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Further, the trial court erred when it denied Defendant's Motion For Arrest of Judgment which was based, in part, on this issue.5. The standard of review for the 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 have found the essential elements of the crime proven beyond a reasonable doubt.
The Defendant was tried by a jury composed of twelve jurors on Counts Two through Six, contrary to the statutory requirement that the jury consist of six jurors. For the following reasons, we find there is no merit to assignments of error numbers one through five.
Further, the trial court erred when it denied Defendant's Motion For Arrest of Judgment which was based, in part, on this issue.4.
She stated she was never aware of any problems between Defendant and her daughter until July 2011, when a relative of Defendant came to her and asked if the victim had had any problems with Defendant. Although the victim stated she had told a friend about what was occurring when she was fifteen years old, she never told her mother or her father, whom she saw every other weekend, about Defendant's behavior. However, in denying Defendant's motion for new trial, which argued this same issue, the trial court stated: Mr. 11/10/99), 750 So.2d 1036, writs denied, 99–3477, 00–150 (La.6/30/00), 765 So.2d 1062, 1066. He further asserts that the trial court erred when it denied his “Motion for Arrest of Judgment” based on this allegation of error. The indictment must contain all the elements of the crime intended to be charged in sufficient particularity to allow the defendant to prepare for trial, to enable the court to determine the propriety of the evidence that is submitted upon the trial, to impose the appropriate penalty on a guilty verdict, and to protect the defendant from double jeopardy. However, Defendant does not assert that he was unable to prepare for trial because of the alleged defect or show that he was prejudiced by the said defect. The trial court was also cognizant of the fact that the defendant was married for several years, had medical problems, and took care of his ailing mother and her husband. The second circuit noted that over the ten years that the defendant abused the victim, the acts of abuse escalated from touching when the victim was five or six to anal intercourse when she was fifteen. .1(D)(1)'s sentencing range of 5 to 20 years with or without hard labor with a fine not to exceed $50,000. As discussed, supra, the trial court thoroughly detailed the aggravating and mitigating factors it considered when deciding on Defendant's sentence. It determined that the acts performed in Count One and the acts performed in Counts Two and Three were distinguishable and not an ongoing crime.
later and was told that nothing sexual had occurred. Wileman was called to speak with the police regarding the first victim, S. told her mother that “things” had happened between her and her step-father. Wileman said that by this time, Defendant had already moved out of the house. She testified it continued until junior high school; “[S]ometimes multiple times a week.” She stated that when he was in bed with her, she was aware of his erect penis. The State could have questioned the victim with more specificity regarding the alleged events of sexual abuse. Defendant has failed to explain how the jury was tainted by the allegation of count one when considering the remaining counts. ASSIGNMENT OF ERROR NUMBER FOURDefendant alleges that counts two through six of the indictment failed to charge the crime of aggravated incest in that it did not include an essential element of the crime; therefore, the indictment was defective. A defendant ordinarily cannot complain of the insufficiency of an indictment after verdict “unless it is so defective that it does not set forth an identifiable offense against the laws of this state, and inform the defendant of the statutory basis of the offense.” State v. While it is a little unclear what essential element was missing from the indictment, which is set out in verbatim in assignment of error number one above, Defendant is asserting that “to whom he is related” was not sufficient because the statute limited the scope to certain relationships, and the indictment did not specifically state that the victim was his “stepdaughter”; therefore, the indictment was defective. ASSIGNMENT OF ERROR NUMBER FIVEFor his fifth assignment of error, Defendant argues that it was error for him to have been tried by a jury of twelve on counts two through six when, pursuant to La. This court affirmed the convictions but vacated the sentences as the sentences were indeterminate as imposed. It noted that the victims' were vulnerable due to their ages and that they experienced significant emotional distress and psychological scarring. It recognized that the defendant had no prior criminal record and that he would likely respond to probationary treatment. After looking at whether the forty-five year sentence was excessive and determining it was not, the second circuit looked to whether it was error for the trial court to impose consecutive sentencing in the case. 883.․During the resentencing hearing, the trial court specifically noted that particular justification was required for imposing consecutive sentences for crimes arising out of a single course of conduct.
Finally, in Louisiana, double jeopardy fails to protect an offender who violates numerous statutory provisions on a crime spree. Every time Defendant completed the act of touching the victim's vagina or breast, either on the couch or in her bed, over or under her clothes, it was a separate and distinct act, whether it was sexual battery, indecent behavior with a juvenile, or molestation of a juvenile. Whereas, the current case was tried by a jury, the trial court was not in error when it denied Defendant's motion for a directed verdict made at the close of the State's case. At that time, the offense of aggravated incest of a victim under the age of thirteen provided for a range of punishment of “imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. And obviously, the only thing I can say is in exchange for your own sexual gratification. Apparently, it has affected her in a psychological fashion as well. The sentences were ordered to be served consecutively for a total of ten years imprisonment. This court noted the leniency of the sentences, particularly since they were ordered to be served concurrently, and did not find them excessive. However, noting that he was a third felony offender and that one of the prior felonies was a sexual offense that involved anal intercourse with his ten-year-old stepson, the second circuit did not find the maximum sentence excessive in this case, particularly since he committed the instant offense while he was on probation for the prior sexual offense. She specifically stated that he never threatened her and that when she decided it was enough, he stopped. After the parties separated in April of 2003, the victim lived with her mother for approximately four months then moved in with defendant.
10/25/12), 103 So.3d 1129, 1137, writ denied, 12–2533 (La.4/26/13), 112 So.3d 838. 778 (emphasis added), a motion for acquittal, which provides in part: In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of the defendant, after the close of the state's evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. However, as noted by Defendant, count one of the indictment alleged the offense occurred in 2011. Louisiana Code of Criminal Procedure Article 493.2 provides: Notwithstanding the provisions of Article 493, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. And this pattern of sexual abuse, obviously, violated this young lady's trust in you and took away her childhood. He was sentenced to two, ten-year terms of imprisonment on the aggravated incest convictions, with six years suspended, and five years on the attempted aggravated incest conviction, with three years suspended. He received fifteen years imprisonment on one count of aggravated incest. The first victim was his nine-year-old daughter and was a one-time occurrence wherein he fondled her breast and vagina. She testified that starting when she was nine years old, he repeatedly fondled her, inserting his finger in her vagina, exposed himself to her, made her masturbate him, and attempted to penetrate her with his penis. The defendant appealed the maximum sentence of twenty years for aggravated incest and then years for molestation of a juvenile as excessive. She did not testify that he made her watch pornographic movies or watch him masturbate. However, an order directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record, and the trial court shall state the factors considered and its reasons for the consecutive terms. According to the victim, her mother and defendant began dating when she was eight years old and married when she was eleven.
The state presented insufficient evidence at trial to support the verdicts of guilty returned by the jury on Counts Two, Three, Four, Five and Six. Finally, the State must prove that the defendant has engaged in one of the prohibited acts with the victim.
Further, the trial court erred when it denied Defendant's Motion For New Trial which was based, in part, on this issue.2.
Defendant raised this argument in his “Motion for New Trial,” which was denied by the trial court.
A conviction based on insufficient evidence cannot stand as it violates Due Process.
Dmitrc Ian Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant, Walter Urena. Defendant timely filed a motion to reconsider sentence. First, the State must show that the victim was under eighteen years of age.