Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #050
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 18th day of October, 2017, are as follows:
PER CURIAM:
2016-K -0750 STATE OF LOUISIANA v. FAHIM A. SHAIKH (Parish of Beauregard)
While it may be true that the sentence is longer than those
imposed in other cases, this fact alone does not demonstrate a
manifest abuse of discretion on the part of the trial court.
Moreover, it is important to note that while defendant received
the maximum sentence, the trial court suspended 40% of that
sentence. Thus, defendant will likely serve far less than the
five years imposed. Under the circumstances, the sentence is an
acceptable exercise of the trial court’s broad discretion.
Therefore, we reinstate the sentence for simple kidnapping as
originally imposed. Because defendant argued on appeal that his
sentence for indecent behavior is excessive, which issue the
court of appeal did not reach because it vacated the underlying
conviction, see Shaikh, 15-0687, p. 24, 188 So.3d at 425
(“Shaikh’s assignment of error with respect to the sentence
imposed for indecent behavior of a juvenile is moot given our
reversal and vacating of same.”), we remand this matter to the
court of appeal for consideration of this pretermitted claim.
REVERSED AND REMANDED
10/18/17
SUPREME COURT OF LOUISIANA
No. 16-K-0750
STATE OF LOUISIANA
VERSUS
FAHIM A. SHAIKH
ON WRIT OF CERTIORARI TO THE COUT OF APPEAL,
THIRD CIRCUIT, PARISH OF BEAUREGARD
PER CURIAM
The State charged defendant with simple kidnapping, La.R.S. 14:45, and
indecent behavior with a juvenile, La.R.S. 14:81. The charges arose from an
incident involving 13-year-old A.G. on April 17, 2014, after she ran away from
home while her mother was out. A.G. left the house on foot with a suitcase and
began walking along Highway 171 in Beauregard Parish toward a friend’s house.
Defendant approached A.G. in his car and offered her a ride. He took her to Dairy
Queen and bought food for her. Then he took her to his apartment.
According to A.G., defendant rubbed her thigh as they sat on his couch.
After A.G. complained that her mother would not let her dye her hair, defendant
took her to Wal-Mart where he purchased hair dye for her and then returned to his
apartment where he helped her apply it. They sat on the couch again where
defendant hugged A.G., kissed her on the cheek, and tickled her. He later slapped
her rear end when she stood up. Defendant also told A.G. that he loved her and
offered to let her spend the night. Eventually, defendant delivered A.G. to her
friend’s house, where her friend’s mother made the distraught child call the
Beauregard Parish Sheriff’s Department. Deputies, posing as A.G., arranged
through text messages to meet defendant and arrested him after he initially tried to
flee from them.
A Beauregard Parish jury found defendant guilty as charged. The trial court
sentenced defendant to five years imprisonment at hard labor, with two years
suspended, for simple kidnapping, and to seven years imprisonment at hard labor,
with three years suspended, for indecent behavior. The court of appeal vacated the
conviction for indecent behavior and found that the five-year sentence for simple
kidnapping was excessive. State v. Shaikh, 15-0687 (La. App. 3 Cir. 3/23/16), 188
So.3d 409. The appellate panel determined that there was no evidence “Shaikh
attempted to get A.G. to touch him in a sexual way or that he tried to touch her
breast or genitals, [no evidence] indicating that Shaikh made sexual remarks or
inappropriate suggestions, [and no evidence] that he tried to take off her clothes.”
Shaikh, 15-0687, p. 16, 188 So.3d at 421. Therefore, the panel concluded that the
State failed to present sufficient evidence defendant committed any “lewd or
lascivious” act upon A.G. for the purpose of arousing or gratifying his sexual
desires.
The court of appeal also found that the imposition of the maximum (albeit
partially suspended) sentence for defendant’s simple kidnapping conviction was
excessive. The panel observed that “there was no evidence showing that Shaikh
denied A.G. the opportunity to leave,” and “no evidence that Shaikh possessed a
criminal history during the fifteen years he resided in the United States.” Shaikh,
15-0687, p. 26, 188 So.3d at 426. Thus, the panel opined that the “five-year
sentence is also out of line with other sentences imposed in factually similar
cases.” Id.
We find that the court of appeal erred in both determinations. To prove
defendant guilty of indecent behavior with a juvenile, the State was required to
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prove defendant committed any lewd or lascivious act upon the person or in the
presence of any child under the age of seventeen with the intention of arousing or
gratifying the sexual desires of either person. R.S. 14:81(A), (A)(1). The ages of
defendant and the victim are not in dispute. In dispute is whether the evidence,
when viewed in the light most favor to the State under the due process standard of
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), supports
the jury’s determination that defendant acted in a manner that was lewd or
lascivious and intended to arouse his or A.G.’s sexual desires.
“The word ‘lewd’ means lustful, indecent, lascivious, and signifies that form
of immorality which has relation to sexual impurity or incontinence carried on in a
wanton manner.” State v. Prejean, 216 La. 1072, 1078, 45 So.2d 627, 629 (1950).
“The word ‘lascivious’ means tending to excite lust, lewd, indecent, obscene,
relating to sexual impurity, tending to deprave the morals in respect to sexual
relations.” Id. All manner of obnoxious behavior has been held to constitute “lewd
and lascivious conduct.” See, e.g., State v. Robinson, 43,063, p. 8 (La. App. 2 Cir.
2/13/08), 975 So.2d 853, 858 (defendant groped the victim, called her “baby”, and
commented that he could not help himself); State v. Guillory, 07-0422, pp. 1–2
(La. App. 3 Cir. 10/31/07), 970 So.2d 670, 672 (teacher brushed a student’s legs
with papers and asked her if it tingled and how it made her feel “below”); State v.
Forbes, 97-1839, pp. 3–4, 6–7 (La. App. 1 Cir. 6/29/98), 716 So.2d 424, 427
(finding a rational trier of fact can conclude defendant committed a lewd and
lascivious act by reaching under the victim’s t-shirt to touch her breasts and
reaching into her underpants to touch the area below her naval near her vagina);
State v. Sturdivant, 27,680, pp. 1–2 (La. App. 2 Cir. 2/28/96), 669 So.2d 654, 656
(a parent, while receiving a school tour, made sexual comments to a 13-year-old
and then groped her); State v. Kohl, 524 So.2d 781, 784 (La. App. 3 Cir. 1988)
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(defendant’s rubbing of his beard on crotch of sleeping victims sufficient to prove
violation of R.S. 14:81).
Here, defendant hugged the victim and kissed her on the cheek, but did not
touch her genitals. Although courts have found that mere kissing or hugging alone
does not rise to the level of lewd or lascivious, see, e.g., State v. Louviere, 602
So.2d 1042 (La. App. 4 Cir.1992), writ denied, 610 So.2d 796 (La. 1993),
defendant engaged in a subtle but panoply of acts from which a jury, when viewing
his conduct as a whole, could rationally find his behavior was lewd or lascivious.
Notably, defendant also rubbed A.G.’s thigh, slapped her on her rear end,
professed his love for her, and invited her to spend the night with him. While
defendant argues that the State failed to rule out the reasonable hypothesis of
innocence that by touching the girl he was merely trying to comfort an upset
runaway, his verbal expression of his romantic feelings and his invitation to spend
the night with him are at odds with that hypothesis. A reasonable alternative
hypothesis is not one that merely “could explain the events in an exculpatory
fashion,” but one that, after viewing all of the evidence in a light most favorable to
the prosecution, “is sufficiently reasonable that a rational juror could not ‘have
found proof of guilt beyond a reasonable doubt.’” State v. Captville, 448 So.2d
676, 680 (La. 1984) (quoting Jackson v. Virginia). Finding that the court of appeal
erred in substituting its appreciation for the totality of defendant’s actions and
statements in their context for that of the jury, we reinstate the conviction for
indecent behavior with a juvenile. See generally State v. Bugbee, 34,524, pp. 7–8
(La. App. 2 Cir. 2/28/01), 781 So.2d 748, 755 (“Finding that an act is lewd or
lascivious depends upon the time, the place and all of the circumstances
surrounding its commission, including the actual or implied intention of the
actor.”) (further citation omitted).
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The State also contends that the court of appeal erred by finding defendant’s
simple kidnapping sentence excessive. It argues that the court of appeal substituted
its own judgment of an appropriate sentence for that of the trial court without
explaining what made the sentence excessive. As such, it infringed on the trial
court’s broad discretion. We agree. Under established Louisiana jurisprudence, a
sentence is unconstitutionally excessive when it imposes punishment grossly
disproportionate to the severity of the offense or constitutes nothing more than
needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.
1980) (further citation omitted). The trial judge has broad discretion, and a
reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Cann, 471 So.2d 701, 703 (La. 1985).
In its ruling finding the sentence excessive, the court of appeal did not find
the sentence to be grossly disproportionate to the severity of the offense. It only
found that the sentence was longer than sentences imposed in cases it found to be
factually similar. It provided no other reason for vacating the sentence and
remanded the case with a suggestion that a two-year sentence was more
appropriate.
While it may be true that the sentence is longer than those imposed in other
cases, this fact alone does not demonstrate a manifest abuse of discretion on the
part of the trial court. Moreover, it is important to note that while defendant
received the maximum sentence, the trial court suspended 40% of that sentence.
Thus, defendant will likely serve far less than the five years imposed. Under the
circumstances, the sentence is an acceptable exercise of the trial court’s broad
discretion. Therefore, we reinstate the sentence for simple kidnapping as originally
imposed. Because defendant argued on appeal that his sentence for indecent
behavior is excessive, which issue the court of appeal did not reach because it
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vacated the underlying conviction, see Shaikh, 15-0687, p. 24, 188 So.3d at 425
(“Shaikh’s assignment of error with respect to the sentence imposed for indecent
behavior of a juvenile is moot given our reversal and vacating of same.”), we
remand this matter to the court of appeal for consideration of this pretermitted
claim.
REVERSED AND REMANDED
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