State of Louisiana v. J.T.S.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1059

STATE OF LOUISIANA

VERSUS

J.T.S.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 3599-00,
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

CONVICTIONS AFFIRMED; SENTENCE FOR
ATTEMPTED AGGRAVATED ORAL SEXUAL
BATTERY AFFIRMED; SENTENCE FOR
AGGRAVATED INCEST VACATED;
REMANDED FOR RESENTENCING.

Robert R. Bryant, Jr.
District Attorney
Carla S. Sigler
Assistant District Attorney
Post Office Box 3206
Lake Charles, Louisiana 70602
(337) 437-3400
Counsel for Plaintiff:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
J.T.S.

J.T.S.
Calcasieu Correctional Center
5300 East Broad Street
Lake Charles, Louisiana 70615
Defendant

SULLIVAN, Judge.

J.T.S. was charged by bill of information with one count of aggravated oral

sexual battery, a violation of La.R.S. 14:43.4, one count of aggravated incest, a

violation of La.R.S. 14:78.1, and one count of molestation of a juvenile, a violation

of La.R.S. 14:81.2. A jury convicted him of attempted oral sexual battery and

aggravated incest and acquitted him on the molestation of a juvenile charge. The trial

court sentenced Defendant to five years at hard labor without the benefit of parole,

probation, or suspension of sentence on the conviction for attempted oral sexual

battery, to twelve years at hard labor, six years suspended, on the conviction for

aggravated incest, and to five years active probation following his release from

incarceration. The trial court ordered that the sentences be served concurrently and

fined Defendant one thousand dollars, plus court costs.

On May 9, 2003, Defendant filed a motion to reconsider his sentences, which

was denied. Defendant appeals his convictions. In brief prepared by defense counsel,

Defendant argues the evidence was insufficient to convict him. Defendant also filed

a pro se brief in which he assigns as error the sufficiency of the evidence, the refusal

of the trial court to grant a continuance of the trial, and the terms of his sentences.

Facts

The charges against Defendant arise from reports by his daughter, K.S., that he

sexually abused her from April 1990 until February 1998. At the time of trial, K.S.

was seventeen years old. She testified that her father began molesting her when she

was five years old and stopped when she was twelve years old when she was taken out

of the family home by the authorities. She testified that, when she was five, her father

began to fondle her breasts and genitalia and to digitally penetrate her. She testified

that he did this often but there was no pattern to the occurrences. She also testified

that the level of abuse intensified as she grew older: he began forcing her to perform

oral sex acts on him; he performed oral sex acts on her; and he also attempted to

engage in intercourse with her.

K.S. testified that she told her mother that her father was touching her when she

was five years old, but her mother did nothing. Her mother admitted this. K.S. also

told her maternal aunt and maternal grandmother about the sexual abuse when she was

approximately nine years old. Both women corroborated this testimony and testified

that they threatened to report Defendant if he did not stop abusing K.S. Shortly

before the authorities were notified of this abuse, an incident occurred which triggered

the report of abuse to the authorities. K.S. testified that while she and her older

brother were watching television, her father lay down next to her on the sofa, covered

them with a blanket, and, unbeknownst to her brother, molested her in his presence.

After this incident, K.S. reported the abuse again to her grandmother. Again, her

grandmother did nothing, so she reported it to her school friend who went with her to

the school counselor. In turn, the school counselor reported the abuse to the proper

authorities. Investigation of K.S.’s claims resulted in this prosecution.

Errors Patent

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

patent on the face of the record. Our review of the record revealed two errors patent

with Defendant’s sentence for aggravated incest.

At the request of the State, the trial court ordered Defendant to pay restitution

for the cost of transferring witnesses. The trial court did not state its authority for

imposing restitution or set the amount of restitution. Unable to find specific statutory

or jurisprudential authority for this condition of probation, we first consider whether

it was authorized. To begin, we are mindful of the well-established tenet of statutory

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construction that criminal statutes are subject to strict construction under the rule of

lenity. State v. Carr, 99-2209 (La. 5/26/00), 761 So.2d 1271.

Louisiana Code of Criminal Procedure article 895 provides for the imposition

of restitution as a condition of probation. Under this article, restitution is

discretionary with the trial court. Louisiana Code of Criminal Procedure article

895(A)(7) provides that restitution is to be paid to the “aggrieved party for damage

or loss caused by [the defendant’s] offense.” Louisiana Code of Criminal Procedure

article 895.1 also provides for restitution. Restitution is mandatory under this

provision “where the victim or his family has suffered any direct loss of actual cash,

any monetary loss pursuant to damage to or loss of property, or medical expense.”

La.Code Crim.P. art. 895.1. The payment of money to various state agencies and

programs as a condition of probation is also specifically provided for in Article 895.1;

however, the State is not one of the programs specifically identified in subpart B of

the provision.

Louisiana Revised Statutes 46:1844(M) also authorizes the imposition of

restitution on a defendant on probation. While it provides for the imposition of

restitution as a condition of probation or parole, nothing in the statute, which is

entitled “Rights of Crime Victims and Witnesses,” indicates that the State is a proper

party for restitution. Subpart M of this provision is entitled “Victims’ Rights” and

refers to the “appropriate party;” however, a reading of the entire provision gives no

indication that the State is an “appropriate party” thereunder.

We have not found any case on point, but State v. Sanderson, 97-1281 (La.App.

3 Cir. 5/13/98), 715 So.2d 483, is similar. In Sanderson, the trial court awarded

restitution to the State for the foster care of a child born as a result of the defendant’s

criminal offense of carnal knowledge of a juvenile. Articles 895 and 895.1 were

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discussed, and this court found that the defendant could not be ordered to make

restitution to the State, specifically noting that the State is not listed in Article 895.1.

We find implicit in this holding the conclusion that the State was not an “aggrieved

party” under La.Code Crim.P. art. 895(A)(7) and restitution was not appropriate under

that provision either.

We find that the restitution awarded in the present case is not authorized by

La.Code Crim.P. art. 895, La.Code Crim.P. art. 895.1 or La.R.S. 46:1844(M) and

vacate that portion of Defendant’s sentence.

The trial court also ordered Defendant to pay a $1,000.00 fine plus court costs

as a condition of probation “according to a schedule to be worked out by the Office

of Probation and Parole.” It was error for the trial court not to establish a payment

plan for the fine and costs Defendant was ordered to pay. See State v. Fontenot, 01-

540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 and State v. Reynolds, 99-1847

(La.App. 3 Cir. 6/7/00), 772 So.2d 128. Accordingly, this matter is remanded to the

trial court for resentencing, and the trial court is instructed to establish a payment plan

for the fine and costs Defendant was ordered to pay as a condition of his probation.

Sufficiency of the Evidence

Defendant alleges that the State failed to prove beyond a reasonable doubt all

the elements of attempted aggravated oral battery and aggravated incest. His

arguments are premised on inconsistent statements K.S. made prior to and during the

trial and discrepancies between witnesses’ testimonies and K.S.’s testimony. He

asserts that these inconsistencies and discrepancies rendered K.S.’s testimony not

credible; therefore, he argues that the State failed to prove beyond a reasonable doubt

all the elements of the crimes. He also argues that, because there was no physical

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evidence to corroborate K.S.’s accusations of sexual abuse, the evidence was

insufficient.

Defendant’s primary argument regarding sufficiency of the evidence is that K.S.

is not to be believed. He does not contend that her testimony does not establish all of

the essential elements of attempted aggravated oral battery and aggravated incest as

defined by La.R.S. 14:43.4, La.R.S. 27, and La.R.S. 14:78.1, respectively. Therefore,

our only question on appeal is “whether the jury acted rationally in finding [K.S.’s]

testimony credible.” State v. Davis, 02-1043, p. 2 (La. 6/27/03) 848 So.2d 557, 558.

In this assignment, Defendant points to K.S.’s account of the incident

referenced above where she testified that he molested her in the presence of her

brother. According to K.S., Defendant entered the room and laid down with her on

the sofa while J.S. was sitting near by in a recliner. She further testified that he

covered them with a blanket, fondled her genital area, and digitally penetrated her

several times and that this activity lasted for twenty or thirty minutes.

Defendant next points to the testimony of K.S.’s older brother, J.S., who was

fifteen at the time of the incident. J.S. testified that he did not notice any unusual

activity between his father and K.S. under the blanket and that he never saw anything

to indicate that Defendant was sexually abusing K.S.

Defendant also points out that K.S. told a different story to Erica Garrett of the

Office of Community Services. At trial, K.S. admitted that she told Ms. Garrett that,

during the episode on the couch Defendant also performed oral sex acts on her, forced

her to do the same to him, and attempted to engage in intercourse with her. When

K.S. was cross-examined regarding these inconsistencies and the other differences

in her story, she explained: “There were–there were thousands of times, there were

lots of times. I don’t know the details, you know, but I know what happened.”

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In addition to this inconsistency, Defendant points out that K.S. testified that

she had seen him ejaculate semen, yet Dr. Scott Bergstedt, the doctor who examined

her and questioned her regarding the abuse on behalf of the State, testified that she

told him she did not know if she ever saw “fluid” come out of Defendant’s penis.

Additionally, at various times throughout her testimony, K.S. contradicted herself

when she described the sexual acts as occurring several times a week to just a few

times a month.

Defendant also cites the lack of physical evidence as support for his claim that

the State failed to present sufficient evidence to convict him of aggravated incest and

attempted aggravated oral battery. However, Dr. Bergstedt testified that the type of

abuse alleged in this case, fondling and digital penetration, would not necessarily

result in physical signs of abuse. His testimony was not contradicted.

Defendant contends that K.S. made the accusations of sexual abuse because she

was mad at him for making her wear glasses and that, a month before the incident on

the couch, he found a letter by K.S. addressed to a boy and when he confronted the

boy’s parents, “K.S. was hurt.” He made similar excuses to Mr. Mire and Dr. Menou,

who found them unbelievable.

Defendant’s arguments ignore the fact that K.S. did not make just one

complaint of abuse prior to him being prosecuted. Instead, over the course of the

seven years of her abuse, she made at least four reports – the earliest to her mother

when she was approximately five years old. Her mother, grandmother, and aunt

admitted that she had reported the abuse to them and that they did not report

Defendant to the authorities. We further note that K.S.’s female cousin B.R. also

testified that Defendant had abused her a number of years before while she was

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visiting their home. Her description of Defendant’s actions were very similar to those

described by K.S.

The credibility of witnesses is within the sound discretion of the
trier of fact, who may accept or reject, in whole or in part, the testimony
of any witness. State v. Rowan, 97-21 (La.App. 5th Cir. 4/29/97), 694
So.2d 1052, 1056. Where there is conflicting testimony about factual
matters, the resolution of which depends on a determination of
credibility of the witnesses, this is a matter of the weight of the evidence,
not its sufficiency. State v. White, 472 So.2d 130, 132 (La.App. 5th Cir.
1985).

State v. Hotoph, 99-243, p. 12 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs

denied, 99-3477 (La. 6/30/00), 765 So.2d 1062; 00-150 (La. 6/30/00), 765 So.2d

1066. In State v. Dunn, 30,346, pp. 6-7 (La.App. 2 Cir. 2/25/98),708 So.2d 512, 517,

where the second circuit discussed the impact of impeachment on a witness’s

credibility:

When a witness is impeached, this simply means the jury, as the
trier of fact, is presented with evidence which it could consider and
weigh in determining the credibility, or believability, of a witness.
Simply because the witness may have been impeached by prior
inconsistent statements does not mean that the jury is prohibited from
believing anything said by the witness. The inconsistencies in the
witness’s statement are one of any number of factors the jury weighs in
determining whether or not to believe a witness’s trial testimony. State
v. Bender, 598 So.2d 629 (La.App. 3d Cir. 1992), writ denied, 605 So.2d
1125 (La.1992).

A reviewing court can only impinge upon the fact finder’s discretion to the

extent necessary to guarantee the fundamental protection of due process of law.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781(1979). Therefore, this court cannot

second-guess the credibility determinations of the jury beyond the Jackson sufficiency

evaluation. State v. Richardson, 425 So.2d 1228 (La.1983); State v. Viree, 95-176

(La.App. 3 Cir. 3/6/96), 670 So.2d 733, writ denied, 96-885 (La. 9/20/96), 679 So.2d

431.

This assignment is without merit.

7

Denial of Continuance

In a pro-se assignment of error, Defendant asserts that the trial court erred when

it denied his motion for continuance of the trial, arguing that the continuance should

have been granted because defense counsel was not adequately prepared for trial.

Defense counsel was appointed to represent Defendant March 1, 2000. Trial of this

matter was continued at Defendant’s request on two occasions prior to this scheduled

trial.

A trial court’s decision to deny or grant a continuance is within its broad

discretion and will not be disturbed absent a clear showing of abuse of that discretion.

State v. Bourque, 622 So.2d 198 (La.1993). Generally speaking, a trial court’s refusal

to grant a continuance will not be reversed unless the defendant can show prejudice.

Id.

Defense counsel made an oral motion for a continuance the afternoon before the

trial was scheduled to commence, arguing he was not prepared to proceed to trial.

Counsel stated he had been unable to prepare for this trial because he had been

preparing for a murder trial which had been scheduled to start two weeks prior to this

trial. He also urged that count three of the bill of information should be severed from

counts one and two or continued. After the parties began arguing the merits of the

motion, the trial court ordered that the contradictory hearing be continued until the

following morning, allowing defense counsel additional time to prepare his

arguments.

During the hearing, the trial court questioned defense counsel’s failure to file

a written motion, his knowledge that this case became his number one case after the

murder trial was stayed twenty days earlier, and his knowledge that witnesses were

being transported from Tennessee for the trial. Counsel explained that he had

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contemplated filing the motion ten days before, but did not because he thought it

might have been premature at that time. He also acknowledged that he knew twenty

days before this trial was scheduled to begin that the murder trial was stayed and that

this trial was going to proceed.

Louisiana Code of Criminal Procedure article 707 requires that a motion for

continuance be in writing and filed seven days prior to trial. Failure of a motion to

satisfy these requirements has been held insufficient grounds to deny a continuance

when the basis of the motion arose unexpectedly. See State v. Parsley, 369 So.2d

1292 (La.1979) and State v. Commodore, 00-76, (La.App. 4 Cir. 11/21/00), 774 So.2d

318, writ denied, 00-3485 (La. 11/21/01), 800 So.2d 869. There was no unexpected

occurrence which justifies defense counsel’s failure to file a timely motion for

continuance, especially since he admitted that he had contemplated filing the motion.

With regard to the motion to continue/sever count three of the bill of

information, an alleged sexual molestation of a victim other than K.S., Defendant

urged that his failure to receive the victim’s statement until five days before this trial

was to begin was the reason he was unprepared. In response, the State argued that it

had responded to Defendant’s discovery requests on November 7, 2001, and included

a copy of the bill of information filed February 14, 2000, which included count three.

Additionally, the State pointed out that a victim’s statement is not discoverable, unless

it contains exculpatory information and that, even though that was not the case here,

it had given Defendant a copy of the statement five days prior to trial.

Offenses may be joined in the same bill of information in separate counts for

each offense under La.Code Crim.P. art. 493, which provides:

[I]f the offenses charged . . . are of the same or similar character or are
based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common

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scheme or plan; provided that the offenses joined must be triable by the
same mode of trial.

Discussing the grounds for severance, the supreme court has stated:

The motion to sever is addressed to the sound discretion of the
trial court and the court’s ruling should not be disturbed on appeal absent
a showing of an abuse of discretion. State v. Williams, 418 So.2d 562,
564 (La.1982). In ruling on such a motion, the trial court must weigh the
possibility of prejudice to the defendant against the important
considerations of economical and expedient use of judicial resources. In
determining whether joinder will be prejudicial, the court should
consider the following:

whether the jury would be confused by the various counts;
whether the jury would be able to segregate the various
charges and evidence; whether the defendant would be
confounded in presenting his various defenses; whether the
crimes charged would be used by the jury to infer a
criminal disposition and finally, whether, especially
considering the nature of the charges, the charging of
several crimes would make the jury hostile.

State v. Washington, 386 So.2d 1368, 1371 (La.1980) (citations omitted).

State v. Brooks, 541 So.2d 801, 804 (La.1989).

The trial court interpreted Defendant’s written motion for continuance on count

three as a motion to sever and addressed the issue accordingly. The trial court

believed the jury would be able to segregate count three from counts one and two

without becoming confused and without Defendant being prejudiced, observing

Defendant’s denial of committing the crimes was consistent and that the evidence on

all three counts would likely be consistent. Additionally, the court judge stated it

would reconsider the motion, if the jury indicated during voir dire that they could not

separate the acts.

The supreme court has held that joining different charges involving sexual

offenses against children may arouse hostility. State v. Washington, 386 So.2d 1368.

Accordingly, we will consider whether the inclusion of count three may have aroused

10

the hostility of the jury toward Defendant. In Washington, 386 So.2d 1368, the

supreme court found that the trial court erred when it denied the defendant’s motion

for severance. The defendant was charged with four counts of aggravated rape of

four, five-year-old girls. The supreme court held:

In Louisiana, “Evidence of crimes other than the one for which the
defendant is on trial is admissible as ‘other crimes’ evidence when the
two incidents exhibit such peculiar modes of operation to distinguish
them as the work of one person” and when they are relevant to a material
issue in the case. La.R.S. 15: 446; State v. Carter, [352 So.2d 607
(La.1977)]; State v. Prieur, 277 So.2d 126 (La. 1973).

The four crimes tried together here, although similar, are not so
unique as to qualify as “signature crimes”. Although all four involved
sexual assault on small girls, the method of assault varied with each. The
perpetrators’ mode of transportation differed in one instance. The
methods of enticement varied and finally, the four attacks occurred in
four different places at four different times. Thus, these crimes were not
admissible under the Prieur rationale.

We further note that although the evidence for each crime was
simple and distinct, the trial court’s instruction offered little guidance to
the jury in order to prevent their cumulating the evidence. Finally, we
note that the crimes herein charged, involving sexual molestation of
young children, are the type of crimes which arouse a hostility in any
jury which would be compounded by each additional charge. Our
review can only lead to the conclusion that the defendant herein suffered
substantial prejudice in trying these counts together.

Id. at 1372-73 (footnote omitted).

The offenses at issue here were very similar: they were committed on young

girls in Defendant’s home and the descriptions of Defendant’s actions by the victims

were very similar. The facts were not complex. Furthermore, the jury’s failure to

convict Defendant on count three and their conviction of him of a lesser charge on

count one indicate that the jury did not allow the similarity of the crimes to prejudice

their consideration of the facts in light of the applicable law. Accordingly, the trial

court did not err when it denied Defendant’s motion for continuance and motion to

sever. This assignment lacks merit.

11

Excessive Sentence

In his final assignment of error, Defendant alleges his sentence is excessive,

and that the trial court placed too much weight on an evaluation by Troy Mire, a

licensed clinical social worker, which was attached to the pre-sentence investigation

report ordered by the trial court.

On his conviction of attempted aggravated oral sexual battery, Defendant was

sentenced to five years, which is one-half of the maximum term permitted by law.

La.R.S. 14:43.4; La.R.S. 14:27. He was sentenced to twelve years at hard labor with

six of the twelve years suspended. Aggravated incest is punishable by a range of

imprisonment, “with or without hard labor, for a term not less than five years nor more

than twenty years.” La.R.S. 14:47:81. His sentences were ordered to be served

concurrently.

As stated by the supreme court in State v. Cook, 95-2784, p. 3 (La. 5/31/96);

674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996), “The only

relevant question on review . . . [is] ‘whether the trial court abused its broad

sentencing discretion, not whether another sentence might have been more

appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984) (citing State v.

Williams, 412 So.2d 1327 (La.1982)).”

We have reviewed cases in which the defendants, first time offenders, were

convicted of aggravated oral sexual battery or aggravated incest to assist in our

determination of whether Defendant’s sentences were excessive. See State v. Smith,

02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, writ denied, 03-562 (La. 5/30/03),

845 So.2d 1061. Our review leads us to the conclusion that the sentences imposed on

Defendant are not excessive. See State v. Jones, 34, 863 (La.App. 2 Cir. 8/22/01), 794

So.2d 107, writ denied, 01-2648 (La. 8/30/02), 823 So.2d 938, a first time felony

12

offender convicted of one count of aggravated oral sexual battery sentence of fifteen

years at hard labor was not found to be excessive; State v. Wall, 33,385 (La.App. 2

Cir. 6/21/00), 764 So.2d 1191, sentence of twenty years at hard labor where a first

time offender convicted of aggravated incest was not excessive; State v. Anderson, 95-

1688 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, first time offender’s sentences of fifteen

years each on two convictions for aggravated incest committed against his fifteen-

year-old stepdaughter were found not be excessive. See also State v. Foshee, 99-1423

(La.App. 3 Cir. 4/5/00), 756 So.2d 693 and State v. Ray, 96-1297 (La.App. 3 Cir.

4/2/97), 692 So.2d 1292, writ denied, 97-1279 (La. 1/9/98), 705 So.2d 1090.

Finally, Defendant questions why “Judge Michael Canaday gave special weight

to Troy Mire’s pre-sentencing report on my case, and denied the motion based on

information received in the pre-sentence report.” The trial judge articulated the

conditions and aggravating and mitigating factors he considered when particularizing

Defendant’s sentences as required by La.Code Crim.P. art. 894.1, sentencing

guidelines. Regarding condition 894.1(A)(1), whether there is a risk of reoccurrence

of the crimes, the trial court referred to Mr. Mire’s report because he reported that he

felt Defendant was susceptible to re-offend unless he had proper counseling or

treatment. The trial court also referred to Mr. Mire’s report when he considered

aggravating factors presented by Defendant’s behavior, finding his denial of abusing

K.S. and refusing to accept treatment to be aggravating circumstances. Mr. Mire is

a licensed clinical social worker and a registered clinical sexual offender treatment

provider who had interviewed K.S. and Defendant. We find no error in the trial

court’s reliance on Mr. Mire’s expertise when sentencing Defendant.

The trial court’s imposition of the sentences was based on consideration of

many of the factors outlined in the guidelines. Defendant’s sentences are not so

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disproportionate to the crimes committed by him as compared to similarly situated

defendants that they shock this court’s sense of justice, particularly when viewed in

light of the harm done to K.S. and society in this case. The trial court did not err when

it denied Defendant’s motion for reconsideration of the sentences. This assignment

is therefore without merit.

Dispostion

Defendant’s convictions are affirmed. The sentence imposed for attempted

aggravated oral sexual battery is affirmed. The sentence imposed for aggravated

incest is vacated, and the case is remanded for re-sentencing at which time the trial

court is instructed to establish a payment plan for the fine and costs ordered as a

condition of probation.

CONVICTIONS AFFIRMED; SENTENCE FOR ATTEMPTED
AGGRAVATED ORAL SEXUAL BATTERY AFFIRMED; SENTENCE FOR
AGGRAVATED INCEST VACATED; REMANDED FOR RE-SENTENCING.

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