Opinion
NUMBER 2013 KA 2190
04-25-2014
STATE OF LOUISIANA v. CLIFF JACOB MALBROUGH
Joseph L. Waitz, Jr. District Attorney Elien Daigle Doskey Asst. District Attorney Houma, LA Attorneys for Appellee State of Louisiana Bertha M. Hillman La. Appellate Project Thibodaux, LA Attorney for Appellant Defendant - Cliff Jacob Malbrough
NOT DESIGNATED FOR PUBLICATION
Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne, Louisiana
Trial Court Number 636,294
Honorable Timothy C. Ellender, Judge
Joseph L. Waitz, Jr.
District Attorney
Elien Daigle Doskey
Asst. District Attorney
Houma, LA
Attorneys for Appellee
State of Louisiana
Bertha M. Hillman
La. Appellate Project
Thibodaux, LA
Attorney for Appellant
Defendant - Cliff Jacob Malbrough
BEFORE: PETTIGREW, WELCH, AND CRAIN, JJ.
WELCH, J.
The defendant, Cliff Jacob Malbrough, was charged by grand jury indictment with stalking, a violation of Louisiana Revised Statutes section 14:40.2 (count 1); felony carnal knowledge of a juvenile, a violation of Louisiana Revised Statutes section 14:80(A) (count 2); sexual battery, a violation of Louisiana Revised Statutes section 14:43.1 (count 3); and aggravated rape, a violation of Louisiana Revised Statutes section 14:42(A)(4) (count 4). He pled not guilty to the charges on counts 1, 3, and 4, and entered a plea of guilty to the charge on count 2. He filed a motion to sever his offenses, which was denied. After a jury trial, he was found guilty as charged. The defendant filed a motion for new trial and postverdict judgment of acquittal, which was denied. He was sentenced to one year at hard labor on count 1; seven years at hard labor on count 2; seven years at hard labor without the benefit of probation, parole, or suspension of sentence on count 3; and life at hard labor without the benefit of probation, parole, or suspension of sentence on count 4. The district court ordered the sentences to run consecutively. He now appeals, arguing that the district court erred in denying his motion to sever his offenses. For the following reasons, we affirm his convictions and sentences.
FACTS
In connection with count 1, in December 2011, officers with the Houma Police Department responded to Elysian Fields School in Houma, Louisiana, after the school principal called and reported that one of her students, C.G., was given a note at a bus stop by the defendant. C.G. gave the note to her bus driver who turned it over to the school principal. The note stated:
The victims herein are referenced only by their initials. See La. R.S. 46:1844W.
Hey,
Just wanted to say I think you have the most beautiful smile ever!!!C.J.
P.S.
See You Soon! If you can use the pho
The note was torn after the letters "pho."
C.G. gave a statement wherein she stated that she first noticed the defendant drive by her bus stop on a Monday morning in a green vehicle with "Blaize's Fiberglass Boat Repair" written on the side window. According to the testimony presented at trial, the defendant's dog was riding in the backseat of his vehicle, and C.G. said, "hi puppy." In her statement, the student indicated that the defendant circled the block twice Monday and Tuesday. On Thursday, he passed eleven or twelve times and started saying, "hey, baby." He blew kisses to her on Thursday and Friday. On Friday, he pulled up, handed her a note, and said, "Read it." She admitted that she had to walk a few feet toward his vehicle to retrieve the note, but she stretched her arm out to get it because she was afraid he may grab her. She confirmed that the defendant was scaring her, and she was happy that he did not know where she lived. The defendant was thirty-one years old at the time, and C.G. was ten.
After viewing a photographic lineup, C.G. identified the defendant as the man who drove by, blew kisses at her, and gave her the note. The defendant was subsequently arrested on the stalking charge.
The facts in connection with count 2 were not fully developed because the defendant entered a plea of guilty. According to the bill of information and the Boy kin colloquy, in November 2001, the defendant had sexual intercourse with a juvenile, resulting in the birth of A.V. (the victim in count 4).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
When the victim in count 3, P.V., found out about the defendant's stalking charges, she contacted the police. According to P.V., the defendant and his girlfriend, Lindsey Sand, lived at her home when she was eleven years old, as Sand was her babysitter. One night, the defendant and Sand were sleeping in the bed with P.V. After Sand got out of bed the next morning, the defendant touched P.V.'s vagina. P.V. tried to move away from the defendant, but he pulled her back and continued to touch her until she got out of the bed. After police spoke with P.V., the defendant was arrested for sexual battery.
In connection with count 4, the victim, A.V., was interviewed by a detective with the Houma Police Department, participated in a Children's Advocacy Center interview, and attended counseling sessions. A.V. disclosed that the defendant would watch pornographic movies with her and try to touch her. He would also get out of bed while everyone else was asleep and try to touch her. According to A.V., the defendant touched her breasts and she had to perform oral sex on him. The abuse took place between September 2010 and June 2011, when the victim was eight years old.
MOTION TO SEVER
In his sole assignment of error, the defendant argues that the district court erred in denying his motion to sever. Specifically, he contends that the evidence as to each count would not have been admissible in separate trials either as res gestae or other crimes evidence pursuant to Louisiana Code of Criminal Procedure article 404B, and allowing the jury to hear evidence of other crimes was more prejudicial than probative. He also contends that considering different charges led to jury confusion. The defendant argues that he was confounded in presenting separate defenses because he may have wished to invoke his right to silence on some charges and not others.
The defendant filed a motion to sever offenses, arguing that it would serve judicial economy to try his aggravated rape charge "without muddying the waters by trying the other charges simultaneously." At the hearing on the motion, the State argued that it was proceeding under Louisiana Code of Evidence article 412.2 and that if the aggravated rape charge were severed, the jury would hear evidence of the other charges because they showed the defendant's lustful disposition toward children. Relying on the State's argument, the court refused to sever the defendant's offenses.
Article I, Section 17(A) of the Louisiana Constitution provides, in pertinent part:
A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.
See also La. C.Cr.P. art. 782(A).
Article I, Section 17(B) of the Louisiana Constitution provides:
Notwithstanding any provision of law to the contrary, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor; provided, however, that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; and provided further, that cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.
See also La. C.Cr.P. art. 493.2.
Louisiana Code of Criminal Procedure article 493 provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.
The punishment for the offense of aggravated rape is necessarily confinement at hard labor. See La. R.S. 14:42(D)(1). The punishment for the offenses of sexual battery and stalking of a victim under the age of eighteen may be confinement with or without hard labor. See La. R.S. 14:43.1(C) (prior to amendment by La. Acts 2006, No. 103 § 1) and La. R.S. 14:40.2(B)(1)(b). Thus, while an aggravated rape case is triable by a twelve-person jury, and sexual battery and stalking cases are triable by six-person juries, the cases may be properly joined under La. Const. Art. I, § 17(B) and La. C.Cr.P. art. 493.2.
In ruling on a motion for severance, the district court should consider a variety of factors in determining whether prejudice may result from the joinder: whether the jury would be confused by the various counts; whether the jury would be able to segregate the various charges and the evidence; whether the defendant could be confounded in presenting his various defenses; whether the crimes charged would be used by the jury to infer a criminal disposition; and whether, considering the nature of the offenses, the charging of several crimes would make the jury hostile. A severance need not be granted if the prejudice can effectively be avoided by other safeguards. In many instances, the district court judge can mitigate any prejudice resulting from joinder of offenses by providing clear instructions to the jury. The State can further curtail any prejudice with an orderly presentation of evidence. A motion for severance is addressed to the sound discretion of the district court, and its ruling should not be disturbed on appeal absent a showing of an abuse of discretion. A defendant in any case bears a heavy burden of proof when alleging prejudicial joinder of offenses as grounds for a motion to sever. Factual, rather than conclusory, allegations are required. State v. Allen, 95-1515 (La. App. 1st Cir. 6/28/96), 677 So.2d 709, 713, writ denied, 97-0025 (La. 10/3/97), 701 So.2d 192.
In the instant case, the State presented its case in a logical fashion and in such a manner as to keep the evidence pertaining to each count and each victim separate and distinct. The investigation of the offenses was significantly intertwined as the officers learned of the sexual battery on P.V. and aggravated rape on A.V. soon after investigating the allegations of stalking involving C.G. It appears the jury was clearly able to segregate the various counts as the district court specifically charged the jury separately as to each offense and corresponding victim. It is improbable that the jury was confused, as they deliberated for a period of only thirty minutes without asking for any type of clarification. The verdict reached on counts 1 and 4 was unanimous, and an 11-1 verdict was reached on count 3.
Moreover, the evidence of stalking and sexual battery would have been admissible other crimes evidence under La. C.Cr.P. art. 412.2 at the trial of the aggravated rape offense to show the defendant's lustful disposition toward young children. See State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 929, writ denied, 2011-1456 (La. 4/20/12), 85 So.2d 1258; State v. Roca, 2003-1076 (La. App. 5th Cir. 1/13/04), 866 So.2d 867, 873-74, writ denied, 2004-0583 (La. 7/2/04), 877 So.2d 143; see also State v. Burks, 2004-1435 (La. App. 5th Cir. 5/31/05), 905 So.2d 394, 398-401, writ denied, 2005-1696 (La. 2/3/06), 922 So.2d 1176. In all three offenses, the victims were young girls between the ages of eight and eleven years old. In both the sexual battery and aggravated rape offenses, the defendant knew the victims well, and the victims lived in the same house as the defendant. Therefore, the evidence of the offenses committed against any of the victims could have been introduced at the trials of the offenses committed against the other victims. Thus, the district court did not abuse its discretion in denying the defendant's motion to sever. This assignment of error is without merit.
See State v. Friday,73 So.3d at 929-930 (trial court did not abuse its discretion in denying a motion to sever where defendant was charged with aggravated rape and molestation of a juvenile involving two different victims where evidence of either offense would have been admissible in trial of other offense under La. C.Cr. P. art. 412.2); State v. Roca, 866 So.2d at 873-874 (trial court did not abuse its discretion in denying a motion to sever where defendant was charged with aggravated rape, aggravated rape of a juvenile, oral sexual battery of a juvenile, and molestation of a juvenile involving two different victims where evidence of each offense would have been admissible in trial of other offenses under La. C.Cr.P. art. 412.2).
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.