Opinion
DOCKET NUMBER 2023 KA 0597
01-11-2024
STATE of Louisiana v. Malcolm J. CHESTER
Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana and Summer Duhe Vicknair, Hammond, Louisiana, Attorneys for Defendant-Appellant Malcolm J. Chester Scott M. Perrilloux, District Attorney, Kaitlyn McMorris, Taylor Anthony, Assistant District Attorneys, Amite, Louisiana and Jeanne Rougeau, Assistant District Attorney, Livingston, Louisiana, Attorneys for Appellee State of Louisiana
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT, DIVISION B, IN AND FOR THE PARISH OF TANGIPAHOA, STATE OF LOUISIANA, DOCKET NUMBER 2000109, HONORABLE CHARLOTTE HUGHES FOSTER, JUDGE PRESIDING
Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana and Summer Duhe Vicknair, Hammond, Louisiana, Attorneys for Defendant-Appellant Malcolm J. Chester
Scott M. Perrilloux, District Attorney, Kaitlyn McMorris, Taylor Anthony, Assistant District Attorneys, Amite, Louisiana and Jeanne Rougeau, Assistant District Attorney, Livingston, Louisiana, Attorneys for Appellee State of Louisiana
BEFORE: THERIOT, PENZATO, AND GREENE, JJ
GREENE, J.
2The defendant, Malcolm Chester, was charged by bill of information with one count of aggravated crime against nature of a victim under the age of eighteen, a violation of La. R.S. 14:89.1(A)(2). He pled not guilty and, following a jury trial, was found guilty of aggravated crime against nature of a victim under the age of thirteen, a violation of La. R.S. 14:89.1(C)(2). The trial court denied the defendant’s mo- tions in arrest of judgment and for new trial, and sentenced him to ninety-nine years imprisonment at hard labor, with twenty-five years to be served without benefit of probation, parole, or suspension of sentence. The defendant subsequently filed a motion to reconsider sentence, which was likewise denied by the trial court.
The defendant now appeals, assigning as error the trial court’s denial of his motion in arrest of judgment, the jury’s nonresponsive verdict, and the trial court’s imposition of an illegal sentence. For the following reasons, we reverse the conviction, vacate the sentence, and remand to the district court for a new trial.
STATEMENT OF FACTS
In October of 2019, twelve-year-old A.C. lived with her paternal grandparents and her siblings in Ponchatoula, Louisiana. Upon returning home from school one day, A.C. saw her father, the defendant, outside working on his vehicle. A.C. asked if she could go to her brothers’ football game, to which the defendant replied no. The defendant then forced her into a trailer located on the property, threw her onto a bed, and inserted his penis into her vagina.
In order to protect the identity of the victim, we reference the victim by their initials. See La. R.S. 46:1844(W).
When A.C. returned to school on October 15, 2019, she reported to a teacher and a counselor that she was "molested." After A.C. repeated the allegations against the defendant in a forensic interview, Lieutenant Beth Russell with the Tangipahoa Parish Sheriff’s Office obtained and executed a search warrant of the house and trailer, as well as an arrest warrant for the defendant. In the trailer, officers seized bedding, which was analyzed and determined to contain the DNA of A.C. and the defendant.
At trial, the defendant denied raping A.C.
3 DEFICIENT BILL OF INFORMATION
In his first assignment of error, the defendant argues that the trial court erred in denying his motion in arrest of judgment because the bill of information was deficient. Specifically, he contends that the bill of information failed to allege that the victim was under the age of thirteen years, and, therefore, he was not fairly informed of the charge for which he was ultimately convicted and which carried a heavier sentence.
[1] A defendant has a constitutional right to be advised, in a criminal prosecution, of the nature and cause of the accusations against him. La. Const. art. I, § 13. The indictment or bill of information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. See La. Code Crim. P. art. 464; see also State v. Templet, 2005-2623 (La. App. 1st Cir. 8/16/06), 943 So.2d 412, 420, writ denied, 2006-2203 (La. 4/20/07), 954 So.2d 158. The bill of information must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. State v. Templet, 943 So.2d at 420.
[2–4] The time for testing the sufficiency of a bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d 810, 869, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). A defendant may not complain of technical insufficiency in an indictment for the first time after conviction, when the indictment fairly informed the accused of the charge against him and the defendant is not prejudiced by the defect. State v. C.L.J., 2011-0972 (La. App. 1st Cir. 12/29/11), 2011 WL 6916529, *5 (unpublished), writ denied, 2012-0677 (La. 9/14/12), 98 So.3d 821. Further, a defendant ordinarily cannot complain of the insufficiency of an indictment "unless it is so defective 4that it does not set forth an identifiable offense against the laws of this state, and inform the defendant of the statutory basis of the offense." C.L.J., 2011 WL 6916529 at *5.
We note that although the defendant filed a motion for a bill of particulars, there is no response by the State in the record. Moreover, according to the court minutes, the defendant appears to have filed a motion to quash, which was heard and subsequently denied by the trial court. However, the grounds for such motion are unclear, as the record is devoid of any motion to quash, and there is no transcript available from the hearing on such motion to quash. Thus, we find that the defendant is not precluded from raising this issue on appeal.
Pursuant to La. Code Crim. P. art. 859(1), the court shall arrest the judgment when "[t]he indictment is substantially defective, in that an essential averment is omitted[.]" A motion in arrest of judgment must be filed and disposed of before sentence. La. Code Crim. P. art. 861.
The bill of information in the present case alleged that on or about September 1, 2019, to October 15, 2019, the defendant committed an aggravated crime against nature, a violation of La. R.S. 14:89.1(A)(2), upon the victim, A.C., who was under the age of eighteen and related to the defendant. Whoever commits this offense shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both. La. R.S. 14:89.1(C)(1).
However, the jury found the defendant guilty of La. R.S. 14:89.1(C)(2), which reads, in pertinent part: "Whoever commits the crime of aggravated crime against nature as defined by Paragraph (A)(2) of this Section with a victim under the age of thirteen years … shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years."
Herein, the bill of information did not allege A.C.’s date of birth, nor did it allege that she was under the age of thirteen years at the time of the offense. Moreover, the bill of information did not allege that the defendant violated La. R.S. 14:89.1(C)(2). The record is devoid of any indication that the indictment was ever amended to add A.C.’s age or date of birth or amended to charge the defendant under La. R.S. 14:89.1(C)(2).
During jury selection, the State described the charge against the defendant as aggravated crime against nature with a person under the age of eighteen. The bill of information, which was read aloud to the jury at the beginning of trial, alleged that the 5defendant committed aggravated crime against nature against a victim under the age of eighteen.
The State noted: "[A]ggravated crimes against nature is any of the following, and the applicable part here that we’re going for is the sexual intercourse with the any ascendant or descendant, brother, sister, uncle, niece, and nephew with knowledge of their relationship. Specifically here is the engaging in any prohibited acts with a person under the age of eighteen years old who is known by the offender to be related as any biological child."
Throughout the trial, there was very little evidence introduced to establish A.C.’s age at the time of the alleged incident. A.C. did not testify as to her date of birth or her age at the time of the offense, nor did the State introduce A.C.’s birth certificate. However, A.C.’s forensic interview was played for the jury, wherein she stated that she was twelve years old at the time of the interview. A.C. also testified that she was fifteen years old at the time of trial. Finally, during the direct examination of Laura Anderson, the guidance counselor to whom A.C. confided, the State asked if she was "a counselor for a young girl who was twelve at the time[,]" to which Ms. Anderson replied in the affirmative.
The State on appeal claims that A.C. "specifically testified that the abuse started when she was six years old and continued until she was thirteen years old." However, this is not an accurate representation of A.C.’s testimony, On cross-examination, defense counsel asked A.C. how long the defendant was present after she got home from school on the day of the incident. She spontaneously replied, "He did it when I was six years old." Defense counsel repeated the question, and A.C. stated she didn’t know and asked how she was supposed to remember something that happened when she was "thirteen." Accordingly, A.C. did not "specifically testif[y]" that she was under the age of thirteen at the time of the offense. Further, the defendant was not charged with abusing A.C. when she was six years old; rather, he was charged with an incident occurring in the fall of 2019. Thus, any incident prior to the fall of 2019 is not relevant to the charged offense.
After the State rested, the trial court held a bench conference to discuss the proposed jury charges and noted that the bill of information alleged "under the age of eighteen[,]" while the testimony had been "under the age of thirteen." The State argued that "under the age of thirteen" was merely a sentencing provision which could be found by the judge, were the defendant convicted on the billed offense. After a recess, the trial court decided to instruct the jury that the defendant was charged with aggravated crime against nature when the victim is under the age of thirteen. The trial court further instructed the jury that aggravated crime against nature where the victim is under the age of eighteen was responsive to said charged offense. Defense counsel lodged several objections, noting that "under thirteen" was an essential element of the offense which was not alleged in the bill of information.
The State presents the same argument on appeal. We note that the State’s argument runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
6After the jury returned a verdict of guilty of aggravated crime against nature when the victim is under the age of thirteen, the defendant filed a motion in arrest of judgment in which he re-urged that the bill of information was deficient for failing to allege the victim’s age. The trial court denied the motion and stated that A.C. is the defendant’s daughter, "[s]o if anyone’s going to know [her] age, he should know [her] age."
On appeal, the State contends the bill of information was not defective, the defendant was fairly informed of the charge against him, and "[t]he age of the victim only became an issue for sentencing." The State further suggests that a brief reference to the enhanced sentence during a pre-trial hearing on the first day of trial fairly informed the defendant of the charge against him. We disagree. [5] After a thorough review of the record, we conclude the trial court erred in denying the defendant’s motion in arrest of judgment. Pursuant to La. Code Crim. P. art. 859(1), the court shall arrest the judgment when "[t]he indictment is substantially defective, in that an essential averment is omitted[,]" The age of the victim is an essential element under La. R.S. 14:89.1(A)(2) and (C)(2). See State v. Fellows, 52,744 (La. App. 2d Cir. 6/26/19), 277 So.3d 867, 872. However, the bill of information failed to allege A.C.’s date of birth or that she was under the age of thirteen at the time of the offense, or to otherwise put the defendant on notice that he was subject to the sentencing provisions of La. R.S. 14:89.1(C)(2). See State v. Susan, 54,-887 (La. App. 2d Cir. 3/8/23), 357 So.3d 1000, 1006-08, writ denied, 2023-00412 (La. 10/3/23), 370 So.3d 1071 (enhanced sentence vacated after jury found defendant guilty of molestation of a juvenile victim under the age of thirteen, where bill of information charged defendant with molestation of a juvenile victim under the age of seventeen and failed to allege victims’ names, ages, or birthdates).
On the first day of trial, the State filed a motion in limine to prohibit the defendant from referring to possible sentences "for the crime under the Habitual Offender Statute."
The written motion does not include the defendant’s possible sentencing exposure, nor does it allege that the defendant violated La. R.S. 14:89.1(C)(2) or that the victim was under the age of thirteen. During its argument to the trial court, the State noted that the defendant, if convicted, faced a sentence of twenty-five to ninety-nine years imprisonment. Without any objection from the defendant, the trial court granted the motion.
Accordingly, the trial court erred in relying on State v. Gragg, 2022-377 (La. App. 3d Cir. 9/21/22), 348 So.3d 254, when deciding to instruct the jury that the charged 7offense was aggravated crime against nature against a victim under the age of thirteen. In Gragg, the defendant argued he was not put on notice that the enhanced sentence under La. R.S. 14:89.1(C)(2) would be sought, as the bill of information did not allege that the victim was under the age of thirteen or charge the defendant under La. R.S. 14:89.1(C)(2). Although the appellate court found the State’s failure to allege the victim’s age and to charge the defendant under La. R.S. 14;89.1(C)(2) constituted deficiencies in the bill of information, the court concluded that such errors were harmless. According to the court, the defendant was clearly put on notice based on the inclusion of the victim’s date of birth in the bill of information, defense counsel’s awareness of the enhanced sentencing exposure prior to trial, and the State’s presentation of sufficient evidence at trial that the victim was under the age of thirteen. Gragg, 348 So.3d at 260-65.
As discussed supra, the bill of information herein did not include A.C.’s date of birth or her age at the time of the offense, nor did it charge the defendant under La. R.S. 14:89.1(C)(2). Unlike Gragg, the State did not produce sufficient evidence for a rational trier of fact to conclude that the State proved beyond a reasonable doubt that A.C. was under the age of thirteen at the time of the offense. Further, although the jury may have been able to conclude that A.C. was under the age of thirteen, the trial court’s instructions were erroneous and should not have been charged to the jury due to the defective bill of information.
We pretermit further discussion of the jury instructions, as they will be discussed in assignment of error two.
Moreover, we find the State’s arguments in brief unpersuasive. A mere passing reference to a potential sentence of twenty-five to ninety-nine years during a pre-trial hearing on the day of trial does not constitute notice that the State intended to prove that A.C. was under the age of thirteen. As noted herein, the defendant must be fairly informed of the charge against him through the bill of information. Because the bill of information in this case did not allege the victim’s date of birth, the defendant was not clearly put on notice that the State intended to prove that he committed aggravated crime against nature when a victim is under the age of thirteen. Cf. 8 State v. Riley, 2015-0142 (La. App. 1st Cir. 9/21/15), 2015 WL 5547489, *9-10 (unpublished), writ denied, 2015-1940 (La. 11/15/16), 209 So.3d 788 (defendant fairly informed of charge against him, where bill of information alleged victim’s date of birth and defendant failed to object to bill of information, jury instructions, and/or jury’s verdicts); and cf. State v. T.T., 2012-0146 (La. App. 1st Cir. 9/21/12), 111 So.3d 71, 75-76, writ denied, 2012-2617 (La. 5/17/13), 117 So.3d 509 (defendant clearly put on notice the State intended to prove victim was under the age of thirteen, where bill of information alleged victim’s date of birth and defendant stipulated the victim was his biological daughter who was under the age of thirteen).
Finally, the bill of information specifically charged the defendant under La. R.S. 14:89.1(A)(2) and was silent as to La. R.S. 14:89.1(C)(2). The State must explicitly note in the bill of information that the enhanced sentencing exposure is applicable to a defendant. See Susan, 357 So.3d at 1007; Gragg, 348 So.3d at 265. Thus, we cannot say the defendant was informed of his sentencing exposure under La. R.S. 14:89.1(C)(2) merely because he was charged under La. R.S. 14:89.1(A)(2). Cf. Gragg, 348 So.3d at 265; and cf. Fellows, 277 So.3d at 872-74 (no defect in bill of information which charged defendant under La. R.S. 14:89.1 in its entirety and alleged victim’s date of birth). Accordingly, the bill of information was substantially defective in that it excluded an essential element required for an enhanced sentence under La. R.S. 14:89.1(C)(2).
Consequently, the defendant was denied fair notice of both the crime for which he was ultimately tried and convicted, as well as that crime’s sentencing exposure. Although the defendant should know the age of his child, the defendant was not fairly informed of the charge against him, and the trial court erred in denying the defendant’s motion in arrest of judgment.
[6] A trial error does not provide grounds for reversal of a defendant’s conviction and sentence unless it affects substantial rights of the accused. La. Code Crim. P. art. 921; see La. Code Crim. P. art. 464; State v. Magee, 2011-0574 (La. 9/28/12), 103 So.3d 285, 318, cert. denied, 571 U.S. 830, 134 S.Ct. 56, 187 L.Ed.2d 49 (2013). Under the harmless-error test of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), the question is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." 9 State v. Burton, 2019-01079 (La. 6/30/21), 320 So.3d 1117, 1123 (per curiam). In Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993), the Supreme Court clarified that the inquiry "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." Burton, 320 So.3d at 1123.
[7]Under these circumstances, we find the defendant was clearly prejudiced by the defective bill of information and the trial court’s subsequent denial of his motion in arrest of judgment. The sentencing ranges under La. R.S. 14:89.1(A)(2) and (C)(2) are vastly different. While a conviction under (C)(2) carries a mandatory sen- tence of twenty-five to ninety-nine years imprisonment at hard labor, a conviction under (A)(2) is subject to a fine or imprisonment, with or without hard labor, for five to twenty years. La. R.S. 14:89.1(A)(2) and (C)(1) and (C)(2). Thus, although the defendant was charged with a crime carrying a potential maximum sentence of twenty years, he was ultimately convicted and sentenced in accordance with a crime with which he was never charged and which carried a much heavier sentence of ninety-nine years.
Moreover, we note the defendant was offered and rejected a plea deal. Had he been given fair notice that he was exposed to a sentence of ninety-nine years, he may have accepted the deal. Although the jury may have otherwise been able to conclude A.C.’s age from the evidence adduced at trial, the defendant was not fairly informed of the potential sentence he could receive under La. R.S. 14:89.1(C)(2). The trial court’s sua sponte decision to include the "under the age of thirteen" provisions in the jury instructions directly contributed to the jury’s verdict, as the jury would not have been instructed on the charge otherwise. Therefore, the trial court’s denial of the motion in arrest of judgment, when coupled with the defective bill of information, was not harmless error. Accordingly, this assignment of error has merit, and we remand to the district court for proceedings consistent with this opinion.
NONRESPONSIVE VERDICT
In his second assignment of error, the defendant argues that the jury’s verdict was nonresponsive to the crime charged in the bill of information.
10The trial court shall charge the jury as to the law applicable to the charged offense and to any other offenses of which the accused could be found guilty under the provisions of La. Code Crim. P. arts. 814 or 815. See La. Code Crim. P. art. 803. For crimes enumerated in Article 814, the only responsive verdicts which may be rendered are those prescribed therein. However, in all cases not provided for in Article 814, the responsive verdicts are guilty, guilty of a lesser and included grade of the offense, or not guilty. See La. Code Crim. P. art. 815.
[8]Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. State v. Price, 2017-0520 (La. 6/27/18), 250 So.3d 230, 232 (per curiam); see La. R.S. 14:5. Stated another way, "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." State v. Simmons, 2001-0293 (La. 5/14/02), 817 So.2d 16, 19.
[9] As the defendant herein was charged with aggravated crime against nature, which has no legislatively authorized responsive verdicts under La. Code Crim. P. art. 814, Article 815 necessarily applies by its plain language. See Price, 250 So.3d at 231. Accordingly, the only responsive verdicts for a charge of aggravated crime against nature are guilty, guilty of a lesser and included grade of aggravated crime against nature, and not guilty.
Prior to deliberation, the trial court instructed the jury, over defense objection, that the defendant was "charged with aggravated crime against nature when the victim is under the age of thirteen[,]" and that they must specifically find, among other elements, "[t]hat A.C. was under the age of thirteen at the time of the conduct[.]" The trial court provided the jury with "responsive lesser offenses to aggravated crime against nature when the victim is under age thirteen," which included: (1) guilty of attempted aggravated crime against nature when the victim is under age thirteen; (2) guilty of aggravated crime against nature when the victim is under age eighteen but age thirteen or older; (3) guilty of attempted aggravated crime against nature when the victim is under age eighteen but age thirteen or older; or (4) not guilty. (R. 390). Thereafter, the jury returned a verdict of guilty of aggravated crime against nature when the victim is under the age of thirteen.
11Although the trial court was bound by La. Code Crim. P. art. 815 and the plain language of the charging document, it ignored both. Aggravated crime against nature when the victim is under the age of thirteen is not a lesser and included offense of aggravated crime against nature when the victim is under the age of eighteen. As discussed supra, the sentencing enhancement contained in La. R.S. 14:89.1(C)(2) is an essential element of the offense. See Fellows, 277 So.3d at 872. In other words, to find the defendant guilty of this offense, the jury needs to find an additional fact, i.e., the victim was under the age of thirteen. No such finding is required in the defendant’s charged offense. Therefore, the jury found the defendant guilty of an offense greater than the offense charged, rather than a lesser and included offense. While the jury’s verdict was induced by the trial court’s erroneous jury instructions, the jury’s verdict was clearly nonresponsive to the charged offense and should have been refused by the trial court in accordance with La. Code Crim. P. art. 813. See State v. Thibodeaux, 380 So.2d 59, 61 (La. 1980); State v. Anderson, 2017-0927 (La. App. 1st Cir. 4/6/18), 248 So.3d 415, 418, writ denied, 2018-0738 (La. 3/6/19), 266 So.3d 901.
Article 813 provides the procedure to be followed when the jury returns an improper verdict: "If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal."
[10] The jury’s return of a nonresponsive verdict is an error that constitutes grounds for reversal. Moreover, a nonresponsive verdict is a patent error that does not require a contemporaneous objection. See La. Code Crim. P. art. 920(2); State v. Brown, 2021-01336 (La, 6/29/22), 345 So.3d 988, 991 (per curiam). Remanding for a new trial is an appropriate remedy when the jury returns a nonresponsive verdict. Anderson, 248 So.3d at 419; see also State v. Campbell, 95-1409 (La. 3/22/96), 670 So.2d 1212, 1214 (per curiam); Thibodeaux, 380 So.2d at 61-62. In recent opinions, however, the Louisiana Supreme Court has held that a nonresponsive verdict is an implicit acquittal of the crime charged. See Brown, 345 So.3d at 990-91; State v. Gasser, 2022-00064 (La. 6/29/22), 346 So.3d 249, 260-62; Price, 250 So.3d at 234-35; State v. Graham, 2014-1801 (La. 10/14/15), 180 So.3d 271, 278 (per curiam).
As discussed supra, the defendant objected to the inclusion of the "under thirteen" provisions in the jury instructions. Although he did not object to the jury’s return of a nonresponsive verdict, we find that he is not precluded from raising this argument on appeal.
12In Brown, the defendant was charged with aggravated flight from an officer and found guilty of the non-crime of attempted aggravated flight from an officer, which was presented to the jury as responsive to the charged offense. In holding that the jury’s verdict was nonresponsive and operated as an implicit acquittal of the charged crime, the court remanded to the district court for entry of a post-verdict judgment of acquittal. Brown, 345 So.3d at 990-91.
In so holding, the court explicitly overruled State v. Mayeux, 498 So.2d 701 (La. 1986):
[T]his court has previously questioned the continued viability of its Mayeux decision. See, e.g., [Graham, 180 So.3d at 277-78]. Moreover, this court found in [Price, 250 So.3d at 235], that a jury's return of a non-responsive verdict is an implicit acquittal of the crime charged…. Therefore, we explicitly overrule that portion of the Mayeux decision that found that a conviction "for a crime unresponsive under art. 814 and unspecific in our criminal law … operate[s] neither as a conviction nor acquittal." Mayeux, 498 So.2d at 705.
Brown, 345 So.3d at 990-91.
We find that Brown is distinguishable from the instant appeal. The defendant in Brown was convicted of a non-crime that was nonresponsive to the charged offense. The jury was given a full opportunity to return a verdict on the charged offense but instead returned a verdict for the "lesser," albeit nonresponsive, offense. Because a retrial would put the defendant twice in jeopardy, the jury’s verdict thus operated as an implicit acquittal of the charged offense.
[11] In the instant case, the defendant was convicted of an offense greater than the one with which he was charged. The offense charged, aggravated crime against nature when the victim is under the age of eighteen, required the jury to find that A.C. was under the age of eighteen. The greater offense required the jury to further find that A.C. was under the age of thirteen. The trial court specifically instructed the jury that an element of the offense charged was that "A.C. was under the age of thirteen at the time of the conduct[.]" The jury in this case, after a full trial on the merits, found the defendant guilty of "aggravated crime against nature when the victim is under age thirteen," rather than the charged offense, and that verdict was clearly reflected in the verdict form. See La. Code Crim. P. art. 810. Thus, the jury made an implicit finding that A.C. was under the age of thirteen, and thus necessarily under the age of eighteen, to convict the defendant.
[12] 13Consequently, we cannot say the jury’s return of a nonresponsive verdict necessarily and implicitly acquitted the defendant of any material element of the charged offense. See Campbell, 670 So.2d at 1214; State v. Joshlin, 2000-2921 (La. App. 1st Cir. 11/9/01), 804 So.2d 106, 109. Rather, by convicting the defendant of the greater offense, the jury necessarily found the State had proven the elements of the charged offense. Nonetheless, although the verdict rationally conformed to the evidence presented at trial, it was otherwise invalid and should not have been charged by the trial court. Campbell, 670 So.2d at 1214; Joshlin, 804 So.2d at 109. Over defense objection, the trial court erroneously modified the jury instructions to list the offense charged as "aggravated crime against nature when a victim is under the age of thirteen" and added "aggravated crime against nature when a victim is under the age of eighteen" as a responsive verdict. In essence, the trial judge unilaterally determined there was sufficient evidence to charge the defendant with a more serious offense than the one for which he stood trial. A trial judge has no such authority. See La. Code Crim. P. art. 61 (such power lies with the district attorney alone). Thus, we find the jury’s invalid verdict was the "equivalent of no verdict" and did not expressly convict or acquit the defendant of the charged offense. See State v. Broussard, 2020-547 (La. App. 3d Cir. 4/14/21), 318 So.3d 319, 324, denied, 2021-00669 (La. 9/27/21), 324 So.3d 91 (jury’s invalid verdict consid- ered as the equivalent of no verdict, either of conviction or acquittal).
[13–15] Moreover, because there was no conviction or acquittal of the charged offense, the State is not prohibited from retrying the defendant under the Double Jeopardy Clause. Where an invalid judgment has been obtained, double jeopardy has not attached to the defendant. See La. Code Crim. P. art. 595; Gasser, 346 So.3d at 265; Broussard, 318 So.3d at 324-25. The State may likewise retry a defendant whose conviction is set aside because of judicial error. This reflects a balancing of the defendant’s interest in seeing that criminal proceedings against him are resolved once and for all in a single prosecution against society's valued interest in enforcement of its criminal laws. United States v. Jorn, 400 U.S. 470, 483-84, 91 S.Ct. 547, 556-57, 27 L.Ed.2d 543 (1971). To allow another prosecution when patent error has occurred at trial, "reflects the judgment that the defendant’s double jeopardy interests … do not go so far as to compel society to so 14mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.’’ Jorn, 400 U.S. at 484, 91 S.Ct. at 556. Thus, double jeopardy does not prohibit a retrial of the charged offense. Broussard, 318 So.3d at 324-25.
Accordingly, a new trial is the appropriate remedy in this case, where judicial error prevented the jury from rendering a responsive verdict. See Campbell, 670 So.2d at 1213-14; Anderson, 248 So.3d at 420. Therefore, we reverse the conviction, vacate the sentence, and remand to the district court for a new trial.
In finding the defendant’s first two assignments of error have merit and thereby remanding the matter to the district court for a new trial, we pretermit discussion of the defendant’s remaining assignment of error regarding an illegal sentence.
CONVICTION REVERSED AND SENTENCE VACATED; REMANDED FOR NEW TRIAL.