State v. Whitmore
2011 La. App. LEXIS 265
| La. Ct. App. | 2011Background
- Whitmore was charged by multiple informations with four counts of computer-aided solicitation of a minor and two counts of indecent behavior with juveniles.
- A sting operation used a 12-year-old decoy online and via phone to engage Whitmore in sexual talk and instructions.
- Whitmore waived jury trial; the trial judge accepted a joint stipulation and evidence in lieu of live testimony.
- Convictions were based on Whitmore's electronic communications and calls, detailing explicit sexual conduct and solicitation of a minor.
- Sentences: four concurrent four-year hard labor terms for computer-aided solicitation; four-year suspended terms for indecent behavior; five-year probation with no computer; sex offender registry.
- Whitmore appealed challenging sufficiency, First Amendment challenges, due process, departure from minimum sentence, and sentence length.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for 14:81.3 | Whitmore lacked presence or contact with a minor; no meeting contemplated. | Presence is not required; communications alone support conviction. | Sufficient evidence; convictions upheld. |
| Constitutionality of 14:81.3 (First Amendment) | CPPA-like logic overly broad; prohibits protected speech. | Statute serves compelling interest and targets solicitation, not protected speech. | Constitutional; narrowly tailored to prohibit solicitation. |
| Due process—defense to consent by undercover officer | Statute barred presenting consent defense; violates due process. | Should allow defense that minor was really a police officer. | No due process violation; statute does not bar permissible defenses. |
| Depart from mandatory minimum sentence | Court should depart given mitigating factors in PIC and letters. | Court abused discretion in denying departure. | No manifest abuse; no departure warranted. |
| Excessive sentence | Four years per count within statutory range and justified by conduct. | Four years per count is excessive given circumstances. | Not excessive; midrange within statutory limits. |
Key Cases Cited
- State v. Suire, 19 So.3d 640 (La.App.3d Cir. 2009) (presence not required; solicitation completes crime via intent)
- State v. Prine, 13 So.3d 758 (La.App.2d Cir. 2009) (attempt statute rejects factual impossibility defense)
- State v. Penton, 998 So.2d 184 (La.App.1st Cir. 2008) (upholds constitutionality of 14:81.3; compelling interest)
- State v. Hatton, 985 So.2d 709 (La. 2008) (statutes presumed constitutional; burden on challenger)
- Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (U.S. Supreme Court 2002) (CPPA aspects unconstitutional; not central here)
- New York v. Ferber, 458 U.S. 747 (U.S. Supreme Court 1982) (government interest in protecting minors compelling)