State v. Bowman
| Decision Date | 19 September 2007 |
| Docket Number | No. 42,533-KA.,42,533-KA. |
| Parties | STATE of Louisiana, Appellee v. Kevin BOWMAN, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.
Paul J. Carmouche, District Attorney, Lea Hall, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.
Before BROWN, DREW and MOORE, JJ.
The defendant, Kevin Bowman, was originally charged with aggravated rape, aggravated kidnapping and simple robbery. A jury convicted Bowman of the responsive verdict of simple kidnapping but was unable to reach a verdict on the aggravated rape and simple robbery charges. The trial court sentenced Bowman to serve ten years imprisonment at hard labor for simple kidnapping, and Bowman now appeals. We affirm the defendant's conviction and sentence.
The events that led to the charges against the defendant in this case occurred in Shreveport on the night of May 28, 2004, but the defendant and the 20-year-old female victim, E.M., were acquainted with each other long before these events. When E.M. was a 16-year-old high school student, she had a romantic relationship with the defendant, who at that time was 20 or 21 years old. That relationship ended when E.M. was in the 10th grade, but she and the defendant remained friends; the defendant was sometimes a dinner guest at E.M.'s house.
On the evening of May 28, 2004, E.M. was staying at her grandparents' house when the defendant called her and then came over. When the defendant arrived, he and E.M. visited with E.M.'s aunt for a while until E.M. decided to go to a convenience store to buy cigarettes. Sometime between 7:00 and 8:00 p.m., E.M. drove the defendant to the store; E.M. had just been paid and had approximately $100 in cash. They returned to E.M.'s grandparents' house briefly until the defendant asked E.M. to drive him to his grandmother's house.
The defendant did not testify, so the following version of events presented to the jury came solely from E.M. E.M. agreed to take the defendant to his grandmother's house; the defendant directed E.M. to drive to an address in Mooretown. E.M. said that on the drive there, the defendant twice put his hand on her leg and rubbed it, but E.M. moved the defendant's hand away each time.
When they arrived at the home, the defendant got out of the car and went to the front door. The defendant tried to enter the home through both the front and side doors, but was unable to get inside; E.M. said that this made the defendant angry. E.M. testified that the defendant returned to her and then loudly demanded that she engage in oral and vaginal sex with him; E.M. refused. The defendant then told E.M. to follow him to the backyard, and E.M. complied. As they went to the back, the defendant again demanded sex from E.M., and this time the defendant said that he would hurt E.M. "real bad" if she did not comply. Unable to get into the house, the defendant walked to a trailer parked in the backyard, laid down, and ordered E.M. to perform oral sex on him. E.M. said that the defendant hit her in the face twice and grabbed her by her neck before making E.M. put the defendant's penis in her mouth.
After that, the defendant ripped E.M.'s pants in a forcible effort to take them off; E.M. said that she tried her utmost to resist but was unable to do so. The defendant pulled E.M.'s pants down and inserted his penis inside E.M.'s vagina. E.M. continued to struggle and was able to get up, but the defendant grabbed E.M.'s car keys and threw them into a nearby pasture. E.M. screamed and tried to get to her keys by climbing the fence between the yard and the pasture, but the defendant grabbed her shirt and pulled her off of the fence. The defendant then climbed over the fence first; E.M. climbed the fence behind the defendant, trying to get to her keys. The defendant reached the keys first and took them, so E.M. screamed again and tried to run to a neighboring house to get help.
In this exchange with the prosecutor, E.M. described what happened next:
E.M. was unclear about whether the defendant was armed during this encounter. The defendant forced E.M. back to her car and then the defendant demanded E.M.'s money. When E.M. refused to surrender the money, the defendant choked E.M. so hard that she nearly fainted, reached into E.M.'s pocket and took her money. The defendant then threw down E.M.'s keys and ran away.
E.M. drove to the home of her fiancé who urged E.M. to go to the police, but E.M. did not do so because she was embarrassed about what had happened to her and frightened of possible retaliation from the defendant, who lived on the same street as her grandmother. E.M.'s fiancé testified that E.M. was scratched and bruised, that her clothes were torn and bloody and that E.M. was crying and "having a fit." E.M. did not tell her fiancé that she had been raped. E.M. left her fiancé's house and went back to her grandparents' home, where she met her aunt. Her aunt observed scratches on E.M.'s neck and bruises on E.M.'s face, arms and legs. E.M. told her aunt that she had been raped and robbed.
The next morning, she went to the Shreveport Police Department ("SPD") to report the crime. E.M. reported the crime to a male officer; the male officer called in a female officer, Corporal Fontonia Davis, to examine and photograph E.M. Corporal Davis observed bruises on E.M.'s face, neck, breasts, stomach and legs, and saw abrasions on E.M.'s feet and lower legs as if E.M. had been dragged. Although pictures were taken of E.M., the pictures were misplaced and could not be found for trial. No physical evidence or "rape kit" was taken from E.M.
Further, the SPD report about E.M.'s case did not get assigned to SPD's sex crimes detective, Rita Caldwell, so the case involving E.M. was not investigated until the early part of 2005, when police were investigating a report of a similar crime made by another victim, K.H., who (according to the responding officer and the detective) also had bruise injuries to her neck. DNA evidence, taken from a "rape kit" sample from K.H., matched Bowman and was introduced at this trial relating to Bowman's conduct with E.M.
E.M. remained reluctant to speak with police due to her fear of the defendant, but early in 2005 E.M. told Det. Caldwell that the defendant had kidnapped, raped and robbed her. E.M. readily identified the defendant in a photo lineup. Police and E.M. were unable to find the location of the home where the events with E.M. took place.
The defendant did not testify. Two of the defendant's sisters testified that they took the defendant to a convenience store to meet E.M. on the night these events occurred; both women said that at the time they saw the defendant and E.M. together, there did not appear to be any problems between them.
The case went to the jury, but the jury was only able to reach a verdict on the kidnapping charge, returning a responsive verdict of guilty of simple kidnapping. The defendant filed a motion for post-verdict judgment of acquittal, which the trial court denied.
The state filed a habitual offender bill against Bowman, charging that he was a second felony offender. The court conducted a multiple offender hearing, at which time SPD Corporal Tommy Rachal testified. Corporal Rachal took the defendant's fingerprints and compared them to those on two bills of information for offenses (unauthorized use of a motor vehicle-the basis for the habitual offender bill-and illegal possession of stolen things) to which Bowman pled guilty on the same day, May 29, 2003; the fingerprints matched each other. Accordingly, the court found Bowman to be a second-felony habitual offender.
The matter returned for sentencing in September 2006, at which time the court heard testimony from both of Bowman's grandmothers; both of these women said that Bowman had been raised in church and that he never gave either of them any trouble. No pre-sentence investigation appears in this record that is related to this offense; however, there is a presentence investigation from 2002 attached to a bill of information from the 11th JDC, DeSoto Parish. In that matter, Bowman pled guilty to unauthorized use of a vehicle on January 7, 2002. Bowman, born on August 4, 1979, has at least three prior felony convictions; further, he has several juvenile adjudications of delinquency including first degree robbery (pled down from armed robbery; Bowman, at age 14, used a handgun to rob a Circle K clerk), aggravated assault (on two separate occasions), and simple battery.
In sentencing Bowman to serve ten years imprisonment at hard labor, the trial judge gave an extensive review of Bowman's criminal history and related the details of the instant offense. The court also related that Bowman had apparently used at least two different aliases during his life. The court noted that Bowman has a 19-month-old son-about which his grandmothers knew nothing-and had a sporadic employment history, mainly as a dishwasher. The court found that a lesser sentence than the maximum sentence would deprecate the seriousness of the offense and noted that Bowman had not shown any remorse for his actions.
The record contains a ruling on October 20, 2006, by the trial court denying Bowman's motion to reconsider sentence which itself does not appear in the record. In...
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