State v. Caston

• Citation: 996 So.2d 480
• Decision Date: 24 September 2008
• Docket Number: No. 43,565-KA.,43,565-KA.
• Parties: STATE of Louisiana, Appellee v. Michel CASTON, Appellant.
• Court: Court of Appeal of Louisiana (US)

996 So.2d 480

STATE of Louisiana, Appellee v. Michel CASTON, Appellant.

No. 43,565-KA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 2008.

Sir Clyde Lain, II, Monroe, for Appellant.

William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney, for Appellee.

Before CARAWAY, DREW and MOORE, JJ.

CARAWAY, J.

A jury convicted the defendant of two counts of attempted indecent behavior with a juvenile and attempted obscenity. La. R.S. 14:81 and 14:106(A)(1). The defendant was sentenced to three and one-half years at hard labor for each count of attempted indecent behavior and one and one-half years at hard labor for attempted obscenity, to run concurrently with each other and consecutively to any other sentence the defendant was then serving. The defendant appeals. For the following reasons, the defendant's convictions and sentences are affirmed.

Facts

On the evening of August 8, 2006, T.C. and D.C., who were sisters, were playing outdoors in the carport of the home where they lived with their grandmother. Their cousins, T.L. and C.L., who lived several houses down on the same street, played with them. D.C. and C.L. were sixteen years old and fourteen years old, respectively, and the other girls were seventeen years old or over. The defendant, Michel Lee Caston, lived with his wife in the house directly across the street. As all four girls were playing around in the carport, they could see the defendant moving about the living room and standing at the open front doorway which had only a screen door. It was dark outside, but the light from the defendant's kitchen and television revealed that he wore only an open dark-colored bathrobe. After D.C., C.L. and T.L. saw him walk away and come back, he stood standing at the screen door facing them. He was unclothed, stroking his genitalia. After looking at him briefly, the victims ran to tell the grandmother, who immediately called the police.

The police officer responded to the dispatcher and found the victims outside where they had been playing. When Officer Atkins questioned them about "a naked man possibly walking around in the street," he was directed to the defendant's house. Officer Atkins spoke with T.C.,¹ who described the incident. He crossed the street and looked into the defendant's house, where he saw Caston wearing blue pajama pants and a dark-colored bathrobe. Officer Atkins questioned him, but the defendant denied walking around his house unclothed. Instead, he said he had worn black shorts earlier and changed into blue pajama pants. Officer Atkins returned to question the victims and based on their re-telling of the same version of events, he arrested the defendant.

The defendant was charged with two counts of indecent behavior with a juvenile as to D.C. and C.L. and obscenity as to T.L. Following a jury trial, Caston was convicted of two counts of attempted indecent behavior with a juvenile and attempted obscenity. He was sentenced to three and one-half years at hard labor on each count of attempted indecent behavior and one and one-half years at hard labor on the obscenity charge. The defendant appeals his convictions and sentence.

Discussion

Defendant assigns as error his jury convictions of two counts of attempted indecent behavior with a juvenile and one count of attempted obscenity, and the trial court's error in failing to grant a directed verdict of acquittal at the conclusion of the state's case. He contends that the evidence presented failed to show he either engaged in any of the proscribed conduct, exposed himself, or that a two-year age difference existed between him and the juvenile victims.

La.C.Cr.P. art. 778 provides for the entry of directed verdicts of acquittal at the close of the state's case in bench trials. Nevertheless, when a defendant challenges both the sufficiency of the evidence and one or more other trial errors, the appellate court should first resolve the sufficiency challenge. State v. Mickens, 31,737 (La.App. 2d Cir.3/31/99), 731 So.2d 463 writ denied, 99-1078 (La.9/24/99), 747 So.2d 1118, citing State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/5/03), 852 So.2d 1020.

The question of sufficiency of the evidence is properly raised by a motion for post verdict judgment of acquittal. La. C.Cr.P. art. 821; State v. Howard, 31,807 (La.App. 2d Cir.8/18/99), 746 So.2d 49, writ denied, 99-2960 (La.5/5/00), 760 So.2d 1190. Although the record shows the defendant did not make this motion, this court will consider sufficiency arguments in the absence of such motion. State v. Henson, 38,820 (La.App. 2d Cir.9/22/04), 882 So.2d 670; State v. Green, 28,994 (La. App. 2d Cir.2/26/97), 691 So.2d 1273.

This standard, now legislatively embodied in La.C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or re-weigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422. Where there is conflicting testimony about factual matters, the resolution of which depends upon determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2d Cir.9/18/02), 828 So.2d 622, writs denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Dorsey, 41,418 (La. App. 2d Cir.9/20/06), 939 So.2d 608, writ denied, 06-2686 (La.6/1/07), 957 So.2d 174; State v. Wilhite, 40,539 (La.App. 2d Cir.12/30/05), 917 So.2d 1252, writ denied, 06-1078 (La.11/9/06), 941 So.2d 35. Specific intent is that state of mind that exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Dorsey, supra; State v. McCray, 621 So.2d 94 (La. App. 2d Cir.1993). The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Butler, 322 So.2d 189 (La.1975); State v. Dorsey, supra; State v. Dean, 528 So.2d 679 (La.App. 2d Cir.1988).

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.

To convict a defendant of this offense, the state must prove that (1) there was an age difference of greater than two years between the accused and the victims, who are not yet seventeen; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child; and (3) the accused had the specific intent to arouse or gratify either his own or the victim's sexual desires. State v. Robinson, 43,063 (La.App. 2d Cir.2/13/08), 975 So.2d 853; State v. Bugbee, 34,524 (La.App. 2d Cir.2/28/01), 781 So.2d 748; State v. Stec, 99-633 (La.App. 5th Cir.11/30/99), 749 So.2d 784.

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. La. R.S. 14:27(A); see State v. Stec, supra. An attempt requires both "specific intent to commit a crime" and an act or omission "for the purpose of and tending directly toward the accomplishing of his object." La. R.S. 14:27(A); State v. Houston, 40,642 (La.App. 2d Cir.3/10/06), 925 So.2d 690, writ denied, 06-796 (La.10/13/06), 939 So.2d 373.

Indecent behavior with a juvenile is a specific intent crime requiring the state to prove the defendant's intent to arouse or gratify a sexual desire by actions with a child. State v. Robinson, supra; State v. Wallace, 41,720 (La.App. 2d Cir.1/24/07), 949 So.2d 556. The statute 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. Interiano, 03-1760 (La.2/13/04), 868 So.2d 9.

In Interiano, Id., the Supreme Court held that the statutory phrase "in the...