STATE v. HOBSON (2026)

Defendant, Torey Hobson, appeals his convictions and sentences for molestation of a juvenile under the age of thirteen and indecent behavior with a juvenile under the age of seventeen. For the following reasons, we affirm Defendant's conviction and sentence for molestation of a juvenile under the age of thirteen. We affirm Defendant's conviction for indecent behavior with a juvenile under the age of seventeen. We vacate the sentence on that charge and remand for resentencing.

STATEMENT OF THE CASE

On January 9, 2020, Defendant was charged by grand jury indictment with the following offenses: Count 1, “FIRST DEGREE RAPE UPON [the victim], DATE OF BIRTH 02/10/2007” in violation of La. R.S. 14:42; and Count 2, “INDECENT BEHAVIOR WITH A JUVENILE, NAMELY [the victim], DATE OF BIRTH 02/10/2007, A CHILD UNDER THE AGE OF SEVENTEEN” in violation of La. R.S. 14:81. Notably, the victim was twelve years old at the time of the offense. Defendant pled not guilty.

Following pre-trial proceedings, which included two competency hearings, the matter proceeded to trial on February 18, 2025. On February 21, 2025, the jury returned the following verdicts: As to Count 1, the charge of first degree rape, the jury found Defendant guilty of the lesser included offense of molestation of a juvenile under the age of thirteen. With respect to Count 2, indecent behavior with a juvenile under the age of seventeen, the jury found Defendant guilty as charged.

On May 9, 2025, Defendant's motion for new trial, motion for post-verdict judgment/motion for acquittal, and motion for downward departure pursuant to State v. Dorthey 623 So.2d 1276 (La. 1993) were denied. Defendant waived all sentencing delays. After listening to victim impact statements, along with a statement from Defendant's mother and argument of counsel, Defendant was sentenced as follows:

Count 1: “As far as, pursuant to ․ [La. R.S.] 14:81.2, ․ the molestation of a juvenile, the Court is going to sentence Mr. Hobson to forty-years (40) in the Department of Corrections. Twenty-five of those years will be served without benefit.”

Count 2: “On the indecent behavior with a juvenile, the sentencing range for someone who is under the age of thirteen is as follows: It's a minimum of two to twenty-five (2 to 25). The Court's going to sentence Mr. Hobson to twenty-five years in the Department of Corrections at hard labor.”

Defendant timely appealed his convictions and sentences.

STATEMENT OF FACTS

At trial, the State presented the testimony of nine witnesses: the victim's uncle (“Uncle”); the victim's mother (“Mother”); the victim; Natalie Carter, the custodian of records for the Orleans Parish Communication District; New Orleans Police Department (“NOPD”) Detective Alan Seaton; NOPD Detective Kimberly Wilson; Sheneyce Tippen, a special education coordinator; Gabrielle Morgan Lee, an expert in the field of forensic interviewing; and Dr. Judith Dodd, a pediatric forensic nurse practitioner at Children's Hospital. The defense presented no witnesses.

Uncle testified that on August 12, 2019, he was living in his sister's home (the victim's mother), along with his niece (the victim), her siblings, and Defendant. On the night of the incident, after returning home from a quick trip to the store, Uncle observed that the living room was dark. He testified that the victim and Defendant were sitting together on the sofa, and the victim was lying on Defendant's shoulders. They were both looking at Defendant's phone. Uncle turned on the lights and saw that Defendant's genitals were exposed, and he was “watching porn” on his phone. When Uncle asked the victim what was going on, she responded Defendant “was trying to get her to suck his dick.” Uncle told the victim to get up, and he started punching Defendant. Thereafter, Uncle went to Defendant's closet, retrieved his belongings, and started throwing everything out of the house. Uncle stated that his sister arrived home shortly thereafter.

Mother testified that her daughter was twelve years old when the incident occurred. She was eighteen years old at the time of the trial. Mother stated that in August of 2019, Defendant was her fiancé. She was not at home at the time of the incident but learned what occurred via a phone call. Upon arriving home, she saw Defendant gathering his clothes from the ground and placing them in a garbage bag. After speaking with her brother, and learning the details of what he witnessed, she went into the house and grabbed a knife. She tried to go after Defendant but her brother took the knife out of her hand. Thereafter, she started hitting Defendant, and she called 911. Mother explained that Defendant had a cell phone under her plan. The cell phone was provided to police.

The victim testified as to the events of the night in question. She stated that Defendant waited until her uncle left to go to the store. At that time, Defendant came over to sit next to her on the sofa. He was watching porn on his phone. The victim explained, “that's when he touched me, and then that's when he was trying to get me to suck his thing. I told him no. And then that's when he pushed my head down, and my—his thing touched my mouth—touched my tongue.” She further testified that when she told Defendant she did not want to watch porn—he did not stop showing her. When she said she did not want to “suck his thing,” he did not stop—he pushed her head down.

The victim testified that when her uncle arrived home, “[h]e walked into [Defendant] pulling his pants up, and his thing was out, and then that's when my uncle asked what happened.” She told her uncle that Defendant “made me ․ [s]uck his thing.” The victim stated that her uncle made Defendant pack “his stuff,” and then they started “arguing and fighting.”

At that time, the victim went upstairs to tell her sister what happened, and they called their mother. Her mother called the police after she arrived home. The victim stated that her uncle put all of Defendant's belongings outside. While outside, her uncle and mother were punching Defendant. She stated that her sister and her mother both grabbed a knife and tried to stab Defendant. The victim further testified that a man in a red truck pulled up and began talking with her uncle. The man hit Defendant with his truck twice before driving away.

Natalie Carter (“Ms. Carter”) confirmed that she reviewed the three 911 calls related to the incident in question. The calls were introduced into evidence and were played for the jury.

The first call was a female stating that she witnessed an altercation where a man was being stabbed. Ms. Carter testified that in the second call, the victim's mother stated that she left her kids with her brother and her “ex-fiancé.” The mother reported that her brother walked in and saw Defendant exposing himself to her twelve-year-old daughter. In a third call, an individual named John reported that he came upon a scene where two men were outside fighting and one of them had been in a room with “his penis hanging out and there were children in the room.” John stated that he hit Defendant twice with his truck.

NOPD Detective Kimberely Wilson (“Det. Wilson”) was the lead detective in connection with this case. She testified that Defendant was at the scene when she arrived and was subsequently transported to police headquarters. Prior to interviewing Defendant, he was advised of his Miranda rights, and he signed a waiver form. Following an interview with Defendant, he was arrested.

NOPD Detective Alan Seaton (“Det. Seaton”) testified that he was assigned to the digital forensics unit which primarily extracted information from cell phones. Det. Seaton was qualified as an expert in digital forensics without objection. He performed an extraction of Defendant's cell phone, which revealed that at 8:29 p.m. on the night of the incident, Defendant's cell phone was accessing a pornography site. The accessing of pornography sites continued until 9:33 p.m., at which point, there was approximately a one-hour break in cell phone activity.

Sheneyce Tippen (“Ms. Tippen”) stated that prior to her current employment as a director of school accountability, she was a special education coordinator. The victim was one of her special education students. Ms. Tippen testified that after an evaluation was performed in September of 2020, the victim was placed in “resource” as the regular education classes were too advanced for her. She stated that the victim had a mild intellectual disability. Though the victim was in eighth grade at the time, her reading and math skills were at a kindergarten level.

Gabrielle Morgan Lee (“Ms. Lee”) was accepted without objection as an expert in the field of forensic interviewing. She testified that she performed a forensic interview of the victim at the Child Advocacy Center (“CAC”). A video recording of the interview was played for the jury and introduced into evidence.

 The Forensic Interview

Upon being questioned about why she was at the CAC, the victim responded that she was there to talk about the rape. She stated that her uncle had gone to the store and her mother's ex-boyfriend (Defendant) was watching porn. Defendant came to sit next to her on the sofa and started showing her porn. She told Defendant that she did not want to look at it.

Defendant told her that if she “sucked his thing,” he would buy her ice cream. When she said “no,” Defendant pushed her head down and his “private part” went in her mouth. Defendant lifted her shirt up to suck her “titties.” She told him to move, and she pushed his head away. The victim stated that Defendant pulled her pants down and started “licking my private part.” He also placed his penis in her “booty.” When she asked Defendant what he was doing, he said he was “humping” her. She stated that he placed his “dick” in her “private part.” The victim described how she repeatedly asked Defendant to stop trying to have sex with her.

The victim told Defendant that she would tell her mother but Defendant urged her not to. She was afraid her mother would be mad. The victim explained that what she described the night of the incident had happened more than once with the Defendant.

When her uncle arrived back at the house, he asked her what was going on. When she told him what occurred, her uncle got mad and he told Defendant to pack his things.

Dr. Judith Dodd (“Dr. Dodd”) was accepted without objection as an expert in the field of child abuse pediatrics. Dr. Dodd performed a medical evaluation of the victim on August 28, 2019. Following her examination, Dr. Dodd noted that the diagnostic tests for sexually transmitted diseases, including herpes, came back negative. There was no physical evidence of sexual trauma but based on the victim's account of what occurred, as related by the forensic interviewer, Dr. Dodd's diagnosis was “child sexual abuse.” Dr. Dodd recommended that the victim receive “trauma-informed counseling services.” She explained that most of the time when a child experiences sexual abuse, he or she does “not have any physical injuries or physical findings,” but the damage inflicted to his or her emotional well-being can last a lifetime.

ASSIGNMENTS OF ERROR

On appeal, Defendant raises the following assignments of error:

1. The trial court violated Apprendi by enhancing [Defendant's] Count 2 sentence beyond the offense the grand jury charged.

2. The Count 1 molestation conviction cannot stand because of an erroneous jury instruction, an unauthorized sentencing enhancement, and double jeopardy.

3. The trial court denied [Defendant] a defense by excluding his intellectual-functioning evidence while admitting evidence of [the victim].

4. The trial court denied defense counsel's mid-trial competency motion without examining the proffered jail call and contemporaneous notes.

5. The Count 1 sentence is unconstitutionally excessive without Dorthey review; the Count 2 sentence is illegally lenient as imposed.

ERRORS PATENT

Defendant raises one error patent in his fifth assignment of error. We reserve our discussion on the error patent for later in this opinion.

DISCUSSION

Assignment of Error No. 1:

Defendant asserts that the trial court erred by enhancing the Count 2 sentence beyond the offense the grand jury charged. We note that the State concedes this error on the part of the trial court.

As set forth in Apprendi, v. New Jersey, 530 U.S. 466, 475, 120 S.Ct. 2348, 2355, 147 L.Ed.2d 435 (2000) (quoting Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 1224, n. 6, 143 L.Ed.2d 311 (1999)),

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (Emphasis added).

As noted above, with respect to Count 2 of the bill of indictment, Defendant was charged with indecent behavior with a juvenile under the age of seventeen in violation of La. R.S. 14:81(A)(1). For such a conviction, a defendant “shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both․.” La. R.S. 14:81(H)(1). However, at sentencing, the trial court noted that Defendant was sentenced for indecent behavior with “someone who is under the age of thirteen ․” and proceeded to sentence him, in accordance with the provisions of La. R.S. 14:81(H)(2), to twenty-five years imprisonment.

In sum, because Defendant was charged in the bill of indictment with indecent behavior with a juvenile under the age of seventeen, and La. R.S. 14:81(H)(1) provides for imprisonment not to exceed seven years, the twenty-five-year sentence is illegal. Accordingly, we vacate the sentence as to Count 2 and remand for resentencing in accordance with La. R.S. 14:81(H)(1).

Assignment of Error No. 2:

Defendant claims that the Count 1 conviction for molestation of a juvenile cannot stand because of an erroneous jury instruction; an unauthorized sentencing enhancement; and double jeopardy.

Erroneous Jury Instruction

La. R.S. 14:81.2(A)(1) pertinently provides: “Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons․.” However, the trial court instructed that the offender, i.e., Defendant, had to be over the age of thirteen. Defendant argues that this error requires reversal. However, the record reflects that defense counsel made no objection to the above-described misstatement in the trial court's jury instructions.

La. C.Cr.P. art. 801(C) provides:

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

See also La. C.Cr.P. art. 841(A) (“[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence”).

In State v. Lincoln, 2017-0170, p. 38 (La. App. 4 Cir. 11/3/17), 231 So.3d 161, 182, this Court found that the defendant had not preserved his complaint regarding an alleged erroneous jury charge due to his failure to lodge a contemporaneous objection to the charge. The Court noted that its decision in this regard was supported by considerable Fourth Circuit precedent, providing:

This Court has ․ found that the failure to object to jury instructions precludes a defendant from raising the issue on appeal. See State v. Hollins, 2011-1435, p. 32 (La. App. 4 Cir. 8/29/13), 123 So.3d 840, 863 (declining to address a pro se assignment of error concerning a jury charge where no objections were made during the jury instructions); State v. Plaisance, 2000-1858, p. 38 (La. App. 4 Cir. 3/6/02), 811 So.2d 1172, 1198 (holding that a defendant was prohibited from arguing that the district court had erred in failing to instruct jury on penalties for both first and second degree murder where the record did not reflect a contemporaneous objection to this issue and the defendant did not represent that he lodged an objection); State v. Davis, 1997-1827, p. 3 (La. App. 4 Cir. 3/10/99), 732 So.2d 79, 81 (finding that the defendant's challenge to a jury instruction on burden of proof was precluded because defense counsel did not make a contemporaneous objection to the jury charge); see also State v. Dilosa, 2001-0024, p. 17 (La. App. 1 Cir. 5/9/03), 849 So.2d 657, 671 (stating that “[e]rroneous instructions or failure to give jury instructions are not errors patent, and absent an objection during the trial, a defendant may not complain on appeal of an allegedly erroneous jury charge or the failure to give a jury instruction”).

Lincoln, 2017-0170, pp. 37-38, 231 So.3d at 182.

Because Defendant did not object to the trial court's misstatement as to the required age of the offender (incorrectly stating the offender must be over the age of thirteen rather than seventeen) in connection with the charge as to what constitutes molestation of a juvenile, he has not preserved the issue for review.

Additionally, as the Lincoln Court stated, “harmless-error analysis applies to jury instruction errors.” Lincoln, 2017-0170, p. 38, 231 So.3d at 182 (citing State v. Wells, 2014-1701, p. 13 (La. 12/8/15), 209 So.3d 709, 717). As stated in State v. Magee, 2022-0635, pp. 9-10 (La. App. 4 Cir. 3/20/23), 382 So.3d 155, 163-164:

This Court has concluded that a jury may infer the age of a defendant when no direct evidence of the defendant's age is presented. See State v. Johnson, 2011-1213, p. 11 (La. App. 4 Cir. 2/7/13), 109 So.3d 994, 1001. Moreover, a defendant's age may be inferred based on their appearance in court and by the fact they are being tried as an adult. See State v. Lewis, 97-1549, p. 6 (La. App. 4 Cir. 2/3/99), 727 So.2d 1274, 1277.

In this case, the jurors could see that Defendant (who was thirty-one years old at the time of the incident) was over the requisite age of seventeen. The trial court's misstatement as to the requisite age of the offender was thus harmless.

Unauthorized Sentencing Enhancement – Improper Notice Provided in Indictment

As noted above, the indictment charged that on August 12, 2019, Defendant “committed first degree rape upon [the victim], date of birth 02/10/2007.” Defendant claims that because the indictment did not specify that the victim was under the age of thirteen, molestation of a juvenile was not a proper responsive verdict. We find no merit in this assertion.

Pursuant to La. C.C.P art. 814(A)(12), the responsive verdict for first degree rape of a child under the age of thirteen includes “molestation of a juvenile or a person with a physical or mental disability with a victim under the age of thirteen.” Defendant was put on notice that he was being charged with first degree rape of a victim under the age of thirteen when the date of birth of the victim and the date of the offense were set forth in the indictment. Thus, he was aware that one of the responsive verdicts to the first degree rape charge was molestation of a juvenile. Additionally, the record demonstrates that Defendant failed to contemporaneously object to any of the responsive verdicts, including molestation of a juvenile. Upon learning of the jury charges and knowing that molestation of a juvenile is included as a responsive verdict, Defendant had an opportunity to object to the charge based on the alleged deficiency of the indictment. Defendant failed to raise any objection. As such, he has failed to preserve the issue on appeal. See La. C.Cr.P. art. 841(A).

Double Jeopardy

Defendant claims that his convictions, both of which arose from a single episode on August 12, 2019, constitute a violation of his protection against double jeopardy.¹ However, as this Court reiterated in State v. Diaz, 2017-0324, p. 21 (La. App. 4 Cir. 9/6/17), 410 So.3d 188, 201, (“an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy.”).

In the present case, while the offenses were part of the same criminal episode, which occurred on August 12, 2019, they were distinct criminal acts. Defendant's indecent behavior with a juvenile conviction arose from the victim's attestation that Defendant came to where she was sitting on a living room sofa and, despite her protestation, showed her pornography.² Her testimony in this regard was corroborated by her uncle, who testified that he saw Defendant with the victim watching pornography. Defendant's molestation of a juvenile conviction arose from the victim's attestation that Defendant pushed her head down and his private part went in her mouth, leading to the charge of first degree rape and the jury's responsive verdict of molestation of a juvenile.

Defendant was convicted of two separate crimes based on distinct acts of criminal conduct, the use of pornography and physical sexual abuse. Accordingly, Defendant's double jeopardy rights were not violated.

Assignment of Error No. 3:

On February 19, 2025, the morning of trial, the State filed a motion in limine seeking to exclude all evidence regarding Defendant's alleged diminished mental capacity. In its motion, the State relied on La. C.Cr.P. art. 561, which provides that “[t]he defendant may withdraw a plea of ‘not guilty’ and enter a plea of ‘not guilty and not guilty by reason of insanity,’ within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.”

Defense counsel objected to the motion, asserting that if the State was allowed to introduce evidence of the victim's intellectual functioning, the defense should be permitted to introduce evidence relevant to Defendant's limitations. The trial court granted the State's motion in limine, noting Defendant's objection.

Defendant claims he was prejudiced by the trial court's exclusion of evidence regarding his alleged diminished capacity while allowing the State to introduce evidence of the victim's intellectual limitations. We find no merit in this assignment of error.

Defendant was arraigned in this matter on January 20, 2020. He entered a plea of not guilty to the charged offenses rather than a plea of not guilty and not guilty by reason of insanity. Trial commenced on February 18, 2025. Thus, pursuant to La. C.Cr.P. art. 561, the time to change his plea had expired.

Moreover, the law is clear that in a case such as this, where a defendant pleads not guilty, rather than not guilty and not guilty by reason of insanity, evidence of a defendant's mental defect or diminished capacity at the time of the offense is not admissible. In State v. Green, 2023-0253, p. 11 (La. App. 4 Cir. 7/28/23), 371 So.3d 503, 510, rev'd on other grounds, 2023-00918 (La. 10/31/23), 372 So.3d 799, this Court stated as follows:

La. C.Cr.P. art. 651 provides: “When a defendant is tried upon a plea of ‘not guilty’, evidence of insanity or mental defect at the time of the offense shall not be admissible.” In the seminal case of State v. Lecompte, 371 So.2d 239, 243 (La. 1978), the defendant, contrary to the provisions of Article 651, sought to introduce psychiatric testimony though he had not entered a plea of not guilty and not guilty by reason of insanity. Defendant wanted to introduce the psychiatric evidence to show that he did not have the requisite intent to commit the crime of attempted forcible rape. The Court found that evidence of a mental defect or mental disorder, absent a plea of not guilty and not guilty by reason of insanity, was not admissible. “A mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime.” Id. (citations omitted).

See also State v. Dearmas, 2022-0494, p. 11 (La. App. 1 Cir. 11/4/22), 356 So.3d 9, 17 (“Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime.”) (citations omitted).

Considering the above, we find no merit in Defendant's claim that the trial court erred in not allowing him to present evidence of his diminished capacity at the time of the offenses.

Assignment of Error No. 4:

Defendant claims that the trial court erred in not ordering a third competency hearing pursuant to defense counsel's request for an “emergency evaluation” after testimony concluded on February 21, 2025. The record demonstrates that two competency evaluations were previously performed, once by Drs. Rafael Salcedo and Richard Richoux and later by Drs. Sarah Deland and Janet Johnson. Following hearings on January 7, 2021 and May 8, 2024, Defendant was found competent to stand trial.

In support of its emergency request for a third competency evaluation, the defense proffered a disc with a jail house call between Defendant and his mother, along with Defendant's hand-written note. Defendant contends that the trial court, prior to denying defense counsel's request for an emergency competency evaluation, was obligated to examine that evidence.

As the Louisiana Supreme Court held in State v. Anderson, 2006-2987, pp. 20-21 (La. 9/9/08), 996 So.2d 973:

Louisiana's statutory scheme for detecting mental incapacity jealously guards a defendant's right to a fair trial. [State v.] Nomey, 613 So.2d [157] at 161 [(La.1993)] (quoting State v. Rogers, 419 So.2d 840, 843 (La.1982)). In Louisiana, “[m]ental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.” LSA-C.Cr.P. art. 641; see also Nomey, 613 So.2d at 161. Our law also imposes a legal presumption that a defendant is sane and competent to proceed. LSA-R.S. 15:432; State v. Bridgewater, 00-1529, p. 6 (La. 1/15/02), 823 So.2d 877, 888; [State v.] Martin, [00-0489,] at p. 1 [(9/22/00)], 769 So.2d [1168] at 1169; State v. Armstrong, 94-2950, p. 4 (La. 4/8/96), 671 So.2d 307, 309; State v. Silman, 95-0154, p. 7 (La. 11/27/95), 663 So.2d 27, 32. Accordingly, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Frank, 96-1136, p. 1 (La. 10/4/96), 679 So.2d 1365, 1366 (citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996)); Armstrong at p. 4, 671 So.2d at 309; [State v.] Silman, [95-0154] at p. 7 [(La.11/27/95)] 663 So.2d [27] at 32. A reviewing court owes the trial court's determinations as to the defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Bridgewater at 6, 823 So.2d at 888; Martin at p. 1, 769 So.2d at 1169. Specifically, the appointment of a sanity commission is not a perfunctory matter, a ministerial duty of the trial court, or a matter of right. Martin at p. 1, 769 So.2d at 1169; State v. Nix, 327 So.2d 301, 323 (La. 1975). It is not guaranteed to every defendant in every case, but is one of those matters committed to the sound discretion of the court. Martin at p. 1, 769 So.2d at 1169; [State v. ]Wilkerson, 403 So.2d [652,] 658 [(La. 1981)]; Nix, 327 So.2d at 323. The Louisiana Code of Criminal Procedure provides that a court shall order a mental examination of a defendant and accordingly appoint a sanity commission when it “has reasonable ground to doubt the defendant's mental capacity to proceed.” LSA-C.Cr.P. art. 643. Reasonable ground in this context refers to information which, objectively considered, should reasonably raise a doubt about the defendant's competency and alert the court to the possibility that the defendant can neither understand the proceedings, appreciate the proceedings’ significance, nor rationally aid his attorney in his defense. State v. Snyder, 98-1078, p. 24 (La. 4/14/99), 750 So.2d 832, 851 (quoting Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980)).

In an effort to satisfy its burden of proving a third emergency competency evaluation was warranted, the defense offered the following:

Judge, at this time, throughout the trial, we would like the record to reflect that as an officer of the court, we've been sitting next to Mr. Hobson, and he has been talking to himself the entire time throughout the trial. In addition to that, we have been having to instruct Mr. Hobson repeatedly to stand up for trial, even though it's announced before the jury has to come up.

Additionally, Judge, while State's 17 [Defendant's interview with Det. Wilson] was playing, Mr. Hobson indicated to myself on two separate occasions that it wasn't him, and in addition to that, that doesn't even sound like him․.

In addition to that, Judge, we will tender two jail calls that I haven't even listened to, but I talked to Mr. Hobson's mother about the conversation whereby he indicated that the defense counsel told him to essentially admit to the crime that he's charged with.

So, Judge, with all of that—like all of that together, we would ask for an emergency evaluation of Mr. Hobson․.

In response to the above, the trial court noted that Drs. Deland and Johnson performed a competency evaluation upon Defendant, issuing their report on February 8, 2024. The trial court reviewed its findings as follows:

Dr. Johnson and Dr. Deland both indicated that Mr. Hobson denied ever receiving any mental health treatment. He's never had any suicide attempts. So, he has no history of any mental illness in his family as well.

Further, if you go further on down the report, [he had no] symptoms of any active mental disorder. He was cooperative with the doctors. He was able to answer all of the questions related to the Bennett 3 criteria in a satisfactory manner. He had no difficulty engaging with them. And there was an effective back-and-forth communication. At that time, it was their opinion that with a reasonable medical certainty that he had a factual and rational understanding of the proceedings and that he could assist his attorney and that he be found competent.

Thereafter, the trial court shared its observations of Defendant throughout the trial, stating: “[Defendant] has been very engaged. I've been monitoring him throughout the process. He's been listening. He's been paying attention. He's been taking notes.” The trial court then concluded:

So, at this point in time, the Court does not see any need. He has no history of any mental illness in his family. He has no history of ․ at the time that this examination was done, there was no history of any sort of mental defect or disease. So, at this time, I'm denying your request. I will note your objection for the record.

Our review of the proffered evidence (the jail house call and Defendant's handwritten note) demonstrates that a third competency hearing was not warranted. In the jail house call between Defendant and his mother, Defendant stated that his counsel wanted him to testify and admit he was watching pornography with the victim. His mother strongly advised him not to do that, saying that Defendant should tell counsel that she strongly disagreed with that strategy. Defendant did not testify. The second proffer, Defendant's handwritten note, only reflects that Defendant was attempting to aid counsel by advising of the alleged deficiencies and lies in the victim's testimony. The proffered evidence actually demonstrates that Defendant was able to assist counsel in his defense, by questioning the testimony of the victim and her family members.

Based upon the above, Defendant did not present reasonable grounds to doubt he had the mental capacity to proceed as required under La. C.Cr.P. art. 643. Accordingly, the trial court did not err in denying what appears to be a last-minute attempt to avoid having his case presented to the jury for deliberations.

Assignment of Error No. 5:

Defendant maintains that his sentence with respect to Count 2, indecent behavior with a juvenile, failed to specify that at least two years of the sentence be served without benefit of parole, probation, or suspension of sentence. He argues that this omission renders the sentence illegally lenient and reviewable as an error patent pursuant to La. C.Cr.P. art. 920.

We recognize that Defendant asserts a valid point of law. However, as discussed above in connection with Defendant's first assignment of error, the twenty-five-year sentence imposed in connection with Count 2 is illegal and the matter is remanded for resentencing. The instant claim is moot.

Regarding the forty-year sentence rendered in connection with Count 1, the molestation of a juvenile conviction, Defendant asserts that the trial court erred in denying his downward departure motion ⁴ that was raised prior to sentencing. He contends that the trial court erred by denying the motion without performing an analysis required by La. Const. art. I, § 20, which prohibits sentences that are excessive in application even within statutory limits. We recognize that the Eighth Amendment of the United States Constitution and Article I, § 20 of the Louisiana Constitution, prohibit the imposition of cruel, excessive, or unusual punishment. However, as the State correctly notes, there is no constitutional analysis that a trial court must perform in order to deny a motion for downward departure. There is, however, a standard analysis which a trial court should employ at sentencing, along with a standard to be employed by a reviewing court when analyzing whether an imposed sentence is excessive. As thoroughly explained by this Court in State v. Curley, 2023-0498, pp. 17-18 (La. App. 4 Cir. 3/18/24), 401 So.3d 23, 36-37:

Under both the Eighth Amendment of the United States Constitution and Article I, § 20 of the Louisiana Constitution, the imposition of excessive and cruel punishments are prohibited. State v. Wilson, 2014-1267, p. 23 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150, 1165. “The excessiveness of a sentence is a question of law, and a reviewing court will not set aside a sentence [for excessiveness] absent a manifest abuse of discretion by the trial [judge].” State v. Alridge, 2017-0231, p. 39 (La. App. 4 Cir. 5/23/18), 249 So.3d 260, 288.

Although a sentence is within the statutory limits, the sentence may still violate a defendant's constitutional right against excessive punishment. State v. Every, 2009-0721, p. 7 (La. App. 4 Cir. 3/24/10), 35 So.3d 410, 417. “However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society.” State v. Cassimere, 2009-1075, p. 5 (La. App. 4 Cir. 3/17/10), 34 So.3d 954, 958. “A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime.” State v. Ambeau, 2008-1191, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 215, 221. 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. Vargas-Alcerreca, 2012-1070, p. 25 (La. App. 4 Cir. 10/2/13), 126 So.3d 569, 583 (quoting State v. Galindo, 2006-1090, pp. 15-16 (La. App. 4 Cir. 10/3/07), 968 So.2d 1102, 1113).

A trial court “is afforded broad discretion in making sentencing decisions and an appellate court will not set aside an imposed sentence if the record supports the sentence imposed.” State v. Bradley, 2018-0734, p. 8 (La. App. 4 Cir. 5/15/19), 272 So.3d 94, 99-100. Thus, “[t]he relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” State v. Mathieu, 2018-964, p. 4 (La. App. 3 Cir. 11/6/19), 283 So.3d 1041, 1045.

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La. C.Cr.P. art. 894.1 and whether the sentence is warranted under the facts established by the record. State v. Wiltz, 2008-1441, p. 10 (La. App. 4 Cir. 12/16/09), 28 So.3d 554, 561. However, even where there has not been full compliance with La. C.Cr.P. art. 894.1, resentencing is unnecessary where the record shows an adequate factual basis for the sentence imposed. State v. Stukes, 2008-1217, p. 25 (La. App. 4 Cir. 9/9/09), 19 So. 3d 1233, 1250 (quoting State v. Major, 96-1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So. 2d 813, 819). Further, La. C.Cr.P. art. 881.4(D) expressly states that an “appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed.”

In the case sub judice, the trial court, after listening to victim impact statements, a statement from Defendant's mother, and the arguments of counsel, provided as follows:

The Court has considered the sentencing guidelines pursuant to Code of Criminal Procedure, Article 894.1, and finds that the following provisions apply: That the Defendant is in need of correctional treatment in a custodial environment; that any lesser sentence that I [would] impose [would] deprecate the seriousness of the Defendant's crimes.

The Court has also considered the following: The fact that Mr. Hobson knew, or should have known that the victim of this offense was particularly vulnerable considering the fact that, not only was she a young lady that was younger than the age of thirteen, but she also suffered from some mental disability, as well as learning disabilities.

The Court also finds that Mr. Hobson used his position as a step-father role in her life to facilitate these crimes․.

After a thorough review of the record, we find no abuse of discretion on the part of the trial court in sentencing Defendant to forty years imprisonment on the charge of molestation of a juvenile under the age of thirteen, which was less than half of the maximum ninety-nine-year sentence set forth under La. R.S. 14:81.2(D)(1). This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Defendant's conviction and sentence imposed in connection with Count 1, molestation of a juvenile under the age of thirteen, is affirmed. Defendant's conviction on Count 2, indecent behavior with a juvenile, is affirmed. The twenty-five-year sentence imposed in connection with Count 2 is vacated, and the matter is remanded to the trial court for resentencing on that charge in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT TWO VACATED AND REMANDED FOR RESENTENCING

FOOTNOTES

1.   The Double Jeopardy Clause of the Fifth Amendment and La. Const. art. I, Section 15 forbid multiple punishments for the same offense.

2.   La. R.S. 14:81(A)(2) pertinently provides:A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:(2) The transmission ․ of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender.

3.   Regarding Bennett, the Supreme Court explained as follows in State v. Holmes, 2006-2988, p. 13 (La. 12/2/08), 5 So.3d 42, 55:In State v. Bennett, 345 So.2d 1129, 1138 (La.1977), this Court held that the appropriate considerations for determining whether the accused is fully aware of the nature of the proceedings include:whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction.Additionally, in determining an accused's ability to assist in his defense consideration should include:whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.Bennett, 345 So.2d at 1138 (citations omitted).

4.   In Dorthey, 623 So.2d at 1280, the Louisiana Supreme Court held that a trial court may grant a downward departure from a mandatory sentence in the context of the habitual offender laws if the mandatory sentence constitutes excessive punishment.

Judge Karen K. Herman

LOBRANO, J., CONCURS IN THE RESULT