                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of October, 2015, are as follows:



PER CURIAMS:


2014-K -1801      STATE OF LOUISIANA v. WILLIAM J. GRAHAM (Parish of St. Tammany)
                  (Molestation of a Juvenile)

                  For the reasons above, the matter is remanded to the trial court
                  to enter a post-verdict judgment of acquittal.
                  REVERSED AND REMANDED.

                  GUIDRY, J., dissents.
10/14/15

                         SUPREME COURT OF LOUISIANA

                                 NO. 2014-K-1801

                             STATE OF LOUISIANA

                                     VERSUS

                             WILLIAM J. GRAHAM

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF ST. TAMMANY


PER CURIAM:

      This prosecution presents a myriad of problems. Defendant, William J.

Graham, was indicted with one count of aggravated incest. After defendant rested

his case at trial and it became apparent that the State had failed to carry its burden

of proof on this charge, the District Court permitted the State to add as a

responsive verdict a different offense—that of molestation of a juvenile—than the

one which had been the focus of trial and which contains an element not

necessarily required by the original charge. Although neither the State nor the

defendant presented any evidence concerning this new element, the jury found the

defendant guilty of one of count of molestation of a juvenile, and the trial court

sentenced him to serve 50 years imprisonment at hard labor with the first 25 years

to be served without parole eligibility. The court of appeal affirmed the conviction

and sentence. State v. Graham, 13-1806 (La. App. 1 Cir. 7/3/14), 148 So.3d 601.

Because we find that molestation of a juvenile is not a lesser included offense of

the charge of aggravated incest and because defendant‘s trial was rendered

fundamentally unfair when the District Court permitted the State to add ―guilty of

molestation of a juvenile‖ as a responsive verdict even though defendant had no

opportunity to mount a defense concerning an additional essential element of this

                                          1
offense, we reverse and vacate the defendant‘s conviction and sentence, and we

remand to the District Court for entry of a post-verdict judgment of acquittal.

       By indictment, the State charged defendant with aggravated incest, in

violation of former Louisiana Revised Statute 14:78.1. During the span of time

alleged in the indictment,1 the statute defined that offense as follows:

              A. Aggravated incest is the engaging in any prohibited act
       enumerated in Subsection B with a person who is under eighteen
       years of age and who is known to the offender to be related to the
       offender as any of the following biological, step, or adoptive
       relatives: child, grandchild of any degree, brother, sister, half-
       brother, half-sister, uncle, aunt, nephew, or niece.

               B. The following are prohibited acts under this Section:

              (1) Sexual intercourse, sexual battery, second degree sexual
       battery, carnal knowledge of a juvenile, indecent behavior with
       juveniles, pornography involving juveniles, molestation of a juvenile,
       crime against nature, cruelty to juveniles, parent enticing a child into
       prostitution, or any other involvement of a child in sexual activity
       constituting a crime under the laws of this state.

              (2) Any lewd fondling or touching of the person of either the
       child or the offender, done or submitted to with the intent to arouse or
       to satisfy the sexual desires of either the child, the offender, or both.

(emphasis added). After both the State and the defendant rested their cases, it

became evident that the State had failed to present sufficient evidence concerning a

relationship of affinity—that of, step-siblings—between the defendant and the

alleged victim.2 Over defendant‘s objection, the District Court permitted the State

to add as a responsive verdict the charge of molestation of a juvenile, a violation

of Louisiana Revised Statute 14:81.2. During the relevant period of time, this

statute defined molestation of a juvenile, as follows:


       1
          The State alleged that the crime was committed between October 1, 2007, and January
17, 2009.
        2
          At the time of trial, the defendant and the alleged victim were step-siblings. Although
the indictment alleged that the charged offense occurred between October 1, 2007, and January
17, 2009, the parents of the defendant and the purported victim were not married until October
12, 2008. The State offered no evidence that the crime occurred after the marriage and, therefore,
failed to carry its burden on an essential element of this offense.
                                                2
      Molestation of a juvenile is the commission by anyone over the age of
      seventeen of any lewd or lascivious act upon the person or in the
      presence of any child under the age of seventeen, where there is an
      age difference of greater than two years between the two persons, with
      the intention of arousing or gratifying the sexual desires of either
      person, by the use of force, violence, duress, menace, psychological
      intimidation, threat of great bodily harm, or by the use of influence by
      virtue of a position of control or supervision over the juvenile. Lack of
      knowledge of the juvenile's age shall not be a defense.

Critically, molestation of a juvenile requires proof of the additional element that

the act was accomplished ―by the use of force, violence, duress, menace,

psychological intimidation, threat of great bodily harm, or by the use of influence

by virtue of a position of control or supervision over the juvenile.‖ See La. R.S.

14:81.2(A)(1) (emphasis added). Notably, however, with the court‘s approval, the

State affirmatively limited its theory of the case to proof of ―the use of influence by

virtue of a position of control or supervision over the juvenile.‖ See La. R.S.

14:81.2(A) (emphasis added).

      The District Court instructed the jury that aggravated incest could be

accomplished by ―sexual battery; indecent behavior with juveniles; molestation of

a juvenile; cruelty to juveniles; or, any lewd fondling or touching of the person of

either the child or the offender, done or submitted to with the intent to arouse or to

satisfy the sexual desires of either the child, the offender, or both.‖ The court

further instructed the jury that molestation of a juvenile

      is the commission, by a person over the age of seventeen, of a lewd or
      lascivious act upon the person of, or in the presence of, any child
      under the age of thirteen, when the offender has the specific intent to
      arouse or gratify the sexual desire of either person, and when the act is
      accomplished by the use of influence by virtue of a position of control
      or supervision over the juvenile, and when the offender has a position
      of control or supervision over the juvenile.

Finally, the court instructed the jury, over defendant‘s objection, that if the jury

was not convinced defendant was guilty of aggravated incest, it could find him

guilty of the offense of molestation of a juvenile, which required the jury to find,

                                           3
among other elements, ―that defendant used influence by virtue of a position of

control or supervision over the juvenile to accomplish the act.‖

      Evidently suspecting defendant might be acquitted after it failed to prove the

offense occurred when defendant and the alleged victim shared a relationship of

affinity, the State attempted to relieve itself of its burden of proving the element of

affinity by shifting its focus to arguing it had proven the additional element

required to convict a defendant of molestation of a juvenile—that is, that the

molestation was committed ―by the use of influence by virtue of a position of

control or supervision.‖ La. R.S. 14:81.2. No voir dire was conducted regarding

―control or supervision.‖ It was not mentioned in opening remarks. No evidence

was presented regarding ―control or supervision‖ at trial. Indeed, no evidence

could be adduced on this new element once it became central to the case because

both sides had rested by the time the court permitted the State to add this new

offense as a responsive verdict. All that remained was for counsel to present

closing arguments, for the court to charge the jury, and for the jury to deliberate.

Although arising in a readily distinguishable and even more egregious context, the

U.S. Supreme Court‘s comment in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct.

514, 517 (1948) is apropos: ―It is as much a violation of due process to send an

accused to prison following conviction of a charge on which he was never tried as

it would be to convict him upon a charge that was never made.‖

      Because Louisiana Code of Criminal Procedure article 814 did not

enumerate any legislatively authorized responsive verdicts for aggravated incest,

Louisiana Code of Criminal Procedure article 815 applies. This article provides:

      In all cases not provided for in Article 814, the following verdicts are
      responsive:

      (1) Guilty;


                                          4
      (2) Guilty of a lesser and included grade of the offense even though
      the offense charged is a felony, and the lesser offense a misdemeanor;
      or

      (3) Not Guilty.

Lesser and included offenses are those in which all of the essential elements of the

lesser offense are also essential elements of the greater offense charged. See State

v. Porter, 93-1106 (La.7/5/94), 639 So.2d 1137; State v. Dufore, 424 So.2d 256

(La.1982); State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982). This Court

has further clarified:

      Stated another way, ―if any reasonable state of facts can be imagined
      wherein the greater offense is committed without perpetration of the
      lesser offense, a verdict for the lesser cannot be responsive.‖ State v.
      Simmons, 422 So.2d 138, 142 (La.1982) (quoting State v. Poe, 214
      La. 606, 38 So.2d 359, 363 (1948) (on rehearing)). Consequently,
      evidence which would support a conviction of the charged offense
      would necessarily support a conviction of the lesser and included
      offense. Dufore at 258; Elaire, at 248–49.

State v. Simmons, 01-0293, p. 4 (La. 5/14/02), 817 So.2d 16, 19.

      In State v. Ardoin, 08-1504 (La. App. 1 Cir. 2/13/09), 6 So.3d 237, the First

Circuit found, as it did in the present case, that molestation of a juvenile is a lesser

and included grade of the offense of aggravated incest, reasoning:

      Molestation of a juvenile is clearly a lesser and included offense because it
      does not require proof of any element that is not required in the charged
      offense of aggravated incest. Molestation of a juvenile is one of the listed
      prohibited acts in the aggravated incest statute.

Ardoin, 08-1504 at 5, 6 So.3d at 241. This Court reversed Ardoin on other

grounds, see State v. Ardoin, 09-0578, p. 5 (La. 5/11/10), 35 So.3d 1065, 1068,

and the question of whether molestation of a juvenile is a lesser and included grade

of the offense of aggravated incest did not arise again until the present case.

      The Court of Appeal erred both in Ardoin and in the present case in finding

that because molestation of a juvenile is enumerated as one of many means by

which aggravated incest can be committed it is necessarily a lesser and included

                                           5
grade of the offense. Because aggravated incest can be committed in numerous

ways, only one of which is molestation of a juvenile, the evidence sufficient to

support conviction of aggravated incest may not necessarily support conviction for

molestation of a juvenile. It might instead, depending on the circumstances of the

case, support a conviction for sexual battery, carnal knowledge, indecent behavior,

and so on. Stated another way, many reasonable scenarios can be imagined

wherein the greater offense is committed without perpetration of the lesser offense.

Accordingly, molestation of a juvenile is not a lesser and included grade of

aggravated incest and the trial court erred in including ―guilty of molestation of a

juvenile‖ among the responsive verdicts. Cf. State v. Jackson, 04-2863, p. 12 n.2

(La. 11/29/05), 916 So.2d 1015, 1022 (finding that aggravated assault with a

firearm is not a lesser and included grade of the offense of attempted first degree

murder because ―assault by firearm . . . is not necessarily required in every case of

attempted first degree murder.‖). Furthermore, it is not clear in what sense

molestation can be considered a lesser offense when compared to aggravated

incest, at least in the present case. When the victim is under the age of 13 years,

both offenses are punishable by imprisonment at hard labor for not less than 25

years and not more than 99 years with at least 25 years of the sentence to be served

without parole eligibility. See La.R.S. 14:78.1(D)(2) (repealed by 2014 La. Acts

601); La.R.S. 14:81.2(E)(1).3

       Moreover, the State failed to carry its burden relative to the belated

molestation of a juvenile charge. In State ex rel. Elaire v. Blackburn, 424 So.2d

246 (La. 1982), this Court stated:

              The 1982 amendment adding Section C to Article 814 now
       gives the trial judge discretion, on motion of either side, to exclude a
       3
          As a technical aside, the legislature in 2008 amended the maximum penalty from life
imprisonment to 99 years as to both aggravated incest and molestation of a juvenile, when the
victim is under the age of 13 years. See 2008 La. Acts 33 and 2008 La. Acts 672, respectively.
                                              6
      responsive verdict which is not supported by the evidence. Therefore,
      even if the offense is legislatively designated as responsive by Article
      814, the defendant may timely object to an instruction on a responsive
      verdict on the basis that the evidence does not support that responsive
      verdict. If the court overrules the objection and the jury returns a
      verdict of guilty of the responsive offense, the reviewing court must
      examine the record to determine if the responsive verdict is supported
      by the evidence and may reverse the conviction if the evidence does
      not support the verdict. However, if the defendant does not enter an
      objection (at a time when the trial judge can correct the error), then
      the reviewing court may affirm the conviction if the evidence would
      have supported a conviction of the greater offense, whether or not the
      evidence supports the conviction of the legislatively responsive
      offense returned by the jury.

Id. at 251 (footnote omitted). Elaire involved the exclusion of legislatively

authorized responsive verdicts, as opposed to the wholesale importation of a new

responsive verdict thrown in at the eleventh hour; nevertheless, Elaire is instructive

here. Defendant objected to the inclusion of ―guilty of molestation of a juvenile‖ as

a responsive verdict. A review of the evidence presented at trial shows that it does

not support that responsive verdict. Specifically, the evidence, when viewed in the

light most favorable to the state under the standard of Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), failed to prove defendant committed

the act ―by the use of influence by virtue of a position of control or supervision

over the juvenile,‖ as required by La.R.S. 14:81.2 under the theory of the case the

State elected.

      It is not surprising the State failed to carry its burden of proving this element

considering that it was not apparent the State ever intended to prove this element,

that is, until such time as its theory of the case suddenly changed after the

defendant rested his case. As a result, the State was relegated to arguing, in its

rebuttal remarks, that the jury could infer defendant exercised control or

supervision over the alleged victim from defendant‘s status as an older stepbrother.

The jurisprudence, however, has never accepted status alone as proof of control or


                                          7
supervision. Instead, consistent with the language of Revised Statute 14:81.2 which

requires not just the potential for influence but its use, Louisiana courts have

required proof of specific acts constituting an exertion of control or supervision.

See, e.g., State v. A.B.M., 10-0648, p. 7 (La. App. 3 Cir. 12/8/10), 52 So.3d 1021,

1026 (emphasizing that defendant was not just the victim‘s biological father, who

was divorced from the victim‘s mother, but that the victim‘s mother specifically

placed the victim in his care while she was in the hospital with her new husband,

during which time defendant performed caretaking functions); see also State v.

Rideaux, 05-0446, p. 9 (La. App. 3 Cir. 11/2/05), 916 So.2d 488, 495 (noting that

―there was no testimony that Defendant ever baby-sat the victims alone without his

wife present or that the molestation took place while he was baby-sitting‖); State v.

Forbes, 97-1839, pp. 7–8 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, 428 (finding

there was no evidence that an adult male visitor to the home of the grandmother

who babysat the victim could exercise any control or supervision over the victim);

State v. Ragas, 607 So.2d 967, 973 (La. App. 4 Cir. 1992) (finding, although

defendant had supervised the victim in the past, there was no evidence defendant

was babysitting the victim on the day of the incident and the victim was under no

constraints to remain with defendant, her uncle, that day).

      Here, the Court of Appeal found that the jury might have believed defendant

touched the victim while checking to see if she had urinated. The Court of Appeal

concluded that this could have provided a basis for the jury to reasonably find he

was engaged in caretaking and, therefore, exercising control or supervision.

Graham, 13-1806 at pp. 5–7, 148 So.3d at 606–07. The jury, however, must have

rejected this version of the facts when it found defendant guilty of molestation

because incidental contact with the victim‘s genitalia for purposes of caretaking

would be unlikely to constitute ―a lewd or lascivious act,‖ which is an essential

                                          8
element of the crime of molestation. Cf. R.S. 14:43.1(B) (establishing as a defense

to a charge of sexual battery that the touching was a part of ―normal medical

treatment or normal sanitary care‖). Because the State failed to present sufficient

evidence to support the late added responsive verdict of ―guilty of molestation of a

juvenile,‖ to which defendant objected, defendant‘s conviction on this charge must

be vacated.

      The jury was given a full opportunity to return a verdict of ―guilty of

aggravated incest‖ but instead returned a verdict of ―guilty of molestation of a

juvenile,‖ which the jury was instructed was a lesser degree of the offense charged.

Louisiana Code of Criminal Procedure article 598(A) provides that ―[w]hen a

person is found guilty of a lesser degree of the offense charged, the verdict or

judgment of the court is an acquittal of all greater offenses charged in the

indictment and the defendant cannot thereafter be tried for those offenses on a new

trial.‖ See also Price v. Georgia, 398 U.S. 323, 328–30, 90 S.Ct. 1757, 1761, 26

L.Ed.2d 300 (1970) (―[T]his Court has consistently refused to rule that jeopardy

for an offense continues after an acquittal, whether that acquittal is express or

implied by a conviction on a lesser included offense when the jury was given a full

opportunity to return a verdict on the greater charge.‖) (footnote omitted). In State

v. Mayeux, 498 So.2d 701 (La. 1986), this Court nevertheless held that the jury‘s

return of an illegal verdict for attempted aggravated battery, purportedly a lesser

and included offense listed by the court as a responsive verdict but a non-crime

under Louisiana law, ―operate[d] neither as a conviction nor acquittal‖ for double

jeopardy purposes. Id. at 705. Therefore, the Court in Mayeux concluded that ―the

appropriate action is to set aside the conviction and remand for retrial.‖ Id.

      Defendant in Mayeux, however, subsequently obtained habeas relief from a

federal district court. Mayeux v. Belt, 737 F.Supp. 957 (W.D. La. 1990). That

                                           9
court, relying on Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d

629 (1962), found:

      Even though the verdict of the jury at Mayeux's first trial could operate
      neither as a conviction nor acquittal of the non-crime of ―attempted
      aggravated battery‖, there is no reason why it could not operate as an
      acquittal of the charge of aggravated battery, because the judge's instructions
      so directed. Even though the judge's instructions concerning a possible
      verdict of ―attempted aggravated battery‖ were egregiously erroneous, that
      judicial error does not give the State a basis for retrying Mr. Mayeux.

Mayeux, 737 F.Supp. at 961–62. Regardless of whether this Court‘s decision in

Mayeux remains viable, defendant here was not found guilty of a non-crime. He

was convicted of molestation of a juvenile, a crime established in Revised Statute

14:81.2.

      In State v. Campbell, 95-1409 (La. 3/22/96), 670 So.2d 1212, this Court

found that a trial court‘s error in charging a jury they could find defendant guilty of

jury tampering or attempted jury tampering ―rendered the verdicts insolubly

ambiguous‖ because ―the offense of jury tampering encompasses the attempt to

influence jurors for corrupt purposes.‖ Campbell, 95-1409 at pp. 2–5, 670 So.2d at

1213–14. In the present case, however, there is no such ambiguity. Given the

state‘s failure to prove familial affinity between the defendant and the alleged

victim at the time of the incident—an essential element of aggravated incest—the

jury implicitly acquitted defendant of that charge by returning a verdict of guilty of

molestation of a juvenile. The jury‘s implicit acquittal is a bar to any subsequent

prosecution for aggravated incest. See Price v. Georgia, supra; see also Green v.

United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223–24, 2 L.Ed.2d 199 (1957)

(verdict of acquittal is final, ―ending a defendant‘s jeopardy, and even when ‗not

followed by any judgment, is a bar to a subsequent prosecution for the same

offence‘‖) (quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195,

41 L.Ed. 300 (1896)).

                                          10
      The proceedings were rendered fundamentally unfair when the state was

permitted to add ―guilty of molestation of a juvenile‖ as a responsive verdict after

all evidence had been presented. Molestation of a juvenile is not a lesser and

included grade of the offense of aggravated incest because the evidence sufficient

to support conviction of aggravated incest may not necessarily support conviction

for molestation of a juvenile. Furthermore, defendant objected to the addition of

the responsive verdict and the evidence presented at trial is insufficient to support

the jury‘s return of that verdict. Nonetheless, the jury‘s return of what it was

instructed was a lesser responsive verdict is an implied acquittal of the charge of

aggravated incest, which ended defendant‘s jeopardy and is a bar to a subsequent

prosecution.

      For the reasons above, the matter is remanded to the trial court to enter a

post-verdict judgment of acquittal.



REVERSED AND REMANDED




                                         11
10/14/15

                        SUPREME COURT OF LOUISIANA

                              NO. 2014-K-1801

                            STATE OF LOUISIANA

                                 VERSUS

                            WILLIAM J. GRAHAM

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF ST. TAMMANY


Guidry, J., dissents.
