State of Louisiana v. Ashaki Okung Kelly

195 So. 3d 449, 2016 La. LEXIS 1589
CourtSupreme Court of Louisiana
DecidedJune 29, 2016
Docket2015-K -0484
StatusPublished
Cited by31 cases

This text of 195 So. 3d 449 (State of Louisiana v. Ashaki Okung Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Louisiana v. Ashaki Okung Kelly, 195 So. 3d 449, 2016 La. LEXIS 1589 (La. 2016).

Opinions

JOHNSON, Chief Justice.

I,Following a bench trial, defendant, As-haki Kelly, was convicted of molestation of a juvenile and sentenced to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. We granted defendant’s writ application to determine whether the evidence presented at trial was sufficient to support his conviction, and whether the court of appeal erroneously vacated defendant’s sentence as illegally lenient on errors patent review. Por the following reasons, we affirm that portion of the court of appeal’s ’ ruling which’ upheld defendant’s conviction. However, we find the court of appeal failed to conduct a proper errors patent reviéw and erred in vacating defendant’s sentence.

FACTS AND PROCEDURAL HISTORY

On March 14, 2013, defendant was charged by a Calcasieu Parish grand jury by bill of indictment with three counts of aggravated rape of D.V., date of birth May 29, 2000, a juvenile under the age of thirteen, in violation of La. R.S. 14:42, and two counts of oral sexual battery of A.V., in violation of La. R.S. 14:43.3. D.V. and A.V. are sisters who were living with their mother and defendant, the mother’s flan-eé.1 Defendant waived his right to a jury trial and his case proceeded to a bench trial onjgMay 21, 2013.

At trial, the state presented testimony from the investigating detective, videos of interviews of D.V. and A.V. conducted by the Children’s Advocacy Center (“CAC”), testimony from the minors’ mother and aunt, and testimony from both D.V. and A.V. The. defense presented testimony from a registered nurse with the Sexual Assault Nurse Examiner (“SANE”) program at Lake Charles Memorial Hospital, who conducted the physical examinations of A.V. and D.V.

Defendant was acquitted of all charges pertaining to A.V. Regarding D.V., the district court found defendant not guilty of two counts of aggravated rape and guilty of the lesser included offense of molestation of a juvenile with regard to the third aggravated rape count. At a sentencing hearing on October 2, 2013, the court sentenced defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence, pursuant to La, R.S. 14:81.2(B)(2) relative to molestation of a victim between the ages of thirteen and [451]*451seventeen. The state did not object on the record to the sentence, nor did the state appeal or seek review of the sentence under La.C.Cr. P. art. 881.2.2

Defendant appealed his conviction and the court of appeal affirmed, finding a sufficient basis in the record to support the conviction. However, on errors patent review, the court found defendant’s sentence to be illegally lenient. State v. Kelly, 14-522 (La.App. 3 Cir. 12/10/14), 153 So.3d 1257. The court noted where, as in this case, the victim is under thirteen, the mandatory sentence set forth by the legislature |¡4n La. R.S. 14:81.2(D)(1) for molestation of a juvenile is twenty-five years to ninety-nine years. Thus, the court of appeal vacated defendant’s sentence and remanded the case to the trial court for resentencing pursuant to La. R.S. 14:81.2(D)(1). Id. at 1272. Judge Amy dissented in part, finding the alleged sentencing error identified by the majority was not discoverable in a proper errors patent review. Id. at 1273.

Defendant filed a writ application in this court arguing there was insufficient evidence to support his conviction, and the court of appeal erred in finding his' sentence' illegally lenient during its errors patent review. We granted defendant’s writ application. State v. Kelly, 15-0484 (La.2/19/16), 186 So.3d 1177.

DISCUSSION

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a conviction, this court has recognized that an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979). State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, 928. Under this standard, an appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Tate, 851 So.2d at 928. In applying-this standard, a reviewing court is not permitted to second guess the rational credibility determinations of the fact finder at trial, nor is a reviewing court required to consider the rationality of the thought, processes employed by a particular fact finder in reaching a verdict. State v. Marshall, 04-3139 (La.11/29/06), 943 So.2d 362, 367. It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Stowe, 635 So.2d 168, 171 (La.1994).

The crime of molestation of a juvenile is defined in La. R.S. 14:81.2(A)(1):

Molestation of a juvenile is the commission by anyone- over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where .there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of - force, violence, duress, 'menace,- psychological .intimidation, [452]*452threat 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.

The testimony at trial sufficiently established that' the incident occurred while D.V.’s mother was at work and D.V. was under defendant’s supervision and control. D.V. testified at trial that defendant, who was engaged to D.V.’s mother and living in the same house, touched her “behind” with “his front stuff.” This testimony was similar to.what D.V. told the SANE nurse. During that examination, D.V. stated that defendant “tried to put his private stuff in my booty.” However, these accounts conflicted with D.V.’s videotaped interview at the CAC, during which D.V. claimed that defendant anally and vaginally raped her. In its ruling, the district, court first noted that it believed if D.V. had been raped there would have been some physical signs of penetration when she was examined by the SANE nurse two days after, the reported incident. The court further questioned the language D.V. used during her recorded interview. It found that phrases such as “his private part” and “his wrong spot” were not phrases children normally used, which led the court to believe someone had spoken to D.V. before the interview. The district court concluded that due to D.V.’s inconsistent accounts in her CAC interview and trial testimony, and the lack of corroborating physical evidence from the SANE examination, there was insufficient evidence to convict defendant of aggravated rape. However, the court found D.V. did not completely fabricate the allegations. The court noted D.V. reported an incident to her mother two days before the SANE examination, as verified Lby D.V.’s mother. The court found the evidence established beyond a reasonable doubt that defendant molested D.V. on November 24, 2012.

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Bluebook (online)
195 So. 3d 449, 2016 La. LEXIS 1589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-ashaki-okung-kelly-la-2016.