STATE of Louisiana v. Charles HOLSTEAD.
No. 59474.
Supreme Court of Louisiana.
December 27, 1977.
354 So. 2d 493
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Parkerson, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
CALOGERO, Justice.
Charles Holstead was charged by bill of information with seven counts of indecent behavior with juveniles in violation of
Because the total of the sentences imposed on the accused exceeds five hundred dollars (and in event of default, exceeds six months), defendant has a right of appeal.
ASSIGNMENT OF ERROR NO. 1
Defendant contends that the trial judge erred in denying his motion for a severance in which he alleged that he could not obtain a fair trial if tried simultaneously on the seven counts contained in the bill of information. In that motion he alleged that the
When a criminal defendant has been charged in a single indictment with multiple offenses pursuant to
“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant‘s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant‘s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”
Because we now consider this article in relation to a pretrial motion for severance, it is the standard of section (a) which applies: namely, whether severance is “deemed appropriate to promote a fair determination of the defendant‘s guilt or innocence of each offense.”
In relation to the first question, when a defendant claims that the number and complexity of the charges against him should cause the trial judge to grant him a severance of the offenses for separate trials, we have said that an appellate court evaluating the judge‘s denial of defendant‘s motion will examine the case for these problems:
“the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. See: United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974); United States v. Clayton, 450 F.2d 16 (1st Cir. 1971); Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); United States v. Lotsch, 102 F.2d 35 (2nd Cir. 1939); United States v. Moreton, 25 F.R.D. 262 (W.D.N.Y.1960); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore‘s Federal Practice §§ 8.05[2], 14:03. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these
dangers. 8 Moore‘s Federal Practice § 8.02[1].” State v. Proctor, supra at 491.
In the case now before us, defendant Holstead was charged with committing on separate occasions lewd and lascivious acts with seven young girls. The evidence in the case consisted primarily of the testimony of the seven victims who each described a number of occurrences which were simple, clear and largely identical in nature. The offense proscribed by
In the case at bar, defendant Holstead was accused of committing lewd and lascivious conduct with and in the presence of seven young girls, all of whom were about twelve years old.
The respective incidents with each of the children, or one or more such incidents, however seemingly sexually oriented, might nonetheless have been viewed by the fact-finder, constrained to acquit absent proof beyond a reasonable doubt, as not fully purposeful or clearly designed to arouse or gratify sexual desires. It was therefore advisable and proper for the state to introduce
For these reasons, we find that the crimes in question were mutually admissible as similar acts under
ASSIGNMENTS OF ERROR NOS. 2 AND 4
Defendant contends that the trial judge erred in denying his motions to quash the bill of information. In that motion he alleged, inter alia, that the statute pursuant to which he was charged, namely
Indecent behavior with juveniles is defined in
“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child‘s age shall not be a defense.” (emphasis added)
Defendant‘s contention that the terms “lewd” and “lascivious” in
The words “lewd” and “lascivious” found in the statute are not vague and indefinite. On the contrary, they have a well defined, well understood, and generally accepted meaning, and by their use an accused is informed of the nature of the act he is alleged to have committed. The word “lewd” means lustful, indecent, lascivious, and signifies that form of immorality which has relation to sexual impurity or incontinence carried on in a wanton manner. The word “lascivious” means tending to excite lust, lewd, indecent, obscene, relating to sexual impurity, tending to deprave the morals in respect to sexual relations. See Black‘s Law Dictionary (DeLuxe Ed.). Moreover, we are entitled to study these words in their context, and, when we do this, there can be no possible doubt as to their import here. These words are used in the statute to describe an act done “with the intention of arousing or gratifying the sexual desires“, so that, by the bill of information as worded, the accused is fully informed of the nature and cause of
the offense charged, that is, that he is charged with having done an act upon the person of a juvenile which is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.
Likewise in State v. Milford, 225 La. 611, 73 So.2d 778 (1954), and State v. Saibold, 213 La. 415, 34 So.2d 909 (1948),
ASSIGNMENTS OF ERROR NOS. 3 AND 6
Defendant contends that the trial judge erred in denying his motions to quash the bill of information and his motion in arrest of judgment. He argues that the motions should have been granted in that the bill of information was fatally defective since it omitted an essential element of the crime of indecent behavior with a juvenile, namely that defendant was over the age of seventeen. The state contends that defendant did not raise this alleged deficiency timely in that it was not asserted by him at the hearing on the motion to quash the bill of information. Rather the state argues that because defendant raised the specified deficiency in the bill of information for the first time at the close of the state‘s evidence in his motion for a directed verdict of acquittal the issue was not timely raised and was thereby waived.
The bill of information charged defendant with seven counts of committing lewd and lascivious acts upon the persons and in the presence of seven named juveniles under the age of seventeen with the intention of arousing and gratifying the sexual desire of either him or the respective seven persons in violation of
As stated in State v. Edwards, supra, the fact that a defendant is over the age of seventeen is an essential element of the crime of indecent behavior with juveniles in violation of
ASSIGNMENTS OF ERROR NOS. 5 AND 7
Defendant contends that the trial court erred in admitting in evidence the testimony
The minutes reflect that prior to trial the state gave notice of its intention to introduce inculpatory statements made by defendant. Although such notice was not filed in the record, the transcript of the trial reveals that such statements were made by defendant on May 12, 1976 at approximately 4:45 p. m. at the Ouachita Parish Courthouse. At trial Deputy Sheriff Alfred Calhoun testified that about 3:45 p. m. on the above mentioned date he questioned defendant at the courthouse in the presence of Deputy John Rutledge and Louis George. He testified that prior to this questioning defendant was orally advised of his Miranda rights. Defendant indicated that he understood them and expressed a desire to speak. Defendant then was asked his age and date of birth, to which he responded that he was forty-eight years old and was born on September 12, 1927. After about an hour of questioning defendant was presented with a waiver of rights form which he read and signed. A recorded statement was then taken from him.
Defense counsel objected to this testimony solely on the grounds that defendant‘s statement as to his age was an inculpatory statement of which the state had failed to give adequate notice of its intention to introduce, and that such statement had been made prior to defendant‘s being informed of his Miranda rights. In overruling these objections the trial court noted that the notice given by the state was sufficient in that it stated that inculpatory statements made by defendant on May 12, 1976 at approximately 4:45 p. m. would be introduced and that the evidence established that defendant was advised of his Miranda rights prior to interrogation.
Defendant did not object to the testimony of Deputy Sheriff Calhoun on the grounds that such testimony constituted hearsay and went beyond the allegations contained in the bill of information. Rather, these bases of the objection were raised for the first time on appeal. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Marks, 337 So.2d 1177 (La.1976); State v. Powell, 325 So.2d 791 (La.1976). Hence, they are not subject to review.
The record clearly indicates that defendant was questioned concerning his age and date of birth after he was advised of his Miranda rights. With respect to his contention that the notice which was served upon him as required by
In the first place, we doubt that an admission of one‘s age is an inculpatory statement that must be noticed under
In view of Deputy Sheriff Calhoun‘s admissible testimony as to defendant‘s age and date of birth, there was some evidence as to the complained-of element of the crime of indecent behavior with juveniles, namely, defendant‘s age.
For the above reasons, assignments of error numbers five and seven are without merit.
For the reasons assigned, we affirm defendant‘s convictions and sentences.
AFFIRMED.
DIXON, J., concurs.