State of Louisiana v. Felton Cofield Bey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-277

STATE OF LOUISIANA

VERSUS

FELTON COFIELD BEY

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 9594-99
HONORABLE DAVID KENT SAVOIE, DISTRICT COURT JUDGE

**********
ULYSSES GENE THIBODEAUX
JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Sylvia R. Cooks, and Billy Howard
Ezell, Judges.

EZELL, J., CONCURS AND ASSIGNS WRITTEN REASONS.

AFFIRMED AND REMANDED WITH
INSTRUCTIONS.

Robert Richard Bryant Jr.
District Attorney
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Carla Sue Sigler Esq.
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
Kenota Pulliam Johnson

La. Appellate Project
9963 Trailridge Dr.
Shreveport, LA 71106
Telephone: (318) 524-1024
COUNSEL FOR:
Defendant/Appellant - Felton Cofield Bey

THIBODEAUX, Judge.

The Defendant, Felton Cofield Bey, appeals his conviction by a jury of

molestation of a juvenile, a violation of La.R.S. 14:81.2, on the basis of insufficiency

of the evidence and his sentence of eight years at hard labor, with four years

suspended, on the basis of excessiveness.

We reject both contentions and affirm his conviction and sentence.

FACTS

The Defendant was dating V.M., the mother of the victim.1 He visited

her residence while V.M. was at work and enticed J.M. into her mother’s bedroom.

Once inside the room, the Defendant began “tongue kissing” J.M. and rubbing her

breast and vaginal areas. J.M. testified that he implored her to avoid writing about his

actions in her diary as this would implicate him. Part of the incident was witnessed

by L.M., J.M.’s sister. J.M. also told her what had happened. L.M. promptly

telephoned their mother.

The Defendant denied touching J.M. in any manner.

SUFFICIENCY OF THE EVIDENCE

The Defendant contends the evidence presented at trial was insufficient

to support the conviction of molestation of a juvenile. The Defendant specifically

contends that he did not molest the victim and the testimony at trial was hearsay and

inconsistent.

In reviewing sufficiency claims, this court has made the following

observations:

1
The victim, J.M., is a minor. Accordingly, her initials and those of her family members will
be used in accordance with La.R.S. 46:1844(W).

1

When the issue of sufficiency of evidence is raised
on appeal, the critical inquiry of the reviewing court 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of
the fact finder to weigh the respective credibility of the
witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson
standard of review. See State ex rel. Graffagnino [v. King],
436 So.2d 559 [La.1983], (citing State v. Richardson, 425
So.2d 1228 (La.1983)). In order for this Court to affirm a
conviction, however, the record must reflect that the state
has satisfied its burden of proving the elements of the crime
beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97),
695 So.2d 1367, 1371.

State v. Paddio, 2002-722, p. 2 (La.App. 3 Cir. 12/11/02); 832 So.2d 1120, 1123.

When circumstantial evidence is used to prove the
commission of the offense, La.R.S. 15:438 mandates that
"assuming every fact to be proved that the evidence tends
to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence." This is not a purely
separate test from the Jackson sufficiency standard to be
applied instead of a sufficiency of the evidence test
whenever circumstantial evidence forms the basis of the
conviction. Ultimately, all evidence, both direct and
circumstantial must be sufficient under Jackson to satisfy
a rational juror that the defendant is guilty beyond a
reasonable doubt.

State v. Rosiere, 488 So.2d 965, 968 (La.1986).

State v. Oxley, 00-1523, p. 2 (La.App. 3 Cir. 5/16/01); 802 So.2d 35, 37.

The Defendant was convicted of molestation of a juvenile, a violation of

La.R.S. 14:81.2.

To convict a defendant of molestation of a juvenile,
the state must prove: (1) the defendant is a person over the
age of 17; (2) the victim is a person under the age of 17; (3)

2

there is an age difference of at least two years between the
persons; (4) the defendant committed a lewd or lascivious
act upon the person or in the presence of the victim; (5) the
defendant committed such act with the intention of arousing
or gratifying the sexual desires of either the defendant or
the victim; and (6) the defendant committed the act either
by the use of (a) force, violence, duress, menace,
psychological intimidation, or threat of great bodily harm,
or (b) influence by virtue of a position of control or
supervision over the victim. (Citations omitted).

State v. Mickens, 31,737, p. 3 (La.App. 2 Cir. 3/31/99); 731 So.2d 463, 466.

Age

J.M. testified that she was twelve years old on November 15, 1998. The

Defendant testified that his oldest child was thirty-five. Obviously, the Defendant

exceeds the age of seventeen. Thus, there is an age difference of at least two years

between the Defendant and J.M.

Lewd or Lascivious Act

The trial court chose to believe the testimony of J.M. regarding the

specific acts of the Defendant. He denied those acts. The trier of fact made a

credibility determination which we shall not disturb.

Intention of Arousing or Gratifying Sexual Desires

Quite simply, the acts of intrusion under the shirt and bra and touching

of the breasts and vaginal area were sufficient to prove the essential element of

specific intent to arouse or gratify sexual desire.

Supervision

The record is replete with evidence supporting the acts of Defendant in

babysitting the minor children of V.M., assigning chores to them, and disciplining

them. L.M. described Defendant as “pretty much of a father figure.” Indeed, the

3

Defendant specifically testified he was in control of everyone in the victim’s house

on November 15, 1998 and the minors were under his supervision.

The Defendant forcefully contends that the inconsistent testimonies of

J.M. and L.M. bolsters his position that the evidence is too insufficient to warrant a

conviction. We disagree. Only one of the alleged inconsistencies deals with the

actions of the Defendant in molesting J.M. That inconsistency is the difference in the

testimony of J.M. and L.M. regarding the actions of the Defendant. However, J.M.’s

testimony concerning the Defendant’s actions was corroborated by the testimony of

V.M., her mother. All other inconsistencies do not affect the conclusion that the

Defendant molested J.M.

The Defendant further attempts to discredit J.M. and L.M. by asserting

that they concocted the molestation charge to remove him from their lives. Moreover,

L.M.’s and J.M.’s accusations were vindictive because he, the Defendant, had

punished J.M. for stealing candy on November 13, 1998. Again, the trier of fact made

credibility determinations. We shall not disturb such determinations.

EXCESSIVE SENTENCE

In his second assignment of error, the Defendant contends the trial court

imposed an excessive and unconstitutional sentence in light of the lack of specific

facts and in the circumstances of this case. In his third assignment of error, the

Defendant contends the sentencing judge erred in failing to satisfactorily comply with

the requirements of Article 894.1 of the Louisiana Code of Criminal Procedure in

sentencing the appellant. In his fourth assignment of error, the Defendant contends

the trial court erred in denying his Motion to Reconsider Sentence. Inasmuch as these

three assignments of error concern the Defendant’s sentence, they will be addressed

together.

4

In State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96); 677 So.2d 532, writ

denied, 96-1767 (La. 12/06/96); 684 So.2d 924, this court held:

Article 1, § 20 of the Louisiana Constitution of 1974,
prohibits “cruel, excessive, or unusual punishment.” A
sentence which falls within the statutory limits may
nevertheless be excessive under the circumstances. State v.
Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527
So.2d 601 (La.App. 3 Cir. 1988). To constitute an
excessive sentence this court must find that the penalty is
so grossly disproportionate to the severity of the crime as
to shock our sense of justice or that the sentence makes no
measurable contribution to acceptable penal goals and,
therefore, is nothing more than needless imposition of pain
and suffering. State v. Campbell, 404 So.2d 1205
(La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.
1988), writ denied, 536 So.2d 1233 (La.1989). The trial
judge is given wide discretion in imposing a sentence, and
a sentence imposed within the statutory limits will not be
deemed excessive in the absence of manifest abuse of
discretion. State v. Howard, 414 So.2d 1210, 1217
(La.1982).

Id. at pp. 3-4, 534-35.

With respect to the issue of compliance with La.Code
Crim.P. art. 894.1, this court stated in State v. Anderson,
95-1688, p. 4 (La.App. 3 Cir. 5/8/96); 677 So.2d 480, 483:

The Legislature has provided criteria to
aid a sentencing court in determining whether
a sentence of imprisonment should be
imposed and whether suspension of a sentence
or probation is warranted. La.Code Crim.P.
art. 894.1; State v. Klause, 525 So.2d 1076
(La.App. 3 Cir. 1988). Paragraph C of
Article 894.1 requires the court to state for the
record the considerations taken into account
and the factual basis used when imposing a
sentence. The sentencing court need not
articulate every circumstance or read through
a checklist of items to comply with the
requirements of La.Code Crim.P. art. 894.1.
State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.
1992). However, the record must
affirmatively reflect that adequate
consideration was given to the codal
guidelines in particularizing the defendant's
sentence. State v. Smith, 433 So.2d 688
(La.1983).

5

If there is an adequate factual basis for
the sentence contained in the record, the trial
court's failure to articulate every circumstance
listed in Article 894.1 will not necessitate a
remand for resentencing. State v. Cottingin,
476 So.2d 1184 (La.App. 3 Cir. 1985), appeal
after remand, 496 So.2d 1379 (La.App. 3 Cir.
1986); State v. Morgan, 428 So.2d 1215
(La.App. 3 Cir. 1983), writ denied, 433 So.2d
166 (La.1983); See also, Smith, 433 So.2d 688
and State v. Stein, 611 So.2d 800 (La.App. 3
Cir. 1992). Even though art. 894.1 has
undergone several major revisions, the
reasoning used in these cases is still
applicable.

State v. Iron, 2000-1238, p. 10 (La.App. 3 Cir. 2/15/01);
780 So.2d 1123, 1128, writ denied, 2001-1232 (La.
3/15/02); 811 So.2d 898, reconsideration denied, 2001-
1232 (La. 6/7/02); 817 So.2d 1142.

As stated in State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir. 1985),

appeal after remand, 496 So.2d 1379 (La.App. 3 Cir. 1986):

There are two underlying purposes of the codal
requirement that the sentencing court articulate the specific
reasons based on particular facts and considerations for
imposing a sentence. First, it ensures that the sentence is
particularized to the defendant. State v. Murdock, 416
So.2d 103 (La.1983). In addition, it aids the reviewing
court in the determination of whether the sentence imposed
is excessive by providing an actual indication of whether
the sentencing court adequately considered the statutory
guidelines. State v. Murdock, supra; State v. Forshee, 395
So.2d 742 (La.1981); State v. Perry, supra.

Id. at 1186.

The Defendant contends the court failed to give adequate consideration

to the mitigating factors in this case including the fact that the Defendant is a husband,

his wife was pregnant, he was a church goer, and an active and positive influence in

the community. The Defendant also contends that the sentence imposed in this case

was not justified and not tailored to this Defendant for this particular crime.

6

The Defendant was sentenced to eight years in the custody of the

Louisiana Department of Corrections; however, four years of the sentence was

suspended and, upon the Defendant’s release from incarceration, he was ordered

placed on supervised probation for a period of five years.

The Defendant spoke at sentencing asserting he did nothing wrong and

did not touch any of V.M.’s children “in any immoral fashion at all.

The judge made the following comments at sentencing:

And I think [the jury] judged your credibility to be
someone that they could not believe, --

* * *

-- based on several of the things that happened during the
course of that trial.

* * *

You still to this day deny that you had any involvement at
all and you did anything wrong, and that was the position
you took during the course of your trial. And the jury, you
know, just basically threw that away. They didn’t think
that you were telling the truth. They didn’t believe
anything that you said because of several conflicting things
and other people coming to court who they believed
contrary to what you said. Okay.

* * *

And then I get the pre-sentence report and it shows that
when -- I don’t know, in the ‘70s or something like that,
you impregnated your 12-year old stepdaughter. This child
was about the same age as this child, okay. You got a heck
of a break out of that deal, you served some time on
probation, and then you had it wiped off your record, but
you hid that from us, you didn’t talk about that at all during
the course of your trial . . . .

The Defendant responded as follows:

Through that time period, I was a practicing
alcoholic, so I did a lot of blackouts. I had no knowledge
of anything that I had done improper.

* * *

7

After about a year or so one of the young men in the
community came to me and said to me, do you know that
that child is not yours? I took that information to the
probation department, to my probation officer.

* * *

[H]e said the best thing to do is leave it alone. So I went
through that, served that probation. In 1989 that then
young woman and her sister came to my house and she . .
. told me that she was wrong for accusing me of something
that I didn’t do . . . .

When questioned regarding whether or not he had sexual intercourse with his

stepdaughter, the Defendant denied the allegations.

The judge then made the following comments:

In explaining this, the offender says that he -- that
had sex with his 12-year old stepdaughter and was
convicted. Now, it seems to me that if you had an
explanation like you have given this court an explanation,
you would have told your probation officer at that time that
that’s what had happened. It seems to me that when you
were asked questions similar to this question during the
course of the trial, you would have made an effort to try to
explain that.

* * *

The Court has reviewed the pre-sentence report,
heard statements of the victims’ (sic) mother, looked at the
supplement to the pre-sentence report, listened to the
explanation of the defendant. I’m satisfied that during --
there’s an undue risk that during any period of a suspended
sentence the defendant will commit another crime and he’s
in need of correctional treatment or custodial environment
that can be provided most effectively by commitment to an
institution, and a lesser sentence would depreciate the
seriousness of your crime.

* * *

It’s also clear to me that you knew or should have
known that the victim of the offense was particularly
vulnerable or incapable of resistance due to her youth, and
by your own admission at trial, you used your position and
status to facilitate the commission of the offense. I do not
find hardly anything mitigating.

8

The judge then sentenced the Defendant.

After the judge sentenced the Defendant, the Defendant informed the

court that his wife was pregnant, his mother was having strokes regularly and he was

her caretaker, he was about to lose his house, he was chairman of the district

Alcoholics Anonymous, and had recently started a Cocaine Anonymous in the area.

The judge responded to the Defendant’s comments as follows:

The Legislature saw fit to say that you could get up to -- not
less than one year nor more than 10 years. I didn’t give you
the maximum time. I didn’t give you the minimum time,
either, because I feel like that this is a situation that you
knew, you had gotten yourself into before.

* * *

I’m sorry that it creates a hardship for you, it creates a
hardship for your family, but I didn’t bring that hardship on
your family; you brought that hardship on your family.

After these statements, the State informed the judge that the maximum

sentence applicable in this case was fifteen years. The judge then stated that he did

not think the Defendant had been “specifically charged with something like that.” The

State contended the Defendant was charged under the supervision provision of La.R.S.

14:81.2 because the bill had been amended. The judge then made the following

comments:

There was testimony to that effect, but I’m not
treating it in that fashion. Potentially you could have been
subjected to 15 years. I’m treating it as if your maximum
would be 10 years. Mr. Kimball thinks I ought to treat it
the other way, but I’m giving you the benefit of the doubt.

The Defendant then informed the judge that he had to have surgery on

his back due to spinal compression.

The Defendant filed a Motion to Reconsider Sentence on May 12, 2002,

asserting the following: “Defendant submits that the sentence imposed is unduly

harsh and places a severe burden on himself and his family. Furthermore, the sentence

9

imposed in this matter creates an emotional and financial hardship upon Mr. Cofield-

Bey’s wife.” The motion was denied.

An Amended Motion to Reconsider Sentence was filed on May 12, 2002.

The motion alleged that prior to sentencing, the Defendant was evaluated by Dr.

Aretta Rathmal and he intended to submit her findings at sentencing. However, Dr.

Rathmal could not locate the Defendant’s file until after sentencing. The Defendant

contended the evaluation would serve as a mitigating factor at sentencing.

A hearing was held on Defendant’s Amended Motion to Reconsider

Sentence on May 31, 2002. The judge considered Dr. Rathmal’s report stating the

Defendant was basically normal and had no problems that would require the Court to

treat him differently. The judge then stated that if he had had the report on April 19,

2002, the date of sentencing, it would not have made any difference in the sentence

imposed. The judge then noted that the fact that the Defendant’s wife was pregnant

did not change anything. The judge denied the motion.

At sentencing, the judge noted he considered the pre-sentence

investigation report (PSI), the supplement to the PSI, the testimony of the victim’s

mother, and the Defendant’s statements. The judge also considered several factors set

forth in La.Code Crim.P. art. 894.1 before sentencing the Defendant. Although the

trial court did not articulate every factor set forth in Article 894.1, the record clearly

reflects the judge adequately considered those factors. Also, there is no requirement

that specific mitigating factors be given any particular weight by the sentencing court.

State v. Dunn, 30-767, p. 2 (La.App. 2 Cir. 6/24/98); 715 So.2d 641, 643.

The bill of indictment was amended to reflect “or by use of influence by

virtue of a position of control or supervision over the juvenile” on June 25, 2001. The

trial court sentenced the Defendant based on a maximum penalty of ten years.

Inasmuch as the bill of indictment was amended to add the portion of La.R.S. 14:81.2

10

pertaining to supervision over the juvenile, we will review the Defendant’s sentence

under La.R.S. 14:81.2(C).

Louisiana Revised Statutes 14:81.2 provides, in pertinent part:

C. Whoever commits the crime of molestation of a
juvenile when the offender has control or supervision over
the juvenile shall be fined not more than ten thousand
dollars, or imprisoned, with or without hard labor, for not
less than one nor more than fifteen years, or both, provided
that the defendant shall not be eligible to have his
conviction set aside or his prosecution dismissed in
accordance with Code of Criminal Procedure Article 893.

For this conviction of molestation of a juvenile over whom he had control

or supervision, the Defendant was exposed to a maximum sentence of fifteen years at

hard labor and a maximum fine of ten thousand dollars. The Defendant received a

sentence of eight years at hard labor, with four years suspended, and upon release will

be placed on supervised probation for five years. However, no fine was imposed. The

PSI indicates the Defendant is a first felony offender. However, in California in 1976,

the Defendant plead guilty to a misdemeanor wherein it was alleged that he had sexual

intercourse with and impregnated his twelve-year old stepdaughter.2 Considering the

circumstances of this offense and the reasons for sentencing given by the trial court,

we find no abuse of discretion in the sentence imposed.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find three

errors patent.

The first error concerns a condition of probation not imposed upon the

Defendant. Louisiana Code of Criminal Procedure Article 895 requires the court,

2
The PSI indicates the original charge was reduced to a misdemeanor and after sixty months
on probation, the conviction was set aside and dismissed.

11

when placing a defendant on probation, to pay a supervision fee. When remanding

a case for imposition of a supervision fee as a condition of probation, this court has

stated:

The defendant’s sentence does not necessarily have
to be vacated if the trial court decides to set the minimum
monthly supervision fee. See State v. Harris, 93-1098 (La.
1/5/96); 665 So.2d 1164. In Harris, the Louisiana Supreme
Court remanded the case and gave the trial court the option
of amending the court minutes to reflect the change in
sentence without bringing the inmate to court. The court
stated that the district judge retains the discretion to vacate
the sentence originally imposed and to resentence the
inmate in open court. Harris allowed ministerial
corrections of the record in instances where the trial court
failed to impose special restrictions required by law.
However, the trial court has some discretion in setting the
probation supervision fee, as it can impose a fee between
twenty and one hundred dollars per month. Therefore, if
the trial court opts to assess the minimum fee required by
law, it can correct the sentence in accordance with the
procedures set forth in Harris. However, if the trial court
wishes to set a higher fee, the trial court should vacate
defendant’s sentence and resentence him in open court.
Therefore, although we affirm the defendant’s conviction,
we must remand the case to the trial court with instructions
to set a monthly probation supervision fee to be paid in
accordance with article 895.1(C).

State v. Iles, 96-256 (La.App. 3 Cir. 11/6/96); 684 So.2d 38 at 40-41.

Likewise, we remand for the trial court to impose and set the amount of

a supervision fee. If the trial court sets the amount at the minimum fee, the trial court

can correct the sentence by following the procedures set forth in Harris. If, however,

the trial court wishes to set a higher fee, the sentence must be vacated and the

Defendant resentenced in open court.

The second error patent also concerns the sentence imposed upon the

Defendant. In imposing sentence, the judge stated:

THE COURT:

. . . I’m going to sentence you to serve a term of eight
years with the Department of Corrections, and I’m going to
suspend four years; put you on supervised probation upon
your release from jail, for a period of five years. The

12

defendant is not eligible to have the conviction set aside or
the prosecution dismissed in accordance with provisions of
Code of Criminal Procedure Article 893, and suggest that
the condition of parole shall include treatment in a qualified
sex offender program for a minimum of five years, or until
expiration of the sentence, whichever comes first, in
accordance with Louisiana Revised Statutes Section
14:81.2(d)(2). . . .

* * *

. . . There’s other conditions of parole as well that
include that you not be in the presence of any child without
another responsible adult around.

It appears the first condition of parole was suggested, not actually

imposed. The second condition, however, appears to have been imposed as a

condition of parole. Even though this condition of parole is applicable in some

situations, the sentencing judge in this case had no authority to impose it.3 “Even if

physically released on parole, the individual remains in the legal custody of the state

until release from parole. The trial court has no authority with regard to this phase of

the sentence and can impose no condition on the parole responsibilities of the parolee.

[Citation omitted].” State v. Bradley, 1999-364, p. 6 (La.App. 3 Cir. 11/3/99); 746

So.2d 263, 267. Thus, we vacate the trial court’s order imposing the condition of

parole concerning the Defendant’s contact with children.

Finally, the Defendant was not informed of the prescriptive period for

filing post-conviction relief as is required by La.Code Crim.P. art. 930.8. Thus, the

district court is directed to inform the Defendant of the provisions of Article 930.8 by

sending appropriate written notice to the Defendant within ten days of the rendition

of this opinion and to file written proof that the Defendant received the notice in the

record of the proceedings. See State v. Fontenot, 616 So.2d 1353, 1359 (La.App. 3

Cir.), writ denied, 623 So.2d 1334 (La.1993).

3
The conditions of parole listed in La.R.S. 14:81.2(D)(2) are applicable in situations where
the molestation has recurred during a period of more than one year. This case involved only one
incident of molestation.

13

CONCLUSION

The Defendant’s conviction and sentence are affirmed. However, we

vacate the trial court’s order imposing the condition of parole concerning the

Defendant’s contact with children. Additionally, the case is remanded for the trial

court to impose and set the amount of a probation supervision fee. If the trial court

sets the amount at the minimum fee, the trial court can correct the sentence by

following the procedures set forth in Harris. If, however, the trial court wishes to set

a higher fee, the sentence must be vacated and the Defendant resentenced in open

court. Finally, the district court is directed to inform the Defendant of the provisions

of Article 930.8 by sending appropriate written notice to him within ten days of the

rendition of this opinion and to file written proof that the Defendant received the

notice in the record of the proceedings.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

14

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

02-277

STATE OF LOUISIANA

VERSUS

FELTON COFIELD BEY

EZELL, J., concurring.

It appears to me that the legislature has again failed to protect the public
from those that would molest children. La.R.S. 14:81.2 D(1) addresses only
those crimes that recur during a period of more than one year. This does not
help those children that may be the victim of someone who is not brought to
the attention of the authorities until after a year of a repeat or second
molestation has occurred.

I agree with the trial judges attempt to protect the public by ordering a
convicted molester, if placed on parole not to be allowed to be alone with a
child without the supervision of another adult. One molested child is one to
many. I concur only because the law is as the legislature drafts it, not as I
would prefer it be drafted.