State of Louisiana v. Mickey J. Suire, Jr.

• Court: Louisiana Court of Appeal
• Decided: October 7, 2009
• Docket: KA-0009-0150
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-150

STATE OF LOUISIANA

VERSUS

MICKEY J. SUIRE, JR.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 13617-06 HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.

AFFIRMED.

John Foster DeRosier 14th JDC District Attorney Carla S. Sigler, Assistant District Attorney P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 Counsel for Appellee: State of Louisiana

Peggy J. Sullivan La. Appellate Project P. O. Box 2775 Monroe, LA 71207-2775 (318) 387-6124 Counsel for Defendant/Appellant: Mickey J. Suire, Jr. SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY

On September 27, 2006, the Defendant was charged by bill of information with

two counts of computer-aided solicitation of a minor, violations of La.R.S. 14:81.3.

The bill of information was amended on January 24, 2007, to reflect that count two

was nolle prosequi. The Defendant was found guilty on April 2, 2008, following a

two-day jury trial. On May 14, 2008, the Defendant was sentenced to three years at

hard labor, without benefit of probation, parole, or suspension of sentence. The

Defendant was also given credit for time served. A Motion to Reconsider Sentence

was filed on June 24, 2008, and summarily denied.

The Defendant first made contact with an undercover agent posing as a fifteen-

year-old female in a Yahoo internet chat room on July 29, 2006. The undercover

agent’s screen name was sundaysinger15. The Defendant chatted with

sundaysinger15 on several occasions over the next six days. On August 4, 2006, the

Defendant’s conversation became sexual in nature, and he exposed his penis to

sundaysinger15 via his webcam. The following day, August 5, 2006, the sexual

magnitude of their conversation escalated when sundaysinger15 agreed to “talk

nasty.” During the conversation, the Defendant instructed sundaysinger15 to touch

her breasts and vagina while he was touching himself, and then he masturbated in

front of his webcam for sundaysinger15 to observe his actions.

The Defendant is now before this court on appeal, asserting that the evidence

is not sufficient to support his conviction and that his sentence is excessive. We

affirm the Defendant’s conviction and sentence.

The Defendant alleges the following assignments of error: ASSIGNMENTS OF ERROR:

1. The evidence at trial was insufficient to convict Mr. Suire of the computer- aided solicitation of a minor.

2. The sentence ultimately imposed was unconstitutionally harsh and excessive given the facts and circumstances of this case.

LAW AND DISCUSSION OF THE MERITS:

Evidence

In his first assignment of error, the Defendant argues that the evidence is not

sufficient for his conviction. The Defendant concedes that he masturbated in front

of his webcam when he could have assumed the purported fifteen-year-old was

observing his action. The Defendant contends, however, that he did not engage in

this conduct in the “presence” of the purported fifteen-yea-old, and thus, the State did

not prove all of the elements of the offense. The Defendant asserts that the word

“presence” should be strictly construed to mean the physical presence of another

person. The Defendant misconstrues the meaning of the statute.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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 credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

2 State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Computer-aided solicitation of a minor is defined in La.R.S. 14:81.3 as

follows:

A. Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen. It shall also be a violation of the provisions of this Section when the contact or communication is initially made through the use of electronic textual communication and subsequent communication is made through the use of any other form of communication.

The legislature also defined the meaning of the terms “electronic textual

communication” and “sexual conduct” in La.R.S. 14:81.3(D) as follows:

(1)“Electronic textual communication” means a textual communication made through the use of a computer on-line service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or on-line messaging service.

(2) “Sexual conduct” means actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd exhibition of the genitals, or any lewd or lascivious act.

The State argues that the Defendant’s narrow interpretation of the statute would

render it ineffectual and maintains that the statute must be broadly construed to give

it effect. The State asserts that the statute envisions modern means of electronic

communication and that the term “presence” no longer means that a person must be

physically adjacent to another in this day and age of instant messaging, webcams and

3 chat rooms.

Next, the State contends that the Defendant tried to persuade a person he

thought to be fifteen years old to engage in sexual conduct. The Defendant also

encouraged her to purchase a webcam and to call his cell phone. Ultimately, the

Defendant masturbated in front of his intended victim via his webcam and

encouraged her to do the same. Accordingly, the State concludes that the Defendant’s

conduct was sufficient to convict the Defendant of the offense.

We are in agreement with the State’s position. The computer aided solicitation

of a minor statute contemplates two scenarios in which a person can be in violation

thereof. The first such scenario addresses the perpetrator’s conduct that intends to

persuade, induce, entice, or coerce the person to engage or participate in sexual

conduct. We find that there was sufficient evidence to convict the defendant on this

prong alone. The second scenario envisions the perpetrator’s communication with

the intent to engage or participate in sexual conduct in the presence of the young

victim. In both cases, it is the communication and intent, not the end-resulting

contact, that the statute is addressing. Because of the broad language of the

legislation, the Defendant’s conduct falls within the scope of both sections.

As was discussed above, “sexual conduct” is a broad term that the legislature

defined in La.R.S. 14:81.3(D)(2) as “actual or simulated sexual intercourse, deviant

sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd

exhibition of the genitals, or any lewd or lascivious act.” It is clear that the Defendant

attempted to induce or entice sundaysinger15 into engaging in masturbation. At one

point in their communications, the Defendant instructed sundaysinger15 to fondle her

breasts and genitalia while he did the same. Further comments by the Defendant,

4 suggesting that he would be gentle in taking sundaysinger15’s virginity, clearly fall

within the scope of this statute as incitations to sexual intercourse. Additionally,

lewd or lascivious behavior is defined in State v. Cloud, 06-877 (La.App. 3 Cir.

12/13/06), 946 So.2d 265, 272, writ denied, 07-86 (La. 9/21/07), 964 So.2d 331, as

an act “which tends to excite lust and to deprave the morals with respect to sexual

relations and which is obscene, indecent, and related to sexual impurity or

incontinence carried on in a wanton manner.” Along with the acts discussed above,

the Defendant asked sundaysinger15 if she would engage in “x-rated” or “nasty”

conversation. He discussed his past sexual history, the size of his penis, and

sundaysinger15’s experience with phone sex. We find that these are all topics of a

lewd or lascivious nature, as they tend to excite lust or deprave the morals.

Notwithstanding our finding that the Defendant violated the statute for the

above reasons, we will briefly address his argument as to “presence,” as it is used in

La.R.S. 14:81.3(A). After examining the legislative history of the statute and the

inherent nature of law policing computer-aided solicitation, it is evident that the

existence of “presence” in the regulation does not limit its enforcement to only those

acts committed in the actual physical presence or the immediate vicinity of the victim.

It is apparent that the legislation intended to establish a completed crime, as opposed

to an attempted one, upon the initiation, solicitation, or incitement by the perpetrator.

“Presence” has no bearing on the offending act, which is communicating through the

use of electronic textual communication with the intent to engage or participate in

sexual conduct. It merely describes the eventual hoped-for contact. It is not the

sexual conduct itself to which this statute applies. The Defendant intended to

eventually engage in sexual interlude with sundaysinger15, as he made it clear in a

5 variety of ways, including communicating his plan to be gentle when taking her

virginity.

For the reasons provided above, we find that there was sufficient evidence at

trial to convict the Defendant of computer-aided solicitation of a minor.

Sentencing

By his second assignment of error, the Defendant argues that the sentence

imposed was unconstitutionally harsh. This court has set forth the following standard

to be used in reviewing excessive sentence claims:

La.Const. art. 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 [p.5] (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 [p. 3] (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, 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.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[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

6 committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the 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.

The sentencing range for computer-aided solicitation of a minor is two to ten

years at hard labor, without benefit of parole, probation, or suspension of sentence,

when the victim is a person reasonably believed to be less than seventeen years old.

La.R.S. 14:81.3(B)(1)(c). As such, the Defendant’s three-year sentence was near the

minimum possible sentence. Additionally, the Defendant was spared a possible fine

of up to $10,000.00.

At sentencing, the Defendant asserted that if the trial court chose to impose a

sentence beyond the twenty-one months already served in the parish jail, then the

sentence imposed should be in the lower range for the offense. The Defendant

pointed out that he never left his house, he actively avoided meeting with the alleged

minor, and he was convicted by a ten-to-two verdict solely on an uncorroborated

conversation had over a computer.

Additionally, the Defendant argued that under La.R.S. 14:81.3 there are three

different grades of offenses: 1. offenses involving a “real live” victim and actual

physical contact by the offender, the worst grade of offenses, 2. offenses involving

a sting operation with an undercover agent and an attempt at physical contact by the

offender, an intermediate grade of offenses, and 3. offenses involving a sting

operation with an undercover agent wherein the offender does not attempt to meet

with the victim, the lowest grade of offenses.

7 He added that he had no history of violent offenses or any other felony

offenses. Also, the Defendant participated in self-improvement programs including

Healing & Eliminating Abusive Relationships Through Scripture (HEARTS) and

several bible studies.

The trial court observed that although the Defendant’s case was a good case for

probation, La.R.S. 14:81.3 did not allow for probation. The State questioned the

philosophy of the sentencing scheme of La.R.S. 14:81.3. It explained that had the

Defendant actually molested someone or committed indecent behavior, he would

have been eligible for probation and been required to attend sex offender counseling.

Instead, the Defendant must serve two years with no subsequent avenue for sex

offender counseling.

Only three cases have been reported involving this offense wherein the

sentence was challenged, State v. Cloward, 42,123 (La.App. 2 Cir. 6/20/07), 960

So.2d 356, State v. Howard, 43,895 (La.App. 2 Cir. 2/25/09), 4 So.3d 290, and State

v. Murray, 42,655, 42,656, 42,657, 42,658 (La.App. 2 Cir. 10/24/07), 968 So.2d 916,

writ denied, 08-468 (La. 11/14/08), 996 So.2d 1083. The maximum sentence was

imposed in each case. The facts of these cases, however, are not similar to the instant

case as they involved extensive communication with actual victims as well as actual

physical contact. Additionally, both cases bore evidence of emotional and

psychological harm to the victim. Morever, in Murray, a prior report of a similar

incident involving internet communication between the defendant and an eleven-year-

old girl was considered at sentencing.

In the instant case, it is clear from the record that a probated sentence, although

not allowed, would have been appropriate for the Defendant. The reason for the trial

8 court’s departure from the minimum two year sentence, however, is unclear.

Considering the Defendant and the facts of this case, however, we find that the

sentence is appropriate. The Defendant intentionally communicated with a person

whom he believed to be a fifteen-year-old girl, gained her confidence over several

days, encouraged her to participate in sexual activity, and ultimately exposed himself

while masturbating. The Defendant’s near-minimum sentence with no fine reflects

a lesser grade of the offense. Lastly, the trial court considered the mitigating factors,

including the Defendant’s limited education and the fact that he had no prior felony

convictions. Accordingly we find that this assigned error is without merit.

CONCLUSION:

For the reasons provided above, we affirm the conviction of the Defendant for

the computer-aided solicitation of a minor and the sentence imposed by the trial court.