State Of Louisiana VS Seletha Bell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0789 STATE OF LOUISIANA VERSUS SELETHA BELL f f Judgment Rendered DEC 21 2012 On Appeal from the Twenty Judicial District Court Second In and for the Parish of Washington State of Louisiana No 10 CR8 111244 Honorable William J Crain udge Presiding Counsel for Appellee Walter P Reed District State of Louisiana Attorney Lewis V Murray III Assistant District Attorney Franklinton Louisiana And Kathryn Landry Baton Rouge Louisiana Counsel for Defendant Appellant Lieu T Vo Clark Mandeville Louisiana BEFORE Seletha Bell WHIPPLE McCLENDON AND HIGGINBOTHAM JJ McCLENDON 7 Defendant Seletha L Bell was charged by bill of information with sexual battery count one and aggravated battery count two in violation of LSA S R 1 43 14 and LSA 14 She entered a plea of not guilty After a trial by S R 34 jury defendant was found guilty as charged on both counts Subsequentiy the trial court sentenced defendant to five years imprisonment at hard labor on count one and two years imprisonment at hard labor on count two The trial court ordered that the sentences be served concurrently The trial court denied s defendant oral motion to sentence reconsider Defendant now appeals assigning error to the trial court denial of her motion to reconsider sentence s and the constitutionality of the sentences For the following reasons we affirm the convictions and sentences STATEMENT OF FACTS Between October 18 2010 and October 20 2010 eighteen T old year C the victim spent two nights at a residence in Bogalusa that was being occupied by twenty defendant and nineteen codefendant Monique old year one old year Colter who were his neighborhood friends During the visit defendant used her cell phone to video record herself and codefendant as they physically and sexually assaulted the victim According to the victim the codefendants beat him with a pipe and belts gave him a aicoholic beverage and made him nasty smoke marijuana They would not allow him to leave the home forced him to remove his clothing at knifepoint and stuck a broomstick up his ass The victim confirmed that the stick was inserted and that it was painful and against his will The victim further stated that the codefendants burned him with a cigarette lighter down below The victim testified that the ordeal lasted for about two hours The victim exited the residence later in the morning while the codefendants were still asleep Detendant was charged and tried with codefendant Monique Colter Codefendant Colter was also found guilty as charged on both counts She is not a party to this appeal Z Herein the victim will be identified by initials to protect his identity LSA 46 S R 1844W 2 Shortly after the victim got home on October 20 2010 he told his mother about parts of the incident and she took him to the hospital where according to the medical records he divulged the physical assault but not the sexual assault Thus a full examination was not conducted although it was noted that the victim had bruises and abrasions After they left the emergency room the victim reported the incident to the Bogalusa Police Department on October 20 2010 and was interviewed by Captain Kendail Bullen on October 25 2010 The victim was referred back to the hospital where he again did not disclose the full nature of the incident Reportedly the codefendants showed the video recordings to Rochelle and Rashanda Magee also Bogalusa residents and acquaintances of the victim and codefendants and both girls gave written statements to the police and later testified at the trial regarding their observations In seventeen old year s Rashanda written statement she stated she observed the victim unclothed at the time being beaten with a belt she added at the trial that she also saw him being burned with cigarette lighters down in his crotch area and playing with his self Further twenty Rochelle testified that she observed one old year one of the codefendants she couldn distinguish which one sticking a drinking t straw and mop or broom handle up his the victim butt She also saw the s victim being burned with cigarettes and a cigarette lighter on the legs and private area punched in the head and hit in the face as he ducked The police were unable to recover the video recordings from defendanYs cell phone ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO In a combined argument defendant contends that the trial court shouid have granted her motion constitutionally excessive to reconsider sentence as the sentences are Defendant notes that at the time of the sentencing she was a twenty woman who had no prior adult criminal record old year two Defendant further contends that the trial court erred in considering an element of the aggravated battery offense the use of a dangerous weapon as an aggravating sentencing factor in this case 3 She notes that she received a disability check and is also a person of limited capacity contending that she may have been unable to s appreciate the victim mental deficiencies Further defendant alleges that her codefendant received a more lenient sentence although her convictions were based on the same facts Finally defendant notes that she is not the worst offender and this is not the worst type of sexual battery or aggravated battery The Eighth Amendment to the United States Constitution and Article I Section 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 A sentence is 2d 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 one sense of justice The sentence imposed will not be set s aside absent a showing of manifest abuse of the trial court wide discretion to s sentence within the statutory limits State v Andrews 94 La 1 Cir 0842 App 95 5 655 So 448 454 2d Louisiana Code of Criminal Procedure article 894 sets forth the factors 1 for the trial court to consider when imposing sentence While the entire checklist of LSA art 894 need not be recited the record must reflect the trial P Cr C 1 court adequately considered the criteria article In light of the criteria expressed by 1 894 a review for individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis s for its sentencing decision State v Brown 02 La 1 Cir 5 2231 App 03 9 849 So 566 569 2d Ten years is the maximum term of imprisonment for both offenses herein sexual battery and aggravated battery and a fine of not more than five thousand dollars may be imposed for the offense of aggravated battery 1 1C S 43 R 34 14 LSA 14 S R LSA Thus the five sentence imposed on the year 4 sexual battery conviction is mid while the two sentence imposed on range year the aggravated battery conviction is at the lower end of the sentencing range While defendant alleges that codefendant received a li g hter sentenc in 9 it is well established that sentences must be individualized to the particular offender State v Batiste 594 So 1 3 1 Cir 1991 Additionally it is within 2d La App the purview of the trial court to particularize the sentence because the trial judge remains in the best position to assess the aggravating and mitigating circumstances presented by each case State v Cook 95 La 5 2784 96 31 674 So 957 958 cert denied 519 U 1043 117 S 615 136 L 539 2d S Ct 2d Ed 1996 per curiam According to his mother the victim has psychological disorders receives Social Security benefits and was in special education programs at school She knew the codefendants as neighborhood acquaintances and the instant offenses were committed when she allowed him to stay overnight with them She stated that when the victim returned he was acting abnormally and she knew something was wrong The victim ultimately told her the codefendants gave him marijuana and alcohol at the time of the offenses She observed bruises belt whelps and burn marks on her son body She stated that her son has been s hesitant to talk about the details of the incident Based on the testimony presented by the Magee sisters at the trial defendant was proud of her actions passing on the details of what she and codefendant did to the white boy and displaying the video footage In sentencing defendant the trial court reviewed a presentence investigation report PSI and noted defendant age her juvenile criminal s record and her lack of an adult criminal record As further noted by the trial court at the sentencing unlike codefendant defendant did not express remorse for her actions The trial court noted the nature of the offenses and the victim s vulnerability and mental deficiencies that defendant knew or shouid have known about The trial court also noted that the trial evidence and PSI indicated that defendant was the primary instigator of the acts that took place and that a 5 dangerous weapon and threats of violence were used in connection with the offenses The trial court noted that there was an undue risk that defendant would commit another crime if not incarcerated We find no error in the trial court observations regarding defendanYs use s of a weapon The trial judge took cognizance of the criteria set forth in LSA P Cr C art 894 The use of a dangerous weapon is an element of only one of 1 the offenses aggravated battery and was therefore properly noted as an aggravating sentencing factor herein At any rate this court will not set aside a sentence on the ground of excessiveness if the record supports the sentence imposed LSA art 881 Considering the great discretion afforded the P Cr C 4D trial court in fashioning defendant punishment and bearing in mind the heinous s nature of the instant crimes we find that the record provides ample justification for the sentences imposed herein The sentences imposed are not grossly disproportionate to the severity of the offenses or shocking to the sense of justice and therefore are not unconstitutionally excessive Thus we find no error in the trial court denial of defendant oral motion to reconsider sentence s s The assignments of error lack merit CONVICTIONS AND SENTENCES AFFIRMED 6
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