from the First Judicial District Court for the Parish of
Caddo, Louisiana Trial Court No. 325, 055 Honorable Katherine
Clark Dorroh, Judge.
HATCH LAW FIRM, LLC Christopher Hatch Counsel for Appellant
E. STEWART, SR. District Attorney JASON W. WALTMAN JOSHUA K.
WILLIAMS REBECCA A. EDWARDS Assistant District Attorneys
Counsel for Appellee
BROWN, COX, and GASKINS (Ad Hoc), JJ.
GASKINS (Ad Hoc), J.
the court is the appeal of defendant Michael Kurz. After a
jury trial, he was convicted of aggravated rape and sentenced
to life in prison without parole. On appeal, Kurz urges five
assignments of error: (1) the evidence was insufficient to
support his conviction; (2) the procedures for a capital
trial were required to be, but were not, followed; (3) the
trial judge committed an abuse of discretion in allowing five
prosecution witnesses to testify pursuant to La. C.E. art.
412.2 (collectively, the "article 412.2
witnesses"); (4) the sentence imposed is illegal; and
(5) time limitations barred the prosecution. For the reasons
stated herein, we affirm the conviction but amend Kurz's
sentence to 50 years of incarceration at hard labor.
AND PROCEDURAL HISTORY
was born August 25, 1952. He was indicted by grand jury for
the aggravated rape of the male victim,  who was born on
July 7, 1965, and who testified that he was under the age of
12 at the time of the rapes. The indictment alleges that Kurz
committed the rapes between July 7, 1975, and July 7, 1977,
when the victim was 10 or 11 years old, and the defendant was
approximately 23 or 24 years old. The original indictment was
returned August 20, 2014; the amended indictment was returned
that same day, but was not filed until May 9, 2016. At trial,
Kurz was 64 years old and the victim was 51 years old.
December 2016, this matter went to trial. The state presented
the testimony of the victim and five other male witnesses who
claimed to have been sexually victimized by Kurz. The state
also presented the testimony of James Moore, the detective to
whom the victim initially reported the rapes, as well as
Shelly Anderson, the forensic computer expert who testified
that she found child pornography on Kurz's computer.
victim was born on July 7, 1965. Kurz is related to the
victim and 12 years his senior. The victim identified Kurz at
trial. He remembers seeing Kurz at family gatherings at his
parents' and grandmother's houses. These are his
earliest memories of Kurz. The victim was four years old when
Kurz touched his genital area (over his clothes) for the
first time, in a bedroom at the victim's
grandmother's house. Kurz continued this type of fondling
over the years, mostly at family gatherings at the
victim's grandmother's or his parents' houses. At
some point, Kurz began fondling the victim's genitalia
under his clothing; from there, Kurz escalated to performing
oral sex on him. When the victim was older, Kurz had the
victim perform oral sex on him. During this time frame, Kurz
initially lived with the victim's grandmother, but
eventually moved to a trailer several miles away on Linda
Linda Lane trailer, Kurz anally penetrated the victim
approximately a dozen times, beginning when the victim was 11
years old. The victim reiterated that he was 11 years old
when the anal penetration began, and remembered this by two
markers: he was in elementary school at the time, and it was
"at least a year to a year and half… prior to
Elvis's death, which was in '77."
not until the late 1980s that the victim initially revealed
what Kurz had done to him. He first told his parents, and did
not seek counseling or otherwise discuss it with anyone else.
When asked how he tried to cope with Kurz raping and sexually
abusing him, he testified:
I pushed it down as far as I could in the back of my mind. It
was always there, but it was not a constant thought at that
time like it was before when I was younger. I just tried to
bury it as deep as I could.
victim maintained his silence from the late 1980s until 2014,
when he learned that Kurz had been arrested for sexual
involvement with an underage male. This spurred him to
"come forward because this had to stop. This
couldn't go on with any other kids. This could not happen
again." The victim contacted the Caddo Sheriff's
Office, and eventually gave a recorded Skype interview to
cross-examination, the defense attempted to use the Skype
interview to discredit the victim's testimony that he was
11 years old when Kurz began anally raping him. The victim said
he did not recall telling Detective Moore in the interview
that he did not remember how old he was when Kurz anally
raped him. Then defense counsel played the portion of the
recording of the Skype interview, starting at approximately
8′54″ into the interview and ending at
approximately 9′36″. Referring to the anal
penetration, Detective Moore asked, "Do you remember how
old you were, about?" The victim responded, "I
don't." Detective Moore then asked if he remembered
being "definitely under a certain age when that
happened?" The victim answered, "I was under 14 for
the Skype interview, the victim, in an effort to remember
more details, "relived" Kurz's rape and abuse
of him "a million times." He explained that it was
during the approximate 2½ years between the Skype
interview and the trial that he recalled that, at the time
the anal rape began, he was in elementary school. Also during
that time, he remembered it beginning at least a year to a
year and a half prior to the death of Elvis Pressley.
cross-examination, the victim explained that he continued to
spend time with Kurz despite Kurz anally raping him because
he trusted Kurz as a close family member. Additionally, Kurz
took the victim fishing, let him shoot guns, and helped work
on the victim's car.
victim admitted that he did not remember ever having blood in
his underwear from Kurz anally penetrating him. He also
admitted that his mother washed his underwear at that time,
and that he did not think she ever noticed any blood in his
victim also admitted that, prior to disclosing the matter to
his parents in the late 1980s, they had asked him whether he
had sexual contact with Kurz, and he denied it at that time.
the date range alleged in the indictment, aggravated rape was
defined, in relevant part:
Aggravated rape is a rape, heterosexual or homosexual,
committed where the sexual intercourse is deemed to be
without the lawful consent of the victim because it is
committed under any one or more of the following
(3) Where the victim is under the age of 12 years. Lack of
knowledge of the victim's age shall not be a defense [.]
La. R.S. 14:42 (as amended by 1975 La. Acts No. 612 §1);
State v. Carter, 2014-926 (La.App. 3 Cir. 4/1/15),
160 So.3d 647, 651-52.
the time Kurz raped the victim, La. R.S. 14:42 provided a
mandatory death penalty. See, e.g., State v. Selman,
300 So.2d 467 (La. 1974). However, on July 6, 1976, the U.S.
Supreme Court abrogated the mandatory death penalty provision
of La. R.S. 14:42 as cruel and unusual punishment. Selman
v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d
1212 (1976). On remand, the Louisiana Supreme Court held that
"the appropriate sentence to be imposed upon a valid
conviction for aggravated rape is the most severe
constitutional penalty established by the legislature for a
lesser included offense at the time the crime was committed,
" i.e., attempted aggravated rape.
State v. Selman, 340 So.2d 260 (La. 1976).
relevant times, La. R.S. 14:27 defined the crime of
"attempt" and prescribed penalties therefor.
However, on September 12, 1975, the maximum penalty for
attempted aggravated rape changed from 20 to 50 years of
incarceration at hard labor. ...