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State v. Steward

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

STATE OF LOUISIANA Appellee
v.
ANGELO L. STEWARD Appellant

         Appealed from the Thirty-Ninth Judicial District Court for the Parish of Red River, Louisiana Trial Court No. 130, 282 Honorable Lewis O. Sams, Judge

          LOUISIANA APPELLATE PROJECT By: George D. Ross Counsel for Appellant.

          JULIE C. JONES District Attorney, J. CHRIS GUILLET Assistant District Attorney Counsel for Appellee.

          Before BROWN, MOORE and PITMAN, JJ.

          MOORE, J.

         Angelo L. Steward appeals his convictions and sentences on one count of attempted aggravated rape and one count of indecent behavior with juveniles. Finding a fatal defect in the aggravated rape prosecution, we vacate that conviction and sentence and remand for further proceedings. For the reasons expressed, we affirm the conviction and sentence for indecent behavior with juveniles, but remand for compliance with sex offender registration and notification requirements.

         The Aggravated Rape Prosecution

         The state charged Steward by bill of information with one count each of aggravated rape, [1] indecent behavior with juveniles and second degree sexual battery. The state later amended the bill to drop the charge of second degree sexual battery, and proceeded to trial before a 12-member jury. After deliberating 4½ hours, the jury returned a responsive verdict of guilty of attempted aggravated rape and guilty as charged of indecent behavior with juveniles.

         By his first assignment of error, Steward urges the conviction for attempted aggravated rape should be reversed and vacated as the original charge, aggravated rape, was improperly instituted by bill of information rather than by indictment. The state concedes this error, but suggests that Steward's failure to assert it prior to appeal should constitute a waiver.

         The Louisiana Constitution guarantees that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. La. Const. Art. I, § 15. The Code of Criminal Procedure likewise provides that prosecution for an offense punishable by death or by life imprisonment shall be instituted by grand jury indictment. La.C.Cr.P. art. 382 A. Aggravated rape carried a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. La. R.S. 14:42 D(1). Prosecution for aggravated rape, therefore, could be instituted only by grand jury indictment, not by bill of information. State v. Donahue, 355 So.2d 247 (La. 1978); State v. Ruple, 437 So.2d 873 (La.App. 2 Cir. 1983); State v. Underdonk, 2011-1598 (La.App. 1 Cir. 3/23/12), 92 So.3d 369, writ denied, 2012-0910 (La. 10/8/12), 98 So.3d 848. This is a fatal error which may not be waived by the defendant or cured by a responsive verdict of a lesser included offense which could have been charged by bill of information. State v. Stevenson, 334 So.2d 195 (La. 1976); State v. Ruple, supra; State v. Underdonk, supra.

         Under the circumstances, this court is required to vacate the conviction and sentence for attempted aggravated rape. We remand the case to the district court for further proceedings.

         Indecent Behavior with Juveniles - Factual Background

         In 2013, 8-year-old SG was living with her mother, CG, and her stepfather, Chris Steward, in Natchitoches. In late July of that year, SG told her grandmother that Chris had touched her inappropriately. The grandmother reported this to Natchitoches police; Sgt. Jessica Williams referred SG to Project Celebration, a child advocacy center in Many. The executive director, Mitzi Harris, arranged a videotaped forensic interview of SG on July 31, 2013. Ms. Harris testified at trial that the person who actually conducted the interview, a Ms. Goins, was a licensed forensic interviewer and that other protocols were observed.

         During the interview, SG spontaneously reported that her stepfather's brother, Angelo Steward, the defendant, had molested her earlier, when he was babysitting her in Coushatta, where the family previously lived. On the video, SG stated that Uncle Angelo "put his pee pee in my pee pee and my butt, " put his "pee pee in my mouth, " "white stuff came out, " "told me to lick it" and then to "go brush my teeth"; he then told her not to tell this to anybody or else he would go to jail. SG also stated that he showed her a cell phone picture of a girl who ...


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