The defendant, Derrick Joseph Bickham, was charged by grand jury indictment with aggravated rape
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(victim under the age of thirteen years), a violation La. R.S. 14:42(A)(4). He pled not guilty. Following a jury trial, he was found guilty by unanimous verdict of the lesser included responsive offense of attempted aggravated rape of a victim under the age of thirteen, a violation of La. R.S. 14:27 and 14:42(A)(4). He was sentenced to forty years at hard labor without benefit of parole, probation, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. He now appeals, challenging the sentence as excessive. For the following reasons, we affirm the conviction and sentence.
FACTS
The victim, O.P.,
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testified her date of birth was February 18, 2002. When she lived with her mother in Terrebonne Parish, the defendant was part of their household. The victim indicated the defendant had done something sexually inappropriate with her in the summer of 2013 when she was eleven years old in the summer of 2013.
In a September 21, 2017 recorded interview, the victim gave the following account of the incident. When her mother went to work at Churchs Chicken, the victim would stay in a trailer with her mothers boyfriend - the defendant. One day, while the victims mother was at work, the defendant asked the victim if she would like to play truth or dare. The victim said “sure.” The defendant initially gave the victim simple dares, such as “I dare you to turn on the light,” and “I dare you to pick up something.” He then stated, “1 dare you to give me a lap dance.” The victim did not know what a lap dance was and asked the defendant to explain. He stated “when you just dance on the person.” He then pulled down his pants and instructed the victim to “come dance on [him].”
The victim “went and danced on [the defendant] and stuff.” Thereafter, he started kissing her neck. The victim then kissed the defendant on his neck. He kissed her on her mouth. The victim then kissed him on his mouth. Thereafter, he started undressing her, and she asked “why you taking off my clothes.” He told her to “just lap dance.” He then started “eating” her private area. He told the victim to suck his “middle part.” Thereafter, he tried to stick his middle part in the victim, but stopped when she said it hurt. He then tried to stick his finger in the victim, but stopped when the victim said “it hurts too.” The defendant stated, “well when I stick my tongue in you[,] it doesnt hurt[,] but when I stick my [finger in] it hurts.” The victim answered, “yes.” The defendant then laid down on the floor and told the victim to get on top of him. The victim stated, “I was sucking his middle part and he was eating my vagina.” Thereafter, the victim put her clothes back on. The defendant asked her why she had put them back on. The victim replied, “I dont know, mom should be coming home in a while.” She then went back into the living room.
In the recorded interview, the victim stated she was ten or eleven years old at the time of the incident. She stated when she said the defendant was “eating” her middle part, she meant he was licking her vagina. She stated she knew the defendant wanted her to suck his middle part because “he pulled down his pants and put [the victims] head down there.” She stated her reference to the defendants “middle part” was a reference to his penis.
EXCESSIVE SENTENCE
In assignment of error number 1, the defendant contends the trial court failed to properly comply with the sentencing requirements of Louisiana Code of Criminal Procedure article 894.1. In assignment of error number 2, the defendant contends the trial court erred by imposing an excessive sentence. In assignment of error number 3, the defendant contends the trial court erred by denying the motion to reconsider sentence. He combines the assignments of error for argument. He argues he was sentenced to forty years at hard labor without the benefit of parole, probation, or suspension of sentence “for a single act of relatively mild abuse that allegedly occurred years earlier, but which was never again repeated.” He asserts the trial courts finding that a harsher sentence was warranted because the defendant “was in some type of position of authority or supervisory role of the victim” was misplaced because this was not a molestation of a juvenile case. He maintains the record does not support the trial courts finding, noting that there was no testimony the victim “viewed [the defendant] as any type of father figure.” Additionally, the defendant urges that the record does not support the trial courts conclusion that the offense caused a lasting impact on the victim, such that a harsher penalty was appropriate. Lastly, the defendant contends the trial court failed to discuss mitigating factors such as the fact the defendant had only one prior offense and had mental health issues.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendants constitutional right against excessive punishment and is subject to appellate review. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless imposition of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Currie, 2020-0467 (La. App. 1st Cir. 2/22/21), 321 So.3d 978, 984.
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. See La. C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime as well as the trial courts stated reasons and factual basis for its sentencing decision. Currie, 321 So.3d at 984.
Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:42(D)(1). As applicable here, whoever attempts to commit an offense punishable by life imprisonment shall be imprisoned at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence. La. R.S. 14:27(D)(1)(a). The defendant was sentenced to forty years at hard labor without benefit of parole, probation, or suspension of sentence.
At the sentencing hearing, defense counsel argued the defendant suffered from an untreated mental illness. According to counsel, in 2016, the defendant had been diagnosed with schizoaffective disorder. Counsel stated the defendant had “[m]ajor depressive episodes, severe, with psychotic features.”
The State noted the defendants alleged untreated mental illness was “post crime,” i.e., that the medical records regarding the defendants mental health did not start until 2014 and the crime was committed in 2013. Additionally, the State argued defense counsel had not offered any expert testimony to explain the defendants medical records. In regard to the sentence to be imposed, the State asserted factors for consideration included: the age of the eleven-year-old victim; the deliberate cruelty committed against her; her obvious vulnerability; the defendants status as a supervising adult; and the significant permanent mental and psychological injury suffered by the victim. The State submitted the trial courts consideration of sentence should start at least at thirty-five years without benefit of parole, probation, or suspension of sentence.
The defense contended the defendant was thirty-one years old and “appears to have just one felony conviction for possession of stolen things in 2008.” The defense also stated the defendant had limited education and “some emotional difficulties.” The defense suggested a sentencing range between fifteen to twenty years for the defendant.
The court noted that it had appointed a sanity commission and determined the defendant able to withstand a trial. The court found the defendant competent to proceed based upon an October 8, 2019 report of a mental evaluation of the defendant by Dr. Joshua Sanderson finding, “[i]t is the opinion of the examiner with reasonable medical certainty that [the defendant] demonstrates a rational and factual understanding of the nature of the proceedings against him and can properly assist his attorney in his defense.” Additionally, the court noted, in his November 15, 2019 report, the other doctor on the sanity commission, Dr. Rafael Salcedo, found, “[t]here did not appear to be a psychiatric basis to suggest impairment in [the defendants] ability to assist Counsel.”
The court noted the young age of the victim and that the defendant was in a position of authority or a supervisory role over the victim. Based on the totality of the situation, the court found when a victim is subjected to that which the victim underwent, “its not a one-time life experience by the victim. It is a lifelong reign of terror, essentially. It goes on forever, every day of this victims life.”
Following imposition of sentence, the defendant moved for reconsideration of sentence “on grounds that the sentence imposed [was] excessive.” At the hearing on the motion, the defense claimed that, due to the defendants age, a forty-year sentence was a life sentence for him. Additionally, the defense maintained that the court should consider the fact that the jury returned a lesser included responsive verdict.
The State pointed out that, at the original sentencing hearing, the court “noted in detail ․ the suffering that was visited on the victim in this case.” The State also set forth that Louisiana Code of Criminal Procedure article 894.1(B)(1), (2), (4), and (9) “came into play in this case.” The trial court denied the motion to reconsider sentence.
There was nothing misplaced in the courts considering the defendants supervisory role over the victim as an aggravating factor. The testimony of the victim and her recorded interview established the defendant was living with the victim and her mother at the time of the offense. That evidence also established the victim was left alone with the defendant when her mother went to work. The defendant used his access to the victim to commit the offense. The fact that the offender used his position or status to facilitate the commission of the offense is a relevant aggravating circumstance. La. C.Cr.P. art. 894.1(B)(4). Additionally, contrary to the defendants position, Article 894.1(B)(4) does not require testimony from the victim that she “viewed [the defendant] as any type of father figure.”
The record also fully supports the trial courts finding that the offense was more than a “one-time life experience by the victim.” The victim testified that following the incident, she became “very aggressive,” including being sexually aggressive, with boys. She was also “out of control” and began cutting herself on her left arm. She cut herself “to relieve pain.” She further testified she pinched herself to cause bruising “like just out of pain, just a feeling.” She was also unable to trust her partner in a relationship. The fact the offense resulted in a significant permanent injury to the victim is also a relevant aggravating circumstance. La. C.Cr.P. art. 894.1(B)(9).
A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence herein. See La. C.Cr.P. art. 894.1(B)(1), (2), (4), & (9). The court was made aware of the alleged untreated mental illness of the defendant, his age, and his criminal history, but determined the facts of the case warranted the sentence imposed. A sufficient factual basis for the sentence is shown. See Currie, 321 So.3d at 984-86 (“[r]emand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown.”). Further, the sentence imposed was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.
This assignment of error is without merit.
DECREE
For these reasons, we affirm the conviction and sentence of defendant, Derrick Joseph Bickham.
CONVICTION AND SENTENCE AFFIRMED.
FOOTNOTES
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. 2015 La. Acts Nos. 184, § 1 & 256, § 1, renamed the offense of aggravated rape as first-degree rape.
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. The victim is referenced herein only by her initials. See La. R.S. 46:1844(W).
CHUTZ, J.