STATE of Louisiana v. Edward DIXON.
No. KA-2931.
Court of Appeal of Louisiana, Fourth Circuit.
June 5, 1985.
471 So. 2d 282
Calvin Johnson, Supervising Atty., New Orleans, for defendant-appellant Edward Dixon.
Before SCHOTT, KLEES and ARMSTRONG, JJ.
KLEES, Judge.
Defendant was convicted of one count of carnal knowledge of a juvenile, a violation of
Errors Patent:
A review of the record for errors patent reflects that the trial court failed to wait twenty-four hours after the denial of defendant‘s motion for new trial before sentencing. Such error is considered harmless unless prejudice is shown by the defendant. State v. Brogdon, 426 So. 2d 158 (La. 1983); State v. White, 404 So. 2d 1202 (La. 1981). Defendant has not made any showing of prejudice. Therefore, this error is harmless.
The record also reveals that the defendant was not arraigned. However, any irregularity in the arraignment proceeding, including the failure to arraign defendant, is waived if the defendant proceeds to trial without objection.
Assignments of Error:
It is contended that the State failed to prove all the elements of the crime charged. To support a conviction under
In its denial of defendant‘s motion for a post judgment verdict of acquittal, the trial court noted that, although it was aware that the prosecution had never asked whether the victim was unmarried, there were sufficient circumstances from which the jury could have concluded that she was unmarried, including:
- The child-like appearance of the victim at trial (she was very small with pigtails);
- Her school attendance in the 9th grade at the time;
- The fact that the victim went to the child protection agency;
- The fact that the victim lived with her mother and siblings;
- The medical report admitted into evidence by the defense, which refers to the victim as single.
Defense counsel argues that under the holding of State v. LaBorde, 234 La. 28, 99 So. 2d 11 (1958), there was no affirmative proof from which the jury could have determined that the victim was unmarried. In LaBorde, the State sought to use the fact that the defendant offered to marry the victim as proof that she was unmarried at the time of the offense. The court stated that this did not “confer upon the jury the right to infer that she was unmarried ...” Id. 99 So. 2d at 12. The present case differs from LaBorde in that the jury was able to see a medical report which referred to the victim as single. Neither the State nor the defendant elicited any testimony to contradict this affirmative documentary evidence. Therefore, the jury could have reasonably inferred that the victim was unmarried. We find that the State sufficiently proved this fact.
With regard to the victim‘s consent, we also find that the State sufficiently proved this element of the crime. Consent is a factual determination made by the jury, which we cannot overturn in the absence of manifest error. Canter v. Koehring Co., 283 So. 2d 716 (La. 1973). Defense counsel contends that the victim‘s testimony that the defendant had slapped her and had threatened her and her sister negated the element of consent necessary to support a conviction. We disagree. The victim testified that she and the defendant, her mother‘s boyfriend, had engaged in sexual intercourse on numerous occasions. She also stated that, in order to please her mother, she had gone voluntarily to the defendant‘s home nearly every weekend
The final contention asserted by defendant‘s counsel is that the trial court erred in denying his motion requesting special jury instructions and in denying his motion for a new trial based upon the court‘s failure to give those jury charges. The requested instructions would have given the jury the elements of
This argument is without merit. The trial court is not obligated to give jury instructions on every crime that might be supported by the evidence, but only on the crime charged and its lesser included offenses.
As previously noted, defendant himself has filed a separate document with this court in which he alleges numerous assignments of error. After a careful review of the record, we find the majority of these assignments to be totally without merit. A few, however, do warrant some discussion.
In his Assignments of Error # 11-13, defendant contends that the trial court committed reversible error when it allowed a coroner‘s report on the victim to be introduced without any testimony from the doctor who did the examination and without the State having laid a proper foundation. Although this contention may have merit, we need not consider it on appeal because defense counsel did not object to the introduction of the report at trial. (Rec.Vol. I, tr. p. 163). See
In Assignment of Error # 24, defendant contends that it was reversible error for the trial judge to refuse to order a presentence investigation. We find no error here because such an investigation is not a right of the accused, but merely an aid to the court. State v. Bell, 377 So. 2d 275 (La. 1979); State v. Howard, 262 La. 270, 263 So. 2d 32 (1972).
Finally, in Assignment of Error # 25, the defendant contends that he received an excessive sentence. The defendant was sentenced to ten years imprisonment at hard labor, which is the maximum penalty that can be imposed for the crime he committed.
The Louisiana Constitution prohibits “cruel, excessive or unusual punishment.”
To insure adequate review by the appellate court, the trial court must indicate on the record the factors it has considered in imposing sentence in the record.
In this case, the trial judge listed as aggravating circumstances the severe trauma to the young victim and the probable long term effects of the crime on her. The judge also stated that she considered as mitigating circumstances the defendant‘s poor health, the fact that he is a Veteran, and the fact that he took care of the victim‘s family to a great extent and had a child with the victim‘s mother. Despite these circumstances, however, the trial judge felt the maximum punishment was warranted because of the seriousness of the offense. We agree.
Where compliance with
Accordingly, for the reasons stated, we affirm defendant‘s conviction and sentence.
AFFIRMED.