State of Louisiana Versus Roy R. Dixon ( 2019 )

STATE OF LOUISIANA NO. 19-KA-7
VERSUS FIFTH CIRCUIT
ROY R. DIXON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 13-569, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
December 30, 2019
HANS J. LILJEBERG
JUDGE
Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and Timothy S. Marcel, Pro Tempore
AFFIRMED
HJL
SJW
TSM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
COUNSEL FOR DEFENDANT/APPELLANT,
ROY R. DIXON
Prentice L. White
LILJEBERG, J.
Defendant, Roy Dixon, seeks review of his sentences for one count of
production of child pornography involving a juvenile under the age of thirteen and
two counts of sexual battery upon a juvenile under the age of thirteen. For the
reasons stated more fully below, we affirm defendant’s sentences.
PROCEDURAL BACKGROUND
On March 26, 2013, defendant was charged by bill of information with
one count of production of pornography involving a juvenile under the age of
seventeen in violation of La. R.S. 14:81.1 (count one) and with two counts of
sexual battery upon a juvenile under the age of thirteen in violation of La. R.S.
14:43.1 (counts two and three). Defendant pled not guilty on all counts on April
15, 2013. On May 15, 2017, the State amended the bill of information to correct
the offense in count one to production of pornography involving a juvenile under
the age of thirteen. On May 16, 2017, a twelve-person jury found defendant
guilty on all counts.
On August 24, 2017, the trial court sentenced defendant to 20 years
imprisonment at hard labor on count one and 99 years imprisonment at hard
labor each on counts two and three, with all counts to be served concurrently and
without the benefit of parole, probation or suspension of sentence. The
defendant’s timely filed motion to reconsider sentence was denied.
In his first appeal, defendant argued, inter alia, that the trial court erred by
imposing excessive sentences on all three counts. In State v. Dixon, 18-79 (La.
App. 5 Cir. 8/29/18), 254 So.3d at 837-41, this Court found that defendant’s 99-
year sentences imposed for his two convictions for sexual battery of a juvenile
under the age of thirteen were constitutionally excessive. This Court vacated
defendant’s sentences on counts two and three and pursuant to La. C.Cr.P. art.
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881.4, suggested sentences of 35 to 40 years imprisonment at hard labor to run
concurrently with count one. Id. at 841. This Court also determined that
defendant’s sentence for his conviction for production of pornography involving
a juvenile under thirteen was illegally lenient. La. R.S. 14:81.1(E)(5)(b) provides
that offenders over the age of seventeen who produce pornography involving
juveniles under the age of thirteen shall be imprisoned at hard labor for not less
than 25 years nor more than 99 years, with at least 25 years without the benefit of
parole, probation or suspension of sentence.1 Therefore, this Court vacated the
sentence imposed on count one, and pursuant to La. C.Cr.P. art. 881.4,
recommended a sentence of 35 to 40 years imprisonment at hard labor to run
concurrent with the other two counts. The matter was remanded to the trial court
for resentencing on all counts. Id.
On October 18, 2018, the trial court resentenced defendant to
imprisonment at hard labor for 80 years each on counts one, two, and three to run
concurrently, without the benefit of parole, probation, or suspension of sentence.
Defendant objected to the sentences as excessive. On October 23, 2018,
defendant filed a motion for reconsideration of sentence, which the trial court
denied on November 29, 2018. On October 24, 2018, defendant filed a timely
motion for appeal, which the trial court granted.
FACTS
We reiterate the facts as stated in our previous opinion. Defendant was
often the caretaker of his two-year old sister, L.D.,2 when his mother, C.D.,
worked. On January 26, 2013, while watching L.D., defendant invited Rayan
1
It appears from the record that the trial court mistakenly sentenced defendant pursuant to La. R.S. 14:81.1(4)(a),
which provides that a person engaging in the production of pornography shall be imprisoned at hard labor for not
less than 10 years nor more than twenty years, without the benefit of parole, probation or suspension of sentence.
La. R.S. 14:81.1(5)(b), which is applicable to count one in this matter, provides for enhanced sentencing when the
offender is over the age of seventeen and the victim is under the age of thirteen.
2
To preserve the confidentiality of the minor victim’s identity in this case, the victim, the victim’s family members,
and other related witnesses will be referred to by their initials. La. R.S. 46:1844(W).
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Badeaux, a man he met on the Internet, to his house located at 1402 Hancock
Street in Gretna, where defendant engaged in sexual intercourse with Mr.
Badeaux. Afterwards, defendant left the room to check on L.D. While defendant
was out of the room, Mr. Badeaux looked through defendant’s cell phone and
located a video of a young toddler and an adult male who was touching the
toddler’s vagina. Mr. Badeaux immediately left defendant’s house with
defendant’s cell phone and went to the New Orleans Police Department’s (NOPD)
Fourth District Station in New Orleans. Because the aforesaid residence is located
in the City of Gretna, the Gretna Police Department was contacted regarding the
pornographic video on the cell phone.
Detective Jeffrey Laborie3 with the Gretna Police Department met Mr.
Badeaux at the NOPD and obtained the cell phone from him. Mr. Badeaux
showed Detective Laborie one video of a small female toddler, approximately one
or two years old, with a pacifier in her mouth. The video showed a female toddler
who was unclothed, and an adult man’s hand touching her vagina. Detective
Laborie testified that he believed, based on experience, that there was additional
contraband on the cell phone.
During his investigation, Detective Laborie developed a potential suspect,
“Allen,” and went to 1402 Hancock Street where he spoke with C.D. about the cell
phone and the number associated with it. C.D. told him that the cell phone
belonged to her son, Roy, not “Allen.” C.D. stated that she confronted defendant
about videos on his phone, and told defendant that he was no longer welcome at
her house. At that point, defendant became the potential suspect. While speaking
with C.D., defendant approached the residence on his bicycle. Detective Laborie
noticed that defendant was wearing the same clothing and matched the description
he was previously given. Based on his corroborated observation, Detective
3
Detective Laborie testified that he was a patrol officer at the time of the incident.
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Laborie approached defendant. Defendant appeared upset and was crying.
Defendant spontaneously stated that he wanted to tell his side of the story.
Detective Laborie transported defendant to the police station and placed him in a
holding cell. While defendant was in the holding cell, Detective Laborie wrote his
report in a nearby room equipped with a monitor which allowed him to view and
hear defendant. Detective Laborie overheard defendant crying and saying to
himself, “I’m so stupid. I can’t believe I did that. I’m so lazy. I should have
deleted those files. I lost my family. I will never be able to make up for this.”
Detective Laborie transcribed this statement “word for word” into his report as
defendant was talking. At that point, Detective Laborie turned over his
investigation to Sgt. Lewis Alvarez, who was a detective at the time.
Before interviewing defendant, Sgt. Alvarez obtained a search warrant for
defendant’s cell phone, on which three videos were found. Sgt. Alvarez stated that
it was too dark to see anything on the first video. The second video depicted a
black adult male’s penis ejaculating on a toddler’s vagina. The third video showed
a black adult male’s hand “playing with [toddler’s] vagina.” Sgt. Alvarez testified
that he believed that there was more contraband on the phone, and he brought
defendant from the holding cell to interview him. After being advised of his
Miranda4 rights, defendant agreed to voluntarily give a recorded statement. In his
statement, defendant admitted to “sexting” “Brad Howard,”5 who asked him about
his family. Defendant told Brad about his sister, L.D., and her age. Brad wanted
defendant to touch L.D.’s vagina and ejaculate on her on video, and to send the
videos to him. Although defendant initially refused, defendant stated that he did
take the videos of L.D. as Brad requested. Defendant stated that he “knew it was
4
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).
5
Sgt. Alvarez testified that they subsequently learned that defendant was referring to Brad Case, not “Brad
Howard,” who pled guilty to distribution of child pornography in April 2013.
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wrong” but he wanted to keep communicating with Brad, and believed that if he
did as requested, Brad would continue sending him photographs and videos of
himself. Defendant stated that one video depicted him rubbing the outside of
L.D.’s vagina with his finger. In a third video, he was rubbing L.D.’s vagina, but
the lighting was too dark. He stated that he did not “insert” his finger into her
vagina. Defendant also stated he took a video of himself ejaculating on L.D. Both
videos were done in his mom’s house located 1402 Hancock Street while he was
changing L.D.’s diaper, and were sent to Brad. After further questioning,
defendant also admitted to taking and sending approximately ten pornographic
photographs of L.D.’s vagina to Brad, including one in which defendant inserted a
Q-tip into L.D.’s vagina.
When defendant was asked if he inserted his penis into L.D., defendant
stated emphatically that he “never” put his penis in her vagina or anus, and
“never” licked either. Defendant stated that he knew what he did was not right
because L.D. could not protect herself, but stated that he did not hurt her.
Defendant stated that he was “in jail because of the stuff that was on my memory
card that I thought I deleted.”
After his statement, defendant was placed under arrest. Sgt. Alvarez went
to 1402 Hancock Street to locate L.D. and meet with C.D. He observed a toddler
that was one or two years old, and learned that L.D. was born February 20, 2011,
which corroborated what he was told by defendant.6
DISCUSSION
The sole assignment of error on appeal is whether the reduced 80-year
sentences imposed for each of the three counts is constitutionally excessive.
6
Sgt. Alvarez obtained another search warrant for the Samsung cell phone requesting a “dump of the phone.” A
search warrant was also obtained for 1402 Hancock Street for any additional electronic devices belonging to
defendant. A laptop was located in defendant’s bedroom and a search warrant was obtained for its contents. The
Samsung cell phone and laptop were sent to the digital forensics unit.
19-KA-7 5
Defendant contends this Court already indicated he was not the worst of all
possible offenders, and therefore, such high sentences are not warranted. He
argues that no physical harm was done to the victim, and she did not sustain
psychological pain as a child that young would not recall the incident. He also
argues that the pornographic images of the child were only sent to one person
and were not widely distributed. He also notes his lack of a prior criminal
record. Defendant argues that while it may appear the trial court adhered to this
Court’s instruction by reducing defendant’s sentences by almost 20 years, the
80-year concurrent sentences are still constitutionally excessive and the trial
court abused its discretion.
Both now and at the time defendant committed the crimes of production of
child pornography involving a juvenile under the age of thirteen (La. R.S.
14:81.1(5)(b)) and sexual battery upon a juvenile under the age of thirteen (La.
R.S. 43.1(C)(2)), the sentencing ranges provided by both provisions were not
less than 25 years nor more than 99 years imprisonment at hard labor, with at
least 25 years without the benefit of parole, probation or suspension of sentence.
The Eighth Amendment of the United States Constitution and Article I, §
20 of the Louisiana Constitution prohibit the imposition of excessive
punishment. A sentence is considered excessive, even if it is within the
statutory limits, if it is grossly disproportionate to the offense or imposes
needless and purposeless pain and suffering. State v. Horne, 11-204 (La. App. 5
Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 12-556 (La. 6/1/12), 90 So.3d
437.
A trial court has vast discretion in determining and imposing a sentence within
statutory limits. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7, 16-17.
An appellate court cannot set aside a sentence as excessive absent a manifest
abuse of discretion. Id. The only relevant question on appeal is whether the trial
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court abused its broad sentencing discretion, not whether another sentence might
have been more appropriate. State v. Soraparu, 97-1027 (La. 10/13/97), 703
So.2d 608. The appellate court should not set aside a sentence for excessiveness
if the record supports the sentence imposed. State v. Pearson, 07-332, 07-333,
07-539 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
While a trial court has wide discretion, a sentence within statutory limits
may nonetheless be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.
1979). In determining whether a sentence is excessive, an appellate court
considers: (1) the nature of the crime; (2) the nature and background of the
offender; and the sentences imposed for similar crimes by the same and other
courts. State v. Le, 98-1274 (La. App. 5 Cir. 06/30/99), 738 So.2d 168, 171, writ
denied, 00-2174 (La. 04/12/01), 789 So.2d 587.
Generally, maximum sentences are reserved for cases involving the most
serious violations of the offense charged and the worst type of offender.
Pearson, 975 So.2d at 656. This Court, however, has recognized that a
maximum or near maximum sentence for sexual battery of a minor may not be
excessive if a defendant exploits a position of trust to commit the crime. State v.
Wilmot, 13-994 (La. App. 5 Cir. 05/14/14), 142 So.3d 141, 149 (citing State v.
Badeaux, 01-406 (La. App. 5 Cir. 09/25/01), 798 So.2d 234, writ denied, 01-
2965 (La. 10/14/02), 827 So.2d 414).
Furthermore, though similar cases discussing sentencing for violations of
La. 14:81.1(5)(b), production of pornography involving a juvenile under thirteen,
are limited, in State v. Murphy, 16-901 (La. App. 1 Cir. 10/28/16), 206 So.3d
219, the First Circuit sentenced the defendant to 99 years imprisonment at hard
labor to run concurrently on four counts of production of pornography of a
juvenile under thirteen. The defendant was sentenced as a second-felony
offender due to a prior conviction for receiving child pornography on 2008 while
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he was in the military. The charges arose from defendant’s communications with
a twelve-year old victim on the internet. Defendant convinced the victim to send
sexually graphic photographs and videos of herself committing acts as instructed
by the defendant.
In the present matter, the trial court provided extensive reasons for the
sentences it imposed. At the first sentencing hearing held on August 24, 2017,
the trial court noted the disturbing acts defendant committed on his two-year old
sister. The trial court explained that it ordered a pre-sentencing investigation and
the sentencing report indicated that defendant continued to insist he did not
commit sexual battery on his sister and failed to take responsibility for his
actions. The trial court indicated that it imposed the maximum sentence because
it feared that defendant would offend again if he was ever released from prison.
At the hearing on the motion to reconsider sentence, defense counsel
argued that defendant made a horrible mistake by committing these offenses and
was a child trying to impress another predator who corrupted defendant. The
trial court noted in response that defendant was not a child as he was 21 years
old at the time he committed these horrific offenses against his two-year old
sister. The trial court again stated that after viewing the videos and hearing
defendant’s confession at trial, it was “absolutely convinced if [defendant] is
given a chance to be out of incarceration he will reoffend,” and that its motive
for imposing maximum sentences was to protect the public.
Following remand for resentencing by this Court, the trial court conducted
a second sentencing hearing on October 18, 2018. During that hearing the trial
court provided additional reasons to support his finding that defendant was the
worst of offenders warranting a maximum sentence. The trial court focused
primarily on the defendant’s abuse of the position of authority entrusted to him
when he committed acts of sexual battery on his two-year sister and used her to
19-KA-7 8
create child pornography. The trial court noted that when he committed these
crime, defendant was supposed to be babysitting his sister while their mother
went to work to earn a living to support the family. The trial court believed
defendant abused his authority over his sister in the worst way possible.
The trial court further explained that he offered defendant a lesser
sentence prior to trial to avoid subjecting the jurors and others to watching the
disturbing videos and photographs produced by defendant while committing acts
of sexual battery on his sister. The trial court stated that after making that offer,
the additional evidence and testimony he saw during the trial convinced the trial
court that a maximum sentence was necessary to protect the public. In
particular, the trial court explained that one of the videos showed the child
crying and attempting to crawl away from defendant while he committed
disgusting acts on her and dragged her back into the view of the camera.
After considering the suggestions provided by the prior panel of this Court
in Dixon, supra, however, the trial court did not impose the maximum sentences,
but rather reduced relator’s sentences on the two counts of sexual battery upon a
juvenile under thirteen by 19 years, and sentenced defendant to a concurrent 80-
year sentence on the production of pornography count.
The question before this Court is whether the 80-year sentences imposed
by the trial court are unconstitutionally excessive. We recognize that a prior
panel of this Court suggested that concurrent sentences of 35 to 40 year
imprisonment at hard labor on each count would be the longest sentences that
would not be constitutionally excessive. Dixon, 254 So.3d at 841. In reaching
this conclusion, the prior panel relied primarily on the absence of other reported
cases imposing maximum sentences for defendants with no prior felony record
or where the abuse did not occur over a long period of time. Id. at 837-41.
However, following the second sentencing hearing, the trial court provided
19-KA-7 9
additional reasons, including the defendant’s exploitation of his position of trust
and authority over his two-year old sister, for declining to follow the prior
panels’ recommendations regarding sentencing. The trial court also reduced the
maximum sentences imposed by almost twenty years.
As explained above, this Court has recognized that maximum or near
maximum sentences may be warranted in sexual battery cases where a defendant
exploits a position of trust. Wilmot, supra. We agree with the trial court that the
crimes committed by defendant represent an extreme betrayal of his position of
trust and authority. Defendant committed disgusting sexual acts on his two-year
old sister, who was entrusted to his care and completely helpless to defend
herself. He used his sister to produce child pornography by taking photographs
and videos of these acts to share with a man he was “sexting.” Defendant was
willing to commit these disturbing crimes so that this man would continue to
communicate with him and send pictures and videos of himself to defendant.
Defendant attempts to diminish the severity of his crimes by arguing his sister
was not physically harmed and will not remember the incident. However, he
fails to recognize the harm he has done to his family and the harm he could have
done to his sister if the photographs and videos were shared and distributed.
Considering defendant’s extreme violation of the trust and authority
placed in him to care for the victim, his two-year old sister, we find that the
reduced sentences of 80 years of imprisonment at hard labor imposed by the trial
court with respect to the two counts of sexual battery upon a juvenile under
thirteen, as well as the sentence of 80 years of imprisonment at hard labor for the
one count of production of pornography involving a juvenile under thirteen, are
not unconstitutionally excessive and did not constitute a manifest abuse of the
trial court’s discretion.
19-KA-7 10
DECREE
Accordingly, for the foregoing reasons, this Court affirms defendant’s
sentences.
AFFIRMED
19-KA-7 11
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-KA-7
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) PRENTICE L. WHITE (APPELLANT) ANDREA F. LONG (APPELLEE)
THOMAS J. BUTLER (APPELLEE)
MAILED
HON. PAUL D. CONNICK, JR. (APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053