State Of Louisiana v. Charles Michael Folse, II

Opinion

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APPEAL

TWENTY- SECOND JUD* DISTRICT COURT,§DIVISIONE 2: AND FOR THE PARISH e2 2? ? « © f»< T A:

STATE O, LOUISIANA

DOCKET NUMBER 3182- F- 2019

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Gwendolyn K. Brown Attorneys for D ,,,- 4

Louisiana f k- Project Charles 2 ,- a J. II Baton Rouge, .,\?.°+

1,larren L. Montgomery t20» f:< 6 *,- -

District Attorney zz o . 0.

Matthew Caplan

Covington, Louisiana

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with three counts of aggravated/ first degree rape of a victim under the age of thirteEl

years ( counts one, three, and five), violations of L. R. S. 14: 42( A)( 4); five counts of

molestation of a juvenile under the age of thirteen years when the incidents of

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I Regarding counts one, three, and five, the Louisiana Legislature renamed the offense of aggravated rape to "first degree rape" without any material alteration of the substance of the crime. See La. R. S. 14: 42( E); 2015 La. Acts Nos. 184, § 1& 256, § 1. As the offenses herein occurred both before and after the amendment, we shall reference those offenses as aggravated/ first degree rape.

2 As to count ten, we note the minutes incorrectly state the charge to which the defendant pled not guilty and with which he was convicted. However, the transcript reflects the correct charge. When there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). This issue will be discussed below in the patent error section.

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a period of more than one year), to forty years imprisonment without benefit of parol(I

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probation, or suspension of sentence, with each sentence to be served consecutively.

defendant's convictions. We affirm the sentences on counts one, two, three, four, and

five. We affirm the sentence on count ten and remand with instructions for correction of

minutes. We amend the sentences on counts six, seven, eight, and nine, and affirm as

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by the defendant since she was seven years old. M. F., S. I., and L. W. ( M. I. and

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Following the girls' interviews at the Children' s Advocacy Center ( CAC}, officers

learned sex toys were used on the children. While executing a search warrant at tj

defendant's residence, officers confiscated several items matching the girls' descriptions.

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ultimately charged with the instant offenses.

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overruled his objections during the States closing argument, which he contencE

I Although the minutes indicate the sentences on counts six, seven, eight, and nine were imposed at hard labor, the sentencing transcript reveals the trial court did not order, as statutorily required, those sentences to be served at hard labor. When there is a discrepancy between the minutes and the transcript, the transcript prevails. Lynch, 441 So. 2d at 734. This issue will be discussed below in the patent error section.

4 Because these charges involve sex offenses, we reference the victims and their immediate family members by their initials. See La. R. S. 46: 1844( W)

improperly vouched for the victims' credibility. In his second assignment of error, he

contends the trial court erroneously denied his motion for mistrial after the State

improperly referenced the defendant"s failure to testify in its closing argument.

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377 ( 2007). The trial judge has broad discretion in controlling the scope of closing

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argument unless thoroughly convinced the remarks influenced the jury and contributed

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During its closing remarks, the State discussed the evidence presented at trial;

namely, the victims' testimony and CAC interviews. The State recounted a statement in

both M. F.' s and M. J.' s interviews, in which they each stated the defendant told them they Pllliii liiliil;% I gilp

following comments:

Are they to be believed? Are they credible? Are they consistent? [ M. F.], M. 3.], [ 3. 3.], [ S. 3.], [ L. W.], y'all are believed.

times it was their duty to assess the credibility of the witnesses. The trial court overruled

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specified that closing statements are argument by counsel, not evidence. The court

It is reversible error for the State to express its belief in the guilt of the accused,

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prejudice or otherwise improper. See Deckellman, 2011 WL 4436529 at * 10.

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without merit.

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failure to testify within the hearing of the jury, during trial or in argument. Where the

reference is indirect, the reviewing court must inquire into the remark's intended effect

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Defense counsel] is right. The expert can't tell you where that DNA is coming from. How it got on [ the objects]. They can tell you who it belongs to. They can' t tell you how it got on

Who told you where that DNA came from? [ M. F.] She took the stand.

Who told, who took this stand? Who sal;

She was in those [ CAC] videos. in the chair, looked you dead in the eye, and said that DNA came from any other place, under any other circumstance, other than the defendant taking those [ objects] and sticking them in his . . . daughter's vagina and anus? Nobody. There's nothing to refute what [ M. F.] told you.

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have rebutted the State' s evidence, a reference to the testimony as uncontroverted

focuses the jury's attention on the defendant' s failure to testify and mandates a mistrial.

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In Johnson, three State witnesses testified the defendant confessed to them. Id.

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constituted an indirect reference to the defendant's failure to testify at trial. See State

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La. 1992). Therein, the victim testified the defendants raped her with their penises;

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were an indirect reference to the defendant's failure to testify. See State v. Larnark,

La ark, the victim testified she was raped by the defendant, and they were the only

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are similar to those at issue in Johnson, Moser, and Lamark. In the instant case, the

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on the sex toys. M. F. testified at trial and in her CAC statement that she and the

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this defense.

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State' s reference to the unrebutted nature of their case does not mean inquiring into the 11111111101111 licilillilli

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sex toys, the defendant is the only person who could have taken the stand ariM 111011111F

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defendant's biological paternal lineage was present, and the defendant could not I excluded from that group. However, she could not affirmatively include or exclude the

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5 While both L.W. and M. F. testified they were abused together while in the same room, neither of them testified such incidents included the use of sex toys.

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Although Article 770 is couched in mandatory terms, it is a rule for trial

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in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U. S. 275, 1111

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Herein, we find the trial court's error in denying the motion for mistrial was

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were made), the State discussed the DNA evidence and noted it had not seen arM

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I Ell Ill ; III WIN031f= ITMORMITM, i I 1 1 11111311 Jill il 1111 1! I Ill Il I Ill 111 1 1 111, 111 IF 1 1 Il I IIIIIIIIIIIIIIIIIIIIIIIIIA defendant' s guilt at trial. Considering the victims' testimony and CAC interviews, which

detailed the chronic sexual abuse the victims endured, we conclude the jury's verdicts

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After a careful review of the record, we have found three patent errors.

was subject to imprisonment at hard labor only. 5ge La. R. S. 14: 42( D)( 1) ari

14: 43. 1( 0)( 2). Thus, the sentences imposed on these counts are illegally lenient. An

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1174. Accordingly, we correct the sentences on counts six, seven, eight, and nine by

sentencing minutes reflect this incorrect offense. However, the sentencing transcript

reflects the correct offense of molestation of a juvenile when the incidents of molestation

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6 We note the minute entry detailing the jury's verdicts lists the correct offense.

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minute entry and the transcript, the transcript prevails, Lynch, 441 So. 2d at 734.

instruct the trial court to amend the minute entries to accurately reflect the defendant's 11 ; 111 IIIIIIII; Ijjjj I A

Finally, after the trial court imposed the sentences herein, it failed to advise the

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and is not grounds to reverse the sentence or remand for resentencing. Further, thM I 111 1111111111 ; I 11111 I I II1p;

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with instructions to amend the minute entries. We amend the sentences on counts six,

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