State v. Hotard

864 So. 2d 748, 2003 WL 23025543
CourtLouisiana Court of Appeal
DecidedDecember 30, 2003
Docket03-KA-435
StatusPublished
Cited by7 cases

This text of 864 So. 2d 748 (State v. Hotard) 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. Hotard, 864 So. 2d 748, 2003 WL 23025543 (La. Ct. App. 2003).

Opinion

864 So.2d 748 (2003)

STATE of Louisiana
v.
Douglas HOTARD.

No. 03-KA-435.

Court of Appeal of Louisiana, Fifth Circuit.

December 30, 2003.

*750 Jane L. Beebe, Gretna, LA, for Appellant.

John M. Crum, District Attorney, Rodney A. Brignac, Assistant District Attorney, LaPlace, LA, for Appellee.

Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.

*751 JAMES L. CANNELLA, Judge.

The Defendant, Douglas Hotard, appeals from his convictions of two counts of indecent behavior with a juvenile and his concurrent sentences of eight and one-half years in prison. For the reasons which follow, we affirm and remand.

STATEMENT OF THE CASE

The Defendant was charged by a bill of information on June 14, 2001 with two counts of indecent behavior with a juvenile, a violation of La. R.S. 14:81. He pled not guilty and filed several pretrial motions. The Defendant proceeded to trial on June 4, 2002 before a six person jury. After a two day trial, the Defendant was found guilty as charged on both counts.

Thereafter, on November 14, 2002, the State filed a habitual offender bill of information alleging that the Defendant was a forth felony offender, based on a 1984 conviction for possession with intent to distribute Quaaludes and a 1989 conviction for second degree battery. The Defendant filed a written response claiming the predicate pleas were based on defective Boykins. A habitual offender hearing was held on January 15, 2003, at which time the State advised that it was proceeding only on the Defendant's prior conviction for second degree battery. After the hearing, the trial court found the Defendant to be a second felony offender as to each count and sentenced him, under La. R.S. 15:529.1, to eight and one-half years imprisonment at hard labor on each count, ordering that the sentences run concurrently.[1]

FACTS

Sometime between April 1 and 15, 2001, H.L.,[2] age 13, accompanied T.H., the Defendant's son, on a visit with the Defendant, who had recently been released from jail. At approximately 8:30 to 9:00 p.m., the Defendant and his girlfriend, Elaine Shaw (Shaw), picked up H.L. and T.H. from T.H.'s grandmother's house in Westwego. The Defendant stopped at several convenience stores and bought beer, wine coolers, cigars and cigarettes. The Defendant also stopped at a friend's house and picked up wrappers to roll marijuana before driving to Shaw's house in Laplace.

Once they arrived at Shaw's house, Shaw went to sleep and the Defendant and the two boys ate dinner and then smoked joints outside on the porch. Thereafter, T.H. went to sleep and H.L. stayed up with the Defendant. Approximately twenty minutes later, the Defendant told H.L. that some girls were coming over to "suck [H.L.'s] penis." According to H.L., the Defendant pretended to use the phone and acted like he called a girl. The Defendant told H.L. the girl lived five to ten minutes away and instructed H.L. to go upstairs to the loft and wait.

While H.L. was waiting in the loft, the Defendant came in and told him the girl did not want to be seen. The Defendant took H.L.'s shirt off, tied it around H.L.'s eyes, and told him the girl was coming. H.L. testified that the Defendant pulled H.L.'s shorts down and began performing oral sex on him. After about five to ten seconds, H.L. put his hand down and felt a bald spot and a little bit of hair. He removed his blindfold and saw the Defendant kneeling in front of him. H.L. told the Defendant that he did not feel good and was going to bed.

*752 H.L. went to the room where T.H. was sleeping and lay down. Approximately ten minutes later, the Defendant came into the room and tried to lay down with H.L. The Defendant told H.L. that the girl was coming again. H.L. stated that he did not want to do it anymore and asked for something to drink in order to get the Defendant out of the room. The next morning, Shaw drove H.L. and T.H. to school in Marrero.

Approximately one month later, on May 12, 2001, R.B., age 14, was going to spend the weekend with T.H. At approximately 9:00 p.m., the Defendant and T.H. picked up R.B. from his home in Marrero. On the way to the Defendant's residence at the Millet Motel in Laplace, the Defendant stopped at two convenience stores and bought beer. He then stopped and bought marijuana which the three of them smoked in the car on the way to Laplace. They stopped to eat at the Huddle House and then went to the motel where they watched television and smoked another joint.

There was only one bed in the motel room. The three lay on the bed, with R.B. lying between the Defendant and T.H., and went to sleep. Ten minutes later, R.B. felt the Defendant's hand rub up against him. R.B. initially thought it was an accident but it happened again. According to R.B., the Defendant unzipped R.B.'s pants and started massaging his penis through his boxers. R.B. excused himself to go to the bathroom. When R.B. returned from the bathroom, he told the Defendant he felt sick and then lay on the floor and went to sleep. R.B. stated he slept with his waist under the bed so the Defendant would not touch him again.

Neither H.L. nor R.B. reported the incidents immediately. R.B. testified that one week after the incident, he and H.L. were talking at which time the two discussed what the Defendant had done to each of them. H.L. and R.B. told T.H. about the incidents and T.H. reported it to his stepfather and mother who then reported it to the police.

Detective Terrell St. Martin investigated the incidents involving H.L. and R.B. He arrested the Defendant pursuant to an arrest warrant on May 21, 2001. Upon his arrest, the Defendant was advised of his Miranda[3] rights. The Defendant waived his rights and gave a recorded statement, which was played for the jury. In his recorded statement, the Defendant vacillated between admitting he touched R.B. "a couple of times" to stating he could not remember.[4] He never admitted performing oral sex on H.L. Following the convictions and sentences, the Defendant appealed and assigned three errors.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant contends that the trial court erred, warranting a reversal of his conviction, by denying his challenges for cause as to three jurors, Shirley Packer (Packer), Malinda Rein (Rein) and Tammy Mitchell[5] (Mitchell), which caused him to use his peremptory challenges on two of the jurors and to accept the third, Mitchell, because he had exhausted his peremptory challenges. He claims that prospective jurors Packer and Mitchell should have been excused for cause because they *753 both felt strongly that the Defendant should testify. The Defendant contends that both prospective jurors indicated they would weigh the fact that the Defendant did not testify in considering the evidence. The Defendant also challenged prospective juror Rein on the basis that she knew an assistant district attorney. The Defendant argues that, despite Rein's claims to the contrary, she would have been biased in her deliberations because of the relationship.

Prejudice is presumed when a challenge for cause is erroneously denied by the trial court and the defendant has exhausted his peremptory challenges. State v. Anthony, 98-406 (La.4/11/00), 776 So.2d 376, 391, cert. denied, 531 U.S. 934, 121 S.Ct. 320, 148 L.Ed.2d 258 (2000).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. George
39 So. 3d 671 (Louisiana Court of Appeal, 2010)
State v. Scott
939 So. 2d 462 (Louisiana Court of Appeal, 2006)
State v. McGinnis
917 So. 2d 471 (Louisiana Court of Appeal, 2005)
State v. Swain
900 So. 2d 82 (Louisiana Court of Appeal, 2005)
State v. Thompkins
896 So. 2d 1165 (Louisiana Court of Appeal, 2005)
State v. Myles
894 So. 2d 515 (Louisiana Court of Appeal, 2005)
State v. Burns
877 So. 2d 1073 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
864 So. 2d 748, 2003 WL 23025543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hotard-lactapp-2003.