State v. Ruple, 82

CourtCourt of Appeal of Louisiana (US)
Citation426 So.2d 249
Docket NumberNo. 82,82
PartiesSTATE of Louisiana v. George RUPLE. KA 0679.
Decision Date05 January 1983

Ossie B. Brown, Dist. Atty. by Glen R. Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

John R. Dowden, Baton Rouge, for defendant-appellant.

Before COVINGTON, LANIER and ALFORD, JJ.

LANIER, Judge.

The defendant, George Ruple, was convicted by a jury of indecent behavior with a juvenile, in violation of La.R.S. 14:81. He was sentenced to serve four years at hard labor in the custody of the Louisiana Department of Corrections, which sentence was suspended and he was placed on supervised probation for a period of five years subject to various conditions (most of which are set forth in La.C.Cr.P. art. 895), including requirements that he be evaluated at the Baton Rouge Mental Health Center and serve twenty-six consecutive Sundays on the East Baton Rouge Sheriff's litter detail.

SPECIFICATION OF ERROR NO. 1--SUFFICIENCY OF THE EVIDENCE

In State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Louisiana Supreme Court has indicated that this appellate review of the evidence by a state court is required by the due process clause of the Fourteenth Amendment of the United States Constitution. State v. Graham, 422 So.2d 123 (La.1982). When reviewing a conviction based upon circumstantial evidence, it must be determined that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. La.R.S. 15:438; State v. Ennis, 414 So.2d 661 (La.1982); State v. Austin, 399 So.2d 158 (La.1981).

The crime of indecent behavior with a juvenile is defined in La.R.S. 14:81, as follows:

"Indecent behavior with juveniles 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. Lack of knowledge of the child's age shall not be a defense."

The elements of the offense as charged in this case are: (1) the defendant is a person over the age of seventeen; (2) the juvenile is a person under the age of seventeen; (3) there is an age difference greater than two years between the defendant and the juvenile; (4) the defendant committed a lewd or lascivious act upon the person of the juvenile; and (5) the act committed by the defendant was with the intention of arousing or gratifying the sexual desires of either person.

The record shows that the defendant was born on December 25, 1950, and the juvenile was born on May 5, 1965. The incident which resulted in the charge occurred on June 23, 1980. At that time, the defendant was over seventeen (age 29), the juvenile was under seventeen (age 15), and there was an age difference greater than two years between the defendant and the juvenile.

The evidence most favorable to the prosecution in the record is the testimony of the juvenile, in pertinent part, as follows:

"A. --and so then I went back into the kitchen and sat down, and so he was a minute coming back in there, and so he had two cans of worms on the table. Some of them--one can was completely dead and another can he must have just bought. I don't know.

"Q. This--these are live worms?

"A. Yeah.

"Q. Like for fishing bait or what?

"A. Yeah.

"Q. Okay.

"A. So I commented on how big they were, and he--he compared them. In his own words he said those things--let's see--he said they were big. Then he said that they weren't nearly as big as his dick--

"Q. Okay.

"A. --in his own words.

"Q. All right, what happened after that?

"A. Okay, then he said, 'Speaking of dicks, let's see how big yours is'. Then he reached over. While he was doing that, he--he asked where it is--in hibernation, and then he asked if I was having a hard on.

"Q. Okay. Did he ever touch you?

"A. Yes.

"Q. Where did he touch you?

"A. Between my legs.

"Q. Okay. What--what did you do at that point?

"A. I got up and left.

....

"Q. As silly as this sounds, was his touching without your consent?

"A. Yes.

"Q. Did he touch your genitals?

"A. Yes." 1

The juvenile's testimony shows that the defendant touched the juvenile on his genitals (apparently through his clothing) without his consent. This is sufficient evidence to show that the defendant committed a lewd and lascivious act upon the person of the juvenile.

Indecent behavior with a juvenile is a specific intent crime. Specific intent is a state of mind in which "the offender actively desired the prescribed criminal consequences to follow his act or failure to act." In order to have an indecent behavior, the state must prove that the lewd or lascivious act upon the juvenile was "with the intention of arousing or gratifying the sexual desires of either person." La.R.S. 14:10 and 11; State v. Duncan, 390 So.2d 859 (La.1980); State v. Johnson, 368 So.2d 719 (La.1979); State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970). Although a specific intent may be proven by direct evidence, such as by statements of the defendant, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Williams, 383 So.2d 369 (La.1980). The testimony of the juvenile indicates that the defendant asked him how big his penis was, reached over and touched him on his genitals, and asked if he were having an erection. This evidence shows both directly and circumstantially that the defendant had the specific intent of arousing or gratifying the sexual desires of himself and the juvenile. From this evidence, the jury could validly conclude beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded and that the defendant had the requisite specific intent to commit the offense.

Assignment of error number 1 is without merit.

ASSIGNMENT OF ERROR NO. 2--EXCESSIVENESS OF SENTENCE

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment, and that although a sentence may be within statutory limits, it may violate a defendant's Constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). A trial judge's reasons for sentence, as required by Article 894.1, are an important aid to an appellate court when called upon to review a sentence complained of as excessive. However, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The record reflects that the trial court did not adequately consider the 894.1 guidelines in particularizing the sentence of the defendant. 2 State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). However, where a sentence imposed is not "apparently severe" and is in the "lower range" of the sentencing scale, this court will not remand for compliance with Article 894.1. State v. Jones, 412 So.2d 1051 (La.1982); State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980).

The maximum authorized sentence for indecent behavior with a juvenile is a fine not more than $5,000 or imprisonment with or without hard labor for not more than five years or both. The sentence actually imposed does not assess a fine. The sentence does provide for four years in the custody of the Department of Corrections, but this portion of the sentence is suspended. The probation imposed is for the maximum length of time authorized (La.C.Cr.P. art. 893) and is subject to the standard conditions of probation contained in La.C.Cr.P. art. 895. The two special conditions imposed, requiring evaluation at the Mental Health Clinic and twenty-six consecutive Sundays on the litter detail, are reasonable in view of the nature of the offense and its gravity. Because the sentence to confinement in this case was suspended, it is not apparently severe and the sentence as imposed is not an abuse of the much discretion granted to a trial judge.

Assignment of error number 2 is without merit.

DECREE

The defendant's conviction and sentence are affirmed.

AFFIRMED.

APPENDIX NO. 1

"In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the court cites that probation is appropriate because the defendant has no history of convictions for criminal activity before the commission of the instant crime, and the court cites the accused's lack of criminal record as presented to the court by the Division of Probation and Parole. Also the defendant is likely to respond affirmatively to probationary treatment, and the court cites that the accused has a rather extensive formal education including off and on attendance at LSU for a period of five years. The court also notes that the Division of Probation and Parole recommends probation in this case."

COVINGTON, LANIER and ALFORD, JJ., specially...

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