STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-810
STATE OF LOUISIANA
VERSUS
CLYDE SANTON DISEDARE, JR. A/K/A CLYDE SANTON DISEDARE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 62237 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
AFFIRMED. Keith A. Stutes District Attorney John V. Ghio Assistant District Attorney 100 North State Street, Suite 215 Abbeville, Louisiana 70510 (337) 898-4320 Counsel for Appellee: State of Louisiana
Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 Counsel for Defendant/Appellant: Clyde Santon Disedare, Jr.
Clyde Santon Disedare, Jr. In Proper Person Rayburn Correctional Center 27268 Highway 21 Angie, Louisiana 70426 Defendant/Appellant KEATY, Judge.
Defendant appeals his convictions and sentences. For the following reasons,
Defendant’s convictions and sentences are affirmed.
FACTS & PROCEDURAL BACKGROUND
On September 5, 2017, Defendant, Clyde Santon Disedare, Jr., was charged
by bill of information with two counts of second degree rape, violations of La.R.S.
14:42.1; second degree battery, a violation of La.R.S. 14:34.1; false imprisonment,
a violation of La.R.S. 14:46; and simple arson, a violation of La.R.S. 14:52. On
October 25, 2017, an amended bill of information was filed, charging Defendant
with two counts of second degree rape, violations of La.R.S. 14:42.1; second
degree battery, a violation of La.R.S. 14:34.1; false imprisonment while armed
with a dangerous weapon, a violation of La.R.S. 14:46.1; simple arson, a violation
of La.R.S. 14:52; domestic abuse aggravated assault, a violation of La.R.S. 14:37.7;
and domestic abuse battery by strangulation, a violation of La.R.S. 14:35.3(L).
Defendant’s estranged wife, Stacey Disedare, was the victim in all counts. The
events or crimes at issue occurred during an approximate thirteen-hour period
between July 25, 2017 through July 26, 2017.
On October 2, 2017, Defendant filed a pro se Motion for Fast and Speedy
Trial, which the trial court set for hearing on October 26, 2017. Defendant’s
motion was continued to November 16, 2017, although defense counsel refused to
adopt the motion. On February 26, 2018, Defendant waived his right to a jury trial
and elected a bench trial. Another Waiver of Constitutional Right to a Jury Trial
was filed on September 17, 2018. On October 11, 2018, defense counsel filed a
Motion to Quash and argued the two counts of second degree rape should be
quashed as duplicitous; the motion likewise claimed the second degree battery and
the domestic abuse battery by strangulation were duplicitous and should be quashed. The motion was set for hearing on October 25, 2018, although it was
subsequently continued by defense counsel to November 8, 2018. The motion was
never ruled upon.
Defendant’s bench trial began on April 17, 2019, and concluded on April 18,
2019. He was found guilty as charged on all counts except count four, i.e., vaginal
second degree rape. On June 27, 2019, Defendant was sentenced as follows: for
second degree rape, “thirty years at hard labor to serve, two years imposed without
benefit”; for second degree battery, seven years at hard labor; for false
imprisonment while armed with a dangerous weapon, nine years at hard labor; for
simple arson, four years at hard labor; for domestic abuse by aggravated assault,
four years at hard labor; and for domestic abuse by strangulation, two years at hard
labor. The sentences were ordered to run concurrently to each other but
consecutive to any sentence he may have been already serving. Defendant was
ordered to register as a sex offender for the remainder of his life.
Defendant now appeals his convictions and sentences for second degree rape,
second degree battery, false imprisonment while armed with a dangerous weapon,
simple arson, and domestic abuse by aggravated assault. He contends there was
insufficient evidence to convict him and argues his convictions should be vacated,
and he should be entitled to a new trial based because a sanity commission was
ordered but never concluded. As a raised error patent, Defendant contends his
sentence for second degree rape is indeterminate because the trial court failed to
specify which benefits were restricted for two years. Defendant has also raised the
following five assignments of error pro se: the State’s failure to perform DNA
testing on oral swabs taken from the victim constitutes a violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963); the trial court erred in failing to rule
upon Defendant’s motion to quash; Defendant’s sentence is invalid under La.Code 2 Crim.P. art. 872; there was insufficient evidence to convict him of second degree
rape; and the victim’s testimony at trial was perjury.
DISCUSSION
I. Errors Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find two
possible errors patent raised. They are discussed below as an assigned error patent
and in Assignment of Error No. 1.
Defendant’s brief raises an error patent that the trial court failed to specify
which benefits were restricted when it sentenced him for second degree rape to
serve “thirty years at hard labor . . . , two years imposed without benefit.”
Defendant contends the trial court’s failure to list which benefits are restricted
renders the sentence indeterminate and necessitates remand as provided in State v.
Ducote, 18-60 (La.App. 3 Cir. 11/14/18), 260 So.3d 627, writ denied, 18-2026 (La.
4/22/19), 268 So.3d 298. The State concedes that this may be an indeterminate
sentence which needs to be corrected if this court so rules, also citing Ducote.
Pursuant to La.R.S. 14:42.1(B), “[a]t least two years of the sentence imposed
shall be without benefit of probation, parole, or suspension of sentence.”
According to La.R.S. 15:301.1(A):
When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
3 In State v. Patterson, 16-1104, p. 8 (La.App. 4 Cir. 3/7/18), 241 So.3d 433,
440, writ denied, 18-611 (La. 2/11/19), 263 So.3d 897, the fourth circuit explained,
“[p]ursuant to La. R.S. 15:301.1 A and State v. Williams, 2000-1725, pp. 10-11 (La.
11/28/01), 800 So.2d 790, 798-799, a sentence is deemed to have been imposed
with these restrictions of benefits even in the absence of the district court
delineating them.”
Additionally, Defendant’s reliance on Ducote is misplaced. Although this
court in Ducote remanded for resentencing, the remand was based on the time
frame of said restrictions rather than upon the trial court’s failure to specify which
restrictions were imposed. Ducote, 260 So.3d 627. Ducote is one of many cases
wherein Louisiana courts have remanded a sentence for resentencing when a trial
court, that has been granted discretion over the amount of time probation, parole,
or suspension of sentence may be restricted, failed to exercise that discretion and
instead repeated the statute’s language that at least X number of years be without
benefit. That issue is not present in this case because the trial court specified two
years of Defendant’s sentence were to be without benefits. The need for the trial
court to specify which benefits are restricted is obviated by La.R.S. 15:301.1(A).
By operation of law, Defendant’s sentence is to be served without benefit of
probation, parole, or suspension of sentence. There is no need for this court to
remand Defendant’s sentence.
We find this assignment of error lacks merit.
II. Assignment of Error No. 1
In his first assignment of error, Defendant contends the trial court erred in
allowing defense counsel to not adopt the motion and cancel the Motion for Sanity
Hearing and proceed to trial without a resolution of Defendant’s competency. We
find this assignment of error is based upon appellate counsel’s erroneous belief that 4 Defendant filed a pro se Motion to Appoint Sanity Commission. This error stems
from a typographical error in the trial court’s minutes dated October 26, 2017,
which stated: “SANITY HEARING set for today. The Defense moved to
CONTINUE this matter to 11/16/2017 with no objection. The defendant was
represented by counsel XAVIER ALEXANDER who is NOT ADOPTING this
motion. The Court so ordered.”
According to a footnote in his brief, appellate counsel interpreted this minute
entry and the lack of a Motion to Appoint Sanity Commission in the record to
indicate Defendant submitted the motion pro se. However, no such motion was
filed nor was a sanity commission appointed. The Vermilion Parish Clerk of Court
submitted a corrected minute entry for October 26, 2017, which states the motion
scheduled for hearing that day was a motion for speedy trial which Defendant filed
in proper person. The corrected minute entry was accompanied by an affidavit
affirming there was a typographical mistake. We further note that a pro se Motion
for Fast and Speedy Trial was filed on October 2, 2017, and scheduled for hearing
on October 26, 2017. Since the motion in question on October 26, 2017 was a
motion for speedy trial rather than a motion to appoint a sanity commission,
Defendant’s claim lacks merit.
Furthermore, to the extent Defendant argues La.Code Crim.P. art. 642
prohibits the trial court from moving forward in a case once a defendant’s mental
capacity to proceed is brought into question, this argument lacks merit. Defendant
complains that because the trial court ordered him to undergo a psychiatric
evaluation as a condition of bail, the trial court indicated it was concerned with
Defendant’s competency. We find no evidence the trial court was concerned with
Defendant’s competency to stand trial. Although the trial court ordered Defendant
to undergo a psychiatric evaluation, that condition of bail arose from the Louisiana 5 Uniform Abuse Prevention Order issued on July 31, 2017, in accordance with the
trial court’s ruling during the Gwen’s Law hearing held the same day. The trial
court ordered the psychiatric evaluation by simply checking a box on the form,
which sets out fourteen specific conditions of the order which are routinely set.
With no other evidence to indicate the trial court was concerned with Defendant’s
mental capacity to proceed to trial, this assignment of error lacks merit.
III. Assignment of Error No. 2 and Pro Se Assignment of Error No. 4
In Defendant’s second assignment of error and fourth pro se assignment of
error, he contends there was insufficient evidence to convict him of second degree
rape. Both assignments of error argue, either directly or indirectly, that the failure
to conduct DNA testing on the oral swabs taken from Mrs. Disedare was an error
that prevented Defendant from proving his innocence of the oral second degree
rape. Pursuant to La.R.S. 14:42.1(A)(1), the State must prove the rape occurred
“[w]hen the victim is prevented from resisting the act by force or threats of
physical violence under circumstances where the victim reasonably believes that
such resistance would not prevent the rape.” Defendant contends the State failed
to prove this element of the offense and cites State v. Powell, 438 So.2d 1306
(La.App. 3 Cir.), writ denied, 443 So.2d 585 (La.1983), for support. Defendant’s
pro se argument alleges the State failed to prove penetration; and, therefore, his
conviction should be overturned.
The analysis for insufficient-evidence claims 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 6 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.
Second degree rape pursuant to La.R.S. 14:42.1 provides:
A. Second degree rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
A conviction for second degree rape requires the State to prove: “(1) . . .
sexual intercourse regardless of degree of penetration; (2) lack of consent of the
victim; (3) a victim who was prevented from resisting by force or threat of physical
violence; and (4) a victim who reasonably believed that resistance would not
prevent the rape.” State v. Wallace, 00-1745, p. 9 (La.App. 5 Cir. 5/16/01), 788
So.2d 578, 584, writ denied, 01-1849 (La. 5/24/02), 816 So.2d 297. Although the
quote from Wallace actually states “anal or vaginal sexual intercourse,” we note
this is because La.R.S. 14:42.1(A) was amended after Wallace to include oral rape
along with anal and vaginal rape.1 Id.
Defendant’s convictions and sentences for second degree rape arose
following the testimony and evidence presented at trial and in the record on review.
The State’s first witness at trial was Sergeant Mike Dunn of the Vermilion Parish
Sheriff’s Office. Sergeant Dunn testified that on July 26, 2017, he proceeded to a
1 See 2001 La. Acts No. 301, § 1. 7 Lafayette Parish hospital to interview a victim regarding a crime that occurred in
Maurice, Louisiana. He revealed that at the hospital, he met Defendant’s wife,
Stacey Disedare, who had severe facial bruising and lacerations. She told Sergeant
Dunn that Defendant, “her estranged husband,” had attacked her when she exited
her vehicle by punching her, knocking her down, and choking her unconscious.
Sergeant Dunn recalled that as Mrs. Disedare described the nearly thirteen-hour
ordeal, she was still piecing together memories while sitting in the emergency
room. According to Sergeant Dunn, Mrs. Disedare stated she woke up with
Defendant slapping her before he helped her into the house, pushed her into a chair,
and demanded she perform oral sex. Mrs. Disedare told Sergeant Dunn she
performed the oral sex because she did not want to anger Defendant and suffer
another beating. She remembered Defendant having a knife at some point and
recalled Defendant telling her he had burned her clothing. Sergeant Dunn testified
that he found a burn pile at the same location described by Mrs. Disedare and
noted dead grass had been thrown over the area in an attempt to conceal the burnt
ground. Sergeant Dunn testified that he smelled burnt clothing and found burnt
clothing in a nearby little trailer. He described the little trailer as one “that you
could use to pull behind your lawnmower.” When asked if the burn spot was
recent, Sergeant Dunn replied that “you could smell that it was fresh.”
According to Sergeant Dunn, Mrs. Disedare revealed that during the
thirteen-hour ordeal, Defendant let her to take a shower after which she put on
pajamas and got into her bed. She told Sergeant Dunn that Defendant, who was
naked, climbed into the bed with her, took off her pajama bottoms, and penetrated
her three times. Mrs. Disedare told Sergeant Dunn that during the night,
Defendant gave her pills which she ingested. According to his testimony, Mrs.
Disedare stated that she had thrown up blood. He explained that around 10:00 or 8 10:30 the next morning, Mrs. Disedare convinced Defendant to return her keys and
phone, and she called an ambulance. Sergeant Dunn noted that Mrs. Disedare
advised that the sexual interactions were not consensual; however, she failed to
resist because she did not want to sustain additional beatings. The State then
walked through a number of photographs which were entered into evidence,
including photographs of Mrs. Disedare’s face which revealed that both of her eyes
were swollen and virtually shut.
Sergeant Dunn explained that he and another deputy went to Mrs. Disedare’s
residence after obtaining arrest warrants for Defendant. Sergeant Dunn testified
that during their interaction with Defendant at the residence, he admitted to beating
Mrs. Disedare. Sergeant Dunn noted that they did not find the knife Mrs. Disedare
claimed Defendant used although they did not initially search the house; instead,
they arrested Defendant and transported him. Sergeant Dunn subsequently
obtained a warrant for Defendant’s DNA, which was retrieved from Defendant by
Sergeant Kim Verret.
On cross-examination, Sergeant Dunn acknowledged that he was confident
clothes belonging to a woman were burned “because of the thickness of the
material,” although he could not verify to whom the clothes belonged. He
confirmed that Mrs. Disedare stated Defendant was armed with a knife but was
unsure as to exactly when he had the knife, and she did not allege Defendant used
the knife on her. Sergeant Dunn testified that a rape kit was conducted on Mrs.
Disedare during the three hours he was with her at the hospital. He confirmed Mrs.
Disedare told him she never told Defendant “no” or to “stop” with regard to the
sexual assaults because she was afraid Defendant would beat her again.
The State then called the victim, Mrs. Disedare, who acknowledged a 2002
felony conviction for theft of food stamps. She stated that on July 25, 2017, she 9 was at a friend’s house. When Mrs. Disedare subsequently returned home before
10:00 p.m., she saw one of her vehicles had been moved and the light was
illuminated inside her shed. She testified that she exited her car and before she
could open the back door to let her dog out, Defendant “appeared out of the dark
and started pushing” her. Mrs. Disedare explained that she and Defendant had
been separated since February 2017. She revealed they had lived together as
roommates, not sharing a bedroom, at one point while trying to fix their marriage.
Mrs. Disedare testified she told Defendant he should not be at her house because
she thought there was a restraining order; the restraining order had actually expired
at the time. She stated that Defendant pushed her away from her vehicle until she
fell, at which time she struggled to escape until he wrestled her down from behind
and began choking her. Mrs. Disedare revealed that Defendant hit her in the face
before she fell and choked her until she was unconscious. She recalled waking up
to Defendant hitting her in the face but was unsure how long she was unconscious.
Mrs. Disedare testified that after waking up to Defendant hitting her, he
pushed her towards the house and forced her to hurry inside. She recalled that
during this time, she could barely see and was having trouble standing. Upon
entering the house, Mrs. Disedare noticed Defendant had ransacked the home. She
testified that Defendant was “ranting and raving about this and that, just -- and
while he was ranting and raving, he was just [] swinging back and forth on me.”
According to her testimony, she was trying to figure out how to escape and
revealed that during the initial attack, Defendant took her keys and threw them into
the yard. Mrs. Disedare revealed that Defendant took her phone. She testified that
her face was swollen, her eyes were swollen shut, and Defendant continued to beat
her while she was in a recliner that Defendant had shoved her into.
10 Mrs. Disedare testified that during the course of Defendant’s ranting and
raving, he unzipped his pants, “pull[ed] himself out,” and told her “to suck it.” She
testified that she complied with Defendant’s request although he subsequently
became frustrated when he was unable to get an erection and stopped her. Mrs.
Disedare was adamant that she did not consent to the oral sex, stating that she
feared Defendant. She testified that around that time, Defendant had a knife and
threatened to kill her. Although she could not describe the knife because her eyes
were swollen, she recalled seeing “a glimmer of a blade” and felt the point of the
knife poke her in the chest. Mrs. Disedare testified that she continuously begged
Defendant to stop although he continued beating her. She recalled having trouble
breathing because she was coughing up blood and had blood coming from her nose.
Mrs. Disedare revealed that Defendant started berating her and instructed her
to clean up the messy house, only to continue shoving her and hitting her when she
was not moving quickly enough. According to her testimony, she ended up on the
sofa where she attempted to shield her head while Defendant was striking her. Mrs.
Disedare explained that she was trying to figure out how to escape but was unable
to because Defendant would not let her near the door, would not leave her
unattended, and she believed he still had a knife in his back pocket.
Mrs. Disedare testified that at daybreak, Defendant told her to clean up in
the shower. She revealed that during her shower, Defendant entered the bathroom
several times and was annoyed because of how long she was taking. After her
shower, Mrs. Disedare put on pajamas, got into bed, and pretended to be asleep in
the hopes Defendant would not beat her again. She stated that Defendant brought
her pills and told her it would help with her pain. According to her testimony, at
this point, Defendant told her he would take care of her.
11 Mrs. Disedare testified that after Defendant gave her medication, he got into
bed naked where he took her pants off, spread her legs, and “tried to penetrate” her.
She explained that Defendant penetrated her a few times but “couldn’t get a full
erection and he got frustrated and got out of bed.” According to Mrs. Disedare,
Defendant did not ejaculate during either sexual assault. Mrs. Disedare testified
that she was afraid she was going to lose her eyesight from the beating and begged
Defendant to let her call an ambulance, convincing him she would lie and say she
fell and could not drive herself to the hospital. According to her testimony, Mrs.
Disedare suggested Defendant hide and noted he sat in the room while she called
the ambulance after he returned her phone. Mrs. Disedare testified Defendant had
to dial 9-1-1 because she could not see her phone, and she was unsure what time
the call occurred.
Mrs. Disedare testified that she threw up blood in the ambulance on the way
to the hospital. Upon arrival, the doctors explained that her injuries were not the
result of a fall, at which point she told them Defendant had beaten her. She told
them Defendant had “forced himself” upon her, and they called law enforcement.
Mrs. Disedare testified that a nurse did a rape kit on her. Acknowledging the
hospital performed a toxicology screen and found opiates and cocaine in her
system, Mrs. Disedare testified that she had a prescription for opiates, namely
Percocet, and had no idea why she tested positive for cocaine. She testified she
was at the hospital for hours and was not discharged until after dark.
Mrs. Disedare testified that she returned home the following day after being
informed Defendant had been arrested. She stated Defendant had told her while
beating her that he had “burned a bunch of [her] clothes and stuff as well.” Over
the following days and weeks, Mrs. Disedare testified that she noticed several
articles of clothing were missing. She revealed that she found the clothes she and 12 Defendant wore on July 25 in the dryer and assumed Defendant had washed them.
She testified that numerous hats and caps were missing, along with sports shirts
and memorabilia clothing. She stated that “family paperwork dating back to the
1700s” was missing and estimated around $2,000 worth of property was gone.
Mrs. Disedare noted that she suffered a “[b]roken nose, bruised face, bruised arm,
shoulder, [and] bruised neck.”
On cross-examination, Mrs. Disedare acknowledged that she could not be
sure what the red material in the burn remains was. She acknowledged that at the
time of the attack, Defendant had a restraining order against her. She
acknowledged that she previously attempted to get a restraining order against
Defendant extended in March 2017, which was denied on March 28, 2017 after a
hearing, with the reason being a failure to prove facts. Mrs. Disedare admitted that
her request for a restraining order was denied for the same reason on May 9, 2017,
after a hearing before a different judge. She acknowledged speaking to Defendant
a few days before the attack but stated she had not seen him since the court
proceedings in May 2017. Mrs. Disedare testified that she was not conscious the
entire time because Defendant choked her unconscious more than once.
Confronted with medical reports indicating she denied loss of consciousness, Mrs.
Disedare testified she had denied losing consciousness during the ambulance ride.
The State called Desiree Breaux, an emergency room nurse at Lafayette
General Medical Center. She testified that she was present when Mrs. Disedare
related the events to Sergeant Dunn, stating the victim alleged having been
sexually assaulted. Noting that she was not a SANE nurse, Ms. Breaux testified
that she had performed over a hundred sexual assault exams when she worked at
Charity Hospital in New Orleans, and she testified she performed one on Mrs.
Disedare. According to Ms. Breaux, she noted Mrs. Disedare had abrasions to her 13 forehead, both eyes were swollen and bruised, her nose was red and swollen, her
lips were bruised, and there were scratches on her neck. She recalled that Mrs.
Disedare had abrasions to her back and contusions to her arm.
Ms. Breaux recounted her notes of what Mrs. Disedare told Sergeant Dunn.
Mrs. Disedare stated Defendant approached her and began slapping and punching
her and choked her until she passed out. When Mrs. Disedare attempted to get her
dog out, Defendant again pushed her and slapped her until she fell. Ms. Breaux
noted “[i]t didn’t sound like she lost consciousness at that time.” Mrs. Disedare
stated Defendant was choking her while threatening to kill her. When Mrs.
Disedare awoke to Defendant slapping her, she entered the house which was
damaged and recalled that Defendant had “burned her clothes.” Mrs. Disedare
stated Defendant continued to punch and slap her while she was in a recliner
before he ordered her to clean the home and take a shower. She indicated
Defendant became nicer “due to the fear of her injuries.” Eventually, Defendant
allowed Mrs. Disedare to call an ambulance and hid when they arrived. Mrs.
Disedare stated that after her shower, Defendant climbed into bed and penetrated
her three times without her consent and without a fight due to the trauma already
inflicted.
The State called Jeremy Dubois of the Acadiana Crime Lab, whom the
parties stipulated was an expert in forensic biology. Mr. Dubois testified that he
performed an initial screening on the sexual assault kit for blood and seminal fluid.
He performed DNA testing of the external genital swabs and screened the victim’s
clothing. Mr. Dubois testified there was blood on both fingernail swabs, the
vaginal swabs, the external genital swab, as well as on the victim’s shirt and pants.
He testified there was no seminal fluid detected on the vaginal, oral, or external
genital swabs or the clothing. Mr. Dubois explained there were mixed DNA 14 profiles located on the swabs taken from the waistband and crotch regions of Mrs.
Disedare’s pants. He revealed that there was a partial male profile on the external
genitals although it was too incomplete to make a positive identification. With
regard to the waistband of Mrs. Disedare’s pants, Mr. Dubois testified that there
was a mixed DNA profile which included at least three males, and Defendant
could not be excluded as a contributor. He testified that approximately 99.991
percent of the male population could be excluded although Defendant was in the
0.009 percent that could not be excluded. Mr. Dubois noted there was a mixed
profile containing at least two males on the crotch of the pants, and Defendant
could not be excluded as a contributor.
The State called Acadiana Crime Lab’s Bethany Harris, who was accepted
as an expert in forensic biology. Ms. Harris explained that a true allele test is a
more detailed, computer-aided testing technique than STR or Y-STR testing. She
noted that true allele testing, like STR testing, tests both male and female alleles,
unlike Y-STR testing which only tests male alleles. Ms. Harris revealed that
Defendant could not be excluded as a contributor to the mixed profiles on Mrs.
Disedare’s waistband or crotch. Ms. Harris noted no true allele testing was done
on the external genital swabs because the profile produced “was single source and
matched” to the victim. The State rested its case, and the defense chose not to call
any witnesses.
On appeal, Defendant contends the State failed to prove the third element of
the offense, that Mrs. Disedare was prevented from resisting by force or threat of
physical force. As noted above, Defendant relies on Powell, wherein this court
overturned a conviction for violating La.R.S. 14:42.1 because “the evidence is
insufficient to convince a reasonable fact finder beyond a reasonable doubt that the
victim was prevented from resisting the act by threats of force or physical violence 15 under the circumstances.” Powell, 438 So.2d at 1308. We find Powell is
distinguishable from the instant matter based upon a paragraph of this court’s
ruling which Defendant omitted from his nearly full-page quotation:
Even if we were to give conclusive weight to the victim’s testimony in the trial, the State has still failed to present evidence to prove an essential element of the crime. This is evidenced by the trial court’s doubt in his reasons as stated above. Certainly, the victim was afraid, but she also testified that the defendant said he would not hurt her. It is important to note that all of the witnesses who saw the victim immediately after the alleged rape testified that they did not see any cuts, bruises or evidence of any physical attack. Her own testimony indicates that she did not make any efforts to resist. The victim asserted at trial that the defendant threatened to kill her, yet, he did nothing to warrant a reasonable person in these circumstances to believe that resistance would not prevent the rape. The victim testified that she took her own pants off while defendant disrobed. She admitted that she never saw the object under the seat which defendant allegedly threatened to kill her with.
Id.
In this case, testimony revealed that the victim was afraid. The testimony
revealed Defendant had beaten and choked the victim unconscious outside, forced
her into the house, beat her again before taking off his pants and demanding oral
sex, and beat her again after the act. Although Mrs. Disedare testified that she did
not resist but attempted to perform oral sex before Defendant got frustrated and
zipped his pants up when he could not get an erection, she also testified the sex
was not consensual and performed out of fear that Defendant would continue
beating her if she refused. Mrs. Disedare’s testimony also revealed that although
she attempted to perform oral sex, Defendant continued to physically abuse her
afterward when she was unable to clean up the house fast enough due to the
injuries she previously sustained from Defendant.
As noted by the second circuit in State v. Ponsell, 33,543, p. 5 (La.App. 2
Cir. 8/23/00), 766 So.2d 678, 682, writ denied, 00-2726 (La. 10/12/01), 799 So.2d
490: 16 The testimony of the victim alone was sufficient to convict the defendant. As noted previously, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, writ denied[,] 99-0210 (La.5/14/99), 745 So.2d 12. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175; State v. Standifer, 513 So.2d 481 (La.App. 2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant.
Accordingly, Mrs. Disedare’s testimony alone was sufficient to prove that
she was prevented from resisting by force and that she reasonably believed
resistance would be futile. This part of Defendant’s sufficiency claim lacks merit.
With regard to Defendant’s claim that the State failed to prove penetration, we note
Mrs. Disedare’s testimony that she was performing oral sex when Defendant got
frustrated and stopped her. Any penetration is sufficient for second degree rape,
and the act of putting his penis inside Mrs. Disedare’s mouth satisfied the
penetration requirement with regard to oral sex. This argument lacks merit.
Both assignments of error contend the trial court erred in accepting Mrs.
Disedare’s testimony, with Defendant’s pro se argument specifically arguing it was
wrong for the court to find Mrs. Disedare’s testimony consistent with regard to the
oral rape but inconsistent regarding the vaginal rape. As noted by the fifth circuit
in State v. Moore, 16-644, p. 11 (La.App. 5 Cir. 3/15/17), 215 So.3d 951, 961,
“[w]hen the trier of fact is confronted by conflicting testimony, the determination
of that fact rests solely with that judge or jury, who may accept or reject, in whole
or in part, the testimony of any witness.” The trial court, acting as trier of fact,
could have believed Mrs. Disedare’s testimony regarding the oral rape, which
remained consistent from initial reporting until trial, while disbelieving the vaginal 17 rape testimony, which changed from Defendant tried to penetrate her to he did
penetrate her. This is especially true as the DNA experts testified there was not
enough male DNA present on the genital swabs taken from Mrs. Disedare to create
a profile. The trial court, sitting as trier of fact, heard this testimony and found
Defendant guilty. Viewing the evidence in a light most favorable to the
prosecution, we cannot say the State failed to prove its case. This argument lacks
merit.
Finally, regarding the issue of failure to test for DNA on the oral swabs
taken from Mrs. Disedare, we will address this issue along with Defendant’s first
pro se assignment of error, which contends the State violated Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194 (1963), by failing to test said swabs.
IV. Assignment of Error No. 3
In his third assignment of error, Defendant contends there was insufficient
evidence to support his conviction for second degree battery. Defendant suggests
there was no evidence Mrs. Disedare suffered extreme physical pain or that
Defendant inflicted serious bodily injury.
A “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.R.S. 14:33. Second degree battery is defined in La.R.S. 14:34.1(A) as “a battery when the offender intentionally inflicts serious bodily injury[.]” Pursuant to La.R.S. 14:34.1(B), serious bodily injury “involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.” As noted by this court in State v. Robinson, 549 So.2d 1282, 1284-85 (La.App. 3 Cir.1989):
To convict a person of second-degree battery, the State must prove the following elements beyond a reasonable doubt: (1) the intentional use of force or violence upon the person of another; (2) without the consent of the victim; and, (3) when the offender has specific intent to inflict serious bodily injury. State v. Fuller, 414 So.2d 306 (La.1982). Specific criminal 18 intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Moreover, specific intent is a state of mind which need not be proven as a fact, but may be inferred from the circumstances of the transaction and actions of the defendant. State v. Fuller, supra.
State v. Francisco, 10-881, pp. 2-3 (La.App. 3 Cir. 2/2/11), 55 So.3d 995, 997
(alteration in original). Although the specific portion of La.R.S. 14:34.1(B)
which was referenced in the quote has since been repealed, La.R.S. 14:2(C) states,
“[f]or purposes of this Title, ‘serious bodily injury’ means bodily injury which
involves unconsciousness; extreme physical pain; protracted and obvious
disfigurement; protracted loss or impairment of the function of a bodily member,
organ, or mental faculty; or a substantial risk of death.”
We find Mrs. Disedare’s testimony that she lost consciousness multiple
times throughout the course of the thirteen hours between her arriving home and
being allowed to call an ambulance is sufficient to support the conviction.
Although Defendant attacks this testimony due to Ms. Breaux’s notes “that it did
not sound like Mrs. Disedare lost consciousness at that time,” this is a
mischaracterization of Ms. Breaux’s testimony. While testifying, Ms. Breaux
specifically noted it did not sound like the victim lost consciousness during the
time between Defendant slapping her awake and pushing her into the house.
Furthermore, while Defendant contends there was no broken nose as reported by
Mrs. Disedare, her medical records include the following evaluation: “No acute
intracranial hemorrhage. Hematoma overlies the left orbit. Likely acute fracture
[to] the anterior superior nasal bones which are relatively nondisplaced.” Mrs.
Disedare’s nose may not have been broken, but it was fractured. Thus, there is
19 sufficient evidence to indicate she suffered serious bodily injury as defined by
La.R.S. 14:2(C). This assignment of error lacks merit
V. Assignment of Error No. 4
In his fourth assignment of error, Defendant contends the trial court erred in
finding sufficient evidence to convict him of false imprisonment while armed with
a dangerous weapon. Defendant insists it is questionable whether a dangerous
weapon was present since Mrs. Disedare admitted she never attempted to leave. In
support, Defendant relies upon State v. Touchet, 04-1027, p. 11 (La.App. 3 Cir.
3/9/05), 897 So.2d 900, 908, wherein this court stated:
In order for this court to uphold a conviction of false imprisonment while armed with a dangerous weapon, La.R.S. 14:46.1 requires the State prove that the Defendant unlawfully and intentionally confined or detained the victim while armed with a dangerous weapon.
Although the record established that the victim was intimidated by the Defendant, and that he insisted on accompanying her when they left the house, the record reflects no evidence whatsoever that the victim attempted to leave the home and was prevented from doing so by the Defendant.
Accordingly, we vacate the Defendant’s conviction for false [i]mprisonment while armed with a dangerous weapon.
As noted by the State in response, Mrs. Disedare testified that upon first
contact with Defendant, he dispossessed her of her cell phone and keys and threw
them in the yard before attacking her. Mrs. Disedare testified that she begged
Defendant on numerous occasions to let her leave or call an ambulance. Although
she could not describe the knife in detail because her eyes were swollen shut from
Defendant beating her, Mrs. Disedare testified she saw the metal of the knife,
believed Defendant was keeping it in his back pocket, and testified he put it to her
neck and chest and threatened to cut her heart out. Throughout her testimony, Mrs.
Disedare noted she could not outrun Defendant because she previously had
20 undergone hip replacement surgery. She testified on numerous occasions that she
could barely see because her eyes were swollen, a fact verified by her medical
records and photographs.
Although Defendant contends it is questionable whether a knife was present,
Mrs. Disedare told Sergeant Dunn in her initial report that Defendant had
threatened her with a knife. At trial, she testified that she could feel the knife and
believed it was in Defendant’s back pocket. Ms. Breaux confirmed that Mrs.
Disedare told Sergeant Dunn Defendant had a knife, remembering the same
language about cutting out Mrs. Disedare’s heart. The trial court, sitting as trier of
fact, heard this testimony and found Defendant guilty, evidencing a belief that
Defendant had been armed with a knife. Viewing the evidence in a light most
favorable to the prosecution, we cannot say the State failed to prove its case.
Accordingly, this assignment of error lacks merit.
VI. Assignment of Error No. 5
In his fifth assignment of error, Defendant contends there was insufficient
evidence to support his conviction of simple arson. Simple arson is defined by
La.R.S. 14:52(A)(1) as “[t]he intentional damaging by any explosive substance or
the setting fire to any property of another, without the consent of the owner and
except as provided in R.S. 14:51.” Mrs. Disedare testified Defendant told her he
had burned her property while he was beating her and that upon returning home,
she found around $2,000 worth of sports memorabilia, clothing, and family records
missing. Sergeant Dunn noted they found a burnt patch of grass upon first
approaching the house, which smelled fresh and smelled like burnt clothing.
Sergeant Dunn found ashes and burnt red cloth in a small trailer near the burn area,
which he stated had dead grass thrown over it in an attempt to disguise it.
21 Defendant’s sufficiency argument is that because neither Sergeant Dunn nor
Mrs. Disedare could identify exactly what article of her clothing was the burnt red
cloth, the State could not prove beyond a reasonable doubt that Defendant had not
simply been lying to Mrs. Disedare or that he had not burned his own clothing.
We find this assignment of error’s viability hinges upon the trial court’s decision to
believe Mrs. Disedare’s statement that Defendant confessed to burning her clothing.
Under La.R.S. 15:449, a confession is “an admission of guilt.” As this court noted
in State v. Richardson, 16-107, p. 27 (La.App. 3 Cir. 12/28/16), 210 So.3d 340,
358, “a confession is considered direct evidence[.]” Were it not for Defendant’s
confession to Mrs. Disedare, the State would have had to exclude every reasonable
hypothesis of innocence under the circumstantial evidence rule set forth in La.R.S.
15:438, including the insinuation at trial that Defendant may have burned his own
clothing.
We find that the circumstantial evidence rule does not apply because
Defendant’s conviction rested upon both direct and circumstantial evidence. Given
the trier of fact’s authority to make credibility determinations, we cannot say there
was insufficient evidence when viewing the evidence in a light most favorable to
the prosecution. Accordingly, this assignment of error lacks merit.
VII. Pro Se Assignment of Error No. 1
In his first pro se assignment of error, Defendant contends the State’s failure
to conduct DNA extraction or a Y-STR DNA analysis on the oral swabs taken
from Mrs. Disedare was a violation of Brady and Kyles v. Whitley, 514 U.S. 419,
115 S.Ct. 1555 (1995). Defendant alleges that the State’s failure to conduct such
testing undermines confidence in the outcome of the trial. We find that this
assignment of error lacks merit.
22 Mrs. Disedare’s testimony was that Defendant could not get an erection
when she performed oral sex on him and accordingly did not ejaculate. As such,
there would have been no seminal fluid present. Indeed, Mr. Dubois specifically
testified no spermatozoa were found on the oral swabs or slides. To the extent
there may have been contact DNA in the victim’s mouth from Defendant’s penis,
the victim testified she vomited multiple times prior to arriving at the hospital.
Additionally, the United States Supreme Court has previously stated there
are three components of a true Brady violation, “[t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82, 119 S.Ct. 1936, 1948 (1999). We note there was no suppression of
evidence in this case. Although the State did not conduct the testing Defendant
contends could have proven his innocence, Defendant was aware of the DNA
testing prior to trial as the minutes indicate that on November 7, 2018, the trial
court ordered additional DNA testing at Defendant’s request and over the State’s
objection. It is clear that the State provided Defendant with the results of DNA
testing performed and did not suppress anything. As such, Defendant’s complaint
regarding DNA testing is not actually a Brady claim under the components set out
by Strickler.
Finally, Defendant’s argument includes citations to La.Code Crim.P. arts.
924, 926.1, and 930.3. We note that all three of these articles are related to post-
conviction relief applications. Additionally, it is unclear how Defendant believes
DNA testing of the oral swabs taken from the victim would prove his factual
innocence since there was no claim he ejaculated and the victim vomited multiple
times prior to the swabs being taken. Even if this court would consider 23 Defendant’s claim under the rules of post-conviction relief, La.Code Crim.P. art.
926.1(B)(1) requires that DNA testing be able to “establish the innocence of the
petitioner.” As noted, DNA testing of the oral swabs from the victim would not
actually prove Defendant innocent. This pro se assignment of error lacks merit.
VIII. Pro Se Assignment of Error No. 2
In his second pro se assignment of error, Defendant contends the trial court
erred in failing to rule upon his motion to quash. We note that a Motion to Quash
was filed by trial counsel on October 11, 2018, and scheduled for a contradictory
hearing on October 25, 2018. The motion was continued at that time until the
scheduled November 16, 2018 trial date, which was itself continued and ultimately
never ruled upon. As suggested by Defendant, La.Code Crim.P. art. 537 requires
that a motion to quash “shall be tried by the court without a jury.” However, this
court has previously noted that “when a defendant proceeds to trial without
objecting to the trial court’s failure to rule on a pending motion, he waives any
further objections to the trial court’s failure to dispose of that motion.” State v.
Thibodeaux, 14-1002, p. 9 (La.App. 3 Cir. 3/11/15), 162 So.3d 665, 671.
Defendant’s bench trial began on April 17, 2019. Prior to the
commencement of trial, the trial court had Defendant verbally acknowledge that he
understood he was waiving his right to a jury trial and opting to be tried before a
judge. The trial court then immediately asked if the parties were ready, both the
State and defense counsel agreed they were, and the trial began. At no time was
any objection raised to the trial court’s failure to rule upon the motion to quash
filed on October 11, 2018. Furthermore, Defendant fails to assert that any
objection was ever raised. Accordingly, we find Defendant waived his right to
raise this assignment of error when he proceeded to trial without objection. This
pro se assignment of error lacks merit. 24 IX. Pro Se Assignment of Error No. 3
In his third pro se assignment of error, Defendant contends his sentence is
invalid under La.Code Crim.P. art 872, which requires that a valid sentence must
rest upon a valid and sufficient statute, indictment, and judgment of guilty.
Defendant argues both that the indictment, in this case a bill of information, was
defective and that the trial court’s judgment was invalid. For the following reasons,
this assignment of error lacks merit.
Defendant contends the bill of information fails to conform to the
requirements of Chapters 1 and 2 of Title XIII. Defendant opines that the trial
court acknowledged there seemed to be an issue with probable cause but would not
make a finding as to probable cause. As the second circuit noted in State v.
Robinson, 47,427, p. 8 (La.App. 2 Cir. 10/3/12), 105 So.3d 751, 756, “[a] bill of
information must set forth an identifiable offense and inform defendant of the
statutory basis of the offense, but need not set out detailed facts constituting
violation since those facts can be given to defendant by answers to a bill of
particulars.” We note that in the amended bill of information filed on October 25,
2017, all seven counts against Defendant specifically identify the offense by statute
number, the dates of the offenses, and the victim of the offenses. Accordingly, this
portion of Defendant’s assignment of error lacks merit.
Regarding Defendant’s claim that the trial court recognized an issue with
probable cause during the Gwen’s Law hearing, we note initially that the Gwen’s
Law hearing does not determine probable cause to charge a defendant, but rather
the specifics of bail in a case involving certain crimes, particularly those involving
domestic violence. See La.Code Crim.P. art. 313(A)(2). The issue of probable
cause is irrelevant at a Gwen’s Law hearing. Additionally, as the trial court noted,
probable cause on the offenses listed in the arrest warrant at the time of the Gwen’s 25 Law hearing had already been decided when the arrest warrant was issued.
Moreover, the Gwen’s Law hearing occurred on July 31, 2017, nearly three months
before the amended bill of information was filed. It has no bearing on the validity
of the bill of information, and this argument lacks merit.
Defendant further contends the trial court’s judgment was invalid because it
found Defendant guilty of oral forcible rape based upon the consistency of the
victim’s testimony regarding said sexual assault but also found him innocent of
vaginal forcible rape due to the inconsistent testimony of the victim. As discussed
above, there was physical evidence that at least raised reasonable doubt as to the
victim’s testimony regarding the vaginal rape allegation, namely the fact that she
testified Defendant used his saliva as lubricant before penetrating her three times;
however, there was insufficient DNA to obtain a male profile. The victim’s
testimony regarding the oral rape, however, was largely consistent with the
information she provided to Sergeant Dunn during their initial encounter at the
hospital. As such, the trial court was within its great discretion as the finder of fact
to believe part of Mrs. Disedare’s testimony but not all of it. Therefore, this pro se
assignment of error lacks merit because Defendant’s sentence is valid under
La.Code Crim.P. art. 872.
X. Pro Se Assignment of Error No. 5
In his fifth pro se assignment of error, Defendant contends the victim’s
testimony against him constitutes either perjury, in violation of La.R.S. 14:124, or
false swearing, in violation of La.R.S. 14:125. Defendant asserts that all of the
victim’s testimony should be ignored and deemed not credible because she gave
her original statements to Sergeant Dunn and Ms. Breaux while under the influence
of cocaine and opioids when she claimed she had not used cocaine and had a
prescription for opioids but did not present said prescription at trial. 26 We find this argument is asking this court to dismiss the trial court’s
determination that at least some of Mrs. Disedare’s testimony was credible and to
acquit Defendant because the evidence that convicted him was said testimony. As
noted in Kennerson, 695 So.2d at 1371, “[i]t 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.” As discussed
above, we cannot suggest this court invade the trier of fact’s great discretion to
determine witness credibility. To the extent Defendant argues his wife should be
prosecuted for violating either La.R.S. 14:124 or 14:125, that is a decision solely
within the purview of the District Attorney’s Office.
DISPOSITION
For the reasons assigned above, the convictions and sentences of Clyde
Santon Disedare, Jr., are affirmed.
AFFIRMED.