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State v. Dyson

Court of Appeals of Louisiana, First Circuit

September 21, 2017

STATE OF LOUISIANA
v.
MARTIN DYSON

         On 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 Presiding.

          Hillar 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.

          HOLDRIDGE, J.

         The 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).[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.

         FACTS

         Count one:

         During 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.

         Count two:

         During June or July 2011, thirteen-year-old J.B.[2] 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."

         J.B. 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."

         EXCESSIVE SENTENCE

         In his 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 ...


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