State v. EllisState v. Ellis
- Reporters:
- , ,
- Before:
- Brown, Stewart, Drew
Defendant, Jeffery Howard Ellis, was convicted of two counts of molestation of a juvenile and two counts of indecent behavior with a juvenile. He was sentenced to hard labor terms without benefit of parole or probation and without diminution of sentence for good behavior. The combination of concurrent and consecutive sentences resulted in a total of 12 years to be served. He has appealed his convictions and sentences. Finding no error, we affirm.
Brief Factual Synopsis
The original bill of information charged defendant with three counts of sexual battery. After two amendments, the final bill of information charged defendant with two counts of molestation of a juvenile (his seven-year-old daughter), and three counts of indecent behavior with a juvenile (count three—his daughter; count four—a friend of his children, “Z.P.“; and count five—his daughter and twelve-year-old sоn).
The state filed a Notice of Intent to Use Evidence of Other Crimes/Acts, notifying defendant that it planned to offer at defendant‘s trial evidence of prior sexual misconduct with juveniles in accordance with State v. Prieur, 277 So.2d 126 (La.1973). A Prieur hearing was held and the trial court ruled that the state could introduce testimony relating to previous incidents involving his stepdaughter and her friend, who were six or seven at the time of the alleged sexual misconduct.
In December 2002, defendant‘s court-appointed attorney withdrew after being elected to the district court bench. Thereafter, defendant elected to proceed to trial in proper person. Count four, charging defendant with indecent behavior with a juvenile, “Z.P.“, was dismissed when the child victim failеd to appear for trial. On July 9, 2003, a jury convicted defendant of the four remaining counts. Defendant was sentenced to eight-year concurrent hard labor terms on counts one and two; four years on count three to be served concurrently with three years on count five; and the sentences on the molestation counts (one and two) and indecent bеhavior counts (three and five) were then ordered to run consecutively, resulting in a total of 12 years to be served. The judge then ordered that the sentences were to be without benefit of probation, parole, or suspension. Finding that defendant was a sex offender as defined by
Defendant has appealed his convictions and sentences.
Discussion
Bill of Information
According to defendant, the second and final amended bill of information is fatally defective as to the two counts of indecent behavior with juveniles. In support, defendant cites State v. Free, 26,267 (La.App.2d Cir.09/21/94), 643 So.2d 767, writ denied, 94-2846 (La.03/10/95), 650 So.2d 1175.
In State v. Free, supra at 774-75, this court reviewed the applicable jurisprudence as follows:
The charged offense [indecent behavior with a juvenile] may be committed in two distinсt ways: (1) by the commission of a lewd or lascivious act upon the person; or (2) by the commission of a lewd or lascivious act in the presence of any child under the age of seventeen, with the requisite intent.
La. R.S. 14:81 . An indictment for indecent behavior with juveniles must inform the accused in which way he is charged with having committed the offense, whether upon the person or in thе presence ofthe person. Otherwise, the defendant would go into court without any knowledge, insofar as the disclosures in the indictment are concerned, of the kind or nature of acts intended be relied on as constituting the offense charged. (Citations omitted).
In the case sub judice, the state concedes that the final amended bill of information tracks the alternative lаnguage of
Furthermore, defendant has not claimed any surprise, nor has he shown any prejudice due to this alleged defect. State v. Comeaux, 408 So.2d 1099 (La.1981). A defendant may not complain of technical insufficiency in an indictment or bill of information for the first time after conviction, when the defendant is fairly informed of the charge against him and there is no prejudice caused by the defect. Id.; State v. Shelton, 545 So.2d 1285 (La. App. 2d Cir.1989); State v. Johnson, 02-254 (La.App. 5th Cir.06/26/02), 822 So.2d 840. This assignment of error is without merit.
Sufficiency of the Evidence
Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whethеr, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime established beyond a reasonable doubt. State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. This court‘s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, supra, and does not extend to credibility determinations made by the trier of fact.
The Louisiana Supreme Court has held that the testimony of the victim alone in a sexual assault case is sufficient to convince a reasonable fact finder beyond a reasonable doubt of a defendаnt‘s guilt. State v. Rives, 407 So.2d 1195 (La.1981); State v. Smith, 35,699 (La.App.2d Cir. 04/05/02), 815 So.2d 412, writ denied, 02-1502 (La.04/04/03), 840 So.2d 1200; State v. Elzie, 37,920 (La.App.2d Cir.01/28/04), 865 So.2d 248; State v. Free, supra. Furthermore, such testimony alone is sufficient even where the state does not introduce medical, scientific or
Counts One and Two: Molestation of a Juvenile
Molestation of a juvenile is defined in
Both molestation convictions arise out of incidents in which defendant engaged in inappropriate sexual behavior with his seven-year old daughtеr.1 Apparently conceding that the evidence was sufficient to prove that he committed a lewd or lascivious act with the necessary intent, defendant asserts that the evidence was insufficient to establish that he committed the lewd or lascivious act by virtue of his position of control or supervision over the child. According to defendant, because he lived with his mother, it was she who had control and supervision over his children during their visitation with him.
This assertion is patently wrong. The evidence is clear that the child was visiting with defendant who exercised control and supervision. See State v. Elzie, supra; State v. Crabtree, 569 So.2d 646 (La.App. 2d Cir.1990), writ denied, 575 So.2d 365 (La.1991); State v. Blue, 591 So.2d 1173 (La.App. 1st Cir.1991), rev‘d on other grounds, 591 So.2d 1172 (La.1992). The jurisprudence is rife with cases involving molestation accomplished by virtue of control and/or supervision by noncustodial parents, bаbysitters, relatives, friends, and neighbors of young victims.2
This assignment lacks merit.
Specific intent to commit the offense of indecent behavior with a juvenile need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Blanchard, 00-1147 (La.04/20/01), 786 So.2d 701; State v. Jones, supra; State v. Battaglia, 03-692 (La.App. 5th Cir.11/25/03), 861 So.2d 704.
Defendant asserts that showing to and/or watching with his children, aged six and twelve, the director‘s vеrsion of the R-rated movie “Showgirls”4 does not constitute a lewd or lascivious act, citing State v. Gaspard, 02-1040 (La.App. 3d Cir.03/05/03), 841 So.2d 1021.
In State v. Gaspard, supra, the Third Circuit held that showing sexually explicit movies and printed materials without any evidence of inappropriate touching or nudity to an 11-year-old was insufficient to support a conviction of attempted indecent behavior with a juvenile. In Gaspard, the court observed that there was no evidence that defendant had tried to touch his son or himself, no evidence of nudity or physical expоsure by either father or son, and no evidence of any suggestion or statement by defendant that he and/or his son engaged in sexual acts.
The supreme court has recently reaffirmed the jurisprudential definition of “lewd and lascivious” in State v. Interiano, 03-1760 (La.02/13/04), 868 So.2d 9. In State v. Interiano, supra at 15, the court cited State v. Holstead, 354 So.2d 493, 497-98 (La.1977), in which the supreme court reaffirmed that
The evidence in the instant case as to count three, which charged defendant with illicit sexual behavior upon or in the рresence of his six-year-old daughter, consisted of the daughter‘s testimony that she and her father watched the movie together on
As to count five, which alleged that defendant engaged in inappropriate sexual behavior with both his daughter and his twelve-year-old son, defendant contends that because there was no evidence of touching or nudity while he and the children watched “Showgirls“, nor was there evidence that he intended to gratify either one‘s sexual desires, he is not guilty of this count of indecеnt behavior with a juvenile.
As noted above, intent does not have to be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Blanchard, supra; State v. Jones, supra. In the instant case, according to the son, he watched the movie “Showgirls” with defendant and his younger sister more than once, all in the same bed in defendant‘s bedroom, before defendant аnd his sister went to sleep. He testified that there were nude and lesbian scenes in the movie and that he was aroused and felt differently after watching the movies. This is separate and distinct from the episode that his sister testified about, which involved defendant and her watching a movie in the den during which he put her hand on his “private” and moved it “up and down.”
The jury also heard thе testimony of Sgt. Smith that defendant denied possessing any pornography. However, the search of defendant‘s residence revealed this statement to be false. Sgt. Smith testified that the officers found numerous pornographic tapes and literature in defendant‘s bedroom, in the exact locations described to Sgt. Smith by defendant‘s daughter.6
Defendant‘s behavior showed a pattern of exposing children to erotic or semi-pornographic movies as a conduit for more specific sexual contact. A jury could reasonably find under these circumstances that this wanton conduct was lewd and lascivious.
This assignment of error has no merit.
Credit for Time Served
Defendant correctly points out that the trial court failed to give him credit for time spent in custody priоr to imposition of sentence. However, the 1997 amendment to
Excessive Sentence
Defendant asserts that the trial court erred in that it did not adequately consider mitigating circumstances; failed to articulate a factual basis for the sentence imposed; and failed to adequately consider a significantly less harsh sentence. Defendant also argues that his sentence is unconstitutionally excessive.
A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.04/02/97), 691 So.2d 345.
In this case, the record contains a complete and accurate articulation of the factual basis for defendant‘s sentence, setting forth the criteria the court considered in sentencing defendant in compliance with
Defendant‘s combined sentence of 12 years at hard labor is certainly within constitutional limits. Defendant‘s рattern of lascivious behavior with children who have been entrusted to his care more than justified this sentence, which was less than the maximum sentences allowed for the offenses of conviction. The sentence is not grossly disproportionate, nor is it a purposeless and needless infliction of pain and suffering. In light of the harm done to society, the sentence imposed does not shock our sense of justice. These assignments of error lack merit.
Defendant next contends that the trial court erred in denying the benefit of parole.
Admission of Other Crimes Evidence
Although defendant assigned as error the trial court‘s ruling on the admissibility of evidеnce of other crimes, he failed to address this issue in his brief. Assignments of error which are neither briefed nor argued are considered abandoned. U.R.C.A. Rule 2-12.4; State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Kotwitz, 549 So.2d 351 (La.App. 2d Cir.1989), writ denied, 558 So.2d 1123 (La.1990). A mere statement of an assignment of error in a brief does not constitute briefing of the assignment, and, therefore, the assignment is deemed abandoned. State v. Toney, 26,711 (La.App.2d Cir.03/01/95), 651 So.2d 387.
Under State v. Prieur, supra, the state must provide written notice to the defendant of thе acts it intends to prove, along with the exclusionary rule upon which it relies. Prieur further requires that the state show by clear and convincing evidence that the element the evidence tends to prove is truly at issue, that the defendant committed the other crimes, and that the probative value of the evidence to be admitted outweighs the dangers of unfair prejudice and will not confuse the issues, mislead the jury, or cause undue delay or waste of time.
The evidence of other crimes involving defendant‘s stepdaughter and her friend, who were six or seven years old at thе time, established identity, proved intent, guilty knowledge, motive, system, scheme, opportunity, and/or acts tending to show the defendant‘s “lustful disposition” in accordance with
Conclusion
For the reasons set forth above, defendant‘s conviction and sentence are AFFIRMED.