State v. Parish

• Decision Date: 26 January 1981
• Docket Number: No. 80-KA-1769,80-KA-1769
• Citation: State v. Parish, 405 So.2d 1080 (La. 1981)
• Parties: STATE of Louisiana v. Marvin D. PARISH.
• Court: Louisiana Supreme Court

Page 1080

405 So.2d 1080

STATE of Louisiana v.Marvin D. PARISH.

No. 80-KA-1769.

Supreme Court of Louisiana.

Jan. 26, 1981.

Dissenting Opinion Sept. 3, 1981.

Rehearing Denied Nov. 27, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.

Jeanette G. Garrett, Indigent Defender Program, Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.

CUTRER, Justice Ad Hoc.^*

By bill of information filed July 16, 1979, defendant, Marvin Parish, was charged with attempted aggravated rape, a violation of La.R.S. 14:42 and 14:27.A twelve-person jury found the defendant guilty as charged.The trial court sentenced him to twenty (20) years at hard labor.On appeal the defendant urges ten ¹ assignments of error as grounds for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NUMBERS 8 AND 9

The defendant, through these two assignments, contends that the conviction must be reversed because a rational trier of fact could not have found that the essential elements of the offense of attempted aggravated rape were proven beyond a reasonable doubt.

In resolving this issue, we must determine:

"... whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of facts could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).The issue, therefore, is whether any rational jury could have found beyond a reasonable doubt from the evidence in this case that Williams obtained credit for the purchase or acquisition of money, goods or services."State v. Williams, 389 So.2d 384, 385(La.1980).

The defendant was charged with attempted aggravated rape.

Aggravated rape is set forth in LSA-R.S. 14:42.The pertinent part of this statute reads as follows:

"Aggravated rape is a rape committed where the anal 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) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or

2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; ..."

The pertinent part of the attempt statute, as set out in LSA-R.S. 14:27, reads as follows:

"A.Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

"B.Mere preparation to commit a crime shall not be sufficient to constitute an attempt; ...."

According to these statutesthe state must prove that the defendant had the specific intent to commit aggravated rape upon Lynda Herzog and that the defendant performed an act for the purpose of and tending directly toward the accomplishing of his object.

The evidence most favorable to the state reveals the following:

On March 10, 1979, Lynda Herzog was alone in her apartment watching television and heard a knock on the door at approximately 11:00 P.M.When she answered the door defendant, Marvin Parish, stated that his name was Steve and that he was a neighbor and needed change for the laundromat.Ms. Herzog turned and walked away from the door to get some quarters.She testified that when she turned around the defendant had closed and locked the door and was standing immediately behind her.She bumped into him as she turned around.The defendant apologized and said he didn't mean to scare her.She gave him change for a dollar and began slowly urging him toward the door, but the defendant did not leave.At that point she was frightened and attempted slowly to open a drawer behind her and get a butcher knife out but changed her mind when she thought he may try to take it from her.She stated that the defendant grabbed her by putting one hand over her mouth and one hand around her throat.He then told her he wanted to make love to her.She stated that during the episode he used the word "rape" in expressing his intentions.He told her not to scream or he would kill her.He grabbed and held her so tightly that she was unable to breathe.She began getting weak due to the pressure exerted upon her.In the struggle Ms. Herzog lost her contact lens and her blouse was torn and she received a small cut near her eye.After she promised not to scream by nodding her head, he released his hold on her.Ms. Herzog stated she was terrified and told him she would do anything he wanted so long as he didn't hurt her.

Ms. Herzog then began talking to stall for time.She told him her son was due to come home at any time and that he had a gun.As instructed by defendant, she closed the drapes in the living room.She stated that the defendant grabbed her by the shoulder, neck and hair and began dragging her down the hall toward the bedroom.At that point he tripped over some clothing stacked in the hallway.More conversation ensued.He told her to undress or he would undress her.She kept talking to him and stalling for time.

Finally, the defendant, for reasons best known to himself, decided to discontinue his actions, at which time he apologized to Ms. Herzog and left.Ms. Herzog stated that during the course of events the defendant never took off any of his clothing, nor did he remove any of hers.She stated that the defendant's zipper was partially unzipped and she noticed that he had an erection.

Ms. Herzog stated that she was approximately 5 feet 3 inches tall and weighed 120 pounds.She stated that the offender was approximately 6 feet tall and weighed 250 pounds.

After the defendant left, Ms. Herzog called a friend in Atlanta, Georgia, who told her to call the police.An officer arrived and took her complaint.A print was lifted from a beer bottle that the defendant left behind.Some months later defendant was arrested and fingerprinted on a Peeping Tom charge.In June his prints were matched with the print lifted from Ms. Herzog's apartment and he was arrested and charged with attempted aggravated rape.

These facts show that the defendant had the specific intent to commit the offense of aggravated rape upon Ms. Herzog.He lied to Ms. Herzog to gain entrance to her apartment; he unequivocally made known to her by his words and appearance that he intended to have sexual intercourse with her; defendant used physical force upon Ms. Herzog as he made his intention known; Ms. Herzog resisted his actions to the best of her ability, considering the comparative sizes of the defendant and Ms. Herzog; the defendant threatened her with death if she resisted; defendant dragged her down a hallway to a bedroom for the purpose of fulfilling his intended desires when he fell over the clothing.After the fall and more talking, stalling and pleading by Ms. Herzog, defendant abandoned his plan of action.

The words and actions of defendant fulfill the requirements of LSA-R.S. 14:27, in that, by using physical force upon her after making known to her that he intended to commit rape and especially by forcing her toward the bedroom for the purpose of committing the rape, he committed "an act for the purpose of and tending directly toward the accomplishing of his object"(aggravated rape).The record presents ample evidence for the jury's verdict.

Assignments of error Numbers 8 and 9 are without merit.

ASSIGNMENT OF ERROR NUMBER 10

This assignment presents the issue of whether the sentence of twenty years at hard labor is excessive.The maximum sentence for attempted aggravated rape is fifty years at hard labor.The trial court did not conduct a sentence hearing, but did conduct a hearing on a motion by defendant to be released on bond.At this hearing considerable testimony was given by defendant's parents, his wife and employer about defendant's past emotional problems, his employment record and somewhat stormy marital situation.

The record reveals that the trial judge followed the sentencing guidelines prescribed by La.C.Cr.P. art. 894.1.In imposing the sentence he weighed the facts of the instant case.He pointed out that defendant threatened Ms. Herzog's life; he used a ruse to gain entrance to Ms. Herzog's apartment and there attempted to accomplish his objective with Ms. Herzog.No provocation emanated from Ms. Herzog.He pointed out that defendant had no prior delinquencies or criminal activity but also noted:

"... Counsel has acknowledged, as well as Mr. Parish, in prior conversation to the Court that Mr. Parish was in need of some type of psychiatric care and attention, ...."

He stated that this type of conduct was known to defendant and members of his family for a time before this incident.No such treatment had been sought or provided, however.

The court also had information before it that defendant had been charged with being a "Peeping Tom," which charge arose after the incident in question.The court, after considering these factors, concluded that defendant would not respond affirmatively to probation.The court felt that defendant would again commit such a crime.

Having so concluded, and after further deciding that a lesser sentence would depreciate the seriousness of the crime committed, the trial judge imposed the sentence of twenty years at hard labor, less than one-half of the maximum of fifty years.

As we consider the favorable parole and good time laws applicable to incarcerated persons in this state, we conclude that, under the circumstances presented, the sentence does not constitute cruel or unusual punishment.

For the reasons set forth herein, the conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J.,...