State v. Whitmore

• Decision Date: 02 March 2011
• Docket Number: 46,122–KA,46,125–KA.,46,124–KA,Nos. 46,120–KA,46,123–KA,46,121–KA,s. 46,120–KA
• Citation: 58 So.3d 583
• Parties: STATE of Louisiana, Appelleev.Joel Rene WHITMORE, Appellant.
• Court: Court of Appeal of Louisiana — District of US

58 So.3d 583

STATE of Louisiana, Appellee

v.Joel Rene WHITMORE, Appellant.

Nos. 46,120–KA

46,121–KA

46,122–KA

46,123–KA

46,124–KA

46,125–KA.

Court of Appeal of Louisiana, Second Circuit.

March 2, 2011.

Stephen A. Glassell, Shreveport, for Appellant.J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.Before BROWN, DREW, and CARAWAY, JJ.BROWN, Chief Judge.

[2 Cir. 2] On October 29, 2007, defendant, Joel Rene Whitmore, was charged by separate bills of information with two counts of indecent behavior with a juvenile (someone whom he believed to be a 12–year–old girl), in violation of La. R.S. 14:81, and four counts of computer-aided solicitation of a minor, in violation of La. R.S. 14:81.3. Defendant waived his right to jury trial and on December 29, 2009, after considering a joint stipulation and evidentiary submissions in lieu of live testimony (transcripts of text messages and chats, and a CD of phone conversations), the trial court found defendant guilty as charged. On April 13, 2010, defendant was sentenced to serve four years at hard labor without the benefit of parole, probation or suspension of sentence for each count of computer-aided solicitation of a minor. These sentences were to run concurrently, for a total of four years. Defendant was also sentenced to serve four years at hard labor, for each count of indecent behavior with a juvenile, to be served concurrently with each other but consecutively to his sentences for solicitation of a minor. The four-year concurrent sentences for indecent behavior were suspended and following his four-year prison term for computer-aided solicitation, defendant is to be placed on five-year active, supervised probation with the condition that he not own or possess a computer during his probation. Defendant was also instructed to register as a sex offender in accordance with La. R.S. 15:541, et. seq. Defendant now appeals his convictions and sentences. For the following reasons, we affirm.

[2 Cir. 3] Facts

On February 19, 2008, defendant filed a pretrial motion to quash, contending that the two statutes (La. R.S. 14:81 and La. R.S. 14:81.3) were unconstitutional, arguing, inter alia, that the statutes were overly broad and/or vague and impinged on his right to privacy and freedom of expression. That same day, the trial court denied defendant's motion, finding that this motion relied on factual disputes to be determined at trial. The trial court also found the language of the statutes to be clear and unambiguous.

On April 7, 2008, defendant pled not guilty and waived his right to a jury trial. On August 21, 2009, the date set for defendant's bench trial, the state and defendant offered into evidence a joint stipulation, executed by the state, in lieu of calling witnesses to testify. The trial court informed defendant that by allowing the joint stipulation he was waiving his right to a trial by jury and his right to confront his accusers or witnesses against him.

The joint stipulation revealed that a sting operation had been conducted by the Bossier Parish Police Department. Officer Matt Wright posed as a 12–year–old female using the screen name “Liltaralee12” to communicate through electronic text messages with defendant. Several online conversations ensued with defendant, whose screen name was “Sage1066,” and whose date of birth is October 5, 1966: on March 20, 2007; June 4, 2007; June 19, 2007; June 22, 2007; June 26, 2007; July 16, 2007, and July 17, 2007. Officer Shelly Anderson, posing as the same 12–year–old female using the screen name “Liltaralee12,” engaged in two telephone conversations with defendant on June 19, 2007, and July 17, 2007. The content of the transcripts and a recording of the phone conversations set forth the following facts.

On June 4, 2007, defendant, using the screen name “Sage1066,” sent an electronic message over the Internet to “Liltaralee12,” a person he believed to be a 12–year–old child. During the conversation, defendant asked “Liltaralee12” how “experienced” she was with boys, described his past sexual experiences with a 16–year–old girl and a 14–year–old girl, and told her he could teach her to masturbate. He also asked her if she had ever [2 Cir. 4] performed oral sex on a guy or allowed someone to perform oral sex on her. He told her that all the sex talk had gotten him excited and he was going to look at her picture and masturbate.

On June 19, 2007, defendant told “Liltaralee12” that she needed to learn how to masturbate, talked about her having an orgasm, and told her that he would talk her through masturbating if she called him. Defendant told her it was more exciting to share “it” with someone. He also volunteered to watch her when she urinated and to “wipe” it with his tongue. Defendant sent “Liltaralee12” two links to a pornographic website so that she could learn how to masturbate. Officer Anderson, posing as “Liltaralee12” called defendant. During the phone conversation, defendant attempted to instruct “Liltaralee12” how to masturbate, giving her step-by-step directions.

On June 22, 2007, defendant contacted “Liltaralee12” through electronic text communication and during the course of their conversation “Liltaralee12” asked defendant if she was old enough for him. Defendant told her that she was not legally old enough for him, but if she thought she was then it was settled, they should get married. Since she was still a virgin, though, “we'll have to fix that.” Defendant told her she would be the only cheerleader on the squad with a husband. Defendant also asked “Liltaralee12” if she had looked at the pornographic website, talked about his penis size, and told her that she needed to try to “get herself off” if she hadn't.

On June 26, 2007, defendant again made contact with “Liltaralee12” through electronic text communication. “Liltaralee12” indicated that she would be staying with her 13–year–old cousin that week. Defendant told her that she should practice masturbating with her cousin. He offered to drive up there and “show you” and said “I'll do yours and you can do mine.” However, he said he would never come unless “you invited me.” He also discussed “Liltaralee12” and her cousin performing oral sex on him in exchange for him bringing “the good stuff” (i.e. alcoholic beverages). They discussed age again and defendant said while he was too old for a long-term relationship they could have fun (“movies, talking, sex, alcohol, shopping”). [2 Cir. 5] Defendant reassured “Liltaralee12” there are tons of ways to have sex without actually “f**king.”

On July 17, 2007, defendant asked “Liltaralee12” if she was practicing her masturbation. Also on July 17, 2007, Officer Anderson, posing as “Liltaralee12,” called defendant, who again gave her step-by-step instructions to assist her in masturbating.

On December 29, 2009, the trial court, after considering the joint stipulation and attached exhibits, found defendant guilty of four counts of computer-aided solicitation of a minor and two counts of indecent behavior with juveniles.¹ The trial court ordered a pre-sentence investigation report.

On April 9, 2010, defendant filed a motion for new trial alleging that the trial court erred in denying his motion to quash and that the verdict was contrary to the law and evidence. He also filed a motion for post-verdict judgment of acquittal, a motion to depart from the mandatory minimum sentence, and a motion in arrest of judgment.

On April 13, 2010, defendant appeared for sentencing. The trial court first addressed defendant's motion for post-verdict judgment of acquittal, rejecting the argument that defendant could only be found guilty of attempted computer-aided solicitation of a minor because he did not actually communicate with a minor. Specifically, the trial court held that the statute for computer-aided solicitation of a minor defined the offense to include situations where the offender contacted a “person reasonably believed to have not yet attained the age of 18 ...”

The trial court also denied defendant's motion in arrest of judgment, again rejecting both the argument that the statutes were unconstitutionally vague and that the statute for computer-aided solicitation of a minor violated defendant's due process rights by preventing him from presenting a defense based on consent (referring to the undercover police officer's consent to the communication). The trial court denied defendant's motion for new trial, finding no new evidence requiring that a new trial be granted.

The trial court also denied defendant's motion to depart from the mandatory minimum sentence on the counts of computer-aided solicitation [2 Cir. 6] of a minor for sexual purposes, finding that defendant's conduct was precisely the type the legislature intended to punish by at least two years of imprisonment.

After acknowledging that it had considered defendant's pre-sentence investigation report, character letters submitted by his friends and family, and the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, the trial court sentenced defendant. For each of the four counts of computer-aided solicitation of a minor, the trial court imposed a sentence of four years at hard labor without the benefit of parole, probation or suspension of sentence, with the sentences to run concurrent. For each of the two counts of indecent behavior with juveniles, the trial court imposed a suspended sentence of four years at hard labor, to run concurrently with each other but to run consecutively with his sentences for computer-aided solicitation of a minor. After serving his four-year cumulative sentence for solicitation, defendant is to be placed on five years active probation. During that time he is prohibited from owning or possessing a computer. Defendant was also informed of the sex offender registry requirements in accordance with La. R.S. 15:541, et. seq.

On May 12, 2010, defendant...