State v. A.B.M.

52 So. 3d 1021, 2010 WL 4963288
CourtLouisiana Court of Appeal
DecidedDecember 8, 2010
DocketNo. 10-648
StatusPublished
Cited by8 cases

This text of 52 So. 3d 1021 (State v. A.B.M.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. A.B.M., 52 So. 3d 1021, 2010 WL 4963288 (La. Ct. App. 2010).

Opinion

GENOVESE, Judge.

hln this criminal case, Defendant, after having been convicted by a jury of molestation of a juvenile and incest, appeals, alleging insufficiency of the evidence to support his molestation conviction and excessive sentences. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 27, 2008, A.B.M, Jr.,1 was charged by bill of information with molestation of a juvenile, a violation of La.R.S. 14:81.2(A) & (C), and with incest, a violation of La.R.S. 14:78(A) & (D)(1). On the State’s motion, the bill was amended on December 8, 2009, changing only the date of the offense.

The State alleged that Defendant had molested his eleven-year-old daughter, K.M. The State further alleged that Defendant also had sexual intercourse with his daughter, C.C., in November of 2007, resulting in a pregnancy and the birth of a child on August 18, 2008.

Following a jury trial on December 9, 2009, Defendant was found guilty as charged. On December 18, 2009, Defendant was sentenced to serve fifteen years at hard labor for each conviction, and the sentences were ordered to run consecutively. Defendant did not file a motion to reconsider sentence.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

| .ASSIGNMENTS OF ERROR

Defendant alleges that “[tjhere is insufficient evidence to prove the guilt of Defendant for the offense of molestation of a juvenile beyond a reasonable doubtf,]” and that “[t]he sentences imposed are excessive for this offender and these offenses.”

Assignment of Error No. 1

In this assignment of error, Defendant argues there is insufficient evidence to prove his guilt for molestation of a juvenile beyond a reasonable doubt. 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.

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

[1024]*1024Molestation of a juvenile is defined in La.R.S. 14:81.2(A), which states:

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, threat 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.

IsDefendant complains that the only evidence of the alleged offense was the victim’s testimony. Defendant maintains that the victim’s allegation is not credible because she did not tell her mother until five days later and because her testimony is refuted by a lack of corroborating physical evidence.

In the alternative, should this court conclude that Defendant did commit the offense as claimed by the victim, Defendant asserts that the State failed to prove every element of the offense, specifically that he used force, duress, intimidation, or threats of bodily harm to facilitate the act, or that he used influence by virtue of a position of control or supervision of the juvenile victim. Defendant maintains there was no evidence presented by the State to show he was in a position of control or supervision of the victim.

Lewd or Lascivious Act

As noted in State v. Rollins, 581 So.2d 379, 382 (La.App. 4 Cir.1991), “A lewd or lascivious act is one 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. State v. Holstead, 354 So.2d 493 (La.1977); State v. Prejean, 216 La. 1072, 45 So.2d 627 (1950).” See also State v. Cloud, 06-877 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, writ denied, 07-86 (La.9/21/07), 964 So.2d 331. This court in State v. Shirah, 97-384 (La.App. 3 Cir. 10/8/97), 702 So.2d 825, found that the acts alleged by the children, the victims therein, including the defendant’s touching of their genitals, forcing them to touch his penis, masturbating in front of and attempting vaginal intercourse with one of the children, clearly constituted lewd or lascivious acts committed with the intention of arousing or gratifying the sexual desires of either person. See also State v. Hillman, 613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181 (La.1993).

In the instant case, the victim, K.M., who was fourteen years old at the time of trial, testified that during the summer of 2008, she was living with her mother and stepfather. During that time, her stepfather became ill, so she went to stay at Defendant’s house. During her stay, Defendant asked his other daughter, who was living with him at the time, the victim’s older half sister, C.C., to get on top of him and show the victim “how it’s done.” Defendant was not wearing clothes at the time. According to the victim, C.C. did not comply because she was nine months pregnant.

The following night, the victim was in her room when she heard Defendant holler for her. The victim went to Defendant’s room to see what he wanted. At that time, Defendant began removing the victim’s clothes, and she told him to quit. Defendant, however, did not stop and removed some of her clothing. He then touched her breasts and stomach with his mouth. Although the victim continued to tell him to stop, Defendant did not stop. [1025]*1025Defendant told the victim to touch his penis, but the victim refused. Defendant then proceeded to get on top of the victim and tried to insert his penis into her vagina. At some point, the victim managed to get away and ran to her room where she latched the door shut.

The victim did not tell anyone about the incident for one or two days.

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Cite This Page — Counsel Stack

Bluebook (online)
52 So. 3d 1021, 2010 WL 4963288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abm-lactapp-2010.