State Of Louisiana VS Jason Frank St. Romain
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0419 J STATE OF LOUISIANA VERSUS JASON FRANK ST ROMAIN On Appeal from the 18th Judicial District Court Parish of Pointe Coupee Louisiana Docket No 73623 F Division A Honorable James J Best Judge Presiding Richard J Ward Jr District Attorney Attorneys for State of Louisiana Elizabeth A Engolio Assistant District Attorney Plaquemine LA Holli Herrle Castillo Louisiana Appellate Project Marrero LA Attorney for Defendant Appellant Jason Frank St Romain BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered September 10 2010 PARRO J The defendant Jason Frank St Romain was charged by grand jury indictment with five counts of aggravated rape violations of LSAR 14 He entered pleas of S 42 not guilty and waived his right to a jury trial After hearing all of the evidence the trial court determined the defendant was guilty of all counts and sentenced him to five terms of life imprisonment at hard labor without benefit of probation parole or suspension of sentence The trial court ordered that the sentences be served consecutively The defendant appeals asserting the following assignments of error 1 The motion for new trial should have been granted 2 The state failed to present sufficient proof to uphold the convictions 3 The sentences imposed were excessive Finding no error we affirm the convictions and sentences FACTS In 2004 the defendant had a friendly relationship with the victim family having s worked with the victim stepfather DC the victim was a twelveyearold girl at that s time On several occasions during 2004 and 2005 DC and her family spent time with the defendant family at the defendant False River camp DC also babysat for the s s s defendant twoyearold daughter on occasion DC testified that the defendant engaged in sexual intercourse with her during spring break in April 2004 at his camp where both families were staying for several days She explained that after everyone else had gone to bed the defendant gave her alcohol and then began fondling her He asked if she minded him rubbing on her arms and she said no The fondling progressed until the defendant had DC on the ground he pulled his pants down to his knees she took her pajama bottoms off and he climbed on top of DC and had vaginal intercourse with her Afterward the defendant said Please tell me you at least thirteen years old DC said she had just turned re twelve and the defendant told her not to tell anyone The following day he apologized to DC On another occasion after spring break but before Memorial Day the defendant 2 picked up DC to babysit He bought her daiquiris on the way to his house After the s defendant wife left for work in the early morning hours the defendant got DC off the couch and took her to his bedroom where he had a lot of sex with her in many different ways DC testified specifically that he penetrated her vagina while on top of her and was wearing a condom which he later took off Another time he put her on her hands and knees and had sex with her in that position DC testified that the defendant had sex with her many times but only ejaculated twice During that occasion the defendant told DC that he was making plans to take her to Mexico where it is okay to be in love despite their age difference The defendant also told DC that he loved her The next time that DC saw the defendant was on Memorial Day DC family s once again went as the defendant guests to his False River camp and DC brought her s friend DI as well On the last night they were at the camp after swimming and while everyone else was sleeping the defendant gave DC and DI some leftover alcoholic drinks He would say chug chug and tell them that the end was the best part After drinking for a while DI went inside to change out of her swimsuit and the defendant followed her inside DI testified that the defendant put his hand down her pants and put his finger in her vagina He also penetrated her vagina with his tongue DI testified that she told the defendant no because she did not want DC to be mad at her DI also testified that she saw the defendant and DC kissing during the Memorial Day weekend Approximately three more times over the summer of 2004 DC babysat for the s defendant child On the first occasion after Memorial Day while the defendant wife s was in the shower the defendant was on the couch with DC and began kissing her then moved her hands to touch him and then penetrated her mouth with his penis He also had vaginal intercourse with her on that occasion while his wife was asleep On another occasion the defendant bought DC daiquiris and took her to a pier and then to his house where he engaged her in vaginal intercourse He later told her that he clipped his fingernails and then digitally penetrated her vagina The last time 3 that DC babysat for the defendant that summer he again had vaginal intercourse with her DC testified that being raped by the defendant confused her and caused her to have many issues including depression bulimia and drug use DC explained that although she began receiving medical treatment and counseling she did not tell anyone about her relationship with the defendant She was afraid they would think badly of her She finally revealed what had occurred after her mother read a journal in which she had written about the defendant more than two years later MOTION FOR NEW TRIAL In his first assignment of error the defendant contends that the court erred in denying his motion for new trial because the court erred in impermissibly limiting his crossexamination of DC and in allowing testimony regarding other crimes into evidence The denial of a motion for a new trial is not subject to appellate review except for error of law See LSAC art 858 The decision on a motion for new trial rests P Cr within the sound discretion of the trial judge We will not disturb this ruling on appeal absent a clear showing of abuse of discretion State v Henderson 991945 La App 1st Cir 6 762 So 747 758 writ denied 002223 La 6 793 00 23 2d 01 15 2d So 1235 The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments State v Haygood 26 La App 102 2nd Cir 8 641 So 1074 1079 writ denied 942373 La 1 648 94 17 2d 95 13 2d So 1337 Generally a motion for new trial will be denied unless injustice has been done the defendant See LSAC art 851 P Cr LIMITED CROSS EXAMINATION A criminal defendant has the constitutional right to present a defense State v Blank 040204 La 4 955 So 90 130 cert denied 552 U 994 128 S 07 11 2d S Ct 494 169 L 346 2007 However the right to present a defense does not require 2d Ed the trial court to permit the introduction of evidence that is irrelevant or has so little probative value that it is substantially outweighed by other legitimate considerations in 0 the administration of justice See State v Mosby 595 So 1135 1139 La 1992 2d A conviction will not be overturned where the defendant does not show that he was prejudiced by a limitation of the cross examination of a witness State v Savoie 448 2d So 129 134 La App 1st Cir writ denied 449 So 1345 La 1984 2d In the present case the evidence showed that DC had two journals one that included details regarding the defendant rape of her and another that she s characterized as a dramatized story about DC and her boyfriend at the time The dramatized story indicated that DC lost her virginity to her boyfriend at some point after she alleged that the defendant raped her DC explained that she did not count having sex with the defendant as losing her virginity because it was not consensual The defendant wanted to ask DC questions about an apparent suicide attempt when she drank two bottles of cough syrup but the court sustained the state objections to s relevancy Because DC testified on direct examination that her issues resulted from being raped the defendant argued that he should be allowed to ask specific questions about an alleged suicide attempt The court responded that DC mental health was not s relevant to her age at the time she was raped or whether she was raped The state clarified that the only thing objected to was the question regarding DC drinking large amounts of cough syrup more than two years after the rapes occurred A short time later the defendant attempted to offer into evidence one of DC diaries in its entirety s The state objected and argued that most of the diary was irrelevant and that evidence of other relationships DC had that were discussed in the diary were irrelevant and inadmissible under LSAC art 412 The defendant agreed that everything in the E diary would not be relevant but nevertheless wanted it admitted in its entirety to show that DC never mentioned the defendant in it The state stipulated that the defendant was not mentioned in that particular diary After defense counsel suggested that the court read the entire diary the court stated ve I got better things to do I in the middle of a rape trial here m I just don start reading t I hope you don start pulling out some old t novels or something and introduce them I have all my time tied up in ll reading Listen you can allow you have that I going to sustain the m objection You can allude to other parts specifically I don have a t 5 problem with that If there something in there that you think is relevant s but I just don go off reading these things just to look for something that t might support your argument After some discussion about what was relevant within the diary the defendant offered into evidence and the court accepted a redacted paragraph deemed relevant to the case The court acted within its discretion in excluding evidence that DC may have attempted suicide more than two years after the defendant raped her and in excluding from evidence DC diary that failed to mention either the defendant or the fact that DC s had been raped See State v Chapman 410 So 689 702 La 1981 The 2d defendant was not prevented from asking questions about relevant issues discussed in the diary This portion of the defendant first assignment of error is without merit s ADMISSION OF OTHER CRIMES EVIDENCE Louisiana Code of Evidence article 412 addresses the admission of evidence of 2 similar crimes wrongs or acts in sex offense cases as follows 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 commission of another crime wrong or act s 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 This provision allows admission of evidence of other similar crimes even for general intent crimes such as aggravated rape when the victim in the case at issue is a child under the age of 17 See LSAC art 412 E A 2 Other crimes wrongs or acts involving sexually assaultive behavior or which indicate a lustful disposition toward children may be admissible if the probative value substantially outweighs the danger of unfair prejudice and confusion of the issues See 9 LSAC art 403 LSAC art 404 addresses the admissibility of other crimes E E 1 6 evidence generally and states as follows Except as provided in Article 412 evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith It may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding Generally a trial court ruling on the admissibility of evidence of other crimes will not s be overturned absent an abuse of discretion Mosby 595 So at 1139 2d The introduction of inadmissible other crimes evidence results in a trial error subject to harmlesserror analysis on appeal State v Johnson 941379 La 11 664 95 27 2d So 94 102 The defendant contends that the court should not have admitted evidence that the defendant sexually assaulted DI nor evidence that he rubbed the legs and arms of another of DC friends DC2 and attempted to unbutton DC2 pants while in bed with s s both DC and DC2 The defendant acknowledges that the evidence is admissible under LSAC art 412 but contends that those allegations included the suggestion that E 2 the defendant acted forcefully and non consensually allegations that were not made in the primary case Thus he contends the probative value was outweighed by the prejudicial effect The other crimes evidence showed that the defendant had attempted to engage or had in fact engaged in sexual contact with other twelveyearold girls showing the defendant to have a lustful disposition toward children The court properly admitted the evidence under Article 412 The fact that DI testified that she said no and that 2 DC2 indicated she did not want to have sexual contact with the defendant did not raise the prejudicial effect beyond the probative value of the evidence This portion of the s defendant first assignment of error is also without merit 7 SUFFICIENCY OF THE EVIDENCE In his second assignment of error the defendant challenges the sufficiency of the evidence to support his convictions for aggravated rape The crime of aggravated rape is defined in LSAR 14 in pertinent part as follows S 42 A Aggravated rape is a rape committed upon a person sixty five years of age or older or where the anal oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances 4 When the victim is under the age of thirteen years Lack of knowledge of the victim age shall not be a defense s Aggravated rape is a general intent crime State v Morgan 991895 La 6 01 29 791 So 100 103 per curiam 2d A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV LSAConst art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt Jackson v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 S Ct 2d Ed 1979 see also LSAC art 821 State v Mussall 523 So 1305 130809 P Cr 6 2d La 1988 When circumstantial evidence is used to prove the commission of an offense LSAR 15 requires that assuming every fact to be proved that the S 438 evidence tends to prove in order to convict it must exclude every reasonable hypothesis of innocence See State v Wright 980601 La App 1st Cir 2 99 19 730 So 485 486 writs denied 990802 La 10 748 So 1157 and 00 2d 99 29 2d 0895 La 11 773 So 732 This is not a separate test to be applied when 00 17 2d circumstantial evidence forms the basis of a conviction all evidence both direct and circumstantial must be sufficient to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt State v Ortiz 961609 La 10 701 So 922 97 21 2d 930 cert denied 524 U 943 118 S 2352 141 L 722 1998 S Ct 2d Ed The trier of fact determination of the weight to be given evidence is not subject s to appellate review An appellate court will not reweigh the evidence to overturn a fact s finder determination of guilt State v Taylor 972261 La App 1st Cir 9 98 25 721 So 929 932 2d The defendant contends that his conviction is based solely upon DC testimony s unsupported by physical evidence and fraught with inconsistencies He suggests that s DC credibility is questionable because she had two diaries only one in which she wrote about the defendant raping her which he argues she left in the open after being punished so that her mother would find it The defendant contends that DC was trying to take the spotlight off of her relationship with her boyfriend and put it on the defendant On the contrary DC testimony was clear unequivocal and supported by the s testimony of other witnesses including DI DC2 Rebecca St Romain who was the s defendant exwife and JE who was DC sister s DC testified that the defendant penetrated her vagina with his penis on at least five occasions DC sister testified that s DC told her shortly after it happened that she had had sex with the defendant DI testified that she saw the defendant and DC fondling and kissing one another DC2 corroborated that the defendant snuck into DC room in the middle of the night s through her window and did not leave until the sun was rising Rebecca St Romain testified that she heard the defendant on the phone with DC in late evening hours and she verified that DC was alone in her house on several occasions with the defendant Furthermore i the absence of internal contradiction or irreconcilable conflict n with physical evidence one witness testimony if believed by the trier of fact is s sufficient support for a requisite factual conclusion State v Brown 031076 La App 1st Cir 12 868 So 775 782 writ denied 040269 La 6 876 03 31 2d 04 4 2d So 76 In its reasons for judgment the court detailed the incidents that supported each count of aggravated rape and noted that if he believed DC then he would find the defendant guilty and if he did not believe her then he would find the defendant to be not guilty The court then stated So she was twelve no question Was she telling the truth Of course she was you bet D And I listen carefully and it kind of nice not to have to make s these decisions but the jury makes them and in this case compared to all of the cases some of them I say it was close not so close but if I was d going to grade veracity for the truth on zero I don believe them at all a t hundred beyond a reasonable doubt beyond all doubt and everything else in the middle somewhere in between DC sweetheart you hit a hundred You hit a grand slam We will not disturb the court credibility determination After a thorough review s of the record we are convinced that viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of five counts of aggravated rape The defendant second s assignment of error is without merit EXCESSIVE SENTENCE In his third assignment of error the defendant acknowledges that the court had discretion in sentencing him to five life sentences but argues that the sentences are excessive because the court ordered them served consecutively The penalty provision of the aggravated rape statute LSAR 14 S 42 1 D provides Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole probation or suspension of sentence The five counts of aggravated rape arose out of separate facts and represented five distinct convictions Had the offenses been tried separately the defendant would have received the mandated sentence of life imprisonment in each case and could have been ordered to serve them consecutively The fact that the offenses were tried in one trial is of no consequence In sentencing the defendant the court stated A person of trust Defendant you took a twelve year old child and you just abused her repeatedly while her folks lay in the other room Repeatedly you plied daiquiris to her Not any daiquiris you got Sex on the River was the name of the daiquiris you plied to her You secreted her out and went and got the daiquiris Do you fall in love with a twelve year old or is this just some perverted lust which is wrong with people your age thirty something 10 years old having sex with a twelve year old You told her you loved her You wanted to go to Mexico where people like you could do to children south of the border which is against the law here And then I find out later you were drug screened you tested positive for marijuana cocaine and methamphetamines that why you s were jumping out of your skin during closing arguments Now that just all fits the picture of somebody that shy of a homicide taking a twelve s year old child and repeatedly abusing her Under these circumstances I would suggest there is no unconstitutionality about this sentence It is most appropriate where do you draw the line Under ten you get life Oh that not fair Ten year old s s she ten years old Six years old Well the legislators had to draw a line somewhere so they drew it at the T s under thirteen life And that what you get Mr St Romain s I thought about giving you six months on each for contempt of court for popping off at the mouth and running that consecutive but I ll give you that If that what made you feel good after what you did to s this child it okay s The sentences are to run consecutive for five life sentences which you will serve at our infamous prison called Angola without the benefit of probation parole nor suspension of sentence that is the law You have two years to file any post conviction relief In response to the defendant motion to reconsider sentence the court stated s All right Insofar as the motion to reconsider under 881 the 1 Court finds that the legislators in their infinite wisdom were absolutely are correct in this Court opinion that this man should get life s imprisonment for having sex with a twelve year old child On 883 concerning concurrent and consecutive sentences let it be known that this was five separate acts and the heinousness of them that he deserves that in the event he deserves five consecutive life sentences It should be ensured that after what I learned in this trial that he never ve steps forth on free ground ever again In State v Foley 456 So 979 981 La 1984 the Louisiana Supreme Court 2d discussed the penalty for aggravated rape noting that the mandatory life sentence for aggravated rape is a valid exercise of the state legislature prerogative to determine s the length of sentence for crimes classified as felonies Louisiana Code of Criminal Procedure article 883 provides in pertinent part If the defendant is convicted of two or more offenses based on the same act or transaction or constituting parts of a 11 common scheme or plan the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively Here the court expressly directed that the sentences be served consecutively The court properly reasoned that the state presented five separate and distinct counts of aggravated rape perpetrated by the defendant against DC Further the court recognized the heinous nature of the offenses and noted that the safety of the community mandated that the defendant never again walk free We cannot say that the sentences are grossly disproportionate to the severity of the crimes considering the harm that the defendant caused to society and his potential for further harm The court did not abuse its discretion in ordering that the sentences be served consecutively This assignment of error is without merit REVIEW FOR ERROR The defendant asks that this court examine the record for error under LSA P Cr C art 920 This court routinely reviews the record for such errors whether or 2 not such a request is made by a defendant Under Article 920 we are limited in our 2 review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors See State v Price 052514 La App 1st Cir 12 952 So 112 12325 en banc writ denied 070130 La 06 28 2d 08 22 2 976 S0 1277 2d CONCLUSION Having found no merit in the defendant assignments of error the convictions s and sentences are affirmed CONVICTIONS AND SENTENCES AFFIRMED 12
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