State v. Darbonne

787 So. 2d 576, 2001 WL 611155
CourtLouisiana Court of Appeal
DecidedJune 6, 2001
Docket01-39
StatusPublished
Cited by6 cases

This text of 787 So. 2d 576 (State v. Darbonne) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Darbonne, 787 So. 2d 576, 2001 WL 611155 (La. Ct. App. 2001).

Opinion

787 So.2d 576 (2001)

STATE of Louisiana
v.
Kevin Lee DARBONNE.

No. 01-39.

Court of Appeal of Louisiana, Third Circuit.

June 6, 2001.

*577 Raymond J. LeJeune, Assistant District Attorney, Thirteenth Judicial District, District Attorney, Ville Platte, LA, Counsel for State/Appellee, State of Louisiana.

John Larry Vidrine, Attorney at Law, Ville Platte, LA, Counsel for Defendant/Appellant, Kevin Lee Darbonne.

Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.

WOODARD, Judge.

On December 7, 1999, the State indicted Mr. Kevin Lee Darbonne with one count of aggravated crime against nature, one count of oral sexual battery, two counts of molestation of a juvenile, one count of aggravated rape, and one count of aggravated oral sexual battery. On August 28, 2000, it amended the bill of indictment to change counts three and four, thereby, substituting the former charges of molestation of a juvenile to indecent behavior with a juvenile, in violation of La.R.S. 14:81(A). On August 29, 2000, the trial court convicted Mr. Darbonne of one count of aggravated crime against nature, one count of oral sexual battery, two counts of indecent behavior with juveniles, and one count of aggravated rape. On October 31, 2000, it held a sentencing hearing and issued the following sentences: five years at hard labor for aggravated crime of nature; five years at hard labor for oral sexual battery; five years at hard labor for two counts of molestation of a juvenile; and a mandatory life sentence at hard labor for aggravated rape. All sentences were to run concurrently. Mr. Darbonne appeals his conviction. We affirm and remand with instructions.

* * * * *

In September 1998, Mr. Darbonne moved into D.D.'s, his cousin's, home, D.D. lived with his wife, E.D., and his two minor stepsons, J.B.J. and J.T.J. D.D.'s biological minor son, J.G.D., visited with D.D. at the same residence every other week, between May 1999 and August 1999. Mr. Darbonne continued to live at his cousin's home until August 13, 1999. He left after he was confronted with accusations that he had molested, and initiated sexual acts with, D.D.'s minor son, J.G.D., and two minor stepsons, J.B.J. and J.T.J. The alleged abuse happened between February 1999 and August 1999, when Mr. Darbonne was thirty years old.

On December 7, 1999, the State indicted him with one count of aggravated crime against nature, one count of oral sexual battery, two counts of molestation of a juvenile, one count of aggravated rape, and one count of aggravated oral sexual battery. The latter charge was based on an incident unrelated to this case.

On August 28, 2000, the State amended the bill of indictment to change counts three and four, thereby, substituting the former charges of molestation of a juvenile to indecent behavior with a juvenile, in violation of La.R.S. 14:81(A). After the one count of aggravated oral sexual battery was severed, Mr. Darbonne waived his right to a jury trial and received a bench trial for the five remaining indictments. The trial court convicted him of one count of aggravated crime against nature, one count of oral sexual battery, two counts of indecent behavior with juveniles, and one count of aggravated rape. It later sentenced him to five years at hard labor *578 for aggravated crime of nature; five years at hard labor for oral sexual battery; five years at hard labor for two counts of molestation of a juvenile; and a mandatory life sentence at hard labor for aggravated rape. All sentences are to run concurrently. He appeals.

* * * * *

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent. We find three.

While the sentencing minutes indicate that the trial court gave him five years at hard labor, each, on two counts of molestation of a juvenile, the sentencing transcript, the amended bill of indictment and the trial minutes and transcript reflect that he was charged and convicted of two counts of indecent behavior with juveniles and that he was sentenced on these charges, not on molestation of a juvenile. Accordingly, we remand the case for the minutes to be corrected to reflect same.

Furthermore, the trial court failed to impose his sentences on counts one, two, and five without benefit of probation, parole or suspension of sentence, as La.R.S. 14:89.1(A)(6), La.R.S. 14:43.3(A)(1) and (2), and La.R.S. 14:42(A)(4) require. In State v. Bamburg, 00-675, (La.App. 3 Cir. 11/2/00); 772 So.2d 356, this court recently noted that "[p]reviously, this would have been treated as an illegally lenient sentence. However, pursuant to the provisions of La.R.S. 15:301.1, which became effective August 15, 1999, the sentence imposed by the trial court is deemed to contain those provisions."[1]

Since the trial court sentenced Mr. Darbonne after the effective date of La.R.S. 15:301.1, his sentences are deemed to contain these provisions.

Finally, the trial court did not inform him of the two-year time limit for filing post-conviction relief, as La.Code Crim.P. art. 930.8. requires. Thus, we direct the trial court to inform him of the provisions of article 930.8 by sending him the appropriate written notice within ten days of this opinion and to file written proof that he received the notice in the record of the proceedings.[2]

SUFFICIENCY OF EVIDENCE

Mr. Darbonne's only assignment of error is that the verdicts rendered were inconsistent with the law and evidence. Specifically, he argues that the three victims' testimonies were inconsistent and biased; that the children's parents confirmed that neither had seen him sleep in the same bed with any of the children; and that, therefore, the evidence was insufficient to convict him and we should reverse the convictions.

In reviewing the sufficiency of the evidence, this court applies the standard established in Jackson v. Virginia;[3] namely:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 ex rel. Graffagnino *579 v. King, 436 So.2d 559, (La. 1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). The role of the fact finder is to weigh the respective credibility of the witness. Therefore, the appellate court should not second guess the credibility determinations of the factfinder beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino v. King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).[4]

Absent internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony is sufficient to support a defendant's conviction of a sex offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense.[5] Additionally, this court has affirmed convictions, where the defendant was convicted of a sex offense, based solely on minor victims' testimonies.[6]

The trial court convicted Mr.

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Bluebook (online)
787 So. 2d 576, 2001 WL 611155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-darbonne-lactapp-2001.