11 Ruth E. Morrison was convicted by a jury of aggravated rape and aggravated oral sexual battery and received concurrent sentences of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence on the rape conviction and 20 years at hard labor for the battery conviction. Morrison appeals urging five assignments of error. Morrison’s convictions and sentences are affirmed.
Facts
In 1997, Morrison was charged with the aggravated rape and aggravated oral sexual battery of then nine-year-old J.M. More specifically, the bill of indictment alleged that Morrison aided and abetted her husband, Danny R. Morrison, in his having vaginal intercourse with J.M. and that Morrison had oral sex with the child.
lain April of 1997, Morrison asked J.M.’s aunt,
1
who was a family friend, if J.M. could spend the weekend at her house to attend a church function with her on Sunday. When J.M. arrived home on Sunday,
Following the execution of the search warrant, Morrison and her husband were arrested. Danny Morrison pled guilty to aggravated rape and was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence in May of 1998. Morrison originally entered a plea of not guilty but issues were raised concerning her competency to proceed to trial. After a sanity hearing, the court concluded |Rthat Morrison was unable to proceed to trial due to an inability to understand the proceedings against her and to assist counsel in her defense. As a result of her incompetence, Morrison was committed to a state mental institution.
After approximately 8 years, on August 6, 2008, the court deemed Morrison competent to proceed to trial, and ordered that she be returned to the custody of the Jackson Parish Sheriffs Office. In preparation for the sanity hearing, Morrison was examined by Dr. James B. Pinkston, Ph. D., M.P. In his report dated March 11, 2008, Dr. Pinkston stated that he was hired by “Ms. Morrison’s attorney to help determine her sanity at the time of the alleged offense, her ability to proceed to trail [sic ] and her capacity to assist counsel.” In his evaluation, Dr. Pinkston considered all of the mental health difficulties that Morrison had in her life. He ultimately concluded that she was capable of assisting with her defense and communicating with her attorneys. Most importantly, Dr. Pinkston found that at the time Morrison committed the offenses she was able to distinguish between right and wrong. Specifically, he noted:
Evidence indicates that Ms. Morrison possesses sufficient cognitive resources to allow her to appreciate the appropriateness and potential wrongfulness of her behavior, and she indicated feeling that her behavior was wrong at the time of her offense.
|/Thereafter, on February 17, 2009, Morrison withdrew her former plea of not guilty, and entered a plea of not guilty and not guilty by reason of insanity. A joint motion to consolidate the charges was granted by the trial court. Following the conclusion of the jury trial, Morrison was found guilty as charged. She received concurrent sentences of life in prison at hard labor, without benefit of parole, probation, or suspension of sentence on the aggravated rape conviction and 20 years’ imprisonment at hard labor for the aggravated oral sexual battery conviction. After a timely motion for reconsideration of sentence was denied, this appeal by Morrison ensued.
On appeal, Morrison raises issues of insufficient evidence to convict her of both offenses, ineffective assistance of trial counsel, and court error.
Discussion
I.
Morrison argues that there is insufficient evidence to prove her guilt for the offense of aggravated rape beyond a rea
15At the time of the offense, La. R.S. 14:41 in pertinent part, provided: 3
A. Rape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent.
B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however' slight, is sufficient to complete the crime.
Likewise, La. R.S. 14:42 provided in pertinent part, 4
A. Aggravated rape is a rape committed upon a person ... where the anal 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:
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(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act.
A violation of La. R.S. 14:41 occurs when there is any penetration, however slight, of the aperture of the female genitalia, even its external features.
State v. Bertrand,
In this matter, Morrison was charged as a principal to aggravated rape. The law of principals as set forth in La. R.S. 14:24 provides:
IfiAll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.
At the time of the offense, La. R.S. 14:43.4 defined aggravated oral sexual battery in pertinent part as follows: 5
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(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act without the consent of the victim.
La. R.S. 14:18 provides in pertinent part:
The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
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(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed[.]
|7The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Jackson v. Virginia,
The
Jackson
standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed,
The defense of justification is an affirmative defense that must be proven by a preponderance of the evidence.
State v. Cheatwood,
The state presented the testimony of Chief Criminal Deputy Stephen Watts who testified that he received the initial report of the subject crime on April 18, 1997. On that date, Deputy Watts spoke with J.M. who reported that Morrison and her husband had “sexually assaulted” her. J.M. also informed Deputy Watts about the videotape of the incident. Accordingly, Watts procured a search warrant of the Morrison home. Deputy Watts testified that a videotape depicting the crime was seized from the Morrison home. He stated that he viewed the tape which was later introduced into evidence. Deputy Watts identified J.M., Morrison and Danny Morrison from the video. He stated that from this incident, Danny Morrison pled guilty to aggravated rape. Evidence of Danny Morrison’s judgment of conviction was | mintroduced into evidence. Deputy Watts was present when Morrison was arrested and did not notice any bruising on her person; he also testified that Morrison appeared coherent at the time.
The videotape of the crime was played for the jury. The video begins with the victim sleeping fully dressed. The next scene in the video shows the victim totally nude with her legs spread wide open by Morrison. The defendant’s husband is filming the scene and at some point focuses the camera directly on the victim’s vagina. Morrison can be heard promising the victim $10 “to do whatever she wants” and a “bicycle” for her participation. During the filming, Morrison states that in order to get $10 and a bicycle the victim “has to play with him [the husband] as much as he plays with you [the victim].” After that, the defendant encourages her husband to stop filming and join them. Morrison’s husband then comes over and performs oral sex on the victim for several minutes. During the videotape, Morrison’s husband performs oral sex on the victim on more than one occasion. The defendant also clearly performs oral sex on the victim. While doing that, the victim is forced to rub on the husband’s penis and to perform oral sex on him.
The video shows that the victim’s vagina was digitally penetrated by both the defendant and her husband on at least 4 to 5
Dr. Randolph Williams, Winn Parish Coroner, testified concerning the results of his medical examination of J.M., who he testified was under the age of 12 at the time. Dr. Williams testified as follows:
Q. All right. What are the results of any of your findings of the examination that you made of [J.M.] with reference to the organs that you’ve described?
A. Okay, specifically, from the report, physical examination. Introitos, that the opening to the vagina itself ... The introitos is noted to be red, irritated, and that is the entire round circular area in the beginning of the vagina. That’s called the in-troitos. Okay, it’s red, irritated, and inflamed.
Q. Okay, How about the hymen ring, did you make-
[ 12A. Hymenal ring shows evidence of recent, recent partially healed tears. Very red, inflamed and irritated, and painful to the touch.
Dr. Williams could not specify whether a finger or a penis caused the entrance to J.M.’s vagina to be inflamed, although he did not find anything inconsistent with penile penetration.
J.M., who was 21 years old at the time of trial, testified that Morrison put her mouth or tongue on J.M.’s vagina. J.M. also testified that Morrison’s husband “put his penis” against her vagina, but she could not recall if he penetrated her. J.M. stated that Morrison assisted her husband in that act. J.M. stated that at some point during the weekend, she asked Morrison whether she could go home. Morrison told her that her aunt and uncle were at a casino and that J.M. could not go home. J.M. testified that she never heard Morrison’s husband threaten Morrison, yell at her or hit her. Morrison never told the child that her husband made her do those things. Morrison told J.M. not to tell anybody, and she offered her a bike and money in exchange for the child’s silence.
The defense presented several witnesses on Morrison’s behalf. Arvie Huckaby, Morrison’s sister, gave an overview of Morrison’s life. She indicated that her sister had been married 5 times and all 5 spouses were abusive. With respect to Danny Morrison, Huckaby relayed several violent | ^assaultive incidents that she witnessed. On one occasion, Danny Morrison went to Huckaby’s house armed with a gun and told her he would kill her if she interfered with his marriage. Morrison was present and observed the incident. After this incident, Morrison would visit Hucka-by’s home but was only allowed to stay for 15 minutes at a time. At one point, Danny Morrison told Huckaby “if you call her, I will kill her.” Finally, Morrison’s husband showed Huckaby a map of his stepfather’s property and said that he would kill Morrison and bury her there.
Terry Folden, who is related by marriage to Morrison, testified that she witnessed Morrison’s husband straddle Morrison with his knees on each side of her
Debbie Clifton, Morrison’s daughter, also testified. She was present for the incidents described by Huckaby and offered similar testimony which supported Huckaby’s contentions. Additionally, Clifton testified that on two occasions Danny Morrison nailed the doors to the family residence shut from the outside so that Morrison could not get out of the house.
Dr. Dennis Kelly, an expert in psychiatry and clinical director of the Greenwell Springs Hospital, an acute psychiatric facility, testified that at the |14time of her arrest, Morrison suffered from a delusional disorder, although he was not sure of the full extent of the illness. She claimed to be a model, singer, college teacher, sheriff and private investigator upon her admission to the hospital in 2000 and denied being the person who had harmed J.M. Dr. Kelly stated that in his opinion he could say with “reasonable degree of medical certainty” that Morrison “had an emotional reaction to what happened in this case ... that was a very strong reaction and that given her underlying psychiatric vulnerabilities ... caused her to have what we would call a psychotic break with reality.” Dr. Kelly also diagnosed Morrison with paraphilia, deviant sexual arousal or deviant sexual behavior that does not necessarily rise to the level of pedophilia.
On cross-examination, Dr. Kelly admitted that when Morrison began to admit her identity and participation in the crime in 2004, she never asserted that her husband forced her to participate in the crime.
Rachel Scott, a domestic violence expert, testified that she had reviewed the instances of violence committed by Morrison’s husband against Morrison and concluded that she was a victim of domestic violence and that she was in fear for her safety from Danny Morrison. Scott testified that because of Morrison’s limited cognitive functioning, she was more vulnerable to intimidation and control than other women who might have a | ^different background and level of functioning. Scott testified that Morrison was in survival mode and would do whatever it took to avoid the abuse inflicted by her husband, including commission of criminal acts.
Dr. Mark Vigen, Ph.D., a clinical psychologist, reviewed all of Morrison’s records and he, along with members of his staff, interviewed her. Dr. Vigen found that Morrison had an IQ range of 65-75, was a mildly retarded, passive, dependent person who relied on others for direction. Dr. Vigen testified that Morrison had a history of mental illness including undirected paraphilia. Dr. Vigen stated that Morrison has external locus of control, meaning that she felt she had no power in her life. He admitted that such an external locus did not necessarily indicate criminal activity. Dr. Vigen testified that Morrison fit the psychological definition of an individual with battered wife syndrome. He explained that battered women minimize and rationalize and deny the wrong behavior they perform for their spouses. Similar to Scott, Dr. Vigen also found that Morrison was living in fear of her husband and was in survival mode. This caused her to do things out of fear and avoidance of violence.
On cross-examination, Dr. Vigen admitted that Morrison’s truthfulness would have an impact on his opinions. He testified that although both he and Dr. Pinkston had concerns about Morrison’s truthfulness in the 11fiIQ testing, extensive testing did not indicate that Morrison was a malingerer in regard to her delusional disorder.
Additionally, the record does not contain a preponderance of evidence to support Morrison’s claim that her commission of either offense was justified. While the testimony presented during Morrison’s case-in-chief supports her contention that she suffered abuse at the hands of her husband, |17the evidence does not show that at the time she committed either offense she was in imminent peril of great bodily harm, or reasonably believed herself or others to be in such danger. In stark contrast, the testimony presented by the State established that: (1) Morrison alone brought J.M. to her residence; (2) before and during the offenses, J.M. did not observe Danny Morrison threaten the defendant; (3) before the offenses occurred Morrison lied to J.M. to keep her at the residence after J.M. asked to return home; (4) after the offenses Morrison offered J.M. money and gifts to keep quiet; (5) when Morrison returned J.M. home, she made no mention of the offenses; (6) the videotape of the incident does not reveal Morrison’s husband threatening her in any way, but instead shows her participating willingly in the acts of abuse committed by her husband against J.M.; and (7) Morrison committed independent crimes against the child. Because the evidence presented by the State is wholly inconsistent with any claim of immediate peril, Morrison’s claim of justification lacks merit.
II.
In her second assignment of error, Morrison argues that her trial counsel’s performance was deficient because he failed to proceed with her defense of not guilty by reason of insanity. She claims that her lawyer [ 1simpermissibly abandoned the defense without adequate information to do so. She also claims that there is no evidence in the record to establish whether her competency at the time of the offense was ever tested.
Although a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief rather than on appeal, this Court may resolve the issue on direct appeal if the record is sufficient. La. C. Cr. P. art. 930;
State v. Willars,
27,394 (La.App.2d Cir.9/27/95),
To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient.
Strickland v. Washington,
Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable.
Strickland, supra.
The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings.
Id.
Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different.
Id.; State v. Pratt,
26,862 (La.App.2d Cir.4/5/95),
_[2¡¡In Louisiana, a legal presumption exists that a defendant is sane at the time of the offenses. La. R.S. 15:432. To rebut this presumption of sanity and avoid criminal responsibility, defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La. C. Cr. P. art. 652.. Criminal responsibility is not negated by the mere existence of mental disease or defect. To be exempted of criminal responsibility, defendant must show she suffered a mental disease or mental defect which prevented her from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14;
State v. Silman,
95-0154 (La.11/27/95),
In this matter, Morrison chose to go to trial maintaining a plea of not guilty by reason of insanity. At trial, the defense presented the only expert testimony regarding the issue of Morrison’s mental health. Nevertheless, both experts limited their opinion testimony to the consideration of the battered spouse syndrome, with neither being asked for an opinion regarding Morrison’s ability to distinguish between right and wrong at the time of the offense. In fact, in closing arguments, defense counsel conceded that the experts were not asked that question because “that’s not our defense in this case.” The earlier psychiatric assessment of Morrison by Dr. Pinkston, who Li had indicated in his opinion that Morrison was able to distinguish between right and wrong at the time of the offense, was not presented to the jury. Thus, from the record before us, a complete understanding of the abandonment of the insanity defense cannot be gained for a determination of whether ineffective assistance of counsel occurred. With this insufficiency in the present rec
III.
In her third assignment of error, Morrison contends that the trial court erred in refusing to grant her pretrial motion to suppress the search warrant because the description of the place to be searched was inadequate. More specifically, Morrison argues that the search warrant was invalid because it incorrectly stated that the Morrison house was the only house at the end of the driveway. As a result, Morrison argues that the videotape seized as a result of the search should have been suppressed and her convictions reversed.
Both at the pretrial hearing and trial, Jackson Parish Sheriffs Deputy Stephen Watts testified regarding his preparation and execution of the search | ^warrant at issue. Deputy Watts obtained the search warrant for the Morrison residence after speaking with J.M. Deputy Watts, who was familiar with the location of the Morrison residence, drove there and took pictures of the residence to attach to his search warrant. The application for the search warrant described the residence as follows:
if one was traveling south on U.S. Highway 167 from Jonesboro, toward Winn-field, you would enter the community known as Wyatt, you would turn left onto Louisiana 505 and travel east 1.5 miles, and you find a mailbox on the left side of the road with the name DANNY in orange letters on top of the mailbox. The driveway is at the mailbox. You would turn to the left off of highway 505 into the driveway, you would travel approximately 400 feet to the only residence on the driveway. The residence is at the end of the driveway and consists of a barn type structure and an upstairs area that contains the residence. This residence is known by affi-ant to be the residence of Danny and Ruth Morrison.
The law addressing this issue is provided in La. C. Cr. P. art. 162, which states:
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
A search warrant shall particularly describe the person or place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search or seizure.
123The description contained in the search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with reasonable probability that they will not search the wrong premises.
State v. Korman,
In this case, the residence which was searched by the police was “particularly described” in the warrant. In fact, the search warrant specifically describes the route Deputy Watts took in order to arrive at the Morrison residence. More
IV.
Morrison argues that the trial court erred by failing to grant a mistrial when the prosecutor referred to her affirmative defense of justification as an excuse. She claims that this description of her defense by the prosecutor was an inaccurate statement of the law and prejudiced her defense.
During voir dire, the prosecutor stated that an affirmative defense “is basically for lack of a better word, an excuse.” Morrison’s trial counsel moved for a mistrial which was denied by court. In so ruling, the trial judge stated:
And I’m concerned about the language but I don’t think the defendant has been prejudiced at this point and if we move forward and be more careful about telling the jury that they think the Judge is going to instruct them as to what the law may be.
When the jury returned to the courtroom, the trial judge admonished them that comments made by lawyers were not necessarily the correct law and he would instruct them on the law whenever the appropriate time came.
La. C. Cr. P. art. 775 provides in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.
12r,A prosecutor’s misstatements of the law during voir dire examination, or in his opening and closing remarks, do not require reversal of a defendant’s conviction if the court properly charges the jury at the close of the case.
State v. Cavazos,
In State v. Cheatwood, supra, the Louisiana Supreme Court stated the following in referring to justification defenses:
Since “justification” defenses are not based on the nonexistence of any essential element of the offense, but rather on circumstances which make the accused’s conduct excusable on policy grounds, such defenses should be treated as affirmative defenses which the accused must establish by a preponderance of evidence.
(Emphasis Added.)
12(jEven if the prosecutor’s reference to Morrison’s affirmative defense of justification as an “excuse” is considered as an incorrect and misleading statement of law, the trial judge instructed the jury
V.
Morrison argues that under the circumstances of this ease the mandatory life sentence imposed by the trial court for her conviction for aggravated rape constitutes cruel, unusual, and excessive punishment under the U.S. Constitution. Similarly, she contends that her sentence of 20 years for her conviction for aggravated oral sexual battery is excessive due to her low IQ, history of physical and sexual abuse and the lack of a meaningful relationship with her mother.
At the time Morrison committed the offense of aggravated rape, La. R.S. 14:42 provided in pertinent part:
C. 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. However, if the victim was under the age of twelve years, 127as provided in Paragraph A(4) of this Section, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, of sentence, in accordance with the determination of the jury.
Likewise, La. R.S. 14:43.4 defined the crime of oral sexual battery in pertinent part:
C. Whoever commits the crime of aggravated oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than twenty years.
This Court has held that the burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.”
State v. Johnson,
97-1906 (La.3/4/98),
12flAs this Court stated in
State v. Ponsell,
33,543 (La.App.2d Cir.8/23/00),
Although ... the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive.
In
State v. Foley,
In cases where there is no mandatory sentence, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses.
State v. Cozzetto,
07-2031 (La.2/15/08),
In those cases, appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines.
State v. Marshall,
94-0461 (La.9/5/95),
The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering.
State v. Dorthey,
Absent a showing of manifest abuse of that discretion this Court may not set aside a sentence as excessive.
State v. Guzman, supra; State v. June,
38,440 (La. App.2d Cir.5/12/04),
In relation to her life sentence for aggravated rape, Morrison fails to argue or present any evidence that she is an “exceptional” defendant for which downward departure from the mandatory maximum sentence for aggravated rape is warranted. Thus she has failed to clearly and convincingly show that the imposed sentence is not meaningfully tailored to the gravity of the offense. Moreover, Morrison’s poor choices and the unfortunate circumstances of her life fail to mitigate the egregiousness of an offense which involved the seeking out of a nine-year-old child for unconscionable acts of perversion.
Similarly, Morrison is equally unpersuasive in her argument regarding her receipt of the maximum sentence allowed under La. R.S. 14:43.4. Adequate La. C. Cr. P. art. 894.1 compliance is evident on the record. The trial court specifically considered Morrison’s claim that she was mentally |S1 deficient and the factors she had utilized in her defense of justification. The court noted the jury’s evident rejection of her justification. Therefore, he also considered Morrison’s conduct. Her victim was a young child she knew. She put the child in danger by knowingly obtaining and subjecting the child to her
Error Patent
An error patent review reveals that the trial court failed to specify that Morrison’s 20-year sentence for aggravated oral sexual battery be served without benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 14:14.43.4. Nevertheless, when a trial court fails to order that a sentence should be served without benefit as mandated by the statute, those required restrictions are self-activating and there is no need to remand for a | ^ministerial correction of an illegally lenient sentence. La. R.S. 15:301.1(A);
State v. Williams,
00-1725 (La.11/28/01),
Conclusion
For the foregoing reasons, Morrison’s convictions and sentences are affirmed.
AFFIRMED.
Notes
. J.M. lived with her aunt after the death of the child’s biological mother.
. Although Morrison raises the subject of her insanity plea in her ineffective assistance of counsel claim, she has not raised a sufficiency of evidence issue regarding the jury's rejection of her plea of not guilty by reason of insanity. The record shows that the jury was instructed regarding a not guilty by reason of insanity verdict. Specifically, the jury was instructed that insanity is defined as an affirmative defense if Morrison proved by a preponderance of the evidence "that because of a mental disease or defect she was incapable of distinguishing between right and wrong with reference to the conduct in question at the time of the offense[.]"
. Effective August 15, 2001, La. R.S. 14:41 was amended to also include oral sexual intercourse, i.e., the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender or the intentional touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim. Under this statute, when rape by "oral sexual intercourse” is committed on a person under the age of thirteen then it becomes aggravated rape and the perpetrator is subject to life in prison without benefit of parole.
. Effective August 15, 2001, La. R.S. 14:42(A) was amended to include oral sexual intercourse. Moreover, in order for a defendant to be charged with oral aggravated rape, the victim must have been under the age of 13 instead of 12.
. La. R.S. 14:43.4 was repealed by the legislature in 2001. However prosecution under this statute was still proper because its repeal