State of Louisiana v. Alton Ray

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1217

STATE OF LOUISIANA

VERSUS

ALTON RAY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80708
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED WITH INSTRUCTIONS.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Alton Ray

Asa A. Skinner
District Attorney
Terry Wayne Lambright
Assistant District Attorney
Post Office Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

The defendant was charged with two counts of sexual battery, a violation of

La.R.S. 14:43.1, or, in the alternative, molestation of a juvenile, a violation of

La.R.S. 14:81.2(A) and (E)(1). After a bench trial, the trial court found the

defendant not guilty as to count one and guilty as to the charge of sexual battery in

count two. The defendant was sentenced to twenty-five years at hard labor,

without benefit of probation, parole, or suspension of sentence. The defendant

appeals. For the following reasons, we affirm with instructions.

Factual and Procedural Background

A.N.,1 a minor, alleged that her mother’s fiancé inserted his finger in her

vagina on approximately ten occasions. According to the allegations, A.N. was ten

and eleven years old at the time, and the defendant, Alton Ray, was in his mid-

fifties. The State filed a bill of information charging the defendant with two counts

of sexual battery, a violation of La.R.S. 14:43.1, or, in the alternative, molestation

of a juvenile, a violation of La.R.S. 14:81.2(A) and (E)(1).

After the defendant waived his right to a jury trial, a bench trial was

conducted. The trial court found the defendant not guilty of count one of the

charges and, with regard to count two, found the defendant guilty of the charge of

sexual battery. The defendant’s motion for new trial was denied. The trial court

subsequently imposed a sentence of twenty-five years at hard labor, without

benefit of probation, parole, or suspension of sentence.

The defendant appeals, asserting as error that:

1
Pursuant to La.R.S. 46:1844(W), the victim’s initials are used in order to protect her
identity.

1. The evidence introduced at the trial of this case, when
viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed. 2d 560 (1979) standard, is insufficient to prove Alton Ray is
guilty of sexual battery beyond a reasonable doubt.

2. While Alton Ray signed an affidavit indicating he knowingly
and voluntarily elected to be tried by judge alone, the court never
confirmed this declaration on the record, thus the record herein fails to
establish Alton Ray made a knowing and intelligent waiver of his
right to a trial by jury.

3. The trial court erred in imposing a constitutionally excessive
sentence of twenty-five years at hard labor in this case involving a
fifty-nine-year-old first-offender who was convicted of sexual battery.

4. The trial court erred in failing to sufficiently consider the
mitigating circumstances in this case, which require a deviation below
the minimum sentence mandated by statute.

5. The trial court failed to provide sufficient advice as to the
time limitation for filing an application for post-conviction relief.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. After reviewing the record, the court finds

two potential errors patent. One error, concerning the bill of information, will be

addressed herein. The other, concerning the trial court’s notification of the time

limitations for filing an application for post-conviction relief, will be addressed in

the defendant’s final assignment of error.

Our review of the record indicates that the State filed a single bill of

information. In count one of the bill, the State charged the defendant with one

count of sexual battery, a violation of La.R.S. 14:43.1, “or in the alternative,” one

count of molestation of a juvenile, a violation of La.R.S. 14:81.2(A) and (E)(1), for

the listed time period. In count two of the bill, the State charged the defendant

with one count of sexual battery, a violation of La.R.S. 14:43.1, “or in the

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alternative,” one count of molestation of a juvenile, a violation of La.R.S.

14:81.2(A) and (E)(1), for the relevant time period therein.

Louisiana Code of Criminal Procedure Article 493 permits two or more

offenses to be charged in the same indictment or information under certain

circumstances. Further, certain offenses are allowed to be charged in the

alternative pursuant to La.Code Crim.P. art. 482. There is no statutory authority

allowing molestation of a juvenile to be charged as an alternative to sexual battery.

However, our review of the record indicates that the defendant did not file a

motion to quash the bill of information on this basis. See State v. Wilson, 07-365

(La.App. 3 Cir. 10/3/07), 968 So.2d 776. Accordingly, this error was waived.

Sufficiency of the Evidence

The defendant first contends that the evidence was insufficient to support his

conviction. Review of sufficiency of the evidence claims is governed by the

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), standard, which directs

that an appellate court “must determine that the evidence, viewed in the light most

favorable to the prosecution, was sufficient to convince a rational trier of fact that

all of the elements of the crime had been proved beyond a reasonable doubt.”

State v. Bryant, 12-233, p. 5 (La. 10/16/12), 101 So.3d 429, 432 (quoting State v.

Tate, 01-1658 (La. 5/20/03), 851 So.2d 921). Further, in State v. Dorsey, 10-216,

p. 42 (La. 9/7/11), 74 So.3d 603, 633, cert. denied, __ U.S. __, 132 S.Ct. 1859

(2012), the supreme court noted that:

When circumstantial evidence is used to prove the commission of the
offense, Louisiana Revised Statute § 15:438 mandates, “assuming
every fact to be proved that the evidence tends to prove, in order to
convict, it must exclude every reasonable hypothesis of innocence.”
State v. Neal, 00-0674, p. 9 (La. 6/29/01); 796 So.2d 649, 657, cert.
denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). This
is not a separate test that applies instead of a sufficiency of the

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evidence test when circumstantial evidence forms the basis of the
conviction. State v. Cummings, 95-1377, p. 4 (La. 2/28/96); 668
So.2d 1132, 1134. Rather, all of the evidence, both direct and
circumstantial, must be sufficient under Jackson to convince a rational
juror the defendant is guilty beyond a reasonable doubt.

We note that the appellate court’s function is not to assess credibility or reweigh

the evidence. Id.

Louisiana Revised Statutes 14:43.1 concerns the crime of sexual battery.2 It

states, in relevant part, that:

A. Sexual battery is the intentional engaging in any of the
following acts with another person where the offender acts without the
consent of the victim, or where the act is consensual but the other
person, who is not the spouse of the offender, has not yet attained
fifteen years of age and is at least three years younger than the
offender:

(1) The touching of the anus or genitals of the victim by the
offender using any instrumentality or body part of the offender[.]

The defendant argues that A.N.’s testimony was vague and contradictory.

He contends that, other than one act which supposedly took place on Easter

Sunday of 2010, A.N. was unable to say when the sexual battery occurred. The

defendant points to evidence which he contends establishes that it was impossible

for any alleged improprieties to have occurred on that date. Further, the defendant

contends that A.N.’s testimony about the acts themselves was inconsistent.

A review of the record reveals that there was sufficient evidence to support

the defendant’s conviction. A.N., who was thirteen at the time of trial, testified

that on about ten occasions, the defendant put his finger inside her vagina.

According to A.N., it hurt. She testified that this would happen in the defendant’s

living room when they were alone. A.N.’s testimony was that it was not unusual

2
Louisiana Revised Statutes 14:43.1 was amended by Acts 2011, No. 67 §1. As the
alleged offenses occurred in 2009 and 2010, we use the previous version of the statute.

4

for her to be left alone with the defendant in the year or so before Easter of 2010.

Further, A.N. testified that, when the defendant first touched her inappropriately,

he told her not to tell anyone. A.N. also testified that the defendant touched her

breast underneath her shirt. She stated that she had not told the district attorney or

the advocacy center people about this and was not sure why. A.N. stated that she

had told someone, she just could not remember who. A.N. also testified that she

told her mother and sister about the abuse because she wanted it to stop.

However, with the exception of Easter Sunday of 2010, A.N. could not

testify with any specificity when these acts occurred. According to A.N., on Easter

Sunday of 2010, the defendant, A.N.’s mother, and A.N. went to a barbeque at the

defendant’s nephew’s house. A.N. stated that the defendant touched her before

they went to the barbeque, although she did not remember why she was alone with

the defendant before the barbeque.

Dr. Thomas E. Griffin, III, is a pediatrician who has done “several hundred”

examinations of children who are alleged to have been molested or abused. The

trial court accepted Dr. Griffin as an expert. Dr. Griffin testified that he had

performed an examination of A.N. in May of 2010, when A.N. was eleven years

old. Dr. Griffin noted that his findings were that A.N.’s “vaginal area revealed a

mature genitalia that freely admitted - - my index finger into the vaginal area.

Only a slight rim of the hymen remained.” According to Dr. Griffin, this was

unusual—in a child of this age, the hymen would normally admit only the tip end

of the little finger and this was at least twice as large as one would expect. Dr.

Griffin stated that there was no doubt in his mind that there had been some type of

penetration.

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Dr. Griffin also testified that it was more difficult to determine what type of

penetration would produce this result. Dr. Griffin stated that this was much more

than was usually seen with fondling or digital manipulation. Based on that

observation, Dr. Griffin was concerned that more than fondling or digital

manipulation had occurred, “perhaps the insertion of a penis or some other object

bigger than a finger.” However, Dr. Griffin opined that his findings were

consistent with a conclusion that penetration by the finger of a grown adult

occurred approximately ten times.

A.N.’s mother and her older sister both testified that they lived across the

street from the defendant and that A.N. was left alone with the defendant at times,

such as when A.N.’s mother would go to the store. According to both the mother

and the sister, they learned about the allegations when the mother asked A.N. to

take something across the street to the defendant’s house and she refused. Both

testified that A.N. was crying and seemed reluctant or embarrassed when she told

them that the defendant had touched her “down below.” Further, the mother and

the sister both testified that A.N. did not appear to be misleading and that she had

not made any allegations of this kind before. Neither the mother nor the sister

reported the allegations to the police or to child welfare services.

The defendant testified on his own behalf. He stated that he was 58 at the

time of trial. The defendant denied touching and rubbing A.N.’s private area,

inserting his finger into her vagina, touching her breast, or otherwise touching A.N.

in an inappropriate manner. He also denied ever being alone with A.N., and more

specifically being alone with her on Easter Sunday of 2010. The defendant

maintained that A.N. was lying and that she was jealous that he was going to marry

her mother and that the defendant’s granddaughter wanted to exclude A.N. from

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the wedding. Although there are inconsistencies about the timing in the testimony,

the record indicates that the defendant asked A.N.’s mother to marry him and that

he asked A.N. to help him pick out a ring for her.

As stated by the supreme court in Dorsey, 74 So.3d at 634:

A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02-1043, p. 3 (La. 6/27/03); 848 So.2d
557, 559. In the absence of internal contradiction or irreconcilable
conflict with physical evidence, one witness’s testimony, if believed
by the fact finder, is sufficient support for a requisite factual
conclusion. State v. Robinson, 02-1869, p. 16 (La. 4/14/04); 874
So.2d 66, 79.

Our review of the record reveals that A.N. testified that the defendant

touched her genitals with his finger, that it hurt, and that she told her mother and

sister about the abuse because she wanted it to stop. Further, there was testimony

and competent evidence establishing that A.N. was younger than fifteen years old

and that she was more than three years younger than the defendant. Additionally,

A.N.’s testimony was consistent with the medical evidence as described by Dr.

Griffin.

Although the defendant denied that he had ever inappropriately touched

A.N. and denied that she was ever alone at his house, there was testimony that it

was not uncommon for A.N. to be alone with the defendant. Further, although the

defendant attempted to establish that he was never alone with A.N. on Easter

Sunday of 2010, A.N. testified that she was alone with him before they went to the

barbeque.

As the finder of fact, it was the trial court’s prerogative to credit the

testimony of A.N. and Dr. Griffin. Our review of A.N.’s testimony reveals that it

is neither incredible nor insubstantial on its face, and is consistent with the physical

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evidence, and is therefore sufficient to support the trial court’s factual findings.

See Dorsey, 74 So.3d 603. This evidence is sufficient to satisfy the elements of

La.R.S. 14:43.1(A). Accordingly, we find sufficient evidence in the record to

support the defendant’s conviction for sexual battery.

This assignment of error is without merit.

Waiver of Jury Trial

Next, the defendant contends that the record does not establish that he

knowingly and intelligently waived his right to a jury trial.

In State v. Howard, 10-869, pp. 6-7 (La.App. 5 Cir. 5/24/11), 66 So.3d 1160,

1165, writ denied, 11-1468 (La. 4/9/12), 85 So.3d 125, the fifth circuit reiterated

the principles applicable to a defendant’s waiver of his or her right to a jury trial,

stating:

Although the right to a jury trial may be waived in non-capital
cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P.
art. 780 A. Waiver of this right is never presumed. State v.
McCarroll, 337 So.2d 475, 480 (La.1976); State v. Zeringue, 03-697
(La.App. 5 Cir. 11/25/03), 862 So.2d 186, 193, writ denied, 03-3523
(La. 4/23/04), 870 So.2d 298. Although it remains the preferred
method for the district court to advise a defendant of the right to a jury
trial in open court before obtaining a waiver, that practice is not
statutorily required. State v. Pierre, 02-2665 (La. 3/28/03), 842 So.2d
321 (per curiam); State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04),
889 So.2d 1151, 1154, writ denied, 04-3195 (La. 5/6/05), 901 So.2d
1093. It is likewise preferred, but not necessary, for the defendant to
waive the right to a jury trial personally. Id. Counsel may waive the
right on the defendant’s behalf, provided the defendant’s decision to
do so was made knowingly and intelligently. Id.

The record contains the defendant’s “Motion to Waive Jury Trial and

Request Trial by Judge Alone,” filed on September 26, 2011. 3 Therein, the

3
Although there is nothing in the record indicating that the trial court granted the Motion to
Waive Jury Trial, the trial court signed the order continuing the trial which was attached to the
motion. Further, the matter was subsequently set for a bench trial in January of 2012.

8

defendant’s trial counsel represented that the defendant had been fully advised by

his trial counsel and fully understood his constitutional right to a trial by Judge

only, and that he knowingly and voluntarily waived that right and elected to have a

trial by Judge only. The motion included an affidavit signed by the defendant and

two witnesses, which stated that:

ALTON RAY, who after being duly sworn, did depose and declare
the following:

That he is the defendant in the above captioned and numbered
proceedings.

That he has counseled with his court appointed counsel, Lisa K.
Nelson.

That he has been fully advised by his court appointed counsel of his
constitutional right to a trial by a jury of his peers and that he fully
understands that constitutional right.

That he knowingly and voluntarily elects to be tried by Judge alone.

The motion also noted that the defendant’s trial counsel agreed with his request.

Where the defendant’s right to a jury trial was waived by his attorney, and

there was no other indication that the defendant knowingly and intelligently

waived that right, such as a confirmation in open court, the appellate courts have

remanded the matter to the trial court for a determination of whether the

defendant’s waiver was knowing and intelligent. State v. Zeringue, 03-697

(La.App. 5 Cir. 11/25/03), 862 So.2d 186, writ denied, 03-3523 (La. 4/23/04), 870

So.2d 298; State v. Morris, 607 So.2d 1000 (La.App. 3 Cir. 1992), rev’d on other

grounds, 615 So.2d 327 (La.1993). See also State v. Pierre, 02-2665 (La.

3/28/03), 842 So.2d 321.

In addition to the defendant’s trial counsel’s representation that she had

informed the defendant about his constitutional rights, the defendant signed an

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affidavit which confirmed that he had “been fully advised by his court appointed

counsel of his constitutional right to a trial by a jury of his peers and that he fully

understands that constitutional right” and that he opted to be tried by judge alone

and not a jury. Further, the minutes from the defendant’s arraignment indicate that

the trial court informed the defendant about his right to a jury trial. Contrary to the

defendant’s argument, the trial court was not required to confirm the defendant’s

waiver on the record. Howard, 66 So.3d 1160. Given these circumstances, we

find that the record supports a finding that the defendant’s trial counsel discussed

with the defendant his right to a trial by jury, that the defendant understood that

right, and that the defendant knowingly and intelligently waived his right to a jury.

See Zeringue, 862 So.2d 186.

This assignment of error is without merit.

Excessiveness of Sentence

The defendant also asserts that his sentence is unconstitutionally excessive

and that the trial court failed to consider the mitigating circumstances in imposing

sentence.

We initially note that the record indicates that the defendant filed a motion

for reconsideration alleging that his sentence is excessive and improper. On

appeal, the defendant’s primary argument is that the trial court erred in failing to

deviate below the mandatory minimum sentence for sexual battery. This was not

an issue that the defendant raised before the trial court and is therefore not properly

before this court for the first time on appeal. La.Code Crim.P. art. 881.1(E).

Accordingly, we do not address the defendant’s argument in this regard.

The review of excessive sentence claims is well-established. In State v.

Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-

10

43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court reiterated

the review of excessive sentence claims, stating:

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 (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).

In deciding whether a sentence shocks our sense of justice or makes no measurable

contribution to acceptable penal goals, the 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, 99-606 (La. 7/6/00), 766 So.2d 501.

However, sentences must be individualized to the offender and the offense

committed. State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846 So.2d 786

(quoting State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991), writ denied, 03-562

(La. 5/30/03), 845 So.2d 1061). We also note that a mandatory minimum sentence

is presumed to be constitutional. State v. D.S.J., 08-1555 (La.App. 3 Cir. 6/24/09),

15 So.3d 1188.

Louisiana Revised Statutes 14:43.1(C)(2) provides that the punishment for

sexual battery, where the victim is under the age of thirteen years and the offender

is seventeen years old or more “shall be punished by imprisonment at hard labor

11

for not less than twenty-five years nor more than ninety-nine years. At least

twenty-five years of the sentence imposed shall be served without benefit of

parole, probation, or suspension of sentence.” At sentencing, the trial court

imposed sentence as follows:

This is the offense of sexual battery. The penalty for that offense is
not less than 25 years nor more than 99 years. 25 years shall be
served without benefit of probation, parole or suspension of sentence.
The facts are that this Court found the victim’s testimony to be
competent wherein she testified that this defendant touched her
private parts at a time when she had not yet reached the age of 15
years. This testimony was corroborated by the examining doctor’s
testimony. After the bench trial the Court found this defendant guilty
of sexual battery. The Court considers the sentencing guidelines
under Article 894.1, the pre-sentence report and its contents, and the
numerous letters on behalf of the defendant. The Court has concluded
that this is a minimum sentence in this thing of 25 years is
extraordinarily severe and considering this defendant’s age and could
be there for the rest of his life. But, nevertheless, that is the minimum
sentence required by law.

The Court finds - - sentences you to 25 years at hard labor with the
Louisiana Department of Public Safety and Corrections with credit for
time served since the date of your arrest without benefit of probation,
parole or suspension of sentence. Ms. Nelson is right, this man has a
clean record as far as I can tell. This is his first offense. The sentence
I have imposed, nevertheless, is subject to whatever good behavior
you may be entitled under Revised Statute 15:571.3.

Our review of the record indicates that the trial court was aware of and

considered several factors in determining the defendant’s sentence. Of particular

note, the trial court was the finder of fact. The record indicates that the trial court

took into account that the defendant was fifty-eight and a first felony offender. We

also note that “numerous” letters were submitted to the trial court on the

defendant’s behalf, which the trial court acknowledged. Given that the defendant

was convicted of sexually abusing his future step-daughter, who was then eleven

years old, we find the trial court adequately considered the mitigating factors

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contained in La.Code Crim.P. art. 894.1 and did not abuse its discretion in

imposing the minimum sentence.

The defendant’s arguments in this regard are without merit.

Post-Conviction Relief Notification

The defendant contends that the trial court did not properly notify him of the

time period for filing an application for post-conviction relief. The State agrees

with the defendant on this issue.

A review of the record indicates that the trial court notified the defendant

that he had “30 days within which to appeal and two years within which to file an

application for post conviction relief.” Louisiana Code of Criminal Procedure

Article 930.8 provides that the prescriptive period does not begin to run until the

defendant’s sentence is final.

Accordingly, we direct the trial court to provide the defendant with

appropriate written notice of the time periods for seeking post-conviction relief, as

delineated in La.Code Crim.P. art. 930.8, within ten days of the date of this opinion

and to file in the record of the proceedings proof that the defendant received the

notice. See State v. Smith, 95-1215 (La.App. 3 Cir. 4/3/96), 672 So.2d 211.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant,

Alton Ray, for sexual battery, a violation of La.R.S. 14:43.1, are affirmed. The

trial court is directed to provide the defendant with written notice of the provisions

of La.Code Crim.P. art. 930.8 within ten days of the date of this opinion and to

filed in the record proof that the defendant received the written notice.

AFFIRMED WITH INSTRUCTIONS.

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