State v. King

692 So. 2d 1296, 1997 WL 149949
CourtLouisiana Court of Appeal
DecidedApril 2, 1997
DocketCR96-1303
StatusPublished
Cited by17 cases

This text of 692 So. 2d 1296 (State v. King) 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. King, 692 So. 2d 1296, 1997 WL 149949 (La. Ct. App. 1997).

Opinion

692 So.2d 1296 (1997)

STATE of Louisiana, Appellee,
v.
Karroman S. KING, Defendant— Appellant.

No. CR96-1303.

Court of Appeal of Louisiana, Third Circuit.

April 2, 1997.

*1297 Charles F. Wagner, District Attorney, T. Gerald Henderson, Alexandria, for State of Louisiana.

John Michael Lawrence, Shreveport, for Karroman S. King.

Before DECUIR, AMY and GREMILLION, JJ.

AMY, Judge.

This appeal arises from the conviction and sentencing of the defendant, Karroman S. King, for attempted aggravated rape, a violation of La.R.S. 14:42 and La.R.S. 14:27. The defendant now appeals both the conviction and the sentence imposed. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

The defendant, Karroman S. King, was alleged to have sexually abused his stepdaughter, "D.W."[1] Her testimony at trial indicates that she was sexually abused for several years, beginning when she was eight years old. According to D.W.'s testimony, the first incident occurred when her mother, Rhonda King, left the family home after an argument with the defendant. D.W. stated that she was watching television in the living room, but that the defendant called her into his bedroom. She stated that he removed her clothes and put his penis into her vagina and anus. D.W. testified that she *1298 reported the incident to her mother when she returned home, but that her mother did nothing about the situation. As previously mentioned, D.W. alleged that the defendant continued this behavior for the next three years, committing sexual acts upon her at least once per month. She stated that, at various times, he inserted his penis into her vagina, her anus, and her mouth.

D.W. testified that she reported the defendant's actions to her aunt, Stephanie Lonnette, in 1995 because she "knew she would do something." D.W. stated that her mother told her that she should not tell others of the situation. Lonnette testified that she intervened and contacted the authorities, but that they had been alerted to the situation by D.W.'s guidance counselor from school. Dr. Renata Pilat, a pediatrician, testified that, upon examination, she found D.W.'s vaginal tissues torn and partially abscessed.

The defendant was charged with attempted aggravated rape, a violation of La.R.S. 14:42 and La.R.S. 14:27. The bill of information charged the rape as an offense against a victim less than twelve years of age. Following a bench trial, the trial court found the defendant guilty as charged on June 19, 1996. Subsequently, the trial court sentenced the defendant to twenty-five years at hard labor. The sentence was imposed without the benefit of probation, parole, or suspension. The defendant filed both a Motion for New Trial and a Motion to Reconsider Sentence. Both were denied by the trial court at the time of sentencing.

The defendant now appeals the conviction and sentence. He assigns the following as error: (1) The trial court erred in denying the defendant's Motion for New Trial; (2) The trial court erred in denying the defendant's Motion for Reconsideration of Sentence; (3) The trial court imposed an excessive sentence; and (4) The trial court erred in overruling the defendant's hearsay objection to testimony by the State's witnesses. The defendant also alleges that the bill of information indicated the wrong statute.

ANALYSIS

Errors Patent

The defendant requests an error patent review in his fifth assignment of error. Such a review is standard practice in appellate courts. La.Code Crim.P. art. 920 provides the scope of review on appeal, as follows:

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

In accordance with this article, all appeals are reviewed for errors patent on the face of the record.

First, the defendant alleges two interrelated errors regarding the bill of information. He notes that the bill incorrectly cites La. R.S. 14:28 as the attempt statute. La.R.S. 14:28 defines "inciting a felony" instead of attempt which is defined at La.R.S. 14:27. Additionally, the defendant asserts that the clerk incorrectly read the bill of information in open court, misdating D.W.'s birth date as "2/6/94" rather than the correct date which is indicated on the bill, "2/6/84." The defendant's argument correctly highlights notice as the key issue concerning such errors. As this court has previously stated:

The bill of information charging defendant with simple criminal damage to property of over $500.00 but less than $50,000.00 does not give the statutory citation for the law which defendant is charged with violating. However, the bill of information does state the essential facts of the offense charged, that defendant did "commit simple criminal damage to vehicle belonging to McRae Ford Company with the damage amounting to over $500.00 but under $50,000.00 (A felony)." The defendant did not object to this omission nor did defendant claim surprise or prejudicial lack of notice. Therefore, this error is harmless.

State v. Morris, 614 So.2d 180, 182 (La.App. 3 Cir.1993) (citations omitted).

The same basic rule governs a bill of information. State v. Brooks, 93-1767 (La. App. 4 Cir. 2/25/94); 633 So.2d 816, writ denied, 94-1939 (La.9/3/96); 678 So.2d 548. *1299 The bill in the instant matter clearly states that the defendant is charged with attempted aggravated rape, not with inciting a felony. The bill also correctly states the victim's birth date. The record contains no indication that the defendant was unaware of the victim's identity or of the nature of the charge. On appeal, he specifies no particular prejudice to his case. Thus, we find that the errors are harmless.

Motion for New Trial

By this first assignment of error, the defendant argues that the trial court erred in denying his Motion for New Trial.

The governing statute, La.Code Crim.P. art. 851, states, in pertinent part,:

Art. 851. Grounds for new trial
The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence;
....
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

When evaluating a Motion for New Trial, trial courts are to use the "thirteenth juror" standard for reweighing the evidence. State v. Long, 590 So.2d 694 (La.App. 3 Cir.1991). It appears the lower court did not do so, but, instead, applied the sufficiency of the evidence standard.[2] The trial court judge stated:

Okay. With that the Court set that matter for today and the Court has looked over the motion for a new trial. It appears that there are [sic] no new evidence that needs to be considered.
The evidence that was produced and brought before the Court at the time was found by this Court to be sufficient to in fact sustain a conviction.

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Cite This Page — Counsel Stack

Bluebook (online)
692 So. 2d 1296, 1997 WL 149949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-king-lactapp-1997.