KA-0016-0938 Nonprecedential Processed

State of Louisiana v. Robert N. Green

Louisiana Court of Appeal, Third Circuit · Filed July 19, 2017

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Hearold 603 So. 2d 731
State v. Kennerson 695 So. 2d 1367
State v. Ross 861 So. 2d 888
State v. Ross 876 So. 2d 829
State v. Marigny 532 So. 2d 420
State v. Self 719 So. 2d 100
State v. Calloway 734 So. 2d 1229
State v. Allen 830 So. 2d 606
State v. Traylor 961 So. 2d 571
State v. McDuffey 972 So. 2d 1163
State v. Clouatre 110 So. 3d 1094
State v. Clark 889 So. 2d 471
State v. Porter 639 So. 2d 1137
State v. Fruge 34 So. 3d 422
Blanda v. Kathryn Rae Towing, Inc. 50 So. 3d 828
Alex v. Rayne Concrete Service 951 So. 2d 138
In re Patrick 45 So. 3d 612
State v. Hollier 37 So. 3d 466
State v. Nargo 193 So. 3d 1263
State v. James 670 So. 2d 461
State v. James 555 So. 2d 519
State v. Hicks 559 So. 2d 1374
State v. Blunt 201 So. 3d 358
Ledford v. New Orleans Saints 19 So. 3d 466
State v. Decuir 61 So. 3d 782
State v. Fallon 189 So. 3d 605
State v. Cleveland 115 So. 3d 578
State v. Pusch 125 So. 3d 444
State v. Greenwalt 938 So. 2d 1073
State v. Williams 926 So. 2d 665
State v. Williams 939 So. 2d 360
State of Louisiana v. Toby James Fruge 179 So. 3d 579
State v. Fruge 139 So. 3d 602
State v. Despanie 949 So. 2d 1260

Opinion text

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-938

STATE OF LOUISIANA

VERSUS

ROBERT N. GREEN

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 9276-10
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

CONVICTION AND SENTENCE AFFIRMED.

John F. DeRosier
District Attorney – 14th Judicial District
Carla Sue Sigler
Assistant District Attorney – 14th Judicial District
P. O. Box 3206
Lake Charles, LA 70602
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee – State of Louisiana

p. 2

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602
Telephone: (337) 436-2900
COUNSEL FOR:
Defendant/Appellant – Robert Neal Green

Tara B. Hawkins
Attorney at Law
P. O. Box 3756
Lake Charles, LA 70602
Telephone: (337) 660-2232
COUNSEL FOR:
Plaintiff/Appellee – State of Louisiana

Karen C. McLellan
Assistant District Attorney – 14th Judicial District
901 Lakeshore Drive – Suite 800
Lake Charles, LA 70601
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee – State of Louisiana

p. 3

THIBODEAUX, Chief Judge.

Robert N. Green was convicted of simple rape, a violation of La.R.S.

14:43. He was sentenced to twenty-five years at hard labor, to be served without

benefit of probation, parole, or suspension of sentence. Green appeals the

conviction and the sentence. Finding no reversible errors in the jury’s conviction

and no abuse of discretion in the trial court’s sentence, we affirm the conviction

and sentence and the judgment of the trial court.

I.

ISSUES1

We must decide:

(1) whether the trial court improperly authorized the State to
use a peremptory strike to exclude a Black prospective
juror without proper justification;

(2) whether the evidence introduced at trial, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781 (1979) standard, was insufficient to prove beyond a
reasonable doubt, all of the elements of simple rape;

(3) whether the trial court erred in denying Green’s motion
for a new trial;

(4) whether trial counsel’s representation of Green fell below
the standard guaranteed by the Sixth Amendment of the
Constitution of the United States; and

(5) whether the maximum sentence imposed by the trial
court is excessive, in violation of the Eighth Amendment
of the Constitution of the United States and La. Const.
art. 1, § 20.

1
Pursuant to La.Code Crim.P. art. 920, the appeal was reviewed for errors patent, and
none were found.

p. 4

II. FACTS AND PROCEDURAL HISTORY

Sometime between the night of October 31, 2009, and the morning of

November 1, 2009, Robert Green committed simple rape of the victim, S.M. 2 (age

seventeen). Green and the victim were both working at McDonald’s on the night

in question. Green provided the victim with alcohol and then asked her for a ride

home. After consuming more alcohol, the victim passed out and awoke to Green

on top of her, performing sexual intercourse. Both the victim and Green were

nude. Green told the victim to get dressed and drove her home where they were

met by the victim’s distraught parents. The victim was later examined at the

hospital, and she had a blood alcohol level of .08/.09%.

IV. LAW AND DISCUSSION

Assignment of Error No. 2

In this assignment of error, Green challenges the sufficiency of the

evidence used to convict him. We address this issue first because if the evidence is

insufficient, the defendant must be discharged as to the crime, and any other issues

become moot. See State v. Hearold, 603 So.2d 731, 734 (La.1992).

Green asserts that the evidence was insufficient to prove the elements

of simple rape, specifically, sexual intercourse and lack of consent because of

intoxication. At the time of the offense, La.R.S. 14:43 provided in pertinent part:

A. Simple rape is a rape committed when the anal,
oral, or vaginal sexual intercourse is deemed to be
without the lawful consent of a victim because it is

2
Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity.

2

p. 5

committed under any one or more of the following
circumstances:

(1) When the victim is incapable of resisting or of
understanding the nature of the act by reason of a stupor
or abnormal condition of mind produced by an
intoxicating agent or any cause and the offender knew or
should have known of the victim’s incapacity.

When insufficient evidence is raised on appeal, the reviewing court

determines whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found that the essential elements

of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781 (1979). It is the fact finder’s role to weigh the credibility

of the witnesses; thus, 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.” State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.

5/7/97), 695 So.2d 1367, 1371.

Evidence

The first witness to testify for the State was Dustan Abshire, a

detective sergeant with the Calcasieu Parish Sheriff’s Office. He was contacted by

a patrolman and informed that the victim was at Lake Charles Memorial Hospital.

When Detective Abshire reached the hospital, the victim was being examined by a

sexual assault nurse. After speaking with the nurse, Detective Abshire believed a

rape may have occurred. Since the victim was intoxicated, Detective Abshire sent

her home with her parents and stated that he would contact her later for an

interview.

When asked what led him to believe that Green was a suspect in the

case, Detective Abshire responded:

3

p. 6

A. According to [S.M.], she worked with Mr. Green at
McDonald’s. They got off about the same time. And,
she advised he had asked her to bring him home that
night. They went from that point - - instead of going
home, she went - - he asked to bring her to the Exxon
station - - the McDonald’s excuse me. The McDonald’s
they worked at was the one at Broad and 14. When they
got off of work he asked if she could go to the Exxon
next door so he could pick up some more vodka. And,
they went from there to wherever they went that night
after that.

Detective Abshire testified that he received a surveillance video

corroborating S.M.’s testimony that she and Green had been at the Exxon across

from McDonald’s at approximately 11:20 p.m.

Green’s version of the night’s events were different. Detective

Abshire testified that in his statement Green said they both worked late, but left

McDonald’s separately:

He advised she left before he did, and he walked home.
He said he - - she didn’t get a ride from him. He did not
go to the Exxon with her, and he didn’t see her until
approximately 4:00 that morning when she was
intoxicated. He advised me that she was intoxicated and
needed a ride home. He drove to his mother’s house,
contacted her, said that he was bringing a coworker home
who was intoxicated and asked his mother to follow him
home.

Green’s mother gave Detective Abshire a statement corroborating

Green’s statement.

The following evidence was presented to the jury by stipulation:

The agreement is that the video shows a pickup
truck owned by [the victim’s father] and driven by [the
victim], occupied by Mr. Robert Green, arriving at that
Exxon station on October the 31st of 2009 between 11:15
p.m. and 11:20 p.m. And, it shows Robert Green exiting
the passenger side of that pickup truck, entering the
Exxon store, purchasing alcohol, appearing to be Taaka
vodka, and exiting the Exxon station and re-entering that
pickup truck on the passenger side.

4

p. 7

The victim testified that she was eighteen years old at the time of trial

and that her birthdate was September 3, 1992. In October 2009, the victim worked

at McDonald’s on Broad Street in Lake Charles; she was seventeen and was a

junior in high school. The victim had driven her dad’s truck to work. She was

scheduled to get off at 10:00, but her manager asked if she could work a little while

longer. The victim said she knew Green by “Rob” but did not know much about

him. They began having “small talk” and working the same shifts. When asked if

she and Green were friends, she said “no” and described Green as an associate or

co-worker. The victim stated that before she left work at 11:00, Green asked if she

wanted some alcohol. The victim said, “Sure.” She stated that he went on break,

walked across the street, came back and gave her a drink in a small cup, containing

alcohol mixed with orange-colored soda or Hi-C.

According to the victim, she had only tried alcohol once before. She

said she drank the entire drink given to her by Green, which she estimated was six

ounces. She said she “chugged it” to get rid of it before leaving work. According

to the victim, Green told her that he was going to get off early and would meet her

outside. When they met outside, Green had more alcohol. When asked if she was

feeling the effects of the alcohol after the first drink, the victim replied, “A little

bit.” After the victim accepted another drink from Green, Green asked the victim

for a ride. At Green’s request, she drove him to the Exxon across the street from

McDonald’s where Green bought more alcohol. Green then asked her to take him

to his cousin’s house. Green’s cousin came out to the truck, and they visited for

approximately twenty minutes. The victim said she had another drink at that time,

which she fixed herself. Realizing she could no longer drive, the victim allowed

5

p. 8

Green to drive her dad’s truck. She got in the back seat; Green backed the truck

up; she saw the stop sign; but “after that, everything else just kind of went away,”

and she blacked out.

The next thing the victim remembered was coming to in Green’s room

and seeing Green naked on top of her:

Q. And, what was Robert doing?

A. At that time I didn’t know, but I’m guessing it was
sexual intercourse with me.

Q. Where was he when you saw him?

A. When I saw him he was straight on top of me.

Q. Did you have any clothes on?

A. No, ma’am.

When asked if she had any doubts as to who was on top of her, the

victim said, “No, ma’am. I have no doubts.” The victim explained why she

believed she had been asleep and why she believed Green was having sexual

intercourse with her:

A. Okay. Were you asleep prior to this?

A. I believe so. Because, when I was coming to, I felt
pain, but I didn’t know where it was coming from. And,
it was like I was coming out of my, you know, blackout.
And, I didn’t know where it was coming from. But,
when I woke up I realized that, you know - - I realized
where the pain was coming from.

Q. Okay. And, where was the pain coming from?

A. Down in this area down here. [Indicating her
vaginal area].

6

p. 9

According to the victim, Green told her to change in the bathroom,

and he gave her clothes to put on. No other words were spoken. As for the pain in

the victim’s vaginal area, the following colloquy took place:

Q. You said you felt pain in your vaginal area. Did it
feel like he had penetrated you?

A. Yes, ma’am.

Q. Do you believe it was his penis or some other
object? What was it?

A. I believe it was his penis.

Q. Okay. Did you - - so, you opened your eyes and
he’s penetrating you vaginally, and you don’t say
anything?

A. No, ma’am.

Q. Okay. Does he continue to penetrate you or - -

A. No, ma’am.

Q. - - does he stop at that time?

A. He stops at that time.

After the victim changed into the clothes given to her by Green, Green

led the victim to the truck. When asked why she did not ask Green any questions,

the victim responded that she was still pretty intoxicated at that point and just

wanted to go home.

Q. Okay. At any time did you give consent to having
intercourse with Robert Green?

A. No, ma’am.

As for the victim’s memory of the night in question, the following

colloquy took place:

7

p. 10

Q. Were you all planning to go to his house to have
sex that night?

A. No, ma’am.

Q. Or for any other reason, to continue to drink?

A. No, ma’am.

Q. Did y’all plan to go there just to hang out?

A. No, ma’am.

Q. Do you recall him inviting you to his house?

A. No, ma’am.

Q. Do you recall taking off your clothes at his house?

A. No, ma’am.

Q. Do you recall how you ended up nude?

A. No, ma’am.

Q. Do you recall your clothes being washed or how
they got wet at all?

A. No, ma’am.

Q. So, all you know is what he told you about what
happened?

A. Yes, ma’am.

Since the victim was still intoxicated, Green drove her dad’s truck.

The victim remembered giving Green directions to her house and remembered

going into Wal-Mart to use the restroom. When asked if she was aware when she

was leaving Green’s house and if she was awake while in the truck, the victim

replied, “Yes, ma’am. I was awake.” The victim saw Green’s mother when she

exited Wal-Mart. When asked if they made it to her house, the victim replied,

“No, ma’am. . . . We got stopped on the corner right by my house.” She stated:

8

p. 11

A. I remember - - I remember feeling the truck stop.
And, then I remember my passenger door just like
swinging open. I remember my dad getting me out of the
car. And, when I got out, that’s when like they were, uh -
- a cop car with lights on, and the church - - there’s a
church on that corner, in the church parking lot. And, I
remember seeing my mom and my dad and a cop there . .
..

The victim also remembered that she was on the cell phone with her

sister when she felt the truck stop. The victim had her cell phone with her the

entire night but did not remember it ringing. She remembered the police officer

checking her alcohol level and then going home. She did not stay at home long,

however, because her parents took her to the hospital when they noticed that she

did not have anything on underneath the warm-ups. She said a bag containing her

uniform and undergarments was in the truck.

The victim testified that she was still “pretty drunk” when she got

home and did not tell her parents anything. At the hospital, the victim was

examined by a nurse. According to the victim, she was a virgin on October 31 and

had not had sexual intercourse. The victim remembered giving a statement to

Detective Abshire and telling the detective that she did not remember whether she

woke up with Green on top of her and penetrating her. When asked to explain the

inconsistency in her statement to police with her testimony at trial, the victim

replied:

A. When he started questioning me, that was soon
after, and there could have been some embarrassment
there. But, later on, when I had to go in front of [the]
grand jury they told me to - - he told me to actually really
think. And, some of the things started coming back to
me. And, then I remembered that part because I couldn’t
figure - - I remembered the pain vividly. . . .

9

p. 12

When asked if she was hung over after she left the hospital, the victim

stated that she felt bad and slept most of the day. According to the victim, she did

not have any bruises on her body when she went to work, except basketball bruises

“mainly on [her] leg.” She testified as follows:

Q. Okay. If the SANE nurse says that she saw bruises
-- a bruise -- a big, purple bruise or dark bruise on the
upper part of the buttock, can you attribute that to
anything?

A. No, ma’am.

Q. Okay. And, if she said she found bruises on your
neck or your collar bone, do you have any recollection of
what that could be or where it could come from?

A. No, ma’am.

Q. Do you remember seeing those bruises on
yourself?

A. I remember seeing them after they got called to my
attention, but they weren’t there before, so.

Q. Okay. They weren’t there before when?

A. They weren’t there before I went to work. They
weren’t there when I know I left work.

On cross-examination, the victim admitted that she told neither the

police nor the SANE nurse that she had been raped. When asked why she did not

tell either one of them, the victim explained that she was embarrassed and wanted

everything just to go away. The victim was pretty sure she had more than three

drinks but remembered only three. She testified that she was positive that she

never told Green she wanted to have sex with him. The victim stated she “didn’t

say a lie” to the SANE nurse or the detective; she just “didn’t say anything at all”

because she wanted to keep it to herself. She testified that she still had trouble

talking about it.

10

p. 13

The victim’s mother testified that when her daughter did not come

home at the appropriate time, they began calling her cell phone, drove around

looking for her, and called the police. About 4:00 a.m., the victim’s parents

spotted the truck. After getting the truck to stop, the victim’s mother ran up to the

truck looking for her. She said the victim was “in and out” and “non-responsive.”

She was a passenger in the truck, and a man was driving. The victim’s mother

quickly noticed that the victim was not wearing her clothes and that her hair was a

mess. When the victim and her parents arrived at home, the victim’s mother took

the victim to the bathroom. Seeing that the victim was wearing nothing under her

clothes, the victim’s mother brought the victim to the hospital. When asked if the

victim was able to explain what had happened before they arrived at the hospital,

the victim’s mother replied:

A. Nothing. [S.M.] was in and out. And, when we
got in the truck she had done passed out again on the way
to the hospital. We was able to go into the Memorial
Emergency Room. And, of course, the triage, you know,
before they call in for triage, that took a while. She fell
asleep again right there, just knocked out. It’s like she
didn’t really know where she was or what she was doing.
...

The victim’s father testified that when the victim was in the truck with

Green on the night in question, she was “[i]n and out, and like she was - - she was -

- she was conscious, and then she was like she would just drop out, conscious, and

then she would drop out.” He described the scene as follows:

A. He didn’t get out of the truck right then, because
my wife got out of the car, and I had him - - I was by the
driver’s side talking to him, because at that time I was
about to lose it. And, my wife was on the other side
saying, “Oh, my God, my child, my child. What you
done to my child? What you done to my child?” And, at
that time I said, “Man, what is going on here?” Then he
got out of the vehicle when I stated, “What is going on

11

p. 14

here?’ Then he said, “I’m just bringing her home.” And,
my wife said - - immediately said, “Why is my daughter
like this? And, on top of this, she don’t even have her
clothes. She don’t have the clothes that she had on when
she left my house. Where is [sic] her clothes?” Then
Mr. Green stated that he washed her clothes. I said,
“Man, what is going on here?” He said, “I didn’t do
nothing. I didn’t do nothing. I didn’t do nothing.” And,
he was on a cell phone, “Keep coming. Keep coming.
Oh, yeah, I can see your lights. Keep coming. Keep
coming.” I said, “Man, what did you do here? I need to
know what’s going on.” “Oh, I didn’t do nothing. I
didn’t do nothing. All I did was bring her home. I didn’t
do nothing. I didn’t do nothing.” And, he’s steady on
this cell phone, “Keep coming. Keep coming. Keep
coming.”

Even though the victim’s father tried to get Green to stay until the

police arrived, Green did not stay. Green’s mother arrived at the scene about ten

minutes after the victim’s parents stopped the truck. According to the victim’s

father, the victim appeared to be highly intoxicated. The victim’s father denied

ever suggesting to his daughter that Green raped her.

Leanne Suchanek, the DNA technical leader at the Southwest

Louisiana Crime Lab, was accepted as an expert in the field of forensic DNA

analysis and serology testing. Ms. Suchanek performed a DNA analysis on the

sexual assault kit collected from the victim as well as a reference sample collected

from the suspect. No evidence of seminal fluid was found in the victim’s kit, and

the only DNA found under the victim’s fingernails was the victim’s DNA.

Nothing on the items submitted to Ms. Suchanek traced backed to Green. Ms.

Suchanek concluded her direct testimony by stating that “[t]he absence of DNA

does not definitively preclude any contact.” On cross, Ms. Suchanek clarified that

the only item tested for DNA was the swabs from the victim’s fingernails.

12

p. 15

Margaret Steele, a forensic analyst with the Southwest Louisiana

Crime Lab, was accepted as an expert in blood alcohol analysis testing. Ms. Steele

tested the blood alcohol level from a sample taken from the victim. The sample

was received by Ms. Steele from the Calcasieu Parish Sheriff’s Office. According

to Ms. Steele, “the ethanol was present at 0.09 gram percent in the blood sample

from the kit taken from [S.M.].” Ms. Steele further testified that a kit was sent to a

laboratory called “AIT” for a complete drug analysis. The blood sample tested by

AIT tested positive for ethanol at 0.086 percent. Ms. Steele explained the decrease

in the ethanol content could have been caused by the AIT Laboratory using a

different vial of blood or from the evaporation of the alcohol caused by opening

the vial.

Tammy Vincent, accepted as an expert registered nurse in the field of

sexual assault nursing, examined the victim at approximately 8:00 a.m. on

November 1, 2009, at Lake Charles Memorial Hospital. According to Ms.

Vincent, a sexual assault examination consists of an examination of the victim

from head to toe, taking pictures of any injuries, drawing blood, and making

referrals as needed. Ms. Vincent read to the jury the following excerpt from her

report:

A. Okay. This is my report. “Awake, alert, oriented
x 3, black female, skin warm and dry, moves all
extremities, no respiratory distress. Patient was sleeping
when I arrived to greet her. She woke easily. She
ambulated to the office where we do the exam without
difficulty. Patient states, ‘Me and Rob got off about the
same time. He lives around the corner, so I was going to
give him a ride. He said he had to go to the gas station.
He bought me a drink and gave me some. It was, I think,
Taaka vodka and Hi C I think. I drank about half of a
cup, and it wasn’t that big.’ Patient states the next thing
she remembers is that she woke up in his room in a bed
and, ‘I remember walking out of the room with his

13

p. 16

clothes on because he said he had washed mine. They
were wet and he had cleaned where I had thrown up. He
had his mom follow us because I wasn’t in any shape to
drive. I had to use the bathroom, so we stopped at the
Wal-Mart. He drove me home. He passed up my street.
The truck stopped and my parents got him out of the
truck. It was the corner by my house.’ And, she states
she thinks the police were already there.”

As for her physical exam of the victim, Ms. Vincent stated:

A. Okay. No. 1 says, “Bruise, dark purple.” This is
going to indicate where the bruise is. That is going to be
on her hip on the left side about right here. No. 2 says,
“Swollen and tender.” This is up here at the top of her
head on her forehead right here. No. 3 says, “Faint
redness.” No. 3 indicates these areas right here on her
neck. And, No. 4 says, “Swollen and tender,” up here on
the right what we call the clavicle bone. That’s this bone
here that goes from your shoulder to the nape of the neck.
And, No. 5 says, “Abrasions from basketball.” This is an
abrasion on her knee that she reported to me she got
playing basketball. So, she knew how she got that injury.

Q. How did you ask her about all of these, 1 through 4?

A. She did not indicate to me that she knew how she
had received those injuries.

She next testified regarding the female genital diagram and analysis:

Q. Tell me what part of the body that is and what
those two numbers indicate.

A. Okay. No. 1, this is an area that we call the
posterior fourchette and the fossa navicularis. These two
areas are the most frequently injured area in the genital
area. No. 4 say, “Positive toluidine blue dye uptake in
the folds.” In other words, there was some - - there was
a fold there that toluidine blue dye stuck to. And, want
[sic] toluidine blue dye is a blue dye that’s often used in
labs for other things. But, sexual assault nurse examiners
use this dye to apply it to an area that appears to be an
injury. And, the blue dye adheres to the nucleated cell.
And, what that means is it adheres to the nucleus. You
are only going to have a nucleus in a torn area of the
skin. So, in order for it to stay there after I wash it away
with vinegar water, it’s only going to indicate that that
area of skin is not intact any longer.

14

p. 17

Ms. Vincent reported that on “No. 3,” the victim’s hymen was

described as having “[r]edness and abrasions with petechia.” She stated that the

redness could be irritation from contact; the abrasion was from some type of blunt

force; and the petechia was a pinpoint bruise that sometimes occurs with injury.

When asked what she saw when she examined the victim, Ms. Vincent replied:

Q. Okay. Blunt force on the hymen, that’s what you
stated you witnessed or you saw from your examination?

A. That’s what I saw on my examination.

Q. Okay. And, you know this is blunt force because
of the petechia that’s left there?

A. Because of the abrasion.

Q. Because of the abrasion, okay. And, No. 2?

A. No. 2, there are two tears seen. We saw those also
before and after application of the toluidine blue dye.

Q. So, she had two tears in that area, as well?

A. Yes, ma’am.

Q. Okay. So, 1, 4 and 2 show four particular tears.
And, that’s the outer area or the inner area, immediate
inner area of the vagina?

A. That is considered the inner area because you have
to separate the labia or the lips in order to see these areas.

Q. Okay. And, these - - this tearing, is that
consistent? What does that tell you as a SANE nurse
examiner? Are you able to reach any conclusions about
what this means this young lady experienced?

A. Well, these findings are consistent with the history
that she gave me of being possibly assaulted.

Ms. Vincent said the victim did not appear to be in any physical

distress but she did complain of pain and tenderness during the vaginal exam. On

cross-examination, Ms. Vincent testified that other than the bruise from basketball,

15

p. 18

the victim had no explanation for any of the other bruises. When asked if she

could tell how long the bruises (other than the basketball bruise) had been there,

Ms. Vincent testified, “I can say that they are newer. I cannot time date any kind

of bruising.” Ms. Vincent further stated the bruises appeared to be fresh because

they were still in the phase of lighter colors. According to Ms. Vincent, once a

bruise turns brown or yellowish, it is usually older than two or three days. Ms.

Vincent further explained that the abrasion labeled No. 1 was the “most frequently

injured area of the genitalia after sexual assault[,]” but the area can potentially be

injured another way. As for the abrasions labeled No. 2, Ms. Vincent testified that

they were caused by some type of blunt force trauma, but she could not say that

they were caused by a penis. Ms. Vincent also testified that she did not believe the

injuries to the victim’s vagina were caused by scratching.

Green argues that the State failed to prove two elements––intercourse,

and lack of consent because of intoxication––where the victim stated that she

guessed that Green was having sexual intercourse with her, and she believed that

he penetrated her with his penis. Green notes that the victim’s initial statement to

Detective Abshire was that she did not remember if anything sexual occurred. He

further notes that the SANE nurse could not say whether the tears in the victim’s

vagina were caused by a penis. He also argues that no seminal fluid was found in

the victim’s vagina, and his DNA was not found in the items tested. Further,

Green asserts that digital penetration could have caused the injuries noted by the

SANE nurse, and if the jury found that intercourse had occurred, the State failed to

prove that it was without the victim’s consent. The State contends that the victim’s

use of the word “believe” did not undermine the sufficiency of her testimony as to

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penetration; that her testimony alone was sufficient to establish penetration; and

that her testimony was supported by the physical findings of the SANE nurse.

Analysis

The evidence was sufficient to prove sexual intercourse. When asked

by the State if it felt like Green penetrated her, the victim replied affirmatively.

The victim also stated she believed the penetration was with Green’s penis. When

the victim awoke, Green was on top of her and was not wearing any clothes. The

victim also felt pain coming from her vaginal area. Upon examination, the SANE

nurse found redness, abrasions, and petechia consistent with sexual assault.

Although no seminal fluid was found in the victim’s vagina, it is well-settled that

“[e]mission is not necessary . . . .” La.R.S. 14:41(B). Additionally, “any sexual

penetration, when the rape involves vaginal or anal intercourse, however slight, is

sufficient to complete the crime.” La.R.S. 14:41(B).

In State v. Ross, 03-564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888,

writ denied, 04-376 (La. 6/25/04), 876 So.2d 829, this court was faced with a

similar issue. There, the defendant complained that the evidence was insufficient

to prove penile penetration, citing State v. Marigny, 532 So.2d 420 (La.App. 1 Cir.

1988) (insufficient evidence of penetration; victim testified she and the defendant

“had sex;” and no medical evidence of penetration was presented).

The Ross court, however, found another case more similar––State v.

Self, 98-39 (La.App. 3 Cir. 8/19/98), 719 So.2d 100, writ denied, 98-2454 (La.

1/8/99), 734 So.2d 1229. Prior to trial, the victim in Self described only improper

“touching” by the defendant. There was physical evidence of abuse, however, and

at trial, the victim answered “Yes” when asked, “‘Did he ever put his private part

17

p. 20

together with yours?’” Ross, 861 So.2d at 895 (quoting Self, 719 So.2d at 101).

Applying the Jackson standard, the court in Self found sufficient evidence of

penetration based upon the victim’s testimony and that of the pediatrician, a

specialist in child abuse, who testified that the victim’s vagina had been penetrated.

Id. Following Self, this court found penetration in Ross where the victim’s

testimony was supported by two physicians who examined her. The court

concluded that there was no evidence in the record to support the defendant’s

contention that there was only digital penetration. Consequently, in viewing the

evidence in the light most favorable to the prosecution, the court found that the

evidence was sufficient to support a conviction of aggravated rape. Id.

As stated earlier, it is well-settled that the victim’s testimony, alone, is

sufficient to establish penetration. State v. Allen, 02-593, p. 3 (La.App. 3 Cir.

11/6/02), 830 So.2d 606, 608. Considering the victim’s testimony in the present

case––she answered affirmatively when asked if she felt penetration; she believed

the penetration was from Green’s penis; and she felt pain when she awoke to

Green on top of her––along with the physical findings that were consistent with

sexual assault, the evidence was sufficient to prove the sexual intercourse element

in the present case. See State v. Traylor, 42,218, p. 5 (La.App. 2 Cir. 6/20/07), 961

So.2d 571, 574, writ denied, 07-1561 (La. 1/11/08), 972 So.2d 1163, where the

court found that even though the victim’s cross-examination may have caused

confusion as to whether there was penetration by the defendant’s penis or finger,

the victim’s testimony of penile penetration was supported by physical evidence,

and the jury, as the trier of fact, weighed her testimony.

Green further challenges the sufficiency of the evidence that the

victim was unable to consent or resist because of stupor or abnormal condition of

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p. 21

mind produced by an intoxicating agent. Green points out that the victim accepted

the first two drinks from Green; the victim prepared the third drink herself; the

victim described the drinks as child-sized; the victim was able to go to the

restroom at Wal-Mart without help; the victim recalled speaking to Green’s mother

when she exited Wal-Mart; and the SANE nurse described the victim as being

awake, alert, and ambulatory. Green further notes statements by the victim

indicating her thought processes: “When asked why she did not get help or call her

father while inside Wal-Mart, she first said she was not afraid and knew that she

was in trouble.” However, Green notes: “She later said that Green had her father’s

truck and she needed to stay with the truck. Both responses are indicative of

thought processes.” These same facts, Green contends, “apply to the third

element––that Green knew of S.M.’s level of intoxication.”

In response, the State points out that the victim’s blood alcohol level

was determined to be between .086% and .09%, and there is no testimony that the

victim had any more to drink after the alleged rape. The State further notes that the

victim had consumed alcohol only once before at a family reunion; she had at least

three drinks on the night of the rape; she blacked out after she crawled into the

backseat of the truck; and Green told her she vomited on herself. Additionally, the

State refers to the testimonies of the victim’s mother and father as to the condition

of the victim when she was brought home.

In State v. Clouatre, 12-407 (La.App. 1 Cir. 11/14/12), 110 So.3d

1094, the defendant claimed the evidence was insufficient to prove the victim was

incapable of resisting due to stupor or abnormal condition of mind produced by an

intoxicating agent. The defendant argued that the victim’s own testimony that she

told him to stop two times as he pulled her shorts down proved she was capable of

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resisting or understanding, was able to cry out and awaken others for help, and was

“completely aware at the time as to the nature of the act.” Id. at 1098. In response,

the first circuit articulated that

the “stupor or abnormal condition of mind produced by
an intoxicating agent” element of simple rape does not
require unconsciousness or such incognizance as to
render the victim unaware that she was raped; nor do the
victim’s verbal protestations during the act of rape
indicate that she was necessarily capable of effectively
resisting being raped. As the third circuit noted in State
v. Clark, 2004-901 (La.App. 3rd Cir. 12/8/04), 889 So.2d
471, 475, “the very purpose of the simple rape statute [is]
to criminalize behavior which takes advantage of a
person who has had too much to drink and participates in
an act to which he or she would not otherwise have
consented.” In Clark, C.T., the female victim, had
smoked marijuana and taken a muscle relaxer. C.T.
testified that after sleeping for a while she was awakened
by the sound of the defendant coming into her room. He
took off his clothes, got in bed with her, and proceeded to
have sex with her. Id. at 472-73. She testified that she
was “frozen” and did not fight him off, scream to a friend
for help, or try to get away. Rather, she pleaded with him
to stop and was overpowered by him. She stated that he
pinned her down, but he did not threaten her and was not
violent with her. The defendant testified the sexual act
was consensual. The third circuit found that under these
facts, the defendant was guilty of simple rape. Id. at 475.

In State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d
1137, 1143, the supreme court stated that a “defendant
may be convicted of simple rape when the victim’s
capacity to resist was negated by an abnormal condition
or state of mind produced by alcohol consumption.” In
Porter, there was evidence of alcohol consumption by the
victim and of an alcohol-influenced state of mind.
Although the victim denied excessive drinking and
recalled the events of the ordeal, a reasonable juror could
have concluded that the essential elements of simple rape
had been proved. There was evidence from which the
jury might have inferred, despite the victim’s
protestations of resistance, that she became intoxicated
with these two young men and that they criminally took
advantage of her alcohol-influenced incapacity to resist
their advances effectively. Porter, 639 So.2d at 1143.

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p. 23

....

In State v. Fruge, 2009-1131 (La.App. 3rd Cir.
4/7/10), 34 So.3d 422, 430-32, writ denied, 2010-1054
(La.11/24/10), 50 So.3d 828, a case similar to the instant
matter, J.H. drank alcohol, then fell asleep on the couch.
She was awakened by the defendant kissing on her neck,
grabbing her breasts, then finally vaginally penetrating
her. J.H. yelled for her sister, kept screaming “no,” and
finally pushed the defendant off of her. The defendant
denied having sex with J.H. He also testified he was
drunk and did not know exactly what was going on. The
third circuit found that under these facts, the State proved
beyond a reasonable doubt that the defendant committed
simple rape.

Thus, the jurisprudence on the offense of simple
rape makes clear that the element of stupor or abnormal
condition of the mind produced by an intoxicating agent,
such as alcohol, does not require an unaware victim with
no capacity to resist, but rather an agent-influenced
incapacity to effectively resist the advances of the
perpetrator. See Porter, 639 So.2d at 1143. The degree
of alcohol influence is for the jury to decide. Id. The
jury in this case, heard the testimony, viewed the
evidence presented to it at trial, and found the defendant
guilty. The jury apparently believed A.H.’s testimony,
which revealed that the defendant, after providing
enough alcohol to A.H. to make her sick and pass out on
the sofa, lay down on the sofa with her and proceeded to
rape an inebriated fourteen-year-old girl who could not
effectively resist his advances.

Clouatre, 110 So.3d at 1099-1100.

Considering the above jurisprudence, the evidence was sufficient to

prove the victim in the present case was incapable of resisting because of a stupor

induced by intoxication. By Green’s own admission, he drove the victim home

because she was too intoxicated to drive. The victim’s own testimony, the

testimony of the victim’s parents, the testimony of Detective Abshire, and the

blood alcohol results all support a finding that the victim was intoxicated. Since

Green was with the victim the entire time and provided the victim with her first

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p. 24

two drinks, the evidence was sufficient to prove he knew or should have known of

the victim’s incapacity. The jury apparently believed that the victim’s intoxication

caused her to be unable to effectively resist Green’s advances. This determination

was reasonable in light of the evidence. Thus, the evidence was sufficient to

convict Green of simple rape.

Assignment of Error No. 1

Green asserts that the trial court erred in allowing the State to use a

peremptory strike to exclude Lawrence Mitchell, an African-American male, as a

juror in this case. We disagree.

The Equal Protection Clause of the United States Constitution

prohibits engaging in purposeful discrimination on the grounds of race in the

exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712 (1986).

A defendant’s Batson challenge to a peremptory
strike requires a three-step inquiry. First, the trial court
must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory
challenge on the basis of race. Second, if the showing is
made, the burden shifts to the prosecutor to present a
race-neutral explanation for striking the juror in question.
Although the prosecutor must present a comprehensive
reason, the second step of this process does not demand
an explanation that is persuasive, or even plausible; so
long as the reason is not inherently discriminatory, it
suffices. Third, the court must then determine whether
the defendant has carried his burden of proving
purposeful discrimination. This final step involves
evaluating the persuasiveness of the justification
proffered by the prosecutor, but the ultimate burden of
persuasion regarding racial motivation rests with, and
never shifts from, the opponent of the strike. [Internal
quotations and citations omitted.]

Alex v. Rayne Concrete Serv., 05-1457, p. 15 (La. 1/26/07), 951 So.2d 138, 150-51.

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p. 25

Likewise, La.Code Crim.P. art. 795 provides:

C. No peremptory challenge made by the state or
the defendant shall be based solely upon the race or
gender of the juror. If an objection is made that the state
or defense has excluded a juror solely on the basis of race
or gender, and a prima facie case supporting that
objection is made by the objecting party, the court may
demand a satisfactory race or gender neutral reason for
the exercise of the challenge, unless the court is satisfied
that such reason is apparent from the voir dire
examination of the juror. Such demand and disclosure, if
required by the court, shall be made outside of the
hearing of any juror or prospective juror.

In discussing the first Batson criterion, i.e., the defendant’s prima

facie showing that the prosecutor exercised a peremptory strike for racial reasons,

the United States Supreme Court has stated:

We begin with Batson itself . . . . There, we held
that a prima facie case of discrimination can be made out
by offering a wide variety of evidence, so long as the
sum of the proffered facts gives “rise to an inference of
discriminatory purpose.” We explained:

“[A] defendant may establish a prima facie
case of purposeful discrimination in
selection of the petit jury solely on evidence
concerning the prosecutor’s exercise of
peremptory challenges at the defendant’s
trial. To establish such a case, the defendant
first must show that he is a member of a
cognizable racial group, and that the
prosecutor has exercised peremptory
challenges to remove from the venire
members of the defendant’s race. Second,
the defendant is entitled to rely on the fact,
as to which there can be no dispute, that
peremptory challenges constitute a jury
selection practice that permits ‘those to
discriminate who are of a mind to
discriminate.’ Finally, the defendant must
show that these facts and any other relevant
circumstances raise an inference that the
prosecutor used that practice to exclude the
veniremen from the petit jury on account of
their race.”

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p. 26

Johnson v. California, 545 U.S. 162, 169, 125 S.Ct. 2410, 2416-17 (2005) (quoting

Batson, 476 U.S. at 94, 96) (citations omitted)3. Thus, “a defendant satisfies the

requirements of Batson’s first step by producing evidence sufficient to permit the

trial judge to draw an inference that discrimination has occurred.” Johnson, 545

U.S. at 170.

In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317 (2005), the

Supreme Court described the second criterion, i.e., the prosecutor’s race-neutral

explanation for exercising the peremptory strike. “Although there may be ‘any

number of bases on which a prosecutor reasonably [might] believe that it is

desirable to strike a juror who is not excusable for cause . . ., the prosecutor must

give a clear and reasonably specific explanation of his legitimate reasons for

exercising the challeng[e].”’ Id. at 239 (quoting Batson, 476 U.S. at 98, n. 20).

The Court in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969 (2006)

discussed the third step of the Batson analysis, i.e., wherein the court must

determine whether the defendant has carried his burden of proving purposeful

discrimination. “This final step involves evaluating ‘the persuasiveness of the

justification’ proffered by the prosecutor, but ‘the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the

strike.”’ Id. at 974 (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769

(1995).

3
Before Batson, the defendant’s burden in step one was to show “an extended pattern” or
“continuity of discrimination over time” by the prosecutor, but this proved a “crippling burden of
proof.” Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324 (2005). Subsequently,
Batson held that “a defendant could make out a prima facie case of discriminatory jury selection
by ‘the totality of the relevant facts’ about a prosecutor’s conduct during the defendant’s own
trial.” Miller-El, 545 U.S. at 239 (quoting Batson, 476 U.S. at 94, 96).

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p. 27

Snyder v. Louisiana, 552 U.S. 472, 476, 128 S.Ct. 1203, 1207 (2008)

(citations omitted), provides the standard of review for Batson challenges:

On appeal, a trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is
clearly erroneous. The trial court has a pivotal role in
evaluating Batson claims. Step three of the Batson
inquiry involves an evaluation of the prosecutor’s
credibility, and “the best evidence [of discriminatory
intent] often will be the demeanor of the attorney who
exercises the challenge[.]” In addition, race-neutral
reasons for peremptory challenges often invoke a juror’s
demeanor (e.g., nervousness, inattention), making the
trial court’s firsthand observations of even greater
importance. In this situation, the trial court must evaluate
not only whether the prosecutor’s demeanor belies a
discriminatory intent, but also whether the juror’s
demeanor can credibly be said to have exhibited the basis
for the strike attributed to the juror by the prosecutor.
We have recognized that these determinations of
credibility and demeanor lie “‘peculiarly within a trial
judge’s province,’” and we have stated that “in the
absence of exceptional circumstances, we would defer to
[the trial court][.]”

For the following reasons, we find no clear error on the part of the

trial court in denying Green’s Batson challenge and in granting the State’s

peremptory strike of Mr. Mitchell as a potential juror.

Analysis

For purposes of context and clarity when pronouns are used, the

defendant in this case is a Black male; the victim is a Black female; the prosecutor

is a Black female, and the potential juror, Mr. Mitchell, is a Black male. The

record reflects that four of six jurors had been selected, and that the prosecutor

sought to use her third peremptory strike to eliminate Mr. Mitchell as a juror, when

Green raised the Batson challenge now under appeal. At that time, the following

colloquy occurred:

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p. 28

THE COURT:

Juror No. 236, Mr. Mitchell, will be excused with
the third peremptory of the State.

MR. COWARD:

Subsequently, the prosecution exercised a peremptory strike to

exclude Mr. Herman Singleton, also a Black male, from the jury. Green again

raised a Batson challenge to the peremptory strike, stating that the prosecutor had

already tried to exclude Mr. Singleton for cause, and Green thought her

peremptory strike was racially-motivated. The trial court asked the prosecutor for

a response, and she replied that she would re-urge the same reasons that she stated

in seeking to strike him for cause. The State’s reasons for striking Mr. Singleton

for cause had been his expression of specific biases against young girls of today,

stating that they are wild, aren’t raised properly, don’t dress properly, and flirt with

older men. He also indicated a view that Black males do not get a fair break in the

penal system. The State also discussed Mr. Singleton’s detailed discussion of

27

p. 30

being targeted with threats after witnessing a killing in New Orleans, indicating

that he might have difficulty sitting on a jury.

Previously, immediately following the State’s challenge for cause, the

trial court had stated that it too had concerns about Mr. Singleton’s partiality, but

since he was not otherwise disqualified under La.Code Crim.P. art. 797, the trial

court declined to strike him for cause. For the peremptory strike, however, the trial

court now stated that it had been a close call on Mr. Singleton for cause, and,

having already expressed those concerns, the court indicated that it did not need

[further] rationalization for the peremptory strike.

Having approved the peremptory strike against Mr. Singleton, who

was the second Black person at issue, the trial court now asked the prosecutor to go

back and give race-neutral reasons for her first strike against Mr. Mitchell. The

prosecutor responded as follows:

Mr. Mitchell is a young man. Didn’t just - - just
not making a lot of eye contact with me as a witness
seems not necessarily favorable to me as a person. And I
may have misspoke[n] when I said “as a witness.”

When dealing with him and speaking with him and
just watching his interactions during the course of the
proceedings, he’s not made a lot of eye contact with the
State. Seems indifferent to the entire process and being
here. He works in a warehouse at Halliburton which is
known for paying a pretty decent wage. He’s a college
graduate, considering grad school.

I just - - my inclination, based on the information I
was able to glean from him and his demeanor and the few
questions he did ask, is that - - that he did answer is that
he wouldn’t necessarily be a good witness for the State in
this particular case.

Green’s counsel responded that Mr. Mitchell never said he could not

be fair or that he could not be present. He argued that, while Mr. Mitchell might

28

p. 31

not want to be at the trial, no one really wanted to be there. He further argued that

Mr. Mitchell could probably get off work, and he saw no reason for the strike

“other than the possible race bias.” Ultimately, the trial court denied Green’s

Batson challenge, stating the following:

I find that the reasons that were given by the State
to be consistent with the observations of the Court.
While he did give verbal responses that he could be fair
and impartial, his body language was such that he only
answered when specifically requested. He did not
volunteer any responses on his own. With regard to the
eye contact and his other body language was such that he
was not comfortable, I find that to be sufficient for his
being excused on a peremptory challenge.

In the above language, the trial court did weigh the State’s reasons,

finding them consistent with the court’s own observations of Mr. Mitchell’s non-

verbal cues including lack of eye contact and negative body language, against

Green’s argument that Mr. Mitchell’s verbal response was appropriate. Alex

makes it clear that the burden of showing discriminatory intent in peremptory

strikes is always on the one opposing the strike. It is clear from Green’s response

to the State’s reasons at trial that Green did not show discriminatory intent on the

part of the State. Green’s mere use of the term “race bias” as a substitute for

articulable examples showing how such bias was applied did not persuade the trial

court, in whose purview such determination lies.

Green further contends that neither the State’s reliance nor the trial

court’s comments on Mr. Mitchell’s “body language” as a basis for a peremptory

strike were sufficient. However, body language and the prosecutor’s inclination in

this case were buttressed by further reasoning articulated by the prosecutor. More

specifically, in Alex, the Court stated that while “gut feelings” may factor into the

prosecutor’s reason to use a peremptory strike, “this reason, if taken alone, does

29

p. 32

not constitute a race-neutral explanation.” Alex, 951 So.2d at 153. Rather,

“[w]hatever is causing the ‘gut feeling’ should be explained for proper evaluation

of the proffered reason. Batson made it clear the neutral explanation must be one

which is clear, reasonably specific, legitimate and related to the particular case at

bar.” Id. (citing Batson, 476 U.S. at 97-98).

Here, the prosecutor explained that Mr. Mitchell did not make eye

contact with her and that he seemed “indifferent to the entire process.” She

mentioned his young age, that he was a college graduate working for Halliburton,

making a good wage, and considering graduate school. She mentioned his overall

demeanor and indicated that it was difficult to “glean” information from him. The

trial court agreed and stated that his observations were the same. Both the trial

court and the prosecutor indicated a dissatisfaction with Mr. Mitchell’s brief, or

closed responses. The totality of these reasons is clear and reasonably specific

under Batson and Alex. Under Snyder, “the trial court must evaluate not only

whether the prosecutor’s demeanor belies a discriminatory intent, but also whether

the juror’s demeanor can credibly be said to have exhibited the basis for the strike

attributed to the juror by the prosecutor.” Snyder, 552 U.S. at 476. “[T]hese

determinations of credibility and demeanor lie ‘peculiarly within a trial judge’s

province.’” Id.

Considering the above jurisprudence, the trial court did not commit

clear error in finding that the State’s reasons for excusing Mr. Mitchell were race-

neutral.

Finally, Green points to the State’s questioning of Mr. Mitchell during

voir dire, arguing that the State made race an issue at that time. The record reveals,

however, that the State’s questioning of Mr. Mitchell, and all potential jurors, was

30

p. 33

not a pre-text to hide racial bias. Rather, it was a direct question whose only

purpose was to eliminate the possibility of racial bias among the selected jury

members, after Mr. Singleton made numerous comments indicating his own race

and gender biases that would make it hard for him to find Green guilty.

More specifically, during voir dire, the prosecution asked Mr.

Singleton whether he could look beyond sympathetic feelings for the families on

either side and “just apply the facts to the law as presented and make a decision.”

Mr. Singleton, age fifty-three, provided a lengthy but honest answer indicating that

he could not. He discussed being in court for a previous trial of a “young black

guy that had robbed a store or a bank” and how sorry he felt for him and his

grandmother. He discussed “being a black American” and placing blame when

seeing “a black child get in trouble.” He further stated that, “most black American

kids lose their lives or they go to jail.” He then discussed how hard it would be to

judge a rape case because of watching flirtatious middle-school girls next door;

and Mr. Singleton essentially placed himself in the shoes of Green stating that he

too “could make that mistake.” When asked if he could still be impartial in

assessing the evidence as it was presented at trial, Mr. Singleton said, “it would be

hard to say this man is guilty because today is not like it was” when Mr. Singleton

was a teenager. He said kids are wild, don’t dress properly, and they drink alcohol.

It was against this backdrop and in this context that the prosecutor

questioned the next juror regarding his views of today’s youth and later questioned

Mr. Mitchell about whether he held views similar to Mr. Singleton. After asking

Mr. Mitchell eight general questions about his background and education, many of

that they wanted to speak about as possibly affecting their ability to decide whether

a crime had occurred. The prosecutor repeatedly stressed the importance of

impartiality throughout voir dire. She also tailored her individual questions to each

potential juror’s background, including the individual’s gender and employment

duties. For example, when she questioned a mother with daughters, she asked

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p. 35

whether that person could be fair and impartial on that basis. She often used a

previous juror’s comments to open a dialogue with the next potential juror, such as

the effect of crime television, once mentioned.

“The purpose of voir dire examination is to develop the prospective

juror’s state of mind not only to enable the trial judge to determine actual bias, but

to enable counsel to exercise [her] intuitive judgment concerning the prospective

jurors’ possible bias or prejudice.” Alex, 951 So.2d at 154. Under Alex, it is a

party’s failure to ask meaningful questions in voir dire that later exposes a sham

justification for a peremptory strike. Id. Here, we find no record evidence of such

pretext, ploy, or ruse on the part of the State and no clearly erroneous judgment on

the part of the trial court in granting the State’s peremptory strike of Mr. Mitchell.

Assignments of Error Nos. 3 And 4

Green combines two assignments of error asserting that the trial court

erred in denying his motion for new trial, and that his trial counsel’s performance

was ineffective. In fact, at the hearing on Green’s motion for a new trial, Green

combined his arguments for a new trial with his arguments of ineffective assistance

of counsel. Green attempted to call former counsel as a witness in order to explore

the issue. The State objected, arguing that ineffective assistance of counsel is

usually argued at a post-conviction relief hearing, and if pursued during the new

trial hearing, it could not be pursued again post-conviction. The trial court made it

clear that it would not be done twice, but still did not allow Green to call his

former counsel for testimony about his previous efforts. The hearing proceeded on

the traditional grounds for granting a new trial, but the overriding argument

continued to be ineffective assistance of counsel.

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p. 36

More specifically, Green argued that the “ends of justice” call for

Green to receive a new trial based on the ineffectiveness of his trial counsel.

Louisiana Code of Criminal Procedure Article 851(B)(5) provides for a new trial

when “[t]he court is of the opinion that the ends of justice would be served by the

granting of a new trial, although the defendant may not be entitled to a new trial as

a matter of strict legal right.” The standard for reviewing a motion for new trial on

this ground is an abuse of discretion standard. See State v. Guillory, 10-1231 (La.

10/8/10), 45 So.3d 612. “Generally, a motion for new trial will be denied unless

injustice has been done, no matter on what allegations it is grounded.” State v.

Hollier, 09-1084 (La.App. 3 Cir. 4/07/10), 37 So.3d 466, 475 (citations omitted).

The trial court did not find that an injustice had been done where a jury of six

unanimously found on the evidence presented that Green was guilty of simple rape.

Green further argued that McDonald’s co-workers should have been

interviewed and called as witnesses, as they would have confirmed that the victim

and Green flirted with each other and were in a relationship, calling into question

the credibility of the victim who denied flirting with, and being attracted to, Green.

Green also asserted that his mother, Theresa Baldwin, should have been allowed to

testify as she would have said that the victim did not appear intoxicated and did not

have the demeanor of someone who had been raped. Seeking to have the recently

obtained testimony of McDonald’s co-worker Claude Rankins heard by the court,

Green argued La.Code Crim.P. art. 851B)(3). It states that a new trial shall be

granted if “[n]ew and material evidence that, notwithstanding the exercise of

reasonable diligence by the defendant, was not discovered before or during the

trial, is available, and if the evidence had been introduced at the trial it would

probably have changed the verdict or judgment of guilty.”

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p. 37

While Green argued that the evidence was not previously discoverable

because McDonald’s would not allow interviews with employees because of a

pending lawsuit, it was pointed out that subpoenas could have been issued

requiring the employees to talk. The trial court also questioned the relevancy of

such witnesses since they were not with Green and the victim during the alleged

rape. When the trial court asked defense counsel whether Green had even told his

trial counsel about these witnesses and whether trial counsel refused to find the

witnesses, defense counsel stated that he did not know. Defense counsel admitted

that most of the employees either offered hearsay testimony or did not want to get

involved. Ultimately, the trial court found that the information was previously

discoverable and denied a new trial on that ground as well.

The trial court did however allow Green to proffer the testimony of

Claud Rankins for purposes of post-conviction relief and appeal. Green’s mother,

Theresa Baldwin, was also allowed to proffer her testimony. These two witnesses

underwent sworn examination and cross-examination the following day, in an

empty courtroom outside the presence of the trial judge.

Appellate counsel for Green does not expend argument on new

evidence under La.Code Crim.P. art. 851(B)(3), perhaps realizing that an

ineffective counsel argument runs counter to an argument that that same counsel

exercised due diligence in finding co-worker testimony that would have favored

his client. We agree with the trial court that co-worker testimony was available

and discoverable before and during trial through the normal subpoena and

discovery processes. On appeal, Green’s overriding argument is that, but for

ineffective assistance of counsel, co-worker testimony would have provided crucial

information to the jury about the credibility of the victim, and the ends of justice,

35

p. 38

pursuant to La.Code Crim.P. art. 851(B)(5), requires that a new trial be granted and

the omitted testimony be presented. We again agree with the trial court that no

injustice was done where a jury unanimously found under the evidence presented

that the seventeen-year-old victim did not consent to having sex with the

defendant, and the State proved the elements of simple rape at trial.

What we must now decide is whether the record, with the proffered

testimony, is sufficient to decide the issue of ineffective assistance of counsel.

This court has stated the following about the standard for proving ineffective

assistance of counsel:

“The standard of review on a claim of ineffective
assistance of counsel is deficiency in counsel’s
performance giving rise to a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

A criminal defendant is guaranteed
the effective assistance of counsel. United
States Sixth Amendment; La.Const. art. I, §
13. To establish a claim for ineffective
assistance, a defendant must show that
counsel’s performance fell below an
objective standard of reasonableness under
prevailing professional norms; and, that
counsel’s professional errors resulted in
prejudice to the extent that it undermined the
functioning of the adversarial process and
rendered the verdict suspect.

A claim of ineffectiveness is generally
relegated to post-conviction, unless the
record permits definitive resolution on
appeal. However, when the record is
sufficient for review, this Court will reach
the merits of complaints about counsel’s
performance and grant relief when
appropriate.

State v. Nargo, 15-779, pp. 7-8 (La.App. 3 Cir. 6/1/16), 193 So.3d 1263, 1268

(citations omitted).

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p. 39

Here, the trial court did not decide the ineffectiveness issue or allow

Green to call his former counsel to testify regarding his efforts at trial. However,

because Green indicated that Claude Rankins was the only co-worker whose

testimony the defense could “lock down,” and because the defense was allowed to

proffer that testimony and the testimony of Theresa Baldwin, we find the record

sufficiently complete to resolve the second prong of the issue, whether Green was

prejudiced by ineffective assistance of counsel.

More specifically, under Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052 (1984), for a defendant to establish that he received ineffective

assistance of counsel, he must show that (1) “counsel’s representation fell below an

objective standard of reasonableness” and that (2) “there is a reasonable probability

that, but for counsel’s unprofessional error, the result of the proceeding would have

been different.” Id. at 687-88. If the defendant fails to meet one of the criteria of

the two-pronged test, the reviewing court is not required to address the other one.

State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461 (citing State v.

James, 555 So.2d 519 (La.App. 4 Cir.1989), writ denied, 559 So.2d 1374

(La.1990)). “The object of an ineffectiveness claim is not to grade counsel’s

performance. If it is easier to dispose of an ineffectiveness claim on the [second]

ground of lack of sufficient prejudice, which [] will often be so, that course should

be followed.” Strickland, 466 U.S. at 697.

Here, pursuant to the proffer, Claude Rankins, age forty-five, testified

that he was an employee of McDonald’s and knew both Green and the victim. He

described the relationship between Green and the victim in October of 2009 as

“flirting with each other” and “probably dating.” However, he admitted that he

never saw them together outside of the work environment, nor did he socialize

37

p. 40

with either of them outside of work. Mr. Rankins was of the belief that the victim

consented to having sex with Green. He admitted, however, that he was not

present on the night in question.

Also pursuant to the proffer, Green’s mother, Theresa Baldwin,

testified that trial counsel visited her son in jail only once prior to trial. She also

stated, however, that when they wanted to get rid of counsel, he just kept coming.

She said that she talked to counsel many times and wanted to testify, but trial

counsel did not believe she should, reasoning that it may “reflect on [Green’s]

past.” When asked what she would have said if allowed to testify, Ms. Baldwin

stated she would have said that the victim and the victim’s father were lying.

According to Ms. Baldwin, the victim did not look intoxicated on the night in

question, nor did she look scared. Ms. Baldwin also testified that when they met

up with the victim’s father, the victim’s father thanked Green for bringing the

victim home, and the victim’s father seemed to be mad at the victim, not at Green.

We find that this testimony fails to show that Green was prejudiced by

his attorney’s omission of such testimony, as this evidence has no bearing on

whether a rape took place and would not have affected the evidence of rape

presented to the jury. Rankins stated that he thought that S.M. and Green were in a

relationship because they flirted at work. Even if there was flirting, S.M.’s

“flirting” with Green at work does not mean that she consented to having sex with

him. And Baldwin’s testimony would have been contradicted not only through the

testimonies of the victim herself, her parents, and Detective Abshire, but also by

the victim’s blood alcohol level of .08/.09%, and the objective medical findings of

bruising and tearing. Additionally, Baldwin was unaware that her son confessed to

giving alcohol to the minor, and her testimony would not likely have helped Green

38

p. 41

at trial. None of this testimony would have contradicted S.M.’s testimony

regarding the rape; none of this testimony concerns the elements of the crime; and

none of this testimony overcomes the objective evidence of simple rape under

La.R.S. 14:43.

Assignment of Error No. 5

In his final assignment of error, Green contends that the maximum

sentence imposed by the trial court is excessive. Green was convicted of a simple

rape that occurred on or about November 1, 2009, a violation of La.R.S. 14:43. At

the time the offense was committed, the penalty for simple rape was imprisonment,

with or without hard labor, without benefit of parole, probation, or suspension of

sentence, for not more than twenty-five years. La.R.S. 14:43. The trial court

sentenced Green to the maximum sentence of twenty-five years at hard labor,

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

Appellate counsel alleges that the counsel representing Green at

sentencing was ineffective for failing to file a motion to reconsider sentence. The

record reflects that a pro se Motion for Reconsideration of Sentence was filed on

January 28, 2015, and was denied as untimely. 4 After sentence was imposed, the

trial court asked defense counsel if he objected to the trial court’s ruling, to which

defense counsel responded, “Yes.” No specific grounds were alleged.

Green asserts that defense counsel’s failure to raise a specific ground

in either an objection or in a motion to reconsider sentence limits Green to a bare

claim of excessiveness. La.Code Crim.P. art. 881.1(E); State v. Blunt, 16-220

(La.App. 3 Cir. 9/28/16), 201 So.3d 358. Green contends that the counsel at

4
Defendant also filed a pro se request for resentencing, which was denied as untimely on
June 28, 2012.

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p. 42

sentencing was ineffective for failing to raise the following claims in a motion to

reconsider sentence:

Additionally, counsel representing Appellant at
sentencing erred in failing to file a motion to reconsider
following the imposition of a maximum sentence. The
court noted certain factors at sentencing that were either
misleading or based on insufficient information which
should have been more thoroughly addressed. Failure to
file this motion limits Appellant’s sentencing review to a
bare bones claim of excessive sentence, to his prejudice.
Counsel should have sought reconsideration and
addressed the issue of Appellant’s laughter during
sentencing, the court’s consideration of incorrect or
unsubstantiated facts and the excessiveness of the
sentence.

As previously discussed, ineffective assistance of counsel claims are

usually raised in an application for post-conviction relief, but may be addressed on

appeal when the record is sufficient to review them. Nargo, 193 So.3d at 1268.

Additionally, a claim of ineffective assistance of counsel at sentencing is not

cognizable on collateral review when the sentence imposed is within the authorized

range of the sentencing statutes. State v. Thomas, 08-2912 (La. 10/16/09), 19

So.3d 466. Because the record is sufficient to review Green’s ineffective

assistance of counsel claim as to his counsel’s failure to file a motion to reconsider

sentence, and because Green is precluded from raising the claim on post-

conviction, we will address the claim.

In State v. Parker, 16-1016 (La.App. 1 Cir. 2/17/17) (unpublished

opinion),5 the first circuit stated the following regarding an ineffective assistance of

counsel claim for failure to file a motion to reconsider sentence:

Louisiana Code of Criminal Procedure article 881.1(E)
provides that the failure to make or file a motion to
reconsider sentence precludes a defendant from raising

5
This case is cited at 2017 WL 658256.

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p. 43

an excessive sentence argument on appeal. . . . In the
interest of judicial economy, however, we will consider
the defendant’s excessive sentence argument, even
without a motion to reconsider sentence, to address his
claim of ineffective assistance of counsel. Failure to file
a motion to reconsider sentence in itself does not
constitute ineffective assistance of counsel.
Nevertheless, if the defendant can show a reasonable
probability that, but for counsel’s error, his sentence
would have been different, a basis for an ineffective
assistance claim may be found.

Parker, 16-1016 at p. 21 (citations omitted).

The court in Parker proceeded with an excessive sentence review and

ultimately found that the defendant failed to show a reasonable probability that his

sentence would have been different had his trial counsel filed a motion to

reconsider sentence. Following this same framework, we will first review Green’s

sentence for excessiveness.

The law is well settled concerning the 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. 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. The relevant question is whether the
trial court abused its broad sentencing discretion, not
whether another sentence might have been more
appropriate.

. . . [E]ven when a sentence falls within the statutory
sentencing range, it still may be unconstitutionally
excessive, and in determining whether a sentence shocks
the sense of justice or makes no meaningful contribution

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p. 44

to acceptable penal goals, this court has suggested that
several factors may be considered:

[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. 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.” 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. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91

(citations omitted).

Here, Green received the maximum sentence for the offense of simple

rape. “[M]aximum sentences are generally reserved for the worst offenders and

the worst offenses.” State v. Fallon, 15-1116, p. 6 (La.App. 3 Cir. 4/6/16), 189

So.3d 605, 609. At the sentencing hearing, the trial court noted that Green was a

49-year-old male. The State noted that simple rape is an enumerated crime of

violence and that Green is a second time violent offender and sexual offender.

Green was convicted in 1979 of one count of attempted aggravated rape and one

count of aggravated burglary, for which he was sentenced to concurrent sentences

of thirty-five years and ten years, respectively. Here, the State requested the

maximum sentence, noting that the victim was seventeen at the time of the offense

and that Green was at least thirty years older than she was. The State argued that

Green’s prior sexual history along with the age difference suggested that Green

took advantage of someone who was extremely vulnerable.

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p. 45

After the victim’s mother made a statement to the court, the State

asked the trial court to take note of the fact that Green laughed during the mother’s

statement. The State gave the following additional facts regarding Green’s

criminal history:

I know a PSI was not ordered, Your Honor. But, I do
show that when he was released he was paroled in 1993
on that initial attempted aggravated rape charge and
burglary charge, aggravated burglary charge, Your
Honor. He was arrested for molestation of a juvenile in
Baton Rouge, April the 9th of 1994, two counts. The
State has no indication that he was actually convicted. I
believe he pled to a misdemeanor offense, is my
understanding, as a result of that charge.

In 1999 he was arrested for operating a vehicle
while intoxicated. And, in 2000 he was arrested in Lake
Charles. These last two incidents, ’99 and 2000, in Lake
Charles for aggravated assault with a firearm and
resisting or interference in obstruction - - obstruction to a
police offender.

Your Honor, he was - - his parole was ultimately
revoked and he did resume - - have to go back to jail to
complete his sentence. So, I just want the Court to be
aware of the full take of who this individual is, even
though he -- his attorney has tried to argue in the late
motions that were filed, and unartfully I would add, that
this was an innocent man. He was convicted by a
unanimous - - unanimously by a six-person jury of this
crime.

His behavior after the initial egregious offense in
1979, the continued involvement in crimes involving sex
offenses against young persons is telling, and should be
considered by the Court.

And, with that, again, the State would ask that the
maximum imposition of 25 years without probation,
parole or suspension of sentence at hard labor be
imposed.

In response, defense counsel stated that the conviction was a

tremendous miscarriage of justice; that Green did not rape the victim; and that the

43

p. 46

victim had sued McDonald’s and had a profit motive. He again argued that prior

counsel had failed to investigate or properly represent Green at trial.

The trial court allowed Green to give a statement, warning him to not

rehash the facts of the case. Green began his statement with the following:

I would like to say that I could never apologize to
this person for something that isn’t true. So, I’m amazed
they got on the witness stand and lied repeatedly,
especially about she woke up and I was on top of her.
It’s so far from the truth it’s somewhat amusing to me.

If I was a woman and I woke up with somebody I
trusted and thought cared about my well-being, and was
having sex with me against my will, I would have been
highly upset emotionally, and extremely hurt. I would
have gotten out of that apartment quick as I could and let
someone know. I definitely wouldn’t let this person take
me home. If [S.M.] testified that she was scared or she- -

The State objected, and the trial court stopped Green from continuing

to read the letter but allowed Green’s letter to be filed into the record along with

numerous other letters the trial court had received from Green. Defense counsel

informed the court that it had no mitigating argument since his goal was to win the

appeal based on Green’s innocence. Before imposing sentence, the trial court

reviewed the factors set forth in La.Code Crim.P. art. 894.1. First, the trial court

noted there was an undue risk Green would commit another offense since he had

previously been convicted of a crime of violence and a sex offense. Second, the

trial court noted that based on Green’s history and the facts surrounding the

offense, a lesser sentence would deprecate the seriousness of the offense. As for

aggravating factors, the trial court noted the factors he deemed significant:

1) That the offender’s conduct during the
commission of the offense manifested deliberate cruelty
to the victim. As indicated, this is designated as a crime
of violence. It’s a physical assault on the victim’s body,

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p. 47

as well as there were mental injuries that have been
established.

2) The offender knew or should have known that
the victim of the offense was particularly vulnerable or
incapable to resistance due to extreme youth, advanced
age, disability or health.

In this situation evidence established that the
victim had passed out from alcohol. And, at that point
the offender should have known that they were
vulnerable, and took advantage of that situation.

The offender used his or her position or status to
facilitate the commission of the offense.

It’s noted that he was a coworker, offered her
alcohol, and then more after the work shift ended, as well
as requested a ride home from the victim.

The offender has - - it says, “used threats or actual
violence in the commission of the offense.”

As previously indicated, this is a designated crime
of violence under the Louisiana Code of Criminal
Procedure, and the Court finds that that would be an
aggravating matter, as well as physical evidence also
established that there were medical injuries associated
with the attack of the victim.

The offense has resulted in significant permanent
injuries or significant economic losses to the victim or
their family.

As indicated, and specifically, again revisited
today that the victim’s family has been traumatized by
the incident, as well as the victim herself.

It is noted that the offender has been previously
involved in sex offenses in the past. Other aggravating
circumstances in conjunction with that is that the
defendant has, in fact, had a prior conviction for a sexual
assault on an elderly individual, based on the facts of that
individual case, and now on a 17-year-old victim by the
facts of this case.

In looking at mitigating circumstances, the
defendant having no history of prior delinquency or

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p. 48

criminal activity, that is much more aggravating than
mitigating based on the history that’s before us today.

The criminal conduct, is it likely to reoccur or not?
Again, more aggravating than mitigating. Actions speak
louder than words.

And, is the defendant likely to respond to
probationary treatment? Unavailable in this situation.

The trial court then went over the sexual offender registration

requirements with Green. To conclude its reasons for the sentence imposed, the

trial court stated:

At this time the defendant has been found guilty of
the charge of simple rape by a jury, a violation of 14:43.
As reviewed by the history of the defendant, it is found
that he has in fact preyed on both the elderly and now the
young. It is the Court’s position that Mr. Robert Green is
a sexual predator, and as such it is the Court’s position
that he will be ordered to serve 25 years at hard labor,
said sentence to run without benefit of probation, parole
or suspension of sentence.

The trial court explained to Green that under La.R.S. 15:571.3, his

sentence is not subject to diminution for good behavior. Finally, the trial court

stated the following regarding Green’s conduct in court:

I would also note for the record I do find that very
disturbing and telling, Mr. Green, the lack of remorse and
the actions taken during the course of a victim’s
statement. That further confirms my issue that you
should not be free, that you do pose a threat to society.

Green contends that the trial court abused its discretion in imposing

the maximum sentence because the prior offense of attempted aggravated rape

occurred thirty-one years earlier when Green was seventeen years old. He further

contends that the judge commented that Green used his position as a co-worker to

facilitate the crime, even though Green had no authority over S.M. at their place of

employment. He further argues that the judge commented that Green “[u]sed

46

p. 49

threats or actual violence in the commission of the offense,” with no evidence to

support this conclusion. He argues that while S.M. had redness and light bruising,

there was no suggestion as to how or when these occurred, and that the State’s

theory of the case was not that threats or force were used, but that S.M. was too

drunk to consent.

As discussed in the review of the evidence for sufficiency, there was

evidence that the victim’s bruises occurred during the present offense. The victim

had several bruises which the SANE nurse described as “newer” because of their

coloring. When the victim was asked if she knew how she got the bruises, she

could only account for one being attributed to basketball. The others, she testified,

were not there when she went to work on the day of the offense. The nurse also

noted injuries to the victim’s vaginal area that were consistent with sexual assault.

Green further notes that the trial court did not allow Green to read his

seven-page letter in court. Additionally, Green asserts that he wrote another letter

to the court explaining the reason he laughed when the victim’s mother was

speaking. Green also questions whether the trial court relied upon incorrect

information when sentencing him. Attached to Green’s brief is a letter dated

October 12, 2011, from the Department of Public Safety and Corrections to the

sentencing judge. The letter states:

In accordance with La. R.S. 15:560.2 et seq., the
Louisiana Sex Offender Assessment Panel (SOAP)
previously referred to this Honorable Court a
recommendation that the above referenced offender be
designated a Sexually Violent Predator (SVP).

After further review and re-evaluation, the Panel
respectfully rescinds and withdraws its earlier
recommendation. As such, the Department of Public
Safety and Corrections requests that no hearing be
scheduled in this matter.

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p. 50

Green asserts that it is uncertain whether the trial judge’s conclusion

that Green was a sexual predator was based on a report by SOAP that was, as

indicated in the letter above, rescinded shortly after sentencing. The State

discounts the importance of the letter, noting there is no indication in the record

that the trial court was aware of SOAP’s original finding and noting that the trial

court based its finding on Green’s criminal history of preying on the elderly and

now the young. We agree with the State that the above letter does not call for

resentencing. There is no indication that the trial court relied upon SOAP’s

original decision at sentencing. Furthermore, if the trial court had received the

original determination by SOAP that Green was a sexually violent predator, the

trial court was required to schedule a hearing to review the recommendation

pursuant to La.R.S. 15:560.2. If the trial court found by clear and convincing

evidence that Green was a sexually violent predator or a child sexual predator,

Green would have had to comply with the lifetime registration and notification

requirements set forth in La.R.S. 15:560.3, et sequitur. Thus, the purpose of

SOAP’s finding was not to affect the trial court’s sentence of Green, and there is

no indication in the record that it influenced the trial court in sentencing Green.

Finally, Green cites several cases where fifteen-year sentences were

imposed for simple rape. See State v. Cleveland, 12-163 (La.App. 4 Cir. 4/10/13),

115 So.3d 578, writ denied, 13-926 (La. 11/8/13), 125 So.3d 444; State v.

Greenwalt, 41,145 (La.App. 2 Cir. 8/23/06), 938 So.2d 1073; and State v.

Williams, 05-673 (La.App. 5 Cir. 3/14/06), 926 So.2d 665, writ denied, 06-870

(La. 10/13/06), 939 So.2d 360.

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p. 51

After restating Green’s criminal history, the State notes that Green

committed the present offense less than one year after being released from prison

as a result of a parole violation. As for Green’s argument that the trial court failed

to consider that his previous conviction for attempted aggravated rape occurred

thirty-one years prior to the present offense and when Green was seventeen years

old, the State asserts:

The fact the crime happened so long ago is irrelevant
considering that this defendant was arrested for
molestation of a juvenile the year following his release
from his 1979 attempted aggravated rape conviction, that
he has been in and out of jail since his release, and the
instant offense occurred within 1 year of his release. The
defendant is not a first time felony offender whose last
crime was years ago; he has continuously been in
violation of the law.

As for Green’s argument that the trial court erroneously found that

Green was in a position of authority over the victim, the State contends that the

trial court was merely stating the facts of the case––i.e., that Green was a coworker

who offered the victim alcohol and requested a ride home––rather than making a

finding as to authority. Additionally, the State contends that Green used his

position as the victim’s coworker to facilitate the offense. Addressing Green’s

argument that the trial court erred in stating that Green used threats or violence

when the simple rape was based on the victim’s “stupor,” the State asserts that the

trial court properly noted that the victim was found with bruises she did not have

before she left with Green. The record supports the State’s assertions.

A similar case upholding the maximum sentence is State v. Fruge, 14-

1172 (La. 10/14/15), 179 So.3d 579. There, the supreme court reversed this

court’s finding that the maximum sentence for simple rape (twenty-five years

without benefits) was excessive. This court had remanded with instructions for the

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p. 52

trial court to impose a mid-range sentence to run concurrently with Fruge’s other

sentence for forcible rape. State v. Fruge, 13-1386 (La.App. 3 Cir. 5/7/14), 139

So.3d 602. Fruge had met both victims in social settings where the women

consumed alcohol and/or drugs and later passed out or fell asleep; the rapes

occurred during the periods of incapacity; and Fruge had no history of felony

arrests or convictions. Id. at 604. This court noted two simple rape cases where

only 15-year sentences were imposed and found that Fruge’s record did not

support a worst offender status or the imposition of the maximum sentence.

The supreme court reversed this court’s finding of excessiveness. The

supreme court recognized that a comparison of Fruge’s sentence to sentences

imposed for similar crimes raised questions as to the appropriateness of the

maximum sentence. Fruge, 179 So.3d at 584. Despite this concern, the supreme

court stated that while a comparison of similar cases may provide some insight, the

sentences must be individualized as to the particular offender and offense. Id. The

supreme court also stressed the discretion that must be afforded the trial court:

It is within the purview of the district court to
particularize the sentence because the district court
“remains in the best position to assess the aggravating
and mitigating circumstances presented by each case.”
The district court is given wide discretion in the
imposition of sentences within statutory limits, and the
sentence imposed should not be set aside as excessive in
the absence of a manifest abuse of discretion by the trial
court. Therefore, the only relevant question on review is
“whether the [district] court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate.”

Id. (citations omitted).

The supreme court noted that an important consideration was the fact

that the trial court ordered Fruge’s simple rape sentence to run concurrently with

50

p. 53

his forcible rape sentence, and that consecutive sentences would ordinarily be

appropriate since the rapes were not part of the same act or transaction. However,

the supreme court assumed that because Fruge was a first-time felony offender, the

trial court believed the imposition of concurrent sentences was proper. Id. at 584-

85. The supreme court concluded its discussion by stating the following:

The crime of simple rape presupposes that the
defendant has taken advantage of the victim’s abnormal
state of mind induced by intoxication or any other cause.
See La.R.S. 14:43(A). That a defendant may have taken
advantage of an unconscious or sleeping victim alone
does not place him among the most blameworthy of
offenders committing the crime of simple rape.
Nevertheless, the evidence related to the similar sexual
assaults in this case shows that this defendant has
engaged in a pattern of preying on young, incapacitated
women, a factor the district court was free to consider in
rendering the sentences in this case. Considering
defendant’s 2006 rape of J.H. in the context of his
behavior over an extended period of time, rather than in
isolation, we are unable to find that the district court
manifestly abused its broad sentencing discretion by
imposing the maximum term of imprisonment for the
rape of J.H., particularly since the district court would
have been justified in ordering consecutive sentences in
this case . . . .

Id. at 585-86 (footnotes omitted).

The present case differs from Fruge in that Green did not receive a

benefit like the imposition of a concurrent sentence. However, the facts of the

present case are more egregious. The victim in the present case was younger (age

seventeen) than the victim of the simple rape in Fruge (age twenty), and Green in

the present case was older (age forty-seven) than Fruge (age thirty-two). See

Fruge, 139 So.3d at 605, 607. Additionally, Green has a prior felony history

whereas Fruge had a couple of misdemeanors but no history of felonies. Id. In

view of the supreme court’s decision in Fruge, Green’s sentence is not excessive.

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The State cites State v. Despanie, 06-1269 (La.App. 3 Cir. 2/7/07),

949 So.2d 1260, which upheld the maximum sentence for simple rape. Despanie

was originally charged with aggravated rape and pled no contest to simple rape.

He was a first-time felony offender who worked as a certified nursing assistant at a

long-term care facility. Id. Despanie, nineteen, was observed having sex with a

ninety-two-year-old female resident suffering from dementia. Upholding the

maximum sentence, this court noted that Despanie’s credibility was seriously

called into question and that he received a significant benefit from his plea bargain.

Id. Here, while Green did not receive a benefit from a plea bargain, Green has a

felony history that Despanie did not have.

Considering the facts of the present case in light of Fruge and

Despanie, the maximum sentence imposed is not excessive. Additionally,

considering the detailed reasons given by the trial court in the present case, it is not

probable that a motion to reconsider sentence alleging the assertions made by

Green would have caused the trial court to impose a lesser sentence. Accordingly,

there is no merit to Green’s assignment of error alleging excessive sentence and no

merit to Green’s claim that his counsel was ineffective for failing to file a motion

to reconsider sentence.

V.

CONCLUSION

Based upon the foregoing, the jury’s conviction and the trial court’s

sentence are affirmed in all respects.

CONVICTION AND SENTENCE AFFIRMED.

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p. 55