State Of Louisiana VS Edward F. Benoit
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1677 STATE OF LOUISIANA n VERSUS 1 EDWARD F BENOIT DATE OF JUDGMENT APR 2 6 2013 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NLJMBER 512649 DNISION A PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE RAYMOND S CHILDRESS JUDGE Walter P Reed Counsel for Appellee District Attorney State of Louisiana Covington Louisiana ryn Katl W Landry Special Appeals Counsel Baton Rouge Louisiana Frank Sloan Counsel for Defendant Appellant Mandeville Louisiana Edward F Benoit BEFORE KUHN PETTIGREW AND McDONALD JJ Disposition CONVICTIONS AND SENTENCES AFFIRMED IN KiJ J The defendant Edward F Benoit was charged by bill of information with two counts of indecent behavior with juveniles L and M violations of La N B S 81 R 14 counts 1 and 4 one count of oral sexual battery of L a violation N of La R 14 count 2 and one count of seXUal battery of M a S 43 3 B violation of La R 14 count 3 He pled not guilty and following a jury S 43 1 trial was found guilty as charged on all counts The trial court sentenced the defendant to seven years imprisonment at hard labor on his conviction for indecent behavior with a juvenile LN count 1 to ten years imprisonment at hard labor on his oral sexual battery conviction count 2 to forty years imprisonment at hard labor with the first twenty years of the sentence to be served without benefit five of parole probation or suspension of sentence on his conviction for sexual battery count 3 and to twenty years imprisonment at hard labor with the five first two years of the sentence to be served without benefit of parole probation or suspension of sentence on his indecent behavior with a juvenile M conviction B count 4 All sentences were made consecutive The defendant filed a motion to reconsider sentence which was denied The defendant now appeals designating one assignment oferrar For the following reasons we affirm the convictions and sentences FACTS The defendant who was in his seventies at the time lived in a trailer on Beech Street in Slidell Louisiana The trailer was next door to a house where several young children lived including siblings seven M a boy and old year B old year thirteen LN a girl L and M often visited the defendant in his N B trailer L and M would always go together when visiting the defendant so N B their mother became suspicious when L went one day by herself to visit the N 2 defendant When L returned home her mother asked her why she had visited N the defendant alone LN told her mother that the defendant had been molesting her and M B Disclosure by both children revealed that from 2010 to 2011 the defendant would spank L and M when they visited N B Sometimes the children were clothed and sometimes their buttocks were exposed when the defendant spanked them The defendant used either his bare hand or a paddle to spank them The defendant would give them gifts like a lamp or money for spanking them On two separate occasions the defendant licked L vagina On one occasion the s N defendant had M touch the defendanYs penis over his pants B ASSIGNMENT OF ERROR In his sole assignment of error the defendant argues his sentences are excessive Specifically the defendant contends the sentences are excessive as imposed individually and as imposed consecutively The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 2d 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 sociery it shocks the sense ofjustice State v Andrews 94 La App lst Cir 5 655 So 0842 95 2d 448 454 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 See State u Holts 525 So 1241 2d 3 1245 La App 1 st Cir 1988 Louisiana Code of Criminal Procedure article 1 894 sets forth the factors for the trial court to consider when imposing sentence While the entire checklist of La C art 894 need not be recited the record P Cr 1 must reflect that the trial court adequately considered the criteria therein State u Brown 02 La App 1 st Cir 5 849 So 566 569 2231 03 9 2d The articulation of the factual basis for a sentence is the goal of La C P Cr art 894 not rigid or mechanical compliance with its provisions 1 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 C art P Cr 1 894 State v Lanclos 419 So 475 478 La 1982 The trial judge should 2d review the defendanYs 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 State v Iones 398 So 1049 1051 La 1981 On appellate review of a sentence 2d 52 the relevant question is whether the trial court abused its broad sentencing discretion not whether another sentence might have been more appropriate State v Thomas 98 La 10 719 So 49 50 per curiam 1144 98 9 2d The defendant who was 78 years old at the time of sentencing asserts in brief that the eighty aggregate total of his four consecutive sentences year two effectively constitutes a life sentence On counts 1 2 and 4 he received the maacimum possible sentences The defendant argues that he did not use farce or threats of force and that his behavior was clearly not the most egregious and blameworthy of such offenses Further according to the defendant there was no indication that either M or L suffered any lasting harm from his actions B N Therefore the defendant argues that he should not have received maximum sentences and that the sentences should have been made concurrent rather than 4 consecutive Finally the defendant cites to S1ate v Johnson 97 La 1906 98 4 3 709 Sa2d 672 6 where the Louisiana Supreme Court found that to 77 76 rebut the presumption of the constitutionality of a mandatory minimum sentence the defendant must clearly and convincingly show that he is exceptional which means that because of unusual circumstances the defendant is a victim of the s legislature failure to assign sentences that are meaningfully tailored to the culpabiliry of the offender the gravity of the offense and the circumstances of the case Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct at least for a defendant without a prior criminal record See La C art 883 State v P Cr 2d Crocker 551 So 707 715 La App lst Cir 1989 However even if convictions arise out of a single course of conduct consecutive sentences are not necessarily excessive other factors must be taken into consideration in making this determination For instance consecutive sentences are justified where an offender poses an unusual risk to public safety State v Breland 97 La 2880 App lst Cir 11 722 So 51 53 98 6 2d In the instant matter the defendant scriminal conduct of sexually abusing young children clearly makes him a threat to the safety of the community Moreover his convictions did not arise out of a single course of criminal conduct The defendant ssexual abuse of L and M occurred at different times over a N B period of several months Under these circumstances the imposition of consecutive sentences did not render these sentences excessive See Crocker 551 2d So at 715 The sentences imposed for these offenses were within the statutory limits and did not constitute an abuse of discretion by the trial court See State v Palmer 97 La App 1 st Cir 12 706 So 156 160 0174 97 29 2d 5 Regarding the imposition of maximum sentences far three of the sconvictions this Court has stated that maximum sentences permitted defendant under statute may be imposed only for the most serious offenses and the worst offenders or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality State v Hilton 99 La App lst 1239 Cir 3 764 So 1027 1037 writ denied 00 La 3 786 So 00 31 2d 0958 O1 9 2d 113 As noted the defendant poses an unusual risk to the public safety Further the defendant actions as a sexual predator among the youth in his community s coupled with his complete lack of remorse for his actions as discussed below makes him the worst type of offender It is clear that the trial court provided sufficient justification for imposing maximum sentences See State v Mickey 604 Sa2d 675 679 La App lst Cir 1992 writ denied 610 So 795 La 2d 1993 In State u Dorthey 623 So 1276 1280 La 1993 the Louisiana 2d 81 Supreme Court opined that if a trial judge were to find that the punishment mandated by La R 15 makes no measurable contribution to acceptable S 5291 goals of punishment or that the sentence amounted to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he has the option indeed the duty to reduce such sentence to one that would not be constitutionally excessive In Johnson 709 2d So at 676 the Louisiana Supreme Court reexamined the issue of when 77 Dorthey permits a downward departure from a mandatory minimum sentence although specifically within the framework of the Habitual Offender Law While both Dorthey and Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application 6 to the penalties provided by La R 15 See State v Fobbs 99 La S 529 1 1024 99 24 9 744 So 1274 per curiam State v Collins 09 La App lst 2d 1617 Cir 2 35 So 1103 ll08 writ denied 10 La 10 46 So3d 10 12 3d 0606 10 8 1265 The defendant contends in his brief that his consecutive sentences should not only shock the conscience but showcase how the failure of appellate courts to reverse sentences has emboldened trial courts to do as they please as long as they do not exceed the statutory maximum sentence It is clear from the sentencing reasons that the trial court thoroughly considered La C art P Cr 1 894 particularly the defendant srefusal to accept responsibility far his actions in arriving at appropriate sentences Following are the trial court sentencing s reasons and its exchange with the defendant during sentencing The Court would note that we will be sentencing the defendant in accordance with the provisions of Louisiana Code of Criminal Procedure Article 894 1 The Court would note that the victims of the defendant were of tender years I believe the girl was 12 Defense Counsel She was 13 Your Honor at the time The Court All right And the boy was 7 at the time of the incident if my memory serves me correctly Needless to say the descriptions of the The Defendant d I like to speak Sir The Court Go ahead The Defendant 7 d I like for you and the District Attorney to lrnow that I did nof corrupt those young children They were corrupted a long time before they met me And I could go into details as to why I know that they were corrupt because they were indecent The Court Okay The Defendant And they approached me numerous times before I ever said a word The Court Okay So let me see if I understand this They asked you to spank them on their bare bottoms and they asked you to perform oral sex on the little girl and they asked you if the little boy could touch your privates The Defendant No She made him do that The Court Oh okay The Defendant The young lady tucked his hands behind him The Court Okay fine The Defendant and tried to force him The Court Is that it The Defendant Yes sir 8 The Court Do you have anything else to say Keep talking If you want to keep talking P11 be glad to answer You not making any points re with me The Defendant m I not trying to make points The Court Good The Defendant Pm just trying to let you know that I didn corrupt those young t children The Court Good But you took advantage of their corruptness is that the deal The Defendant It doesn matter t The Court I would imagine so Needless to say the defendant has not exhibited any remarse about what has taken place here today And the testimony that I listened to and that the Jury listened to was I thought particularly heinous And at this point in time to tell me that it is the fault of the children The Defendant I didn say it was their fault t The Court Okay Good And I don want to hear any more out of you t I think it well in line with what I heard during the course of s this subject 9 The Court s Let just for good measure run all of these sentences consecutive with one another And the Court is firmly convinced that to impose a lesser sentence would deprecate the seriousness of the offenses before me here today Considering the trial court careful review of the circumstances and the s nature of the crimes we find no abuse of discretion by the trial court The trial court provided sufficient justification in imposing maximum and consecutive sentences As the defendant noted whether a mandatory minimum sentence is constitutional is determined by a review of each individual case and each individual defendant To the extent that the defendant is suggesting he is exceptional he has not proven by clear and convincing evidence that he is exceptional such that the sentences would not be meaningfully tailored to the culpability of the offender the gravity of the offenses and the circumstances of the case See Johnson 709 So at 676 Accordingly the sentences imposed by 2d the trial court are not grossly disproportionate to the severity of the offenses and therefore are not unconstitutionally excessive The assignment of error is without merit CONVICTIONS AND SENTENCES AFFIRMED 10
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