130 So. 3d 377
La. Ct. App.2013Background
- Do was indicted on eight counts: aggravated rape (count 1), four counts of aggravated incest (counts 2, 6, 7, 8), indecent behavior with juveniles (count 3), aggravated oral sexual battery (count 4), and sexual battery (count 5).
- Jury convicted on all counts on Feb. 13, 2012; motions for new trial and post-verdict judgment denied; sentencing occurred Jan. 7, 2013.
- On Feb. 19, 2013, the court resentenced the defendant; the court later acknowledged errors in sentencing and ordered corrections.
- The evidence at trial involved alleged sexual abuse of multiple children by the defendant, including O.D., H.B., D.B., and K.B., with recantations and contested testimony affecting post-trial motions.
- The court identified and addressed errors patent related to post-conviction advisement, sex offender registration notice, and sentencing on several counts, and remanded for correction while affirming most convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recantation evidence and new-trial standard | State | Do argues denial of new trial was improper | First assignment meritless; court applied correct standard and found recantation not warranting new trial |
| Authority to convict under 14:43.4 during repeal period | State | Weaver/Narcisse principles misapplied | Second assignment without merit; liability under former statute maintained despite repeal and penalty change |
| Post-conviction prescriptive advisement | State | Advisement defective | Errors patent; remand to provide proper 930.8 advisement and cure out-of-time appeal issues |
| Sex offender registration notice | State | Not properly informed | Remand to inform defendant of registration requirements using the statutory form |
| Sentencing corrections on counts 1-5 and count 6; counts 7-8 affirmed | State | Possible improper leniency; need correction | Counts 1-5 vacated and reimposed as of Jan. 7, 2013; count 6 to be resentenced to a legal term; counts 7-8 affirmed; remand for correction of commitment order |
Key Cases Cited
- State v. Prudholm, 446 So.2d 729 (La. 1984) (new-trial standard for newly discovered evidence)
- State v. Watts, 835 So.2d 441 (La. 2003) (objective test for new-evidence effect, not weighing credibility)
- State v. Talbot, 408 So.2d 861 (La. 1980) (scope of new-trial inquiry; material fit for a new jury's judgment)
- State v. Clayton, 427 So.2d 827 (La. 1982) (proper test application for new-trial due to new evidence)
- State v. Coleman, 959 So.2d 465 (La. 2007) (trial court may deny new-trial if properly applying the standard and weighing evidence)