State v. Lewis

• Decision Date: 14 November 2018
• Docket Number: No. 52,367-KA,52,367-KA
• Citation: 260 So.3d 1220
• Parties: STATE of Louisiana, Appellee v. Larry LEWIS, Jr., Appellant
• Court: Court of Appeal of Louisiana — District of US

260 So.3d 1220

STATE of Louisiana, Appellee
v.
Larry LEWIS, Jr., Appellant

No. 52,367-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered November 14, 2018

LOUISIANA APPELLATE PROJECT, By: Sherry Watters, Counsel for Appellant

JOHN F. K. BELTON, District Attorney, TRACY WAYNE HOUCK, WILLIAM KYLE GREEN, Assistant District Attorneys, Counsel for Appellee

Before WILLIAMS, GARRETT, and STONE, JJ.

GARRETT, J.

The defendant, Larry Lewis, Jr., was convicted of four counts of molestation of a juvenile and was sentenced to serve 20 years at hard labor on each count, to be served concurrently. He appealed his convictions and sentences. For the following reasons, we affirm.

FACTS

The victim in this matter is AA.¹ AA's mother is legally blind and managed a trailer park. She employed Lewis to work at her business, to help with matters around the house, and to drive for her and AA. Lewis and AA's mother had a sporadic intimate relationship. The victim's mother invited Lewis to live in her home in order to make it easier for him to drive her and AA to work and school.

Lewis began molesting AA on November 22, 2012, and continued until December 10, 2012. Lewis and AA would watch television in the living room, in the dark, under a blanket. On November 22, 2012, while watching a scary movie, Lewis began touching AA, and then engaged in sexual intercourse with her. Over the next couple of weeks, three more instances of molestation occurred, all on the couch in the dark living room. AA's date of birth is December 3, 1998. She was 13 years old during the first two offenses and 14 during the second two offenses. Lewis's date of birth is February 11, 1977. He was 35 years old when the offenses were committed.

In December 2012, a school friend, Morgan Thompson, noticed a hickey on AA's neck. AA told Thompson that Lewis had given her the hickey. Thompson reported this information to school authorities. Law enforcement officials were contacted and

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an investigation was commenced. AA told investigators with the Union Parish Sheriff's office that she had sexual contact with Lewis on four occasions. Lewis was arrested, and on August 15, 2014, he was charged by bill of information with four counts of molestation of a juvenile, violations of La. R.S. 14:81.2.² He was tried by a jury in February 2018, and was found guilty as charged on all four counts. On May 15, 2018, the trial court sentenced Lewis to serve 20 years at hard labor on each count, with the sentences to be served concurrently. In open court, Lewis signed an acknowledgment of receipt of the sex offender registration and notification requirements. No motion to reconsider the sentence was filed. Lewis appealed his convictions and sentences.³

JURY INSTRUCTION

Lewis argues that the trial court erred in failing to define for the jury the element in the molestation statute of "a position of control or supervision over the juvenile." This argument is without merit.

Legal Principles

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury. La. C. Cr. P. art. 801(C). See State v. Washington , 51,818 (La. App. 2 Cir. 4/11/18), 245 So.3d 1234 ; State v. Barron , 51,491 (La. App. 2 Cir. 8/9/17), 243 So.3d 1178, writ denied , 17-1529 (La. 6/1/18), 243 So.3d 1063.

The rule requiring contemporaneous objection serves two purposes: it prevents a defendant from withholding objections to errors which might have been corrected at trial, with the intention of resorting to such errors on appeal; and it promotes judicial efficiency. State v. Matthews , 50,838 (La. App. 2 Cir. 8/10/16), 200 So.3d 895, writ denied , 16-1678 (La. 6/5/17), 220 So.3d 752.

Discussion

Lewis argues that the jury was not properly instructed as to the meaning of the element in the offense of molestation of a juvenile requiring proof that the offense was committed by the use of influence by virtue of a position of control or supervision over the juvenile. The charge read to the jury included the definition and elements of molestation of a juvenile and indecent behavior with a juvenile. The jury verdict form listed the possible verdicts as: (1) guilty of molestation of a

260 So.3d 1224

juvenile with control or supervision; (2) guilty of molestation of a juvenile without control or supervision; (3) guilty of attempted molestation of a juvenile; (4) guilty of indecent behavior with a juvenile; (5) guilty of attempted indecent behavior with a juvenile; (6) not guilty. During the course of the deliberations, the jury requested that the court explain the difference between molestation of a juvenile with control and supervision and indecent behavior with a juvenile. The trial court again read the definition of "molestation of a juvenile with control or supervision." The jury was asked if that answered the question. The jury foreman said, "Yes." The trial court then read the definition of indecent behavior with a juvenile. The jury was again asked if that answered the question. The foreman replied that it did. The jury then returned to its deliberations.

No objection was made to the instructions read to the jury before deliberations or in response to the jury's question. There was no indication that the jury was confused by the instructions. Due to the failure to make a contemporaneous objection to the instructions given, Lewis is not entitled to raise this issue on appeal. However, the record shows that the jury instructions given were sufficient and correct.

SUFFICIENCY OF THE EVIDENCE

Lewis asserts that the state failed to prove beyond a reasonable doubt that he exercised supervision or control over AA, and therefore, he should only have been convicted of a lesser grade of molestation or of indecent behavior with a juvenile. This argument is without merit.

Legal Principles

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. Robinson , 50,643 (La. App. 2 Cir. 6/22/16), 197 So.3d 717, writ denied , 16-1479 (La. 5/19/17), 221 So.3d 78 ; State v. Minor , 52,091 (La. App. 2 Cir. 9/26/18), 254 So.3d 1278, 2018 WL 4610809.

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 factfinder. State v. Pigford , 05-0477 (La. 2/22/06), 922 So.2d 517 ; State v. Robinson , supra ; State v. Minor , supra . The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to the factfinder's decision to accept or reject the testimony of a witness in whole or in part. State v. Robinson , supra ; State v. Moss , 48,289 (La. App. 2 Cir. 11/20/13), 127 So.3d 979, writ denied , 13-2975 (La. 8/25/14), 147 So.3d 697 ; State v. Minor , supra .

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by defendant. State v. Terry , 47,425 (La. App. 2 Cir. 11/21/12), 108 So.3d 126, writ denied , 12-2759 (La. 6/28/13), 118 So.3d 1096.

The pertinent portions of La. R.S. 14:81.2, defining the offense of molestation of a juvenile applicable to this case, are set forth above. The essential elements of the crime of molestation of a juvenile, each of

260 So.3d 1225

which the prosecution must prove beyond a reasonable doubt, are: (1) the accused was over the age of 17; (2) the accused committed a lewd or lascivious act upon the person or in the presence of a child under the age of 17; (3) the accused was more than two years older than the victim; (4) the accused had the specific intent to arouse or gratify either the child's sexual desires or his or her own sexual desires; and (5) the accused 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. La. R.S. 14:81.2 ; State v. LeBlanc, 506 So.2d 1197 (La. 1987) ; State v. Wilson , 50,418...