State v. Bost
| Decision Date | 26 April 2023 |
| Docket Number | 22-730 |
| Parties | STATE OF LOUISIANA v. AUSTIN WILLIAM BOST |
| Court | Court of Appeal of Louisiana — District of US |
1
STATE OF LOUISIANA
v.
AUSTIN WILLIAM BOST
No. 22-730
Court of Appeals of Louisiana, Third Circuit
April 26, 2023
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 352,327 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE
J. Phillip Terrell, Jr. District Attorney Kelvin G. Sanders Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana
Chad M. Ikerd Attorney at Law Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Austin William Bost
Court composed of Sharon Darville Wilson, Gary J. Ortego, and Wilbur L. Stiles, Judges.
GARY J. ORTEGO, JUDGE
Defendant, Austin William Bost, appeals his convictions of three counts of indecent behavior with a juvenile under the age of thirteen, violations of La.R.S. 14:81; three counts of sexual battery of a victim under the age of thirteen, violations of La.R.S. 14:43.1; three counts of oral sexual battery of a victim under the age of thirteen, violations of La.R.S. 14:43.3; and three counts of aggravated crime against nature with a child under the age of thirteen, violations of La.R.S. 14:89.1. For the following reasons, we affirm in part, vacate in part, and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On June 22, 2021, Defendant, Austin William Bost, was charged by bill of information with three counts of indecent behavior with a juvenile under the age of thirteen, violations of La.R.S. 14:81; three counts of sexual battery of a juvenile under the age of thirteen, violations of La.R.S. 14:43.1; three counts of oral sexual battery of a victim under the age of fifteen, violations of La.R.S. 14:43.3; and three counts of aggravated crime against nature with a child under the age of thirteen, violations of La.R.S. 14:89.1. All twelve counts of alleged sexual misconduct involved Defendant's four-year-old daughter, A.D. After a two-day jury trial, on July 13, 2022, a unanimous jury found Defendant guilty of all counts. On August 18, 2022, the trial court sentenced Defendant as follows:
Indecent behavior with a juvenile under the age of thirteen (3 COUNTS) - EACH COUNT - twenty years at hard labor without benefit of probation, parole, or suspension of sentence
Sexual battery of a child under the age of thirteen (3 COUNTS) -EACH COUNT - forty years at hard labor without benefit of probation, parole, or suspension of sentence. Also designated as a crime of violence
Oral sexual battery of a child under the age of thirteen (3 COUNTS)
- EACH COUNT - sixty years at hard labor without benefit of probation, parole, or suspension of sentence.
Aggravated crime against nature with a child under the age of thirteen (3 COUNTS) - EACH COUNT - sixty years at hard labor without benefit of probation, parole, or suspension of sentence.
The trial court ordered all sentences to run concurrently with each other. On August 26, 2022, the trial court granted Defendant's motion for appeal.
ISSUES
On appeal, Defendant asserts five assignments of error:
1. The State failed to sufficiently prove that Austin Bost was guilty as charged.
2. Convictions for three counts of aggravated crimes against nature, which used as an essential element of the crime the same act or occurrence that was alleged in counts 1 - 9 constitute double jeopardy. Alternatively, trial counsel was ineffective for not objecting to this issue in the trial court.
3. The trial court erred in allowing the SANE nurse to testify to second-and third-hand hearsay about alleged sexual abuse of A.D. The statements were not admissible [under] La. Code Evid. art. 803(4).
4. The 60-year sentences on counts 7 - 9, Oral Sexual Battery, and counts 10 - 12, Aggravated Crimes Against Nature, are constitutionally excessive.
5. Trial counsel was ineffective for failing to file a motion to reconsider sentence. The trial court based a significant part of its decision to impose de facto life sentences on evidence of acts allegedly committed by Austin Bost when he was a child.
ERRORS PATENT
In accordance with La.Code Crim. P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent. However, this court does note a conflict between the minutes of Defendant's sentencing and the transcript of the sentencing. Although the minutes state the name of each offense three times, indicating three convictions for each set of offenses, the minutes indicate that a single sentence was pronounced for each set of convictions. The transcript of the sentencing shows the trial court specified that the sentence it pronounced applied to "each count" of indecent
behavior with a juvenile, "each count" of sexual battery, "each count" of oral sexual battery, and "each count" of aggravated crimes against nature.
"[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.
Therefore, the minutes of sentencing shall be corrected to clearly reflect that the trial court imposed a sentence on each count. Accordingly, this court remands this matter and orders the trial court to correct the minutes of sentencing to accurately reflect that the trial court imposed the sentences on "each count."
Additionally, we note that according to the sentencing transcript, defense counsel asked the trial court to recommend Defendant for work release. The trial court responded, "Um, I don't know that that's available on this sentence, but I'm not gonna object to anything that the Department of Corrections finds, um, appropriate." However, the minutes state that the sentences were "subject to work release."
Therefore, this court further orders that upon remand the sentencing minutes be amended to delete the statement "subject to work release" and to accurately reflect the trial court's statement that it did not know if work release was available on these sentences, but that it will not object to anything that the Department of Corrections finds appropriate, per the sentencing transcript.
LAW AND ANALYSIS
Elements of Each Offense
Defendant was convicted of three counts each of (1) indecent behavior with a juvenile under the age of thirteen; (2) sexual battery of a child under the age of thirteen; (3) oral sexual battery of a child under the age of thirteen; and (4) aggravated crime against nature with a child under the age of thirteen. At the time
the offenses were committed, on or about October 29, 2020, the definition for each offense was as follows:
Indecent behavior with juveniles, a violation of La.R.S. 14:81, provides, in pertinent part:
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[.]
Sexual battery, a violation of La.R.S. 14:43.1, provides, in pertinent part:
A. Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when any of the following occur:
(1) The offender acts without the consent of the victim.
(2) The victim has not yet attained fifteen years of age and is at least three years younger than the offender.
...
B. Lack of knowledge of the victim's age shall not be a defense. However, normal medical treatment or normal sanitary care shall not be construed as an offense under the provisions of this Section.
Oral sexual battery, a violation of La.R.S. 14:43.3, provides, in pertinent part:
A. Oral sexual battery is the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender, or the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim, when any of the following occur:
(1) The victim, who is not the spouse of the offender, is under the age of fifteen years and is at least three years younger than the offender.
....
(B) Lack of knowledge of the victim's age shall not be a defense.
And, finally, aggravated crime against nature, a violation of La.R.S. 14:89.1, provides, in pertinent part:
A. Aggravated crime against nature is either of the following:
(1) An act defined by R.S. 14:89(A)(1) committed under any one or more of the following circumstances:
....
(f) When the victim is under the age of seventeen years and the offender is at least three years older than the victim.
(2)(a) The engaging in any prohibited act enumerated in Subparagraph (b) of this Paragraph with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
(b) The following are prohibited acts under this Paragraph:
(i) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any...
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