OF CERTIORARI TO THE COUT OF APPEAL, THIRD CIRCUIT, PARISH OF
State charged defendant with simple kidnapping, La.R.S.
14:45, and indecent behavior with a juvenile, La.R.S. 14:81.
The charges arose from an incident involving 13-year-old A.G.
on April 17, 2014, after she ran away from home while her
mother was out. A.G. left the house on foot with a suitcase
and began walking along Highway 171 in Beauregard Parish
toward a friend's house. Defendant approached A.G. in his
car and offered her a ride. He took her to Dairy Queen and
bought food for her. Then he took her to his apartment.
to A.G., defendant rubbed her thigh as they sat on his couch.
After A.G. complained that her mother would not let her dye
her hair, defendant took her to Wal-Mart where he purchased
hair dye for her and then returned to his apartment where he
helped her apply it. They sat on the couch again where
defendant hugged A.G., kissed her on the cheek, and tickled
her. He later slapped her rear end when she stood up.
Defendant also told A.G. that he loved her and offered to let
her spend the night. Eventually, defendant delivered A.G. to
her friend's house, where her friend's mother made
the distraught child call the Beauregard Parish Sheriff's
Department. Deputies, posing as A.G., arranged through text
messages to meet defendant and arrested him after he
initially tried to flee from them.
Beauregard Parish jury found defendant guilty as charged. The
trial court sentenced defendant to five years imprisonment at
hard labor, with two years suspended, for simple kidnapping,
and to seven years imprisonment at hard labor, with three
years suspended, for indecent behavior. The court of appeal
vacated the conviction for indecent behavior and found that
the five-year sentence for simple kidnapping was excessive.
State v. Shaikh, 15-0687 (La.App. 3 Cir. 3/23/16),
188 So.3d 409. The appellate panel determined that there was
no evidence "Shaikh attempted to get A.G. to touch him
in a sexual way or that he tried to touch her breast or
genitals, [no evidence] indicating that Shaikh made sexual
remarks or inappropriate suggestions, [and no evidence] that
he tried to take off her clothes." Shaikh,
15-0687, p. 16, 188 So.3d at 421. Therefore, the panel
concluded that the State failed to present sufficient
evidence defendant committed any "lewd or
lascivious" act upon A.G. for the purpose of arousing or
gratifying his sexual desires.
court of appeal also found that the imposition of the maximum
(albeit partially suspended) sentence for defendant's
simple kidnapping conviction was excessive. The panel
observed that "there was no evidence showing that Shaikh
denied A.G. the opportunity to leave, " and "no
evidence that Shaikh possessed a criminal history during the
fifteen years he resided in the United States."
Shaikh, 15-0687, p. 26, 188 So.3d at 426. Thus, the
panel opined that the "five-year sentence is also out of
line with other sentences imposed in factually similar
that the court of appeal erred in both determinations. To
prove defendant guilty of indecent behavior with a juvenile,
the State was required to prove defendant committed 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.
R.S. 14:81(A), (A)(1). The ages of defendant and the victim
are not in dispute. In dispute is whether the evidence, when
viewed in the light most favor to the State under the due
process standard of Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), supports the
jury's determination that defendant acted in a manner
that was lewd or lascivious and intended to arouse his or
A.G.'s sexual desires.
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." State v. Prejean, 216 La. 1072, 1078,
45 So.2d 627, 629 (1950). "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." Id. All manner of
obnoxious behavior has been held to constitute "lewd and
lascivious conduct." See, e.g., State v.
Robinson, 43, 063, p. 8 (La.App. 2 Cir. 2/13/08), 975
So.2d 853, 858 (defendant groped the victim, called her
"baby", and commented that he could not help
himself); State v. Guillory, 07-0422, pp. 1-2
(La.App. 3 Cir. 10/31/07), 970 So.2d 670, 672 (teacher
brushed a student's legs with papers and asked her if it
tingled and how it made her feel "below");
State v. Forbes, 97-1839, pp. 3-4, 6-7 (La.App. 1
Cir. 6/29/98), 716 So.2d 424, 427 (finding a rational trier
of fact can conclude defendant committed a lewd and
lascivious act by reaching under the victim's t-shirt to
touch her breasts and reaching into her underpants to touch
the area below her naval near her vagina); State v.
Sturdivant, 27, 680, pp. 1-2 (La.App. 2 Cir. 2/28/96),
669 So.2d 654, 656 (a parent, while receiving a school tour,
made sexual comments to a 13-year-old and then groped her);
State v. Kohl, 524 So.2d 781, 784 (La.App. 3 Cir.
1988) (defendant's rubbing of his beard on crotch of
sleeping victims sufficient to prove violation of R.S.
defendant hugged the victim and kissed her on the cheek, but
did not touch her genitals. Although courts have found that
mere kissing or hugging alone does not rise to the level of
lewd or lascivious, see, e.g., State v. Louviere,
602 So.2d 1042 (La.App. 4 Cir.1992), writ denied,
610 So.2d 796 (La. 1993), defendant engaged in a subtle but
panoply of acts from which a jury, when viewing his conduct
as a whole, could rationally find his behavior was lewd or
lascivious. Notably, defendant also rubbed A.G.'s thigh,
slapped her on her rear end, professed his love for her, and
invited her to spend the night with him. While defendant
argues that the State failed to rule out the reasonable
hypothesis of innocence that by touching the girl he was
merely trying to comfort an upset runaway, his verbal
expression of his romantic feelings and his invitation to
spend the night with him are at odds with that hypothesis. A
reasonable alternative hypothesis is not one that merely
"could explain the events in an exculpatory
fashion, " but one that, after viewing all of the
evidence in a light most favorable to the prosecution,
"is sufficiently reasonable that a rational juror could
not 'have found proof of guilt beyond a reasonable
doubt.'" State v. Captville, 448 So.2d 676,
680 (La. 1984) (quoting Jackson v. Virginia).
Finding that the court of appeal erred in substituting its
appreciation for the totality of defendant's actions and
statements in their context for that of the jury, we
reinstate the conviction for indecent behavior with a
juvenile. See generally State v. Bugbee, 34, 524,
pp. 7-8 (La.App. 2 Cir. 2/28/01), 781 So.2d 748, 755
("Finding that an act is lewd or lascivious depends upon
the time, the place and all of the circumstances surrounding
its commission, including the actual or implied intention of
the actor.") (further citation omitted).
State also contends that the court of appeal erred by finding
defendant's simple kidnapping sentence excessive. It
argues that the court of appeal substituted its own judgment
of an appropriate sentence for that of the trial court
without explaining what made the sentence excessive. As such,
it infringed on the trial court's broad discretion. We
agree. Under established Louisiana jurisprudence, a sentence
is unconstitutionally excessive when it imposes punishment
grossly disproportionate to the severity of the offense or
constitutes nothing more than needless infliction of pain and
suffering. State v. Bonanno, 384 So.2d 355, 357 (La.
1980) (further citation omitted). The trial judge has broad
discretion, and a reviewing court may not set sentences aside
absent a manifest abuse of discretion. State v.
Cann, 471 So.2d 701, 703 (La. 1985).
ruling finding the sentence excessive, the court of appeal
did not find the sentence to be grossly disproportionate to
the severity of the offense. It only found that the sentence
was longer than sentences imposed in cases it found to be
factually similar. It provided no other reason for vacating
the sentence and remanded the case with a suggestion that a
two-year sentence was more appropriate.
it may be true that the sentence is longer than those imposed
in other cases, this fact alone does not demonstrate a
manifest abuse of discretion on the part of the trial court.
Moreover, it is important to note that while defendant
received the maximum sentence, the trial court suspended 40%
of that sentence. Thus, defendant will likely serve far less
than the five years imposed. Under the circumstances, the
sentence is an acceptable exercise of the trial court's
broad discretion. Therefore, we reinstate the sentence for
simple kidnapping as originally imposed. Because defendant
argued on appeal that his sentence for indecent behavior is
excessive, which issue the court of appeal did not reach
because it vacated the underlying conviction, see
Shaikh, 15-0687, p. 24, 188 So.3d at 425
("Shaikh's assignment of error with respect to the
sentence imposed for indecent behavior of a juvenile is moot
given our reversal and vacating of same."), we remand
this matter to the court of appeal for consideration of this