State Of Louisiana VS Marc A. Fruge
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 KA 0066 STATE OF LOUISIANA VERSUS MARC A FRUGE Judgment Rendered November 2 2012 r n t F lj Appealed from the 20th Judicial District Court ln and for the Parish of East Feliciana State of Louisiana Case No 08 127 CR The Honorable Gearge H Ware Jr Judge Presiding t 9C Matt D McConnell Lafayette Louisiana F ft X k k Counsel for Defendant Appellant Marc A Fruge and Cate L Bartholomew New Orleans Louisiana Samuel C Counsel for Appellee District State of Louisiana Aquilla D Attorney Stewart B Nughes Assistant District Attorney Clinton Louisiana BEFORE CARTER C GUIDRY AND GAIDRY JJ J GAIDRY J Defendant Marc A Fruge was charged by bill of information with one count of felony carnal knowledge of a juvenile a violation of La R S 80 14 He pled not guilty Defendant subsequently filed a motion to quash alleging that the combined effect of La R 14 the statute under which S 80 he was billed and La R 15 which would require his registration as a S 542 child predator in the event of his conviction was unconstitutional as cruel and unusual punishment because the state would not have to demonstrate any element of intent in proving defendant guilt The trial court denied s s defendant motion to quash Defendant withdrew his former plea of not guilty and entered a plea of nolfl contendere pursuant to a plea agreement with the state reserving his right to appeal the trial court denial of his s motion to quash under State v Crosby 338 So 584 La 1976 Under the 2d terms of the plea agreement the trial court sentenced defendant to three years imprisonment at hard labor all suspended placed defendant on three years active probation with specia conditions including the performance of community service and the payment of a fine and costs and ordered defendant to comply with the mandatory reporting requirements of La R S 542 15 Defendant now appeals alleging one assignment of error For the following reasons we affirm defendant conviction and sentence s FACTS Because defendant entered a plea of nolo contendere no facts were developed at trial The following facts are adapted from the stipulations entered into between defendant and the state from testimony given at a motion to suppress hearing and from defendant sown appellate brief 2 Defendant met the victim K on an adult dating website M Although K represented herself to be twenty years old on this M one website she was in fact only fourteen years old Subsequently on January 5 2008 defendant went to the victim home in East Feliciana Parish s Defendant and the victim went into the woods near the victim home and s they engaged in sexuai intercourse At the time of the incident defendant was thirty years old TT ASSIGNMEI OF ERROR In his sole assignment of error defendant states that the trial court erred in failing to grant his motion to quash Defendant argues that the mandatory requirement that he register as a sex offender or child predator under La R 15 for his conviction under La R 14 constitutes S 542 S 80 cruel and unusual punishment More specifically defendant contends that because La R 14 contains no scienter requirement and because he S 80 alleges that he committed this offense out of a pure mistake of fact his mandatory registration as a sex offender or child predator does not advance the legislature purpose in requiring such registration s Under La R 15 an adult who has been convicted of a S 542 a 1 A sex offense as defined in La R 15 shall be required to register and S 541 provide notification as a sex offender or child predator Felony carnal knowledge of a juvenile a violation of La R 14 is defined as a sex S 80 offense in La R 15 S 541 1the provision in effect on the date of 14 At the time of the offense the victim was a minor In accordance with La R S W 1844 46 the victim herein is referenced only by her initials or referred to as the victim 2 We note that we doubt whether defendant instant argument was properly raised in a s motion to quash because it does not allege any ground for a motion to quash under La Code Crim P arts 532 or 534 However because deFendant plea was conditioned s upon his right to seek review of the trial court denial of his motion to quash alleging s this argument we address defendant argument as though it had been properly raised in s the trial court 3 commission of defendant crime because of its inclusion in Part V of s Chapter 1 of Title 14 of the Louisiana Revised Statutes At the time of soffense the only exception to the registration requirements far defendant those offenders who have been convicted of felony carnal knowledge of a juvenile was found in La R 15 Under La R 15 S 542 2 F S 542 2 F prior to amendment by 2008 La Acts No 814 1 umotion by the pon district attorney the court may waive sex offender registration and notification knowledge requirements of a juvenile for a person convicted of felony carnal when the victim is at least thirteen years of age and the offender was not more than four years older than the victim Under currem law La R 15 allows a person who was S 542 a 3 F ny convicted of carnal knowledge of a juvenile prior to August 15 2001 to petition the court of conviction to be relieved of the sex offender registration and notification requirements if the offense for which the offender was convicted would be defined as misdemeanor carnal knowledge of a juvenile La R 14 S 80 1had the offender been convicted on or after August 15 2001 Because of the facts of the instant case defendant was unable to petition for either ofthese waivers of registration and notification In La R 15 the legislature set forth its findings and stated its S 540 putpose in requiring sex offenders to register with law enforcement and to notify the public of their offenses A The legislature finds that sex offenders sexually violent predators and child predators often pose a high risk of engaging in sex offenses and crimes against victims who are minors even after being released from incarceration or commitment and that protection of the public from sex offenders sexually violent predators and child predators is of paramount governmental interest The legislature further finds that local law enforcement officers efforts to protect their communities conduct investigations and quickly apprehend offenders who commit sex offenses and crimes against victims who are minors are impaired by the lack of information 4 I available to law enforcement agencies about convicted sex offenders sexuaily violent predators and child predators who live within the agency jurisdiction and the penal and mental s health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety Restrictive confidentiality and liability laws governing the release of infarmation about sex offenders sexually violent predators and child predators have reduced willingness to release infarmation that could be appropriately released under the public disclosure laws and have increased risks to public safety Persons found to have committed a sex offense or a crime against a victim who is a minor have a reduced expectation of privacy because of the public interest s in public safety and in the effective operation of government Release of information about sex offenders sexually violent predators and child predators to public agencies and under limited circumstances to the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals B Therefore this state policy is to assist local law s enforcement agencies efforts to protect their communities by requiring sex offenders sexually violent predators and child predators to register with state and local law enforcement agencies and to require the exchange of relevant information about sex offenders sexually violent predators and child predators among state local and federal public agencies and officials and to authorize the release of necessary and relevant information about sex offenders sexually violent predators and child predators to members of the general public as provided in this Chapter Defendant argues that the lack of a scienter requirement in La R 14 S 80 undermines the legislature stated reasons for requiring sex offender s registration Defendant contends that the legislature did not intend to intrude on the privacy of someone who only accidentally unknowingly or through private entrapment committed the crime of consensual intercourse without knowing and without intending to couple with a juvenile Defendant further asserts that nothing in the legislature findings and s purpose suggests that someone who may have been tricked into having sex with a juvenile poses a high risk of engaging in future sex offense ar crimes 5 against minors after being released from incarceration or commitment Based on these arguments defendant believes that the mandatory sex offender registration reyuirements for a person convicted of an offense under La R 14 are unconstitutionally punitive S 80 In State v Granier 99 La 7 765 So 998 the 3511 00 6 2d Louisiana Supreme Court held that La R 4 was constitutional despite S 80 its lack of a scienter requirement The Court reasoned as follows Statutes are presumed valid and their constitutionality should be upheld whenever possible State v Griffin 495 2d So 1306 1308 La 1986 Louisiana criminai statutes must be given a genuine construction accarding to the fair import of their words taken in their usual sense in connection with the context and with reference to the purpose of the provision La R 143 S Mareover the Louisiana Legislature has sole authority under the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct La Const art 3 I In fact La R 14 provides that criminal S 8 2 conduct may consist of a act or failure to act that mere produces criminal consequences where there is no requirement of criminal intent Additionally La R 14 provides S 11 that in some crimes no intent is required Thus the Louisiana Legislature has determined that specific or general intent is not a necessary element of every crime While offenses that dispose of a scienter requirement are not favored the United States Supreme Court has noted that the legislatures authority to define a criminal offense includes the power to exclude elements of knowledge and diligence from its definition Lambert v Calijornia 355 U 225 228 78 S Ct S 240 242 2 L 228 195 See also Powell v 2d Ed 7 Texas 392 U 514 545 88 S 2145 2160 20 L S Ct 2d Ed 1254 1968 Black J concurring L egislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime Additionally the Court has also specifically recognized certain exceptions to the requirement of inens rea as an element of criminal conduct including sex offenses such as rape in which the victim actual age was determinarive s despite defendant reasonable belief that the girl had reached s age of consent Morissette v United States 342 U 246 251 S 8 n 72 S 240 244 n 96 L 288 1952 Ct 8 Ed See also Unzted States v X Videq Inc 513 U 64 69 115 Citement S Ct S 464 130 L372 1994 quoting Morissette supra 2d Ed Moreover the majority rule in state courts across the nation is that a defendant knowledge of the age of the victim is not an s essential element of statutory rape In many of these states 6 proof of statutory rape requires merely proof of an act of sexual intercourse and proof that the victim is below the prohibited age As to the specific criminal statute in this case as early as 1938 this court explained that the crime of carnal knowledge of a juvenile does not require felonious intent or guilty knowledge but that the simple perpetration of the act itself consritutes the offense State v Dierlamm 189 La 544 180 So 135 1938 Later this court stated that in the interest of protecting juveniles historically recognized as a special class of persons in need of protection the legislature may dispense with the knowledge requirement as to the age of the juvenile in certain crimes State v Elias 357 So 275 La 1978 Although 2d the presence of a will or mens rea has long been a vicious requirement of criminal responsibility many exceptions have been recognized overruled on other grounds bX State v th373 So 152 La 1979 Boswo 2d In Louisiana statute the crime of carnal knowledge of a s juvenile requires proof of consensual sexual intercourse between a person over the age of 17 with a person 12 years old or older but under the of 17 age Additionally the age difference between the two has to be greater than two years and the juvenile must not be the spouse of the offender Yet nowhere in the statute is knowledge of the juvenile age s required As in Dier and Elias we hold that knowledge of lamm the juvenile age is not an element of certain crimes involving s juveniles including the crime of carnal knowledge of a juvenile In adopting this statute the legislature has made the determination to protect juveniles below a specified age from sexual intercourse The policy underlying such a statute is a presumption that because of their innocence and immaturity juveniles are prevented from appreciating the full magnitude and consequences of their actions At the heart of these types of statutes is the concern that juveniles should not be exploited for sexual purposes regardless of their consent Although we recognize that some juveniles below this age are able to convincingly portray themselves as being 17 years of age or older the burden falls upon the adulY to determine that the other person is the legal age before engaging in sexual relations 7 Granier 765 So at 1000 emphasis in original footnote omitted 2d 01 Clearly then the supreme court has accepted as constitutional the lack of a scienter requirement in the felony carnal knowledge of a juvenile statute Still defendant contends that the registration and notification requirements that follow his conviction for the instant offense are unconstitutional because of his stated lack of knowledge of the victim s actual age We disagree Defendant actions leading to his conviction for s the instant offense demonstrate that at best he lacks the judgment to assess the true age of a potential sexual partner At worst defendant actions give s rise to the conclusion that he actively intended to engage in sexual intercourse with a juvenile We agree with the Supreme Court statement in s Granier that the burden falls upon the adulY to determine that the other person is the legal age before engaging in sexual relations Granier 765 2d So at 1001 In this case defendant admits that he failed to take that step and now he wishes to escape the mandatory reporting and notification requirements of La R 15 because of that exercise of ignorance The S 542 legislature has not seen fit to allow for waivers of the reporting and notification requirements in factual situations where a defendant simpiy makes a in committing the crime of felony carnal knowledge of a mistake juvenile We decline to allow such a waiver here Further we have previously stated that the reporting and registration requirements of La R 15 were enacted not as a punishment but S 542 3 As an aside we note that the provision under which defendant was convicted La R S 80 14 priar to amendment by 2008 La Acts No 331 1 prohibited consensual sexual interwurse between 1 a person who was nineteen years of age or older and a person who was thirteen years of age or older but less than seventeen years of age when the victim was not Yhe spouse of the offender and 2 a person who was seventeen years of age or older and a person who was thirteen years of age or older but less than fifteen years of age when the victim was not the spouse ofthe offender La R 14 S 80 1 A 2 priar to amendment by 2008 La Acts No 331 1 However this change in the felony camal knowledge of a juvenile statute as it was discussed in Granier does not affect the validity of the Supreme Court sdiscussion of the statute constitutionality s 8 rather to protect communities to aid police in their investigation of sex offenders and to enable quick apprehension of sex offenders See State v Richard 2001 La App lst Cir 2 812 So 737 740 writ 1112 02 15 2d denied 2002 La 11 829 So 1038 1264 02 22 2d This assignment of error lacks merit DECREE For the foregoing reasons we affirm defendant conviction and s sentence CONVICTION AND SENTENCE AFFIRMED 9
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