State of Louisiana v. Kevin Myles

• Court: Louisiana Court of Appeal
• Decided: September 25, 2019
• Docket: 52,861-KA
• Status: Published

Opinion

Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.

No. 52,861-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

KEVIN MYLES Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 344334

Honorable Brady O’Callaghan, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Carey J. Ellis

KEVIN MYLES Pro Se

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

SUZANNE M. WILLIAMS Assistant District Attorney

Before MOORE, PITMAN, and GARRETT, JJ. GARRETT, J.

The defendant, Kevin Myles, was convicted as charged of the offense

of aggravated incest and sentenced to 20 years at hard labor. He appealed.

His appointed counsel has filed a motion to withdraw, with a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493

(1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So. 2d 241, urging

that there are no nonfrivolous issues on which to base the appeal. For the

following reasons, we affirm the defendant’s conviction and sentence. We

also grant appellate counsel’s motion to withdraw.

FACTS

In 2016, the defendant’s biological daughter contacted the police and

informed them that the defendant had vaginal intercourse with her almost

every night from the time she was nine years old until she was about 16

years old and that she gave birth to the defendant’s child when she was 17

years old. DNA testing determined that there was a 99.9 percent probability

that the defendant was the father of his daughter’s child. The defendant was

arrested and charged with aggravated incest. At trial, the state presented the

testimony of the daughter, the investigating police officer, and a forensic

DNA analyst. The defendant was convicted as charged by a unanimous

jury. His motions for post-verdict judgment of acquittal and for new trial

were denied. The trial court imposed a sentence of 20 years at hard labor.1

1 The defendant was charged with aggravated incest, in violation of La. R.S. 14:78.1. That statute was repealed in 2014, and the offense of aggravated crime against nature was amended to include the elements and penalties of the crime of aggravated incest. See Acts 2014, No. 177, and La. R.S. 14:89.1. Before imposing sentence, the trial court held that, at the relevant times in the instant case, the sentencing range for aggravated incest was a fine of up to $50,000, or imprisonment, with or without hard labor, for a term not less than five years nor more than 20 years, or both. The state and the defense agreed. It directed that it be served concurrently with any other sentence and that the

defendant be given credit for time served. The defendant’s timely motion to

reconsider sentence, which was based upon his status as a first felony

offender, was denied. The defendant appealed.

DISCUSSION

The Louisiana Appellate Project was appointed to represent the

defendant on appeal. The defendant’s appellate counsel filed an Anders

brief and a motion to withdraw, advising that he made a conscientious and

thorough review of the trial court record and found no nonfrivolous issues to

raise on appeal. See Anders v. California, supra; State v. Jyles, supra; State

v. Mouton, 95-0981 (La. 4/28/95), 653 So. 2d 1176. The brief outlines the

procedural history of the case and the trial court’s rulings on the motions

filed by the defendant. It also contains “a detailed and reviewable

assessment for both the defendant and the appellate court of whether the

appeal is worth pursuing in the first place.” Jyles, 704 So. 2d at 242. We

ordered that the motion to withdraw be held in abeyance. The defendant’s

motions for a copy of the appellate record and to file a pro se supplemental

brief were granted. Due to the filing of the Anders brief, the state declined

to file a brief.

The defendant filed a pro se brief asserting that his sentence is

excessive. He alleged that the trial court failed to consider both the

mitigating and/or aggravating factors under La. C. Cr. P. art. 894.1. The

defendant also contended that the trial court did not take into account “the

unique individual circumstances.” However, the defendant’s brief does not

specify or discuss any such circumstances.

2 Furthermore, our review of the record reveals that the trial court

conducted an extremely detailed review of the factors enumerated in La.

C. Cr. P. art. 894.1. The trial court found that all three factors set forth in

La. C. Cr. P. art. 894.1(A) required that the defendant be sentenced to a term

of imprisonment. It then went through the list of aggravating and mitigating

factors and found that eight aggravating factors applied.2 The trial court also

painstakingly reviewed each of the possible mitigating factors on the record,

but it concluded that only one applied, i.e., the defendant’s lack of a

substantial criminal history, as he had only a 2003 conviction for simple

battery.

As a general rule, maximum sentences are reserved for the worst

offenders and the worst offenses. State v. Meadows, 51,843 (La. App. 2 Cir.

1/10/18), 246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18), 254 So. 3d

1208. The defendant began having vaginal intercourse with his daughter

when she was a young child and continued to do so on numerous occasions

for a period of many years, essentially robbing her of her childhood. Even

worse, he impregnated her. The victim’s description of the violent manner

in which her father repeatedly raped her is horrifying. Under the facts set

forth in the record, we find no abuse of the trial court’s great discretion in

the imposition of the maximum sentence upon this defendant.

2 The trial court found the following aggravating factors, which are listed with their corresponding numbers under La. C. Cr. P. art. 894.1(B), were applicable to the instant case: (1) the deliberate cruelty to the victim manifested by the offender’s conduct; (2) the victim’s vulnerability due to extreme youth; (4) the offender’s use of his status as the victim’s father to facilitate the commission of the offense; (6) the actual physical violence of the rapes, as described by the daughter in her trial testimony; (9) the significant and permanent traumatic injury to the victim; (11) the involvement of multiple victims, i.e., the daughter and the child sired by the offender as a result of his offense; (12) the fact that there were multiple crimes committed over a lengthy period of time; and (21) as another relevant factor, the defendant’s “abhorrent” manipulation of the victim. 3 Based upon our review of the entire record, we find no rulings that

arguably support an appeal and no error patent. Thus, the record shows

there are no nonfrivolous issues to raise on appeal. Accordingly, the

appellate counsel’s motion to withdraw is hereby granted.

CONCLUSION

For the reasons expressed above, we affirm the defendant’s conviction

and sentence. We also grant appellate counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED.