State v. Stamper, 24658-KA

• Decision Date: 31 March 1993
• Docket Number: No. 24658-KA,24658-KA
• Citation: 615 So.2d 1359
• Parties: STATE of Louisiana, Appellee, v. Oscar J. STAMPER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1359

615 So.2d 1359

STATE of Louisiana, Appellee, v. Oscar J. STAMPER, Appellant.

No. 24658-KA.

Court of Appeal of Louisiana Second Circuit.

March 31, 1993.

Betty Lee Marak, Asst. Indigent Defender, Shreveport, for appellant.

Paul Carmouche, Dist. Atty., Ronald R. Inderbitzen, Asst. Dist. Atty., Shreveport, for appellee.

Before VICTORY, BROWN and WILLIAMS, JJ.

BROWN, Judge.

A unanimous jury convicted defendant, Oscar Stamper, of three counts of indecent behavior with three male juveniles (LSA-R.S. 14:81). Defendant appeals his convictions and consecutive four, five and six-year hard labor sentences, arguing that the evidence was insufficient to support the verdicts and that the trial court committed various errors during sentencing. For the following reasons, defendant's convictions and sentences are affirmed.

SUFFICIENCY OF EVIDENCE

Two of defendant's assignments of error assert that the evidence was insufficient to support the jury's verdict. These alleged errors directly challenge the quality of the jury's judgment. In our review we are acutely aware that a jury can better assess the evidence than a reviewing court because of its unique and advantageous position of seeing and hearing witnesses. The inherent power of a reviewing court to set aside a jury's verdict focuses on the desire to ensure against unjust convictions. Although the process by which a verdict is evaluated defies precise definition, principles to be applied by a reviewing court were enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This federal constitutional standard requires the reviewing court to determine if the evidence, seen in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Romero, 574 So.2d 330 (La.1990); State v. Mussall, 523 So.2d 1305 (La.1988); State v. Jefferson, 606 So.2d 869 (La.App. 2d Cir.1992); State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992); State v. Scott, 588 So.2d 1365 (La.App. 2d Cir.1991).

This court must not substitute its opinion of the facts for that of the jury. It is the province of the jury to resolve conflicting inferences from the evidence. Thus, in our review, we must consider all the evidence in the light most advantageous to maintaining the verdict. This is true because a reversal of a jury's verdict due to insufficient evidence results in the acquittal of the accused. To reverse on insufficiency, we must find that no valid line of reasoning or permissible inferences from the evidence supports the verdict. We have further held that, 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 finding of guilt. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992); State v. Emerick, 499 So.2d 195 (La.App. 2d Cir.1986).

In order to convict a defendant of indecent behavior with a juvenile, the State must prove that the defendant: (1) committed a lewd or lascivious act upon the person or in the presence of any child under the age of seventeen; (2) was over the age of seventeen and was more than two years older than the victim; and (3) had the specific intent to arouse or gratify either the child's sexual desires or his own. LSA-R.S. 14:81; State v. Edwards, 283 So.2d 231 (La.1973); State v. Rollins, 581 So.2d 379 (La.App. 4th Cir.1991).

Defendant contends that the evidence failed to show beyond a reasonable doubt an intent to arouse or gratify anyone's sexual desires. Defendant also disputes that his touching the buttocks of one child qualifies as a lewd and lascivious act.

Defendant was forty-one years old. The victims were sixteen, fifteen and fourteen years old. The victims attended a group known as Al-a-teen, a program for friends and relatives of alcoholics. Defendant was the adult sponsor of the boys group which included all three victims. Each boy testified that on separate occasions during the spring of 1991 defendant invited him to spend the night. Defendant lived in a small, one-bedroom apartment with only a single bed.

The sixteen-year-old (B.L.) testified that during the middle of April 1991, defendant took him and a friend to defendant's apartment. They watched TV, went out to play pool and then returned to the apartment. Eventually, defendant and B.L., who was wearing boxer shorts, went to sleep in the same bed. B.L. woke up with defendant's hand wrapped around his penis which was outside his shorts and erect. Defendant was lying behind B.L., facing his back. B.L. testified that defendant's hand was moving, "trying to ejaculate me." B.L. knew defendant was awake because he saw his eyes wide open. B.L. told defendant he "didn't appreciate it," got up and went to another room for the rest of the night.

The mother of the fourteen-year-old (C.A.) testified that her son had become withdrawn. After declining to talk with his mother about the change in his attitude, C.A. wrote a letter to defendant. The mother gave defendant this letter. According to C.A., the letter demanded defendant tell what had happened.

In the presence of several other adults, C.A.'s mother met with defendant. Defendant admitted that he and C.A. had slept in the same bed. One of the adults told defendant he had a serious problem. Defendant said, "I do know that I have a problem ... It is hard for me to think of myself as a pedophile."

C.A. testified that he spent the night at defendant's apartment in April or May of 1991 [the actual date was May 30, 1991]. They socialized, watched TV, went to an Al-a-teen meeting and returned to defendant's apartment. Defendant, C.A., and the fifteen-year-old victim, D.J., all slept in the same bed. C.A. was on one side of the bed, D.J. was in the middle and defendant was on the other side. At some point during the night, when defendant got up to go to the bathroom, D.J. said that defendant had touched his buttocks.

D.J. testified that the incident related by C.A. occurred on the next to last day of school. Defendant had invited D.J. and C.A. over to his house to celebrate. They socialized, played pool, attended a program meeting and went to defendant's apartment. While D.J. was taking a shower, defendant walked into the bathroom, pulled open the shower curtain and watched D.J. while telling him to "go ahead and wash your hair, don't worry about me." After looking at D.J. for approximately forty-five seconds, defendant left.

Later that evening, everyone went to bed. C.A. slept by the wall, D.J. slept in the middle of the bed and defendant slept on D.J.'s other side. D.J. felt uncomfortable because the bed was small and they were very close together. D.J. woke up sometime later when he felt a hand on his buttocks. The hand remained there and every once in a while it would move in a circular motion, stop, then repeat the circular motion. This occurred several times over a period of five to seven minutes. D.J. told the defendant to quit and he did.

C.A. testified that he returned to defendant's apartment on June 5, 1991, at defendant's invitation to spend the night. C.A. and defendant walked to the riverfront, talked, went back to the apartment for dinner and went to bed about 11:00 p.m. C.A. and defendant slept in the same bed. C.A. was wearing a pair of shorts with a drawstring and underwear. C.A. awoke to find defendant's hand inside the underwear. Defendant was rubbing his hand on C.A.'s penis. Defendant was told to stop. C.A. became depressed after this incident and corroborated his mother's account of his letter to defendant.

Patty Dunlop, an LPN and the coordinator of the Al-a-teen program, corroborated the mother's statements of her confrontation with defendant and defendant's admissions. Mrs. Dunlop further testified that she immediately discharged defendant from the program.

After receiving complaints from the victims, Detective Best first interviewed defendant on September 20, 1991. In that interview defendant denied the allegations. Five days later Detective Best arrested defendant and while enroute to the police station defendant said that he knew what he had done was wrong. Thereafter, at the station, defendant again denied the allegations.

In the instant case, the uncontroverted evidence shows that defendant was forty-one years old and that each of the boys was under seventeen when the offenses were committed. Defendant attempted to masturbate B.L., fondled C.A.'s penis and rubbed D.J.'s buttocks for a protracted period of time. To be guilty of indecent behavior with a juvenile, the state does not have to prove actual arousal but only an intent to arouse the sexual desires of either victim or perpetrator. State v. Rollins, supra; State v. Roberts, 541 So.2d 961 (La.App. 2d Cir.1989). Intent is a question of fact which must be inferred from the circumstances of the incident. Defendant's statement to the arresting officer that he knew he had done wrong, his admission to the adult group that he had a problem and that it was hard to consider himself a pedophile and, in particular, the descriptions of the acts themselves by the three boys clearly show defendant's intent to arouse and gratify his sexual desires. Defendant neither testified nor presented any contradictory evidence. Thus, the jury was justified in concluding that the necessary intent was proven beyond a reasonable doubt.

Defendant also argues that rubbing D.J.'s buttocks was not a lewd and lascivious act. A lewd and lascivious act is one tending to excite lust in a sexually immoral context. State v. Holstead, 354 So.2d 493 (La.1977). The word "lewd" is identified with obscenity and community norms for morality. Whether an act is lewd and lascivious depends upon the time, the place and all the circumstances surrounding its commission, including the intention,...