State v. Graham

• Decision Date: 14 February 2003
• Docket Number: No. 2002 KA 1492.,2002 KA 1492.
• Parties: STATE of Louisiana v. Bradley GRAHAM.
• Court: Court of Appeal of Louisiana — District of US

845 So.2d 416

STATE of Louisiana v. Bradley GRAHAM.

No. 2002 KA 1492.

Court of Appeal of Louisiana, First Circuit.

February 14, 2003.

Lewis Murray, Franklinton, Gwendolyn Brown, Baton Rouge, for Plaintiff/Appellee, State of Louisiana.

Frederick Kroenke, Baton Rouge, for Defendant/Appellant, Bradley Graham.

Before: CARTER, C.J., WHIPPLE and CIACCIO,¹ JJ.

WHIPPLE, J.

The defendant, Bradley Graham, was charged by bill of information with attempted second degree murder (count 1), a violation of LSA-R.S. 14:27, 14:30.1; armed robbery (count 2), a violation of LSA-R.S. 14:64; attempted aggravated rape (count 3), a violation of LSA-R.S. 14:27, 14:42; aggravated sexual battery (count 4), a violation of LSA-R.S. 14:43.2; second degree kidnapping (count 5), a violation of LSA-R.S. 14:44.1; and eight counts of aggravated oral sexual battery (counts 6-13), violations of LSA-R.S. 14:43.4.² He pled not guilty. The defendant subsequently waived his right to a jury trial and elected to be tried by the trial judge.

Following a bench trial, the defendant was convicted and sentenced as follows: count 1, guilty as charged, sentenced to thirty years at hard labor; count 2, guilty of the responsive offense of simple robbery (a violation of LSA-R.S. 14:65), sentenced to seven years at hard labor; count 3, guilty as charged, sentenced to thirty years at hard labor; count 4, guilty of the responsive offense of sexual battery (a violation of LSA-R.S. 14:43.1), sentenced to ten years at hard labor; count 5, guilty as charged, sentenced to thirty years at hard labor; counts 6 through 9, guilty as charged, sentenced to ten years at hard labor without probation, parole, or suspension of sentence on each count. The defendant was found not guilty on counts 10 through 13. The trial court ordered that all sentences run concurrently. The defendant filed motions for new trial and for postverdict judgment of acquittal, which the trial court denied. Thereafter, the state filed an habitual offender bill of information, seeking to enhance the sentence imposed on the attempted aggravated rape conviction (count 3). After a hearing, the trial court adjudged the defendant a second felony offender. The trial court vacated the previous thirty-year sentence imposed on count 3 and, pursuant to LSA-R.S. 15:529.1, resentenced the defendant to thirty years at hard labor. The defendant filed a motion to reconsider sentence. The trial court denied the motion. Defendant now appeals, arguing insufficient evidence of the attempted second degree murder conviction and that the aggregate thirty-year sentence is excessive.³ Finding no merit in the assigned errors, we affirm the convictions, the habitual offender adjudication, and the sentences.

FACTS

On the morning of November 11, 2000, J.C. was at home asleep in her bedroom when she was awakened by the defendant (her stepfather) standing over her. The defendant was fondling J.C.'s breasts, stomach and chest. J.C. resisted and requested that the defendant discontinue his inappropriate behavior, but he refused. The defendant crawled on top of J.C., held her down and continued to fondle her. Confused by her stepfather's actions, J.C. asked the defendant, "Why are you doing this to me?" In response to this inquiry, the defendant stated, "You know you want me to do this. You got to do it. You stupid f bitch. You got to do this." J.C. fought to get away from the defendant. The defendant stated, "Don't fight back. You know you want this. Don't fight back. Because I'm going to kill you. I'll kill you if you fight back. Either way, you are going to die. You are just going to die. You don't deserve to live." Despite the threats to her life, J.C. continued to fight. Using his fists, the defendant struck J.C. in her head, chest, stomach and back. The defendant then used a piece of rope to tie J.C.'s arms together. With J.C.'s arms bound, the defendant proceeded to fondle and grope J.C.'s body. He also kissed and licked her face. The defendant forced J.C. to dress up in several different bra and panty outfits that he provided. He also forced J.C. to put on stockings and makeup that he provided.

Next, the defendant forced J.C. into the bedroom that he shared with J.C.'s mother. In the bedroom, the defendant continued the sexual assault. The defendant told J.C. that she would either perform oral sex on him or he would force her to have sexual intercourse with him. According to J.C., when she resisted, the defendant threw her on the ground and hit her so hard that she could not breathe. The defendant threatened to kill J.C. and her mother if J.C. did not honor his sexual demands. The defendant forced J.C. to perform oral sex on him. The defendant sat on the bed, held J.C.'s arms behind her head, shoved her head down and pushed his penis into her mouth. The defendant also used his fingers to penetrate J.C.'s vagina.

The defendant then forced J.C. back to her bedroom. In her bedroom the defendant again demanded that J.C. either have sexual relations with him or perform oral sex on him. The defendant positioned himself on top of J.C. and attempted to insert his penis into her vagina. J.C. pleaded with the defendant and requested that he stop. When the defendant ignored J.C.'s pleas, a struggle ensued. J.C. fought to prevent the defendant from vaginally raping her. The defendant forced his penis into J.C.'s mouth again.

The defendant continued to take J.C. back and forth between her bedroom and her mother's bedroom, repeatedly beating her, attempting to rape her, and forcing her to perform oral sex upon him. J.C. testified that the defendant forced her to perform oral sex on him at least four or five different times. During the final episode of oral sex, the defendant ejaculated in J.C.'s mouth. Because J.C. continued to struggle and fight, each of the defendant's attempts to vaginally rape J.C. were unsuccessful.

Because J.C.'s mother was scheduled to arrive home soon thereafter, the defendant placed a jacket over J.C.'s tied hands to prevent her from moving her arms, and forced her into a tool shed located behind the house. In the shed, the defendant tied J.C.'s hands again, gagged her with a red bandanna, tied her legs together, and wrapped her body up in a cushion and blanket. The defendant then used some rope to tie the blanket in place around J.C. The defendant told J.C. that he was going to move J.C.'s car so that her mother would not know that she was at home. The defendant left J.C. bound and gagged, lying on the shed floor. After the defendant left, J.C. managed to untie herself and escape from the shed. J.C. ran to a nearby highway where a passing motorist stopped and transported her to the Bogalusa Police Department.

SUFFICIENCY OF THE EVIDENCE

In this assignment of error, the defendant contends that the evidence adduced at trial was insufficient to support the conviction of attempted second degree murder because it failed to establish that he had the specific intent to kill J.C.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in LSA-C.Cr.P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides the fact-finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Hendon, 94-0516, p. 4 (La.App. 1st Cir.4/7/95), 654 So.2d 447, 449.

The offense of second degree murder is defined in LSA-R.S. 14:30.1(A) in pertinent part, as the killing of a human being: (1) when the offender has a specific intent to kill or to inflict great bodily harm; or (2)(a) is engaged in the perpetration or attempted perpetration of aggravated rape even though the offender has no intent to kill or to inflict great bodily harm.

Under LSA-R.S. 14:27(A), a person is guilty of an attempt to commit an offense when he has a specific intent to commit a crime and "does or omits an act for the purpose of and tending directly toward the accomplishing of his object."

The gravamen of the crime of attempted murder, whether first or second degree, is the specific intent to kill and the commission of an overt act tending toward the accomplishment of that goal. State v. Huizar, 414 So.2d 741, 746 (La.1982). A conviction of attempted second degree murder requires a finding that the defendant had the specific intent to kill. State v. Franklin, 95-1876, p. 7 (La.1/14/97), 686 So.2d 38, 42.

Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. LSA-R.S. 14:10(1). Specific intent may be proved by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as defendant's actions or facts depicting the circumstances. State v. Cummings, 99-3000, p. 3 (La.App. 1st Cir.11/3/00), 771 So.2d 874, 876.

In its reasons for judgment on the attempted second degree murder conviction, the trial court stated:

I will then go to the attempted second degree murder. Again, Title 14, Section 27 which is attempt. And Title 14, Section 30.1, which is second degree murder. Second degree murder is the killing of a human being, and here it has to be the attempted killing because this is an attempt. So second degree murder is the killing of a human being when the offender has a specific intent to kill, or to inflict great bodily harm, or when the offender is...