State v. Carmouche

145 So. 3d 1101, 14 La.App. 3 Cir. 215, 2014 WL 3734326, 2014 La. App. LEXIS 1875
CourtLouisiana Court of Appeal
DecidedJuly 30, 2014
DocketNo. 14-215
StatusPublished
Cited by2 cases

This text of 145 So. 3d 1101 (State v. Carmouche) 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. Carmouche, 145 So. 3d 1101, 14 La.App. 3 Cir. 215, 2014 WL 3734326, 2014 La. App. LEXIS 1875 (La. Ct. App. 2014).

Opinions

GREMILLION, Judge.

| defendant, Nathaniel Wayne Car-mouche, engaged in various sexual acts with his daughter, F.C., who was five years old at the time of the trial.1 The State filed a bill of indictment charging Defendant with aggravated rape, a violation of La.R.S. 14:42; sexual battery of a victim under thirteen years of age, a violation of La.R.S 14:43.1(A)(2) and (C)(2); and two counts of aggravated incest, violations of La.R.S. 14:78.1. A jury found Defendant guilty as charged on all counts.

The trial court sentenced Defendant to life in prison for aggravated rape, twenty-five years at hard labor for sexual battery of a victim under thirteen years of age, and twenty-five years at hard labor for each count of aggravated incest. The sentences are to run concurrently.

Defendant now seeks review by this court, assigning a single error:2 The trial court erred in permitting testimony regarding his other crimes or bad acts. For the following reasons, Defendant’s convictions are affirmed.

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, there is an error patent concerning Defendant’s sentence for aggravated incest.

Defendant was charged with and convicted of two counts of aggravated incest. Both the court minutes of sentencing and the sentencing transcript reveal that a single sentence of twenty-five years was imposed for aggravated incest. At sentencing, after imposing the sentences for aggravated rape and sexual battery, the court imposed the sentence for aggravated incest as follows:

pCount III and IV, aggravated incest. The sentence of the Court is you’re to [1103]*1103serve 25 years at hard labor with the Louisiana Department of Corrections. Those 25 years are without benefit of probation, parole, or suspension of sentence. So — and all of those will run concurrent, Ms. Clerk.

This court has previously held that a separate sentence must be imposed for each count:

Louisiana Code of Criminal Procedure Article 879 states, “[ijf a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” Where the trial court has imposed one sentence for multiple counts, this court has previously set aside the defendant’s sentence on those counts as indeterminate and remanded the case to the trial court for resentencing on each count. State v. Monceaux, 04-449 (La.App. 3 Cir. 10/20/04), 885 So.2d 670.

State v. Grace, 10-1222, p. 19 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, 825-26, writ denied, 11-961 (La.10/21/11), 73 So.3d 382.

Accordingly, Defendant’s twenty-five year sentence for aggravated incest must be vacated and the case remanded for resentencing on each of the two counts of aggravated incest.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant argues that the trial court erred in permitting testimony regarding his other crimes or bad acts. Generally, such evidence is barred by La.Code Evid. art. 404(B)(1), which states in pertinent part:

Except as provided in Article 412 [rape shield law], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

| sHowever, La.Code Crim.P. art 412.2(A) states:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Defendant argues that State witness Jessica Briley, an adult, should not have been allowed to testify regarding an incident in which she alleged Defendant drove next to her as she was walking, initiated a sexually-suggestive conversation, and masturbated in her view. On appeal, Defendant claims it was error for the trial court to allow this testimony, citing State v. Hatcher, 372 So.2d 1024 (La.1979), and State v. Pollard, 98-1376 (La.App. 4 Cir. 2/9/00), 760 So.2d 362.

Based on Hatcher and Pollard, Defendant first argues it is “questionable” whether there was clear and convincing evidence that this incident occurred. However, this court has ruled that clear and convincing evidence is not required; [1104]*1104instead, a preponderance of the evidence standard applies. State v. Cash, 03-858 (La.App. 3 Cir. 12/10/03), 861 So.2d 851, writ denied, 04-27 (La.4/30/04), 872 So.2d 472, and writ denied, 04-232 (La.5/7/04), 872 So.2d 1080. Further, a single witness may establish preponderance of the evidence. Motors Ins. Co. v. Marquette Cas. Co., 162 So.2d 47 (La.App. 1 Cir.), writ refused, 246 La. 79, 163 So.2d 357 (La.1964). Additionally, the testimony of a single witness may support a finding of guilt, even in the context of the higher reasonable-doubt standard. See State v. Bright, 98-398 (La.4/11/00), 776 So.2d 1134, writ granted, 03-2796 (La.1/30/04), 864 So.2d 638, reversed on other grounds, 02-2793, 03-2796 (La.5/25/04), 875 So.2d 37.

|4Further, a trial court’s decision regarding admissibility is subject to a deferential standard of analysis:

It is the responsibility of the court to exercise reasonable control over the presentation of the evidence. The trial court is left with wide discretion as to the admissibility of evidence under pertinent evidence rules. The decision of the trial court will not be overturned absent a clear abuse of discretion by the trial judge. Accord, State v. Prudholm, 446 So.2d 729 (La.1984); State v. Brown, 527 So.2d 12 (La.App. 3d Cir.1988).

State v. Clay, 576 So.2d 1099, 1101 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991).

At the pretrial hearing held on September 9, 2013, the following colloquy occurred:

MR. WILLSON [prosecutor]:
That’s correct, Judge. And that’s, one of the — and that’s contained in the confession that we introduced ...
THE COURT:
Yeah.
MR. WILLSON:
... where he admits to doing that with this victim. And it’s almost identical. The difference is you’ve got an older victim.

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Bluebook (online)
145 So. 3d 1101, 14 La.App. 3 Cir. 215, 2014 WL 3734326, 2014 La. App. LEXIS 1875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carmouche-lactapp-2014.