State of Louisiana v. Fahim A. Shaikh

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-687

STATE OF LOUISIANA

VERSUS

FAHIM A. SHAIKH

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. 2014-313
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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

Thibodeaux, Chief Judge, dissents in part and assigns written reasons.

AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Fahim A. Shaikh

James R. Lestage
District Attorney
Thirty-Sixth Judicial District
Post Office Box 99
DeRidder, Louisiana 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

KEATY, Judge.

Defendant, Fahim A. Shaikh, appeals his convictions and sentences for

simple kidnapping and indecent behavior with a juvenile. For the following

reasons, Shaikh’s convictions and sentences are affirmed in part, reversed in part,

vacated in part, and remanded.

FACTS AND PROCEDURAL BACKGROUND

In this criminal matter, the thirteen-year-old victim, A.G., 1 was at her house

on the morning of April 17, 2014, when her mother, Mitzi Gormanous, left with

her older daughter and grandson to go shopping. A.G. did not go shopping

because she was punished for inappropriate behavior. When they returned

approximately an hour and a half later, A.G. was gone. This was the second time

that A.G. had run away according to her mother, and following a brief search,

Gormanous called the sheriff’s office and reported A.G. as a runaway. A.G. was

found later that day when she went to the sheriff’s station with Mrs. Judith Knox.

Mrs. Knox was the grandmother of her friend, Alexis Knox, and with whom

Alexis lived. A.G.’s trial testimony indicates that on the morning in question, she

planned on running away to Alexis’s house. As such, she packed a bag with her

clothes and began walking towards her destination. As she was walking, Shaikh,

who was driving his car, stopped and asked A.G. if she needed a ride. A.G.

obliged and asked to be taken to Alexis’s house. Since Alexis was not going to be

home until later that day, Shaikh and A.G. went to the Dairy Queen drive-through

to get food, went to Shaikh’s friend’s apartment, ran other errands, and finally

1
The victim’s initials are used to protect the victim’s identity as required by La.R.S.
46:1844(W).

ended up at Alexis’s house. A.G. alleged that during this time, Shaikh kissed her

cheek, tickled her, slapped her butt, and professed his love for her.

As a result, Shaikh was charged on June 12, 2014 with one count of simple

kidnapping, a violation of La.R.S. 14:45, and one count of indecent behavior with

a juvenile, a violation of La.R.S. 14:81. Following a three-day jury trial which

began on February 23, 2014, Shaikh was convicted as charged. Shaikh

subsequently filed a Motion for New Trial and a Motion for Post-Verdict Judgment

of Acquittal Pursuant to Code of Criminal Procedure Article 821, which the trial

court summarily denied on April 2, 2014.

On April 13, 2014, Shaikh was sentenced to five years, with two years

suspended, on the simple kidnapping conviction. As to the indecent behavior with

a juvenile conviction, he was sentenced to seven years with three years suspended.

Both sentences were ordered to be served concurrently with Shaikh receiving

credit for time served, for a total of four years of incarceration and five years of

supervised probation upon release. He was also ordered to pay a fine of $2,500 on

each count, plus court costs. The general conditions of probation were ordered,

along with $500 to be paid to the Criminal Court Fund, $300 for cost of

prosecution, and $300 to the Public Defender’s Fund. The fines, fees, and costs

were ordered by the trial court to be paid on a twenty-four month payment plan.

Shaikh subsequently filed a Motion to Reconsider Sentence which was denied by

the trial court on May 4, 2015. Shaikh appealed.

On appeal, Shaikh asserts the following five assignments of error:

I) The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a
reasonable doubt that Appellant, Fahim Shaikh, committed simple
kidnapping of A.G., a thirteen[-]year-old juvenile.

2

II) The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a
reasonable doubt that Appellant, Fahim Shaikh, committed indecent
behavior of A.G., a thirteen[-]year-old juvenile.

III) Fahim Shaikh was subjected to double jeopardy when he was
convicted of both the offense of simple kidnapping and the offense of
indecent behavior with a juvenile from the same course of criminal
conduct.

IV) The trial court erred in denying Mr. Shaikh’s motion for
mistrial and in permitting the prosecution to elicit information about
Mr. Shaikh’s immigration status as well as his incarceration.

V) The maximum sentences imposed upon Fahim Shaikh, although
partially suspended, are excessive and are in violation of the Eighth
Amendment to the United States Constitution and Article I, § 20 of
the Louisiana Constitution.

DISCUSSION

I. Errors Patent

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

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

error patent, and the minute entry of the sentencing proceeding and the

commitment order are in need of correction. However, these errors are rendered

moot due to our reversing and vacating Shaikh’s indecent behavior with a juvenile

conviction and sentence.

II. Simple Kidnapping

In his first assignment of error, Shaikh contends that the evidence was

insufficient to prove that he committed simple kidnapping. When the sufficiency

of evidence claim is raised on appeal, the following inquiry is utilized by the

reviewing court:

[W]hether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact

3

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 credibilities of
the witnesses, and therefore, the appellate court should
not second guess the credibility determinations of the
trier of fact beyond the sufficiency evaluations under the
Jackson standard of review. See Graffagnino, 436 So.2d
at 563, citing State v. Richardson, 425 So.2d 1228
(La.1983). To obtain a conviction, the elements of the
crime must be proven beyond a reasonable doubt.

State v. Thacker, 13-516, p. 5 (La.App. 3 Cir. 1/28/15), 157 So.3d 798, 804

(quoting State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d

578, 580).

Furthermore, the testimony of a single witness is
sufficient to support a conviction “[i]n the absence of
internal contradiction or irreconcilable conflicts with
physical evidence.” State v. Dixon, 04-1019, p. 12
(La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936. The trier
of fact may accept or reject the testimony of any witness,
and the determination of the credibility of that witness, in
whole or in part, is left to its sound discretion and “will
not be re-weighed on appeal.” Id. at 936.

Id. (quoting State v. F.B.A., 07-1526, pp. 1-2 (La.App. 3 Cir. 5/28/08), 983 So.2d

1006, 1009, writ denied, 08-1464 (La. 3/27/09), 5 So.3d 138).

Simple kidnapping is defined in La.R.S. 14:45(A), in pertinent part, as:

(2) The intentional taking, enticing or decoying away, for an
unlawful purpose, of any child not his own and under the age of
fourteen years, without the consent of its parent or the person charged
with its custody.

In this case, there is no dispute that A.G. was under the age of fourteen years

old and that Shaikh did not have Gormanous’s consent. The only issue, therefore,

is whether the evidence and testimony presented at trial shows, beyond a

4

reasonable doubt, that Shaikh committed the “intentional taking, enticing or

decoying away, for an unlawful purpose.” Id.

At trial, the State’s witness, Mrs. Knox, testified that she lived with her

husband and three grandchildren: thirteen-year-old Alexis; 2 twelve-year-old

Haleah; and eleven-year-old David. She revealed that she knew A.G. through her

grandchildren and that on April 17, 2014, A.G. appeared at her house “[w]hen

some guy dropped her off and waited for her to see if she could stay with us.”

Mrs. Knox stated that A.G., who was crying, scared, and pale, told her “that she

was afraid and [that] she ran away.” According to Mrs. Knox’s testimony, A.G.

also told her that she did not want to return home. Mrs. Knox testified that she

gave A.G. two choices: that she needed to call her mother or call the sheriff’s

department. Mrs. Knox indicated that A.G. called the sheriff’s department, where

she and Mrs. Knox subsequently went for questioning.

Mrs. Knox’s testimony is supported by A.G.’s trial testimony that she ran

away from home on the day in question. A.G. testified that she intended to run

away to Alexis’s house which was located at “Bundick Lake Road or Bundick

Lake, Dry Creek.” Her testimony reveals that she packed a bag containing her

clothes, left her house on foot, and began walking to Highway 171. A.G. stated

that when she reached Highway 171, she began walking towards DeRidder,

Louisiana, and almost made it to the Dry Creek Highway when Shaikh, who was

driving his car, approached her and asked her if she wanted a ride. A.G. testified

that she got into his car, told Shaikh that she was going to Alexis’s house, and

Shaikh said he would take her there. A.G. stated that she told Shaikh that she was

2
Although Mrs. Knox does not reveal Alexis’s last name, we assume that it is Knox in
light of A.G.’s trial testimony that she was running away to Alexis Knox’s house.

5

thirteen years old, and he stated that he was twenty-five years old. On cross-

examination, A.G. testified that when she initially got into Shaikh’s car and he

began driving, she told him that Alexis would not be home until four o’clock that

afternoon. On cross-examination, she further testified that in response, Shaikh

asked if she wanted to get something to eat since it was approximately 11:30 a.m.

According to A.G.’s direct testimony, she responded “[y]es” which prompted

Shaikh to turn around and proceed to Dairy Queen in DeRidder. Once they arrived

at Dairy Queen, A.G. testified that they went to the drive-through and ordered food,

which Shaikh paid for. She stated that after they received their food, Shaikh drove

them to an apartment.

When they arrived at the apartment, A.G. testified that she sat on the couch

and that Shaikh sat next to her and began to rub her inner leg between the knee and

thigh. A.G. indicated that Shaikh quit rubbing her leg after she told him to stop

and that he never touched her in that area again. Her testimony reveals that she

had her cousin’s cell phone in her possession during this time, although it could not

make outgoing calls. A.G. testified that they talked about how her mother had

forbidden her to dye her hair and that she and Shaikh subsequently proceeded to

Wal-Mart where Shaikh bought her hair dye. A.G. indicated that after they

returned to the apartment, Shaikh applied the dye to her hair, and as it was setting,

he left the apartment for a short while. Her testimony reveals that Shaikh returned

a few minutes later after she had washed out the hair dye. A.G. testified that they

again sat on the couch, and Shaikh hugged her, kissed her on the cheek, and tickled

her under the arm. She revealed that this behavior ceased when A.G. told him to

stop. She indicated that Shaikh slapped her butt, and she became fearful when he

invited her to remain at his apartment overnight. According to her testimony, A.G.

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declined his invitation and asked Shaikh to bring her to Alexis’s house. A.G.

testified that he obliged and brought her there. On the way, she testified that

Shaikh said she was pretty, he loved her, he wanted to meet up with her, and he

gave her his phone number. A.G.’s testimony reveals that Shaikh never threatened

her, never made her go to the apartment or return with him after they went to Wal-

Mart, and that she never made an effort to escape. She also testified that Shaikh

never tried to touch her breast or private area, make out with her, or have her

perform any kind of acts on him.

The State also presented Deputy Randall Anderson of the Beauregard Parish

Sheriff’s Office at trial, who testified that when A.G. arrived at the police station

with Mrs. Knox, she provided him with a voluntary written statement wherein she

advised of all that occurred previously that day. Deputy Anderson indicated that

A.G.’s written statement stated that Shaikh tickled her, rubbed her legs between

her knee and hip, hugged her, slapped her butt, and kissed her on the cheek.

Deputy Anderson indicated that he and Deputy Lance Grant subsequently

attempted to locate Shaikh with A.G.’s help, who led them to the apartment

complex although she could not remember the apartment’s exact location. Deputy

Anderson revealed that they returned to the sheriff’s office when A.G. advised that

she programmed Shaikh’s phone number into her cousin’s phone. He testified that

he and Deputy Grant thereafter called and texted Shaikh from their phones,

disguising themselves as A.G. and telling Shaikh that she was at a “Get and Go”

convenience store and needed a ride home. Deputy Anderson testified that he

subsequently arrested Shaikh after pulling him over on Highway 171, close to the

convenience store.

7

Deputy Grant, another State witness, testified at trial and corroborated

Deputy Anderson’s testimony. Deputy Grant further testified that following their

attempts at communicating with Shaikh, Shaikh called A.G. on Deputy Grant’s cell

phone, which Shaikh thought was A.G.’s cell phone. He testified that during this

communication between the two, Shaikh advised that he was uncomfortable

picking A.G. up from the convenience store. Deputy Grant indicated that Shaikh’s

attitude changed, however, when A.G. told him not to pick her up and that she was

going to walk home; he then agreed to pick her up. Deputy Grant revealed that

when Shaikh arrived at A.G.’s location, Deputy Grant ran up to Shaikh’s car,

which prompted him to quickly drive away. He testified, however, that Shaikh

subsequently stopped when he saw Deputy Anderson in his police car.

Deputy Bobbie Ripley, a female sheriff’s detective and another State witness,

conducted a videotaped interview with A.G. on April 23, 2014. At trial, she

testified that A.G.’s version of events was the same as the events she noted in her

April 17, 2014 voluntary statement. Deputy Ripley submitted a supplemental

report documenting her interview.

Abdul Majeed also testified on behalf of the State at trial, advising that he

was the owner of a gas station and convenience store located in Merryville,

Louisiana. Majeed revealed that he previously owned another store in Texas,

where he used to live and during which time he met Shaikh, who briefly worked at

his store. According to his testimony, after Shaikh stopped working for Majeed in

Texas, they maintained a friendship. Majeed revealed that when he returned to

Pakistan to visit family, he asked Shaikh, who was living and working in Baton

Rouge, Louisiana, to take care of his Merryville store for four weeks. Majeed

8

testified that he allowed Shaikh to reside in his DeRidder apartment while he was

in Pakistan.

To counter the State’s witness testimony, Shaikh presented Apollo Varela,

who testified that on the day in question, and at the same time that A.G.’s mother

and sister were waiting in the lobby of the sheriff’s station, he was also in the

lobby as he had just been let out of jail and was waiting for a ride home. He

revealed that when A.G. arrived, she informed her family that she had run away

and that Shaikh did not inappropriately touch her.

Shaikh also testified at trial, stating that he managed Majeed’s store while

also managing a café/bakery in Baton Rouge. On the morning in question, Shaikh

testified that he had opened Majeed’s store, and, a few hours later, he left the store

and proceeded down Highway 171 towards Sam’s Club. Shaikh indicated that he

never made it and turned back because he was tired. He revealed that after he

turned around, he noticed A.G. hitchhiking and asked her if she needed a ride.

Shaikh testified that A.G. said that she was going to a friend’s house and gave him

directions to get there. He stated that A.G. advised that her friend would not be

home until later that day.

Shaikh testified that, because her friend would not be home until later in the

day, he and A.G. went to Dairy Queen, made a deposit at the bank, and went to

Majeed’s apartment. He revealed that during a conversation at the apartment, A.G.

stated that she was thirteen years old, that her mother drank heavily, and that she

once had to drive her mother home. Shaikh stated that although he considered

calling the police, he believed that it would prompt Child Protective Services to

become involved. He revealed that he did not want A.G.’s parents involved in

such a situation should A.G.’s allegations be false. Shaikh stated that he thereafter

9

proceeded upstairs to prepare taxes while A.G. remained downstairs watching

television. He testified that approximately an hour and a half passed when he told

A.G. that he had to leave to go to the tax office. Shaikh testified that she wanted to

go with him, and during their trip, they stopped to buy hair dye at Wal-Mart. He

indicated that he told A.G. to use the dye at her friend’s house given her previous

statement to him that her mother had forbidden her from dying her hair. Shaikh

revealed that they never made it to the tax office as he had to return to the

apartment because he forgot the checks. Shaikh testified that A.G. stayed at the

apartment when he left again to go to the tax office and that when he returned, she

had dyed her hair. He then took her to her friend’s house.

Shaikh testified that when he dropped A.G. off at her friend’s house, she

seemed normal and that she asked for his number, advising that she would call him

for a ride if she had to walk back home the following Monday. He stated that he

gave her his cell phone number and left to go to work at Majeed’s store. Shaikh

explained that he reluctantly agreed to pick A.G. up after work that same day

following several phone calls from her as he had to drive to Baton Rouge that

evening to open the bakery the following morning. He testified that when he got to

the “Get and Go” convenience store where he was to meet with A.G., a man rushed

up to his car with a flashlight, leading him to believe that he had been set up to be

robbed. As a result, he testified that he sped away, quickly realizing, however, that

it was the police. He testified that he pulled over.

Shaikh testified that he never touched A.G., professed his love for her, or

acted inappropriately. He stated that he initially believed she was a salesperson

when he saw her hitchhiking with a suitcase. Shaikh testified that A.G. never told

10

him she was a runaway, and he denied that he told her he was only twenty-five

years old. He testified that he was forty-one years old, married, and had one son.

After hearing the above testimony, the jury believed A.G.’s testimony rather

than Shaikh’s testimony given its guilty verdict. Thus, the jury believed that there

lacked a lawful purpose and/or consent, which is both required to prove simple

kidnapping. Similarly, the trial court agreed with the jury by stating the following

at the sentencing hearing on April 13, 2015:

The defense has, obviously, argued that the sentence should be one of
leniency in this matter, maintaining their position that Mr. Shaikh was
simply trying to help this young lady.

Well, let me dispel that situation. I do not find the evidence -- I
do not find that that version of events is what happened on this
occasion. I heard all of the evidence, and I do not feel that Mr. Shaikh
thought that this was a traveling salesperson. I believe that more
likely the situation that was described is that Mr. Shaikh saw this
young girl walking down the side of the road and made an intentional
decision to turn around.

And, thankfully for this young lady, Mr. Shaikh is a very meek
and mild-mannered person who only took this as far as the young
victim allowed it to go. And my belief is that . . . Mr. Shaikh would
have taken this as far as the young victim would have allowed it to go.

....

But I want to make the record clear that I do not believe Mr.
Shaikh’s version of events that he was just trying to be a good citizen
in this matter. I think, fortunately for this young lady, Mr. Shaikh was
not a forceful child molester or rapist, or else we could be dealing
with a much different situation.

We agree with the jury and trial court’s holding. Shaikh argues, however,

that the State failed to prove that the alleged taking was for an unlawful purpose by

citing State v. Belcher, 34,616 (La.App. 2 Cir. 6/20/01), 793 So.2d 262, 267,

wherein the second circuit held:

The Legislature, in proscribing “taking, enticing or decoying away” of
children, obviously did not intend to include in the proscription

11

actions undertaken for a lawful purpose (such as, for example, giving
children a ride to school on a rainy day), even when done without the
consent of the parents. However, the State, in order to satisfy its
burden of proof by sufficient evidence, need not establish the exact
nature of defendant’s intent or purpose, but rather need only negate
the existence of any lawful purpose. State v. Gill, 441 So.2d 1204
(La.1983).

We find that Belcher’s example of “giving children a ride to school on a rainy day”

without parental consent equates to a lawful purpose is completely different than

and fails in comparison to the facts of the instant case. Specifically, picking up a

runaway minor girl and keeping her secreted for five hours without her legal

guardian’s consent, as in the instant case, does not equate to a lawful purpose.

Shaikh argues, however, that the State failed to negate the existence of a

lawful purpose since A.G. voluntarily went with Shaikh. We find that Shaikh’s

argument is without merit since A.G. lacked the capacity to consent as illustrated

in State v. Bates, 05-315, p. 6 (La.App. 1 Cir. 11/4/05), 927 So.2d 417, 420

(citations omitted), wherein the appellate court stated the following with respect to

the consent element in simple kidnapping:

An essential element of [simple kidnapping] is that the forcible
seizing and carrying of the victim be without his consent. And every
element of a crime must be proven beyond reasonable doubt before a
conviction can be upheld. Because the victim was an infant, however,
he could neither grant nor deny consent to his being seized and carried.
That consent had to come from or be denied by a legal custodian.

Although A.G. was thirteen years old at the time of the incident and not an infant

like in Bates, the same proposition applies regarding consent. Specifically, even

though A.G. voluntarily agreed to enter Shaikh’s car, she had no legal authority in

her capacity as a minor to consent to getting into Shaikh’s car. “That consent had

to come from or be denied by [A.G.’s] legal custodian.” See Id. at 420. Thus, the

State proved that an unlawful purpose existed by virtue of A.G.’s age and her lack

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of capacity to consent to entering Shaikh’s vehicle and being secreted for five

hours.

Based on the above and in the light most favorable to the State, we find that

there is sufficient evidence supporting Shaikh’s simple kidnapping conviction.

Accordingly, the trial court’s judgment is affirmed in this regard.

III. Indecent Behavior

In his second assignment of error, Shaikh contends that the evidence was

insufficient to prove that he committed indecent behavior with a juvenile. Indecent

behavior with a juvenile is defined, in pertinent part, as:

[T]he 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(A)(1).

Indecent behavior with a juvenile is a specific intent crime for which
the State must prove the offender’s intent to arouse or gratify his
sexual desires by his actions involving a child. Specific intent to
commit indecent behavior with juveniles need not be proven as fact,
but may be inferred from the circumstances and actions of the
defendant.

State v. Anderson, 09-934, p. 7 (La.App. 5 Cir. 3/23/10), 38 So.3d 953, 958, writ

denied, 10-908 (La. 11/12/10), 49 So.3d 887.

In this case, it is undisputed that an age difference of greater than two years

existed between Shaikh and A.G. The only issue, therefore, is whether the State

proved that Shaikh committed “[a]ny lewd or lascivious act upon . . . or in the

presence of” A.G with the “intent to arouse or gratify his sexual desires by his

actions involving” A.G. La.R.S. 14:81(A)(1); State v. Anderson, 38 So.3d at 958.

13

Lewd and lascivious has been defined as “‘an act upon the person of a juvenile

which is lustful, obscene, indecent, tending to deprave the morals in respect to

sexual relations, and relating to sexual impurity or incontinence carried on in a

wanton manner.’” State v. Interiano, 03-1760, p. 7 (La. 2/13/04), 868 So.2d 9, 15

(quoting State v. Holstead, 354 So.2d 493, 498 (La.1977)). We, therefore, look to

the law, evidence, and testimony presented at trial to determine whether any

rational trier of fact could have found the essential elements of indecent behavior

with a juvenile proven beyond a reasonable doubt.

We discussed the sufficiency of the evidence claim with respect to the crime

of indecent behavior with a juvenile in State v. Rideaux, 05-446 (La.App. 3 Cir.

11/2/05), 916 So.2d 488, wherein the defendant was convicted of molestation of a

juvenile of two different victims. We found that while there lacked sufficient

evidence to support the molestation charge with respect to the first juvenile victim,

the evidence supported charging the defendant with the lesser included offense of

indecent behavior with the first juvenile victim. As to the second juvenile victim,

we found that there was insufficient evidence supporting both the molestation

charge and indecent behavior with a juvenile. In our holding, we noted the second

juvenile victim’s testimony that there was only one incident of touching which

occurred as follows:

She stated that she and her sister were watching television and her
mother told her to go to bed, but she fell asleep on the couch. She
awoke when Defendant began rubbing her feet. She said that he
unsnapped her bra and rubbed her back, and the area under her
armpits. During the taped interview, she stated he rubbed the top of
her butt, but at trial she indicated he rubbed all of her butt. When she
got up and left the room, the activity ceased without words. [The
second juvenile victim] was in her home, with two other adults,
including her mother, present. She testified at trial and during the
taped interview that the only words spoken during this time were
when, while he was rubbing her head, Defendant said, “Oh, you had a

14

headache. I knew my baby girl had a headache and I just wanted
you—to make you feel better.” There was no evidence that he told
her not to tell anyone about the contact.

Id. at 495.

We reached our conclusion in Rideaux, 916 So.2d at 496, by reviewing prior

jurisprudence interpreting lewd and lascivious behavior and other examples

wherein the offender’s intent was found to arouse or gratify his sexual desires by

his actions, as follows:

In State v. Louviere, 602 So.2d 1042, 1044 (La.App. 4 Cir.
1992), writ denied, 610 So.2d 796 (La.1993) (citations omitted),
wherein the defendant was convicted of two counts of indecent
behavior with a juvenile . . . :

....

In that case, two nine-year-old girls testified that the seventy-two-
year-old defendant asked them to kiss him to see if his breath smelled
like chicken and that he attempted to put his tongue in their mouths
when they did so. There were no other touches or suggestions of a
sexual nature. Our colleagues on the fourth circuit held that without
more, although disgusting, there was no evidence that he committed a
lewd and lascivious act with the intent to arouse or gratify sexual
desires.

The fourth circuit in Louviere reversed the trial court’s conviction of indecent

behavior with a juvenile based upon insufficient evidence.

We also looked at State v. Bugbee, 34,524 (La.App. 2 Cir. 2/28/01), 781

So.2d 748, wherein “the defendant was convicted of indecent behavior with two

juveniles. They testified that he repeatedly touched their breasts and buttocks.

Affirming the convictions, the second circuit stated that ‘[o]ne touch may be an

accident, but 8 to 13 times indicate a plan.’” Rideaux, 916 So.2d at 497 (quoting

Bugbee, 781 So.2d at 756). We also reviewed State v. Breaux, 02-382 (La.App. 5

Cir. 10/16/02), 830 So.2d 1003, wherein the defendant was convicted of indecent

behavior when, while sitting with the victim in the back seat of a car, “he put his

15

fingers between her legs and touched her vagina. When she opened her mouth to

call to her mother in the front seat, he covered her mouth with his hand. The fifth

circuit found his act of covering her mouth an indication of his intentions.”

Rideaux, 916 So.2d at 498.

After reviewing Louviere, Bugbee, Breaux, and other jurisprudence, we held

that the evidence in Rideaux was insufficient to support the indecent behavior

conviction with respect to the second juvenile victim by stating:

In the present case, unlike Defendant warning [the first juvenile
victim] not to tell anyone, Defendant did not say a word to [the second
juvenile victim] as she left the room. Unlike Bugbee, there were no
repeated acts, thus, no indication of a plan. There was no kissing,
touching of the genitals as in Breaux, or attempts to prevent others
from knowing about the incident. Other adults were present in the
home, and there was nothing to suggest a sexual agenda. While
Defendant’s actions may have been inappropriate, especially
unhooking [the second juvenile victim’s] bra, we find that the State
failed to prove his actions were “lewd or lascivious” or done with “the
intention of arousing or gratifying the sexual desires of either person”
beyond a reasonable doubt.

Rideaux, 916 So.2d at 498.

In the instant matter, the State alleges that the following acts allegedly

committed by Shaikh qualified as indecent behavior: rubbing A.G.’s leg, hugging

and kissing her on her cheek, slapping A.G.’s butt as she stood up from sitting on

the couch, and attempting to tickle her. A.G.’s testimony shows, however, that

Shaikh’s foregoing behavior ceased when she instructed him to stop. There lacks

testimony indicating that Shaikh attempted to get A.G. to touch him in a sexual

way or that he tried to touch her breast or genitals. There lacks testimony

indicating that Shaikh made sexual remarks or inappropriate suggestions, or that he

tried to take off her clothes.

16

Rather, A.G.’s testimony shows that when Shaikh dropped her off at the

Knox home, he waited to see if her friend was there before leaving, and she said

nothing to Mrs. Knox before she walked back out to Shaikh’s car to tell him she

could stay there. Despite Mrs. Knox’s testimony indicating that A.G. was pale and

crying upon arrival, when questioned if A.G. told her why she was crying, Mrs.

Knox stated: “Just that she was afraid and she ran away.” Mrs. Knox testified,

however, that A.G. did not want to return home and wanted to stay at Mrs. Knox’s

house because “she felt safe there, and she said she wouldn’t be afraid and that she

just would feel safer there.”

Accordingly, we find none of the acts the State relied upon are “lewd or

lascivious” nor committed with the “intent to arouse or gratify [Shaikh’s] sexual

desires.” La.R.S. 14:81(A)(1); Anderson, 38 So.3d at 958. Similar to Rideaux,

where the defendant’s act of unhooking the juvenile victim’s bra and rubbing her

naked back, under her arms, and butt may have been inappropriate, the leg rubbing,

attempted tickle, and hugging and kissing the cheek of a juvenile victim he did not

know, in the current case, did not prove Shaikh acted with the specific intent to

arouse or gratify his sexual desire. Thus, his conviction for indecent behavior with

a juvenile is reversed, and his sentence is vacated.

IV. Double Jeopardy

In his third assignment of error, Shaikh contends that his convictions for

simple kidnapping and indecent behavior with a juvenile constitute double

jeopardy since they arise from the same course of criminal conduct. Considering

our holding reversing and vacating Shaikh’s indecent behavior with a juvenile

conviction and sentence, we find that this assignment of error is moot.

17

V. Mistrial

In his fourth assignment of error, Shaikh contends that the trial court erred in

permitting the State to question him regarding his immigration status, over his

counsel’s objection, as it had no bearing on whether he was guilty of simple

kidnapping. Shaikh alleges that the improper admission of this evidence

prejudiced the jury, making it impossible for it to make an impartial determination.

At trial and prior to Shaikh’s testimony, defense counsel attempted to limit

the State’s ability to question him regarding his immigration status and possible

deportation by stating that it was irrelevant. The State argued at trial that it had a

right to full cross-examination in order to show any biases, which included

Shaikh’s immigration status. The trial court allowed the questioning, finding that

if Shaikh was facing deportation, it could be relevant as to his truthfulness.

At trial, the defense questioned Shaikh regarding his background, including

his birthplace. The State cross-examined Shaikh regarding his initial immigration

status when he first came to the United States. In response, Shaikh testified that he

was born in Pakistan although he came to the United States in June 1999 on a

fiancé visa, meaning that he was engaged to a United States citizen. He further

testified that his fiancé, and later his first wife, was from Pakistan although she was

a United States citizen. Shaikh stated that they were married in California in July

1999, although they subsequently divorced in 2001. He testified that he married

his second wife, also a United States citizen, in 2003 and together they produced

one child.

The State thereafter extensively questioned Shaikh regarding his current

immigration status, which Shaikh stated was “out-of-status,” which is different

than being in the United States illegally. More specifically, he testified that he

18

obtained work permits which enabled him to stay in this country legally, although

they had to be renewed annually. He indicated that he had not renewed his work

permits since 2009, as it was costly and he did not have the money. Shaikh further

testified that although he knew that he could be deported if he was convicted of a

felony, the risk of deportation had no impact on his testimony.

Following the foregoing colloquy between the State and Shaikh, the trial

court stated:

Ladies and gentlemen of the jury, I’m going to instruct you that
the testimony of Mr. Shaikh as to any bias that he may have in
truthfulness or untruthfulness is purely up to the jury to determine; but
I want to make sure that I’m clear that the legal status of Mr. Shaikh
as a U. S. citizen or not or whether he is legally or illegally or
somewhere in between in this country is not to be considered in any
way, shape, or form. He is entitled to the same benefits under the law
under our criminal justice system, regardless of any of those status
determinations that you make or don’t make.

So I just want to make sure that the jury understands that, for
other purposes, the State and the defense can argue about how those
things may affect his testimony and believability or unbelievability;
but as far as the rights that he is entitled to under our law of innocence,
presumption of innocence, a fair trial, and all of those things do not
have anything to do with where he’s from, whether he’s a U. S. citizen
or not, whether he’s legally here are [sic] not legally here, what his
religious beliefs are or are not.

We start our analysis by examining relevant evidence, which is defined as

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” La.Code Evid. art. 401. “We will not disturb

the trial court’s ruling as to the admissibility of such evidence in the absence of a

clear showing of abuse of discretion.” State v. Shelton, 11-22, p. 17 (La.App. 3 Cir.

9/28/11), 75 So.3d 512, 522, writ denied, 11-2405 (La. 3/9/12), 84 So.3d 552.

Relevant evidence may be excluded, however, “if its probative value is

19

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or waste of time.”

La.Code Evid. art. 403.

In his brief, Shaikh contends that his immigration status is irrelevant with

respect to his determination of guilt, and that its admission was prejudicial and not

indicative of his credibility. Shaikh argues that the admissibility of evidence

regarding immigration law violations depends on the facts and circumstances of

the case at issue, citing federal jurisprudence found in United States v. Almeida-

Perez, 549 F.3d 1162, 1174 (8th Cir. 12/16/08) (emphasis added), wherein the

Eighth Circuit held:

We have found two cases in which unlawful entry into the country or
other violation of immigration laws was considered admissible
because relevant to truthfulness. United States v. Cardales, 168 F.3d
548, 557 (1st Cir.1999); United States v. Cambindo Valencia, 609
F.2d 603, 633-34 (2d Cir.1979). At the same time, we must say that
the use of such evidence is fraught with the danger of prejudice to
a defendant by introducing the possibility of invidious
discrimination on the basis of alienage. See Fed.R.Evid. 403.
Moreover, the relevance of an immigration violation to character
for truthfulness is at the least debatable and would depend on the
facts of the particular violation since many immigration violations
do not involve a false statement. See Figeroa v. United States INS,
886 F.2d 76, 79 (4th Cir.1989) (“An individual’s status as an alien,
legal or otherwise, does not entitle the [Board of Immigration Appeals]
to brand him a liar.”); see generally 3 Christopher B. Mueller & Laird
C. Kirkpatrick, Federal Evidence § 6:33 (3d ed.2007).

Shaikh also cites Molina v. Perez, 2015 WL 249024, p. 8 (D. Kan. 1/20/15),

another federal case, for the proposition that “[e]vidence of specific conduct

related to immigration status bearing on untruthfulness, but not merely the status

20

itself, may be inquired into on cross-examination under [Federal] Rule [of

Evidence Article] 608(b).”3

In opposition, the State argues that by taking the stand, Shaikh is subject to

cross-examination on any matter that may be relevant to his truthfulness, bias,

interest in the outcome of the trial, corruption, or other matter that tends to

discredit his testimony. With respect to asking anything relevant regarding

truthfulness, the State cites several evidence articles regarding the scope of cross-

examination and attacking and supporting witness credibility, including who may

attack credibility, the time for attacking and supporting credibility, and attacking

credibility intrinsically and extrinsically. See La.Code Evid. arts. 607(A)-(D);

611(B).

Neither the State nor Shaikh, however, has offered, nor have we found, a

Louisiana criminal case that is factually similar to the instant matter. A civil case

with a similar issue that provides guidance in this matter is Ramos v. USAgencies

Casualty Insurance Co., Inc., 13-685 (La.App. 5 Cir. 2/26/14), 136 So.3d 338,

wherein the trial court found that the plaintiff’s testimony regarding injuries

allegedly obtained in an accident were not credible and denied his claim. The

plaintiff, Mr. Ramos, appealed, alleging “that the trial court erred when it

permitted evidence of his immigration status, as this information was irrelevant
3
In the instant matter, we are dealing with the Louisiana Code of Evidence rather than
the Federal Rules of Evidence. The comments to La.Code Evid. art. 608(b), the statute dealing
with attacking or supporting credibility by character evidence, and which is similar to Federal
Rule of Evidence Article 608(b), provides:

(b) Paragraph B, like Federal Rule of Evidence 608(b), excludes extrinsic evidence of
specific instances of conduct offered to attack the credibility of a witness. Unlike the Federal
Rule, however, this paragraph follows Louisiana’s traditional approach by also prohibiting cross-
examination of a witness as to specific instances of his conduct (including vices or courses of
conduct).

21

and prejudicial.” Id. at 340. At trial, Mr. Ramos was questioned by the defense

when he stated that he was born in Honduras. Defense counsel then asked

Mr. Ramos about his immigration status wherein his counsel objected on the basis

of relevancy. In response, defense counsel stated: “‘I think it is relevant if

someone will break the law to personally benefit it’s an issue as it is in this case.’”

Id. On appeal, the fifth circuit noted that the complained of evidence was

irrelevant. It pointed out, however, that this case was tried before a judge rather

than a jury, and that “a trial judge, unlike a jury, is well versed in the rules of

evidence, and is, therefore, trained to give the appropriate weight to evidence and

to evaluate evidence without bias.” Id. at 341. As such, the fifth circuit found no

merit in Mr. Ramos’s assignment of error by stating the following:

In the present case, we find that Mr. Ramos failed to prove that
the trial judge did not act impartially because of Mr. Ramos’s
immigration status. During cross-examination of Mr. Ramos, there
was only one question asked regarding his immigration status, and the
issue of immigration was never raised again. In his appellate brief,
Mr. Ramos makes conclusory allegations that after this question, the
trial judge became biased as is evidenced by the trial court’s holding
Mr. Ramos in contempt of court based on his finding that Mr. Ramos
committed fraud and perjury. Mr. Ramos has failed to present any
factual basis for his claim other than an adverse judgment. From the
record, it is clear that the trial court’s ruling was not based on Mr.
Ramos’s immigration status, but rather on his belief that Mr. Ramos
was not credible due to the inconsistencies in his testimony.

Id.

Just as in Ramos, we find that the State’s questioning of Shaikh during

cross-examination regarding his immigration status was irrelevant. However, we

find that the trial court’s subsequent instruction to the jury enabled it to give the

appropriate weight to the evidence and evaluate the evidence without bias, just as

the trial court in Ramos, thus rendering the error harmless. Accordingly, Shaikh’s

assignment of error is without merit in this regard.

22

Shaikh also contends that the trial court erred by allowing the introduction of

Varela’s testimony regarding Shaikh’s incarceration over defense counsel’s

objection. As discussed above, Varela, who testified on behalf of Shaikh, stated

that he was in the lobby of the sheriff’s office on the day in question when A.G.

arrived and allegedly heard her say “that she had run away and that the person that

gave her a ride did not do anything to her, like touch her in any kind of

inappropriate way.” Shaikh takes issue with the State’s questioning of Varela

when it asked him how he knew Shaikh. Varela replied that he “met him while [he]

was incarcerated” at the Beauregard Parish Sheriff’s Office. The following

colloquy ensued between them with respect to Shaikh’s incarceration:

Q And when was he arrested?

A April 17, 2014.

Q Okay, April 17, 2014. About how long has he been in jail?

A Almost a year.

Following Varela’s testimony, defense counsel objected and thereafter

moved for a mistrial, stating: “The question that was asked that I would object to

is, ‘How long has he been in jail?’ The grammatical structure of that sentence

indicates that he’s still in jail. So, ‘How long has he been there?’” The trial court

indicated that it thought the State asked how long Varela, and not Shaikh, had been

incarcerated. Regardless, the trial court immediately instructed the jury to

disregard any indication that Shaikh “is or has been or at any time was or is

currently incarcerated.”

In opposition, the State argues that even if evidence regarding Shaikh’s

incarceration was admitted in error, the error was harmless. We agree since Varela

later explained on cross-examination that after the incident in the police station

23

lobby, which occurred on April 17, 2014, he was subsequently re-arrested in

August of that same year and spent time in jail where he met Shaikh. Varela

indicated that when Shaikh told him the reason for his incarceration, Varela

remembered the previous incident which occurred in the sheriff’s lobby on

April 17, 2014. Given Varela’s subsequent explanation, even if the trial court

erred in this case, we find that Shaikh has not shown that the error contributed to

the verdict since “[a]n error is harmless if it is unimportant in relation to the whole

and the verdict rendered was surely unattributable to the error.” State v. Koon, 96-

1208, p. 9 (La. 5/20/97), 704 So.2d 756, 763, cert. denied, 522 U.S. 1001, 118 S.Ct.

570 (1997). Accordingly, Shaikh’s assignment of error is without merit in this

regard.

VI. Sentencing

In his fifth assignment of error, Shaikh contends that the maximum

sentences imposed, although partially suspended, are excessive and in violation of

the Eighth Amendment to the United States Constitution and Article I, § 20 of the

Louisiana Constitution.

Shaikh’s assignment of error with respect to the sentence imposed for

indecent behavior of a juvenile is moot given our reversal and vacating of same.

On the other hand, simple kidnapping provides for a range of imprisonment of not

more than five years, with or without hard labor. La.R.S. 14:45(B). Shaikh

received the maximum sentence despite the trial court noting at the sentencing

hearing that Shaikh had no criminal history. The trial court further discussed the

range of punishment for Shaikh’s offense by stating:

Now, I’m not going to sentence Mr. Shaikh based upon what he
might have done or what he could have done. He was convicted of
these two charges based upon the evidence that was presented; and so

24

I’m going to sentence him based upon what he did do, not what he
might have done. And I do not believe that that merits the maximum
penalty of two maximum sentences run consecutive. It certainly
deserves punishment, lengthy prison sentences to make sure that it
doesn’t happen again and that Mr. Shaikh understands that this kind of
conduct is unacceptable.

When determining whether a sentence is excessive, the following standard is

utilized:

[Louisiana Constitution Article] 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. The
relevant question is whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been 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).

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.

[E]ven when a sentence falls within the statutory sentencing range, it
still may be unconstitutionally excessive, and in determining whether
a sentence shocks the sense of justice or makes no meaningful
contribution to acceptable penal goals, this court has suggested that
several factors may be considered:

[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

25

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.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d
782, 790-91.

State v. Sauls, 14-205, p. 4 (La.App. 3 Cir. 10/15/14), 149 So.3d 1005, 1008.

In this case, there was no evidence showing that Shaikh denied A.G. the

opportunity to leave. There was no evidence that Shaikh possessed a criminal

history during the fifteen years he resided in the United States. The five-year-

sentence is also out of line with other sentences imposed in factually similar cases.

Specifically, in State v. Ballard, 02-2431 (La.App. 4 Cir. 5/28/03), 848 So.2d 722,

the fourth circuit found that the trial court did not abuse its discretion in sentencing

the defendant to three years imprisonment. It stated that the defendant took a baby

from her home without the mother’s consent, took her to another location across

the state, and hid her from the police under a pile of clothing. The fourth circuit

noted that the trial court based its sentencing on the defendant’s prior misdemeanor

convictions. In State v. Gill, 441 So.2d 1204 (La.1983), the supreme court

affirmed the trial court’s judgment sentencing the defendant, who was found guilty

on two counts of attempted simple kidnapping, to three years imprisonment at hard

labor. The sentence was suspended on the condition that he serve one year in jail

and obtain psychiatric treatment. In State v. Thrasher, 480 So.2d 850 (La.App. 2

Cir. 1985), the defendant bought an eight-year-old girl a hamburger in exchange

for her promise to go with him to wash his truck. After she got into his truck and

26

instead of going to the car wash, the defendant took her into the woods, pulled

down her pants, unzipped his pants, and attempted to force her to perform oral sex

on him. The second circuit affirmed the trial court’s judgment sentencing the

defendant, who was convicted of simple kidnapping, to five years at hard labor.

Given the sentences imposed in the comparable cases, we find that the trial

court abused its discretion by imposing the maximum sentence with respect to

Shaikh’s simple kidnapping conviction. Shaikh’s sentence is, therefore, vacated

and remanded to the trial court for resentencing in a manner consistent with this

opinion. We further note that La.Code Crim.P. art. 881.4(A) allows this court to

give direction to the trial court concerning the proper sentence. Considering the

factors set out above, we suggest a sentence of imprisonment of two years for

Shaikh’s simple kidnapping conviction.

DECREE

Defendant, Fahim A. Shaikh’s conviction for simple kidnapping is affirmed,

although his simple kidnapping sentence is vacated and remanded for resentencing

consistent with this opinion. Defendant, Fahim A. Shaikh’s conviction and

sentence for indecent behavior with a juvenile is reversed, vacated, and an order of

acquittal is entered.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,
AND REMANDED.

27

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-687

STATE OF LOUISIANA

VERSUS

FAHIM A. SHAIKH

THIBODEAUX, Chief Judge, dissenting in part.

I agree with the majority that there was insufficient evidence to support a

conviction for indecent behavior with a juvenile. I disagree with its conclusion

that simple kidnapping was proven beyond a reasonable doubt.

Louisiana Revised Statutes 14:45(A)(2) requires an “unlawful purpose.”

The majority agrees that insufficient evidence exists to prove the crime of indecent

behavior with a juvenile. Where is the “unlawful purpose” required by the statute?

The majority hides it from us. There is a reason for that—it does not exist. The

State, at trial, relied exclusively on the offense of “indecent behavior with a

juvenile” as the “unlawful purpose” requirement to prove simple kidnapping. In an

attempt to circumvent this requirement, the majority creates a jurisprudential

fiction—the lack of a lawful purpose to supplant the statutory directive.

The majority rationalizes its conclusion by asserting that “picking up a

runaway minor child and keeping her secreted for five hours without her legal

guardian’s consent . . . does not equate to a lawful purpose.” However, the

majority then inconsistently posits that “there was no evidence showing that

defendant denied A.G. the opportunity to leave.” If so, how does that amount to

“keeping her [A.G.] secreted?” The majority somehow does not see this

inconsistency and does not explain how this reasoning undermines its own

rationale. Louisiana Revised Statutes 14:45(A)(2) focuses on an “unlawful

purpose;” it does not say anything about “does not equate to a lawful purpose,” as

the majority states.

The majority’s reliance on State v. Belcher, 34,616 (La.App 2 Cir. 6/20/01),

793 So.2d 262, is misplaced. In Belcher, when the victim refused to get into the

vehicle, the defendant attempted to entice her by offering her money if she got into

the vehicle. Here, A.G. voluntarily accompanied Defendant.

A.G. admitted that she ran away from home without her mother’s consent.

She testified that she voluntarily got into the car and told Defendant she was

spending the weekend at a friend’s house. He agreed to take her there. She gave

him directions, but on the way there she told him her friend would not be home

yet. Defendant argues that there was no inducing, enticing, or decoying A.G. away

without her parents’ consent. She had left her home on her own accord, after being

forbidden to do so. She was walking on the roadway pulling a suitcase behind her.

She readily agreed to get into the car after she told Defendant she was going to her

girlfriend’s house and he offered a ride. She agreed to go to Mr. Majeed’s

apartment after Defendant said she could stay there while she waited for her friend

to come home from school. The victim admitted that at no time did she ask to be

let out of the car. She had ample opportunity to leave the vehicle when they

stopped at Dairy Queen. Except for agreeing to buy her hair dye, there was no

testimony he made any promises to her. She agreed that she had the opportunity to

leave the apartment when Defendant left her alone to work upstairs and when he

left to run an errand. She agreed that she had the opportunity to seek help or run

away when they went to Wal-Mart. Thus, I have a difficult time attempting to

fathom where and how Defendant “secreted” A.G. It just does not exist. Even the

majority concedes this.

In sum, there was insufficient evidence to show that Defendant enticed,

induced, or tricked the victim into getting in the car and accompanying him to Mr.

2

Majeed’s apartment for an unlawful purpose. Therefore, there was insufficient

evidence to sustain the verdict of simple kidnapping in this case. While Defendant

exercised bad judgment and was not a model citizen, those less than admirable

traits do not equate to criminal conduct.

For the foregoing reasons, I respectfully dissent in part.

3