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State v. Kurz

Court of Appeals of Louisiana, Second Circuit

February 28, 2018

STATE OF LOUISIANA Appellee
v.
JOSEPH MICHAEL KURZ Appellant

         Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 325, 055 Honorable Katherine Clark Dorroh, Judge.

          THE HATCH LAW FIRM, LLC Christopher Hatch Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney JASON W. WALTMAN JOSHUA K. WILLIAMS REBECCA A. EDWARDS Assistant District Attorneys Counsel for Appellee

          Before BROWN, COX, and GASKINS (Ad Hoc), JJ.

          GASKINS (Ad Hoc), J.

         Before 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.

         FACTS AND PROCEDURAL HISTORY

         Kurz was born August 25, 1952. He was indicted by grand jury for the aggravated rape of the male victim, [1] 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.

         In 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's testimony

         The victim was born on July 7, 1965. Kurz is related to the victim and 12 years his senior.[2] 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 Lane.

         At the 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."

         It was 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.

         The 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 Detective Moore.[3]

         On 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.[4] 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 sure."[5]

         After 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.

         On 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.

         The 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 underwear.

         The 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.

         APPLICABLE LAW

         During 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 circumstances:
(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.

         During 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).

         At all 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. ...


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