STATE OF LOUISIANA v. SETH GAGE SAVOIE (2025)

The defendant, Seth Gage Savoie, was charged by grand jury indictment with first degree rape of a victim under thirteen years of age, a violation of La. R.S. 14:42(A)(4), and he pled not guilty. After a jury trial, he was found guilty as charged. The defendant filed a motion for post-verdict judgment of acquittal, motion in arrest of judgment, and two motions for new trial, all of which the trial court denied. The trial court subsequently sentenced him to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, asserting two assignments of error: (1) the trial court erred by denying his motion for new trial based on newly discovered evidence, and (2) the mandatory life sentence is constitutionally excessive. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On August 7, 2019, the St. Mary Behavioral Health Center faxed a report to the Assumption Parish Sheriff's Office (“APSO”). In the report, it was alleged that J.O.,¹ who was born on July 21, 2009, disclosed to a counselor that she had been sexually abused. J.O. indicated the defendant, her cousin by affinity whom she was living with at the time, orally and digitally penetrated her. The matter was assigned to Lieutenant Brandon Gosser with the APSO.

Lieutenant Gosser scheduled two interviews for J.O. at the Children's Advocacy Center of Lafourche (“CAC”) in Thibodaux, Louisiana. During the first interview, J.O. indicated the defendant put his finger and his tongue “down there” and gave her “really, really gross long kisses.” She explained that sometimes the defendant's finger was placed under her clothes and inside of her body, which she indicated would hurt, and other times, his finger was over her clothes. J.O. stated the defendant would pull her pants and underwear down to put his tongue “down there.”

According to J.O., the abuse began when she was about eight or nine years old and the last incident occurred about one month before her first CAC interview, which occurred on August 22, 2019, around the time she turned ten years old. J.O. indicated the incidents occurred most often in the living room and sometimes in the pantry, with J.O. seated on the freezer or the dryer with her legs opened, as positioned by the defendant. J.O. further indicated the incidents occurred when the other occupants of the home were either asleep or not at home. During the second CAC interview, conducted on April 27, 2023, J.O. further disclosed the defendant made her perform oral sex on him multiple times, stating he would force her down and force his penis into her mouth, while in the pantry room.

MOTION FOR NEW TRIAL

In assignment of error number one, the defendant asserts that the trial court refused to consider newly discovered evidence that would have corroborated his defense that he was misidentified as J.O.’s abuser. The defendant explains the evidence concerned sexual abuse charges that stem from an incident that occurred in Iowa against another individual who resided in the defendant's home at the time of the offense. The defendant insists the new evidence would have caused the jury to have reasonable doubt, and therefore, would have produced a different result in his case.

Under La. Code Crim. P. art. 851(B)(3), the trial court shall grant a motion for new trial whenever “[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.” Pursuant to La. Code Crim P. art. 854:

A motion for a new trial based on ground (3) of Article 851 shall contain allegations of fact, sworn to by the defendant or his counsel, showing:

(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;

(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;

(3) The facts which the witnesses or evidence will establish; and

(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available.

The newly discovered whereabouts or residence of a witness do not constitute newly discovered evidence.

In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing (1) new evidence was discovered after trial; (2) the failure to discover the evidence was not due to a lack of diligence on the part of the defense; (3) the new evidence is material to the issues at trial; and (4) had the evidence been introduced, it probably would have changed the verdict. The test to be employed is not simply whether another trier of fact might render a different verdict, but whether the new evidence is so material that it should produce a verdict different from that rendered at trial. State v. Ruffin, 2016-0264 (La. App. 1st Cir. 9/20/16), 277 So.3d 319, 325, writ denied, 2016-1913 (La. 9/15/17), 225 So.3d 483. The trial court's denial of a motion for new trial will not be disturbed absent a clear abuse of discretion. Ruffin, 277 So.3d at 324-25.

On appeal and in the motion for new trial, the defendant argues a new trial is warranted based on evidence that an individual named Zachary Allerton, who resided in the defendant's home at the time of the offense, had previously been charged in Iowa with sexual abuse in the second degree. The defendant asserts that he recently discovered that Mr. Allerton was arrested in 2017 in Iowa for two counts of sexual abuse in the second degree, which allegedly occurred in 2010 when Mr. Allerton was a juvenile.

At the hearing on the motion for new trial, defense counsel did not refer to Mr. Allerton by name, but noted it was her understanding that this individual was discussed at trial by the defendant. She pointed out that “no evidence or other records were introduced at the trial to corroborate what [the defendant] testified to.” Defense counsel noted the defendant and the other individual had a similar height and weight, and alleged that in addition to the Iowa arrests, the other individual had been adjudicated delinquent for another incident involving sexual abuse of a person under the age of twelve. Defense counsel asserted the evidence of Mr. Allerton's arrest was discovered after the trial was over and argued the evidence would have resulted in a different outcome had it been presented to the jury.

Subsequently, at the sentencing hearing, but prior to sentencing and before the court ruled on the motion for new trial, defense counsel asserted if the motion were granted, the defense “would be calling the police officer from Iowa who arrested [Mr. Allerton] and we would be asking the questions of the witnesses - the complainant and law enforcement here in Assumption Parish as to what ․ knowledge they had or what efforts they made in light of this new information.”

The defendant has failed to satisfy the criteria for a new trial by failing to demonstrate that notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial. During the hearing on the motion for new trial, the defendant failed to offer any evidence to demonstrate reasonable diligence. It is evident from the defendant's and his wife, Brandy Savoie's, trial testimony that they were aware of the possibility that Mr. Allerton perpetrated the crime against J.O. and that Mr. Allerton and the defendant had similar physical features. At trial when the defendant was asked if he was stating that “Zack” molested J.O., he replied, “I was saying that is a possibility.” When the defendant was asked if there was mistaken identity between him and “Zack,” the defendant again testified it was a possibility. Referring to “Zack,” the defendant testified, “not only does he look sort of like me, he's a bit taller․ We have the same demeanor. Even my own mother ․ would be on the phone and she thought that she was talking to me on the phone and turns out she was talking to him.” Ms. Savoie testified at trial that Zack Allerton was a roommate, and she was inclined to believe the sexual assault could have been perpetrated by him.

Carolyn Raffin, J.O.’s maternal grandmother, also testified that she believed J.O. was sexually assaulted, but not by the defendant. She confirmed it was her belief that the perpetrator was the “guy that was living with them at the time.” Ms. Raffin testified that “[t]his guy that I'm talking about has a history in other states where he has done this to children.”

From August of 2019, when the allegations came to light, until the trial in May of 2023, the defendant had the opportunity to gather evidence on Mr. Allerton to support his assertion regarding Mr. Allerton's criminal record. There is nothing in the record before us that establishes he did so. In fact, there is nothing in the record to establish the defendant pursued any investigation into Mr. Allerton prior to trial, although the defendant and Ms. Savoie testified that it was a possibility that Mr. Allerton perpetrated the offense against J.O. For these reasons, we find the defendant has not demonstrated reasonable diligence in securing the new evidence.

The defendant has also failed to establish that had the evidence been introduced, it probably would have changed the verdict. J.O. unequivocally and repeatedly stated it was the defendant who committed the sexual assault, and the sexual assaults occurred multiple times. Furthermore, J.O. knew the defendant her entire life, eliminating any chance of misidentification. Moreover, J.O. confirmed that family members attempted to convince her the perpetrator could have been someone else and stated, “I never once believed that the person who raped me was not Seth Savoie.” The jury was presented with and obviously rejected evidence of mistaken identity by returning a verdict of guilty as charged.

Furthermore, we note the defendant failed to comply with Article 854, as he did not provide the names of the witnesses who would have been called to present the proposed evidence or the specific details of the testimony and/or purported arrest(s). Also, the defendant did not indicate the unnamed witnesses were not beyond the process of the court.

For the foregoing reasons, we find the defendant has failed to show the proposed evidence is of such a nature that it would probably produce a different verdict in the event of retrial. See La. Code Crim. P. art. 854(1). Accordingly, the trial court did not abuse its discretion in denying the motion for new trial. Assignment of error number one lacks merit.

EXCESSIVE SENTENCE

In assignment of error number two, the defendant contends that although the life without parole sentence is mandatory, it is excessive in this case. According to the defendant, he is a twenty-seven-year-old, first-time offender, and the only evidence against him was the words of the accuser. The defendant asserts his case is tainted by the “residual doubt” raised in his motion for new trial regarding his identity as J.O.’s abuser. He argues these particularized circumstances compel the conclusion that the mandatory sentence is constitutionally excessive as applied to his case.

Under La. Code Crim. P. art. 881.1(E), “[the] [f]ailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude ․ the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal․” (Emphasis Added). One purpose of a motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the trial court still has jurisdiction to change or correct the sentence. State v. Trantham, 2024-0203 (La. App. 1st Cir. 12/27/24), 404 So.3d 975, 980. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. Id.

On appeal, the defendant concedes that his trial counsel did not move for reconsideration of his sentence pursuant to La. Code Crim. P. art. 881.1. Furthermore, our independent review of the record in this case reveals that the defendant did not orally move for reconsideration of his sentence at the time of sentencing, nor did he subsequently file a written motion to reconsider the sentence. Accordingly, the defendant's failure to urge a claim of excessiveness or any other specific ground for reconsideration of the sentence by oral or written motion at the trial court level precludes our review of his claim of excessive sentence. See State v. Powe, 2023-0594 (La. App. 1st Cir. 11/3/23), 2023 WL 7268456 *2, writ denied, 2023-01634 (La. 4/30/24), 383 So.3d 925.

PATENT ERROR

This court routinely reviews criminal appeals for patent error pursuant to La. Code Crim P. art. 920(2). Our review has revealed the existence of a patent sentencing error in this case. The trial court sentenced the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence immediately after it denied the defendant's motion for new trial based on newly discovered evidence. When a defendant is convicted of a felony and files a motion for a new trial, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. However, if the defendant expressly waives a delay provided for in this article, the court may immediately impose the sentence. La. Code Crim. P. art. 873. The record reflects that the defendant did not expressly waive the delay provided for in Article 873; therefore, the trial court erred by failing to wait twenty-four hours before imposing the defendant's sentence.

While an explicit waiver of the delay is required, “an error in failing to observe the statutory sentencing delay may still be found harmless.” State v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205-06 (per curiam), cert. denied, 583 U.S. 1160, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018). In the instant case, the trial court lacked sentencing discretion. Because the defendant was convicted of first degree rape of a victim under the age of thirteen, the defendant received the mandatory sentence of life imprisonment at hard labor. See La. R.S. 14:42(D)(2)(b). Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless and does not require a remand for resentencing. See State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, 380, cert. denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) (where, because of the mandatory nature of the sentence, remand for resentencing was not required absent a showing that prejudice resulted from the failure to observe the delay); State v. Collins, 2021-1048 (La. App. 1st Cir. 2/25/22), 2022 WL 575319, *1 (unpublished), writ denied, 2022-00519 (La. 5/24/22), 338 So.3d 1193; State v. Williams, 2019-0362 (La. App. 1st Cir. 2/26/20), 2020 WL 913674, *10 (unpublished), writ denied, 2020-00555 (La. 10/6/20), 302 So.3d 527.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   In accordance with La. R.S. 46:1844(W), the child victim herein is referenced only by her initials to protect her identity.

FIELDS, J.