State of Louisiana v. Ezra J. Coutee, II

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-345
STATE OF LOUISIANA
VERSUS
EZRA J. COUTEE, II
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APPEAL FROM THE

THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2019-408
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Jonathan W. Perry, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Chad M. Ikerd

Louisiana Appellate Project

P. O. Box 2125

Lafayette, LA 70502

(337) 366-8994

COUNSEL FOR DEFENDANT/APPELLANT:
Ezra J. Coutee, II

James R. Lestage

District Attorney

Richard A. Morton

Assistant District Attorney

Thirty-Sixth Judicial District

P, O. Box 99

DeRidder, LA 70634

(337) 463-5578

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant appeals his convictions for first degree rape and unauthorized
entry of an inhabited dwelling, and his sentence of life in prison without the
possibility of parole, probation, or suspension of sentence as to the first degree rape
conviction. For the reasons herein, we affirm the convictions and the sentences
imposed.

FACTS AND PROCEDURAL HISTORY

On July 18, 2019, Defendant, Ezra J. Coutee, II, was charged by bill of

information with one count of first degree rape of LR.,. in violation of La.R.S.
14:42, and one count of home invasion, in violation of La.R.S. 14:62.8.

Subsequently, a bill of indictment was returned by the grand jury on January 15,

2020, again charging Defendant with first degree rape and home invasion. On
February 4, 2020, Defendant pled not guilty to the charges.

Trial on this matter began January 31, 2022. The evidence presented at trial
showed that on April 20, 2019, the victim, J.R., who lived alone at the time,
awakened in her bed at her home in DeRidder, Louisiana, to encounter a man on
top of her. He threatened her, and then proceeded to rape her. While she later
reported that the perpetrator “attempted” to rape her, she did also tell authorities
investigating the crime that he did actually penetrate her vaginally though not fully,

as he was having difficulty getting or maintaining an erection. The perpetrator got

' Pursuant to La.R.S. 46:1 844(W), the victim’s initials are used to protect her identity.

” On count one, the bill of indictment charged Defendant under alternative provisions of
La.R.S. 14:42. The first alternative alleged Defendant violated La.R.S. 14:42(A), which defines
first degree rape as “a rape committed upon a person sixty-five years of age or older[.]” The
second alternative alleged Defendant violated La.R.S. 14:42(A)(2), which defines first degree
tape as a rape committed without the victim’s consent because she was “prevented from resisting
the act by threats of great and immediate bodily harm, accompanied by apparent power of
execution.” Prior to trial, there was a stipulation that the victim was over the age of sixty-five at
the time of the offense. Therefore, the second alternative was not read to the jury as the only
question was whether there was nonconsensual sexual intercourse.

J.R. out of bed and took her to different parts of the house, but she eventually
managed to distract him and escape to a neighbor’s home, where she called 911.
The perpetrator ran out of the house hastily as J.R. escaped. Deputy Douglas
Cooley of the Beauregard Parish Sheriff's Office (BPSO) was the first to arrive.
He initially questioned J.R., before proceeding to J.R.’s home where the offense
occurred to process the scene.

Deputy Cooley and Detective Travis Thomson, also with BPSO, recovered
several items from the victim’s home that were left behind by the perpetrator,
including a pair of eyeglasses and a jacket that had a lighter, a pair of gloves, and a
rolled cigarette in the pockets. They also recovered a pair of men’s boots.
Detective Thompson then recovered a screwdriver from a trail behind the home,
which J.R. reported the perpetrator used to threaten her. J.R. was taken to be
examined by a Sexual Assault Nurse Examiner (SANE), Elizabeth Broussard, who
collected rape kit evidence including vaginal swabs for DNA testing. Those swabs
were later transported to the Southwest Louisiana Crime Laboratory (SWLCL) for
further DNA analysis.

Monica Quall, accepted as an expert in DNA Serology Analysis and
employed with SWLCL, testified that she extracted a single subject DNA sample
from the eyeglasses and the cigarette. That DNA profile was given to BPSO.
Detective Thompson ran a CODIS DNA database search on the profile, which
showed a match to Defendant’s DNA profile, present in the database because of
prior criminal activity. Detective Thompson then participated in the arrest of
Defendant, who was in Lafayette at the time, and after the arrest, Detective
Thompson secured a search warrant to secure a DNA sample from Defendant
through an oral swab. He also took pictures of tattoos on Defendant’s chest and

legs, as J.R. had reported seeing tattoos on these areas of her attacker. Defendant

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in fact had tattoos in those areas. The sample DNA profile was sent to the crime
labs for comparison purposes.

Ms. Quall also testified that she extracted two male DNA samples from the
vaginal swabs found in the rape kit evidence but was unable to test them because
of the sample size. She transported that sample to the Northwest Louisiana Crime
Lab (NWLCL) in Shreveport, which has the capability to perform specific testing,
YSTR, of the labia minora and labia majora samples, as SWLCL no longer did
YSTR testing. This testing focuses specifically on male DNA profiles. Michelle
Jackson, DNA Section Supervisor with NWLCL since 2013 and accepted by the
court as an Expert in Forensic DNA Analysis, testified that DNA “obtained from
the extract labia minora from [J.R.] was consistent with the YSTR haplotype
contained from the extract from the reference from [Defendant].”

Defendant testified on his own behalf. He denied raping J.R., stating that he
had been engaged in a long-term sexual relationship with her, having met her
through her son. He claimed to be a Sergeant with the Arian Brotherhood of Texas,
and had given the son methamphetamines to sell, but the son purportedly did not
pay him what was owed for the drugs. He claimed he went to the home of J.R. on
the day in question to kill the son, and also J.R. as “collateral damage.” He claims
that J.R. let him into the home. The son was not present, and he and J.R. then
attempted to have sexual relations but were unable to do so because of his erectile
dysfunction issues. Defendant testified he had a change of heart as to harming J.R.
and told her of his plan, making her angry. He claimed to have left the home after
she began screaming and acting hysterically.

On February 3, 2022, Defendant was unanimously found guilty by the
twelve-person jury of one count of first-degree rape and one count of unauthorized

entry of an inhabited dwelling, in violation of La.R.S. 14:62.3, a responsive verdict

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to the original home invasion charge. Following the denial of a motion for a new
trial on February 10, 2022, Defendant waived the twenty-four hour sentencing
delay, agreeing to be sentenced immediately, and was sentenced to life in prison
without the possibility of, parole, probation, or suspension for the first-degree rape.
He was also sentenced to six years at hard labor on the unauthorized entry charge.
The trial court further found Defendant guilty of contempt of court for an off-the-
record outburst and use of profanity during a pretrial hearing. The court ultimately
sentenced Defendant to thirty days in parish jail for the contempt charge. The
court ran all three sentences concurrent to one another.

This appeal followed, wherein Defendant asserts three assignments of error.

I. The State failed to sufficiently prove that Ezra Coutee was
guilty of first-degree rape and unauthorized entry of an
inhabited dwelling.

II. If the evidence was sufficient to prove a non-consensual
encounter, at best, the evidence supported a lesser included
offense of attempted first-degree rape.

Il]. The trial court erred in failing to determine whether a

mandatory life sentence for first-degree rape was constitutional
in this case.

DISCUSSION OF ASSIGNED ERRORS

Sufficiency of the Evidence

Defendant asserts in his initial assignment of error that the evidence is
insufficient to support the guilty verdicts for first degree rape and for the
unauthorized entry of an inhabited dwelling. We disagree.

When determining claims of insufficiency of the evidence to sustain a
conviction, an appellate court must review the record in the light most favorable to
the prosecution and be convinced that a rational factfinder could readily have

found the defendant guilty beyond a reasonable doubt of the offense. Jackson vy.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). The Jackson standard applies to our
review in the instant case and is well settled.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found proof beyond a reasonable doubt of each
of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct, 2781, 61 L.Ed.2d 560 (1979); State v. Weary,
2003-3067 p. 17 (La.4/24/06), 931 So0.2d 297, 310, pet. for cert. filed
September 20, 2006 (No. 06-6799); State v. Captville, 448 So.2d 676,
678 (La.1984). The fact-finder weighs the respective credibilities of
the witnesses, and this court will generally not second-guess those

determinations. State v. Dabney, 2002-934 p. 1 (La.4/9/03), 842
So.2d 326, 327; State ex rel. Graffagnino v. King, 436 So.2d 559, 563
(La.1983) (“It is the role of the fact-finder to weigh the respective
credibilities of the witnesses, and this court will not second-guess the
credibility determinations of the trier of fact beyond our sufficiency
evaluations under the Jackson standard of review.”).
State v. Ordodi, 06-207, p. 10 (La. 11/29/06), 946 So.2d 654, 660.
Defendant was convicted of first degree rape in violation of La.R.S.
14:42(A), which provides in pertinent part that “[f]irst degree rape is a rape

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committed upon a person sixty-five years of age or older[.]” Rape is defined as
“the act of anal, oral, or vaginal sexual intercourse with a male or female person
committed without the person’s lawful consent.” La.R.S. 14:41(A). Further,
“Te]mission is not necessary, and 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).

Unauthorized entry of an inhabited dwelling is “the intentional entry by a
person without authorization into any inhabited dwelling or other structure
belonging to another and used in whole or in part as a home or place of abode by a
person.” La.R.S. 14:62.3(A). An unauthorized entry is an entry without the

express or implied consent given by a person with the authority and capacity to

consent. State v. Ortiz, 96-1609 (La. 10/21/97), 701 So.2d 922, cert. denied, 524

U.S. 943, 118 S.Ct. 2352 (1998). “In the case of a private residence, a person must
have the consent of the occupant or an occupant’s agent to constitute a defense to
unauthorized entry.” State v. Butler, 06-645, p. 5 (La.App. 5 Cir. 12/27/06), 948
So.2d 296, 299.

We find the evidence presented here more than sufficient, when viewed in
the light most favorable to the prosecution, to prove all elements of each of the
offenses beyond a reasonable doubt. J.R., who the parties stipulated was 70 years
of age at the time of the crime, described the events of the attack in great detail,
testifying that she woke up in her bed with Defendant on top of her.

I was awakened -- it was just a soft type touch somewhere -- at

those times you can think back and you can know but you don’t know

where. J was touched on my body and the person said, “don’t move”.

Apparently, I flinched or something and at that point they said, “don’t

move or I’I] kill you”, and I knew then that J was in danger.

While she described the ensuing event in some testimony as his attempt to rape her,
J.R. clearly states numerous times that Defendant did in fact penetrate her
vaginally, at least slightly.

Well, he - at that point it was -- he got on the bed and he moved

my leg and he tried to, you know, rape me. And he failed, and then he

kind of pulled himself back and he got ahold of his penis to try to, I

guess make the hardness come. And then he penetrated, didn’t

penetrate very far because he never could, you know, he couldn’t get

it in there. But he did try with his hand and then he just quit and he

got up and he wanted 1.7 million dollars.

Defendant testified at trial that he and J.R. had been engaged in an ongoing
sexual relationship for the four and a half years prior to the date of the offense. He
argues that the evidence presented did not disprove this encounter as consensual
intercourse, and he testified that J.R. let him into her home on the morning in
question. J.R., however, adamantly refuted that she and Defendant had any type of

relationship prior to the rape and in fact stated that the last time he had been in her

home, to see her son, was one and a half years prior to the attack. Even then, she

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only knew his name as Izzy, and did not approve of him being in her home,
because of comments he made to her that day.

Defendant also testified that he could not actually engage in intercourse that
day, because of erectile dysfunction issues. That testimony is at odds with the
testimony of SANE Nurse Elizabeth Broussard, who testified that she examined
J.R. and found that she had a tear in her labia majora, which is the outer area of her
vaginal region, as well as redness inside the urethral meatus, inside the genital
structure, and even further inside the labia minora. She testified that these findings
were consistent with blunt force trauma. Defendant’s testimony is also at odds
with the testimony of Michelle Jackson, DNA Section Supervisor of NWLCL in
Shreveport, who stated that the DNA “obtained from the extract labia minora from
[J.R.] was consistent with the YSTR haplotype contained from the extract from the
reference from Ezra Coutee.”

The jury found the testimony of J.R. and the other witnesses presented by
the State to be more credible. While there was much evidence to support the
testimony of J.R., it is clear under our law that the testimony of a sexual assault
victim alone can be sufficient to support a guilty verdict. State in Interest of E.S.,
18-1763 (La.10/22/19), 285 So.3d 1046. It is obvious the jury gave little if any
credibility to the testimony of Defendant. That is understandable, in light of his
admission at trial that he lied to the investigating deputies, and that he had
committed numerous felony crimes in the past, including murder. It is for the trier
of fact to make credibility determinations, not this court, and the trier of fact may,
within the bounds of rationality, accept or reject the testimony of any witness.
State v. Mussall, 523 So.2d 1305 (La.1988). Accordingly, we affirm the
convictions of Defendant for first degree rape and unauthorized entry of an

inhabited dwelling.

Attempted First Degree Rape versus a Completed Offense

Defendant’s second assignment of error claims the evidence only supported
a lesser included offense of attempted first degree rape rather than the completed
offense, as there was insufficient evidence of the element of penetration. We have
already determined that the evidence presented was sufficient to support the jury’s
finding of guilt as to the charge of first degree rape. As such, Defendant’s second
assignment of error is rendered moot.
Excessive Sentence

Defendant finally asserts that his sentence of life in prison on his conviction
of first degree rape is constitutionally excessive. Pursuant to La.R.S. 14:42(D)(1),
the penalty for first degree rape in this instance is statutorily mandated: “Whoever
commits the crime of first degree rape shall be punished by life imprisonment at
hard labor without benefit of parole, probation, or suspension of sentence.” The
mandatory life sentence for aggravated rape, now first degree rape, is a valid
constitutional exercise of the state legislature’s right and authority to determine the
length of sentence for felony crimes. State v. Prestridge, 399 So.2d 564 (La.1981);
State v. Farria, 412 So.2d 577 (La.1982); and State v. Talbert, 416 So.2d 97
(La.1982).

We note that Defendant failed to object to the sentence orally in court and
did not timely file a motion to reconsider sentence. Therefore, his claim for
excessiveness of sentence is barred per La.Code Crim.P. art. 881.1(E). State v.
Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356.

In State v. Thomas, 50,898, p. 22 (La.App. 2 Cir. 11/16/16), 209 So.3d 234,
pp. 247-48 the second circuit reviewed a similar claim that the trial court erred in
its failure to consider a downward departure from the mandatory life sentence for

first degree rape, then referred to as aggravated rape.

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[T]he downward departure from a mandatory minimum sentence may
occur in rare circumstances if a defendant rebuts the presumption of
constitutionality by showing clear and convincing evidence that he is
exceptional, namely, that he is a victim of the legislature’s failure to
assign sentences that are meaningfully tailored to the gravity of the
offense, the culpability of the offender, and the circumstances of the
case... . The “rare circumstances” in which a mandated sentence can
be altered are even less likely in the case of a life sentence chosen by
the legislature for a single crime, such as aggravated rape or second

degree murder. State v. Chandler, [41,063 (La. App. 2d Cir. 9/08/06),

939 So.2d 574, writ denied, 06-2554 (La. 5/11/07), 955 So.2d 1277].

In such crimes, unlike the mandatory minimum sentence under the

habitual offender law, the “tailoring” of the sentence by the legislature

was for life because the culpability of offenders and the gravity of the

offense are so great. Id.

Defendant had the burden of showing the trial court through evidence that he
is entitled to a downward departure from the mandatory life sentence, but he failed
to present any evidence showing that he is exceptional or that his sentence was not
meaningfully tailored to the offense. He did not argue for a downward departure
prior to sentencing, nor did he file a motion to reconsider the sentence thereafter.
In any event, considering the evidence of the heinousness of this crime, its effect
on J.R.’s life, and Defendant’s criminal history, we find no downward departure
from the mandatory sentence to be warranted. As clearly stated by our supreme
court in State v. Foley, 456 So.2d 979, 983 (La.1984), “{a]ggravated rape [now
referred to as first degree rape] inflicts mental and psychological damage to its
victim and undermines the community sense of security[]” and “deserves a harsh
penalty; it is one of the most violent felonies a person can commit.” Defendant’s
allegation of error as to this sentence is without merit.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record in its entirety,

we find errors in the minutes of the jury verdict, the minutes of sentencing, and the

Uniform Commitment Order that need correcting.

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According to the transcript and the written verdict as to count two,
Defendant was found guilty of the responsive verdict of unauthorized entry of an
inhabited dwelling. The minutes of the jury’s verdict, however, indicate the jury
returned a verdict of “Guilty of Home Invasion of Inhabited Dwelling.” Likewise,
the minutes of sentencing indicate the verdict for count two was “Home Invasion
of an Inhabited Dwelling.” Finally, the Uniform Commitment Order indicates the
verdict for count two was “Home Invasion.” It is well-settled that the transcript
prevails when it conflicts with the minutes. State v. Wommack, 00-137 (La.App. 3
Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.
Accordingly, the trial court is instructed to amend the minutes of the jury’s verdict,
the minutes of sentencing, and the Uniform Commitment Order to correctly reflect
that the jury’s verdict as to count two was “Guilty of Unauthorized entry of an
inhabited dwelling.”

Additionally, we find that the Uniform Commitment Order needs correction
as to count one as well. According to the transcript and the minutes of sentencing,
the trial court sentenced Defendant on count one (first degree rape) to life at hard
labor, without benefit of parole, probation, or suspension of sentence. The
Uniform Commitment Order, however, indicates the sentence imposed for first
degree rape was 999 years. In State v. Bringier, 21-476, p. 2 n.1 (La.App. 1 Cir.
12/30/21), 340 So.3d 975, 977, writ denied, 22-157 (La. 4/5/22), 335 So.3d 837,
the first circuit noted this identical issue in a footnote:

The commitment order reflects a sentence of 999 years. The

sentencing minutes and sentencing transcript, however, reflect a

sentence of life imprisonment at hard labor without benefit of

probation, parole, or suspension of sentence. The sentencing
transcript prevails in the event of a discrepancy in the record

According to the transcript of sentencing, the trial court correctly referred to the verdict
for count two as “unauthorized entry of an inhabited dwelling.”

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concerning the sentence. See State v. Lynch, 441 So.2d 732, 734 (La.
1983).

Accordingly, the trial court is instructed to amend the Uniform Commitment
Order to reflect the life sentence imposed, without benefit of parole, probation, or
suspension of sentence.

DECREE

For the reasons herein, the convictions of Defendant, Ezra Coutee, II, for
first degree rape, in violation of La.R.S. 14:42(A), and unauthorized entry of an
inhabited dwelling, in violation of La.R.S. 14:62.3, are affirmed. The sentences of
life in prison without parole, probation, or suspension of sentence for the offense of
first degree rape and the sentence of six years at hard labor for the offense of
unauthorized entry of an inhabited dwelling, with the sentences to run concurrently
with each other, are also affirmed. The trial court is instructed to amend the
minutes of the jury’s verdict, the minutes of sentencing, and the Uniform
Commitment Order to correctly reflect the jury verdict as to count two. The trial
court is also instructed to amend the Uniform Commitment Order to reflect the life
sentence imposed for the conviction of first degree rape, without benefit of parole,
probation, or suspension of sentence.

AFFIRMED.

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