I have a 12 year old neice of a Defendant. She wakes up in the middle of the night to the Defendant pulling on her pants. He is unable to get them off. He is asking the child if he can see her "p***y". Asked this several times. When she repeatedly tells him no, he begins holding her down and ripping at her pants to get them off. She screams and grandma comes in the room and catches him basically in the act.

He has a prior conviction for Aggravated Rape in 1981. He served nearly the full 25 years he was sentenced. He is a bad guy, and there is no doubt he was going to rape this little girl. I want to charge him with Attempted Ag Sexual Assault of a Child, but I am afraid specificity and proof issues will really become a problem.

He was just asking to "see", so there is a problem. Easy to infer what he was going after, but....

And, if I do decide to indict it as attempted, any suggestions on the wording of the indictment.

Help!!!

M. Scott Layh

quote:

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Originally posted by Scott Layh:
He was just asking to "see", so there is a problem.

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Really? I would love to see a defense attorney make that argument. Maybe his client can even come to court wearing an "Official P**** Inspector" t-shirt to drive the point home. Here's what all your jurors (and appellate judges) will be doing:



Punch that pervert's ticket.

I totally agree with Shannon. First, after your victim testifies, all 12 jurors will be wanting to personally strangle this scumbag. Second, he can't take the stand because his prior for Agg Rape will become known to the jury. But if he does testify and the jury learns of his prior, the rodeo is over (again). And if he does take the stand, you will get to conduct the cross examination of your life. As far as the indictment, just put in the standard attempt language and then set out every act that he did as the manner and means. The acts can be proven in the disjunctive and the jury is not going to worry about whether you prove one or more than one. The only problem that you will have is getting 12 out of a jury panel that can consider the full punishment range so prop them up when you voir dire. Let us know how it comes out but I'm confident that you will max him out.

It is a shame that the CCP doesn't treat an attempted 3g offense as a 3g offense for the purpose of parole eligibility.

I would also add a charge for Attempted Sexual Performance--he was trying to induce a child under 14 to engage in lewd exhibition of the genitals. 2nd degree since child was under 14.