The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
KA 14-1218
STATE OF LOUISIANA
VERSUS
CHRISTOPHER J. BROWN
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 54782-K
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE
**********
DAVID KENT SAVOIE
JUDGE
**********
Court composed of John D. Saunders, Shannon J. Gremillion, and David Kent
Savoie, Judges.
AFFIRMED.
Keith A. Stutes
District Attorney, 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana
J.N. Prather, Jr.
Assistant District Attorney
100 North State Street, Suite 215
Abbeville, LA 70501
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana
Edward J. Marquet
Louisiana Appellant Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Christopher J. Brown
SAVOIE, Judge.
MEMORANDUM
Defendant, Christopher J. Brown, was charged on December 22, 2011, with
the attempted forcible rape of L.S. 1 in violation of La.R.S. 14:42.1 and 14:27.
Defendant was arraigned and pled not guilty on January 19, 2012.
On September 26, 2012, Defendant’s attorney filed a Motion for
Appointment of Sanity Commission, which the trial court granted. Both members
of the commission testified that Defendant understood the nature of the charges
and was competent to stand trial, and the court so found.
Trial commenced on February 11, 2014, and Defendant was found guilty of
attempted forcible rape on February 12, 2014. On July 31, 2014, Defendant was
sentenced to serve twenty years at hard labor, with ten years suspended subject to
five years supervised probation with special conditions, and with the first year of
Defendant’s sentence to be served without benefit of probation, parole, or
suspension of sentence.
On August 11, 2014, on the trial court’s own motion, Defendant was
resentenced to fifteen years at hard labor, without benefit of parole, probation, or
suspension of sentence. Attempted forcible rape is a crime of violence, and is,
therefore, not subject to a suspended sentence or probation. See La.Code Crim.P.
art. 893(A) and La.R.S. 14:2(B)(10). The court resentenced Defendant to correct
this error in the original sentence. Defendant then timely appealed his conviction
and sentence. For the following reasons, Defendant’s conviction and sentence are
affirmed.
1
The victim is referenced by use of initials in accordance with La.R.S. 46:1844(W).
FACTS
The State began by calling as its first witness, the victim, L.S, who is a
thirteen year-old girl. She testified that after school and algebra team practice, she
went to the public library, dropped her things at a table, and went to use the
restroom. She further testified that, as she went to wash her hands, a young man
entered the restroom behind her. When she tried to tell him he was in the wrong
restroom, he covered her mouth to prevent her from screaming, grabbed her, and
pushed her to the floor.
She testified that, while she was on the ground, her attacker was bent over
her attempting to cover her mouth. According to the victim, she then pushed his
hand away and managed to kick him in the head, at which point she left the
restroom as her attacker recovered.
L.S. stated that, after she exited the restroom, Mr. Edward Poche asked her
what was wrong. She pointed to the restroom where her attacker had just exited
and saw him attempting to leave through a side door. She stated that Mr. Poche
stopped her attacker and that the librarians spoke with her and called the police.
She then identified Defendant as the individual who attacked her at the library. On
cross-examination, L.S. stated that Defendant did not rape her, have sex with her,
or kiss her.
The State then called Mr. Edward Poche, who testified that he was at the
library on the date of the attack in order to pick up a book to bring with him to
work that night. He testified that while looking for a book, he heard a scream
which he initially thought was simply children playing in the restroom. When the
screams continued, he stopped his book search and approached the restrooms.
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Mr. Poche testified that, as he was approaching the restrooms, he saw L.S.
back out of the restroom and she looked like she was on the verge of tears. The
Defendant then came out of the same restroom. Mr. Poche testified that L.S.
approached him, started crying, and told him Defendant had attacked her.
Mr. Poche testified that Defendant was heading towards one of the exits and
he yelled at him to stop. He testified that Defendant stopped, but did not want to
come towards Mr. Poche or L.S. He testified that, as he, L.S., Defendant, and a
librarian were headed towards the front of the library, Defendant kept saying that
he was sorry. He then identified Defendant. On cross-examination, Mr. Poche
stated that L.S. was not in any state of undress when she exited the restroom; she
was neither bloody nor bruised, and that Defendant waited for the police to arrive.
The State also called Ms. Lela Thibodeaux, a library employee who was
working on the day of the attack. She testified that she was in the back of the
library and heard a yell, but did not know what had happened until she heard her
supervisor speaking to the police on the phone. She testified on cross-examination
that she saw Defendant at the computers when she went to the closet in the back,
prior to the incident. She also testified that L.S. was not bloody or bruised, but was
crying, and that Defendant remained at the library until police arrived.
The State called to the stand Ms. Linda Leonard, another library employee
who was working on the day of the incident. She testified that she was working at
her desk in the front of the library, heard a commotion in the back of the library,
and saw L.S., Mr. Poche, and Defendant coming from the restroom area. After
speaking to Mr. Poche, she called the Kaplan Police Department. She testified that
her desk was near the main exit and that the exit by the restroom is an emergency
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exit. On cross-examination, she testified that Defendant remained at the library
until the police arrived.
The State then called Officer Jacob Primeaux, formerly of the Kaplan Police
Department. He testified that he was the responding officer when the library called
the police. He testified that after speaking to the librarians, he called the
detectives, and Lieutenant Seth Comeaux and Detective Josh Hardy arrived. He
further testified that he arrested the suspect and transported him to the police
department. He also stated that during a search incident to arrest, he found an
unopened condom in the suspect’s pocket and identified Defendant as the suspect.
Officer Primeaux testified that as he was booking Defendant into the jail, he
noticed that Defendant’s pants were unzipped and that his belt was undone. He
stated that he had not seen Defendant adjust his pants prior to that point. On cross-
examination, Officer Primeaux confirmed that the condom found in Defendant’s
pocket was unopened, and that he noticed the Defendant’s pants being unzipped
about two or three minutes after leaving the library.
The State next called Officer Seth Comeaux, who was formerly a lieutenant
that oversaw investigations with the Kaplan Police Department. Officer Comeaux
identified Defendant and testified that, when he arrived on the scene with Detective
Hardy, they read Defendant his Miranda rights and began to question him. He
further testified that Defendant indicated he understood his rights, did not ask for
an attorney, and agreed to answer questions without an attorney present.
Over objection, Officer Comeaux then testified that, after Defendant was
read his rights and agreed to answer questions without an attorney present, he told
Officer Comeaux that he went into the restroom to kiss a girl. He further stated
4
that Defendant told him he had attempted to kiss the girl in the restroom, but that
she had screamed and ran.
Officer Comeaux testified that he then arrested Defendant for attempted
forcible rape, took him to the Kaplan Police Department and interviewed him for a
second time about forty minutes after Defendant was originally read his rights.
Officer Comeaux stated that he and Defendant spoke further in Officer Comeaux’s
office.
Officer Comeaux testified that, during the unrecorded interview in his office,
Defendant told him he had gone into the restroom because he was trying to have
sex with the girl. He further stated that Defendant told him “he wanted to be in
control of the situation,” and that L.S. “looked something like an angel.”
On cross-examination, Officer Comeaux confirmed that the second
interview took place with no one but himself and Defendant in the room. At that
point, the State rested its case. Defendant informed the court of his decision not to
testify or call any witnesses.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we note one
potential error patent, however, for the reasons discussed in assignment of error
number one, this error has no merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, Defendant contends the evidence was
insufficient to support his conviction. Because this assignment of error relates to
the sufficiency of the evidence presented, we will address it first. State v. Hearold,
603 So.2d 731 (La.1992).
5
The analysis for such claims is well settled:
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, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979), State ex rel. Graffagnino 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). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of proving the
elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Specific intent to commit a crime is an element of an attempted
offense. LSA-R.S. 14:27. A conviction of an attempted offense must
rest upon the sufficient proof that the offender actually desired to
cause the proscribed criminal consequences to follow his act or failure
to act and that the offender committed or omitted an act for the
purpose and tending directly toward the accomplishing of his object.
State v. Hunter, 454 So.2d 131 (La.App. 2d Cir.), writ denied, 456
So.2d 1018 (La.1984). Therefore, in order to commit attempted
forcible rape, the offender must actively desire to commit rape by
preventing the victim from resisting the act by force or threats where
the victim may reasonably believe that such resistance would not
prevent the rape. State v. Magee, 491 So.2d 454 (La.App 1st
Cir.1986) Where the offender has the requisite intent to commit a rape
and does an act in furtherance of his goal, he has committed the
offense of attempted forcible rape even if his victim successfully
repels the threat or force. State v. Parish, 405 So.2d 1080 (La. 1981);
State v. Magee, supra.
Specific intent is a state of mind and, as such, need not be
proven as a fact but may be inferred from the circumstances and
actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982);
State v. McDermitt, 406 So.2d 195 (La.1981). Specific intent is a legal
conclusion ultimately to be resolved by the trier of fact. State v.
Guidry, 476 So.2d 500 (La.App. 1st Cir. 1985), writ denied, 480
So.2d 739 (La.1986).
State v. Volkmann, 539 So.2d 1279, 1281 (La.App. 3 Cir. 1989).
6
Defendant cites a number of cases in order to argue that his actions “were
not that of an attempted rapist because nothing [he] did resembles in any way
actions consistent with attempted rape.” However, the argument is without merit.
As previously stated by this court, a conviction for attempted forcible rape requires
only specific intent to commit rape, and an act performed in furtherance of that
intent. Id. In the case sub judice, the jury heard testimony that Defendant
specifically told an officer that his reason for going into the restroom was to have
sex with the victim. The jury also heard testimony from the victim that Defendant
threw her to the floor and tried to stop her from screaming for help.
In the instant case, the evidence supports the jury’s determination that
Defendant possessed the specific intent to commit the offense and performed
actions in furtherance of his goal. Defendant accosted a thirteen-year-old girl in
the restroom of a public library, physically threw her to the ground, and attempted
to cover her mouth to prevent her from screaming. After being read his Miranda
rights and choosing to speak to police without an attorney present, Defendant
admitted to Officer Comeaux that he followed the victim into the restroom to have
sex with her. Fortunately for the victim, she was able to fend off Defendant’s
attack, escape from the restroom, and get help.
Viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found that Defendant possessed the specific intent
to forcibly rape the victim and performed acts directly in furtherance of this goal.
As previously stated by this court: “The fact that the would-be victim successfully
repelled [Defendant]’s advances does not negate a finding of [Defendant]’s
willingness and intent to force her to have non-consensual sexual intercourse
through force or threats of physical violence.” Volkmann, 539 So.2d at 1282. The
7
evidence clearly supports Defendant’s conviction for attempted forcible rape, thus,
this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 1
In Defendant’s only other assignment of error, he complains that “[t]he trial
court imposed an illegal sentence at re-sentencing.” He argues that because the
trial court altered his sentence without giving any objective information regarding
Defendant’s conduct after the original sentencing that would justify a change, the
change was illegal, citing State v. Soco, 508 So.2d 915 (La.App. 4 Cir. 1987).
On July 31, 2014, after taking testimony from a number of witnesses, the
trial court imposed the following sentence:
I am going to put you on probation for a while after your
release from incarceration because that’s the only way to try and
ensure your compliance with your medication and with adhering to
the law when you’re out. I’m going to order that you serve twenty
years at hard labor. I’m going to suspend ten years of that. The first
year of which would be without benefit of probation, parole, or
suspension of sentence as per law. I’m going to strongly recommend
that you receive sex offender and mental health treatment during your
incarceration. And upon your release from incarceration I’m going to
order that you be placed on supervised probation for five years and
that special conditions of your probation include but are not limited to
that you seek further mental health treatment, particularly pertaining
to sex offenses and that you follow any recommended treatment, that
you take any medications that are recommended by any qualified
mental health professional. And the other is that you have no contact
whatsoever with the victim or her family.
After being informed by the Department of Corrections that the above
sentence was an illegal sentence, on August 11, 2014, the trial court resentenced
Defendant to fifteen years at hard labor, without benefit of probation, parole, or
suspension of sentence. Defendant now argues that the trial court should be forced
to reinstate the original sentence.
8
La.Code Crim.P. art. 893(A) specifically provides that “[t]he court shall not
suspend the sentence of a conviction for a crime of violence as defined in R.S.
14:2(B)(1), (2), (3), (4), (5), (9), (10),. . . .” Further, La.R.S. 14:2(B) states that
[t]he following enumerated offenses and attempts to commit any of them are
included as “crimes of violence”:
....
(10) Forcible rape
....
Because the trial court attempted to suspend part of the twenty-year sentence
given to Defendant on July 31, 2014, that sentence was an illegal sentence, as it is
prohibited by La.Code Crim.P. art. 893(A). Louisiana Code of Criminal Procedure
Article 882(A) states that “[a]n illegal sentence may be corrected at any time by
the court that imposed the sentence or by an appellate court on review.” Here the
trial court, upon realizing that it had imposed an illegal sentence, performed
exactly as allowed by La.Code Crim.P. art. 882(A) and resentenced Defendant to a
legal sentence.
If the correction of the illegally lenient sentence results in a
harsher sentence than that originally imposed as a result of adding
parole ineligibility, then the record should reflect consideration by the
resentencing judge of the intent of the judge who imposed the original
sentence, whether it be the same judge or another judge. If, at the time
of imposing the original sentence, the intent of the judge was that the
years be served without benefit of parole, resentencing to the same
term of years without benefit of parole is appropriate. If the intent was
to allow parole eligibility, then the resentencing judge may impose a
sentence of a lesser term of years without benefit of parole to reflect
that intent. If the intent of the judge who imposed the original
sentence cannot be determined, then the resentencing judge should
make an independent determination of an appropriate sentence, not to
exceed the term of years originally imposed, to be served without
benefit of parole. State ex rel. Jackson v. Smith, 578 So.2d 1150
(La.1991); State v. Washington, 578 So.2d 1150 (La.1991); and State
v. Desdunes, 579 So.2d 452 (La.1991).
9
State v. Bonier, 583 So.2d 501, 502-03 (La.App. 3 Cir. 1991). See also State v.
Bertrand, 04-1496 (La.App. 4 Cir. 12/15/04), 891 So.2d 752 (finding that when an
illegal sentence is corrected, a more onerous sentence is not necessarily a violation
of the defendant’s constitutional rights).
It is well settled that “the chilling [effect on] appeals does not in
and of itself offend due process.” United States v. Henry, 709 F.2d
298, 316 n. 26 (5th Cir.1983). More specifically, due process is not
offended by all possibilities of increased punishment after appeal,
only by those which involve “actual retaliatory motivation” or “pose a
realistic likelihood of ‘vindictiveness’.” Blackledge v. Perry, 417 U.S.
21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Henry, 709 F.2d at 315–16.
It is readily apparent that a significant distinction may be drawn
between vindictiveness which, after appeal, increases a defendant’s
sentencing exposure or increases a legal sentence, and the pro forma
correction of an illegal sentence. When an illegal sentence is
corrected, even though the corrected sentence is more onerous, there
is no violation of the defendant’s constitutional rights. Llerena v.
United States, 508 F.2d 78 (5th Cir.1975); Reyes v. United States, 262
F.2d 801, 802 (5th Cir.1959). Simply stated, when a court complies
with a nondiscretionary sentencing requirement, i.e., a mandatory
minimum term or special parole provision(s), no due process violation
is implicated because neither actual retaliation nor vindictiveness
exists.
State v. Williams, 00-1725, pp. 9-10 (La. 11/28/01), 800 So.2d 790, 798.
During resentencing, the trial court stated that it had originally intended for
Defendant to be released after serving part of his twenty-year sentence, but because
the law would not allow that, Defendant was instead sentenced to a lower term of
years, but without benefit of parole, probation, or suspension of sentence. Thus,
the trial court’s decision to resentence Defendant from twenty years with ten years
suspended and probation to fifteen years without benefit was allowed by both
La.Code Crim.P. art. 882(A) and this court’s prior ruling in Bonier. Additionally,
the supreme court’s decision in Williams clearly recognizes that, where an illegal
sentence is corrected, a defendant’s rights are not violated, even if the sentence is
10
more onerous, unless there is a showing of vindictiveness. As such, Defendant’s
claim is without merit.
DECREE
For the foregoing reasons, Defendant’s conviction and sentence are
affirmed.
AFFIRMED.
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