State v. Holmes

130 So. 3d 999, 2014 WL 130936, 2014 La. App. LEXIS 61
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2014
DocketNo. 48,535-KA
StatusPublished
Cited by5 cases

This text of 130 So. 3d 999 (State v. Holmes) 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. Holmes, 130 So. 3d 999, 2014 WL 130936, 2014 La. App. LEXIS 61 (La. Ct. App. 2014).

Opinion

MOORE, J.

hThe defendant, Paul Edward Holmes, pled guilty to two counts of video voyeurism involving juveniles in exchange for the state’s dismissal of the remaining 15 counts of video voyeurism charged in the bill of information and four counts of pornography involving juveniles.1 There was no agreement as to sentencing. Following a sentencing hearing, the court sentenced the defendant to five years at hard labor without benefit of probation, parole or suspension of sentence on each conviction, sentences to run consecutively, for a total of 10 years at hard labor. The defendant now appeals arguing that his sentences are excessive. For the following reasons, we affirm the convictions and sentences.

FACTS

The defendant served as a deacon in First Baptist Church of Haughton. From January 21 to 23, 2012, he hosted a weekend church function or retreat at his home in Haughton, Louisiana. The retreat was for young female church members. Seven girls attended, all under the age of 17. Prior to their arrival, the defendant had installed hidden video cameras in the bathroom which the girls would be using during the weekend.

During their stay, one of the girls discovered the camera and removed it. She alerted her parents. Several images of the girls had been recorded in various stages of undress and nudity. The authorities were notified.

A search warrant was issued for the residence, revealing pornographic material involving juveniles and adults. These images had been transferred to the defendant’s personal computer, which had internet access.

| gThe defendant was ultimately charged with a total of 21 counts. As stated above, he pled guilty to two counts of video voyeurism in exchange for dismissal of the remaining charges. A presentence investigation was ordered and a sentencing hearing was held wherein impact statements were presented to the court on behalf of the defendant and the victims. A report by Dr. Vigen stated that the defendant had been in treatment following discovery of the offenses. Dr. Vigen testified that the defendant would likely not re-offend, and that he suffered from severe depression.

Thereafter, the defendant was sentenced to two consecutive terms of five years at hard labor. This appeal followed.

DISCUSSION

Excessive Sentence

Defense counsel argues that the sentences totaling 10 years is excessive for this offender. The defendant was 55 years old at the time of the offenses and had no criminal history. He was active in his church, gainfully employed and a full-time husband and father. Defense counsel asserts that the sentences place undue hardship on the defendant’s wife and family, who have forgiven him and have chosen to [1001]*1001support him through this traumatic time. Finally, he argues that the defendant’s likelihood of re-offending is slight and his chances for rehabilitation are great.

The defendant also submitted two pro se briefs raising several issues related to the prosecution and defense of his case which, he contends, present valid reasons why his sentence is constitutionally excessive. He contends that he was unfairly prejudiced by the prosecutor’s decision to levy multiple charges of video voyeurism against him when all charges involved a |3single incident. He contends that every time an individual victim walked by a camera, even when it involved the same victim, he was charged with an additional offense of video voyeurism. He submits that there should have been only one charge with multiple victims, or at most, one charge per victim. Instead, he contends, the prosecution charged him with as many counts as possible to prejudice him and lead the trial court to conclude that he received a favorable plea bargain. He further notes that he pled guilty to two counts of video voyeurism that involved the same incident and the same victim and no nudity. He believes he should have been convicted of only one charge rather than two.

In a similar vein, the defendant alleges that the bill of information charged him with multiple counts of pornography involving juveniles in violation of La. R.S. 14:81.1, arising solely out of nudity depicted in some of the videos. None of these videos, however, meet the criteria to constitute “pornography” as defined by the statute, which requires a “sexual performance” involving, more or less, actual or simulated sexual intercourse. He contends that he was prejudiced by these false charges.

The defendant contends that he has never had possession of or viewed the videos because the cameras were confiscated by one of the victims. He contends that the crime of video voyeurism was not completed as a result, and he should have been convicted of attempted video voyeurism, which would limit his sentencing exposure to half of the maximum for the offense, or five years.

The defendant argues that he was suffering from severe depression and stress such that he was unable to make rational decisions. He contends |4that his willingness to seek treatment demonstrates that he is unlikely to recommit this crime or other crimes. He contends that the lengthy sentence imposed will hamper his ability to obtain rehabilitation.

The defendant charges other anomalies: he contends that his prosecution was politically motivated because one of the victims is a niece of one of the judges in the district; he believes that the political nature of the case prejudiced him. He says that his attorney misrepresented to him that he would receive a total sentence of two to four years if he pled guilty, even though he was told his maximum exposure under the plea deal was 20 years. He contends his attorney did not provide any defense for him and failed to follow any avenues of defense suggested by him.

Comparing his own sentence to considerably shorter sentences imposed in several cases involving rape, incest and molestation of juveniles, the defendant argues that his offense involved no physical harm, and is considered a less serious offense under the sex offender registration scheme. He argues that the trial court failed to adequately consider Dr. Vigen’s report and the impact of the sentence on his family. He submits that a sentence of not more than four years is appropriate in his case.

The statutory sentencing range for the crime of video voyeurism of any child under the age of 17 is a fine not more than [1002]*1002$10,000.00 and imprisonment at hard labor for not less than two years or more than ten years-without benefit of parole, probation or suspension of sentence. La. R.S. 14:283 B(4).

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took [.¡cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41, 855 (La.App. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos,

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Cite This Page — Counsel Stack

Bluebook (online)
130 So. 3d 999, 2014 WL 130936, 2014 La. App. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holmes-lactapp-2014.