State v. Thompkins

896 So. 2d 1165, 2005 WL 356238
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2005
Docket04-KA-1062
StatusPublished
Cited by9 cases

This text of 896 So. 2d 1165 (State v. Thompkins) 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. Thompkins, 896 So. 2d 1165, 2005 WL 356238 (La. Ct. App. 2005).

Opinion

896 So.2d 1165 (2005)

STATE of Louisiana
v.
Danel THOMPKINS.

No. 04-KA-1062.

Court of Appeal of Louisiana, Fifth Circuit.

February 15, 2005.

*1166 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Roger Jordan, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.

Bruce G. Whittaker, New Orleans, Louisiana, for Defendant/Appellant.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.

JAMES L. CANNELLA, Judge.

The Defendant, Danel Thompkins, appeals from the sentence imposed for his conviction of attempted forcible rape. We affirm the conviction and sentence and remand.

The Defendant was charged on August 9, 2002, with attempted forcible rape, sexual battery, and simple kidnapping of C.S.[1], violations of La. R.S. 14:27, 14:42.1, 14:43.1, and 14:45. He pled not guilty at arraignment.[2] After waiving his right to a jury trial, the Defendant proceeded to a judge trial on February 20, 2003. After trial, the Defendant was found guilty as charged on all counts.

On April 7, 2003, the trial judge denied the Defendant's pro se motion for a new trial and in arrest of judgment. Following the testimony of several witnesses and the Defendant, the trial judge sentenced the Defendant to serve 15 years imprisonment at hard labor for attempted forcible rape, four years for simple kidnapping, and seven years for sexual battery, with the sentences to run concurrently.

At trial, the victim, sixteen-year-old C.S., testified that the Defendant attempted *1167 to rape her and that he sexually assaulted her after dragging her to a canal bank near a friend's residence in the early morning hours of August 9, 2002.[3] C.S. testified that she first encountered the Defendant on the afternoon of the previous day, August 8, 2002, while she was walking to the store between 3:00 p.m. and 4:00 p.m. The Defendant, also known as "Fat," drove past her in his car twice. The third time, he stopped and called out her name. When C.S. asked how he knew her name, he replied that a friend told him. The Defendant offered to drive her to the store. C.S. initially declined, but ultimately accepted the ride. He drove her to and from the store. When they arrived at her home, he then drove C.S., her sister and her nephews to a McDonald's restaurant. It was nearly dark when the Defendant returned the group to C.S.'s home, where she lived with her mother and sister. Defendant then left in his car.

At approximately 11:00 p.m., C.S. walked to her friend's, Danyelle's, house.[4] Danyelle was supposed to work on C.S.'s hair, but a client was still there when C.S. arrived. C.S. left to retrieve her hairpiece so that she could leave it with Danyelle. As C.S. returned to Danyelle's house, the Defendant walked up behind her. He made obscene remarks as to what he would like to do to C.S. as he followed her to Danyelle's house. C.S. told the Defendant that she did not" `get down like that'" and went inside Danyelle's house. After leaving her hairpiece inside, C.S. went outside to smoke a cigarette. The Defendant, who was still outside, made further obscene remarks. Specifically, he remarked, "`So, you're not going to let me f----?'" When C.S. replied negatively, the Defendant asked if she would just let him perform oral sex upon her. C.S. said "`[n]o,'" and the Defendant asked the same question twice more. After the third time that C.S. said "no," the Defendant grabbed her neck and her ponytail and dragged her to the nearby canal bank.

C.S. was screaming as he dragged her. The Defendant told her to "`[s]hut up, b----.'" He also told her that she was going to allow him to "`f----'" her. The Defendant then forced C.S. into his car, which was parked near the canal. He reached under her skirt, ripped her underwear off, and attempted to force her legs apart. The Defendant hit her in her face, told her to shut up and put his fingers inside her vagina. He kissed her stomach and tried to perform oral sex upon her. C.S. thought that she saw the Defendant attempt to put a condom on his penis. She vigorously resisted the Defendant and managed to slide out of the car on to the ground. He followed her. The Defendant lay on top of C.S. and forced her legs open with his knees. She felt his penis on top of her. The Defendant was covering her mouth as she screamed. C.S. finally escaped after kicking the Defendant in the groin.

C.S. ran to Danyelle's house, where she told her friend what had happened. The Defendant followed in his car, stopped at Danyelle's house and called out to C.S. However, when C.S. told the Defendant she was calling the police, he sped away.

*1168 At approximately 1:55 a.m. on August 9, 2003, Deputy Donald Cannatella, Jr., was dispatched to investigate the incident. As he was interviewing C.S., Deputy Cannatella heard over the police radio that another officer might have spotted the perpetrator's vehicle leaving the area. Deputy Paul Sperando testified that he heard over the radio that the suspect's vehicle was green. While on Lapalco Boulevard, Deputy Sperando observed a green vehicle run a stop sign at Lapalco Boulevard's intersection with Phillip Street. Deputy Sperando pursued the vehicle until it crashed at the curb in the 2400 block of Manhattan Boulevard. The driver, later identified as the Defendant, fled behind the Oasis Car Wash. Deputy Sperando and another officer apprehended the Defendant shortly thereafter. Deputy Sperando found an opened condom package on the Defendant's person, and other condom packages were found in the vehicle.

Deputy Cannatella drove C.S. to the location where the Defendant was detained. One of the officers removed him from the police car and C.S. positively identified the Defendant as the person who had attacked her. At trial, C.S. also positively identified the Defendant as her attacker.

The Defendant rested his case without presenting any evidence.

On appeal, the Defendant asserts that the trial court imposed an excessive sentence. He requests a review for error patent.

The Defendant contends that his 15 year sentence is excessive because he was only 19 years old at the time of the offense and because he was a first offender. The State responds that all of the Defendant's sentences were statutorily permissible.

The Defendant did not file or make a motion to reconsider sentence that alleged any particular grounds. Rather, he objected to the sentence as excessive after the sentence was imposed. This Court has recognized that the failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, limits a defendant to a review only for constitutional excessiveness. State v. Dupre, 03-256, p. 7 (La.App. 5th Cir.5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La.5/14/04), 872 So.2d 509; See also, La.C.Cr.P. art. 881.1(E); State v. Mims, 619 So.2d 1059 (La.1993). Therefore, the Defendant is limited to a review for constitutional excessiveness.

Prior to sentencing, two witnesses and the Defendant testified on his behalf. Kawana Williams, the Defendant's sister, testified that she believed that the Defendant was innocent, because he is the type of person who admits when he has done something wrong. She urged the court to take the Defendant's youth into consideration, as well as the fact that he is a single parent taking care of his daughter.

Debra Whitherspoon, the Defendant's aunt, testified that she raised the Defendant from the age of three.

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Cite This Page — Counsel Stack

Bluebook (online)
896 So. 2d 1165, 2005 WL 356238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompkins-lactapp-2005.