State v. Conway

• Decision Date: 07 February 1990
• Docket Number: No. CR89-477,CR89-477
• Citation: 556 So.2d 1323
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Tony CONWAY, Defendant-Appellant. 556 So.2d 1323
• Court: Court of Appeal of Louisiana — District of US

Page 1323

556 So.2d 1323

STATE of Louisiana, Plaintiff-Appellee, v. Tony CONWAY, Defendant-Appellant.

No. CR89-477.

556 So.2d 1323

Court of Appeal of Louisiana,

Third Circuit.

Feb. 7, 1990.

John Crochet, Public Defender Office, Lake Charles, for defendant-appellant.

Beth Conrad, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.

Before DOUCET, KNOLL, and KING, JJ.

KING, Judge.

The issues presented by this appeal are whether or not the trial court erred in failing to sever the trials of two co-defendants and in allowing into evidence the confession of each of the co-defendants; whether the aggravated rape statute, La.R.S. 14:42, is unconstitutionally vague; whether the mandatory penalty provided upon conviction of La.R.S. 14:42 is unconstitutional; whether the jury was improperly selected; and whether there was insufficient evidence to convict defendant of the crime of aggravated rape.

Tony Conway (hereinafter Conway) and a co-defendant, Keith Alexander (hereinafter Alexander), were jointly indicted by a grand jury for the crime of aggravated rape, a violation of La.R.S. 14:42. The defendants were jointly tried before a jury and were each convicted of aggravated rape. After a sentencing hearing, each defendant was given the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Each defendant appeals his conviction and sentence based on several assignments of error. We have consolidated the appeals. The issues raised on appeal by defendant, Tony Conway, and co-defendant, Keith Alexander, are virtually the same and, since the law and relevant facts are common to both appeals, our opinion here is equally applicable. ¹ We affirm.

FACTS

On May 16, 1988, the victim, Molly Marie Trahan, voluntarily entered the back seat of a vehicle driven by Alexander and in which Conway was a passenger. The victim entered the car because she casually knew Conway as a friend of a friend and because the defendants told her they could help her locate some marijuana which she was seeking at the request of some friends.

Defendants proceeded to drive to a place in the City of Lake Charles, Louisiana, where they claimed marijuana could be procured. Alexander left the car and returned a few minutes later without any marijuana. The victim then asked defendants to return her to where they had picked her up. Defendants refused and continued to drive around various streets of North Lake Charles. The victim testified that at one point Alexander had his penis out of his pants and requested her to perform fellatio on him. The victim refused and again requested that defendants bring her back to where she had been picked up.

By this time the victim was confused and did not know where she was. Alexander once again stopped the car, exited, and returned with what was allegedly marijuana. The victim was no longer interested and insisted that defendants return her to where they had picked her up.

Defendants continued to drive around North Lake Charles. They proceeded down Opelousas Street, east of Highway 171, and turned onto a dark gravel side road. The victim, being afraid, jumped out of the vehicle and began running away. Alexander backed the vehicle up and stopped in front of the victim. Both defendants exited the car, caught the victim, and cursed and beat her repeatedly. The victim was screaming, and she fell to the ground from the force of the blows.

Alexander held the victim at the upper torso as Conway attempted to remove the victim's pants. The victim began to kick and was still screaming. Alexander continued to hold the victim's arms after she stood up. Conway obtained a towel from the car and Alexander held the towel over the victim's face until she could not breathe. Alexander dropped the towel and put his arm around the victim's neck, again impairing her breathing.

Alexander held the victim as Conway drove the car to the end of the road. Conway then struck the victim several times until she again fell to the ground. Her pants had been removed at this point. The victim testified that Alexander then raped her even though he was having difficulty getting an erection. He remained on top of her for 15 or 20 minutes. During this time Conway was holding the victim's arms.

After Alexander arose from the victim, Conway then got on top of her and raped her. While Conway was raping the victim, Alexander forced his penis in the victim's mouth. The victim turned her face away and Alexander proceeded to ejaculate on her face.

Defendants then gave the victim her clothes and dropped her off near a public telephone.

Defendants were jointly indicted, arraigned, and pled not guilty. Defendants were jointly tried and both were convicted, by a 10-2 vote of the jury, of aggravated rape. Both defendants appeal their convictions and sentence based on numerous assignments of error.

MOTION TO QUASH

Both defendants contend that the trial judge erred in failing to quash the indictment because the aggravated rape statute is unconstitutionally vague.

Conway argues that the statute does not adequately define what the term "participate" in part (A)(5) means. Alexander contends that the meaning of the phrase "physically assist in the commission of such act," found in part (B)(2) is unclear. We find these arguments to lack merit.

La.R.S. 14:42 states in relevant part:

"A. Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

* * * * * *

(5) When two or more offenders participate in the act.

B. For purposes of Paragraph (5), 'participate' shall mean:

(1) Commit the act of rape.

(2) Physically assist in the commission of such act ...".

Under the "void-for-vagueness" doctrine, a criminal statute must meet two requirements to satisfy due process: (1) adequate notice to individuals that certain contemplated conduct is proscribed; and (2) adequate standards for those charged with determining the guilt or innocence of the accused. State v. David, 468 So.2d 1126 (La.1984), supplemented, 468 So.2d 1133 (La.1985), cert. den., 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986); State v. Coleman, 528 So.2d 192 (La.App. 3 Cir.1988), writ den., 533 So.2d 373 (La.1988).

In State v. Union Tank Car Co., 439 So.2d 377 (La.1983), the Louisiana Supreme Court explained these requirements:

"In connection with the requirement of adequate notice, this court has held that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Baron, 416 So.2d 537 (La.1982); State v. Dousay, 378 So.2d 414 (La.1979); State v. Payton, 361 So.2d 866 (La.1978). Likewise, the requirement of adequate standards for ascertaining guilty mandates that a criminal statute mark boundaries 'sufficiently distinct for judges and juries to administer the law in accordance with the legislative will.' City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La.1974)." State v. Union Tank Car Co., 439 So.2d 377, at pages 384-385 (La.1983).

Again, in State v. Azar, 539 So.2d 1222 (La.1989), the Supreme Court stated:

"The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. U.S. Const., Amend. XIV, Sec. 1; La. Const. of 1974, Art. 1, Secs. 2, 13; Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); State v. Powell, 515 So.2d 1085 (La.1987); State v. Pierre, 500 So.2d 382 (La.1987). In determining the meaning of a statute and hence its constitutionality, penal statutes must be 'given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.' La.R.S. 14:3; State v. Pierre, supra." State v. Azar, 539 So.2d 1222, at page 1224 (La.1989).

Applying these standards, the definition of participate found in La.R.S. 14:42(A)(5) and (B)(2) offers a clear and definite standard of conduct. The words of the statute, when taken in their usual sense, are readily understandable and capable of discernment when read by an ordinary person of reasonable intelligence.

Counsel for defendant Conway argues in his brief submitted to this court that:

"The only genuine construction that could be placed upon it [La.R.S. 14:42(A)(5) and (B)(2) ] leads to such a ludicrous result that the Legislature could not possibly have intended it. Due to the circularity of the definitions of 'rape' R.S. 14:41 and 'aggravated rape' and 'lawful consent' R.S. 14:42, the statute makes punishable by life imprisonment almost any sexual intercourse between consenting (as that word is used generally) adults not married to each other. Rape is anal or vaginal sexual intercourse between persons not married to each other when committed without one (or both) persons's 'lawful consent' R.S. 14:41. 'When two or more offenders participated in the act' the act 'is deemed to be without lawful consent' R.S. 14:42. Undersigned counsel is hard pressed to imagine an act of vaginal or anal sexual intercourse that does not involve at least two participants."

Counsel's interpretation of the statute is completely unreasonable. Counsel fails to acknowledge the presence of the crucial terms "offenders" which precedes the word "participated" in section (A)(5) of the statute. The statute makes participation by two or more offenders illegal. It does not make the act between two or more participants illegal. The statute is not vague, nor is it overbroad, since its terms...