State of Louisiana Versus Larry Dillon, Jr.

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.

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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.

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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.

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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.

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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.

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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

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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

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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.

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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

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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.

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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.

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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

assignment of error does not have merit.

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

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 5, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

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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