Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 322, 496 Honorable
John Mosely, Jr., Judge
B. RICHEY & ASSOC. LLC Elton B. Richey, Jr. Christina E.
Hobbs Counsel for Appellant
E. STEWART, SR. District Attorney BRITNEY A. GREEN RICHARD S.
FEINBERG Assistant District Attorneys Counsel for Appellee
MOORE, STONE, and COX, JJ.
a jury trial, Allen Richard Roth Jr. was convicted as charged
of molestation of a juvenile. The court sentenced Roth to 30
years at hard labor with the first 25 years to be served
without the benefit of probation, parole or suspension of
sentence. This appeal followed. We affirm.
the victim, H.M., was 17 years old, she told her mother
(hereinafter "K.W.") that her "Uncle
Butch" had touched her vagina and breasts beginning when
she was in the first grade. K.W. arranged for her daughter to
speak to a counselor. A week later, H.M. reported the sexual
abuse to the Caddo Parish Sheriff's Office and an
gave a statement to police, admitting that he massaged H.M.
late at night when she slept over at his home, beginning when
she was eight or nine years old. According to Roth, H.M.
would lift up her shirt and he would massage her back and
legs. He further stated that once while he was giving H.M. a
massage, she grabbed his penis with her hand and squeezed it
for about a minute; she was about 11 or 13 years old at the
time. When pressed further, Roth admitted that H.M. grabbed
his penis on three separate occasions, but stated that he
always pulled away after about a minute. He also recalled
that when H.M. was around 13 and he was giving her a massage,
she asked him to stop; he stopped and told her that she was
"in control"; he never touched her again. During
the interview, Roth repeatedly denied touching H.M.'s
vagina or breasts, but admitted that he might have come close
to her vagina while massaging her legs.
19, 2014, Roth was charged by bill of information with one
count of molestation of a juvenile under the age of 13, in
violation of La. R.S. 14:81.2(E)(1). The bill specifically
alleged that the offense occurred "between 2003 and
February 23, 2010." On July 15, 2016, the bill was
amended to list the current prosecuting district attorney and
to correct an error in the citation of La. R.S. 14:81.2. Roth
waived arraignment and pled not guilty to the charge.
16, 2016, trial by jury commenced. K.W., the victim's
mother, testified that she knew Roth from high school; he
married her twin sister, Carol. As a nurse, K.W. was required
to work 12-hour shifts on weekends twice a month. On those
weekends, H.M. stayed with her Aunt Carol and Uncle Butch in
their home and sometimes spent the night. When H.M. was 12
years old, K.W. no longer had to work weekends and H.M.
stopped going over to her Aunt Carol and Uncle Butch's
house. Regarding the molestation, K.W. testified that H.M.
told her that Roth began touching her inappropriately in
first grade and stopped when she was in sixth grade.
testified that Roth began touching her breasts and vagina
when she was seven or eight years old. She recalled that the
incidents occurred in various places such as in a hot tub, in
the living room and in Roth's office at their home. When
she spent the night at his house, she slept on the couch in
the living room. He would begin by massaging H.M.'s
shoulders, but move his hands to her breasts and then her
vagina. The contact was skin on skin. She said Roth grabbed
her hand and made her hold his penis; he also showed her
pornographic videos on his office computer. Roth told H.M.
not to tell her Aunt Carol about the sexual encounters.
testified that when she was 13 or 14 years old, Roth was
touching her inappropriately, and she told him,
"don't ever touch me again." He stopped, told
her that she was "in control," and left the room.
H.M. could not recall the exact number of times Roth touched
her in a sexual way, but said it occurred "almost every
time [she] spent the night" at his house.
Roth, the defendant's wife, testified that she began
babysitting H.M. when K.W. started working weekends. Carol
explained that Roth would sometimes be alone with H.M., and
that once, when H.M. was about nine or ten, she came home
from an errand and saw him massaging H.M.'s shoulders in
the kitchen. Carol told him later that the massage was
inappropriate, but never suspected that he was sexually
abusing her niece.
a two-day trial, a unanimous jury convicted Roth as charged
of molestation of a juvenile under the age of 13.
filed several post-verdict motions based on alleged anomalies
that he contends arise from two amendments to La. R.S.
14:81.2 enacted during the seven-year period that he was
charged with committing the acts of molestation. These
amendments increased the "minimum to maximum"
penalty range for the offense: for the period from 2003 to
August 14, 2006, the sentencing range was from "1 to 15
years"; for the period from August 15, 2006, to August
14, 2008, the sentencing range was "25 years to
life" imprisonment; and, for the period following August
15, 2008, "25 years to 99 years." Roth filed a
"Motion to Impose Sentence Pursuant to the Provisions of
Louisiana Revised Statute 14:81.2B (2003), and, In the
Alternative, Motion to Arrest Judgment and In the
Alternative, Motion for New Trial," alleging that his
conviction was obtained in violation of Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), and Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the jury was not
instructed to determine when the molestation of H.M. occurred
and thereby, Roth argues, to determine which version of La.
R.S. 14:81.2 applied to him for sentencing purposes. He
further argued that the bill of information was
"duplicitous" because the state alleged multiple
acts of molestation at trial, but charged him with only one
count in the bill. He also argued that the trial court erred
by allowing the state to elicit testimony from Sergeant James
Moore, who interviewed him, regarding the defendant's
credibility during his statement. Lastly, Roth argued that
the trial court erred by denying his request to continue the
trial and allow substitution of trial counsel.
a hearing on June 29, 2017, the trial court denied Roth's
post-verdict motions and imposed sentence. Stating that it
had concluded that the applicable version of the statute was
the one in effect from 2006 to 2008, the court sentenced him
to 30 years at hard labor, with the first 25 years to be
served without the benefit of probation, parole or suspension
of sentence. Additionally, at the request of the state,
the trial court designated the offense as a crime of
filed a "Motion to Correct Illegal Sentence and Motion
to Reconsider Sentence on the Grounds of Excessiveness"
arguing that his sentence was illegal due to the alleged
Apprendi violation, or, alternatively, that his
sentence was excessive given the facts of the case. After a
hearing, the court denied the motion.
defense argues that "virtually all the errors infecting
this case" arose from the prosecutor's decision to
charge in the bill of information one count of
molestation of H.M. occurring during a seven-year period and
then utilizing a trial strategy of presenting evidence of
several incidents of molestation occurring at times during
the seven-year period, but never designating which particular
incident constituted the single count of the offense charged
or requiring the jury to do so. This is problematic, Roth
argues, because during that same seven-year period of the
molestations, the sentencing provisions of the statute were
amended twice, each increasing the punishment for the
offense. Thus, without knowing which offense of molestation
for which the jury convicted the defendant and
when it happened, it is impossible to ascertain the
appropriate penalty provision of the statute.
in his first assignment of error, Roth argues that the trial
court erred by denying his motion for a new trial based on
grounds that the bill of information was duplicitous in that
it alleged a seven-year period of sexual abuse instead of
listing a specific offense of molestation. The effect of
charging one count of molestation over a seven-year period,
he argues, was to permit the state to present evidence at
trial of other offenses or incidents of molestation.
Additionally, because the court utilized the second amended
version of the statute which required a greater penalty than
the 2003 version, Roth alleges that the conviction was
obtained in violation of Apprendi, supra,
and its progeny, because the jury was not required to specify
when the specific act of molestation occurred that would
support the verdict requiring the greater penalty. While Roth
concedes that the date of the crime is generally not an
"element" of the offense that must be submitted to
the jury, in this instance, the date was necessary because of
the two legislative amendments enacted during the time period
he was charged for committing one count of molestation.
Ordinarily, the penalty in effect at the time of the offense
applies to an accused convicted of the offense. Accordingly,
he argues, the jury should have been instructed to determine
the date of the offense.
at the outset that the court stated its intent to apply the
2006 amended version of R.S. 14:81.2, but inadvertently
recited the sentencing range of the 2008 amended version,
i.e., 25 years to 99 years.  The only difference between the
two versions is that the latter version's maximum
sentence is 99 years, while the earlier (2006) version's
maximum is life imprisonment. Both statutes impose the same
minimum of 25 years, with the first 25 years to be served
without benefits. Because the jury was not required to
specify the date of the offense, Roth contends that the trial
court erred when it sentenced him under the harsher 2008
amended version of R.S. 14:81.2 due to errors arising from
duplicity and Apprendi, supra, discussed above. He
further maintains that the rule of lenity requires that he
should be sentenced under the most lenient version of R.S.
14:81.2 in effect prior to 2008. Of course, this would be the
pre-2006 version which had a penalty range of 1 to 15 years.
state urges that Roth did not object to the bill of
information during the trial, and generally the failure to
object constitutes a waiver of the right. Nevertheless, the
state maintains that he was not entitled to a new trial on
the merits. It contends that the record supports the
sentencing range in effect during the period of 2006-2008,
when the molestation occurred with the greatest frequency,
but also before and after that period. The state also argues
that this Court has held that "[t]he date and time of
the offense of a molestation of a juvenile are not essential
elements of the offense." State v. Robinson,
51, 830 (La.App. 2 Cir. 2/28/18), 246 So.3d 725; State v.
Dale, 50, 195 (La.App. 2 Cir. 11/18/15), 180 So.3d 528,
writ denied, 15-2291 (La. 4/4/16), 190 So.3d 1203.
trial record shows that H.M. testified that Roth began
molesting her when she was seven or eight and stopped when
she was 13 or 14. He admitted in his statement to police that
sexual encounters with H.M. occurred when H.M. was 11 or 13.
H.M. turned seven on February 25, 2004, and 14 on February
25, 2011. The bill of information alleged that the
molestation occurred "on or about BETWEEN 2003 AND
FEBRUARY 23, 2010." The bill listed H.M.'s date of
birth as February 23, 1997.
jury was instructed to determine whether the defendant was
guilty of molestation of a juvenile under the age of 13 and
included H.M.'s date of birth. It returned a verdict of
"guilty" of "molestation of a juvenile under
the age of thirteen."
motion for new trial raises, among other things, the claim
that the court ruling on an objection showed prejudicial
error, or that the ends of justice would be served by
granting a new trial. La.C.Cr.P. art. 851. The decision on a
motion for new trial rests within the sound discretion of the
trial judge and will not be disturbed on appeal absent a
clear showing of abuse. State v. Horne, 28, 327
(La.App. 2 Cir. 8/21/96), 679 So.2d 953, writ
denied, 96-2345 (La. 2/21/97), 688 So.2d 521.
failure to make a contemporaneous objection to jury
instructions normally waives review of those jury
instructions on appeal. La.C.Cr.P. art. 801(C); State v.
Lee, 2005-2098 (La. 1/16/08) 976 So.2d 109, cert.
denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39
(2008). However, jury instructions may be reviewed on appeal
even without a contemporaneous objection when the alleged
error violates a fundamental right. State v. Gibson,
09-486 (La.App. 5 Cir. 3/9/10), 38 So.3d 373, writ
denied, 2010-0802 (La. 11/5/10), 50 So.3d 814.
Apprendi, supra, the U.S. Supreme Court
held that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Id., 530
U.S. at 490, 120 S.Ct. at 2362-2363.
in Neder v. United States, 527 U.S. 1, 119 S.Ct.
1827, 144 L.Ed.2d 35 (1999), the U.S. Supreme Court further
held that "a [jury] instruction that omits an element of
the offense does not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence." Further, "where a reviewing
court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error, the erroneous instruction is properly found
to be harmless." Id., 527 U.S. at 17, 119 S.Ct.
previously stated, prior to August 15, 2006, the crime of
molestation of a juvenile was punishable by a fine of up to
$5, 000 and/or imprisonment with or without hard labor for
not less than one, nor more than 10 years. La. R.S. 14:81.2.
If the offense was committed when the offender exercised
control or supervision over the juvenile the penalty
increased to a fine of up to $10, 000 and/or imprisonment
with or without hard labor for not less than one, nor more
than 15 years. Id. Notably, the version of R.S.
14:81.2 in effect until August 15, 2006, did not contain a
provision for a harsher sentence when the victim was under
the age of 13 at the time of the offense.
August 15, 2006, R.S. 14:81.2 was amended to add Subsection
(E)(1), which provided a sentence of imprisonment for not
less than 25 years, nor more than life imprisonment, with at
least the first 25 years to be served without the benefit of
probation, parole, or suspension of sentence when the victim
was under the age of 13 at the time of the offense.
August 15, 2008, R.S. 14:81.2(E)(1) was amended to provide
for a maximum sentence of 99 years instead of life
imprisonment when the victim was ...