State of Louisiana v. Letrakus Tyler AKA Trey Tyler

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1256

STATE OF LOUISIANA

VERSUS

LETRAKUS TYLER
A/K/A TREY TYLER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 124350
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Michael Harson
District Attorney Fifteenth Judicial District
James Nathan Prather, Jr., Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Letrakus Tyler a/k/a Trey Tyler

GENOVESE, Judge.

In this criminal case, Defendant, Letrakus Tyler, a/k/a Trey Tyler, appeals

his convictions of aggravated rape, attempted first degree murder, and aggravated

burglary. He assigns as error insufficient evidence to support his conviction of

attempted first degree murder, trial court error in allowing him to waive his right to

a jury trial, and double jeopardy when he was convicted of both aggravated

burglary and aggravated rape. For the following reasons, we affirm Defendant’s

convictions in their entirety and instruct the trial court to inform Defendant of his

post-conviction relief rights.

FACTS AND PROCEDURAL HISTORY

On March 8, 2009, Defendant entered the home of D.C.,1 a ten-year-old girl,

through her bedroom window and raped her. During the act of rape, Defendant

held his hand over D.C.’s mouth, held her neck, tried to smother her with his shirt,

threatened to kill her, and struck her several times on the back. Defendant was the

ex-boyfriend of D.C.’s mother, and a protective order was in effect at the time of

the offenses.

Defendant was charged on May 13, 2009, by grand jury indictment with

aggravated rape, a violation of La.R.S. 14:42; attempted first degree murder, a

violation of La.R.S. 14:27 and La.R.S. 14:30; and, aggravated burglary, a violation

of La.R.S. 14:60. Defendant entered a plea of not guilty to all charges on June 23,

2009.

Defendant waived his right to trial by jury, and a bench trial commenced on

April 13, 2011. The trial court subsequently found Defendant guilty of aggravated

rape, attempted first degree murder, and aggravated burglary. On April 21, 2011,

1
Pursuant to La.R.S. 46:1844(W), the initials of the victim will be used to protect her
identity.

Defendant was sentenced as follows. On his conviction for aggravated rape, he

was sentenced to life imprisonment without benefit of parole, probation, or

suspension of sentence; on his conviction for attempted first degree murder, he was

sentenced to fifty years at hard labor without benefit of parole, probation, or

suspension of sentence; and, on his conviction for aggravated burglary, he was

sentenced to thirty years at hard labor. The trial court ordered that these sentences

be served concurrently.

Defendant has appealed, asserting three assignments of error. He contends

that the evidence was insufficient to convict him of attempted first degree murder,

that the trial court erred in not assuring he knowingly and voluntarily waived his

right to a jury trial, and that he was subjected to double jeopardy when he was

convicted of both aggravated burglary and aggravated 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, we note one

error patent.

The record does not indicate that the trial court advised Defendant of the

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

art. 930.8. Therefore, we instruct the trial court to inform Defendant of the

provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to

Defendant within thirty days of the rendition of this opinion and to file written

proof of same in the record of these proceedings. State v. Roe, 05-116 (La.App. 3

Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

2

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends that the evidence was

insufficient to prove all of the elements of attempted first degree murder.

When a sufficiency of the evidence claim is raised on appeal,
the standard of review 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. State v. Macon, 06-481 (La.6/1/07), 957 So.2d
1280 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)).

State v. Jasper, 11-488, p. 4 (La.App. 3 Cir. 11/2/11), 75 So.3d 984, 987.

Defendant was convicted of attempted first degree murder.

First degree murder is the “killing of a human being when the
offender has a specific intent to kill or to inflict great bodily harm
upon a victim under the age of twelve years.” La. R.S.
14:30(A)(5). . . . Attempt is defined as “Any person who, having a
specific intent to commit a crime, does or omits an act for the purpose
of and tending directly toward the accomplishing of his object is
guilty of an attempt to commit the offense intended.” La. R.S.
14:27(A).

The crime of attempted murder, whether first or second degree,
requires proof of the specific intent to kill and the commission of an
overt act tending toward the accomplishment of that goal. State v.
Cepriano, 00-213 (La.App. 5 Cir. 8/29/00), 767 So.2d 893, 897.
Specific intent is “that state of mind which exists when the
circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.”
La. R.S. 14:10(1). Because specific intent is a state of mind, it need
not be proven as a fact, but may be inferred from the circumstances
and actions of the accused. State v. Lewis, 97-160 (La.App. 5 Cir.
7/29/97), 698 So.2d 456, 459, writ denied, 97-2381 (La.3/27/98), 716
So.2d 881.

State v. Alsay, 11-562, pp. 7-8 (La.App. 5 Cir. 12/13/11), 81 So.3d 145, 149.

D.C. testified that she was ten years old when Defendant raped her. When

interviewed, D.C. told the interviewer that Defendant raped her. She explained

that rape meant he put his private in her and touched her where she did not want to

be touched. D.C. said that Defendant entered her room through a window while

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she was sleeping and got on top of her back and said, “Don’t scream, or I’ll kill

you.” Defendant then pulled down her pants. D.C. started crying, and he put his

hand over her mouth. She then said that Defendant put his “private in my behind,

and his finger, and he started to put his private in my private. And I kept trying to

get him to stop, and he slapped me on my back, every time I didn’t open my legs.”

After Defendant concluded these heinous acts, he told D.C. to get him back

together with her mother. D.C. further stated:

Whenever he had put me on the floor, and started to try and smother
me with um. . .his shirt, or I think a pillow, I’m not sure about that
one[,] but he tried to smother me on the floor. And[,]. . .he tried to put
his private in me then. And then after that, he put me on the bunk
bed, where the wood’s at [sic] and he pushed me against it[;] then[,]
he put his butt in my private, every time he would like, feel me
screaming, or trying to scream, he would put his private deeper in my
butt.

When asked about Defendant’s attempts to smother her, D.C. stated, “He

tried to push it down on my face, but he couldn’t because. . .well, he did, but. . .I

had my face like that, and he didn’t notice.” D.C. then stated she had her face

turned sideways. D.C. again stated that Defendant slapped her on the back every

time she would not open her legs, and then he would put his private in her private.

Dr. Christopher Lawrence, an emergency room physician, testified that D.C.

was brought by ambulance to the emergency room on March 8, 2009.

Dr. Lawrence stated that D.C. told him that Defendant said, “Don’t scream or I’ll

kill you.” D.C. also stated that Defendant restrained her by holding her mouth with

his hand and holding her neck and that he slapped her on the back.

Dr. Lawrence further testified that D.C. had swelling to her right lip,

abrasions to the lips, abrasions to the right cheek, and scratches and bruising on

both sides of the neck. Dr. Lawrence also testified that the abrasions had to be

4

caused by a fairly rigid or semi-sharp object and that they could have been caused

by “hands, any kind of choking maneuver with fingernails.”

Nancy Mire, a registered nurse, testified that D.C. stated the following when

asked what occurred:

He came in through my window. He laid on top of my back
and said, “Don’t scream or I’ll kill you.” He pulled my pants down
and started to put his private part in my butt. He started to put his
finger in the bottom . . . . He put his private part in my private. He
kissed me and put his tongue in my mouth. . . . He put [me] on my
knees against the wall -- against the wood of [the] bunk bed and
started to put his private part into my bottom. He put me on the floor
and tried to smother me with his T-shirt. He started to talk to me, told
me he was sorry and help me get -- get me and your mom back
together and tell your brother to help me and your mom get back
together. He stated your mother does not tell you the truth about how
your dad died. Patient states he had his hand over her mouth the whole
time. He wiped the window sill with his shirt and put the screen back
on the window.

Trinh Landry, a DNA analyst, testified that Defendant’s DNA was found on

vaginal and rectal swabs taken from D.C.

In support of his argument that the State failed to prove he had the specific

intent to kill D.C., Defendant cites numerous cases involving dangerous weapons

and vehicles. He then asserts that the testimony he told D.C. to help him reunite

with her mother is inconsistent with a finding that he had the specific intent to kill

D.C. Defendant further asserts there was no evidence that he attempted to deprive

D.C. of oxygen and suffocate her. He contends that the acts of putting a hand and

shirt over D.C.’s mouth were consistent with attempting to prevent her from

screaming and that more would be necessary to prove he had the specific intent to

kill her.

The State argues that Defendant’s act of threatening to kill D.C., placing a

shirt over her face, and the marks on D.C.’s face and neck indicate that he had the

specific intent to kill her.
5

In State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ

denied, 00-2051 (La. 9/21/01), 797 So.2d 62, the victim got into her van and was

grabbed by the defendant, who put a large cloth over her mouth with one hand and

grabbed her throat and squeezed it with the other. The defendant then stated, “I’m

going to kill you.” Id. at 368. The victim and the defendant struggled, and the

victim was able to release the defendant’s grip from her neck so that she could

speak. The victim continued to struggle and was eventually able to open the van

door, falling out of the van and onto her neck. She then ran to the car of a

co-worker. The defendant was convicted of attempted second degree murder.

On appeal, the defendant, in Wommack, argued that the State failed to prove

he had the specific intent to kill the victim. In finding the evidence was sufficient

to support the defendant’s conviction, this court stated:

[W]e find sufficient evidence to support a finding of specific intent to
kill. Ms. Smith testified that the assailant grabbed her by the throat,
making it impossible to breathe. It was only after she continued to
struggle that she was able to breathe and speak. The struggle, which
included Ms. Smith being placed in a chokehold, lasted long enough
for several verbal exchanges and was severe enough to have caused
blood-producing injuries. The pressure was sufficient to produce
bruising on Ms. Smith’s neck which is evident in photos presented to
the jury. Furthermore, Ms. Smith’s testimony indicated that the
assailant verbalized his intent to kill her. These factors support the
jury’s conclusion that the defendant’s intent was to kill or inflict great
bodily harm. See La.R.S. 14:30.1. Furthermore, the jury reached its
decision in the face of the possibility of convicting the defendant of
aggravated battery, the elements of which were included in the
instruction. This assignment lacks merit.

Id. at 373.

Based on Wommack, we find that Defendant’s verbalizing of his intent to

kill, along with the fact that he placed his hand over D.C.’s mouth, his putting of a

shirt over her face to suffocate her, and his holding of her neck hard enough to

6

cause bruising were sufficient for the trial court to infer that he had the specific

intent to kill D.C. Accordingly, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

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

erred in not assuring he knowingly and voluntarily waived his right to trial by jury.

Louisiana Code of Criminal Procedure article 780(A) provides
in pertinent part that “[a] defendant charged with an offense other than
one punishable by death may knowingly and intelligently waive a trial
by jury and elect to be tried by the judge.” Additionally, the
defendant, with the permission of the trial judge, “may exercise his
right to waive trial by jury at any time prior to the commencement of
trial.” La.Code Crim.P. art. 780(B). While the trial judge must
determine if the defendant’s jury trial waiver is knowing and
intelligent, that determination does not require a Boykin-like colloquy.
See State v. Frank, 549 So.2d 401 (La.App. 3 Cir.1989).

As in the case of other significant rights, waiver of
trial by jury is valid only if the defendant acted
voluntarily and knowingly. State v. Kahey, 436 So.2d
475, 486 (La.1983); State v. Wilson, 437 So.2d 272, 275
(La.1983). While the Louisiana Supreme Court has
rejected an absolute rule which would require the trial
judge to personally inform the defendant of his right to a
jury trial, Kahey, supra; State v. Moya, 539 So.2d 756,
758 (La.App. 3d Cir.1989), the preferred method of
ensuring the right is for the trial judge to advise the
defendant personally on the record of his right to a jury
trial and to require the defendant to waive the right
personally either in writing or by oral statement in open
court on the record. State v. Wilson, 437 So.2d at 275;
State v. Jones, 537 So.2d 1244, 1247 (La.App. 4th
Cir.1989); State v. Moya, 539 So.2d at 758.

State v. Abbott, 92-731, pp. 3-4 (La.App. 4 Cir. 2/25/94), 634 So.2d
911, 913-914.

State v. Roberts, 01-154, p. 13 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, 788, writ

denied, 01-2974 (La. 9/20/02), 825 So.2d 1163.

Defendant was entitled to a jury trial on the charges of aggravated rape,

attempted first degree murder, and aggravated burglary. See La.Code Crim.P. art.

779; La.R.S. 14:42; La.R.S. 14:30 and La.R.S. 14:27; and La.R.S. 14:60. On
7

February 7, 2011, a Motion and Order to Waive Jury was filed. The motion was

signed by defense counsel but not by Defendant. An order waiving the jury trial

was signed by the trial court on February 9, 2011.

The issue of waiving a trial by jury was raised again in the trial court on

February 14, 2011. The transcript for that date indicates the following occurred:

BY MR. PRATHER:

Judge, the issue [as] to waiving the Jury and be heard as a
Judge Trial. I don’t object to ----

BY THE COURT:

Is that correct, Mr. Alonzo?

BY MR. ALONZO:

That is correct, Your Honor.

BY THE COURT:

Is that correct Mr. Tyler, you wish to waive the jury?

BY MR. TYLER:

Yes, Sir.

BY THE COURT:

I grant the Continuous [sic] and grant that this case be heard as
a Judge Trial and set this case for [the] next trial date.

Defendant contends that there is no indication that he made a valid waiver.

He alleges nothing in the record states that he was made aware of his right to trial

by jury. Defendant contends that defense counsel’s motion was insufficient to

establish a knowing waiver and that the record does not indicate that the judge

questioned him about his educational background or his ability to understand a

waiver of his right to a trial by jury.

8

An issue similar to that in the case at bar arose in State v. Bryant, 06-1154

(La.App. 4 Cir. 1/10/07), 950 So.2d 37. Therein, the defendant alleged that the

trial court erred in permitting him to waive his right to a trial by jury without first

obtaining an adequate waiver of that right. The pre-trial colloquy regarding the

issue read as follows:

Trial court: How are [sic] feeling today, Mr. Bryant?
Bryant: Sore.
Trial court: You’re sore?
Bryant: Yes.
Trial court: But I mean the medicine isn’t having any affect [sic ] on
you from yesterday or yesterday’s accident?
Bryant: Yes, it has an affect [sic ]. I don’t hurt as much.
Trial court: You don’t what?
Bryant: I don’t hurt as much.
Trial court: Oh, so you don’t hurt as much, so a positive affect [sic].
So, you’re aware of what you’re doing here today, correct?
Bryant: Yes, sir.
Trial court: And Mr. Fuller [defense counsel] has indicated that today
you’ve chosen to go to trial by judge rather than jury; is that correct?
Bryant: Yes, sir.
Trial court: Have a seat, sir.

Id. at 40.

The fourth circuit, in Bryant, denied the defendant’s claim, stating the

following:

[T]he trial court in the present matter was not required to personally
inform Bryant of his right to a jury trial. The transcript in the present
matter reveals that Bryant’s counsel informed the trial court that
Bryant wished to waive the jury and to proceed to trial by judge.
Further, the transcript in the present matter shows that the trial court
addressed Bryant personally and that Bryant confirmed that he wished
to go to trial by judge rather than jury.

In Abbott, 634 So.2d at 914, the defendant argued in a pro se
assignment of error that he did not knowingly, intelligently, and
voluntarily waive his right to trial by jury. After reviewing the
applicable jurisprudence, this Court wrote: “The transcript indicates
that the trial judge was advised by counsel that the defendant wanted
to waive the jury. The judge then addressed the defendant personally,
who confirmed that he sought to waive the jury. This assignment has
no merit.” Id. The facts of this case are substantially similar to the
facts of Abbott. In light of this observation, and the principle that the
9

trial court is not required to personally inform a defendant of his right
to trial by jury, we conclude that Bryant’s assertion that he did not
knowingly and intelligently waive his right to a trial by jury lacks
merit.

Id. at 41. See also State v. P.T., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255,

writ denied, 08-26 (La. 5/30/08), 983 So.2d 895.

We find that the trial court was not required to personally inform Defendant

of his right to trial by jury. Further, Defendant in the case at bar, just like the

defendants in Bryant, 950 So.2d 37, and Abbott, 634 So.2d 911, confirmed his

desire to waive his right to trial by jury when personally addressed by the trial

court. Accordingly, we find Defendant’s assertion that he did not knowingly and

intelligently waive his right to trial by jury lacks merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant contends that he was subject to

double jeopardy when he was convicted of both aggravated burglary and

aggravated rape arising from the same course of criminal conduct.

In State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434,

438, writ denied, 10-1146 (La. 5/20/11), 63 So.3d 972, this court set forth the tests

to be applied when reviewing a double jeopardy claim, explaining:

Both the United States and Louisiana Constitutions prohibit double
jeopardy; the imposition of multiple punishments for a single criminal
act. See U.S. Const. amend. V; La. Const. art. 1, § 15. See also,
La.Code Crim.P. art. 591. Louisiana courts use two methods, the
“Blockburger Test” and the “same evidence test”, to determine
whether double jeopardy exists. State v. Williams, 07-931
(La.2/26/08), 978 So.2d 895.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct.
180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court
interpreted the Fifth Amendment’s prohibition of double jeopardy and
enunciated the following test to be employed by the federal courts, as
follows:

10

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.

In interpreting Article 1, Section 15 of the Louisiana Constitution,
Louisiana courts have also used the broader “same evidence test”
which provides:

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.

State v. Cotton, 00-850, p. 5 (La.1/29/01), 778 So.2d 569, 573,
quoting State v. Steele, 387 So.2d 1175, 1177 (La.1980).

Blockburger Test:

Defendant was convicted of aggravated burglary. Louisiana Revised

Statutes 14:60 defines aggravated burglary as follows:

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.

Defendant was also convicted of aggravated rape. Louisiana Revised

Statutes 14:42 provides, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-
five years of age or older or where the anal, oral, or vaginal sexual
intercourse is deemed to be without lawful consent of the victim
because it is committed under any one or more of the following
circumstances:

11

....

(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim’s age shall not be a defense.

We find no violation of double jeopardy under the Blockburger test.

Aggravated burglary requires the unique element of unauthorized entering of an

inhabited dwelling; whereas, aggravated rape requires proof of the unique element

of sexual intercourse. See State v. Anderson, 11-106 (La.App. 3 Cir. 6/1/11), 66

So.3d 568, writ denied, 11-1493 (La. 9/23/11), 69 So.3d 1167; State v. Williams,

05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.

12/15/06), 944 So.2d 1284.

Same Evidence Test:

Defendant alleges that the battery in the case at bar cannot be separated from

the act of rape, as there was not a separate battery apart from the actual acts

constituting the rape allegation. Defendant contends that the slaps to D.C.’s back

and the holding of her face and mouth were part of the aggravated rape and not

separate acts of battery.

The State asserts Defendant could have been convicted of aggravated

burglary without proof that a rape occurred, considering the fact that D.C. stated

that Defendant hit, smothered, and strangled her after forcefully gaining entrance

into the residence. In support of this argument, the State cites State v. Anderson,

499 So.2d 1252 (La.App. 4 Cir. 1986), writ denied, 503 So.2d 490 (La.1987).

In Anderson, 66 So.3d at 588-90, this court stated the following:

We have found no reported cases specifically addressing
whether a double jeopardy violation occurs when Defendant is
convicted of the felony and the intent to commit the same felony is
used for a burglary conviction. However, in State v. Solomon, 379
So.2d 1078, 1079-80 (La.1980), the court implied no such violation,
holding in pertinent part:

12

Because the defendant plead guilty to the burglary
charge, there is no trial transcript to review in order to
determine whether evidence in the theft trial would be the
“same evidence” to prove the burglary charge. We do
have the testimony from the motion to quash which may
be utilized for this purpose. Testimony of the arresting
officers at the trial of the motion to quash set forth the
facts on which the simple burglary charge was based.
Their testimony establishes that the burglary and theft
charges deal with the same incident of defendant entering
Officer Bourgeois’ vehicle on the night of November 28,
1978. Therefore, it can be determined that the exact
same evidence is not required for a conviction of the
defendant on both the burglary and theft charges because
a conviction of burglary requires the additional proof of
an unauthorized entry with the intent to commit a felony
or any theft therein. R.S. 14:62. Furthermore, the two
charges are not based on the exact same conduct as was
the case in [State v. Bonfanti, 262 La. 153, 262 So.2d 504
(1972); State v. Didier, 262 La. 364, 263 So.2d 322
(1972) ]. The crime of burglary was completed upon
entry into the car with the intent to commit the theft
therein, whereas the theft did not occur until the
defendant actually took the watch from the glove
compartment. This distinction makes it clear that
burglary of the automobile and the theft of the watch
were two separate and distinct offenses[;] and[,]
therefore, the conviction of one would not bar a
conviction of the other on the grounds that the defendant
would be placed twice in jeopardy for the same offense.

Additionally, in Archield, 34 So.3d 434, on appeal, the
defendant challenged his convictions of aggravated rape and
aggravated burglary on the basis of double jeopardy. This court found
no double jeopardy violation wherein the intent to commit the rape
and the conviction for the rape were not questioned, and no other facts
were set forth to show that the defendant entered the house with the
intent to commit a theft or any felony other than rape. This court held
in pertinent part:

The record supports the determination that in the
present matter the crimes of aggravated rape and
aggravated battery were separate and distinct offenses.
The defendant could have been convicted of aggravated
rape without proof that an aggravated burglary occurred.
The evidence adduced through testimony showed that the
defendant had non-consensual sexual intercourse with
C.S.[,] and C.S. was prevented from resisting because the
defendant threatened to kill her with the apparent power
to execute that threat. La. R.S. 14:42(A)(2).
13

Further, the defendant could have been convicted
of aggravated burglary without proof that any rape
occurred, considering that he committed battery upon
C.S. by hitting, dragging and shoving her, after he
forcibly gained entrance into the house. La. R.S.
14:60(3). Also, aggravated burglary could have been
proven under the second aggravating factor of La. R.S.
14:60—when a perpetrator arms himself with a
dangerous weapon after entering the inhabited dwelling.
A dangerous weapon is defined as instrument “which, in
the manner used, is calculated or likely to produce death
or great bodily harm.” La. R.S. 14:2(A)(3). A vase[,]
held over one’s head in the manner presented in this case,
arguably constitutes a dangerous weapon.

Id. at 440 (footnote omitted).

In State v. Davis, 09-1061 (La.App. 3 Cir. 4/7/10), 36 So.3d
351, the defendant was convicted of aggravated rape and aggravated
burglary. On appeal, the defendant asserted a double jeopardy
violation. Although this court did specifically address whether the use
of intent to commit the rape and the completed rape violated double
jeopardy, it stated in pertinent part:

In the current case, as in [State v. Anderson, 499 So.2d
1252 (La.App. 4th Cir.1986), writ denied, 503 So.2d 490
(La.1987)], it was apparent from the facts that Defendant
intended to commit a rape when he entered the trailer, a
felony. Further, the physical abuse constituted the battery
element of aggravated burglary, and, as in Anderson,
“[a]lthough the victim’s beating fulfills one element of
both crimes,” the battery did not fulfill the distinguishing
elements of each, i.e., the unauthorized entry and sexual
intercourse.

Id. at 361 (emphasis added).

Considering the foregoing, we find no violation of double
jeopardy under the same evidence test based upon the use of intent to
commit a felony, the rape, and the completed act of the rape.

Moreover, in the instant case, R.G. testified that before the rape,
Defendant grabbed her throat and choked her. Additionally, R.G.
testified that Defendant threatened to kill her if she did not do what he
wanted her to do, and he raped her.

We find that the evidence of the unlawful entry into R.G.’s
apartment and Defendant choking R.G. were not necessary for a
conviction of forcible rape. The crime of aggravated burglary was
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completed when Defendant entered the apartment, with the intent to
commit a felony, and choked R.G. Additionally, the evidence showed
that Defendant had non-consensual sexual intercourse with R.G., and
R.G. was prevented from resisting because Defendant threatened to
kill her with the apparent ability to carry out the threat. La.R.S.
14:42.1(A)(1). Thus, we find that the record supports the premise that
the crimes of forcible rape and aggravated burglary were separate and
distinct offenses. Therefore, there is no double jeopardy violation
regarding crimes against R.G.

Regarding the crimes against J.S., she testified that when she
woke up and saw the man in her apartment, she screamed. J.S. stated
Defendant reached for her neck, straddled over her, and began to
choke her with both of his hands. J.S. testified in pertinent part: “I
tried to fight him off, and I pushed his eyes in his head with both my
hands because that’s really all I could do, all I could see. Then, I tried
to get him off of me and I could not.” J.S. explained that Defendant
was on top of her and stated, “He was pulling on my clothes and
holding me down with one hand . . . .”

We find that the evidence of the unlawful entry into J.S.’s
apartment, with the intent to commit a felony, and Defendant choking
J.S. were not necessary elements for a conviction forcible rape. The
crime of aggravated burglary was completed when Defendant entered
the apartment and choked J.S. Additionally, the evidence showed that
Defendant had non-consensual sexual intercourse with J.S. and that
J.S. was prevented from resisting because Defendant held her down
despite her efforts to fight him off. La.R.S. 14:42.1(A)(1). Thus, we
find that the record supports the premise that the crimes of forcible
rape and aggravated burglary were separate and distinct offenses.
Therefore, there is no double jeopardy violation regarding the crimes
against J.S.

In the instant case, as in the above-mentioned cases, we find that the record

supports the determination that the crimes of aggravated rape and aggravated

burglary were separate and distinct offenses. Defendant could have been convicted

of aggravated rape without proof that an aggravated burglary occurred. The

evidence adduced showed that Defendant had non-consensual sexual intercourse

with D.C., who was under the age of thirteen at the time of the offenses. La.R.S.

14:42(A)(4). Further, Defendant could have been convicted of aggravated

burglary without proof that sexual intercourse occurred, considering that he

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committed battery upon D.C. by hitting her on the back after he gained entry into

her home. For these reasons, we find this assignment of error lacks merit.

DISPOSITION

Defendant’s convictions are affirmed. We order the trial court to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to him within thirty days of the rendition of this opinion and to file

written proof of same in the record.

AFFIRMED.

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