State Of Louisiana VS Skyler A. Jenkins
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 0004 STATE OF LOUISIANA SKYLER A JENKINS Judgment rendered June S 2012 A Appealed from the 22n Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 481775 Honorable William J Crain Judge HON WALTER P REED ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA NICHOLAS F NORIEA JR ASSISTANT DISTRICT ATTORNEY COVINGTON LA AND KATHRYN W LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE LA FREDERICK H KROENKE JR BATON ROUGE LA ATTORNEY FOR DEFENDANT SKYLER A JENKINS BEFORE PETTIGREW MCCLENDON AND WELCH 73 PETTIGREW J The defendant Skyler A Jenkins was charged by amended bill of information with one count of sexual battery by committing a sexual battery upon the person of E C dob 5 between June 1 2009 and July 31 2009 a violation of La R 97 26 S 2 C 1 43 14 He pled not guilty and moved to suppress his confession hearing the motion was denied battery Following a Following a jury trial he was found guilty of sexual He timely moved for a new trial and for a post verdict judgment of acquittal but the trial court failed to rule on the motions He was sentenced to ten years at hard labor without the benefit of probation parole or suspension of sentence The State moved for reconsideration of sentence and for sentencing under La R 14 S 43 2 C 1 but the motion was denied The defendant appealed contending 1 the trial court erred in denying the motion to suppress the confession and 2 the trial court erred in sentencing him without ruling on the timely motions for a post verdict judgment of acquittal and for a new trial The State also appealed contending the trial court erred in denying its motion for reconsideration of sentence This court found merit in assignment of error number two pretermitted consideration of the remaining assignments of error vacated the sentence and remanded for a hearing and disposition of the outstanding motions State v Jenkins 2011 0364 La App 1 Cir 9 2011 WL 445252 11 14 unpublished Following remand the trial court denied the outstanding motions and referencing its prior reasons for sentence sentenced the defendant to ten years at hard labor without the benefit of probation parole or suspension of sentence The State orally moved for reconsideration of sentence arguing the mandatory sentencing range was twentyfive years to ninetynine years due to the victim age The trial court denied the motion for s reconsideration of sentence The defendant now appeals contending the trial court erred in denying the motion to suppress the confession The State also appeals contending the 1 The defendant waived sentencing delays a i trial court erred in sentencing the defendant under La R 14 rather than La S 43 C 1 S 43 R 14 For the following reasons we affirm the conviction and sentence 2 C 1 FACTS The August 25 2009 recorded interview of the victim E C z was played at trial The victim was twelve years old She often went out with Tiffany who was her father s girlfriend and was twentyfive years old Tiffany met Zack Little at a bar Little had a friend the defendant who was nineteen years old Thereafter the victim Tiffany Little and the defendant went to Mandeville together to sit by the water The victim told Little and the defendant that she was eighteen years old and that her name was Bailey After Tiffany and Little went off together the defendant and the victim sat together and he asked her if she wanted to go to the truck She went to the truck and had sex with the defendant It was her first time and she was okay with it She stated the defendant put his thing in her coochie She identified the penis on a sketch of a naked boy as his thing She identified the vagina on a sketch of a naked girl as her coochie MOTION TO SUPPRESS In assignment of error number 1 the defendant argues the trial court erred in denying the motion to suppress confession because it was unlawfully and illegally obtained and not freely and voluntarily given He claims the interrogating officer carefully obtained a confession from the defendant to aggravated rape without having first advised the defendant that he was being detained in connection with the investigation or commission of any type of offense It is well settled that for a confession or inculpatory statement to be admissible into evidence the State must affirmatively show that it was freely and voluntarily given without influence of fear duress intimidation menaces threats inducements or promises La R 15 Further the State must show that an accused who makes a S 451 z We reference the victim only by her initials See La R 46 S 1844 W N statement or confession during custodial interrogation was first advised of his Miranda rights State v Plain 991112 p 5 La App 1 Cir 2 752 So 337 342 00 18 2d The admissibility of a confession is in the first instance a question for the trial court its conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession are accorded great weight and will not be overturned unless they are not supported by the evidence Whether a showing of voluntariness has been made is analyzed on circumstances of each caseby case basis with regard to the facts and a case The trial court must consider the totality of the circumstances in deciding whether a confession is admissible Plain 99 1112 at 6 752 2d So at 342 When a trial court denies a motion to factual suppress and credibility determinations should not be reversed in the absence of a clear abuse of the trial court s discretion iunless such ruling is not supported by the evidence See State v Green e 94 0887 p 11 La 5 655 So 272 280 281 95 22 2d However a trial court legal s findings are subject to a de novo standard of review See State v Hunt 2009 1589 p 6 La 12 25 So 746 751 09 1 3d When any person has been arrested or detained in connection with the investigation or commission of any offense he shall be advised fully of the reason for his arrest or detention his right to remain silent his right against self incrimination his right to the assistance of counsel and if indigent his right to court appointed counsel In a criminal prosecution an accused shall be informed of the nature and cause of the accusation against him La Const art I 13 see also La Code Crim P art 218 1 There is however no requirement that a defendant be read the technical definition of a crime in order to be fully advised of the reason for his arrest or detention State v Jackson 523 So 251 258 La App 2 Cir writ denied 530 So 565 La 1988 2d 2d The defendant was advised of his Miranda rights and signed a waiver of those rights prior to giving his recorded statement The advice of rightswaiver of rights form 3 Miranda v Arizona 384 U 436 86 S 1602 16 L 694 1966 S Ct 2d Ed 11 did not provide any information concerning the charge being investigated Prior to the sincriminating statement the detective questioning the defendant advised the defendant defendant that the detective was conducting a criminal investigation After the defendant stated the victim told him she was eighteen and he had sex with her in his truck he asked what exactly happened to get me here The detective advised the defendant the fact that you had sex with a little girl The detective then told the defendant n I about to blow your socks off she only twelve ow m s There was no reversible error or abuse of discretion in the trial court denial of the s motion to suppress defense As a matter of law lack of knowledge of the victim age is not a s La R 14 The victim testified at trial she was twelve years old and S 43 6 1 the defendant had sex with her in his truck Further her August 25 2009 recorded interview in which she also stated she was twelve years old and the defendant had sex with her was played at trial Additionally the defense never disputed that the defendant had sex with the victim or that she was only twelve years old at the time he did so rather the defense theory was that the defendant should not be found guilty of the charged offense because given the particular facts of the case the mandatory punishment was too severe for his conduct This assignment of error is without merit STATE APPEAL The State argues a the State did not object to the jury verdict form it lthough submits the conviction by the jury of sexual battery does not preclude the court from properly sentencing defendant under La R 14 The State is incorrect S 43 2 C 1 Any 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 a reasonable doubt Apprendi v New Jersey 530 U 466 476 120 S 2348 2355 S Ct 147 L 435 2000 Jones v United States 526 U 227 243 n 119 S 2d Ed S 6 Ct 1215 1224 n 143 L 311 1999 Elements of an offense must be charged in the 6 2d Ed indictment submitted to a jury and proven by the Government beyond a reasonable doubt Jones 526 U at 232 119 S at 1219 S Ct R The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant Blakely v Washington 542 U 296 303 124 S 2531 2537 159 L 403 2004 State S Ct 2d Ed v Hardeman 20040760 p 10 La App 1 Cir 2906 So 616 626 05 18 2d Whoever commits the crime of sexual battery shall be punished by imprisonment with or without hard labor without the benefit of parole probation or suspension of sentence for not more than ten years La R 14 Whoever commits the S 43 C 1 crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twentyfive years nor more than ninetynine years At least twentyfive years of the sentence imposed shall be served without the benefit of parole probation or suspension of sentence La R 14 S 43 2 C 1 Following the presentation of evidence the trial court asked the State and the defense if they had been given a copy of the proposed jury charges and they both answered affirmatively Following a discussion off the record the trial court asked the State if it wanted to object on the record to the definition of sexual battery The State answered negatively During closing argument the defense argued the evidence showed the defendant had relied on the victim representations that she was eighteen years old and was s shocked to learn her real age The defense argued the enhanced penalty for a victim under thirteen was meant to protect our children from child predators but was too harsh under the facts of the case because it not meant to mercilessly punish a 19year s old kid who was lied to The defense further argued I was mentioning that in this case if you convict him as charged 25 years in the Louisiana State Pis the minimum sentencing in this enitentiary case without probation parole or suspension of sentence s That what s he charged with that what will happen if you find him guilty as charged s Now you may feel that the defendant has done something wrong possibly and you may feel he deserves some kind of penalty The judge is going to tell you about lesser included offenses 6 In the American system one of the great things about this country about our legal system is that we have juries If the legislature passes all kinds of crazy laws they can punish somebody for violating those laws t without the sayso of a jury of a jury of that person peers which is why s re we all here You have a right to vote any way you believe you should vote And ladies and gentlemen what happens to the defendant today is your choice nobody else And when you vote remember that young man life s s is in your hands And he here not because he set out to do something s wrong not because he was out looking for a 12yearold because he really t didn do s he didn want to do something wrong He here because he t was deceived The trial court instructed the jury on the elements for all of the verdicts listed on the verdict form Thereafter the court asked the State and the defense if they had any objection to the jury charges as read to the jury The State and the defense both replied No Your Honor The verdict form gave the jury the following choices GUILTY OF SEXUAL BATTERY OF A PERSON UNDER THE AGE OF THIRTEEN GUILTY OF ATTEMPTED SEXUAL BATTERY OF A PERSON UNDER THE AGE OF THIRTEEN GUILTY OF SEXUAL BATTERY GUILTY OF ATTEMPTED SEXUAL BATTERY NOT GUILTY During deliberations the jury sent the trial court the following note Definition of Lesser Charges Guilty of Attempted Sexual Battery and how much time Guilty of Sexual Battery and how long Guilty of Attempted Sexual Battery how long The trial court recharged the jury on the elements for all of the verdicts listed on the verdict form and instructed them on the penalties for the offenses listed on their note Thereafter the jury returned a unanimous verdict of guilty of sexual battery The trial court properly sentenced the defendant under La R 14 S 43 C 1 The court sentenced the defendant on the basis of the facts reflected in the jury verdict The jury did not find the presence of the fact necessary for the defendant to be 7 sentenced under La R 14 S 43 2 C 1 See State v Gibson 2009486 p 12 La App 5 Cir 3 38 So 373 380 writ denied 2010 0802 La 11 50 So 10 9 3d 10 5 3d 814 The relevant statutory maximum for a violation of La R 14 is ten years S 43 1 imprisonment with or without hard labor this is the maximum sentence the trial court could have imposed without any additional findings In order to sentence the defendant pursuant to the enhanced sentencing provision of La R 14 C a finder of fact S 43 2 1 must determine that the defendant was seventeen years of age or older and that the victim was under the age of thirteen emphasis in original This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 4 In State ex rel Elaire v Blackburn 424 So 246 251 La 1982 cert denied 461 U 959 103 2d S Ct S 2432 77 L 1318 1983 the Louisiana Supreme Court recognized the legitimacy of a 2d Ed compromise verdict i a legislatively approved responsive verdict that does not fit the evidence but that e for whatever reason the jurors deem to be fair as long as the evidence is sufficient to sustain a conviction for the charged offense 8
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