State v. Badeaux

798 So. 2d 234, 2001 WL 1121408
CourtLouisiana Court of Appeal
DecidedSeptember 25, 2001
Docket01-KA-406
StatusPublished
Cited by50 cases

This text of 798 So. 2d 234 (State v. Badeaux) 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. Badeaux, 798 So. 2d 234, 2001 WL 1121408 (La. Ct. App. 2001).

Opinion

798 So.2d 234 (2001)

STATE of Louisiana
v.
Charles A. BADEAUX.

No. 01-KA-406.

Court of Appeal of Louisiana, Fifth Circuit.

September 25, 2001.

*236 Paul D. Connick, Jr., District Attorney, Churita H. Hansell, Terry M. Boudreaux, Frank A. Brindisi, Assistant District Attorneys, Gretna, LA, Attorneys for Plaintiff/Appellee.

Frank Sloan, Covington, LA, Attorney for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and THOMAS F. DALEY.

THOMAS F. DALEY, Judge.

PROCEDURAL HISTORY

On December 28, 1994, the defendant, Charles Badeaux, was charged by Bill of Information in violation of LSA-R.S. 14:43.1, sexual battery, and 14:81, indecent behavior with a juvenile upon H.G. On May 1, 2000, a six-person jury unanimously found the defendant guilty as charged on both counts. On July 20, 2000, after reviewing the pre-sentence investigation report, the trial judge sentenced the defendant to ten years at hard labor for count one, sexual battery, and seven years at hard labor for count two, indecent behavior with a juvenile. Both of these sentences are the maximum allowed by law. The trial court imposed the sentences to run consecutively. Immediately thereafter, the defendant orally moved for an appeal, which the trial judge granted. The defendant then filed a written pro se Motion for Appeal on July 27, 2000. In this appeal, the defendant's sole Assignment of Error is that his sentences are excessive.

The defendant specifically alleges in his Assignment of Error that the sentence was excessive because he was a first time felony offender with psychiatric problems that must be treated with anti-psychotic medications. The defendant also argues that while the judge gave oral reasons for the sentence, he did not specify why the sentences were imposed consecutively.

FACTS

At trial, the victim, H.G., was fourteen years old. In October of 1994, the defendant, was forty-nine years old and H.G., eight years old. H.G. testified that in October of 1994, the defendant lived in her neighborhood, and that he frequently handed out candy to the neighborhood children. H.G. testified that on the afternoon of October 28, 1994, she went to the defendant's house for some candy. After she knocked on the defendant's door, he invited her in and shut the door behind her. The defendant left the room, and when he returned, he was wearing "ripped" underwear. According to H.G., the defendant's penis was visible through the tear in the underwear.

H.G. said that she and the defendant then went into the living room and "played a game of chest"... "on [the defendant's] chest." H.G. explained that she did not recall exactly what the game entailed, except that it involved the defendant lying on the living room floor wearing the torn underwear, but no shirt. H.G. related that the defendant showed her a number of pictures that day, including State's Exhibit 5 and 6, which were albums containing *237 photographs of the defendant in clothing, as well as photographs of the defendant with his genitals exposed.[1] She said the defendant also showed her State's Exhibit 7, which were photocopied pictures of nude and partially nude men and women. Further, she said the defendant showed her some magazines that had the word "play" on them.[2]

At some point during the afternoon, H.G. said that she and the defendant went into the bedroom where the defendant placed his hand inside the front of her pants and "put his finger in her vagina." Also, H.G. identified State's Exhibit 11 as a cassette tape that was recorded at the defendant's house that afternoon in which she sang, "I love you, I love you" at the defendant's request. This tape was played for the jury.

H.G. said that she did not recall how long she stayed at the defendant's house that day, but that at some point she left and went home. She recounted these events to her cousin, and the police were called.

Omalee Gordon of the Jefferson Parish Children's Advocacy Center interviewed H.G. in November of 1994. This interview was recorded on videotape, which was played for the jury during H.G.'s testimony. Ms. Gordon testified for the State and identified the video tape as State Exhibit 1. Deputy Susan McCartney of the Jefferson Parish Sheriff's Office also testified on behalf of the State. Her testimony consisted of identifying items seized from the defendant's residence on October 29, 1994 pursuant to a search warrant. These items included the magazines (State's Exhibit 10), the photocopied photographs of nude people (State's Exhibit 7), and the photo albums (State's Exhibits 5 and 6).

The defendant testified at trial. He claimed that some of H.G.'s family members had burglarized his house in 1989 and the instant charges were fabricated to retaliate against the defendant because he reported the burglary. He denied that he had ever improperly touched H.G. He also said that he had never shown her any photographs of nude people. The defendant acknowledged H.G. came to his house, but said that she did not record the cassette tape on his request, but on her own volition for a school friend. The defendant further stated that he was doing some research in 1994 for Masters and Johnson and that he took the photographs of himself in the photo albums for this research project.

ASSIGNMENT OF ERROR NUMBER ONE

The sentences imposed are excessive.

In this assignment, defendant contends that his maximum sentences are constitutionally excessive. The defendant further contends that the trial court improperly ordered the sentences to be served consecutively in violation of LSA-C.Cr.P. art. 883 because the trial court did not justify the need for imposing consecutive sentences. The State responds that the sentences are supported by the record.

It is noted that the defendant did not specifically object to the sentences as excessive. Rather, after sentencing, defense counsel stated that the defendant *238 "wishes to appeal the sentence that was just imposed." No written Motion for Reconsideration was filed. Nevertheless, this Court has reviewed a defendant's sentence for constitutional excessiveness even in the absence of a Motion to Reconsider Sentence. See, State v. Williams, 98-1146 (La.App. 5th Cir.6/1/99), 738 So.2d 640, 643-654, writ denied, XXXX-XXXX (La.1/7/00), 752 So.2d 176, and the cases cited therein.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. "In reviewing a sentence for excessiveness, this court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice." State v. Davis, 449 So.2d 452 (La.1984); State v. Jackson, 597 So.2d 1188, 1189 (La.App. 5th Cir.1992).

The defendant received the maximum prison terms allowed by law on both convictions. LSA-R.S. 14:43.1 defines the offense of sexual battery and provides for its punishment in pertinent part as follows:

A. Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender;

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Cite This Page — Counsel Stack

Bluebook (online)
798 So. 2d 234, 2001 WL 1121408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-badeaux-lactapp-2001.