State of Louisiana v. Wilbert Joseph John

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-19

STATE OF LOUISIANA

VERSUS

WILBERT JOSEPH JOHN

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 107,139
HONORABLE KRISTIAN DENNIS EARLES, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, James T. Genovese and Shannon J. Gremillion,
Judges.

CONVICTIONS AFFIRMED; SENTENCE FOR FORCIBLE RAPE
AFFIRMED; SENTENCE FOR SIMPLE KIDNAPPING VACATED;
REMANDED FOR RESENTENCING.

Michael Harson, District Attorney
Cynthia K. Simon, Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
COUNSEL FOR DEFENDANT-APPELLANT:
Wilbert Joseph John

COOKS, Judge.

Defendant, Wilbert Joseph John, appeals his convictions and sentences on the

charges of forcible rape and simple kidnapping. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 7, 2005, the victim, a twenty-year-old college student at Tulane

University, was in Lafayette, Louisiana to participate in an engineering competition

at a civil engineering conference held at the University of Louisiana, Lafayette. She

had never been to Lafayette before and did not know, nor had she ever seen

Defendant.

The victim, along with several friends, drove to the Keg, a popular college bar.

Around 9:00 p.m., the victim and her friends decided they should return to their hotel

because they had to get up early in the morning to prepare for the competition.

Before leaving, the victim went to the restroom, but when she returned, she did not

see her friends. She walked outside to look for her friend’s car. Defendant

approached the victim in the parking lot, walked up behind her, grabbed her by her

wrists and began making small talk. The victim pleaded with Defendant to let her go

so she could find her friends, but instead, Defendant insisted on “showing her a good

time.”

When Defendant began to pull the victim away from the area, she squatted

down, making herself dead weight. He continued to drag her across the ground,

telling her to get up and come on or else he would beat her. When she did not

comply, Defendant punched her in the face and threatened to hurt her if she did not

go with him. The victim then tried to placate Defendant. She got up and he started

to lead her away from the parking lot. The two continued to walk for about twenty

minutes, and during that time, the victim tried to bargain with Defendant, even

-1-

offering him money if he would let her go. Defendant eventually stopped in a

secluded area that looked like a construction site, pushed the victim down on a

concrete slab, and forced her to have sexual intercourse.

Afterwards, Defendant threw the victim’s pants to her, told her to put them

back on, and then they began to walk again. When they approached a convenience

store, the victim convinced Defendant to let her enter the store to get money to give

him. While inside, the victim pretended to be getting money from the clerk and

informed the clerk that she had been assaulted and to call the police. Defendant

walked away before the police arrived.

The victim was taken to the hospital where a rape kit was obtained. Semen

from the victim’s vagina was submitted for DNA analysis. Several months later, the

DNA from the rape kit was matched to a sample of DNA belonging to Defendant. A

lineup of six men, including Defendant was then e-mailed to the victim who

immediately identified Defendant as the perpetrator.

Defendant was charged by bill of information with forcible rape, a violation of

La.R.S. 14:42.1, and aggravated kidnapping, a violation of La.R.S. 14:44. Defendant

motioned the trial court to enter a plea of not guilty and not guilty by reason of

insanity. Defendant also motioned the trial court for appointment of a Sanity

Commission which was granted. Following the sanity hearing, the trial court ruled

Defendant possessed the mental capacity to proceed to trial.

Prior to commencement of trial, the State filed an amended bill of information

reducing the original charge of aggravated kidnapping to simple kidnapping. By a

unanimous jury verdict, Defendant was found guilty as charged. Defendant moved

for a post judgment verdict of acquittal which was denied. After waiving sentencing

delays, Defendant was sentenced to forty years at hard labor for forcible rape, without

-2-

benefit of probation, parole or suspension of sentence, and to five years at hard labor

for simple kidnapping, to run consecutively to his sentence for forcible rape.

Defendant’s oral motion to amend his sentences was denied. Defendant lodged this

appeal, asserting three assignments of error involving his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, Defendant argues the evidence was not sufficient

to prove forcible rape or simple kidnapping because the State failed to prove lack of

consent. In the alternative, Defendant contends the State did not prove the victim was

prevented from resisting the alleged rape.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Forcible rape is defined in La.R.S. 14:42.1(A)(1) which provides:

A. 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 the rape.

-3-

Simple kidnapping is defined as “[t]he intentional and forcible seizing and carrying

of any person from one place to another without his consent.” La.R.S. 14:45(A)(1).

Defendant contends the State did not prove the victim did not consent to the

alleged rape. Defendant asserts, first, that the victim did not attempt to attract the

attention of patrons at the bar or surrounding clubs by yelling or screaming for help

and she did not resist once she left the parking lot. Further, Defendant complains

that, according to the victim, she was a virgin at the time of the alleged offenses, but

was unable to say if she experienced bleeding after intercourse. Defendant is also

critical of the victim’s inability to show officers where the offense occurred on the

day following the offenses.

Defendant points out while walking to the store after the alleged offenses, he

gave her his sweatshirt to keep her warm. Defendant asserts that once the victim was

in the store, she did not ask the clerk to lock the doors for protection; but instead,

walked to the door, opened it, and returned Defendant’s sweatshirt. Finally,

Defendant maintains the convenience store’s surveillance footage reveals the victim

was in control and even smiled at the clerk.

Although the Defendant’s assertion that the victim did not scream for help is

supported by the record, the victim’s testimony at trial, nonetheless, indicates she did

not willingly leave the bar and resisted when Defendant began to take her from the

parking lot. First, the victim testified Defendant physically restrained her in the

parking lot and then pulled her away from the lot. She explained Defendant walked

up behind her and grabbed her by the wrists. Defendant then began to make small

talk, asking her where she was from. The victim testified she was very nervous at this

time and told him she was not from the area and was looking for her friends.

Defendant then told her to come along and he would show her a good time. The

-4-

victim declined Defendant’s offer, but he continued to restrain her by the wrists and

proceeded to pull her away from the parking lot.

Next, the victim testified about her struggle to get away. As Defendant was

pulling the victim away, he continued to tell her that he was going to show her a good

time. The victim kept repeating that she had to get back to her friends because they

were going to be looking for her. When he continued to pull her away from the area,

she squatted down, making herself dead weight. The victim explained she was

wearing flip-flops, and he began to drag her across the ground. Defendant kept

telling her to get up and come on or else he would beat her. The victim continued to

stay low and Defendant was unable to move her. At that time, Defendant punched

her in the face and continued to threaten to harm her if she did not comply.

The victim testified she was shocked after Defendant hit her, and to avoid

being punched again, she tried to placate or cooperate with him. Defendant still had

his hand on her wrists as she got up and was led away from the parking lot. At that

time, the victim stated she stopped trying to escape, but began trying to verbally

convince Defendant to let her go.

The victim bargained with Defendant, telling him she was “no good” and that

he did not want her. She even offered him money. According to the victim, money

was not what Defendant wanted. The victim also described moments when she would

occasionally stop walking. Those attempts to resist, however, were thwarted by

Defendant’s threats to harm her again. All the while, Defendant was making sexual

comments to her about how he wanted to sexually abuse her. The victim maintained

there was never a time when she did not try to talk the Defendant out of acting on his

threats.

The record also indicates the victim did not consent to sexual intercourse,

-5-

despite her inability to say whether or not she experienced bleeding after intercourse.

After walking through a field, they stopped at what the victim described as an open

construction site with a concrete slab and an overhang. At that point, the victim

thought Defendant was going to sexually assault her and she started pleading for him

not to rape her. Despite her pleas, Defendant pushed the victim down onto the

concrete, straddled her, pulled off her pants, grabbed her shoulders and proceeded to

sexually assault her.

The victim also testified that during the assault, Defendant became angry and

was yelling at her, asking her why she did not like it and what was wrong with her.

The victim continued to fear for her safety, believing he would hit her again.

Afterwards, Defendant instructed the victim to put her pants back on, then took her

by the arm and they began walking again. According to the victim, Defendant

suddenly became very apologetic and started telling her that he was sorry. The victim

stated she was shaking badly and felt cold, so Defendant gave her his sweatshirt to

keep her warm.

The victim was eventually able to escape from Defendant. As they were

walking along, they came upon a convenience store. Defendant asked for the money

the victim had offered him earlier. According to the victim, she convinced Defendant

to let her go into the store to get money with her ATM card. While in the store, the

victim pretended to be obtaining money from the clerk. Instead, the victim informed

the clerk she had been assaulted and instructed the clerk to call the police. While

waiting for the police, Defendant was standing outside the door and motioned for her

to return his sweatshirt. The victim removed the sweatshirt, walked to the door, threw

it out the door to Defendant, who then walked away.

The Defendant suggests the victim’s actions while in the store show she was

-6-

in control, and thus, demonstrated there was no lack of consent in leaving the bar and

having sexual intercourse with him. Instead of asking the clerk to lock the doors, the

victim returned his sweatshirt, and even smiled at the clerk while in the store. The

victim’s testimony, however, reflects just the opposite. The victim was afraid of

further harm by Defendant, and up to that point, she had complied with his demands

to avoid being hurt. Also, the police had not yet arrived to ensure her safety. There

is no evidence that the victim entered the store for any other reason than to seek help.

Lastly, we were unable to see any instance where the victim smiled at the clerk on the

convenience store’s surveillance footage submitted into evidence. The details of the

victim’s facial features are not obvious.

Lastly, the victim’s testimony and that of the officers concerning the

investigation that followed the alleged offenses further support the victim’s

contention that she did not consent to the offenses. The victim was taken to the

hospital where she had a sexual assault exam performed. The victim stated that

several people were trying to calm her down. At one point, the victim started crying

and had to be left alone. The victim testified the wounds demonstrated in the

photographs occurred during the assault and they were not present prior to her

abduction.

The crime scene investigator, Sergeant Kristen Bayard, from the Lafayette

Police Department, identified the photographs taken of the victim at the hospital that

were offered into evidence. Sergeant Bayard observed that the victim had a contusion

to her left cheek and eye area and had scratches on her cheek, left arm and back. The

victim reported that she sustained the injuries when Defendant assaulted her.

The first officer to respond to the convenience store was Officer Jarvis

Mayfield of the Lafayette Police Department. Officer Mayfield testified the victim

-7-

was trembling and was holding her left eye. The victim’s left eye was semi-bloody

and almost swollen shut. The victim reported she had been raped by an unknown

black male after being pulled away from the Keg. The victim indicated she did not

voluntarily leave with Defendant. She explained to Officer Mayfield that the

unknown male approached her in the parking lot, made small talk and then

immediately grabbed her by the wrists and pulled her away. During the abduction,

Defendant punched her in the face and later, she was sexually assaulted.

Sergeant Reginald Thomas also investigated the alleged offenses. Sergeant

Thomas testified when he first met the victim at the hospital, she had a large

blackened eye that was badly swollen. According to Sergeant Thomas, the victim

was very frightened and she was still shaking. The victim stated that Defendant

approached her, attempted to make small talk, then began to pull her by her wrists.

When she tried to pull away, he punched her. The victim gave Sergeant Thomas a

description of her attacker. She also indicated she did not go with Defendant

voluntarily, but went along with him out of fear. The victim explained that Defendant

kept pulling her and threatening to harm her and was able to get her away from the

area. After he punched her, the victim feared for her life and then walked along with

Defendant.

With regard to the assault, the victim reported to Sergeant Thomas that

Defendant pulled her to the cement, ripped off her pants and began to have sex with

her. She stated she tried to resist at first, but Defendant punched her. The victim then

feared for her life and thought if she went along with Defendant, she could survive.

According to Sergeant Thomas, the victim stated she did not consent to going with

or having sex with Defendant.

Considering the testimony and evidence presented at trial, we find the evidence

-8-

was sufficient to prove the victim did not willingly leave the parking lot with

Defendant, nor did she consent to sexual intercourse. The victim was initially

restrained by the wrists. After she was struck in the face by Defendant, she was

prevented from resisting by continuous threats of additional harm, leading her to

believe that any further resistance would not prevent the rape. As noted in State v.

Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied,

04-583 (La. 7/2/04), 877 So.2d 143:

In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual finding. State v. Stec,
99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case
of sexual offenses, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even where the State does not
introduce medical, scientific or physical evidence to prove the
commission of the offense.

See also State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 488.

Accordingly, the victim’s testimony was sufficient to prove lack of consent, and thus,

Defendant’s convictions are affirmed.

ASSIGNMENT OF ERROR NO. 2

By this assignment or error, Defendant argues the trial court’s finding that

Defendant was competent to stand trial was erroneous. Defendant complains that not

only were the examining physicians unable to evaluate him using the criteria set forth

in State v. Bennett, 345 So.2d 1129 (La.1977), the trial court applied the incorrect

burden of proof. The trial court’s written ruling states, “In weighing the positive

findings by Dr. McDonald that the defendant is able to stand trial, against the

inconclusive evaluation of Dr. Escalona, the court fails to find clear and convincing

evidence that the defendant lacks the mental capacity to proceed.” (emphasis added).

In State v. Carmouche, 01-405, p. 30 (La. 5/14/02), 872 So.2d 1020, 1041, the

supreme court stated:

-9-

Louisiana’s statutory scheme for detecting mental incapacity
jealously guards a defendant’s right to a fair trial. In Louisiana,
“[m]ental incapacity to proceed exists when, as a result of mental
disease or defect, a defendant presently lacks the capacity to understand
the proceedings against him or to assist in his defense.” La.C.Cr.P. art.
641. Our law also imposes a legal presumption that a defendant is sane
and competent to proceed. La. R.S. 15:432. Accordingly, the defendant
has the burden of proving by a preponderance of the evidence his
incapacity to stand trial. A reviewing court owes the trial court’s
determinations as to the defendant’s competency great weight, and the
trial court’s ruling thereon will not be disturbed on appeal absent a clear
abuse of discretion . . . [citations omitted].

See also State v. Anderson, 06-2987 (La. 9/9/08), 996 So.2d 973, cert. denied,

___U.S. ___, 129 S.Ct. 1906 (2009).

Defendant also refers to State v. Burmaster, 97-517 (La.App. 3 Cir. 2/25/98),

710 So.2d 274, wherein the trial court did not allude to the burden of proof used in

determining whether the defendant proved his incompetency. On appeal, the court

was faced with determining whether the trial court erred in requiring proof of

incompetency beyond the preponderance of the evidence standard. Two qualified

physicians examined the defendant and found him to be competent to stand trial, and

no contradictory evidence was adduced. Accordingly, the court concluded this

defendant failed to prove he was incompetent by a preponderance of the evidence.

In this case, the State does concede the trial court applied the incorrect burden

of proof, but maintains Defendant failed to prove his incapacity to stand trial under

the lesser standard of preponderance of the evidence. In making its argument, the

State refers to State v. Silva, 96-407 (La.App. 4 Cir. 9/3/97), 699 So.2d 487, writ

denied, 97-2578 (La. 1/30/98), 709 So.2d 704, wherein the trial court did not identify

the standard relied upon in finding the defendant competent to proceed. A review of

the transcript, however, revealed that the defendant failed to prove his incapacity to

proceed under the lesser standard.

In the instant case, Defendant maintains without a recorded contradictory

-10-

hearing, it is impossible to determine the outcome had the trial court applied the

correct standard. The record reflects that a hearing was not held because both the

State and Defendant agreed in a written supplemental order that the court should

render a decision based upon the reports from the two physicians appointed for the

Sanity Commission, Drs. Catherine McDonald and Daniel M. Escalona. As such,

there is no hearing transcript to review. The trial court, however, issued a Written

Ruling which included its reasons for ruling which we have reviewed.

Defendant maintains that neither physician adhered to the criteria set forth in

State v. Bennett, 345 So.2d 1129, 1138 (La.1977), which are stated as follows:

[W]hether [t]he [defendant] understands the nature of the charge
and can appreciate its seriousness; whether he understands what
defenses are available; whether he can distinguish a guilty plea from a
not guilty plea and understand the consequences of each; whether he has
an awareness of his legal rights; and whether he understands the range
of possible verdicts and the consequences of conviction.

Defendant asserts neither physician was able to examine him in light of these criteria

due to his failure to cooperate. The State contends Defendant’s refusal to cooperate

does not indicate an erroneous decision by the trial court, but goes to his failure to

meet his burden of proving his incapacity to proceed.

The report of Dr. McDonald dated December 7, 2006, concluded Defendant

was able to stand trial. In reaching this conclusion, Dr. McDonald noted Defendant’s

history of extensive drug abuse and that Defendant has an antisocial personality. Dr.

McDonald had difficulty evaluating Defendant’s cognitive status because he refused

to participate in cognitive testing. Defendant, however, talked freely about his social

history and drug use. Dr. McDonald subsequently determined Defendant understood

the charges, was aware of what a lawyer does and possessed a general idea of the

court proceedings.

In Dr. Escalona’s report dated August 14, 2007, he notes Defendant was

-11-

uncooperative and refused to speak with him. Dr. Escalona was unable to elicit any

information from Defendant, but observed he was very guarded and paranoid.

Accordingly, Dr. Escalona indicated his evaluation was not valid.

The jurisprudence reflects that a trial court may find a defendant competent to

stand trial in situations where the defendant refuses to cooperate with physicians

appointed to perform a competency evaluation. In State v. Holmes, 393 So.2d 670

(La.1981), the defendant refused to cooperate with the competency evaluations.

Without opinions from the evaluating physicians, the trial court opted to question the

defendant about his competency.

In affirming the trial court’s ruling, the court stated:

We find no error in this procedure. It is ultimately the responsibility of
the judge to determine whether a defendant possesses the mental
capacity to proceed to trial. C.Cr.P. 647. The report of the sanity
commission is admissible as evidence, but it cannot be used as a
substitute for the court’s own judgment. Moreover, a trial judge’s
determination of a defendant’s capacity to stand trial is entitled to great
weight. Here, the trial judge did not refuse to accept the opinion of
medical experts: no opinion as to the defendant’s capacity to stand trial
was offered, other than the suspicion that defendant was malingering.
The issue is not whether the sanity commission usurped the judge’s
function, but whether the judge could reasonably make a determination
of defendant’s present sanity when the doctors could not.

Id. at 672-73 (Citations omitted). The court then proceeded to consider the evidence

adduced at the sanity hearing and the decision of the trial court in light of the

considerations set forth in Bennett.

Although both physicians in Holmes stated additional time was needed to

determine whether the defendant’s lack of cooperation was genuine or feigned, the

court noted that the problem did not lie with the thoroughness of the evaluation, but

involved the futility of examining the defendant. Also, the court observed that no

allegations had been made as to the conscientiousness of the two physicians in

attempting to complete the evaluations for which they had been appointed. The trial

-12-

court subsequently relied upon its observations of the defendant’s outward demeanor

and his occasional demonstration of his recollection of significant events and his

extensive history of criminal activity to conclude that the defendant had an awareness

of his legal rights and the consequences of a conviction. Although the defendant had

a sixth grade education, there was no evidence he was mentally retarded or had ever

been treated for mental illness.

Soon after the opinion in Holmes, the supreme court was presented with the

same issue in State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S.

945, 102 S.Ct. 2011 (1982). Once more, the supreme court affirmed the trial judge’s

finding of competency despite the defendant’s refusal to cooperate with his

competency evaluations. The court noted that although the defendant’s “general lack

of cooperation and his unresponsive and flippant answers” caused the physicians to

opine he should be observed for a longer period of time to determine his mental

status, neither physician expressed the opinion he was incapable of proceeding to

trial. Id. at 1342.

In finding the defendant was competent to stand trial, the Edwards court

referred to its ruling in Holmes and reiterated that a defendant cannot prove his

incapacity to stand trial by refusing to cooperate with the evaluations of the

physicians. The court observed that the trial court’s assessment of the defendant’s

capacity was aided by its observations of the defendant at various pretrial hearings.

The issue was indirectly addressed in a more recent case, State v. Perkins, 00-9

(La.App. 5 Cir. 5/17/00), 759 So.2d 334, writ denied, 00-1826 (La. 4/26/02), 813

So.2d 1098. In Perkins, the defendant refused to cooperate with his competency

evaluation, but rather than ruling on his competency, the trial court failed to render

a decision. On appeal, the defendant’s conviction was subsequently reversed. In

-13-

addressing the necessity for a ruling on the defendant’s capacity to proceed, despite

his failure to cooperate, the court expounded:

It is the defendant’s burden to prove his incapacity to stand trial. State
v. Edwards, 406 So.2d 1331 (La.1981). There is a presumption under
Louisiana law that a defendant is sane, and he bears the burden of
proving, by a preponderance of the evidence, that he is incapable of
standing trial due to a mental disease or defect. State v. Hernandez,
98-448 (La.App. 5 Cir. 5/19/99), 735 So.2d 888.

A court may receive expert medical testimony on the issue of a
defendant’s mental capacity to proceed; however, the ultimate decision
of competency rests with the court alone. State v. Hernandez, supra.
The defendant’s cooperation, or lack thereof, is one factor for the trial
judge to consider in his determination of competency. The defendant
cannot prove his incapacity to stand trial merely by having stymied the
efforts of the Sanity Commission. State v. Edwards, citing State v.
Holmes, 393 So.2d 670 (La.1981). Likewise, the defendant's failure to
cooperate with the Sanity Commission does not negate the necessity for
a ruling on the defendant’s mental capacity to proceed to trial.

Id. at 337.

A similar issue was addressed by the supreme court in State v. Bright, 97-2938

(La. 12/19/97), 706 So.2d 1386. In Bright, the State sought to determine the

defendant’s sanity at the time of the offense after the defendant entered a dual plea

of not guilty and not guilty by reason of insanity. The defendant, however, refused

to cooperate with the State’s examining physician. In granting writs to the State, the

court stated, “Because the defendant has placed his mental status at issue in the guilt

phase of trial by entering a dual plea of not guilty and not guilty by reason of insanity,

he may not refuse to cooperate in a mental examination conducted by an expert of the

state's choosing and may not refuse to answer the questions posed by the state’s

expert to determine his sanity at the time of the offense. La.C.Cr.P. art. 646 (citations

omitted).” Id. at 1386. The defendant was subsequently ordered to either submit to,

and cooperate fully with, an examination by the State’s expert or withdraw his dual

plea of insanity and enter a single plea of not guilty.

-14-

In the instant case, Defendant entered a dual plea of not guilty and not guilty

by reason of insanity and motioned the trial court to appoint a Sanity Commission.

As such, Defendant placed his mental status at issue in the guilt phase of trial, but

later refused to cooperate with the physicians appointed to the Sanity Commission.

Defendant now claims neither physician received the cooperation necessary to render

a finding on his mental capacity to proceed, and thus, the trial court’s decision finding

him competent to proceed to trial was erroneous.

We find Defendant’s reasoning misguided. First, Defendant overlooks his

burden of proof in showing that he did not have the capacity to stand trial. The fact

that he refused to cooperate with the evaluations does not negate this burden.

Perkins, 759 So.2d 334. Not only did Defendant fail to submit any evidence to show

he was incompetent to stand trial, but Dr. McDonald concluded Defendant was able

to stand trial, despite his lack of cooperation with the evaluation. Also, Dr.

McDonald briefly addressed pertinent Bennett criteria in her evaluation and opined

that Defendant understood the charges against him, that his lawyer was there to

defend him, and that he had a general idea of the court proceedings. Further, Dr.

Escalona did not render an opinion finding Defendant incompetent to stand trial. He

only indicated Defendant’s lack of cooperation prevented him from being able to

perform a valid evaluation. Lastly, Defendant does not allege that Drs. McDonald

and Escalona were not conscientious in attempting to complete their evaluations.

Without any evidence of the Defendant’s incompetency to stand trial, in

addition to Dr. McDonald’s opinion that the Defendant was competent to proceed to

trial, we cannot say the trial court’s ruling was erroneous, even using the lesser

standard of preponderance of the evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

-15-

By this assignment of error, Defendant argues his sentences are excessive.

Because an error patent exists with regard to the Defendant’s sentence for simple

kidnapping, we find that sentence must be vacated. As such, only the sentence for

forcible rape is reviewed herein for excessiveness.

Following sentencing, Defendant orally moved to amend his sentence, asserting

that it was severe in light of his non-violent past record. The motion was denied.

Defendant did not file a written motion to reconsider his sentences.

On appeal, Defendant contends the trial court relied solely on his prior

conviction for non-violent offenses, that it failed to consider his mental status as a

mitigating factor, and that it failed to adequately consider the factors of La.Code

Crim.P. art. 894.1. Defendant, however, did not set forth these allegations when he

orally motioned the trial court to amend his sentence. Pursuant to La.Code Crim.P.

art. 881.1, Defendant’s failure to include these specific grounds in his motion

precludes him from urging same for the first time on appeal. Thus, Defendant’s

allegations regarding the factors considered by the trial court in sentencing him are

not properly before this court and will not be considered herein. State v. Grogan,

00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862.

This court has 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
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 [p.5] (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

-16-

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.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] 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,

03-562 (La. 5/30/03), 845 So.2d 1061.

At sentencing, the trial court first confirmed that Defendant waived the

seventy-two hour delay before imposing sentence. Regarding the first two Smith

factors, the trial court noted it had reviewed Defendant’s “rap sheet” and considered

only the actual convictions. The trial court then stated, “after reviewing your criminal

history, and noting that this is your fourth (4th) felony conviction, I’m going to give

you the maximum, which is forty (40) years, without benefit of parole, probation of

[sic] suspension of sentence.” As noted above, Defendant moved to reduce his

sentence in light of his non-violent past record, and the trial court responded:

I think this is a stranger crime. This is a crime that was committed by a
stranger on an individual, in our community, without any consent of the
victim, which is one of the scariest crimes that our community faces.
The brazenness of what you’ve done, by dragging this girl - -

-17-

Defendant interrupted the trial judge, stating, “I ain’t did nothing.” The trial court

responded:

Well, I understand, but you’ve been convicted. But, the brazenness of
dragging this woman off and doing what you did is the reason I
sentenced you so severely.

The sentencing range for forcible rape is five to forty years with at least two

years to be imposed without benefit of probation, parole or suspension of sentence.

La.R.S. 14:42.1. As such, Defendant received the maximum possible sentence. The

courts agree that maximum sentences are typically reserved for the most serious

offenses and the most egregious offenders. See State v. Baker, 08-54 (La.App. 3 Cir.

5/7/08), 986 So.2d 682.

Regarding the final Smith factor, the jurisprudence reflects the maximum forty-

year sentence for forcible rape has been imposed and affirmed in several cases. In

State v. Hawkins, 06-739 (La.App. 5 Cir. 9/25/07), 968 So.2d 1082, writ denied, 07-

2272 (La. 4/18/08), 978 So.2d 347, the forty-one-year-old defendant was convicted

of forcible rape and aggravated crime against nature involving his eighteen-year-old

niece. He was sentenced to forty years and in sentencing that defendant, the trial

court took into account the evidence presented at trial and the Pre-Sentence

Investigation Report (PSI) that detailed an extensive criminal history. The trial court

also considered the testimony of the victim, the severity of the crimes, and the threats

and force used to commit the crimes. In affirming the sentences on appeal, the court

compared the defendant’s sentence for forcible rape to two other cases which also

upheld the maximum sentence for forcible rape convictions:

In State v. Riche, 608 So.2d 639 (La.App. 5 Cir. 10/27/92), writ
denied, 613 So.2d 972 (La.1993), this Court upheld a forty year sentence
for a defendant convicted of forcible rape. In Riche, the defendant raped
the victim at knife point.

In State v. Williams, 00-981 (La.App. 5 Cir. 4/11/01), 786 So.2d

-18-

805, 813-814, writ denied, 2001-1377 (La.3/28/02), 812 So.2d 646, this
Court upheld a maximum sentence of 40 years [where] the defendant
vaginally raped the victim twice and attempted anal intercourse. When
the victim tried to escape, the defendant punched her in the face. The
defendant also threatened to kill her with a knife. In addition, he caused
her to be raped by a second man. State v. Williams, 786 So.2d at
813-814.

Id. at 1096.

In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03), 862 So.2d 440, the

nineteen-year-old defendant pled guilty to the reduced charge of forcible rape and to

aggravated burglary and was sentenced to consecutive maximum sentences of forty

years and thirty years at hard labor. The defendant broke into the home of the fifty-

two-year-old victim and threatened to harm her if she did not do whatever he said.

He subsequently committed oral sexual battery on the victim, forced her to perform

fellatio, and then proceeded to have vaginal intercourse with the victim. The

defendant then left in the victim’s car.

In sentencing the defendant, the trial court considered the defendant’s

Pre-Sentence Investigation Report. The trial court noted at the time of the offenses,

the defendant was a deserter from the U.S. Navy. The defendant had three

misdemeanor convictions, but the offenses before the court were his first felony

convictions. Although he dropped out of school in tenth grade, he had obtained his

GED. The defendant began abusing drugs at an early age, including LSD, ecstasy,

marijuana and prescription medications. His medical history included a diagnosis of

impulse control disorder, but he chose to stop taking prescribed medication.

In State v. Gray, 36,389 (La.App. 2 Cir. 9/18/02), 828 So.2d 176, consecutive

forty-year sentences were affirmed for forcible rape. The thirty-one-year-old

defendant pled guilty to two counts of forcible rape reduced from aggravated rape,

in exchange for the State’s agreement not to charge him as a habitual offender and to

-19-

dismiss charges of attempted aggravated rape, simple robbery and simple kidnapping.

The victims were assaulted in the same washateria, two weeks apart. After

threatening to break the neck of his victims, he proceeded to have non-consensual

vaginal intercourse with the victims. After the assault, the defendant took $8 from

the first victim and cash and a cellular phone from the second victim.

At sentencing, the trial court considered the PSI which revealed that the

defendant failed to complete high school, had a sporadic work history and had a

lengthy criminal record, including forty-five arrests as an adult. Most of the offenses

were crimes against the person. The trial court also reviewed the facts of the case,

noting the defendant’s claims that the victims had come on to him, the evidence

which indicated that he was guilty of aggravated rapes, his plea bargain which

drastically reduced his sentencing exposure, his calculated and deliberate cruelty to

the victims, the risk of great bodily harm to both victims, the significant and

permanent psychological injury to both victims, that the offenses were committed

without any provocation, excuse or justification and that the defendant would likely

continue with heinous criminal conduct.

In the instant case, the trial court did not elaborate on the factors considered at

sentencing other than Defendant’s criminal history and the seriousness of the crime.

Defendant was sentenced directly following his conviction, and thus, the trial court

was privy to the testimony and evidence presented just prior to sentencing. Also, due

to the waiver of the sentencing delay, a PSI was not ordered.

The testimony of the victim, a young college student at the time of the offense,

indicated that she traveled from Connecticut to testify at Defendant’s trial. She

described both the physical force and threats of violence used by the Defendant to

commit of the offense. Additionally, the victim testified that she was a virgin prior

-20-

to the offense and was visiting Lafayette, Louisiana for her first time in anticipation

of a scholastic event. The physical evidence and Defendant’s DNA confirmed he did,

in fact, have sexual intercourse with the victim. Also, the photographs of the victim

admitted into evidence demonstrated the injury to her face and eye as well as

scratches and scrapes about her body. Taking the details of the assault into account

and the extensive criminal history of the Defendant, we find the trial court did not

abuse its discretion in imposing the maximum sentence for forcible rape.

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, there are two

errors patent.

First, we note Defendant’s sentence for simple kidnapping was indeterminate.

Simple kidnapping is punishable by imprisonment with or without hard labor. The

commitment and court minutes of sentencing reflect the trial court imposed this

sentence at hard labor; however, the transcript reveals the trial court did not so

specify. In imposing Defendant’s sentence, the court stated, “[a]nd for the crime of

simple kidnapping, I’m going to give you five (5) years. And I’m going to run that

consecutive with the forty (40) years.” Thus, the court imposed an indeterminate

sentence. Accordingly, Defendant’s sentence for simple kidnapping should be

vacated, and the case remanded for the imposition of a determinate sentence, with the

trial court being instructed to specify whether the sentence is to be served with or

without hard labor. State v. Matthew, 07-1326 (La.App. 3 Cir. 5/28/08), 983 So.2d

994, State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied,

07-1243 (La. 12/14/07), 970 So.2d 531, and State v. Loyden, 04-1558 (La.App. 3 Cir.

4/6/05), 899 So.2d 166.

-21-

Finally, the record does not indicate the trial court advised Defendant of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of

La.Code Crim.P. art. 930.8 at resentencing.

DECREE

For the foregoing reasons, Defendant’s convictions are affirmed. His sentence

for forcible rape is affirmed. For the reasons previously set forth, Defendant’s

sentence for simple kidnapping is vacated, and the case remanded for the imposition

of a determinate sentence, with the trial court instructed to specify whether the

sentence is to be served with or without hard labor. The trial court is also directed to

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 at resentencing.

CONVICTIONS AFFIRMED; SENTENCE FOR FORCIBLE RAPE
AFFIRMED; SENTENCE FOR SIMPLE KIDNAPPING VACATED;
REMANDED FOR RESENTENCING.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

-22-