State of Louisiana v. Robert Jacobs

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1370

STATE OF LOUISIANA

VERSUS

ROBERT JACOBS

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 107,623
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

**********

Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

Saunders, J., agrees in part, dissents in part, and assigns written reasons.

AFFIRMED IN PART; REVERSED IN PART;
CONVICTION ENTERED; AND REMANDED
FOR SENTENCING.

Michael Harson
District Attorney
Michele S. Billeaud
Assistant District Attorney
15th Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellee:
State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
P. O. Box 719
Rayville, LA 71269-0719
(318) 728-2043
Counsel for Defendant/Appellant:
Robert Jacobs

Robert Jacobs
South Louisiana Correctional Center
3843 Stagg Avenue
Basile, LA 70515
In Proper Person:
Robert Jacobs

GREMILLION, Judge.

In this case, Defendant, Robert Jacobs, was found guilty of one count of

forcible rape, in violation of La.R.S. 14:42.1, and one count of aggravated burglary,

in violation of La.R.S. 14:60. Thereafter, he was sentenced to thirty years at hard

labor for the forcible rape conviction and ten years at hard labor for the aggravated

burglary conviction with the sentences to run concurrently. This appeal followed.

Appellate counsel filed an Anders brief in this matter. Upon completion

of a thorough independent review of the record, as required by State v. Benjamin, 573

So.2d 528 (La.App. 4 Cir. 1990), we identified a non-frivolous issue and denied

defense counsel’s motion to withdraw and ordered both the State and Defendant to

brief the issue of double jeopardy.

Defendant filed a pro se brief alleging that the evidence was insufficient

to sustain a conviction and that his sentence was excessive.

For the following reasons, we hold that the convictions for aggravated

burglary and forcible rape constitute double jeopardy. Therefore, we reverse the

conviction for aggravated burglary, enter a conviction for simple burglary, and

remand the matter for resentencing on the simple burglary conviction. We find that

Defendant’s pro se assignments lack merit, and we affirm the conviction of forcible

rape.

SUFFICIENCY OF EVIDENCE

When multiple issues are raised on appeal and sufficiency of the

evidence is one of the alleged errors, the reviewing court should first determine

whether the evidence is sufficient, as a ruling that the evidence is insufficient would

1

necessitate an acquittal. State v. Hearold, 603 So.2d 731 (La.1992). In his first pro

se assignment of error, Defendant alleges insufficiency of evidence. Even though we

find that this assignment of error without merit under Hearold, we shall address it

first in our discussion.

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d

900, 902, this court stated:

With regard to sufficiency of the evidence, this court sets forth as
follows in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720
So.2d 724, 726-27:

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 (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.
Therefore, the appellate court should not second-guess the
credibility determination of the trier of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See King, 436 So.2d 559, citing State v.
Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the
elements of the crime beyond a reasonable doubt. In order for this court
to affirm a conviction, the record must reflect that the State has satisfied
this burden of proving the elements of the crime beyond a reasonable
doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d
1367.

Defendant in this case was convicted of one count of forcible rape in

violation of La.R.S. 14:42.1(A), which states in part:

Forcible rape is rape committed when the anal, oral, or vaginal sexual
intercourse is deemed to be without the lawful consent of the victim

2

because it is committed under any one or more of the following
circumstances:

(1) When the victim is prevented from resisting the act by
force or threats of physical violence under circumstances
where the victim reasonably believes that such resistance
would not prevent the rape.

At trial, the State offered the victim’s testimony that Defendant broke

into her motel room, took the money from her purse, and engaged in non-consensual

sex with her. He fondled her breast before having intercourse with her and she

reasonably believed that resisting his advances would not have prevented the rape.

The second offense Defendant was convicted of was aggravated burglary

in violation of La.R.S. 14:60, which states, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited
dwelling, or of any structure, water craft, or movable where a person is
present, with the intent to commit a felony or any theft therein, if the
offender,

(1) Is armed with a dangerous weapon; or

(2) After entering arms himself with a dangerous weapon; or

(3) Commits a battery upon any person while in such
place, or in entering or leaving such place.

Based on the evidence presented, we find that sufficient evidence was

presented to support the charge of forcible rape and aggravated battery. However, we

find, as follows, that the evidence cannot be used to support both charges as that

constitutes a violation of double jeopardy.

3

DOUBLE JEOPARDY

In State v. Cloud, 06-877 (La.App. 3 Cir. 12/13/06), 946 So.2d 265,

269-70, writ denied, 07-0086 (La. 9/21/07), 964 So.2d 331, we summarized the

analysis required in determining double jeopardy:

In State v. Barton, 02-163, pp. 17-18, (La.App. 5 Cir. 9/30/03),
857 So.2d 1189, 1201-02, writ denied, 03-3012 (La.2/20/04), 866 So.2d
817, the court summarized the two tests used by Louisiana courts use
[sic] in examining violations of double jeopardy as follows:

The “distinct fact” test, commonly referred to as the
Blockburger test, is taken from Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306
(1932) as follows:

The applicable rule is that where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one, is whether each
provision requires proof of an additional fact
which the other does not.

Accord, State v. Knowles, 392 So.2d 651, 654
(La.1980).

The second test is the “same evidence” test. In State v. Steele, 387
So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained
that test as follows:

If the evidence required to support a finding of guilt of one
crime would also have supported conviction of the other,
the two are the same offense under a plea of double
jeopardy, and a defendant can be placed in jeopardy for
only one. The test depends on the evidence necessary for
conviction, not all the evidence introduced at trial. . . .

The “same evidence” test is broader than Blockburger, “the
central idea being that one should not be punished (or put in jeopardy)
twice for the same course of conduct.” State v. Steele, 387 So.2d at
1177. Although the Louisiana Supreme Court has accepted both the
Blockburger test and the same evidence test, it has principally relied on

4

the “same evidence” test to evaluate double jeopardy claims. State v.
Miller, 571 So.2d 603, 606 (La.1990).

In his supplemental brief, Defendant alleges his convictions for

aggravated burglary and forcible rape violate the principles of double jeopardy as the

evidence necessary to prove the aggravated burglary offense is the same evidence

necessary to prove the forcible rape offense.

Our review of the record reveals that Defendant in this case was not

armed with a dangerous weapon when he entered the victim’s hotel room, nor did he

arm himself with a dangerous weapon while within. Accordingly, the only possible

theory available to sustain an aggravated burglary conviction is that he committed a

battery while in the room. “Battery is the intentional use of force or violence upon

the person of another. . . .” La.R.S. 14:33. Accordingly, we find that Defendant’s

rape of the victim constituted a battery as defined in La.R.S. 14:33.

In State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, we

vacated an armed robbery conviction on the basis that the defendant had also been

convicted of aggravated burglary, where at trial, the same evidence would have been

used to secure both convictions. The defendant in Joseph kicked down the front door

and entered the home of the victim and took a gun from her. Joseph, 916 So.2d 378.

It was determined at the guilty plea proceedings that the defendant took nothing else

from her. Id. On appeal, the defendant argued that since at the time he broke into the

victim’s home and took the gun from her he was not armed, he could not be charged

with armed robbery. The court in Joseph held:

The state specifically stated that the "taking" upon which the charge of
armed robbery was based was the gun taken from Mrs. Dartez.
Charging the defendant with both aggravated burglary and armed

5

robbery, based upon the same set of facts, clearly violates the "same
evidence" test as set forth in [State v.] Crosby[, 338 So.2d 584
(La.1976),] and [State v.] Steele[, 387 So.2d 1175 (La.1980)].

Id. at 384.

In a recent case, State v. Williams, 07-931, p. 3 (La. 2/26/08), __So.2d

__, __, the supreme court discussed the issue of the State’s recourse when it violated

a defendant’s constitutional right against double jeopardy and stated:

As opposed to quashing the prosecution altogether and setting aside
defendant’s guilty plea and sentence, the court of appeal should have,
assuming the correctness of its premise, reduced defendant’s conviction
to the misdemeanor offense of flight from an officer under R.S.
14:108.1(A) and remanded the case to the trial court for resentencing.

In Williams, the defendant pled guilty to aggravated flight from an officer, in

violation of La.R.S. 14:108.1(C), as well as several other traffic related offenses. Id.

On appeal, the defendant claimed that charging him with aggravated flight from an

officer in conjunction with the underlying traffic offenses constituted a double

jeopardy violation; the appellate court reversed the defendant’s conviction for

aggravated flight from an officer. Id. The supreme court noted that the appellate

court had properly determined that the same evidence of the underlying traffic

offenses was the bases for bringing the aggravated flight from an officer offense, and

thus, a double jeopardy violation occurred. Id. However, as noted above, when

reversing the ruling of the appellate court, the supreme court stated that it was

unnecessary to vacate the prosecution altogether if there was evidence presented at

trial to find the defendant guilty of a lesser included offense that was not barred by

double jeopardy. Id.

6

In our review of the record, we find that sufficient evidence was

presented at trial to find Defendant guilty of simple burglary. La.R.S. 14:62(A)

defines simple burglary as “the unauthorized entering of any dwelling, vehicle,

watercraft, or other structure, movable or immovable, or any cemetery, with the intent

to commit a felony or any theft therein as set forth in R.S. 14:60.” The record

indicates that Defendant broke into the victim’s hotel room and stole between

$180.00 and $200.00 from her purse. Those facts establish the basis for a simple

burglary conviction. Accordingly, we agree with Defendant’s allegation that his

prosecution for both forcible rape and aggravated burglary constituted a double

jeopardy violation and the conviction for the aggravated burglary is reversed.

Joseph, 916 So.2d 378. However, in accordance with Williams, we shall enter a

verdict of guilty of the lesser included offense, simple burglary. Williams, __So.2d

__. See also La.Code Crim.P. art 814(A)(42).

EXCESSIVE SENTENCE

In his second pro se assignment of error, Defendant alleges that his

sentences are excessive. Since we have reversed Defendant’s conviction for

aggravated burglary conviction based on double jeopardy, we will not address his

excessive sentence claim as to that conviction. As the Defendant’s only allegation

is that his sentences are excessive, we will evaluate this claim as a bare claim of

excessiveness.

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

excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive

7

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, 01-0838 (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 also 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,

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

In the instant case, Defendant was convicted of forcible rape, in violation

of La.R.S. 40:42.1. The maximum sentence for said offense is forty years at hard

labor. La.R.S. 40:42.1. For this conviction, the trial court sentenced the Defendant

8

to serve thirty years at hard labor. At sentencing, the trial court reviewed the

Defendant’s criminal history which included: a 1980 conviction in North Carolina

for breaking and entering and larceny; a 1985 conviction for simple assault; a 1994

conviction in North Carolina for distribution of a Schedule II controlled dangerous

substance; a 1994 conviction in North Carolina for possession with intent to

distribute cocaine; a 1996 conviction for simple burglary; a 1991 conviction in North

Carolina for DWI; a 2001 conviction for distribution of a Schedule I controlled

dangerous substance; a 2001 conviction in North Carolina for DWI second; and a

2003 conviction for possession of drug paraphernalia. Also at sentencing, the trial

court considered the aggravating circumstances of the offenses, and stated:

First is the brutality of the crime for which he was convicted and
the evidence at trial showed the following:

The victim, [L.S.], a visitor to Lafayette who was - - who
had rented a room at the Roadway Inn, was awakened
April 15, 1996 at about 3:30 a.m. She was awakened by a
loud crashing sound and the presence of a black male
standing above her in the room. She stated that the
offender demanded money and her car keys or he would
shoot her. [L.S.] gave him a hundred and seventy to two
hundred dollars ($170.00 - $200.00) in cash from her
purse. Mr. Jacobs then removed the bed sheet and
proceeded to rape [L.S.]1

Initially, we note that the sentence is not the maximum that Defendant

could have received. Moreover, we find that the sentence imposed by the trial court

is clearly supported by the record. See State v. Carter, 04-482 (La.App. 5 Cir.

10/26/04), 888 So.2d 928, where the trial court held that a thirty-seven-year enhanced

1
W e use of the initials of the victim in compliance with La.R.S. 46:1844(W ).

9

habitual offender sentence for forcible rape was not excessive. Accordingly,

Defendant’s allegation that his sentence is excessive is without merit.

CONCLUSION

We find that the convictions for aggravated burglary and forcible rape

constitute double jeopardy. Therefore, the conviction for aggravated burglary is

reversed. However, we enter a conviction for simple burglary and remand the matter

for resentencing on the simple burglary conviction. We find no merit in Defendant’s

other assignments of error and affirm the conviction for forcible rape and the sentence

of thirty years at hard labor without benefit of probation, parole, or suspension of

sentence.

AFFIRMED IN PART, REVERSED IN PART, CONVICTION

ENTERED, AND REMANDED FOR SENTENCING.

10

NUMBER 07-1370

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

ROBERT JACOBS

Saunders, J., agrees in part, dissents in part, and assigns written reasons.

I agree with the majority opinion that Defendant’s sentence for forcible rape

was not excessive. However, I disagree with the majority that Defendant’s conviction

for aggravated burglary should be reversed.

Aggravated burglary is defined in La.R.S. 14:60, which states, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited
dwelling, or of any structure, water craft, or movable where a person is
present, with the intent to commit a felony or any theft therein, if the
offender,

(1) Is armed with a dangerous weapon; or

(2) After entering arms himself with a dangerous weapon; or

(3) Commits a battery upon any person while in such
place, or in entering or leaving such place.

The majority finds that under the “same evidence” test in State v. Steele, 387

So.2d 1175 (La.1980), Defendant’s convictions for aggravated burglary and forcible

rape violate the principles of double jeopardy as the evidence necessary to prove the

aggravated burglary offense is the same evidence necessary to prove the forcible rape

offense. I do not agree.

Our rape statute, La.R.S. 14:41, states that “any sexual penetration, when the

rape involves vaginal or anal intercourse, however slight, is sufficient to complete the

Page 1 of 3

crime.” Louisiana Revised Statute 14:33 defines battery, in pertinent part, as “the

intentional use of force or violence upon the person of another . . . .”

Defendant was convicted of forcible rape in violation of La.R.S. 14:42.1(A),

which states in part:

Forcible rape is rape committed when the anal, oral or vaginal sexual
intercourse is deemed to be without the lawful consent of the victim
because it is committed under any one or more of the following
circumstances:
(1) When the victim is prevented from resisting the act by
force or threats of physical violence under circumstances
where the victim reasonably believes that such resistance
would not prevent rape.

Our supreme court, in State v. Ordodi, 06-207, pp. 14-15 (La. 11/29/06), 946

So.2d 654, 662, overturned this court’s reversal of a conviction by stating, “[i]n

reviewing the evidence of the defendant’s actions . . . we cannot say that the jury’s

determination is irrational under the facts and circumstances presented to them.” I

read Ordodi to stand for the principle that we should uphold a conviction if we can

find that the totality of the circumstances give the jury a rational basis to find a certain

element of a crime, regardless of whether the court or jury can elucidate which

specific action(s) made the finding rational.

In the present case, the victim testified that Defendant fondled her breasts after

he had entered the dwelling she was inhabiting without authorization. Thus, the jury

rationally could have found that Defendant, once he entered the hotel room,

committed a garden variety battery upon the victim prior to committing the battery

by penetration necessary to constitute forcible rape. Such a finding would necessitate

upholding Defendant’s conviction for aggravated burglary.

Fondling the victim’s breasts would serve as the battery necessary after

entering the inhabited dwelling in order for Defendant to be guilty of aggravated

Page 2 of 3

burglary. However, it would not serve as the specific type of battery necessitated by

forcible rape, i.e. “anal, oral or vaginal sexual intercourse” or even generic rape, “any

sexual penetration.” Had Defendant entered the room, fondled the victim’s breasts,

then left, he could not be convicted of forcible rape, but he could have been convicted

of aggravated battery.

Here, two mutually exclusive sets of evidence exist in order to convict

Defendant of both aggravated burglary and forcible rape.

In regards to aggravated burglary, Defendant:

! 1) entered an inhabited dwelling without authorization (the hotel room);

! 2) where a person is present (the victim);

! 3) with the intent to commit a felony or theft therein; and

! 4) committed a battery upon any person while in such place (fondled the

victim’s breasts).

In regards to forcible rape, per the victim’s testimony, Defendant:

! 1) had anal, oral or vaginal sexual intercourse with her;

! 2) without her lawful consent;

! 3) when she was prevented from resisting the act by force or threats of physical

violence where she reasonably believed that resisting his advances would not

have prevented the rape.

I think that it is clear that these are two separate courses of conduct proven by

mutually exclusive sets of evidence. Neither require the “same evidence” to prove

every element of each crime. Therefore, I feel that Defendant’s conviction for

aggravated burglary should be affirmed.

Page 3 of 3