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State v. Kelly

Court of Appeals of Louisiana, Second Circuit

May 23, 2018

STATE OF LOUISIANA Appellee
v.
TIMOTHY DESHUN KELLY Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 337, 487 Honorable Katherine C. Dorroh, Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          TIMOTHY D. KELLY Pro Se

          JAMES E. STEWART, SR. District Attorney REBECCA A. EDWARDS JASON W. WALTMAN Assistant District Attorneys Counsel for Appellee

          Before BROWN, COX, and McCALLUM, JJ.

          BROWN, C.J.

         On August 25, 2016, following a jury trial, defendant, Timothy Deshun Kelly, was convicted of third degree rape. On February 2, 2017, defendant was adjudicated a fourth-felony habitual offender and was sentenced to a term of life imprisonment without the benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence. For the following reasons, defendant's conviction and sentence are affirmed.

         FACTS

         On January 26, 2016, defendant, Timothy Deshun Kelly, was charged by bill of information with the third degree rape of L.H.[1] on or about April 14, 2015. L.H., a developmentally disabled child, was 15 at the time of the offense, and the defendant was 35. Defendant provided L.H. with alcohol and cocaine, both of which she consumed. Defendant filed a motion for post verdict judgment of acquittal, arguing that the evidence was insufficient to convict.

         The state filed a habitual offender bill of information alleging that defendant was a fourth-felony offender. The trial court denied defendant's motion for post verdict judgment of acquittal. Thereafter, the trial court sentenced defendant to 20 years at hard labor to be served without the benefit of parole, probation, or suspension of sentence.[2]

         On February 2, 2017, defendant's habitual offender hearing was conducted. The state provided evidence to prove defendant's prior felony convictions for the following: (1) a September 29, 1999, conviction for possession of cocaine; (2) a January 12, 2004, conviction for distribution of cocaine; and, (3) a September 29, 2010, conviction for distribution of cocaine. The trial court took judicial notice of defendant's August 25, 2016, conviction for third degree rape and adjudicated defendant a fourth-felony habitual offender. The trial court vacated defendant's 20-year sentence and resentenced him to serve a life sentence without the benefit of probation, parole, or suspension of sentence.[3] Defendant has appealed.

         DISCUSSION

         Sufficiency of the Evidence

         Defendant, in both his first counseled and only pro se assignment of error, alleges that the evidence was insufficient to convict him of third degree rape. Defendant concedes that he and L.H. had sexual intercourse, but he asserts that the acts were consensual. Defendant argues that the state failed to prove that L.H. was unable to consent to the sex acts due to "a stupor or abnormal condition of mind produced by an intoxicating agent or any cause" or "through unsoundness of mind." Defendant asserts that although there was testimony that L.H. was in special education classes, there was no expert testimony to establish that L.H. was incapable of understanding the acts. Furthermore, while there was evidence that L.H. had ingested cocaine, there was no evidence to establish "how" intoxicated she was at the time she had sex with defendant.

         L.H., who was 16 at the time of trial, [4] testified that she met defendant while walking her baby brother to a gym for food. Defendant pulled up next to her and asked for her phone number. He called while she was still walking with her brother and met up with her. L.H. got into defendant's car and placed her baby brother in the back seat. Defendant then engaged in vaginal sexual intercourse with L.H. At some point, L.H. asked defendant to stop and he did. Afterwards, L.H. took her brother and walked home.

         Later that evening, defendant called L.H. but her mother answered. Defendant hung up and tried calling back several times, but L.H.'s mother kept answering so defendant kept hanging up.

         Sometime later that same night, defendant called and L.H. answered. Defendant asked L.H. "where the F [she] was" and told her to hurry and come outside. L.H. got into defendant's car and he drove her to his "homeboy house" on Greenwood Road in Shreveport, Louisiana. Defendant instructed L.H. to go hide in some bushes while defendant took his friend and his friend's girlfriend somewhere. L.H. did as she was told and defendant returned shortly after and drove L.H. to a liquor store where he purchased vodka. Defendant drank some and told L.H. to finish the bottle. L.H. drank the alcohol, which she described as "strong" and then "felt dizzy."

         The two returned to defendant's friend's house and had sex in one of the bedrooms. L.H. testified that she knew she was having sex with defendant, but stated that she did not want to do so. Afterwards, defendant's friend came upstairs and wanted to have sex with L.H. but she said "no." She then asked defendant to take her home. Defendant got some cocaine from his friend and gave it to L.H. He told her to sniff it and she did. She said it made her feel "dizzy."

         Defendant then drove L.H. to his sister's apartment. L.H. slept on the floor of a bedroom. In the early morning, L.H.'s mother called defendant. L.H. overheard defendant telling her mother that L.H. was with his son and a girl named "Nalo." Defendant then dropped L.H. off near her stepfather's house. L.H. had no further contact with defendant. During cross-examination, L.H. admitted ...


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