State v. Barling

779 So. 2d 1035, 2001 WL 83615
CourtLouisiana Court of Appeal
DecidedJanuary 31, 2001
Docket00-1241 and 00-1591
StatusPublished
Cited by320 cases

This text of 779 So. 2d 1035 (State v. Barling) 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. Barling, 779 So. 2d 1035, 2001 WL 83615 (La. Ct. App. 2001).

Opinion

779 So.2d 1035 (2001)

STATE of Louisiana
v.
Robert Edward BARLING.

Nos. 00-1241 and 00-1591.

Court of Appeal of Louisiana, Third Circuit.

January 31, 2001.

*1036 Hon. Don M. Burkett, District Attorney, Many, LA, Counsel for Plaintiff/Appellee State of Louisiana.

Lawrence Charles Billeaud, Lafayette, LA, Counsel for Defendant/Appellant.

Court composed of Chief Judge DOUCET, Judge SULLIVAN, and Judge GREMILLION.

*1037 GREMILLION, Judge.

In this case, the defendant, Robert Barling, challenges his conviction and sentence for attempted sexual battery, indecent behavior with a juvenile, and attempted molestation of a juvenile.

FACTS AND PROCEDURE

Defendant was charged with one count of sexual battery, a violation of La.R.S. 14:43.1, in one bill of information and in another bill of information with four counts of molestation of a juvenile, violations of La.R.S. 14:81.2. Both bills of information alleged that the violations occurred between March 1, 1997 and December 25, 1998,[1] and involved Defendant's behavior with his granddaughter, N.B., when she was between ten and twelve years old. Defendant entered a plea of not guilty.

The State filed a notice of intent to introduce other crimes evidence against Defendant. The trial court subsequently ruled that the evidence of other acts of misconduct by Defendant would be admissible at trial for all purposes allowed by law. Defendant and the State agreed to try the sexual battery charge together with the molestation charges. A six-member jury found Defendant guilty of the lesser included offense of attempted sexual battery on the sexual battery charge and guilty of the lesser included offenses of indecent behavior with a juvenile and attempted molestation of a juvenile on two of the four molestation charges.

Thereafter, the trial court sentenced Defendant to the statutory maximum of five years imprisonment at hard labor for the attempted sexual battery conviction, seven years imprisonment at hard labor for the indecent behavior with a juvenile conviction, and five years imprisonment at hard labor for the attempted molestation of a juvenile conviction, with the sentences to run concurrently. Defendant now appeals his convictions and sentences claiming the trial court erred by allowing the State to present evidence of other crimes which exceeded its notice of intent to introduce such evidence, and by ordering him to serve an unconstitutionally excessive sentence. We consolidate Defendant's appeals of the sexual battery charge and the molestation charges because the cases were tried together in the trial court.

THE EVIDENCE

C.B., Defendant's granddaughter and a cousin of the victim, N.B., testified that she and her month-old baby spent at least one night at Defendant's home in Many, Louisiana, shortly before Christmas 1998. N.B. and several other family members also stayed there during this time. C.B. testified that N.B. found her in the dining room crying during this visit. She claimed she was crying because Defendant had rubbed her back earlier in the evening as she was putting her son to sleep. C.B. stated that she told N.B. why she was crying and N.B. responded to this news by crying also and stating that Defendant had been "messing with" her when she was ten years old.

C.B. testified that she believed N.B. because Defendant did the same thing to her when she was N.B.'s age. The State then introduced into evidence a certified copy of the minutes from a 1990 court proceeding in Natchitoches Parish, which showed that Defendant had been charged with molestation of a juvenile. The juvenile was C.B., who was ten years old at the time.[2] Defendant subsequently pled guilty to the amended charge of indecent behavior with a juvenile and received a three-year suspended sentence, probation, and community service work.

At the time of trial, N.B. was thirteen years old and lived in Natchitoches, Louisiana. *1038 She testified that she was at Defendant's house during Christmas 1998, when she "told [C.B.] that my grandfather was messing with me" by "feeling on me and telling me bad things."

N.B. testified that the first time Defendant did something to her, she was about eleven years old. At trial, N.B. recounted this incident by saying:

My grandmother and Stephen, my cousin ... went to the store. Just me and my grandfather was in the house. And I was in the living room and he came in there and he was telling me dirty things and trying to feel on me and everything and I told him if he didn't get away I was gonna tell my grandma and he got away. But he kept on coming back.
. . . .
... He used to tell me he wanted to screw me and that he wanted to feel on my body and everything.

N.B. claimed that at this time, Defendant touched her buttocks and arms over her clothes.

She testified that the next incident occurred when she was watching television at night in the living room of Defendant's house and her grandmother was in bed in her bedroom. According to N.B., Defendant came into the living room and told her that if she did not "screw him," he would kill her. She said that during that episode Defendant touched her breast underneath her clothes.

N.B. testified that another incident occurred at a different house where her grandparents had moved and probably during a holiday, as that was the only time she typically stayed with her grandparents. According to her:

I was in the living room. Again, in this house, you can't see the living room from where [my grandmother's] bed is. And I was in the chair where ... my legs were over the side of the chair but he was supposedly in bed.... [The Defendant] started feeling my butt telling me I had a smooth butt and everything. He was just telling me stuff like he wanted to screw me and if I didn't, if I told anybody that he was gonna kill me and everything.

On this occasion, N.B. told Defendant that she would tell her grandmother if he continued so he went back to his room.

The final incident N.B. testified about was the encounter she had with C.B. N.B. testified:

[C.B.] came crying to me and I asked her why she was crying and she wouldn't tell me. And finally, she told me that Grandpa was messing with her. When she was laying on the bed, Grandpa was rubbing her on the back and everything.... I said, "don't cry, because it happened to me, too." And she just started screaming. She told me she was gonna kill my grandpa for doing what he did to me.

N.B. also testified that she and C.B. were sleeping in the same room that evening and, when C.B. got up to go to the bathroom, Defendant came into the room and began rubbing her back; he also stared at her and C.B. for a long time.

Nelda Barling, Defendant's wife of forty-four years, testified that she owned a flea market in Many, Louisiana, where she and Defendant both worked. Nelda stated that, according to the records of her business which indicated when Defendant was at the flea market, he would never have been alone with N.B. at home. She testified that she never left Defendant and N.B. alone at any time and that N.B. always followed her around.

Regarding the incident alleged to have taken place around Christmas 1998, Nelda testified that she stays up late at night while Defendant goes to bed at 7:00 p.m. every night. Nelda stated that she was not aware of any confrontation between Defendant and N.B. or C.B. at this time. She testified that she caught N.B.

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Cite This Page — Counsel Stack

Bluebook (online)
779 So. 2d 1035, 2001 WL 83615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barling-lactapp-2001.