Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana No.
09-12-0727, Sec. VIII, The Honorable Trudy M. White, Judge
C. Moore, III District Attorney Stacy Wright Assistant
District Attorney Baton Rouge, LA, Attorneys for Appellee
State of Louisiana.
Gwendolyn K. Brown Louisiana Appellate Project Baton Rouge,
LA, Attorney for Defendant-Appellant Martin Dyson.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
defendant, Martin Dyson, was charged by bill of information
with two counts of sexual battery, violations of Louisiana
Revised Statutes 14:43.1 (prior to amendment by 2011 La. Acts
No. 67 §1 and 2015 No. 256 §1). He entered a plea
of not guilty and, following a bench trial, was found guilty
on both counts. The defendant filed a motion for new trial,
which was denied. On count one, the defendant was sentenced
to twenty-five years at hard labor without the benefit of
probation, parole, or suspension of sentence. On count two,
the defendant was sentenced to five years at hard labor
without the benefit of probation, parole, or suspension of
sentence. The district court ordered the sentences to run
concurrently. The defendant filed a motion to reconsider
sentence, which was denied. The defendant now appeals,
arguing that the sentence imposed on count one is excessive.
For the following reasons, we affirm the defendant's
convictions and sentences.
the first half of 2011, the defendant was living with his
nephew on Dutton Street in Baton Rouge in order to help him
renovate his home. Also living in the residence were the
defendant's nephew's wife and her four children. One
of the children, twelve-year-old T.H. was awakened in the
middle of the night to someone lying on top of her and
"riding" her. T.H. testified that the person put a
pillow over her face and pulled up her nightgown. She was
wearing underwear, but could feel the person's penis on
her vagina. According to T.H., the person then ran out of her
bedroom. The following night, someone entered her bedroom,
pulled her shorts down, and inserted his penis into her
vagina. T.H. explained that she could not see the person
because he held a pillow over her head. However, when the
person walked out of her room, T.H. followed him and
identified the person as the defendant. The defendant told
T.H., "You don't have to tell nobody" and
threatened to hurt her family if she told. After returning to
her bedroom, T.H. saw blood on her sheets. She washed them
before school the next day "so nobody would know."
T.H. did not disclose the incidents until May 2012.
June or July 2011, thirteen-year-old J.B. was spending the
night at her grandmother's house on Underwood Avenue in
Baton Rouge. While asleep, she was awakened by her
great-uncle, the defendant, who resided at the residence at
the time. The defendant asked J.B. to help him find a bowl.
The two looked for the bowl in the kitchen, and when they
were unable to find it, the defendant asked J.B. to come into
his room. Once in the room, the defendant told J.B. to get on
the bed and lie on her stomach. The defendant, who was
wearing only a white muscle shirt and boxer shorts, got on
top of J.B. and began "dry humping" her. According
to J.B., the defendant told her not to let another man
"do this" to her. The defendant also told J.B. not
to tell or he would kill her grandmother. Once J.B. was able
to get up, she went into her grandmother's room and went
back to sleep. The following day, the defendant gave J.B.
$20. J.B. asked the defendant, "What I [sic] supposed to
be, your slut[?]" According to J.B., the defendant
responded, "No, not yet."
did not disclose the incident to her mother until October
2011. Thereafter, in February 2012, the defendant was placed
under arrest and gave a videotaped statement. In his
statement, the defendant admits to "hunching" J.B.,
which he described as "humping."
sole assignment of error, the defendant contends that the
district court imposed an excessive sentence. Specifically,
he argues that although he was sentenced to the mandatory
minimum sentence on count one, the district court should have
deviated downward from that sentence because he is a
"family man with two sons and two daughters. . . . two