State of Louisiana v. A. D. L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1218

STATE OF LOUISIANA

VERSUS

A.D.L.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 07-6617
HONORABLE DONALD W. HEBERT, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Phyllis M. Keaty, Judges.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED;
CASE REMANDED FOR EVIDENTIARY HEARING.

G. Paul Marx
Attorney at Law
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
A.D. L

Earl B. Taylor
District Attorney
Jennifer M. Ardoin
Assistant District Attorney
Post Office Drawer 1968
Opelousas, Louisiana 70571
(337) 948-0551
Counsel for:
State of Louisiana

KEATY, Judge.

Defendant, A.D.L., was indicted on May 29, 2008, for one count of indecent

behavior with a juvenile, a violation of La.R.S. 14:81.1 Following a bench trial that

commenced on April 21, 2010, Defendant was found guilty as charged. The trial

court ordered a presentence investigation report (PSI). On July 24, 2010, Defendant

was sentenced to five years at hard labor with credit for time served.

Defendant now appeals, asserting that the evidence was not sufficient to sustain

the verdict and that his sentence is excessive under the circumstances of this case.

DISCUSSION

Facts

Defendant was found guilty of indecent behavior with a juvenile stemming

from charges alleging that he put his hand into his nine-year-old granddaughter’s

panties and fondled her genitals.

Errors Patent

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

court for errors patent on the face of the record. After reviewing the record, we have

discovered one error patent.

Defendant was entitled to a jury trial on the charge of indecent behavior with

a juvenile. See La.R.S. 14:81 and La.Code Crim.P. art. 782. The record does not

indicate that Defendant knowingly and intelligently waived his right to a jury trial.

We requested from the district court any minute entry and/or transcript concerning

a discussion of Defendant’s waiver of jury trial. In response, two court reporters and

the minute clerk assigned to the division of the district court in which the trial took

1
Pursuant to La.R.S. 46:1844(W), the initials of the parties involved will be used to protect
the identity of the victim.

1

place submitted affidavits stating that they had researched the recordings and court

minutes, respectively, and had discovered no reference to a waiver of jury trial.

In State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, after

finding that the evidence was insufficient to show a valid waiver of jury trial, the fifth

circuit conditionally affirmed the defendant’s conviction and sentence. Thereafter,

it:

[R]emand[ed] this case for an evidentiary hearing on the question of
whether defendant validly waived his right to a trial by jury. If he did
not, the trial judge must set aside the conviction and sentence and set the
case for further proceedings as dictated by the holding in [State v.]
Nanlal[, 97-786 (La. 9/26/97), 701 So.2d 963]. If the trial court finds
that there was a valid waiver, defendant’s right to appeal that ruling will
be reserved.

Id. at 654.2 We will employ the same procedure in this matter.

Sufficiency of the Evidence

Defendant argues that the evidence was too vague and without sufficient

corroboration to sustain the verdict beyond a reasonable doubt. He was convicted of

indecent behavior with a juvenile, an offense, in pertinent part, defined as:

A. Indecent behavior with juveniles is the commission of any of
the following acts with the intention of arousing or gratifying the sexual
desires of either person;

(1) 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. Lack of knowledge
of the child’s age shall not be a defense;

La.R.S. 14:81.

2
See also State v. R.W.W., 06-1253 (La.App. 3 Cir. 3/7/07), 953 So.2d 131, where this court
conditionally affirmed the defendant’s convictions for aggravated rape and sexual battery and
remanded for an evidentiary hearing regarding a possible violation of La.Code Crim.P. art. 793 and
whether defendant had preserved the issue for appellate review.

2

Accordingly, in order to have convicted Defendant, the State had to prove that

he committed a lewd or lascivious act upon the victim, or, in the presence of the

victim, that the victim was under the age of seventeen, that he was more than two

years older than the victim, and that he had the intention of arousing or gratifying the

sexual desire of either himself or the victim. See State v. Rideaux, 05-446 (La.App.

3 Cir. 11/2/05), 916 So.2d 488.

While discussing sufficiency of the evidence, this court in State v. Lambert,

97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27, set forth the

following:

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); 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 witness. Therefore, the appellate
court should not second-guess the credibility determination of the trier
of fact beyond the sufficiency evaluations under the Jackson standard of
review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d
1228 (La.1983).

This court observed:

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.

Rideaux, 916 So.2d at 491 (quoting State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir.

1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La. 7/2/04), 877 So.2d 143).

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At trial, the following testimonies were given:

C.L., the victim’s mother, testified that one evening between January and

March 1999, she, her husband, who was Defendant’s son, and their nine-year-old

daughter, S.L., visited Defendant and his wife for a family dinner. After they left

Defendant’s home, they stopped at a gas station where S.L.’s father went into the

convenience store. While he was in the store, S.L. told her mother that as her

grandfather was scratching her back, he put his hand into her panties and touched her

“hiney.”3 S.L. begged her mother not to tell her father because she was afraid that he

and his sister, Defendant’s daughter, would be angry with her. While C.L. testified

that she did not see anything happen between her daughter and her father-in-law,

other than he had scratched her back, later that night she tried to get more details, but

S.L. refused to speak of it. C.L. explained that Defendant and his wife were, at the

time, living in one small room, referred to as the “out-door kitchen,” while the rest

of the house was being built. She stated that her brother and his girlfriend were also

present.

C.L. related that years earlier she had heard from various family members that

Defendant had a history of inappropriate behavior with the young girls in the family,

so she was always careful to never let S.L. be alone with her grandfather.

C.L. testified that about six years after the touching incident, while coming

home from a movie with an adult cousin and her two children, the cousin made a

statement about Defendant being a pervert. After she and S.L. arrived home, S.L.

said she was ready to talk. C.L. and S.L. went back to the cousin’s home and learned

3
According to C.L., when their family used the term “hiney,” they could be referring to the
front or the back private area. S.L. later testified that when she was nine or ten years old, she used
the term “hiney” to refer to her front private area and the term “butt” to refer to her back private area.

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that she, too, had been fondled by Defendant when she was a young girl. At this time,

C.L. told her husband, and they decided to go to the authorities. They filed an

incident report in September 2005.

S.L. testified that on the evening of the incident, she was sitting on the bed and

her grandfather was scratching her back while the family was making dinner in the

outdoor kitchen. He then began scratching her stomach. He put his hand down into

her panties and rubbed her in the vaginal area. She did not say anything to him, and

he stopped shortly after he began. She testified that while she told her mother later

that evening, she did not want anyone else to know about the incident because she

was afraid the family would be mad at her. She said she decided to speak up years

later after she heard her cousin tell of having experienced a similar incident with

Defendant.

Four witnesses testified that Defendant, who was their uncle, had also touched

them in the vaginal area when they were young girls. The incidents occurred between

twenty and forty years ago.

D.L., a niece of Defendant, testified that when she was in elementary school,

she and her sister would often spend the night at their grandmother’s house and sleep

on couches in the living room. Their grandmother was Defendant’s mother. One

night D.L. awoke to her uncle touching her between her legs. When she began to stir

around, he quit and walked away. She stated that she and her sister, to whom it

happened also, told their grandmother. The grandmother told them to say nothing of

it, that she would take care of it. D.L.’s sister, B.H., testified essentially the same as

did D.L. The testimonies of J.L. and G.R., who were also nieces of Defendant, were

essentially the same as the above two witnesses. One night, at different times, when

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they had spent the night at their grandmother’s house, they woke up to find Defendant

laying on the couch with them. He put his hand inside their underwear and rubbed

their genital area.

Finally, Defendant’s wife, W.L., testified that while she could not remember

at which family dinner the alleged incident with S.L. happened, she had never seen

or heard of her husband behaving inappropriately with any of his female relatives

prior to the current incident.

In brief, Defendant argues that “[t]his case fits the description of a record upon

which even the most favorable view of the evidence is unconvincing to the point that

the essential elements of the case are missing.” We disagree and conclude that all the

elements necessary to support a verdict of indecent behavior with a juvenile were

present. S.L. was nine years old when the incident occurred. While there was no

testimony regarding Defendant’s exact age, he was obviously over the age of

seventeen and there were more than two years between the two since S.L. was

Defendant’s granddaughter. Reaching into her panties and rubbing her vaginal area

was unarguably a lewd and lascivious act. See State v. Guillory, 07-422 (La.App. 3

Cir. 10/31/07), 970 So.2d 670 (act of touching of the victim’s breasts and buttocks

sufficient to support conviction for indecent behavior with a juvenile).

Finally, the requisite element of specific intent to arouse or gratify the sexual

desires of either person may be inferred from the circumstances and the actions of the

offender. See State v. Blanchard, 00-1147 (La. 4/20/01), 786 So.2d 701. See also

State v. Davis, 97-331 (La.App. 3 Cir. 10/29/97), 702 So.2d 1014, writ denied, 97-

2990 (La. 11/6/98), 726 So.2d 919 (evidence of molestation of unrelated victim when

she was the same age as the instant victim admissible given the similarities of the

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instances of abuse to prove lustful disposition, motive, plan, and to refute any

contention that the abuse was the result of accident or mistake). Here, the

circumstances indicate that Defendant’s moving of his hand from S.L.’s back, around

to her stomach, into her panties, and down to her genitals was not a mistake, but

rather an intentionally committed sexual act.

Defendant’s argument rests primarily of the fact that S.L. did not step forward

for six years and the four witnesses who testified that Defendant committed the same

acts on them did not speak up for up to forty years. Nevertheless, in 2005 the

Louisiana legislature amended the statute of limitation regarding the length of time

within which to institute prosecution for certain sex offenses, including indecent

behavior with juveniles, from ten years to thirty years from the date the victim attains

the age of eighteen. La.Code Crim.P. art. 571.1; Acts 2005, No. 186, § 1.

While Defendant does not say so directly, his argument calls into question the

credibility of S.L. and the witnesses. Such calls are usually left to the trier of fact,

and the prevailing jurisprudence holds:

The fact finder’s discretion will be impinged upon only to
the extent necessary to guarantee the fundamental
protection of due process of law. [State v.] Mussall, 523
So.2d 1305[(La.1988)]; [State v.] Green, 588 So.2d 757
[(La.App. 4 Cir. 1991)]. “[A] reviewing court is not called
upon to decide whether it believes the witnesses or whether
the conviction is contrary to the weight of the evidence.”
State v. Smith, 600 So.2d 1319, 1324 (La.1992).

A factfinder’s credibility decision should not be disturbed unless
it is clearly contrary to the evidence. State v. Huckabay, 2000-1082
(La.App. 4 Cir. 2/6/02), 809 So.2d 1093[, writ denied, 02-703 (La.
11/1/02), 828 So.2d 564]; State v. Harris, 99-3147 (La.App. 4 Cir.
5/31/00), 765 So.2d 432 [, writ denied, 00-1946 (La. 9/21/01), 797
So.2d 60].

7

State v. Galindo, 06-1090, p. 10 (La.App. 4 Cir. 10/3/07), 968 So.2d 1102, 1110, writ

denied, 07-2145 (La. 3/24/08), 977 So.2d 952 (quoting State v. Armstead, 02-1030,

p. 6 (La.App. 4 Cir. 11/6/02), 832 So.2d 389, 393, writ denied, 02-3017 (La. 4/21/03),

841 So.2d 791). See also State v. Johnson, 03-1228 (La. 4/14/04), 870 So.2d 995.

Moreover, “[i]f rational triers of fact could disagree as to the interpretation of the

evidence, the rational trier’s view of all the evidence most favorable to the

prosecution must be adopted.” Galindo, 968 So.2d at 1110 (quoting Armstead, 832

So.2d 389, 393). Accordingly, only irrational decisions to convict by the triers of fact

will be overturned on appeal. Mussall, 523 So.2d 1305.

In the instant case, there was no internal contradiction or irreconcilable conflict

within S.L.’s testimony. Furthermore, all of the witnesses’ testimonies were

consistent with each other and with S.L.’s testimony as to Defendant’s behavior.

After considering the evidence in the light most favorable to the prosecution, we find

that the State proved the essential elements of the crime beyond a reasonable doubt.

There is no merit to Defendant’s claim that the evidence is insufficient to support his

conviction.

Excessiveness of Sentence

Defendant asserts that given his age, his ill health, and the fact that he had a

clean criminal record and no indication of similar conduct since the incident with his

granddaughter, the five-year sentence was constitutionally excessive.

Defendant was convicted of indecent behavior with a juvenile. At the time the

offense was committed, the statute defining indecent behavior with a juvenile

provided for a term of incarceration of no more than seven years at hard labor or a

fine of not more than five thousand dollars, or both. La.R.S. 14:81(C). Defendant

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was sentenced to five years imprisonment, a little more than one-half of the potential

maximum term of imprisonment.

At the sentencing hearing, the trial court heard victim impact statements and

noted that he had reviewed the PSI. The trial court indicated that it had received and

read “voluminous correspondence,” both for and against Defendant, which it sealed

and entered into the record along with the PSI. Following arguments by Defendant

and the State, the trial court gave a long recitation of the mitigating and aggravating

factors that it considered in fashioning an appropriate sentence.

Defendant did not object to the sentence after it was imposed, nor did he file

a motion to reconsider the sentence. Pursuant to La.Code Crim.P. art. 881.1(E),

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

Nevertheless, this court has reviewed claims of excessiveness in similar instances.

See, e.g., State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127.

Accordingly, we will review Defendant’s claim as a bare claim of excessiveness.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court held:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty 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 is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067.

9

In State v. Lisotta, 97-406 (La.App. 5 Cir. 2/25/98), 712 So.2d 527, the fifth

circuit found the maximum sentence of seven years imposed on a conviction for

indecent behavior with a juvenile to be excessive under the circumstances of the case

and remanded the matter for resentencing. Thereafter, in State v. Lisotta, 98-648

(La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99), 745

So.2d 1183, the defendant was resentenced to six years imprisonment. He contended

the sentence was still excessive. The defendant, a school teacher, a first time felony

offender, attempted to have sexual intercourse with a seventeen-year-old. He

undressed her and fondled her. While reviewing the six-year sentence, the fifth

circuit stated:

The court should consider three factors in reviewing a judge’s
sentencing discretion:

1. the nature of the crime,

2. the nature and background of the offender, and

3. the sentence imposed for similar crimes by the same court and
other courts.

....

. . . On remand the trial court sentenced the defendant to serve six
years. In doing so, the trial court set out extensive reasons for his
sentencing decision. The court carefully considered the guidelines of
LSA-C.Cr.P. article 894.1 noting specifically the defendant’s denial of
responsibility for the offense, the risk for the defendant to commit
another crime, the youth of the victim, the defendant’s position of
authority, and the defendant’s need for a correctional environment,
among other factors. The trial court also noted that it had considered
victim impact statements, as well as statements offered on behalf of and
by the defendant. Finally, the court noted that it did not deny the
defendant diminution of sentence for good time, and the court allowed
the defendant’s sentences for this and his other conviction to run
concurrently rather than consecutively.

The Louisiana Supreme Court in State v. Cook, 95-2784
(La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct.

10

615, 136 L.Ed.2d 539 (1996), held that on appeal from a sentence the
“only relevant question on review, however, was whether the trial court
abused its broad sentencing discretion, not whether another sentence
might have been more appropriate”. We do not find, in light of the trial
court’s serious consideration of the matter, an abuse of its broad
sentencing discretion. Accordingly, we affirm the sentence.

Id. at 58-59.

Similarly, in the current case, the trial judge noted Defendant’s age, health, the

fact that he had no prior criminal history, that there was a pattern of behavior, the age

of S.L., and that as her grandfather he had a position of authority over her.

Considering the facts of the case and the above jurisprudence, we are convinced that

the trial court did not abuse its considerable discretion when it sentenced Defendant

to five years imprisonment for the offense of indecent behavior with a juvenile.

There is no merit to Defendant’s claim that his sentence is excessive.

Waiver of Jury Trial

Article 1, § 17 of the Louisiana Constitution provides that crimes
with a punishment that can exceed confinement for six months must be
tried by jury except when, in noncapital cases, the defendant knowingly
and intelligently waives his right to a jury trial. See also La.Code
Crim.P. arts. 780 and 782. “A knowing and intelligent waiver . . . will
not be presumed from a silent record.” State v. Arnold, 30,282, p. 587
(La.App. 2 Cir. 1/21/98); 706 So.2d 578, citing State v. Page, 541 So.2d
409 (La.App. 4 Cir.), writ denied, 548 So.2d 323 (La.1989).

State v. Clark, 97-1064, p. 7 (La.App. 3 Cir. 4/1/98), 711 So.2d 738, 742, writ

granted and case remanded in light of supplemental filing, 98-1180 (La. 9/25/98),

726 So.2d 2.

As mentioned previously, there is no evidence in the record to indicate that

Defendant validly waived his right to a jury trial. Accordingly, we must remand this

matter to the trial court for an evidentiary hearing on this issue.

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DECREE

For the foregoing reasons, Defendant’s conviction and sentence are

conditionally affirmed. The case is remanded to the trial court to conduct an

evidentiary hearing on the question of whether Defendant validly waived his right to

a jury trial. If the evidence shows Defendant did not validly waive his right to a jury

trial, the trial court must set aside his conviction and sentence and grant him a new

trial. Defendant may appeal from any adverse ruling on this issue, and in the absence

of such appeal, this court affirms Defendant’s conviction and sentence for indecent

behavior with a juvenile.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED;
CASE REMANDED FOR EVIDENTIARY HEARING.

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