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State v. Kelly

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

STATE OF LOUISIANA
v.
ASHAKI OKUNG KELLY

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 9053-13. HONORABLE WILFORD D. CARTER, DISTRICT JUDGE.

John Foster DeRosier, District Attorney, Karen C. McLellan, Assistant District Attorney, 14th Judicial District Court, Lake Charles, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana.

Douglas Lee Harville, Louisiana Appellate Project, Shreveport, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: Ashaki Okung Kelly.

Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges. Amy, J., concurs in part, dissents in part and assigns reasons.

OPINION

Page 1258

[14-522 La.App. 3 Cir. 1] CONERY, Judge.

On March 14, 2013, a Calcasieu Parish Grand Jury indicted Defendant, Ashaki Okung Kelly, charging him with three counts of aggravated rape of D.V.,[1] a juvenile victim under the age of thirteen with date of birth May 29, 2000, in violation of La.R.S. 14:42.[2] The grand jury also

Page 1259

charged Defendant with three counts of oral sexual battery of juvenile victim A.V. The trial court conducted a bench trial pursuant to stipulation of the parties on May 21, 2013, and found Defendant guilty of the responsive verdict[3] of one count of a lesser-included offense, molestation of the juvenile, D.V., in violation of La.R.S. 14:81.2 with offense date of November 24, 2012. The court acquitted Defendant on all other charges.

At a sentencing hearing on October 2, 2013, the court sentenced Defendant to fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. On October 4, 2013, the court informed Defendant, in open court, regarding his duty to register as a sex offender.

Defendant now appeals his conviction, assigning two errors. Defendant's assignments of error lack merit and we affirm Defendant's conviction. We vacate Defendant's sentence, finding it to be an illegal sentence, and remand this case to the trial court for resentencing pursuant to La.R.S. 14:81.2(D)(1).

[14-522 La.App. 3 Cir. 2] FACTS AND PROCEDURAL HISTORY

Two sisters, D.V. and A.V., were living with their mother and her fiancé, Defendant herein. The two minor children claimed that Defendant inappropriately touched them while he was watching them when their mother was at work. Following an investigation, Defendant was charged by a Calcasieu Parish grand jury by bill of indictment with three counts of aggravated rape of D.V., a juvenile under the age of thirteen with date of birth May 29, 2000, and two counts of oral sexual battery of A.V., in violation of La.R.S. 14:42 and 14:43.3, respectively. Defendant waived his right to a jury trial and his case proceeded to a bench trial on May 21, 2013. The grand jury indictment alleged and the evidence at trial showed through the testimony of D.V. that Defendant had inappropriately touched her on November 24, 2012, and that she had timely reported that incident to her mother and to the authorities. Further, D.V. testified at Defendant's May 21, 2013 trial that she was twelve years old when the November 24, 2012 incident occured.

Based on the evidence presented at trial, the trial court found Defendant guilty of the responsive verdict of molestation of a juvenile. It was uncontradicted that D.V.'s date of birth was May 29, 2000, and that the date of molestation was November 24, 2012. Therefore, there was no factual dispute that the victim was twelve at the time of the incident on November 24, 2012, as well as the fact that the victim was under the control and supervision of Defendant at all times pertinent hereto.

Louisiana Revised Statutes 14:42 defines aggravated rape, in pertinent part, as:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is [14-522 La.App. 3 Cir. 3] deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
. . . .
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.

Molestation of a juvenile is a proper responsive verdict to aggravated rape. La.Code Crim.P. art. 814. Louisiana Revised Statutes 14:81.2 defines molestation of a juvenile, in pertinent part, as:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act

Page 1260

upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

The legislature has set forth enhanced penalties for molestation of a juvenile where, as here, the victim is under the age of thirteen:

D. (1) Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninetynine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.

La.R.S. 14:81.2(D)(1).

Following the trial court's entry of the responsive verdict of molestation of a juvenile pursuant to La.Code Crim.P. art. 814 and La.R.S. 14:81.2, the trial court held a post-trial status conference on June 12, 2012, wherein the trial court acknowledged that the mandatory minimum sentence for molestation of a juvenile under thirteen was twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court then requested that the State and [14-522 La.App. 3 Cir. 4] Defendant meet to see if an agreement on a lesser sentence could be reached, presumably in accordance with La.Code Crim.P. art. 890.1(A)(2):[4]

But I'm not really inclined to give him the 25 years if I can get around it. Okay. But I think he ought to have some substantial time.
It would be really nice if y'all could work out a sentencing recommendation and just let me sentence the man to that and be done with it. And it wasn't 25 years but it wasn't 10 years either, okay. It was somewhere in between that, that I thought would be an appropriate sentence based on what we have.
So y'all talk about it. If y'all can't work it out then I'll deal with it. I will have a motion for a new trial and I can consider that. But I'm gonna use the resources the Court has within the discretion of the Court in order to accomplish what the Court thinks is fair in this case. And I think a fair sentence would be between 10 and 25 years, but not 24 25 years and not ten years. So y'all talk.

No such agreement to reduce sentence was reached, nor was it permissible in this case, as La.Crim.P. art. 890.1(D) provides, " D. The provisions of this Article shall not apply to a sex offense as defined in R.S. 15:541 or to any of the following crimes of violence." The definition of " sex offense" as set forth in La.R.S. 15:541(24)(a) includes La.R.S. 14.81.2, molestation of a juvenile.

Defendant then filed post-trial motions, including a motion to reconsider verdict and/or a motion for a new trial, and a hearing was set for the same day as sentencing. The trial court heard and denied all post-trial motions on October 2, 2013, refused to reconsider its verdict, and reaffirmed its verdict that there was sufficient evidence presented at trial to prove Defendant

Page 1261

guilty of molestation of the juvenile D.V. beyond a reasonable doubt.

[14-522 La.App. 3 Cir. 5] At sentencing on October 2, 2013, the trial court attempted to " take back" the finding that the victim was under the age of thirteen. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that facts that could potentially increase the penalty for the crime charged beyond the maximum must be submitted to the jury and proven beyond a reasonable doubt to be able to be used by the judge when sentencing the defendant. The grand jury indictment specifically alleged that the victim's date of birth was May 29, 2000. The indictment alleges on its face that the victim was twelve at the time of the alleged offense with a date of November 24, 2012, and, indeed, those dates were not in controversy. See State v. Breaux, 13-917, 131 So.3d 1135 (La.App. 3 Cir. 2/12/14) (unpublished opinion) (holding that there was sufficient evidence that the victim was under the age of thirteen at the time of the crime, substantiating the enhanced penalty under molestation of a juvenile); State v. Moses, 13-54, p. 5, 115 So.3d 102 (La.App. 3 Cir. 6/5/13) (unpublished opinion) (holding that " Because Defendant was the only adult present, and [the victim's mother] allowed [the victim] to leave home with Defendant, Defendant had supervision and control of N.M." ).

As to the post-trial motions filed, a motion for post judgment verdict of acquittal[5] can be used by a defendant after a jury enters a verdict of the crime charged, but not after a bench trial, as in this case. There is no procedural mechanism for a motion to reconsider verdict. See State v. Williams, 04-1377 (La.App. 4 Cir. 12/1/04), 891 So.2d 26). In Williams, the fourth circuit stated:

Unlike a civil case where a trial judge may change his or her mind after rendering a judgment in a bench trial within the time delays for a new trial, the legislature has provided no procedural mechanism for a [14-522 La.App. 3 Cir. 6] defendant to seek a reversal of a conviction decision made in a bench trial.

Id. at 32.

While a trial court has discretion to grant a new trial for sufficient grounds alleged pursuant to La.Code Crim.P. art. 851,[6] no such grounds were alleged in this

Page 1262

case. In fact, the motion in question is not in the record. In any event, the trial court denied the motions and upheld the verdict of molestation of a juvenile. We note that the trial court had no specific procedural basis on which to " take back" his Apprendi finding that the victim was under the age of thirteen. Indeed, the victim's date of birth was not at issue and is not in the category of factual findings that can be " taken back," absent proof that the date of birth was factually incorrect. [14-522 La.App. 3 Cir. 7] Here, both the victim and the mother testified that the victim was twelve years old at the time of the incident. The grand jury indictment alleged and the trial court had specifically noted the victim's date of birth and the date the offense was committed:

However, I do think it has been established beyond a reasonable doubt, to me, that the defendant is guilty of molestation of a juvenile, and I think that juvenile was D. C.[7] Her date of birth is 5/29/2000.
. . . .
And so therefore I will find him guilty, because I think sufficient evidence supports beyond a reasonable doubt conviction only on this charge, molestation on the person of D. V. on [November] 24th, 2012, within the bill of information, in Calcasieu Parish. She said it happened Saturday. She was staying on Winterhalter Street, and so I think all elements of that crime was proven. So I find him so guilty -- so find the defendant guilty of that charge.

(Emphasis added.) Nevertheless, the trial court later stated at the October 2, 2013 sentencing hearing:

So the defendant is before the court for sentencing and let the Court note the record -- that the Court found the defendant guilty of molestation of a juvenile with a date of offense being November 24, 2012. That was the Court's finding. Okay?
So I'm going to sentence him consistent with that finding. The Court did not make a finding that he was guilty of molestation of a juvenile of a person under the age 13. That was not a court finding.
The Court was very specific in its finding. The Court finds the defendant guilty of molestation of a juvenile with an offense date occurring on the - - where is that? I've got it right here - - of November the 24th, 2012 . Now I go to the statute and look at molestation of a juvenile.
. . . .
[14-522 La.App. 3 Cir. 8] 81.2. It says, " Whoever commits the crime of molestation of a juvenile, when the victim is 13 years of age or older but has not yet attained the age of 17, shall be fined not more than $5,000 or imprisonment with or without hard labor for not less than five years nor more than ten years." If it's under the age of 13, of course, it's 25 to life.
The Court did not make a finding that the victim was under the age of 13, that the victim - -
. . . .
Let me read this other statute. (Reviewing statute.) Okay. So the Court finds that the defendant, sir, you are guilty of molestation of a juvenile, and that the Court also will find - - did not make a finding under age 13 but certainly was under the age of 17. So your sentencing range is from 5 to 20 years. And the Court will sentence you therefore to 15 years Department of Corrections,

Page 1263

without the benefit of parole, probation or ...

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