NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 KA 0489
VERSUS
JONATHAN S. LUPER
Judgment Rendered.- endered. NOV 15 2019
Appealed from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana Case No. # 16 CR10 129965
The Honorable William J. Knight, Judge Presiding
Gwendolyn K. Brown Counsel for Defendant/ Appellant Baton Rouge, Louisiana Jonathan Luper
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana Matthew Caplan
Assistant District Attorney Covington, Louisiana
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ. THERIOT, J.
Defendant, Jonathan Luper, was charged by bill of information with
aggravated crime against nature, a violation of La. R.S. 14: 89. 1. He pled not
guilty. After a trial by jury, defendant was found guilty as charged. The trial court
imposed a term of thirty-two years imprisonment at hard labor, to be served
without the benefit of probation, parole, or suspension of sentence. Defendant now
appeals. For the following reasons, we affirm the conviction and sentence.
STATEMENT OF FACTS
On July 13, 2015, Department of Child and Family Services (" DCFS")
employee Felicia Hillhouse was assigned to investigate an allegation of child
neglect occurring in Washington Parish, Louisiana. Bogalusa Police officers had
responded to a complaint of four unaccompanied young children in a Bogalusa
park. The children were collected and brought to the DCFS office. One of the
children was four-year-old J.E. 1 The children were " very, very dirty" with insect
bites and lice. Hillhouse went to the children' s home to speak with the parents,
who had been at home asleep when law enforcement first located them. Hillhouse
described the home in which the children were living to be very dirty and noted
flies " all over the home." She noted a strong smell of urine and that the house had
the " smell of not being cleaned in quite a while." When asked to be shown where
the children sleep, she was directed to a urine -soaked mattress on the floor that all
of the young children living in the house were expected to share.
Also living in the house were six adults, including defendant, defendant' s
sister Kelly, who was J. E.' s mother, and her boyfriend Christopher " Rudy"
1 In accordance with La. R.S. 46: 1844( W), the initials of the minor victim will be used to identify him.
2 Bennett. J. E. and his three siblings were placed with Christopher' s mother,
Jennifer Bennett, and the initial investigation was closed.2
In August 2015, Ms. Bennett noticed that J. E. began to exhibit sexualized
behavior. J. E. was initially taken to a pediatrician for a medical exam, then was
later taken to the Audrey Hepburn Care Center at Children' s Hospital to be
evaluated by a medical team that specialized in assessing physical and sexual
abuse. In September 2015, Hillhouse received additional reports regarding
inappropriate behavior from J. E. According to the reports, J. E. was " acting out
sexually" at home and at school, touching his brothers and sisters on their genitals,
and attempting to " hump" his sister. He was also attempting to put items in his
anus. Later, J.E. disclosed that he had been sexually abused by defendant.
In November 2015, Hillhouse spoke with defendant. After initially denying
ever supervising the children, he later admitted he " may have watched them a few
times." After considering statements defendant made to police, in addition to what
she had learned in her own investigation, Hillhouse validated claims of sexual
abuse, fondling, and manipulation against defendant. Hillhouse acknowledged that
one of the children had named " Desmond" as a " perpetrator" and that she later
learned that " Desmond" was defendant' s first cousin, Desmond Warren, but she
explained that she did not speak with Desmond because his identity and
whereabouts were unknown to her at that time.
Ms. Bennett testified about her time caring for the four children, beginning
in July 2015. Four-year- old J. E. was the oldest of the four children. In August
2015, Ms. Bennett observed J. E. removing one sister' s underwear and licking her
genitals and attempting to put toys in his anus. Soon thereafter, J. E. was put into a
bedroom by himself. She confirmed that she brought J. E. to the Audrey Hepburn
Care Center in August 2015. Then, in September 2015, J. E. disclosed to Ms.
2 Initially, it was believed that Christopher was the father of all four children, but it was later revealed that he was the biological parent of only the two youngest children.
3 Bennett that defendant had put his finger in J. E.' s rectum and urinated on him.
Additionally, J. E. told Ms. Bennett that defendant " taught him how to suck a
birdie." Ms. Bennett understood " birdie" to mean penis. Ms. Bennett
subsequently called J.E.' s DCFS case manager. She explained that defendant
would sometimes babysit the children. Ms. Bennett also acknowledged that J. E.
once told her that defendant " did things to him" while " Desmond" was around.
She did not know Desmond well, but she knew he was Kelly and defendant' s
cousin. She said that J. E. told her Desmond and defendant would call J. E. " their
little bitch[]."
Lieutenant David Miller of the Bogalusa Police Department, a nine- year
veteran of sex crime investigations, testified at trial. He was brought into the case
in September 2015 after receiving a referral from DCFS regarding an allegation of
sexual abuse of J.E. by defendant. Lt. Miller stated that J. E. underwent a " forensic
interview" at Hope House at the Children' s Advocacy Center (" CAC"), which Lt.
Miller observed from outside the room. During the interview, J.E. disclosed that
he had been sexually abused by defendant.
Soon thereafter, Lt. Miller obtained an arrest warrant for defendant.
Defendant had moved out of the home he shared with his sister and J. E. Lt. Miller
located defendant at his new residence in Franklinton on October 13, 2015, and
arrested defendant. While at the Franklinton residence, defendant was read his
Miranda rights, and he indicated he understood them. Defendant asked the
arresting officers if he could go back inside the house to put on some shoes. The
officers agreed and accompanied defendant to his bedroom. While in the room, Lt.
Miller noticed a padlocked closet door. When asked why it had a padlock, the now
nervous defendant indicated it was merely storage for some of his sister' s items.
Noting defendant' s " weird" behavior, Lt. Miller asked for consent to search the
closet, which defendant ultimately gave by signing a written consent form. A
I] search of the closet revealed containers filled with used children' s diapers. When
questioned about the diapers, defendant admitted his semen would be found inside
them. Defendant also initially explained to Lt. Miller that "[ t]hose are my sister' s
kids' diapers and I should have thrown them away."
Defendant was brought back to the police station to be further interviewed,
after he signed a Miranda waiver form. Defendant then gave a video recorded
statement that was played for the jury. Defendant voluntarily provided a buccal
DNA swab. Defendant was interviewed on video again the next day by another
officer, after again waiving his Miranda rights via written form. The second video
was also played for the jury.
In the first recorded interview, defendant advised that he can read " a little
bit," but that he understood his rights as given to him by Lt. Miller. Defendant
initially denied inappropriately touching J.E. On several occasions, Lt. Miller
explained to defendant that help was available for people like him, but only if he
told the truth. also denied any inappropriate contact with Desmond or Kelly.
Defendant told Lt. Miller that he was still a virgin. Defendant alleged that a
teenager named " Crystal" had inappropriate conversations with J. E. Defendant
also mentioned " Terry Anderson" as being a potential source of J.E.' s claim
regarding defendant and his sister.
Regarding the diapers, defendant claimed they had been in the closet for five
or six months. Defendant altered the explanation given to Lt. Miller at the scene,
and said he found the diapers on the side of the road or in dumpsters. He explained
that he enjoyed smelling the diapers and used them to collect his semen. He
denied that the diapers came from his family members or that he had been using
them recently. He admitted he started using diapers in that fashion from the age of
13 years old. Defendant denied thinking of children in a sexual way or that he had
ever been molested as a child.
5 In his second interview, conducted by another investigator, defendant again
waived his Miranda rights. Defendant initially denied inappropriate contact with
J. E., and he could not explain why J. E. accused him of such conduct. Again,
defendant was offered help and counselling if he was truthful, and it was suggested
that he would not go to jail. He later conceded J. E. once walked in on him
masturbating and that he merely explained to J.E. what he was doing. He claimed
J.E. then went to tell Kelly what he had seen. Defendant admitted J.E. may have
heard him and Desmond talking about oral sex and later explained J.E. had asked
him about oral sex as well.
Later in the second interview, defendant told the investigator that he told J. E.
how to perform oral sex. Eventually, defendant admitted he showed J. E. how to
masturbate, at first with defendant demonstrating on himself, later moving J.E.' s
hand on J. E.' s penis. He also told the investigator that he ultimately showed J.E.
how to masturbate on two occasions and about oral sex once. Defendant explained
Desmond did not participate in any sexual acts with J.E.
Lt. Miller obtained DNA samples from the four children in DCFS custody.
Subsequent testing revealed seminal fluid in an examined diaper and that the
chance of its contributor being someone other than defendant was one in 2. 53
quintillion. There was insufficient DNA collected to determine whether the
children could be excluded as contributing material to the tested diaper.
Following defendant' s first interview, Lt. Miller learned Desmond Warren
was 14 or 15 years old. Lt. Miller spoke with Desmond and did not find probable
cause to implicate Desmond as a suspect in the sexual abuse of J. E. Under cross-
examination, Lt. Miller acknowledged that defendant told him that J. E. had said
someone named " Crystal" had spoken to him about sexual acts, but Lt. Miller did
not follow up on that information as he did not find defendant credible. He
explained a similar course of action regarding Terry Anderson. Lt. Miller testified
131 he was not given the names of the other adults living in the house where the
children were initially found to be living, and he did not investigate them.
Moreover, Lt. Miller did not attempt to determine who " everybody" was in relation
to J. E. saying that " everybody" saw defendant touch J.E.' s penis. Lt. Miller
reasoned that because J. E. consistently identified defendant as the one who
sexually abused him, defendant was the primary focus of his investigation.
J.E., seven -years -old at the time of trial, testified. After a brief direct
examination from the State, defense counsel extensively cross- examined J.E.
regarding what he remembered from his initial disclosure and his CAC interview.
When asked whether he remembered telling a doctor at Children' s Hospital that his
dad had " put a blue lighter up [ his] butt," J.E. replied that he did not remember
saying that and further stated that his dad had not done that.' He explained to the
jury that defendant was a " bad man" because he did " bad stuff' to him on his penis
and buttocks, and that it made him scared. He also testified that defendant once
tried to cut his penis off. J. E. denied committing any sexually inappropriate acts
with his sister or telling anyone that Desmond touched his penis, that defendant
performed oral sex on Desmond, or that defendant performed oral sex on Kelly.
The State' s last witness was JoBeth Rickels, a forensic interviewer trained in
talking to child victims. Rickels conducted a videotaped interview with J. E. in
September 2015 at the CAC, which was played for the jury. Rickels explained
J. E.' s statement that " everybody" saw defendant touching him was likely a product
of a just -turned -four-year- old thinking his parents already know and see
everything. Thus, she disregarded the statement as just an expression of his
understanding at such a young age. She conceded that she did not ask follow-up
3 J. E.' s medical records and videotaped interview from Children' s Hospital are not in evidence. While the videotaped CAC interview did contain this allegation involving the lighter, J. E. made the allegation against the defendant and not his dad. Furthermore, it appears that J. E.' s references to his " dad" in the CAC interview were actually to Christopher and not his biological father, with whom he lived at the time of trial.
7 questions regarding whether Desmond touched J.E., or if J.E. saw defendant
performing oral sex on Kelly, because the focus of that interview was the
suspected conduct of defendant. Though she noted that J. E. had difficulty
understanding truth versus lies, and she was somewhat unsure as to whom he was
referring in some of their exchanges, she explained his statements to her were
consistent in regard to who did the touching and with what.
In the CAC interview with J. E., which was played for the jury, he said
defendant touched him more than once under his clothes on his butt and " pee -pee"
with J. E.' s clothes pulled down, and that defendant used his mouth and hands. J. E.
alleged that defendant attempted to " cut [ his] pee -pee off' with Desmond' s knife.
J. E. also said " everybody" saw defendant touch his " pee -pee" and that defendant
tried to touch everybody' s. J. E. told defendant to stop, but " he done it anyway."
J. E. also claimed to have seen defendant touch his mother, defendant' s sister, with
his mouth between the legs.
Additionally, J.E. at first said Desmond touched his butt with his hands as
well, and put a flashlight in his ear, but then said defendant and Desmond only
touched each other in front of him. J. E. said that he saw defendant touch
Desmond' s " pee -pee" with his mouth and " everything." In a later part of the
interview, J.E. appeared to initially have some difficulty distinguishing between
the truth and a lie, but later demonstrated he could. J. E. said defendant putting his
mouth on J. E.' s " pee -pee" was the truth.
In defendant' s case in rebuttal, the jury heard the testimony of three of
defendant' s family members, including his cousins Lacey and Desmond Warren.
Lacey Warren testified as to her knowledge of defendant' s lack of criminal history
and his special education needs. She also testified that J. E. lived in several places
and often had multiple unrelated people living with him and his family. She revealed defendant liked to play with and wear diapers as a child of eight or nine
years old.
Desmond testified he never acted inappropriately with J.E. He also asserted
defendant did not have a reputation in the community for sexually assaulting
children. Although Desmond testified he was unaware that defendant was sexually
aroused by diapers, he was aware that defendant collected them. He also denied
telling Lt. Miller that he and defendant called J.E. their " little bitch[]."
Finally, defendant' s aunt, Mendy Lucito, testified. She testified defendant
did not have a reputation for sexually assaulting children. Lucito further testified
that defendant had been in special education due to a learning disability. She
acknowledged that defendant " had a thing with diapers" when he was little, but she
was unaware of defendant' s practice of masturbating into soiled diapers.
ASSIGNMENT OF ERROR # 1: LUSTFUL DISPOSITION EVIDENCE
In assignment of error number one, defendant contends the trial court erred
when it permitted the State to introduce evidence of his sexual use of soiled
children' s diapers. Defendant argues that evidence of his masturbating into the
dirty diapers was both highly prejudicial and irrelevant regarding whether he
committed the alleged offense against J. E. In defendant' s view, without this
prejudicial evidence, defendant would never have been convicted with only the
testimony of J. E., J. E.' s recorded CAC interview, and defendant' s own recorded
police interviews. The State argues that when considering the trial court' s stated
reasoning for admitting the evidence, defendant does not demonstrate an abuse of
discretion.
Before trial, the State filed notice that it intended to introduce " lustful
disposition" evidence in the form of the soiled diapers, and defendant in turn filed
a motion to exclude that same evidence. In orally denying defendant' s motion to
exclude the evidence, the trial court found that the alleged conduct reflected a
I lustful disposition towards children, and the evidence was more probative than it
was prejudicial. The court noted that the diapers found were locked in a closet,
and they were not adult diapers. The trial court did exclude as irrelevant other
evidence relating to " animal porn, bestiality or other adult sexual matters."
Generally, courts may not admit evidence of other crimes or bad acts to
show defendant is a man of bad character who has acted in conformity with his bad
character. La. Code Evid. art. 404( B)( 1). However, the State may introduce
evidence of other crimes if the State establishes an independent and relevant
reason, i. e., to show motive, opportunity, intent, or preparation, or when the
evidence relates to conduct that constitutes an integral part of the act or transaction
that is the subject of the present proceeding. La. Code Evid. art. 404( B)( 1). Even
when the other crimes evidence is offered for a purpose allowed under Article
404( B), the evidence is not admissible unless it tends to prove a material fact at
issue or to rebut a defendant' s defense. State v. Taylor, 2016- 1124, p. 12 ( La.
12/ 1/ 16), 217 So. 3d 283, 292. Moreover, the State must provide defendant with
notice that it intends to offer prior crimes evidence. Taylor, 2016- 1124 at p. 12,
217 So. 3d at 292. Additionally, the State must prove by a preponderance of the
evidence that defendant committed the other acts. La. Code Evid. art. 1104;
Huddleston v. United States, 485 U.S. 6819 689- 92, 108 S. Ct. 1496, 1501- 02, 99
L.Ed.2d 771 ( 1988); State v. Brue, 2009- 2281 ( La. App. 1st Cir. 5/ 7/ 10), 2010
WL 1838383, at * 6 n.4, writ denied, 2010- 1317 ( La. 1/ 7/ 11), 52 So. 3d 883.
Further, La. Code Evid. art. 412. 2( A) provides in pertinent part:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense
involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused' s commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
10 Louisiana Code of Evidence article 402 provides that all relevant evidence is
admissible. However, under La. Code Evid. art. 403, otherwise relevant evidence
may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or waste of time." Evidence is deemed relevant if it
has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence. La. Code Evid. art. 401.
Prior crimes differing from those at issue in a prosecution are still probative
to establish a defendant' s " lustful disposition." See, e. g., State v. Friday, 2010-
2309, p. 18 ( La. App. 1st Cir. 6/ 17/ 11), 73 So. 3d 913, 927, writ denied, 2011- 1456
La. 4/ 20/ 12), 85 So. 3d 1258. Moreover, the provisions of La. Code Evid. art.
412. 2 are not limited only to sexual offenses defined by state law, but also include
a " broad range of behavior" such as " acts which indicate a lustful disposition."
State v. Layton, 2014- 1910, pp. 5- 7 ( La. 3/ 17/ 15), 168 So. 3d 358, 360- 62. It is
not necessary, for purposes of Article 412.2 testimony, for defendant to have been
charged, prosecuted, or convicted of the " other acts" described. State v. Berry,
51, 213, p. 30 ( La. App. 2d Cir. 5/ 17/ 17), 221 So. 3d 967, 986, writ denied, 2017-
1146 ( La. 12/ 17/ 18), 257 So. 3d 1260. Furthermore, the " acts which indicate a
lustful disposition" are not limited to those acts that are identical or similar in
nature to the charged offense. State v. Wright, 2011- 0141, pp. 9- 11 ( La. 12/ 6/ 11),
79 So. 3d 309, 315- 16; see also, State v. Farrier, 2014- 0623, pp. 11- 15 ( La. App.
4th Cir. 3/ 25/ 15), 162 So. 3d 1233, 1242- 43 ( a recording of defendant' s phone
conversation while in custody, wherein he stated that the victim and three others
had caught him watching child pornography on his computer, that he cannot fight
this," and that he hoped for leniency as " a first offender," was deemed relevant in
his trial for sexual battery of a juvenile); State v. Preston, 47, 273, pp. 9- 10 ( La.
11 App. 2d Cir. 8/ 8/ 12), 103 So. 3d 525, 531- 32 ( defendant' s prior conviction for
unauthorized entry into the home of a 13 -year-old girl was admissible in sexual
battery prosecution as an integral part of the prior offense to prove defendant' s
lustful disposition toward children); State v. Hotard, 2007- 0498, pp. 4- 7 ( La. App.
5th Cir. 12/ 27/ 07), 975 So. 2d 16, 19- 20 ( letter written by defendant containing
sexual comments about his minor daughter and testimony of his ex-wife about his
sexual interest in minor niece held admissible in prosecution for molestation of a
juvenile); State v. E.J.F., 2008- 674, p. 9 ( La. App. 3d Cir. 12/ 10/ 08), 999 So. 2d
224, 231 ( photographs related to prior federal conviction for possession of child
pornography admissible in prosecution for aggravated incest as photographs
relevant for purposes of showing defendant' s lustful disposition toward young
girls).
A trial court' s ruling on the admissibility of the additional other crimes
evidence will not be disturbed absent an abuse of discretion. State v.
Altenberger, 2013- 2518, p. 8 ( La. 4/ 11/ 14), 139 So. 3d 510, 515 ( per curiam);
State v. Jackson, 2018- 0261, p. 15 ( La. App. 1st Cir. 11/ 2/ 18), 265 So. 3d 928,
939, writ denied, 2018- 1969 ( La. 4/ 22/ 19), 268 So. 3d 304; see also State v.
Wright, 2011- 0141 at p. 13, 79 So. 3d at 317.
Here, as the trial court noted, defendant was found in possession of soiled
children' s diapers, for which he gave varying implausible explanations. The focus
of this sexual attention was evidently limited to children' s diapers. Though
defendant argues " it is quite possible that [ defendant] simply used the diapers for
the ability to absorb his seminal fluid," he does not explain how this relates to the
fact he collected soiled diapers of unknown origin in boxes within a locked closet
in his room. The jury was not improperly permitted to make the inference that
such behavior is indicative of a sexualized view of young children. Defendant fails
to show the trial court abused its considerable discretion in denying his motion to
12 exclude evidence regarding his collection of soiled children' s diapers and his use
thereof. Moreover, the State presented evidence from the victim, J. E., as well as
defendant' s own recorded statements to police, that he committed the offense of
aggravated crime against nature. Even assuming arguendo that the trial court did
err, the effect of that error was rendered harmless by the overwhelming evidence of
guilt presented by the State. State v. Becnel, 2016- 1297, p. 10 ( La. App. 1st Cir.
4/ 20/ 17), 220 So. 3d 27, 34, writ denied, 2017- 1023 ( La. 3/ 9/ 18), 238 So. 3d 451
observing that the erroneous admission of other crimes evidence is subject to a
harmless -error analysis, which considers whether the jury' s verdict was " surely
unattributable to the error"). This claim is without merit.
ASSIGNMENT OF ERROR #2: HEARSAY
In his second assignment of error, defendant asserts that the trial court erred
when it admitted into evidence medical records and a videotaped interview
generated during the interview at Children' s Hospital, before J.E. made his initial
disclosure of abuse. Defendant asserts the interview and its contents do not fit into
a hearsay exception, and the trial court committed error when it admitted the
evidence. Defendant reurges his claim from the previous assignment of error that
the evidence was otherwise insufficient to convict him but for this error. The State
notes the evidence defendant complains of was never introduced into evidence.
Defendant filed a motion to exclude evidence of J. E.' s statements to medical
personnel at the Audrey Hepburn Care Center. The trial court took the motion
under advisement and proceeded to voir dire. Following the testimonies of Ms.
Hillhouse and Ms. Bennett, the trial court denied defendant' s motion, citing State
v. Brand, 2016- 0960 ( La. App. 1 st Cir. 12/ 22/ 16), 2016 WL 7407414, writs
denied, 2017- 0167 ( La. 9/ 15/ 17), 225 So. 3d 478 & 2017- 0131 ( La. 9/ 15/ 17), 225
So. 3d 479. The trial court noted that at the time of the August 2015 interview at
Children' s Hospital, J. E. had not yet made a disclosure of sexual abuse, although
13 he exhibited suspicious behavior and hypersexualized activity inappropriate for a
child of his age. Consequently, the court found the August 2015 interview was
intended for medical diagnosis under La. Code Evid. art. 803( 4) and not a forensic
investigation.
Pretermitting discussion of Brand and the admissibility of the statements, it
appears the State never introduced medical records into evidence nor did it play the
video recording.' In any case, inadmissible hearsay that is merely cumulative or
corroborative of other testimony adduced at trial is considered harmless. Brand,
2016 WL 7407414, at * 7 ( citing State v. Spell, 399 So. 2d 551, 556 ( La. 1981)).
J. E.' s interview with the CAC and his generally consistent allegations, coupled
with defendant' s inculpatory statements in his second interview, render any error,
assuming such occurred, harmless. See Brand, 2016 WL 7407414, at * 6.
ASSIGNMENT OF ERROR # 3: EXCESSIVE SENTENCE
In his final assignment of error, defendant argues he received an excessive
sentence from the trial court. In defendant' s view, the trial court did not give
adequate consideration to the mitigating factors designated in La. Code Crim. P.
art. 894. 1, and it erred when it denied his motion to reconsider sentence.
Defendant posits that because his crime did not involve penetration or occur over
time, his sentence should have been shorter. The State contends defendant
received a sentence closer to the minimum, and from that it is apparent the trial
court considered both aggravating and mitigating circumstances.
The Eighth Amendment to the United States Constitution and Article I, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment. Although a sentence falls within statutory limits, it may be excessive.
State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979); State v. Dufrene, 2017- 1496,
At most, Lt. Miller stated that he learned from the interview that J. E. identified defendant as the perpetrator of his sexual abuse. The statement was not expressly objected to, but was perhaps subject to a previous objection relating to evidence derived from the interview as a whole.
14 p. 15 ( La. App. 1st Cir. 6/ 4/ 18), 251 So. 3d 1114, 1125. A sentence is considered
constitutionally excessive if it is grossly disproportionate to the seriousness of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is considered grossly disproportionate if, when the crime
and punishment are considered in light of the harm done to society, it shocks the
sense of justice. State v. Spikes, 2017- 0087, p. 3 ( La. App. 1st Cir. 9/ 15/ 17), 228
So. 3d 201, 204. The trial court has great discretion in imposing a sentence within
the statutory limits, and such a sentence will not be set aside as excessive in the
absence of a manifest abuse of discretion. See State v. Ford, 2017- 0471, p. 15
La. App. 1st Cir. 9/ 27/ 17), 232 So. 3d 576, 587, writ denied, 2017- 1901 ( La.
4/ 22/ 19), 268 So. 3d 295. Louisiana Code of Criminal Procedure article 894. 1 sets
forth the factors for the trial court to consider when imposing sentence. While the
entire checklist of La. Code of Crim. P. art. 894. 1 need not be recited, the record
must reflect the trial court adequately considered the criteria. State v. Letell,
2012- 0180, pp. 8- 9 ( La. App. 1st Cir. 10/ 25/ 12), 103 So. 3d 1129, 1138, writ
denied, 2012- 2533 ( La. 4/ 26/ 13), 112 So. 3d 838.
The articulation of the factual basis for a sentence is the goal of La. Code
Crim. P. art. 894. 1, not rigid or mechanical compliance with its provisions. Where
the record clearly shows an adequate factual basis for the sentence imposed,
remand is unnecessary even where there has not been full compliance with La.
Code Crim. P. art. 894. 1. State v. Lanclos, 419 So. 2d 475, 477- 78 ( La. 1982);
State v. Ducote, 2016- 1457, p. 5 ( La. App. 1st Cir. 4/ 12/ 17), 222 So. 3d 724, 727.
The trial judge should review defendant' s personal history, his prior criminal
record, the seriousness of the offense, the likelihood that he will commit another
crime, and his potential for rehabilitation through correctional services other than
confinement. See State v. Jones, 398 So. 2d 1049, 1051- 52 ( La. 1981); State v.
Scott, 2017- 02095 p. 5 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 207, 211, writ
15 denied, 2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410. On appellate review of a
sentence, the relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been more
appropriate. State v. Thomas, 98- 1144 ( La. 10/ 9/ 98), 719 So. 2d 49, 50 ( per
curiam); State v. McCasland, 2016- 1178, p. 4 ( La. App. 1st Cir. 4/ 18/ 17), 218
So. 3d 1119, 1123.
In sentencing defendant, the trial court noted it was " painfully aware" of the
circumstances of the case, and that defendant " did some heinous things." The
court found the La. Code Evid. art. 412. 2 evidence presented at trial was " very
disturbing." Observing that J. E. was a minor under defendant' s control and
supervision, the court found a lesser sentence would deprecate the seriousness of
the offense. The court further observed the trauma and emotional problems
suffered by J. E. will manifest for a long time. The trial court did not enumerate
any mitigating factors, though none were presented by defendant at sentencing. In
fact, defendant only does so for the first time in brief, noting that he has no prior
criminal history, and without evidentiary support, that he was " learning disabled
and childlike." Defendant' s capacity and competency were not raised by
defendant before trial. Moreover, contrary to defendant' s assertion that there is
no evidence that the young child victim had injury for the incident or any lasting
emotional trauma," it was J. E.' s inappropriate sexual behavior directed at his
siblings that began the investigation that culminated in defendant' s conviction.
Given the evidence presented at trial and the trial court' s specific reasoning
in determining defendant' s term of incarceration, we cannot say the trial court
abused its broad sentencing discretion in imposing a thirty -two-year term of
imprisonment. This claim is also without merit.
16 CONCLUSION
For the foregoing reasons, we affirm defendant' s conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.