102 So. 3d 801
La. Ct. App.2012Background
- Lirette was charged with two counts of indecent behavior with a juvenile under 17; he pled not guilty and was found guilty on count1 as the lesser verdict of attempted indecent behavior with a juvenile and guilty as charged on count2.
- Victims were K.F. (12) and J.T. (12 at time of incident, F.F. (14) testified as a witness to context but not a victim), with incidents occurring in late 2009 to early 2010 at a Harahan residence.
- The State proved age differences (>2 years) between Lirette (age 52 at trial) and the victims, and that the acts were lewd or lascivious in the presence of a child; the State relied on victims’ testimony and corroborating context.
- Lirette sought to introduce impeaching tape recordings; the court excluded the tape, ruling the evidence inadmissible for lack of authentication and probative value.
- Defendant presented alibi and character witnesses; the jury credited the victims and rejected defense witnesses; the trial court denied motions for new trial; the conviction and sentences are affirmed with remand for correction of the commitment.
- Appellate review affirmed the sufficiency standard under Jackson v. Virginia and concluded the dates were not essential elements of the offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | State proved elements beyond a reasonable doubt | Alibi and lack of timing undermine guilt | Sufficient evidence supports both convictions |
| Admissibility of the impeaching tape | Tape would attack credibility of witnesses | Tape is relevant impeachment material | Exclusion proper; no substantial right shown; no abuse of discretion |
| Timeliness of offense dates | Dates essential to prove crimes | Dates are important but not essential elements | Dates are not essential elements; convictions sustained |
| Preservation/briefing of supplemental error | Supplemental error should be reviewed | Issue abandoned for lack of briefing | Supplemental issue abandoned; not reviewed under Rule 2-12.4 |
Key Cases Cited
- State v. Battaglia, 861 So.2d 704 (La.App. 5 Cir. 2003) (defining lewd act and intent in 14:81 context)
- State v. Turner, 904 So.2d 816 (La.App. 5 Cir. 2005) (credibility determinations are within the jury’s purview)
- State v. Hotoph, 750 So.2d 1036 (La.App. 5 Cir. 1999) (victim testimony alone can support sexual offense conviction)
- State v. Lyles, 858 So.2d 35 (La.App. 5 Cir. 2003) (timing of offenses not essential elements; juries can infer)