State v. Jacobs

• Court: Court of Appeal of Louisiana
• Writing for the Court: Gremillion
• Citation: State v. Jacobs, 987 So.2d 286 (La. App. 2008)
• Decision Date: 05 June 2008
• Docket Number: No. 2007-1370.,2007-1370.
• Parties: STATE of Louisiana v. Robert JACOBS.

987 So.2d 286

STATE of Louisiana v. Robert JACOBS.

No. 2007-1370.

Court of Appeal of Louisiana, Third Circuit.

June 5, 2008.

Michael Harson, District Attorney, Michele S. Billeaud, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.

Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Robert Jacobs.

Robert Jacobs, Basile, LA, In Proper Person.

Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

GREMILLION, Judge.

In this case, Defendant, Robert Jacobs, was found guilty of one count of forcible rape, in violation of La.R.S. 14:42.1, and one count of aggravated burglary, in violation of La.R.S. 14:60. Thereafter, he was sentenced to thirty years at hard labor for the forcible rape conviction and ten years at hard labor for the aggravated burglary conviction with the sentences to run concurrently. This appeal followed.

Appellate counsel filed an Anders brief in this matter. Upon completion of a thorough independent review of the record, as required by State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), we identified a non-frivolous issue and denied defense counsel's motion to withdraw and ordered both the State and Defendant to brief the issue of double jeopardy.

Defendant filed a pro se brief alleging that the evidence was insufficient to sustain a conviction and that his sentence was excessive.

For the following reasons, we hold that the convictions for aggravated burglary and forcible rape constitute double jeopardy. Therefore, we reverse the conviction for aggravated burglary, enter a conviction for simple burglary, and remand the matter for resentencing on the simple burglary conviction. We find that Defendant's pro se assignments lack merit, and we affirm the conviction of forcible rape.

SUFFICIENCY OF EVIDENCE

When multiple issues are raised on appeal and sufficiency of the evidence is one of the alleged errors, the reviewing court should first determine whether the evidence is sufficient, as a ruling that the evidence is insufficient would necessitate an acquittal. State v. Hearold, 603 So.2d 731 (La.1992). In his first pro se assignment of error, Defendant alleges insufficiency of evidence. Even though we find that this assignment of error without merit under Hearold, we shall address it first in our discussion.

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court stated:

With regard to sufficiency of the evidence, this court sets forth as follows in State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).

In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

Defendant in this case was convicted of one count of forcible rape in violation of La.R.S. 14:42.1(A), which states in part:

Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

At trial, the State offered the victim's testimony that Defendant broke into her motel room, took the money from her purse, and engaged in non-consensual sex with her. He fondled her breast before having intercourse with her and she reasonably believed that resisting his advances would not have prevented the rape.

The second offense Defendant was convicted of was aggravated burglary in violation of La.R.S. 14:60, which states, in pertinent part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,

(1) Is armed with a dangerous weapon; or

(2) After entering arms himself with a dangerous weapon; or

(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Based on the evidence presented, we find that sufficient evidence was presented to support the charge of forcible rape and aggravated battery. However, we find, as follows, that the evidence cannot be used to support both charges as that constitutes a violation of double jeopardy.

DOUBLE JEOPARDY

In State v. Cloud, 06-877 (La. App. 3 Cir. 12/13/06), 946 So.2d 265, 269-70, writ denied, 07-0086 (La.9/21/07), 964 So.2d 331, we summarized the analysis required in determining double jeopardy:

In State v. Barton, 02-163, pp. 17-18, (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201-02, writ denied, 03-3012 (La.2/20/04), 866 So.2d 817, the court summarized the two tests used by Louisiana courts use [sic] in examining violations of double jeopardy as follows:

The "distinct fact" test, commonly referred to as the Blockburger test, is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Accord, State v. Knowles, 392 So.2d 651, 654 (La.1980).

The second test is the "same evidence" test. In State v. Steele, 387 So.2d 1175, 1177 (La.1980), the Louisiana Supreme Court explained that test as follows:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial....

The "same evidence" test is broader than Blockburger, "the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct." State v. Steele, 387 So.2d at 1177. Although the Louisiana Supreme Court has accepted both the Blockburger test and the same evidence test, it has principally relied on the "same evidence" test to evaluate double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La.1990).

In his supplemental brief, Defendant alleges his convictions for aggravated burglary and forcible rape violate the principles of double jeopardy as the evidence necessary to prove the aggravated burglary offense is the same evidence necessary to prove the forcible rape offense.

Our review of the record reveals that Defendant in this case was not armed with a dangerous weapon when he entered the victim's hotel room, nor did he arm himself with a dangerous weapon while within. Accordingly, the only possible theory available to sustain an aggravated burglary conviction is that he committed a battery while in the room. "Battery is the intentional use of force or violence upon the person of another...." La.R.S. 14:33. Accordingly, we find that Defendant's rape of the victim constituted a battery as defined in La.R.S. 14:33.

In State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, we vacated an armed robbery conviction on the basis that the defendant had also been convicted of aggravated burglary, where at trial, the same evidence would have been used to secure both convictions. The defendant in Joseph kicked down the front door and entered the home of the victim and took a gun from her. Joseph, 916 So.2d 378. It was determined at the guilty plea proceedings that the defendant took nothing else from her. Id. On appeal, the defendant argued that since at the time he broke into the victim's home and took the gun from her he was not armed, he could not be charged with armed robbery. The court in Joseph held:

The state specifically stated that the "taking" upon which the charge of armed robbery was based was the gun taken from Mrs. Dartez. Charging the defendant with both aggravated burglary and armed robbery, based upon the same set of facts, clearly violates the "same evidence" test as set forth in [State v.] Crosby [, 338 So.2d 584 (La. 1976),] and [State v.] Steele [, 387 So.2d 1175 (La.1980) ].

Id. at 384.

In a recent case, State v. Williams, 07-931, p. 3 (La.2/26/08), 978 So.2d 895, 896, the supreme court discussed the issue of the State's recourse when it violated a defendant's constitutional right against double jeopardy and stated:

As opposed to quashing the prosecution altogether and setting aside defendant's guilty plea and sentence, the court of appeal should have, assuming the correctness of its premise, reduced defendant's conviction to the misdemeanor offense of flight...