State v. Leblanc
| Decision Date | 18 May 1987 |
| Docket Number | No. 86-K-2394,86-K-2394 |
| Citation | 506 So.2d 1197 |
| Parties | STATE of Louisiana v. Labarsa LEBLANC. |
| Court | Louisiana Supreme Court |
Stewart Thomas, Thomas & Cassidy, Jennings, for applicants.
William J. Guste, Jr., Atty. Gen., Wendell Miller, Dist. Atty., Jacquelyne J. Heinen, Asst. Dist. Atty., for respondent.
We granted certiorari to determine whether the evidence was sufficient to support defendant's conviction of attempted molestation of a juvenile. The critical issue is whether defendant's lewd act upon the juvenile's person was committed "by use of force", as contemplated by La.R.S. 14:81.2, the statute which defines the crime of molestation of a juvenile.
The victim, a fourteen-year old boy, was jogging on the road when defendant, a sixty-one year old man, drove his truck alongside the boy and began talking to him. After asking the boy if he "had been getting any from [his] girlfriend", defendant offered to masturbate the boy for money. When the boy declined, defendant placed his thumb into the boy's short pants and his fingers on the outside of the pants over the boy's genitals. The boy punched defendant in the face and ran away.
The bill of information charged that defendant:
"did unlawfully commit a lewd act upon the person of [the victim], a juvenile there being an age difference greater than two years between the two, with the intention of arousing or gratifying the sexual desires of either person, by the use of force (a felony), in violation of LSA R.S. 14:81.2, by the defendant pushing his hand into the pants of [the victim] and grabbing the genitals of [the victim]."
Following the trial, the jury unanimously found defendant guilty of the responsive offense of attempted molestation of a juvenile. In denying the post-verdict motion for acquittal based on the alleged insufficiency of evidence of use of force, the trial judge observed that there was evidence of an "unauthorized touching with some force". The judge analogized the touching in this case to the mere rubbing of a sleeping child's genitals which was held to be sufficient evidence of "use of force" for the crime of battery under La.R.S. 14:33 in State v. Mitchell, 466 So.2d 514 (La.App. 3rd Cir.1985), cert. denied, 467 So.2d 1121.
The court of appeal affirmed. 497 So.2d 387. The intermediate court concluded that the evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that defendant had the specific intent to commit a lewd act upon the person of the boy by use of force, the force being defendant's grabbing the boy's genitals. 1 We granted certiorari. 501 So.2d 764.
The due process clause of the fourteenth amendment to the United States Constitution requires that the prosecution prove beyond a reasonable doubt every essential element of the crime of which the accused is convicted. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). On an appeal in which the sufficiency of the evidence has been challenged, the reviewing court must determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every essential element of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Byrd, 385 So.2d 248 (La.1980).
La.R.S. 14:81.2, added by Acts 1984, No. 220, defines the crime of molestation of a juvenile in pertinent part 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." (emphasis added)
Thus, the essential elements of the crime of molestation of a juvenile, each of which the prosecution must prove beyond a reasonable doubt, are that the accused:
1. committed a lewd or lascivious act upon the person or in the presence of a child under the age of seventeen.
2. was over the age of seventeen and more than two years older than the victim.
3. had the specific intent to arouse or gratify either the child's sexual desires or his own sexual desires.
4. committed the lewd or lascivious act by 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.
The definition of the new crime of molestation of a juvenile was a verbatim repetition of the definition of the crime of indecent behavior with a juvenile, with the addition of the essential element of the use of force (or use of some other enumerated behavior of the accused). 2 It is therefore evident that the 1984 Legislature intended to create two distinct grades of crimes involving lewd acts with juveniles, the distinguishing element being the use of force (or use of some other enumerated behavior). The Legislature also manifested its impression of the greater seriousness of the new crime by providing a sentencing range of one to ten years (fifteen under certain circumstances), whereas the sentencing range of the crime of indecent behavior was zero to five years. 3
The only question in the present case as to the sufficiency of the evidence is whether the defendant committed the lewd act by use of force. 4 The lower courts misconstrued the "use of force" requirement of the statute. The court of appeal reasoned that the simple grabbing of the boy's genitals constituted the "use of force" sufficient to fulfill the statutory requirement. However, a statute should be construed with reference to the entire system of applicable law. Some minimum degree of force or physical effort is required to commit the lewd act which is an essential element of the crime of indecent behavior with a juvenile. When the more serious crime of molestation of a juvenile was enacted with the additional essential element of "use of force", the Legislature must have contemplated a requirement of additional aggravating conduct consisting of some added element of force, above and beyond that force or effort necessary to commit the lewd act upon the person. 5
A genuine construction of La.R.S. 14:81.2 as part of the overall criminal law pertaining to lewd acts with juveniles therefore leads to the conclusion that the Legislature contemplated a requirement of something more than the mere exertion of physical effort necessary to commit the lewd act. Properly construed, the "use of force" element refers to the forcible means of overcoming the will or the resistance of the victim, and this additional essential element requires a use of force in addition to any mere touching or minimum effort exerted in performing the lewd act. This added element of force must be substantially greater than or substantially different from the force which is necessary to commit the less serious offense of indecent behavior with a juvenile. See People v. Cicero, 157 Cal.App.3d 465, 204 Cal.Rptr. 582 (Ct.App.1984). 6
Furthermore, the trial court's analogy of the force necessary for molestation of a juvenile to the force required for a battery is inappropriate. The "use of force" requirement in the crime of molestation of a juvenile is much more comparable to the "use of force" requirement in simple robbery, as defined in La.R.S. 14:65, than to the element of the crime of battery defined in La.R.S. 14:33. 7 The "use of force" in La.R.S. 14:33 contemplates the minimum force or violence upon the person necessary to commit the crime of battery and distinguishes the crime from an accidental or incidental touching. Moreover, the force constitutes the criminal act itself, rather than the means of overcoming the victim's will. On the other hand, the crime of robbery contemplates that some energy or physical effort will be exerted in the "taking" element of the crime and that some additional "use of force" in overcoming the will or resistance of the victim is necessary to distinguish the crime of robbery from the less serious crime of theft, as defined by La.R.S. 14:67. See State v. Johnson, 411 So.2d 439 (La.1982). For discussions of the "use of force" element of robbery, see R. Perkins & R. Boyce, Criminal Law, Ch. 4, § 2C (3d ed. 1982); 4 Wharton's Criminal Law § 475 (14th ed. 1981).
In the present case, defendant exerted a minimal amount of physical effort...
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