State of Louisiana v. Randall C. Curtis

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-99

STATE OF LOUISIANA

VERSUS

RANDALL C. CURTIS

**********
APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-460-2005
HONORABLE STUART S. KAY, JR., DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

Genovese, J., concurs in part, dissents in part, and assigns written reasons.

AFFIRMED IN PART; SENTENCE REDUCED;
AND RENDERED IN COUNT ONE.

David W. Burton
District Attorney - 36th JDC
Richard F. Blankenship
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Randall C. Curtis

GREMILLION, Judge.

The defendant, Randall C. Curtis, was found guilty by a jury of one

count of attempted molestation of a juvenile in violation of La.R.S. 14:27 and

14:81.2, two counts of molestation of a juvenile in violation of La.R.S. 14:81.2, and

two counts of carnal knowledge of a juvenile in violation of La.R.S. 14:80. He was

sentenced as follows: 1) count one, attempted molestation of a juvenile, ten years at

hard labor; 2) count two, molestation of a juvenile, fifteen years at hard labor; 3)

count three, carnal knowledge of a juvenile, ten years at hard labor; 4) count four,

carnal knowledge of a juvenile, ten years at hard labor; and 5) count five, molestation

of a juvenile, fifteen years at hard labor. The sentences on counts one through four

were ordered to run concurrently, while the sentence on count five was ordered to run

consecutively to the other four counts. Additionally, all of the sentences were

ordered to run consecutively to any previous sentence Defendant was subject to, and

he was given credit for time served.

Defendant is now before this court asserting that the evidence introduced

at trial was insufficient to prove the elements of counts one and two and that his

sentences are excessive. We affirm Defendant’s convictions on counts one and two

and the sentences on counts two, three, four, and five. Further, we hold that his

sentences are not excessive. However, his sentence on count one is reduced to seven

and one-half years at hard labor and rendered.

SUFFICIENCY OF EVIDENCE

In his fifth assignment of error, Defendant argues that the evidence

introduced at trial was insufficient to prove the necessary elements of attempted

1

molestation (count one) and molestation of a juvenile (count two). We will address

this assignment of error first in the event that a reversal is warranted.

The analysis for a claim of insufficient evidence is well-settled:

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, 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, 436 So.2d 559 (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.

The elements of molestation of a juvenile are set forth in La.R.S.

14:81.2(A), which reads, in pertinent part:

Molestation of a juvenile is the commission by anyone over the
age of seventeen of any lewd or lascivious act upon the person or in the
presence of any child under the age of seventeen, where there is an age
difference of greater than two years between the two persons, with the
intention of arousing or gratifying the sexual desires of either person, by
the use of force, violence, duress, menace, psychological intimidation,
threat of great bodily harm, or by the use of influence by virtue of a
position of control or supervision over the juvenile. Lack of knowledge
of the juvenile’s age shall not be a defense.

Defendant argues that the State failed to prove beyond a reasonable doubt that the

acts were conducted for the purpose of arousing or gratifying the sexual desires of

either party. He further claims that the State failed to prove that he had the specific

2

intent to touch the genitals and breast of the victim or that the acts occurred because

he was using his position of control or supervision over the victim.

There is no dispute that the victim was under the age of seventeen, that

Defendant was over the age of seventeen, and that there was a difference of more than

two years in their ages. He specifically disputes whether the acts set forth in the

amended bill of information occurred and, if so, whether they occurred during the

period of time that he was exercising supervision and control over the victim. Lastly,

Defendant avers that the State failed to prove that the acts were committed to gratify

the sexual desires of either party.

At trial, the victim’s mother, K.V.,1 testified that she needed assistance

in her home with her children and that she requested Defendant’s help. She explained

that the children needed a positive role model and that they needed to know that all

men were not bad. According to K.V., she had just exited a bad relationship wherein

she had been psychologically and verbally abused and that her children were also

suffering as a result of same. She testified about a meeting between herself,

Defendant, and her mother regarding the troubles that her children were having and

stated that they set forth guidelines, including punishment, rewards, and expectations,

to help the children. K.V. stated that she gave Defendant permission to discipline her

children and that he was in a position of control over them. She thought, however,

that this authority would be shared, but she felt as though she had relinquished most

of the control.

1
Pursuant to La.R.S. 46:1844(W), the use of initials are used to protect the identity of the
juvenile victim of a sex crime.

3

The victim, who was fourteen years old at the time of the offenses, also

testified that her mother had given Defendant the authority to discipline them and that

he exercised that authority during the time he resided with them. One day during his

stay, Defendant punished the victim because he thought she had stolen money.

According to the victim, the punishment entailed taking her to his mother’s house to

work. She said that when they arrived, however, they did not work as planned.

Instead, she stated that Defendant asked her if she was interested in learning about a

religion referred to as Shamanism. The victim said that she replied affirmatively as

she was genuinely interested in learning about the religion. The two proceeded to

walk to the woods behind his mother’s property. They stopped at a cleared area,

where Defendant asked her to undress. The victim testified that although she was

uncomfortable, she complied and removed all of her clothes, sat down, and curled her

knees up to her chest. The victim said that Defendant next asked her to sit cross-

legged. She complied once more and then Defendant proceeded to undress and sit

down across from her, but within arm’s reach.

As they began to talk about Shamanism, the victim became

uncomfortable when Defendant asked her to look at his genitals and to touch them.

She could not recall with certainty if she touched his genitals. She did recall,

however, that he touched her inner thigh and tried to touch her vaginal area.

According to the victim, Defendant did not succeed because she avoided his advance

by scooting back. The victim testified that he told her she should not be

uncomfortable because he was just trying to teach her about Shamanism. She said

that she believed him at that time because she wanted something to believe in,

4

explaining that she felt like a misfit. Defendant told her that Shamanism might help

her believe in herself, and she thought it was something that would help them both

feel better about the world. That day, he made no other attempts to touch her or to

encourage her to touch him. They dressed, talked a little more, and then the victim

wanted to go home. She testified that Defendant did not threaten her at that time.

According to the victim, Defendant began asking for more sexual

activity after their first encounter. One day while at her home, Defendant wanted to

have intercourse with her, referring to the act as “Giving back to the Great Spirit.”

She testified that they got into an argument because she did not want to have sex with

him. Defendant insisted that she could not put it off anymore. As instructed, she

undressed, laid back on the bed, and “took it,” (had sexual intercourse with

Defendant). Prior to that time, the two had tried to have intercourse, but it was

painful for her, and she had asked him to stop. The victim testified that they began

having intercourse about a month after Defendant moved into their home, and they

continued to have intercourse while he lived there and after he moved out.

Next, the victim testified that Defendant taught her how to “jack him off”

or masturbate him. According to the victim, this occurred “quite often” during the

months he lived in her home. Defendant also taught the victim how to “give head”

or perform oral sex on him. She explained that he took her into the computer room

of their home when her mother was not home and pulled up pornography from a web

site and instructed her to do what they were doing. She said that she complied at that

time and ended up performing oral sex on the Defendant “often.” Her testimony was

supported by the fact that one of the computers seized during the investigation had

5

pornographic pictures of oral sexual acts, including females performing oral sex,

saved on the hard drive.

The victim’s sister, A.V., testified that she was told by her mother that

she wanted Defendant to move in because a psychiatrist recommended a strong male

influence and a good male role model in their lives. Her mother chose Defendant

because he had been a family friend for some time. A.V. stated that he was given

authority, in some aspects, to discipline all of the children. They would have to ask

him for permission to go somewhere. A.V. said that if she “broke the rules,” she

would be in trouble with Defendant. She testified that he had whipped her on one

occasion, that she complied with his requests, and that she did what she was told

because he was the adult.

Lieutenant Shane Fruge of the DeRidder Police Department assisted in

the investigation of the alleged offenses. During Lieutenant Fruge’s questioning of

Defendant prior to his arrest, he corroborated the victim’s mother’s statement that he

had come down from Shreveport to help care for the children.

Regarding Defendant’s allegation that the State failed to prove that the

acts occurred, we find that the victim’s testimony is replete with evidence of sexual

activity, including an attempt by Defendant to touch the victim’s genitals, in addition

to several acts of sexual activity which show that he caused the victim to touch his

genitals. Further, the victim’s trial testimony clearly supports the State’s contention

that Defendant had the specific intent to touch her genitals or to cause her to touch

his genitals. The only contradictory evidence presented by Defendant was the

testimony of Lieutenant Fruge wherein he summarized Defendant’s statement given

6

prior to his arrest. According to Lieutenant Fruge, Defendant reported that the acts

did not occur.

In State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d

488, 491, we quoted the following ruling in State v. Roca, 03-1076, pp. 11-12

(La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-0583 (La. 7/2/04), 877

So.2d 143, which stated:

In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual finding. State v. Stec,
99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case
of sexual offenses, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even where the State does not
introduce medical, scientific or physical evidence to prove the
commission of the offense.

Thus, in the instant case, the testimony of the victim alone is sufficient to prove that

the alleged acts occurred.

Additionally, the record clearly supports the contention that Defendant

exercised supervision and control over the victim during his stay in her home. The

victim, her sister, and her mother all testified that Defendant had the authority to

discipline the children. The victim’s mother and sister both stated that Defendant had

been brought into the home by their mother to help discipline the children.

Additionally, the victim’s testimony indicates that the alleged acts occurred during

the time Defendant was living in her home. As such, we conclude that the State

sufficiently proved that the acts occurred and that they occurred during the period of

time that Defendant exercised his authority and his position of control or supervision

over the victim.

7

As to Defendant’s allegation that the State failed to prove that the acts

were committed to gratify the sexual desires of either party, he refers to the Rideaux

decision. As noted in Rideaux, 916 So.2d at 497, “‘Specific intent is a state of mind

and as such need not be proven as a fact, but may be inferred from the circumstances

and actions of the accused.’ State v. Harris, 99-1288, p. 7 (La.App. 5 Cir. 1/24/01),

782 So.2d 1055, 1059, writ denied, 01-0485 (La.1/25/02), 806 So.2d 668; La.R.S.

14:10.” In this case, the jury could have inferred from the circumstances and

Defendant’s actions that the acts were committed to gratify his sexual desires.

Specifically, the victim testified that he taught her how to masturbate him and to

perform oral sex on him, and that he had her perform these sexual acts repeatedly

during his stay in her home. Additionally, there was no suggestion with regard to

these specific sexual acts that they were related to the practice of the religion,

Shamanism (if in fact such a religion exists), and thus, were intended for non-sexual

gratification as suggested by Defendant.

Although the victim did not give specific details about each time she was

instructed to perform these sexual acts, she did describe, in some detail, the first time

she performed oral sex at Defendant’s instruction, with the visual aid of pornography

on the computer. As we have said, her testimony was corroborated by the fact that

pornography was found on the hard drive of one the computers confiscated from the

victim’s home during the investigation. Considering all of the evidence, we find that

the evidence was sufficient to prove that Defendant had the specific intent to gratify

his sexual desires.

8

In conclusion, we hold that the evidence was sufficient to prove that

Defendant attempted to molest the victim and that he molested her on a number of

occasions. He clearly attempted to and committed a lewd or lascivious act upon the

victim, a fourteen-year-old girl, with the intention of arousing or gratifying his sexual

desires by the use of influence and by virtue of a position of control or supervision

over her. Accordingly, this assignment of error is without merit.

SENTENCING ERROR

By this assignment of error, Defendant argues that the trial court failed

to provide him with an opportunity to speak at sentencing and, subsequently,

considered his silence as a factor in determining his sentences. He argues that the

trial court pronounced his sentences at the beginning of the hearing and then set forth

its reasons for imposing them. He complains he could not have known that the

sentences were based on incorrect or improper information until after hearing the trial

court’s reasons, at which point an objection was too late, citing State v. Greer, 572

So.2d 1166 (La.App. 1 Cir. 1990). Thus, Defendant contends that the trial court

denied him the opportunity to provide mitigating factors or to contest the validity of

the factors noted by the trial court.

First, we note that Defendant was represented by counsel at sentencing

and that Defendant did not raise any objections during the sentencing proceeding.

The only objection made by him was to the length of the sentences at the conclusion

of the hearing. At no time did Defendant exercise his right or express a desire to

testify at his sentencing hearing, and there is no indication in the sentencing transcript

that the trial court denied him the opportunity to take the stand or introduce other

9

evidence on his behalf.

In Greer, the defendant argued that the trial court erred when it refused

to allow him to make a statement at the conclusion of the sentencing proceedings in

order to present mitigating factors. At the beginning of his sentencing hearing, the

defendant objected to the trial court’s earlier denial of a motion to withdraw his guilty

plea. After briefly explaining its reasons for doing so, the trial court discussed the

difficulty in sentencing persons who have sexually abused children, making reference

to the defendant’s record and the facts of the offenses. The trial court then sentenced

the defendant, making the presentence investigation report part of the record. At that

point, the defendant moved for an appeal. At the conclusion of the proceedings,

defense counsel informed the trial court that his client wished to make a statement.

The trial court declined the defendant’s request to speak and defense counsel

objected.

On appeal, the first circuit observed the ruling in State v. Telsee, 388

So.2d 747 (La.1980), wherein the supreme court held that due process guarantees a

defendant the right to rebut false information relied upon by the trial court in

imposing sentence. Also, the court noted that if a defendant does not request the right

to rebut information contained in the presentence investigation report, he has waived

the opportunity to rebut the report, citing State v. Washington, 414 So.2d 313

(La.1982), and State v. Tate, 506 So.2d 546 (La.App. 1 Cir.), writ denied, 511 So.2d

1152 (La.1987).

The significant difference between Greer and the instant case is that

Defendant never requested to speak at any time during the sentencing hearing. Thus,

10

the trial court never denied Defendant the opportunity to testify. While the trial court

reversed the typical order of sentencing by pronouncing the sentence first and then

setting forth its reasons for imposing them, Defendant was never denied the

opportunity to take the stand. The record clearly reflects that he remained silent

throughout the entire hearing.

Additionally, we find that Defendant’s complaint that the trial court used

his silence at trial as a factor in imposing sentence is misguided. In the trial court’s

attempt to identify factors in mitigation of Defendant’s actions, it stated that it had no

information from Defendant because he exercised his right to remain silent at trial.

The trial court did not state that it considered his silence at trial as an aggravating

factor. Accordingly, we conclude that the trial court’s statement regarding

Defendant’s silence at trial was not a factor used by the trial court in imposing his

sentences, but merely a reference to the lack of mitigating factors in the case. This

assignment of error has no merit.

MAXIMUM SENTENCE

By this assignment of error, the Defendant argues that the sentence

imposed for attempted molestation of a juvenile is illegal as it exceeds the maximum

sentence provided by the statute in effect at the time the offense was committed.

Pursuant to La.R.S. 14:81.2(C), at the time the offense was committed, the sentencing

range for molestation of a juvenile was one to fifteen years, with or without hard

labor. Thus, under La.R.S. 14:27(D)(3), the maximum possible sentence for

attempted molestation of a juvenile was not more than seven and one-half years, one-

half of the longest prison term prescribed for molestation of a juvenile. As such,

11

Defendant’s ten year sentence exceeds the maximum sentence and is illegal. In that

regard, rather than remand this case for resentencing, we reduce the sentence to the

statutory maximum of seven and one-half years. We do this because remanding for

resentencing in this instance seems meaningless and a waste of judicial assets.

Defendant has already received maximum sentences in three other counts that are to

run concurrent with this count, and by rendering the maximum sentence on those

counts it is evident that the trial court would do the same on this count. Accordingly,

the sentence is reduced to the maximum of seven and one-half years at hard labor, to

run concurrent with the sentences in counts two, three, and four.

EXCESSIVE SENTENCE

In Defendant’s assignments of error, numbers two and four, he argues

that the trial court failed to properly consider the factors set forth in La.Code Crim.P.

art. 894.1 in determining the appropriate sentences and that the maximum sentences

are nothing more than a needless imposition of pain and suffering.

In State v. Brandenburg, 06-1158, p. 28 (La.App. 3 Cir. 2/7/07), 949

So.2d 625, 644, writs denied, 07-0538, 07-0614 (La. 10/26/07), 966 So.2d 571, 573,

this court stated:

The trial court has wide discretion in imposing a
sentence, and a sentence imposed within the statutory
limits will not be deemed constitutionally excessive absent
a manifest abuse of discretion. State v. Evans, 97-504
(La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied,
97-2979 (La.4/3/98); 717 So.2d 231. This court, in State
v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755
So.2d 297, 311, noted:

The relevant question on review of a
sentence is whether the trial court abused its
broad sentencing discretion and not whether

12

the sentence imposed may appear harsh or
whether another sentence might be more
appropriate. State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957, cert. denied,
519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996). To constitute an excessive
sentence, this court must find the penalty
imposed 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, it is nothing more than
needless imposition of pain and suffering.
State v. Campbell, 404 So.2d 1205 (La.1981).
The trial court is given wide discretion in
imposing a sentence, and a sentence imposed
within statutory limits will not be deemed
excessive in the absence of manifest abuse of
discretion. State v. Pyke, 95-919 (La.App. 3
Cir. 3/6/96); 670 So.2d 713.

State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d
1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting
State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297,
311). “As a general rule, maximum sentences are appropriate in cases
involving the most serious violation of the offense and the worst type of
offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796
So.2d 164, 169.

At the time the offenses were committed, a conviction for molestation

of a juvenile, pursuant to La.R.S. 14:81.2(C), carried a maximum possible sentence

of fifteen years, with or without hard labor, plus a maximum possible fine of

$10,000.00. Pursuant to La.R.S. 14:80, felony carnal knowledge of a juvenile carried

a maximum possible sentence of ten years, with or without hard labor, and a

maximum possible fine of $5,000.00. Thus, Defendant received the maximum prison

sentence for counts three and four. We note that the trial court did not impose a fine

on any count. Lastly, the sentences for counts two, three, and four were ordered to

run concurrently with each other, thus, Defendant’s sentencing exposure was

13

significantly reduced.

In the trial court’s reasons for ruling, it set forth the mitigating and

aggravating factors considered in sentencing Defendant as follows:

I have imposed these sentences after considering the testimony
heard in court during trial and after reviewing the record in this case,
including the discovery provided by the State to your attorney during the
course of trial preparation. As you elected to exercise your
constitutional right to remain silent in this case, I have no information
from you in mitigation of the circumstances which gave rise to your
abuse of these two young children.

The report of criminal history from the Louisiana Division of
Probation and Parole indicates at least one prior felony conviction and
several misdemeanor convictions all related in some way to alcohol
abuse. There is information about several out-of-state arrests, but
disposition of most of these matters is not known.

I have concluded prison time is required in this case due to the
seriousness of the offense, the nature of your relationship with the
victims and the horrible breach of trust involved in your criminal
actions. Our society teaches young children that there are certain safe
havens in which they can stay free from harm. They are told to look to
parents, relatives, teachers, ministers and police for safety in times of
peril. They are conditioned by their innocence to be trusting and open
with persons in these positions at times of threat or vulnerability. A
child must be safe from harm in its own home. Your breach of this trust
under the facts of this case has been horrible. Your betrayal of these two
young people in your charge in this case using your quasi-parental status
and in one instance manipulating the victim with non-traditional alleged
religious practice and ritual border on evil.

Sexual abuse of children has serious psychological effects.
Emotional damage from this abuse can have effects for a lifetime. This
is one of the reasons that society considers this type of criminal activity
with repugnance and mandates serious penalties for breach of the law.
The penalties provided in the statute are a measure of society’s
recognition of the damage done to children by such behavior and the
seriousness with which such breaches of trust must be viewed. These
children have been permanently scarred emotionally by your
deviousness. Even though they are in therapy, they remain suspicious,
fearful and cynical of everything and everybody. They have closed
themselves off from normal human contact.

14

....

You have taken no responsibility for the emotional damage that
you have caused this family and particularly these two children that
were entrusted to your care and nurture. You have shown no remorse.
Your denial is so complete that it appears to the Court that you are living
in some alternate reality of your own creation.

In the view of the Court factors such as this make you more
dangerous to society. This is one of the reasons why the Court was lead
to the conclusion that a probated sentence was inappropriate in this case.
The sentences imposed today are reasonable and just considering the
totality and severity of the circumstances of this case. They are clearly
not excessive. They protect society.

In Defendant’s Motion to Reconsider Sentence, he complained that his

sentence was based, in part, upon the trial court’s frustration that he had not taken

responsibility for the crimes, had not shown remorse for the actions he denied, and

because he was “living in some alternate reality” of his own creation. Defendant also

expressed that the trial court infringed upon his constitutional right by penalizing him

for practicing a religion that it did not understand and/or acknowledge as a religion.

On appeal, he contends that the trial court’s comments about his

religious practices were misplaced, asserting that Shamanism was not on trial.

Defendant maintains that the trial court’s sentence should not be based upon his

religious practices, and to do so would violate his equal protection rights guaranteed

to him under the Fourteenth Amendment to the United States Constitution. As such,

he concludes that the trial court’s references were improper and prejudicial.

Defendant also complains that the trial court’s conclusion that the girls

were forever traumatized by his actions is not supported by the record, and thus, its

reliance on same in support of the maximum sentences is misplaced. We note that

this complaint, as well as several other factors that Defendant wishes this court to

15

consider on appeal, were not raised in his motion to reconsider his sentence. Pursuant

to La.Code Crim.P. art. 881.1, Defendant’s failure to include a specific ground in his

motion to reconsider precludes him from urging same for the first time on appeal.

Thus, Defendant’s allegation regarding the trial court’s consideration of the trauma

sustained by the victims, as well as other factors not previously raised, are not

properly before this court and will not be considered herein. See State v. Grogan, 00-

1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862.

Considering the reasons set forth by the trial court, we find that the trial

court complied with the requirements of Article 894.1 in sentencing Defendant.

Additionally, although Defendant received the maximum jail time on each count, he

received the benefit of concurrent sentences on the convictions in counts one, two,

three, and four, and a fine was not imposed on any of the convictions. Due to the

nature of the crimes committed on the juvenile victims and Defendant’s prior criminal

history, the total time of incarceration of twenty-five years, while on the high side, is

not grossly disproportionate to the severity of the crimes as to shock our sense of

justice. The sentence makes a measurable contribution to acceptable penal goals (the

deterrence of sexual predators and the protection of society) and is not simply a

needless imposition of pain and suffering. Further, Defendant committed serious

sexual offenses and should be considered among the worst of offenders for which

maximum sentences are permitted. Accordingly, Defendant’s sentences on counts

two, three, four, and five are affirmed.

CONCLUSION

Defendant’s convictions in count one and two are affirmed. His sentence

16

in count one is reduced to seven and one-half years at hard labor and shall run

concurrent with his sentences in counts two, three, and four and rendered. The

remaining sentences are affirmed.

AFFIRMED IN PART; SENTENCE REDUCED; AND RENDERED

IN COUNT ONE.

17

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

NUMBER 08-99

STATE OF LOUISIANA

VERSUS

RANDALL C. CURTIS

GENOVESE, J., concurs in part, dissents in part, and assigns the following
reasons:

I concur with the majority in affirming the trial court in all respects except for

its reduction and rendering of sentence on the attempted molestation of a juvenile

conviction in accordance with La.R.S. 14.81.2(C) and La.R.S. 14:27(D)(3) in effect

at the time the offense was committed. Because the majority superimposes its

judgment for that of the trial court as to sentencing on the attempted molestation of

a juvenile charge, I must respectfully dissent.

In its opinion, the majority states, “[I]t is evident that the trial court would do

the same thing on this count.” Though that may indeed be the case, we cannot make

that assumption. Generally, sentencing is the function of the trial court. Though an

appellate court may correct an illegal sentence as set forth in La.Code Crim.P. art.

882, an appellate court may not correct an illegal sentence if that correction involves

the exercising of sentencing discretion as in this case. The facts in this case require

a remand for the trial court to perform that function. State v. Gregrich, 99-178

(La.App. 3 Cir. 10/13/99), 745 So.2d 694.

At the time the offense was committed, between December 2004 and March 15,

2005, the sentence for molestation of a juvenile was one to fifteen years, with or

without hard labor. Therefore, the maximum sentence for attempted molestation of

a juvenile would be seven and one-half years. The trial court sentenced the

Defendant to one hundred twenty months (ten years) at hard labor, which is illegal

because it exceeds the maximum sentence allowed by law. Seven and one-half years

is not a mandatory sentence. Because there is discretion here, it is the trial court, not

the appellate court, which should resentence the Defendant as it deems appropriate.

Consequently, this court should not superimpose its sentence for that of the trial

court. In my view, the illegal sentence rendered by the trial court on the attempted

molestation charge must be vacated and the case remanded to the trial court for

resentencing on that charge. I would affirm the trial court in all other respects.