State v. Lee

465 So. 2d 806, 1985 La. App. LEXIS 8331
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1985
DocketNos. 16059-KA, 16702-KA
StatusPublished
Cited by4 cases

This text of 465 So. 2d 806 (State v. Lee) 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. Lee, 465 So. 2d 806, 1985 La. App. LEXIS 8331 (La. Ct. App. 1985).

Opinion

MARVIN, Judge.

In each of the above cases, defendant appeals his conviction by a jury and his sentence for three counts of Carnal Knowledge of a Juvenile. La.R.S. 14:80(2).

We resolve each appeal in this one opinion because defendant confessed to the crimes with his 9-year-old stepson (the victim in the first case) and to the crimes with his 13-year-old stepson (victim in the second case). Defendant testified to the jury in each case that his confession was not true but was made to “protect” his wife, the mother of the children, and to avoid her incarceration.

Each appeal questions the sufficiency of the evidence in the respective case. The appeal in the second case questions the excessiveness of the sentences, which were in part consecutive and in other parts concurrent, for a total of 18 years at hard labor in that case.

[808]*808Defendant’s assignments in each case will be specifically discussed.

FACTS

The 40-year-old defendant was arrested on August 10, 1982, after his wife reported to deputy sheriffs on August 9 that she had seen her husband with his penis in the mouth of her 9-year-old son after she and her husband returned home about midnight on July 31, 1982, after dancing and drinking in Alexandria. She said that after they returned to their rural Winn Parish home that night the defendant got out of their bed saying that he was sick. She later went to check on him and found him in his underwear in the bedroom of her 9-year-old son with his penis in the boy’s mouth. She ordered defendant out of the room or house,' dressed herself and her son, and thereafter stayed with friends and neighbors.

The mother said that when she caught defendant he said to her that her son “had been asking for it.” She returned home the next day and remained there with her husband and son until an argument occurred between her and her husband on August 8. She went to the sheriff’s office the next day. She explained she did not resume “relations” with her husband after she caught him with her son. This was essentially her testimony to the jury in the first trial.

After defendant was arrested and was given Miranda warnings he gave a statement to the officers which was recorded on tape and was transcribed. Defendant admitted that he talked his 9-year-old stepson into having oral sex, having his penis in the mouth of the 9-year-old stepson, and being caught by his wife on the night in question. In his confession, defendant admitted that this conduct had occurred with the boy “about twice before ... [in the] same house [in the] ... last year.” Defendant said in his confession he could “not remember [any] dates.”

Defendant also admitted that he had had his other stepson (the 13-year-old who lived with him during the 1981-82 school year) perform oral sex on him about “4 or 5” times. The 9-year-old was the victim in the first trial. The 13-year-old was the victim in the second trial. The confession was purged in each trial to exclude references to conduct with the victim in the other trial.

Defendant did not object to the introduction of the confession in either case but testified that the recorded statement he gave the deputies was untrue and he was trying to keep his wife from being prosecuted for welfare fraud ... for giving a false statement about him if she “dropped the charges” against him.

The 9-year-old testified about defendant coming into his bedroom on the night in question, having defendant’s penis in his mouth “more than once,” and being “caught” the last time by his mother. He testified that this had occurred once before in the bedroom of the 9-year-old “during the night time before [the] school [year] was out.” The third count on which defendant was convicted occurred after the school year ended when the 9-year-old was awakened in the nighttime and was taken in an automobile by defendant where defendant parked “down the road ... a dirt road about a mile from the house.”

In the second trial, the testimony generally tracked that of the first trial. The 13-year-old victim testified, the deputies testified about the details of the confession, 'and defendant testified. The mother of the victim did not testify in the second trial.

The 13-year-old victim testified that he performed oral sex on defendant at defendant’s request once in the woods on a squirrel hunting trip about October 1981 near their home, and once in defendant’s bedroom in April or May 1982 when his mother was not at home. The victim also stated that defendant performed anal intercourse on him the day before the victim’s birthday in January 1982 at a garbage dump near defendant’s home.

FIRST CASE ASSIGNMENT No. 1

Defendant argues that testimony should not have been admitted over his objection [809]*809about the count of the crime described by the 9-year-old as having occurred on a dirt road about a mile from defendant’s home. Defendant’s objection arose because the Bill of Particulars said all counts of the crime occurred “at or near the home of [defendant] ... in Winn Parish, Louisiana.”

The place of the commission of an offense need not be stated in the indictment or in a bill of particulars unless the place of commission is an essential element of the offense. CCrP Art. 469; State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Hamilton, 307 So.2d 329 (La.1975). The place of the crime is necessary to charge an offense such as burglary where the element of unauthorized entry into a structure or similar thing must be proved. The place of the crime is not an element of such crimes as murder, rape, robbery. See Official Revision Comment under LSA-CCrP Art. 469. We do not find the place to be an element of this crime. It is anatomy and not geography that is essential to the crimes charged.

In Hatcher, supra, where counts of rape and aggravated crime against nature were charged, the State’s bill of particulars answered that the three crimes occurred “uptown by the river,” “around Annunciation Bridge,” and “Terpsichore.” These answers were held sufficient. 372 So.2d at p. 1029. Additionally, this defendant did not complain about the lack of specificity in the bill of particulars as did the defendant in Hatcher. The phrase at or near defendant’s home is as descriptive as “uptown by the river” and defendant has not shown specific prejudice by the admission of the evidence complained of. Accordingly, we find no error.

FIRST CASE, ASSIGNMENT NO. 2

Defendant argues that a letter that he wrote to his wife while in the jail should not have been admitted over his objection that it was privileged. The State was using the letter to impeach defendant’s attempt to retract his confession.

It has been squarely held that a letter from a husband to his wife is not within the statutory connubial private conversation privilege. LRS 15:461, State v. Fuller, 454 So.2d 119 (La.1984).

FIRST CASE, ASSIGNMENT No. 3

This assignment questions the sufficiency of the evidence. CCrP Art. 821, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A rational factfinder, the jury here, could, and did, conclude that the essential elements of the crime were proved beyond a reasonable doubt. LRS 15:271.

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

Related

State v. Thomas
111 So. 3d 386 (Louisiana Court of Appeal, 2012)
State in Interest of JG
641 So. 2d 633 (Louisiana Court of Appeal, 1994)
State v. Rowell
505 So. 2d 978 (Louisiana Court of Appeal, 1987)
State v. Lee
468 So. 2d 572 (Supreme Court of Louisiana, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
465 So. 2d 806, 1985 La. App. LEXIS 8331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-lactapp-1985.