STATE v. KELLY (2002)

Court of Appeal of Louisiana,Fourth Circuit.

STATE of Louisiana v. Tracy L. KELLY.

No. 2001-KA-2173.

Decided: December 11, 2002

(Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY).

Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee. Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

ON REMAND FROM THE SUPREME COURT OF LOUISIANA

This case is on remand from the Louisiana Supreme Court, with instructions for this Court to reconsider its previous opinion in this matter in light of the Supreme Court's decision in State v. Little, 2001-2218 (La.3/28/02), 814 So.2d 547.

This Court originally held that the conviction for attempted solicitation for a crime against nature was invalid, because attempted solicitation was a non-responsive verdict to the crime charged. However, in State v. Little, supra, the Supreme Court held that attempted crime against nature is a valid responsive verdict to the charge of crime against nature under La.Rev.Stat. 14:89(A)(2). As in Little, Mr. Kelly negotiated a deal with the undercover officer to perform fellatio for $20. Thus, his solicitation for the crime against nature allowed the district court judge to convict him of the lesser offense of attempted solicitation of crime against nature. See La.Rev. Stat. 14:27(C).

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

DAVID S. GORBATY, Judge.

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