State v. Jinks

• Citation: 267 So.3d 688 (Mem)
• Decision Date: 01 May 2019
• Docket Number: 18-733
• Parties: STATE of Louisiana v. Elvin Bryant JINKS, Jr.
• Court: Court of Appeal of Louisiana (US)

267 So.3d 688 (Mem)

STATE of Louisiana

v.Elvin Bryant JINKS, Jr.

18-733

Court of Appeal of Louisiana, Third Circuit.

May 1, 2019

Cooks, J., dissents.

Elvin Bryant Jinks, Jr. (Defendant) was charged by bill of information with a violation of La.R.S. 14:89.1, aggravated crime against nature. He was convicted of one count of aggravated crime against nature perpetrated on his eleven-year-old stepdaughter. The only evidence presented by the State was the victim's testimony. There is no medical evidence, no physical evidence, or any other corroborating evidence. He was convicted by a ten-two jury verdict and sentenced to the statutory minimum of 25 years without benefit. I respectfully dissent from the majority's affirmance of Defendant's sentence and conviction. I believe there are four significant legal errors in this case which mandate a new trial or at the very least resentencing. Two errors are patent which I elect to discuss first.

Apprendi violation, error patent .

Defendant was sentenced pursuant to the enhancement provision provided in La.R.S. 14:89.1(C)(2), despite the fact that the charging bill of information did not reference the provision and no amendment to the bill of information occurred prior to trial. The majority notes that the bill of information states the victim's date of birth from which one can deduce that she was eleven years old at the time of the offense. The bill of information sets forth the date of the offense as "on or about November 7, 2016," and sets forth K.A.'s date of birth as "09/12/05." But the Bill of Information does not explicitly or implicitly charge Defendant under the provisions of La.R.S. 14:89.1 (C)(2). The majority also notes the jury did not make a determination as to the victim's age , but, it says, the trial court stated at sentencing that the victim was eleven at the time the offense occurred. The majority further notes Defendant did not object at trial and has not raised this issue on appeal. The majority states this is "arguably" an Apprendi¹ violation but maintains this court does not "typically recognize Apprendi violations as an error patent." It further reasons that because this court applies the harmless error rule to Apprendi violations when such are raised on appeal then "it stands to reason that this court would not recognize an error patent when no one objected to the trial court's application of the increased penalty provision and no such error has been assigned on appeal." Accordingly, the majority concludes we should not address this error patent because it was harmless error. I believe the latter argument is circuitous. This presents an error patent on the face of the record which we are duty bound to review in light of Apprendi and its progeny and our law regarding errors patent. Louisiana Code of Criminal Procedure Article 920mandates review of errors patent which are defined as: "An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence."

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, supra;Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ; see also State v. Gibson [09–486 (La.App. 5th Cir. 03/09/10), 38 So.3d 373], supra, for a thorough discussion of Apprendi and its progeny.

The state must explicitly note in the bill of information that the enhanced sentence provision is applicable to a defendant, and the trial court must include a jury instruction reflecting the ages of the victim and defendant. State v. Gibson, supra.

State v. Robinson , 49,821, p. 12 (La.App. 2 Cir. 5/20/15), 166 So.3d 395, 402, writ denied , 15-1400 (La. 9/16/16), 206 So.3d 201. See also State v. Johnson , 11-1213 (La.App. 4 Cir. 2/7/13), 109 So.3d 994, writ denied , 13-0554 (La. 11/1/13), 124 So.3d 1106.

It is apparent on the face of the record that the Bill of Information does not include any explicit, or even an implicit, reference to the enhanced sentence provision. The Bill of Information in this case reads as follows:

IN THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT

for the

PARISH OF CAMERON [,]

STATE OF LOUISIANA[.]

JENNIFER A. JONES, District Attorney in and for the Thirty-Eighth Judicial District Court, and by authority of the Laws of the STATE OF LOUISIANA charges that on or about November 7, 2016, at and in the parish, District and State aforesaid

ELVIN BRYANT JINKS, JR.

Committed the offense of[:]

R.S.14:89.1

AGGRAVATED CRIME AGAINST NATURE

In that HE

COUNT I: committed the offense of AGGRAVATED CRIME AGAINST NATURE by the unnatural carnal copulation by a human being, with another by the use of the genital organs and is committed under one of the following circumstances: ELVIN BRYANT JINKS, JR. did touch his step-daughter, KRW, W/F DOB-09/12/05, under her clothing on her bare vagina and breasts with his bare hand.

Contrary to the laws of the State of Louisiana and against the Peace and Dignity of the same.

It is also apparent on the face of this record that the jury verdict sheet states only that "we the Jury find the Defendant Guilty of Aggravated Crimes against Nature." That verdict may well refer to a violation of La.R.S. 14:89.1(A)(2) which would subject Defendant to a fine of not more than fifty thousand dollars or imprisonment with or without hard labor for not less than five nor more than twenty years or both as provided in La.R.S. (C)(1). But Defendant was sentenced under the provisions of La.R.S. 14:89.1(C)(2) which requires, when the victim is under the age of thirteen and the offender is seventeen or older imposition of a mandatory minimum sentence of twenty-five years at hard labor up to ninety-nine years with at least twenty-five years "without benefit of parole, probation, or suspension of sentence." The jury verdict form gives no indication that it found Defendant guilty of an aggravated crime against nature when the victim is under thirteen and the perpetrator is over seventeen years of age, nevertheless, the judge, when sentencing Defendant first remarked:

Mr. Jinks, you have been found guilty of Aggravated Crime Against nature, a violation of the Louisiana Revised Statute 14:89.1(C)(2), by a jury of your peers. Upon conviction of Aggravated Crime Against Nature, when the victim is under the age of thirteen years and the offender is seventeen years of age or older, the offender shall be punished by imprisonment at hard labor for not less than 25 years nor more than 99 years. At least 25 years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

I findthat the victim in this matter was a stepchild of the defendant who was 11 years old at the time of the crime. I find the mitigating factors applicable to this case are that the defendant does not have any prior felony convictions. He is presently 50 years old.

The transcript of the record includes the jury instructions. The trial court informed the jury as follows:

In this—in the case, at trial, before you, the defendant is charged by a bill of information. The bill of information is only an accusation of the alleged crime and is not to be considered as evidence of any guilt of the defendant. It merely—it is merely part of the process by which he is brought to the court for the determination of guilt or innocence.

Docket Number 158217 reads in pertinent part that the district attorney charged that on or about November 7, 2016, that Elvin Bryant Jinks, Jr., committed the offense of Aggravated Crime Against Nature by touching his stepdaughter, KRW, a white female, with a date of birth of September 12, 2005, under her clothing, on her bare vagina and breasts, with his bare hand.

Aggravated Crime Against Nature is the engaging in any prohibited act with a person who is under 18 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. The prohibitive acts are Sexual battery, indecent Behavior with a Juvenile, Molestation of a Juvenile, or any other involvement of a child in sexual activity constituting a crime under the laws of this state ...

....

Lewd and lascivious 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 17...

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 occurred: one, the offender acts without the consent of the victim; and two, the victim has not yet attained 15 years of age and is—and is at least three years younger than the offender.

....

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. Any lewd or lascivious act upon the person or in the presence of any child under the age of 17 where there is a[n] sic age difference of greater than two years between the two persons.

Molestation of a Juvenile is the commission by anyone over the age of 17 of any lewd and lascivious act upon the person or in the presence of any child under the age of 17 where there is an age difference of greater than two years between the two persons...

....

I will now review the necessary elements on each charge. In order to convict the defendant of Aggravated Crime Against Nature, you must find: one, that defendant Elvin Bryant Jinks, Jr., is the stepfather of the victim and this fact was known by Elvin Bryant Jinks; and two, that defendant Elvin Bryant Jinks,

...