STATE OF LOUISIANA v. JOHN TULLIS HELLIER (2022)

The defendant, John Tullis Hellier, was charged by bill of information with indecent behavior with a juvenile under the age of thirteen (count one), a violation of La. R.S. 14:81(H)(2), and indecent behavior with a juvenile (count two), a violation of La. R.S, 14:81(A)(1). He pled not guilty on each count. After a trial by jury, he was found guilty of the responsive offense of attempted indecent behavior with a juvenile under the age of thirteen on count one, a violation of La. R.S. 14:27 and La. R.S. 14:81(H)(2), and was found guilty as charged on count two. The trial court denied his motions for post-verdict judgment of acquittal and for new trial. The trial court sentenced the defendant to twelve years and six months of imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, and to seven years of imprisonment at hard labor on count two, to be served consecutively. The trial court later denied his motion to reconsider sentence. The defendant now appeals, assigning error to the constitutionality of the sentences. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

S.A.¹ (the victim in count one) was nine years old at the time of the offense, forensic interview, and trial. S.A. identified the defendant as the person she used to call “Pawpaw John” and confirmed that she would visit him at his home every once in a while. S.A. recalled going to the defendant's residence with her aunt, K.T. (the victim in count two). S.A. testified that she did not, however, want to ever go back to the defendant's house because of “what he did to me.” On January 27, 2021, during the recorded forensic interview which took place at the Terrebonne Children's Advocacy Center (CAC) and was played for the jury at trial, S.A. described the defendant's actions during an overnight visit that month. Specifically, S.A. said that she gave “Pawpaw John” a kiss on the cheek when she got up in the morning, adding, “he said 'give me a longer one,”' but she “stepped away.” She stated that later that night, the defendant grabbed her around the waist, “pulled me up” closer to him, put his arm “in the middle” of her legs, and “forceded [sic] me to try and get on top of him.” The victim also stated that the defendant asked her if it felt good when he touched her, and she did not respond. She further stated that the defendant was “watching a nasty movie” on YouTube on his computer. In further describing the movie, S.A. said “it was two girls and one boy” and stated that they were “naked.” She further used such phrases as “kissing this boy's private,” “showing her boobies,” “showing his private,” and “being nasty.” She stated that she went outside and told her aunt (K.T.) what happened after the incident.

K.T. was twenty-four years old at the time of the trial. She testified that when she was five years old, her father abandoned her family, and they went to live with her grandfather (the defendant) and grandmother. K.T. testified at trial regarding incidents that occurred when she was between thirteen and sixteen years old. She specifically noted that during one incident after school, when she was taking a nap in her bedroom, she had a feeling or became startled. When she lifted her head up, she saw her grandfather, the defendant, standing in the doorway completely nude while masturbating. She stated that she must have scared the defendant, because he “ran off” after she saw him.

When asked if she remembered anything else the defendant would do during that time period, K.T. testified that the defendant would come up behind her and touch her butt and try to slip his hand between her legs, touching her private areas on top of her clothes. She noted that the defendant would “make sexual advances and dirty jokes that are too inappropriate[.]” She further stated, “Just like touching and asking let me touch or let me see in reference to like my body.” She noted that when S.A. told her what the defendant did to her, it sounded familiar.²

Prior to trial, the defendant participated in a police interview which was recorded, transcribed, and presented to the jury during the trial.³ During the interview, when asked about the incident with S.A., the defendant first denied it but then, after being told that a search warrant would be obtained, admitted to watching porn on the day in question. He stated that S.A. asked to sit with him that day, in his chair that had a board attached for his computer, and that he allowed her to do so. However, he could not operate his computer while S.A. was sitting with him, so he told her that she had to get out of the chair. He stated that S.A. was “wedged up” in the chair and that he put his hand under her leg to help her get out. After repeatedly denying it, he ultimately admitted to asking S.A., after he touched her leg, if it felt good. When asked if he may have had a thought in his mind as to whether S.A. felt good about him coming close to touching her vagina, he responded, “Only a split second if it was.”

Regarding the accusation by K.T. that he masturbated in her presence while nude, he said he cheated on his wife around 1986 and, as a result, “she cut me off.” He stated he had not had sex with his wife for years and added, “So I guess I got horny that night.” The defendant also admitted to touching K.T. on the butt when she was younger, stating it was “just a fulfillment of of [sic] a need” and that he was “sexually frustrated.” The defendant further admitted, “I'm still sexually frustrated. I'm gonna gonna [sic] be until the day I die.”⁴

The defendant also testified at trial. Regarding S.A.'s claims, similar to his pretrial statements, the defendant explained that she had asked to sit in his “easy chair” with him “so that she could play on the computer,” He noted that he had a board across his chair on which his laptop and mouse were sitting. He stated that S.A. managed to squeeze behind the laptop board to get into his chair, but it was such a “tight fit[,]” he told her she would have to get out. He noted that when S.A. tried to stand up, she was able to free her right leg, but her left leg was stuck, so he put his hand underneath her leg (by her knee) and lifted her up.

Regarding K.T.'s allegations, the defendant testified that K.T. had behavioral issues growing up and stated that she wanted to get rid of him because she wanted his house. The defendant testified that K.T.'s claims were complete lies, noting that he has had erectile dysfunction for twenty years and that, therefore, her masturbation claim was impossible. After admitting to giving K.T. “a little pop on the behind” one time, the defendant explained he was “just being mischievous ․ No big deal.” Regarding the masturbation claim, he admitted, “I appeared in the room nude ․ Because I was sexually frustrated” and ultimately admitted to touching his penis while standing nude in the room.⁵

ASSIGNMENT OF ERROR

In the sole assignment of error, the defendant argues the sentences are excessive. He notes that he is an elderly man with heart disease and has shown remorse for his actions. While he states that he willingly accepts responsibility for his actions, he argues that the nineteen-year combined sentence in this case shocks one's sense of justice and is unconstitutional. The defendant notes that he does not have an extensive criminal history, adding that this would in fact be his first felony offense. He also notes that he was his family's sole source of financial support. Further, the defendant notes that at the hearing on the motion to reconsider sentence, the trial court failed to comment on mitigating factors such as his age, medical condition, or the possibility of him receiving rehabilitative treatment. The defendant argues that imposing a nineteen-year sentence on a seventy-four-year-old would amount to a life sentence, makes no measurable contribution to acceptable penal goals, and is therefore nothing more than a needless imposition of pain and suffering. Finally, the defendant avers that a sentence near the maximum would indicate that he is the worst of offenders, which he argues would be “grossly incorrect.”

The State argues the trial court did not abuse its discretion in imposing maximum sentences, noting that the defendant has been abusing vulnerable young children for years without consequence. The State notes that the trial court heard about at least three victims, including two of the defendant's own grandchildren. Further, the State notes that the inappropriate behavior involving K.T. was continuous, occurring on a regular basis. Noting that the defendant accused K.T. of lying and minimized his actions, the State contends the defendant's testimony was not remorseful. Finally, the State argues that based on the defendant's long-term, repeated behavior, the trial court correctly considered him one of the worst offenders among those accused of indecent behavior with juveniles.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979); State v. Honea, 2018-0018 (La. App. 1 Cir. 12/21/18), 268 So.3d 1117, 1120, writ not considered, 2019-00598 (La. 8/12/19), 279 So.3d 915. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Brown, 2002-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569. Remand is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La. 1982); State v. Graham, 2002-1492 (La. App. 1 Cir. 02/14/03), 845 So.2d 416, 422.

Pursuant to La. R.S. 14:81(H)(2), whoever commits the crime of indecent behavior with a juvenile under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years, and at least two years of the sentence shall be served without benefit of parole, probation, or suspension of sentence. Pursuant to La. R.S. 14:27(D)(3), for an attempted offense, the offender shall be imprisoned for a period of time not to exceed one-half of the longest term of imprisonment prescribed for the offense attempted. Therefore, the sentencing range for count one, attempted indecent behavior with a juvenile under the age of thirteen, is zero to twelve and one-half years imprisonment at hard labor, with at least two years of any sentence imposed to be served without benefit of parole, probation, or suspension of sentence. Pursuant to La. R.S. 14:81(H)(1), whoever commits the crime of indecent behavior with a juvenile shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both. Thus, the trial court imposed maximum terms of imprisonment in this case but did not impose the discretionary fine of up to five thousand dollars on count two.

Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. However, the jurisprudence indicates that maximum, or nearly maximum, terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. State v. Kirsch, 2002-0993 (La. App. 1 Cir. 12/20/02), 836 So.2d 390, 394-395, writ denied, 2003-0238 (La. 9/5/03), 852 So.2d 1024.

In State v. Riley, 2015-0142 (La. App. 1 Cir. 9/21/15), 2015 WL 5547489, *1, writ denied, 2015-1940 (La. 11/15/16), 209 So.3d 788, the defendant challenged his sixty-year sentence (with twenty-five years to be served without the benefit of parole, probation, or suspension of sentence) for sexual battery of a victim under the age of thirteen and his twenty-year sentence (with two years to be served without the benefit of parole, probation, or suspension of sentence) for indecent behavior with a juvenile under the age of thirteen. The defendant contended that because of his advanced age and fragile health, the sentences exceeded his life expectancy and were unconstitutionally excessive. Riley, 2015 WL 5547489, at *7. The trial court, in applying Article 894.1, noted that there was an undue risk that the defendant would commit another crime during any period of a suspended sentence or probation, that the statutory scheme does not provide for suspension of sentence, that the defendant was in need of correctional treatment or a custodial environment that could be most effectively met by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of the crime. Furthermore, the trial court noted that the victim was in an especially vulnerable position because of his age and socioeconomic status and that the defendant chose to prey on him because of those factors. Finally, the trial court noted that the defendant had a prior conviction for a very similar offense, highlighting his propensity to target boys for his own sexual gain. In finding no abuse of discretion, this court noted that while those sentences were severe, they were not grossly disproportionate to the severity of the offenses. Riley, 2015 WL 5547489, at *8-9.

Herein, prior to imposing the sentences, the trial court noted that it presided over the trial, heard the victims' testimony, saw their mannerisms, and found them to be very credible. The trial court noted that the defendant admitted at trial to perpetrating sex offenses, including an act on a male juvenile, further noting that the State could have tried that issue in addition to the instant offenses. The trial court also noted that it found the defendant's police interview and trial testimony to be very damaging.

Based on our review of the trial transcript, the CAC interview of S.A., and the defendant's police interview, we agree with the trial court's assessment. The victims in this case were the defendant's granddaughter and another child who considered him a grandfather. Because of the defendant's violation of a position of trust with two children, we do not find that the imposition of the maximum or near maximum sentences is excessive. Moreover, while the defendant claims on appeal that he willingly accepts responsibility for his actions, we note that the defendant repeatedly denied committing any acts of wrongdoing before minimizing his actions, as he ultimately made admissions. Further, although the defendant faced only one charge for his actions involving K.T., she endured continuous, repeated acts of an inappropriate nature. Finally, we note that the offenses involve separate victims with acts by the defendant that spanned over distinct time periods. We find no abuse of discretion in this case by the trial court in sentencing the defendant as one of the worst offenders whose conduct constituted the worst of offenses. Thus, the trial court did not err in denying the defendant's motion to reconsider sentence. We find no merit in the sole assignment of error,

CONVICTIONS AND SENTENCES AFFIRMED.

FOOTNOTES

1.   S.A. was born on December 13, 2011. As noted above, S.A. was nine years old when the offense occurred, on or about January 23, 2021, when she was interviewed later that month on January 27, 2021, and when she testified at the trial later that year on November 17, 2021. K.T. was born on January 20, 1997, and was a teenager when the offense occurred. Herein, we will refer to the victims by initials only. See La. R.S. 46:1844(W).

2.   K.T. also testified about an incident involving the defendant's grandson, her younger brother who died in 2017 from a falling accident. Specifically, when she was between the ages of nine and eleven years old, as she was walking down the hallway, she saw the defendant laying on top of the lower half of her brother's body. She testified that she could not see and did not know specifically what was occurring, stating, “I just figured something nasty was going on that shouldn't take place.”

3.   Prior to questioning, the defendant was advised of his rights and signed a waiver of rights form. Specifically, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he was informed of his right to remain silent, that anything he said may be used against him, and that he had a right to retained or appointed counsel.

4.   When asked what he did to his grandson when he was a baby, the defendant said, “Just kind of fondled him a little bit.” When asked how he fondled his grandson, the defendant said, “Through his little panty things.” When asked where on his grandson's body, the defendant replied, “Well his bird.” The defendant denied performing oral sex on his grandson or being bisexual, stating, “Just curious.” He stated that he “thought” fondling his grandson would give him sexual gratification, but “it didn't pan out.”

5.   At trial, after being confronted with statements made during his pretrial interview, the defendant also admitted to once touching his grandson's penis, stating, “Well, I was just playing with him, I wasn't trying to be sexual with him.” He testified he was curious, “for the moment[,]” but it did “[n]othing” for him.

LANIER, J.