Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,261-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
KENNY McKNIGHT Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 354,648
Honorable Katherine C. Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON W. WALTMAN NANCY F. BERGER-SCHNEIDER TOMMY J. JOHNSON Assistant District Attorneys
Before WILLIAMS, PITMAN, and STONE, JJ. PITMAN, J.
A jury convicted Defendant Kenny McKnight of second degree rape,
and the trial court sentenced him to 25 years at hard labor, with 5 years to be
served without benefit of probation, parole or suspension of sentence.
Defendant appeals, arguing that his sentence is excessive. For the following
reasons, we affirm Defendant’s conviction and sentence.
FACTS
On January 22, 2018, the state filed a bill of information charging
Defendant with the second degree rape of A.G., which occurred on or about
July 19, 2017.
The jury trial commenced on February 12, 2019. A.G. testified that
Defendant is her cousin, i.e., her grandmother’s sister’s child. She stated
that on July 19, 2017, she was 16 years old and was at home with several
family members, including Defendant. Defendant came into her bedroom,
locked the door, grabbed her by her arms and “slammed” her face down onto
the bed. While holding her arms behind her back, Defendant pulled down
her elastic-waist pants and underwear. She yelled and screamed and told
Defendant to get off of her. She squeezed her buttocks to try to prevent him
from penetrating her, but he inserted the top part of his penis into her anus.
When Defendant left her room, she tried calling her mother and aunt on the
phone, but neither answered. She then called her former cheerleading coach,
who drove to her house. Her aunt then arrived and took her to the hospital.
Melanie Hubbard, a sexual assault nurse examiner, testified that she
conducted an examination of A.G. and collected evidence, which she placed
in a personal evidence recovery kit (“PERK”). A.G. told Hubbard that
Defendant forced his penis into her anus. Hubbard stated that she did not find any injuries to A.G.’s anal or vaginal areas. She noted, however, that
this was not unusual because 85 percent of the time, there are no injuries
when someone is assaulted.
Katie Traweek, an expert in DNA analysis, testified that in examining
the evidence contained in the PERK, she detected prostate specific antigen
on the external genitalia swab and the perineal swab, but did not find any
sperm cells. She stated that there was insufficient male DNA to obtain a
profile to compare to Defendant’s reference sample.
Detective Jeff Allday of the Shreveport Police Department testified
that he works in the sex crimes unit and investigated this case. He learned
that Defendant was 24 years old at the time of the alleged rape. He
interviewed Defendant; and after being advised of his rights, Defendant
admitted that his finger and his penis were briefly “in” A.G.’s anus. He also
testified that in September 2010, Defendant was convicted of misdemeanor
carnal knowledge of a juvenile, and the victim in that case was 13 years old.
On February 13, 2019, the jury found Defendant guilty as charged of
second degree rape. On February 28, 2019, the trial court denied
Defendant’s motion for post-verdict judgment of acquittal. It then sentenced
Defendant to 25 years at hard labor, with 5 years to be served without the
benefit of probation, parole or suspension of sentence.1
On March 27, 2019, Defendant filed a motion to reconsider and
vacate his sentence, arguing that it is excessive because the aggravating
1 That same date, the state filed a third-felony habitual offender bill of information based on Defendant’s prior convictions for simple burglary and illegal possession of stolen firearms. The appeal record does not contain any further information about whether Defendant was ever adjudicated and sentenced as a habitual offender. 2 factors noted by the trial court are inadequate and the trial court failed to
consider the mitigating factors.2
Defendant appeals.
DISCUSSION
In his sole assignment of error, Defendant argues that his 25-year
sentence for second degree rape is excessive under the circumstances. He
finds fault with the aggravating factors considered by the trial court and
alleges that it failed to consider any mitigating factors. Regarding the
aggravating factors, Defendant contends that any act of second degree rape
constitutes some degree of deliberate cruelty; and in this case, because the
offense in question was a single incident which lasted mere seconds, there is
nothing about it which can be labeled deliberately cruel; that every rape
victim suffers some emotional trauma, but in this case, there is no indication
that the victim or her mother sought professional help and there is no reason
to believe that their emotional injuries are permanent; and that Defendant’s
prior felony convictions are not crimes of violence and do not justify the
25-year sentence imposed. Regarding the mitigating factors, Defendant
argues that his conduct was not planned, he had not thought through any of
the possible consequences and he did not contemplate that he would cause
serious harm to the victim.
The state argues that the sentence imposed by the trial court is not
excessive or unconstitutional. It contends that the trial court meticulously
2 There is no indication in the appeal record that the trial court ruled on the motion to reconsider sentence. The absence of a ruling does not affect this court’s ability to consider the constitutional excessiveness of a defendant’s sentence on appeal, nor does it require remand. State v. Farris, 51,094 (La. App. 2 Cir. 12/14/16), 210 So. 3d 877, writ denied, 17-0070 (La. 10/9/17), 227 So. 3d 828.
3 considered the aggravating circumstances and found that no mitigating
factors were applicable. The trial court considered Defendant’s criminal
history, including sex crimes dating back to 2006, which shows he is a
sexual predator, and that he has two other convictions, which show he has a
propensity to commit multiple types of crimes. It further contends that the
midrange sentence does not shock the sense of justice, considering the facts
of the attack and that the rape occurred in the minor victim’s bedroom,
thereby removing the victim’s feeling of safety in her own house and
causing permanent emotional scars.
When reviewing an excessive sentence claim, the appellate court uses
a two-prong test. First, the record must demonstrate that the trial court
complied with La. C. Cr. P. art. 894.1. The trial court is not required to list
every aggravating and mitigating circumstance, but the record must reflect
that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State
v. Smith, 433 So. 2d 688 (La. 1983). The trial court should consider the
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Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,261-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
KENNY McKNIGHT Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 354,648
Honorable Katherine C. Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON W. WALTMAN NANCY F. BERGER-SCHNEIDER TOMMY J. JOHNSON Assistant District Attorneys
Before WILLIAMS, PITMAN, and STONE, JJ. PITMAN, J.
A jury convicted Defendant Kenny McKnight of second degree rape,
and the trial court sentenced him to 25 years at hard labor, with 5 years to be
served without benefit of probation, parole or suspension of sentence.
Defendant appeals, arguing that his sentence is excessive. For the following
reasons, we affirm Defendant’s conviction and sentence.
FACTS
On January 22, 2018, the state filed a bill of information charging
Defendant with the second degree rape of A.G., which occurred on or about
July 19, 2017.
The jury trial commenced on February 12, 2019. A.G. testified that
Defendant is her cousin, i.e., her grandmother’s sister’s child. She stated
that on July 19, 2017, she was 16 years old and was at home with several
family members, including Defendant. Defendant came into her bedroom,
locked the door, grabbed her by her arms and “slammed” her face down onto
the bed. While holding her arms behind her back, Defendant pulled down
her elastic-waist pants and underwear. She yelled and screamed and told
Defendant to get off of her. She squeezed her buttocks to try to prevent him
from penetrating her, but he inserted the top part of his penis into her anus.
When Defendant left her room, she tried calling her mother and aunt on the
phone, but neither answered. She then called her former cheerleading coach,
who drove to her house. Her aunt then arrived and took her to the hospital.
Melanie Hubbard, a sexual assault nurse examiner, testified that she
conducted an examination of A.G. and collected evidence, which she placed
in a personal evidence recovery kit (“PERK”). A.G. told Hubbard that
Defendant forced his penis into her anus. Hubbard stated that she did not find any injuries to A.G.’s anal or vaginal areas. She noted, however, that
this was not unusual because 85 percent of the time, there are no injuries
when someone is assaulted.
Katie Traweek, an expert in DNA analysis, testified that in examining
the evidence contained in the PERK, she detected prostate specific antigen
on the external genitalia swab and the perineal swab, but did not find any
sperm cells. She stated that there was insufficient male DNA to obtain a
profile to compare to Defendant’s reference sample.
Detective Jeff Allday of the Shreveport Police Department testified
that he works in the sex crimes unit and investigated this case. He learned
that Defendant was 24 years old at the time of the alleged rape. He
interviewed Defendant; and after being advised of his rights, Defendant
admitted that his finger and his penis were briefly “in” A.G.’s anus. He also
testified that in September 2010, Defendant was convicted of misdemeanor
carnal knowledge of a juvenile, and the victim in that case was 13 years old.
On February 13, 2019, the jury found Defendant guilty as charged of
second degree rape. On February 28, 2019, the trial court denied
Defendant’s motion for post-verdict judgment of acquittal. It then sentenced
Defendant to 25 years at hard labor, with 5 years to be served without the
benefit of probation, parole or suspension of sentence.1
On March 27, 2019, Defendant filed a motion to reconsider and
vacate his sentence, arguing that it is excessive because the aggravating
1 That same date, the state filed a third-felony habitual offender bill of information based on Defendant’s prior convictions for simple burglary and illegal possession of stolen firearms. The appeal record does not contain any further information about whether Defendant was ever adjudicated and sentenced as a habitual offender. 2 factors noted by the trial court are inadequate and the trial court failed to
consider the mitigating factors.2
Defendant appeals.
DISCUSSION
In his sole assignment of error, Defendant argues that his 25-year
sentence for second degree rape is excessive under the circumstances. He
finds fault with the aggravating factors considered by the trial court and
alleges that it failed to consider any mitigating factors. Regarding the
aggravating factors, Defendant contends that any act of second degree rape
constitutes some degree of deliberate cruelty; and in this case, because the
offense in question was a single incident which lasted mere seconds, there is
nothing about it which can be labeled deliberately cruel; that every rape
victim suffers some emotional trauma, but in this case, there is no indication
that the victim or her mother sought professional help and there is no reason
to believe that their emotional injuries are permanent; and that Defendant’s
prior felony convictions are not crimes of violence and do not justify the
25-year sentence imposed. Regarding the mitigating factors, Defendant
argues that his conduct was not planned, he had not thought through any of
the possible consequences and he did not contemplate that he would cause
serious harm to the victim.
The state argues that the sentence imposed by the trial court is not
excessive or unconstitutional. It contends that the trial court meticulously
2 There is no indication in the appeal record that the trial court ruled on the motion to reconsider sentence. The absence of a ruling does not affect this court’s ability to consider the constitutional excessiveness of a defendant’s sentence on appeal, nor does it require remand. State v. Farris, 51,094 (La. App. 2 Cir. 12/14/16), 210 So. 3d 877, writ denied, 17-0070 (La. 10/9/17), 227 So. 3d 828.
3 considered the aggravating circumstances and found that no mitigating
factors were applicable. The trial court considered Defendant’s criminal
history, including sex crimes dating back to 2006, which shows he is a
sexual predator, and that he has two other convictions, which show he has a
propensity to commit multiple types of crimes. It further contends that the
midrange sentence does not shock the sense of justice, considering the facts
of the attack and that the rape occurred in the minor victim’s bedroom,
thereby removing the victim’s feeling of safety in her own house and
causing permanent emotional scars.
When reviewing an excessive sentence claim, the appellate court uses
a two-prong test. First, the record must demonstrate that the trial court
complied with La. C. Cr. P. art. 894.1. The trial court is not required to list
every aggravating and mitigating circumstance, but the record must reflect
that it adequately considered the guidelines of La. C. Cr. P. art. 894.1. State
v. Smith, 433 So. 2d 688 (La. 1983). The trial court should consider the
defendant’s personal history and prior criminal record, the seriousness of the
offense, the likelihood that the defendant will commit another crime and the
defendant’s potential for rehabilitation. State v. Jones, 398 So. 2d 1049 (La.
1981). The trial court is not required to assign any particular weight to any
specific matters at sentencing. State v. Quiambao, 36,587 (La. App. 2 Cir.
12/11/02), 833 So. 2d 1103, writ denied, 03-0477 (La. 5/16/03), 843 So. 2d
1130.
Second, the appellate court must determine if the sentence is
constitutionally excessive. A sentence is excessive and violates La. Const.
art. I, § 20, if it is grossly out of proportion to the severity of the crime or is
nothing more than the purposeless and needless imposition of pain and 4 suffering. State v. Bonanno, 384 So. 2d 355 (La. 1980). A sentence is
grossly disproportionate if, when the crime and punishment are considered
in light of the harm done to society, it shocks the sense of justice. Id.
The trial court is given a wide discretion in the imposition of
sentences within the statutory limits, and the sentence imposed by the trial
court should not be set aside as excessive in the absence of a manifest abuse
of its discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7.
The trial court is in the best position to consider the aggravating and
mitigating circumstances of a particular case and, therefore, is given broad
discretion in sentencing. Id. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. Id.
Whoever commits the crime of second degree rape shall be
imprisoned at hard labor for not less than 5 nor more than 40 years. At least
two years of the sentence imposed shall be without benefit of probation,
parole or suspension of sentence. La. R.S. 14:42.1(B).
At the sentencing hearing, the trial court complied with La. C. Cr. P.
art. 894.1. Considering La. C. Cr. P. art. 894.1(A), the trial court found
that there was an undue risk that Defendant would reoffend if given a
suspended or probated sentence, that he was in need of correctional
treatment and that a lesser sentence would deprecate the seriousness of his
crime. Considering La. C. Cr. P. art. 894.1(B), it found that
Defendant’s conduct manifested deliberate cruelty to the victim, that he
knew or should have known that the victim was particularly vulnerable or
incapable of resistance due to her youth and that the offense resulted in
significant permanent emotional injury to the victim and her mother. It 5 considered Defendant’s criminal history and noted his prior felony
conviction. It found that no mitigating factors applied. It gave sufficient
weight to each of the applicable aggravating and mitigating factors, and the
record adequately supports the sentence imposed.
The midrange sentence imposed by the trial court is not
constitutionally excessive. Defendant went into his minor cousin’s
bedroom, forcefully slammed her onto her bed and inserted his finger and
his penis into her anus without her consent. Considering the facts of this
case, the sentence imposed by the trial court does not shock the sense of
justice, nor is it grossly disproportionate to the severity of the offense.
Therefore, the trial court did not abuse its discretion in sentencing Defendant
to 25 years at hard labor, with 5 years to be served without benefits.
Accordingly, this assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of
Defendant Kenny McKnight.
AFFIRMED.