State of Louisiana v. Alfred Mayo

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1296

STATE OF LOUISIANA

VERSUS

ALFRED MAYO

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2013-0633
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Edward J. Marquet
Louisiana Appellate Project
P. O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT-APPELLANT:
Alfred Mayo

Herbert Todd Nesom
District Attorney, Thirty-Third Judicial Court
Joe Green
Assistant District Attorney
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

The defendant, Alfred Mayo, was indicted on February 8, 2013, on ten

counts of aggravated rape, violations of La.R.S. 14:42, three counts of sexual

battery, violations of La.R.S.14:43.1, and one count of indecent behavior with a

juvenile, a violation of La.R.S. 14:81. A jury trial commenced on September 23,

2014, and the defendant was found guilty as charged on September 24, 2014. He

was sentenced on September 30, 2014, to ten terms of life imprisonment for the

aggravated rape convictions, twenty-five years imprisonment on each of the three

counts of sexual battery, and two years imprisonment on the single count of

indecent behavior with a juvenile. All sentences were ordered to be served

concurrently without the benefit of probation, parole, or suspension of sentences.

The defendant filed a “Motion for New Trial/Post Verdict Judgment of

Acquittal and Motion for Reconsideration of Sentence” on October 6, 2014, which

was denied without written reasons.

The defendant has perfected a timely appeal wherein he asserts the life

sentences imposed on the convictions for aggravated rape were excessive under the

circumstances of his case.

Between the dates of May 2012 and August 2012, the defendant who was

twenty-one years old, had repeated sexual intercourse with the victim, M.B., who

was twelve years old at the time.1

1
The victim’s initials are used to protect her identify. La.R.S. 46:1844(W).

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.

ASSIGNMENT OF ERROR

For his single assignment of error, the defendant alleges that the life

imprisonment sentences are excessive considering that he was only twenty-one

years old at the time of the offenses, that he has no prior criminal history, and that

the sexual contact was consensual.

Rapeis defined, in pertinent part, as “the act of anal, oral, or vaginal sexual

intercourse with a male or female person committed without the person’s lawful

consent.” La.R.S. 14:41. In pertinent part, La.R.S. 14:42 provides:

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:

....

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

This court has set out a standard to be used in reviewing excessive sentence

claims, as follows:

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

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discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746
So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been more
appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

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

1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In 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, this court added further

structure to the analysis:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, 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.

In the current case, at the sentencing hearing, the trial court stated:

Mr. Mayo, the Court takes into consideration the evidence presented
at trial that we just had in this matter. And I have, also, taken into
consideration the sentencing guidelines found in Code of Criminal
Procedure Article 894.1. This is a very tragic situation. Mr. Mayo, you
are a very young man, you are only 24 years old. You have got a wife
and three children. And I know from the testimony that you had a
mother who was gravely injured in a fire and that you took care of her
for some time. And I know you have, at least, a brother with whom
you were close. As a result of your actions, your children will not
have a father in their lives. And most tragic, though, is what you have
done to [the] life of [M]. According to her own testimony at trial, she
loves you and probably blames herself for you going to jail. Since you
have gone to jail she has been to Crossroads twice, she has been in-
patient in Shreveport once because of the damage your actions have

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caused to her mental and emotional well[-]being. Hopefully, with time
she can heal and have a normal, happy life.

The trial court further noted that the life sentence is mandatory in the case of

aggravated rape. See La.R.S. 14:42(D).

In brief, the defendant argues that there was no “grave and irreparable injury

to M.B.” He asserts any harm that she has suffered is due to the “severe

punishment” imposed on him. He argues that he has no prior criminal history. He

asks whether he deserves “to die in prison for his actions” or deserves the “same

sentence that a stalker who brutally rapes or a repeat violent offender.” For these

reasons, the defendant asserts that considering his young age and that the victim

loved him and wanted to have sex with him, the life sentences are constitutionally

excessive.

[A] trial court may reduce a presumptively constitutional sentence if
it determines the sentence makes no “measurable contribution to
acceptable goals of punishment” or that the sentence amounts to
nothing more than “the purposeful imposition of pain and suffering”
and is “grossly out of proportion to the severity of the crime” as
applied to a particular defendant. State v. Dorthey, 623 So.2d 1276,
1280-81 (La.1993). A court may only depart from the mandatory
sentence if it finds clear and convincing evidence that would rebut the
presumption of constitutionality. State v. Johnson, 97-1906, p. 7
(La.3/4/98), 709 So.2d 672, 676. Downward departures from
mandatory sentences should only occur in rare cases. State v.
Berniard, 03-484, p. 12 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 75,
writ denied, 03-3210 (La.3/26/04), 871 So.2d 345.

When a defendant seeks a downward deviation from the
mandatory sentence, he has the burden to rebut the presumption of
constitutionality by showing by clear and convincing evidence that he
is exceptional, namely that he is a victim of the legislature’s failure to
assign sentences that are meaningfully tailored to the gravity of the
offense, the culpability of the offender, and the circumstances of the
case. Berniard, 03-484 at 13, 860 So.2d at 75. A trial judge has broad
discretion when imposing a sentence and a reviewing court may not
set a sentence aside absent a manifest abuse of discretion. The issue
on appeal is whether the trial court abused its discretion, not whether
another sentence might have been more appropriate. State v. Dorsey,
07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130.

4

State v. Jacobs, 07-887, pp. 85-86 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 593-94,

writ denied, 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied, ___ U.S. ___, 133

S.Ct. 139 (2012) (footnote omitted).

In State v. Kiger, 13-69 (La.App. 5 Cir. 10/30/13), 128 So.3d 552, the

defendant was eighteen years old when he had sex with a girl under the age of

thirteen. The defendant argued that considering his youth, the life sentence was

excessive. The fifth circuit noted:

The Louisiana Supreme Court has previously held that a mandatory
life sentence for aggravated rape is a valid exercise of the state
legislature’s prerogative to determine the length of sentence for
crimes classified as felonies. State v. Farria, 412 So.2d 577
(La.1982); State v. Prestridge, 399 So.2d 564 (La.1981). The
mandatory life sentence for aggravated rape is a not a violation of the
prohibition against excessive punishment. See, State v. Talbert, 416
So.2d 97, 102 (La.1982) and State v. Lewis, 98-672 (La.App. 5 Cir.
3/10/99); 732 So.2d 556, 560, writ denied, 99-2818 (La.4/20/00); 760
So.2d 334. Defendant did not urge a downward deviation at the time
of sentencing. Defendant has not shown any exceptional
circumstances to justify a downward departure from the mandatory
life sentence. Additionally, he has failed to carry his burden of proof
that his life sentence for aggravated rape is unconstitutionally
excessive.

Id. at 560-61.

In State v. Arabie, 07-806 (La.App. 5 Cir. 3/11/08), 982 So.2d 136, writ

denied, 08-928 (La. 11/21/08), 996 So.2d 1104, the defendant argued that a life

sentence for aggravated rape was excessive considering there was only oral sex

and no penetration. He further argued that “the statutorily mandated life sentence

fail[ed] to distinguish rapists from murderers and contends that a child could be

raped in numerous ways that [were] far more heinous than the present case.” Id. at

142. The fifth circuit did not find this argument persuasive.

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In the current case, the victim, who stated she was in love with the

defendant, was only twelve years old at the time of the offenses. The defendant

was twenty-one and married with three children. He manipulated a young girl who,

by virtue of her age, could not legally consent to engaging in sexual intercourse. In

fact, he told the police that he had told the girl she should break up with him

because he could go to jail. The defendant was aware of the wrongness of his

behavior but chose to put the responsibility on the child. He continues to do so. As

correctly noted by the trial court, the victim has required in-patient treatment as a

result of the emotional and mental issues she has suffered directly related to his

victimization of her at such a young age. The defendant has failed to demonstrate

by clear and convincing evidence that he was entitled to a downward deviation of

the mandatory life sentence.

There is no merit to this assignment of error.

CONCLUSION

The sentences of ten terms of life imprisonment for the aggravated rape

convictions, twenty-five years imprisonment on each of the three counts of sexual

battery, and two years imprisonment on the single count of indecent behavior with

a juvenile are affirmed.

AFFIRMED.

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