188 So. 3d 409
La. Ct. App.2016Background
- On April 17, 2014, 13‑year‑old A.G. left home intending to go to a friend’s house; Fahim A. Shaikh picked her up while she was hitchhiking.
- During several stops over ~5 hours, A.G. testified Shaikh rubbed her leg, hugged and kissed her cheek, tickled her, slapped her butt, offered to let her stay at his apartment, and gave her his phone number; she testified he stopped when she told him to.
- A.G. went to the friend’s grandmother’s house; the grandmother and A.G. subsequently went to the sheriff’s office and A.G. gave a voluntary written statement.
- Shaikh was arrested after deputies used A.G.’s phone number to contact him; Shaikh denied improper touching and claimed he thought she was a runaway saleswoman and acted to help her.
- A jury convicted Shaikh of simple kidnapping (La. R.S. 14:45) and indecent behavior with a juvenile (La. R.S. 14:81); the trial court sentenced him to concurrent terms (kidnapping: 5 years, 2 suspended; indecent behavior: 7 years, 3 suspended).
- On appeal the court (majority) affirmed the kidnapping conviction, reversed and vacated the indecent‑behavior conviction (ordering an acquittal), found certain trial errors harmless, and vacated the kidnapping sentence for resentencing.
Issues
| Issue | State's Argument | Shaikh's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of evidence for simple kidnapping | A.G. lacked legal capacity to consent; taking/enticing a child <14 without guardian consent for an unlawful purpose satisfied statute | A.G voluntarily rode with Shaikh; State failed to prove an unlawful purpose | Conviction affirmed — evidence sufficient under Jackson standard because lack of guardian consent and circumstances negated lawful purpose |
| 2. Sufficiency of evidence for indecent behavior with a juvenile | Acts (rubbing leg, hugging, cheek kiss, butt slap, tickling) show lewd conduct and intent can be inferred | Conduct was non‑sexual, ceased when A.G. told him to stop; insufficient to show intent to arouse | Conviction reversed and vacated — acts not shown to be "lewd or lascivious" nor done with sexual intent |
| 3. Double jeopardy (same course of conduct) | Convictions arise from same incident but constitute distinct offenses | Same conduct used for both convictions violates double jeopardy | Moot in light of reversal of indecent‑behavior conviction |
| 4. Cross‑examination on immigration and testimony about incarceration | Immigration status and incarceration relevant to witness credibility and bias | Immigration status irrelevant and unduly prejudicial; incarceration reference prejudicial; moved for mistrial | Admission of immigration status and incarceration was error but harmless given curative jury instructions and context |
| 5. Excessive sentence for kidnapping | Aggravating facts justify punishment; trial court has wide discretion | Maximum sentence excessive given lack of force, no prior record, and comparators | Sentence vacated as excessive; remanded for resentencing (court suggested 2 years) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate sufficiency review)
- State v. Belcher, 793 So.2d 262 (La. App. 2 Cir.) (discusses lawful purpose exception to kidnapping)
- State v. Bates, 927 So.2d 417 (La. App. 1 Cir.) (minor cannot consent; custodian must consent for lawful removal)
- State v. Rideaux, 916 So.2d 488 (La. App. 3 Cir.) (analysis of lewd/lascivious conduct and intent for indecent behavior)
- State v. Louviere, 602 So.2d 1042 (La. App. 4 Cir.) (insufficient evidence for indecent behavior where contact was nonsexual)
- State v. Bugbee, 781 So.2d 748 (La. App. 2 Cir.) (repeated touching supports inference of sexual intent)
- State v. Breaux, 830 So.2d 1003 (La. App. 5 Cir.) (covering mouth and touching genitals indicative of sexual intent)