STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
24-213
VERSUS
BYRON JULIES LEJEUNE
**********
ON APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2794-22 HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE
JONATHAN W. PERRY JUDGE
Court composed of Candyce G. Perret, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
AFFIRMED; REMANDED WITH INSTRUCTIONS. Chad M. Ikerd Louisiana Appellate Project 600 Jefferson Street, Suite 903 Lafayette, Louisiana 70501 (337) 366-8994 COUNSEL FOR DEFENDANT/APPELLANT: Byron Julies LeJeune
Stephen C. Dwight District Attorney, Fourteenth Judicial District John Eric Turner Assistant District Attorney 901 Lakeshore Drive, Suite 800 Lake Charles, Louisiana 70601 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana PERRY, Judge.
Defendant, Byron Julies LeJeune, appeals his conviction for second degree
rape and the sentence the trial court imposed. For the reasons stated below, we
affirm Defendant’s conviction and sentence, but we remand this matter to the trial
court to advise Defendant of the provisions of La.Code Crim.P. art. 930.8.
FACTS
The facts of this case are fully set forth in the discussion of Defendant’s
assignments of error, as they concern the sufficiency of the evidence presented at
trial and the basis for the sentence imposed.
PROCEDURAL HISTORY
On February 10, 2022, Defendant was charged by bill of information with
one count of domestic abuse battery (strangulation), in violation of La.R.S.
14:35.3(L); one count of domestic abuse battery (first offense, intentional infliction
of serious bodily injury), in violation of La.R.S. 14:35.3; one count of domestic
abuse aggravated assault, in violation of La.R.S. 14:37.7; one count of second degree
kidnapping, in violation of La.R.S. 14:44.1; one count of second degree rape, in
violation of La.R.S. 14:42.1; and one count of obstruction of justice, in violation of
La.R.S. 14:130.1. The bill of information was subsequently amended on June 19,
2023, dropping the charges for domestic abuse aggravated assault, second degree
kidnapping, and obstruction of justice. Defendant pled not guilty to both sets of
charges.
On June 22, 2023, Defendant was found guilty on all counts by a unanimous
jury after a two-day trial. On September 27, 2023, the trial court sentenced
Defendant to three years at hard labor for count one, domestic abuse battery
(strangulation); five years at hard labor for count two, domestic abuse battery (first offense, intentional infliction of serious bodily injury); and thirty years at hard labor
without benefit of probation, parole, or suspension of sentence for count three,
second degree rape. All sentences are to run concurrently.
Defendant timely appealed his conviction and sentence for second degree
rape. In his appeal, Defendant asserts two assignments of error.
ASSIGNMENTS OF ERROR
I. The State failed to prove that Byron LeJeune was guilty of Second Degree Rape.
II. The trial court’s [thirty]-year hard labor sentence for Second- Degree Rape was constitutionally excessive and only served to impose needless paid and suffering.
ERRORS PATENT REVIEW
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors
patent on the face of the record. After reviewing the record, we find two errors
patent.
The first error patent concerns the advisement of the time limitation for filing
an application for post conviction relief. The record does not indicate that the trial
court advised Defendant of the prescriptive period for filing post conviction relief.
Louisiana Code of Criminal Procedure Article 930.8 requires the trial court to
inform a defendant at sentencing either verbally or in writing that he has two years
after the conviction and sentence has become final to seek post conviction relief.
See State v. Viltz, 18-184 (La.App. 3 Cir. 11/28/18), 261 So.3d 847 (citing State v.
Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.
2/10/06), 924 So.2d 163).
Thus, we order the trial court to inform Defendant of the provisions of
La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten
2 days of the rendition of this opinion and to file written proof that Defendant received
the notice in the record of these proceedings. Id.
The second error patent involves the sentences imposed on counts one and
two. In count one, Defendant was convicted of domestic abuse battery by
strangulation, a violation of La.R.S. 14:35.3(L), and was sentenced to three years at
hard labor. In count two, Defendant was convicted of domestic abuse battery (first
offense), causing serious bodily injury, a violation of La.R.S. 14:35.3(N), and was
sentenced to five years at hard labor.
The penalty provisions for those offenses are as follows, in pertinent part:
A. Domestic abuse battery is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member.
....
C. On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. . . .
L. Notwithstanding any provision of law to the contrary, if the domestic abuse battery involves strangulation, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than three years.
N. Except as provided in Paragraph (M)(2) and Subsection P of this Section, if the offender intentionally inflicts serious bodily injury, the offender, in addition to any other penalties imposed pursuant to this Section, shall be imprisoned at hard labor for not more than eight years.
3 La.R.S. 14:35.3.1
Both subsections “L” and “N” provide for penalties “in addition to any other
penalties imposed” under La.R.S. 14:35.3. Subsection “C” provides that the penalty
for a first offender is a fine of $300 to $1000 and imprisonment of thirty days to six
months, with at least forty-eight hours to be served without benefit of parole,
probation, or suspension of sentence. Thus, the sentences imposed for counts one
and two in this case are illegal since neither includes a fine and neither restricts
benefits for at least forty-eight hours. See State v. Simon, 22-726 (La.App. 1 Cir.
12/22/22), 360 So.3d 528, writ denied, 23-148 (La. 12/5/23), 373 So.3d 714.
In previous opinions, this court has noted that if the trial court imposed an
illegally lenient sentence, we would not correct the error unless the State raised the
issue. See State v. Charles, 20-498 (La.App. 3 Cir. 5/5/21), 318 So.3d 356. See also
State v. Brown, 19-771 (La. 10/14/20), 302 So.3d 1109 (supreme court found the
court of appeal erred in vacating an illegally lenient sentence absent any complaint
by the State). Because the State has not complained on appeal that Defendant’s
sentences were illegally lenient, we will not correct the error.
ANALYSIS
Sufficiency of Evidence
For his first assignment of error, Defendant asserts that the evidence is
insufficient to prove beyond a reasonable doubt that he was guilty of second degree
rape. Defendant argues that while it is undisputed that he physically abused C.Q. 2
and had sex with her numerous times during the occurrence, she never indicated that
1 We note La.R.S. 14:35.3 has been amended since the time of the commission of the offenses herein by Acts 2024, No. 131, § 1, effective August 1, 2024. 2 The victim’s initials are used as required under La.R.S. 46:1844(W).
4 she was unwilling to have sex or that this sex was nonconsensual, that she failed to
report her abuse as rape until after it was suggested to her by the police, and that the
accompanying “force or violence was not tied to the sexual intercourse.” The State
counters that, when considering all the events of the night, including, without
limitation, the repeated beatings, continuous physical and mental torture, and the
deliberate separation of the victim from the outside world, it “was absolutely
reasonable for the victim to believe her resistance would not prevent the rape”;
therefore, a rational juror could have found that C.Q. was prevented from resisting
due to said reasonable belief.
When a defendant challenges the sufficiency of the evidence to support his
conviction, that issue must be resolved first. State v. Hearold, 603 So.2d 731
(La.1992). The analysis for sufficiency of the evidence is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Louisiana Revised Statutes 14:42.1(A)(1) defines second degree rape, in
relevant part, as sexual intercourse that is committed without lawful consent because
“the victim is prevented from resisting the act by force or threats of physical violence
5 under circumstances where the victim reasonably believes that such resistance would
not prevent the rape.” There is no dispute that Defendant and C.Q. engaged in sexual
intercourse several times during the incident.
Evidence Presented
The State put forward ten witnesses: (1) C.Q. (the victim); (2) Deputy Randy
Antoine (Calcasieu Parish Sheriff’s Office, crime scene forensics); (3) Detective
Kardel Guidry (Calcasieu Parish Sheriff’s Office (retired), lead investigator); (4)
Detective Larry Cormier (Calcasieu Parish Sheriff’s Office, cell phone records); (5)
Monica Quaal (Southwest Louisiana Crime Lab, DNA); (6) Dr. John Gray (Lake
Charles Memorial Emergency Department); and (7) Roy Malone, Jr. (Calcasieu
Parish Sheriff’s Office, jail records). The State also called several of Defendant’s
former sexual partners for character testimony, including (8) Kinnidi Jarrel; (9)
Olivia Bonner; and (10) Taylor Roy (formerly Taylor LeJeune). The State also
entered into evidence photographs of the victim’s injuries, forensic evidence,
medical documentation, and Defendant’s jail calls. Defendant did not call any
witnesses.
The first and primary testimony was given by the victim, C.Q. She had
previously been in a relationship with Defendant but had broken up with him in June
of 2021, about six months before the events described in her testimony. They
continued to have sexual intercourse intermittently after breaking up. On December
29, 2021, Defendant messaged C.Q. requesting help finding a bed in rehab, telling
6 C.Q. that he wanted help changing his life.3 They met at the Star Casino4 in Moss
Bluff where they talked and played video poker. At a certain point, Defendant
suggested that they go to the nearby gas station to pick up some cigarettes, but after
getting into C.Q.’s car, he instead suggested they visit Adam, a mutual friend of
theirs, and Adam’s new girlfriend.5 C.Q. agreed and did not yet feel concerned or
threatened. Defendant drove them to this friend’s camper in Holly Beach. They
were both drinking at this point.6
Matters deteriorated when C.Q.’s mother attempted to call her and then,
failing to reach her, called Defendant instead. C.Q.’s mother strongly disagreed with
her relationship with Defendant and, during an apparently heated phone discussion,
told him to stay away from her. Defendant did not initially react negatively toward
C.Q., but he began striking her shortly after they left Adam’s residence. Defendant
blamed C.Q. for her mother’s intervention, complaining that “if [C.Q.] wouldn’t tell
them all the stuff that [Defendant] does, then they wouldn’t hate [him].” He struck
her five times before pulling over into an adjacent parking lot; a photograph of
C.Q.’s injuries was shown to the jury. After parking, he demanded that she perform
oral sex on him, and while she protested that she had to go pee first, he apparently
3 We note that Defendant claimed in a jail call that he did not want to go to rehab, and it was actually C.Q. pressuring him to do so. 4 The casino was identified earlier in the record as the “Star Casino on Highway 171.” C.Q. confirmed it was this casino when she identified it as the casino that is in the same building as Los Panchos restaurant. 5 Defense counsel noted that the gas station in question was in the same parking lot, the implication being that it seemed unlikely that they got into her car for that reason. 6 C.Q. later admitted that she drank about five to six beers out of a six pack from the start of the meetup through the time spent at the friend’s place. Defense counsel noted the inconsistency between the stated purpose of their meetup—Defendant wanting to go to rehab—and their behavior early in the encounter. We note this would be equally inconsistent with Defendant’s claim on the jail calls that rehab was C.Q.’s idea.
7 “didn’t care,” and she ended up urinating on herself shortly after they finished having
sex. Although she did not explicitly tell Defendant that she did not want to have sex,
she testified that she didn’t feel that “no” was an option as he had already hit her.
After getting back onto the highway, the next stop was Burger King on
Highway 14. While in the drive-through, Defendant began messaging another
woman asking for money. After C.Q. commented on this, and after pulling out of
the drive-through, Defendant struck C.Q. several more times, confiscated her phone,
and ripped off and broke her Apple watch. She also testified that Defendant began
strangling her. Defendant subsequently drove them to Joe Breaux Road, a sparsely
populated area near a canal, while intermittently striking C.Q. At a certain point
during this drive, C.Q. attempted to grab the steering wheel and “almost wrecked”
the car due to her growing “nervous[ness] about what was going on.” At Joe Breaux
Road, Defendant directed C.Q. to get out of the car, stand in front of the car, and to
not move. He proceeded to rev up the car, peel out, and drive toward her numerous
times, each time prompting her to jump or fall out of the way. Each time she did so,
Defendant got out of the car, hit her a few more times, and told her once again not
to move. When C.Q. tried to block the hits, Defendant, who was wearing cowboy
boots, would kick whichever body part she used to block him. Defendant did this
four times. After the fourth instance, Defendant started kicking C.Q. in the chest
which, according to her, was “when he had broken my ribs.” 7 Defendant also
strangled C.Q. again. After this incident, C.Q. was in such pain that it hurt her to
7 It is not known whether C.Q. actually sustained such an injury. Dr. John Gray testified that while he did not find any fractures when examining C.Q. at Memorial Hospital in Lake Charles, he did not specifically examine or request scans of the ribs. Dr. Gray explained that would only have been done if there was a risk C.Q. punctured her lung, which was ruled out as she did not report shortness of breath.
8 move, and it thus took some time for her to comply with his instructions to get back
into the vehicle.
A photo of this area of Joe Breaux Road was subsequently entered into
evidence. The canal is visible as described by C.Q., as are tire marks and a “brown
streak in the grass that leads up to beneath” a pair of shoes. This is where C.Q.
claims to have slipped and fallen, as well as one of the places where Defendant beat
her. Detective Guidry, on a subsequent drive along with C.Q., also found Burger
King ketchup packets at the scene.
After Defendant drove them away from Joe Breaux Road, Defendant turned
on a light to get a look at C.Q. and realized the extent of her injuries. As C.Q.
phrased it, one “could see in his face that he knew that he had messed up.” Defendant
attempted to control the damage by taking her jacket, which was bloody, and trying
to burn it with a lighter, but he failed so opted to toss it out a window instead while
driving towards Pumpkin Center Road.8 C.Q. described this area as a dead end with
tractors, fields, and a crawfish pond. C.Q. was familiar with this area and Joe Breaux
Road because Defendant did farm work at these sorts of places. A photograph of
the area which matched C.Q.’s description was admitted into evidence and published
to the jury. At this point, C.Q. stated she was very afraid of Defendant due to his
violent conduct and the secluded nature of the area. She did not feel like she was in
any position to argue with him, and she was doubting whether she was going to make
it home at all. Defendant and C.Q. had sex again, despite C.Q. crying “the whole
time because I was hurting.” Defendant refused C.Q.’s pleas to get medical help,
8 The jacket was subsequently recovered by Deputy Randy Antoine of the Calcasieu Parish Sheriff’s Office. Blood samples obtained from the jacket matched the victim and an unidentified male.
9 calling her a “selfish ‘B’” who “always have [sic] to start something [and] don’t [sic]
ever know when to shut [her] mouth.” Instead, Defendant declared that he needed
more drugs and began driving toward an associate’s place for that purpose.
Along the way, they stopped at a gas station, where Defendant directed C.Q.
to fill up the gas tank. During cross-examination, the defense counsel raised the
question of why she did not take the opportunity to either call for help or alert the
gas station attendant inside. C.Q. claimed that she was unable to run at this stage
due to her injuries and that regardless there was “no getting away from him.”
Later, when they arrived at the associate’s trailer, Defendant went inside alone
and took the car keys and C.Q.’s phone with him. When he came back outside, he
gave her a frozen pork chop in a bag to put on her face and a little green pill that the
associate claimed would help the pain. Defendant again refused her request for
actual medical assistance. Defendant then drove them back to the casino, parked in
the back of the lot, and told C.Q. that they would be spending the remainder of the
night there. C.Q. objected to this plan, but Defendant refused to go anywhere else
because he claimed, “there was no way to hide what [C.Q.] look[ed] like[.]”
The following morning, Defendant drove them to Topsy, an area near Ragley,
to stay in an abandoned house, which he occasionally stayed in, that was adjacent to
a camper owned by Defendant’s friend. Along the way, C.Q. began discussing
potential ways to cover up her injuries so that she could leave, but Defendant refused
due to the extent of her bruising. Defendant and C.Q. had sex again after arriving at
the abandoned house in Topsy. C.Q. was not expecting this, and Defendant’s
intentions were only clear when he exited the restroom without any clothes on. She
“let him do it[.]” They then went to the adjacent camper to meet Eric Herbert, who
immediately noticed the extent of C.Q.’s injuries and got her some ice in a bag and
10 a towel. Defendant claimed that her injuries were the result of an auto accident the
previous night. The group proceeded in two vehicles to visit another of Defendant’s
friends, Tommy, but, after arriving at Tommy’s house, Eric’s radiator overheated.
Defendant joined Eric and Tommy outside to deal with the radiator issue, but this
time he left the car keys and C.Q.’s phone in the car.9 C.Q. took the chance, got into
the driver’s seat, and took off for Memorial Hospital in Lake Charles.
While at the hospital, C.Q. reported that she was physically assaulted by a
known person during a car ride and that she had pain to her right jaw and back area,
while medical personnel noted bruising to the face, eyes, and arms.10 Although she
denied any loss of consciousness and was alert and oriented at the time of
examination, medical personnel additionally suspected that she had a possible
concussion as a result of blunt force head trauma. CAT scans found no fractures or
cervical injuries but contusions on the left jaw and side of her skull. As C.Q. did not
inform medical personal of any sexual contact, there was no request for a rape kit.
At the end of C.Q.’s questioning, the State asked her whether she believed she
could have stopped or resisted Defendant’s sexual advances. She testified that she
believed any attempts by her to object or resist would have been futile as it “would
have just caused me to get hit more,” and Defendant would have proceeded to have
sex with her regardless.
9 C.Q. speculated that Defendant did not want to raise suspicions about the voluntariness of C.Q.’s presence and the true source of her injuries. 10 Pictures of the injuries were entered into evidence as Exhibits S-38 and S-39 to S-62. During cross examination, C.Q. admitted that at least one of the pictured injuries, a mark on her neck, was not a “new mark” and was possibly due to previous incidents unrelated to Defendant.
11 Detective Kardel Guidry of the Calcasieu Parish Sheriff’s Office11 initiated
her investigation in January 2022.12 During her initial meeting with C.Q., Detective
Guidry noticed significant bruising on C.Q.’s neck, face, and arms. After
interviewing C.Q., Detective Guidry requested that C.Q. ride with her and another
detective to trace the route of the events. They visited most of the locations
described by C.Q. in her testimony, including Highway 171, the Star Casino in Moss
Bluff, Holly Beach, Joe Breaux Road, and Pumpkin Center Road. They did not visit
Topsy because police received a tip that Defendant may have been there. Detective
Guidry noted in her testimony that while C.Q. did not report that she had been raped
during their initial interview, she nonetheless added second degree rape as a charge
on the arrest warrant due to C.Q.’s “[s]tatements made and through my years of
experience, the markings on her, the bruising, the areas of the bruising and the
statements that she provided matched up with my past experience that sex occurred
that was forcible.” At Joe Breaux Road, in addition to confirming C.Q.’s description
of the area, they located skid marks and Burger King ketchup packets.13
Subsequent testimony by Detective Larry Cormier of the Calcasieu Parish
Sheriff’s Office, introduced cell phone tracking data into evidence which showed
that C.Q. and Defendant’s phones were both present in North Moss Bluff near the
casino in the afternoon of December 29, 2021, and traveled together until the
11 Although the Calcasieu Parish Sheriff’s Office was already aware of the “battery at a hospital” and had dispatched Deputy Randy Antoine to collect C.Q.’s jacket from Joe Breaux Road as early as December 31, 2021, a potential jurisdictional conflict delayed Detective Guidry’s investigation. 12 We note several discrepancies with Detective Guidry’s timeline. She first stated that she “became involved” on January 15, 2022. She then stated she followed up with C.Q. “that same day[,]” which was “five or six days . . . after the incident[,]” despite the incident being in December. When later asked again what day the ride-along was, she said it was on January 7. 13 A pork chop and a Burger King bag were also located but not taken into evidence.
12 following day, when C.Q.’s phone diverted to Lake Charles, while Defendant’s
phone remained in the Topsy area. The areas they traveled to according to the phone
tracking data matched C.Q.’s testimony.
The State also introduced several of Defendant’s jail calls into the record. 14
While his account of the incident differs from C.Q.’s, there is some overlap. In his
telling, C.Q. initiated the encounter by asking him to go to rehab, unlike in C.Q.’s
account where he initiated the encounter by asking for her assistance in going to
rehab, and, when he demurred and told her he didn’t love her, C.Q. punched him.
Defendant claimed they then went to the house of his new girlfriend’s father for three
or four hours, which is about the same amount of time that C.Q. claimed they spent
at Adam’s house, the friend in Holly Beach. He also claimed that he was on
Adderall, Xanax, and alcohol during the events of the night and that at least the
Adderall was supplied by C.Q. While he specifically admitted that he put his hands
on C.Q., beat her, and threw her jacket out the window, he was adamant that he
“[m]ost definitely did not” rape her.
C.Q. described her prior relationship with Defendant at length. Defendant had
a long history of physically abusing her, particularly when her kids were away and
when they were together in automobiles. She would often have to wear sunglasses
inside to cover these injuries. On one occasion, he ripped a light bar out of a closet
and struck her on the head with it. The State admitted into evidence several
photographs of her injuries from prior incidents, including one photograph that
appeared to show when he bit her leg. A notable feature of their relationship was
14 Written transcripts of these jail calls were entered into the record as Exhibits S-108, S- 110, and S-111, which were from December 29, 2022, June 8, 2023, and June 13, 2023, respectively. Although it is not clear who Defendant is talking to in these jail calls, during sentencing Defendant stated that at least some of the jail calls were with Olivia, presumably Olivia Bonner.
13 how Defendant would frequently threaten to kill himself if she expressed
dissatisfaction with or attempted to distance herself from him. The State entered
into evidence several text messages showing, among other things, Defendant putting
a gun into his mouth while saying, “I’m going to meet my Maw, you don’t care so
‘eff it.’”
The State called several witnesses15 who testified that Defendant’s behavior
towards C.Q. was part of a broader pattern. Kinnidi Jarrel, Olivia Bonner, and
Taylor Roy all testified that Defendant physically abused them during their
relationships. Kinnidi Jarrel testified that Defendant punched her when they were
together and, prior to trial, confided to prosecutors that Defendant had previously
strangled her.16 Olivia Bonner’s testimony described how, on at least one occasion,
Defendant grabbed her and shoved her head against a window while she was driving.
Olivia Bonner noted that she had seen Defendant do the same thing to Kinnidi Jarrell.
Taylor Roy testified that Defendant threw objects at her, assaulted her with a belt,
punched her in the face, strangled her, locked her in closets, and on one occasion
even attempted to run her off the road.17
Olivia Bonner and Taylor Roy noted that when they argued with or threatened
to leave Defendant, he would sometimes send texts showing him pointing a gun
towards his head, similar to the texts he sent C.Q.18 Both Olivia Bonner and Taylor
15 Two of the witnesses, Kinnidi Jarrel and Olivia Bonner, were not testifying of their own accord. Kinnidi Jarrel was called on an instanter subpoena, while Olivia Bonner stated on the record that she was not present willingly. 16 At trial, Kinnidi Jarrel denied that Defendant had strangled her, but she did admit that she had told the State otherwise. 17 This final incident was despite an active restraining order. Defendant was arrested after this incident. 18 The State entered into evidence Exhibit S-78, a picture of one of these texts.
14 Roy noted sexual incidents involving Defendant’s duplicity. In Olivia Bonner’s
case, she specifically told Defendant not to ejaculate inside her, he did so anyway,
and when she confronted him about this, he apparently laughed it off. In Taylor
Roy’s case, he falsely claimed he was infertile before proceeding to have sex with
her.19 Taylor Roy described incidents where likely harm was only prevented by
outside intervention. While their daughter was sick at the hospital, Defendant
became aggressive and was only restrained after Taylor Roy pressed a button to alert
the nurses, who called security. Finally, both Olivia Bonner and Taylor Roy testified
that there were times, particularly when he was drinking, where Defendant would
want to have sexual intercourse with them despite their protests. In Olivia Bonner’s
case, she said that she would have sex with him anyway out of a desire to avoid
arguing with him.20 Taylor Roy detailed one such incident that became physical
when he was “try[ing] to take my clothes off” despite protests and, when she
responded by physically pushing him off of her, he kicked her in the stomach and
was only stopped by Taylor Roy’s brother who overheard the fighting and directly
intervened.
We find the evidence presented by the State at trial was more than sufficient
to prove beyond a reasonable doubt that Defendant committed second degree rape
of C.Q. This court has previously upheld the sufficiency of a conviction for second
degree rape where the defendant did not explicitly threaten the victim while
19 The relationship between Taylor Roy and Defendant started in March 2013. Defendant had a child with Olivia Bonner in 2012. 20 The State also asked Olivia Bonner if there was “any inkling in your mind that if you didn’t have sex with him things could turn physical?” Her response was that while at the back of her mind she considered that possible, “it was [n]ever anything I was scared of, like seriously scared of.” This testimony conflicted with what she had previously disclosed to the State.
15 demanding sex but was nonetheless beating her before and after the demands. State
v. Disedare, 19-810 (La.App. 3 Cir. 5/13/20), 298 So.3d 342, writ denied, 20-800
(La. 12/22/20), 307 So.3d 1041. Similar to this case, the defendant in Disedare
confined the victim against her will for over thirteen hours,21 repeatedly beat and
strangled her,22 burned her clothing, and demanded oral sex in between the beatings.
While the victim in Disedare never rejected the defendant’s demands for sex, never
told him she did not want to have sex, and never asked him to stop, she insisted that
she only complied because she was afraid the defendant would beat her again. This
court found that, in light of the victim’s fear and the physical abuse before and after
the demands for sex, there was sufficient evidence to prove that the victim was
prevented from resisting by force and that she reasonably believed resistance would
be futile.
In this case, C.Q.’s testimony, which was itself extensively corroborated by
physical and digital evidence as well as by the testimony of other witnesses, similarly
demonstrated that Defendant demanded sex only after he had begun striking C.Q.
Defendant repeatedly beat C.Q. throughout the night, held her against her will
through the following morning, and at one point even threatened to run her over with
her own car. Further, Defendant conclusively demonstrated that not complying with
his demands would lead to physical violence when he beat and kicked C.Q. each
time she dodged the car. Considering his violent conduct and in light of his abusive
history with her, it was reasonable for C.Q. to conclude that any resistance on her
part would not have prevented the rape. Defendant’s counter argument, that C.Q.
21 The defendant in Disedare also confiscated the victim’s keys and phone. 22 The beatings were severe enough that her eyes were swollen shut due to the facial injuries, and the choking caused her to lose consciousness at one point.
16 essentially consented to the act because she failed to explicitly tell Defendant that
she did not want to have sex and did not claim she was raped until after the police
filed charges, lacks merit. It is simply not reasonable for Defendant to assume that
the person he is beating and holding against her will is complying with his demands
for sex out of genuine consent, particularly when the victim is crying during the act.
It is impossible to divorce “the physical abuse and the demand for sex” and
immaterial that C.Q. did not initially identify what happened to her as a rape.
Accordingly, the State has proved beyond a reasonable doubt that Defendant raped
C.Q. and that his force or threats of force prevented her from resisting due to a
reasonable belief that such resistance would not prevent the rape.
Constitutionality of Sentence
For his second assignment of error, Defendant argues that his thirty-year
sentence for second degree rape, without the possibility of probation, parole, or
suspension of sentence, is unconstitutionally excessive considering his lack of a
criminal record and other mitigating factors. Defendant filed an objection in the
record at sentencing and submitted a motion to reconsider sentence, arguing simply
that the sentence imposed upon him was excessive.
State’s Argument
The State contends that Defendant’s sentence is justified due to the prolonged
physical and psychological pain that he inflicted on C.Q. through numerous rapes
across a twelve-hour period. The State emphasizes that Defendant is an “extremely
violent individual” who repeatedly beat and raped C.Q., held her without the ability
to contact anyone else, withheld medical treatment despite repeated requests, and at
one point continued to have sex with her despite her crying from pain. Furthermore,
while Defendant is a first-time offender, the State points out that this was hardly the
17 first time that Defendant physically abused people with whom he was in a
relationship. Accordingly, the State asserts that his thirty-year sentence, which is
significantly below the maximum, is well deserved and that any less would deprecate
the seriousness of Defendant’s crimes.
Louisiana courts have laid out the following guidelines with regard to
constitutionally excessive sentence review:
Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042–43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant’s sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
18 433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95- 2784 (La. 5/31/96); 674 So.2d 957, 958.
State v. Soileau, 13-770, 13-771, pp. 4–5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,
1005–06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.
First, this court must look to the nature of the offense. Second degree rape is
defined as a crime of violence pursuant to La.R.S. 14:2(B)(10). Beyond that, as the
trial court noted, the record shows that Defendant engaged in excessive, deliberate
cruelty to C.Q. Defendant raped C.Q. numerous times, including once while she
was crying in pain, during a lengthy span of time that encompassed one night and
much of the following morning. He repeatedly beat her and threatened to, and
possibly even meant to, run her down with an automobile. He “[kept C.Q.] basically
in prison for various days” and denied her medical care despite repeated requests.
As a result of his egregious conduct, his victim sustained serious physical injuries
and at one point doubted she was even going to survive.
Second, this court must look to the nature and background of Defendant. As
noted at sentencing, Defendant is a father of six and a first-time offender without
any prior criminal convictions. The trial court acknowledged this but opined that
while this was “[Defendant]’s first felony conviction[,] he picked a doozy.” The
trial court described Defendant as follows: “He’s a predator, he’s an abuser. A
19 manipulator. The Devil, I call it[.]” The trial court specifically highlighted his long
history of domestic violence, noting that while C.Q. was not his first victim, she was
the victim who spoke up and finally got him convicted. Accordingly, the trial court
determined that he posed an undue risk. Further, the trial court also determined that
Defendant remained a credible threat to C.Q. and posed a danger to her safety.
Third, this court must compare sentences imposed for similar offenses.
Pursuant to La.R.S. 14:42.1(B), second degree rape carries a sentencing range of not
less than five and no more than forty years at hard labor, without benefit of probation,
parole, or suspension of sentence. Thirty years is in the upper half of the sentencing
range but is still well below the maximum. We note that most such convictions
involve juveniles, active resistance by the victim, use of a deadly weapon, or explicit
threats made right before or during the rape. After excluding such cases and only
considering convictions involving first offenders, we nonetheless find that what
jurisprudence there is supports Defendant’s thirty-year sentence.
In State v. Bedoya, 08-630 (La.App. 5 Cir. 12/16/08), 998 So.2d 1283, writ
denied, 09-484 (La. 11/20/09), 25 So.3d 784, the fifth circuit upheld a thirty-year
sentence for a defendant who kidnapped his estranged wife, beat and lacerated her
with numerous instruments, and later demanded oral sex. Similar to C.Q., the victim
in Bedoya “did not want to have sex with defendant, but complied because she was
scared and thought it was the only way defendant would release her.” Id. at 1285.
Despite her compliance and efforts to convince the defendant that she was enjoying
the sex, which was recorded on video and showed to the jury, he continued to beat
her. For cases involving first offenders convicted of committing forcible rape
involving either explicit threats against or active resistance by the adult victim, the
jurisprudence suggests a range between twenty and forty years, which would make
20 Defendant’s sentence about average. State v. Myers, 07-854 (La.App. 5 Cir.
4/29/08), 981 So.2d 214, writ denied, 08-1325 (La. 2/13/09), 999 So.2d 1145
(upholding a twenty-year sentence for forcible rape for a first-time felony offender
who, while neither beating nor assaulting his victim, did threaten to kill her in front
of her children if she screamed); and State v. Greer, 553 So.2d 892 (La.App. 4 Cir.
1989) (upholding a forty-year sentence for forcible rape where a first offender broke
into the victim’s home, demanded sex, and raped her after a struggle).
The trial court reviewed the pre-sentencing investigation report and
considered the sentencing factors outlined in La.Code Crim.P. art. 894.1. The trial
court ultimately concluded that probation or any lesser sentence would deprecate the
seriousness of Defendant’s offense. Incarceration for thirty years for second degree
rape, in light of Defendant’s extreme violence, deliberate cruelty, and lengthy history
of domestic abuse, is neither grossly disproportionate nor does it shock the
conscience. Considering the foregoing, we find the trial court did not abuse its
discretion when it imposed a concurrent thirty-year sentence at hard labor, without
benefit of probation, parole, or suspension of sentence.
DECREE
We affirm Defendant’s conviction and sentence. We direct the trial court to
inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending
appropriate written notice to Defendant within ten days of the rendition of this
opinion and to file written proof in the record that Defendant received the notice.
AFFIRMED; REMANDED WITH INSTRUCTIONS.