STATE OF LOUISIANA NO. 23-KA-423
VERSUS FIFTH CIRCUIT
LARRY DILLON, JR. COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 17,369, DIVISION "B" HONORABLE NGHANA LEWIS, JUDGE PRESIDING
June 05, 2024
TIMOTHY S. MARCEL JUDGE
Panel composed of Judges John J. Molaison, Jr., Scott U. Schlegel, and Timothy S. Marcel
AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING TSM JJM SUS COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Geoffrey M. Michel J. Philip Prescott, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, LARRY DILLON, JR. David E. Stanley MARCEL, J.
Defendant, Larry Dillon, Jr., appeals his convictions and sentences for
sexual battery in violation of La. R.S. 14:43, home invasion in violation of La. R.S.
14:62.8, and the second-degree rape of L.S. in violation of La. R.S. 14:42.1. For
the following reasons, defendant’s convictions are affirmed, his habitual offender
sentence is vacated, and the matter is remanded for resentencing.
PROCEDURAL HISTORY
On December 11, 2017, defendant was charged in a three-count bill of
information with sexual battery, home invasion, and second-degree battery, in
violation of Louisiana Revised Statutes 14:43.1, 14:62.8, and 14:42.1, respectively.
Named in the bill of information as the victim of these crimes is an individual
identified as “L.S.” On July 16, 2021, a jury unanimously found defendant guilty
as charged on all counts. Thereafter, on August 5, 2021, the State filed a motion for
defendant to be sentenced as a habitual offender alleging that defendant was a
second-felony offender.
On August 16, 2021, defendant filed three post-trial motions: a motion for
post-verdict judgment of acquittal, a motion for new trial, and a motion for appeal.
The trial court granted the motion for appeal the same day. Motions for post-
verdict judgment of acquittal and for new trial were scheduled for hearing on
August 27, 2021, but were later continued until November 18, 2021.
After denial of defendant’s motions for post-verdict judgment of acquittal
and for new trial at the hearing on November 18, 2021, the trial court imposed
sentences for each of the three crimes for which defendant was convicted.
Thereafter, on January 13, 2022, the trial court denied defendant’s Motion to
Reconsider Sentence, accepted defendant’s stipulation to being a three-time felony
offender, and imposed an enhanced multiple offender sentence.
23-KA-423 1 As previously noted, the trial court granted defendant’s motion for appeal
before adjudication of defendant’s motions for post-verdict judgment of acquittal
and for new trial. In defendant’s first appeal, this Court found the trial court
prematurely granted defendant’s motion for appeal before sentencing defendant
and ruling on defendant’s post-trial motions. State v. Dillon, 22-229 (La. App. 5
Cir. 2/27/23), 358 So.3d 934. Accordingly, this Court vacated defendant’s
multiple offender adjudication, his original sentences for the underlying
convictions, the enhanced multiple offender sentences, and the trial court’s rulings
on his post-trial motions. Id. The matter was remanded to the trial court for rulings
on defendant’s motions for post-verdict judgment of acquittal and new trial. Id.
Additionally, in its instructions to the trial court to resentence defendant in the
event his post-trial motions were denied, this Court also pointed out the trial court
failed to vacate defendant’s original sentences before imposing the enhanced
multiple offender sentences. Id.
After this matter was remanded to the trial court, defendant filed a
supplemental and amended motion for post-verdict judgment of acquittal and
supplemental and amended motion for new trial. Those motions were denied after
a hearing on May 3, 2023. After denial of his post-trial motions, defendant
waived sentencing delays, and the trial court proceeded to impose sentence on the
same date. Defendant was sentenced to ten years imprisonment for the crime of
sexual assault, thirty years imprisonment for the crime of home invasion, and
forty-five years imprisonment for the crime of second-degree rape, which the trial
court ordered served concurrently. The sentences imposed for sexual assault and
second-degree rape were ordered without benefit of parole, probation, and
suspension of sentence. Afterwards, the trial court issued Judgment with Reasons
on May, 11, 2023. Defendant filed a Motion to Reconsider Sentence on May 18,
2023, asserting the sentence imposed on him was excessive.
23-KA-423 2 On June 20, 2023, the State re-filed its motion to sentence defendant as a
habitual third-felony offender. The trial court denied defendant’s motion to
reconsider sentence on the same date. Defendant then stipulated that he was the
same person identified in the multiple bill as to each of the prior offenses. The
transcript reflects that the trial court thereafter sentenced defendant as a third-
felony offender to fifteen years imprisonment for the crime of sexual battery, forty-
five years imprisonment for the crime of home invasion, and fifty years
imprisonment for the crime of second-degree battery, which were ordered to be
served concurrently. Each enhanced sentence was imposed at hard labor without
benefit of parole, probation, or suspension of sentence. Thereafter, on July 12,
2023, defendant filed a motion for appeal of his convictions and sentences.
FACTUAL BACKGROUND
On September 18, 2017, L.S. was home asleep on her sofa in the living room
of her La Place residence. She was living alone at the time because her husband of
twenty years was incarcerated. She testified to being awakened when someone
kicked the sofa, and was told in a male voice to get on the floor. When she tried to
turn around, the man placed both of her hands behind her back and put his hand
over her mouth. The man then dragged her to the floor face down and put his body
on top of hers. She recalled screaming and crying while he was “humping on” her.
In her struggle, she testified to biting the attacker’s finger.
After her efforts to resist were overpowered by the man, who she described
as being very heavy, big, and tall, L.S. was asked, “Where’s the money?” She
responded that money was in her purse and offered to take him to the bank. The
man then pulled her off the floor and led her into the bedroom. He instructed she
keep her mouth shut and eyes closed or he was going to “f-ing kill” her.
She testified that the man walked her to the bed. There, he put her face
down, placed a pillow over her head, and penetrated her vagina with his penis.
23-KA-423 3 During the rape, she recounted, the man instructed she tell her husband to pay him
the money he was owed. In addition to vaginal sex, L.S. testified the man also
engaged in oral sex with her.
Afterwards, he took her off the bed and instructed she keep her mouth and
eyes shut or he would “f-ing kill” her. She was then led into the kitchen by her
hands, where money was removed from her purse. Then, she was led to and
instructed to open the front door. After opening the front door, the man led her to
the hall bathroom. There, he informed her that he was going to let her go and
instructed she count to one hundred. She testified the man informed her of
knowing where she worked if she were to call the police or report the incident.
Once the man left her house, she testified to closing the front door, putting
on short pants, grabbing her purse, getting into her car, and driving to the hospital.
Nothing in her house was moved before leaving. She recalled having blood on her
lip when she drove to the hospital. After her arrival, hospital personnel called the
police.
During her trial testimony, L.S. was presented with several crime scene
photographs taken of her home after the incident. L.S. testified that she did not
typically leave the windows of her home open as depicted in the photographs. In
other photographs, she noted the sectional sofa had separated during the physical
assault which resulted in her being on the living room floor. She testified that
blankets and other items shown in photographs on the floors of her home were not
in those locations before the incident. Another photograph presented to L.S.
during her testimony was a turquoise blouse on the living room floor. L.S. testified
that she was not wearing that blouse at the time of the incident, the blood stain was
not present before the incident, and it would not have been just left on the floor.
She testified to cleaning her home every few days, which included beneath and
behind her living room sofa.
23-KA-423 4 Detective Ann Taylor was the lead investigator of the reported crimes. She
testified to meeting L.S. on the morning of the incident and observed bruises on
her chin, back, and neck, as well as abrasions on both elbows. Detective Taylor
also described an injury on L.S. from the right side of her vaginal area to her hip.
Deputy Sheriff Ryan LeBlanc was the assigned crime scene technician on
this case. He testified to collecting a turquoise blouse piled up against the living
room floor, near the sectional sofa. Deputy LeBlanc described a reddish stain on
the blouse which he believed could be blood. Also collected by Deputy LeBlanc
was a belt buckle from the middle of the bedroom floor.
Approximately three weeks after the incident, the crime lab’s DNA section
contacted Lieutenant Christy Chauvin to inform her of the results of its testing.
Lieutenant Chauvin testified the crime lab reported a “CODIS hit” from samples
tested which identified defendant. Based on the crime lab report, defendant was
brought in for questioning.
In her trial testimony, Lieutenant Chauvin recounted her interview of
defendant. Defendant stated he heard about a woman being attacked in her home
on the street where L.S. lived. After being informed that his DNA was found in
the residence, defendant responded “no way.” He reported being acquainted with
L.S.’s husband, “Mike.” Defendant informed that he and “Mike” sometimes
partied with women and used narcotics in the residence when L.S. worked nights.
He was aware that “Mike” was incarcerated and denied knowing L.S. Defendant
admitted to having been in their residence approximately three times but the last
visit was more than a year before. He reported using the residence as a place to
have sex with women when L.S. was working nights. In his past visits to the
residence, defendant reported using the front door to enter but admitted to entering
through a window and taking a shower in the home on one occasion. Defendant
volunteered to Lieutenant Chauvin that he had lost a belt buckle in the residence.
23-KA-423 5 Defendant’s statements, Lieutenant Chauvin stated, reflected his familiarity with
the residence’s layout.
In their investigation, Lieutenant Chauvin testified, it was learned that
defendant drove a maroon Yukon. Crime camera video footage in the subdivision
which L.S. lived was reviewed. She testified that a vehicle fitting the description
of defendant’s Yukon was recorded in the area right after the incident. That
vehicle was also observed in photographs traveling along Airline Highway at
4:18:53 a.m. and 4:19 a.m., toward the Central Avenue area where defendant lived.
According to Lieutenant Chauvin, this would be a customary route taken between
the defendant’s residence and L.S.’s residence. Lieutenant Chauvin testified that
the 9-1-1 call reporting L.S.’s rape was received at 4:15 a.m. The call was made
from Ochsner River Parish Hospital in St. John Parish, where L.S. appeared after
leaving her home after the incident.
The State also presented evidence of DNA analysis at trial. Andrew Ingram,
formerly employed by the Louisiana State Police Crime Lab as a DNA analyst,
was accepted by the trial court as an expert in the field of DNA analysis. Mr.
Ingram testified that he tested the turquoise shirt found on the floor of the victim’s
living room. His analysis indicated that the blood of defendant, Larry Dillon Jr.,
was on the shirt. Mr. Ingram also testified that he tested the swabs contained in the
victim’s sex crimes kit. He asserted that the DNA profile obtained from the
victim’s external genitalia swab was consistent with the DNA profile obtained
from the defendant. Mr. Ingram stated the defendant and all male individuals
within his biological paternal lineage cannot be excluded as the donor of the male
DNA in this profile.
DISCUSSION
On appeal, defendant asserts five assignments of error. Each assignment of
error focuses on the evidence supporting identification of defendant as the
23-KA-423 6 perpetrator of the sexual assault, home invasion, and second degree rape. The first
assignment of error raised by defendant avers the trial court erred in finding the
evidence was sufficient to identify him as perpetrator of these crimes. In the
second and third assignments of error, defendant contends the trial court erred in
denying of his post judgment of acquittal and motion for new trial, respectively.
The fourth assignment of error contends the trial court erred in denying
defendant’s motion in limine to exclude testimony of the State’s DNA expert and
in admitting the DNA rape kit into evidence at trial. Defendant’s fifth assignment
of error challenges the constitutionality of the sentences imposed by the trial court.
Each assignment of error is addressed below, beginning with assignment of error
number one, followed by assignment of error number four, then assignment of
error number two, then assignment of error number three, and finally, assignment
of error number five.
Sufficiency of the evidence
In his first assignment of error, defendant argues that the trial court erred in
finding that the evidence was sufficient to identify him as the perpetrator of these
crimes and erred in finding that all of the elements of sexual battery, home
invasion, and second degree rape have been proven beyond a reasonable doubt.
Specifically, he argues that the evidence was insufficient to support his convictions
because the State failed to prove beyond a reasonable doubt his identity as the
perpetrator of the crimes.
Supporting his argument in this assignment of error, defendant points out
that L.S. testified she never saw the person who attacked her and could not identify
his skin color or his race. Further, defendant contends the blood stain from the
turquoise shirt does not connect him to the crimes. Finally, he contends the DNA
evidence found on the victim does not exclude others in his biological lineage.
23-KA-423 7 In reviewing the sufficiency of the evidence, an appellate court must
determine if the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10), 41 So.3d 532, 534,
writ denied, 10-1357 (La. 1/7/11), 52 So.3d 885.
When circumstantial evidence is used to prove the commission of the
offense, Louisiana Revised Statute 15:438 provides, “[A]ssuming every fact to be
proved that the evidence tends to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence.” The reviewing court is not required to
determine whether a defendant’s suggested hypothesis of innocence offers an
exculpatory explanation of events. Rather, the reviewing court must evaluate the
evidence in the light most favorable to the State and determine whether the
possible alternative hypothesis is sufficiently reasonable that a rational juror could
not have found proof of guilt beyond a reasonable doubt. State v. Baham, 14-653
(La. App. 5 Cir. 3/11/15), 169 So.3d 558, 566, writ denied, 15-40 (La. 3/24/16),
190 So.3d 1189.
Encompassed within proving the elements of an offense is the necessity of
proving the identity of the defendant as the perpetrator. Where the key issue is
identification, the State is required to negate any reasonable probability of
misidentification to carry its burden of proof. State v. Ray, 12-684 (La. App. 5 Cir.
4/10/13), 115 So.3d 17, 20, writ denied sub nom. State ex rel. Ray v. State, 13-1115
(La. 10/25/13), 124 So.3d 1096.
The credibility of the witnesses will not be reweighed on appeal, as it is
within the sound discretion of the trier of fact to accept or reject, in whole or in
part, the testimony of any witness. State v. Rowan, 97-21 (La. App. 5 Cir.
23-KA-423 8 4/29/97), 694 So.2d 1052, 1056. In the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. State v. Dixon,
07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied sub nom. State
ex rel. Dixon v. State, 08-987 (La. 1/30/09), 999 So.2d 745. The victim’s
testimony alone can be sufficient to establish the elements of a sexual offense,
even if the State does not introduce medical, scientific, or physical evidence to
prove the commission of the offense. State v. Perkins, 11-162 (La. App. 5 Cir.
12/28/11), 83 So.3d 250, 255.
In the instant case, for the reasons which follow, we find that a rational trier
of fact could have found that the evidence was sufficient under the Jackson
standard to support defendant’s convictions of home invasion, second degree rape,
and sexual battery. We also find that the State negated any reasonable probability
of misidentification of defendant to carry its burden of proof.
At trial, L.S. provided descriptive testimony of the incident. She recounted
being awakened, physically assaulted, and later, sexually assaulted in her home.
Admitting she did not see the perpetrator, L.S. described her attacker only as a very
big and heavy male. Testimonial evidence of law enforcement investigators, as
well as crime scene photographs and medical records corroborate L.S.’s testimony.
Evidence supporting elements of the crime of home invasion, sexual assault, and
second-degree rape are not controverted.
Rather, defendant contends on appeal that he was not the perpetrator of those
crimes. He points to L.S.’s inability to identify her attacker beyond descriptions of
male, very large, and tall. The evidence presented at trial identifying the
perpetrator was analysis of bodily fluids recovered from an article of clothing at
the crime scene and from L.S.’s sexual assault examination. Additionally,
evidence was presented that a vehicle meeting the description of defendant’s
23-KA-423 9 vehicle was recorded traveling in proximity to L.S.’s home in the early morning
hours after the crimes. Testimony was also presented that another individual was
investigated and ruled out as a suspect.
Blood stains on a turquoise blouse found near the sofa where L.S. testified to
biting her attacker matched defendant’s blood. DNA belonging to defendant and
other males of his biological paternal lineage was contained in bodily fluids
obtained in the course of L.S.’s sex assault medical examination. Also, defendant
made numerous incriminating statements during his interview with law
enforcement three weeks after the incident, including that he lost a “belt” in the
victim’s residence.
In light of the foregoing, we find that a rational trier of fact could have found
that the evidence was sufficient under the Jackson standard to support defendant’s
convictions of home invasion, second degree rape, and sexual battery. We also
find that the State negated any reasonable probability of misidentification of
defendant to carry its burden of proof. This assignment does not have merit.
Denial of Motion in Limine
In his fourth assignment of error, defendant asserts the trial court erred in
denying his motion in limine to exclude testimony from the State’s DNA expert,
Mr. Ingram, and by admitting the sex crimes kit during the testimony of the crime
scene technician, Officer LeBlanc. He argues that the sex crimes kit was admitted
without a proper foundation being laid to ensure the sex crimes kit’s integrity and
reliability. Admitting this evidence, defendant asserts, violated his rights of due
process, to confront and cross-examine witnesses against him, and to a fair trial.
Several pre-trial notices of its intent to use and introduce certificates of
analysis from the crime lab were filed by the State. Attached to one of the notices
was a crime lab report documenting that the DNA supervisor, Miles Robichaux,
received the victim’s sex crimes kit from the SJPSO via Jim Brower on September
23-KA-423 10 20, 2017. The crime lab report indicated that numerous swabs were submitted to
the lab for testing.
During trial, defense counsel presented an oral motion in limine to exclude
the sex crimes kit from evidence. The trial court found that the sex crimes kit was
completed prior to the development of defendant as a suspect, that no
confrontational clause violation occurred, and that the defense may always
subpoena for trial the medical personnel who performed the DNA testing. In
denying the defense motion, the trial court cited Williams v. Illinois,1 and State v.
Bolden.2
The Louisiana Code of Evidence requires demonstrative evidence be
properly identified before it is admitted at trial. La. C.E. art. 901. Identification
may be visual (i.e., by testimony at the trial that the object exhibited is the one
related to the case) or it may be by chain of custody (i.e., by establishing the
custody of the object from the time it was seized to the time it was offered in
evidence). State v. Cosey, 97-2020 (La. 11/28/00), 779 So.2d 675, 678, cert.
denied, 533 U.S. 907, 121 S.Ct. 2252, 150 L.Ed.2d 239 (2001); State v. Brooks,
01-864 (La. App. 5 Cir. 1/29/02), 807 So.2d 1090, 1099. Evidence as to custody
does not have to eliminate all possibility that the object has been altered. Rather,
for admission, it suffices that it is more probable than not that the object is the one
1 “The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.” Williams v. Illinois, 567 U.S. 50, 58-59, 132 S.Ct. 2221, 2228, 183 L.Ed.2d 89 (2012). 2 In State v. Bolden, 11-2435 (La. 10/26/12), 108 So.3d 1159, 1161-62, the Louisiana Supreme Court stated: No error under the Confrontation Clause occurs when a DNA expert testifies that in his or her opinion the DNA profile developed from a sample taken from defendant matches the DNA profile developed by other, non-testifying technicians from biological samples taken from the victim of a sexual assault if: the tests on the victim’s samples were conducted before the defendant was identified as the assailant or targeted as a suspect, Williams, 567 U.S. at - - -, 132 S.Ct. at 2242-43.
23-KA-423 11 connected to the case. State v. Addison, 03-1421 (La. App. 5 Cir. 3/30/04), 871
So.2d 536, 551, writ denied, 04-1291 (La. 10/29/04), 885 So.2d 584.
A defect in the chain of custody goes to the weight of the evidence rather
than its admissibility. State v. Priest, 18-518 (La. App. 5 Cir. 2/6/19), 265 So.3d
993, 1001, writ denied, 19-418 (La. 5/20/19), 271 So.3d 201. Ultimately, a chain
of custody is a factual matter for determination by the jury. State v. Housley, 05-
502 (La. App. 5 Cir. 1/31/06), 922 So.2d 659, 665, writ denied, 06-1183 (La.
11/17/06), 942 So.2d 531. A trial court is vested with great discretion in
determining whether a party has laid a proper foundation for the introduction of
evidence. Priest, supra.
At trial, the State presented evidence that L.S. drove herself to a hospital
after being raped. Medical records from Tulane Medical Center documenting
L.S.’s reporting to hospital personnel were admitted into evidence without
objection. Those medical records also document that a sex crimes kit was done
and that Officer LeBlanc from the SJPSO appeared at the hospital to take custody
of the sex crimes kit. Distribution of copies of the sex assault packet to the rape
advocate, the evidence transporting officer, and the emergency room director is
also documented in the medical records.
Ryan LeBlanc, the crime scene technician, testified to his role as the
evidence transport officer. At trial, he described the sex crimes kit as a bag
containing sealed smaller bags and envelopes. Officer LeBlanc recounted leaving
Tulane Medical Center with the evidence and traveling to the St. John the Baptist
Parish Sheriff’s Office, where he secured the sex crimes kit in refrigerated storage.
From that location, the evidence was transported by Lieutenant Brower to the
crime lab for analysis. Officer LeBlanc delivered the sex crimes kit to trial, and
testified to documenting the chain of custody for that evidence. The defense’s
objection to that testimony was overruled by the trial court.
23-KA-423 12 Mr. Ingram, the State’s DNA expert who was formerly employed by the
Louisiana State Police Crime Lab, testified to testing the swabs contained in the
victim’s sex crimes kit. Based on results of his testing, it was his opinion that
defendant and all male individuals within his biological paternal lineage cannot be
excluded as the donor of the male DNA in this profile. Mr. Ingram identified the
report of his findings, which was admitted into evidence without objection.
Further, as was pointed out by the trial court, the sex crimes kit was
completed prior to defendant’s development as a suspect, and therefore, there was
no incentive to produce anything other than a scientifically sound and reliable
profile. See Williams v. Illinois, supra. Also, the defense had the opportunity to
subpoena those individuals who participated in the DNA testing and to question
them at trial. Id.
The record of this case supports the finding that it was more probable than
not that the tested scientific evidence was connected to the instant case. Further,
there is no indication that the evidence was tampered with or compromised or that
the testing procedures were defective. The jury heard the evidence establishing the
chain of custody of the State’s DNA evidence and determined that the chain was
reliable. Because the sex crimes kit was properly admitted into evidence, any
testimony in connection with the kit was properly admitted as well. As such, we
find that the trial court did not abuse its discretion by admitting the sex crimes kit
and the testimony regarding the kit into evidence. Based on the foregoing, this
assignment of error does not have merit.
Denial of Motion for Post Verdict Judgment of Acquittal
In assignment of error number two, defendant argues that the trial court
erred in denying his motion for a post verdict judgment of acquittal. He contends
no rational juror could have found that the State met its burden of proof to negate
any reasonable probability of misidentification of defendant as the perpetrator of
23-KA-423 13 the alleged offenses. As such, defendant avers that no rational trier of fact,
viewing the evidence in the light most favorable to the prosecution, could have
found beyond a reasonable doubt that the evidence was sufficient under the
Jackson standard to support his convictions. 3
The question of sufficiency of the evidence is properly raised in the trial
court by a motion for post verdict judgment of acquittal pursuant to Louisiana
Code of Criminal Procedure article 821. State v. Williams, 20-46 (La. App. 5 Cir.
12/30/20), 308 So.3d 791, 816, writ denied, 21-316 (La. 5/25/21), 316 So.3d 2.
Louisiana Code of Criminal Procedure article 821(B) provides, “A post-verdict
judgment of acquittal shall be granted only if the court finds that the evidence,
viewed in a light most favorable to the state, does not reasonably permit a finding
of guilty.”
Considering we have found the trial court did not err by admitting the sex
crimes kit as well as testimony concerning the sex crimes kit into evidence, and
that the evidence was sufficient to support the jury’s verdicts, we also find that the
trial court did not err by denying his motion for post-verdict judgment of acquittal
on this ground.4 This assignment of error does not have merit.
Denial of Motion to New Trial
In assignment of error number three, defendant argues that the trial court
erred in denying his motion for a new trial. Defendant filed a motion for new trial
on August 16, 2021, arguing that admission of the sex crimes kit into evidence was
highly prejudicial and resulting in an unjust verdict. The trial court’s denial of that
motion was vacated and remanded by this Court for jurisdictional reasons. See
Dillon, supra. On April 11, 2023, defendant filed a supplemental and amended
3 This assignment is discussed separately from Assignment of Error Number One because it also involves the alleged improper admission of evidence. Defendant and the State also address this assignment separately from Assignment of Error Number One. 4 See discussion under Assignment of Error Number Four.
23-KA-423 14 motion for new trial, arguing the verdict was contrary to the law and the evidence
on the grounds the sex crimes kit was improperly admitted at trial.
On remand, the trial court denied defendant’s motion for new trial on May 3,
2023. As was stated above, in a written ruling dated May 11, 2023, the trial court
found that the introduction of the sex crimes kit at trial was not in violation of
defendant’s due process rights, but even if the kit had been excluded, other
evidence permissibly introduced at trial was sufficient to support the verdicts. It
further found that defendant was not prejudiced by the introduction of the sex
crimes kit evidence because other DNA evidence was introduced at trial.
Defendant asserts he is entitled to a new trial because errors by the trial court
deprived him of the rights to due process, to confront and cross examine witnesses
against him, and to a fair trial. 5 A motion for new trial under Louisiana Code of
Criminal Procedure article 851 is based upon the supposition that an injustice has
been done to the defendant, and unless such injustice is shown, the new trial
motion shall be denied no matter upon what allegations the motion is grounded.
State v. Paul, 15-501 (La. App. 5 Cir. 1/27/16), 185 So.3d 188, 198. A trial
judge’s ruling on a motion for new trial will not be disturbed on appeal absent a
clear showing of an abuse of discretion. State v. Richoux, 11-1112 (La. App. 5 Cir.
9/11/12), 101 So.3d 483, 490, writ denied, 12-2215 (La. 4/1/13), 110 So.3d 139.
Under Louisiana Code of Criminal Procedure article 851(B)(1), the trial
court shall grant a motion for new trial whenever the verdict is contrary to the law
and evidence. However, considering we have found that the evidence was
sufficient to support defendant’s convictions, we find that the trial court’s denial of
his motion for new trial on this ground was not an abuse of its discretion.6
5 This assignment is discussed separately from Assignment of Error Number One because it involves the alleged improper admission of evidence. Defendant and the State also address this assignment separately. 6 See discussion under Assignment of Error Number One.
23-KA-423 15 Next, defendant argues that he is entitled to a new trial based on Louisiana
Code of Criminal Procedure article 851(B)(2), alleging that the trial court’s ruling
on his objection to the sex crimes kit and to the testimony regarding that evidence
shows prejudicial error. As we have found the trial court did not abuse its
discretion by admitting the sex crimes kit and testimony regarding it, we find that
the trial court did not abuse its discretion by denying defendant’s motion for new
trial on this ground.
Lastly, defendant claims that he is entitled to a new trial based on the
interests of justice as set forth in Louisiana Code of Criminal Procedure article
851(B)(5). The grant or denial of a motion for new trial based on the interests of
justice should not be disturbed on review unless the trial court abused its great
discretion. State v. Guillory, 10-1231 (La. 10/8/10), 45 So.3d 612, 615. We find
the trial court did not abuse its discretion in denying the motion for new trial on
this ground for the reasons more fully discussed in addressing the sufficiency of
evidence and admissibility of the sex crimes kit and testimony regarding it. This
Excessive Sentence
In assignment of error number five, defendant argues that the trial court
imposed a sentence that is constitutionally excessive and grossly disproportionate
to the severity of each offense. While defendant expressly argues that his
enhanced sentences are excessive, his brief also infers an argument that his original
sentences are excessive as well, stating “A review of the statutory penalties for the
offenses of sexual battery, home invasion, and second-degree rape establish that
the maximum sentence imposed by the Court for each offense is constitutionally
excessive and this error was carried into Dillon’s sentencing as a habitual
offender.”
23-KA-423 16 On May 3, 2023, following remand, the trial court sentenced defendant to
ten years imprisonment in the Department of Corrections without benefit of parole,
probation, or suspension of sentence for the crime of sexual assault; thirty years
imprisonment in the Department of Corrections for the crime of home invasion;
and forty years imprisonment in the Department of Corrections without benefit of
parole, probation, or suspension of sentence for the crime of second degree battery,
with the sentences to run concurrently. From those sentences, defendant filed a
Motion to Reconsider Sentence, arguing that his three maximum original sentences
were excessive.
On June 20, 2023, the State filed State’s Motion to Sentence Defendant as a
Habitual Offender alleging defendant to be a third-felony offender.7 On that same
date, after the trial court denial of his Motion to Reconsider Sentence, defendant
stipulated that he was the same person identified in the multiple bill as to each of
the prior offenses. The trial court proceeded thereafter to sentence defendant as a
third-felony offender to fifteen years imprisonment at hard labor for sexual assault,
forty-five years imprisonment at hard labor for home invasion, and fifty years
imprisonment at hard labor for second degree rape. Each sentence was ordered
served without the possibility of parole and suspension of sentence, with all of the
sentences to run concurrently.
On review of the record, neither the transcript, nor the minute entry, nor the
uniform commitment order reflect that the trial court vacated the original sentences
prior to imposing the enhanced sentences. When a defendant’s original sentence
on an underlying offense has not been vacated by the court at the time of a
defendant’s sentencing as a habitual offender, the original sentence remains in
effect and the subsequent sentence as a habitual offender is null and void. State v.
Lyles, 17-405 (La. App. 5 Cir. 2/21/18), 239 So.3d 1055, 1057.
7 This pleading appears to be a multiple offender bill of information.
23-KA-423 17 Therefore, we vacate the enhanced sentences and remand the matter to the
trial court for resentencing. We also instruct the trial court to vacate defendant’s
original sentences before resentencing him as a third-felony offender. See Lyles,
supra. Because we have vacated defendant’s enhanced sentences and remand this
matter for resentencing, we do not address whether defendant’s enhanced
sentences are unconstitutionally excessive. We also pretermit any discussion
pertaining to defendant’s argument that his original sentences are excessive since
the trial court is instructed to vacate the original sentences prior to imposing the
enhanced sentences.
ERROR PATENT DISCUSSION
This Court reviews records for errors patent in accordance with Louisiana
Code of Criminal Procedure article 920; State v. Oliveaux, 312 So.2d 337 (La.
1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review
reveals the following error patent.
Post conviction relief advisal
The transcript reflects that on May 3, 2023, the trial court properly advised
defendant that he had “two-years, it’s a prescriptive period in which to file for post
conviction relief. That period would commence upon the Judgment of Conviction
and Sentence becoming final.” The transcript also reflects that on June 20, 2023,
the trial court informed defendant, “that you have two years within which to
potentially file for post-conviction relief if applicable. That is a peremptory period
- - so the two-year period - - you have to file within that two-year time frame if it’s
applicable to your case.” This advisal is incomplete.
Louisiana Code of Criminal Procedure article 930.8 provides that a
defendant shall have two years after the judgment of conviction and sentence has
become final to seek post conviction relief. If a trial court fails to advise, or
provides an incomplete advisal, pursuant to Louisiana Code of Criminal Procedure
23-KA-423 18 article 930.8, the appellate court may correct this error by informing the defendant
of the applicable prescriptive period for post-conviction relief by means of its
opinion. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608,
writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.
In the present case, although the trial court properly advised defendant of the
post conviction relief period on May 3, 2023, she gave an incomplete advisal on
June 20, 2023. In order to avoid confusion, we advise defendant by this opinion
that no application for post conviction relief, including applications that 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
Louisiana Code of Criminal Procedure articles 914 or 922. See State v. Becnel, 18-
549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022.
DECREE
For the foregoing reasons, defendant’s convictions are affirmed. The
habitual offender sentence is vacated and this matter is remanded to the trial court
for resentencing.
AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING
23-KA-423 19 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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23-KA-423 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE NGHANA LEWIS (DISTRICT JUDGE) GEOFFREY M. MICHEL (APPELLEE) HONORABLE BRIDGET A. DINVAUT J. PHILIP PRESCOTT, JR. (APPELLEE) DAVID E. STANLEY (APPELLANT) (APPELLEE)
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