State Of Louisiana v. Lenard Andrew Turpin ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0469
J£ STATE OF LOUISIANA
VERSUS
LENARD ANDREW TURPIN
Judgment Rendered:
DEC 3 0 2020
Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 593173
Honorable Scott C. Gardner, Judge Presiding
Warren L. Montgomery Counsel for Appellee,
Matthew Caplan State of Louisiana
J. Bryant Clark, Jr.
Covington, LA
Bertha M. Hillman Counsel for Defendant/Appellant,
Covington, LA Lenard Andrew Turpin
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BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.
WHIPPLE, C.J.
The defendant, Lenard Andrew Turpin, was charged by an amended bill of
information with the following offenses: indecent behavior with a juvenile under
the age of thirteen, a violation of LSA-R.S. 14: 81( H)( 2) ( count one); possession of
a Schedule 11 controlled dangerous substance ( methamphetamine), a violation of
LSA- R.S. 40: 967( C) ( count two); and two counts of distribution of a controlled
dangerous substance' by a person over twenty- five years of age to a person under
eighteen years of age, violations of LSA-R.S. 40: 981( A) ( counts three and four).
See also LSA-R.S. 40: 964, Schedule II(C)( 2) and LSA- R.S. 40: 967( A). He pled
not guilty on each count. After a trial by jury, the jury found the defendant guilty
of the responsive offense of attempted indecent behavior with a juvenile under the
age of thirteen on count one, a violation of LSA-R.S. 14: 81( H)(2) and LSA-R.S.
14: 27, and guilty as charged on counts two, three, and four. The trial court denied
the defendant' s motion for post -verdict judgment of acquittal. The trial court
imposed the following sentences: ten years imprisonment at hard labor with two
years to be served without the benefit of probation, parole, or suspension of
sentence ( count one); two years imprisonment at hard labor ( count two); and
fifteen years imprisonment at hard labor on each count ( counts three and four).
The trial court ordered that the sentences are to run concurrently.
The defendant now appeals, asserting the following assignments of error:
1) the trial court erred in denying his oral motion to require unanimous verdicts,
instructing the jury that ten of twelve jurors must concur on each count to reach a
On counts three and four, the amended bill of information states that the distributed
substances are listed under Schedules I or II. The bill of information specifies that the
distributed substance on count three was methamphetamine, a Schedule II controlled dangerous
substance. See LSA- R. S. 40: 964.As to count four, the bill of information states that the
distributed substance was a " narcotic drug" listed under Schedule I or 11. Despite the State' s
amended bill of information' s categorization of a " narcotic drug" as a Schedule I or I1 drug or
substance, "
unless specifically excepted or unless listed in another schedule," the actual
designation " narcotic drug" is only listed under Schedule III(D)( 1), Schedule III(D)( 2), Schedule
IV( A), Schedule V(A), and Schedule V(B). See LSA-R. S. 40: 964.
verdict, and accepting the non -unanimous jury verdicts; and ( 2) the trial court erred
in imposing " constitutionally excessive" sentences on counts three and four. For
the following reasons, we vacate the conviction and sentence on count one, and we
affirm the convictions and sentences on counts two, three, and four.
STATEMENT OF FACTS
On June 1, 2017, the defendant had a party at his house for a group of
children ( whose ages ranged from eleven to fourteen years old), while his own
children were away visiting their mother, the defendant' s ex-wife. The party was
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attended by T.B. a twelve -year- old girl whom the defendant met through his
friend, S. B., T.B.' s mother) and T.B.' s friends. Three of the children who attended
the party testified at the trial. According to the children, the defendant, whom they
called " Andy," invited them to the party, indicating that it was a birthday party for
one of his sons. He picked them up to bring them to his house and gave them
cigarettes to smoke on the way there, but when they arrived, no one else was there.
According to additional trial testimony, the defendant gave the children
alcoholic beverages and marijuana during the party. One of the girls, H.L., who
was eleven years old at the time of the party and fourteen years old at the time of
the trial, testified that the defendant walked up behind her when she was playing
pool, guided her hands, placed his hands on her hips, and began moving her body,
contending that she was not playing pool correctly. H.L. noted that she had played
pool before and felt confident about her ability to do so. H.L. further testified that
at one point that night, she mentioned that she " really loved" stuffed animals, and
the defendant afterwards invited her upstairs to see one of his children' s stuffed
animals.
Initials will be used herein to identify the child victims and immediate family members.
See LSA-R.S. 46: 1844( W). See LSA-R.S. 46: 1844( W) ( providing that, in order to protect their
identity, the names of minor victims of sex offenses shall not be publicly disclosed).
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H.L. testified that when they got upstairs, the defendant closed and locked
the door and casually touched her arm while she was sitting on the bed. The
defendant told her that she looked older than her age, that she was mature, and that
her body " had developed faster." He also told her that her lips were " juicy and
full." The defendant asked her if she had ever " smoked meth." She stated the
defendant took out a clear pipe, an eyeglass case containing a baggie with a gritty
substance that looked like salt or sugar, and a red straw. According to H.L., the
defendant put the meth in the straw, put the straw in the pipe, " hit it," and asked
then her, " Do you want to hit this?" She was hesitant, but after more coaching
from the defendant, she followed his instructions, and her lips immediately went
numb. At that point, T.B. started knocking on the bedroom door, and the
defendant opened the door to let her in.
Additionally, H.L. testified that while she was in the defendant' s bathroom
talking to T.B., the defendant came in, and T.B. walked out. H.L. state that while
they were talking, the defendant made a statement about H.L.' s body and " then
the defendant] start[ ed] to grab and rub on my butt." She testified that the
defendant groped her until she left the room. As she left the room, she could not
see the ground, she felt like her feet were slowly connecting with the ground, and
she could not control her breathing.
A.C., who was fourteen years old at the time of the trial and twelve years old
at the time of the party, also testified that the defendant gave her and T.B. drugs.
She stated she and H.A. ( another girl who attended the party) followed T.B.
upstairs. She said T.B. had the defendant' s " stash of weed," and the defendant
came up there and saw T.B. with the weed, but the defendant " didn' t really like
seem to, like, care too much." She further testified that she, the defendant, and
T.B. were in the upstairs bathroom when the defendant pulled out an eyeglass case
and a " meth pipe" and told them, " Hit it." A.C. also testified that the defendant
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told her and T.S. to kiss each other, to kiss him, and " stuff like that." She stated
that at the time, she did not know what type of drug she was given by the
defendant.
The defendant also testified at trial. He denied giving the children alcohol,
testifying that he poured out the alcohol when he caught them drinking. He
admitted to having methamphetamine, but testified that a friend left it in his house.
He stated that he found T.B., A.C., H.L., and H.A. upstairs in his bathroom with
the door locked. He denied giving them methamphetamine and denied touching
H.L. inappropriately. The defendant also testified that he discovered H.A. in his
daughter' s bedroom and confronted her for trying to steal his daughter' s jewelry,
and that she became upset due to the accusation. However, he admitted to
smoking methamphetamine with S. B., and to doing so before they had sex.
NON -UNANIMOUS JURY VERDICT
In assignment of error number one, the defendant notes that during the trial,
he orally moved, in the form of an objection, to require unanimous verdicts in this
case.
The defendant argues that the trial court erred in overruling his objection and
in subsequently instructing the jury that ten of twelve jurors must concur on each
count to reach a verdict in this case. Citing Ramos v. Louisiana, U.S. , 140
S. Ct. 1390, 206 L. Ed. 2d 583 ( 2020), the defendant argues that the non -
unanimous jury verdicts rendered on counts one and two, based on a concurrence
of ten jurors, are unconstitutional. The defendant concludes that the trial court
erred in accepting these verdicts and that this error is discoverable by a mere
inspection of the face of the record.
In its brief, the State concedes that it appears the trial court erred in
accepting a non -unanimous verdict on count one, entitling the defendant to a new
trial on count one. However, the State notes that the verdict was unanimous on
count two.
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In the recent decision of Ramos, 140 S. Ct. at 1397, the United States
Supreme Court overruled Apodaca v. Oregon,' 406 U.S. 404, 92 S. Ct. 1628, 32 L.
Ed. 2d 184 ( 1972), and held that the right to a jury trial under the Sixth
Amendment of the United States Constitution, incorporated against the States by
way of the Fourteenth Amendment of the United States Constitution, requires a
unanimous verdict to convict a defendant of a serious offense. Thus, the Ramos
court declared non -unanimous convictions of serious offenses unconstitutional.
In the instant case, after the jury returned its verdict, the trial court ordered
that the jurors be polled, and the polling results were sealed. See LSA- C. Cr.P. art.
812. The jury voted 10 -to -2 to convict on count one, and 12 -to -0 to convict on
counts two, three, and four. Thus, assignment of error number one has merit only
as to the verdict on count one. Accordingly, the defendant' s conviction and
sentence on count one is vacated, and the case is remanded for a new trial on count
one.
EXCESSIVE SENTENCES
In assignment of error number two, the defendant argues that the sentences
imposed on counts three and four are grossly disproportionate to the severity of the
offenses and are a needless infliction of pain and suffering. Quoting LSA-R.S.
40:981( A), the defendant notes that the sentences of fifteen years at hard labor on
each count, to run concurrently, are within the statutory range of "imprisonment at
hard labor for not less than ten nor more than thirty years." However, the
defendant further contends that the trial court had a duty to reduce each sentence to
one that is not constitutionally excessive. The defendant argues that the trial court
failed to give adequate consideration to mitigating circumstances, including his
30regon' s non -unanimous jury verdict provision of its state constitution was challenged
in Apodaca. Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 ( 1972),
decided with Apodaca, upheld Louisiana' s then -existing constitutional and statutory provisions
allowing nine -to -three jury verdicts in criminal cases.
status as a fifty -year- old first offender, his gainful employment, his status as a
father and a caregiver for his mother, and his church attendance and activities. He
argues that although the sentences are within the statutory limit, they are
constitutionally excessive.
As the State notes in its brief, the record before this court does not contain a
motion to reconsider sentence or evidence that the defendant orally moved for
reconsideration of the sentence. After the sentences were imposed, without stating
any ground for the objection, the defendant's trial counsel simply stated, " Thank
you, Your Honor. Your Honor, respectfully note an objection to the ruling."
Failure to make or file a motion to reconsider sentence or to include a specific
ground upon which a motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the State or the defendant from raising an
objection to the sentence or from urging any ground not raised in the motion on
appeal or review. LSA-C. Cr.P. art. 881. 1( E).
Defense counsel' s objection did not constitute an oral motion to reconsider
sentence as contemplated by LSA-C. Cr.P. art. 881. 1( B) ( the motion " shall set forth
the specific grounds on which the motion is based."). Moreover, a general
objection to a sentence without stating specific grounds, including excessiveness,
preserves nothing for appellate review. State v. Campbell, 2016- 1349, 2016- 1350
La. App. 1st Cir. 4/ 12/ 17), 217 So. 3d 1197, 1198 n. 3. Thus, the defendant is
procedurally barred from having the second assignment of error reviewed. See
State v. Brown, 2012- 0752 ( La. App. 1st Cir. 4/ 10/ 13), 2013 WL 1459156, at * 7
unpublished); State v. Duncan, 94- 1563 ( La. App. 1" Cir. 12/ 15/ 95), 667 So. 2d
1141, 1143 ( en bane per curiam).
Accordingly, we affirm the defendant' s convictions and sentences on counts
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two, three and four; vacate the defendant' s conviction on count one; and remand or
further proceedings.
CONVICTION AND SENTENCE ON COUNT ONE VACATED;
CONVICTIONS AND SENTENCES ON COUNTS TWO, THREE AND
FOUR AFFIRMED; REMAND WITH INSTRUCTIONS.
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