Opinion
NO. 2012 KA 0649
12-21-2012
STATE OF LOUISIANA v. TOMMY C. BELIEW
Walter P. Reed District Attorney Covington, LA Attorneys for Appellee, State of Louisiana Kathryn W. Landry Baton Rouge, LA Mary E. Roper Baton Rouge, LA Attorney for Defendant-Appellant, Tommy C. Beliew
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 324275
Honorable William J. Knight, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Attorneys for Appellee,
State of Louisiana
Kathryn W. Landry
Baton Rouge, LA
Mary E. Roper
Baton Rouge, LA
Attorney for Defendant-Appellant,
Tommy C. Beliew
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM , J.
The defendant, Tommy Beliew, was charged by bill of information with one count of indecent behavior with a juvenile, a violation of La. R.S. 14:81, and pled not guilty. Thereafter, he moved to quash, arguing that the trial had been commenced untimely. Following a hearing, the motion was denied. Following a jury trial, he was found guilty as charged. He was sentenced to six years at hard labor, with three years suspended and five years probation. He now appeals, contending that the trial court erred in denying the motion to quash. For the following reasons, we affirm the conviction and sentence.
FACTS
The victim, S.B., testified at trial. Her date of birth was July 16, 1992. The defendant is her uncle. According to the victim, when she was seven years old, the defendant "made [the victim] pull down [her] underwear and then showed me his." She stated the defendant also told her she did not need to put on underwear after her bath. The victim also described an occasion when she was in the living room with the defendant and "his stuff was out." Additionally, she testified the defendant had made sexual comments to her, such as "I want to play with Aunt Susie's thing."
We reference the victim herein only by her initials. See La. R.S. 46:1844(W).
The State also introduced into evidence a June 22, 2000 recorded interview with the victim. At the time of the interview, the victim was seven years old. She stated she had been outside with Uncle Tommy Beliew, and he told her, "Instead of working, I should go lay in bed and play with Aunt Susie's thing." He asked the victim if she heard him, and she replied, "No." He then repeated his statement. The victim stated Aunt Susie's "thing" was her "cootie coo." Thereafter, the victim identified the vagina on a sketch of a girl as the "cootie coo."
Also in her recorded statement, the victim indicated that on another occasion, the defendant had asked her, "whenever [she] got bigger," did she want him to "put your thing in me." The victim told the defendant, "No," and he stated, "Fine then; be that way,"
Additionally, in her recorded statement, the victim stated when she had been in the computer room with the defendant, he had made her pull down her shorts and panties. He then pulled down his blue work pants and white underwear and showed her his "thing." The victim indicated the defendant's "thing" was "poking out." He told her the reason he pulled down his pants was because, "I made you show yours to me." The victim also indicated the defendant had pulled down his pants in the living room in her presence.
The defendant testified at trial. He conceded the victim lived in his house in 2000. He denied committing the acts he had been accused of by the victim.
UNTIMELY COMMENCEMENT OF TRIAL
In his sole assignment of error, the defendant argues the trial court abused its discretion in denying the motion to quash because the State failed to prove prescription was interrupted or suspended.
Except as otherwise provided in Louisiana Code of Criminal Procedure, Title XVII, Chapter 2, no trial shall be commenced in non-capital felony cases after two years from the date of institution of the prosecution. La. Code Crim. P. art. 578(A)(2). Indecent behavior with a juvenile is a non-capital felony. La. R.S. 14:81(C) (prior to amendment by 2006 La. Acts No. 103, § 1 and 2006 La. Acts No. 224, § 1).
The period of limitation established by Article 578 shall be interrupted if the defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record. La. Code Crim P. art. 579(A)(3). The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists. La. Code Crim P. art. 579(B).
When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the State have less than one year after the ruling to commence the trial. La. Code Crim. P. art. 580. For the purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam).
Once the accused shows that the State has failed to bring him to trial within the time periods specified by La. Code Crim. P. art. 578, the State bears a heavy burden of demonstrating that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235 (La. 2/18/00), 755 So.2d 205 (per curiam).
Prosecution in this matter was instituted by bill of information filed September 5, 2000. Thus, absent interruption or suspension, the State had to bring the matter to trial no later than September 5, 2002. A review of the record indicates there were numerous suspensions, and an interruption on September 27, 2002, of the Article 578 delay in this matter.
This matter was originally scheduled for trial on October 30, 2000. On that date, on motion of the defense, the matter was continued to February 12, 2001. On February 12, 2001, on motion of the defense, the matter was continued to March 26, 2001. On March 26, 2001, on joint motion of the State and the defense, the matter was continued to May 7, 2001. On May 7, 2001, on motion of the defense, the matter was continued to June 4, 2001. Thereafter, on October 8, 2001, on motion of the defense, the matter was continued to November 5, 2001. On November 5, 2001, on motion of the defense, the matter was continued to January 7, 2002. Thereafter, on April 15, 2002, on joint motion of the State and the defense, the matter was continued to May 28, 2002. Subsequently, the defendant was present in court with counsel on September 23, 2002, when the trial court continued the matter to September 27, 2002. On September 27, 2002, the defendant failed to appear. The trial court ordered the personal surety bond forfeited, and issued an attachment for the arrest of the defendant. On October 28, 2002, defense counsel appeared in court without the defendant; the trial court ordered the attachment rescinded, and set the matter for trial on January 27, 2003. At this point, absent further interruption or suspension, the State had until October 28, 2004, to bring the matter to trial.
On February 12, 2004, the defense moved to quash, under Article 578. The defense concedes the motion to quash was not heard until March 16, 2010. At the hearing, the trial court denied the motion, noting the Article 578 time period had been interrupted on September 27, 2002, and had been suspended by numerous motions to continue by the defense.
The trial court correctly noted the interruption and suspensions of the Article 578 time period and did not err in denying the motion to quash. Following the court's ruling, the State had until at least March 16, 2011, to commence trial. See Article 580(A). Prior to that time, the defense filed numerous preliminary pleas including a motion for a bill of particulars (December 17, 2009), numerous motions to suppress (December 17, 2009), and a motion for discovery (March 12, 2010), which suspended the Article 578 time period until being withdrawn on the day of trial. The jury trial timely commenced on September 12, 2011.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.