State of Louisiana v. Al Jerome Jeansonne, Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-263

STATE OF LOUISIANA

VERSUS

AL JEROME JEANSONNE, JR.

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 276,381
HONORABLE BENJAMIN C. BENNETT, JUDGE PRO TEMPORE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

Laura Marie Pavy
Louisiana Appellate Project
Post Office Box 750602
New Orleans, Louisiana 70175-0602
(504) 833-2910
COUNSEL FOR DEFENDANT/APPELLANT:
Al Jerome Jeansonne, Jr.

James C. Downs
District Attorney - Ninth Judicial District
ADA T. Gerald Henderson
Post Office Drawer 1472
Alexandria, Louisiana 71309-1472
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

GENOVESE, Judge.

On January 12, 2005, Al Jerome Jeansonne, Jr. was charged with simple rape,

a violation of La.R.S. 14:43. On October 5, 2005, following a trial by jury, Defendant

was convicted as charged. Defendant then filed a motion for new trial, which was

denied by the trial court. Defendant waived sentencing delays, and the trial court

sentenced him to imprisonment at hard labor for twenty years, without benefit of

probation, parole, or suspension of sentence.

Defendant appeals, claiming insufficient evidence to support his conviction,

excessive sentence, and all errors patent. For the following reasons, Defendant’s

conviction and sentence are affirmed, and Defendant’s sentence is amended to reflect

that diminution eligibility is denied pursuant to La.R.S. 15:537.

FACTS

W.A.,1 the victim, was fifteen years of age at the time of the offense. He is

mentally and physically handicapped. W.A. testified that he lived with his mother,

her boyfriend, his brother, and his sister. He identified Defendant as a neighbor.

W.A. stated that Defendant performed anal intercourse on him while in a

clubhouse behind his home. He also stated that he told his sister, his aunt, and his

brother about what had happened.

After W.A. told his aunt about the rape, she contacted his mother. On October

28, 2004, W.A.’s mother filed a complaint with the Alexandria Police Department.

W.A. informed the police that Defendant had raped him. He was subsequently

interviewed at the Child Advocacy Center and was also examined by a physician,

who concluded that the victim exhibited signs of anal penetration. It is noted that the

1
In accordance with La.R.S. 46:1844(W), the initials for the minor victim will be used.

1

physical examination was performed more than forty-eight hours after the reported

rape. The record does not indicate whether a rape kit examination was performed.

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 that there

is one error patent.

The trial court erred in failing to deny Defendant diminution eligibility under

La.R.S. 15:537(A). That statute requires that diminution of sentence be denied to all

offenders who are convicted of, or plead guilty to, sex offenses, including simple rape

(the present offense). The statute is not clear, however, as to whether it is a mandate

to the trial court to deny diminution of sentence, or it is a mandate to the Department

of Corrections to implement the denial. In State v. G.M.W., Jr., 05-391, 05-392

(La.App. 3 Cir. 11/2/05), 916 So.2d 460, we held that La.R.S. 15:537 is clearly a

directive to the trial court, and the trial court’s failure to comply with La.R.S. 15:537

renders the sentence illegally lenient:

At the outset, we note that, at sentencing, the trial court stated that
it was denying the Defendant eligibility for diminution of sentence in
accordance with La.R.S. 15:571.3(C)(4)(E). The trial court had no
authority to deny the Defendant diminution of sentence under the statute
cited; however, the trial court was required to deny the Defendant
diminution eligibility under La.R.S. 15:537(A), which requires that
diminution of sentence be denied to all offenders who are convicted of
or plead guilty to sex offenses, including aggravated incest. We note
that the second paragraph of La.R.S. 15:537 is clearly directed to the
sentencing court, and the trial court’s failure to include a denial of
diminution of sentence thereunder renders Defendant’s sentences
illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01),
800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to
recognize and correct illegally lenient sentences. Thus, we amend the
Defendant’s sentences to reflect that diminution of sentence is denied
pursuant to La.R.S. 15:537 rather than La.R.S.573.3 as stated by the trial
court.

2

Id. at 461.

Abiding by this court’s holding in G.M.W., we find the simple rape sentence

imposed in the present case is likewise illegally lenient because the trial court failed

to deny diminution of sentence pursuant to La.R.S. 15:537. As did the court in

G.M.W.,we amend Defendant’s simple rape sentence to reflect that his diminution

eligibility is denied pursuant to La.R.S. 15:537. Since the correction does not involve

sentencing discretion, a remand is not necessary. State v. Gregrich, 99-178 (La.App.

3 Cir. 10/13/99), 745 So.2d 694. However, this matter will be remanded and the trial

court instructed to make a notation in the minutes reflecting the amendment.

Additionally, we note that the victim was not identified by name or initials in

the bill of information. Louisiana Code of Criminal Procedure Article 473 provides:

When the name of the person injured is substantial and not merely
descriptive, such as when the injury is to the person, as in murder, rape,
or battery, the indictment shall state the true name of the victim or the
name, appellation, or nickname by which he is known. If the name,
appellation, or nickname of the victim is not known, it is sufficient to so
state and to describe him as far as possible. In stating any name of a
victim it is sufficient to state a surname, a surname and one or more
given names, or a surname and one or more abbreviations or initials of
a given name or names.

In this case, the District Attorney could not publicly disclose the victim’s name

or identity because the victim was a minor and the victim of a sex offense; however,

he could have used “initials, abbreviations, or other forms of indefinite descriptions”

on public documents to prevent public disclosure of the name. See La.R.S.

46:1844(W)(1) and La.R.S. 46:1844(W)(3).

In the following excerpt from State v. Thompson, 00-1808, p. 1 (La. 2/2/01),

781 So.2d 1221, 1222, the supreme court characterized La.R.S. 46:1844(W)(1) as an

exception to La.Code Crim.P. art. 473:

3

As amended by 1999 La. Acts 783, La.R.S. 46:1844(W)(1)
prohibited at the time of discovery proceedings in this case any judicial
officer or district attorney from making public disclosure of the name
and identity of a minor under the age of 18 years at the time of the
commission of any offense. The statute thus provided an express and
specific exception to the general rule of [La.Code Crim.P.] art. 473 that
“[w]hen the name of the person injured is substantial and not merely
descriptive, such as when the injury is to the person, as in murder, rape,
or battery, the indictment shall state the true name of the victim or the
name, appellation, or nickname by which he is known.”

Therefore, there is no error patent to be recognized as a result of the District Attorney

not identifying the victim by name or initials in the bill of information.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant asserts that the evidence is

insufficient to sustain a conviction for simple rape because the State failed to prove

beyond a reasonable doubt that the victim lacked capacity, through unsoundness of

mind, to understand the nature of the act.

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.

Defendant was convicted of simple rape, defined in pertinent part by La.R.S.

14:43, which provides:

4

A. Simple rape is a rape committed when the anal, oral, or
vaginal sexual intercourse is deemed to be without the lawful consent of
a victim because it is committed under any one or more of the following
circumstances:

....

(2) When the victim is incapable, through unsoundness of mind,
whether temporary or permanent, or understanding the nature of the act
and the offender knew or should have known of the victim’s incapacity.

Defendant asserts that the victim’s testimony at trial, and his “quick

complaint,” clearly indicated that he understood the nature of the act. Therefore,

Defendant concludes that the State failed to prove that particular element necessary

for a conviction of simple rape.

In State v. Ward, 04-1295 (La.App. 5 Cir. 4/26/05), 903 So.2d 480, writ

denied, 05-1718 (La. 3/17/06), --- So.2d ---, a case directly on point, the defendant

asserted the same claim. Ward argued that the lengthy and detailed testimony of the

twenty-year-old mentally handicapped victim clearly showed that she understood the

nature of the act. The court found this assertion to be without merit and ruled that a

person with the mental development of a six or seven-year-old child lacked the

capacity to consent to sexual activity, despite his or her ability to testify on the

offense:

It seems beyond question that competency to testify is not the same as
the capacity to understand the nature of the sexual act. There is a vast
difference between understanding the distinction between the truth and
a lie and understanding the nature and consequences of a sexual act.
State v. Peters, (La.App. 4 Cir.1983), 441 So.2d 403, writ denied 530
So.2d 560[, La.1988].

Id. at 485.

In the instant case, the victim’s teacher was accepted by the court as an expert

in special education. She testified that the victim has intellectual cognitive deficits

5

and classified his mental handicap as mild to moderate. She also stated that although

the victim was fifteen years of age, he only functioned at a first grade level. In his

own testimony, Defendant stated that he knew the victim, who lived in the house next

door to him, and also knew the victim’s family. Defendant stated that he spent time

in the victim’s home and that he got to know the victim because he would “follow

you around like a little lost puppy.”

We find that the evidence, under the Jackson standard of review, viewed in the

light most favorable to the prosecution, was sufficient to show that the victim lacked

the capacity to understand the nature of the act and that Defendant knew about the

victim’s mental incapacity. Therefore, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant asserts that the trial court erred

by imposing an excessive sentence. Defendant argues that he should not be sentenced

to a term near the maximum provided for by the statute for the convicted offense.

Initially, we note that Defendant did not file a motion for reconsideration of the

sentence. Louisiana Code of Criminal Procedure Article 881.1 provides that the

failure to file or make a timely motion to reconsider the sentence precludes the

defendant from objecting to the sentence on appeal. In State v. Craft, 01-248

(La.App. 3 Cir. 10/3/01), 796 So.2d 907, we recognized that the failure of a

defendant to timely move for reconsideration of sentence precluded review of a

subsequent claim of excessiveness of that sentence. However, we, in the interest of

justice, has reviewed sentences for bare excessiveness when no motion to reconsider

sentence was filed. See State v. Dabney, 01-1110 (La.App. 3 Cir. 6/25/03), 848 So.2d

784, and State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ

6

denied, 02-29 (La. 10/14/02), 827 So.2d 420. In this case, we will review

Defendant’s sentence for bare excessiveness.

We have set forth the following standard to be used in reviewing excessive

sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.” To constitute
an excessive sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable contribution
to acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, we have held:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

7

03-0562 (La. 5/30/03), 845 So.2d 1061.

The trial court sentenced Defendant to twenty years imprisonment at hard labor

without benefits of parole, probation, or suspension of sentence. In his brief to this

court, Defendant simply asserts that the sentence is excessive because it does not

fairly reflect the offense and the offender.

A person convicted of simple rape may be sentenced to imprisonment for a

term of not more than twenty-five years, with or without hard labor, and without

benefit of parole, probation, or suspension of sentence. See La.R.S. 14:43(B). The

twenty-year sentence imposed on Defendant is clearly within the statutory range for

simple rape.

At the sentencing hearing, the trial court discussed the reasons for imposing the

sentence at issue:

I’ve carefully considered your record and your record indicates prior
sexual crimes and does not necessarily indicate one or another sexual
orientation, which is not taken into consideration, but your action really
constitutes predatory and deviant behavior. Since you have not learned
from previous examples you are in need of further corrective treatment.
I also find that there is an undue risk of your committing another crime
during the period of suspended sentence. I don’t think a suspended
sentence is appropriate in this case. I feel like you’re in need of
correctional treatment and a custodial environment can more effectively
provide that treatment. It may take a while to do it. Any lesser sentence
than what I am going to impose I believe will deprecate the seriousness
of the crime. I certainly consider that the victim of this crime was a
person very vulnerable, very limited ability [sic] that you knew quite
well and knew you and created an atmosphere where you could do this.
The maximum sentence for this crime is twenty-five years. Including
considering your previous record and my fear that if you’re out too long
somebody else might be a victim of the same crime and I’m going to
sentence you to serve a period of twenty years in the custody of the
Department of Corrections in the State of Louisiana.

Defendant neither shows nor alleges that the trial court failed to properly consider any

possible mitigating factors when imposing sentence. Therefore, in light of the

8

victim’s age and mental and physical handicaps, we find that the trial court did not

abuse its discretion in sentencing Defendant to twenty years imprisonment for simple

rape, an offense for which he could have been sentenced to a maximum term of

twenty-five years. Accordingly, this assignment is without merit.

DECREE

We affirm Defendant’s conviction and sentence. Additionally, we amend

Defendant’s sentence to reflect that diminution eligibility is denied pursuant to

La.R.S. 15:537. This case is remanded to the trial court with instructions to make a

notation in the minutes reflecting said amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

9