ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-3237, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, 24TH Judicial District, Parish of Jefferson, State of Louisiana, TERRY M. BOUDREAUX, JULIET CLARK, ASSISTANT DISTRICT ATTORNEYS, APPELLATE COUNSEL, Gretna, Louisiana.
TERRENCE PAYNE, DOC# 534251, IN PROPER PERSON, Louisiana State Penitentiary, Angola, Louisiana, DEFENDANT/APPELLANT.
MARGARET S. SOLLARS, ATTORNEY AT LAW, Louisiana Appellate Project, Thibodaux, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson and Stephen J. Windhorst.
[14-715 La.App. 5 Cir. 2] STEPHEN J. WINDHORST,
Defendant, Terrence Payne, was charged by grand jury indictment with aggravated rape, La. R.S. 14:42, and attempted second degree murder, La. R.S. 14:27/30.1. After a jury trial, he was convicted of one count of forcible rape, La. R.S. 14:42.1, and one count of attempted manslaughter, La. R.S. 14:27/31. The trial court sentenced defendant to imprisonment at hard labor for forty years without
benefit of probation, parole, or suspension of sentence on count one and imprisonment at hard labor for twenty years on count two, with both sentences to run consecutively to one another. Thereafter, pursuant to a habitual offender bill, the trial judge found defendant to be a second felony offender and vacated the original sentences on counts one and two. Defendant was resentenced under the habitual offender statute to imprisonment at hard labor for sixty years without benefit of probation or suspension of sentence on count one and imprisonment at hard labor for twenty-five years without benefit of probation or suspension of sentence on count two, with both sentences to run consecutively to one another. We affirm defendant's convictions and the sentence imposed for attempted manslaughter (count two). We vacate the sentence imposed on count one and remand for resentencing in accordance with this opinion.
[14-715 La.App. 5 Cir. 3] FACTS
The following facts were developed at trial. On June 22, 2012, defendant and the victim, T.N., entered a storage yard at 5030 Alice Street in Marrero, Louisiana. Defendant then physically and sexually assaulted her, causing serious and permanent injuries. At trial, T.N. testified that she had thirty-two broken bones on the left side of her face and a crushed eye socket. She explained that doctors had to take a bone from her skull to rebuild her eye socket. T.N. asserted that her sense of smell never came back, that she still had problems with her head and left eye, that she had to undergo many surgeries, and that she had to have dental work done as she no longer had real teeth.
T.N. testified at trial that she was in a bad car accident in 2004, after which she became addicted to opiates and then to heroin. To support her heroin addiction, she turned to stealing and prostitution. On June 22, 2012, T.N. was staying in Room 31 at the Luxury Inn with a male friend who allowed her to stay there in exchange for money or drugs. When she awakened on that date, T.N. felt sick, so she left the room to try to obtain some money for heroin. As she was walking from the Luxury Inn toward Fourth Street, defendant approached her and asked if she knew a " working girl." T.N. told defendant that she was a " working girl," and she agreed to have sex with defendant in exchange for money. Afterwards, they went to the Luxury Inn, Room 31, but defendant was uncomfortable because there was another man in the room. Therefore, T.N. and [14-715 La.App. 5 Cir. 4] defendant left the room and walked down the street. As they were walking, defendant said that he wanted to go into the storage yard. Even though the gate was locked, defendant opened it, and the two of them entered the yard. T.N. explained that they went to " like a shed" under a " car porch" in the back of the yard. As T.N. was putting her purse down, defendant came from behind, took her neck, and " popped" it. T.N. fell to the ground and could not move because her arms and legs felt " heavy." She gasped for breath, and defendant told her
to " shut up," and he " popped" her across her head. Afterward, defendant stripped off her clothes and took out a condom. Defendant held her on the ground and put the condom on. He had his arm " nailed" on her back and his knee on her back, and he began having vaginal sexual intercourse with T.N. from behind. T.N. started talking, but defendant said, " Bitch, shut up. Put your head down. Don't look me in my face." T.N. testified that defendant then pulled things off of a shelf, " some kind of heavy equipment," and that he must have hit her in the head with a heavy object because she was knocked unconscious. T.N. further testified that she did not consent to having sex with defendant in this manner.
When T.N. woke up, she pushed dirt off of her body and started crawling. She explained that she could not stand up because her face was " heavy," metal was falling from her face, and her teeth were in her throat. T.N. pushed her body up with her arms so she could go where she needed to go to get noticed. A man subsequently approached her and asked who had done this to her. She could not see anything, but she found out later he was the owner of the yard.
[14-715 La.App. 5 Cir. 5] Curtis Hinson testified that on June 22, 2012, at approximately 2:00 to 2:30 P.M., he went to the storage yard accompanied by his nine-year-old son and Freddie Lapine, an employee. Hinson unlocked the gates and backed in his trailer. When he did so, he heard a noise. Hinson looked up and saw a woman (later identified as T.N.) coming from underneath the overhang and moaning. He testified that her face had been beaten so badly he " could not tell she was human unless she was standing up." The woman walked to the middle of the yard and sat down. Lapine ...