State v. Overby

714 So. 2d 28, 1998 WL 175734
CourtLouisiana Court of Appeal
DecidedApril 8, 1998
Docket30589-KA
StatusPublished
Cited by7 cases

This text of 714 So. 2d 28 (State v. Overby) 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. Overby, 714 So. 2d 28, 1998 WL 175734 (La. Ct. App. 1998).

Opinion

714 So.2d 28 (1998)

STATE of Louisiana, Appellee,
v.
John OVERBY, Appellant.

No. 30589-KA.

Court of Appeal of Louisiana, Second Circuit.

April 8, 1998.

*29 Amy C. Ellender, Louisiana Appellate Project, for Appellant.

Richard Ieyoub, Attorney General, William R. "Billy" Coenen, District Attorney, Penny Wise-Douciere, Assistant District Attorney, for Appellee.

Before HIGHTOWER, BROWN and GASKINS, JJ.

GASKINS, Judge.

The defendant, John Overby, was originally charged with aggravated kidnapping, a violation of La. R.S. 14:44. He pled guilty to second degree kidnapping, a violation of La. R.S. 14:44.1, and was sentenced to serve 40 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant appealed. We affirm the defendant's conviction and sentence.

FACTS

On or about August 9, 1996, the victim was traveling by bus from California to Tennessee. Near Dallas, Texas, the bus driver had her removed from the bus for smoking in the bathroom. A police officer gave her a ride to a truck stop in Terrell, Texas, so that she could obtain a ride back to Dallas to catch another bus.

At the truck stop, the victim came into contact with the defendant, a truck driver, who offered to take her to Tennessee. According to the victim, as she and the defendant crossed the bridge into Shreveport, *30 Louisiana, she informed the defendant that she was very sleepy, and the defendant told her to lie down in his sleeper and get a couple hours of rest. A short time later while she was in the sleeper of the truck, the defendant attacked her, putting a gun to her head and holding her by the hair while he yelled and screamed at her. The defendant continued holding the gun to the victim's head as he undressed her; she stated that she was led to believe she would be shot if she moved or spoke. The defendant then raped her. During a hearing on the defendant's motion to quash due to improper venue, an investigator for the District Attorney's office testified that the victim identified a location in Lincoln Parish as the place where the rape occurred.

After raping the victim, the defendant tied her up with plastic ties and left her in the rear of the truck. He drove for a while and then stopped again. He came back into the sleeper of the truck and removed the victim's clothes again. The defendant then put gray duct tape on her face, wrists and knees and proceeded to torture her by ripping the tape off and putting it back on as many as nine or ten times.

On the morning of August 10, 1996, the defendant stopped at the Pilot Travel Center in Rayville, Louisiana, which is located in Richland Parish. A truck stop employee reported that the defendant entered the store on two occasions. On the first visit, he purchased blue polyester rope. On the second visit, the defendant attempted to cash a "com-check" and purchase more rope; he appeared to be very nervous and agitated. While the defendant was away from the truck, the victim worked her hands out of the duct tape; she then cut the tape at her knees and ankles with a razor blade. After freeing herself, the victim, naked and hysterical, escaped from the truck, and someone gave her a blanket with which to cover herself. She informed an employee at the truck stop that she had been held hostage.

The authorities were alerted by the truck stop employee, who was able to provide them with the driver's license number of the assailant. A computer check determined that the license number was that of the defendant, John Overby. The defendant was seen fleeing the truck stop in his maroon-colored Peterbilt truck, traveling east on I-20. About 15 minutes later, a vehicle matching this description was stopped just before the Delhi exit on I-20 eastbound. The defendant's truck was searched; although no gun was located, a witness at the Pilot Travel Center had seen a gun in the defendant's possession.

Since the defendant's vehicle had been observed near the Bee Bayou exit, officers also searched this area for any evidence which might have been discarded. There the deputies found a blue bag belonging to the victim. Inside they found clothing, a horse bridle, blue nylon rope, a white bra, a pair of socks, a roll of gray duct tape, and several pieces of short duct tape.

When the defendant was questioned, he stated that he started talking to the "gal working the lot at Terrell" [the victim] and that she rode with him from Texas into Rayville, Louisiana. The defendant denied raping or kidnapping her; he claimed he paid her for sex.

The victim was taken to a hospital where a rape kit was performed. Sperm was detected on two of the items submitted in the rape kit. The victim was kept in the hospital overnight for observation. The next day she gave the police a statement and identified the defendant in a photographic line-up. She was also able to show the investigators the location in Lincoln Parish where the rape occurred.

The defendant was originally charged with aggravated kidnapping, a violation of La. R.S.14:44. On May 19, 1997, a hearing was held on the defendant's motion to quash due to improper venue; the court denied the motion, determining that Richland Parish was a proper venue. The next day, the state amended the charge to second degree kidnapping, a violation of La. R.S. 14:44.1, and the defendant pled guilty to the lesser charge. As there was no agreement as to sentencing, the court ordered a pre-sentence investigation (PSI) report.

At the defendant's sentencing, the trial court read extensively from the PSI report regarding the facts of the case, the defendant's *31 prior criminal history, and the defendant's social history. After considering all of the facts and circumstances of this case, the court sentenced the defendant to 40 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. The defendant's timely motion for reconsideration of the sentence was denied.

On appeal, the defendant raised three assignments of error. One assignment of error was specifically abandoned in brief. The remaining assignments contest the trial court's ruling on the motion to quash and the sentence imposed.

MOTION TO QUASH

The defendant contends that the trial court erred in finding that Richland Parish was a proper venue in which to prosecute him for the offense of aggravated kidnapping.

Law

Since venue is jurisdictional in criminal cases, a valid conviction can only be obtained in a court of proper venue. At the hearing on the motion to quash, the state submitted the testimony of Investigator John M. Thomas and argued that venue was proper under either La.C.Cr.P. art. 611 or 612. La.C.Cr.P. art. 611 provides, in pertinent part, as follows:

If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

The state argued that venue was also proper under La.C.Cr.P. art. 612 which provides, in pertinent part, as follows:

If an offense is committed on a ... private vehicle while in transit in this state and the exact place of the offense in this state cannot be established, the offense is deemed to have been committed in any parish through or over which the ... other vehicle passed, and in which the crime could have been committed.

The issue of improper venue must be raised in advance of trial and shall be tried by the judge alone. La.C.Cr.P. art. 615.

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Cite This Page — Counsel Stack

Bluebook (online)
714 So. 2d 28, 1998 WL 175734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-overby-lactapp-1998.