State of Louisiana v. Kyle Dewayne Forrester

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-509
STATE OF LOUISIANA
VERSUS
KYLE DEWAYNE FORRESTER
FOR AR ACR AR
APPEAL FROM THE

THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 94305
HONORABLE TONY ALAN BENNETT, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Gary J. Ortego, Judges.

AFFIRMED.

Annette Fuller Roach

Louisiana Appellate Project

P. O. Box 6547

Lake Charles, LA 70606-6547

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:
Kyle Dewayne Forrester

Terry W. Lambright

District Attorney

William R. Thornton

Assistant District Attorney

30 Judicial District

P. O. Box 1188

Leesville, LA 71446

(337) 239-2008

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant appeals his sentence of ninety-nine years at hard labor without
benefit of probation, parole, or suspension of sentence imposed following a guilty
plea to the charge of molestation of a juvenile under the age of thirteen, pursuant to
a plea agreement wherein another charge of cruelty of a juvenile involving the same
victim was dismissed. For the reasons set forth herein, we affirm the sentence.

FACTS AND PROCEDURAL HISTORY

This matter is before this court for a second time on appeal of Defendant’s
sentence for molestation of a juvenile under the age of thirteen years, in violation of
La.R.S. 14:81.2(A)(1) and 14:81.2(D)(1). In his first appeal, another panel of this
court affirmed Defendant’s conviction, but reversed his original sentence of ninety-
nine years at hard labor without benefit of probation, parole, or suspension of
sentence, finding that Defendant’s counsel who appeared at sentencing in place of
Defendant’s appointed counsel was ineffective. The case was remanded to the trial
court for resentencing. State v. Forrester, 21-140 (La.App. 3 Cir. 10/6/21), 329
So.3d 379. Therein, this court set forth the factual and procedural posture of the case
against Defendant.

On August 9, 2019, Defendant, Kyle DeWayne Forrester, was

charged by bill of indictment with one count of molestation of a

juvenile under the age of thirteen, in violation of La.R.S. 14:81.2(A)(1)
and 14:81.2(D)(1); as well as one count of cruelty to a juvenile, in
violation of La.R.S. 14:93(A)(1). The offenses occurred in February
and April of 2019, respectfully, and were both committed against
Defendant’s biological daughter, R.F., whose date of birth is November
22, 2018.

On January 7, 2020, Defendant appeared alongside his appointed
attorney, Clay Williams, and pled guilty to the charge of molestation of
a juvenile under the age of thirteen in exchange for the State dismissing
the cruelty to a juvenile charge. At Defendant’s guilty plea, the State
set forth the following factual basis:

The victim in this case, uh, her initials are R.F. Her
date of birth is 11/22/2018. And at the date and time of

this offense, she was two months and fifteen days old.
There was certainly an age difference of greater than two
years between Mr. Forrester and his victim and he did
commit the lewd and lascivious act upon her and that was
specifically using his hands to manipulate her genitals. Uh,
he also spat on the genitals and he did all of those acts with
the intention of arousing and gratifying at least the sexual
-- his own sexual desires. Uh, certainly by the facts I’ve
alleged, it is apparent that R.F. is under the age of thirteen
years and she was on a changing table and, uh, the other
thing about the supervision and control is that the child,
R.F., is the natural child of Mr. Forrester and, thus, he did
have supervision and control of said juvenile. And the
State alleges that constitutes one count of the offense of
molestation of a juvenile under the age of thirteen years.

We do note that, although Defendant accepted the facts and pled
guilty, he contended that it was “‘a little more -- more—more complex

than just that.”

Id. at 379-80.

On remand on February 22, 2022, the trial court again sentenced Defendant
to serve ninety-nine years at hard labor, without benefit of parole, probation, or
suspension of sentence. This second appeal followed, wherein Defendant asserts
that the trial court erred in imposing a constitutionally excessive sentence which is
nothing more than cruel and unusual punishment and is a violation of the Eighth
Amendment of the Constitution of the United States.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that there
are none.

DISCUSSION

In Defendant’s sole assignment of error, he asserts the trial court imposed an

excessive sentence. He claims that his sentence is excessive because of the particular

facts of the case, Defendant’s history, and the lack of any prior conviction for a

sexual offense. He urges that in consideration of these factors, a maximum sentence

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of ninety-nine years without benefits is unwarranted. We note, however, that
Defendant’s motion to reconsider sentence simply alleged the sentence was
excessive without alleging any specific grounds regarding the sentence. Since
Defendant did not allege a specific ground, this court’s review is limited to consider
Defendant’s “bare claim of excessiveness.” State v. Pyke, 95-919, p. 3 (La.App. 3
Cir. 3/6/96), 670 So.2d 713, 715. Louisiana courts have laid out the following
guidelines regarding excessive sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[nJo law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or that
the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than
a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124,
writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might
have been more appropriate. State v. Cook, 95-2784 (La.
5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117
S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.
5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for
similar crimes may provide some insight, “it is well settled
that sentences must be individualized to the particular
offender and to the particular offense committed.” State
v. Batiste, 594 So.2d 1 (LaApp. 1 Cir.1991).
Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge “remains
in the best position to assess the aggravating and
mitigating circumstances presented by each case.” State
v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958[, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615 (1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,
1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d
83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116 (La.
12/7/07), 969 So.2d 626, this court specifically adopted the fifth circuit’s three factor
test from State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate
court should consider the nature of the crime, the nature and background of the
offender, and the sentences imposed for similar crimes.

Accordingly, we first consider the nature of the crime. Defendant entered a
plea of guilty pursuant to a plea agreement to one count of molestation of a juvenile,
in violation of La.R.S. 14:81.2(A)(1), which provides as follows:

Molestation of a juvenile is the commission by anyone over the

age of seventeen of any lewd or lascivious act upon the person or in the

presence of any child under the age of seventeen, where there is an age

difference of greater than two years between the two persons, with the
intention of arousing or gratifying the sexual desires of either person,

by the use of force, violence, duress, menace, psychological

intimidation, threat of great bodily harm, or by the use of influence by

virtue of a position of control or supervision over the juvenile. Lack of

knowledge of the juvenile’s age shall not be a defense.

As the victim here was under the age of 13 years at the time of the offense, the

sentence was dictated by La.R.S. 14:81.2(D)(1).

Whoever commits the crime of molestation of a juvenile when
the victim is under the age of thirteen years shall be imprisoned at hard
labor for not less than twenty-five years nor more than ninety-nine years.
At least twenty-five years of the sentence imposed shall be served
without benefit of probation, parole, or suspension of sentence.

In exchange for his guilty plea, the State dismissed a charge of cruelty to a
juvenile. On resentencing, the trial court set forth the following facts detailing the
molestation of a juvenile charge and also the cruelty to a juvenile offense dismissed
as part of the plea, both of which involved two-and-a-half-month-old R.F.:

The facts in this case show that, according to the Vernon Parish
Sheriff’s Office file, on April the 7th, 2019, uh, Kyle Forrester was left
alone with his biological daughter, whose date of birth is 11/22/18,
while the mother went to do laundry at her father’s residence for
approximately 15 minutes. When the mother was driving back, Mr.
Forrester telephoned her and advised her never to leave him alone with
R.F. because he had fallen with her in his arms. The next day, the
mother noticed bruising. She stated that when she tried to bring the
child to the emergency room, the defendant would not let her leave the
house and told her if she didn’t shut up she would match the child’s
injury. The mother then snuck out of the house when the defendant
went to the restroom. She went to the emergency room, where the
Vernon Parish Sheriff's Office was called. After a forensic exam, the
SANE nurse contacted the detective and advised that the child had
several bruises, to include the areas of the right temple, upper eyelids,
right cheek, left cheek, with red streaks and bilateral redness, petechiae
hemorrhage, and, of course, based on their experience and training, the
child was choked causing the severe petechiae around the eye and face
area.

Also, on 4/18 of 2019, the mother went to the Vernon Parish
Sheriff's Office on a complaint of a video on a baby monitor of her
boyfriend, Mr. Kyle Forrester, which was recorded on February the
16th of 2019. The Sheriff's Office downloaded the video. The video
shows that the child was asleep, while her father, Kyle Forrester, came
over to the crib. Mr. Forrester grabbed the child’s left leg with his right
hand and opened up the diaper with his left hand. He then licked his
left middle finger or ring finger and placed his two fingers inside -- into
the right side of the child’s diaper, up to his knuckles, then moves them
around and spit into the diaper. He then changes from two fingers to
his pinky finger, then pulled his finger out. Mr. Forrester looked at this
for a bit, then looked behind his shoulder, placed his left pinky back
into the right side of the diaper, kept his pinky finger in the diaper while
he moved his hand back and forth, which lasted for approximately 38
seconds. During the course of the investigation, statements were taken
from both the mother and Mr. Forrester. The Department of Child and
Family Services was notified and a forensic sexual assault evaluation

5

was completed and the warrant was issued for Mr. Forrester for one

count of against nature and one count of molestation of a juvenile. He

was then booked into the parish jail and charged with cruelty to

juveniles as well.

We find the nature of the crime committed here to be particularly heinous.
Defendant abused and molested his own helpless two-and-a-half-month-old
daughter. We agree with State v. Childs, 466 So.2d 1363 (La.App 3 Cir. 1985),
wherein this court, in considering a maximum sentence imposed for the rape of a
child, stated the defendant’s “actions flout the trust a community extends a parent to
act in his child’s best interest. . . .” and concluded “that the rape of one’s 8 year old
daughter is among the most serious violations of the crime of forcible rape.” Jd. at
1366. While the charge here is molestation of a juvenile, the crime is no less serious.

We also consider here that Defendant pled guilty to molestation of a juvenile
under the age of 13 years pursuant to a plea agreement, wherein another serious
offense, cruelty to a juvenile, also involving his biological daughter, was dismissed.
“[W]hoever commits the crime of cruelty to juveniles as defined in Paragraph (A)(1)
of this Section when the victim is eight years old or younger shall be imprisoned at
hard labor for not more than twenty years.” La.R.S 14:93(D)(2). “When a defendant
has pled guilty to an offense which does not adequately describe his conduct or has
received a significant reduction in potential exposure to confinement through a plea
bargain, the trial court has great discretion in imposing even the maximum sentence
possible for the pled offense.” State v. Roberts, 44,724, p. 3 (La.App. 2 Cir.
10/28/09), 26 So.3d 205, 207 (citing State v. Shirley, 41,608 (La.App. 2 Cir.
12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.04/04/08), 978 So.2d 321.)

As to the nature and background of the offender, we !ook to the remarks made

during the resentencing hearing. We also look to the original sentencing hearing, as

it is appropriate for appellate courts to review the “entirety of the record, including

the transcripts of both the original sentencing hearing and the resentencing hearing,
to determine whether an adequate factual basis for the trial court’s sentence exists
and whether the trial court abused its discretion.” State v. Darnell, 51,499, p. 8
(La.App. 2 Cir. 8/9/17), 243 So.3d 1162, 1167 (citing State v. Billingsley, 13-11
(La.App. 3 Cir. 10/9/13), 123 So.3d 336). The trial court indicated it had received
letters from Defendant’s family members as well as a letter from Defendant himself,
and that it read two letters from Defendant’s father, one from Defendant’s mother,
one from an individual named Destiny, and the letter from Defendant. The trial court
then noted that the victim’s mother also provided a letter in the form of a victim
impact statement during the original sentencing, and that the victim’s grandmother
made a statement on the record and asked the court to impose the maximum
sentence. The trial court then considered the facts and circumstances of Defendant’s
case, as are recited from the record above.

The trial court next noted the sentencing guidelines under La.Code Crim.P.
art. 894.1. The court specifically considered the following before resentencing
Defendant: there was no economic harm caused to the victim; there were no grounds
that tended to justify or excuse Defendant’s conduct; the victim did not act under
provocation; Defendant is twenty-seven years old; Defendant is not married;
Defendant has one child and 1s in good health; the court was provided no records on
employment or education histories; there was no information as to any history of
alcohol abuse; Defendant is not likely to respond favorably to probationary
treatment; there is absolutely a risk that Defendant would commit another crime;
Defendant is in need of correctional treatment and a custodial environment; and a
lesser sentence would deprecate the seriousness of the offense.

The trial court also reviewed Defendant’s criminal history. The court noted

that in January 2017, in Arizona, there was an investigation into the injuries of a

7

four-month-old child of Defendant’s then-girlfriend. Defendant provided the same
story then as an excuse for that child’s injuries, that he fell while holding the child,
that he gave in the instant case in response to the cruelty to a juvenile charge, which
was dismissed in the plea agreement. Defendant was arrested on the Arizona charge,
but he did not show up for court, resulting in the issuance of a bench warrant. Upon
being arrested in Louisiana, Defendant was extradited back to Arizona where he pled
guilty to child abuse. The trial court also noted that in 2017, Defendant was arrested
for unlawfully entering military property, though this charge was later dismissed.
Additionally, in 2017, Defendant was convicted of simple burglary and possession
of a Schedule II controlled substance, and in 2018, a bench warrant was issued for
his failure to appear in U.S. district court. Defendant’s probation and parole was
revoked.

The trial court reaffirmed that there is an undue risk Defendant would commit
another crime against a minor “because it’s already happened on two occasions.”
The trial court found no mitigating circumstances and noted that the child in Arizona
had “an incompletely healed fracture to his right wrist and a fractured left tibia.”
The trial court found Defendant had a propensity to harm children and then
sentenced him to ninety-nine years without benefits.

The final factor in the Baker, 956 So.2d 83, analysis is a comparison of
sentences imposed for similar crimes. Before assessing other opinions, we take
cognizance that maximum sentences are reserved for the most serious violations and
the worst offenders. State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d
66. However, a trial court has wide discretion in imposing a sentence within the
statutory limits, and the sentence should not be set aside as excessive absent a
manifest abuse of discretion. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir.

1/31/01), 779 So.2d 1035, writ denied, 01-838 (La.2/1/02), 808 So.2d 331. The
8

relevant question is whether the trial court abused its broad discretion, not whether
another sentence might have been more appropriate. Jd.

In State v. Melgar, 19-540 (La.App. 5 Cir. 4/30/20), 296 So.3d 1107, the fifth
circuit, while recognizing that maximum sentences are generally reserved for cases
involving the most serious violations and the worst type of offender, determined that
a maximum or near maximum sentence for sexual battery of a minor may not be
excessive if the defendant exploits a position of trust to commit the crime. Here,
Defendant violated the most important position of trust and his moral responsibility
to protect and foster his own infant child.

Maximum sentences for the crime of molestation of a juvenile have been
affirmed by this court in other cases. In State v. Burge, 12-713, 12-714 (La.App. 3
Cir. 2/6/13) (unpublished opinion), the defendant molested his stepdaughter, who
was sixteen years old, and in affirming the maximum sentence, this court cited the
age difference between the victim and the defendant as well as the violation and
exploitation of the position of trust. In State v. Fontenot, 09-624 (La.App. 3 Cir.
12/9/9), 25 So.3d 225, the victim was seven years old, and in affirming the sentence,
this court noted the trial court considered the victim’s age, vulnerability, and relation
to the defendant as aggravating factors. Additionally, in State v. Ray, 96-1297
(La.App. 3 Cir. 4/2/97), 692 So.2d 1292, writ denied, 97-1279, (La. 1/9/98), 705
So.2d 1090, the defendant molested his stepson, who was eight years old, and in
affirming the sentence, this court found the conduct to be reprehensible, likely to
cause emotional problems for the victim, and noted that a lesser sentence would
deprecate the seriousness of the offense.

In State v. Rutan, 53,005 (La.App. 2 Cir. 11/20/19), 285 So.3d 493, writ
denied, 19-2068 (La. 7/17/20), 298 So.3d 174, the second circuit affirmed the

defendant’s seventy-five-year sentence but vacated the sentence as to the parole

y

eligibility restriction and remanded for the trial court to reconsider the restriction of
parole eligibility.' In affirming the seventy-five year sentence, the second circuit
held:

The trial court did not abuse its discretion in sentencing Rutan to
75 years at hard labor. During Rutan’s sentencing hearing, the trial
court noted its review of the presentence investigation report and
Rutan’s extensive, violent criminal history, and his status as a fourth-
felony offender. Additionally, the record reflects applicability of
several aggravating factors not mentioned explicitly by the trial judge.
Rutan manifested deliberate cruelty to his 6-year old daughter by
sexually molesting her. He used his position as her father, and an
authority figure in her household, to facilitate his molestation of A.B.
Rutan knew that his daughter, a 6-year old, was particularly vulnerable
and incapable of resistance due to her age. Rutan’s crime will scar his
daughter for life; already, she has been experiencing emotional, mental
and behavioral problems, in addition to undergoing counseling, as a
result of the crime. An adequate factual basis for the sentence exists on
the record.

Considering the fact that Rutan molested his own 6-year old
daughter, his 75-year sentence is not constitutionally excessive.
Though Rutan’s sentence likely amounts to a life sentence, due to his
age, the sentence does not shock the sense of justice, nor is it grossly

disproportionate to the severity of the offense. This assignment of error
is without merit.

Id. at 497,

While there are a number of other cases wherein lesser sentences for
molestation of a juvenile under the age of thirteen have been affirmed, we can find
no abuse of the discretion of the trial court here. Defendant committed a heinous
sexual act against his own daughter. In addition, he was charged with physically
abusing her and faced a possible additional sentence of up to 20 years for cruelty to
a juvenile but was spared this pursuant to his plea bargain agreement. He had
previously been convicted of child abuse in Arizona in a case where he physically

abused a dating partner’s child under similar circumstances to those alleged here,

| The trial court in Rutan incorrectly believed that it was required to prohibit the
defendant’s parole eligibility for the length of the entire sentence. The applicable provision of the
child molestation statute only requires “at least” the first twenty-five to be served without benefits.

10

and where Defendant made the same claim of “accident” as he made here as an
excuse for his conduct.

Considering the above, we cannot say that the sentence imposed is grossly out
of proportion to the seriousness of the offense or nothing more than a purposeless
and needless infliction of pain and suffering. La. Const. art. 1, § 20. A sentence is
considered grossly disproportionate when the crime and punishment viewed in light
of the harm done to society shocks the sense of justice. State v. Smith, 01-2574
(La.01/14/03), 839 So.2d 1. The crime here, molestation ofa helpless, innocent two-
month-old infant, has done immeasurable harm to the child, her family, and society
as a whole. The sentence, especially considering the benefit Defendant obtained
through the plea bargain agreement, does not shock the sense of justice of this court.
Accordingly, the sentence is affirmed.

DECREE

The sentence imposed for Defendant, Kyle Dewayne Forrester, of ninety-nine
years at hard labor without benefit of parole, probation, or suspension of sentence
for the offense of molestation of a juvenile under the age of thirteen years is affirmed.

AFFIRMED.

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