State v. Chester

383 So.3d 240

2023-0597 (La.App. 1 Cir. 1/11/24)

STATE of Louisiana

v.Malcolm J. CHESTER

DOCKET NUMBER 2023 KA 0597

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: January 11, 2024

ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT, DIVISION B, IN AND FOR THE PARISH OF TANGIPAHOA, STATE OF LOUISIANA, DOCKET NUMBER 2000109, HONORABLE CHARLOTTE HUGHES FOSTER, JUDGE PRESIDING

Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana and Summer Duhe Vicknair, Hammond, Louisiana, Attorneys for Defendant-Appellant Malcolm J. Chester

Scott M. Perrilloux, District Attorney, Kaitlyn McMorris, Taylor Anthony, Assistant District Attorneys, Amite, Louisiana and Jeanne Rougeau, Assistant District Attorney, Livingston, Louisiana, Attorneys for Appellee State of Louisiana

BEFORE: THERIOT, PENZATO, AND GREENE, JJ

GREENE, J.

₂The defendant, Malcolm Chester, was charged by bill of information with one count of aggravated crime against nature of a victim under the age of eighteen, a violation of La. R.S. 14:89.1(A)(2). He pled not guilty and, following a jury trial, was found guilty of aggravated crime against nature of a victim under the age of thirteen, a violation of La. R.S. 14:89.1(C)(2). The trial court denied the defendant’s mo- tions in arrest of judgment and for new trial, and sentenced him to ninety-nine years imprisonment at hard labor, with twenty-five years to be served without benefit of probation, parole, or suspension of sentence. The defendant subsequently filed a motion to reconsider sentence, which was likewise denied by the trial court.

The defendant now appeals, assigning as error the trial court’s denial of his motion in arrest of judgment, the jury’s nonresponsive verdict, and the trial court’s imposition of an illegal sentence. For the following reasons, we reverse the conviction, vacate the sentence, and remand to the district court for a new trial.

STATEMENT OF FACTS

In October of 2019, twelve-year-old A.C.¹ lived with her paternal grandparents and her siblings in Ponchatoula, Louisiana. Upon returning home from school one day, A.C. saw her father, the defendant, outside working on his vehicle. A.C. asked if she could go to her brothers’ football game, to which the defendant replied no. The defendant then forced her into a trailer located on the property, threw her onto a bed, and inserted his penis into her vagina.

When A.C. returned to school on October 15, 2019, she reported to a teacher and a counselor that she was "molested." After A.C. repeated the allegations against the defendant in a forensic interview, Lieutenant Beth Russell with the Tangipahoa Parish Sheriff’s Office obtained and executed a search warrant of the house and trailer, as well as an arrest warrant for the defendant. In the trailer, officers seized bedding, which was analyzed and determined to contain the DNA of A.C. and the defendant.

At trial, the defendant denied raping A.C.

₃DEFICIENT BILL OF INFORMATION

In his first assignment of error, the defendant argues that the trial court erred in denying his motion in arrest of judgment because the bill of information was deficient. Specifically, he contends that the bill of information failed to allege that the victim was under the age of thirteen years, and, therefore, he was not fairly informed of the charge for which he was ultimately convicted and which carried a heavier sentence.

[1] A defendant has a constitutional right to be advised, in a criminal prosecution, of the nature and cause of the accusations against him. La. Const. art. I, § 13. The indictment or bill of information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. See La. Code Crim. P. art. 464; see also State v. Templet, 2005-2623 (La. App. 1st Cir. 8/16/06), 943 So.2d 412, 420, writ denied, 2006-2203 (La. 4/20/07), 954 So.2d 158. The bill of information 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. State v. Templet, 943 So.2d at 420.

[2–4] The time for testing the sufficiency of a bill of information is before trial by way of a motion to quash or an application for a bill of particulars.² State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d 810, 869, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). A defendant may not complain of technical insufficiency in an indictment for the first time after conviction, when the indictment fairly informed the accused of the charge against him and the defendant is not prejudiced by the defect. State v. C.L.J., 2011-0972 (La. App. 1st Cir. 12/29/11), 2011 WL 6916529, *5 (unpublished), writ denied, 2012-0677 (La. 9/14/12), 98 So.3d 821. Further, a defendant ordinarily cannot complain of the insufficiency of an indictment "unless it is so defective ₄that 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." C.L.J., 2011 WL 6916529 at *5.

Pursuant to La. Code Crim. P. art. 859(1), the court shall arrest the judgment when "[t]he indictment is substantially defective, in that an essential averment is omitted[.]" A motion in arrest of judgment must be filed and disposed of before sentence. La. Code Crim. P. art. 861.

The bill of information in the present case alleged that on or about September 1, 2019, to October 15, 2019, the defendant committed an aggravated crime against nature, a violation of La. R.S. 14:89.1(A)(2), upon the victim, A.C., who was under the age of eighteen and related to the defendant. Whoever commits this offense shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both. La. R.S. 14:89.1(C)(1).

However, the jury found the defendant guilty of La. R.S. 14:89.1(C)(2), which reads, in pertinent part: "Whoever commits the crime of aggravated crime against nature as defined by Paragraph (A)(2) of this Section with a victim under the age of thirteen years … shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years."

Herein, the bill of information did not allege A.C.’s date of birth, nor did it allege that she was under the age of thirteen years at the time of the offense. Moreover, the bill of information did not allege that the defendant violated La. R.S. 14:89.1(C)(2). The record is devoid of any indication that the indictment was ever amended to add A.C.’s age or date of birth or amended to charge the defendant under La. R.S. 14:89.1(C)(2).

During jury selection, the State described the charge against the defendant as aggravated crime against nature with a person under the age of eighteen.³ The bill of information, which was read aloud to the jury at the beginning of trial, alleged that the ₅defendant committed aggravated crime against nature against a victim under the age of eighteen.

Throughout the trial, there was very little evidence introduced to establish A.C.’s age at the time of the alleged incident. A.C. did not testify as to her date of birth or her age at the time of the offense, nor did the State introduce A.C.’s birth certificate.⁴ However, A.C.’s forensic interview was played for the jury, wherein she stated that she was twelve years old at the time of the interview. A.C. also testified that she was fifteen years old at the time of trial. Finally, during the direct examination of Laura Anderson, the guidance counselor to whom A.C. confided, the State asked if she was "a counselor for a young girl who was twelve at the time[,]" to which Ms. Anderson replied in the affirmative.

After the State rested, the trial court held a bench conference to discuss the proposed jury charges and noted that the bill of information alleged "under the age of eighteen[,]" while the testimony had been "under the age of thirteen." The State argued that "under the age of thirteen" was merely a sentencing provision which could be found by the judge, were the defendant convicted on the billed offense.⁵ After a recess, the trial court decided to instruct the jury that the defendant was charged with aggravated crime against nature when the victim is under the age of thirteen. The trial court further instructed the jury that aggravated crime against nature where the victim is under the age of eighteen was responsive to said charged offense. Defense counsel lodged several objections, noting that "under thirteen" was an essential element of the offense which was not alleged in the bill of information.

₆After the jury returned a verdict of guilty of aggravated crime against nature when the victim is under the age of thirteen, the defendant filed a motion in arrest of judgment in which he re-urged that the bill of information was deficient for failing to allege the victim’s age. The trial court denied the motion and stated that A.C. is the defendant’s daughter, "[s]o if anyone’s going to know [her] age, he should know [her] age."

On appeal, the State contends the bill of information was not defective, the defendant was fairly informed of the charge against him, and "[t]he age of the victim only became an issue for sentencing." The State further suggests that a brief reference to the enhanced sentence during a pre-trial hearing on the first day of trial fairly informed the defendant of the charge against him.⁶ We disagree.

[5] After a thorough review of the record, we conclude the trial court erred in denying the defendant’s motion in arrest of judgment. Pursuant to La. Code Crim. P. art. 859(1), the court shall arrest the judgment when "[t]he indictment is substantially defective, in that an essential averment is...