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State v. Roth

Court of Appeals of Louisiana, Second Circuit

November 14, 2018


          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 322, 496 Honorable John Mosely, Jr., Judge

          ELTON B. RICHEY & ASSOC. LLC Elton B. Richey, Jr. Christina E. Hobbs Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney BRITNEY A. GREEN RICHARD S. FEINBERG Assistant District Attorneys Counsel for Appellee

          Before MOORE, STONE, and COX, JJ.

          MOORE, J.

         Following 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.


         When 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 investigation ensued.

         Roth 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.

         On May 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.

         On July 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.

         H.M. 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.

         H.M. 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.

         Carol 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.

         Following a two-day trial, a unanimous jury convicted Roth as charged of molestation of a juvenile under the age of 13.

         Roth 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.

         Following 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.[1] Additionally, at the request of the state, the trial court designated the offense as a crime of violence.

         Roth 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.

         This appeal followed.


         The 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.

         Thus, 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.

         We note 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. [2] 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.

         The 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.

         The 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.

         The 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."

         A 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.

         The 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.

         In 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.

         However, 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. at 1837.

         As 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.

         Effective 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.

         Effective 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 ...

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