STATE OF LOUISIANA v. KEVIN VICKNAIR (2026)

This is a consolidated appeal. Defendant, Kevin E. Vicknair (“Defendant”), appeals his conviction for second degree rape. The State appeals the sentence Defendant received for second degree rape. For the following reasons, we affirm the conviction, vacate the sentence, and remand the matter for resentencing.

PROCEDURAL BACKGROUND

On March 10, 2023, Defendant was charged by bill of information with the August 7, 2016 second-degree rape of his wife, R.V.,¹ in violation of La. R.S. 14:42.1. Defendant pled not guilty on April 3, 2023.

On February 20, 2024, Defendant elected to proceed to trial by judge and after a one-day trial, he was found guilty as charged.

On April 4, 2024, Defendant filed a motion for post-verdict judgment of acquittal; motion for new trial; and motion for downward departure from the mandatory minimum sentence established by La. R.S. 14:42.1.

On April 8, 2024, Defendant filed a motion for appeal and a motion to reconsider sentence.² The motions for new trial and post-verdict judgment of acquittal were denied. After a sentencing hearing, the trial court took the matter under advisement.

On April 15, 2024, the trial court granted Defendant's motion for downward departure from the mandatory minimum sentence ³ and sentenced Defendant to seven years at hard labor, suspended, three years active probation. As a special condition, the trial court ordered that Defendant register as a lifetime sex offender.

Both Defendant and the State filed appeals.⁴ The appeals were consolidated on February 28, 2025.

FACTS

At the trial of Defendant, the State called: the police officer who investigated the rape of R.V., Detective Jounay Ross (“Detective Ross”), the eldest son of R.V. and Defendant, Sharif Muhammed (“Muhammed”), and the victim, R.V.

The defense called Defendant's son, Kevin Vicknair, II (“Vicknair II”), and Defendant to the stand.

Detective Ross of the NOPD Sex Crimes Unit, testified that she spoke with R.V. at the Family Justice Center in December of 2021, wherein R.V. reported a rape that had occurred on August 7, 2016. During her investigation, Detective Ross obtained a video from R.V. of the incident. She also spoke to Defendant and the three adult sons of R.V. Detective Ross stated that at the conclusion of her investigation, she prepared an arrest warrant for Defendant. Detective Ross stated it is very common to receive delayed reports of rape. The arrest warrant was introduced into evidence for record purposes only.

On cross-examination, Detective Ross admitted that the device that had recorded the video of the rape was never located. She further testified that the video footage did not contain any audio. Detective Ross stated that she was not aware whether the video had been altered.

Detective Ross testified that she learned the camera that recorded the video footage had been set up on the day before the alleged assault, August 6, 2016. She admitted that there were no 911 calls, reports, medical records, or photographs documenting the August 7, 2016 assault. There was also no documented history of domestic violence reports between Defendant and R.V.

Sharif Muhammad testified that he had not had a relationship with his father for the past ten or eleven years. He described his father's treatment of his mother growing up as “harassing, very overbearing” said that “ it wasn't to[o] pleasant to be around.” Muhammad testified that he was approximately five years old the first time he witnessed his father's abuse of his mother. At that time, he saw Defendant hit his mother in the face causing her nose to bleed. Aside from that incident, Muhammad could not recall another specific instance of physical abuse against his mother. However, Muhammed said physical abuse was not uncommon.

Muhammad testified that sexual harassment “was constant.” He explained that there was “[a] lot of unwanted touching.” He testified:

I distinctly remember, like I say constantly, my dad would touching [sic] my mama, groping her no matter how many times she say stop, leave me alone, don't touch me, and things of that nature. It didn't matter in those moment what she wanted or didn't want. He just did as he pleased.”

He estimated that he was an adolescent when he observed the unwanted touching. Muhammad testified that he avoided spending time at home due to the abuse he witnessed.

On cross examination, Muhammad conceded that he never witnessed his father rape his mother. He could not recall ever being notified in 2016 by his mother or anyone else that she had been the victim of a rape. Muhammad testified that he talked to his mother often and talked to her in days and weeks leading up to trial. He admitted that during trial, he stayed with R.V. He also stated he had flown in from California for the trial and that the State paid for his plane ticket.

R.V. testified that she was formerly married to Defendant and the two share three grown children. She described Defendant, throughout their forty-year marriage, as “very controlling, manipulative, and just basically evil.”

R.V. testified that the abusive behavior began soon after they got married. She stated that Defendant “forced himself on [her]. It [sic] was no reason to” and “[t]hat's when I conceived our first son.” R.V. noted that Defendant continued to rape her while she was pregnant. She explained, however, that Defendant was “very attentive” and “nice in front of people” in public, but in private he behaved differently.

R.V. testified that she had previously left Defendant when she was pregnant with her first child. She stayed with her parents for about a year. Defendant initially demanded that she return to her home. He kept “coming around” and eventually after she had given birth to their son, he convinced her that he had “changed” and she returned. R.V. stated that she went back to Defendant because she loved him.

R.V. testified to previous instances of rape she suffered in 2016 at the hands of Defendant. She stated that three weeks prior to the August 7, 2016 rape, Defendant asked R.V. to lie down with him in his bedroom.⁵ R.V. laid in Defendant's bed and fell asleep. She said that while she was sleeping, Defendant jumped on top of her, “put his hand over [her] mouth and ․ nose,” and raped her.

R.V. testified that she had told Defendant she was going to call the police. Defendant said that no one would believe her if she reported the rape. R.V. then purchased a video camera to record Defendant's abuse. She had it mailed to her parents’ house, picked it up, and set it up in her bedroom. The camera looked like a notebook and “from looking at it ․ you wouldn't know it was a camera.”

R.V. stated later she set up the camera. She was in her room when Defendant entered. R.V. testified that Defendant asked R.V. if they could have sex and R.V. said no. Defendant left, but returned shortly thereafter. She said he pulled off her pants and removed his own clothes. R.V. said she told him to stop, but he did not. She stated that Defendant held her down, pulled her off the bed, and raped her. The transcript, provides in pertinent part:

So I went into my room and he continued to like, walk back and forth pass my room. And then at one point he comes in and ask if we can only — if we can have sex and I told him no. So he asked me why and this whole thing.

So he leaves out [sic]. He left out initially, then he came back in, and I told him no and then he holds me down and he pulled my pants off, and then he goes — once he pulls my pants off he moves to the side and he takes his clothes off, and I'm asking him to stop, to not -- just not do this. I'm like, Kevin, don't do this. But he doesn't care. He's saying he's horny. And so he comes back and he holds me down and I'm trying to get him off me and I'm telling him, you're hurting me. And just this, I'm horny.

And so then he's hurting — he's hurting me, forcing himself into me, he's hurting. And then he pulls me, like pulls me off the bed to try to drag me to his room, but we end up on the floor and he rapes me. He continues. He didn't care. He didn't care.

R.V. further testified that Defendant had overpowered her and raped her vaginally.

R.V. identified the videos of the incident, which captured a portion of the incident. The videos were introduced into evidence. Neither of the video clips contain audio.

In this first video, R.V. is seated on a bed alone and appeared to be speaking to herself or someone out of range of the camera. She shook her head “no” and shortly afterwards, Defendant entered the room. Defendant pushed R.V. onto her back and climbed on top of her. R.V. resisted by kicking a leg in the air. They both engaged in a physical struggle and Defendant attempted to unbutton R.V.’s pants. R.V. tried to prevent him from unbuttoning her pants by again kicking her feet in the air. The video ends with Defendant pulling off R.V.’s pants and exiting the camera's view. A few times in the video R.V. appears to be saying “no” and “stop.”

The second video resumes with R.V. standing in the bedroom. She seems to be speaking to someone out of view and appears to be saying “stop” and to “get out.” Defendant returned to the bedroom naked. He climbed on top of R.V., pinned her arms down, and began to thrust. R.V. continued to struggle and resist Defendant's efforts. Defendant then pulled her up, grabbed her arms while standing behind her, and dragged her out of view of the camera.

R. V. testified that she waited to report the rape because she loved Defendant and did not want to hurt him. She just wanted him to stop. R.V. admitted that during the course of her marriage she did have consensual sexual relations with her husband.

On cross-examination, R.V. admitted that the first time she reported the August 7, 2016 rape was on December 17, 2021. She did not call 911 and did not report the rape to police authorities in 2016. R.V. did not get a physical examination or document any injuries as a result of the August 2016 incident.

R.V. testified that she sought the advice of a divorce attorney on August 4, 2016. The attorney drafted and filed a divorce petition on her behalf on August 5, 2016. The 2016 divorce petition was introduced into evidence. She never informed her attorney during the pendency of divorce proceedings that she was the victim of a rape or of any domestic violence.⁶

R.V. stated that she set the video camera up a few days after filing for 2016 divorce. She testified that after the assault was recorded on August 7, 2016, R.V. removed the recording device from the house and it was picked up with the trash.

R.V. testified that she engaged in consensual sex with Defendant after the August 7, 2016 incident. A text message she sent to the defendant in October of 2016 was introduced at trial. In the text message, R.V. stated, “Sex tonight, please.”

R.V. testified that in November of 2021, before she reported the sexual assault to law enforcement, she and Defendant had an argument concerning finances. She stated that Defendant had asked R.V. to sign paperwork allowing

him to take a lump sum distribution from his pension and R.V. declined to sign the documents. Thereafter, she again filed for divorce in 2021. R.V. stated that in December 2021, she filed for a temporary restraining order and reported the August 7, 2016 incident to law enforcement.⁷

Kevin Vicknair II (“Kevin II”), another son of R.V. and Defendant, testified that he did not witness Defendant use any physical or sexual violence against his mother. He stated that in 2020 or 2021, R.V. advised him that she was sexually assaulted by Defendant. Kevin II said she also told him about a suspected infidelity. He stated that he would not consider Defendant to be controlling over R.V. Kevin II testified that any physical touching or affection that occurred between Defendant and R.V. appeared consensual.

On cross-examination, Kevin II admitted he was not living with his parents in 2016, when the incident at issue occurred. He conceded that he and his brothers may have had difference experiences even though they grew up in the same household.

Defendant testified the he and R.V. were married for approximately 42 years. He denied hitting R.V. or forcing R.V. to have sex. He was unaware that a camera had been set up but stated that the recorded sexual encounter of August 7, 2016 was consensual. Defendant stated that evening R.V. had grabbed his penis and gave him “the look that she normally would when [they] were going to have sex.” She then proceeded to the bedroom, leaving the door open. He testified that his behavior in the video was part of “role play” where R.V. would pretend to resist. Defendant said they would often engage in this dynamic. He stated the

video does not depict him having intercourse with R.V. and that he picked her up and carried her to the primary bedroom to have sex.

Defendant testified some point after August 2016 he discovered that R.V. had filed for divorce but they had reconciled and did not go forward with the proceedings. He stated that prior to R.V. initiating the 2021 divorce proceedings he wanted her to sign paperwork related to his retirement account so he could receive a lump sum. R.V. refused. Defendant stated that they continued to live together until he was served with a temporary restraining order on December 10, 2021. Defendant testified he was served with a restraining order a few days after he and R.V. had an argument about infidelity on his part.

On cross examination, Defendant said he and R.V. did not have a “safe word” to stop the role play. He conceded that on the night of the incident R.V. fought and struggled when he took her pants off and carried her out of the room. However, Defendant maintained that the encounter was consensual.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, this Court reviews all appeals for errors patent. State v. McDonough, 2022-0628, p. 19 (La. App. 4 Cir. 10/27/23), 376 So.3d 1003, 1018. “An error patent is one ‘that is discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.’ ” Id. (quoting La. C.Cr.P. art 920(2)). A review of the record has revealed an error patent with regard to sentencing. The illegally lenient sentence will be addressed below in the State's appeal.

DISCUSSION

Defendant's Appeal

Defendant asserts three assignments of error related to the sufficiency of evidence. Defendant argues that the verdict of second degree rape is contrary to the law and evidence and that no rational trier of fact could have found him guilty beyond a reasonable doubt. As such, Defendant contends that the verdict should be reversed and that his motion for judgment notwithstanding the verdict and motion for new trial should have been granted.

Second-degree rape is “rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ․ [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonable believes that such resistance would not prevent the rape.” La. R.S. 14:42.1(A)(1).

Generally, when assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, a rational fact finder could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Gibson, 2015-0682, p. 12 (La. App. 4 Cir. 1/27/16), 186 So.3d 772, 780 (citing State v. Mussall, 523 So.2d 1305, 1310 (La. 1988)).

It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Barbain, 2015-0404, p. 8 (La. App. 4 Cir. 11/4/15), 179 So.3d 770, 777 (citing State v. Rosiere, 488 So.2d 965, 968 (La. 1986)), see also Gibson, 2015-0682, p. 13, 186 So.3d at 780 (“[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence[,]” quoting State v. Smith, 600

So.2d 1319, 1324 (La. 1992)). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State v. Rainey, 2015-0892, p. 9 (La. App. 4 Cir. 1/27/16), 189 So.3d 439, 444. Conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Id.

In State in the Interest of E.S., 2018-01773, p. 14 (La. 10/22/19), 285 So.3d 1046, 1057 (La. 2019), the Louisiana Supreme Court, citing to its earlier decision in State v. Rives, 407 So.2d 1195, 1197 (La. 1981), reaffirmed the principle that “[t]estimony of a sexual assault victim alone is sufficient to support a rape conviction,” even if the State does not introduce medical, scientific, or physical evidence.

This Court has issued several decisions applying this principle. In State v. Winston, 2011-1342, p. 8 (La. App. 4 Cir. 9/12/12), 100 So.3d 332, 337, this Court found the victim's testimony alone was more than sufficient to support the defendant's forcible rape conviction “even though there was no physical evidence to corroborate victim's testimony.”

Most recently, in State v. Green, 2024-0415, p. 7 (La. App. 4 Cir. 10/08/25), 424 So.3d 225, 231-32, this Court affirmed a first degree rape conviction finding the victim's testimony sufficient to prove rape had occurred although the victim's medical records revealed no physical injuries and a sexual assault examination tested negative for seminal fluid and sperm.

In his brief, Defendant contends that trial court failed to fully consider the “bizarre facts” of the case and the calculated nature of R.V.’s rape accusation. Defendant notes R.V. reported the rape to law enforcement over five years after its alleged perpetration; engaged in consensual sexual relations for years after the rape

at issue occurred, at times at her own initiation; and failed to tell her divorce attorney, friends, or children, about the rape. Defendant also emphasizes the seemingly retaliatory timing of R.V.’s reporting of the rape -- after the Defendant asked her to sign documents authorizing him to take a lump sum distribution from his pension. Defendant claims that given the circumstances surrounding R.V.’s allegations, a reasonable fact finder would not have found Defendant guilty of a rape.

However, we find sufficient evidence to support Defendant's conviction for second degree rape. R.V. testified Defendant held her down and vaginally raped her while she struggled against him and told him to stop. The video corroborates Defendant's physical control over R.V. and attempts to forcibly initiate sex. The first video of the incident shows Defendant overpower R.V. and unbutton and remove her pants. The second video depicts Defendant naked climbing on top of R.V. and begin thrusting. Defendant then restrains R.V. and carries her out of view. In both videos, R.V. struggles against Defendant and appears to be telling Defendant “no” and “stop.” A rational trier of fact could conclude that Defendant engaged in sexual intercourse without R.V.’s lawful consent because R.V. was prevented from resisting by acts of force.

Although Defendant denied raping R.V. and testified that the incident was a part of a consensual role play scenario, Defendant admitted that they did not have a safe word to terminate the scenes and R.V. testified that Defendant frequently forced her to have sex throughout their marriage. The trial judge evidently chose to believe R.V.’s testimony over Defendant's. Moreover, while R.V. conceded that she had consensual sexual encounters subsequent to the rape, that does not negate the absence of consent of the incident at hand. Also, Detective Ross

explained that it is common for victims of rape to delay reporting. Moreover, as noted above, credibility determinations, as well as the weight to be attributed to the evidence is within the province of the trier of fact. Rainey, 2015-0892, p. 9, 189 So.3d at 444. Additionally, the victim's testimony alone in a sexual assault case is sufficient to support a defendant's conviction. See Winston, 2011-1342, p. 11, 100 So.3d at 338. Viewing the evidence in the light most favorable to the prosecution, it was reasonable for the trial judge to find that the State proved the elements of second degree rape beyond a reasonable doubt. Accordingly, we find the trial court did not err in rendering a guilty verdict against Defendant.

Likewise, we find that the trial court did not err in denying the motion for post verdict judgment of acquittal. La. Cr.C.P. art. 821(B) provides that a “post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.” This is the Jackson standard of review for reviewing the sufficiency of evidence. See State v. Dorsey, 2010-0216, p. 42 (La. 9/7/11), 74 So.3d 603, 633. Because the evidence supports Defendant's conviction for second degree rape, the trial court did not err in declining to grant the post verdict judgment of acquittal.

With regard to a motion for new trial, La. C.Cr.P. art. 851 provides in pertinent part:

A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.

B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:

(1) The verdict is contrary to the law and the evidence.

14

(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error.

․ (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

At trial Defendant alleged a new trial was warranted on the grounds that the verdict is contrary to the law and the evidence, the trial court's rulings show prejudicial error, and that the ends of justice would be served. In its brief, however, Defendant solely argues that the verdict was contrary to the law and the evidence.

This Court in State v. Riley, 2023-0040, p. 20, (La. App. 4 Cir. 8/31/23), 372 So.3d 77, 90, summarized the law applicable to motions for new trial as follows:

Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.” La. C.Cr.P. art. 858. “[T]he trial judge has much discretion in ruling on a motion for a new trial and, upon review, an appellate court may only set aside the judgment upon a finding that the trial judge exercised his discretion in an arbitrary manner.” State v. Williams, [20]17-0544, p. 29 (La. App. 4 Cir. 3/14/18), 240 So.3d 355, 371 (quoting State v. Chambers, [20]16-0712, p. 12 (La. App. 4 Cir. 2/15/17), 212 So.3d 643, 650). Thus, legal determinations such as the denial of a motion for new trial, are reviewed under an abuse of discretion standard. State v. Guillory, [20]10-1231, p. 4 (La. 10/8/10), 45 So.3d 612, 615. “A defendant bears the burden of proof when seeking a new trial as a result of his conviction, previously obtained by the prosecution.” State v. Armstead, [20]14-0036, p. 25 (La. App. 4 Cir. 1/28/15), 159 So.3d 502, 519. “When the allegations of a motion for new trial are not supported by proof, a [district] judge properly overrules the motion.” State v. McKinnies, [20]13-1412, p. 11 (La. 10/15/14), 171 So.3d 861, 870 (citing State v. Bueche, 243 La. 160, 186, 142 So.2d 381, 390 (La. 1962); State v. Slack, 227 La. 598, 602, 80 So.2d 89, 90 (La. 1955); State v. Roberson, 159 La. 562, 568, 105 So. 621, 623 (La. 1925)). “Allegations raised in the motion alone are not sufficient, as a defendant has the burden to show that an injustice has been done to him.” Id. (citing La. C.Cr.P. art. 851).

Here, again because a rational fact finder could determine based on the evidence that Defendant forced R.V. to engage in sexual intercourse without her consent, Defendant cannot show the trial court abused its discretion in denying the motion for new trial.

These assignments of error lack merit.

The State's Appeal

The State raises two assignments of error related to the sentencing of Defendant. The State contends that the trial court imposed an illegally lenient sentence ⁸ and that the trial court abused its discretion when it granted Defendant's motion for downward departure.⁹ We agree.

Illegal Sentence

At the time the rape was committed in 2016, La. R.S. 14:42.1(B) provided that “[w]hoever commits the crime of second-degree rape shall be imprisoned at hard labor for not less than five nor more than forty years.” It further provides that “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.”¹⁰ Id.

La. C.Cr.P. art. 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” This Court noted that when a trial court “fails to restrict the defendant's benefits in accordance with the statute or code article serving as the basis for the defendant's conviction, then this constitutes an illegally lenient sentence.” State v.

Budd, 2023-0594, p. 21 (La. App. 4 Cir. 7/26/24), 398 So.3d 670, 683 (citing State v. Hawkins, 2011-0193, p. 4 (La. App. 4 Cir. 11/16/11), 78 So.3d 293, 296). Here, Defendant was sentenced to seven years imprisonment, seven years suspended, with three years of active probation. The sentence is illegally lenient because the entire term was suspended.

Downward Departure

The State contends that the trial court erred in granting Defendant's motion for a downward departure from the statutory minimum sentence because Defendant is not the exceptional offender contemplated by State v. Dorthey, 623 So.2d 1276 (La. 1993).

The Louisiana Supreme Court in Dorthey, held that a trial court may grant a downward departure from a mandatory minimum sentence in the context of the habitual offender laws if the mandatory sentence constitutes excessive punishment for a particular defendant. 623 So.2d at 1281.

Following Dorthey, the Louisiana Supreme Court held that such discretion to depart from a mandatory minimum sentence is not limited to sentences derived from the imposition of the habitual offender statute. See State v. Fobbs, 99-1024, p. 1 (La. 9/24/99), 744 So.2d 1274, 1275 (per curiam) (noting that “[o]ur observation in State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993), that ‘the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch’ does not, nor did we intend it to, restrict the sentence review principles espoused in that decision solely to the mandatory minimum penalties provided by La. R.S. 15:529.1.”).

In State v. Green, 2017-0520, p. 3 (La. App. 4 Cir. 11/15/17), 231 So.3d 756, 758, this Court addressed the burden of establishing the mandatory minimum sentence is excessive and subject to downward departure. Green stated in part:

The Louisiana Constitution guarantees that “[n]o law shall subject any person to ․ cruel, excessive or unusual punishment.” That protection allows the judicial branch to determine whether the range of sentences authorized by a criminal statute is excessive for a particular defendant. The court must start with the presumption that a mandatory minimum sentence is constitutional. In order to rebut that presumption, a defendant must clearly and convincingly prove that he is exceptional. This Court has articulated that exceptional “means that because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”

If the mandatory minimum sentence is constitutionally excessive then a downward departure is required under Dorthey. “A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” 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. (footnotes omitted).

As noted above, after Defendant's conviction, he filed a motion for a downward departure from the mandatory minimum sentence. In the motion, the Defendant asserted that over forty letters supporting leniency in his sentencing had been submitted to the trial court. The motion also cited to an evaluation conducted by Alicia Pellegrin, Ph.D. (“Dr. Pellegrin”), a forensic psychologist who examined Defendant and determined that he “does not pose a likely danger to the community.” This motion was addressed at the sentencing hearing.

Sentencing Hearing

At the sentencing hearing, the State called Wayne Shanks, R.V.’s younger brother, and R.V. to the stand. The trial court also heard from several witnesses who testified on behalf of Defendant, including, David A. Durand, Sr., Daniel Raphael, and Jamon Barrow, who knew Defendant over several years. The defense also called Ryan Vicknair, Defendant's youngest son; Lindsay Vicknair, Defendant's daughter in law and Kevin II's wife; Kevin II, and Dr. Pellegrin.

Wayne Shanks (“Shanks”) testified about the effect that the case had on his family and to the pain and suffering Defendant caused his sister. Shanks described Defendant as a “controlling, manipulative, abusive, self-serving, dishonest, predator.” With regard to his controlling behavior, Shanks stated Defendant would not let R.V. make her own decisions. Shanks noted on one occasion R.V. sought help to repair the fence at their home without Defendant's input. The ground work had begun and the fence posts were installed while Defendant was not home. When Defendant returned, he was “furious” and ripped the posts out of the ground. Shanks stated he witnessed Defendant verbally abuse R.V. and her sons over the years. He also recalled that Defendant had threatened to hit his children with a baseball bat.

R.V. testified that she has difficulty sleeping as a result of Defendant's actions. She stated she was diagnosed with post-traumatic stress disorder, anxiety, and depression and meets with a therapist every other week. Concerning the assaults she suffered at the hands of Defendant, R.V. explained:

In the beginning, every time he would rape me, he would say he was sorry and promised he'd never do it again. He would promise to do better and to get counseling. That never happened. And as time went on, the attacks became more and more vicious. He would hold me down and place a pillow over my face, or sometimes he would cover my nose and mouth with his hand so that I couldn't breathe.

He would attack me sometimes while I was asleep. He also stopped punching me in my face, because a bloody nose and a black eye could not be hidden and had to be explained. In other words, a lie had to be told about how it happened. The abuse never stopped. Instead, he became even more evil over time.

During the weeks leading up to the police removing him from the home, he began locking me out of the house. I helped to take care of my elderly parents. My father is suffering from dementia. And when I would leave home to take care -- to take them for doctor visits or to run errands for them, he would lock me out of the house by placing door stops at the front and back doors.

This was one of the ways he would punish me when I refused to do what he wanted me to do. He was punishing me this time because he could not manipulate me into signing away my rights to his pension. He was yelling at me that it was his money.

I knew what was coming next. So on December 10, 2021, I snuck out of the house around 4:00 a.m., drove downtown and parked across the Street from the courthouse until they opened. I also visited the New Orleans Family Justice Center on the same day for help.

David A. Durand, Sr., Daniel Raphael, and Jamon Barrow provided similar testimony regarding Defendant's impact on the community. These witnesses indicated that they had never observed “anything out of the ordinary” regarding Defendant's behavior. Defendant had been a volunteer Little League baseball coach in the Mid-City area. He treated the players he coached, including those who resided in the Lafitte and Iberville housing developments, with “love and compassion” and was committed to their well-being. Defendant was also a member of Progressive Men of New Orleans and the Silverback Society, organizations which provided mentoring and scholarships. Defendant was described as “profoundly loved and respected in the community.”

Ryan Vicknair (“Ryan”) testified that his father instilled in him the value of education and respecting others. He stated Defendant “would make sure [his] brothers and [he] always listened to [their] mother and make sure [they] respected her and never disrespected her.” He testified that Defendant worked for Allstate Insurance for forty years and he worked through Hurricane Katrina and the COVID pandemic. Ryan testified that a prison sentence would have a negative effect on his entire family. He noted that Defendant is very invested in his grandchildren. Ryan noted that Defendant was stern but that he would not have graduated school without him.

Lindsay Vicknair (“Lindsay”) testified that she and her husband have three children. Lindsay testified that Defendant loves his grandchildren and “is the only constant figure for my husband's side of the family that is involved with our children.” She testified that her children FaceTime with Defendant every week.

Kevin II testified that he grew up in the home with his parents until his early twenties. He testified that Defendant was “great at providing for his family, teaching, raising, caring, even when [he] didn't understand because [he] was too young to understand.” Kevin II testified that the Defendant was a role model to many of the children he coached in Little League and that Defendant's grandchildren “adore” him.

Dr. Pellegrin testified that she performs risk assessments on individuals in which she makes “certain predictions about level of risk, level of dangerousness based on past behavior, as well as based on certain demographic factors․like age, the [ ] relationship of the defendant to the victim, how many times they've been convicted, those kinds of things.” She testified that she also considers the “mental health of the defendant, whether they have a substance abuse problem, whether they have a good support system, the nature of their relationships.”

Dr. Pellegrin conducted psychological testing and a forensic interview of Defendant. She also interviewed two of Defendant's sons, Ryan and Kevin II, as

well as his current long-distance partner. Dr. Pellegrin reviewed criminal history documents she received from defense counsel, including the police report. She also interviewed several individuals that the defense counsel supplied as character references

Dr. Pellegrin testified that she saw no “anger, aggression, inability to engage in emotional or behavioral self-control.” She explained that “[t]hose are the things that, quite frankly, one sees in - - in individuals who are rapists ․. I also didn't see any indications of emotional problems like depression, anxiety.” Dr. Pellegrin ultimately found that “there did not appear to be, in the testing, any indicators that he is an angry, violent or a behaviorally out of control person,” and she opined that Defendant was “at low risk for sexual predatory behavior.”

On cross-examination, Dr. Pellegrin admitted that she did not interview R.V. or her eldest son, but she did review all of R.V.’s statements and she watched the video. She noted that Defendant's current partner does not live with Defendant. She acknowledged that a long distance relationship does not mirror the environment of a marriage.

After the witness testimony, both parties made arguments regarding the Defendant's motion for downward departure from the mandatory minimum sentence. Thereafter, the trial court took the matter under advisement and continued the sentencing hearing until April 15, 2024.

On April 15, 2024, the trial court granted Defendant's motion for downward departure and sentenced Defendant to seven years at hard labor, suspended, three years active probation. The trial court also ordered a lifetime registration as a sex offender and a lifetime order of protection as to R.V. The same date, the trial court issued a written opinion and sentencing order. The opinion provides, in part:

The record at trial and sentencing amply demonstrates that a mandatory sentence of incarceration for Mr. Vicknair would make no measurable contribution to acceptable goals of punishment, would entail the purposeless imposition of pain and suffering, and would be grossly out of proportion to the severity of the crime. Mr. Vicknair's personal characteristics, his conduct following the commission of the offense and during the pendency of these proceedings, the circumstances of the case, and the availability of non-carceral punitive consequences all militate in favor of a downward departure from what would be, in this Court's view, a constitutionally excessive sentence in this case.

Mr. Vicknair is a 61-year-old man with no prior convictions. While the evidence presented at trial and sentencing paints two significantly diverging pictures of Mr. Vicknair as an individual, it is sufficient for this Court's purposes to conclude that neither he nor the community would benefit from his incarceration as punishment for this offense. At the sentencing hearing, the Court heard testimony from the victim—Mr. Vicknair's ex-wife—and her brother, along with testimony from two of the Vicknairs’ sons, their daughter-in-law, and various members of the community with long-standing relationships with Mr. Vicknair. The Defense also presented expert testimony from Dr. Alicia Pellegrin, a licensed clinical and forensic psychologist specializing in domestic abuse evaluation and sex offender treatment. The record demonstrates that Mr. Vicknair has a lengthy history of involvement in his community, working for Allstate Insurance for more than a quarter-century, volunteering as a youth baseball coach for more than fifteen years, and participating in community organizations such as the Progressive Men of New Orleans. Testimony and letters of support from Mr. Vicknair's children and grandchildren describe him as a beloved and involved member of their families whose absence would cause great pain and disruption to their own lives.

Dr. Alicia Pellegrin conducted psychological testing and a risk assessment of Mr. Vicknair. Dr. Pellegrin provided a written report to the Court and testified as an expert witness at Mr. Vicknair's sentencing hearing. It was Dr. Pellegrin's opinion that Mr. Vicknair does not suffer from any marked psychological defects, and that based on his life history, his lack of prior legal involvement, his current age, the lack of observed coercive control risk factors, and his lack of mental health or substance abuse problems, that he is at low risk for sexual re-offending.

The Court also notes that the Second Degree Rape for which Mr. Vicknair stands convicted was committed in August of 2016. Mr. Vicknair is not alleged to have committed any subsequent criminal offenses since that time. Furthermore, the Court finds compelling that during the yearlong pendency of this matter, Mr. Vicknair has remained compliant with all bond requirements and court orders, most significantly the protective order issued in favor of the victim in this matter. As such, this Court finds that there has been a meaningful demonstration that Mr. Vicknair does not pose a continuing danger to the community or to the victim in this case.

The Court's consideration of these mitigating circumstances are [sic] not meant in any way to depreciate the severity of the crime for which Mr. Vicknair stands convicted. To the contrary, this court is troubled and disturbed by the conduct comprising the offense. His actions caused deep and irreparable harm to the victim of his acts, and the consequences have a ripple effect. But these particular harms are not susceptible to correction by a period of incarceration in Mr. Vicknair's case. Nor is this Court persuaded that institutionalization would provide any meaningful rehabilitative opportunities to Mr. Vicknair. Mr. Vicknair's conviction serves as an irrefutable condemnation of this conduct; despite the multitudinous positive characteristics and actions detailed during the sentencing proceedings, Mr. Vicknair's deplorable actions on August 7, 2016 will mark him for the remainder of his life. He is now, and will ever be, a convicted felon and registered sex offender. His felony conviction and period of supervision will divest him of many of the rights he has heretofore enjoyed. He will be required to register as a Sex Offender for the remainder of his life. See La. R.S. 15:540 et seq. Though under Louisiana law the requirement of sex offender registration is not intended as a punishment per se, see State ex rel. Olivieri v. State, 2000—0172, p. 19 (La.2/21/01), 779 So.2d 735, 747, cert, denied, Olivieri v. Louisiana, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), it is evident on the record before this Court that the requirement as applied to Mr. Vicknair will serve as a significant, lifelong consequence of his conviction. Mr. Vicknair's stature and regard in the New Orleans community is well-documented; his conviction and registration requirement will serve as an appropriate marker of his deviation from this rosy reputation.

In conclusion, this Court finds, by clear and convincing evidence, that the mandatory minimum sentence provided for in La. R.S. 14:42.1, as applied to Mr. Vicknair, would make no measurable contribution to the deterrent, retributive, or rehabilitative purposes of punishment. The lack of further allegations of criminal conduct in the more than 7 years following the date of the instant offense likewise indicate no need for a sentence of incarceration to incapacitate Mr. Vicknair to prevent him from committing further crimes. A period of supervision, along with a suspended sentence and lifetime registration requirements will adequately serve the goals of punishment without the purposeless imposition of pain and suffering to Mr. Vicknair and his family and community. Though the offense for which Mr. Vicknair stands convicted is severe, so too are the consequences of this Court's sentence. Any period of incarceration, absent a future violation of the terms of Mr. Vicknair's probation, would be excessive and disproportionate. Our constitution forbids the imposition of such punishments. Accordingly, this Court sentences Mr. Vicknair to seven years imprisonment at hard labor, seven years suspended, with 3 years of active probation. As a condition of his probation, Mr. Vicknair is ordered to comply with this Court's Order of Protection issued in favor of the victim.

The State argues in its brief that there was no justification for the trial court to downwardly depart the rape conviction from a two-year mandatory minimum sentence. The State notes that the mandatory minimum sentence is presumed constitutional and Defendant failed to rebut the presumption by clearly and convincingly showing he is exceptional. Green, 2017-0520, p. 3, 231 So.3d at 758. The State also argues that the trial court abused its discretion in focusing on Defendant's age and lack of criminal history and should have focused on the violent nature of the offense.

Defendant, on the other hand, claims that his lack of criminal history; Dr. Pellegrin's finding that he posed a low risk for sexual predatory behavior; and the opinions of various witnesses who attested to Defendant's value to the community, demonstrate that he is the exceptional offender deserving of a sentence less than the statutory minimum.

Historically, this Court has both upheld and vacated sentences below-the-statutory-minimum imposed pursuant to Dorthey. Compare State v. Thomas, 2013-0764, p. 7 (La. App. 4 Cir. 1/12/14), 136 So.3d 153, 157 (vacating Dorthey sentence of thirteen years imprisonment at hard labor for fourth felony offender convicted of possession of heroin; “while a defendant's record of non-violent offenses may play a role in a sentencing judge's determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.”) and State v. Morgan, 96-0333, p. 3 (La.

App. 4 Cir. 9/9/96), 680 So.2d 1230, 1231 (1996) (vacating Dorthey sentence of twenty years imprisonment at hard labor for third offender convicted of attempted armed robbery; “Declarations that the court has considered the background, prior criminal record, and facts of the case do not indicate that the trial court has made a searching inquiry necessary to justify declaring a legislatively mandated sentence unconstitutional, nor do they indicate that the trial court made a meaningful assessment of any mitigating or aggravating circumstances appropriate to this case.”) (internal quotations and citations removed) with State v. Taylor, 1996-1843 (La. App. 4 Cir. 00/29/97), 701 So.2d 766, 773 (affirming Dorthey sentence of eight years imprisonment at hard labor for fourth offender convicted of attempted possession of cocaine; “trial court considered the particular facts of the case, the defendant's age, his criminal history, and further consider[ed] that none of Mr. Taylor's offenses were violent”) and State v. Abbott, 1994-1046, pp. 7-8 (La. App. 4 Cir. 2/23/95), 650 So.2d 1223, 1226-7 (affirming Dorthey sentence of seventeen and one-half years imprisonment at hard labor for second offender convicted of armed robbery where the defendant's youth, the facts of the case and the fact that defendant's two prior convictions were for shoplifting, did not justify the statutorily mandated minimum sentence).

Here, we find that trial court abused its discretion in deviating from the mandatory minimum of two years for Defendant's conviction for second degree rape. Although Defendant submitted evidence to suggest that he is a non-violent community leader, there was also testimony that Defendant frequently sexually assaulted R.V. Moreover, the video introduced by the prosecution depicts Defendant overpowering R.V., forcibly taking off her pants, pinning her arms down, and climbing on top of her. In addition to the act of rape itself, there was testimony that Defendant had a history of manipulation and abuse. As noted above, to establish that Defendant is exceptional such that a downward departure is warranted, Defendant had to clearly and convincingly prove that “because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Sims, 2013-0177, p. 9 (La. App. 4 Cir. 8/28/13), 123 So.3d 806, 812. The mitigating factors presented by Defendant do not meet this burden of proof. Moreover, a sentence within the range pronounced in La. R.S. 14:42.1, requiring a minimum of two years of incarceration, for Defendant's crime meets the acceptable goals of punishment and does not shock the sense of justice. Accordingly, the trial court erred in sentencing Defendant to less than the statutory mandatory minimum sentence for second-degree rape. We vacate the trial court's sentence and remand the matter to the trial court for resentencing within the statutory guidelines.

DECREE

For the above stated reasons, we affirm Defendant's conviction, vacate the sentence imposed, and remand the matter for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

FOOTNOTES

1.   Because of the nature of the crime of second-degree rape, this opinion will refer to the victim by her initials to protect her identity. See La. R.S. 46:1844(W)(1)(a)(providing, in pertinent part, that “[i]n order to protect the identity and provide for the safety and welfare of ․ victims of sex offenses ․ all public officials and officers and public agencies, including but not limited to ․ judicial officers, ․ shall not publicly disclose the name, address, contact information, or identity of ․ victims of sex offenses․.”).

2.   Sentencing in the matter had not yet occurred.

3.   Under La. R.S. 14:41.1(B), “Whoever commits the crime of second-degree rape shall be imprisoned at hard labor for not less than five nor more than forty years.”

4.   After Defendant's motion for appeal was granted, he withdrew the motion to reconsider sentences.

5.   The record provides that Defendant and R.V. slept in separate bedrooms.

6.   The record indicates that subsequent to this 2016 petition, Defendant and R.V. reconciled.

7.   Audio recording of R.V.’s conversation with the detective was played in court and offered for identification purposes.

8.   As noted above, the first assignment of error alleged by the State is an error patent.

9.   Defendant asserts that the State has waived its claim to review Defendant's sentence because it failed to file a motion to reconsider sentence. Under La. C.Cr.P. art. 881.2, the State may appeal or seek review of a sentence if the sentence imposed was not in conformity with mandatory requirements of the statute under which the defendant was convicted “[i]f the state objected at the time the sentence was imposed or made or filed a motion to reconsider sentence under this Article.” In this case, the State objected at the time of sentencing and thus preserved its claim for review.

10.   La. R.S. 14:42.1(B) currently requires that the entire sentence be served without benefits.

Judge Karen K. Herman

LOBRANO, J., CONCURS IN THE RESULT