State Of Louisiana v. Rusty Willie ( 2021 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0340
STATE OF LOUISIANA
1
VERSUS
RUSTY WILLIE
Judgment rendered: MAR 1 12021
On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
No. 36616, Div. ``B"
The Honorable Charlotte H. Foster, Judge Presiding
Scott M. Perrilloux Attorneys for Appellee
District Attorney State of Louisiana
Kurt Wall
Brad Cascio
Zachary Daniels
Serena Birch
Jeff Hand
Assistant District Attorneys
Livingston, Louisiana
Meghan Harwell Bitoun Attorney for Defendant/ Appellant
Appellate Counsel Rusty Willie
New Orleans, Louisiana
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
41
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HOLDRIDGE, J.
The defendant, Rusty Willie, was charged by bill of information with two
counts of sexual battery upon K.M., a victim under the age of thirteen, violations
of La. R. S. 14: 43. 1. He pled not guilty and, following a jury trial, was found guilty
as charged on both counts. On each count, the defendant was sentenced to twenty-
five years imprisonment at hard labor without benefit of parole, probation, or
suspension of sentence.
The sentences were ordered to run consecutively. The
defendant filed a motion to reconsider sentence, which was denied. The defendant
now appeals, designating three assignments of error. We affirm the convictions
and sentences.
FACTS
K.M.' s parents had joint custody of her. Both of K.M.' s parents were
remarried. Her mother was married to the defendant. In the fall of 2017, nine-
year-old K.M.1 was staying at her mother' s house in Livingston Parish for one of
the shared custodial weeks. K.M. testified at trial that she was sleeping on the
couch in the living room. The defendant came home from work late that night and
pulled down K.M.' s pants, which woke her up. The defendant then pulled down
her underwear to above her knees, and he rubbed her vagina for about one or two
minutes, then left. Over a month later, K.M. was again staying at her mother' s
house. She was lying awake on the top bunkbed in her bedroom. The defendant
walked into her room and rubbed her vagina over her underwear for about one or
two minutes, then left.
The defendant did not testify at trial.
1 K.M. turned 10 in the fall of 2017.
2
ASSIGNMENT OF ERROR NUMBER 1
In his first assignment of error, the defendant argues the trial court erred in
admitting evidence under La. Code Evid. art. 412.2 because it was more prejudicial
than probative.
Prior to trial, the State filed notice of intent to introduce evidence of other
crimes, bad acts, or wrongs, pursuant to La. Code Evid. art. 412. 2. The defendant
objected to the use of such evidence, which involved another victim, K.T. The
trial court ruled that the evidence regarding K.T. was admissible at trial. At trial,
K.T. testified that in 2010 when she was seventeen years old, she went to live with
the defendant and his wife for a couple of weeks. She and the thirty -one- year old
defendant began a consensual sexual relationship. At some point, K.T. moved out
of the defendant' s house and into a camper on her aunt' s property. She informed
the defendant that she wanted to discontinue the relationship with him. Despite
cutting ties with the defendant, the defendant went to K.T.' s camper several weeks
later. He began touching K.T. and she told him she did not " want to do this" and
wanted nothing " to do with this anymore." The defendant took her clothes off and
threw her on the bed. He grabbed and held her and, without her consent, had
vaginal and oral intercourse with her. K.T. called the police the next day, who
went to her camper and took a report. K.T. then went to the hospital to have a rape
kit done.
The defendant asserts in brief that K.T. testified about irrelevant information
such as her belief the defendant was neglecting his child. She also catalogued
various details of her relationship with the defendant while she lived with him and
his wife and took care of their child. This testimony, according to the defendant,
was unduly and unfairly prejudicial and should have been excluded from evidence
at trial since the likelihood this evidence lent confusion of the issues was high.
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Also, the defendant suggests,
the probative value of the testimony of sexually
assaultive behavior was not high because it did not pertain to the allegations of the
instant case in any way. He argues that, rather, this evidence, rather, of his sexual
assault served to paint a picture of him as a person of low character. At best, the
defendant suggests, " any moderately probative evidence portrayed here was quite
narrow when compared to the totality of that testimony." As such, the defendant
contends, the evidence failed the balancing test of La. Code of Evid. art. 403, and
the trial court abused its discretion in allowing the evidence.
Louisiana Code of Evidence article 412. 2 provides:
A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense
involving a victim who was under the age of seventeen at the time of
the offense, evidence of the accused' s commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which
indicate a lustful disposition toward children may be admissible and
may be considered for its bearing on any matter to which it is relevant
subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under
the provisions of this Article, the prosecution shall, upon request of
the accused, provide reasonable notice in advance of trial of the nature
of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or
consideration of evidence under any other rule.
Louisiana Code of Evidence article 412.2 was a legislative response to
earlier decisions from the Louisiana Supreme Court refusing to recognize a " lustful
disposition" exception to the prohibition of other crimes evidence under La. Code
Evid. art. 404. State v. Buckenberger, 2007- 1422 ( La. App. 1st Cir. 2/ 8/ 08), 984
So. 2d 751, 757, writ denied, 2008- 0877 ( La. 11/ 21/ 08), 996 So. 2d 1104.
Ultimately, questions of relevancy and admissibility of evidence are discretion
calls for the trial court. Such determinations regarding relevancy and admissibility
should not be overturned absent a clear abuse of discretion. State v. Mosby, 595
So. 2d 1135, 1139 ( La. 1992); State v. Friday, 2010- 2309 ( La. App. 1st Cir.
6/ 17/ 11), 73 So. 3d 913, 925, writ denied, 2011- 1456 ( La. 4/ 20/ 12), 85 So. 3d 1258.
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Relevant evidence is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence. La. Code Evid. art. 401. All
relevant evidence is admissible except as otherwise provided by positive law.
Evidence which is not relevant is not admissible. La. Code Evid. art. 402.
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading
the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art.
403.
We find no abuse of discretion in the trial court' s ruling allowing the
introduction of K.T.' s testimony at trial. While the defendant argues in brief that
much of K.T.' s testimony was irrelevant, K.T. simply responded to the questions
she was asked. Moreover, defense counsel lodged few objections to K.T.' s
testimony at trial. During her testimony, K.T. began describing an incident where
the defendant inappropriately touched her in a swimming pool. Defense counsel
objected because they were not familiar with this incident. The trial court
informed the prosecutor to move on. Over the next fourteen pages of testimony,
including K.T.' s description of how the defendant sexually assaulted her, defense
counsel objected twice. One objection was sustained and the other was overruled.
At any rate, based on the similarities between the defendant' s behavior with
K.M. and K.T., we find the evidence of other sexually assaultive behavior was
highly relevant and probative to show the defendant' s propensity for sexual
activity with young females related to him or under his care and living in his
household. See State v. Robertson, 51, 521 ( La. App. 2nd Cir. 8/ 16/ 17), 243
So. 3d 1196, 1203- 04. We note that even though the victim in the instant matter
was several years younger than seventeen -year- old K.T., the evidence of K.T.' s
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sexual abuse by the defendant was still relevant and admissible under La. Code
Evid. art. 412. 2. Evidence of a defendant' s sexually assaultive behavior is
admissible under La. Code Evid. art. 412. 2 regardless of the victim' s age. State v.
Wright, 2011- 0141 ( La. 12/ 6/ 11), 79 So. 3d 309, 316.
Article 412. 2 uses the term " sexually assaultive behavior" as a general
expression that is not restricted to the statutory definition of "assault" given in La.
R. S. 14: 36. As used in this Article sexually assaultive behavior includes the types
of conduct that are proscribed, for example, by simple rape, forcible rape,
aggravated rape, sexual battery, and crimes against nature. This enumeration is
intended to be illustrative and not exclusive. State v. Layton, 2014- 1910 ( La.
3/ 17/ 15), 168 So. 3d 358, 361- 62. Thus, the defendant' s non- consensual sexual
intercourse with K.T. clearly constituted sexually assaultive behavior under La.
Code Evid. art. 412. 2.
Based on the foregoing, we find that the probative value of the evidence of
the defendant' s sexual assault of K.T. was not outweighed by the danger of unfair
prejudice under La. Code Evid. art. 403. See State v. Verret, 2006- 1337 ( La.
App. 1st Cir. 3/ 23/ 07), 960 So. 2d 208, 220- 22, writ denied, 2007- 0830 ( La.
11/ 16/ 07), 967 So. 2d 520. The trial court did not abuse its discretion in finding
this evidence relevant and admissible and, accordingly, this assignment of error is
without merit.
ASSIGNMENT OF ERROR NUMBER 2
In his second assignment of error, the defendant argues the trial court erred
in failing to grant a mistrial, when in its closing argument, the State referred to the
defendant as a sex offender.
In its rebuttal closing argument, the State argued in pertinent part: " But are
we only going to cast blame — are we only going to cast blame on the [ K.M.' s
0
father and stepmother] for finding out that their children' s mother may be dating a
sex offender and for them trying to take some type of action." Defense counsel
moved for a mistrial because the State called the defendant a sex offender.
Defense counsel noted that both of the defendant' s prior convictions were
misdemeanors and did not require registration as a sex offender. The trial court
overruled the motion for mistrial, noting that the State said the defendant was a sex
offender, not a " registered" sex offender.
The defendant argues in brief that the jury very likely understood the State to
mean the defendant was a registered sex offender. According to the defendant, this
comment was inappropriate, very likely influenced the jury, and contributed to the
verdict in this case.
Louisiana Code of Criminal Procedure article 770 governs mistrials on the
basis of prejudicial remarks and provides:
Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:
1) Race, religion, color or national origin, if the remark or
comment is not material and relevant and might create prejudice
against the defendant in the mind of the jury;
2) Another crime committed or alleged to have been
committed by the defendant as to which evidence is not admissible;
3) The failure of the defendant to testify in his own defense; or
4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,
requests that only an admonition be given, the court shall admonish
the jury to disregard the remark or comment but shall not declare a
mistrial.
The remark by the State did not fall under La. Code Crim. P. art. 770.
Accordingly, the applicable law is La. Code Crim. P. art. 771, which provides in
pertinent part:
In the following cases, upon the request of the defendant or the
state, the court shall promptly admonish the jury to disregard a remark
or comment made during the trial, or in argument within the hearing
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of the jury, when the remark is irrelevant or immaterial and of such a
nature that it might create prejudice against the defendant, or the state,
in the mind of the jury:
1) When the remark or comment is made by the judge, the
district attorney, or a court official, and the remark is not within the
scope of Article 770[.]
A mistrial under the provisions of La. Code Crim. P. art. 771 is at the
discretion of the trial court and should be granted only where the prejudicial
remarks of the witness make it impossible for the defendant to obtain a fair trial.
State v. Flowers, 2016- 0130 ( La. App. 1st Cir. 9/ 19/ 16), 204 So. 3d 271, 284, writ
denied, 2016- 1871 ( La. 9/ 6/ 17), 224 So. 3d 983. A mistrial is warranted when
certain remarks are considered so prejudicial and potentially damaging to the
defendant' s rights that even a jury admonition could not provide a cure. See State
v. Edwards, 97- 1797 ( La. 7/ 2/ 99), 750 So. 2d 893, 906, cert. denied, 528 U.S.
10265 120 S. Ct. 542, 145 L.Ed.2d 421 ( 1999). Mistrial is a drastic remedy that is
authorized only where substantial prejudice will otherwise result to the accused.
State v. Anderson, 2000- 1737 ( La. App. 1st Cir. 3/ 28/ 01), 784 So. 2d 666, 682,
writ denied, 2001- 1558 ( La. 4/ 19/ 02), 813 So. 2d 421. A trial court' s ruling
denying a mistrial will not be disturbed absent an abuse of discretion. State v.
Givens, 99- 3518 ( La. 1/ 17/ 01), 776 So. 2d 443, 454; State v. Johnson, 2006- 1235
La. App. 1 st Cir. 12/ 28/ 06), 951 So. 2d 294, 300.
Closing arguments in criminal cases shall be restricted to the evidence admitted, to
the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the
law applicable to the case. Further, the State' s rebuttal shall be confined to
answering the argument of the defendant. La. Code Crim. P. art. 774. Prosecutors
are allowed wide latitude in choosing closing argument tactics. State v. Draughn,
2005- 1825 ( La. 1/ 17/ 07), 950 So. 2d 583, 614, cert. denied, 552 U.S. 1012, 128
S. Ct. 537, 169 L.Ed.2d 377 ( 2007). The trial court has broad discretion in
controlling the scope of closing arguments, and this court will not reverse a
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conviction on the basis of improper closing argument unless thoroughly convinced
that the remarks influenced the jury and contributed to the verdict. State v.
Vansant, 2014- 1705 ( La. App. 1st Cir. 4/ 24/ 15), 170 So. 3d 1059, 1063.
We find no reason to disturb the trial court' s denial of the motion for
mistrial.
Defense counsel did not request that the trial court admonish the jury.
Moreover, there was nothing improper about the State' s remark. The defendant
had stipulated to two prior convictions of carnal knowledge of a juvenile and the
jury heard evidence of such. A person convicted of a sex offense is a sex offender.
The point of the State' s entire closing argument — why it was asking the jury to
find the defendant guilty—was that he was a sex offender. As the trial court
correctly noted in denying the defendant' s motion for mistrial, the State made no
mention or allusions to the sexual offender registry or that the defendant was a
registered" sex offender.
In any event, the trial court instructed the jury in its jury
instructions that opening statements and closing arguments were not evidence.
Much credit should be accorded to the good sense and fairmindedness of jurors
who have seen the evidence, heard the argument, and have been instructed by the
trial court that arguments of counsel are not evidence. State v. Mitchell, 94- 2078
La. 5/ 21/ 96), 674 So.2d 250, 258, cert. denied, 519 U.S. 1043, 117 S. Ct. 614, 136
L.Ed.2d 538 ( 1996); Vansant, 170 So. 3d at 1065.
The prosecutor' s remarks in rebuttal did not contribute to the verdicts nor
make it impossible for the defendant to obtain a fair trial. See La. Code Crim. P.
art. 775; Vansant, 170 So. 3d at 1064. Based on the foregoing, we find no abuse of
discretion in the trial court' s denial of the defendant' s motion for a mistrial. This
assignment of error is without merit.
X
ASSIGNMENT OF ERROR NUMBER 3
In his third assignment of error, the defendant argues the trial court erred in
imposing unconstitutionally excessive sentences. Specifically, the defendant
contends that the imposition of consecutive sentences in this case is excessive and
is not narrowly tailored to the circumstances. He asks this court to reverse the
sentence in favor of a sentence that is more appropriately tailored to the
circumstances.
The Eighth Amendment to the United States Constitution and Article I,
Section 20 of the Louisiana Constitution prohibit the imposition of excessive
punishment. Although a sentence falls within statutory limits, it may be excessive.
State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is considered
constitutionally excessive if it is grossly disproportionate to the seriousness of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is considered 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. Scott, 2017- 0209 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d
207, 211, writ denied, 2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410.
The trial court has great discretion in imposing a sentence within the
statutory limits, and such a sentence will not be set aside as excessive in the
absence of a manifest abuse of discretion. Scott, 228 So. 3d at 211. Louisiana
Code of Criminal Procedure article 894. 1 sets forth the factors for the trial court to
consider when imposing sentence. While the entire checklist of La. Code of Crim.
P. art. 894. 1 need not be recited, the record must reflect the trial court adequately
considered the criteria. State v. Brown, 2002- 2231 ( La. App. 1st Cir. 5/ 9/ 03), 849
So. 2d 566, 569.
10
The articulation of the factual basis for a sentence is the goal of La. Code
Crim. P. art. 894. 1, not rigid or mechanical compliance with its provisions. Where
the record clearly shows an adequate factual basis for the sentence imposed,
remand is unnecessary even where there has not been full compliance with La.
Code Crim. P. art. 894. 1. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982). The
trial court should review the defendant' s personal history, his prior criminal record,
the seriousness of the offense, the likelihood that he will commit another crime,
and his potential for rehabilitation through correctional services other than
confinement. See La. Code Crim. P. art. 894. 1( A) & ( B); State v. Jones, 398
So. 2d 1049, 1051- 52 ( La. 1981).
The defendant was sentenced to twenty-five years imprisonment at hard
labor on each count for a total sentence of fifty years imprisonment. In brief, the
defendant notes that since the sentences are without benefit of parole, probation, or
suspension of sentence, he will be almost ninety years old at the completion of his
sentence. He will have " nothing to work toward, no goal to reach in sight of his
own rehabilitation." Although the trial court ordered and reviewed a presentence
investigation report, the defendant suggests the court did not articulate thorough
reasons for the consecutive sentences.
If the defendant is convicted of two or more offenses based on the same act
or transaction, or constituting parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court expressly directs that
some or all be served consecutively. La. Code Crim. P. art. 883. Thus, La. Code
Crim. P. art. 883 specifically excludes from its scope sentences which the court
expressly directs to be served consecutively. Furthermore, although the imposition
of consecutive sentences requires particular justification when the crimes arise
from a single course of conduct, consecutive sentences are not necessarily
11
excessive.
State v. Palmer, 97- 0174 ( La. App. 1 st Cir. 12/ 29/ 97), 706 So. 2d 156,
160. The trial court retains the discretion to impose consecutive sentences on the
basis of other factors, including past criminality, violence in the charged crimes, or
the risk the defendant poses to the general safety of the community. State v.
Dantin, 2019- 0407 ( La. App. 1st Cir. 12/ 17/ 19), 291 So. 3d 1096, 1105.
The trial court herein expressly directed that the two sentences were to run
consecutively. These sentences, therefore, are outside the scope of La. Code Crim.
P. art. 883. See Palmer, 706 So. 2d at 160. In its reasons for imposing consecutive
sentences, the trial court stated: " Based on the testimony that I heard at trial, not
only from the young lady who suffered at your hand, but also the other victim. In
reading the pre -sentence investigation, I believe this is an appropriate sentence."
We note as well that the two acts of sexual battery upon K.M. were not
based on the same act or transaction. Each incident was separate and distinct, and
occurred more than a month apart. See State v. Williams, 2018- 1082 ( La. App.
1st Cir. 5/ 9/ 19), 277 So. 3d 337, 343- 44, writ denied, 2019- 00967 ( La. 11/ 25/ 19),
283 So. 3d 500. The defendant faced ninety -nine-year sentences for each count.
He was sentenced to the minimum sentence on each count. See La. R. S.
14: 43. 1( C)( 2). In light of the foregoing, and particularly in light of the defendant' s
use of his position or status to facilitate the commission of the offenses upon a
young female victim, we find the trial court did not abuse its discretion in imposing
consecutive sentences. See State v. Williams, 52, 052 ( La. App. 2nd Cir. 6/ 27/ 18),
250 So. 3d 1200, 1206. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the defendant' s convictions and sentences are
affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.
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