State v. Acliese

• Decision Date: 08 September 1981
• Docket Number: No. 80-KA-2719,80-KA-2719
• Citation: 403 So.2d 665
• Parties: STATE of Louisiana v. Lanzy ACLIESE.
• Court: Louisiana Supreme Court

Page 665

403 So.2d 665

STATE of Louisiana v. Lanzy ACLIESE.

No. 80-KA-2719.

Supreme Court of Louisiana.

Sept. 8, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.

Edward James Lopez, Opelousas, for defendant-appellant.

MARCUS, Justice. ^*

Lanzy Acliese was indicted by the grand jury for the aggravated rape of the eleven-year-old daughter of the woman with whom he was living on May 8, 1979, in violation of La.R.S. 14:42. After trial by jury, defendant was found guilty of forcible rape, La.R.S. 14:42.1. A presentence investigation was ordered by the court. Subsequently, defendant was sentenced to serve twenty-five years at hard labor with two years of the sentence to be without benefit of probation, parole, or suspension of sentence. The court expressly directed that the sentence be served consecutively with the "sentence previously imposed and for which he (defendant) is now on parole." On appeal, defendant relies on five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing the introduction of evidence of prior sexual assaults by defendant on the victim to show his lustful disposition toward her. He argues that this evidence was not intended for the purposes permitted under the statutory exceptions to the prohibition against evidence of other crimes. La.R.S. 15:445, 446. ¹ Prior to trial and in conformity with the guidelines set forth by this court in State v. Prieur, 277 So.2d 126 (La.1973), the state served written notice on defendant that it intended to offer evidence of prior sexual offenses committed by him against the victim "to corroborate the offense charged, to show intimate relations between the parties, to show the lustful disposition of the defendant, to show the probability of him having committed the offense charged, and to rebut a possible defense of alibi or no penetration." A Prieur hearing to determine the admissibility of the evidence of other crimes was held outside the presence of the jury prior to the calling of the first witness. The only witness was the victim, the eleven-year-old daughter of the woman with whom defendant was living. She testified that on at least six occasions during the weeks immediately prior to the offense charged, defendant had either raped or attempted to rape her at her home. The offenses generally followed the same pattern wherein defendant would wait until the victim's mother and brother were either away from the house or asleep. Defendant would then call the victim to him, push or force her to the floor, remove her pants and underwear, and assault her. Defendant threatened to harm the girl if she told anyone of the attacks. The victim also testified as to the details of the rape on May 8, 1979, the offense for which defendant was charged. After the hearing, the trial judge ruled that the state would be permitted to present evidence of "prior acts of intercourse or attempted intercourse" with the victim by defendant. Defendant objected to the ruling of the trial judge.

At trial, the testimony of the victim was generally the same as that at the Prieur hearing. Following direct examination of the victim, the trial judge gave a special charge to the jury as to the limited purpose for which the evidence of other crimes was received and was to be considered. The trial judge stated in part: "Under your oath you are restricted in considering such evidence only for the purpose of deciding whether or not defendant had a particular sexual desire for (the victim) and to consider the presence or absence of any such desire as a factor in determining whether defendant committed the crime with which he is charged, that is, aggravated rape of (the victim) on or about the 8th day of May, 1979." In addition, the final charge to the jury contained a charge of the limited purpose for which the evidence was received and the jury was advised that defendant could not be convicted of any charge other than the one named in the indictment or one responsive thereto. State v. Prieur, supra.

Evidence of other crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. Aside from related offenses admissible as part of the res gestae and convictions admissible for impeachment purposes, Louisiana's statutes provide for three exceptions acts relevant to show intent, knowledge or system. La.R.S. 15:445, 446. Louisiana courts have recognized certain other exceptions, including the admissibility of prior sex crimes committed against the same prosecutrix. State v. Morgan, 296 So.2d 286 (La.1974); State v. Ferrand, 210 La. 394, 27 So.2d 174 (1946), on rehearing; State v. Mischiro, 165 La. 705, 115 So. 909 (1928); State v. Harris, 150 La. 383, 90 So. 686 (1922); State v. McCollough, 149 La. 1061, 90 So. 404 (1922); State v. Wichers, 149 La. 643, 89 So. 883 (1921); State v. DeHart, 109 La. 570, 33 So. 605 (1903).

As this court noted in its most recent consideration of this question in State v. Morgan, supra :

Generally, courts of other jurisdictions in sexual crimes permit evidence of prior sex offenses which involved the same person as the offense on trial. Wharton's Criminal Evidence, 11th Edition, Vol. I, Section 356. Underhill's Criminal Evidence, 6th Edition, Vol. 1, Section 212 at page 647 notes:

"Sex cases call for special treatment with respect to the admission of evidence of other offenses. They are subject to the same exceptions that non-sex criminal trials are subject to, and in addition they are often subject to a special rule relative to the defendant's propensity to commit the crime on trial.

"Some courts depart sharply from the general rule which bars the use of other offenses to prove the defendant's propensity or disposition and permit the introduction in sex cases of evidence of other sex offenses in order to show the defendant's propensity, inclination or disposition toward sex in general, that is, without regard to whether the defendant's victim or partner was the same person. Other courts refuse evidence of other sex offenses which involve different victims or partners, but nearly all courts permit evidence of other sex offenses which involve the same person as the offense on trial, the theory being that the evidence shows the defendant's lustful attitude toward that person. In any event, courts in sex cases are probably more liberal than they are in other cases in admitting evidence of other offenses.

"In the trial of sex offenses the evidence of other sex offenses is not limited to those occurring before the offense on trial, but remoteness, as always, is an important consideration." (Footnotes omitted) (Emphasis ours)

Likewise, in a prosecution for the commission of statutory rape, or rape of a female under the age of consent, or an attempt to commit such rape, evidence of prior sex offenses committed by the defendant with the same prosecutrix is generally admissible. Such evidence has been admitted for various reasons, such as corroboration of the offense charged, to show intimate relations between the parties, the lustful disposition of the defendant and the probability of his having committed the offense charged, or to rebut the defense of alibi. 77 A.L.R.2d 852 (1961); Wharton's Criminal Evidence, 13th Edition, Vol. I, Section 250 at page 577; 65 Am.Jur.2d, Rape, Section 72, page 803.

Thus, we conclude that in the instant case evidence of the prior rapes or attempted rapes by defendant of the eleven-year-old daughter of the woman with whom he was living was properly admitted in this prosecution for aggravated rape.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 3, 4 AND 5

Defendant contends the trial judge erred in failing to follow the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing an excessive sentence.

Following defendant's conviction for forcible rape, the trial judge ordered a presentence investigation. At the sentencing hearing, defendant testified that he had never had sexual intercourse with the victim but admitted that he was currently on parole for a conviction for carnal knowledge of a juvenile for an incident concerning his step-daughter during a former marriage. The state then introduced the record from that prior conviction which reflected that defendant had been charged with forcible rape and had pled guilty to a reduced charge of carnal knowledge of a juvenile. Defendant also testified that prior to trial he had agreed to take a lie detector test and had requested that he be questioned as to the incidents concerning both his step-daughter and the victim in the instant case. Defendant admitted that he had subsequently been advised by his attorney that he had failed on the questions concerning the two crimes.

The trial judge then sentenced defendant to twenty-five years at hard labor with two years of the sentence to be without benefit of probation, parole, or suspension of sentence. ² The trial judge made specific reference to the sentencing guidelines of La.Code Crim.P. art. 894.1 and found that there was an undue risk that during the period of a suspended sentence or probation defendant would commit another crime, and that a lesser sentence would deprecate the seriousness of defendant's crime. In imposing sentence, the court considered defendant's criminal record of similar crimes, the repetitive nature of this crime, and the fact that the crime was committed on a child under the age of consent. The trial judge then expressly directed that the sentence be served consecutively with the sentence previously imposed for which defendant was then on parole.

La.Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the...