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State v. Montero

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

STATE OF LOUISIANA
v.
CARLOS ALBERTO MONTERO, SR.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-172, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Joshua K. Vanderhooft, Zachary Popovich

          COUNSEL FOR DEFENDANT/APPELLANT, CARLOS ALBERTO MONTERO, SR. Bertha M. Hillman

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER JUDGE

         Defendant, Carlos Alberto Montero, Sr., appeals his convictions and sentences for failure to maintain registration as a sex offender, two counts of indecent behavior with a juvenile under the age of thirteen, two counts of aggravated rape, and sexual battery of a juvenile under the age of thirteen. For the following reasons, we affirm defendant's convictions and sentences but remand the matter to the trial court for correction of errors patent.

         STATEMENT OF THE CASE

         On April 28, 2016, a Jefferson Parish Grand Jury indicted defendant with failing to maintain registration as a sex offender by failing to make his community notification in violation of La. R.S. 15:542 (count one); indecent behavior with a known juvenile (DOB 12/28/95), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:81 (count two); aggravated rape upon a known juvenile (DOB 10/11/99) in violation of La. R.S. 14:42 (count three); aggravated rape upon a known juvenile (DOB 11/30/00) in violation of La. R.S. 14:42 (count four); sexual battery upon a known juvenile (DOB 11/30/00), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:43.1 (count five); and indecent behavior with a juvenile (DOB 11/30/00), wherein the victim was under the age of thirteen, in violation of La. R.S. 14:81 (count six). At his arraignment, defendant pled not guilty.[1]

         On April 13, 2017, the State filed a Notice of Intent to Introduce Evidence of Other and Similar Crimes, Wrongs and/or Acts Pursuant to Louisiana Code of Evidence Articles 404(B) and 412.2, that was granted on April 20, 2017.[2] On November 13, 2017, the State amended count one of the indictment to reflect that defendant had previously been convicted of carnal knowledge of a juvenile in violation of La. R.S. 14:80, in case number 02-4098 in the 24th Judicial District Court on September 16, 2002.

         On November 14, 15, and 16, 2017, the case was tried before a twelve-person jury that unanimously found defendant guilty as charged on all counts. On January 8, 2018, defendant filed a Motion for Post-Verdict Judgment of Acquittal, a Motion in Arrest of Judgment, and a Motion for A New Trial, which the trial judge denied. Thereafter, defendant waived sentencing delays and the trial court sentenced him to imprisonment at hard labor for ten years without benefit of probation, parole, or suspension of sentence for his conviction for failing to maintain his sex offender registration (count one); imprisonment at hard labor for seven years for each of his indecent behavior with a juvenile under the age of 13 convictions (counts two and six); life imprisonment without benefit of probation, parole, or suspension of sentence for his aggravated rape convictions (counts three and four); and imprisonment at hard labor for ten years without benefit of probation, parole, or suspension of sentence for his sexual battery of a known juvenile under the age of thirteen conviction (count five). The trial judge ordered the sentences to run concurrently with each other.[3] This timely appeal followed.

         FACTS

         Carlos Montero, Jr., defendant's son, testified that he was living with his fiancée, M.L., and her four children (her oldest son, D.S.; her oldest daughter, T.S.; her youngest son, K.L., and her youngest daughter, V.L.) as a family since early 2006 at 1904 Kentucky Avenue in Kenner.[4] Although Mr. Montero and M.L. are not married, M.L.'s children refer to him as their stepdad or stepfather and he is a father-figure to M.L.'s children. Mr. Montero further testified that he allowed his father, defendant, to move into their home in May of 2006. Mr. Montero acknowledges that he knew that his father had been previously convicted of carnal knowledge of a juvenile in 2002, but pointed out that defendant served his time for that crime and he desired to reconnect with his father.

         Mr. Montero asserted that defendant moved out of the Kentucky Avenue residence at the beginning of 2007, moved back in after August of 2007 to an apartment behind the house, moved out in 2011, and moved back in again in October of 2015. Mr. Montero acknowledged that he and M.L. argued because M.L. did not want defendant living there; however, he insisted that defendant stay.

         Mr. Montero testified that on January 8, 2016, he found a letter dated "November 12" in V.L.'s bedroom that was written by V.L. to her deceased father. In the letter, V.L. talked about her mother and Mr. Montero arguing, after which she said:

And I'm pretty sure you know about his dad. I'm also pretty sure you know what he did to me. I want to say I'm sorry I haven't told ma. I just don't her [sic] to be heartbroken. I know that she got raped when she was in her teens. So if I told her this, think about how she'll react. I'll feel horrible.

         Mr. Montero stated that after he read the letter, he immediately texted V.L. and checked her out of school. He asked her about the letter and she disclosed to him that defendant had been sexually abusing her. Mr. Montero maintained that he did not immediately call the police as V.L. asked him not to tell anyone. He testified that he talked to T.L. and K.L. that night and that they told him about "stuff" that defendant had done to them also. He acknowledged that he and his brother were at the house for several days afterwards planning to kill defendant when Mr. Montero realized that was not the best course of action. Mr. Montero then contacted Kenner police and he and his family went to City Hall to report the sexual abuse. He explained that he did not report it from his home because he knew defendant "would run." Mr. Montero testified that he made a report and gave a statement.

         Officer Brian Saucier of the Kenner Police Department testified that on January 12, 2016, he was dispatched to 1801 Williams Boulevard where Kenner City Hall is located and met with Mr. Montero and his family, who informed him that defendant had been sexually abusing three of M.L.'s children. Officer Saucier further testified that he later met with Detective Peter Foltz who became the lead detective, and proceeded to 1904 Kentucky Avenue to apprehend defendant.

         Detective Foltz testified that in January of 2016, he met with Mr. Montero and his family, interviewed the children separately, and took a recorded statement from T.S., who was an adult at that time. Detective Foltz subsequently referred K.L. and V.L. to the Jefferson Children's Advocacy Center (CAC) where forensic interviews were conducted and videotaped. Detective Foltz testified that Mr. Montero informed him that he believed there were other family members whom defendant had sexually abused. Detective Foltz testified that Kelly Holder, one of those family members, later contacted him and disclosed allegations of sexual abuse by defendant from the 1980s.[5]

         T.S., age twenty-one at the time of trial, testified that she lived in Kenner with Mr. Montero, her mother, and her siblings, K.L., V.L., and D.S. She also testified that defendant moved into the house with them in 2006 or 2007, when she was about eleven or twelve years old and in the seventh grade. She explained that when defendant first moved in, he did not act inappropriately but that his behavior started to change in a way that made her feel uncomfortable.

         T.S. also testified that in the early morning, before she would go to school, there were times when defendant would come and lie in bed with her, rub her hair, caress her, and try to kiss her neck to wake her up. T.S. remembered defendant climbing in bed with her and kissing her on the lips to wake her up in a sexual way. T.S. testified that on one occasion, when she was twelve or thirteen, defendant was kissing her on her neck, and when she asked him why he was doing that, defendant replied that he knew it gave her "goosebumps." She thought that occurred within a few months of defendant ...


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