State v. RankinState v. Rankin
Oliver Rankin was charged in a single bill of information with two counts of molestation of a juvenile over whom he had control or supervision, violations of
The record reveals that the victim of Count I, (victim one), was defendant‘s stepdaughter. The victim of Count II, (victim two), was a girl who lived in the same neighborhood as defendant in Zachary, Louisiana. On November 17, 1988, the date of trial, victim one was twelve yеars old, and victim two was ten years old. A friendly relationship existed between the families of both victims. Defendant frequently baby-sat for victim two.
On November 3, 1987, victim two disclosed in private to her Zachary Elementary School teacher thаt defendant had been “touching [her] where he shouldn‘t.” The teacher took the child to the assistant school principal. The disclosure was reported to the police. Defendant was placed under arrest for molestаtion of a juvenile and advised of his constitutional rights.
On November 3, defendant‘s wife, victim one‘s mother, questioned victim one to determine whether or not defendant had been sexually involved with her. Initially, victim one denied any such involvement; however, on the following day, victim one told her mother that defendant had molested her.
In regard to victim one (Count I), the record reflects that defendant started “touching” her when she was about seven years old, that that conduct escalated to sexual intercourse with her at age nine; and that sexual intercourse occurred about once a month, continuing until about the end of May of 1987. According to victim two (Count II), defendant‘s involvement with her occurred at sevеral different times and locations. Victim two testified that defendant used to put his hands on her “privates.” Victim two stated that this conduct consisted of defendant grabbing her on the outside of her underpants; and, at least once, defendant рut his hands inside her underpants. On at least one occasion,
A trial court‘s reasons in imposing sentence, as required by
On the day preceding sentencing, the trial court conducted a hearing at which defendant‘s sisters, Hulene Mayfield and Johnnie Mae Wood, testified on defendant‘s behalf. Both women gave testimony supporting suspended sentences and probation. At the conclusion of the testimony of defendant‘s sisters, the trial court noted that it was taking judicial cognizance of the evidence introduced at defendant‘s trial. The court noted that it was in possession of a letter addressed to the prosecutor from an out-of-state family which the prosecutor had provided the court concerning an alleged molestation of the fаmily‘s child by defendant. Defense counsel acknowledged that he had been given an opportunity to read the letter and that he had read it. The court marked and filed the letter in evidence.
The following day, the trial court recоnvened the matter of defendant‘s sentencing. Both defense counsel and defendant declined the court‘s offer to them to make a statement prior to sentencing. In its initial sentencing remarks, the trial court noted that it had taken intо consideration defendant‘s sisters’ testimony (concerning their knowledge of defendant and lack of knowledge of defendant having previously done anything like the instant offenses). The court noted that the sisters were speaking through sisterly lоve and wanted defendant to be released.
The court took into consideration the ages of the victims of the instant offenses and that of defendant, i.e. that defendant was fifty-three years old.2 The court stated
In additional sentencing reasons, the trial court indicated that defendant‘s status as a first felony offender mitigated in defendant‘s favor. However, the court noted that defendant had been tried by jury in another state and found not guilty on a charge similar to the сharges in Counts I and II in the instant case. As to that acquittal, the court opined that it shows a tendency of defendant to commit these types of offenses, a factor which the court had taken into consideration in imposing the instant sentences. The trial court found that there was an undue risk that during any suspended sentence defendant would commit other crimes of a similar nature as exhibited by defendant‘s past and information which the court had received from other victims. The court opined that defendant‘s desires are uncontrollable and that defendant will attempt to commit the same type of crime in the future. The court indicated that any lesser sentence would deprecate the seriousness of the offenses and that defendant was in need of correctional treatment in a custodial environment best provided by commitment to a correctional institution. In imposing each of the sentences, the court sрecifically stated that probation was not in order.
ALLEGED NON-COMPLIANCE WITH LSA-C.CR.P. art. 894.1
Although defendant argues that the trial court erred by failing to comply with the sentencing criteria in
Thus, defendant‘s argument that the trial court failed to comply with
ALLEGED IMPROPER SENTENCING FACTORS
Defendant also asserts that the trial court considered factors which were improper, i.e., (1) the information in the letter concerning an alleged out-of-state child molestation victim of defendant, and (2) defendant‘s trial and acquittal in another state on a similar charge, as showing a tendency of defendant to commit these type of offеnses.
The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. Douglas, 389 So.2d 1263, 1267 n. 2 (La. 1980). Prior criminal activity is one of the factors under
Accordingly, we find no error in the trial court‘s consideration of the contents of the letter concerning the alleged out-of-state child victim. Moreovеr, other than asserting that the letter‘s contents
However, we find merit in defendant‘s argument relating to the other alleged improper sentencing factor, i.e., the trial court‘s consideration of a prior trial and acquittal on a similar charge, as showing the tendency of defendant to commit sex offenses of the same type as those in the instant case. While the trial court could properly have relied upon evidence introduced in a trial on a criminal charge for which defendant was acquitted, see United States v. Bernard, 757 F.2d 1439 (4th Cir.1985) and State v. Frost, 306 N.W.2d 803 (Minn.1981), the record does not indicate that the trial court relied on evidence introduced in such a trial. Instead, the record shows only that the trial court simply referred to defendant as having previously been tried and acquitted on a similar charge. Accusation of criminal reliance on evidence introduced in the trial at which the accused was acquitted, is impermissible as a sentencing consideration for subsеquent conduct resulting in a criminal conviction. See Smith v. State, 308 Md. 162, 517 A.2d 1081 (1986). Cf. State v. Williams, 397 So.2d 1287, 1294 (La.1981).
For the foregoing reasons, we affirm defendant‘s convictions but vacate his sentence on both counts and remand this matter for resentencing in a manner not inconsistent with the views expressed herein. Cf. State v. Brand, 506 So.2d 702 (La.App. 1st Cir.), writ granted, 512 So.2d 445 (La. 1987), affirmed, 520 So.2d 114; State v. Vampran, 459 So.2d 1333 (La.App. 1st Cir. 1984).
CONVICTIONS AFFIRMED, SENTENCES VACATED, REMANDED FOR RESENTENCING.
LANIER, J., concurs in part, dissents in part and assigns reasons.
LANIER, Judge, concurring in part and dissenting in part.
I dissent from that portion of the majority opinion that holds that the trial judge erred by considering a similar charge for which the defendant was acquitted, vacates the sentenсe and remands for resentencing. In all other respects, I agree with the opinion. See State v. Jackson, 540 So.2d 533 (La.App. 4th Cir.), writ denied, 548 So.2d 1228 (La.1989); State v. Bouie, 532 So.2d 791 (La.App. 4th Cir.1988).