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State v. Dixon

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

STATE OF LOUISIANA
v.
ROY R. DIXON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 13-569, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long

          COUNSEL FOR DEFENDANT/APPELLANT, ROY R. DIXON Prentice L. White

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Timothy S. Marcel, Pro Tempore

          HANS J. LILJEBERG JUDGE

         Defendant, Roy Dixon, seeks review of his sentences for one count of production of child pornography involving a juvenile under the age of thirteen and two counts of sexual battery upon a juvenile under the age of thirteen. For the reasons stated more fully below, we affirm defendant's sentences.

         PROCEDURAL BACKGROUND

         On March 26, 2013, defendant was charged by bill of information with one count of production of pornography involving a juvenile under the age of seventeen in violation of La. R.S. 14:81.1 (count one) and with two counts of sexual battery upon a juvenile under the age of thirteen in violation of La. R.S. 14:43.1 (counts two and three). Defendant pled not guilty on all counts on April 15, 2013. On May 15, 2017, the State amended the bill of information to correct the offense in count one to production of pornography involving a juvenile under the age of thirteen. On May 16, 2017, a twelve-person jury found defendant guilty on all counts.

         On August 24, 2017, the trial court sentenced defendant to 20 years imprisonment at hard labor on count one and 99 years imprisonment at hard labor each on counts two and three, with all counts to be served concurrently and without the benefit of parole, probation or suspension of sentence. The defendant's timely filed motion to reconsider sentence was denied.

         In his first appeal, defendant argued, inter alia, that the trial court erred by imposing excessive sentences on all three counts. In State v. Dixon, 18-79 (La.App. 5 Cir. 8/29/18), 254 So.3d at 837-41, this Court found that defendant's 99-year sentences imposed for his two convictions for sexual battery of a juvenile under the age of thirteen were constitutionally excessive. This Court vacated defendant's sentences on counts two and three and pursuant to La. C.Cr.P. Art. 881.4, suggested sentences of 35 to 40 years imprisonment at hard labor to run concurrently with count one. Id. at 841. This Court also determined that defendant's sentence for his conviction for production of pornography involving a juvenile under thirteen was illegally lenient. La. R.S. 14:81.1(E)(5)(b) provides that offenders over the age of seventeen who produce pornography involving juveniles under the age of thirteen shall be imprisoned at hard labor for not less than 25 years nor more than 99 years, with at least 25 years without the benefit of parole, probation or suspension of sentence.[1] Therefore, this Court vacated the sentence imposed on count one, and pursuant to La. C.Cr.P. art. 881.4, recommended a sentence of 35 to 40 years imprisonment at hard labor to run concurrent with the other two counts. The matter was remanded to the trial court for resentencing on all counts. Id.

         On October 18, 2018, the trial court resentenced defendant to imprisonment at hard labor for 80 years each on counts one, two, and three to run concurrently, without the benefit of parole, probation, or suspension of sentence. Defendant objected to the sentences as excessive. On October 23, 2018, defendant filed a motion for reconsideration of sentence, which the trial court denied on November 29, 2018. On October 24, 2018, defendant filed a timely motion for appeal, which the trial court granted.

         FACTS

         We reiterate the facts as stated in our previous opinion. Defendant was often the caretaker of his two-year old sister, L.D., [2] when his mother, C.D., worked. On January 26, 2013, while watching L.D., defendant invited Rayan Badeaux, a man he met on the Internet, to his house located at 1402 Hancock Street in Gretna, where defendant engaged in sexual intercourse with Mr. Badeaux. Afterwards, defendant left the room to check on L.D. While defendant was out of the room, Mr. Badeaux looked through defendant's cell phone and located a video of a young toddler and an adult male who was touching the toddler's vagina. Mr. Badeaux immediately left defendant's house with defendant's cell phone and went to the New Orleans Police Department's (NOPD) Fourth District Station in New Orleans. Because the aforesaid residence is located in the City of Gretna, the Gretna Police Department was contacted regarding the pornographic video on the cell phone.

         Detective Jeffrey Laborie[3] with the Gretna Police Department met Mr. Badeaux at the NOPD and obtained the cell phone from him. Mr. Badeaux showed Detective Laborie one video of a small female toddler, approximately one or two years old, with a pacifier in her mouth. The video showed a female toddler who was unclothed, and an adult man's hand touching her vagina. Detective ...


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