State v. Washburn

206 So. 3d 1143, 16 La.App. 3 Cir. 335, 2016 La. App. LEXIS 2040
CourtLouisiana Court of Appeal
DecidedNovember 2, 2016
Docket16-335
StatusPublished
Cited by3 cases

This text of 206 So. 3d 1143 (State v. Washburn) 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. Washburn, 206 So. 3d 1143, 16 La.App. 3 Cir. 335, 2016 La. App. LEXIS 2040 (La. Ct. App. 2016).

Opinion

AMY, Judge.

|]The State charged the defendant with molestation of a juvenile, relating to his stepdaughter’s allegation of sexual abuse. In pre-trial proceedings, the trial court determined that it would allow other crimes evidence from the victim’s sister, who also related allegations of sexual misconduct by the defendant. A jury found the defendant guilty as charged. The trial court sentenced the defendant to fifty-eight years at hard labor, with “at least” twenty-five of those years to be served without benefits. The trial court thereafter denied a motion to reconsider sentence. [1145]*1145The defendant appeals. For the following reasons, we affirm the defendant’s conviction, but vacate the defendant’s sentence as indeterminate. We remand for resen-tencing.

Factual and Procedural Background

On July 28, 2015, the State filed an amended bill of information charging the defendant, Christopher Lance Washburn, Sr., with molestation of a juvenile, a violation of La.R.S. 14:81.2. The bill was further amended to reflect that the alleged victim, S.L.S.,1 was under the age of thirteen when the alleged molestation occurred. See La.R.S. 14:81.2(D)(1). The State filed a Notice of Intent to Use Evidence of Other Crimes pursuant to La.Code Evid. art. 404(B), stating that the purpose of said evidence was to “show defendant’s intent to commit the offense in question as well as the fact that the charged offense is merely part of a system of crimes committed by this defendant.” The “other crime” at issue was described as follows: “On or between December 2012 through July 2014, B.B., a juvenile female, and younger sister of the victim in this matter, did state that | .CHRISTOPHER LANCE WASH-BURN, either had or attempted to have sexual intercourse with her.”

The trial court conducted a hearing regarding these allegations and issued a written order ruling the evidence to be admissible, stating that the evidence set forth at the hearing proved “by clear and convincing evidence” that the allegation regarding B.B. “may have occurred.” 2 The court further explained: “The purported evidence involved the other step daughter (“B.B.”) of the Defendant who lived and resided in the same household with the alleged victim (“S.L.”) of the instant case. The evidence is relevant and the probative value outweighs its potential prejudicial value.”

Thereafter, the matter proceeded to trial, with a jury finding the defendant guilty as charged. The trial court sentenced the defendant to fifty-eight years at hard labor, with “at least” twenty-five years to be served without the benefits of probation, parole, or suspension of sentence. The defendant subsequently filed a Motion to Reconsider Sentence, arguing that the length of his sentence is “harsh and excessive.” After conducting a hearing, the trial court denied the motion in writing.

The defendant appeals, assigning as error that:

I. The trial court erred in admitting prejudicial other crimes evidence.
II. The trial court erred in allowing Joanna Pleasant to be qualified as an expert witness.
III. The trial court erred in allowing Michael Sweet to remain on the jury.
IsIV. The trial court erred in imposing an excessive sentence.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. On review, we find one error patent with respect to the imposed sentence.

With regard to the sentence for a conviction for molestation of a juvenile under the age of thirteen, La.R.S. 14:81.2(D)(1) requires the following:

[1146]*1146Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

In the instant case, the trial court ordered the defendant to serve fifty-eight years at hard labor, with the additional requirement that the defendant shall serve “at least” twenty-five years of the sentence without the benefits of probation, parole, or suspension of sentence. By using the phrase “at least,” the trial court failed to specify the point at which the defendant becomes eligible for benefits, rendering the sentence indeterminate under La. Code Crim.P. art. 879.3 See, e.g., State v. Fruge, 09-1131 (La.App. 3 Cir. 4/7/10), 34 So.3d 422, writ denied, 10-1054 (La. 11/24/10), 50 So.3d 828; State v. Cedars, 02-861 (La. App. 3 Cir. 12/11/02), 832 So.2d 1191; State v. Burton, 94-486 (La.App. 3 Cir. 11/9/94), 649 So.2d 694. Accordingly, we vacate the defendant’s sentence below, and remand this matter for imposition of a determinate sentence.

]£)ther Crimes Evidence

In his first assignment of error, the defendant contends that the State erred in admitting, evidence that the defendant committed sexual acts, including four separate instances of rape, against the victim’s younger sister, B.B. In support of his argument, the defendant cites La.Code Evid. art. 404(B)(1), which states:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The State responds by citing La.Code Evid. art. 412.2(A), entitled “Evidence of similar crimes, wrongs, or acts in sex offense cases[,]” and which provides:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Louisiana Code of Evidence Article 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” A trial court’s decision regarding the admissibility of evidence, including other crimes evidence under La.Code Evid. art. 412.2(A), is subject to an abuse of discretion standard on review. State v. Wright, 11-0141 (La. 12/6/11), 79 So.3d 309.

[1147]*1147IsThe defendant argues that the evidence regarding B.B.

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Bluebook (online)
206 So. 3d 1143, 16 La.App. 3 Cir. 335, 2016 La. App. LEXIS 2040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washburn-lactapp-2016.