Judgment rendered May 22, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,688-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
QUINCY DEWAYNE ROBINSON Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 243,728
Honorable Douglas Stinson, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd
J. SCHUYLER MARVIN Counsel for Appellee District Attorney
RICHARD RAY CHANCELLOR NERREN CODY BOYD Assistant District Attorneys
Before STONE, MARCOTTE, and ELLENDER, JJ. MARCOTTE, J.
This criminal appeal arises from the 26th Judicial District Court,
Parish of Bossier, the Honorable Douglas Stinson presiding. Defendant,
Quincy Dewayne Robinson, was convicted of obscenity and sentenced to
three years at hard labor, to run consecutively to his other sentences.
Defendant now appeals his conviction and sentence. For the following
reasons, Robinson’s conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
On August 1, 2022, Robinson was charged by bill of information with
obscenity, in violation of La. R.S. 14:106(A). The offense occurred on April
5, 2022. Robinson pled not guilty to the charge, and on May 8, 2023, a trial
was held where the following evidence was adduced.
John Alan Dupree (“Off. Dupree”), a probation officer for the
Division of Probation and Parole, testified that he worked in law
enforcement for 27 years and worked primarily with sex offenders.1 On
April 5, 2022, Off. Dupree met with Robinson at the Bossier Parish
Maximum Facility (“Bossier Max”), the parish prison. Off. Dupree
identified Robinson in court. Off. Dupree stated:
While I was reading some paperwork to Mr. Robinson, as soon as he saw me come in, he became irate and started shouting obscenities, and when I was reading his paperwork to him, he kept hollering at me and telling me to suck his dick. And when I looked, he had his penis stuck through the … little slot in the door, constantly telling me to suck his dick.
Off. Dupree testified that Robinson repeatedly attempted to throw
what he believed to be urine on him as soon as he got close enough to
1 Defense counsel objected and moved for a mistrial, arguing that Off. Dupree’s testimony constituted the introduction of 404(B) other crimes evidence. After a brief hearing outside the presence of the jury, the trial court overruled the objection and denied the motion for a mistrial. defendant’s cell. Off. Dupree later said that he was unsure if the liquid was
urine or “some other water.” Off. Dupree stated that during his entire
encounter with Robinson, “[H]e shouted multiple obscenities and was telling
me to … suck his dick.” Robinson exposed his genitals to Off. Dupree “for
a period of time.” Off. Dupree stated that he stopped reading the paperwork
to Robinson and began reading him his rights pursuant to Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and
informed him that he was charging him with obscenity.
Robinson continued to shout obscenities at Off. Dupree. Off. Dupree
testified that he attempted to get surveillance video of the incident, but was
informed that there was no video. Off. Dupree stated that he did not consent
to Robinson exposing his genitals to him or attempting to throw urine on
him. He stated that defendant’s actions were intentional and directed at him
and that he was offended by Robinson’s actions. He testified that there were
sheriff’s deputies and guards present who witnessed the incident.
Off. Dupree gave the following testimony on cross-examination. He
said that usually when visiting Bossier Max, he tells the facility workers who
he wants to see and that person is brought to an interview room. He stated
that he did not know if that was a written policy or the way the jail normally
operates. Off. Dupree stated that Robinson was not brought to an interview
room and he was told that Robinson had been combative and “they didn’t
want to bring him back out because they’d already had to deal with him.”
He was told he could conduct his business with Robinson at his jail cell.
Off. Dupree said that he was not aware if it was normal for probation
officers to go to the cell pods, but that he had been to the pods before.
2 Off. Dupree stated that he was aware that there were cameras in
Robinson’s cell pod, but he was unsure if they were directed at Robinson’s
cell. He did not ask about a video until he knew the case was going to trial,
more than one year after the incident. After the alleged incident, no one told
Off. Dupree that they saw what happened on video surveillance. When
asked why he did not request the video earlier, Off. Dupree stated, “I just
didn’t.”
Deputy Jessie Bearden (“Dep. Bearden”) testified that he was working
as a deputy for the Bossier Parish Sheriff’s Office at Bossier Max on the
date of the offense and he was familiar with Robinson. Off. Dupree was
present to give Robinson some paperwork from probation and parole. Dep.
Bearden stated that it was the usual prison policy to get inmates from their
cell location and take them to an interview room to meet with their probation
officer. He said that there were exceptions to that policy, such as when it
was not safe to move an inmate.
Dep. Bearden said that Off. Dupree was escorted to Robinson’s cell
because Robinson was combative earlier that day and had a history of acting
out, “so nobody wanted to go and fight him to get him from point A to point
B.” Dep. Bearden testified that Robinson was immediately belligerent upon
seeing Off. Dupree enter the cell pod. Mr. Dupree began reading some
paperwork to defendant, but Robinson yelled obscenities at him. Dep.
Bearden testified that Robinson was “playing with his penis and sticking it
through the door, yelling, pointing down, telling him that he could suck his
dick multiple times.” He stated that he was standing three to four feet from
Robinson’s cell door when this occurred.
3 Dep. Bearden testified that Robinson was yelling obscenities and
sticking his penis through the food slot in the door and he told Dep. Bearden
to step away from the door. He said that Robinson’s hand came out of the
door and liquid came out of his penis which he was holding in his hand.
Dep. Dupree and Robinson continued to have a conversation, and defendant
refused to sign his paperwork. Off. Dupree and Dep. Bearden then went to
booking. Dep. Bearden stated that he did not open Robinson’s cell or
engage with him in any way in response to the incident. Dep. Bearden
stated that Robinson was in a camera cell at the time of the offense, which
he referred to as a “101 cell,” so there would have been a video of his
encounter with Off. Dupree.
The following testimony was elicited on cross-examination. Dep.
Bearden stated that he could not explain why there was no video of the
incident, but he did not work for the IT department at Bossier Max. He said
that the prison was getting a new camera system at the time of the offense,
so he was not able to say if the camera in Robinson’s cell was operable on
the date of the offense. Dep. Bearden testified that Off. Dupree was
standing in front of Robinson’s cell door speaking to him through the food
port and he was standing approximately three feet to the right of Dep.
Dupree, also facing the door. He stated that the cell doors were sealed
except for the food slot. Dep. Bearden said that there were other cameras in
the pod that would have captured the encounter on video, but he was
unaware if they were working at the time. The state rested.
Robinson elected to testify in his own defense. He stated that he was
placed in a 101 cell at Bossier Max because he got into an altercation. He
said he was in a camera cell; there was a camera pointing at the front of his 4 cell and another in front of the dorm that also pointed directly at his cell.
Robinson disputed Off. Dupree’s and Dep. Bearden’s testimony. He said
that he did not recall either being in or near his cell.
Robinson gave the following testimony on cross-examination. He
again stated that he did not remember anyone coming to his cell on April 5.
He claimed that Dep. Bearden and Off. Dupree were lying. Defendant
claimed that he spoke with Lieutenant Evans (“Lt. Evans”) about getting a
video of the incident, but was told that Bossier Max did not have video
retention. He said that he asked his lawyer to get the video of the incident,
but his attorney was unsuccessful in getting it. Robinson said that he did not
subpoena any witnesses to verify his statement about getting a video.
Robinson said that he never exposed his genitals to Off. Dupree or
threw urine on him. Robinson again claimed that Off. Dupree lied about
what happened. Robinson pointed out that Dep. Bearden was present in the
courtroom when Off. Dupree testified. Robinson said that he filed a lawsuit
against the jail and he “had a tendency to write ARPs” and “it sticks and
they dock their pay when it sticks.”2 He testified that he filed two ARPs
against Dep. Bearden. When asked about proof of the ARPs he filed against
Dep. Bearden, Robinson stated that they were in his jail cell, and he was
unaware that the deputy would be testifying at trial, so that was why he did
not bring them to court.
Robinson testified on redirect that, if given the opportunity, he could
bring his ARPs and a copy of his lawsuit against the prison. Defense
counsel, Mark Rogers, then moved to temporarily release Robinson, recess
“ARP” refers to “Administrative Review Procedure” or “Administrative 2
Remedy Procedure,” whereby inmates may file complaints about prison employees, etc. 5 the trial, and give Robinson an opportunity to return the next day to bring the
evidence about which the state inquired. The following argument occurred
outside the presence of the jury (verbatim):
THE COURT: Okay. Mr. Robinson has just stepped down. Mr. Rogers, your request is to recess the trial until tomorrow morning so additional evidence can be brought; is that correct?
MR. ROGERS: Yes, Your Honor.
THE COURT: Mr. Nerren, State’s position?
MR. NERREN3: Oh, we would absolutely object, Your Honor. They’ve had just as much time as we have to prepare for this. If there was a lawsuit filed and ARPs filed against deputies that would’ve helped them to prove that these deputies and this officer are lying then they should’ve got that a long time ago. And, I – I mean, I think that it was made quite clear during cross-examination that that fact was known. So just because the testimony went into a direction where they now feel they need to bring something additional, it’s – it’s inappropriate. We didn’t know anything about it. Nobody told us anything about it. It wasn’t presented to us. And now he wants to bring it in order just to support something he may not have just made up.
THE COURT: Okay. Your response, Mr. Rogers?
MR. ROGERS: And, Your Honor, we don’t have a crystal ball. I had no idea Mr. Nerren was gonna go into this area of questioning, it would become such an issue. Mr. Robinson is in jail. He has limited resources. He has a limited ability to bring things to and from his jail cell to the courtroom. He doesn’t have free access. We don’t have access to his – if we could recess for ten minutes or fifteen minutes for someone to bring it up here we would be able to do that instead. If it were earlier in the day I would ask for a temporary recess to try and do it during
3 Mr. Nerren represented the state. 6 lunch or to give us an hour, but we’re at the end of the day, Your Honor. That being said, I believe it’s paramount for Mr. Robinson to be able to tell his side of the story. He has taken the stand. He has the documents he claimed to have. Mr. Nerren has impeached him thoroughly on not having those documents with him. That’s an unfair advantage against an incarcerated individual. In order to try and at least balance the scale – scales of justice to make them a bit fair, I would like for Mr. Robinson to have an opportunity to get that paperwork, bring it in tomorrow, we would present that and then go from there. And then after that I don’t think we have on the defense side any more witnesses to call in our case in chief. So, then we would go into closing arguments and be done.
THE COURT: Okay. Briefly?
MR. NERREN: I mean, Judge, the – the mode is not to get impeached and then decide you had evidence somewhere that you just now decide would help you out after your testimony. I mean, he’s had – he – they claim he’s got limited resources and limited access, but he knew he needed clothes he told – he told the court earlier he’d had them sitting there for a month. He said he had talked to Mr. Rogers and that [it] was clear that there was a lawsuit and all this other stuff filed. This is not, Mr. Robinson took the testimony this direction, not me. And so he knew he was gonna bring that up. He knew that that was his ace in the hole to try and prove that these guys were lying and then after he gets impeached he wants to present evidence.
THE COURT: Okay. Well, Mr. Rogers, it’s kind of an out of ordinary request. Both sides announced ready for trial. Mr. Nerren’s last argument I tend to agree with it, once someone’s impeached you don’t then recess the trial to give the other side the opportunity to combat that. And it’s the normal order of trial and I’m not going to do that today. So I’m going to deny that request. We are not recessing the trial so that Mr. Robinson can 7 obtain any documents that may or may not exist. And I’ll note your objection to my ruling for the record. Anything else? We ready to bring the jury back in? ….
MR. ROGERS: And, Your Honor, and again [on] behalf of Mr. Robinson we weren’t aware that Deputy Bearden was gonna be called to testify at this point. Bearden was complete add on into this trial at the last minute. And I got, I think, some confirmation during the weekend from Mr. Boyd that they were gonna call him up there. We got a little prepared, we weren’t sure what was gonna happen. It seems rather unfair that they bring Bearden in at the very last second to bolster Agent Dupree’s testimony, and yet, Mr. Robinson who’s incarcerated and indigent and – and has limited resources just to have this matter continued for one day to give him an opportunity to bring that evidence if it exists. ….
THE COURT: Well Mr. Rogers, I mean, to that I would say if the State presented their case and after your case, I mean, I wouldn’t allow the State to recess to – to find additional evidence. Y’all both announced ready for trial. We’ve picked a jury. We’ve started the trial. He’s testified. You said no further questions. And so, at – at this point, the normal order of trial is you are to call your next witness. I’m not going to recess it for either side to get additional information. That’s just not the normal order for trial under Article 765 of the Code of Criminal Procedure. So that’s – that’s where I am. And again, I’ll note your objection for the record.
The defense rested. The six-member jury returned a unanimous
verdict of guilty as charged. The trial court ordered that a presentencing
investigation report (“PSI”) be prepared.
On May 17, 2023, Robinson filed a motion for a new trial claiming
that the trial court erred in denying his motion for a mistrial based on the
8 introduction of other crimes evidence and erred in not recessing the trial so
that he could retrieve paperwork from his cell. On May 18, 2023, the trial
court denied the motion for a new trial.
On July 31, 2023, Robinson was sentenced. At the beginning of the
sentencing hearing, the state indicated its intention to file a habitual offender
bill at a later date. The trial court considered Robinson’s extensive criminal
history, including multiple arrests which did not result in convictions. He
had a conviction for entering or remaining after being forbidden and another
for unauthorized use of a motor vehicle, in which his probation was revoked
and he was required to serve his 18-month sentence. He had charges for
possession of marijuana in 2007, 2009, and 2021.
In 2010, Robinson pled guilty to second-degree kidnapping of a child
and received a 10-year hard labor sentence. He was paroled for the charge,
which was later revoked. In 2013, he received a six-month sentence for
introducing contraband into a correctional facility. In 2019, he pled guilty to
failure to complete sex offender notification. In 2021, he pled guilty to
unauthorized entry of an inhabited dwelling and telephone harassment. In
2022, he had charges for battery of a correctional facility employee, resisting
an officer with force or violence, battery of a police officer, and resisting
arrest.
The trial court noted that Robinson had not done well with probation
and parole in the past. The court stated that Robinson’s social history
showed that he was 35 years old and his mother had a substance abuse
problem. He was raised by a friend of his late mother’s and she saw to his
basic needs. Robinson was the third of 13 siblings. Robinson completed
11th grade, did not graduate, but did obtain his GED. He was married with 9 twin daughters, and he had substance abuse problems. The court said that
his criminal history and the fact that the instant offense was his fourth felony
did not “leave the court with any slack” in sentencing him. He said that the
victim in this case, Off. Dupree, was very offended by Robinson’s actions.
The trial court sentenced Robinson to serve three years at hard labor,
with credit for time served. The court said that his sentence was to run
consecutively to another other sentence he was serving. Robinson was not
advised of his appellate or post-conviction relief time limits. Robinson did
not object to his sentence or file a motion to reconsider sentence. Robinson
now appeals.
DISCUSSION
Insufficient Evidence
Appellant’s first assignment of error states that the evidence was
insufficient to find that he committed the offense of obscenity. He claims
that the state did not confirm through testing that the liquid he allegedly
threw at Off. Dupree was urine. He notes that he was not charged with a
battery for throwing the urine or assault for shouting obscenities at Off.
Dupree. Robinson also argues that it was suspicious that Off. Dupree failed
to secure the video recording of the incident for more than a year, given that
he was housed in a camera cell.
Appellant claims that he did not know Dep. Bearden was going to
testify until the morning of the trial. Robinson also complains that Dep.
Bearden was not sequestered during Off. Dupree’s testimony, allowing him
to easily confirm the officer’s testimony. Robinson states that the ARPs he
filed against Dep. Bearden provided a reason for the deputy to lie in his
testimony. Robinson said that coupled with the state threatening to file a 10 habitual offender bill against him, allowed Off. Dupree and Dep. Bearden a
chance to get rid of someone who was a “troublemaker.”
Appellee counters that the evidence was sufficient for the jury to
determine that Robinson was guilty of obscenity. The state points out that
two witnesses testified that defendant put his penis through the food slot in
his cell door. Off. Dupree testified that Robinson’s actions were directed at
him and he was very offended by what defendant did. The state argues that
the jury found the testimony of its two witnesses credible and compelling.
The state claims it was only required to prove that Robinson exposed his
genitals and that Off. Dupree found it offensive, which it did so in this case.
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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.
Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124
S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Hernandez, 55,256 (La. App.
2 Cir. 8/9/23), 369 So. 3d 962. This standard, now legislatively embodied in
La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to
substitute its own appreciation of the evidence for that of the factfinder.
State v. Pigford, 05-0477 (La. 2/22/06), 922 So. 2d 517.
The trier of fact makes credibility determinations and may, within the
bounds of rationality, accept or reject the testimony of any witness. State v.
Higgins, 03-1980 (La. 4/1/05), 898 So. 2d 1219, cert. denied, 546 U.S. 883,
126 S. Ct. 182, 163 L. Ed. 2d 187 (2005); State v. Hernandez, supra. When
there is conflicting evidence about factual matters, the resolution of which 11 depends on a determination of the credibility of witnesses, the matter is one
of the weight, not the sufficiency, of the evidence. Tibbs v. Florida, 457
U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); State v. Hernandez,
supra.
La. R.S. 14:106(A)(1) provides that the crime of obscenity is the
intentional exposure of the genitals, pubic hair, anus, vulva, or female breast
nipples in any public place or place open to the public view, or in any prison
or jail, with the intent of arousing sexual desire or which appeals to prurient
interest or is patently offensive.
The state was only required to prove that Robinson exposed himself in
any public place open to public view, or in any prison or jail, and that the
exposure was patently offensive. Off. Dupree and Dep. Bearden testified
that Robinson exposed his penis to Off. Dupree through the food slot in his
cell door. Off. Dupree further testified that he found Robinson’s actions
offensive. The jury also heard Robinson’s testimony denying that the
incident occurred and that Dep. Bearden may have been biased toward him
as a “troublemaker.” It is within the discretion of the fact-finder to accept or
disregard any witness’s testimony. The jury was free to make credibility
determinations regarding the evidence presented. Off. Dupree was cross-
examined by defense counsel allowing the jury to hear that Robinson was in
a camera cell and that he did not attempt to get any video of the incident that
might have existed until nearly a year later.
Robinson complains that Dep. Bearden was allowed to remain in
court during Off. Dupree’s testimony, allowing him to more easily
corroborate the probation officer’s testimony with his own. It was
incumbent upon Robinson to request that Dep. Bearden be sequestered to 12 prevent that from happening, but he did not do so. Robinson’s complaint
that he was unaware that Dep. Bearden was going to testify until the day of
trial is addressed in defendant’s third assignment of error. This assignment
of error lacks merit, and Robinson’s conviction is affirmed.
Excessive Sentence
Robinson’s second assignment of error states that the trial court erred
in sentencing him to a three-year sentence to run consecutively to any other
sentence he is required to serve. Robinson argues that he is not the worst
offender; he did not expose himself to a child or female deputy. He argues
that Off. Dupree was trained in dealing with sex offenders and it is “realistic
to believe he is not as sensitive to being ‘offended’ by a sex crime as the
average person.”
Robinson also argues that his jail cell is his home, and that the larger
context of where he was at the time of the offense should be considered. He
argued that throwing urine was not relevant to the facts regarding the
obscenity charge because the act of obscenity was exposing his penis.
Robinson said that Off. Dupree continued to read paperwork to him while he
was yelling obscenities and exposing his penis, and it was only after water or
urine was thrown in his direction that he decided to charge Robinson with a
crime.
Appellee contends that Robinson’s three-year, consecutive sentence is
not constitutionally excessive. The state argues that the sentence was within
the discretion of the trial court, which had the benefit of reviewing
Robinson’s PSI. The trial court also considered the guidelines found in La.
C. Cr. P. art. 894.1, and the sentence was within the statutory range for the
offense. The state indicates that the trial court used the correct sentencing 13 range for Robinson, found in La. R.S. 14:106(G)(1). The state directs this
court’s attention to the emphasis the trial court placed on Robinson’s
extensive criminal history in sentencing him and the fact that he had his
probation or parole revoked on more than one occasion.
Failure to make or file a motion to reconsider sentence or to include
the specific grounds upon which a motion to reconsider sentence may be
based, including a claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or from urging any
ground not raised in the motion on appeal or review. La. C. Cr. P. art.
881.1(E).
When, as in this case, a defendant fails to make a motion to reconsider
sentence, the appellate court’s review of the sentence is limited to a bare
claim of constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La.
1993); State v. Brass, 55,265 (La. App. 2 Cir. 9/27/23), 372 So. 3d 386, writ
denied, 23-01423 (La. 4/3/24), __ So. 3d __, 2024 WL 1431245. A sentence
violates La. Const. art. I, § 20, if it is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless and needless
infliction of pain and suffering. State v. Smith, 01-2574 (La. 1/14/03), 839
So. 2d 1; State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Brass,
supra. A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in the light of the harm done to society, it shocks
the sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Brass, supra.
If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or plan,
the terms of imprisonment shall be served concurrently unless the court 14 expressly directs that some or all be served consecutively. Other sentences
of imprisonment shall be served consecutively unless the court expressly
directs that some or all of them be served concurrently. La. C. Cr. P. art.
883.
It is within the court’s discretion to make sentences consecutive rather
than concurrent. State v. Jackson, 53,976 (La. App. 2 Cir. 6/30/21), 321 So.
3d 547; State v. Robinson, 49,677 (La. App. 2 Cir. 4/15/15), 163 So. 3d 829,
writ denied, 15-0924 (La. 4/15/16), 191 So. 3d 1034. For example, the
sentencing court may impose consecutive sentences in cases where the
offender’s past criminality or other circumstances justify treating him as a
grave risk to the safety of the community. State v. Walker, 00-3200 (La.
10/12/01), 799 So. 2d 461.
The trial court was under no obligation to justify imposing a sentence
upon Robinson that was to run consecutive to any prior sentence he was
required to serve, because the offenses were not based on the same act.
State v. Gilcrease, 54,905 (La. App. 2 Cir. 11/30/22), 352 So. 3d 153, writ
denied, 22-01845 (La. 5/31/23), 361 So. 3d 467, cert. denied, __ U.S. __,
144 S. Ct. 306, __ L. Ed. 2d __ (2023).
The trial court has wide discretion to impose a sentence within the
statutory limits, and the sentence imposed will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So. 2d 7; State v. Gilcrease, supra. 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.
On a first conviction, whoever commits the crime of obscenity shall
be fined not less than one thousand dollars nor more than two thousand five 15 hundred dollars, or imprisoned, with or without hard labor, for not less than
six months nor more than three years, or both. La. R.S. 14:106(G)(1).
While the trial court did not mention La. C. Cr. P. art. 894.1, it still
completed an 894.1 analysis. The trial court here found Robinson’s criminal
history particularly concerning. Robinson was already imprisoned when he
committed the instant offense. He had prior and recent charges for battery
of a correctional facility employee and battery of a police officer. He is also
a registered sex offender and his obscenity conviction is his fourth felony.
The trial court mentioned Robinson’s age, social history, and the fact that he
is married with two children.
Robinson exposed his genitals to Off. Dupree when he visited his cell.
He used offensive language when speaking to the officer, and he apparently
attempted to urinate on Off. Dupree. His argument that Off. Dupree worked
with sex offenders as a probation officer, therefore he was desensitized to
offensive acts, such as the instant offense, is absurd. Also, the fact that
Robinson resided at the jail is immaterial, as La. R.S. 14:106 explicitly states
that public exposure includes exposure that occurs in a prison or jail.
Given those facts and Robinson’s extensive criminal history, we do
not find that Robinson’s sentence of three years shocks the sense of justice
or is disproportionate to his crime. We note that the trial court did not
impose the maximum sentence here, because it was within the court’s
discretion to levy a fine upon Robinson of up to $2,500 in addition to his
three-year term.
We also do not find that the trial court erred in sentencing Robinson to
a sentence that was consecutive to any other sentence he was serving; it was
within the trial court’s discretion to do so. His offense of obscenity was an 16 isolated offense and was not based on any prior offense he committed. This
assignment of error lacks merit and Robinson’s sentence should be affirmed.
Motion to Recess the Trial
In Robinson’s third assignment of error he claims that the trial court
erred in denying his motion to recess the trial so that he could retrieve copies
of his lawsuit and/or ARPs to demonstrate the bias of Dep. Bearden.
Robinson claims that the state opened the door by asking for proof of the
witness’ bias. The state then attacked Robinson’s credibility, arguing such
paperwork did not exist. Robinson argues that the defense was not aware
that Dep. Bearden was going to testify until the morning of the trial, which
did not allow him time to return to his cell to retrieve the documents he
needed. He states that he did not anticipate needing proof of Dep. Bearden’s
bias because the deputy did not come forward with his account of events
until a year later. Robinson argues he was denied a fair trial. He asks this
court to overturn his conviction and sentence.
Appellee argues it was within the discretion of the trial court to grant
defendant a continuance to allow him to retrieve paperwork from his cell.
The state contends that a conviction will not be reversed even on a showing
of an improper denial of a motion for a continuance absent a showing of
specific prejudice. The state asks this court to affirm defendant’s conviction
and sentence.
Here, Robinson moved to recess his trial to allow him to retrieve
documents showing Dep. Bearden’s potential bias. A continuance is the
postponement of a scheduled trial or hearing, and shall not be granted after
the trial or hearing has commenced, and a recess is a temporary adjournment
of a trial or hearing that occurs after a trial or hearing has commenced. La. 17 C. Cr. P. art. 708. A motion for recess is evaluated by the same standards as
a motion for a continuance. State v. Arabie, 07-806 (La. App. 5 Cir.
3/11/08), 982 So. 2d 136, writ denied, 08-0928 (La. 11/21/08), 996 So. 2d
1104. A ruling to grant or deny a motion for continuance is within the sound
discretion of the trial court and a reviewing court will not disturb it absent a
clear abuse of discretion. State v. Pettit, 54,736, (La. App. 2 Cir. 1/11/23),
354 So. 3d 784.
An irregularity or error cannot be availed of after verdict unless it was
objected to at the time of occurrence. La. C. Cr. P. art. 841(A). In order to
preserve an issue for appellate review, a party must state an objection
contemporaneously with the occurrence of the alleged error, as well as the
grounds for the objection. State v. Mays, 54,251 (La. App. 2 Cir. 5/25/22),
338 So. 3d 1279, writ denied, 22-01000 (La. 10/4/22), 347 So. 3d 895. If no
objection is made in the trial court, any error committed therein is not
preserved for appellate review. Id.; State v. Lloyd, 48,914 (La. App. 2 Cir.
1/14/15), 161 So. 3d 879, writ denied, 15-0307 (La. 11/30/15), 184 So. 3d
33.
It was within the discretion of the trial court to deny Robinson’s
motion to recess the trial so that he might retrieve paperwork from his cell.
Robinson and his counsel were aware of when his trial was occurring, and
they were given ample opportunity to prepare. Both sides announced that
they were ready for trial. It was only when the state challenged Robinson on
his claims of having evidence of Dep. Bearden’s bias that he sought to
introduce copies of the ARPs he filed against the deputy, which he claimed
were located in his cell. We agree with the trial court’s viewpoint that once
a witness is impeached, one side is not then allowed to recess the trial to 18 retrieve information to counter the impeachment. That paperwork should
have been retrieved prior to trial and the trial court did not err in denying the
motion to recess the trial.
Robinson claims that he was unaware that Dep. Bearden intended to
testify until the morning of the trial. Defense counsel, during the bench
conference regarding the motion to recess, stated he had not received notice
that Dep. Bearden was going to testify until the day of trial. However,
defense counsel then said that he received some notice over the previous
weekend that the deputy would testify. The record shows that Robinson did
not complain about the allegedly late addition of Dep. Bearden as a witness
until the bench conference regarding the motion to recess the trial, which
occurred during his testimony and after the deputy had already testified.
There was no contemporaneous objection to Dep. Bearden’s testimony;
therefore, the issue was not preserved for appeal. This assignment of error
lacks merit, and Robinson’s conviction and sentence should be affirmed.
Error Patent Review
The record was reviewed for errors patent and one was found. At
sentencing, the trial court failed to advise defendant of the time period
within which to apply for post-conviction relief. We now advise him by this
opinion that no application for post-conviction relief, including applications
which seek an out-of-time appeal, shall be considered if it is filed more than
two years after the judgment of conviction and sentence has become final
under the provisions of La. C. Cr. P. arts. 914 or 922.
19 CONCLUSION
For the foregoing reasons, Quincy Dewayne Robinson’s conviction
and sentence are affirmed.
AFFIRMED.