Opinion
NO. 2012 KA 0446
11-02-2012
STATE OF LOUISIANA v. ANTHONY INGRAM
Herbert Barnes Joseph Waitz Houma, Louisiana Attorney for Appellee State of Louisiana Mary E. Roper Baton Rouge, Louisiana Attorney for Appellant Anthony Ingram
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 546,096
The Honorable John R. Walker, Judge Presiding
Herbert Barnes
Joseph Waitz
Houma, Louisiana
Attorney for Appellee
State of Louisiana
Mary E. Roper
Baton Rouge, Louisiana
Attorney for Appellant
Anthony Ingram
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
CARTER, C.J.
The defendant, Anthony Ingram, was charged by bill of information with molestation of a juvenile, in violation of Louisiana Revised Statutes section 14:81.2(0)(1). The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty as charged. Subsequently, the trial court sentenced the defendant to thirty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, raising the constitutionality of the sentence. For the following reasons, we affirm the conviction and the sentence.
Tn the bill of information, as amended to allege that the victim was under the age of thirteen at the time of the offense, the statute is denoted as Louisiana Revised Statutes section 14:81.2(E)(1) in accordance with the version in effect at the time of the offense (prior to amendment by 2011 La. Acts No. 67, § 1).
STATEMENT OF FACTS
On June 6, 2009, N.S., the victim's mother, allowed the defendant, a neighborhood family acquaintance, to take her nine-year-old son S.W., the victim, to a snowball stand near their home in Gibson, Louisiana. The defendant was travelling in a violet-blue minivan or small SUV. They ended up going to a nearby convenience store since the snowball stand was closed. According to S.W., the defendant told him he could help drive the vehicle, and S.W. sat on the defendant's lap in the driver's seat. While the victim sat on the defendant's lap, the defendant began touching S.W.'s upper thigh and private area including under his clothes. When he tried to look down, the defendant instructed him to keep his eyes on the road. The defendant also kissed S.W. in the mouth with his tongue both in the vehicle and while in the store. According to S.W., at one point the defendant showed him his own private area and made S.W. touch him there.
The victim's date of birth is August 22, 1999. Herein, the victim and his mother will be identified by initials to protect the identity of the victim. La. Rev. Stat. Ann. §46:1844(W).
N.S. and the defendant had gone to the same high school and lived in the same neighborhood at the time of the offense. During his police statement the defendant claimed that N.S. had a romantic interest in him and that she fabricated the instant allegations because he refused her romantic advances. N.S. vehemently denied the defendant's claims.
When the defendant took the victim back home, N.S. observed that S.W. was visibly upset. When N.S. questioned him, he indicated that the defendant had violated him. She asked for more details, and after S.W. told her the defendant had kissed him in the mouth, she called 911.
Deputy Donald Bourg of the Terrebonne Parish Sheriff's Office was dispatched to the victim's home. After taking a statement from the victim and his mother, Deputy Bourg went to the defendant's residence. The defendant initially indicated that he had been home all afternoon. After his "wife" confirmed that he had left about an hour before the deputy arrived, the defendant indicated that he had gone to the convenience store alone to purchase beer. During his statement at the Sheriff's Office, the defendant admitted to going to the victim's home before he went to the convenience store, but insisted that he went to the store alone and brought back a soda as N.S. requested. He denied taking the victim to the store and further denied committing the instant offense.
Although the record refers to defendant's "wife," it was shown that the defendant and his girlfriend were never married even though they lived together for many years.
The police obtained video surveillance footage of the interior and exterior of the convenience store for the time of the offense. The parking lot footage shows a vehicle, identified as the defendant's vehicle, drive up and park, and an unclear view of the occupants, identified as the defendant and S.W., exiting the vehicle about six minutes later. The interior footage depicts a closer view of the defendant following S.W. around the store. Though the defendant was not facing the camera at all times, he can be observed positioning himself behind S.W, as S.W. scanned the candy aisle, and leaning over as he embraced S.W., who pulls away. The footage also shows the defendant positioning himself behind the victim again, with their backs to the camera, and leaning over while standing behind the victim. The victim testified that during the time that the defendant appeared to be leaning over him on the surveillance camera, the defendant kissed the victim, once again, on the lips and/or in the mouth, and the victim could feel the defendant's tongue. Roughly six minutes later, the exterior surveillance footage shows a distant, unclear view of what appears to be the defendant and S.W. exiting the store and reentering the defendant's vehicle. The vehicle exited the parking lot about two minutes later.
The defendant's lips were not visible at this point though the footage is consistent with the victim's claim that the defendant kissed him while they were in the store.
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant contends that the trial court abused its discretion by imposing a constitutionally excessive sentence. The defendant notes that the sentencing transcript and minutes do not refer to a presentence investigation report (PSI), and argues that the trial court failed to consider his personal history and potential for rehabilitation in imposing the sentence. While noting that the decision of whether or not to order a PSI is within the sound discretion of the trial court, the defendant underscores the importance of a PSI as a valuable device in imposing a tailored sentence and for the review of sentencing for excessiveness.
At the outset we note that the defendant's motion to reconsider sentence does not raise the lack of a PSI or the failure of the trial court to consider the defendant's personal history or potential for rehabilitation. The motion simply states, in pertinent part: "The Sentence is excessive under the circumstances in this case. The circumstances referred to are that the Court failed to give adequate consideration to the asserted defenses in the case." The defendant is required under Louisiana Code of Criminal Procedure article 881.1 to file a motion to reconsider and set forth the specific grounds upon which the motion is based in order to raise an objection to the sentence on appeal. The failure to include a specific ground upon which a motion to reconsider sentence is based precludes the defendant from urging that ground on appeal. See La. Code Crim. Proc. Ann. art. 881.1(E). Thus, this Court's review of the defendant's sentence on appeal is limited to the grounds stated in his motion to reconsider sentence.
The defendant does not contend he requested the preparation of a PSI, as he could have. Furthermore, as the defendant acknowledges in his brief, ordering a PSI is discretionary with the trial court; there is no mandate that a PSI be ordered. See La. Code Crim. Proc. Ann. art. 875(A)(1). Such an investigation is an aid to the court and not a right of the accused. The trial court's failure to order a PSI will not be reversed absent an abuse of discretion. State v. Wimberly, 618 So. 2d 908, 914 (La. App. 1st Cir.), writ denied, 624 So. 2d 1229 (La. 1993).
The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within the statutory limits. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So. 2d 448, 454.
Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years, and not more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence. La. Rev. Stat. Ann. § 14:81.2(D)(1) (formerly subsection E prior to amendment by 2011 La. Acts No. 67, § 1). Thus, the defendant faced a maximum sentencing exposure of ninety-nine years imprisonment at hard labor. The sentence imposed herein, thirty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence, is clearly within the lower end of the statutory sentencing range.
The victim, a small-framed nine-year-old at the time of the offense, was diagnosed with leukemia and was in remission at the time of the offense and trial. According to the testimony presented during the trial, the victim was afraid as the defendant committed the lewd and lascivious acts and was visibly upset when he entered his home after enduring the ordeal. During the trial, Deputy Bourg testified that the victim was upset, scared, and emotional while reporting the incident. The victim testified that the defendant would come to their home about once a week and bring his mother soda or talk to his mother. He considered the defendant a father figure before the offense and even began calling the defendant dad, noting that he never had an actual father in his life. According to the victim's mother, after the offense the victim was insecure and afraid to be without her. The victim's mother sought assistance from the Child Advocacy Center (where the victim was interviewed after the offense) because the victim was having problems coping and was experiencing changes in his mood and behavior.
Louisiana Code of Criminal Procedure article 894.1 sets forth items which must be considered by the trial court before imposing sentence. While the trial court need not recite the entire checklist of Article 894.1, the record must reflect that it adequately considered the guidelines. State v. Williams, 521 So. 2d 629, 633 (La. 1988). In light of the criteria expressed by Article 894.1, a review for individual excessiveness must consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So. 2d 1182, 1186 (La. App. 1st Cir. 1988). Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. Proc. Ann. art. 881.4(D); State v. Harris, 601 So. 2d 775, 779 (La. App. 1st Cir. 1992).
For the crime of molestation of a juvenile of a victim under the age of thirteen years, the defendant was exposed to a term of imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. Rev. Stat. Ann. §14:81.2(D)(1). Thus, the trial court's sentence of thirty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, falls within the statutory guidelines.
At the sentencing hearing, the court considered the risk the defendant would commit another crime during a suspension of sentence or probation, the seriousness of the instant offense, the vulnerability of the victim, the specific facts of the case, and the defendant's use of his position of trust as a family friend and neighbor to facilitate the offense and create the risk of harm to the child.
We find no abuse of discretion on the part of the trial court in not ordering a PSI. Considering the great discretion afforded the trial court in fashioning the defendant's punishment and bearing in mind the nature of the instant crime, we find that the record provides ample justification for the imposition of the low-range, thirty-year sentence. Accordingly, the sentence imposed is not grossly disproportionate to the severity of the offense or shocking to the sense of justice and, therefore, is not unconstitutionally excessive. We find no merit in the assignment of error.
CONVICTION AND SENTENCE AFFIRMED.