d 688 (La. 1983). The

goal of Art. 894.1 is to articulate an adequate factual basis for the sentence,

not to achieve rigid or mechanical compliance with its provisions. State v.

Lanclos, 419 So. 2d 475 (La. 1982); State v. West, 53,526 (La. App. 2 Cir.

6/24/29), 297 So. 3d 1081. There is no requirement that any specific factor

be given any particular weight at sentencing. State v. Taves, 03-0518 (La.

12/3/03), 861 So. 2d 144. As a general rule, maximum or near-maximum

sentences are reserved for the worst offenders and worst offenses. State v.

Cozzetto, 07-2031 (La. 2/15/08), 974 So. 2d 665. However, when the

defendant has pled guilty to an offense that does not adequately describe his

conduct or has received a significant reduction in sentencing exposure

through a plea bargain, the sentencing court has great discretion in imposing

even the maximum sentence for the pled offense. State v. Guzman, 99-1753

(La. 5/16/00), 769 So. 2d 1158; State v. Yetman, 54,883 (La. App. 2 Cir.

1/11/23), __ So. 3d __.

Second, the appellate court must determine whether the sentence is

constitutionally excessive. 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). A sentence is deemed grossly
6

disproportionate if, when crime and punishment are viewed in light of the

harm done to society, it shocks the sense of justice. State v. Weaver, 01-

0467 (La. 1/15/02), 805 So. 2d 166. The sentencing court has wide

discretion in imposing a sentence within statutory limits, and such a sentence

will not be set aside as excessive in the absence of manifest abuse of that

discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7. The

reviewing court may consider a comparison of the punishment in the

appealed case with sentences imposed for similar crimes. State v. Fruge, 14-

1172 (La. 10/14/15), 179 So. 3d 579; State v. Durham, 53,922 (La. App. 2

Cir. 6/30/21), 321 So. 3d 525.

Molestation of a juvenile when the victim is under the age of 13

carries a sentence at hard labor of not less than 25 years and not more than

99 years, including at least 25 years without benefits. La. R.S. 14:81.1 D(1).

The penalty for an attempt is imprisonment in the same manner as for the

offense attempted, with imprisonment that does not exceed one-half of the

longest term prescribed for the offense attempted, La. R.S. 14:27 D(3). In

this case, the maximum sentence was 49½ years at hard labor.

DISCUSSION

Hearnsberger raises three assignments of error. He concedes that he

“committed an act that everyone finds to be reprehensible,” but maintains

the sentence raises some “troubling issues” and is clearly excessive. He also

concedes the two-step review of sentences for excessiveness, under State v.

Dorthey, supra, and the abuse of discretion standard of review, under State

v. Williams, supra.

By his first assignment, Hearnsberger contends the court failed to

consider the “nonhyperbolic testimony by law enforcement that killing the
7

defendant was contemplated” as well as its “taunting [of] the defendant

about not surviving prison.” He argues this evidence accentuates the

mitigating factor of Art. 894.1 B(31), “imprisonment of the defendant would

entail excessive hardship to himself,” by showing that jail time for this

defendant is tantamount to a death sentence.

The state responds that Hearnsberger’s contention about Dep. Hicks’s

testimony is inconsistent: if these remarks were “problematic,” then the

court could not have erred by failing to consider them.

The district court did not explicitly state whether it considered the

contested testimony, but the selection of the maximum sentence (subject to

about 40% suspension) shows a full apprehension of the gravity of the

offense and the public’s likely reaction of outrage when they learned about

it. The contested testimony might reflect poorly on this witness’s

temperament as a law enforcement officer, but the district court was in the

best position to decide whether one witness’s personal animosity should

militate in favor of a longer or shorter sentence. In light of the long and

thoughtful reasons given, we cannot say the district court failed to consider

this testimony or assigned it too little (or too much) weight.

By his second assignment, Hearnsberger urges the court erred in

ignoring all the medical evidence presented by both the state and defense

concerning his autism and mental health issues. Again citing Art. 894.1

B(31) and, now, B(34), “relevant mitigating circumstances,” he argues these

diagnoses will make it hard for him to survive in prison. He believes that

both his expert, Dr. Marsiglia, and the state’s, Dr. Wise, agreed on the major

findings but the court, inexplicably, found their statements not adequately

supported by the record. Further, he submits there is no record evidence that
8

the diagnoses are contrived or that he poses a risk for future sexual

misconduct. He concludes that the type of “supervision rendered by his

father” since bonding out is clearly adequate.

The state responds that the court did not fail to consider the medical

evidence; rather, it declined to assign it the weight that the defense felt it

should receive. The state reiterates the court was under no obligation to

assign any particular weight to any specific sentencing factor, State v.

Williams, 34,370 (La. App. 2 Cir. 2/28/01), 781 So. 2d 682, and the court’s

assessment of the medical evidence was reasonable.

We have closely examined the expert reports and testimony. While

the defense experts’ views share some features with the state’s, contrary to

defendant’s argument, the differences are salient enough to support the

district court’s conclusion. Notably, Dr. Wise examined Hearnsberger and

did not find impulse disorder, anxiety disorder, PTSD, or a head injury; all

she found was mild depression. She also noted he understood what she was

asking of him, appeared to understand the legal proceedings against him, and

was cognitively functional enough to drive himself from Stonewall to an

office in east Shreveport. In short, she saw nothing resembling what

Hearnsberger’s father described, a young man needing constant supervision,

being kept “under his [father’s] thumb,” and a candidate for legal

interdiction. This record offers sufficient facts for the district court to reject

Dr. Smith’s dire prediction that Hearnsberger cannot live independently

without “a myriad of supports in place.” This assignment does not present

reversible error.

By his third assignment, Hearnsberger urges the court imposed a

sentence that was incomparably harsh compared to similarly situated DeSoto
9

Parish defendants. He contends this particular district court judge has

proved herself “to be a tough sentencing judge on sex cases.” He cites State

v. Muniz,3 in which a 15-year-old pled guilty to molestation (not attempt),

after full intercourse with a 5- or 6-year-old girl and with psychiatric

evidence that he was at risk for similar future misconduct; that defendant

received 25 years, only five without suspension. He also refers to State v.

Remedies,4 in which the defendant pled guilty to molestation, with an eight-

year cap, and the court imposed eight years, four suspended. Hearnsberger

concludes by asking this court to reduce his sentence “to one that is

appropriate” or to “remand this case to the trial court for further

proceedings.”

The state does not address the third assignment of error.

Hearnsberger correctly shows the court may consider a comparison of

the punishment in the appealed case with those imposed for similar crimes.

State v. Fruge, supra; State v. Durham, supra. By the measure of Muniz and

Remedies, and in the absolute sense, the instant sentence appears very harsh.

However, the district court was also entitled to consider the benefit of the

plea bargain. State v. Guzman, supra; State v. Yetman, supra. As originally

charged with first degree rape, Hearnsberger faced a mandatory life without

benefits, La. R.S. 14:42 D(1); as originally indicted for molestation of a

juvenile under the age of 13, he faced a sentence range of 25 to 99 years at

hard labor, including at least 25 years without benefits, La. R.S. 14:81.2

D(1). His conduct might have supported a conviction on the former, and

3
Cited in his appellate brief as DeSoto docket 16-CR-02846.
4
Cited in his motion to reconsider as DeSoto docket CR-13-24772.
10

certainly would have supported a conviction on the latter. By the plea

bargain, he faced a maximum of 49½ years, which is very long but still an

improvement over his initial exposure. The court suspended roughly 40% of

the sentence, resulting in an actual time of 30 years, notably less than his

initial exposure.

The court also considered the harm to this four-year-old victim: after

this incident, her personality changed, she became less outgoing, was afraid

to go to the bathroom by herself, and showed signs of precocious puberty.

Our viewing of the Gingerbread House videos confirms some level of effect

on the victim and her three-year-old sister, who witnessed the incident.

These facts militated in favor of a longer sentence.

In light of the comparison with other sentences, the benefit of the plea

bargain, the effects on this very young victim, and the youth and

psychological status of the defendant, we cannot say this sentence shocks the

sense of justice. State v. Weaver, supra.

Finally, we have reviewed the entire record and find nothing we

consider to be error patent. La. C. Cr. P. art. 920 (2).

CONCLUSION

For the reasons expressed, we affirm the conviction and sentence.

AFFIRMED.

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