State v. Graham

• Decision Date: 14 October 2015
• Docket Number: No. 2014–K–1801.,2014–K–1801.
• Citation: 180 So.3d 271
• Parties: STATE of Louisiana v. William J. GRAHAM.
• Court: Louisiana Supreme Court

180 So.3d 271

STATE of Louisiana

v.William J. GRAHAM.

No. 2014–K–1801.

Supreme Court of Louisiana.

Oct. 14, 2015.

PER CURIAM.

This prosecution presents a myriad of problems. Defendant, William J. Graham, was indicted with one count of aggravated incest. After defendant rested his case at trial and it became apparent that the State had failed to carry its burden of proof on this charge, the District Court permitted the State to add as a responsive verdict a different offense—that of molestation of a juvenile —than the one which had been the focus of trial and which contains an element not necessarily required by the original charge. Although neither the State nor the defendant presented any evidence concerning this new element, the jury found the defendant guilty of one of count of molestation of a juvenile, and the trial court sentenced him to serve 50 years imprisonment at hard labor with the first 25 years to be served without parole eligibility. The court of appeal affirmed the conviction and sentence. State v. Graham, 13–1806 (La.App. 1 Cir. 7/3/14), 148 So.3d 601. Because we find that molestation of a juvenile is not a lesser included offense of the charge of aggravated incest and because defendant's trial was rendered fundamentally unfair when the District Court permitted the State to add "guilty of molestation of a juvenile" as a responsive verdict even though defendant had no opportunity to mount a defense concerning an additional essential element of this offense, we reverse and vacate the defendant's conviction and sentence, and we remand to the District Court for entry of a post-verdict judgment of acquittal.

By indictment, the State charged defendant with aggravated incest, in violation of former Louisiana Revised Statute 14:78.1. During the span of time alleged in the indictment,¹ the statute defined that offense as follows:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B 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 Section:

(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

(emphasis added). After both the State and the defendant rested their cases, it became evident that the State had failed to present sufficient evidence concerning a relationship of affinity—that of, step-siblings—between the defendant and the alleged victim.² Over defendant's objection, the District Court permitted the State to add as a responsive verdict the charge of molestation of a juvenile, a violation of Louisiana Revised Statute 14:81.2. During the relevant period of time, this statute defined molestation of a juvenile, as follows:

Molestation of a juvenile is the commission by anyone over the age of seventeen of 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, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

Critically, molestation of a juvenile requires proof of the additional element that the act was accomplished "by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile." See La. R.S. 14:81.2(A)(1) (emphasis added). Notably, however, with the court's approval, the State affirmatively limited its theory of the case to proof of "the use of influence by virtue of a position of control or supervision over the juvenile. " See La. R.S. 14:81.2(A) (emphasis added).

The District Court instructed the jury that aggravated incest could be accomplished by "sexual battery; indecent behavior with juveniles; molestation of a juvenile; cruelty to juveniles; or, any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both." The court further instructed the jury that molestation of a juvenile

is the commission, by a person over the age of seventeen, of a lewd or lascivious act upon the person of, or in the presence of, any child under the age of thirteen, when the offender has the specific intent to arouse or gratify the sexual desire of either person, and when the act is accomplished by the use of influence by virtue of a position of control or supervision over the juvenile, and when the offender has a position of control or supervision over the juvenile.

Finally, the court instructed the jury, over defendant's objection, that if the jury was not convinced defendant was guilty of aggravated incest, it could find him guilty of the offense of molestation of a juvenile, which required the jury to find, among other elements, "that defendant used influence by virtue of a position of control or supervision over the juvenile to accomplish the act."

Evidently suspecting defendant might be acquitted after it failed to prove the offense occurred when defendant and the alleged victim shared a relationship of affinity, the State attempted to relieve itself of its burden of proving the element of affinity by shifting its focus to arguing it had proven the additional element required to convict a defendant of molestation of a juvenile—that is, that the molestation was committed "by the use of influence by virtue of a position of control or supervision. " La. R.S. 14:81.2. No voir dire was conducted regarding "control or supervision." It was not mentioned in opening remarks. No evidence was presented regarding "control or supervision" at trial. Indeed, no evidence could be adduced on this new element once it became central to the case because both sides had rested by the time the court permitted the State to add this new offense as a responsive verdict. All that remained was for counsel to present closing arguments, for the court to charge the jury, and for the jury to deliberate. Although arising in a readily distinguishable and even more egregious context, the U.S. Supreme Court's comment in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948) is apropos: "It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made."

Because Louisiana Code of Criminal Procedure article 814 did not enumerate any legislatively authorized responsive verdicts for aggravated incest, Louisiana Code of Criminal Procedure article 815 applies. This article provides:

In all cases not provided for in Article 814, the following verdicts are responsive:

(1) Guilty;

2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or

(3) Not Guilty.

Lesser and included offenses are those in which all of the essential elements of the lesser offense are also essential elements of the greater offense charged. See State v. Porter, 93–1106 (La.7/5/94), 639 So.2d 1137 ; State v. Dufore, 424 So.2d 256 (La.1982) ; State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). This Court has further clarified:

Stated another way, "if any reasonable state of facts can be imagined wherein the greater offense is committed without perpetration of the lesser offense, a verdict for the lesser cannot be responsive." State v. Simmons, 422 So.2d 138, 142 (La.1982) (quoting State v. Poe, 214 La. 606, 38 So.2d 359, 363 (1948) (on rehearing)). Consequently, evidence which would support a conviction of the charged offense would necessarily support a conviction of the lesser and included offense. Dufore at 258; Elaire, at 248–49.

State v. Simmons, 01–0293, p. 4 (La.5/14/02), 817 So.2d 16, 19.

In State v. Ardoin, 08–1504 (La.App. 1 Cir. 2/13/09), 6 So.3d 237, the First Circuit found, as it did in the present case, that molestation of a juvenile is a lesser and included grade of the offense of aggravated incest, reasoning:

Molestation of a juvenile is clearly a lesser and included offense because it does not require proof of any element that is not required in the charged offense of aggravated incest. Molestation of a juvenile is one of the listed prohibited acts in the aggravated incest statute.

Ardoin, 08–1504 at 5, 6 So.3d at 241. This Court reversed Ardoin on other grounds, see State v. Ardoin, 09–0578, p. 5 (La.5/11/10), 35 So.3d 1065, 1068, and the question of whether molestation of a juvenile is a lesser and included grade of the offense of aggravated incest did not arise again until the present case.

The Court of Appeal erred both in Ardoin and in the present case in finding that because molestation of a juvenile is enumerated as one of many means by which aggravated incest can be committed it is necessarily a lesser and included grade of the offense. Because aggravated incest can be committed in numerous ways, only one of...