STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1070
STATE OF LOUISIANA
VERSUS
H.L.J.
****************
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 75068-F HONORABLE THOMAS F. FUSELIER, DISTRICT JUDGE
JAMES T. GENOVESE JUDGE
Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese, Judges.
AFFIRMED AS AMENDED WITH INSTRUCTIONS.
Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: H.L.J.
Trent S. Brignac District Attorney – Thirteenth Judicial District Kathy Meyers Assistant District Attorney Post Office Drawer 780 Ville Platte, Louisiana 70586 (337) 363-3438 COUNSEL FOR APPELLEE: State of Louisiana GENOVESE, Judge.
PROCEDURAL HISTORY
On November 20, 2007, Defendant, H.L.J.,1 was indicted by an Evangeline
Parish grand jury on one count of aggravated rape. On June 16, 2008, pursuant to
trial by jury, the jury returned a responsive verdict of guilty of forcible rape in
violation of La.R.S. 14:42.1.
On October 2, 2008, Defendant was sentenced to serve twenty-five years at
hard labor, with the first two years to be served without benefit of probation, parole,
or suspension of sentence. Defendant moved for reconsideration of his sentence on
the grounds of excessiveness, which the trial court denied.
Defendant appeals his conviction and sentence, alleging insufficiency of the
evidence and excessive sentence as his assignments of error. For the following
reasons, we affirm Defendant’s conviction and sentence, but amend his sentence to
reflect that he is denied diminution of sentence pursuant to La.Code Crim.P. art.
890.1(B) as opposed to La.R.S. 15:571.3.
STATEMENT OF FACTS
Lieutenant Chris Godeaux, of the Mamou Police Department, was the first
witness to testify at trial. Lieutenant Godeaux was on duty and patrolling by himself
in the early morning hours of August 19, 2007, when the dispatcher sent him to a
particular address in Mamou. When he arrived at the address, Lieutenant Godeaux
heard a male and female arguing inside the residence. He knocked on the door, and
Defendant, who was completely naked, answered the door. At that time, Defendant’s
estranged wife, B.F.J., exited the house wearing a pink nightgown and appeared
1 Initials are being used for both Defendant and the victim in order to protect the confidentiality of the victim in accordance with La.R.S. 46:1844(W).
1 hysterical. Lieutenant Godeaux then instructed Defendant to dress and exit the
residence.
Lieutenant Godeaux reported that, after Defendant put on a pair of pants and
exited the home, he handcuffed Defendant and detained him on the porch until he
could determine what had happened. Lieutenant Godeaux then went to find B.F.J.,
who had gone to a residence across the street. B.F.J., who was still hysterical and
crying, stated that she awoke to find Defendant standing in her bedroom. When she
asked why he was there, Defendant told her, “I came here to kill you.” Defendant had
a knife in his hand. B.F.J. instructed Defendant to leave, but he refused. Defendant
repeated that he was going to kill her and told her that before he killed her, “[he was]
gonna get [him] some.” Lieutenant Godeaux described B.F.J. as being distraught and
“a mess” during the interview.
Lieutenant Godeaux related that B.F.J. told him Defendant had raped her, and,
in accordance with protocol, he contacted Chief Dupuis, Assistant Chief Katina
Richard, and Acadian Ambulance. Once an ambulance arrived, the paramedics
transported B.F.J. to the hospital. B.F.J. was still very hysterical and frantic when
Lieutenant Godeaux turned her over to the paramedics.
Before she left for the hospital, B.F.J. told Lieutenant Godeaux that Defendant
had a knife, but that she had been able to get it away from him when he set it on the
floor during intercourse. Lieutenant Godeaux related that B.F.J. told him that she had
hidden the knife inside a towel that she had used to clean herself. B.F.J. stated that
she had taken the knife with her when she went across the street and dropped it in the
ditch. After B.F.J. pointed to where she had dropped the knife, Lieutenant Godeaux,
with the assistance of two of B.F.J.’s neighbors, located the weapon and collected it
2 as evidence. Lieutenant Godeaux and Assistant Chief Richard tagged the knife and
locked it away in the evidence room. At trial, the State presented Lieutenant
Godeaux with a folding knife in an evidence box, and he identified it as the weapon
taken from the ditch.
Lieutenant Godeaux described the ditch as a straight drainage ditch that ran
along a roadway intersecting the street where B.F.J. lived. He stated that it had water
in it which wet the knife. Lieutenant Godeaux did not take fingerprints from the knife
because of the moisture and because it was recovered from the location pointed out
by B.F.J.
Lieutenant Godeaux reported that he and Assistant Chief Richard entered the
house for the purpose of investigating and collecting evidence after they had
interviewed the witnesses. Defendant did not live in the house with B.F.J. Lieutenant
Godeaux inspected B.F.J.’s bedroom and collected evidence therein. When he
entered the bedroom, Lieutenant Godeaux noted that the sheets were not on the bed,
but were crumpled into one corner of the bed; otherwise, there was no disarray to
indicate that there had been a struggle. The sheets were collected as evidence. They
appeared to be stained with feces and blood.
Lieutenant Godeaux testified that they also collected the nightgown B.F.J. had
been wearing that morning. The sheets and the nightgown were sent to the Acadiana
Crime Lab. After completing his physical investigation of the site, Lieutenant
Godeaux arrested Defendant, transported him to the Mamou Police Department, and
advised him of his rights. During booking, Defendant asked Lieutenant Godeaux,
“How can a man rape his wife?” Lieutenant Godeaux explained to Defendant that
once a woman said “no,” it did not matter whether she was the man’s wife.
3 Lieutenant Godeaux finished booking Defendant based on accusations of domestic
abuse battery, aggravated rape, and criminal trespass.
Assistant Chief Richard was the second witness to testify at Defendant’s trial.
She testified that she had been at home, sleeping, when she was called about a
possible rape. Lieutenant Godeaux was present when Assistant Chief Richard arrived
at the scene, but B.F.J. was no longer there because she had left with the ambulance
service. Assistant Chief Richard assisted Lieutenant Godeaux in stripping the bed
and placing the sheets in an evidence bag. Assistant Chief Richard stated she was the
one who transported the sheets, B.F.J.’s clothing, and the rape kit to the crime lab.
Lorena Marcantel, B.F.J.’s neighbor across the street, testified as the State’s
third witness. Mrs. Marcantel stated that she was not that well-acquainted with B.F.J.
and did not visit with her or see her “that much.” Mrs. Marcantel also stated that she
was not well-acquainted with Defendant and seldom saw him visiting B.F.J.’s home.
Mrs. Marcantel related that, in the early morning of August 19, 2007, she
awoke to B.F.J.’s terrible, horrible cry at her window. This frightened Mrs.
Marcantel and caused her to believe something bad had happened. Mrs. Marcantel
told her husband, Charles R. Marcantel, to wake up, and then she went to the window
and peeped out. When she saw Defendant come onto their property, Mrs. Marcantel
told her husband to get up out of bed. Mrs. Marcantel recalled that she called the
police while her husband went outside. She stated that her son later went outside, but
that she was too frightened to go outside immediately.
Mrs. Marcantel explained that, although it was dark, she thought that
Defendant was naked at the time he came onto her property. She stated that she did
not see B.F.J. at that time. Mrs. Marcantel went outside later when the police arrived
4 and saw and comforted B.F.J., who was standing under their carport. Mrs. Marcantel
stated that she put her arms around B.F.J. because B.F.J. was crying in a scary,
terrible, and creepy manner.
Charles G. Marcantel, the son of Lorena and Charles R. Marcantel, was the
fourth witness to testify for the prosecution. He testified that he knew Defendant and
knew B.F.J. a little, but that he did not often visit with them socially. Charles G.
Marcantel stated that, on the morning of the incident, he heard banging on his
window and that B.F.J. was yelling that Defendant was after her and that she needed
to call the police. When he went outside, B.F.J. was standing under the Marcantel’s
carport “crying a lot,” Defendant was standing at B.F.J.’s house, and “they” were
looking for the knife. Charles G. Marcantel assisted in searching for the weapon.
After the weapon was found, the police took Defendant away.
On further examination, Charles G. Marcantel explained that he had gone to
the door when he first heard B.F.J. yelling and banging on the window. He reported
seeing Defendant at B.F.J.’s house, on the sidewalk or at the steps of the sidewalk at
that time. He stated that he thought Defendant had been wearing pants, but it was
dark and he was not sure. Charles G. Marcantel also stated that he saw a glimpse of
the knife.
Mr. Charles R. Marcantel, Lorena Marcantel’s husband and Charles G.
Marcantel’s father, testified as the State’s fifth witness. He testified that, on the
morning of August 19, 2007, he was awakened by a lady hitting his house and yelling
for help. When he got up and went to the door, he saw the city police on his lot. Mr.
Marcantel stated that he knew Defendant and was able to identify him in court. He
testified that Defendant was wearing clothes when he saw him that morning.
5 Although Mr. Marcantel did not recognize the voice calling for help, Mrs. Marcantel
identified the voice as B.F.J.’s. The only time Mr. Marcantel ever saw Defendant at
B.F.J.’s residence was that morning.
B.F.J. was the sixth witness to testify for the prosecution. She testified that she
was still married to Defendant at the time of trial. B.F.J. stated that she had married
Defendant in the summer of 2002, but that they had been separated. She testified that
they had no children together, but that she had children from a prior marriage. After
B.F.J. separated from Defendant in April 2007, Defendant moved into his mother’s
house while B.F.J. continued to rent their home. B.F.J. stated that, following their
separation, she never visited with Defendant at his mother’s home; however,
Defendant would visit her at her house. She testified that she and Defendant
occasionally still engaged in sex, but that he would not go to her house “that often,”
and they would not have sex every time he visited. B.F.J. testified that Defendant
wanted to move back in, but that she did not encourage Defendant when he said he
wanted to come home. B.F.J. explained that she left Defendant because “he was
drinking and doing other stuff.”
B.F.J. stated that she was home alone on the morning of the incident, asleep,
and was awakened when Defendant turned on the light. B.F.J. did not know how
Defendant had gotten into the house because he did not have a key. Defendant “had
[a] knife in his hand[,] and he said[,] ‘I came here because I want some in the but’,
[sic] for the last time.” Defendant told B.F.J. he was going to kill her, but before he
killed her, “he wanted some in the but [sic].” After telling B.F.J. this, Defendant
began undressing. B.F.J. was wearing her nightgown and panties. B.F.J. identified
the knife that Defendant had been holding as the one he wore on his belt at all times.
6 B.F.J. stated that the blade was exposed with Defendant holding the handle.
B.F.J. said that Defendant put the knife to her neck, picked up her nightgown,
and ripped off her panties. He then made B.F.J. lay down before having anal sex with
her. B.F.J. testified that he held the knife to her neck the entire time. B.F.J. stated
that Defendant penetrated her for about an hour and, when he was done, he sat on the
end of the bed. B.F.J. told Defendant that she needed to go to the bathroom to wipe.
B.F.J. recalled that she had used a towel to clean herself because Defendant’s actions
had caused feces to leak from her body.
B.F.J. reported that, when she returned, Defendant was standing by the bed
with the knife in his hand. This time, Defendant penetrated her vaginally. B.F.J.
explained that she began “flattering” Defendant when he complained that she was not
responding. She recalled that she had replied to Defendant’s complaint by telling him
that she was not responding because he was holding a knife on her, by asking him
why he was doing this to her, and by saying that Defendant did not have to do those
things. B.F.J. had covered the knife with a sheet and had been “flattering” Defendant
to keep him from harming her or killing her. At some point, Defendant rolled off the
bed and said, “my chest.” B.F.J. grabbed the knife from the bed and ran out of the
house. B.F.J. recounted that she then crossed a street and two ditches to get to the
neighbor’s house where she banged on the bedroom window and told them to call the
police because Defendant was trying to kill her. B.F.J. said that she heard Defendant
screaming for her to come back and that she saw him run out of the house with no
clothes on. B.F.J. kept knocking on the window until Defendant grabbed her and
dragged her across the street and through both ditches back onto her property. B.F.J.
threw the knife into one of the ditches when Defendant began dragging her back
7 across the street. Defendant told her, “Oh bitch, I should had killed you in there.”
B.F.J. then resumed her attempts at “flattering” Defendant.
B.F.J. testified that, once they were back across the street, they went inside her
house, where Defendant yelled at her, “[B]itch[,] I should [have] killed you.”
Defendant began looking in the kitchen utensil drawer, and B.F.J., fearing for her life,
continued to flatter him. The police arrived, and Defendant moved toward the living
room when he saw the lights flashing. When B.F.J. opened the door, the police
officer asked where Defendant was. B.F.J. replied “on the sofa” and ran out of the
house.
B.F.J. told the officer and a neighbor where she had thrown the knife and
assisted in the ensuing search for the knife. She said that she did not fight Defendant
because he had been holding the knife to her neck and that she was frightened and
believed he was serious in his threat to kill her. B.F.J. stated that she did not want to
have sex with Defendant and that she did not flatter Defendant until after he held the
knife to her neck. B.F.J. testified that she had considered divorcing Defendant, but
when she called to ask about it, she discovered she could not afford the proceedings.
On cross-examination, B.F.J. explained that the hour she said that Defendant
had penetrated her was a total time which included several instances, off and on,
lasting up to fifteen minutes each, over and over. B.F.J. clarified that she had not
wrapped the knife in a sheet; rather, she had pulled the sheet over the knife. She
stated that the situation made it difficult for her to remember exactly what had
happened. B.F.J. testified that she remembered talking Defendant into putting the
knife down, but she did not clearly remember whether she covered it with a towel or
the sheet. While trying to remember more clearly, B.F.J. became upset and started
8 crying on the witness stand.
B.F.J. spontaneously stated that Defendant had tormented her. She related that
she did not attempt to escape again after Defendant had her back inside her house
because Defendant was near the door. B.F.J. reported that, although Defendant had
previously used lubricant when they engaged in anal sex, he did not use any on that
occasion.
When the defense asked B.F.J. about Defendant’s visits and his giving her
money, B.F.J. said that she would invite Defendant to her home, that he was there
frequently, and that she would take any money he offered her to pay bills. B.F.J. did
not recall going to the police station to give a statement, but she did recall speaking
with an officer at the hospital. B.F.J. testified that, since his arrest, she had neither
called nor visited Defendant. She also denied asking anyone about dropping the
charges against Defendant.
The seventh witness to testify for the prosecution was Tina Roberie (Nurse
Roberie), who was a registered nurse in the emergency room of Savoy Medical
Center in Evangeline Parish. Nurse Roberie was working on the morning of August
19, 2007, when B.F.J. was brought in on a complaint that she had been raped by her
husband from whom she had been separated. Nurse Roberie testified that B.F.J. told
her that Defendant had broken into B.F.J.’s house and made her engage in both
vaginal and anal sex with him. B.F.J. also informed Nurse Roberie that Defendant
had been armed with a knife at the time and that she was scared, very upset, and
crying.
Nurse Roberie said that she assisted Dr. Glen Bennett in performing a physical
examination of B.F.J. Nurse Roberie stated there was no evidence of physical
9 trauma; however, feces were present around the anal area, and B.F.J. complained of
pain in that area. Nurse Roberie assisted in both preparing the rape kit and in acting
as a witness to the use of the rape kit. As part of the examination, Nurse Roberie
collected and bagged B.F.J.’s nightgown. On cross-examination, Nurse Roberie
clarified that she had seen neither bruising nor tearing during the examination.
Tren Landry, a forensic DNA analyst with the Acadiana Crime Lab, was the
last witness to testify for the State during its case-in-chief. The trial court accepted
Ms. Landry as an expert in forensic DNA analysis without objection by the defense.
Ms. Landry examined the nightgown. It tested positive for blood, and there appeared
to be feces present, but no seminal fluid. In order to positively identify the substance
as feces, she stated that they would have needed to send the evidence to another
location. Since the DNA analysis was completed only a week before trial, there was
not enough time to have the garment tested to positively identify the substance as
feces.
Ms. Landry also examined the bed sheets and stated that they, too, appeared to
be marked with feces. As part of the rape kit, Ms. Landry examined vaginal, rectal,
and oral swabs retrieved from B.F.J. Blood was present on both the oral and rectal
swabs. The vaginal swabs were negative for blood and seminal fluid, but the vaginal
slides were positive for spermatozoa. Ms. Landry analyzed the DNA and found that
she could not exclude Defendant as the donor. She testified that the tests excluded
99.92 percent of the African-American population from the DNA profile. According
to Ms. Landry, one out of 1,300 African-Americans could possibly have been a
contributor of the DNA, and one out of 2,200 Caucasians could have possibly been
a contributor of the DNA.
10 Ms. Landry found two DNA contributors to the samples found in the fingernail
scrapings submitted with the rape kit. The major contributor was B.F.J.; however,
there was insufficient information to draw any conclusions about the second
contributor. Ms. Landry stated that, even with additional samples, she would not
have had the time to complete the tests prior to trial.
L.R.J., Defendant’s niece, was the first defense witness who testified at trial.
L.R.J. stated that she had gone to the police station on the morning of the incident to
pick up Defendant’s personal items. L.R.J. said that she was waiting in the lobby
when B.F.J. entered. L.R.J. testified that B.F.J. asked the officer on duty whether
Defendant had any money in his wallet and said that she would do anything to help
Defendant.
Defendant took the witness stand and testified that he was fifty-four years old,
with an eighth grade education, and that he went to classes to learn how to operate
heavy equipment. He confirmed that he had married B.F.J. in 2002 and that they had
separated several months prior to the incident in 2007.
Defendant said he was a frequent visitor at B.F.J.’s house after their separation
and that, although he sometimes showed up uninvited, he also went there upon
B.F.J.’s invitation. He stated that he would bring B.F.J. food, that he would fix her
car, and that he would occasionally mow her grass. Defendant explained that, during
these visits, he and B.F.J. would sit and talk. Defendant maintained that they
continued to engage in consensual sexual intercourse during their separation.
Defendant then described the events of August 19, 2007. Defendant stated that
he arrived around nine o’clock pursuant to an invitation by B.F.J. During his visit,
they sat, talked, watched a movie, ate popcorn, hugged, and kissed. Defendant
11 broached the subject of getting divorced if they were not going to reconcile because
he was tired of giving her money. Defendant related that, since their separation, he
had given B.F.J. $100.00 every Thursday and could no longer afford to give her the
money.
Defendant asserted that he and B.F.J. retired to her bedroom after the movie
ended where they made love. He recalled that they engaged in both anal and vaginal
sex. Defendant testified that B.F.J.’s statements at the time made him believe the
intercourse was consensual, and he denied holding a knife to her throat, threatening
her harm, or telling her that he would kill her. He did not remember saying anything
that would lead B.F.J. to believe that he wanted to kill or otherwise harm her.
Defendant explained that the intercourse that evening was the same as always.
Defendant remembered having a chest pain and complaining to B.F.J. about it.
He said that B.F.J. went to the bathroom to get a towel to clean themselves so he
could leave, but she never returned. Defendant asserted that, after getting up and
getting something to clean himself, he noticed the front door was open. After waiting
for two or three minutes, Defendant, still naked, walked outside and saw B.F.J. in the
neighbor’s yard. He walked over to get her and brought her back inside her house.
Defendant reported that they talked for a short while when he saw police lights
shining through the window. He asked B.F.J. why she called the cops, but she would
not answer. She just told him that it would be all right. When the police knocked on
the door, B.F.J. told him to stay in the back, that it would be all right, and that she
would handle the situation. Defendant said the last thing B.F.J. told him was, “Don’t
worry about it.” B.F.J. answered the door. Defendant remembered conversing with
B.F.J. that evening and denied arguing with her. He maintained the sexual
12 intercourse had been consensual.
On cross-examination, Defendant admitted that the knife introduced into
evidence was his, but he denied having any sort of knife with him that morning.
Defendant declared that he had left the knife with B.F.J. to keep in her toolbox and
use as a household tool. Defendant denied grabbing B.F.J. when he went to get her
from the neighbor’s yard. He reported that, at all times when B.F.J. was around him,
she was perfectly calm and never appeared upset. Defendant said that B.F.J. left him
because of his drinking and crack cocaine use.
Defendant contended that B.F.J. had him arrested because he refused to give
her any more money. When the prosecutor pointed out that such a motivation would
be foiled by Defendant being in jail continuously since his arrest, Defendant claimed
that B.F.J. may have been more motivated by jealousy. Defendant asserted that the
last thing B.F.J. told him was if “she couldn’t have me[,] nobody else would.”
Defendant later amended his statement by stating that she had told him that when she
left him in April 2007. Defendant also said that, with B.F.J., it was her way or no
way at all and that she was a good actor when she wanted things to go her way.
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 that there
is a correction needed regarding the sentence.
The trial court correctly denied Defendant eligibility for diminution of sentence
but cited the wrong legal authority in doing so. At sentencing, the trial court stated
that it was denying Defendant eligibility for diminution of sentence in accordance
with La.R.S. 15:571.3(C). The supreme court has stated that a trial judge lacks
13 authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for diminution of
sentence because that statute is directed exclusively to the Department of Corrections.
State v. Narcisse, 97-3161 (La. 6/26/98), 714 So.2d 698. Thus, the trial court in the
present case lacked authority to deny Defendant diminution of sentence under the
statute cited.
However, since Defendant was convicted of forcible rape, a sex offense which
is designated as a crime of violence, the trial court may deny Defendant diminution
eligibility, but only under La.Code Crim.P. art. 890.1(B).2 When imposing sentence
upon Defendant in this case, the trial court stated the following:
Specifically, the [c]ourt considered the extremely violent nature of this crime, the physical and psychological suffering that resulted, and the force involved. The [c]ourt is very concerned that, during a suspended sentence, additional violence might result and that a lessor [sic] sentence would deprecate the seriousness of the [D]efendant’s crime.
Then the trial court sentenced Defendant as follows:
The [c]ourt therefore imposes a sentence of [twenty-five] years at hard labor[,] with the first two years of said sentence to be without benefit of probation, parole, or suspension of sentence. Pursuant to [La.R.S.] 15:571.3[(C)], the [c]ourt finds and orders that diminution of the [D]efendant’s sentence shall not be allowed. The [D]efendant’s sentence has not been enhanced pursuant to any article or statute.
Although the trial court did not specifically state that the offense was a crime
of violence, its reasons for sentence, as set forth above, clearly expressed its opinion
that the offense was a crime of violence, and forcible rape is listed as a crime of
2 Louisiana Code of Criminal Procedure Article 890.1(B) provides:
Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).
14 violence under La.R.S. 14.2(B)(13). Hence, we find that the trial court exercised its
discretion in denying Defendant diminution of sentence in accordance with La.Code
Crim.P. art. 890.1(B).
Therefore, we amend Defendant’s sentence to reflect that diminution of
sentence is denied pursuant to La.Code Crim.P. art. 890.1 rather than La.R.S.
15:571.3. See State v. G.M.W., Jr., 05-391 (La.App. 3 Cir. 11/2/05), 916 So.2d 460.
ASSIGNMENT OF ERROR NO. 1
Defendant argues, “The evidence presented at trial, when viewed [in] a light
most favorable to the prosecution, was insufficient to sustain the conviction.”3 He
asserts that, during his separation from B.F.J., they continued to see each other on a
regular basis and maintained an ongoing sexual relationship. Defendant urges that,
even though he was not invited to the victim’s home on the evening in question, the
sex was consensual. Defendant alleges that the victim made the rape accusation in
retaliation for his comment that he was tired of giving her money. He claims that the
victim’s testimony is “unreliable, untrustworthy, and incredible” in addition to being
contradicted by the physical evidence. Defendant contends that the jury also had
problems with the victim’s credibility as it returned the responsive verdict of forcible
rape instead of finding him guilty as charged.
The State responds that the evidence is sufficient to prove forcible rape beyond
a reasonable doubt and theorizes that the parties’ prior consensual relationship was
the reason why the jury returned a forcible rape conviction instead of an aggravated
3 In its closing argument, the defense asserted that the State failed to meet its burden of proving that this Defendant had been armed with the knife because there was no fingerprint evidence proving that he had held the knife. Defense counsel also claimed that the lack of bruising, cuts, or other injuries to B.F.J. meant that the intercourse had been consensual and, further, that Defendant had not been armed with the knife during sex.
15 rape verdict.
The supreme court has discussed the standard for reviewing sufficiency of the
evidence claims:
The standard of appellate review for a sufficiency of the evidence claim 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.
State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86.
Louisiana courts have previously discussed the extent to which a reviewing
court may question credibility determinations made by the fact finder. “It is not the
function of an appellate court to assess credibility . . . .” Id. at 1286. “The actual trier
of fact’s rational credibility calls . . . are preserved through the requirement that upon
judicial review all of the evidence is to be considered as if by a rational fact finder in
the light most favorable to the prosecution . . . .” Mussall, 523 So.2d at 1311 (citing
Jackson, 433 U.S. 307, 99 S.Ct. 2781). “[T]he actual fact finder’s discretion will be
impinged upon only to the extent necessary to guarantee the fundamental protection
of due process of law.” Id. at 1310 (citing Jackson, 433 U.S. 307, 99 S.Ct. 2781).
“In the absence of internal contradiction or irreconcilable conflicts with physical
evidence, the testimony of one witness, if believed by the court, is sufficient to
support a conviction or convictions.” State v. Stec, 99-633, pp. 4-5 (La.App. 5 Cir.
11/30/99), 749 So.2d 784, 787.
16 When viewing the evidence in the light most favorable to the prosecution and
when considering the circumstances and B.F.J.’s hysterical state at the time she gave
her initial statement, B.F.J.’s trial testimony was not so inconsistent with her initial
statement to such an extent that it would render the jury’s determination that she was
credible an irrational determination. The Marcantels, Lieutenant Godeaux, and Nurse
Roberie all testified that B.F.J. was extremely distraught. Defendant’s own self-
serving testimony was the only evidence introduced at trial that would contradict a
finding that B.F.J. was hysterical.
Moreover, B.F.J. admitted to regularly engaging in the same type of intercourse
she reported having occurred during the rape, and she admitted that she did not resist
Defendant once he pressed the knife to her neck. Instead, she stated that she chose
to plead with Defendant, to humor him, and to flatter him; hence, there is no
inconsistency in the absence of cuts and bruises. Also, B.F.J. testified that Defendant
pressed the knife against her neck, back to front, so she would not have been able to
tell whether the sharpened edge of the knife was pressing against her skin.4
Additionally, Nurse Roberie stated that B.F.J. reported pain to her rectal area at the
time of her exam and that there was blood present on the rectal swab, which would
support B.F.J.’s statement that Defendant penetrated her anus without using a
lubricant.
Thus, when the evidence is viewed in the light most favorable to the
prosecution, B.F.J.’s testimony is not so internally inconsistent or in conflict with her
prior statement, the trial testimony of the other witnesses, or the physical evidence,
4 Although not part of the evidence, the prosecutor demonstrated during closing arguments that the knife blade was not sharp enough to cut. However, the knife was published to the jury, and those jurors who so desired were allowed to handle the weapon.
17 such that it would not support a finding by this court that the jury’s credibility
determination was irrational.
The Louisiana Legislature has set forth the following applicable definition for
forcible rape:
A. Forcible 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.
La.R.S. 14:42.1. “The testimony of a sexual assault victim alone is sufficient to
convict the defendant. 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.” State v. Richard, 39,705, pp. 4-5 (La.App. 2 Cir. 5/11/05),
902 So.2d 1271, 1274, writ denied, 05-1713 (La. 2/10/06), 924 So.2d 161 (citations
omitted).
Because Defendant admitted to engaging in both vaginal and anal sexual
intercourse with B.F.J. during the morning in question, the remaining issues before
this court are the consensual nature of the sex and whether the victim was prevented
from resisting by force or threats of physical violence under circumstances where she
reasonably believed resistance would not prevent the rape. The victim’s testimony
in the instant case was that she did not want to have sex, but that she engaged in the
act, without resisting, because Defendant threatened her life and held her at knife
point.
In State v. Cheeks, 34,772 (La.App. 2 Cir. 6/20/01), 792 So.2d 789, the second
circuit found sufficient evidence to support the defendant’s forcible rape conviction.
18 The defendant and the victim had an “on again, off again” relationship; however, at
the time of the offense, they were in an “off again” phase. Id. at 790. One evening,
the defendant went to the victim’s house to help put their children to bed. Afterward,
the victim drove the defendant home because it was raining. When the victim
spurned the defendant’s requests to resume their relationship, the defendant struck the
victim, threatened to beat her, and pulled her inside his house by her hair. Once
inside, the defendant demanded that the victim disrobe and have sex with him. When
she refused, the defendant grabbed a hunting knife and repeated his demand. The
victim complied, and, sometime during the forced sex, the defendant lost possession
of the knife. Feigning a need to use the restroom, the victim attempted to escape, but
the defendant struck her again, dragged her back into the bedroom, and forced
intercourse again.
In State v. Williams, 00-981 (La.App. 5 Cir. 4/11/01), 786 So.2d 805, writ
denied, 01-1377 (La. 3/28/02), 812 So.2d 646, the fifth circuit found sufficient
evidence to support the defendant’s forcible rape conviction. The victim
accompanied the defendant to an isolated area where she became nervous and
attempted to leave. The defendant, who was armed with a knife, grabbed the victim,
pushed her down on the ground, shoved the knife in her face, threatened to kill her
if she screamed, and plunged the knife into the ground next to her head. The
defendant then removed the victim’s clothing and raped her. The victim attempted
to flee at one point, but the defendant caught her, punched her, and raped her a second
time.
In State v. Trosclair, 584 So.2d 270 (La.App. 1 Cir.), writ denied, 585 So.2d
575 (La.1991), the first circuit found sufficient evidence to support the defendant’s
19 forcible rape conviction when the victim was raped at knife point even though the
defendant challenged the victim’s credibility on appeal. In Trosclair, the appellate
circuit explained:
Although the defendant was originally charged with aggravated rape, the jury found him guilty of the responsive offense of forcible rape. Nevertheless, this verdict indicates that the jury accepted the victim’s testimony that she was forcibly raped at knifepoint, which was corroborated by the testimony of her son, and rejected the defendant’s testimony that the act of sexual intercourse was consensual. On appeal, this [c]ourt will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder’s determination of guilt.
After a careful review of the record, we believe that a rational trier of fact, viewing all of the evidence as favorably to the prosecution as any rational factfinder can, could have concluded that the State proved beyond a reasonable doubt that the defendant was guilty of forcible rape.
Id. at 282 (citations omitted).
The evidence before this court in the instant case shows that Defendant
threatened B.F.J.’s life while holding a knife and stated that he wanted sex before
killing her. Defendant held the knife to B.F.J.’s neck while he removed her
underwear, and he continued to hold the knife to her neck while he engaged in sexual
intercourse with her. The evidence also shows that B.F.J. did not want to participate
in the sexual activity and submitted thereto only because Defendant was holding a
knife to her neck. This is supported by the evidence which indicates that B.F.J.
escaped as soon as feasible, i.e., once both she and the knife were out of Defendant’s
physical control. Moreover, the record shows that, once Defendant regained physical
control over B.F.J., he was able to pull her across two yards, two drainage ditches, as
well as a street, and maneuver her back inside her house fairly quickly. Thus, when
viewed in a light most favorable to the prosecution, the evidence shows beyond a
reasonable doubt that Defendant engaged in both anal and vaginal intercourse with
20 B.F.J. without her consent and that he prevented her from resisting by threats of
physical violence wherein B.F.J. reasonably believed that the resistance would not
prevent the rape. See La.R.S. 14:42.1(A)(1).
Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
Defendant contends, “The trial court erred in imposing an excessive sentence.”
He urges that the trial court failed to adequately follow the guidelines set forth in
La.Code Crim.P. art. 894.1. Defendant claims that the trial court should have
considered certain mitigating factors when sentencing him: (1) Defendant is fifty-four
years old; (2) he has an eighth grade education; (3) he supported his wife financially
during their separation; (4) there is no evidence that Defendant had any prior brushes
with the law; and (5) Defendant maintained his innocence at all times. Based on the
listed mitigating factors, as well as an allegation that Defendant is eligible for
treatment programs addressing anger management and substance abuse, Defendant
requests that this court find the imposed sentence to be excessive as being grossly out
of proportion to the severity of the crime and a purposeless infliction of pain and
suffering. Defendant further requests that this court vacate the imposed sentence and
remand the matter for resentencing.
The prosecution responds, stating that the twenty-five-year sentence is less than
two-thirds of the maximum possible sentence. The State further contends that the
trial court adequately considered the La.Code Crim.P. art. 894.1 factors and that the
record contains an adequate factual basis for the sentence.
“Whoever commits the crime of forcible rape shall be imprisoned at hard labor
for not less than five nor more than forty years. At least two years of the sentence
21 imposed shall be without benefit of probation, parole, or suspension of sentence.”
La.R.S. 14:42.1(B). Thus, Defendant’s twenty-five-year hard labor sentence falls
within the statutory sentencing range.
This court has previously discussed the standard for reviewing excessive
sentence claims:
[Louisiana Constitution Article 1], § 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. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.
State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted). “[T]he
trial judge need not articulate every aggravating and mitigating circumstance outlined
in art. 894.1[; however,] the record must reflect that he adequately considered these
guidelines in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d
688, 698 (La.1983).
In State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58,
writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183 (citing State v. Telsee, 425 So.2d
1251 (La.1983); State v. Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d
1272), the fifth circuit held that a reviewing court should consider three factors in
reviewing sentences imposed by the trial court: “1. the nature of the crime, 2. the
nature and background of the offender, and 3. the sentence imposed for similar crimes
by the same court and other courts.”
22 In the instant case, the trial court issued written reasons for the penalty it
imposed:
SENTENCING OF [H.L.J.]
The court is called upon to sentence the [D]efendant, [H.L.J.], who was convicted by a jury of his peers of forcible rape. In arriving at a sentence, the court carefully considered the pre-sentence investigation report and all of the sentencing guidelines of [La.Code Crim.P. art.] 894.1. Specifically, the court considered the extremely violent nature of this crime, the physical and psychological suffering that resulted, and the force involved. The court is very concerned that, during a suspended sentence, additional violence might result and that a lesser sentence would deprecate the seriousness of the [D]efendant’s crime. It is the opinion of the court that the [D]efendant is in need of correctional treatment and a custodial environment that can best be provided by his commitment to an institution.
The court therefor[e] imposes a sentence of [twenty-five] years at hard labor, with the first two years of said sentence to be without benefit of probation, parole, or suspension of sentence. Pursuant to [La.R.S.] 15:571.3([C]), the court finds and orders that diminution of [D]efendant’s sentence shall not be allowed. Defendant’s sentence has not been enhanced pursuant to any article or statute. Defendant is given credit for time served with regard to the crime for which he is sentenced today. Upon release or parole, [D]efendant must comply with [La.R.S.] 15:542 with regard to registration of sex offenders.
The court informs you that by virtue of [La.Code Crim.P. art.] 930.8 there is a two year prescriptive period for you to apply for post conviction relief which begins to run from the time of finality of judgment of conviction and sentence.
These are the same reasons that the trial court gave at the October 2, 2008 hearing.
Immediately after sentencing, the defense made an oral motion to reconsider
the penalty imposed:
By Mrs. Tate: Your Honor, I’d like to make an oral Motion to Reconsider the Sentence for it being excessive given [Defendant’s] age, he’s [fifty-five] years old, in another [twenty-five] years he’ll be almost [eighty] years old. He and the victim . . . were married for eight years and there is a history of, she does have a history of bringing some charges against the [D]efendant and then dropping the charges.
In response, the trial court denied the motion and gave oral reasons for its
23 decision:
By the Court: And I don’t know where [sic] that means he didn’t do them, it means she just didn’t proceed with the charges. It indicates that there [have] been problems all along and that culminated in a situation where she could have died. There was a knife involved in this and she was brutally attacked and . . . I respectfully decline your (inaudible).
In State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, this court
affirmed a thirty-five-year sentence imposed on a forcible rape conviction. The
defendant asserted that his sentence was excessive as he was a first-time offender.
The defendant had been charged with aggravated rape for raping his eleven-year-old
stepdaughter and using a knife in the commission of the crime, but he had pled guilty
to forcible rape. This court found the defendant’s argument to be without merit and
noted that the facts would have fully supported an aggravated rape conviction which
carries a mandatory penalty of life imprisonment.
In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03), 862 So.2d 440, the second
circuit affirmed the maximum forty-year sentence for forcible rape. The fifty-two-
year-old “victim awoke to find a man beside her on her bed telling her not to scream
and to do whatever he said so she would not be hurt.” Id. at 442. The victim testified
that during the rape, she felt either a knife or some broken glass pressed against her.
The sentencing court considered the defendant’s prior criminal record, his status as
a first felony offender and Navy deserter, the facts of the crime, his level of education,
and his drug addiction in sentencing the defendant.
In Williams, 786 So.2d 805, the fifth circuit upheld a maximum sentence of
forty years for a forcible rape conviction resulting from the defendant raping the
victim twice. When the victim tried to escape, the defendant punched her in the face.
The defendant also used a knife and death threats during the offense. The trial court
24 sentenced the defendant in accordance with similar cases, but without the benefit of
a pre-sentence investigation report.
In State v. Reaves, 569 So.2d 650 (La.App. 2 Cir. 1990), writ denied, 576 So.2d
25 (La.1991), the second circuit affirmed a twenty-five-year sentence for forcible
rape. The defendant, who was admitted into the victim’s home on the pretext of
needing to make a call, followed the victim into her bedroom where he held up a
butcher knife and threatened to kill her if she shouted. The victim struggled, and the
defendant cut her hand. The defendant, using the knife, ripped off the victim’s
clothing and raped her. When the victim called to report the incident, she was very
upset, crying, and moaning. In sentencing the defendant, the trial court took into
account the facts of the case, the defendant’s lack of remorse, the fact that an
aggravated rape had actually occurred, the psychological trauma to the victim, and
the victim’s fear of the defendant.
The record in the instant case shows that the trial court considered the
following factors before imposing Defendant’s sentence: the aggravating and
mitigating factors set forth in La.Code Crim.P. art. 894.1; the facts of the case; the
extremely violent and brutal nature of this offense; the physical and psychological
suffering resulting from the crime; the force involved; the concerns both that, during
a suspended sentence, additional violence might result and that a lesser sentence
would deprecate the seriousness of Defendant’s crime; the history of similar charges
being filed and dropped against Defendant by the victim; and, the use of a dangerous
weapon during the offense. Considering the nature of the offense, the evidence in the
record, the background of Defendant, and the penalties imposed in similar cases, we
do not find Defendant’s sentence excessive.
25 Accordingly, this assignment of error is without merit.
DISPOSITION
Defendant’s conviction and sentence are affirmed. Defendant’s sentence is
amended to reflect that diminution of sentence is denied pursuant to La.Code Crim.P.
art. 890.1(B), and the trial court is instructed to note the amendment in the court
minutes.