Furthermore, Louisiana jurisprudence does not follow the “ ‘same transaction’ test which would prohibit prosecutions for different crimes committed during one sequential, continuing course of conduct .” State v. There is no merit to Defendant's argument that he was subjected to double jeopardy violations. Whether the matter is moot is academic since Defendant has failed to show that he was prejudiced by the trial court's denial of the motion. Despite Defendant's speculations of what should have been done before trial or why the jury acquitted Defendant of the offense charged in count one; he has failed to show that he suffered any prejudice because he was tried by a twelve-person jury rather than a six-person jury, all of whom concurred.“[T]rial of a six-person jury offense in a 12–person jury forum may take place if the offense is joined in a single proceeding with a 12–person jury offense, i.e., with an absolute felony necessarily punishable at hard labor.” State v. This court finds the two maximum sentences of twenty years, imposed consecutively for a total of forty years imprisonment, excessive individually and consecutively under the circumstances of the case and in comparison with similarly situated defendants and offenses. The girls were ten, twelve, and thirteen at the time of the acts, which occurred several times over a period of a little more than a year. Furthermore, as pointed out by Defendant, the trial court articulated no reasoning as to why it chose to impose the maximum sentences on counts two and three and then ordered the sentences to be served consecutively. The experience has had and undoubtedly will continue to have a significant effect on the victim.
The trial court erred when it denied defendant's motion at the close of the state's evidence for a directed verdict of not guilty with respect to Count One.3.
The Defendant was subjected to double jeopardy in violation of his rights under the United States Constitution and the Louisiana Constitution when neither the Indictment nor the evidence presented at trial established five separate, independent and distinct acts to support the five verdicts, convictions and sentences.
In the indictment, the State specifically alleges as the prohibited offenses: “indecent behavior and/or molestation and/or sexual battery of a juvenile [.]” At the time of the offenses, indecent behavior with juveniles was defined as:[T]he commission of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. While Defendant correctly states that there was no physical evidence to support the victim's testimony, he does not show where her testimony was inconsistent or contradictory. There is no merit to Defendant's assertion that the evidence was insufficient to establish five distinct acts of aggravated incest. Nor do we find that the trial court abused its discretion in ordering that the defendant's sentences run consecutively insofar as there were three victims and the offenses occurred on different occasions. CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO AND THREE VACATED; AND REMANDED FOR RESENTENCING. The victims' initials are used to protect their identities.
She further testified that he never threatened her in any way not to tell. Therefore, I do not find that [sic] this argument to have merit. The evidence was sufficiently set out with the jury finding Defendant guilty of counts two through six beyond a reasonable doubt. In fact, the other statute, incest, they also have their list on there—what it applies to—aggravated incest, has what it's applied to. As noted above, the incest statute, in pertinent part, states that the victim is one “who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relative: Child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.” La. Nevertheless, considering the circumstances of the instant offenses, particularly, the ages of the victims, their relationship to the defendant, and the permanent effect that the offenses will have on them, we find that the trial court did not abuse its discretion in imposing sentence. DECREEThis court affirms the convictions, vacates the sentences on counts two and three, and remands the matter to the trial court to reevaluate and address whether these two, twenty-year sentences imposed are excessive in light of the above jurisprudence and whether there is sufficient justification for imposing the sentences to be served consecutively.
In pertinent part, sexual battery was defined as:[T]he intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, where the offender who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]La. Finally, after her mother and Defendant divorced, she never said anything because he was gone, and she no longer had to deal with him. So, this was left for the jury's evaluation in reaching their ultimate verdicts in this case. Defendant's actions were lewd or lascivious acts with intent to arouse or gratify the sexual desires of either person, with the touching of the genitals with any instrumentality, all without her consent. Going back to the statute, the statute doesn't say this applies to people to whom you are related. The requirements for the contents of a bill of indictment or information are provided in La. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. Because the defendant received the same sentences previously imposed, we cannot say that the trial court did not consider the same mitigating factors. Therefore, this court vacates the sentences on counts two and three and remands the matter to the trial court to reevaluate and address whether these two, twenty-year sentences, individually and consecutively, are excessive in light of the above jurisprudence.
Lack of knowledge of the juvenile's age shall not be a defense. She further explained that when she was older, she simply told him “no,” and he left her alone. They decide whom to believe and whom not to believe. The victim was Defendant's stepdaughter and under his authority as a stepparent. 10/6/10), 47 So.3d 78, 85, this court discussed double jeopardy, in part, as follows: The Double Jeopardy provisions in the state and federal constitutions protect a defendant from both a second prosecution for the same offense and multiple punishments for the same criminal act. Urena at the end, they all end with “comma to whom he is related”. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. A defendant has a constitutional right to be advised, in a criminal prosecution, of the nature and cause of the accusations against him. Even given the consecutive nature of the penalties imposed on all three counts, the defendant's total term of imprisonment only amounts to one-fifth of his potential maximum exposure for the offenses. When a defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. We find, therefore, that the trial court did not err in ordering consecutive sentences and that the total sentence of 61 years at hard labor is not excessive. At the time of sentencing, Defendant was sixty-six years old. Without sufficient justification, we find that the two consecutive sentences totaling forty years is nothing more than cruel and unusual punishment.
The state presented insufficient evidence at trial to support the verdicts of guilty returned by the jury on Counts Two, Three, Four, Five and Six. Finally, the State must prove that the defendant has engaged in one of the prohibited acts with the victim.
Further, the trial court erred when it denied Defendant's Motion For New Trial which was based, in part, on this issue.2.
Further, the trial court erred when it denied Defendant's Motion to Reconsider Sentence Pursuant to C. ASSIGNMENTS OF ERROR NUMBERS ONE AND THREEDefendant argues that the evidence did not support the convictions for aggravated incest.
He argues he was convicted solely on the testimony of the victim, and there were insufficient specific details given to establish the elements of each count.
On June 8, 2013, Defendant filed a “Motion for New Trial” and a “Motion for Arrest of Judgment.” Both motions were heard and argued on July 29, 2013, following which both motions were denied. In the current case, at the time the offenses were committed, aggravated incest was defined, in pertinent part, as follows: A.