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State v. Mace

Court of Appeals of Louisiana, Third Circuit

December 7, 2017

STATE OF LOUISIANA
v.
CHRISTOPHER SHON MACE

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 40406-11 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

          John Foster DeRosier Fourteenth Judicial District Court District Attorney Elizabeth Brooks Hollins Carla Sigler Assistant District Attorneys FOR PLAINTIFF-APPELLEE: State of Louisiana

          Christopher Hatch The Hatch Law Firm FOR DEFENDANT-APPELLANT: Christopher Shon Mace

          Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.

          ELIZABETH A. PICKETT JUDGE

         FACTS

         On October 17, 2011, the victim's mother took time off from work for a doctor's appointment. After seeing the doctor, she drove home, but when she entered, she heard the teenaged victim, D.R., "scream that [M]om's home."[1] She saw the girl run to the bathroom and realized she was naked from the waist down. The defendant, Christopher Shon Mace, who was D.R.'s stepfather, was in his underwear. He stated the situation was not what it appeared to be, but then suggested that he was teaching D.R. about sex. He also stated that it was a mistake. D.R. never discussed the matter in detail with her mother, but the subsequent investigation revealed that the defendant had engaged in multiple sex acts with D.R. on multiple dates.

         On December 1, 2011, a Calcasieu Parish Grand Jury indicted the defendant Christopher Shon Mace for three counts aggravated incest, at that time violations of La.R.S. 14:78.1.[2] On July 21, 2015, the parties selected a jury. On July 22, 2015, proceedings began with opening statements and sequestration of the witnesses. However, the state advised that it had learned of a new witness. As will be discussed in more detail below, the defendant moved for a mistrial, which the court granted.

         On January 12, 2016, the parties selected a jury for the second trial; the next day, said jury began hearing evidence. On January 15, 2016, it found the defendant guilty as charged. The district court sentenced the defendant on March 11, 2016, ordering him to serve three concurrent sixteen-year sentences. Four years are suspended, and the defendant is to be placed on supervised probation for five years.

         The defendant now seeks review by this court, assigning four errors.

         ASSIGNMENTS OF ERROR

1. The evidence adduced at trial is insufficient to support Defendant's multiple convictions for aggravated incest.
2. The trial court erred when it denied Defendant's motion to quash; double jeopardy prohibited the retrial of Defendant after the mistrial in Defendant's first trial.
3. This matter should be remanded for resentencing because Defendant's sentence is unconstitutionally excessive.
4. The trial court erred when it declined to conduct an in camera inspection of the grand jury proceedings in the case for exculpatory impeachment evidence.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

         A payment plan was not established for the $2, 500.00 fine, court costs, and $150.00 presentence investigation report fee imposed as conditions of probation. In State v. Arisme, 13-269, pp. 3-4 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259, 1262, this issue was addressed by this court:

First, as a condition of probation, the trial court ordered a $250.00 fee to the Louisiana Crime Lab, for which a payment plan was not established. In State v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held in pertinent part:
When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).
We view this procedure as no different from payment plans for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La.5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim's fund, Indigent Defender Board, and District Attorney).
We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.
Similarly, the trial court's ordering the payment to the crime lab fund during the period of probation is an insufficient payment plan. We also remand the case to the trial court for establishment of a payment plan for these costs, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.
This issue has been similarly resolved in other cases. See State v. LaCombe, 09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La.12/17/10), 51 So.3d 16. Accordingly, we remand this case to the trial court for the establishment of a payment plan for the fee, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. See Stevens, 949 So.2d 597.

         This case is remanded to the trial court for the establishment of a payment plan for the aforementioned fine, court costs, and fee imposed as conditions of probation, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court.

         ASSIGNMENT OF ERROR NUMBER ONE

         In his first assignment of error, the defendant argues the evidence adduced at trial was insufficient to support his multiple convictions. Specifically, he contends that the state failed to present evidence of the dates when all of the offenses occurred.

This court has explained the general analysis:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

         The state cites State v. Foshee, 99-1423, pp. 5-6 (La.App. 3 Cir. 4/5/00), 756 So.2d 693, 696, which explained:

This court has held that the date of the offense of aggravated rape of a child is not an essential element of that crime. State v. Johnson, 95-1002 (La.App. 3 Cir. 3/26/96); 670 So.2d 651. In State v. Dixon, 628 So.2d 1295 (La.App. 3 Cir.1993), this court upheld the defendant's conviction of aggravated rape of a seven-year-old victim even though no witnesses mentioned a specific date the crime was to have occurred. We concluded that all the testimony was related to the specific time frame within which the defendant had the continuing sexual relationship with the victim, and that specific dates were not necessary.
The date of offense is not a specific element of aggravated incest; thus, the holdings of Johnson and Dixon apply.

         In the present case, the most concrete evidence regarding dates was set forth through repeated references to the incident on October 17, 2011, mentioned above. Also, the victim testified that the sex acts with her stepfather had been going on for "a couple of months" before then. More specifically, she stated that she and the defendant had sex the week before the October 17 offense. She testified that the sex acts took place over the course of four months. Other testimony indicated that the improper sexual conduct began in May 2011. The medical testimony indicated that the victim had been sexually penetrated on multiple occasions.

         The facts of this case are analogous to the facts in State v. Navarre, 15-920, pp. 5-6 (La.App. 3 Cir. 4/6/16), 188 So.3d 478, 481- 82, writ denied, 16-800 (La. 5/1/17), 220 So.3d 742:

         Finally, the defendant argues:

An important fact to note is that the indictment states that Mr. Navarre committed this crime between the dates of September 9, 2009 and September 9, 2011. The Defendant was in jail from August 3, 2011, until February 2, 2012. . . . It would have been impossible for the Defendant to have committed any act after August 3, 2011, contrary to the indictment and the allegations of C[.]M.
As noted above, the credibility of a witness goes to the weight of the evidence. The jury observed and heard C.M. testify as to what happened to him. While C.M.'s parents testified that C.M. was known to lie to them on occasions, they both stated that he would lie to get himself out of trouble but never lied solely to get someone into trouble.
Casie Barfield, a detective with the Lafayette Parish Sheriff's Office, was the lead detective in this case. Detective Barfield worked in the juvenile section and had extensive training in the physical and sexual abuse of children. The detective scheduled and observed an interview with the children's advocacy center for C.M. The detective testified that C.M.'s trial testimony was consistent with what he told the police and the children's advocacy interviewer. The detective noted it was not unusual for victims of sexual abuse to supply more details at trial, nor was it unusual for victims to wait for a few years before speaking out about the abuse. Finally, the detective stated that in these situations parents of sexual abuse victims often get the facts confused. The detective had no reason to believe that C.M. was not telling the truth.
. . . .
The State proved all of the elements of aggravated rape beyond a reasonable doubt. The sexual acts commenced when the victim was ten or eleven years old. Defendant had oral and anal sex with the victim. Based on C.M.'s account, the indictment alleged that the acts were committed between September 9, 2009, two days before the victim's tenth birthday, and September 9, 2011, two days before the victim's thirteenth birthday. It is of no import that Defendant was in jail in August 2011. The indictment did not allege all of the offenses occurred in August 2011. According to C.M.'s testimony, the first act of rape occurred when he was ten or eleven. Defendant has failed to show internal contradictions or irreconcilable conflicts between C.M.'s testimony and the physical evidence in this case. C.M.'s testimony was sufficient to establish the elements of the offense.

         Considering the victim's testimony and other corroborating evidence that the abuse occurred over several months, the assignment of error lacks merit.

         ASSIGNMENT OF ERROR NUMBER TWO

         In his second assignment of error, the defendant argues the district court erred by denying his motion to quash, which was based on double jeopardy due to the mistrial in the first trial. He acknowledges that a defendant's motion for mistrial does not normally bar the state from pursuing a second prosecution. However, he argues that the state may not retry him because it provoked the mistrial.

         On July 22, 2015, the parties gave opening statements in the first trial, and the state's first witness testified. After some other matters were discussed, the following colloquy occurred:

MS. KILLINGSWORTH [Prosecutor]:
Your Honor, this morning while we were in court having openings and our first witness testifying a phone call was received by my office that was to me, but I couldn't take the call obviously. I got the message and it was from a man who said that he had information about this case and his name was John Duplechain. I asked Ms. Rhodes-May to call him back to find out what information he had and he stated to me that he worked __ or to her that he worked with the defendant at the time that all of this occurred and that he had had a conversation, including another employee, and Mr. Mace concerning his wife catching him having sexually inappropriate conduct with his wife.
THE COURT:
Not with his wife.
MS. KILLINGSWORTH:
Not with his wife, with his daughter, his stepdaughter.
THE COURT:
Okay.
MS. KILLINGSWORTH:
Who is the victim in this case. The details that he gave are very similar to other details that I have with regard to statements given in this case; that only somebody who knew or talked to the defendant would know. So I'm led to believe that this is accurate. Also, there were two other people who could confirm the conversation. I have talked to one __ or we have talked to one of them who has confirmed the conversation between he and Mr. Tybee and Mr. Mace, being Mr. Duplechain and Mr. Franks was around, not in that exact conversation, but they all discussed it together and about what the ramifications were of it. They failed to call. Nobody notified us. We had no idea that this conversation had occurred until this morning.
The State is requesting in its supplemental motion to be allowed to use that information, the statements that the defendant made to those men.
THE COURT:
Okay, Mr. Carter.
MR. CARTER [Defense Counsel]:
Your Honor, the defense has planned and prepared its defense carefully and has spent a lot of hours on it and sent discovery to the State on many occasions, supplemental discovery, so we're very concerned about what the evidence might be in this case so we can defend. We have anticipated everything that has happened in this case until this and everything was going as we expected it to go and as we expected it to tie into our defense. We come up ...

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