State v. Graham, 148 So. 3d 601

Graham was charged by amended grand jury indictment with aggravated incest under La. R.S. 14:78.1; he was found guilty of the responsive offense of molestation of a juvenile under La. R.S. 14:81.2 and sentenced to 50 years with 25 years without probation, parole, or suspension.
Victim R.B. was four years old at the time of the incident; the offense occurred in Graham’s bedroom when they were alone; the victim later provided a recorded statement.
The defense challenged sufficiency of evidence, the admissibility of the victim’s recorded statement, whether the verdict was responsive to the charge, and the sentence’s excessiveness.
The State introduced direct and circumstantial evidence supporting molestation as a lewd act with specific intent to arouse or gratify sexual desires; the jury rejected the defense theory that contact was merely to check for urination.
During trial the victim, now nine, initially did not remember the incident, but testified at trial and the defense cross-examined other witnesses who corroborated the allegations.
The appellate court affirmed both conviction and sentence, finding the evidence sufficient, the recorded statement admissible, and the sentence not excessive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for molestation of a juvenile	Graham argues evidence failed to prove lewd act, specific intent, or control over victim.	Graham contends lack of direct proof of essential elements.	Evidence sufficient; jury could infer specific intent and control; circumstantial and direct evidence support guilt.
Admissibility of recorded statement of victim	State argued the victim available to testify; memory loss does not preclude admissibility.	Defense argued Confrontation Clause concerns due to memory lapse.	Admissible; no Confrontation Clause violation; Kennedy and Green support use of prior statements when witness is available and cross-examined.
Whether verdict was nonresponsive (included offense issue)	Molestation of a juvenile is a lesser included offense of aggravated incest; verdict should reflect this.	Argues improper inclusion; the offense overlaps but is not greater than aggravated incest.	No merit; molestation of a juvenile is a lesser included offense within aggravated incest under the statute.
Excessive sentence review	Sentence should be individualized per Article 894.1 and not be grossly disproportionate.	Requests more lenient sentence as excessive.	Sentence within statutory range; Article 894.1 satisfied; not grossly disproportionate; affirmed.

State v. Wright, 730 So.2d 485 (La.App. 1st Cir. 1999) (circumstantial evidence standard for sufficiency; resolve conflicts in direct evidence in favor of State)
State v. Babin, 637 So.2d 814 (La.App. 1st Cir. 1994) (specific intent may be inferred from circumstances)
State v. Ardoin, 6 So.3d 237 (La.App. 1st Cir. 2009) (molestation included as prohibited act within aggravated incest; elements comparison)
Green v. California, 399 U.S. 465 ((U.S. 1970)) (Confrontation Clause; live testimony preferred; prior statements admissible when declarant testifies)
Kennedy, 957 So.2d 757 (La. 2007) (victim’s lack of memory does not violate Confrontation Clause if witness is present and cross-examined)
State v. Moten, 510 So.2d 55 (La.App. 1st Cir. 1987) (circumstantial evidence; rejection of innocence hypothesis)
State v. Johnson, 745 So.2d 217 (La.App. 1st Cir. 1999) (credibility and weight of witness testimony within appellate review)
State v. Calloway, 1 So.3d 417 (La. 2009) (appellate review not to substitute credibility determinations)