Opinion
NO. 2015 KA 1855
09-16-2016
STATE OF LOUISIANA v. ROBERT E. RICARD, JR.
Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant/Appellant Robert E. Ricard, Jr. Scott M. Perrilloux District Attorney Patricia Amos Assistant District Attorney Amite, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 21st Judicial District Court
In and for the Parish of Tangipahoa State of Louisiana
Case No. 1302326 The Honorable Robert H. Morrison, III, Judge Presiding Lieu T. Vo Clark
Mandeville, Louisiana Counsel for Defendant/Appellant
Robert E. Ricard, Jr. Scott M. Perrilloux
District Attorney
Patricia Amos
Assistant District Attorney
Amite, Louisiana Counsel for Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
The defendant, Robert Ricard, Jr., was charged by grand jury indictment with two counts of aggravated rape (victim under the age of thirteen), violations of Louisiana Revised Statutes 14:42A(4) (prior to amendment by 2015 La. Acts No. 184, §1). He entered a plea of not guilty and, following a jury trial, was found not guilty on count one and guilty of the responsive offense of molestation of a juvenile, a violation of Louisiana Revised Statutes 14:81.2, on count two. The defendant was sentenced to twenty years at hard labor. After the State objected to the leniency of the sentence, the district court vacated the twenty-year sentence and resentenced the defendant to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant objected to the sentence and filed a motion to reconsider sentence, which was denied. The defendant also filed motions for new trial, post-verdict judgment of acquittal, and arrest of judgment, all of which were denied as untimely.
The State subsequently filed a habitual offender bill of information alleging that the defendant was a third-felony habitual offender. The defendant initially refused to enter an answer to the allegations of the habitual offender bill. The district court ordered that the defendant's refusal to answer be entered as a denial and set the matter for a hearing. At the hearing, the State waived the mandatory minimum sentence and offered a sentence of forty years at hard labor without the benefit of probation, parole, or suspension of sentence. See La. Code Crim. P. art. 890.1A(1). Pursuant to the State's offer, the defendant admitted to the allegations in the habitual offender bill. The district court vacated the previously imposed twenty-five year sentence and resentenced the defendant to forty years at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, alleging one assignment of error. For the following reasons, we affirm the defendant's conviction, habitual offender adjudication, and sentence.
The habitual offender bill of information set forth the defendant's predicate offenses as: (1) March 9, 2004, guilty plea to simple burglary of an inhabited dwelling under the 21st Judicial District Court ("JDC"), Parish of Tangipahoa, docket number 104,846; (2) March 9, 2004, guilty plea to attempted simple kidnapping and illegal possession of stolen things under the 21st JDC, Parish of Tangipahoa, docket number 105,238; and (3) July 13, 2006, conviction for felon in possession of a firearm under the 21st JDC, Parish of Tangipahoa, under docket number 600,349 (underlying felony was the defendant's March 9, 2004, guilty plea to simple burglary under the 21st JDC, Parish of Tangipahoa, docket number 106,613). The State noted in the bill that the defendant's March 9, 2004, convictions could only be counted as one predicate. See La. R.S. 15:529.1B.
FACTS
On February 3, 2013, the defendant lived in the same household as the twelve-year-old victim K.M. (his niece) and his sister (the victim's mother). Also living in the household were the victim's two siblings and the victim's mother's boyfriend. The victim's mother hired the defendant to babysit her children while she and her boyfriend were at work and allowed him to live in their home. The victim's mother became suspicious after finding money on the victim's bedroom dresser that the victim stated was given to her by the defendant. The victim's mother spoke with the victim, who disclosed that the defendant had sex with her.
In accordance with Louisiana Revised Statutes 46:1844(W), the minor victim herein is referenced by her initials only.
The victim was examined at Children's Hospital where she met with forensic nurse practitioner, Ann Troy. According to the transcript of the victim's interview with Troy, the victim told Troy that the defendant "put his private part in [hers]." She stated that it occurred "[l]ike for a week" and began the Sunday prior to Super Bowl Sunday. The victim explained to Troy that while she was cleaning and doing her chores, the defendant approached her from behind, pulled down her clothes, and began "humping" her. According to the victim, the defendant inserted his penis into her anus. After speaking with the victim, Troy made a diagnosis of child sexual abuse.
The victim also participated in an interview with Joelle Henderson, a forensic interviewer with the Children's Advocacy Center. The victim told Henderson that the defendant raped her. According to the victim, the defendant walked up behind her while she was doing chores on the Sunday prior to Super Bowl Sunday, removed his penis from his pants, pulled her clothes down, threw her on the couch, and began turning her "side to side" and inserting his penis in her vagina and anus. She told him to stop, but he held her hands and continued. He kissed her cheek and told her that he loved her. According to the victim, when the defendant's "stuff started to come out of his penis, he stopped and wiped it, and she ran into the bathroom. The victim told Henderson that this occurred only once, and the defendant told her not to tell anyone what happened and threatened to hurt her if she told. The defendant also gave the victim money in exchange for her not telling her mother.
At trial, the victim testified that despite her attempt to resist him, the defendant raped her in February 2013. According to the victim, the defendant had sex with her twice, with the two occurrences taking place approximately one or two months apart. She testified that the last occurrence was on Super Bowl Sunday.
The defendant's younger sister, who was twenty-five years old at the time of trial, testified that when she was ten years old and living in the same household as the defendant, he raped her vaginally and anally multiple times. She also testified that she did not tell her sister, the victim's mother, about the abuse until she found out about the instant offense.
DISCUSSION
In his sole assignment of error, the defendant argues that the district court committed reversible error by giving an erroneous jury instruction as to the sentencing provision for the responsive offense of molestation of a juvenile. Specifically, the defendant contends that the district court informed the jury that the sentencing range for molestation of a juvenile was imprisonment for a term not less than five nor more than twenty years, but because the victim was twelve years old at the time of the offense, the correct sentencing range was a term of imprisonment not less than twenty-five years nor more than ninety-nine years. See La. R.S. 14:81.2D(1). According to the defendant, the erroneous instruction "tended to induce conviction through an erroneous statement of law" and was "highly prejudicial and essentially denied [him] a fair trial." He complains that the verdict returned is indicative of a compromise verdict, and "the jury was very likely influenced by the sentencing range[.]"
During trial, the parties reviewed the district court's proposed jury instructions, which included the incorrect sentencing range for the responsive offense of molestation of a juvenile. The defense did not object to the instructions or request any changes. Both the State and the defense agreed to allow the jury to take the portion of the instructions defining the offense and lesser included offenses into the jury room for deliberations.
When the district court read its jury charges, it defined the responsive offense of molestation of a juvenile as follows:
Molestation of a juvenile is the commission, by a person over the age of 17, of a lewd or lascivious act upon the person of any child under the age of 17, where there is an age difference of greater than three years between the two persons, and when the offender has the specific intent to arouse or gratify the sexual desire of either person, and the act is
accomplished by use of force, menace, or influence by virtue of a position of control or supervision over the juvenile.After reading the definitions of the other available responsive offenses, the court explained to the jury that sentencing was not its function, but was the "duty and responsibility of the court." It went on to explain that it was providing the jury with "the possible sentence, or range of sentences, which would be applicable if [it] convict[ed] the defendant of either of the offense charged or of a lesser included offense." It stated that the possible sentence for molestation of a juvenile was "not less than five, nor more than 20 years imprisonment." The sentencing range provided to the jury by the district court is that mandated under Louisiana Revised Statutes 14:81.2B(2), which provides, in pertinent part:
Thus, in order to convict the defendant of molestation of a juvenile, you must find, first, that [the defendant] was over the age of 17 at the time of the alleged act, that [the victim] was under the age of 17 at that time, and that there was an age difference of at least three years between [the defendant] and [the victim]; and that [the defendant] had a specific intent to commit a lewd or lascivious act upon the person of [the victim] to gratify the sexual desire of either [the defendant] or [the victim] on or about the period of January the 11th, through February the 4th, 2013, and/or on February the 3rd, 2013; and that [the defendant] either used force or menace to accomplish the act, or had influence over [the victim] at the time by virtue of a position of control or supervision over her.
Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both. (Emphasis added.)
The district court's definition was derived from Louisiana Revised Statutes 14:81.2A(1). We note that the court incorrectly stated that the age difference between the offender and the juvenile must be at least three years. The actual age difference between the offender and the juvenile, as provided under that section of the statute, is at least two years. --------
The defense did not object to the sentencing provision read by the district court or any portion of the jury instruction. When the parties returned for sentencing, the district court imposed a sentence of twenty years at hard labor. The State pointed out that the minimum sentence required for molestation of a juvenile, when the juvenile is under the age of thirteen, is imprisonment at hard labor for not less than twenty-five years. The State objected to the leniency of the twenty-year sentence. The district court then vacated that sentence, and resentenced the defendant to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. After the court resentenced the defendant, defense counsel objected, stating, "note our objection to the sentence. The jury instructions quoted the sentence for molestation of a juvenile as 5-25 The court responded, "I'm not sure that's a proper objection to the sentence, but it may be grounds for appeal so it's noted." Defense counsel then stated, "That's correct."
On appeal, the defendant argues that the district court's erroneous instruction induced his conviction and that he was denied a fair trial because the jury was "likely influenced by the sentencing range[.]" Louisiana Code of Criminal Procedure article 801 provides:
A. The court shall charge the jury after the presentation of all evidence and arguments. The court shall reduce its charge to writing if it is requested to do so by either a defendant or the state prior to the swearing of the first witness at the trial on the merits. The court's written charge shall be read to the jury. The court shall deliver a copy thereof to the defendant and to the state prior to reading it to the jury.
B. (1) After such written charge is read to the jury, a copy of the written charge shall be delivered to the jury if such delivery is consented to by both the defendant and the state in open court but not in the presence of the jury.
(2) The lack of consent by either the defendant or the state to the delivery of the written charge to the jury shall not be communicated to the jury.
C. A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is
made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.
As noted above, the defendant failed to object to the portion of the jury instructions of which he now complains. Under Louisiana Code of Criminal Procedure articles 801(C) and 841, there had to be a contemporaneous objection to the error to preserve it as an issue for appeal. Thus, the defendant's failure to object to this portion of the jury instructions waived any such claim on appeal. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694, 695 (per curiam); State v. Jackson, 2006-1904 (La. App. 1st Cir. 3/23/07), 960 So.2d 170, 173, writ denied, 2007-1026 (La. 11/16/07), 967 So.2d 523.
Moreover, we note that after the twenty-year sentence was imposed, the defendant did not object. It was not until after the State's objection to the leniency of the sentence and the district court's resentencing of the defendant to a term of imprisonment of twenty-five years that the defense lodged an objection. The objection lodged by the defendant was based on the sentence, not on the defendant's right to a fair trial due to the improper jury instructions. He complains for the first time on appeal that he is entitled to a new trial due to the erroneous instruction.
Further, after the State filed the habitual offender bill of information, the defendant admitted to the allegations in the bill and acquiesced to a term of imprisonment of forty years at hard labor without the benefit of parole, probation, or suspension of sentence. As a third-felony habitual offender, the defendant was exposed to a term of "imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction[.]" See La. R.S. 15:529.1A(3)(a). Thus, because the longest possible sentence for the conviction for molestation of a juvenile was ninety-nine years, the defendant was exposed to a term of imprisonment of not less than sixty-six years, with at least twenty-five years served without the benefit of probation, parole, or suspension of sentence. However, because the defendant's third felony was a sex offense involving a victim under the age of eighteen at the time of the commission of the offense and two of his prior felonies were either crimes of violence or were punishable by imprisonment for twelve years or more, the defendant was actually exposed to a statutory mandatory term of imprisonment for the remainder of his natural life, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.1(A)(3)(b). Accordingly, based on the defendant's instant and predicate offenses, his forty-year sentence was well below the mandatory minimum sentences to which he was exposed. See La. R.S. 15:529.1(A)(3)(a) & (b); La. R.S. 14:81.2(D)(1).
This assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.