State v. J.M.

941 So. 2d 686
Louisiana Court of Appeal·Decided November 2, 2006·No. No. 06-624·Published·Cited by 8 cases

Opinion

THIBODEAUX, Chief Judge.

11 Defendant, J.M.1, appeals his jury convictions and trial court sentences for two counts of aggravated incest and one count of attempted aggravated incest. He was sentenced as follows:

[Defendant, [J.M.], is hereby ordered to serve as to each count of aggravated incest, ten years with the Department of Corrections to run concurrent of which six years on each count is suspended. You will serve four years on each count consecutive to one another before being eligible for release.
With regard to the attempted aggravated incest, you are ordered to serve five years with the Department of Corrections consecutive to the ten years on each of the other counts of which three years are suspended and you will serve those two years balance consecutive to the other eight years for the two counts of aggravated incest.
In other words, you will serve a total of ten years with the Department of Corrections and there will be 15 years that have been suspended.

Defendant was also ordered to pay a fine, court cost, and restitution to the victims.

[689] We affirm Defendant’s convictions. We vacate his sentences, however, and remand for resentencing.

ISSUES

Defendant is now before this court on appeal, alleging four errors: insufficient evidence to sustain the verdicts, erroneous denial of Defendant’s request that the victims be sequestered, erroneous imposition of consecutive sentences, and excessiveness of the sentences.

[ 9law and discussion

Insufficiency of the Evidence

Defendant argues that the inconsistencies which existed within the three victims’ initial interviews with the Children’s Advocacy Center counselor and the inconsistencies within their testimonies given at trial were such that it was inconceivable the jury would find Defendant guilty beyond a reasonable doubt. Defendant further argues that the State failed to prove all of the elements of the crimes of aggravated incest and attempted aggravated incest, and that the State failed to show that the offenses occurred in the time frame alleged in the indictment.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559, (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the factfinder is to weigh the respective credibility of each witness. Therefore, the appellate court
should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ denied, 99-3259 (La.5/5/00), 761 So.2d 541.

Defendant was convicted of two counts of aggravated incest committed against Ja.P. and Je.P. and one count of attempted aggravated incest committed against S.F. Louisiana Revised Statutes 14:78.1, in the relevant parts, provides:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, | agrandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

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(2) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

The attempt statute, La.R.S. 14:27, provides, in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the eireum-[690] stances, he would have actually accomplished his purpose.

Moreover, in State v. Arwood, 00-152, pp. 6-7 (La.App. 5 Cir. 6/27/00), 762 So.2d 1266, 1270, the fifth circuit stated:

In order to support a conviction for attempted aggravated incest, the State is required to prove that the defendant specifically intended to engage in an act listed in Subsection B of LSA-R.S. 14:78.1 with his daughter. Such proof is indispensable, as specific intent to accomplish the offense is the sine qua non of the criminal offense of attempt. State v. Trackling, 609 So.2d 206, 207 (La.1992). Specific intent is a state of mind and as such need not be proven as a fact, but may be inferred from the circumstances and actions of the accused. See State v. Graham, 420 So.2d 1126, 1128 (La.1982); and State v. Lewis, 698 So.2d 456, 459 (La.App. 5 Cir.1997), writ denied, 716 So.2d 881 (La.1998).

At trial, the only direct evidence presented of Defendant’s guilt were the testimonies of the three victims and the videotapes made during the interviews conducted by the Children’s Advocacy Center a short time following the victims’ disclosures to the police of Defendant’s acts.

At trial, J.P., the adoptive father of two of the victims, testified that he was alerted to a problem by S.F.’s mother, L.C.F. She had called J.P. and asked him 14if he knew why S.F. insisted that she did not want to visit with Defendant. J.P. had also noticed that his daughters were making up excuses not to visit with their grandfather. After he had talked to S.F.’s mother, he asked the two girls why S.F. did not want to visit Defendant. The oldest, Je.P., then told him that their grandfather had been touching S.F. She told him that their grandfather had been touching Je.P. and Ja.P., too.

L.C.F. testified that after J.P. called her and told her what his girls were saying, she did not confront S.F. directly because she wanted S.F. to tell her first. L.C.F. said she kept asking S.F. why she was mad at Defendant. Finally, S.F. told her about the touching.

The allegations were reported to Mike Primeaux, a detective with the Calcasieu Parish Sheriffs Office sex crimes unit, on or about December 2, 2002. He arranged and monitored the taped interviews of the girls at the Children’s Advocacy Center.

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State v. J.M., 941 So. 2d 686 (La. Ct. App. 2006).

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