State v. Benoit

69 So. 3d 492, 2010 La.App. 1 Cir. 1766, 2011 La. App. LEXIS 780, 2011 WL 2674891
CourtLouisiana Court of Appeal
DecidedMay 6, 2011
DocketNo. 2010 KA 1766
StatusPublished
Cited by1 cases

This text of 69 So. 3d 492 (State v. Benoit) 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. Benoit, 69 So. 3d 492, 2010 La.App. 1 Cir. 1766, 2011 La. App. LEXIS 780, 2011 WL 2674891 (La. Ct. App. 2011).

Opinion

McClendon, j.

|2The defendant, Kevin Paul Benoit, was charged by bill of information with one count of indecent behavior with a juvenile, [494]*494H.G.,1 a violation of La. R.S. 14:81, and pled not guilty. Following a jury trial, he was found guilty as charged. Thereafter, the State filed a habitual offender bill of information against him, alleging he should be sentenced under LSA-R.S. 15:537 B.2 The defense moved to quash the habitual offender bill of information, and the motion was granted. The defendant was sentenced to twenty years at hard labor, with the first five years without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, contending the trial court erred in allowing the introduction into evidence of State Exhibit # 1, which failed to comply with the authentication requirements of 28 U.S.C. § 1738 and LSA-C.E. art. 902(4). The State also appeals, contending the trial court erred in granting the motion to quash the habitual offender bill. For the following reasons, we find no merit in either assignment of error and affirm the conviction and sentence.

FACTS

At trial on January 20, 2010, the victim, H.G., who was born on September 26, 2002, testified that she lived with her father in Prairieville, but that she visited her mother’s house sometimes. She indicated that on a visit to her mother’s house two years earlier, the defendant touched the top of her “cookie” or “private” when she was in the bedroom, while her mother was using the bathroom.

The State also played a recording of a September 24, 2007 interview with the Terrebonne Children’s Advocacy Center. In the interview, the victim stated “Kevin” lived with her mother and had touched her “private” with his hand, under her panties, when she was visiting her mother. The victim indicated the touching occurred when she was lying between “Kevin” and her mother on the Rbed. The victim identified the vagina on a sketch of a girl as the “cookie” or “private.”

The victim’s mother, B.O., who was divorced from the victim’s father, also testified at trial. During August of 2007, B.O. was involved in a relationship with the defendant, a convicted sex offender from Mississippi. The defendant told B.O. the charges against him in Mississippi were false. The victim lived with her father, but visited B.O. As part of the custody agreement, B.O. had been ordered not to allow the defendant to be at home when the victim visited. B.O. conceded, however, that sometimes the defendant was present in her home when the victim visited.

In August of 2007, the victim told B.O. that the defendant had touched her “on her cookie” while B.O. was in the shower. B.O. argued with the defendant and then went with the victim to the home of B.O.’s mother. Thereafter, the victim went back to live with her father, and B.O. went back to live with the defendant. B.O. did not report the victim’s accusation against the defendant to the police.

Approximately two days later, on August 17, 2007, B.O. married the defendant. According to B.O., on the day of the wedding, the defendant told her he had touched the victim “over her panties,” but he was sorry and it would never happen again. Also according to B.O., the defen[495]*495dant told her he was on parole in Mississippi because he had “fingered” a girl while he masturbated and had tried to have sex with her. Also according to B.O., after the defendant was arrested, he told her to tell his lawyer that the victim’s accusation against him “wasn’t true” and that he had never been around her. B.O. claimed the defendant told her if she did not say what he told her to say, she would never see her children again and would lose her home.

The defendant also testified at trial. He denied sexually abusing the victim. He denied being around B.O. while her children were present and specifically denied being present when the victim was visiting B.O. in August orJjSeptember of 2007. He also denied confessing to B.O. that he had abused the victim or anyone else.

The defendant conceded he pled guilty in connection with predicate # 1, but claimed he only did so because his attorney told him he would “probably receive probation.”

APPLICABILITY OF 28 U.S.C. § 1738

In his sole assignment of error, the defendant argues the trial court erred in allowing the introduction into evidence of State Exhibit # 1, which failed to comply with the authentication requirements of 28 U.S.C. § 1738 and LSA-C.E. art. 902(4).

Section 1738 of Title 28 of the United States Code provides, in pertinent part:

The Acts of the legislature of any State, ... of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, ... thereto.
The records and judicial proceedings of any court of any such State, ... or copies thereof, shall be proved or admitted in other courts within the United States ... by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State, ... from which they are taken.

Louisiana Code of Evidence art. 902, provides, “Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: ... (4) Presumptions under Acts of Congress and the Louisiana Legislature. Any signature, document, or other matter declared by Act of Congress or by Act of the Louisiana Legislature to be presumptively or prima facie genuine or authentic.”

During trial, the State offered into evidence State Exhibit # 1, which included a copy of a January 22, 1997 grand jury indictment, under State of Mississippi, County of Rankin, Cause # 6076. The indictment charged that on September 27, 1996, Kevin Paul Benoit committed one count of gratification of |slust and one count of sexual battery involving K.B., a child over the age of twelve years, but under the age of eighteen years, while Kevin Paul Benoit was in a position of trust, being the child’s stepparent. State’s Exhibit # 1 also included a copy of a July 7, 1997 judgment of conviction in the same case, indicating that following advice of his Miranda3 rights, Kevin Paul Benoit pled guilty to sexual battery in the case. Additionally, State’s Exhibit # 1 further included a copy of a July 18, 1997 order of sentence in the same case, indicating Kevin Paul Benoit was sentenced for sexual battery to fifteen years in the custody of the Mississippi Department of Corrections, [496]*496with execution of the last seven years stayed and suspended on condition of Kevin Paul Benoit successfully completing three years of supervised probation.

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69 So. 3d 492, 2010 La.App. 1 Cir. 1766, 2011 La. App. LEXIS 780, 2011 WL 2674891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-benoit-lactapp-2011.