State Of Louisiana VS Curtis Lee Johnson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1605 STATE v OF LOUISIANA VERSUS I CURTIS LEE JOHNSON C Judgment Rendered Apri126 2013 Appealed from the Sixteenth Judicial District Court In and for the Parish of St Mary State of Louisiana Trial Court Number 2008 176475 Honorable Lori A Landry Judge Presiding J Phil Haney Walter J Senette Franlclin LA Counsel for Appellee Jr Gwendolyn K Brown Baton Rouge LA State of Louisiana Counsel for Defendant Appellant Curtis Lee Johnson x BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J WHIPPLE C J The defendant Curtis Lee Johnson was charged by grand jury indictment with aggravated incest a violation of LSA 14 He pled not guilty and S 1 R 78 following a jury trial was found guilty as charged The state subsequently filed a multiple offender bill of information and the defendant denied the allegations of the bill The multiple offender proceedings were not concluded at that time The defendant was sentenced to thirty years at hard labor with twenty years to five five be served without benefit of probation parole or suspension of sentence The defendant appealed and this court affirmed his conviction and sentence See State v J L 0972 C 2011 La App lst Cir 11 29 12 2011 WL 6916529 unpublished writ denied 2012 La 998 So 3d 821 0677 12 14 After a hearing the defendant was adjudicated as a second habitual felony offender The district court vacated the sentence previously imposed and resentenced the defendant to fifty years at hard labor The defendant now appeals arguing that the district court erred in sentencing him under LSA 14 S 1D R 78 2 For the following reasons we affirm the habitual offender adjudication and sentence FACTS The victim of this offense is the defendant sdaughter who was seven years old at the time of the offense The investigation began in February 2008 after the s victim mother noticed blood in the victim panties The victim mother and s s grandmother took her to a pediatric clinic for an evaluation and the treating physician referred the victim to the emergency room of a local hospital for further examination and laboratory work The 1 indictment did not specify whether the defendant was being charged under Subsection D or D of LSA 14 However the defendant was originally charged 1 2 R 78 S 1 by a bill of information which set forth his date of birth as October 5 1974 and was amended to set forth the victim date of birth as November 6 2000 s 2 While the victim her mother and her grandmother waited at the hospital the victim saunt called to speak with her During the telephone conversation with her aunt the victim disclosed that her father had touched her inappropriately Police were promptly notified of the allegations of sexual abuse In a videotaped interview with a child protection examiner the victim disclosed that her father had been touching her private under her clothing since she was about six years old sometimes using lotion and that recently she was scratched by his fingernail and bled The victim also testified at trial that her father had touched her in her private which she identified as her vaginal area numerous times DISCUSSION In his sole assignment of error the defendant argues that the district court erred in sentencing him under LSA 14 Specifically the defendant S 1D R 78 2 contends that the applicable sentencing range for his multiple offender sentence should have been ten to forty years pursuant to LSA 14 See LSA S 1D R 78 1 S 529 R 15 In support of his argument the defendant contends that the 1 1A state failed to prove that he was seventeen years of age or older and that the victim was under the age of thirteen at the time of the offense The defendant raised a similar argument in his original appeal wherein he assigned error to the district court denial of his motion in arrest ofjudgment The s motion claimed that the bill of information was deficient because among other things it did not allege that the victim was under the age of thirteen and the At Z the time of the defendanYs offense LSA 14 S 1D R 78 2provided in pertinent part w commits the crime of aggravated incest on a victim under the age of thirteen hoever years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty years nor more than life imprisonment Subsection D five 2 was subsequently amended changing the maximum penalty to ninety yeazs at hard labor nine See 2008 La Acts No 33 1 Louisiana 3Revised Statute 14 1provides a person convicted of aggravated 781D incest shall be fined an amount not to exceed fifty thousand dollazs or imprisoned with or without hard labor for a term not less than five years nor more than twenty years or both 3 defendant was over the age of seventeen This court found no merit to the s defendant argument and noted that the defendant failed to file a request for a bill of particulars or a motion to quash the indictment This court also pointed out that while the original bill of information did not identify the victim the amended bill both identified the victim and set forth her date of birth Although the grand jury indictment obtained by the state therea8er did not identify the victim her identity and date of birth had already been revealed to the defendant through the amended bill See C 2011 at p J L 0972 5 The defendant now claims that the district court sentencing under s Subsection D was in violation of Apprendi v New Jersey 530 U 466 120 S 2 S Ct 2348 14 L Ed 2d 435 2000 because there was not sufficient proof that he 7 was over the age of seventeen and that the victim was under the age of thirteen at the time of the offense ny A fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment submitted to a jury and proven beyond reasonable doubt Aprp endi 530 U at 476 120 S Ct S at 2355 citing Jones v United States 526 U 227 243 n 119 S Ct 1215 S 6 1224 n 143 L Ed 2d 311 1999 The statutory maximum for A 6 prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict ar admitted by the defendant Blakely v Washint 542 U 296 303 124 S Ct 2531 2537 159 L Ed 2d 403 2004 on S In response the state contends that the defendant argument is a s thinly veiled attempt to re the issue of whether there is sufficient evidence to litigate convict the defendant The state further contends that the defendant should be precluded from raising this sufficiency argument because he failed to raise it in his original appeal The defendant presented a brief sufficiency argument in his original appeal by assigning error to the district court denial of his postverdict s 4 judgment of acquittal However he did not claim that the state failed to prove his and the victim ages in that assignment of error We agree that the defendant s should have raised this argument in his original appeal to the extent that he challenges the sufficiency of the evidence presented in support ofhis conviction Nevertheless before us now are the s defendant habitual offender adjudication and sentencing Sentencing the defendantto a new sentence under S 1D R 78 LSA 14 is supported by the facts in the record and reflected in the 2 jury verdict In charging the jury the district court stated if you are convinced beyond a reasonable doubt that 1 The Defendant was over the age of seventeen 3 When the child is under the age of thirteen at the time of the event Then your verdict should be guiity of Aggravated Incest as charged The record clearly reflects that the jury retumed a verdict of guilty accompanied with the following language w the Jury find the victim was seven years old on the date of the e offense We the Jury find the defendant Curtis Johnson guilty of aggravated incest as charged There was also sufficient evidence that the defendant was seventeen years of age or older at the time of the offense The bill of indictment provided that the s defendant date of birth is October 5 1974 The victim grandmother testified s that the victim mother and the defendant had been in a relationship since the s victim was born for approximately nine years at the time of trial The victim testified that she was nine years old at the time of trial and was seven years old at the time of the offense The defendant was being tried as an adult rather than a juvenile See State v Hawkins 633 So 2d 301 304 La App lst Cir 11 93 24 Furthermore the defendant was charged by grand jury indictment as required We 4 note that the defendant had notice that he was being sentenced under Subsection 2 D after his original sentence of thirty years at hard labor was imposed as the masimum five penalty under Subsection D is twenty years See LSA 14 1 S 1D R 78 1 5 when punishment for the offense would be under LSA R 14 prior to S 78 2 1D amendment by 2008 La Acts No 33 1 an offense punishable by life imprisonmenP rather than under LSA 14 See LSA art S 1D R 78 1 P Cr C Therefore the state evidence was clearly sufficient prove that the s 382A defendant was seventeen years of age or older and that the victim was under the age of thirteen at the time of the offense Thus the defendant was properly sentenced as a habitual offender under LSA 14 S 1D R 78 2 SENTENCING ERROR Under LSA art 920 we are limited in our review to errars P Cr C 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence See State v Price 2005 La App 1 st Cir 2514 06 28 12 952 So 2d 112 123 en banc writ denied 2007 La 2122 0130 08 976 So 2d 1277 After a careful review of the record we have found a sentencing error After the multiple offender hearing the defendant was adjudicated a second felony offender and sentenced to fifty years at hard labor LSA 14 S 1D R 78 2 provides that at least twenty years of the sentence imposed shall be served five without benefit of parole probation or suspension of sentence The district court failed to specify how many years of the defendant year sentence were to be sfifty served without the benefit of parole Thus the defendant sentence is illegally s lenient However because the sentence is not inherently prejudicial to the defendant and neither the state nor the defendant has raised this sentencing issue on appeal we decline to correct this error See Price 952 So 2d at 123 25 The S minutes also reflect that the district court failed to specify how many years of the defendanYs fifty sentence were to be served without pazole yeaz 6 CONCLUSION For these reasons the defendant habitual offender adjudication and s sentence are hereby affirmed HABITUAL OFFENDER ADJUDICATION AFFIRMED 7 AND SENTENCE
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