Judgment rendered April 9, 2025. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,149-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
BOBBY JOE BROWN, JR. Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2016F0659
Honorable Bernard Scott Leehy, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
ROBERT STEPHEN TEW Counsel for Appellee District Attorney
KALEE MORGAN MOORE Assistant District Attorney
Before STONE, COX, and ROBINSON, JJ. ROBINSON, J.
Bobby Joe Brown, Jr. (“Brown”), having been convicted of first
degree rape and two counts of sexual battery of his girlfriend’s young
daughter, appeals his sentences as being excessive. For the following
reasons, we affirm his convictions and sentences, and remand with
instructions.
FACTS
EC, who was born on July 19, 2007, lived with her mother and
brother. Brown, her mother’s boyfriend, sometimes lived with them.
After EC told her mother that Brown had “peed” in her mouth, the
mother called the Monroe Police Department in November of 2012. Three
days later, the mother called the police to say that EC had told her that she
had lied about what Brown had done to her. The mother added that she did
not want anyone to go to jail on bogus charges, and she did not want to
pursue the matter any further until she had more time to discuss it with EC.
EC would testify at trial that she retracted what she told her mother because
she was worried about her mother’s safety.
EC was interviewed at the Children’s Advocacy Center (“CAC”) on
December 3, 2012. The CAC only interviews children at the request of law
enforcement or of the Department of Children and Family Services
(“DCFS”). EC told the interviewer that Brown had touched her vagina
several times. Although EC did not tell the interviewer that Brown had put
his penis in her mouth, she had told her mother and grandmother about it.
Dr. Meade O’Boyle, an expert in the fields of pediatric medicine and
child abuse, examined EC on December 18, 2012. Although there were no
physical findings of sexual abuse, she considered her interview of EC to be significant. EC told Dr. O’Boyle that Brown had stuck his penis in her
mouth. She concluded based on the interview that EC had been the victim
of child abuse. Brown was never questioned by law enforcement in 2012.
In April of 2014, Brown was in bed with EC and her brother. When
the mother removed the covers, she discovered that Brown had several of his
fingers inside of EC’s pants by her vagina. Brown yanked his hand, jumped
out of the bed, and attacked the mother. She was able to call the police upon
reaching EC’s grandmother’s house.
EC was taken to the CAC to be interviewed on April 15, 2014. She
told the interviewer that Brown had inserted his fingers in her vagina while
they were in bed together and he had his hand down her pants. Her mother
saw what was happening when she walked into the room and yanked the
covers. EC witnessed Brown put his hands around her mother’s throat after
her mother confronted him about what had happened.
Following the CAC interview, Investigator Darrell Frost from the
Ouachita Parish Sheriff’s Office referred the matter to the District
Attorney’s office for review. Frost did not know at the time that the District
Attorney’s office sent a slip declining action pending a warrant. Thus, the
investigation of Brown for those charges went nowhere and Brown was not
questioned about them.
Despite the obvious threat that Brown was to EC, her mother
continued her off-and-on relationship with Brown because she was fearful of
him. Brown was arrested for crimes related to domestic violence on
February 2, 2016. After DCFS took custody of her children, EC’s mother
learned that EC alleged that she had been raped by Brown. Investigator
Frost was the follow-up investigator on the case. 2 EC was interviewed at the CAC on February 8, 2016. EC said that
Brown had stuck his finger in her vagina on several instances, with the most
recent time being at her mother’s house.
EC was examined by Dr. O’Boyle on February 10, 2016. She told Dr.
O’Boyle that after she had been awakened by Brown, she ran to a back
bedroom and hid under a dresser, but Brown pulled her out and vaginally
raped her. Dr. O’Boyle found that EC had an area of inflamed tissue in her
vagina. Dr. O’Boyle believed that there had been penetration of EC’s
vagina by something. She thought that EC’s description of what Brown did
to her was consistent with her injury. Dr. O’Boyle’s impression was that EC
had been sexually abused over a prolonged period.
Indictments
On July 21, 2016, Brown was indicted for one count of first degree
rape of EC in violation of La. R.S. 14:42, one count of oral sexual battery of
EC in violation of La. R.S. 14:43.3, and two counts of sexual battery of EC
in violation of La. R.S. 14:43.1. The rape and one of the sexual batteries
were alleged to have occurred between January 1, 2016, and February 8,
2016. The other sexual battery was alleged to have occurred on or around
April 11, 2014. The oral sexual battery was alleged to have occurred
between July 1, 2012, and November 26, 2012. EC’s date of birth was listed
in the bill of indictment.
On January 27, 2021, ankle monitoring for home incarceration was
ordered for Brown as a bail condition. On June 28, 2021, Brown was
advised of his trial date of August 2, 2021. On July 22, 2021, the ankle
monitoring service learned that the monitor had been disconnected. The
3 strap for the monitor was later found to have been cut. Brown was
discovered in Missouri in October of 2021.
On April 4, 2022, the state amended the bill of indictment to change
language concerning the oral sexual battery charge to reflect that the
victim’s tongue was used on Brown’s genitals. The first degree rape count
was also amended to state that Brown was charged with aggravated rape in
violation of La. R.S. 14:42. We note that the title of La. R.S. 14:42 was
changed from aggravated rape to first degree rape by Acts 184 and 256 of
2015. As stated in La. R.S. 14:42(E):
For all purposes, “aggravated rape” and “first degree rape” mean the offense defined by the provisions of this Section and any reference to the crime of aggravated rape is the same as a reference to the crime of first degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as “first degree rape.”
A jury trial began on April 4, 2022. Investigator Frost, EC, her
mother, the forensic interviewer from the CAC, and Dr. O’Boyle testified on
behalf of the prosecution. The videos of the three CAC interviews were
played for the jurors. Brown’s niece and Brown himself testified for the
defense. Brown denied the allegations.
Brown was convicted of first degree rape and of both charges of
sexual battery. He was found not guilty of the charge of oral sexual battery.
The verdicts were unanimous.
Sentencing
A sentencing hearing was held on June 21, 2022. EC gave a victim
impact statement in which she stated that Brown had made her feel
unworthy. He also caused her to have trust issues and experience anxiety.
She blamed Brown for taking away much of her childhood.
4 Before sentencing Brown, the court noted that while Brown was
acquitted of oral sexual battery, the court believed that it was more likely
than not that the offense had been committed.
The court considered Brown’s criminal history to be substantial.
Brown pled guilty to DWI in 2006. On April 30, 2006, he was arrested for
simple battery, simple criminal damage to property, obstructing public
passages, and threatening public officials. He was arrested again three
months later for failing to appear on those charges. Brown pled guilty to
those charges and was placed on probation, which was later revoked. On
March 30, 2007, Brown was arrested for second degree battery, but that
charge was dismissed. On September 25, 2007, Brown was arrested for
possession of marijuana, possession of drug paraphernalia, and possession of
cocaine. He pled guilty to possession of cocaine, was given a three-year
hard labor sentence that was suspended, and was placed on probation. On
March 5, 2008, Brown was arrested for improper or harassing telephone
conversations or communications and for disturbing the peace; he pled
guilty to the former. Brown was arrested in 2011 for technical parole
violations. On March 28, 2013, Brown was arrested for theft of goods. He
pled guilty to unauthorized use of a movable. On October 21, 2013, Brown
was arrested for second degree battery, simple battery, and damage to
property. He pled guilty to second degree battery and simple battery and
was given a suspended six-month sentence and six months of probation. On
June 3, 2014, Brown was arrested for violating a protective order. He pled
guilty and was given a suspended sentence of 90 days in jail, with one year
of probation. On February 2, 2016, Brown was arrested for false
imprisonment, aggravated assault, and domestic abuse battery. Those 5 charges remained pending. He was also arrested on February 2 for three
counts of violating a protective order. He pled guilty to one count and was
sentenced to 120 days in jail with credit for time served.
The court examined Brown’s personal history. His parents were
married and he is one of seven children. He was expelled from Caldwell
Parish High in the 11th grade and never returned. He worked with his father
in the oilfield for three years after turning 18. He also worked for logging
companies between layoffs in the oil industry. At the time of his 2016
arrest, he worked for Weyerhaeuser outside of Louisiana. Brown began
drinking alcohol and smoking marijuana when he was 17. He first used
cocaine when he was 21. He began using methamphetamine in 2011. He has
one child from a prior relationship but does not maintain a relationship with
the child.
The court then analyzed the La. C. Cr. P. art. 894.1 sentencing factors.
No mitigating factors were found to be applicable. The court determined
that Brown’s conduct during the commission of the offenses manifested
deliberate cruelty to EC. The court found that Brown knew or should have
known that EC was particularly vulnerable or incapable of resistance
because of her extreme youth. The court noted that it was clear from EC’s
victim statement that the abuse had impacted and devastated her in ways that
will cause her to have pain, mistrust, and anguish throughout her life. The
court concluded that Brown had used his position or status to facilitate the
commission of the offense. EC did not have a father figure in her life and
Brown became that person. The court found that Brown had abused his
position of trust for his own gratification and to the detriment of EC. The
abuse resulted in a significant permanent injury to EC and her family. EC 6 made it clear that the abuse affected her in multiple ways and that its impact
remained with her. Brown did not accept responsibility for his actions and
had shown no remorse. He stared at EC during sentencing, which led to an
admonishment from the court.
The court considered Brown to be the worst of the worst of offenders
based on his abuse of EC and his criminal history. The court also noted his
abuse of EC was not a continuing transaction that would warrant concurrent
sentences, but were separate offenses which occurred over a period.
Brown was sentenced to life imprisonment without benefit of parole,
probation, or suspension of sentence for his first degree rape conviction. For
each sexual battery conviction, he was sentenced to 50 years at hard labor
without benefit of parole, probation, or suspension of sentence. The
sentences were to be served consecutively. Brown was given credit for time
served.
On June 28, 2022, Brown’s trial counsel filed a motion to reconsider
sentence and a motion for new trial. He complained that the sentences were
unduly harsh because they were consecutive. The motions were denied.
Brown has appealed his sentence. His appeal counsel argues that his
sentences serve no purpose and are excessive.
DISCUSSION
A reviewing court imposes a two-prong test to determine whether a
sentence is excessive. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court
is not required to list every aggravating or mitigating circumstance so long
as the record reflects adequate consideration of the guidelines of the article.
State v. Smith, 433 So. 2d 688 (La. 1983); State v. Boehm, 51,229 (La. App. 7 2 Cir. 4/5/17), 217 So. 3d 596. The court shall state for the record the
considerations taken into account and the factual basis therefor in imposing
sentence. La. C. Cr. P. art. 894.1(C). The articulation of the factual basis
for the sentence is the goal of art. 894.1, not rigid or mechanical compliance
with its provisions. State v. Bell, 53,712 (La. App. 2 Cir. 1/13/21), 310 So.
3d 307. Where the record clearly shows an adequate factual basis for the
sentence, remand is unnecessary even where there has not been full
compliance with art. 894.1. State v. Lanclos, 419 So. 2d 475 (La. 1982);
State v. Sandifer, 54,103 (La. App. 2 Cir. 12/15/21), 330 So. 3d 1270.
In sentencing, the important elements which should be considered are
the defendant’s personal history (age, familial ties, marital status, health,
employment record), prior criminal record, seriousness of the offense, and
the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);
State v. Sandifer, supra. There is no requirement that specific matters be
given any particular weight at sentencing. State v. Bell, supra.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the severity of the crime or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); State v. Bell, supra. A sentence is considered
grossly disproportionate if, when the crime and punishment are viewed in
light of the harm done to society, it shocks the sense of justice. State v.
Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166.
A trial court has wide discretion in the imposition of sentences within
the statutory limits and such sentences should not be set aside as excessive in
the absence of a manifest abuse of that discretion. State v. Trotter, 54,496 8 (La. App. 2 Cir. 6/29/22), 342 So. 3d 1116. On review, an appellate court
does not determine whether another sentence may have been more
appropriate, but whether the trial court abused its discretion. State v. Bell,
supra.
The punishment for first degree rape is life imprisonment at hard labor
without benefit of parole, probation, or suspension of sentence. La. R.S.
14:42(D). We recognize that La. R.S. 14:42(D)(2) provides a procedure for
seeking the death penalty for first degree rape when the victim is under the
age of thirteen. However, that provision was declared unconstitutional in
Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525
(2008).
The punishment for sexual battery is imprisonment, with or without
hard labor, without benefit of parole, probation, or suspension of sentence,
for not more than ten years. La. R.S. 14:43.1(C)(1). However, when the
victim is under the age of thirteen and the offender is seventeen or older, the
punishment for sexual battery is imprisonment at hard labor for not less than
twenty-five years nor more than ninety-nine years. At least twenty-five
years of the sentence imposed shall be served without benefit of parole,
probation, or suspension of sentence. La. R.S. 14:43.1(C)(2).
The trial judge gave thorough consideration to the art. 894.1 factors
when imposing the sentences and properly exercised his discretion. Brown
had access to EC because of his romantic relationship with her mother, and
this access allowed him to victimize a very young EC over a number of
years. The sentences are not purposeless. In fact, they are fitting and
deserved considering the magnitude of Brown’s actions. The trial court also
9 properly determined that consecutive sentences were warranted as Brown’s
offenses were not part of a single transaction.
Error patent review
There is a sentencing enhancement for sexual battery when the victim
is under the age of thirteen and the offender is seventeen or older. La. R.S.
14:43.1(C)(2). Brown was sentenced under this provision.
Our review of the record shows that neither the original bill of
indictment nor the amended bill of indictment charged Brown with the
sentencing enhancement found in La. R.S. 14:43.1(C)(2). The jury was also
not instructed for purposes of the sexual battery charges to find that EC was
under the age of 13 and that Brown was 17 or older at the time of the sexual
batteries in order to support the enhanced sentences.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-
3, 147 L. Ed. 2d 435 (2000), the Supreme Court held, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”
In State v. Wagar, 54,941 (La. App. 2 Cir. 3/1/23), 357 So. 3d 984,
the defendant, who was convicted of sexual battery, argued on appeal that
the bill of information, jury instructions, and verdict form failed to comply
with Apprendi because they did not require the jury to find that the victim
was under 13 and the defendant was over 17 to support the sentencing
enhancement found in La. R.S. 14:43.1(C)(2). This court found that there
was clearly an Apprendi violation as the prosecution should have explicitly
noted in the bill of information and jury instructions that the enhanced
sentence provision in La. R.S. 14:43.1(C)(2) was applicable and that the 10 victim was under the age of 13, not 15. However, the error was deemed
harmless. See State v. Gibson, 09-486 (La. App. 5 Cir. 3/9/10), 38 So. 3d
373, writ denied, 10-0802 (La. 11/5/10), 50 So. 3d 814.
This court concluded in Wagar that the state proved beyond a
reasonable doubt that the victim was under the age of 13 and the defendant
was over the age of 17. The bill of information contained the victim’s and
the defendant’s dates of birth. The victim testified about her date of birth
and when the abuse occurred. Finally, the jurors could view the defendant
and use logic and reasoning to determine his age.
We conclude that any error in this matter regarding the failure to
charge the enhanced sentencing provision of La. R.S. 14:43.1(C)(2) or
instruct the jury concerning it was harmless error. The original bill of
indictment and the amended bill of indictment contain EC’s date of birth.
EC also testified that her date of birth is July 19, 2007. The jury found
Brown guilty of first degree rape, and an element of that crime in this
instance is that the victim is under the age of 13. Investigator Frost testified
that Brown’s date of birth is July 27, 1986.
Upon conviction for first degree rape, Brown was subject to a
mandatory sentence of life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence. La. R.S. 14:42(D). According
to the sentencing hearing transcript, his life sentence was not imposed at
hard labor. Because La. R.S. 14:42 is a mandatory felony requiring any
sentence to be served at hard labor, the error is harmless and self-correcting.
Brown was convicted of sex offenses as defined by La. R.S. 15:541.
The sentencing transcript reflects that while Brown was orally notified by
the court that he will be required to register as a sex offender, the record 11 does not include a written notice of the sex offender registration
requirements. La. R.S. 15:543 requires that the trial court provide written
notice of the registration and notification requirements to a defendant
convicted of a sex offense and that an entry be made in the court minutes
stating that the written notification was provided to the defendant. State v.
Middleton, 55,634 (La. App. 2 Cir. 5/22/24), 386 So. 3d 1283, writ denied,
24-00822 (La. 2/19/25), 400 So. 3d 926. Accordingly, we remand for the
trial court to provide the appropriate written notice to Brown of the sex
offender registration requirements for his convictions, for the filing of proof
of such written notice in the record of the proceedings, and for the court
minutes to be amended to state that such notice was provided.
Finally, the Uniform Sentencing Commitment Order states that Brown
was convicted of aggravated rape instead of first degree rape. Accordingly,
we additionally remand this matter for the trial court to correct the Uniform
Sentencing Commitment Order to state that Brown was convicted of first
degree rape.
CONCLUSION
For the foregoing reasons, Brown’s convictions and sentences are
affirmed. This matter is remanded to the trial court to correct the Uniform
Sentencing Commitment Order, to provide written notice to Brown of the
sex offender registration requirements, to file proof of such notice in the
record, and to amend the minutes to state that such notice was provided.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED
WITH INSTRUCTIONS.