State of Louisiana v. Walter Urena

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1286

STATE OF LOUISIANA

VERSUS

WALTER URENA

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 309,898
HONORABLE JAMES H. BODDIE, JR., DISTRICT JUDGE, AD HOC

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

CONVICTIONS AFFIRMED; SENTENCES ON
COUNTS TWO AND THREE VACATED; AND
REMANDED FOR RESENTENCING.

James C. Downs
District Attorney
Monique Yvette Metoyer
Assistant District Attorney
Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Dmitrc Ian Burnes
Burnes & Burnes
711 Washington Street
Alexandria, LA 71301
(318) 448-0482
COUNSEL FOR DEFENDANT/APPELLANT:
Walter Urena

EZELL, Judge.

Defendant, Walter Urena, was charged with six counts of aggravated incest,

violations of La.R.S. 14:78.1. Count one involved one victim. The remaining

counts involved a second victim. A jury trial commenced on February 5, 2013,

and, on February 7, 2013, the jury acquitted Defendant of count one and found him

guilty as charged on the remaining five counts. On June 8, 2013, Defendant filed a

―Motion for New Trial‖ and a ―Motion for Arrest of Judgment.‖ Both motions

were heard and argued on July 29, 2013, following which both motions were

denied. After waiving all delays, Defendant was sentenced on the same date to

twenty years at hard labor on counts two and three, to be served consecutively; and

ten years at hard labor each on the remaining counts, to be served concurrently

with each other and with the two consecutive twenty-year sentences, for a total

term of imprisonment of forty years.

Defendant timely filed a motion to reconsider sentence. The motion was

denied without a hearing but with written reasons.

Defendant has perfected a timely appeal, wherein he alleges:

1. The state presented insufficient evidence at trial to support the
verdicts of guilty returned by the jury on Counts Two, Three, Four,
Five and Six. Further, the trial court erred when it denied Defendant‘s
Motion For New Trial which was based, in part, on this issue.

2. The trial court erred when it denied defendant‘s motion at the close
of the state‘s evidence for a directed verdict of not guilty with respect
to Count One.

3. The Defendant was subjected to double jeopardy in violation of his
rights under the United States Constitution and the Louisiana
Constitution when neither the Indictment nor the evidence presented
at trial established five separate, independent and distinct acts to
support the five verdicts, convictions and sentences. Further, the trial
court erred when it denied Defendant‘s Motion For Arrest of
Judgment which was based, in part, on this issue.

4. The Indictment omitted an essential averment in Counts Two
through Six such as they did not charge the crime of aggravated incest
and therefore, the indictment can not serve as a basis for valid
sentences. Further, the trial court erred when it denied Defendant‘s
Motion For Arrest of Judgment which was based, in part, on this
issue.

5. The Defendant was tried by a jury composed of twelve jurors on
Counts Two through Six, contrary to the statutory requirement that the
jury consist of six jurors. Further the trial court erred when it denied
Defendant‘s Motion For Arrest of Judgment which was based, in part,
on this issue.

6. The trial court imposed an excessive sentence, both in total
magnitude and with respect to Defendant receiving maximum
sentences, consecutive to each other, on Counts Two and Three.
Further, the trial court erred when it denied Defendant‘s Motion to
Reconsider Sentence Pursuant to C.Cr.P. Art. 881.1 which was based
on these issues.

For the following reasons, we find there is no merit to assignments of error

numbers one through five. However, we find merit to Defendant‘s assignment of

error number six, resulting in the sentences imposed on counts two and three being

vacated and the matter being remanded to the trial court.

FACTS

Between the dates of January 1, 1998, and December 31, 2004, Defendant

committed the offenses of molestation of a juvenile and/or sexual battery and/or

indecent behavior with a juvenile against his step-daughter.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

Defendant argues that the evidence did not support the convictions for

aggravated incest. He argues he was convicted solely on the testimony of the

victim, and there were insufficient specific details given to establish the elements

of each count. Defendant raised this argument in his ―Motion for New Trial,‖

which was denied by the trial court.

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A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La.Const. art. 1, § 2. The standard of

review for the sufficiency of the evidence to uphold a conviction is whether,

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 (1979).

In State v. Ardoin, 08-1504, p. 4 (La.App. 1 Cir. 2/13/09), 6 So.3d 237, 240,

reversed on other grounds, 09-578 (La. 5/11/10), 35 So.3d 1065, the first circuit

discussed the elements of aggravated incest, as follows:

The State must prove several elements to establish the offense
of aggravated incest. First, the State must show that the victim was
under eighteen years of age. Second, the State must show that the
offender knew that the victim was related to him within the specified
degrees. The statute enumerates a list of relatives who may be victims
of the offense and specifies that the offender must be aware of his
relationship to the victim. Finally, the State must prove that the
defendant has engaged in one of the prohibited acts with the victim.
See State v. Flores, 27,736, p. 5 (La.App. 2 Cir. 2/28/96), 669 So.2d
646, 650.

In the current case, at the time the offenses were committed, aggravated

incest was defined, in pertinent part, as follows:

A. Aggravated incest is the engaging in any prohibited act
enumerated in Subsection B with a person who is under eighteen
years of age and who is known to the offender to be related to the
offender as any of the following biological, step, or adoptive relatives:
child, grandchild of any degree, brother, sister, half-brother, half-
sister, uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, aggravated sexual
battery, carnal knowledge of a juvenile, indecent behavior with
juveniles, pornography involving juveniles, molestation of a juvenile,
crime against nature, cruelty to juveniles, parent enticing a child into
prostitution, or any other involvement of a child in sexual activity
constituting a crime under the laws of this state.

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La.R.S. 14:78.1.

In the indictment, the State specifically alleges as the prohibited offenses:

―indecent behavior and/or molestation and/or sexual battery of a juvenile[.]‖ At

the time of the offenses, indecent behavior with juveniles was defined as:

[T]he commission 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. Lack of knowledge of the child‘s age shall not be a defense.

La.R.S. 14:81(A).

In pertinent part, sexual battery was defined as:

[T]he intentional engaging in any of the following acts with another
person where the offender acts without the consent of the victim,
where the offender who is not the spouse of the offender, has not yet
attained fifteen years of age and is at least three years younger than
the offender:

(1) The touching of the anus or genitals of the victim by the
offender using any instrumentality or any part of the body of the
offender[.]

La.R.S. 14:43.1(A).

Finally, molestation of a juvenile, in pertinent part, was defined as:

[T]he 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.

La.R.S. 14:81.2(A)

At trial, the following testimonies were relevant to the charges alleged in

counts two through six. Lori Wileman, the victim‘s mother, testified that she was

married to Defendant from 1999, until they divorced in 2010. She had two

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children, S.L. and Defendant‘s son. 1 She stated she was never aware of any

problems between Defendant and her daughter until July 2011, when a relative of

Defendant came to her and asked if the victim had had any problems with

Defendant. She asked S.L. later and was told that nothing sexual had occurred.

However, approximately two weeks later, after Ms. Wileman was called to speak

with the police regarding the first victim, S.L. told her mother that ―things‖ had

happened between her and her step-father. Ms. Wileman said that by this time,

Defendant had already moved out of the house.

The victim, S.L., was nineteen years old at the time of trial. She recalled

that Defendant had moved in with her mother when she was about five years old.

Starting shortly thereafter, S.L. testified that he would touch her on the breast or

vagina, over or under her clothes, or both. She stated it would happen either in her

bed or on the couch in the living room. She testified it continued until junior high

school; ―[S]ometimes multiple times a week.‖ She stated that when he was in bed

with her, she was aware of his erect penis.

Although the victim stated she had told a friend about what was occurring

when she was fifteen years old, she never told her mother or her father, whom she

saw every other weekend, about Defendant‘s behavior. She testified that at first she

did not say anything because she was afraid of where she and her mother would

go. She explained that later, she knew what it was like not having a father around

and was afraid if she complained, her baby brother would end up without a father

also. She further explained that when she was older, she simply told him ―no,‖ and

he left her alone. Finally, after her mother and Defendant divorced, she never said

1
The victims‘ initials are used to protect their identities. La.R.S. 46:1844(W).

5

anything because he was gone, and she no longer had to deal with him. She further

testified that he never threatened her in any way not to tell.

In State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450,

457 (quoting State v. Williams, 00-981, p. 7 (La.App. 5 Cir. 4/11/01), 786 So.2d

805, 810, writ denied, 01-1377 (La. 3/28/02), 812 So.2d 646), this court noted that

―[t]he 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.‖ Additionally, ―[t]he

credibility of a witness, including the victim, is within the discretion of the trier of

fact, who may accept or reject, in whole or in part, the testimony of any witness.‖

Id.

In brief, Defendant argues that ―[a]ll in all, the inconsistent, contradictory,

and unsupported testimony of S.L. was not credible and did not provide the

evidence necessary to support verdicts of guilty on Counts Two through Six.‖

Counts two through six were identical, each stating:

IN THAT HE DID ON OR ABOUT AND BETWEEN THE 1st DAY
OF JANUARY, 1998 AND THE 31ST DAY OF DECEMBER, 2004,
commit indecent behavior and/or molestation and/or sexual battery of
a juvenile, S.L., DOB 12/17/93, to whom he is related, in violation of
R.S. 14:78.1[.]

Defendant argues that it was impossible for the jury to distinguish one offense

from the other in order to determine whether he was guilty of any of the counts

from the evidence given at trial.

The State could have questioned the victim with more specificity regarding

the alleged events of sexual abuse. However, in denying Defendant‘s motion for

new trial, which argued this same issue, the trial court stated:

6

Mr. Burns, I take it as arguing that the State has failed to
introduce any of these forms of evidence and relied on the testimony
of the victim alone, and the State explains in their response that the
victim testified at length during the trial describing acts perpetrated
upon her by the defendant on separate occasions that distinctly
designate five separate, different, and distinct acts and occurrences.

To me it appears that this issue was fully explored at trial
because as we know, jurors alone are the credibility determinationors
[sic] when it comes to witnesses. They decide whom to believe and
whom not to believe. So, this was left for the jury‘s evaluation in
reaching their ultimate verdicts in this case. Therefore, I do not find
that [sic] this argument to have merit.

While Defendant correctly states that there was no physical evidence to

support the victim‘s testimony, he does not show where her testimony was

inconsistent or contradictory. As noted above, the testimony of the victim alone

can be sufficient to establish the elements of a sexual offense absent internal

contradiction or irreconcilable conflict with the physical evidence, and any

credibility determination made by the trier of fact is normally not within the

purview of the reviewing court. State v. Watson, 39,362 (La.App. 2 Cir. 4/20/05),

900 So.2d 325; State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d

1036, writs denied, 99-3477, 00-150 (La. 6/30/00), 765 So.2d 1062, 1066.

At trial, the victim testified that Defendant would touch her on her vagina or

her breast, starting when she was five or six until she entered junior high school,

either on the couch or in the bedroom, both with her clothes on and off. This

occurred multiple times throughout the years.

It would not have been problematic for the jury to pick out five incidents of

sexual abuse from the victim‘s testimony. Furthermore, any of the above

enumerated offenses—sexual battery, molestation of a juvenile, or indecent

behavior with a juvenile would comport with the allegations made by the victim.

The victim was Defendant‘s stepdaughter and under his authority as a stepparent.

7

Defendant‘s actions were lewd or lascivious acts with intent to arouse or gratify the

sexual desires of either person, with the touching of the genitals with any

instrumentality, all without her consent. The evidence was sufficiently set out with

the jury finding Defendant guilty of counts two through six beyond a reasonable

doubt. There is no merit to Defendant‘s assertion that the evidence was

insufficient to establish five distinct acts of aggravated incest.

Defendant further argues that because there was no evidence of each

individual offense, he was subjected to double jeopardy when he was convicted of

five separate offenses based on a single allegation of sexual touching. In State v.

Ramsdell, 09-1510, pp. 10-11 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, 85, this court

discussed double jeopardy, in part, as follows:

The Double Jeopardy provisions in the state and federal
constitutions protect a defendant from both a second prosecution for
the same offense and multiple punishments for the same criminal act.
U.S. Const. amend. V; La. Const. art. 1, § 15; State v. Doughty, 379
So.2d 1088 (La.1980). . . . However, an accused who commits
separate and distinct offenses during the same criminal episode or
transaction may be convicted and sentenced for each offense without
violating the prohibition against double jeopardy. State v. Williams,
05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-
1471 (La.12/15/06), 944 So.2d 1284.

Furthermore, Louisiana jurisprudence does not follow the ―‗same

transaction‘ test which would prohibit prosecutions for different crimes committed

during one sequential, continuing course of conduct.‖ State v. Letell, 12-180, pp. 7-

8 (La.App. 1 Cir. 10/25/12), 103 So.3d 1129, 1137, writ denied, 12-2533 (La.

4/26/13), 112 So.3d 838. Finally, in Louisiana, double jeopardy fails to protect an

offender who violates numerous statutory provisions on a crime spree. Id.

Every time Defendant completed the act of touching the victim‘s vagina or

breast, either on the couch or in her bed, over or under her clothes, it was a

8

separate and distinct act, whether it was sexual battery, indecent behavior with a

juvenile, or molestation of a juvenile. As noted above, there was sufficient

evidence to establish at least five distinct acts of Defendant sexually abusing the

victim over a six-year period.

There is no merit to Defendant‘s argument that he was subjected to double

jeopardy violations.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred when it denied his oral motion for

a directed verdict at the close of the State‘s case on count number one, which

charged him with aggravated incest of the second victim, J.U. He argued that the

evidence was insufficient to sustain a conviction for the reason that the victim, who

was his brother‘s granddaughter and, therefore, his grand-niece, was not listed as a

―relative‖ under the incest statute. The jury did acquit Defendant of the charge of

aggravated incest of J.U. Now, Defendant argues that he was prejudiced by the

trial court‘s ruling because ―the request for the directed verdict was, in fact,

correct.‖

However, a directed verdict is a procedural device used in civil cases.

La.Code Civ.P. art 1810. Presumably, at trial, defense counsel meant to invoke

La.Code Crim.P. art. 778 (emphasis added), a motion for acquittal, which provides

in part:

In a trial by the judge alone the court shall enter a judgment
of acquittal on one or more of the offenses charged, on its own motion
or on that of the defendant, after the close of the state‘s evidence or of
all the evidence, if the evidence is insufficient to sustain a conviction.

9

Whereas, the current case was tried by a jury, the trial court was not in error when

it denied Defendant‘s motion for a directed verdict made at the close of the State‘s

case.

In brief, the State argues that the issue is moot since Defendant was

acquitted of the offense. Whether the matter is moot is academic since Defendant

has failed to show that he was prejudiced by the trial court‘s denial of the motion.

There were six counts of aggravated incest alleged. Count one involved one victim,

and the remaining five counts involved a different victim. The victim of count one,

J.U., testified that when she was approximately ten years old, Defendant hugged

her from behind as she sat in a chair playing on a computer. He put his arms

around her and one hand rested briefly on her breast area. She testified it made her

uncomfortable. It is clear the jury found the evidence insufficient to sustain the

allegation of molestation of a juvenile or indecent behavior with a juvenile on

count one. Questions of sufficiency are within the purview of the finder of fact;

accordingly, the trial court did not have the authority to dismiss the allegation of

insufficiency of the evidence prior to the question going to the jury.

Defendant has failed to explain how the jury was tainted by the allegation of

count one when considering the remaining counts. There is no merit to this

assignment of error.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant alleges that counts two through six of the indictment failed to

charge the crime of aggravated incest in that it did not include an essential element

of the crime; therefore, the indictment was defective. He further asserts that the

trial court erred when it denied his ―Motion for Arrest of Judgment‖ based on this

allegation of error. Louisiana Code of Criminal Procedural Article 859(1) provides

10

that the court shall arrest the judgment when the indictment is substantially

defective because an essential averment is omitted.

During argument on Defendant‘s Motion to Arrest Judgment, he asserted:

In each of the six counts of that Bill of Information or
Indictment in front of you, your Honor, when they talk about Mr.
Urena at the end, they all end with ―comma to whom he is related‖.
Going back to the statute, the statute doesn‘t say this applies to people
to whom you are related. In fact, the other statute, incest, they also
have their list on there – what it applies to – aggravated incest, has
what it‘s applied to. To whom he is related is not enough. That is not
the element of this crime.

The requirements for the contents of a bill of indictment or information are

provided in La.Code Crim.P. art. 464, which states:

The indictment shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged. It
shall state for each count the official or customary citation of the
statute which the defendant is alleged to have violated. Error in the
citation or its omission shall not be ground for dismissal of the
indictment or for reversal of a conviction if the error or omission did
not mislead the defendant to his prejudice.

As noted above, the incest statute, in pertinent part, states that the victim is

one ―who is known to the offender to be related to the offender as any of the

following biological, step, or adoptive relative: Child, grandchild of any degree,

brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.‖ La.R.S.

14:78.1(A).

A defendant has a constitutional right to be advised, in a criminal

prosecution, of the nature and cause of the accusations against him. La.Const. art.

1, § 13. The indictment must contain all the elements of the crime intended to be

charged in sufficient particularity to allow the defendant to prepare for trial, to

enable the court to determine the propriety of the evidence that is submitted upon

the trial, to impose the appropriate penalty on a guilty verdict, and to protect the

11

defendant from double jeopardy. State v. Comeaux, 408 So.2d 1099 (La.1981). A

defendant ordinarily cannot complain of the insufficiency of an indictment after

verdict ―unless it is so defective that it does not set forth an identifiable offense

against the laws of this state, and inform the defendant of the statutory basis of the

offense.‖ State v. Robicheaux, 412 So.2d 1313, 1321 (La.1982).

While it is a little unclear what essential element was missing from the

indictment, which is set out in verbatim in assignment of error number one above,

Defendant is asserting that ―to whom he is related‖ was not sufficient because the

statute limited the scope to certain relationships, and the

indictment did not specifically state that the victim was his ―stepdaughter‖;

therefore, the indictment was defective. However, Defendant does not assert that

he was unable to prepare for trial because of the alleged defect or show that he was

prejudiced by the said defect. He was ―related‖ to the victim by virtue of his

marriage to her biological mother. State v. Ardoin, 09-578 (La. 5/11/10), 35 So.3d

1065. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER FIVE

For his fifth assignment of error, Defendant argues that it was error for him

to have been tried by a jury of twelve on counts two through six when, pursuant to

La.Code Crim.P. art. 782, he should have been tried by a jury of six.

According to the indictment, the offenses charged in counts two through six

occurred between 1998 and 2004. At the time of the offenses, the aggravated incest

statute provided that ―[a] person convicted of aggravated incest shall be fined an

amount not to exceed fifty thousand dollars, or imprisoned, with or without hard

labor, for a term not less than five years nor more than twenty years, or both.‖

12

La.R.S. 14.78.1(D). At the time, the offense required a six-person jury. La.Code

Crim.P. art. 782(A).

However, as noted by Defendant, count one of the indictment alleged the

offense occurred in 2011. At that time, the offense of aggravated incest of a victim

under the age of thirteen provided for a range of punishment of ―imprisonment at

hard labor for not less than twenty-five years nor more than ninety-nine years. At

least twenty-five years of the sentence imposed shall be served without benefit of

parole, probation, or suspension of sentence.‖ La.R.S. 14:78.1(D)(2). In this case,

a twelve-person jury is required.

The State argued that it was permissible to join count one in the same

indictment with counts two through six. Louisiana Code of Criminal Procedure

Article 493.2 provides:

Notwithstanding the provisions of Article 493, offenses in
which punishment is necessarily confinement at hard labor may be
charged in the same indictment or information with offenses in which
the punishment may be confinement at hard labor, provided that the
joined offenses 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 scheme or plan.
Cases so joined shall be tried by a jury composed of twelve jurors, ten
of whom must concur to render a verdict.

Defendant argues in brief that ―there are several flaws in the use of that

article‖ for the reasons that as he argued in assignment of error number two, count

one did not constitute aggravated incest since the victim was not included in the

aggravated incest statute as a designated relative.

Despite Defendant‘s speculations of what should have been done before trial

or why the jury acquitted Defendant of the offense charged in count one; he has

failed to show that he suffered any prejudice because he was tried by a twelve-

person jury rather than a six-person jury, all of whom concurred.

13

―[T]rial of a six-person jury offense in a 12–person jury forum may take

place if the offense is joined in a single proceeding with a 12–person jury offense,

i.e., with an absolute felony necessarily punishable at hard labor.‖ State v. Brown,

11-1044, p. 2 (La. 3/13/12), 85 So.3d 52, 53; La.Const. art. 1, § 17(B).

[I]n State v. Jones, 05–0226, p. 3 (La.2/22/06), 922 So.2d 508, 511,
[the supreme court] held that the error in trying a six-person jury
offense in a 12–person jury forum no longer constitutes a non-
waivable structural defect in the proceedings but ―falls within the vast
category of trial errors which are subject to harmless error analysis
and which warrant reversal only where the defendant is actually
prejudiced.‖

Id.
In the current case, Defendant failed to show how he was prejudiced by

having his case decided by a unanimous twelve-person jury. Accordingly, if there

was error, it was harmless. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant argues that the sentences are excessive, both in magnitude and

―with respect to Defendant receiving maximum sentences, consecutive to each

other, on Counts Two and Three.‖ Defendant received the maximum sentences of

twenty years imprisonment on counts two and three, to be served consecutively for

a total of forty years. La.R.S. 14:78.1(D)(1). He received ten years each on the

remaining three counts, to be served concurrently with each other and with the

forty-year sentence. Defendant argues that the sentences constitute cruel and

unusual punishment in that at his age, he has been ordered to prison for the rest of

his life.

In State v. H.A., Sr., 10-95, pp. 24-25 (La.App. 3 Cir. 10/6/10), 47 So.3d 34,

49-50 (alterations in original), wherein the defendant was convicted of sexual

14

abuse of his stepdaughter, this court reiterated the standard for a review of an

excessive sentence claim, as follows:

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. 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. The relevant question is whether the
trial court abused its broad sentencing discretion, not
whether another sentence might have been more
appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d
331 (citations omitted).

To decide whether a sentence shocks our sense of justice or
makes no meaningful contribution to acceptable penal goals, this court
has held:

[An] appellate court may consider several factors
including the nature of the offense, the circumstances of
the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed
for similar crimes. State v. Smith, 99-0606 (La.7/6/00),
766 So.2d 501. While a comparison of sentences
imposed for similar crimes may provide some insight, ―it
is well settled that sentences must be individualized to
the particular offender and to the particular offense
committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the
trial court to particularize the sentence because the trial
judge ―remains in the best position to assess the
aggravating and mitigating circumstances presented by
each case.‖ State v. Cook, 95-2784 (La.5/31/96), 674
So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786,
789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

In the current case, Defendant further argues:

15

There is no discernable difference between Counts Two and
Three on the one hand (for which he received 20 years each,
consecutive) and Counts Four, Five, and Six (for which he received
10 years each, concurrent) in either the Indictment or the evidence
adduced at trial. The trial court gave no reason for treating Counts
Two and Three especially harshly. This fact is exacerbated by the
complete lack of any identification during the trial and verdicts of
what acts pertain specifically to Counts Two, Three, Four, Five, or
Six. In other words, there is no rhyme or reason (and no reason given
on the record) as to why Count Two or Count Three were treated so
much more harshly than Counts Four through Six.

At the sentencing hearing, the trial court acknowledged letters sent on

Defendant‘s behalf. The trial court also heard testimony from Defendant‘s son and

a neighbor, both of whom spoke of Defendant‘s good character and asked for

leniency in his sentencing. The trial court noted Defendant was a first felony

offender and, other than a DWI conviction several years prior, had no criminal

history. The trial court stated for the record:

Okay. The law recognizes, obviously, Aggravated Incest to be a
very serious crime, and I think the legislature recognized the serious
nature of the crime by making the penalty greater in recent years.
Now, of course, you are entitled to be sentenced according to the law
as it existed at the time the offenses were committed, but since that
time the law has changed, if the child is under a certain age, and that
would certainly have qualified here and any sentence imposed -- I
believe it was 25 to 99 without the benefit of probation, parole, or
suspension of sentence. But, there again, you are entitled to be
sentenced according to the law as it existed at that time. But the
reason I‘m pointing that out, obviously, the legislature recognizes the
need as far -- in society to take care of their young folks, because
obviously, this apparently started when she was approximately five
years of age, and I do feel compelled to put on the record having
presided over the entirety of this trial, I did find her to be a very
credible witness. Also, I will point out that you are a first felony
offender. I have considered how these offenses have affected this
young lady, and one thing that Mr. Burns said that I certainly don‘t
agree with talking about it coming out in later years. I think a good
example is the sexual abuse situation that various – that the church has
found themselves in. You know, priest, well, these are supposed to be
Godly Christian folks, and we all know that this many years later
when some of these abuse victims come forth, and there‘s a lot of
reasons for that. When you‘re five years old, I mean, shame,
humiliation, you don‘t want to destroy the familiar relationship within

16

which you find yourself, maybe when you‘re that young you don‘t
recognize the economical situation, but still, it does have a lasting
effect on you because, in especially in a case like this where it‘s a
stepfather type situation. You, you are to be the leader of the family,
providing guidance and foundation, and your acts here, in my opinion,
and as I said, I find the witness credible and I agree with the jury‘s
verdict. Your acts here violated in my opinion, the most sacred
institution -- the family, and the trust family members have one for
another. And this pattern of sexual abuse, obviously, violated this
young lady‘s trust in you and took away her childhood. And
obviously, the only thing I can say is in exchange for your own sexual
gratification. I did find it to be a heinous crime. Apparently, it has
affected her in a psychological fashion as well. I think she‘s in
counseling or has been at one point in time, but anyway these type of
activities whether she is or not have a very lasting effect on a young
person and certainly causes serious emotional trauma to her.

This court finds the two maximum sentences of twenty years, imposed

consecutively for a total of forty years imprisonment, excessive individually and

consecutively under the circumstances of the case and in comparison with similarly

situated defendants and offenses.

In State v. J.M., 06-624 (La.App. 3 Cir. 11/2/06), 941 So.2d 686, the

defendant was convicted of two counts of aggravated incest and one count of

attempted aggravated incest. He was sentenced to two, ten-year terms of

imprisonment on the aggravated incest convictions, with six years suspended, and

five years on the attempted aggravated incest conviction, with three years

suspended. The sentences were ordered to be served consecutively for a total of ten

years imprisonment. On appeal, the defendant challenged the sufficiency of the

evidence and argued the sentences were excessive.

In J.M., the defendant played ―doctor‖ with three of his granddaughters. The

girls were ten, twelve, and thirteen at the time of the acts, which occurred several

times over a period of a little more than a year. The facts as presented at trial

showed that during their ―play‖ he would pretend to bandage the ―bo-bos‖ on their

17

legs, and, as he did so, he would reach under their pants and touch their vaginas,

both over and under their panties. He made them watch a pornographic movie. He

wanted them to play ―dare‖ to take off their clothes and do what the people in the

movie did. The girls would refuse or hide in the house and call for a parent to come

and get them. He threatened them not to tell or something bad would happen.

Eventually, the girls refused to visit their grandparent all together and the matter

came out.

This court affirmed the convictions but vacated the sentences as the

sentences were indeterminate as imposed. After remand, in State v. J.M., 07-453

(La.App. 3 Cir. 10/31/07), 968 So.2d 1164 (alterations in original)(footnote

omitted), having received the same prison terms, the defendant again alleged

excessiveness considering his age and health. This court affirmed, finding as

follows:

The trial court set forth several aggravating factors. It found
that the defendant‘s conduct manifested cruelty to the victims, as the
victims indicated that they were placed in ―scary‖ situations by
someone they trusted. The trial court emphasized that not only did the
defendant use ―his position or status to facilitate the commission of
the offense[s,]‖ he used his position of authority to attempt to
perpetuate the victims‘ silence. It noted that the victims‘ were
vulnerable due to their ages and that they experienced significant
emotional distress and psychological scarring.
The trial court found some mitigating factors. It recognized
that the defendant had no prior criminal record and that he would
likely respond to probationary treatment. The trial court was also
cognizant of the fact that the defendant was married for several years,
had medical problems, and took care of his ailing mother and her
husband.
The trial court stated that it imposed consecutive sentences
because ―there have been three individual victims that have been
abused on different occasions[.]‖
....

18

The trial court proceeded to sentence the defendant to the same terms
of incarceration previously imposed and ordered the sentences to run
consecutively.
After reviewing the record, we find that the defendant‘s
sentences are not excessive. Even given the consecutive nature of the
penalties imposed on all three counts, the defendant‘s total term of
imprisonment only amounts to one-fifth of his potential maximum
exposure for the offenses. Because the defendant received the same
sentences previously imposed, we cannot say that the trial court did
not consider the same mitigating factors. Nevertheless, considering
the circumstances of the instant offenses, particularly, the ages of the
victims, their relationship to the defendant, and the permanent effect
that the offenses will have on them, we find that the trial court did not
abuse its discretion in imposing sentence.
Nor do we find that the trial court abused its discretion in
ordering that the defendant‘s sentences run consecutively insofar as
there were three victims and the offenses occurred on different
occasions. See La.Code Crim.P. art. 883 and State v. H.B., 06-1436,
p. 10 (La.App. 3 Cir. 4/4/07), 955 So.2d 255, 262 (wherein this court
found that the trial court did not abuse its discretion in imposing
consecutive sentences where ―each of the three charged offenses all
had separate victims and that the abuse forming the basis of the charge
happened on at least three different dates and time periods‖).
Id. at 1168.
In State v. A.B.M., 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021, the

defendant impregnated his daughter after having sexual intercourse with her

starting when she was twelve or thirteen years old. He received fifteen years

imprisonment on one count of aggravated incest.

In State v. H.A., Sr., 47 So.3d 34, the defendant was convicted of

molestation of a juvenile and attempted aggravated incest and received five years

on both convictions, to be served concurrently. The first victim was his nine-year-

old daughter and was a one-time occurrence wherein he fondled her breast and

vagina. The second victim was his stepdaughter. She testified that starting when

she was nine years old, he repeatedly fondled her, inserting his finger in her

vagina, exposed himself to her, made her masturbate him, and attempted to

19

penetrate her with his penis. This court noted the leniency of the sentences,

particularly since they were ordered to be served concurrently, and did not find

them excessive.

In a second circuit case, State v. Stephens, 42,796, 42, 797 (La.App. 2 Cir.

12/5/07), 973 So.2d 145, writ denied, 08-165 (La. 6/20/08), 983 So.2d 1271, the

defendant pled guilty to aggravated incest after he impregnated his fifteen-year-old

stepdaughter. He was also convicted of molestation of one of his step

granddaughters, and a third sexual offense was dismissed. The defendant appealed

the maximum sentence of twenty years for aggravated incest and then years for

molestation of a juvenile as excessive. However, noting that he was a third felony

offender and that one of the prior felonies was a sexual offense that involved anal

intercourse with his ten-year-old stepson, the second circuit did not find the

maximum sentence excessive in this case, particularly since he committed the

instant offense while he was on probation for the prior sexual offense.

As noted above, generally, maximum sentences are reserved for the worst of

offenders and the worst of offenses. State v. Farhood, 02-490 (La.App. 5 Cir.

3/25/03), 844 So.2d 217. In the current case, the victim testified that Defendant

touched her on her breast and rubbed her vagina. She did not testify that he forced

her to touch him, have oral sex with him, or that he penetrated her with his finger

or any other instrumentality. She did not testify that he made her watch

pornographic movies or watch him masturbate. She specifically stated that he

never threatened her and that when she decided it was enough, he stopped. In the

current case, we find that Defendant is not one of the worst of offenders when it

comes to child sexual abuse.

20

Furthermore, as pointed out by Defendant, the trial court articulated no

reasoning as to why it chose to impose the maximum sentences on counts two and

three and then ordered the sentences to be served consecutively. Generally, when a

defendant is convicted of two or more offenses arising out of a single course of

conduct, concurrent sentences are not mandatory, and it is within a trial court‘s

discretion to order sentences to run consecutively rather than concurrently.

La.Code Crim.P. art. 883. However, an order directing that sentences arising from

a single course of conduct be served consecutively requires particular justification

from the evidence or record, and the trial court shall state the factors considered

and its reasons for the consecutive terms. State v. Humphries, 48,235 (La.App. 2

Cir. 9/25/13), 124 So.3d 1177; State v. Boudreaux, 41,660 (La.App. 2 Cir.

12/13/06), 945 So.2d 898, writ denied, 07-58 (La. 11/2/07), 966 So.2d 591.

In Boudreaux, the defendant pled guilty to fourteen counts of video

voyeurism and was sentenced to four years on each count to be served

consecutively for a total of fifty-six years. He appealed the sentences, arguing that

at forty-two years old, the imposition of fifty-six years imprisonment constituted a

life sentence. The second circuit agreed. The defendant in Boudreaux had hidden a

video camera in his stepdaughter‘s bedroom and taped her and several of her

friends in various stages of nudity over a course of several months. The second

circuit stated:

When two or more convictions arise from the same act or
transaction, or constitute parts of a common scheme or plan, the terms
of imprisonment shall be served concurrently unless the court
expressly directs that some or all be served consecutively. La. C. Cr.
P. art. 883. Concurrent sentences arising out of a single cause of
conduct are not mandatory, and it is within a trial court‘s discretion to
order sentences to run consecutively rather than concurrently.

21

A judgment directing that sentences arising from a single
course of conduct be served consecutively requires particular
justification from the evidence or record. When consecutive sentences
are imposed, the court shall state the factors considered and its reasons
for the consecutive terms.

Among the factors to be considered are the defendant‘s criminal
history, the gravity or dangerousness of the offense, the viciousness of
the crimes, the harm done to the victims, whether the defendant
constitutes an unusual risk of danger to the public, the potential for
defendant‘s rehabilitation, and whether defendant has received a
benefit from a plea bargain.

[T]he failure to articulate specific reasons for consecutive sentences
does not require remand if the record provides an adequate factual
basis to support consecutive sentences.

In attacking his consecutive hard labor sentences as excessive,
defendant points out that La. R.S. 14:283, the video voyeurism
statute, in paragraph B(4), recognizes that the worst offenders are
those who commit the crime against children and because his victim
was not a minor, he is not the worst type of offender. He claims that
the offense of video voyeurism is not a rape or sexual assault and in
many cases such severe sexual offenders (rapists and child molesters)
receive substantially smaller sentences than the one imposed in his
case.

....

Any sentence for video voyeurism under La. R.S. 14:283 B(3)
must be served without benefit of parole, probation, or suspension of
sentence. As a practical matter, 14 four-year terms without benefit of
parole to be served consecutively is a life sentence. Even as a second
felony offender, defendant would have been subject to a fixed term.

Although defendant‘s video voyeurism does not involve any
physical contact or violence, it is nonetheless a reprehensible violation
of a personal nature. At 18 years old, the victim may not legally have
been a minor, but she was a young and callow girl. Defendant
perpetrated the crime against someone he had essentially raised as a
daughter. According to the victim, her mother and defendant began
dating when she was eight years old and married when she was
eleven. After the parties separated in April of 2003, the victim lived
with her mother for approximately four months then moved in with
defendant. She lived with defendant and defendant‘s son until June
2005 when defendant ordered her to leave.

The experience has had and undoubtedly will continue to have a
significant effect on the victim. However, defendant‘s activities all

22

formed a part of a single scheme or plan, something that the trial court
did not adequately address at sentencing. While it is within the trial
court‘s discretion to impose sentences consecutively in an appropriate
―scheme or plan‖ case, in the instant matter, the imposition of a 56-
year term without parole is out of proportion to the offense and
appears to impose a purposeless and needless infliction of pain and
suffering.

Id. at 902-04 (case citations omitted)(footnote omitted). The second circuit vacated

the sentences and remanded for the trial court to ―reevaluate and address which of

these counts represent a separate and distinct crime and impose consecutive and

concurrent terms in a more appropriate fashion.‖ Id. at 904.

In Humphries, 124 So.3d 1177, the defendant was convicted of three counts

of aggravated incest committed against his stepdaughter. He was sentenced to

forty-five years on one count and sixteen years on the remaining two counts, to be

served concurrently with each other and consecutively to the forty-five year

sentence for a total of sixty-one years imprisonment. He appealed the sentences

asserting that the sentence of sixty-one years was excessive and constituted cruel

and unusual punishment. After looking at whether the forty-five year sentence was

excessive and determining it was not, the second circuit looked to whether it was

error for the trial court to impose consecutive sentencing in the case. The second

circuit noted that over the ten years that the defendant abused the victim, the acts

of abuse escalated from touching when the victim was five or six to anal

intercourse when she was fifteen.

Similarly, the 16-year sentences for Counts Two and Three, which
encompass the acts of forced anal sex that Defendant admitted to, are
not excessive and are within La. R.S. 14:78.1(D)(1)‘s sentencing
range of 5 to 20 years with or without hard labor with a fine not to
exceed $50,000. The concurrent 16-year sentences are not out of
proportion to the severity of the crime and do not shock the sense of
justice.

23

Furthermore, the total sentence of 61 years at hard labor is not
excessive. When a defendant is convicted of two or more offenses
based on the same act or transaction, or constituting parts of a
common scheme or plan, the terms of imprisonment shall be served
concurrently unless the court expressly directs that some or all be
served consecutively. La. C. Cr. P. art. 883.

....

During the resentencing hearing, the trial court specifically
noted that particular justification was required for imposing
consecutive sentences for crimes arising out of a single course of
conduct. As discussed, supra, the trial court thoroughly detailed the
aggravating and mitigating factors it considered when deciding on
Defendant‘s sentence. The trial court emphasized how the sexual acts
performed by Defendant escalated after K.W. turned 15 to include
forced anal sex. It determined that the acts performed in Count One
and the acts performed in Counts Two and Three were distinguishable
and not an ongoing crime. Based upon this reasoning, the trial court
ordered that Counts Two and Three run concurrently with each other
and consecutively with Count One. The trial court properly provided
particular justification and clearly stated the factors it considered in
imposing this sentence. We find, therefore, that the trial court did not
err in ordering consecutive sentences and that the total sentence of 61
years at hard labor is not excessive.

Id. at 1190-91.

As argued by Defendant above, and unlike Humphries, the five counts were

indistinguishable, and the trial court did not give justification as to why counts two

and three were dealt with more harshly than the remaining counts or why it choose

to impose consecutive sentences for a total of forty years. At the time of

sentencing, Defendant was sixty-six years old. As in Boudreaux, at the time of the

offenses, La.R.S. 15:571.3(C)(4)(e) mandated that he was not eligible for

diminution of sentence. While the victim in the current case was a minor, five or

six when the abuse began, it did not escalate from touching and ended when the

victim told him to stop. Without sufficient justification, we find that the two

consecutive sentences totaling forty years is nothing more than cruel and unusual

punishment.

24

Therefore, this court vacates the sentences on counts two and three and

remands the matter to the trial court to reevaluate and address whether these two,

twenty-year sentences, individually and consecutively, are excessive in light of the

above jurisprudence.

DECREE

This court affirms the convictions, vacates the sentences on counts two and

three, and remands the matter to the trial court to reevaluate and address whether

these two, twenty-year sentences imposed are excessive in light of the above

jurisprudence and whether there is sufficient justification for imposing the

sentences to be served consecutively.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO AND
THREE VACATED; AND REMANDED FOR RESENTENCING.

25