State Of Louisiana VS James Howard Burt
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NOT DESIGNATED FOR PUBLICA 'ION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2014 KA 0613 STATE OF LOUISIANA VERSUS JAMES HOWARD BURT Judgment Render d: NOV 0 7 2014 ******* Appealed from the 22nd Judicial District Court In and for the Parish of Washington, Louisia a Trial Court Number 12-CRS-119845 Honorable Scott Gardner, Judge ******* Walter P. Reed, District Attorney and Kathryn Landry Special Appeals Counsel Baton Rouge, LA Attorneys for App llee State of Louisiana Lieu T. Vo Clark Louisiana Appellant Project Mandeville, LA Attorney for Appe lant Defendant - Jame Howard Burt ****** BEFORE: KUHN, PETTIGREW, AND WEL H, JJ. WELCH,J. The defendant, James Howard Burt, was charged by bil f information with indecent behavior with juveniles (victim under the age of thi en), a violation of La. R.S. 14:81. The defendant pled not guilty and, follow g a jury trial, was found guilty. The defendant was sentenced to twenty years i prisonment at hard labor with two years of that sentence to be served witho t benefit of parole, probation, or suspension of sentence. At sentencing, the de£ dant orally moved for reconsideration of sentence, which was denied. The de£ dant now appeals, designating two assignments of error. We affirm the convictio and sentence. FACTS On November 18, 2012, twelve-year-old C.G. 1 was at t defendant's house in Bogalusa. C.G. and her family were good friends with th efendant's family. C.G. was in the living room when the defendant came out o he bathroom. The defendant was wearing a jacket (casual with a zipper), but waist down. While pointing at his penis, the defendant told .G., "Come touch me, please." C.G. refused, and the defendant got dressed. Lat the defendant's wife and her (C.G.'s) mother what had occu d. The following day, C.G. was interviewed at the Children's Advocacy Center ( AC) in Bogalusa. The CAC interview was played at trial. ASSIGNMENTS OF ERROR NOS. 1 and In these related assignments of error, the defendant argu erred in denying the motion to reconsider sentence, and the that the trial court ntence imposed is unconstitutionally excessive. The Eighth Amendment to the United States Constitut n and Article I, § 20, of the Louisiana Constitution prohibit the imposition o ruel or excessive punishment. Although a sentence falls within statutory limits, t may be excessive. 1 The victim is referred to by her initials. See La. R.S. 46: 1844(W). 2 State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A se ence is considered constitutionally excessive if it is grossly disproportionate to t seriousness of the offense or is nothing more than a purposeless and needless i iction of pain and suffering. A sentence is considered grossly disproportionat if, when the crime and punishment are considered in light of the harm done to ciety, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1st Ci . 515195), 655 So.2d 448, 454. The trial court has great discretion in imposing a entence within the statutory limits, and such a sentence will not be set aside s excessive in the absence of a manifest abuse of discretion. State v. Holts, 5 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Proced e article 894.1 sets forth the factors for the trial court to consider when imposing s ntence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, t e record must reflect the trial court adequately considered the criteria. State v. Br n, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569. The articulation of the factual basis for a sentence is th goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its pro sions. Where the record clearly shows an adequate factual basis for the sentenc mposed, remand is unnecessary even where there has not been full compliance ith La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). T trial judge should review the defendant's personal history, his prior criminal re rd, the seriousness of the offense, the likelihood that he will commit another cri , and his potential for rehabilitation through correctional services other than con v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate r 1 ement. See State iew of a sentence, the relevant question is whether the trial court abused i s broad sentencing discretion, not whether another sentence might have been mor appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curi In the instant matter, the defendant, facing a maximum entence of twenty- 3 five years at hard labor, was sentenced to twenty years at hard labor. See La. R.S. 14:8 l(H)(2). The defendant argues in his brief that, since he is a first-time felony offender with no prior convictions and since his asking C.G. to touch him was not the worst kind of indecent behavior with juveniles, his sentence is excessive. It is clear in its reasons for sentence that the trial court thoroughly considered La. C.Cr.P. art. 894.1, as well as the above-mentioned issues raised by the defendant. In arriving at an appropriate sentence, the trial court was clearly 2 cognizant of the emotional and psychological damage of C.G. caused by the defendant: The trial court stated in pertinent part: This Court does recall this trial vividly. I recall a twelve yearold [sic] who was, I believe thirteen at the time that she was called to the Court. I recall her testifying from start to finish, so ashamed that she had her face buried in her t-shirt [sic]. She turned around facing that wall, answering every single question. This Court recognizes that she's at further risk because of your actions to satisfy your own sexual desires. She's at further risk for suicide, alcohol and drug abuse, trust issues. She is much more likely than her peers to be damaged for the rest of her life. For those reasons, although, there may not have been touching, it was certainly your desire that she would touch your private parts. This Court has reviewed Article 894.1, and in fashioning this sentencing, I find specifically that there's an undue risk that during the period of a suspended sentence or probation, the defendant would commit another crime. The defendant is in need of correctional treatment or custodial environment that can be best provided most effectively by his commitment to an institution, that a lesser sentence would deprecate the seriousness of the defendant's crime. Specifically, the defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resisting, due to extreme youth. The record before us clearly established an adequate factual basis for the 2 Just prior to sentencing, C.G.'s father made an impact statement in open court, providing in part: He took her innocence. Do you know what it's like waking up at night hearing her scream? That's what you've done. Not being able to hold her because she's scared of me because she sees you every time she looks at me, huh? * * * * * She's had nightmares. She's went to rape counseling on account of you. . . . I've stayed up night after night after night after night with her because of you. 4 sentence imposed. C.G. testified at trial that she was close to the defendant's family, especially their daughter, whom C.G. felt "was like my sister." C.G. also thought of the defendant as a "second father," and the defendant used this relationship to exploit her trust. See State v. Kirsch, 2002-0993 (La. App. 1st Cir. 12/20/02), 836 So.2d 390, 395-96, writ denied, 2003-0238 (La. 9/5/03), 852 So.2d 1024. Considering the trial court's review of the circumstances and the nature of the crime, we find no abuse of discretion by the trial court. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not err in denying the motion to reconsider sentence. These assignments of error are without merit. CONCLUSION For the foregoing reasons, the defendant's conviction and sentence are affirmed. CONVICTION AND SENTENCE AFFIRMED. 5
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