STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0761
VERSUS
DAVID YOUNG
Judgment Rendered: 11) 1 g
Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
Case No. 07- 15- 0122
The Honorable Judge Bonnie Jackson Presiding
Jeff Landry Counsel for Plaintiff/Appellee
Attorney General State of Louisiana Pamela S. Moran Stephen Martin Colin Clark Assistants Attorneys General Louisiana Department of Justice Criminal Appellate Section Baton Rouge, LA
Glen R. Petersen Counsel for Defendant/ Appellant Baton Rouge, LA David Young
Kelly P. Mitchell Herbert V. Larson New Orleans, LA BEFORE: HIGGINBOTHAM', PENZATO, AND LANIER, JJ.
Judge Toni Manning Higginbotham was not present at the oral argument of this case; however, she participated in deliberations via a recording of the hearing.
2 LANIER, J.
The defendant, David W. Young, was charged by bill of information with
computer- aided solicitation of a minor, a violation of La. R.S. 14: 81. 3 ( count 1);
and indecent behavior with a juvenile, a violation of La. R. S. 14: 81 ( count 2). He
pled not guilty on both counts and waived his right to a jury trial. Following a
bench trial, he was found guilty as charged on both counts. He moved for post -
verdict judgment of acquittal on the basis of double jeopardy. The motion was
granted as to count 1. On count 2, the defendant was sentenced to five years
imprisonment at hard labor. The sentence was suspended, and the defendant was
placed on probation for five years. The defendant and the State appealed. The
defendant challenged the sufficiency of the evidence on count 2. The State
challenged the granting of a post -verdict judgment of acquittal on count 1. This
court affirmed the conviction and sentence on count 2, reversed the ruling of
double jeopardy on count 1, reinstated the conviction on count 1, and remanded for
sentencing on count 1. State v. Young, 2017- 1101 ( La. App. 1st Cir. 12/ 21/ 17),
2017 WL 6524554, writ denied, 2018- 0126 ( La. 10/ 29/ 18), 254 So. 3d 701.
Upon remand, the defendant filed a motion in arrest of judgment and motion
for new trial. Following a hearing, the motions were denied. The defendant was
sentenced on count 1 to two years imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence and ordered to register and provide
notification as a sex offender. He moved for reconsideration of sentence, but the
motion was denied. For the following reasons, we affirm the sentence imposed on
count one.
FACTS
The facts concerning this matter are set forth in the prior appeal decision.
See Young, 2017 WL 6524554, at * 2- 3.
3 NEW TRIAL
In assignment of error number 1, the defendant contends the trial court erred in
ruling it had no authority to grant a new trial on count 1. The defendant argues,
under La. Code Crim. P. art. 851( B)( 1), the trial court may grant a new trial when the
verdict is contrary to the law and the evidence, and under La. Code Crim. P. art.
851( 5), the trial court may grant a new trial if it is of the opinion that the ends of
justice would be served by the granting of a new trial, although the defendant may
not be entitled to a new trial as a matter of strict legal right. The defendant argues
that as the weight of the evidence is " legally distinguishable" from the sufficiency of
the evidence, this court' s previous decision finding the evidence sufficient to support
the defendant' s conviction under count 1 did not preclude the trial court from
considering his new trial motion premised on the weight of the evidence and the
interests ofjustice.
Upon remand, the defendant filed a motion in arrest of judgment and motion
for new trial. The defendant urged the trial court to " once again, [ acknowledge] . .
the evidentiary and legal shortcomings of the State' s case." The defendant asked
the trial court to " analyze [ the defendant' s] convictions, for the first time, under the
newly -required [ Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306
1932)] test." z In his motion for new trial, the defendant asked the court to " make
2 The Blockburger test is as follows:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger, 284 U. S. at 304, 52 S. Ct. at 182.
In State v. Frank, 2016- 1160 ( La. 10/ 18/ 17), 234 So. 3d 27, 33- 34, the Louisiana Supreme Court declared, "[ ajccordingly, we take this opportunity to make clear that the protections against double jeopardy mandated by the federal constitution, as restated in this state' s constitution, fall within the analytical framework set forth in Blockburger and Louisiana courts need only apply that framework in analyzing questions of double jeopardy."
El a ` factual' determination as to the weight of the evidence for [ the defendant' s]
conviction on Count One."
The State opposed the motions. The State argued the defendant had already
raised double jeopardy, and thus, could not raise it again. See La. Code Crim. P.
art. 594 (" Double jeopardy may be raised at any time, but only once[.]"). Further,
the State noted this court had held counts 1 and 2 were not the same offense under
Blockburger, and thus, the convictions did not violate double jeopardy principles.
Young, 2017 WL 6524554, at * 8.
In regard to the motion for new trial, the State argued on count 2 that the
motion was filed after sentencing, and thus, was untimely. See La. Code Crim. P.
art. 853. In regard to count 1, the State noted that in reversing the trial court' s
finding that there was insufficient evidence to support a finding of computer-aided
solicitation of a minor, this court held:
During the conversations that took place on the dates set forth in the bill of particulars, the defendant' s intent to persuade [ the victim] to participate in sexual conduct is clear. After explaining to the victim] that he was a " pervert" and " all about sex," the defendant told [ the victim] that she could decide what they did when they met because he did not want to " pressure her." The defendant continually asked [ the victim] what she would like to do and reminded her how much he loved " butt sex." When the defendant was in Louisiana, he repeatedly contacted [ the victim]. Based on these facts, the defendant was clearly repeatedly attempting to persuade [ the victim] to agree to meet with him and engage in sexual activity upon meeting.
Young, 2017 WL 6524554, at * 7.
The trial court observed that it had vacated the defendant' s conviction for
computer- aided solicitation of a minor and sentenced him to probation on the
remaining count, but on appeal, " the First Circuit Court of Appeal substituted its
judgment for [ the trial court' s judgment] and reversed [ the trial court' s] ruling on
factual grounds and remanded this case back ... for sentencing." The trial court
noted the defendant had appealed the ruling of the First Circuit Court of Appeal to
5 the Louisiana Supreme Court, but writs were denied. The trial court stated: " This
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 0761
VERSUS
DAVID YOUNG
Judgment Rendered: 11) 1 g
Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
Case No. 07- 15- 0122
The Honorable Judge Bonnie Jackson Presiding
Jeff Landry Counsel for Plaintiff/Appellee
Attorney General State of Louisiana Pamela S. Moran Stephen Martin Colin Clark Assistants Attorneys General Louisiana Department of Justice Criminal Appellate Section Baton Rouge, LA
Glen R. Petersen Counsel for Defendant/ Appellant Baton Rouge, LA David Young
Kelly P. Mitchell Herbert V. Larson New Orleans, LA BEFORE: HIGGINBOTHAM', PENZATO, AND LANIER, JJ.
Judge Toni Manning Higginbotham was not present at the oral argument of this case; however, she participated in deliberations via a recording of the hearing.
2 LANIER, J.
The defendant, David W. Young, was charged by bill of information with
computer- aided solicitation of a minor, a violation of La. R.S. 14: 81. 3 ( count 1);
and indecent behavior with a juvenile, a violation of La. R. S. 14: 81 ( count 2). He
pled not guilty on both counts and waived his right to a jury trial. Following a
bench trial, he was found guilty as charged on both counts. He moved for post -
verdict judgment of acquittal on the basis of double jeopardy. The motion was
granted as to count 1. On count 2, the defendant was sentenced to five years
imprisonment at hard labor. The sentence was suspended, and the defendant was
placed on probation for five years. The defendant and the State appealed. The
defendant challenged the sufficiency of the evidence on count 2. The State
challenged the granting of a post -verdict judgment of acquittal on count 1. This
court affirmed the conviction and sentence on count 2, reversed the ruling of
double jeopardy on count 1, reinstated the conviction on count 1, and remanded for
sentencing on count 1. State v. Young, 2017- 1101 ( La. App. 1st Cir. 12/ 21/ 17),
2017 WL 6524554, writ denied, 2018- 0126 ( La. 10/ 29/ 18), 254 So. 3d 701.
Upon remand, the defendant filed a motion in arrest of judgment and motion
for new trial. Following a hearing, the motions were denied. The defendant was
sentenced on count 1 to two years imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence and ordered to register and provide
notification as a sex offender. He moved for reconsideration of sentence, but the
motion was denied. For the following reasons, we affirm the sentence imposed on
count one.
FACTS
The facts concerning this matter are set forth in the prior appeal decision.
See Young, 2017 WL 6524554, at * 2- 3.
3 NEW TRIAL
In assignment of error number 1, the defendant contends the trial court erred in
ruling it had no authority to grant a new trial on count 1. The defendant argues,
under La. Code Crim. P. art. 851( B)( 1), the trial court may grant a new trial when the
verdict is contrary to the law and the evidence, and under La. Code Crim. P. art.
851( 5), the trial court may grant a new trial if it is of the opinion that the ends of
justice would be served by the granting of a new trial, although the defendant may
not be entitled to a new trial as a matter of strict legal right. The defendant argues
that as the weight of the evidence is " legally distinguishable" from the sufficiency of
the evidence, this court' s previous decision finding the evidence sufficient to support
the defendant' s conviction under count 1 did not preclude the trial court from
considering his new trial motion premised on the weight of the evidence and the
interests ofjustice.
Upon remand, the defendant filed a motion in arrest of judgment and motion
for new trial. The defendant urged the trial court to " once again, [ acknowledge] . .
the evidentiary and legal shortcomings of the State' s case." The defendant asked
the trial court to " analyze [ the defendant' s] convictions, for the first time, under the
newly -required [ Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306
1932)] test." z In his motion for new trial, the defendant asked the court to " make
2 The Blockburger test is as follows:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger, 284 U. S. at 304, 52 S. Ct. at 182.
In State v. Frank, 2016- 1160 ( La. 10/ 18/ 17), 234 So. 3d 27, 33- 34, the Louisiana Supreme Court declared, "[ ajccordingly, we take this opportunity to make clear that the protections against double jeopardy mandated by the federal constitution, as restated in this state' s constitution, fall within the analytical framework set forth in Blockburger and Louisiana courts need only apply that framework in analyzing questions of double jeopardy."
El a ` factual' determination as to the weight of the evidence for [ the defendant' s]
conviction on Count One."
The State opposed the motions. The State argued the defendant had already
raised double jeopardy, and thus, could not raise it again. See La. Code Crim. P.
art. 594 (" Double jeopardy may be raised at any time, but only once[.]"). Further,
the State noted this court had held counts 1 and 2 were not the same offense under
Blockburger, and thus, the convictions did not violate double jeopardy principles.
Young, 2017 WL 6524554, at * 8.
In regard to the motion for new trial, the State argued on count 2 that the
motion was filed after sentencing, and thus, was untimely. See La. Code Crim. P.
art. 853. In regard to count 1, the State noted that in reversing the trial court' s
finding that there was insufficient evidence to support a finding of computer-aided
solicitation of a minor, this court held:
During the conversations that took place on the dates set forth in the bill of particulars, the defendant' s intent to persuade [ the victim] to participate in sexual conduct is clear. After explaining to the victim] that he was a " pervert" and " all about sex," the defendant told [ the victim] that she could decide what they did when they met because he did not want to " pressure her." The defendant continually asked [ the victim] what she would like to do and reminded her how much he loved " butt sex." When the defendant was in Louisiana, he repeatedly contacted [ the victim]. Based on these facts, the defendant was clearly repeatedly attempting to persuade [ the victim] to agree to meet with him and engage in sexual activity upon meeting.
Young, 2017 WL 6524554, at * 7.
The trial court observed that it had vacated the defendant' s conviction for
computer- aided solicitation of a minor and sentenced him to probation on the
remaining count, but on appeal, " the First Circuit Court of Appeal substituted its
judgment for [ the trial court' s judgment] and reversed [ the trial court' s] ruling on
factual grounds and remanded this case back ... for sentencing." The trial court
noted the defendant had appealed the ruling of the First Circuit Court of Appeal to
5 the Louisiana Supreme Court, but writs were denied. The trial court stated: " This
court sees no procedural mechanism by which this court, the trial court, can do
anything other than what the First Circuit remanded this court to do. It didn' t remand
this case to re- examine it under the Blockburger test. It remanded it for the sole
purpose of imposing sentence on the reinstated count." The trial court noted, as far
as it was aware, no motion had been made to the Louisiana Supreme Court to
reconsider its denial of writs in the case.
The defendant argued the First Circuit had only upheld the solicitation count
by taking one element from one conversation, another element from another
conversation, and yet another element from yet another conversation, and " you can' t
do that. These are separate, discrete conversations. And either you have the offense
in a conversation, or you don' t." The trial court found it had no authority to review
the rulings of this court, and pointed out that the Louisiana Supreme Court had that
authority, but had chosen not to exercise it. Accordingly, the trial court denied the
motion in arrest ofjudgment and motion for new trial.
We find there was no error in the denial of the motion for new trial. As noted
by the trial court, following the reinstatement of the conviction on count 1 by this
court and the denial of writs by the Louisiana Supreme Court, this case was
remanded solely for the purpose of sentencing on count 1. The effect of granting a
new trial is to set aside the verdict or judgment and to permit retrial of the case with
as little prejudice to either party as if it had never been tried. La. Code Crim. P. art.
857. The trial court lacked authority upon remand for sentencing to grant a new trial.
See State v. Brown, 451 So. 2d 1074, 1078 ( La. 1984) ( noting, that even in the
situation of a motion for new trial based upon new and material evidence under La.
Code Crim. P. art. 851( 3), "[ o] nce the case is appealed.... the trial court is without
jurisdiction to entertain a motion for new trial unless the case is remanded to that court for that purpose."); see also State v. Guerin, 2007- 1429 ( La. App. lst Cir.
12/ 21/ 07), 2007 WL 448073 8, at * 1.
This assignment of error is without merit.
CONSTITUTIONAL CHALLENGES
In assignment of error number 2, the defendant contends the trial court erred
in ordering him to comply with the sex offender registration and notification
requirements in La. R.S. 15: 540 et seq., because La. R.S. 15: 542( F)( 1) infringes
upon the inherent authority of the judiciary, in violation of La. Const. art. Il, §§1
and 2. In assignment of error number 3, the defendant contends the. trial court
erred in ordering him to comply with the sex offender registration and notification
requirements in La. R.S. 15: 540 et seq., because they are unconstitutional on their
face, in violation of La. Const. art. I, § 20. In assignment of error number 4, the
defendant contends the trial court erred in ordering him to comply with the sex
offender registration and notification requirements, specifically La. R.S.
15: 542( C)( 1)( m), because they infringe upon his right to anonymous speech, in
violation of United States Const. amend. I and XIV and La. Const. art. I, § 7.
Following the imposition of sentence on remand, defense counsel asked that
he be permitted to read " a list of objections for future purposes." Defense counsel
stated:
As to his sentence in general, [ the defendant] objects pursuant to the 8th and 1411 amendments of the United States Constitution and pursuant to Article 1, section 20, and Article 2, section 2, of the Louisiana Constitution.
The defendant] also objects to the mandatory registration requirements of his sentences pursuant to Article 1, section 8 and the 1St, 5th, 6th, 8th, and 14th Amendments, and pursuant to Article 1, sections 21 7, 16, 19, 20 and Article 2, section 2, of the Louisiana Constitution.
7 Following the hearing, the defendant filed a motion for reconsideration of
sentence, urging the constitutional challenges he now urges on appeal. The motion
was denied without a hearing. See La. Code Crim. P. art. 881. 1( D).
Louisiana Revised Statutes 15: 544. 1 provides, in pertinent part: "[ a] ny
petition for injunctive relief or for declaratory judgment regarding the application
or interpretation of the registration and notification requirements of [ Title 15,
Chapter 3- B, Registration of Sex Offenders, Sexually Violent Predators, and Child
Predators], ... shall be filed through ordinary civil proceedings in the district court
for the parish where the state capitol is situated."
The registration and notification law is a civil regulatory scheme that is
intended to alert the public and law enforcement for purposes of public safety; it is
not part of a sex offender' s punishment. State v. Cook, 2016- 1518 ( La. 5/ 3/ 17),
226 So. 3d 387, 392 ( per curiam). The defendant failed to comply with La. R.S.
15: 544. 1 in urging his challenges to the registration and notification law.
Accordingly, the trial court correctly denied the motion to reconsider sentence.
CONVICTION AND SENTENCE ON COUNT 1 AFFIRMED.