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STATE of Louisiana v. Ivan RUBIO
Defendant Ivan Rubio was convicted of sexual battery, in violation of La. R.S. 14:43.1. On appeal, he argues that this Court should vacate his sentence of eight years’ imprisonment at hard labor for this first offense and remand the matter for resentencing, because the trial court misstated important and crucial facts regarding the offense after defendant orally moved for reconsideration of his sentence. Finding no legal basis to vacate the sentence or remand for resentencing, and further finding that defendant's sentence is not excessive, we affirm defendant's conviction and sentence.
On December 10, 2019, the Jefferson Parish District Attorney filed a bill of information charging defendant, Ivan Rubio, with sexual battery upon a known juvenile (DOB 1/20/02) in violation of La. R.S. 14:43.1. Defendant was arraigned on February 27, 2020 and pled not guilty. On February 1, 2022, the case was tried before a six-person jury, which unanimously found defendant guilty as charged.
On February 11, 2022, defendant filed “Motion to Reconsider Sentence,” “Motion for New Trial,” “Defendant's Motion for Post-Verdict Judgment of Acquittal,” and “Motion for Appeal, Designation of Record, and Assignment of Errors.”1 The trial court denied defendant's “Motion for New Trial” and “Motion for Post-Verdict Judgment of Acquittal” on February 17, 2022.
On February 24, 2022, the trial court sentenced defendant to imprisonment at hard labor for eight years without the benefit of parole, probation, or suspension of sentence. On that date, the trial court also provided defendant with notice of sex offender registration and notification requirements. Thereafter, on that same date, the trial court denied defendant's “Motion to Reconsider Sentence,” after which it orally granted defendant's motion for appeal. On February 25, 2022, the trial court granted defendant's written motion for appeal.
K.M.,2 age twenty at the time of trial, testified that in 2012, she and her mother moved to Jefferson Parish from Las Cruces, New Mexico, after her mother met defendant, Ivan Rubio, at a family reunion. The three of them lived together. K.M. explained that at first, defendant treated her like his stepdaughter, but that approximately five years later, his behavior toward her changed when they moved into a house at 6605 Glendale in Metairie.
K.M. asserted that defendant was “very touchy” with her and that he made her feel uncomfortable. She noted that over time defendant's touching of her escalated. She testified that defendant often got in bed with her and that this had started when they lived in their second apartment prior to moving into the house on Glendale. K.M. explained that in the beginning, defendant just got into bed with her, but as time went on, he would lie on her leg and touch her. She stated that defendant put his hands on her vagina, noting that at first he touched her vagina on the outside of her clothes, and that later, he touched her vagina underneath her clothes. K.M. further testified that defendant never inserted a finger or anything else into her vagina.
K.M. testified that she was fifteen years old when defendant first started touching her vagina and that he continued doing so when she was sixteen years old as well. She did not tell anyone what defendant was doing to her because she was too afraid. K.M. testified that in December of 2018, she went to stay with her friend, Julia Schriber, and Julia's mother, Jessica Schriber,3 because she could not “deal with it” anymore and was tired of being in “that house.” When she went to stay with the Schribers, she did not tell defendant because she knew he would “freak out” and not let her go there if she asked him. K.M. stated that defendant was very protective and clingy with her and that he would not let her hang out with other people. She noted that defendant had a problem with her spending time with friends and that he never let her hang out with boys. K.M. testified that when defendant found out she was staying at the Schribers, he called and texted her repeatedly.
K.M. viewed State's Exhibit 4 and identified it as text messages from her phone that defendant sent the day she went to stay at the Schribers. She stated that some of the text messages read: “This problem, thanks, we're over.” “Your stuff is destroyed. Thanks.” “Still hiding stuff from my - - well, good luck with your stupid life. Thanks for including me. Your stuff is destroyed.” K.M. testified that she replied, “What stuff?” and that his response was, “Just like my hand.” She recalled asking what happened to his hand and that defendant texted, “You're stupid. I'm bleeding everywhere and destroyed all of your stuff. You won't be happy. So f*ck like you care because you don't.” She said she responded, “Okay.” K.M. stated that the last text from his number was, “Sorry, we're done.”
At trial, K.M. identified several photos and a video that were recovered from defendant's phone. State's Exhibit 3A was a photograph of herself that she had never seen before the State showed it to her the day before trial. K.M. testified that she had no knowledge of that photograph being on defendant's phone. She explained that she recognized herself because of the pink and blue bows on the underwear, which belonged to her. K.M. identified State's Exhibit 3B as a video of herself, but asserted that she had never seen it until the day before trial. K.M. stated that she recognized herself because of the freckles on her stomach and arm, and that she recognized her hand and defendant's hands. K.M. identified State's Exhibit 3C as a video of herself that she had never seen until the day before trial. The State told her it had been taken from defendant's phone. She stated that she recognized herself because of the freckles and the shirt with yellow roses on it.4
K.M. testified that she spoke to the Schribers when she went to stay with them and disclosed information about defendant to them. Ms. Schriber asked her if defendant had ever touched her and that she said, “Yes.” K.M. recalled that Ms. Schriber also asked if defendant had touched her over or under her clothes and that she said, “Both.” She asserted that the next day, Ms. Schriber took her to the Children's Advocacy Center (“CAC”), where she met with a forensic interviewer and told her what happened with defendant. Afterwards, she went to the Audrey Hepburn Health Center and was examined by Dr. Neha Metha, whom she also told what happened with defendant.
Ms. Schriber testified that K.M. was a friend of her youngest daughter, Julia, and that she met K.M. briefly when K.M. came to her house before 2018.5 Julia asked if K.M. could stay with them, and she agreed. She recalled that one day, she went to pick up K.M. from her home because she needed a place to stay as K.M's mother was in rehabilitation. Ms. Schriber testified that a document was executed between her and K.M.’s mother regarding her becoming K.M.’s temporary guardian, giving her temporary parental custody. She talked to K.M. about why she did not want to stay at her house and that K.M. indicated that it had to do with defendant, recalling that K.M. told her she did not feel comfortable staying there.
Ms. Schriber testified that they went to K.M.’s house and retrieved some of K.M.’s belongings. She noted that K.M. was “panicked,” and that there was a sense of urgency that they arrive, pick up her belongings, and leave before defendant came home. They left the house with K.M.’s belongings before defendant arrived. She stated that once Julia and K.M. settled in Julia's bedroom, she went in to check on them.
Ms. Schriber testified that at that time, K.M. was receiving a lot of text messages and phone calls from defendant and that K.M. seemed “stressed out.” She asked K.M. to take screen shots of how many calls she was receiving. Ms. Schriber asserted that she had a conversation with K.M. that night about defendant and that K.M. disclosed information she deemed concerning. Afterwards, she called a detective friend from the Kenner Police Department and asked whom she needed to speak to regarding K.M.’s disclosures.
Ms. Schriber testified that she made contact with detectives in the Jefferson Parish Sheriff's Office (“JPSO”) and that they met the next day. She checked out Julia and K.M. from school and brought them to the Jefferson Parish CAC, where K.M. spoke to personnel at the CAC. Afterwards, they went to the Audrey Hepburn Medical Center where K.M. was examined. She recalled that she was later informed of defendant's arrest and that K.M.’s reaction was relief. Ms. Schriber testified that K.M. subsequently stayed with her and Julia from December 3, 2018 through March of 2019, after which K.M. flew to New Mexico, where K.M.’s grandmother and brother lived. Ms. Schriber noted that it was her duty as a police officer to report child sexual abuse disclosures.
Julia testified at trial that she knew K.M. and had gone to school with her. She testified that K.M. came to her house a few times and that K.M. told her that she lived with her mother and defendant, who was her mother's boyfriend. Julia said that she recalled meeting defendant and that he was very possessive and controlling over K.M. She recalled one time when they were doing a water bucket challenge in her backyard when K.M.’s mother texted K.M. to tell her that defendant was very upset that he was not included. Julia explained that defendant wanted to spend time with them and be involved in whatever they did. Julia testified that K.M. came to stay with her and her mother in December of 2018 because K.M.’s mother was going to rehabilitation and K.M. did not want to be alone with defendant.
Julia further testified that she remembered going to K.M.’s house to retrieve K.M.’s belongings before K.M. came to stay with them. Julia stated that they were hurrying because K.M. did not want to be there when defendant returned home. Julia testified that there were cameras at K.M.’s house that K.M. could monitor from her phone. She said that they saw defendant go “crazy” after he noticed that K.M. was not at home. Julia maintained that defendant “destroyed” K.M.’s room. She explained that they could not see into K.M.’s room, but that they saw defendant in the hallway walking in and out of her room and that his fists were bloody. Julia recalled that defendant called K.M. about fifty times and was leaving K.M. a lot of text messages.
Julia testified that K.M. stayed at her house for about three months and that K.M. then went to New Mexico. She stated that she had not seen K.M. since then and that they had lost touch.
JPSO Sergeant Sean Williams testified that on December 14, 2018, he went to the CAC regarding this investigation. When he arrived, he spoke to a forensic interviewer there. He stated that K.M. was present along with Julia and Ms. Schriber. He testified that K.M. identified defendant, her mother's live-in boyfriend, as the perpetrator. He stated that they went to the investigation bureau and took statements from both witnesses.
Sergeant Williams testified that an arrest warrant for defendant and a search warrant for his residence were obtained. Defendant was arrested at his residence and advised of his rights. Evidence was seized from defendant's residence, including an X-box console, defendant's cell phone, and video surveillance equipment. Sergeant Williams testified that he took photographs of defendant's residence, and he identified them as State's Exhibits 1A through 1N. Sergeant Williams stated that they retrieved a recent receipt with defendant's name and cell phone number on it in defendant's residence.
Sergeant Williams testified that he obtained a search warrant for defendant's cell phone and found text messages between defendant and K.M. He also testified that he sent defendant's cell phone to the JPSO digital forensics unit for them to extract information from it. He identified State's Exhibit 3 as the hard drive containing the information retrieved from defendant's cell phone. The trial judge stated that State's Exhibit 3 was comprised of the hard drive and its contents. Sergeant Williams provided that there were photographs and videos of K.M. on the phone.
Sergeant Williams identified image 4, a photograph taken on September 4, 2018, that was retrieved from defendant's phone. He also identified videos taken from defendant's phone, and he stated that the first video was filmed on October 25, 2018. Sergeant Williams identified State's Exhibit 4 as a DVD that contained text messages from K.M.’s phone to defendant's phone. He read those text messages, noting that they corroborated statements the victim made and that they were not messages that a parent or stepparent would send to a child. He stated that they read as though “someone was in a relationship.” Sergeant Williams testified that he went to the house on Glendale and observed several items in K.M.’s bedroom that were “trashed,” “thrown around,” and broken. He noted that there was blood on some of her furniture, on the bedding, and on the floor.
Aubrey Ziegler testified that she was employed by the Gretna Police Department as a forensic interviewer for the Jefferson Parish CAC, and that she conducted a forensic interview with K.M. on December 14, 2018. She identified State's Exhibit 6 as a DVD of that interview.6 K.M.’s interview testimony was very similar to her trial testimony.
K.M. told Ms. Ziegler that she lived with her mother and defendant, her mother's live-in boyfriend. She explained that defendant was controlling and acted like she was his girlfriend. K.M. asserted that defendant would get physically close to her, which made her uncomfortable. She also asserted that defendant slept with her and would lay on her leg while touching her vagina. K.M. said that defendant touched her on her vagina more than once on the outside of her clothes and underneath her clothes. She stated that this started when she was fifteen years old and that she was sixteen years old the last time it occurred. K.M. said that she did not tell anyone because she was afraid defendant would do something worse. She explained that when defendant came home and saw she was not there, he called her and said he was destroying her stuff. K.M. stated that defendant said “we're done” like they had been dating or something.
Dr. Mehta testified that she worked as the medical director of the Child Abuse Evaluation Program at Children's Hospital in New Orleans. The trial court accepted her as an expert in the fields of general pediatrics and child abuse pediatrics. Dr. Mehta conducted a physical examination of K.M., which she opined was normal and consistent with what K.M. said happened to her. She recalled K.M. telling her that the perpetrator put his fingers between the lips of her vaginal area and moved his fingers and that the abuse happened more than once. Dr. Mehta testified that in her expert opinion, what K.M. described to her was consistent with sexual abuse. She noted that when there is delayed reporting, as there was in this case, she does not expect to find physical signs of trauma. Dr. Mehta stated that ninety-eight percent of children they see at the Center have normal physical examinations.
ASSIGNMENT OF ERROR
In his only assignment of error, defendant argues that his eight-year sentence is unconstitutionally excessive. He contends that during the hearing on the motion for reconsideration of sentence, the trial judge misstated the facts when she said that he digitally penetrated K.M. Also, defendant notes that he is a first-felony offender. As such, defendant requests that this Court vacate his sentence and remand to the trial court for resentencing. In support of his position, defendant cites State v. Lobo, 12-271 (La. App. 5 Cir. 12/18/12), 106 So.3d 1187, writ denied, 13-151 (La. 6/21/13), 18 So.3d 409, and State v. Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215 So.3d 473. Defendant argues that unlike Lobo, he neither penetrated the victim, nor had he been arrested for a previous sexual offense. He further argues that his case is more like Ordonez because he was convicted of touching but not penetrating the victim.
The State responds that the eight-year sentence is not unconstitutionally excessive. It further responds that although the trial judge arguably misstated a single fact during the motion hearing, there was no prejudice to defendant as the record supports the sentence imposed. The State notes that K.M. testified that defendant got into bed with her several times when she was fifteen years old and touched her vagina underneath her clothes. It further noted that defendant took photographs of K.M. in her underwear and videos of K.M. while he was touching her.
The State also asserted that defendant, whom K.M. considered to be like a stepfather, abused his position of trust. It argued that the sentence was not excessive when considering the nature of the crime, the nature and background of the offender, and the sentences imposed by this and other courts. In support of its position, the States cites State v. Toups, 546 So.2d 549 (La. App. 1 Cir. 1989); State v. Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, writ denied, 01-2965 (La. 10/14/02), 827 So.2d 414; State v. Galindo, 06-1090 (La. App. 4 Cir. 10/3/07), 968 So.2d 1102, writ denied, 07-2145 (La. 3/24/08), 977 So.2d 952; and State v. Hubb, 97-304 (La. App. 5 Cir. 9/30/97), 700 So.2d 1103.
The record reflects that on February 24, 2022, a sentencing hearing was held. At that hearing, the prosecutor read K.M.’s victim impact statement into the record as follows:
This is my Victim Impact Statement. My life after this crime changed so drastically, it was hard to understand everything that was going on. I had to talk about what happened to me in detail that I've never told or said out loud to anyone else what happened, so that was very hard for me to do. They had to swab and take pictures of where you touched me.
I'm scared to be in the Metairie area knowing that you're still there and that I might see you. I don't think a day goes by where I don't think about what you did to me.
It's hard for me to have any sexual contact with someone because it just reminds me of those nights. It's hard knowing that a lot of my family knows what happened, because I don't want to be looked at or treated differently after they know that.
I try my best every day not to let what you did get to me, and I remember how strong and brave I am for standing up and saying something after so long.
Thank you for contacting me to write this. It's kind of a sense of closure. I really hope this helps in the decision-making process. I did the best I could.
Defense counsel argued that defendant was a first-time offender and asked the trial judge to take that into consideration. The trial judge then sentenced defendant to imprisonment at hard labor for eight years without the benefit of parole, probation, or suspension of sentence. She stated in pertinent part:
Mr. Rubio, this Court sat and heard the testimony of the victim in this case as she described the sexual batteries that you committed against her in her own home. The effect that that has had on that child is irreplaceable and she will never be the same again based upon what you did to her.
* * *
The Court has considered the aggravating and mitigating factors as required under 894.1 in addressing this sentence. The only reason you didn't get the maximum sentence is because you do lack a criminal history.
Afterwards, defense counsel asked the trial judge to reconsider the sentence. He argued that the State's evidence did not show a persistent pattern, noting that the victim said it happened a couple of times. Defense counsel contended that eight years was an excessive sentence for a person who had never been in trouble or arrested. He noted that the record showed that the trial court had offered five years on a plea deal. Defense counsel provided that defendant had been informed continually as to what the court's intentions were but chose to go to trial. He argued that this was not the type of offense that was so egregious that it would have deserved a maximum sentence for someone who had never been involved in the criminal justice system.
The trial judge responded:
Let me just ask you, when you're a fifteen-year-old-child and somebody climbs in bed with you and asserts [sic] their fingers into their [sic] minor's vagina a couple of times, that's not egregious? I mean how many times does it make it egregious, Mr. Alterman?
Defense counsel responded:
Your Honor, when something is a pattern for years and years and continually abuse [sic], that to me is a little different than something that may have happened one or two times.
I understand. It is not proper or anything else. I'm just putting it on the record. That's all, your Honor.
The trial judge then stated:
The record will speak for itself. We'll also put on the record that he videotaped or used on his cell phone somehow fondling the little girl's breasts. That was information that was located on his cell phone. Her breasts were identified by the poor girl who had to watch that in court again.
The trial judge then denied the motion to reconsider sentencing.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for unconstitutional excessiveness. State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied, 05-244 (La. 12/9/05), 916 So.2d 1048.
A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130, writ denied, 08-1649 (La. 4/17/09), 6 So.3d 786. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id.
Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Badeaux, 798 So.2d at 239. Maximum or nearly maximum terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. State v. Howard, 18-159 (La. App. 5 Cir. 11/7/18), 259 So.3d 583, writ denied, 18-2034 (La. 4/29/19), 268 So.3d 1031.
In the instant case, the State alleged in the bill of information that defendant committed sexual battery upon a known juvenile (DOB 1/20/02) in violation of La. R.S. 14:43.1. The State further alleged in the bill of information that the offenses occurred on or between June 1, 2018 and December 14, 2018. On February 1, 2022, at trial, K.M. testified that she was twenty years old. K.M. also testified that she was fifteen years old when defendant first started touching her vagina and that he continued doing so when she was sixteen years old. K.M. recalled that defendant last touched her vagina a couple of days before December 13, 2018 (the date she went to the Schribers’ house). Therefore, it appears the incidents occurred between 2017 and 2018.
La. R.S. 14:43.1(C)(1), which went into effect on August 1, 2015, provides, “Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” The trial court sentenced defendant to imprisonment at hard labor for eight years, without the benefit of parole, probation, or suspension of sentence.
In Toups, supra, 546 So.2d 549, cited by the State, the defendant was convicted of sexual battery and was sentenced to eight years’ imprisonment at hard labor. In that case, the defendant touched the genital area of the five-year-old daughter of his former girlfriend and forced the victim to touch his “private.” The First Circuit Court of Appeal found no abuse of discretion in sentencing even though the defendant was a first-felony offender, stating that the trial court noted that the nature of the offense was heinous. Id. at 553.
In Badeaux, supra, 798 So.2d 234, also cited by the State, the defendant was convicted of sexual battery (count one) and indecent behavior with a juvenile (count two). He was sentenced to ten years’ imprisonment at hard labor on count one and seven years’ imprisonment at hard labor on count two, with the sentences to run consecutively. In that case, the defendant put his finger in the eight-year-old victim's vagina and showed her nude pictures of himself and others. This Court found that the sentences were not excessive, noting that the defendant established a relationship of trust with the victim by giving her candy, then abused that relationship by molesting a vulnerable girl. The pre-sentence investigation report indicated that although this was the defendant's first-felony offense, he had been accused of molestation charges involving his former girlfriend's stepdaughters. This Court noted that maximum or nearly maximum terms of imprisonment may not be excessive when the defendant has exploited a position of trust to commit sexual battery or indecent behavior with a juvenile. Id. at 239-40.
In Hubb, supra, 700 So.2d 1103,7 also cited by the State, two defendants were charged in a five-count bill of information with committing sexual offenses against two juveniles. They subsequently pled guilty to one count of sexual battery of T.B., who was ten years old at the time of the offense. One defendant was sentenced to seven years’ imprisonment at hard labor, and the other defendant was sentenced to six and one-half years’ imprisonment at hard labor. In that case, both defendants lived in the home with the victims and their mother. T.B. testified that on numerous occasions, Hubb came into her bedroom and “fingered” her vagina. She also testified that Hubb exposed his penis to her and forced her to masturbate him. T.B. further testified that both defendants “french kissed” her nightly and occasionally showed her photographs of nude women. Her sister, T.M., who was eleven years old at the time of the offenses, told officers that both defendants had done the same things to her. The trial court noted that the defendants had used their positions as adults in the family home to take advantage of the minor children living there. One defendant had no criminal history and that the other defendant's criminal history consisted of misdemeanors. This Court found that the trial court did not abuse its discretion and that the sentences were not excessive. Id. at 1105-06.
In Galindo, supra, 968 So.2d 1102, another case cited by the State, the defendant was convicted of one count of sexual battery and was sentenced to six years’ imprisonment at hard labor. In that case, the defendant touched the eight-year-old female victim's “private area” numerous times. The defendant lived next door to the victim and the victim's family, and the victim often played with her friend at the defendant's home. The Fourth Circuit Court of Appeal found the sentence not excessive, noting that the sentence was mid-range and that the recurring acts were committed against a young and vulnerable victim for which the law provided special protection. In support of its sentence, the court cited Badeaux, Hubb, and Toups. Id. at 1115-16.
In the instant case, we find that the eight-year sentence imposed on defendant is not unconstitutionally excessive. As to the nature of the crime, defendant, the live-in boyfriend of the victim's mother, touched the victim's vagina on top of and underneath her clothes more than once. The victim testified that defendant had been like a stepfather to her. The victim indicated that this touching started when she was fifteen years old and continued when she turned sixteen years old. Defendant also took videos and photographs of the victim without her knowledge. The trial judge indicated that one of the videotapes showed defendant fondling the victim's breast. With respect to the nature and background of the offender, although defendant is a first-time offender, he exploited a position of trust to abuse the victim.
Also, the victim suffered emotional harm as a result of the incidents. In her victim impact statement, K.M. said that her life changed drastically after this crime, noting that it had negatively affected her relationships. Ms. Schriber testified that she let the victim stay with her because the victim needed a place to stay as her mother was absent while in rehabilitation, which we note left K.M. particularly vulnerable to defendant's attentions. The victim explained that she wanted to leave her home because she did not want to stay there with defendant any longer. The victim also testified that defendant was very possessive, acted like they were in a relationship, sent her inappropriate text messages, destroyed her room, and took videos and photographs of her without her knowledge.
Regarding sentences imposed for similar crimes by this Court and other courts, the above jurisprudence reflects that courts have imposed similar sentences for similar crimes. See Toups, supra; Badeaux, supra; Hubb, supra; Galindo, supra.
Defendant cites Lobo, supra, 106 So.3d 1187, in his brief. In that case, the defendant argued that an eight-year sentence for his sexual battery conviction was excessive because he was a first-time offender, the case did not involve juvenile or multiple victims, and no severe violence was used against the victim. This Court upheld the sentence, noting that the defendant acted without provocation by touching a sleeping woman in her own bed without her consent and that he caused actual and emotional harm to A.R. This Court also noted that the defendant had a prior arrest for a sexual offense. Further, this Court found that if the defendant did in fact penetrate A.R.’s vagina as she claimed in her testimony, the defendant's actions would rise to the higher charge of simple rape. This Court also considered the lifelong impact those actions would have on the victim. Id. at 1193-94.
Importantly, Lobo is distinguishable from the instant case and is therefore inapplicable. Unlike in the instant case, Lobo did not involve a juvenile victim.
Defendant also cites Ordonez, supra, 215 So.3d 473, in his brief. In that case, the defendant received a four-year sentence for his sexual battery conviction. The defendant in that case touched the vagina of an eleven-year-old victim. However, since the defendant only challenged sufficiency of the evidence and did not challenge his sentence on appeal, that case cannot be utilized in the instant case to find that defendant's sentence is excessive. Id. at 475-79.
Defendant argues that the trial court mistakenly stated that he inserted his finger into the victim's vagina, and therefore, the sentence should be vacated and the case should be remanded for resentencing. The record reflects that the victim testified that defendant touched her vagina on more than one occasion, but that he did not insert his finger into her vagina. Although the trial judge was mistaken on this point, we find, for the reasons expressed above, that the record amply supports the sentence imposed. As stated above, the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. See State v. Pearson, supra, 975 So.2d at 656. Accordingly, we find defendant's assignment of error, that his sentence was unconstitutionally excessive, is without merit.
ERRORS PATENT REVIEW
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.
For the foregoing reasons, relator's conviction and sentence are affirmed.
1. Although the motion to reconsider sentence was prematurely filed, it was not ruled upon until after defendant was sentenced. Also, although the motion for appeal was prematurely filed, it was not ruled upon until after the motion to reconsider sentence was denied.
2. The victim will be identified by initials only in accordance with La. R.S. 46:1844(W). See State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500, 507 n.7, writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836.
3. Julia Schriber will be referred to as “Julia,” and Julia's mother will be referred to as “Ms. Schriber” throughout this opinion.
4. The exhibits identified by K.M. were all published to jury.
5. Ms. Schriber testified that in 2018, she was employed as a police officer with the City of Kenner.
6. The DVD was admitted into evidence and played for the jury.
7. The caption of the case says “Hubb”; however, in the opinion, he is referred to as “Hubbs.”
JUDE G. GRAVOIS, JUDGE
Response sent, thank you
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Docket No: NO. 22-KA-205
Decided: December 28, 2022
Court: Court of Appeal of Louisiana, Fifth Circuit.
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