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State v. Young

Court of Appeals of Louisiana, First Circuit

November 15, 2019

STATE OF LOUISIANA
v.
DAVID YOUNG

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. 07-15-0122 The Honorable Judge Bonnie Jackson Presiding

          Jeff Landry Attorney General Pamela S. Moran Stephen Martin Colin Clark Assistants Attorneys General Louisiana Department of Justice Criminal Appellate Section Baton Rouge, LA Counsel for Plaintiff/Appellee State of Louisiana

          Glen R. Petersen Baton Rouge, LA Kelly P. Mitchell Herbert V. Larson New Orleans, LA Counsel for Defendant/ Appellant David Young

          BEFORE: HIGGINBOTHAM [1], PENZATO, AND LANIER, JJ.

          LANIER, J.

         The defendant, David W. Young, was charged by bill of information with computer-aided solicitation of a minor, a violation of La. R.S. 14:81.3 (count 1); and indecent behavior with a juvenile, a violation of La. R.S. 14:81 (count 2). He pled not guilty on both counts and waived his right to a jury trial. Following a bench trial, he was found guilty as charged on both counts. He moved for post-verdict judgment of acquittal on the basis of double jeopardy. The motion was granted as to count 1. On count 2, the defendant was sentenced to five years imprisonment at hard labor. The sentence was suspended, and the defendant was placed on probation for five years. The defendant and the State appealed. The defendant challenged the sufficiency of the evidence on count 2. The State challenged the granting of a post-verdict judgment of acquittal on count 1. This court affirmed the conviction and sentence on count 2, reversed the ruling of double jeopardy on count 1, reinstated the conviction on count 1, and remanded for sentencing on count 1. State v. Young, 2017-1101 (La.App. 1st Cir. 12/21/17), 2017 WL 6524554, writ denied, 2018-0126 (La. 10/29/18), 254 So.3d 701.

         Upon remand, the defendant filed a motion in arrest of judgment and motion for new trial. Following a hearing, the motions were denied. The defendant was sentenced on count 1 to two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and ordered to register and provide notification as a sex offender. He moved for reconsideration of sentence, but the motion was denied. For the following reasons, we affirm the sentence imposed on count one.

         FACTS

         The facts concerning this matter are set forth in the prior appeal decision. See Young, 2017 WL 6524554, at *2-3.

         NEW TRIAL

         In assignment of error number 1, the defendant contends the trial court erred in ruling it had no authority to grant a new trial on count 1. The defendant argues, under La. Code Crim. P. art. 851(B)(1), the trial court may grant a new trial when the verdict is contrary to the law and the evidence, and under La. Code Crim. P. art. 851(5), the trial court may grant a new trial if it is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right. The defendant argues that as the weight of the evidence is "legally distinguishable" from the sufficiency of the evidence, this court's previous decision finding the evidence sufficient to support the defendant's conviction under count 1 did not preclude the trial court from considering his new trial motion premised on the weight of the evidence and the interests of justice.

         Upon remand, the defendant filed a motion in arrest of judgment and motion for new trial. The defendant urged the trial court to "once again, [acknowledge] . . . the evidentiary and legal shortcomings of the State's case." The defendant asked the trial court to "analyze [the defendant's] convictions, for the first time, under the newly-required [Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)] test."[2] In his motion for new trial, the defendant asked the court to "make a 'factual' determination as to the weight of the evidence for [the defendant's] conviction on Count One."

         The State opposed the motions. The State argued the defendant had already raised double jeopardy, and thus, could not raise it again. See La. Code Crim. P. art. 594 ("Double jeopardy may be raised at any time, but only once[.]"). Further, the State noted this court had held counts 1 and 2 were not the same offense under Blockburger, and thus, the convictions did not violate double jeopardy principles. Young, 2017 WL 6524554, at *8.

         In regard to the motion for new trial, the State argued on count 2 that the motion was filed after sentencing, and thus, was untimely. See La. Code Crim. P. art. 853. In regard to count 1, the State noted that in reversing the trial court's finding that there was insufficient evidence to ...


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