STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1131
STATE OF LOUISIANA
VERSUS
TOBY JAMES FRUGE
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 115665 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
********** ELIZABETH A. PICKETT JUDGE
**********
Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.
Michael Harson District Attorney, 15th JDC P.O. Box 3306 Lafayette, LA 70502-3306 Counsel for Plaintiff/Appellee: State of Louisiana
Jason W. Robideaux Attorney at Law 1313 Lafayette St. Lafayette, LA 70501 Counsel for Defendant/Appellant: Toby James Fruge PICKETT, Judge:
FACTS:
The defendant, Toby James Fruge, was charged by bill of information filed
on May 29, 2007, with two counts of forcible rape, in violation of La.R.S. 14:42.1.
On June 12, 2007, a written plea of not guilty was entered. Trial by jury commenced
on February 10, 2009. The jury returned verdicts of guilty of forcible rape and the
responsive verdict of simple rape, a violation of La.R.S. 14:43, on February 11, 2009.
On February 11, 2009, the jury returned verdicts of guilty of forcible rape of R.A.
which occurred on November 5, 2004, and the responsive verdict of simple rape of
J. H. which occurred on November 12, 2006.
A Motion for New Trial was both filed and denied on May 21, 2009. The
defendant was then sentenced to serve thirty years at hard labor, with at least two
years of the sentence to be served without benefit of probation, parole, or suspension
of sentence for forcible rape. For the charge of simple rape, the defendant was
sentenced to serve twenty-five years at hard labor without benefit of probation,
parole, or suspension of sentence. The sentences were ordered to be served
concurrently. A Motion to Reconsider Sentence was filed on May 27, 2009, and was
denied on June 1, 2009.
A Motion for Appeal of Conviction and Sentence was filed on June 2, 2009,
and was subsequently granted. The defendant is now before this court asserting four
assignments of error. Therein, the defendant contends the following: 1) the trial court
erred in denying his motion for new trial; 2) the state failed to prove he committed
forcible rape beyond a reasonable doubt; 3) the state failed to prove he committed
1 simple rape beyond a reasonable doubt; and 4) the trial court erred in failing to
articulate any factors in formulating his sentences.
ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this
court for errors patent on the face of the record. After reviewing the record, we find
there is one error patent regarding the sentence imposed.
For the offense of forcible rape, the trial court ordered the defendant to serve
thirty years at hard labor with at least two years without benefits:
MR. BABIN: If I may clarify, on the charge of forcible rape, you sentenced him to 30 years at hard labor. The statute says at least 2 years without benefit. Is that your sentence, at least 2 years without benefit?
THE COURT: Yes. I don’t think I have to say that because the statute says it.
MR. BABIN: I just wanted to make it clear.
Louisiana Revised Statute 14:42.1 requires at least two years of the sentence
to be imposed without benefit of probation, parole, or suspension of sentence. The
court rendered an indeterminate sentence in not specifying the number of years to be
served without benefits. Thus, the defendant’s sentence for forcible rape must be
vacated and the case remanded for resentencing. See La.Code Crim.P. art. 879, State
v. Cedars, 02-861 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191 and State v. Burton, 94-
486 (La.App. 3 Cir. 11/9/94), 649 So.2d 694.1
ASSIGNMENT OF ERROR NO. 2:
When multiple issues are raised on appeal, and sufficiency of the evidence is
one of the alleged errors, the reviewing court should first determine whether the
evidence is sufficient. State v. Hearold, 603 So.2d 731 (La.1992). Thus, we will first
1 The victims’ initials are being used in accordance with La.R.S. 46:1844(W).
2 consider the defendant’s second assignment of error, in which the defendant contends
the state failed to prove he committed forcible rape beyond a reasonable doubt.
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.
State v. Chaisson, 09-119, p. 10 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, 1173
(quoting State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86
(citations omitted)).
The defendant was convicted of forcible rape.
La.R.S. 14:42.1 provides in pertinent part:
A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
Thus, in order to convict the defendant, the State had the burden of proving: (1) an act of vaginal or anal intercourse; (2) without the lawful consent of the victim; and (3) where the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
State v. Schexnaider, 03-144, p. 10 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 457.
Jeanne Istre testified that on the date in question, she had worked with R.A. at
Subway. After work, the two went to Wrangler’s, a bar, between 9:45 and 10:00 p.m.
3 on the night in question. While at Wrangler’s, R.A. danced with the defendant. Istre
testified that she kept her eye on R.A. the entire time they were in the bar and she
never saw R.A. leave the bar with the defendant.
Eventually, Istre and R.A. left the bar, but did not invite the defendant to go
along with them. About ten minutes after they left, Istre ran off the road. Istre
testified that this occurred because R.A. hollered, “Somebody’s following us.” Istre
then looked in the rearview mirror, missed a curve, and hit the ditch. The defendant
subsequently drove up.
Istre testified that the defendant wanted her and R.A. to leave with him so she
could avoid getting a DWI. The two voluntarily left with the defendant and he
brought them to the home of Istre’s ex-boyfriend. Istre testified that R.A. was not
drunk or falling down at that time. However, R.A. threw up outside the home of
Istre’s ex-boyfriend. The defendant then offered to bring R.A. home and she
accepted.
R.A. testified that she and Istre left work together and went to Wrangler’s.
R.A. further testified that during the evening, she had four or five mixed drinks and
a few shots; thus, she was intoxicated. She testified that she danced with the
defendant, both slow and fast. R.A. further testified that she never left the bar with
the defendant and did not have sex with him in the parking lot.
R.A. indicated that when she and Istre left the bar, they did not invite the
defendant to go with them. R.A. and Istre noticed someone was following them, and
Istre said they were going to attempt to “lose him.” Istre subsequently missed a curve
and hit the ditch. The defendant stopped and offered to take R.A. and Istre to the
4 home of Istre’s ex-boyfriend. R.A. testified that she did not think she or Istre tried
to call a wrecker.
Once at the residence, R.A. threw up both outside and inside the residence.
R.A. left the residence with the defendant because he said he would take her home.
R.A. did not call her boyfriend to pick her up because she and her boyfriend did not
have a phone or a vehicle.
R.A. testified that she must have blacked out or fallen asleep inside the
defendant’s vehicle. When she awoke, they were on a gravel road and the defendant
was trying to start his vehicle. R.A. testified that she told the defendant that he better
get the vehicle started. She said she then knew something was wrong. R.A.
subsequently testified as follows:
A. I could just feel it in just looking at him. So I got out to take off to run, and it was just a dark gravel road. It was like darkness all the way straight. There was nowhere to go.
Q. When you got out of his vehicle, did you start to run?
A. But there was nowhere -- I just stopped. There was nowhere to go.
Q. You went back to the vehicle. Did he bring you back? How did you get back to the vehicle?
A. He was right there, and he grabbed me. And, you know, I told him, “Please, no, just don’t kill me out here.” And that’s when he put me in the driver’s side of his truck.
Q. What did he say when you said, “Please don’t kill me”?
A. I don’t remember what he said, honestly, and then that’s when he had me bent over in the driver’s seat and had my pants down and started to rape me.
R.A. testified that the defendant pulled her pants down. Further, she was penetrated
from the front and the back, once bending over the driver’s seat and the other while
she was laying back.
5 After the incident, the defendant took R.A. home. She told him she would not
call the police. As the defendant was leaving, R.A. got his license plate number.
Once inside her home, R.A. woke her boyfriend, and he went to his place of
employment and called 911.
R.A. was questioned about the Alleged Sexual Assault Data Form that was
filled out at the hospital as follows:
Q. Number 8, it says, “Were any threats used?” There’s a box for yes and a box for no. Could you tell me what you checked?
A. No, there was [sic] no threats used. He didn’t have any guns or anything.
Q. And so the box no was checked?
A. Yes, sir.
Q. Now, underneath the yes or no boxes, under threats used, there was, “If yes,” there’s a box for not. That box is not checked, is it?
Q. You said there was [sic] no threats. Then there’s a box for a gun, and that’s blank also; right?
A. Yes.
Q. And there’s a box for choke, and that’s blank; right?
Q. Fists, blank; right?
Q. Verbal threats, blank?
Q. Restraints, blank?
6 Q. Blindfold, blank?
Q. And then there’s the word, “Other” with a colon and a long line, I guess to write in what other type of threats; and that’s left blank also?
Q. Okay. And the reason the box is checked no and the reason there’s no threats identified is because you didn’t tell the doctors or the nurses about any threats, did you?
A. No, because there was no like gun or knife threats. They never asked -- I don’t remember them asking me about threats or anything like that in the first place.
Q. And, [R.A.], let’s say that the doctor mistakenly forgot to ask you about all types of threats. If you were threatened, don’t you think that was something you should have volunteered when they were asking you questions how it occurred?
A. I was -- I couldn’t even talk to my mom, much less anybody else about anything. It’s very embarrassing.
R.A. testified that she did not remember telling police that she had Istre’s cell
phone and the defendant took it from her.
Detective Marcus Lemaire testified that he interviewed the defendant. During
that interview, the defendant stated he had been at Wrangler’s on the night in question
and had danced with R.A. The defendant further stated that he and R.A. had vaginal
and oral sex in the parking lot of the bar. The defendant and R.A. left the bar
separately. The defendant further stated that R.A. and her friend indicated they were
going to Taco Bell, so he chose to follow them. On the way there, R.A. and her friend
were involved in an accident, and he stopped to help. Subsequently, R.A. and the
driver of the vehicle got into the defendant’s vehicle, and he brought them to the
residence of a third party. At that residence, R.A. threw up a couple of times. The
7 defendant indicated there was an argument over the wrecked vehicle. He left and
went straight home.
Lieutenant Todd Credeur testified that he interviewed the defendant some time
after the interview conducted by Detective Lemaire. During that interview, the
defendant gave the same details he had provided in his previous statement. The
defendant later indicated that version of the events was not true. At that time, he told
Lieutenant Credeur that he had sex with R.A. on a gravel road. The defendant stated
that at one point, R.A. started screaming and also said, “Don’t kill me.” The
screaming began after the defendant had penetrated R.A. He also stated that R.A.
said, “What are you doing to me, why are you doing this to me?” The defendant also
stated that R.A. asked him to stop, and he stopped right away. He later stated he
stopped a little while later. Lieutenant Credeur testified that he asked the defendant
if R.A. was too drunk to remember. At first the defendant told him yes then said,
“Well, no, not really. She knew what was going on.”
The defendant testified that he went to Wrangler’s. While there, he met R.A.
He further testified that he was intoxicated that night, but did not know how much
alcohol R.A. had consumed.
That night, he danced with R.A. He also kissed R.A. while they danced and
she laughed. He testified that later, R.A. and the defendant went outside to retrieve
items from their vehicles. Once at the defendant’s vehicle, the two made out and had
sex, which was interrupted. The two then went back into the bar.
Shortly before leaving the bar, R.A. indicated she wanted to go to Taco Bell
and invited the defendant to go. The defendant then followed Istre and R.A. Istre
later drove her car into a ditch, and the defendant came upon the accident. The
8 defendant suggested that the car be left so Istre would not get a DWI. He then
allowed Istre to use his cell phone to call a wrecker. The wrecker refused to assist,
so the defendant drove Istre and R.A. to a residence. Once at the residence, R.A.
threw up while both outside and inside the residence. R.A. said she needed to go
home and Istre told the defendant to bring her.
The defendant testified that while he drove R.A. home, she put her hand on his
leg and rubbed it and he in turn did the same to her. R.A. then touched his groin area,
so he pulled over on a gravel road. The two then began to kiss and eventually had
vaginal sex. R.A. also performed oral sex on the defendant. The defendant testified
that he never used force or violence during the encounter. Further, R.A. never told
him no.
The defendant testified that during the middle of having vaginal sex with R.A.,
she started hollering “Please don’t kill me.” The defendant further testified that he
asked her what she was talking about and he told her, “I’m not trying to hurt you.”
The defendant indicated that R.A. never got out of the vehicle or tried to run away,
and he never grabbed her and dragged her back to the vehicle.
The defendant further testified that he stopped having sex with R.A., and he did
not rape her. The defendant testified that he was not wearing a condom and could not
recall if he ejaculated. Testing revealed that DNA recovered from R.A. belonged to
the defendant.
After the incident, the defendant then drove R.A. home. During that drive,
R.A. never told him she would not call the police. The defendant testified that R.A.
never passed out or fell asleep during the time he was with her. The defendant
admitted that when he was first questioned by police he said he had sex with R.A. in
9 the parking lot of Wrangler’s, but did not say he had sex with her on the gravel road.
The defendant testified that he did not do so because he was scared he would lose his
kids. The defendant stated that he eventually told police what he testified to in court.
Melody Sanchez testified that she had known the defendant for six years, and he was
very truthful. Denise Credeur testified that the defendant was a very honest person.
In State v. Henderson, 41,657 (La.App. 2 Cir. 12/13/06), 945 So.2d 194, writ
denied, 07-267 (La. 11/2/07), 966 So.2d 597, the victim accepted a ride from the
defendant. The defendant drove to a dead-end street in a dark isolated area. The
defendant stopped the car and told the victim to get out of the car. The victim refused
to comply and made repeated requests for the defendant to take her home. The
defendant attempted to physically remove the victim from the car, and she made an
effort to brace herself by pressing her feet onto the floorboard of the car and pushing
her body into the seat. The defendant eventually dragged the victim from the car by
her arm and leg. He pushed her to the back of the vehicle where he penetrated her
vagina with his penis. When the defendant stopped, he pushed the victim back to the
passenger side of the vehicle.
The Henderson court found the evidence was sufficient to prove the victim was
prevented from resisting the act by force under circumstances where she reasonably
believed that such resistance would not prevent the rape. Thus, it upheld the
defendant’s conviction for forcible rape.
The defendant in the case at bar asserts the state failed to prove he used force
against R.A. However, R.A.’s testimony revealed that the defendant grabbed her, put
her in the driver’s side of the vehicle, then penetrated her while she was bent over the
driver’s seat. This occurred in a remote area. The victim had nowhere to run and no
10 help was possible. During this sequence of events, R.A. told the defendant, “Please,
no, just don’t kill me out here.” Furthermore, the jury’s verdict indicates it chose to
believe R.A.’s testimony over that of the defendant. After reviewing the evidence in
a light most favorable to the prosecution, in accordance with Jackson, we find the
state proved the elements of the offense charged beyond a reasonable doubt, that the
defendant forcibly raped R.A.
For these reasons, we find this assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 3:
In his third assignment of error, the defendant contends the state failed to prove
he committed simple rape beyond a reasonable doubt.
Louisiana Revised Statutes 14:43 defines simple rape, in pertinent part, as:
A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.
In the present case, the state had to prove that the vaginal sexual intercourse
with the victim was committed without her lawful consent because it was committed
when she was incapable of resisting or of understanding the nature of the act by
reason of a stupor or abnormal condition of mind produced by an intoxicating agent,
i.e. alcohol or any other cause, that the offender knew or should have known of her
incapacity, and that there was any sexual penetration, however slight.
Simple rape emphasizes the incapacity of the victim to give lawful consent to sexual intercourse because of a stupor caused by an intoxicating agent or other cause. State v. Chandler, 41,063, p. 9 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, 580, writ denied, 06-2554
11 (La.5/11/07), 955 So.2d 1277. In order to convict the defendant, the State has the burden of proving that the victim could not consent because she was in a “stupor” or abnormal condition of mind produced by intoxicating agent, i.e., alcohol. See, State v. King, 99-1279, p. 4 (La.App. 5 Cir. 4/25/00), 760 So.2d 540, 542, writs denied, 00-1498 (La.3/16/00), 787 So.2d 298 and 00-1452 (La.3/16/01), 787 So.2d 298; State v. Porter, 93-1106, p. 10 (La.7/5/94), 639 So.2d 1137, 1143. A defendant can be convicted of simple rape when the victim’s capacity to resist was negated by an abnormal condition or state of mind caused by alcohol consumption. State v. Porter, 93-1106 at 10, 639 So.2d at 1143. In sexual offense cases, the victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even though the State does not introduce medical, scientific or physical evidence to prove the commission of the offense. State v. Dixon, 07-915, p. 11 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153-54[.]
State v. Starr, 08-341, p. 12 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 459, writ denied,
08-2991 (La. 9/18/09), 17 So.3d 384.
John Paul Melancon testified that on the night in question, he drank with the
defendant at the home of Kyle Credeur. The defendant then went to Melancon’s
residence, and the two continued to drink. J.H. and her sister, S.H., who was also
Melancon’s fiancé, were present.
Eventually, Melancon, the defendant, and J.H. played a drinking game known
as Quarters, and S.H. went to bed. After playing for a while, J.H. laid down on the
couch in the living room and went to sleep. Melancon and the defendant continued
to drink and talk.
Melancon’s son woke up at approximately 2:30 or 3:00 a.m. and Melancon
went to tend to him. At that time, the defendant was in the living room watching
television. Melancon laid down with his son and fell asleep. Melancon testified that
S.H. later ran into the room screaming that the defendant attacked J.H. and was
leaving. Melancon ran outside and attempted to stop the defendant, who drove away.
12 Melancon testified that the defendant had a panicked look on his face at that time.
Melancon then went back inside his home, and J.H. was hysterical.
Melancon described the amount of alcohol J.H. consumed on the night in
question as follows:
Q. So you are sure she had two or three?
A. Yeah. It wasn’t much more than that because she had about two or three beers, you know; and she took a shot. And Toby had her took [sic] a shot. He made it. And he made it again a little shortly after that, and he said, “Take another shot.” She said, “I can’t right now.” I was like, “I’ll take them, you know.” And he tried to do it again, and I was taking the shots.
J.H. drank between 8:00 and 10:30 p.m.
S.H. testified that J.H. was her sister. J.H. arrived at Melancon’s home during
the afternoon. The defendant came over around 9:00 or 9:30 p.m., and the group
began to drink and talk. S.H. further testified that Melancon, the defendant, and J.H.
began to play Quarters, and she went to bed.
J.H. ran into S.H.’s room at approximately 4:00 a.m. J.H. was hysterical and
was screaming, “He wouldn’t get off of me. He forced himself on me.” J.H. then laid
down in bed next to S.H., curled into a ball, and started screaming and crying. S.H.
ran into the living room and saw the defendant walking out the door while attempting
to put on his shoes. S.H. called out the defendant’s name, and the defendant took off
running. S.H. then woke Melancon, who ran after the defendant.
S.H. testified that J.H. did not have a boyfriend at the time of the incident and
the two had split up a few days to a week before.
J.H. testified that she arrived at Melancon’s home at 8:30 p.m. on the day in
question. She later testified that she did not know exactly what time she got there.
The defendant arrived at the home at approximately 9:00 or 9:30 p.m. J.H. testified
13 that she drank a beer before the defendant arrived and prior to S.H. going to bed, she
had a couple more beers. Once S.H. went to bed, she, the defendant, and Melancon
played Quarters. During that time, she had two or three shots. J.H. subsequently laid
down on the couch and fell asleep. She drank over a four-hour period.
J.H. testified about the events that occurred next, as follows:
Q. After you went to sleep on the sofa, what happened next?
A. I heard moaning and kissing on my neck, and I was being held down
by -- he was holding me down by my breasts and --
Q. Let me stop you for a second. So what’s the first thing you felt?
A. Him kissing my neck.
Q. And then what after that?
A. I felt his penetration.
Q. Was he touching you anywhere other than the penetration?
....
A. With his hands? Yes. He was grabbing my breasts.
Q. Okay. You are positive that you were penetrated?
A. Very positive.
J.H. then yelled S.H.’s name over and over, kept screaming “no,” and pushed the
defendant off her. She then picked up her pants and ran to S.H.’s room.
J.H. testified that her jeans and panties had been pulled down to her knees and
she did not feel this while it occurred. J.H. went to S.H.’s room and laid down on the
bed. She then buttoned and zipped her pants. On cross-examination, J.H. was
questioned about her jeans as follows:
Q. You testified that you laid on her bed and zipped and buttoned your pants. Your pants, those were blue jeans?
14 A. Yes.
Q. They were button blue jeans?
J.H. did not know if the defendant was wearing a condom or if he had
ejaculated.
J.H. testified that she did have a boyfriend at the time of the incident and had
sex with him on the date of the incident. Further, she was wearing the same clothing
when she went to Melancon’s house and had not showered before the incident
involving the defendant.
The defendant testified that he and Melancon were at Kyle Credeur’s home,
and people were coaxing him to drink. The defendant eventually went to Melancon’s
home, where he spent time talking with S.H. At approximately 10:30 or 11:00 p.m.,
the defendant, Melancon, and J.H. began playing Quarters. The game lasted two to
three hours. The defendant testified that he had approximately twenty shots and
Melancon had more. Further, Melancon would make J.H. take shots. J.H. eventually
quit the game and laid down. However, the defendant and Melancon continued to
play. The defendant testified that J.H. had more than two or three shots. .
The defendant denied having sex with J.H. He further testified that he was
drunk and did not know exactly what was going on, but he knew for a fact that he did
not put his penis inside J.H. He asserted that he did not unbutton her pants. Further,
the defendant indicated he had an amputation that would make it difficult for him to
unbutton jeans.
15 The defendant further testified that he passed out on the floor and when he
woke up, J.H. was walking toward her sister’s room. As the defendant was leaving
the residence, Melancon ran after him.
The defendant testified that on the night in question he was taking Morphine,
MS Contin, Celebrex, and Rosarum. He was prescribed these medications for a back
injury.
Carolyn Booker, an employee of the Acadiana Crime Lab and an expert in
forensic DNA, testified that semen was found on J.H.’s jeans and panties and in the
sexual assault kit. The semen was not that of the defendant. Booker testified that
DNA would not be found if the offender wore a condom or did not ejaculate.
Booker also testified that the defendant’s DNA was not found in fingernail scrapings
taken from J.H.
Booker performed a contact DNA test on the hip area of J.H.’s panties and did
not find DNA that matched that of the defendant. Booker then testified that there
was no guarantee of finding contact DNA from the person who pulled down J.H.’s
pants and panties. Furthermore, J.H.’s jeans were not tested for contact DNA.
Booker testified that her office was never asked to analyze Melancon’s DNA.
The defendant asserts that it is inconceivable and irrational that a drunk, highly
medicated man with an amputated finger could unbutton J.H.’s button-fly jeans and
pull those jeans and her panties down to her knees, then manage to penetrate her, all
without waking her. Additionally, DNA evidence contradicted the state’s contention
that J.H. was raped. Further, there was no physical evidence presented.
When viewing the evidence in a light most favorable to the state, the record
supports a finding that J.H. had consumed alcohol and was asleep when the defendant
16 began to touch her inappropriately. Because J.H. was sleeping, she could not consent
to a sexual act, and the defendant was aware of her inability to consent. Further, J.H.
testified that the defendant penetrated her. The jury’s verdict indicates it chose to
believe J.H.’s testimony over that of the defendant, and the victim’s testimony alone
is sufficient to establish the elements of a sexual offense, even where the state does
not introduce medical, scientific, or physical evidence to prove the commission of the
offense. See Schexnaider, 852 So.2d at 457. Accordingly, we find that when the
evidence is viewed in a light most favorable to the prosecution, in accordance with
Jackson, the state proved beyond a reasonable doubt that the defendant committed the
offense of simple rape. For these reasons, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error, the defendant contends the trial court erred in
denying his motion for new trial.
During trial, the defendant introduced as “Defendant’s Exhibit 1” a report from
the crime lab regarding the offense involving J.H. That report indicated that a
reference DNA sample was taken from the defendant on October 23, 2003.
Out of the presence of the jury, the trial court informed the parties that the
jurors wanted to know why the sample DNA was from 2003 when the events at issue
happened in 2004 and 2006. The following exchange then occurred:
THE COURT: . . . My response was, “I really don’t know and since the” -- which was a lie -- “but since the person is not here any longer to answer that, all I can tell you is this relates to the incident in 2006; and that’s all you need to know.” And so one of the persons said, “Well, why is it all we need to know?” And I said, “Because the person is not here, and you can’t ask questions.” But I know it’s from a previous incident. Now I know that because you told me that. You ask to put it in?
17 MR. ROBIDEAUX: I do, but I still think it’s improper to comment on the facts to a jury.
THE COURT: Well, it is. I didn’t comment on them, and that’s what I said. I can’t answer that question for you. They asked me a question, “I read this date;” and I said, “I can’t answer that question for you. The person who is here from the criminal lab is not here, and this DNA evidence belongs to the 2006 case.” That’s not commenting. I didn’t say anything more than that.
MR. BABIN: Had they asked that, that would have been the response you would have given them?
THE COURT: That’s what I would have said if they asked that here. What would you like me to say when they view that and then they have a question? Or would you rather them not and then be -- I don’t know what the answer of [sic] that is.
MR. BABIN: There’s a presumption here that that’s prejudicial, and I don’t know that that’s a correct presumption.
THE COURT: I don’t either.
MR. ROBIDEAUX: Just note my objection. In fact, let me get the appropriate code article.
The defendant filed a motion for new trial. Therein, the defendant asserted the
trial court gave an opinion to the jury that defendant’s Exhibit 1 related to the offense
that occurred in 2006. Thus, he was entitled to a new trial. The trial court denied the
motion.
The denial of a motion for new trial is not subject to appellate review except for an error of law. LSA-C.Cr.P. art. 858. The ruling on a motion for a new trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only when there is a clear showing of an abuse of that discretion. State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1218. The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. State v. Pickrom, 31,987 (La.App. 2 Cir. 5/5/99), 732 So.2d 800, 813.
18 State v. Rodriguez, 02-334, p. 40 (La.App. 5 Cir. 1/14/03), 839 So.2d 106, 133, writ
denied, 03-482 (La. 5/30/03), 845 So.2d 1061, cert. denied, 540 U.S. 972, 124 S.Ct.
444 (2003).
La.Code Crim. Proc. art. 772 provides:
The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
This no-judge-comment rule is designed to safeguard the role of the jury as the sole judge of the facts on the issue of guilt or innocence. State v. Hodgeson, 305 So.2d 421, 430 (La.1974). Thus, if the effect of a comment is to permit a reasonable inference that it expresses or implies the judge’s opinion as to the defendant’s innocence or guilt, this constitutes a violation of the defendant’s statutory right to no-comment and thus requires reversal. State v. Green, 231 La. 1058, 93 So.2d 657, 659 (1957). To constitute reversible error, however, the effect of the improper comment must be such as to have influenced the jury and contributed to the verdict. State v. Johnson, 438 So.2d 1091, 1102 (La.1983).
State v. Camper, 08-314, p. 9 (La.App. 4 Cir. 10/1/08), 996 So.2d 571, 578.
We need not determine whether the trial court’s remarks were improper, as the
defendant cannot prove the remarks influenced the jury and contributed to the verdict.
The jury already knew the lab report was related to the offense that occurred in 2006,
as the victim’s name and the date of the offense were included in the lab report, and
when the report was introduced into evidence, defense counsel stated the lab report
was being introduced “in regards to the victim, [J.H.]” Accordingly, we find the
trial court properly denied the defendant’s motion for new trial.
For theses reasons, this assignment of error lacks merit.
19 ASSIGNMENT OF ERROR NO. 4:
In his fourth assignment of error, the defendant contends the trial court erred
in failing to articulate any factors whatsoever in formulating his sentences. We will
not address the defendant’s claims regarding his sentence for forcible rape, as that
sentence must be vacated due to an error patent.
At the sentencing hearing, the trial court merely recited the sentencing range
for simple rape and imposed the maximum sentence of twenty-five years.
The record reflects no compliance with Louisiana Code of Criminal Procedure
Article 894.1, which requires the trial court to state for the record the considerations
taken into account and the basis for imposition of the sentence.
Because the trial court failed to mention any basis for imposition of the
sentence for simple rape, we cannot say the defendant’s maximum sentence is
supported by the record. See State v. Spencer, 00-1335, pp. 10-11 (La.App. 3 Cir.
2/28/01), 781 So.2d 780, 788. Accordingly, the sentence for simple rape is vacated,
and the matter is remanded to the trial court for resentencing in compliance with
article 894.1.
CONCLUSION:
The defendant’s convictions are affirmed. His sentence for forcible rape is
vacated, and the case remanded for imposition of a determinate sentence. Further, the
defendant’s sentence for simple rape is vacated, and the matter remanded for
resentencing and compliance with La.Code Crim.P. art. 894.1.
CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.