State of Louisiana v. Eddie Ray Jackson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 13-808

STATE OF LOUISIANA

VERSUS

EDDIE RAY JACKSON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 307621
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Marc T. Amy, Billy Howard Ezell, and John E. Conery, Judges.

AFFIRMED.

James C. Downs
District Attorney
Monique Yvette Metoyer
Assistant District Attorney
Ninth Judicial District Court
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
P. O. Box 3752
Lake Charles, LA 70602
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Eddie Ray Jackson

Eddie Ray Jackson
Avoyelles Corr. Ctr. C-3, B-1
1630 Prison Road
Cottonport, LA 71327

EZELL, Judge.

The defendant, Eddie Ray Jackson, was charged in an indictment filed on

October 6, 2011, with aggravated rape. Defendant entered a plea of not guilty on

November 4, 2011. Trial by jury commenced on November 7, 2012, and the jury

subsequently found the Defendant guilty of the responsive verdict of forcible rape,

a violation of La.R.S. 14:42.1.

Defendant filed motions for post-verdict judgment of acquittal and new trial

on January 28, 2013. On February 22, 2013, the motions filed by the Defendant

were denied, and he was sentenced to forty years at hard labor, two years to be

served without benefit of probation, parole, or suspension of sentence. Defense

counsel objected to the sentence and made an oral motion to reconsider sentence,

which was denied. Defense counsel also filed a motion to appeal, which was

subsequently granted. On March 12, 2013, Defendant filed a pro se motion to

reconsider sentence, which was also denied.

Defendant is now before this court asserting two assignments of error.

Defendant contends the trial court failed to give sufficient consideration to

mitigating factors and considered aggravating factors unsupported by the record

when it fashioned his sentence, and his sentence is excessive. Defendant‘s

assignments of error lack merit.

FACTS

The Defendant was convicted of the forcible rape of J.P.1 J.P.‘s testimony

indicated the Defendant entered the back door of her home, pinned her down,

removed her clothing, and had vaginal and anal intercourse with her. During these

events, J.P.‘s fourteen-month-old and four-month-old daughters were asleep in

1
The victim‘s initials are being used in accordance with La.R.S. 46:1844(W).

another room. As a result of the Defendant‘s acts, J.P. suffered tears to the vaginal

area; tenderness to the vaginal entrance, ―the verge of the anal area,‖ and the

rectum; and bleeding next to the clitoris.

A DNA profile was obtained from evidence recovered from the rape kit

performed on J.P. The assailant‘s DNA profile was entered into CODIS2. A report

indicated the profile matched that of Defendant. A reference DNA sample was

subsequently obtained from Defendant, and his DNA matched the DNA found in

the rape kit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first assignment of error, Defendant contends the trial court failed to

give sufficient consideration to mitigating factors and considered aggravating

factors unsupported by the record when it fashioned his sentence, such that the

forty-year maximum sentence is excessive. In his second assignment of error,

Defendant contends the forty-year maximum sentence imposed by the trial court is

an unconstitutionally excessive sentence for this offender. We will address these

assignments of error together, as they both pertain to Defendant‘s sentence.

Defense counsel objected to the sentence at the time it was imposed and

made an oral motion to reconsider. However, he did not set forth a basis for either.

Defendant timely filed a pro se motion for reconsideration but also failed to set

2
―<CODIS‘ means Combined DNA Index System, the Federal Bureau of Investigation‘s
national DNA identification index system that allows the storage and exchange of DNA records
submitted by state and local forensic DNA laboratories.‖ La.R.S. 15:603(1).

2

forth a basis for the requested reconsideration. Because Defendant‘s claims

regarding mitigating and aggravating factors were not set forth in the objection

made by defense counsel or the motions for reconsideration of sentence,

Defendant‘s first assignment of error is not reviewed by this court. See La.Code

Crim.P. art. 881.1(E); State v. Senigal, 10-480, p. 2 (La.App. 3 Cir. 11/3/10), 50

So.3d 249, 251. However, this court will review Defendant‘s sentence for

constitutional excessiveness.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, 958-59 (first and second alterations in original), as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. ― ‗[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‘ ‖
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, ―[m]aximum sentences are
reserved for the most serious violations and the worst offenders.‖
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
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).

The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58
[(La.App.1998) ], stated that the reviewing court should consider three
factors in reviewing the trial court's sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court and
other courts.

3

The Defendant was convicted of forcible rape, which is punishable by

imprisonment at hard labor for five to forty years with at least two years of the

sentence imposed without benefit of probation, parole, or suspension of sentence,

and was sentenced to the maximum term of imprisonment with two years of the

sentence to be served without benefits. See La.R.S. 14:42.1(B).

Before imposing sentence, the trial court questioned Defendant. Defendant

said his date of birth was August 10, 1973, he had completed the twelfth grade, he

had done welding and carpentry work, he was not married, he had a fifteen-year-

old child and another seventeen-year-old child, and he took care of his kids but did

not pay child support. The State then set forth Defendant‘s criminal history as

follows:

He has a prior conviction for possession of CDS 2. He pled guilty to
that offense on 9/11 of 1995. He‘s had a possession of marijuana. He
pled guilty to that 5/13 of ‗05. DWI first, 9/30 of ‗03. Possession -
distribution, it was reduced to a drug paraphernalia that he pled to in
‗04. And then a charge from ‗06 that‘s possession of CDS 1, which
was a felony. He pled guilty to that on 9/1 of 2006. The only other
thing, there appears to be some charges that are pending that Mr.
Breedlove has. That would be a DWI second and a careless operation.

The trial court then stated the following:

All right, I‘m looking at the sentencing guidelines, Article
894.1, and I believe there is an undue risk during the period of
suspended sentence on probation that the defendant will commit
another crime. Of course, he‘s not entitled to a suspended sentence
because of the crime involved. I believe that he‘s in need of correction
[sic] treatment that can be provided most effectively by a commitment
to an institution. And because of this, the brutal way that this crime
occurred, I believed [sic] that a lesser sentence would deprecate the
seriousness of this crime.

I‘m looking at the aggravating factors in Paragraph B. The
offender - -- I believe that the offender‘s conduct during the
commission of the offense manifested deliberate cruelty to the victim.

4

The trial court then asked the State if there were any aggravating factors it would

like to have considered. The State averred there was deliberate cruelty to the

victim, and Defendant was a danger to women. The trial court then stated:

I do not find any mitigating factors.

One of the things that I usually do with mitigating factors is
reverse them and make them aggravating factors. I do find that the
defendant‘s criminal conduct caused serious harm to the victim. I also
believe that his behavior -- that he did contemplate that it would cause
or threaten serious harm. He did not act under strong provocation.

There are no substantial grounds tending to excuse or justify his
criminal conduct. The victim did not induce or facilitate the
commission of the offense. The defendant does have a history of prior
criminal activity.

I do believe that his criminal conduct was the result of
circumstances likely to reoccur. I‘m not saying that he would be -- he
would commit another rape. I‘m not, I‘m not sure of that, but I do
think that he would commit other crimes. And I do not believe he
would respond affirmatively to probationary treatment, which is not
appropriate.

I do not believe that this imprisonment would entail an
excessive hardship to himself or his dependents because they‘re living
in North Carolina.

The trial court then asked defense counsel if there were any mitigating

circumstances he would like the court to consider. Defense counsel noted

Defendant had not committed any other violent acts. Defense counsel also noted

Defendant had been the primary custodian of his two children, he had worked

various jobs, he had a girlfriend, he supported his girlfriend‘s children, he

maintained his innocence, he appeared at all stages of the proceedings, and he was

out on bail for an extended period of time without incident. Defense counsel

further noted Defendant was convicted of a responsive verdict and requested that a

mid-range sentence be imposed. The trial court then stated:

5

There‘s four factors that I consider in deciding the sentence, and one
of them is rehabilitation. Does the Defendant have sufficient
education, training and life experience to rehabilitate him self [sic]? I
do not believe so.

I have in the record a copy of the Rapides Parish Jail booking
sheet for the Court to review. It shows what Ms. Metoyer just said.
And it shows that he‘s had 12 arrests. This – this arrest was his
twelfth.

I have to give a sentence to create a general deterrence in the
community. I think that‘s the most important factor in sentencing in
Criminal Court. We -- of course, I‘ve been a Judge for 16 years and
we‘ve never had a seminar on sentencing, if you could believe that. So
this is what my opinion is, is I think general deterrence is why we
have criminal laws to tell everybody out in the community, do not do
that. And if you do this, this is what‘s going to happen.

The other thing I consider is the victim.

....

This crime was extremely brutal. I do not know of a rape case, even
though there was not physical abuse – I‘m talking with a fist or with
some type of weapon of the victim. The sexual violence in this matter
was very, very brutal. And I‘m not going to go into exactly what
happened to the victim, but the evidence speaks for itself. And I‘m not
saying the doctor said this -- Dr. Brian. I think I remember him saying
that he had never seen damage like this and when he got the police
officer‘s camera to take the picture of the damage that he saw.
Punishment -- I need to consider what sentence should be given to
specifically deter the defendant from future criminal conduct. Now, I
think that he needs some type of sentence. The sentence I‘m going to
give him is going to do this so that he doesn‘t do this in the future.
And I think that this sentence will do that. And I think that it‘s very
important that he be deterred from this kind of conduct in the future.

Defendant contends his sentence is excessive because he is not among the

most egregious and blameworthy offenders. Defendant contends J.P. did not

appear physically harmed, he was not armed at the time of the offense, he did not

threaten J.P., and there was nothing in the record to support the notion that J.P.

suffered from any ongoing emotion or psychological issues as a result of the

offense. Defendant notes that he had two prior felony convictions and two

6

misdemeanor convictions, but none were for violent offenses. Additionally, there

was nothing to suggest that his twelve arrests were for violent offenses.

This court has found several cases wherein the excessiveness of a sentence

imposed for forcible rape committed against an adult was addressed. In State v.

Green, 31,391 (La.App. 2 Cir. 12/9/98), 724 So.2d 812, writ denied, 99-303 (La.

6/4/99), 743 So.2d 1251, the victim, who was mentally impaired, walked to a bar

to buy beer and cigarettes. After the victim left the bar, the defendant followed the

victim down a wooded trail, came up behind her, covered her mouth, choked her,

threw her to the ground, and raped her. The defendant was convicted of forcible

rape and sentenced to forty years at hard labor, two years of which was to be

served without parole. The second circuit affirmed the defendant‘s sentence,

noting the defendant had been a poor student, had dropped out in the ninth grade,

had a flimsy employment record, had a previous conviction for distribution of

cocaine as well as a misdemeanor conviction for possession of marijuana, and had

his previous parole revoked when he tested positive for illegal drugs. The second

circuit also noted the victim was frail and suffered substantial psychological

damage as a result of the crime. This case is distinguishable from the case at bar,

as the Defendant herein has two prior felony convictions and the defendant in

Green had only one.

In State v. Jacobs, 07-1370 (La.App. 3 Cir. 6/5/08), 987 So.2d 286, writ

denied, 08-2000 (La. 4/3/09), 6 So.3d 769, the defendant was convicted of forcible

rape and sentenced to thirty years at hard labor. The defendant entered the victim‘s

hotel room, demanded the victim‘s money and keys while threatening to shoot her,

and engaged in nonconsensual sex with her. The defendant‘s criminal history

included a 1980 conviction in North Carolina for breaking and entering and

7

larceny, a 1985 conviction for simple assault, a 1994 conviction in North Carolina

for distribution of a Schedule II controlled dangerous substance, a 1994 conviction

in North Carolina for possession with intent to distribute cocaine, a 1996

conviction for simple burglary, a 1991 conviction in North Carolina for DWI, a

2001 conviction for distribution of a Schedule I controlled dangerous substance, a

2001 conviction in North Carolina for DWI second, and a 2003 conviction for

possession of drug paraphernalia. This court found the defendant‘s sentence was

supported by the record. The criminal record of the Defendant in the case at bar is

not as lengthy as that of the defendant in Jacobs.

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

defendant was convicted of two counts of forcible rape and was sentenced to serve

forty years on each count, to run consecutively. The defendant forced his first

victim into a bathroom at a washateria and had vaginal intercourse with her,

threatening to break her neck if she did not comply. The defendant then took the

victim‘s money. Two weeks later, the defendant forced his second victim into the

same bathroom, threatened to break her neck and kill her if she did not comply,

and had vaginal intercourse with her. The defendant then took the victim‘s money

and cell phone. The defendant was a third felony offender who had been arrested

forty-five times. The second circuit found his sentences were not excessive. The

present case shares similarities to the facts reported in Gray, although the

defendant did not, in this case, threaten harm to the victim. We also note that the

Defendant herein and the defendant in Gray were both third felony offenders.

In the case at bar, the trial court thoroughly considered the Defendant‘s

background and the nature of the offenses when imposing the sentence at issue.

Based on the nature of the offense, the Defendant‘s status as a third offender, the

8

legislative purpose behind the punishment, and a comparison of the sentences

imposed in Green, 724 So.2d 812, and Gray, 828 So.2d 176, we cannot say the

trial court abused its discretion when imposing the Defendant‘s forty-year

sentence. Accordingly, Defendant‘s assignments of error lack merit.

DECREE

Defendant‘s sentence is affirmed.

AFFIRMED.

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

9