Opinion
NUMBER 2014 KA 1441
09-18-2015
STATE OF LOUISIANA v. KEVIN LEE RIECKMANN, JR.
Warren Montgomery, D.A. Kathryn Landry Baton Rouge, LA Attorneys for Appellee State of Louisiana Mary E. Roper Louisiana Appellate Project Baton Rouge, LA Attorney for Appellant Defendant - Kevin Lee Rieckmann, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 526918
Honorable Richard A. Swartz, Judge Warren Montgomery, D.A.
Kathryn Landry
Baton Rouge, LA
Attorneys for Appellee
State of Louisiana
Mary E. Roper
Louisiana Appellate Project
Baton Rouge, LA
Attorney for Appellant
Defendant - Kevin Lee Rieckmann, Jr.
BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The defendant, Kevin Lee Rieckmann, was charged by an amended bill of information with three counts of molestation of a juvenile (when the offender has control or supervision over the juvenile), violations of La. R.S. 14:81.2 (counts I, V, and VI); two counts of computer-aided solicitation of a minor, violations of La. R.S. 14:81.3 (counts II and VIII); one count of sexual battery, a violation of La. R.S. 14:43.1 (count III); and two counts of indecent behavior with a juvenile, violations of La. R.S. 14:81 (counts IV and VII). The defendant pled not guilty to each count. Following a jury trial, the defendant was found guilty as charged on all counts other than count III, where the responsive lesser verdict of attempted sexual battery, a violation of La. R.S. 14:27 and 14:43.1, was returned. The jury returned unanimous convictions for each count other than count VI, where a verdict of 11-1 was returned. Motions for new trial, arrest of judgment, and post-verdict judgment of acquittal were filed, but denied by the trial court.
As to counts I, V, and VI - molestation of a juvenile - the defendant was sentenced to imprisonment at hard labor for ten years, with the sentences to run concurrently. Regarding counts II and VIII, the defendant was sentenced to imprisonment for ten years at hard labor on each conviction of computer-aided solicitation of a minor, without the benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently to each other, and consecutively to the sentences imposed on the molestation of a juvenile convictions. Regarding his conviction of attempted sexual battery on count III, the defendant was sentenced to imprisonment at hard labor for five years, without the benefit of parole, probation, or suspension of sentence, to be served consecutively with the sentences imposed in connection with the molestation of a juvenile and computer-aided solicitation sentences. Lastly, regarding his convictions of indecent behavior with a juvenile - counts IV and VII - the defendant was sentenced to imprisonment at hard labor for seven years on each count, with the sentences to be served concurrently to each other, and concurrently to the attempted sexual battery sentence. He was given credit for time served for each sentence. The defendant filed a motion to reconsider sentence, which was denied. He now appeals with the following seven assignments of error:
1) The trial court erred in denying his motion to suppress;For the following reasons, we affirm the defendant's convictions and sentences.
2) The trial court erred in denying his motion to quash counts II & VIII of the bill of information;
3) The trial court erred in refusing to grant his motion in arrest of judgment;
4) Insufficient evidence presented at trial to support the convictions for computer-aided solicitation of a minor;
5) Insufficient evidence presented at trial to support the conviction for molestation of a juvenile;
6) Insufficient evidence presented at trial to support the conviction for indecent behavior with a juvenile on count IV; and
7) Excessive sentences.
STATEMENT OF FACTS
In the summer of 2012, five teenaged girls, C.S., B.B., A.L., D.F., and S.N., made various accusations of inappropriate behavior against the defendant, whom they met because their parents and he were members in a local motorcycle club. The defendant worked on an oil rig in Australia, and when he would return home, the defendant would often host parties at his house. It was during these parties, as well as during the defendant's conversations with the victims, that the events occurred, which gave rise to their accusations.
The victims are referenced herein only by their initials. See La. R.S. 46:1844(W).
C.S., who was fifteen years old at the time of the offenses, testified that she was molested by the defendant, who also convinced her to text nude pictures of herself to him. B.B., a sixteen-year-old at the time of the offense, testified she and the defendant chatted on Facebook, but that their conversations became inappropriate, culminating when the defendant messaged her regarding the size of his penis. A.L., a fifteen-year-old at the time of the offense, testified that on one instance, after babysitting the defendant's children, he molested her, as well as engaged in oral sex with her on a separate occasion. D.F., a sixteen-year-old at the time of the offense, testified that on two separate occasions, while laying down on the backseat of her mother's vehicle, the defendant entered the car and molested her, touching her breasts and vagina. Lastly, S.N., a fifteen-year-old at the time of the offense, testified that while chatting with the defendant on Facebook, he asked her if she wanted to watch pornographic material with him, and that while at a party at the defendant's house, he touched her breast on top of her clothing.
After each incident occurred, the victims did not immediately reveal what took place for fear of getting in trouble. However, in July 2012, C.S. eventually told B.B.'s mother, who then notified the Slidell Police Department. After C.S. first reported what happened to her, the other victims came forward as well.
SUFFICIENCY OF THE EVIDENCE
In his fourth, fifth, and sixth assignments of error, the defendant assigns error to the sufficiency of the evidence presented at trial regarding his computer-aided solicitation of a minor, molestation of a juvenile, and indecent behavior with a juvenile convictions. The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732 (quoting La. R.S. 15:438). In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, [in order to convict,]" every reasonable hypothesis of innocence is excluded. Id.
As noted above, the defendant was also convicted of attempted sexual battery, a violation of La. R.S. 14:27 and 14:43.1. However, on appeal, the defendant does not assign error to the sufficiency of the evidence presented at trial to support this conviction.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 730 So.2d at 487.
I. Computer-Aided Solicitation of a Minor
In his fourth assignment of error, the defendant contends that the evidence presented at trial was insufficient to support both convictions of computer-aided solicitation of a minor, "as the central element of solicitation was not present." The defendant asserts "[a] showing that [he] engaged in racy conversation[s] with teenaged girls via text messaging and Facebook did not satisfy all of the elements for computer aided solicitation of a juvenile. While the conversation[s] may have been inappropriately racy, it did not rise to the level of a solicitation for sexual conduct." Accordingly, the defendant asserts that "the convictions for computer aided solicitation of a juvenile should be set aside and convictions for indecent behavior with juveniles should be entered instead." The defendant does not contest his, or the victims' identities or ages, or that he engaged in "racy" conversations, but solely assigns error to the alleged lack of solicitation required to satisfy the requirements of statute.
Louisiana Revised Statute 14:81.3(A)(1) provides:
Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen.
Whether or not the juvenile consented to the participation in the activity is not a defense to the prosecution. See La. R.S. 14:81.3(C)(2). "Electronic textual communication" is defined as "textual communication made through the use of a computer on-line service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or on-line messaging service." La. R.S. 14:81.3(D)(3). Additionally, "sexual conduct" is defined as "actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd exhibition of the genitals, or any lewd or lascivious act." La. R.S. 14:81.3(D)(5). "[The Louisiana Supreme Court] has defined 'lewd and lascivious conduct' very broadly as any conduct that is 'lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner.'" State v. Jones, 2010-0762 (La. 9/7/11), 74 So.3d 197, 204.
The statute contemplates two scenarios in which a person can be found in violation of La. R.S. 14:81.3. The first such scenario, or prong, addresses the perpetrator's conduct that intends to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct. The second scenario envisions the perpetrator's communication with the intent to engage or participate in sexual conduct in the presence of the young victim. In both cases, it is the communication and intent, not the end-resulting contact that the statute is addressing. See State v. Whitmore, 46,120 (La. App. 2nd Cir. 3/2/11), 58 So.3d 583, 589, writ denied, 2011-0614 (La. 11/14/11), 75 So.3d 937, cert. denied, 132 S.Ct. 2434, 182 L.Ed.2d 1067 (2012).
Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as the statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Lavy, 2013-1025 (La. App. 1st Cir. 3/11/14), 142 So.3d 1000, 1005, writ denied, 2014-0644 (La. 10/31/14), 152 So.3d 150.
A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of computer-aided solicitation of a minor on each charge. The verdicts rendered in this case indicate the jury believed the testimony of C.S. and S.N. against the defendant, and rejected his attempts to discredit those witnesses. The trier of fact may accept, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied 97-1124 (La. 10/17/97), 701 So.2d 1331. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Lofton, 691 So.2d at 1368. The credibility of witnesses will not be reweighed on appeal. State v. James, 2002-2079 (La. App. 1st Cir. 5/9/03), 849 So.2d 574, 581.
Concerning S.N., testimony at trial revealed the following Facebook conversation took place between the defendant and S.N. on December 7, 2011:
S.N.: It's one of my cousins friends. Ive had a crush on him since I was 9
Defendant: oooooooooo ok not worried about him at all, I am sure he dont have what I do lmao jk
S.N.: Haha smarty pants (;
Defendant: how did you know I was talking about in my pants
S.N.: I didn't mean that !!!!
Also, on the same day, and while on Facebook, the defendant asked S.N. if she wished to watch pornographic material with him, and in their conversations, referred to himself as "the sexiest man [you] know." S.N. declined and did not take the defendant's comment as a joke.
Further, testimony at trial revealed that the defendant and C.S. also communicated through Facebook, and that he "would kind of get a little flirty with [her]." Once, in July 2012, the defendant convinced C.S. to send nude pictures of herself to him, with the defendant responding by sending to C.S. pictures of his face and genitalia. C.S. testified she was "really nervous about it," and that "he just talked me into it." In the defendant's text messaging with C.S., he told her, "[o]k then send me one and I promise u r 100% safe as long as u never tell[,]" and then promised her he would delete the conversation and pictures.
The verdict returned in this case indicates the jury rejected the defendant's hypothesis of innocence that, while the conversations he engaged in with C.S. and S.N. were "inappropriately racy," they "did not rise to the level of solicitation for sexual conduct." When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in the instant case.
Further, in reviewing the evidence, we cannot say that the jury was irrational to find that the defendant used electronic textual communications to knowingly communicate with S.N. and C.S. for the purpose of, or with the intent to, persuade, induce, or entice them into engaging in lustful, obscene, or indecent conduct with him. See State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Therefore, the defendant's fourth assignment of error lacks merit.
II. Molestation of a Juvenile
In his fifth assignment of error, the defendant contends that the evidence presented at trial was insufficient to convict him of any of the charges of molestation of a juvenile, since, as he claims, "the element of 'control or supervision' was not met." The defendant continues, asserting that "[t]he three counts of molestation involved claims made by [C.S., D.F., and A.L.] that [he] had touched them inappropriately. In none of the alleged instances was [he] in charge of, or supervising, the teenagers." Accordingly, he avers that his convictions for molestation of a juvenile should be set aside, and convictions for indecent behavior with a juvenile should be entered. Again, the defendant does not contest his, or the victims' identities or ages, or that he touched them, but solely assigns error to the alleged lack of "control or supervision" needed to satisfy the elements of the offense.
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. Lack of knowledge of the juvenile's age is not a defense. La. R.S. 14:81.2(A)(1). Lewd or lascivious behavior carries the same definition as previously stated above. See Jones, 74 So.3d at 204.
Thus, in order to commit molestation of a juvenile, the offender must possess the specific intent of arousing or gratifying the sexual desires of himself or the child upon whose person he committed a lewd or lascivious act or in whose presence he committed such an act. However, specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93-1361 (La. App. 1st Cir. 5/20/94), 637 So.2d 814, 817-18, writ denied, 94-1563 (La. 10/28/94), 644 So.2d 649, abrogated on other grounds, State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 & 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Lavy, 142 So.3d at 1005.
In his brief, the defendant argues that the State did not "put forward any evidence to show that [he] had any control or supervision over the teenaged girls who claimed to have been molested." He notes that "none of the teenaged girls accused [him] of using force, violence, duress, menace, psychological intimidation, or the threat of great bodily harm in order to commit a lewd or lascivious act upon them or in their presence. Accordingly, the only other circumstance left is 'the use of influence by virtue of a position of control or supervision over the juvenile.' There was no evidence of this type either...."
A thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of molestation of a juvenile concerning C.S., D.F., and A.L. The verdicts rendered in this case indicate the jury credited the testimony of the three victims against the defendant, and rejected his attempts to discredit those witnesses. The trier of fact may accept, in whole or in part, the testimony of any witness. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion. Lofton, 691 So.2d at 1368. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Lofton, 691 So.2d at 1368. As indicated earlier, the credibility of witnesses will not be reweighed on appeal. James, 849 So.2d at 581.
It was not irrational for the jury to find that the defendant used force to commit lewd or lascivious acts upon C.S. with the intent of arousing or gratifying his sexual desires. Testimony at trial revealed that the defendant touched her inappropriately on three separate occasions between December 2011 and July 2012. First, at a party at the defendant's house, the defendant had C.S. and B.B. in a "headlock" at the end of his driveway, when he placed his hand down C.S.'s shirt, touching her breast. C.S. testified that same evening, she "was going into the garage, and [the defendant] was coming out from the garage. And he - we met in his laundry room. And he kissed me. And he put my hand...on his private." Lastly, one night while watching a movie at the defendant's house, C.S. was seated next to the defendant on his couch, he placed his hand under her shorts, and touched her vagina. Next, the defendant reached down into her shirt, touched her breast, and kissed her. C.S. testified that she did not say anything to her parents, who were present during the third incident, as they were seated on a nearby couch, because she was afraid of her parents getting mad and questioning her. C.S. did not come forward until B.B. convinced her to do so.
It was also not irrational for the jury to find that the defendant used force to commit lewd or lascivious acts upon A.L. with the intent of arousing or gratifying his sexual desires. She testified that one night, after babysitting the defendant's children, he and his wife returned home. A.L. stated that the defendant made sure his wife and children were asleep, then he took her to his son's room. A.L. testified that the defendant laid her on a bed, "made [her] take off [her] clothes," and touched her breasts and vagina using his mouth and penis. A.L. testified that the defendant stopped when he heard movement in the house. On a separate occasion, during a party at the defendant's house, the two encountered each other in an empty room, and the defendant "pulled his clothes down and put his penis in my mouth..." Both of these occurrences occurred between September and November 2011. A.L. testified she did not immediately report the instances, and denied them to the defendant's wife, because she was afraid she would get in trouble.
Lastly, it was not irrational for the jury to find that the defendant used force and psychological intimidation to commit lewd or lascivious acts upon D.F. with the intent of arousing or gratifying his sexual desires. She testified that at a party at the defendant's house between December 2011 and January 2012, she began to feel bad, and went to lay down on the backseat of her mother's vehicle. She testified that the defendant opened the door, entered the vehicle, placed his hand under D.F.'s shirt, moved her bra, and touched her breast. After this event, the defendant told D.F. that if she ever told anyone what happened, her family would no longer be allowed over for any events, and that her younger brother would not be allowed to be friends with the defendant's son. D.F. testified that a few weeks later, at another party at the defendant's house, she again felt ill, and laid down in her mother's vehicle. The defendant again entered the vehicle, removed the gym shorts D.F. was wearing, moved her underwear, and touched her vagina.
In State v. Anderson, 2010-779 (La. App. 5th Cir. 3/27/12), 91 So.3d 1080, 1086 (sentences vacated on other grounds), the appellate court held that the defendant, who was alone with the victim at the time of the offenses, exercised "control or supervision" over the juvenile due to his "position of trust and authority" relative to her. Further, "[t]he defendant told [the juvenile] that if she revealed the nature of their relationship to anyone, he would have to go to jail and his daughter would be homeless." This same "position of trust and authority" is demonstrated between the defendant and A.L., who was afraid to speak to anyone concerning what occurred with the defendant. Further, as with D.F., the defendant made an overt threat of duress and psychological intimidation when he threatened that if she ever told anyone what happened, her family would not be welcome at the defendant's home. Additionally, with both D.F. and A.L., both victims were in isolated settings, with only the defendant and the juvenile present.
The verdict returned in this case indicates the jury rejected the defendant's hypothesis of innocence that he lacked the necessary "control or supervision" in order to satisfy all the elements of molestation of a juvenile for each victim. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. See Moten, 510 So.2d at 61. No such hypothesis exists in the instant case.
Again, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. Calloway, 1 So.3d at 418. Therefore, the defendant's fifth assignment of error lacks merit.
III. Indecent Behavior with a Juvenile
In his sixth assignment of error, the defendant avers that the evidence presented at trial was insufficient to convict him of indecent behavior with a juvenile, specifically relating to B.B. (count IV of the bill of information). The defendant argues that "the only alleged incidents involving BB were where [he] was accused of grabbing C.S.'s breast while he had both C.S. and B.B. in a headlock and where defendant sent her a picture of his genitalia, but told her that he had sent it to her in error." The defendant continues, asserting that "[i]n order for the elements of indecent behavior to be met, the State must show that [he] performed a 'lewd or lascivious act upon the person or in the presence of any child under the age of seventeen.'" He concludes, contending that "the conviction of indecent behavior against BB cannot stand, as BB had no awareness of any lewd or lascivious behavior taking place while she and CS were being held in a headlock by [the defendant]." As noted above, the defendant does not contest his or B.B.'s ages or identities.
Louisiana Revised Statutes 14:81 provides in pertinent part:
A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
* * *
(2) The transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender. It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.
Louisiana Revised Statutes 14:81(C) provides that "textual, visual, written, or oral communication" is defined as "any communication of any kind, whether electronic or otherwise, made through the use of the United States mail, any private carrier, personal courier, computer online services, Internet service, local bulletin board service, Internet chat room, electronic mail, online messaging service, or personal delivery or contact."
Since specific intent is a state of mind, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. See State v. Graham, 420 So.2d 1126, 1127 (La. 1982). Specifically, the requisite element of specific intent to arouse or gratify the sexual desires of either person may be inferred from the circumstances and the actions of the offender. State v. Domangue, 2012-760 (La. App. 5th Cir. 5/23/13), 119 So.3d 690, 696. Further, the testimony of the victim alone is sufficient to prove the elements of the offense. State v. Hampton, 97-2096 (La. App. 1st Cir. 6/29/98), 716 So.2d 417, 418. Again, as defined above, "lewd and lascivious conduct" has been defined as any act that is "lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner." Jones, 74 So.3d at 204.
The defendant is incorrect in his assertion that in order to satisfy the elements of indecent behavior with a juvenile, a lewd or lascivious act must be performed in B.B.'s presence, and that she must be aware of it. While B.B. did testify that the defendant never touched her inappropriately, testimony at trial revealed that in their Facebook conversations, which occurred between May 1, 2011, and March 17, 2012, the defendant would refer to B.B. as "sweetheart and baby," "darling," and tell her "u arent the little angel u act like i am sure of," and "...yes u are a sweetheart but I think a little devil inside...lol." Additionally, the defendant replied to one of B.B.'s comments by responding "ok gorgeous, just didn't want ya to hate me for flirting with ya." Further, the defendant told B.B. "...girl u always look amazing...now turn 18 and lets run off to paris or something lmao." B.B. testified that, "there was one [instance] where he was saying how big his [penis] was. And it was supposed to be for his wife, but he sent it to me." Lastly, during one Facebook conversation, the defendant and B.B. were discussing a camping trip that had to be canceled due to inclement weather, when the defendant commented, "[t]hen again promise to wear a white tee shirt with no bra and we will go lmao."
The jury chose to believe B.B.'s testimony and found her to be credible. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. Additionally, in reviewing the evidence, we cannot say the jury was irrational to find that the defendant transmitted textual communication to B.B. depicting lewd or lascivious conduct or text. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. Calloway, 1 So.3d at 418.
Therefore, after carefully reviewing the record in this case, we find that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that the defendant committed the crime of indecent behavior with a juvenile. This assignment of error lacks merit.
DENIAL OF MOTION TO SUPPRESS
In his first assignment of error, the defendant avers that "[t]he trial court erred in denying [his] motion to suppress where the police admitted to making intimidating and coercive statements, as well as ignor[ed] [his] expressed desire for the assistance of counsel." Specifically, he argues the interrogating officers used tactics, which were "impermissibly coercive and in violation of his constitutional rights to remain silent under the 5th Amendment and to the assistance of counsel under the 6th Amendment." The defendant concludes that "[his] interrogation should have stopped as soon as he asserted that he thought that he needed an attorney. Accordingly, any statements after this assertion should have been suppressed..."
When a court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of the court's discretion; that is, unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.
It is well-settled law that the ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), protects an individual's Fifth Amendment privilege during incommunicado interrogation in a police-controlled atmosphere. In Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, the Supreme Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Thus, before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La. Code Crim. P. art. 703(D); La. R.S. 15:451. Hunt, 25 So.3d at 754. See State v. Patterson, 572 So.2d 1144, 1150 (La. App. 1st Cir. 1990), writ denied, 577 So.2d 11 (La. 1991). Whether or not a showing of voluntariness has been made is analyzed on a case-by-case basis with regard to the facts and circumstances of each case. The trial court must consider the totality of the circumstances in deciding whether a confession is admissible. State v. Williams, 2001-0944 (La. App. 1st Cir. 12/28/01), 804 So.2d 932, 944, writ denied, 2002-0399 (La. 2/14/03), 836 So.2d 135. Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 2004-1718 (La. App. 1st Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544.
Where the defendant alleges police misconduct in reference to the statement, the State must specifically rebut these allegations. State v. Montejo, 2006-1807 (La. 5/11/10), 40 So.3d 952, 966, cert. denied, 562 U.S. 1082, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010). Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. See Patterson, 572 So.2d at 1150. In determining whether the ruling on defendant's motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).
The first interview of the defendant occurred between the defendant and Slidell Police Detective Brian Brown at a private room at the New Orleans airport. Detective Brown testified that he was present when Investigator Farris read the defendant his Miranda rights, and that neither officer forced, coerced, or threatened the defendant in providing a statement. In this interview, the defendant admitted to sending pictures of his penis to C.S., as well as having "sexual" conversations with C.S. and B.B. A few days later, the defendant was interviewed a second time by Detective Brown, along with Slidell Police Detective Chadwick. During this interview, the defendant was again read his Miranda rights, and he was not threatened, forced, coerced, or promised anything by the officers in exchange for providing a statement. During these two interviews, the defendant never asked to speak with an attorney.
In the third interview with the defendant, St. Tammany Parish Sheriff's Detective Carli Farrell advised the defendant of his Miranda rights, and obtained a waiver form signed by the defendant acknowledging his understanding and waiver of the rights. In her interview with the defendant, Detective Farrell testified she did not threaten or coerce the defendant, nor promise him anything in exchange for providing a statement. In this interview, despite the defendant's assertions, Detective Farrell did not tell the defendant that he would be charged with rape if he did not talk and was not told that he would never see his children again. Further, Detective Farrell testified that once the defendant knew he wanted an attorney, the interview stopped.
After taking the matter under advisement, the trial court denied the motion to suppress, stating:
The Court has viewed and/or listened to the taped statements. Considering the testimony and the law, the
Court finds [the defendant] was advised of [his] Miranda warnings prior to his making each of the three statements and freely and voluntarily agreed to speak to the investigating officers in each instant.
He was not coerced in any manner, nor was he made any promises to induce him to make the statements. The statements made by detectives during the third interview conducted by Detectives Farrell and Davis were not impermissible. And while designed to get [the defendant] to speak to them, those statements did not violate his constitutional rights nor any law.
[The defendant] had the opportunity and the right to decline to speak to the officers but chose to talk in all three interviews. He never indicated he wished to exercise his right to counsel and decline to make any further statements.
We find the trial court was correct in denying the defendant's pre-trial motion to suppress. The defendant had the opportunity and right to decline to speak to the officers, but chose to talk in all three interviews and did not indicate he wished to exercise his right to counsel and decline to make further statements. The fact that a defendant continues to speak to police reflects an intent to continue the exchange, thus giving effect to the "fundamental purpose of Miranda," which was to "assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process." State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 31, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). This assignment of error lacks merit.
FAILURE TO IDENTIFY VICTIMS IN BILL OF INFORMATION
In his brief, the defendant combines his second and third assignments of error, whereby he asserts the trial court erred in denying his pre-trial motion to quash, and post-trial motion in arrest of judgment, due to the State's failure to identify a victim in the bill of information regarding his charges of computer-aided solicitation of a minor (counts II and VIII). The defendant claims that "[m]erely stating that the alleged crime was committed against 'a person who has not yet attained the age of seventeen' does not inform the accused of the true name of the alleged victim." The defendant further asserts that he "was entitled to be informed of all the elements of the crime intended to be charged in sufficient particularity to enable him to prepare for trial. Having access to 'open file' discovery is not an exception to this requirement, contrary to the position of the trial court in this case." As such, the defendant contends that counts II and VIII of the bill of information were fatally defective and should have been quashed prior to trial.
Article I, § 13 of the Louisiana Constitution provides that, "[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him." Our legislature has endeavored to protect that right in part through the enactment of Title XIII of our Code of Criminal Procedure governing indictment and information. This Title guarantees that prosecution will be instituted by "plain, concise, and definite written statement of the essential facts constituting the offense charged." La. C.Cr.P. art. 464; State v. Jackson, 2004-2863 (La. 11/29/05), 916 So.2d 1015, 1020. Article 464 continues, stating "[e]rror in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice." Further, La. C.Cr.P. art. 473 provides:
When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known. If the name, appellation, or nickname of the victim is not known, it is sufficient to so state and to describe him as far as possible. In stating any name of a victim it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.
Louisiana Code of Criminal Procedure article 532(2) provides a ground for a motion to quash if the indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII of the Code of Criminal Procedure. Further, La. C.Cr.P. art. 859(1) provides that a court shall arrest judgment if the indictment is substantially defective, in that an essential averment is omitted. In general, an appellate court reviews a trial court's rulings under a deferential standard with regard to factual and other trial determinations, but the legal findings of a trial court are subject to a de novo standard of review. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. State v. Thomas, 2012-0470 (La. App. 1st Cir. 11/14/12), 111 So.3d 386, 389.
Though this issue has not arisen with this Court, we find the decisions of our sister circuits instructive. In State v. Alfaro, 2013-0039 (La. App. 5th Cir. 10/30/13), 128 So.3d 515, 531-32, writ denied, 2013-2793 (La. 5/16/14), 139 So.3d 1024, the defendant, who was charged and convicted of aggravated rape and molestation of a juvenile, argued on appeal that the indictment was invalid because it did not include the victim's name, establish that the defendant was over the age of seventeen at the time of the offenses, or that he was more than two years older than the victim at the time of the offenses. The appellate court held that, "[d]espite the non-compliance with [Article 473], this error was harmless since defendant was not prejudiced by surprise or lack of notice where the State provided ample discovery to the defense, including police reports and the victim's medical records." Also, in State v. Evans, 2003-0752 (La. App. 5th Cir. 12/9/03), 864 So.2d 682, 697, writ denied, 2004-0080 (La. 5/7/04), 872 So.2d 1079, the indictment charging the defendant with two counts of aggravated rape, one count of attempted aggravated rape, and one count of armed robbery failed to identify any of the victims, and thus, did not comply with Article 473. However, the appellate court held that "the defendant was not prejudiced by surprise or lack of notice because the State had provided a copy of its entire file to them, so the failure of the indictment to state the victims' names is harmless."
Herein, on each charge of computer-aided solicitation of a minor, the bill of information simply provides, in pertinent part, that the defendant "did knowingly contact or communicate, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen or a person reasonably believed to have not yet attained the age of seventeen." As with Alfaro and Evans, despite the non-compliance with Article 473, this error was harmless since the defendant was not prejudiced by surprise or lack of notice where the defense informed the trial court that its Motion for Discovery and Inspection was satisfied, the State informed the trial court that "open-file discovery [had] been tendered and [was] ongoing," and the trial court ruled that the defendant's Motion for Bill of Particulars was satisfied without any subsequent objection. Moreover, concerning C.S., when the defendant was initially stopped by the police officers at the New Orleans airport, prior to the filing of any bill of information, the defendant admitted to taking, sending, and receiving nude pictures of himself and C.S., and, therefore, he could not have been prejudiced or surprised by any defect in the bill of information in regard to the failure to identify her as the victim. We find that any error concerning Article 473 is harmless, and the trial court did not abuse its discretion in denying the defendant's pre-trial motion to quash and post-trial motion in arrest of judgment. As such, these assignments of error lack merit.
EXCESSIVE SENTENCES
In his seventh assignment of error, the defendant asserts that the sentences he received are unconstitutionally excessive. Specifically, he contends that he "was sentenced to the maximum sentence on most of his eight convictions, although he was a first time offender and was not the worst type of offender, considering the totality of the circumstances." Furthermore, the defendant avers that he "did not have a criminal history. He had two children and had been engaged in steady employment in the oil industry, taking financial care of his family." The defendant continues by stating that the trial court did not order a pre-sentence investigation ("PSI") report, and "did not discuss the aforementioned areas of [his] personal history, except to the extent that [the trial court] noted that he had served in the military, nor did [the trial court] make any inquiries of the defendant in this regard prior to sentencing." Ultimately, the defendant concludes by arguing it was an abuse of discretion for "the trial court to punish [him] so severely considering the facts and circumstances of this case."
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. 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, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Louisiana Code of Criminal Procedure Article 894.1 sets forth criteria which must be considered by the trial court before imposing a sentence. While the trial court need not recite the entire checklist of Article 894.1, the record must reflect that it adequately considered the factors. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569. However, the goal of Article 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). On appellate review of a sentence, the relevant question is "whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate." State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam). Additionally, this Court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113.
Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than ten years, or both. See La. R.S. 14:81.2(B)(1). Concerning computer-aided solicitation of a minor, "[w]hoever violates the provisions of this Section when the victim is thirteen years of age or more but has not attained the age of seventeen shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than five years nor more than ten years, without benefit of parole, probation, or suspension of sentence." La. R.S. 14:81.3(B)(1)(a). Attempted sexual battery, pursuant to La. R.S. 14:27 and 14:43.1(C)(1), provides a maximum sentence of up to five years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Lastly, La. R.S. 14:81(H)(1) provides, in pertinent part, that "[w]hoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both..."
The verdict forms submitted to the jury in connection with counts I, V and VI did not provide an option for finding that the defendant had control or supervision over the juveniles. Accordingly, despite the bill of information which charged the defendant with the enhanced provision of molestation of a juvenile while in control or supervision, the trial court sentenced the defendant under La. R.S. 14:81.2(B)(1) rather than La. R.S. 14:81.2(B)(2). See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000) ("any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.").
At the sentencing hearing, the trial court stated:
The defendant is now being sentenced in accordance with the guidelines under Louisiana Code of Criminal Procedure Article 894.1. Some of the factors included in those guidelines are the following: The defendant shall be sentenced to imprisonment if there is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime, the defendant is in need of correctional treatment or a custodial environment that will be provided most effectually by his commitment to an institution, a lesser sentence would deprecate the seriousness of the defendant's crime. This Court finds that all three of those factors apply to this particular case.
Other things that the Court should consider that are not controlling but are factors to consider in imposing a sentence, in this case, the victims of [the defendant's] offenses were vulnerable young women. [The defendant] did use his position as a family friend to facilitate the commission of his crimes. He has created a significant mental injury to at least one of his victims if not all of his victims. And these offenses involve multiple victims and crimes.
Mitigating circumstances that the Court should consider is the fact that [the defendant] has served in the military and had no prior criminal record.
As noted above, on each count of molestation of a juvenile, the defendant was sentenced to ten years at hard labor, with the sentences to run concurrently. For each count of computer-aided solicitation of a minor, the defendant was sentenced to ten years at hard labor, without the benefit of parole, probation, or suspension of sentence, with each sentence to run concurrently to each other, and consecutively with the sentences imposed for molestation of a juvenile. Regarding his attempted sexual battery conviction, he was sentenced to five years at hard labor, without the benefit of parole, probation, or suspension of sentence, to run consecutively with the sentences imposed in connection with the molestation of a juvenile and computer-aided solicitation sentences. Lastly, the defendant was sentenced to seven years at hard labor for each indecent behavior with a juvenile conviction, with these sentences to run concurrently to each other, and concurrently to the attempted sexual battery sentence. He was given credit for time served for each sentence.
Although the defendant first concedes that "a PSI is not required to be ordered by the trial court prior to sentencing...[,]" he later contends that "[a]bsent a PSI [report] or any identifiable basis for the sentencing court's observations, the reviewing court lacks the appropriate criteria by which to measure whether the sentence[s] imposed [were] excessive." However, the defendant did not assert in his motion to reconsider sentence that the trial court erred by failing to order a PSI report. Pursuant to Article 881.1(E) of the La. C.Cr.P., the defendant's failure to include this specific ground in his motion to reconsider sentence precludes him from urging it for the first time on appeal. Moreover, assuming the defendant did properly raise the issue below, ordering a pre-sentence investigation report is discretionary with the trial court; there is no mandate that a PSI be ordered. See La. C.Cr.P. art. 875(A)(1) ("the court may order..." (emphasis added.) Such an investigation is an aid to the court and not a right of the accused. The trial court's failure to order a PSI will not be reversed absent an abuse of discretion. State v. Wimberly, 618 So.2d 908, 914 (La. App. 1st Cir.), writ denied, 624 So.2d 1229 (La. 1993).
La. Code Crim. P. art. 881.1(E) provides that "[f]ailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." --------
Furthermore, a thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. See La. C.Cr.P. art. 894.1(A)(1), (A)(2), (A)(3), (B)(2), (B)(4), (B)(9), (B)(11) & (B)(28). Further, the sentences imposed were not grossly disproportionate to the severity of the defendant's offenses and, thus, were not unconstitutionally excessive. Additionally, maximum sentences were warranted in this matter. The defendant exploited his position as a family friend to repeatedly victimize numerous young girls and used fear and psychological intimidation to keep his offenses hidden. See State v. Parker, 2012-1550 (La. App. 1st Cir. 4/26/13), 116 So.3d 744, 754, writ denied, 2013-1200 (La. 11/22/13), 126 So.3d 478. Therefore, this assignment of error is without merit.
For the foregoing reasons, the defendant's convictions and sentences are affirmed
CONVICTIONS AND SENTENCES AFFIRMED.