State v. Steward

213 So. 3d 1174, 2017 La. App. LEXIS 26
CourtLouisiana Court of Appeal
DecidedJanuary 11, 2017
DocketNo. 51,006-KA
StatusPublished
Cited by1 cases

This text of 213 So. 3d 1174 (State v. Steward) 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. Steward, 213 So. 3d 1174, 2017 La. App. LEXIS 26 (La. Ct. App. 2017).

Opinion

MOORE, J.

11Angelo L. Steward appeals his convictions and sentences on one count of attempted aggravated rape and one count of indecent behavior with juveniles. Finding a fatal defect in the aggravated rape prosecution, we vacate that conviction and sentence and remand for further proceedings. For the reasons expressed, we affirm the conviction and sentence for indecent behavior with juveniles, but remand for compliance with sex offender registration and notification requirements.

The Aggravated Rape Prosecution

The state charged Steward by bill of information with one count each of aggravated rape,1 indecent behavior with juveniles and second degree sexual battery. The state later amended the bill to drop the charge of second degree sexual battery, and proceeded to trial before a 12-member jury. After deliberating 4 ½ hours, the jury returned a responsive verdict of guilty of attempted aggravated rape and guilty as charged of indecent behavior with juveniles.

By his first assignment of error, Steward urges the conviction for attempted aggravated rape should be reversed and vacated as the original charge, aggravated rape, was improperly instituted by bill of information rather than by indictment. The state concedes this error, but suggests that Steward’s failure to assert it prior to appeal should constitute a waiver.

The Louisiana Constitution guarantees that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. La. Const. Art. I, § 15. The Code of ^Criminal Procedure likewise provides that prosecution for an offense punishable by death or by life imprisonment shall be instituted by grand jury indictment. La. C. Cr. P. art. 382 A. Aggravated rape carried a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:42D(1). Prosecution for aggravated rape, therefore, could be instituted only by grand jury indictment, not by bill of information. State v. Donahue, 355 So.2d 247 (La. 1978); State v. Ruple, 437 So.2d 873 (La. App. 2 Cir. 1983); State v. Underdonk, 2011-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, writ denied, 2012-0910 (La. 10/8/12), 98 So.3d 848. This is a fatal error which may not be waived by the defendant or cured by a responsive verdict of a lesser included offense which could have been charged by bill of information. State v. Stevenson, 334 So.2d 195 (La. 1976); State v. Ruple, supra; State v. Underdonk, supra.

[1177]*1177Under the circumstances, this court is required to vacate the conviction and sentence for attempted aggravated rape. We remand the case to the district court for further proceedings.

Indecent Behavior with Juveniles— Factual Background

In 2013, 8-year-old SG was living with her mother, CG, and her stepfather, Chris Steward, in Natchitoches. In late July of that year, SG told her grandmother that Chris had touched her inappropriately. The grandmother reported this to Natchi-toches police; Sgt. Jessica Williams referred SG to Project Celebration, a child advocacy center in Many. The executive director, Mitzi Harris, arranged a videotaped forensic interview of SG on July 31, 2013. Ms. Harris testified at trial that the person who factually conducted the interview, a Ms. Goins, was a licensed forensic interviewer and that other protocols were observed.

During the interview, SG spontaneously reported that her stepfather’s brother, Angelo Steward, the defendant, had molested her earlier, when he was babysitting her in Coushatta, where the family previously lived. On the video, SG stated that Uncle Angelo “put his pee pee in my pee pee and my butt,” put his “pee pee in my mouth,” “white stuff came out,” “told me to lick it” and then to “go brush my teeth”; he then told her not to tell this to anybody or else he would go to jail. SG also stated that he showed her a cell phone picture of a girl who had “spit on a boy pee pee.” A CD of the interview was played for the jury and placed in evidence.

At trial, in October 2015, SG took the stand, corroborating her Project Celebration interview. She testified that her Uncle Angelo “put his private part in my private part,” “put his private part in my butt,” and “told me to suck his private part and white stuff came out,” all in the living room of the house in Coushatta, and with one or both of them in various stages of undress. She also testified that he showed her, on his phone, “a video of a girl sucking a boy private part.”

CG, the victim’s mother, testified that she and Chris had got married in 2007 and lived in Coushatta until 2012; while they lived there, Angelo Steward often stayed with them and would babysit SG when she and Chris were at work. This ended after her mother (SG’s grandmother) moved in with them, “before Christmas of 2010.”

The state charged Steward with indecent behavior with juveniles for showing SG the video depicting lewd and lascivious conduct “on or about December 12, 2012.” A court-ordered psychosocial report found Steward |4had major depressive disorder, cannabis dependence, specific learning disorder and borderline intelligence; a separate psychological evaluation confirmed these findings but recommended that Steward was competent to proceed to trial. As noted, the jury unanimously found him guilty of attempted aggravated rape and guilty as charged of indecent behavior with juveniles. He filed a motion for post verdict judgment of acquittal, which the district court denied. The court later sentenced him to concurrent terms of 30 years and 5 years at hard labor for the respective offenses. He filed a motion for reconsideration of sentence, which was also denied. He now appeals, raising four assignments of error with respect to the indecent behavior conviction.2

Discussion: Improper Joinder

By his second assignment of error, Steward urges his conviction for indecent [1178]*1178behavior with juveniles should be reversed as the evidence of the aggravated rape so infected the otherwise properly charged yet jointly tried offense of indecent behavior with juveniles as to require reversal of the conviction. He contends that the two crimes did not arise out of the same transaction and the facts as to each would not have been admissible at separate trials of the other; thus, they should not have been joined for trial. He concludes that the evidence of the aggravated rape resulted in inherent prejudice on the charge of indecent behavior with juveniles.

Two or more offenses may be charged in the same indictment or bill of information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or|B are based on the same act or transactions connected together constituting parts of a common scheme or plan, provided that the offenses joined must be triable by the same mode of trial. La. C. Cr. P. art. 493.

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Related

State v. Mays
244 So. 3d 607 (Louisiana Court of Appeal, 2017)

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Bluebook (online)
213 So. 3d 1174, 2017 La. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-steward-lactapp-2017.