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She recalled that Defendant had moved in with her mother when she was about five years old. She stated it would happen either in her bed or on the couch in the living room. L., DOB 12/17/93, to whom he is related, in violation of R. .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. 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. Eventually, the girls refused to visit their grandparent all together and the matter came out. 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. He appealed the sentences asserting that the sentence of sixty-one years was excessive and constituted cruel and unusual punishment. testified that he would touch her on the breast or vagina, over or under her clothes, or both. In brief, Defendant argues that “[a]ll in all, the inconsistent, contradictory, and unsupported testimony of S. 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. He put his arms around her and one hand rested briefly on her breast area. 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. 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.” La. He threatened them not to tell or something bad would happen. 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. 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”). 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. 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. Finally, after her mother and Defendant divorced, she never said anything because he was gone, and she no longer had to deal with him. So, this was left for the jury's evaluation in reaching their ultimate verdicts in this case. 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. Going back to the statute, the statute doesn't say this applies to people to whom you are related. The requirements for the contents of a bill of indictment or information are provided in La. 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. Because the defendant received the same sentences previously imposed, we cannot say that the trial court did not consider the same mitigating factors. 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.
Further the trial court erred when it denied Defendant's Motion For Arrest of Judgment which was based, in part, on this issue.6. 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.
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. FACTSBetween 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.
Finally, in Louisiana, double jeopardy fails to protect an offender who violates numerous statutory provisions on a crime spree. 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 separate and distinct act, whether it was sexual battery, indecent behavior with a juvenile, or molestation of a juvenile. 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. 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. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. And obviously, the only thing I can say is in exchange for your own sexual gratification. Apparently, it has affected her in a psychological fashion as well. The sentences were ordered to be served consecutively for a total of ten years imprisonment. This court noted the leniency of the sentences, particularly since they were ordered to be served concurrently, and did not find them 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. She specifically stated that he never threatened her and that when she decided it was enough, he stopped. After the parties separated in April of 2003, the victim lived with her mother for approximately four months then moved in with defendant.
10/25/12), 103 So.3d 1129, 1137, writ denied, 12–2533 (La.4/26/13), 112 So.3d 838. 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. However, as noted by Defendant, count one of the indictment alleged the offense occurred in 2011. 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. And this pattern of sexual abuse, obviously, violated this young lady's trust in you and took away her childhood. 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. He received fifteen years imprisonment on one count of aggravated incest. The first victim was his nine-year-old daughter and was a one-time occurrence wherein he fondled her breast and vagina. 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 penetrate her with his penis. The defendant appealed the maximum sentence of twenty years for aggravated incest and then years for molestation of a juvenile as excessive. She did not testify that he made her watch pornographic movies or watch him masturbate. 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. According to the victim, her mother and defendant began dating when she was eight years old and married when she was eleven.
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. In the current case, at the time the offenses were committed, aggravated incest was defined, in pertinent part, as follows: A.
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. Lack of knowledge of the child's age shall not be a defense. 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. 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. 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. Lori Wileman, the victim's mother, testified that she was married to Defendant from 1999, until they divorced in 2010. 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. 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. 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. 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. 464, which states: The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. After reviewing the record, we find that the defendant's sentences are not excessive. Furthermore, the total sentence of 61 years at hard labor is not excessive. The trial court properly provided particular justification and clearly stated the factors it considered in imposing this sentence. 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. 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. .2(A)At trial, the following testimonies were relevant to the charges alleged in counts two through six. She testified that at first she did not say anything because she was afraid of where she and her mother would go. 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. 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. It would not have been problematic for the jury to pick out five incidents of sexual abuse from the victim's testimony. Louisiana Code of Criminal Procedural Article 859(1) provides that the court shall arrest the judgment when the indictment is substantially defective because an essential averment is omitted. He was “related” to the victim by virtue of his marriage to her biological mother. The trial court stated that it imposed consecutive sentences because “there have been three individual victims that have been abused on different occasions[.]”․The trial court proceeded to sentence the defendant to the same terms of incarceration previously imposed and ordered the sentences to run consecutively. 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. The concurrent 16–year sentences are not out of proportion to the severity of the crime and do not shock the sense of justice. The trial court emphasized how the sexual acts performed by Defendant escalated after K. Based upon this reasoning, the trial court ordered that Counts Two and Three run concurrently with each other and consecutively with Count One. 1.3(C)(4)(e) mandated that he was not eligible for diminution of sentence. Defendant has perfected a timely appeal, wherein he alleges:1. 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. Defendant, Walter Urena, was charged with six counts of aggravated incest, violations of La. The motion was denied without a hearing but with written reasons. Second, the State must show that the offender knew that the victim was related to him within the specified degrees. 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. 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. There is no merit to Defendant's assertion that the evidence was insufficient to establish five distinct acts of aggravated incest. 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. CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO AND THREE VACATED; AND REMANDED FOR RESENTENCING. The victims' initials are used to protect their identities.Tags: Adult Dating, affair dating, sex dating