State v. Wilson

317 So.3d 923

STATE of Louisiana, Appellee

v.Ephraim WILSON, Appellant

No. 53,913-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 26, 2021

LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, EDWIN L. BLEWER, III, Shreveport, SAMUEL SCOTT CRICHTON, Assistant District Attorneys, Counsel for Appellee

Before GARRETT, STEPHENS, and THOMPSON, JJ.

GARRETT, J.

The defendant, Ephraim Wilson, was convicted by unanimous jury verdicts of one count of molestation of a juvenile under the age of 13 and one count of pornography involving juveniles under the age of 13. He was sentenced to serve 38 years at hard labor for the molestation conviction and 15 years at hard labor for the pornography conviction. Both sentences were ordered to be served without benefit of parole, probation, or suspension of sentence and the sentences were to be served consecutively. The defendant appealed his sentences as excessive and argued that they should have been imposed concurrently rather than consecutively. He claimed that the trial court violated his due process rights by not allowing him to speak at the sentencing hearing and the trial court failed to rule on his motion to reconsider sentence. For the following reasons, we affirm the convictions and sentences.

FACTS

Wilson was 42 years old at the time of these offenses and had lived in California for 23 years. He worked at an airport and did volunteer work with a church youth group. His mother and other family members lived in Shreveport. SW, the victim of these offenses, was adopted as an infant by Wilson's biological mother. SW was 12 years old at the time these offenses occurred.¹

In October 2016, Wilson flew to Shreveport to see his mother. He had not visited her in many years. Wilson stayed at a motel near the airport. On October 25, 2016, Wilson took SW to a movie at approximately 4 p.m. The family planned to meet at a restaurant for dinner at 6:30 p.m. According to SW, they sat in the back of the theater on the top row, away from people. SW said that Wilson put his hand up her skirt and touched her private parts. When she tried to leave, Wilson pushed her back into her seat. SW said they only stayed in the movie for 30 minutes. They left the theater and SW thought Wilson was taking her home. Instead, he took her to his motel room. SW said that when they arrived at the motel, Wilson removed his clothes and made her take off her clothes. He inserted his penis in her vagina, performed oral sex on her, and forced her to perform oral sex on him. She said at one point, Wilson hit her in the face and he pushed her head down to force her to have oral sex with him. SW reported that, during the course of the offenses, Wilson ejaculated twice. He used his cellphone to take nude photos of SW, including her genitals. Wilson told her he was doing her a favor and not to tell anyone. At the time of the offenses, SW was five feet tall and weighed 98 pounds. She described Wilson as much bigger than her and "heavy set." She denied ever telling Wilson that she was interested in sex.

Wilson received a phone call from family members wondering why they were late for dinner. Wilson and SW left the motel and met the family at a restaurant. When SW got home that night, she told her mother what Wilson had done to her. According to SW, her mother was upset, but did not call the police immediately. Her mother secured her panties in a plastic bag. When SW got to school the next day, she told a counselor about Wilson molesting her the day before. Police were called to the school.

That morning, SW's mother also called the police and reported the offenses. A police officer was sent to her residence. The mother gave the police the clothing that SW was wearing the day before.

SW was taken to a hospital where a sexual assault nurse examiner ("SANE") examined her and collected evidence in a personal evidence recovery kit ("PERK"). The nurse observed a thick white substance on the child's genitalia and a tear near the vagina, which was still bleeding. Some portions of the examination could not be completed because SW was in pain. Subsequent DNA laboratory analysis showed that the Y profile obtained from the underwear and shorts that SW wore to the movies was consistent with the Y profile obtained from Wilson. Several days later, SW was taken to Gingerbread House, a children's advocacy center, where a video-recorded forensic interview was conducted and she detailed the offenses that Wilson committed against her.

Wilson was scheduled to fly back to California the afternoon of October 26, 2016, the day the offenses were reported and the day after they were committed. Officers from the Shreveport Police Department apprehended him at the airport. Wilson was informed of his Miranda rights. He waived those rights and gave a recorded statement to the police. He also consented to giving a DNA sample. A search warrant was obtained for his cellphone, but Wilson gave the police the password to the phone.

Wilson told police that SW was his adopted sister, but he was unsure of her name. He only knew her family nicknames. He acknowledged taking her to the movies the day before. At first, he denied any sexual contact with SW. He later admitted having sex with her, but said it was consensual. He claimed that SW "came onto" him. He admitted taking the child to his motel room and having oral sex with her "for a couple of seconds." Wilson provided the police with the password for his cellphone and nude photographs of SW, including her genitals, were found on the phone. Wilson said, "My purpose was to show her how to get herself off."

Wilson was arrested and was initially charged by grand jury indictment with one count each of first degree rape of a victim under the age of 13, sexual battery of a victim under the age of 13, indecent behavior with juveniles under the age of 13, and pornography involving juveniles under the age of 13.

On January 22, 2020, an amended indictment was filed changing the charges to one count of molestation of a juvenile under the age of 13, a violation of La. R.S. 14:81.2, and one count of pornography involving juveniles under the age of 13, a violation of La. R.S. 14:81.1. Wilson was tried before a 12-person jury over a four-day period in January 2020. In addition to SW's testimony, the jury heard testimony from her mother, the police officers who investigated the offenses, the SANE nurse who examined SW, and the analyst from the North Louisiana Crime Lab who tested the DNA samples and clothing submitted. The forensic interviewer from Gingerbread House who interviewed SW shortly after the offenses testified and the recording of SW's interview was played for the jury. Wilson's statement to police was also played for the jury. During the course of the trial, SW revealed that her mother and other family members pressured her to recant her allegations against Wilson.

Wilson was convicted as charged on both counts by a unanimous jury. Wilson and the state filed sentencing statements and Wilson filed a supplemental statement with the trial court before sentencing. The sentences set forth above were imposed on March 10, 2020. A motion to reconsider his sentences was timely filed on March 17, 2020. The motion was denied by the trial court on June 26, 2020. Wilson appealed.

MOTION TO RECONSIDER SENTENCE

Wilson claims as "error patent" that the trial court failed to rule on his timely filed motion to reconsider sentence. He argues that the case should be remanded to the trial court for a hearing on the motion and that he should be allowed to refile an appeal. This argument is without merit.

Legal Principles

The trial court may deny a motion to reconsider sentence without a hearing. La. C. Cr. P. art. 881.1 provides in part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

....

B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

C. If a motion is made or filed under Paragraph A of this Article, the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of the sentence .

D. The trial court may deny a motion to reconsider sentence without a hearing , but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion[.] [Emphasis supplied.]

See also State v. Williams , 46,468 (La. App. 2 Cir. 9/21/11), 72 So. 3d 966.

The appeal of a criminal case does not divest the trial court of jurisdiction to rule on a motion to reconsider sentence. La. C. Cr. P. art. 916(3) provides:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to :

(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence . [Emphasis supplied.]

The absence of a ruling on the motion to reconsider sentence does not affect the appellate court's ability to consider the constitutional excessiveness of the sentence on appeal, nor does it require a remand, since the trial court retains jurisdiction to rule on the motion to reconsider sentence and the defendant is within his rights to provoke same. Should the trial court later rule upon the defendant's motion to reconsider sentence, the defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2). State v. Samuels , 52,640 (La. App. 2 Cir. 8/14/19), 277 So. 3d 925, writ denied ,...