State of Louisiana Versus Sylvester Hayman ( 2021 )

STATE OF LOUISIANA NO. 20-KA-323
VERSUS FIFTH CIRCUIT
SYLVESTER HAYMAN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 18,16, DIVISION "C"
HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING
April 28, 2021
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Hans J. Liljeberg
CONVICTION AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED;
REMANDED FOR RESENTENCING ON COUNT TWO AND FOR
CORRECTION OF UCO
HJL
MEJ
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Joel T. Chaisson, II
Louis G. Authement
COUNSEL FOR DEFENDANT/APPELLANT,
SYLVESTER HAYMAN
Gwendolyn K. Brown
LILJEBERG, J.
Defendant, Sylvester Hayman, appeals his conviction on count two for
attempted indecent behavior with a juvenile and his sentences on both count one
for indecent behavior with a juvenile and count two for attempted indecent
behavior with a juvenile. For the following reasons, we affirm defendant’s
conviction on count two and his sentence on count one. However, we remand the
matter to the trial court for resentencing on count two and for correction of the
Uniform Commitment Order.
PROCEDURAL HISTORY
On March 27, 2018, the St. Charles Parish District Attorney filed a bill of
information charging defendant, Sylvester Hayman, with two counts of molestation
of a juvenile in violation of La. R.S. 14:81.2. Defendant was arraigned on the
same date and pleaded not guilty. The bill of information was amended on March
11, 2019, to charge defendant with two counts of indecent behavior with a juvenile
in violation of La. R.S. 14:81 and to include the birthdates of both victims, E.G.
(4/27/09) and A.M. (11/14/11).1 Defendant was re-arraigned the same day and
pleaded not guilty. The bill of information was again amended on June 25, 2019,
to remove the phrase “by use of influence by virtue of defendant’s care, custody,
control and supervision of the juvenile” from the description of both counts as this
language pertained only to the original charges of molestation of a juvenile.
Defendant was re-arraigned that same date and again pleaded not guilty.
Jury selection began on June 25, 2019, and the twelve-person jury
unanimously convicted defendant on June 27, 2019, of indecent behavior with the
juvenile, E.G. (count one), and attempted indecent behavior with the juvenile,
1
In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3),
the judges of this Court have adopted a policy that this Court’s published work will use only initials to identify the
victim and any defendant or witness whose name can lead to the victim’s identity (i.e., parent, sibling, or relative
with the same last name as the victim). State v. E.J.M., III, 12-774, 12-732 (La. App. 5 Cir. 5/23/13), 119 So.3d 648.
In this case, A.M. and E.G are minor victims of a sexual offense and were juveniles at the time they testified at trial.
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A.M. (count two). The trial court requested a pre-sentence investigation prior to
sentencing. Defendant then filed motions for new trial and for post-verdict
judgment of acquittal on July 9, 2019. The trial court heard and denied these
motions on July 16, 2019. On October 1, 2019, the trial court sentenced defendant
on count one to twenty years of imprisonment in the Department of Corrections
with two years to be served without the benefit of parole, probation, or suspension
of sentence. As to count two, the trial court sentenced defendant to ten years of
imprisonment in the Department of Corrections with one year to be served without
the benefit of parole, probation, or suspension of sentence. The trial court ordered
the sentences to run consecutively, and also ordered defendant to register as a sex
offender for fifteen years upon his release from custody.
Defendant filed a motion to reconsider sentences on October 29, 2019. On
November 14, 2019, the trial court heard and denied the motion. The next day,
defendant filed a motion for appeal, which was granted on November 25, 2019.
On appeal, defendant challenges the sufficiency of the evidence presented on count
two, as well as the trial court’s denial of his motions for new trial and for post-
verdict judgment of acquittal as to that count. Defendant also challenges his
sentences as excessive, as well as the trial court’s denial of his motion to
reconsider his sentences.
FACTS
At trial, Deputy Emory Putman testified that on November 26, 2017, he and
Deputy Adam Coley were dispatched to 452 Killona Drive in Killona, Louisiana,
regarding a dispute between two family members, K.A.2 and defendant. Deputy
Putman testified that K.A. was located outside of the home when they arrived.
K.A. explained to the deputies that when she arrived at the residence, she had an
2
K.A. is referred to as an aunt throughout the record. K.A. is actually the children’s great-aunt as she is their
grandmother’s sister. The children’s grandmother, T.B., was the longtime girlfriend and later, wife of defendant.
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altercation with defendant regarding allegations of sexual abuse by defendant
involving two children located inside of the residence — E.G. (8 years old) and
A.M. (6 years old). The residence located at 452 Killona was owned by the
children’s great-grandmother, E.B., and at that time, the children lived there with
her and their two other siblings, as well their grandmother, T.B., and defendant,
who was her longtime boyfriend at the time.3
Deputy Putman testified that he entered the home and he spoke to the
children in a separate area away from the adults. However, there was no door and
the grandmother, T.B., repeatedly interrupted. Deputy Putman testified that he
first spoke with D.D., the brother of E.G. and A.M.4 Deputy Putman explained
that D.D. appeared upset, concerned, and “nervous about saying what he had to
say.” The State played portions of the video and audio recorded at the scene by the
deputy’s police unit, which included audio of the deputies’ conversation with D.D.
D.D. explained how he and his sisters spent time at his aunt K.A.’s house over
Thanksgiving. He explained that during their visit, A.M. told another girl, Mariah,
about alleged sexual abuse by defendant, who the children referred to as “Grandpa
Sy.” When the deputy attempted to question A.M. about what happened with
Grandpa Sy, she became emotional, started crying, and hugged herself.
After these discussions, the deputy requested that a juvenile detective come
to the scene. Deputy Putman indicated that Detective Jennifer Williams later
arrived. Neither defendant nor K.A. were arrested at that time in connection with
the disturbance that originally brought him to the scene nor with the sex abuse
allegations raised against defendant.
3
The children’s mother, A.D., testified that she was unable to care for her children at that time. According to
testimony, E.G. spent half of the time with her father, but A.M. was primarily in the custody of T.B. and defendant
at that time.
4
Initials are used to protect the identity of juveniles at the time of trial who testified as witnesses for the State in this
case. See State v. Rodas, 15-792 (La. App. 5 Cir. 9/22/16), 202 So.3d 518, 521 n.2, writ denied, 16-1881 (La.
9/6/17), 224 So.3d 980.
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Deputy Coley with the St. Charles Parish Sheriff’s Office also testified that
he was dispatched to 452 Killona Drive on November 26, 2017. He testified that
he learned K.A. was at the residence because she brought the children back home
after spending time at her home in Covington, Louisiana. K.A. explained that she
was upset when she saw defendant at the residence and confronted him about the
sexual abuse allegations the children reported to her. Deputy Coley testified that
K.A. indicated she was angry with defendant because she believed he was a child
molester.
Deputy Coley also entered the home to speak with the children. He
described D.D. as guarded and uncomfortable. When they asked D.D. about the
allegations the girls made against defendant, Deputy Coley explained that D.D.
made a hand gesture. D.D. said the girls made this same hand gesture at K.A.’s
house. When asked to demonstrate the hand gesture made by D.D. at trial, Deputy
Coley made a circle with one hand and inserted his pointer finger from his other
hand through the circle. Deputy Coley testified that when he asked A.M. what
happened with “Grand Daddy Sy,” she bent over, dropped her head, and began
crying.
Former Detective Jennifer Williams testified that she retired from the
juvenile division of the St. Charles Parish Sheriff’s Office in April 2018. She was
also called to 452 Killona Drive on November 26, 2017, concerning a disturbance
and an allegation regarding children. Ms. Williams stated that upon her arrival,
Deputy Coley explained the situation to her. She did not attempt to speak to the
children at the scene. Rather, she instructed K.A. to remove the children from the
home and bring them to the juvenile division the next day. She further testified
that she did not arrest defendant that night.
Ms. Williams stated that K.A. brought the children to meet her the next day.
Ms. Williams and Detective Holly Laurent took recorded statements from the
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children’s great-aunt, K.A., the children’s grandmother, T.B., D.D., A.M., and
E.G., who is D.D. and A.M.’s sister. According to Detective Laurent, D.D.
explained that he told his aunt, K.A., about a conversation his sisters and a friend
of the family named Mariah had about something that happened with Grandpa Sy.
D.D. did not provide any further details regarding the conversation.
During her interview with E.G., Detective Laurent found E.G. was
withdrawn. E.G. shut down and did not want to talk once they began discussing
why she was there. E.G. told Detective Laurent that her brother and Mariah told
her aunt something, but she did not know what. E.G. also told her that when she
asked her sister why she always went with Grandpa Sy, her sister responded,
“‘[w]ell if I don’t, he’s going to kill me.’” Detective Laurent testified that she then
asked E.G. if she “hung out” with defendant, and E.G. replied that she did not.
Detective Laurent asked E.G. why not and testified that E.G. “immediately shut
down. She tried to speak. She would speak a couple of words. She started saying,
‘[w]ell when I was five, six, and seven,’ and then she kind of paused a little bit,
and then she said, ‘there was a white trailer.’ She paused for a little bit, and then
she said, ‘[y]ou know, I want to tell you. I just can’t say the word.’” Detective
Laurent testified that she then asked E.G. if she could spell the word, and E.G.
answered affirmatively. Detective Laurent testified that she “spelled out ‘S-E-X’.”
Detective Laurent then asked E.G. if it was a good or bad thing, and E.G. told her
it was bad.
Detective Laurent also asked E.G. if defendant used his hands, and E.G.
responded affirmatively. She asked E.G. if defendant used any other body parts,
and E.G. again indicated he had. Detective Laurent testified that she asked what
body parts were used, but E.G. began crying and would not answer. She also
asked E.G. if this happened once or more than once, and E.G. told her it was just
one time.
20-KA-323 5
Detective Laurent then spoke to A.M., who was six years old at the time of
the interview. Detective Laurent described A.M. as very withdrawn. After asking
general questions, Detective Laurent asked her about the conversation she had with
her sister and Mariah in the bathtub. She stated that A.M. then shut down, would
not answer any more questions, and started crying. Detective Laurent testified that
she asked about her sister, and A.M. said that her sister told her that somebody
wanted to hurt her. After that, A.M. would not provide any more information.
Detective Laurent and Ms. Williams testified that after the interviews, they referred
E.G. and A.M. to Children’s Hospital for physical exams and forensic interviews.
D.D. testified that he was eleven years old at the time of trial. He indicated
that E.G. and A.M. are his little sisters. He recalled going to his aunt K.A.’s house
for Thanksgiving in 2017. He stated he, K.A, his two sisters, his brother, and his
aunt’s co-worker’s daughter, Mariah, were all at the house. He testified that “the
girls” were in the bathtub talking. D.D. said Mariah then came out and told him
“what the girls had said.” He then went to his aunt and told her they had
something to tell her. He said he went to his aunt because she was the adult in the
house and he thought somebody needed to know. He indicated that Mariah and
E.G. then told K.A. what was said in the bathtub. D.D. also indicated that both of
his sisters and Mariah made the hand gesture he showed to the deputies.
D.D. recalled returning to his grandmother’s house in Killona and the police
going to the house. He indicated that he spoke to the police and that no one told
him what to say. He stated that he, his grandmother, Grandpa Sy, his two sisters,
his brother, and his great-grandmother lived at 452 Killona. D.D. testified that the
four children stayed in one room together with two beds, while T.B. and Grandpa
Sy stayed in a different room right next to the children’s room. He noted that his
great-grandmother’s room was “all the way in the back.”
20-KA-323 6
He testified that his grandma, T.B., and Grandpa Sy lived in the white
trailer next door for two or three years, and they also previously lived in a beige
trailer. He stated he and his three siblings lived in the white trailer, and he thought
his sisters lived in the beige trailer, but he did not live there. He testified that he
thought his mother, A.D., lived in the white trailer “at one time but not
permanently,” and his cousin Ashley also lived there. D.D. testified that the white
trailer had two bedrooms, so his mother slept on the sofa, and Ashley slept “in the
big chair.” D.D. indicated that Grandpa Sy woke up early for work when they
lived in the white trailer, and the children would all still be sleeping.
He did not remember Grandpa Sy ever taking E.G. or A.M. out of their bed
and said he did not see Grandpa Sy touch them in a way that made him
uncomfortable. He further noted that he and E.G. previously stayed with the other
side of their family “all the time,” and they moved between relatives frequently.
D.D. indicated that while they lived in the blue house (452 Killona Drive), E.G.
told him once that Grandpa Sy touched her inappropriately. He said they were
awake talking on the sofa around two in the morning, and he did not tell anyone
about it because everyone was asleep.
A.D. testified that she is E.G. and A.M.’s mother. She stated that E.G. was
born on April 27, 2009, and A.M. was born on November 14, 2011. She explained
the children’s living arrangements over the years and testified that defendant and
her mother, T.B., moved from Maryland to St. Charles Parish in 2012 to help care
for her children. She indicated that starting in February 2013 through May 2014,
when E.G. was four to five years old, E.G. resided with T.B. and defendant at 460
Killona Drive, which was the white trailer next door to 452 Killona. E.G. then
lived with A.D. for some time and then with E.G.’s father. E.G. then returned to
live with T.B. and defendant from July 2015 to August 2016, where they resided in
a beige trailer. After that, E.G. went to live with A.D. in Houston for second
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grade, but from June 2017 through November 2017, E.G. again stayed with T.B
and defendant, who then lived with E.B. at 452 Killona. After the allegations were
raised against defendant in November 2017, E.G. then resided with her paternal
grandmother, D.H.
A.D. also testified that starting in November 2012, when A.M. was
approximately one-year-old, A.M. lived with T.B. and defendant. This continued
for over three years until January 2016. A.D. explained that at first A.M. lived
with them in the white trailer and they later moved into a beige trailer. A.D. stated
that A.M. lived with her in Houston from January 2016 until the summer of 2017.
A.M. then stayed again with T.B. and defendant in her grandmother’s home from
the summer of 2017 through November 2017, when the allegations were reported.
A.D. acknowledged that she lived in the white trailer from February 2013 to
March of 2014 and that during that time, her children were occasionally left alone
with defendant and her grandmother while she, her mom, and her cousin would go
to the grocery store. A.D. stated that her cousin Ashley only lived in the white
trailer from February 2013 until June 2013. She also stated that her mother and
grandmother were not employed while the children lived with them and that
defendant paid the bills. A.D. acknowledged that she and defendant had discussed
him adopting A.M. She stated she did not see defendant behave inappropriately
with E.G. or A.M. She testified that the girls would run to and hug him when he
got home from work, and they would all play games together.
On December 4, 2017, Lieutenant Kinler with the St. Charles Parish
Sheriff’s Office conducted a forensic interview of E.G. and A.M. on December 4,
2017. Lieutenant Kinler testified that during E.G.’s interview, E.G. would not
speak about why she was there, but agreed to write down what happened.
Lieutenant Kinler read E.G.’s first written statement to the jury as follows:
20-KA-323 8
‘When it was Thanksgiving, I was at my Auntie [K.A.’s] house.
When I got in the tub with [A.M.], Mariah asked my little sister did
Sylvester ever touch my sister. She said yes. Then I asked her why
do she always go with our grandpa-pa. She said because he would kill
her. And then that night my brothers and’ . . . ‘Mariah told what
happened. Then the next day we left to go to drop us off to go to
school.’
After reviewing this statement, Lieutenant Kinler asked E.G. if she was
trying to say that her sister was touched and E.G. responded affirmatively.
Lieutenant Kinler then asked E.G. if she was touched and E.G. responded
affirmatively. Lieutenant Kinler asked E.G if she would like to write about that
and E.G. wrote the following second statement that Lieutenant Kinler read to the
jury:
‘When I was four, five, six, and seven, my grandpa-pa would always
wake me up in the middle of the night when nobody was awake. He
humped me on the sofa in the white trailer. Then we was in my Nana
house, he did it again and I told him if he don’t stop, I’ll call the
police and then he stopped.’
Lieutenant Kinler attempted to obtain further details from E.G. regarding her
second statement, but E.G would not respond further either verbally or in writing.
In the video of her forensic interview with A.M., Lieutenant Kinler asked
A.M. about defendant. A.M. told Lieutenant Kinler that she no longer sees
Grandpa Sy and did not want to talk about him. Lieutenant Kinler then asked
A.M. if she would like to respond by drawing. A.M. responded affirmatively and
made three drawings during her interview. Lieutenant Kinler explained that in her
first drawing, A.M. identified a figure on a bed as herself saying “no,” identified
another figure next to the bed as Grandpa Sy, and another figure as “a broken heart
and herself.” She stated the second picture contained her sister, E.G., with braids,
a tooth and Grandpa Sy. She stated that A.M. also wrote “yes,” “no,” and “on” on
the page. Finally, Lieutenant Kinler described that in the last drawing, A.M.
identified her grandmother, herself, and a heart.
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E.G. and A.M. both briefly testified at trial, but were not questioned about
their reports of abuse by defendant. Rather, they viewed their forensic interviews
conducted by Lieutenant Kinler with the jury. They both confirmed that they were
not told what to say during the interviews and that they told the truth.
Marcey Willette is employed by Child Advocacy Services where she
provides counseling to children and families. She testified that she met with E.G.
five times and discussed a March 12, 2018 trauma assessment questionnaire
completed by E.G. On the questionnaire, E.G. circled a response indicating she
was a victim of “sexual abuse, sexual assault, or rape.” When asked what age it
happened the first time, E.G. circled the option stating “zero through six,” and the
option of “seven through twelve” for when it happened for the last time. When
asked how many times this happened, E.G. circled “two to five times.” E.G. also
circled a response indicating she had witnessed “another person being beaten,
raped, threatened with serious harm, shot at, or seriously wounded, or killed.” Ms.
Willette identified her handwritten notation under this question that stated “sister
told sexual abuse.” Finally, Ms. Willette stated that E.G. reflected on the
questionnaire that “sexual abuse, sexual assault, or rape” caused her the most
distress.
Pediatric forensic nurse practitioner Dr. Troy testified that she is a health
care provider at Children’s Hospital and was accepted as an expert in child
maltreatment, sexual abuse, and delayed disclosure. Dr. Troy stated that she
conducted a forensic medical exam of E.G. on December 30, 2017. Dr. Troy
testified that a portion of her examination of E.G. was audio recorded and that
portion was played for the jury. In the audio-recorded portion of Dr. Troy’s
examination, Dr. Troy asked E.G. if anyone ever touched her “pee-pee part,” and
when E.G. did not immediately respond, Dr. Troy told her she could write it. E.G.
then replied, “my grandpa.” When Dr. Troy asked her what her grandpa’s name
20-KA-323 10
was, E.G. responded, “Sylvester.” In response to Dr. Troy’s questions, E.G. said it
happened more than one time and that it happened in the white trailer. E.G. stated
that it was at nighttime, when they were inside the house sleeping. Dr. Troy asked
if anyone told E.G. to keep a secret. Dr. Troy indicated that E.G. shook her head
indicating yes. Dr. Troy asked if Sylvester asked her to keep a secret and E.G.
replied affirmatively. Dr. Troy also asked E.G. if Sylvester said what would
happen if she did not keep the secret or if anyone said they would hurt her if she
said anything. E.G. did not respond and Dr. Troy again asked E.G. if she wanted
to write it. She indicated that E.G. was crying and did not reply for the remainder
of the recording.
Dr. Troy testified that she then turned off the recording device in an effort to
allow E.G. to feel more comfortable in explaining what happened to her. E.G. told
her “it went in her front private; that her clothes were off; that she told her brother
[D.D.]; and she was talking about her grandfather.” Dr. Troy also testified that
E.G. indicated she saw defendant’s front private, and it “had gone in.” She stated
that E.G. told her it happened in the white trailer, and it occurred more than once.
E.G. told her it felt bad and wrote down the word “in” and pointed to the body
parts at issue on a diagram.
Dr. Troy then conducted a physical exam. She found that the external
genitalia and hymen were normal, and indicated that both findings were as she
anticipated. Dr. Troy testified that her diagnosis for E.G. was “child sexual abuse
more than one time.” Dr. Troy did not examine A.M. because her guardian did not
bring her for the appointment.
Defendant testified that he was sixty years old at the time of trial. He
explained that he moved from Louisiana to Maryland in November 2012 to help
care for his wife’s grandchildren.5 Defendant stated he has nine children, seven of
5
Defendant married the children’s grandmother, T.B., on March 10, 2019, a few months prior to the trial.
20-KA-323 11
whom are female, and thirty-five grandchildren. He testified that A.M. is his
favorite, that he would “pick her” over his own daughters because he had her since
she was a baby, and he tells his daughters A.M. is his daughter.
Defendant stated he would never do anything like the allegations made
against him. He denied that he ever “humped” E.G. or behaved inappropriately
with A.M. He also denied that he was ever alone with the children. Defendant
testified that he had never been convicted of a sex crime, but was previously
accused by K.A. in 2015. He stated that the two allegations by K.A. were the only
allegations of inappropriate behavior between him and the children.
Defendant further testified that he worked for Cajun Company and that Hope
Dumas was his supervisor. He explained that Ms. Dumas picked him up almost
every day for work between 4:30 and 5:00 in the morning. He stated that his
grandchildren would be sleeping when he left for work, and he denied ever taking
any of his grandchildren from their beds before he left. Hope Dumas confirmed
that she was defendant’s supervisor for approximately four years and would pick
defendant up for work from his home on Killona Drive between 5:00 and 5:10 a.m.
Defendant’s daughter, Shenese Hayman, testified that she lives in Maryland
and is a mental health social worker. Ms. Hayman testified that she lived with her
father a large part of her life and her mother was in the military. She recalled that
defendant and T.B. once brought A.M. to Maryland for roughly two weeks. She
described A.M. as very loving and attached to defendant.
LAW AND DISCUSSION
Sufficiency of Evidence
In his first assignment of error, defendant asserts that the evidence is
insufficient to support his conviction on count two, attempted indecent behavior
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with a juvenile, A.M.6 Defendant argues that the State presented no physical or
testimonial evidence to support the charge. He also asserts in assignments of error
two and three that the trial court erred in denying the motions for new trial and for
post-verdict judgment of acquittal on these same grounds.
Defendant argues that the abuse was allegedly first reported by A.M. and
E.G. to Mariah, who then reported it to K.A., and neither were called to testify.
Defendant states that A.M.’s trial testimony did not contain allegations against
him, but merely identified herself in the video of the forensic interview and
affirmed that she was not told what to say or draw. Defendant further avers that
A.M. made no allegations against him in her interviews. He also argues that
A.M.’s drawings produced during the forensic interview with Lieutenant Kinler
were simplistic and ambiguous. Defendant asserts that none of the three drawings
are sufficient to support a conclusion that he attempted to commit a lewd or
lascivious act upon or in the presence of A.M.
In response, the State asks that in light of Jackson v. Virginia,7 this Court
recognize the following facts as proven at trial: A.M. could not answer Deputy
Putman’s questions at the scene because she was overwhelmed with emotions and
Deputy Coley testified that she dropped her head and cried; D.D. testified that his
two sisters and Mariah used the hand gesture to convey to him what defendant was
doing to both of his sisters; E.G. stated that A.M. told her she spends so much time
with defendant because if she does not, he would kill her; in Detective Laurent’s
interview with A.M., she was withdrawn, she shut down when asked questions,
and cried; A.D. left A.M. alone with defendant, and A.M. permanently lived with
him during the relevant periods; E.G.’s handwritten statement reveals A.M. was
6
Defendant does not contest the sufficiency of the evidence with respect to his conviction on count one for indecent
behavior with a juvenile, E.G.
7
443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
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abused by defendant; A.M.’s drawing depicts the bed upon which defendant
abused her, the word “no,” and a broken heart to reflect what he did to her; and
E.G.’s trauma assessment questionnaire indicates A.M. was sexually abused.
The State notes that the jury heard testimony from both victims and watched
them at trial. The jury also listened to the officers’ audio recording and the
victims’ interviews by trained professionals. The State contends that other than
defendant’s self-serving denial, no evidence or testimony undermined the victims’
testimony. The State also argues that defendant had opportunities to abuse A.M. as
she lived with him most of her life. The State contends that A.M. trusted
defendant and he threatened her life, thus causing the fear that prevented her from
speaking to professionals.
The constitutional standard for sufficiency of the evidence is whether, upon
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could find that the State proved all of the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). This directive that the evidence be viewed in the light most
favorable to the prosecution requires the reviewing court to defer to the actual trier
of fact’s rational credibility calls, evidence weighing, and inference drawing. State
v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This deference to
the fact-finder does not permit a reviewing court to decide whether it believes a
witness or whether the conviction is contrary to the weight of the evidence. State
v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-
1305 (La. 2/5/10), 27 So.3d 297. In the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. Clifton, 248
So.3d at 703.
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La. R.S. 14:81 defines indecent behavior with a juvenile, in pertinent part, as
follows:
A. Indecent behavior with juveniles is the commission of any of the
following acts with the intention of arousing or gratifying the sexual
desires of either person:
(1) 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. Lack of knowledge
of the child’s age shall not be a defense;
A lewd or lascivious act is one which tends to excite lust and to deprave the
morals with respect to sexual relations and which is obscene, indecent, and related
to sexual impurity or incontinence carried on in a wanton manner. State v. J.M.,
14-579 (La. App. 5 Cir. 2/11/15), 189 So.3d 1079, 1087. This encompasses not
only the physical touching of the victim in an indecent manner, but also indecent
sexual displays in the presence of children under the age of seventeen. State v.
Lestrick, 13-289 (La. App. 5 Cir. 10/9/13), 128 So.3d 421, 429, writ denied, 13-
2643 (La. 4/25/14), 138 So.3d 643.
On count two, defendant was found guilty of attempted indecent behavior
with a juvenile. Attempt is defined in La. R.S. 14:27(A) as:
Any person who, having a specific intent to commit a crime, does or
omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.
As noted above, defendant contends the evidence is insufficient because
A.M. did not provide testimony at trial to support the charge, her extrajudicial
statements are inadequate, and her drawings are ambiguous and insufficient. He
contends that no other physical or testimonial evidence exists to support the
charge. However, upon review of the record, we find that defendant ignores the
evidence from sources other than A.M. The allegations against defendant came to
light on Thanksgiving Day of 2017, when D.D. told his great aunt, K.A., that his
20-KA-323 15
sisters disclosed to Mariah that defendant was sexually abusing them. D.D. further
explained that his sisters used hand gestures to communicate what defendant did to
them. During her interview with Lieutenant Kinler, E.G. wrote that A.M. told her
and Mariah in the bathtub that defendant touched her and that she spent time with
defendant because he would kill her if she did not. Further, Ms. Willette testified
that E.G. indicated to her that A.M. disclosed sexual abuse to her. E.G. testified
that she was never told by anyone what to say or write.
In her drawing made during her interview with Lieutenant Kinler, A.M.
identified herself on a bed saying “no” and also identified defendant next to her on
the bed. She drew another figure that she identified as a broken heart. The jury
was able to view A.M.’s demeanor at trial and in recorded interviews by trained
professionals. Additionally, Deputy Putman, Deputy Coley, Lieutenant Kinler,
and Detective Laurent all testified that A.M. became upset and withdrawn when
asked about the allegations involving defendant. At the hearing on defendant’s
post-trial motions and at sentencing, the trial court also commented that it found
the children to be credible based on their demeanor at trial.
Considering the law and the evidence admitted at trial, a rational trier of fact,
viewing the evidence in a light most favorable to the prosecution, could have found
beyond a reasonable doubt that the evidence was sufficient under the standard set
forth in Jackson to support defendant’s conviction of indecent behavior with the
juvenile, A.M. Because the evidence introduced at trial was sufficient to support a
conviction for the charged offense, it also supports the jury’s verdict on the lesser
and included offense of attempted indecent behavior with a juvenile. See State v.
Harris, 02-1589 (La. 5/20/03), 846 So.2d 709, 715. Where the defendant
acquiesces in the submission of responsive verdicts, he is bound by the trier of
fact's decision to employ a responsive verdict. Id. Accordingly, the trial court also
20-KA-323 16
did not err in denying defendant’s motions for new trial or for post-verdict
judgment of acquittal.
Excessive Sentences
In his fourth assignment of error, defendant asserts that the trial court
imposed excessive sentences and failed to give adequate consideration to the
factors in La. C.Cr.P. art 894.1 when tailoring his sentences. In his final
assignment of error, defendant contends that the trial court erred in denying his
motion to reconsider sentence.
Defendant’s sentences fall within the statutory penalty ranges under La.
R.S. 14:81 (indecent behavior with a juvenile) and La. R.S. 14:27/14:81 (attempted
indecent behavior with a juvenile). As explained above, the trial court sentenced
defendant to consecutive sentences of twenty years of imprisonment at hard labor,
with two years to be served without the benefit of parole, probation, or suspension
of sentence, as to count one, and ten years of imprisonment at hard labor, with one
year to be served without benefit of parole, probation, or suspension of sentence as
to count two. In his motion to reconsider sentence, defendant requested that the
trial court strike his original sentences and re-sentence him to a term of
imprisonment not to exceed 15 years. The trial court denied this request.
Defendant argues that he is sixty years old and that the consecutive
sentences are effectively a life sentence for him. Defendant avers that in
sentencing him, the trial court did not cite his personal background and neglected
to consider his lack of criminal history other than a relatively minor felony
conviction from 1997. He asserts that the court did not consider that he has
dependent family members or the “utter lack of corroboration for these vague
allegations made by the alleged victims.”
In response, the State argues that the trial court addressed the factors in La.
C.Cr.P. art. 894.1, including the need for correctional treatment or custodial
20-KA-323 17
environment; that a lesser sentence would depreciate the seriousness of the
offenses; that defendant knew or should have known that both victims were
particularly vulnerable or incapable of resisting due to their age; that he used his
position or status in committing both offenses; that he knowingly created a risk of
great bodily harm to both victims; that the crimes resulted in significant permanent
injury to both victims; and the crimes involved multiple victims, multiple times.
The State notes that during the hearing on defendant’s motion to reconsider
sentence, the trial court explained that defendant could have been charged with
rape, a more serious crime requiring a life sentence. The State argues that
defendant is the victims’ step-grandfather and exploited this position of “immense
trust and authority.” The State contends that a consecutive sentence is justified
here because the offenses were not committed at the same time as part of the same
act or transaction. Furthermore, the presentence investigation report, requested by
the trial court prior to sentencing, recommended that the trial court impose the
maximum sentence for each count consecutively.
A trial court should give weight to La. C.Cr.P. art. 894.1(B)’s guidelines
when sentencing and must state for the record the considerations taken into
account and the factual basis for the sentence imposed. La. C.Cr.P. art. 894.1(B)
and (C). The judge is not required to list every aggravating or mitigating factor as
long as the record shows ample considerations of the guidelines. State v. Clark,
19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, fn. 14, writ denied, 21-62
(La. 3/9/21), 2021 WL 870378.
The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the
Louisiana Constitution prohibit the imposition of excessive punishment. State v.
Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied,
20-266 (La. 7/24/20), 299 So.3d 69. A sentence is considered excessive, even if it
is within the statutory limits, if it is grossly disproportionate to the severity of the
20-KA-323 18
offense or imposes needless and purposeless pain and suffering. State v. Woods,
18-413 (La. App. 5 Cir. 12/19/18), 262 So.3d 455, 460. According to La. C.Cr.P.
art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if
the record supports the sentence imposed. In reviewing a sentence for
excessiveness, the reviewing court shall consider the crime and the punishment in
light of the harm to society and gauge whether the penalty is so disproportionate as
to shock the court’s sense of justice, while recognizing the trial court’s wide
discretion. Calloway, supra.
The relevant question on appeal is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been more
appropriate. State v. Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289 So.3d 170, 174,
writ denied, 20-143 (La. 7/17/20), 298 So.3d 176. In reviewing a trial court’s
sentencing discretion, three factors are considered: 1) the nature of the crime; 2)
the nature and background of the offender; and 3) the sentence imposed for similar
crimes by the same court and other courts. State v. Allen, 03-1205 (La. App. 5 Cir.
2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific
matters be given any particular weight at sentencing. Woods, 262 So.3d at 460-61.
Generally, maximum sentences are reserved for cases involving the most
serious violations of the offense charged and the worst type of offender. State v.
Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 296 So.3d 1107, 1115. However,
jurisprudence provides that maximum or nearly maximum terms of imprisonment
may not be excessive when the defendant has exploited a position of trust to
commit sexual battery or indecent behavior with a juvenile. State v. Howard, 18-
159 (La. App. 5 Cir. 11/7/18), 259 So.3d 583, 592, writ denied, 18-2034 (La.
4/29/19), 268 So.3d 1031; State v. Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798
So.2d 234, 239, writ denied, 01-2965 (La. 10/14/02), 827 So.2d 414.
20-KA-323 19
La. R.S. 14:81(H)(2) provides that whoever commits the crime of indecent
behavior with a juvenile under the age of thirteen when the offender is seventeen
years of age or older, shall be punished by imprisonment at hard labor for not less
than two nor more than twenty-five years, and at least two years of the sentence
shall be served without benefit of parole, probation, or suspension of sentence. La.
R.S. 14:27(D)(3) provides that for an attempted offense, the offender shall be
imprisoned for a period of time not to exceed one-half of the longest term of
imprisonment prescribed for the offense attempted. Therefore, the sentencing
range for attempted indecent behavior with a juvenile is zero to twelve and a half
years of imprisonment at hard labor, with at least two years of the sentence served
without benefit of parole, probation, or suspension of sentence.
In Howard, supra, the defendant was convicted of indecent behavior with a
juvenile under the age of thirteen (count one) and sexual battery of a juvenile under
the age of thirteen (count two). Just as in the instant matter, the defendant was
sentenced to twenty years at hard labor, without the benefit of parole, probation, or
suspension of sentence. This Court noted that the record showed defendant used
his adult frame to pin down and trap the eleven-year-old victim while he groped
her and attempted to insert an object into her underwear. The defendant on appeal
argued, among other things, that this sentence was excessive as he did not use a
weapon, he had no record of violence, and little criminal history. In evaluating the
sentences, this Court stated that the fact that the defendant could accomplish his
crimes without the use of weapons did not void the fact that his ability to
overpower his victims was made possible through his superior height, weight, and
strength. Further, this Court noted that the defendant had a pending charge of
sexual battery/forcible rape of his niece, which allegedly occurred while he was out
on bail. This Court stated that the defendant also had a position as a trusted
20-KA-323 20
authority figure in the home, which he exploited to commit his crimes. As such,
this Court concluded that the sentence was not excessive. Id. at 591.
In State v. Craft, 49,730, 49,731 (La. App. 2 Cir. 2/26/15), 162 So.3d 539,
writ denied, 15-544 (La. 1/25/16), 184 So.3d 1288, the second circuit held that
after the defendant pleaded guilty without a sentencing cap, the trial court properly
imposed consecutive sentences of twenty years at hard labor, with ten years of
each sentence to be served without benefits, for indecent behavior with juveniles.
The court found that the sentences were not grossly disproportionate to the severity
of the offenses and that the trial court adequately considered the defendant’s prior
convictions, his knowledge of the victims’ vulnerability due to their youth, his use
of his status as their grandfather to facilitate the commission of the crimes, and his
threat to kill the victims and their families if they ever told anyone. The court
noted that the defendant’s step-daughter also accused him of sexually abusing her
and her sister as children, and his criminal history included a sexual assault and
child abuse conviction.
In State v. Riley, 15-142 (La. App. 1 Cir. 9/21/15), 2015 WL 5547489, writ
denied, 15-1940 (La. 11/15/16), 209 So.3d 788, the defendant challenged his
twenty-year sentence for indecent behavior with a juvenile under thirteen and his
sentence for sexual battery of a victim under the age of thirteen as excessive. He
contended that because of his advanced age and fragile health, the sentences
exceeded his life expectancy and were unconstitutionally excessive. The trial
court, in applying Article 894.1, noted that there was an undue risk that the
defendant would commit another crime during any period of a suspended sentence
or probation, that the statutory scheme does not provide for suspension of sentence,
that the defendant was in need of correctional treatment or a custodial environment
that could be most effectively met by his commitment to an institution, and that a
lesser sentence would deprecate the seriousness of the crime. Furthermore, the
20-KA-323 21
trial court noted that the victim was in an especially vulnerable position because of
his age and socioeconomic status and that the defendant chose to prey on him
because of those factors. Finally, the trial court noted that the defendant had a
prior conviction for a very similar offense, highlighting his propensity to target
boys for his own sexual gain.
In State v. Collins, 52,885 (La. App. 2 Cir. 9/25/19), 280 So.3d 891, the
defendant challenged his sentence of twenty-five years’ imprisonment without
benefits for indecent behavior with a juvenile under thirteen years old. In
upholding his sentence, the court indicated that the defendant abused the trust
afforded to him as a dependable neighbor on multiple occasions and stated that the
victims will carry their emotional scars for life.
Though defendant does not have a prior conviction for sexual abuse, the
evidence established that defendant committed multiple acts of sexual abuse
against his step-granddaughters over several years. E.G. reported to several
different individuals that defendant sexually abused her from the ages of four to
seven. During her interview with Dr. Troy, she explained that defendant inserted
his “private part” in her and that it hurt. While not clear as to the time or
frequency of abuse, A.M. also reported sexual abuse by defendant to her brother
and sister. When asked to draw what happened to her, A.M. drew a picture of
herself in a bed telling defendant “no.” She also drew a picture with a broken
heart.
A.M. spent the majority of her life with defendant. As to both victims,
defendant acted as a caregiver and took advantage of that position. Both children
were threatened by defendant and were afraid to explain what he did to them as
they repeatedly became upset when asked about the abuse. A.M. told her sister
that she spent time with defendant because he threatened to kill her if she did not.
20-KA-323 22
As the trial court noted, based on E.G.’s claim that defendant penetrated her
private part, the State could have charged defendant with the much more serious
crime of rape, which requires a mandatory life sentence. Instead, defendant was
charged with and convicted of indecent behavior with a juvenile and attempted
indecent behavior with a juvenile, both of whom were well under the age of
thirteen at the times the crimes were committed. Further, despite repeated
instances of abuse reported by E.G., defendant was only charged with and
convicted of one count.
As explained above, other courts have imposed maximum or near maximum
sentences under similar circumstances. Furthermore, such sentences are not
excessive in sex abuse cases involving the violation of position of trust with a
child. Accordingly, we do not find that defendant’s sentences are excessive and
the trial court did not err in denying defendant’s motion to reconsider sentence.
ERROR PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5 Cir. 1990).
The sentence imposed as to count two is illegally lenient with respect to the
restriction of benefits as the trial court was required to restrict benefits for at least
two years as to count two. The trial court sentenced defendant to ten years at hard
labor with one year to be served without the benefit of parole, probation, or
suspension of sentence. La. R.S. 14:27(D)(3) states, “In all other cases he shall be
fined or imprisoned or both, in the same manner as for the offense attempted; such
fine or imprisonment shall not exceed one-half of the largest fine, or one-half of
the longest term of imprisonment prescribed for the offense so attempted, or both.”
[Emphasis added.] As such, the restriction of benefits imposed was one year less
than the statutorily mandated minimum required by La. R.S. 14:81(H)(2); State v.
20-KA-323 23
Moore, 16-644 (La. App. 5 Cir. 3/15/17), 215 So.3d 951, 969. Accordingly, we
remand the matter for resentencing as to count two as the trial court imposed an
illegal sentence regarding the restriction of benefits.
We also remand the matter for correction of the uniform commitment order
(UCO). The UCO reflects that the disposition date and sentencing date both
occurred on October 1, 2019. However, the transcript reflects that the sentencing
date was October 1, 2020, and the disposition date, or date of conviction, was June
27, 2019. The Clerk of Court for the 29th Judicial District Court shall transmit the
corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art.
892(B)(2) and to the Department of Corrections’ legal department. See State v.
Bartholomew, 18-670 (La. App. 5 Cir. 10/23/19), 282 So.3d 374, 388-89.
DECREE
For the foregoing reasons, we affirm defendant’s conviction on count two, as
well his sentence as to count one. We remand the matter to the trial court for
resentencing on count two and for correction of the UCO in accordance with this
Court’s instructions provided herein.
CONVICTION AFFIRMED; SENTENCE ON
COUNT ONE AFFIRMED; REMANDED FOR
RESENTENCING ON COUNT TWO AND
FOR CORRECTION OF UCO
20-KA-323 24
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 28, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-323
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
LOUIS G. AUTHEMENT (APPELLEE) GWENDOLYN K. BROWN (APPELLANT)
MAILED
HONORABLE EMILE R. ST. PIERRE HON. JOEL T. CHAISSON, II (APPELLEE)
(DISTRICT JUDGE) DISTRICT ATTORNEY
DIVISION "C" TWENTY-NINTH JUDICIAL
29TH JUDICIAL DISTRICT COURT DISTRICT COURT
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HAHNVILLE, LA 70057 HAHNVILLE, LA 70057