State Of Louisiana VS August Emmett Varnado
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 2235 STATE OF LOUISIANA VERSUS AUGUST VARNADO y11 Judgment Rendered May 2 Appealed 2008 from the 22nd Judicial District Court In and for the Parish of Washington Louisiana Case No 05CR393287 The Honorable Raymond S Childress Judge Presiding Walter P Reed Counsel for District State of Louisiana Attorney Appellee Franklinton Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Jerry Fontenot Covington Louisiana BEFORE Counsel for Defendant Appellant August Varnado GAIDRY McDONALD AND McCLENDON JJ GAIDRY J Defendant three of counts entered August Varnado not and guilty sentenced defendant on guilty was to be served without benefit of probation The seeking Following have defendant a adjudicated hearing the trial court habitual offender and vacated his resentenced defendant with the first or two sentence on on The jury a The trial charged to suspension of a second to a felony habitual offender defendant Count One on a second The trial of twenty years term The trial to court then be served appeals citing was the at were obtained in presented to error concurrently of error since insufficient to videotape containing animated The trial court erred the State to submit into by allowing an extremely prejudicial pornography which had established link with the offenses charged jury 4 no the State to present to the evidence of other offenses without a Prieur hearing having first been held The trial court erred by imposing excessive the defendant 2 parole s with his convict the defendant of the allowing the jury court hard labor charged The trial court erred in felony ordered defendant following assignments evidence and present 3 court sentence be served without the benefit of probation sentence The convictions crimes jury aggravated kidnapping Count One evidence 2 or adjudicated Counts Two and Three Defendant 1 parole sentence Count One on years suspension of sentences Defendant subsequently instituted habitual offender proceedings State to period of ten child years at hard labor with the first two years a serve a as each conviction of attempted of to a tried before was unanimously determined defendant child of attempted aggravated kidnapping plea of a charged by bill of information with was sentences upon FACTS On from to trip a a some opposite grew at McKelphin as of the children door vehicle because she had exposed himself to Defendant got close a man they later identified The vehicle seen was to defendant street as traveling the passed they wanted and the entire group ran aunt Shannon Defendant eventually was approaching ride a to them a second to his got in the car come None of the children the home of Shereete Dillon who to prIor stopped his vehicle and rolled down the them vehicle and asked if a on from that incident Defendant then told the children side window As walking toward home and noticed defendant had driven around the block and s back Bogalusa her and her they were walking alongside the The group of children continued driver walking and when the vehicle pied guilty to two counts of obscenity stemming time were them frightened when he had and K G the Circle J in direction of the children group defendant waved C M T G store passed by in a blue four defendant occasion SD local convenience walked toward the home of in the A D 2005 C M July 6 closer was the mother of three of the children in the group According that as a man the who Dillon asked them man a came to to to the children raced into her home and told her get into his relative had gone car to court her residence and One of the children knew this over Dillon contacted the man police spoke with her and the children about the incident Lieutenant Charles Helton of the dispatched to Dillon s residence When Lt Helton arrived at seemed excited and scared at Bogalusa Police Department approximately Dillon 2 35 p m on July was 6 2005 residence he noted that the children s Lt Helton obtained information from the 3 including children number a A license plate the vehicle that the children had of the vehicle involved description initially provided to Lt Helton failed The described Dillon following day informed the Dillon contacted the her residence near police that saw to be accurate police again and also of the children had identified defendant one as the driver Lt Helton ran defendant s obtained records for defendant Smith through the NCIS computer and vehicle that matched the s who worked for general description Lt Helton contacted provided by the children that he had been Denise name the Louisiana Probation and Agent Parole Department and assisted in supervising defendant and requested assistance in locating defendant Agent Smith testified that she and four other agents proceeded Lt Helton at a officials met Dillon house s church on Marshall Richardson Road in they developed to make sure a plan whereby the children the were event assigned to canvass the area were secure s and Agent Smith and residence The surrounding Dillon s two other residence in they encountered defendant Agent Smith arrived At the time In response at defendant s residence Raymond Varnado defendant s to could be located Agent Smith at s brother on Cora Williams Drive was the only one home questions Raymond suggested defendant the local Wal Mart store Agent Smith contacted Agent Brian Mims who proceeded Mart and confirmed the presence of defendant s vehicle in the While Once the Bogalusa Lt Helton would return to Agent Mike Breland would proceed to defendant agents to meet Agent Mims maintained surveillance 4 on defendant s to the Wal parking vehicle lot Agent Stewart entered the Wal Mart and made identification of possible a defendant in the toy section Agent Smith arrived out of the the Wal Mart and She encountered defendant locate defendant After toy section at walking out into the of an store to aisle in the exchanging greetings Agent Smith escorted defendant and informed him that he store proceeded Bogalusa Police Department Before he units defendant asked twice if this King wanted for was placed in was questioning by the one of the agents Street After defendant children to While photographed a large Smith also seized room at a for the exiting a jury bus and bowl of C M also told matter The Bogalusa Police Department candy set up s in in sexual acts A decorative a a piece possessed display large bag of was of children candy was also vehicle s C M arrest identified Agent Smith that she had previously CM when defendant opposite direction Agent of furniture in the defendant from the person in the vehicle who asked if she wanted store no any portion of this videotape was passed According to C M 5 bad thirteen years them in a a a things old were a ride gone to court for him do she recalled how she and the other children the Circle J were Agent Smith observed and involving defendant because she had seen testimony there ensure if defendant A Orgies to videotape depicted animated images At the time of trial the the residence s School Girl Following defendant as to determine and defendant engaging seized from defendant photograph over videotape from underneath entitled played regarding the girls on Martin Luther defendant s residence in the residence contraband living turned was Agent Smith returned was During her returning blue vehicle defendant waved from traveling in as he passed the group which scared her because she had of defendant one obscenity convictions s The second time defendant down his window none her mother the vehicle and K G near upon the group he the vehicle and they asking the children testified at to come over to KG trial group walked home from the store defendant stopped rolled CM to began running towards as the person driving his vehicle M s confirmed C group in his According here come C M identified defendant in court home s came and asked them to of the children walked kept walking As the group again approached the defendant drove around the block and vehicle been the victim of previously testimony that as the passed them drove around the block and then drove up and asked them if they wanted a ride According to KG to get into the vehicle with him at the time of trial also testified she felt as Out of fear she TG if defendant wanted her ran who away T G testified that as the group of children defendant drove past them then old seventeen years was was then returned once a T G ride said she to Dillon ran incident T G also identified defendant in the group if they wanted Sharon According on restaurant to take July around 1 30 p a bath and a court 6 m s home Defendant Come here group following this the individual who asked 2005 she 11 50 met a m to on his defendant Parrott testified that evening 6 on the behalf defendant for lunch and that defendant told her he nap before the spoke testified girlfriend stated that she followed defendant from the Avenue and that she as s store ride defendant Parrott to Parrott a Dragon Palace Restaurant around home second time a stopped rolled down his window and asked the y all want the walking home from the s phone at as far The they left was church services restaurant at going Parrott as Long approximately 2 30 I p Parrott assumed that defendant m saw him and when she defendant never spoke to him told her that he at was on the was not another friend of home between the time she last phone Parrott also testified that to supposed be around children because of his probation Robyn Talley defendant accompanied defendant and Parrott for lunch Raymond with defendant defendant ate Wal Mart breakfast then defendant went at Hardee home s not accompany defendant seized from his residence Defendant did not lunch two she that 2005 at trial Raymond 1021 Cora Williams Drive in from 9 00 When the to at recalled that Raymond girlfriend called and he left s July 6 Varnado defendant s brother testified stated that he shared the house located Bogalusa on testified s July to 10 00 men to meet on 6 2005 he and then went to a m returned from Wal Mart her for lunch Raymond did Raymond also denied that the videotape School Girl belonged Orgies to him testifY SUFFICIENCY OF THE EVIDENCE In defendant were obtained in error him of the crimes failed to request further to Moreover 1 The inquiry points showed assignment of error he argues that his convictions since insufficient evidence was or Long to to provide the children with the lack of evidence accept his offer Avenue any convict or more than transportation an State initial Defendant he offered the children made any threats if they declined his offer no witnesses testified pornographic materials sighting to indicating that defendant argues that displayed presented Specifically defendant contends that the charged present any evidence that defendant made or anything first s of defendant occurred 7 was or candy to that defendant the children five blocks from where the incident The standard of review for conviction is whether the viewing of the evidence sufficiency the evidence in the essential elements of the crime and the defendant be must beyond a III prove excluded assuming order to negate as the or not identification by only defendant s conviction 1157 was witness State v La we also which test may identity the perpetrator s as required misidentification be sufficient Wright 98 0601 11 17 00 to of innocence is pp 2 3 486 87 writs denied 99 0802 2000 0895 perpetrator hypothesis committed the State is of probability one 730 So 2d 485 99 the crime to proved that the evidence tends every reasonable a proved the conducting this review key issue is the defendant reasonable any So 2d every fact to be convict Where the rather than whether 19 2 identity expressly mindful of Louisiana s circumstantial evidence in part states reasonable doubt In s uphold favorable most any rational trier of fact could conclude the State prosecution of that crime light to 773 Positive support the to La La So 2d 732 to 1st Cir App 10 29 99 citing La 748 RS 15 438 When evidence evidence a the conviction is reviewing both direct in the circumstantial in the direct light most favorable to the When the direct evidence is thus viewed the facts established circumstantial evidence and must the facts reasonably inferred from the be sufficient for reasonable doubt that the defendant element of the crime Prior and any conflict resolve court must by the direct evidence a on by viewing that evidence prosecution beyond based to State v Wright its 2006 amendment a rational was juror guilty of to conclude every essential 98 0601 at p 3 730 So 2d at 487 La kidnapping of a child as 8 R S 14 44 2 defined aggravated A of Aggravated kidnapping taking enticing location for an decoying or removing from and away a by any person other than a legal guardian of a child under the age unlawful purpose parent grandparent or of twelve years with the intent parent child is the unauthorized a to secret the child from his legal guardian or Louisiana Revised Statutes 14 27 defines attempt Any person who having as specific intent to commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to A commit the a intended offense and it under the circumstances whether be shall he would immaterial have actually accomplished his purpose intent Specific that is state of mind circumstances indicate that the offender criminal consequences intent may be Specific defendant actions 4 5 or La or by App follow his proved by act or failure 1st Cir 11 9 01 State the evidence in the ride La R S as 14 10 1 statements by a defendant s as Crotwell 2000 2551 light most favorable sufficiently supports defendant vicinity accompanied by a v prescribed pp The State to s the prosecution convictions for presented evidence passed the children then drove around the block and stopped his vehicle in their wanted such the 818 So 2d 34 38 39 attempted aggravated kidnapping of a child not to act when the inference from circumstantial evidence such find the evidence that defendant exists actively desired direct evidence depicting circumstances facts Viewing we to which any The jury Defendant then asked the children who parent clearly grandparent or legal guardian determined this offer these children away from their parents or if attempt was an were they to take guardians by getting them into his vehicle In totality determining whether the action of of the facts and circumstances evaluated The overt act need not a defendant is an presented by each attempt the case be the ultimate step toward 9 or must be the last commit the crime act 3 or consummation of the crime act in the possible not the possibility of success that determines omission constitutes the crime of attempt State 661 So 2d 442 La 10 16 95 Second whether the Smith 94 3116 p v 444 that the State note we It is the intent to attempted presented sufficient evidence for the JUry to conclude that defendant intended to take the children Defendant unlawful purpose from stemming was probation on incident an for the involving obscenity Defendant first drove occurred one of the present victims C M by the group which included C M signs of grooming defendant s vehicle hand in the form of was Further engaged in sexual jury had inconsistent with the a acts was amount reasonable basis seized from defendant to of candy candy usually kept his home and vehicle was parents for s residence or guardian for controlling some identify certain things in order we note that the State presented to a unlawful purpose his diabetes Thus to a prevent further offenses evidence that as a the 3 candy in rational juror supervising photographed the take these contention that the the types of things she is trained to observe Smith defendant s residence Moreover was Clearly s Smith testified that in connection with her duties of she is trained to defendant conclude that defendant intended Finally the jury obviously rejected defendant 3 s videotape containing animated images of children a children away from their Agent Defendant elaborate an by diabetics although the defense maintained diabetic 2 ride a then Agent Mims testified that the large bag of candy recovered from display on and convictions when the instant offenses returned and invited these children into his vehicle for residence showed some obscenity charges to previously pled guilty for sex As display offenders a result of of candy in condition of defendant s probation on his prior obscenity conviction he was ordered to stay away from children Accordingly the mere act of being alone with these children in his vehicle which defendant clearly attempted to accomplish was a violation of his probation and arguably See La Code Crim an unlawful purpose that would satisfy this element of the offense P arts 895 899 State v Davis 375 So 2d 69 73 74 La 1979 10 could have concluded that the State defendant request of the children s to come over entice these children into his attempt to commit an 11 29 06 proved beyond unlawful See State act car reasonable doubt that his vehicle constituted to an specific intent to with the 2006 0207 Ordodi v a 14 p La 946 So 2d 654 662 Accordingly convictions we find the evidence attempted aggravated for sufficiently supports defendant of kidnapping a child s This assignment of error is without merit ADMISSIBILITY OF VIDEOTAPE In his second erred in allowing the prejudicial motion assignment to suppress the error defendant argues the trial playa portion of a videotape that State to defendant to of Prior to trial the trial La Code Evid art 402 that relevant evidence more However probable relevant is evidence or less waste of time the having danger misleading the jury La Code Evid are any to of unfair 403 art In tendency 738 So 2d 706 make the probative value is prejudice confusion of the of relevancy or much Ultimately questions of relevancy and court See State to provides the determination of the questions discretion calls for the trial clear abuse of discretion provided by by considerations of undue delay or regarding relevancy and admissibility should Cir 6 25 99 otherwise than it would be without the evidence probable discretion is vested in the trial admissibility as evidence may be excluded if its substantially outweighed by issues risk of denied defendant s court Louisiana Code of Evidence art 401 existence of any fact that is of consequence action unfairly videotape All relevant evidence is admissible except law was court v court and not its determinations be overturned absent Duncan 98 1730 p 712 13 11 10 La App a 1 st The videotape from underneath a issue is entitled at sofa in the living shared with his brother arguing room Raymond recorded in English In videotape outweighed that when the tape the a scene children then go into a female s an seized residence that he is animated and is value of of the portion a not wooded the end of are which then a scene getting off children and area to blue bus a depicted having sexual the circumstances of the The contact indicate the scene prosecutor further argues that this particular portion of the The for probative s was is not willful participation videotape of defendant videotape cued was depicting the prosecutor to Orgies and dangers of unfair prejudice the prosecutor argued immediately led into According The that the seized it was School Girl was probative of the defendant unlawful purpose because this of format that one would to take these children away animated format is the type particular children in to display intent s an effort to groom them for further sexual contact Defendant argues that the the incident at issue defendant intended videotape was or nor was to located at the there any evidence introduced to indicate that videotape show the could be used to was videotape to not the children entice the children into scene or of that the engaging in sexual activity In ruling found that it for an a portion of the videotape probative was unlawful purpose 4 of defendant s was intent admissible the trial to court entice the children away We agree 4 In brief defendant quotes the trial court as stating that defendant was not being tried for possession of pornography and that under the Article 403 balancing test the more that s piled on the greater jury would view this he guilty of the chance of this as a trial of whether aggravated kidnapping these words with respect simply being too prejudicial to other or of a to the not this defendant is a sick child pornographic 12 point that pervert the versus is We note that the trial court stated materials seized from defendant s We note that was played found for the defendant at videotape unlawful purpose a s portion of the fifty minute animated videotape The jury jury residence and played for the was never However to only defendant s was a was not well aware in his vehicle intent another item grooming as take these children to been ordered despite having children for sexual Smith well as an specifically stay away from testified that the videotape was videotape depicting animated sexual activity However the defense unlawful purpose of such such item was one children away for possession for indicative of tools used activity The candy display never the were to of defendant trial that the fact the away involving children is clearly probative an was children children had certain items in his residence that Although Agent videotape major issue in this trial Clearly the State attempted show that defendant to groom that the an animated videotape s intent to entice these was brought out at in violation of not the law We find the trial court not an s admission of the abuse of discretion because the defendant intent s misleading This clearly outweighed videotape any of the jury confusion of the issues assignment portion of the videotape s probative was value of the danger of unfair prejudice or undue delay of error is without merit EVIDENCE OF OTHER OFFENSES In defendant in s allowing the State having 277 third assignment of error he argues the trial court erred present evidence of other offenses without a hearing been first held in accordance with the requirements of State v Prieur So 2d residence 126 to 128 The trial court La 1973 suppressed and La Code Evid art these items and noted that adults these materials 13 404 B were depicted I in defendant argues the State described defendant Specifically offender in its opening further argues that the State the was victim of same despite there being throughout the trial that alleged one of defendant one a sex Defendant of the present victims C M prior obscenity convictions s determination of such pretrial no and statement as Finally defendant argues that such evidence is not admissible under La Code Evid art 412 2 because defendant charged with not was a involving sexually crime assaultive behavior The record indicates that in the State discovery request the State other Defendant filed transcript of a defendant well pretrial presented a Code Prieur we Based several references note to on that in the defendant s lodge an to defendant objection Defense convictions the term to being court prior s clearly held admissible were moot opening the prosecutor made statement prior convictions for obscenity C sex a prior convictions offender At no arose M s and a time did defendant these references counsel Moreover sex a wherein of defendant prior convictions s court clearly and identification statement the record the trial involvement in the incident from which the reference a of 404 b The record also regarding admissibility Accordingly this assignment of error is Moreover trial at and 404 arts s 412 2 hearing regarding all suppress and held defendant hearing a Evid introduce to defendant to introducing evidence hearing conducted by the trial the Prieur issue as to his motions obscenity convictions Prieur motion for the State intended evidence as a response forth that it would be admissible under La crimes contains set s offender acknowledged Smith during Agent to describe his s client s pnor obscenity testimony wherein she used grooming techniques there 14 was no C M told her McKelphin them regarding her prior experience with defendant there Nor did defense counsel objection Agent Smith testified about what Moreover when defendant objection by testimony regarding defendant s M s C object during was no Shannon or previous actions towards s resulting in his convictions for obscenity defendant failed Because objection to the introduction of any evidence convictions he is Code Crim P regarding precluded from raising this argument p 5 La 1st Cir 9 24 99 App denied 99 3526 La 6 16 00 his on 103 A La Code Evid art 841 A art 98 2501 Rogers make any type of contemporaneous to I prior obscenity appeal See La also State see 757 So 2d 655 659 v writ 764 So 2d 962 EXCESSIVE SENTENCES In his final by imposing excessive Article I sentences Section 20 of the Louisiana Constitution Even imposition of excessive punishment may violate and is La a subject 979 defendant s constitutional to A disproportionate appellate to the 1280 when the crime and 1985 State v is is v La 1993 sense Lanieu or A sentence is are State La 12 v if it nothing 762 is more State v 767 grossly than light Hogan La 10 8 99 App of the harm done 480 So 2d 288 1st Cir 1 4 99 750 So 2d 962 a Dorthey grossly disproportionate considered in 98 1260 p in the is pain and suffering of justice given wide discretion within statutory limits Sepulvado 367 So 2d severity of the offense infliction of the prohibits right against excessive punishment State So 2d 89 97 writ denied 99 1259 court sentence a constitutionally excessive punishment society it shocks the La review sentence purposeless and needless 623 So 2d 1276 argues the trial court erred assignment of error defendant if to 291 734 A trial imposition of sentences within statutory 15 limits and the sentence imposed by it should not be the absence of manifest abuse of discretion 751 State v be considered State by the trial The trial 894 1 894 1 942 as excessive in Lobato 603 So 2d 739 La 1992 The Louisiana Code of Criminal Procedure art aside set but the record court need court must La 1990 not 11 La forth items that recite the entire checklist of Article adequately considered the criteria 1st Cir App 565 So 2d writ denied light of the criteria expressed by Article In must Code Crim P sentence La imposing reflect that it Herrin 562 So 2d 1 v before sets 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial court s stated and factual basis for its reasons sentencing v Watkins 532 So 2d 1182 1186 La for full compliance with Article 894 1 is unnecessary when decision State Remand sufficient factual basis for the sentence is shown 1st Cir App State 1988 419 Lanclos v a So 2d 475 478 La 1982 For his convictions of defendant was with at least eligible probation 44 2 B 2 In this receive sentence of a year of the sentence one parole to attempted aggravated kidnapping of or 44 1 suspension of no more imposed child than twenty years to be without benefit La sentence a R S 14 27 D of 3 C defendant case was sentenced on Counts Two and Three to ten years at hard labor with the first two years to be served without benefit of probation parole of the terms or suspension of sentence defendant conviction for two was counts eligible of committed the instant offenses these children one time if to These sentences receive obscenity and Defendant had was on Although defendant they wanted 16 a represent half ride a previous probation when he argues he only asked the record indicates when defendant first encountered the group of children he made to drive by them a second time before we do not under the Habitual Offender Law felony offender receive a sentence 44 2 B 44 1 C medium range of ten to one forty of the C M we same to Defendant a this on find the trial sentencing defendant a ride count victims a special court twenty years as as a was La Considering defendant s to a that this prior obscenity to engage not abuse its second to 14 27 sentenced was as a eligible RS effort did enhanced was adjudication s defendant years at hard labor convictions and that defendant made victim Count One provision 15 529 1 A 1 I on following defendant Under this of twenty years conviction involved they wanted sentences to be excessive find these We note that defendant s conviction second deliberate effort immediately began running from defendant Under Once asked the children these circumstances them if asking a this particular discretion in felony habitual offender for his conviction on Count One This assignment of error is without merit DECREE For the above offender reasons adjudication we affirm the defendant s convictions habitual and sentences CONVICTIONS HABITUAL OFFENDER AND SENTENCES AFFIRMED 17 ADJUDICATION
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