State of Louisiana v. Clayton James Greene

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1267

STATE OF LOUISIANA

VERSUS

CLAYTON JAMES GREENE

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03K2177B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Hon. Earl B. Taylor
District Attorney, 27th J.D.C.
Alisa Ardoin Gothreaux
Assistant District Attorney, 27th JDC
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-0551
Counsel for State-Appellee:
State of Louisiana

Harold Dewey Register Jr.
Attorney at Law
P. O. Box 80214
Lafayette, LA 70598-0214
(337) 921-6644
Counsel for Defendant-Appellant:
Clayton James Greene

Pickett, Judge.

FACTS

The state alleged that on May 24, 2003 at approximately 4:00 a.m., the

defendant, Clayton James Greene, forced his way into the home of Wilma Sam. The

defendant then beat Ms. Sam and John Oakley. The defendant subsequently tied Ms.

Sam’s legs, brought her to his truck, and took her to a tractor dealership. Ms. Sam

begged the defendant not to kill her and he subsequently took her back home. Both

Ms. Sam and Mr. Oakley sustained serious injuries as a result of the defendant’s

actions.

On August 27, 2003, the defendant, Clayton James Greene, was indicted for

two counts of attempted second degree murder, a violation of La.R.S. 14:27 and

La.R.S. 14:30.1, and one count of second degree kidnapping, a violation of La.R.S.

14:44.1. The defendant entered a written plea of not guilty on November 14, 2003.

Jury selection began on October 11, 2005, and the jury returned a verdict on

October 19, 2005 of guilty of two counts of the responsive verdict of attempted

manslaughter, a violation of La.R.S. 14:27 and La.R.S. 14:31, and one count of

second degree kidnapping. On February 10, 2006, the defendant was sentenced to

twenty years at hard labor on each count of attempted manslaughter and to twenty-

five years at hard labor, of which the first ten years are to be served without benefit

of probation, parole, or suspension of sentence, for second degree kidnapping. All

sentences were ordered to run concurrently.

A Motion to Reconsider Sentence was filed on March 8, 2006 and denied on

April 25, 2006. A Motion for Appeal and Designation of Record was filed on April

24, 2006.

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The defendant is now before this court asserting five assignments of error.

Therein, the defendant contends the jury pool was tainted during voir dire and, as a

result, the defendant did not receive a fair and impartial jury; the trial court erred by

not granting a motion to adjourn because of the lateness in the hour, in violation of

the defendant’s constitutionally afforded right to a fair and impartial trial; the trial

court erred by failing to sequester witnesses, in violation of the defendant’s

constitutionally protected right to a fair and impartial trial; the trial court erred in

denying a motion for mistrial based upon exposure of the jurors to other crimes

evidence; and the sentence imposed by the trial court was cruel, unusual and

excessive.

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 find there are

no errors patent.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant contends the jury pool was

tainted during voir dire and, as a result, he did not receive a fair and impartial trial,

in violation of the Sixth Amendment to the United States Constitution.

Jury selection in the case at bar began on October 11, 2005. The court minutes

indicate that prior to the commencement of voir dire, defense counsel moved to have

all potential jurors removed from the courtroom during questioning and the trial court

overruled the motion.

There is no transcript of jury selection in the record. Attorney Harold Register

Jr., represented the defendant at trial and filed a Designation of Record designating

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the “entire transcript of each hearing herein and all of the pleadings for inclusion in

the appellate record.” Additionally, Mr. Register filed a Motion for Transcript on the

same day he filed the Designation of Record. In the Motion for Transcript, Mr.

Register indicated he intended to appeal the decision of the trial court and was in need

of “the transcript of Trial (October 19, 2005), Sentencing (February 10, 2006) and

Motion to Reconsider Sentence (hearing April 13, 2006).”

Mr. Register also represents the defendant on appeal. Before this court,

defense counsel argues the following:

allowing the potential jurors to remain in the courtroom while other
potential witness[es] were being questioned gave the jurors the
opportunity to formulate in their minds a response because they were
aware of the nature of the questioning. Thus, the jurors were not
impartial and did not render an impartial response as to the questions
that were presented to them[.]

We cannot determine the basis of Mr. Register’s objection from the minutes of

court. Mr. Register has not requested that the appellate record be supplemented with

a transcript of jury selection or the portion thereof that is pertinent to this assignment

of error. As we cannot determine whether the basis for the defendant’s assignment

of error was first argued in the trial court, we have not addressed this issue pursuant

to Uniform Rules—Courts of Appeal, Rule 1-3.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the defendant contends the trial court erred

by not granting his motion to adjourn because of the lateness in the hour, in violation

of his constitutionally afforded right to a fair and impartial trial, according to

La.Const. art. 1, § 16.

The trial court began to instruct the jury at 7:18 p.m. After the jury had been

instructed and the bailiff delivered the verdict sheets to the jury, defense counsel

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sought to have the proceedings adjourned and jury deliberations commenced the

following day. The trial court denied the motion and the jury retired to deliberate at

7:54 p.m. The jury returned its verdicts at 10:55 p.m.

The defendant asserts that an objection was entered on the record during trial

on October 19, 2005, due to the lateness of the hour and upon observing several

jurors sleeping or dozing during various stages of trial. The defendant further asserts

that the trial court wished to finish the trial no matter how long it took. The

defendant contends that the trial court, by not allowing the adjournment of court,

deprived him of his protected constitutional right to a fair and impartial trial. The

defendant further contends the exhausted and pressed for time jurors could not fairly

or impartially return a verdict, thus depriving him of a proper jury.

In support his argument, the defendant cites State v. Burns, 35,267 (La.App.

2 Cir. 10/31/01), 800 So.2d 106. Therein, the second circuit found the removal of and

replacement of a juror who was allegedly sleeping was not warranted, as neither the

state nor the defense moved to have the juror removed or moved for mistrial, and the

only indication that the juror was sleeping was the trial court’s comments before it

summarily dismissed the juror. The second circuit cited State v. Cass, 356 So.2d 396

(La.1977), wherein the supreme court stated the following: “[t]he right of the accused

to have a juror selected by him try the case is a substantial one, the improper

deprivation of which is prejudicial. The doctrine of harmless error is, therefore,

inapplicable.” Id. at 398 (Citations omitted). The court in Burns then reversed the

defendant’s conviction and sentence and remand the matter for a new trial.

The case at bar is distinguishable from the cases cited by the defendant, in that

a juror was not removed in the case at bar. The defendant did not move to have the

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sleeping or dozing jurors removed or replaced. Accordingly, any issue regarding this

matter was waived, as the defendant did not timely object. La.Code Crim.P. art. 841.

We will, however, address the defendant’s complaint regarding the time of day the

jury began deliberations. Pursuant to La.Code Crim.P. art. 17:

A court possesses inherently all powers necessary for the exercise
of its jurisdiction and the enforcement of its lawful orders, including
authority to issue such writs and orders as may be necessary or proper
in aid of its jurisdiction. It has the duty to require that criminal
proceedings shall be conducted with dignity and in an orderly and
expeditious manner and to so control the proceedings that justice is
done. A court has the power to punish for contempt.

In State v. Wright, 445 So.2d 1198 (La.1984), the defendant argued he was

deprived of his right to a fair trial because of the long hours of testimony during the

two-day trial and the retirement of the jury at 11:00 p.m. until their verdict was

returned at 3:00 a.m. The supreme court noted that it found nothing unusual in

retiring the jury late in the evening, rather than waiting until the following day.

Additionally, the court remarked that the four hours spent in deliberation reassured

it that the jury’s verdict was not unduly hurried.

In State v. Currie, 00-2284, p. 16 (La.App. 4 Cir. 2/13/02), 812 So.2d 128, 137,

writ denied, 02-786 (La. 11/15/02), 812 So.2d 128, the fourth circuit noted the

following:

[A] trial that runs from 9:50 a.m. until 6:20 a.m. is unprecedented.
Deliberations have run into the wee hours of the morning before, see
State v. Chevalier, 458 So.2d 507 (La.App. 4 Cir.1984) (deliberations
from 9:54 p.m. until 1:05 a.m.); State v. Mack, 435 So.2d 557 (La.App.
1 Cir.1983) (deliberations from 10:40 p.m. to 1:50 a.m.); State v. Wright,
445 So.2d 1198 (La.1984) (deliberations from 11:00 p.m. until 3:00
a.m.), but a trial that lasted on its third day almost twenty hours merits
our close scrutiny.

Based on Article 17 and the cases cited herein, we find the trial court did not

abuse its discretion in allowing the jury to begin deliberations at 7:54 p.m.

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Additionally, the fact that the jury deliberated for approximately three hours

demonstrates that the jury was not hurried in its deliberations. Accordingly, this

assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, the defendant contends the trial court erred by

failing to sequester witnesses, in violation of his constitutionally protected right to a

fair and impartial trial, according to La.Const. art. 1, § 16.

At trial, the state moved to have the two victims in the case at bar and the

designated case agent exempted from sequestration. At that time, the defendant

objected. The defendant later made the following argument to the trial court:

I certainly recognize and appreciate the significance of Code of
Evidence Article 615 (B). My basic argument, even though it indicates
that a victim can in fact remain in the courtroom, we would simply
argue on these grounds, that such an article is unconstitutional, and of
course, reserve our right to advance it on appeal.

The defendant argues that the witnesses the trial court did not sequester would

be influenced and prejudiced by the testimony of other witnesses in the matter. The

defendant then challenges the constitutionality of the La.Code Evid. Art. 615(B). The

defendant further asserts that it was a direct violation of his right to a fair and impartial

trial for the trial court to afford the victims and the case agent protection under

La.Code Evid. art. 615(B)(4) and allow their partial testimony into the record.

La.Code Evid. art. 615 provides, in pertinent part, as follows:

A. As a matter of right. On its own motion the court may, and on
request of a party the court shall, order that the witnesses be excluded
from the courtroom or from a place where they can see or hear the
proceedings, and refrain from discussing the facts of the case with
anyone other than counsel in the case. In the interests of justice, the
court may exempt any witness from its order of exclusion.

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B. Exceptions. This Article does not authorize exclusion of any
of the following:

(1) A party who is a natural person.
(2) A single officer or single employee of a party which is
not a natural person designated as its representative or case
agent by its attorney.
(3) A person whose presence is shown by a party to be
essential to the presentation of his cause such as an expert.
(4) The victim of the offense or the family of the victim.

In State v. Chester, 97-2790, p. 8 (La. 12/1/98), 724 So.2d 1276, 1282, cert. denied,

528 U.S. 826, 120 S.Ct. 75 (1999), the supreme court stated that “[t]he purpose of the

sequestration article is to prevent witnesses from being influenced by the testimony

of earlier witnesses. State v. Stewart, 387 So.2d 1103 (La.1980).”

In State v. Schoening, 00-903, p. 3 (La. 10/17/00), 770 So.2d 762, 764, the

supreme court discussed constitutional challenges as follows:

Legislative enactments are presumed valid and their
constitutionality should be upheld whenever possible. State v. Caruso,
98-1415, p. 1 (La.3/2/99), 733 So.2d 1169, 1170 (citing State v. Griffin,
495 So.2d 1306 (La.1986)). Therefore, courts are generally reluctant to
address the constitutionality of legislation unless necessitated by the
particular case and issue before them. Blanchard v. State, Through Parks
and Recreation Com’n, 96-0053, p. 2 (La.5/21/96), 673 So.2d 1000,
1002 (citing Matherne v. Gray Ins. Co., 95-0975 (La.10/16/95), 661
So.2d 432). The general rule is that a court should not reach the question
of a statute’s constitutionality when its possible unconstitutionality has
not been placed at issue by one of the parties in a pleading. Board of
Com’rs of Orleans Levee Dist. v. Connick, 94-3161, p. 6 (La.3/9/95), 654
So.2d 1073, 1076; Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8
(La.11/30/94), 646 So.2d 859, 864-65; Lemire v. New Orleans Public
Service, Inc., 458 So.2d 1308, 1311 (La.1984). This court has stated that,
while there is no single required procedure or type of proceeding for
attacking a statute’s constitutionality, “the long-standing jurisprudential
rule of law is . . . the unconstitutionality of a statute must be specially
pleaded and the grounds for the claim particularized.” Vallo, 646 So.2d
at 864-65.

The defendant failed to sufficiently particularize the basis for the

unconstitutionality of Article 615 in his argument to the trial court and did not contend

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his rights were affected. Hence, the defendant failed to uphold his burden of proof

regarding the constitutionality of Article 615. Further, the defendant failed to assert

or give examples of how the testimony of the witnesses at issue was influenced or

prejudiced by that of other witnesses. Therefore, he has not sufficiently particularized

the basis for his argument. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

In his fourth assignment of error, the defendant contends the trial court

improperly denied his motion for mistrial, which was based upon exposure of the jurors

to evidence of other crimes, in violation of La.Const. art. 1, § 16.

The taped statement of the victim, Wilma Sam, was played to the jury. After the

tape was played, the following exchange occurred:

MR. REGISTER: I object again, Your Honor.

THE COURT: Okay, as to the objection, I’m going to sustain the
objection as to that portion of the tape. I’ll instruct the jury to disregard
those comments made by Ms. Sam concerning the reasons why they were
not getting along.

Defense counsel then moved for a mistrial “based upon what was said on that

particular tape.” Following this exchange, a conference was held in chambers.

During the conference, defense counsel gave the following reasons for his

motion for mistrial:

When the tape was played, certain information was mentioned concerning
uncharged misconduct, and particularly the fact about the defendant being
a drug user and what have you, and we feel that there’s a separate
proceeding to try to get in uncharged misconduct, if that was the purpose
of offering the tape. We feel that, based upon the fact that that tape was
allowed to be played, the jury heard uncharged misconduct concerning my
particular client, we feel that an admonition to the jury would not be
sufficient and we feel that it’s only appropriate, at this point, to move for
a mistrial. The Assistant D.A., by having that tape in her posession, was
fully aware of the contents of what was on that tape or should have been
fully aware of what was on that tape, and to allow that tape to come in, to

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get in uncharged misconduct, we feel that there’s no way that my client
can have a fair trial at this point.

The state insisted that defense counsel had received a copy of the tape. The state

then indicated that Ms. Sam stated the defendant was drinking and doing drugs and it

felt an instruction to the jury would be sufficient. The trial court subsequently denied

the motion and stated that an admonishment would be given to the jury.

The defendant asserts a mistrial should have been granted because prejudicial

evidence of past crimes was introduced in the presence of the jury. The defendant does

not set forth, in brief to this court or in his argument to the trial court, what other crimes

evidence was introduced. As noted above, the defendant failed, in brief to this court,

to point out what evidence of other crimes was presented to the jury. Therefore, we

find this assignment of error has not been properly briefed and should not be

considered by this court. Uniform Rules—Courts of Appeal, Rule 2-12.4.

ASSIGNMENT OF ERROR NO. 5

In his fifth assignment of error, the defendant contends the sentences imposed

by the trial court were cruel, unusual, and excessive, in violation of La.Const. art. 1, §

20.

In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the
supreme court held that when a defendant claims a sentence is excessive
“[t]he only relevant question on review . . . [is] ‘whether the trial court
abused its broad sentencing discretion, not whether another sentence
might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155,
1165 (La.1984).”

State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.

The defendant was convicted of two counts of attempted manslaughter and one

count of second degree kidnapping. Pursuant to La.R.S. 14:27 and 14:31, the

maximum sentence for attempted manslaughter is not more than twenty years

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imprisonment. Additionally, pursuant to La.R.S. 14:44.1, the sentence for second

degree kidnapping is not less than five nor more than forty years and at least two years

of the sentence imposed shall be without benefit of parole, probation, or suspension of

sentence. The defendant was sentenced to twenty years at hard labor on each count of

attempted manslaughter and to twenty-five years at hard labor, of which the first ten

years are to be served without benefit of probation, parole, or suspension of sentence,

for second degree kidnapping. All sentences were ordered to run concurrently.

The trial court made the following comments at the sentencing hearing:

The defendant has filed in the record herein forty-three letters from
friends. Let the record reflect that this Court has read all of these letters. .
. . At the time of these crimes, the defendant was twenty years younger
than the female victim, Wilma Sam, and ten years younger than the
victim, John Oakley, who was also disabled and unable to defend himself.
The injuries sustained by Ms. Sam and by the defendant, who used a large
heavy stick to beat her, were two broken arms, broken jaw, broken sinus
cavity. She also had a large laceration down the center of her forehead
and on the right side of her face. Her throat was bruised and swollen as
was most of her upper body, then the defendant tied her legs, threw her in
a truck and drove her to the John Deere location, all while the victim
pleaded and begged for her life. As to Mr. Oakley, he suffered a
concussion from the blows to his head, by the defendant using the stick
and furthermore, standing on Mr. Oakley’s head. Mr. Oakley played dead
to avoid further beatings and from being killed. The victim’s impact
statement of Wilma Sam was also considered. The defendant is a first
felony offender, however, he is not eligible for a suspended sentence for
the crime of second degree kidnapping, because the sentence is a hard
labor sentence of not less than five (5) years and no more than forty (40)
years, with at least two (2) years being without benefit of parole,
probation, or suspension of sentence. The defendant has a misdemeanor
conviction of simple battery wherein it was alleged that a .44 caliber
magnum revolver was used by the defendant, which results in a crime
against the person. The defendant, through his Counsel, has indicated that
the defendant was unable to give his version of this incident, and that it
was self-defense by the defendant against the victim. Additionally, the
Pre-Sentence Investigation indicates another matter, related to by defense
Counsel, in that the defendant was charged with an aggravated battery
wherein a baseball bat was used, allegedly used, and the victim’s leg was
broken as a result of this. Again, defense Counsel relates that the
defendant did not have an opportunity to address this to the Probation
Officer, and that the defendant has claimed self-defense in that matter.

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Only by the grace of God, in this matter, neither of the victims died as a
result of the vicious beating each received at the hands of the defendant,
who used, as stated before, a large heavy stick. Each victim sustained
serious, permanent physical and psychological injuries. The defendant is
a very dangerous man as evidenced by this criminal history and by
heinous crimes he committed in this particular matter . . . This court feels
that it has a duty to protect the public from this man. The Court also
considered all of the, or the two individuals that testified today in relating
that the defendant was, by nature, not a violent person, however, the
record does not indicate such. It appears to the Court that there is a
pattern of violence with the defendant, which the Court is not quite sure
what has triggered that, except in this incident it appears to be that the
lady, he had lived with previously, had a gentleman with her on the night
of this incident. Considering all of the factors cited herein and that there
is an undue risk that during the period of a suspended sentence or
probation the defendant would commit another crime, that the defendant
is in need of correctional treatment or a custodial environment that can be
provided most effectively by his commitment to an institution, that a
lesser sentence would deprecate the seriousness of the defendant’s crime,
that there are no mitigating circumstances, and even though the defendant
today indicated he was remorseful for the events that occurred and the
injuries received by these parties, all during the trial of this matter he
professed that he was acting in self-defense. In the Pre-Sentence
Investigation he continued to indicate that he was acting in self-defense,
and of the other matters in this criminal history, he has stated that he was
acting in self-defense. The Court does not feel that the defendant is
remorseful; or he may be remorseful for the injuries that occurred, but not
for the actions that he took at the time.

In his Motion to Reconsider Sentence, the defendant argued that his sentences

were excessive and stated that he had two forms of terminal illnesses and was not

expected to live long. At the hearing on the motion, the defendant entered the medical

records from the St. Landry Parish Sheriff’s Department and University Medical Center

into evidence and the trial court took the matter under advisement. The motion was

subsequently denied.

The defendant argues that there were several mitigating factors the trial court did

not consider at sentencing. The defendant points out that he had no prior felony

offenses and asserts the state failed to offer proof that would rebut his claim that he

acted in self-defense. The defendant also asserts that the pre-sentence investigation

11

report was biased and set forth information about previous altercations. The defendant

goes on to allege that the trial court failed to consider the fact that he was sick.

In his Motion to Reconsider Sentence, the defendant alleged only that his

sentences were excessive and he was terminally ill. Defense counsel failed to argue

that the trial court did not consider mitigating factors at the sentencing hearing.

“Failure to . . . include a specific ground upon which a motion to reconsider sentence

may be based, including a claim of excessiveness, shall preclude the state or the

defendant from raising an objection to the sentence or from urging any ground not

raised in the motion on appeal or review.” La.Code Crim.P. art. 881.1(E).

Accordingly, the defendant waived all claims regarding his allegation that the trial

court failed to consider that he was a first felony offender, any issues pertaining to the

pre-sentence investigation report, and his allegation that the state failed to produce

evidence to prove he did not act in self-defense. Therefore, we will consider only

whether the trial court considered the defendant’s illnesses at the time it denied the

defendant’s motion and whether his sentences are excessive.

First, we note that in the denial of the defendant’s Motion to Reconsider

Sentence, the trial court clearly stated that it considered the defendant’s medical

records, which comprise approximately two hundred fifty-seven pages. A review of

the medical records indicates the defendant is HIV positive and has tuberculosis.

In State v. deBeche, 01-1083 (La.App. 3 Cir. 2/6/02), 815 So.2d 1028, writ

denied, 02-686 (La. 9/13/02), 824 So.2d 1187, the defendant, who had congestive heart

failure, contended his health had drastically declined since sentencing and he was

terminally ill. This court refused to find his twenty five-year sentence for forcible rape

and molestation of a juvenile excessive. In State v. Thomas, 556 So.2d 1349 (La.App.

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5 Cir.), writ denied, 563 So.2d 1151 (La.1990), the court concluded the defendant’s

sentence of six years for rape and molestation of a juvenile was not excessive despite

the defendant’s claim that he should be given home incarceration because he was

suffering from stomach cancer and would not get necessary treatment if incarcerated.

The court noted that if treatment by the Department of Corrections was inadequate the

defendant could apply to the court for relief.

Louisiana Revised Statute 15:574.20(A) provides, in pertinent part: “any person

sentenced to the custody of the Department of Public Safety and Corrections may, upon

referral by the department, be considered for medical parole by the Board of Parole.”

See State v. Brown, 02-1382 (La.App. 3 Cir. 4/2/03), 842 So.2d 1181, writ denied, 03-

1224 (La. 11/7/03), 857 So.2d 491.

We will now address the defendant’s claim that his sentences are excessive. In

State v. Taves, 03-581 (La. 12/3/03), 861 So.2d 144, the court found the defendant’s

concurrent sentences of ten years imprisonment for false imprisonment while armed

with a dangerous weapon and twenty-five years imprisonment for second degree

kidnapping, two years of which were to be served without benefit of parole, probation,

or suspension of sentence, were not disproportionate to the offenses. Therefore, the

sentences were not excessive. The court noted that the defendant’s conduct in holding

the victim hostage at gunpoint in their home for one month manifested deliberate

cruelty to the victim and the pre-sentence investigation report indicated the victim

suffered from post-traumatic stress disorder, that the defendant had a prior felony

conviction, and that he had prior misdemeanor convictions for criminal confinement,

destruction of property, escape, and theft. The defendant was actually classified as a

first felony offender for sentencing purposes. In State v. Meche, 95-797 (La.App. 3

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Cir. 12/6/95), 664 So.2d 828, writ denied, 96-493 (La. 5/10/96), 672 So.2d 920, the

defendant entered guilty pleas to forcible rape and second degree kidnapping. This

court found the twenty-five year sentence for second degree kidnapping was not

excessive. The court noted in its reasons for imposition of sentence that it considered

the fact the defendant was a first felony offender, but the defendant’s use of a gun to

kidnap and rape the victim “mandated a sentence that would adequately punish him for

these crimes.” Id. at 831. Additionally, the court noted the defendant was originally

charged with aggravated rape, second degree kidnapping, and aggravated crimes

against nature, which potentially exposed him to a maximum life sentence plus

fifty-five years without the benefit of probation, parole, or suspension of sentence, and

the defendant received concurrent sentences.

We find the defendant is a first felony offender who the trial court considered a

very dangerous man who displayed a pattern of violence. He beat the victims with a

stick, one of whom was disabled, and forcibly carried the other victim from the scene.

Additionally, the victims sustained serious injuries as a result of the defendant’s

actions. Based on the cases cited herein and the facts and circumstances of this case,

we find the defendant’s twenty-five year sentence for second degree kidnapping is not

excessive. As the defendant’s two twenty year sentences for attempted manslaughter

were ordered to run concurrently with his sentence for second degree kidnapping, we

find the sentences for attempted manslaughter are not excessive. For the reasons set

forth herein, this assignment of error lacks merit.

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CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

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