State v. Sargent
| Decision Date | 08 November 2017 |
| Docket Number | 17-424 |
| Parties | STATE OF LOUISIANA v. ROBERT LEE SARGENT -AKA- ROBERT LEE SARGENT, SR. |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.
State of Louisiana
Carey J. Ellis, III
Louisiana Appellate Project
Post Office Box 719
Robert Lee Sargent
Pine-2, Main Prison
Defendant, Robert Lee Sargent, Sr., was indicted on September 17, 2015, for aggravated rape, a violation of La.R.S. 14:42, and for sexual battery, a violation of La.R.S. 14:43.1.1 The indictment was amended on the morning of trial to state the offenses occurred between September 12, 2009, and January 1, 2015. A jury convicted Defendant on both counts as charged on December 9, 2016. The trial court sentenced him to life imprisonment for aggravated rape and to twenty-five years at hard labor for sexual battery, with both sentences to be served without probation, parole, or suspension of sentence. The sentences are to be served consecutively.
Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to base an appeal and seeking to withdraw as Defendant's counsel. Defendant filed a pro se brief alleging insufficient evidence and ineffective assistance of counsel. We grant the motion to withdraw, and Defendant's convictions and sentences are affirmed.
FACTS:
Defendant committed the aggravated rape and the sexual battery of Z.V., a child under the age of thirteen.2 The victim was the daughter of Defendant's friends, his next door neighbors.
ERRORS PATENT and PRO SE ASSIGNMENT OF ERROR NUMBER THREE:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. Additionally, in Pro SeAssignment of Error No. 3, Defendant requests a review of the record for errors patent. After reviewing the record, we find that is one error patent.
For Defendant's conviction of sexual battery, the trial court sentenced him to serve twenty-five years without the benefit of parole, probation, or suspension of sentence, but it did not impose the sentence at hard labor as required by La.R.S. 14:43.1(c)(2). Although the court minutes of sentencing and the commitment order both indicate the sentence is to be served at hard labor, the sentencing transcript does not. When there is a conflict with the sentencing transcript, the transcript prevails. State v. Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. This court has found when hard labor is required by the applicable statute, the failure to impose a sentence at hard labor renders it illegally lenient. State v. Perkins, 13-245 (La.App. 3 Cir. 11/6/13), 124 So.3d 605. However, while we note the illegally lenient sentence, we will not correct the error because the issue was not raised and correction is moot given the result of the opinion. State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573; State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931, State v. Dorsey, 10-1021 (La.App. 3 Cir. 3/9/11), 58 So.3d 637, writ denied, 13-2561 (La. 6/13/14), 140 So.3d 1184.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE:
Defendant claims he is innocent, and the evidence at trial was insufficient to convict him. He argues his wife's niece, J.T., manipulated or influenced Z.V. and A.R. to file charges against him. He contends he "had a lot of property, and others either wanted it or were jealous."3
The standard of review in a sufficiency of the evidence claim is "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged." State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court "to substitute its own appreciation of the evidence for that of the fact-finder." State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court's function is not to assess the credibility of witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.
The fact finder's role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the sufficiency evaluation standard of Jackson, "the appellate court should not second-guess the credibility determination of the trier of fact," but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:
However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses "only to the extent necessary to guarantee the fundamental due process of law." State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction,an appellate court must preserve "'the factfinder's role as weigher of the evidence' by reviewing 'all of the evidence . . . in the light most favorable to the prosecution.'" McDaniel v. Brown, 558 U.S. ___, ___, 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury "reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt." State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378 ().
"Aggravated rape is a rape committed . . . where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed . . . [w]hen the victim is under the age of thirteen years." La.R.S. 14:42(A)(4).
Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, when . . . . [t]he offender acts without the consent of the victim.
"It is well-settled that a victim's testimony alone is sufficient to support a verdict as long as that testimony was believed by the trier of fact and thattestimony does not contain internal contradictions or irreconcilable conflicts with physical evidence[.]" State v. Hypolite, 13-1365, p. 12 (La.App. 3 Cir. 5/14/14), 139 So.3d 687, 696, writ denied, 14-1242 (La. 1/23/15), 159 So.3d 1056. In Hypolite, the victim described what the defendant did, but her testimony was inconsistent with her pre-trial statements. Nevertheless, the jury weighed her testimony and chose to believe it. This court found the evidence sufficient to convict the defendant of aggravated rape and affirmed the conviction.
In the case before us, Defendant has consistently denied the charges against him. A number of witnesses have testified. A summation of those testimonies follows:
Lieutenant Cinnamon Salvador
Lieutenant Cinnamon Salvador of the Calcasieu Parish Sheriff's Office was a detective in the sex crimes and child abuse unit at the time of these offenses. She testified the victim's parents filed a report on June 29, 2015, about Defendant touching the victim inappropriately. She scheduled an appointment for the victim to be interviewed at the Children's Advocacy Center (CAC).
At the interview, the victim "disclosed several occasions where [Defendant] had brought her into different rooms at his house and had touched her both with his mouth on her vagina and performed oral sex on her in several different rooms." Lieutenant Salvador testified about the details of each encounter as described to her by the victim. She also spoke to J.T., Defendant's niece by marriage, on the same day of the CAC interview. J.T. told her about incidents involving Defendant when she was very young and also a few days prior to the interview. Later, J.T. brought Lieutenant Salvador a recording in which Defendant admitted having sex with her.
Lieutenant Salvador and Lieutenant Mike Primeaux went to Defendant's home with a search warrant but did not execute it because Defendant cooperated and gave them permission to perform the search. Upon arrival, they immediately identified...
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