APPEAL BRIEF: (Note--there was a line down through the copies made by Rick and this causes some problems in scanning--We think you can understand when this happens)
Statement of the case
Richard “Rick” Seaton is imperfect. He made a mistake. He committed adultery. He did not commit rape or abuse his office.
On the night of the Independence Bowl in 2010, Rick was working for the City of Shreveport. He was in charge of tge buses running to and from the game. (Vol. II p. 373). That night, K.W. and her family, who had driven to Shreveport for the game from their Florida home, started working on a bottle of Jack Daniels. (Vol. III p. 576). By game time the bottle was empty. K.W., eighteen years old at the time, testified she was unsure how much of the Jack Daniels she drank. She was unsure because her cup “was refilled a lot.” Once the game started, K.W. switched to beer and continued drinking. During the game, K.W. and her boyfriend got in an argument and left the game. (Vol. III p. 590). While K.W.and her boyfriend were walking around outside, a police officer asked K.W. if her boyfriend was bothering her. (Vol. III p.591). Her boyfriend took issue with the inquiry, and a struggle ensued between him and several police officers. This resulted in his arrest. (Vol II pp. 352,376)
K.W. did not want to call her mother or grandparents and admit her boyfriend had been arrested. The racial differences caused problem enough; and, she had just introduced him to her family. (Vol. III p. 598). To no avail, she begged the officers to let him go. (Vol. III p. 591). They gave her his belongings (including his cell phone) and took him to jail. (Vol III p. 594)
Rick, who observed the arrest, helped officers put K.W. on a shuttle bus to return to her hotel room at Sam’s Town. K.W. was insistent she go to the jail, and was poleading with those present to take her there. She went so far as to offer Rick five dollars for a ride to the jail. (Vol. II pp. 376-83; Vol. IV p. 784). Ultimately, though he took no money from her, Rick agreed to give her a ride to the jail.
At this point, the irreconcilable conflicts between K.W.’s story and to story told by the evidence begin. The specifics of the timeline presented by the evidence are attached in a detailed timeline. K.W.’s story is she was so drunk at the time of the Bowl game encounter with the police she only vaguely remembers her initial contact with Rick. She testified she does not remember getting on any buses, nor does she remember getting on a golf cart with Rick. She vaguely remembered being on a golf cart in a dark parking lot. (Vol. III pp. 591-2). She claimed to remember getting into a car that “looked like a police car,” and riding in it with Rick to the jail. According to her testimony, before she got out of the car at the jail, Rick tried to kiss her on her neck, which made her uncomfortable. K.W. went into the jail where she talked to a bondsman who could not help her. (Vol. III pp. 594-5). Her story was that she tried to get help from someone in the jail because she was uncomfortable with Rick, but no one helped her. (Vol III pp. 595-7) Over fifteen minutes go by before Rick Seaton came into the jail. Another four minutes went by before she left with him. Standing by the door for several seconds waiting to be buzzed out, she neither swayed nor looked distressed or afraid.
She told Rick she needed to use an ATM and a phone; he informed her his office had an ATM and she could use his phone there. She testified she thinks they went to his office when they got to Government Plaza. (Vol. III pp. 599-601) She admitted she sat on his lap while she made phone calls, but claimed it was because he pulled her down and held her there. After her last phone call, which she characterized as a “fake” call to a bondsman, they started to leave. At this point, Rick offered to show her the Mayor’s office. (Vol. III pp. 603-6). She thought that would be “cool,” so she went along. She claims to have been nervous, uncomfortable and scared, but voluntarily followed Rick to the mayor’s office.
According to her testimony, once she was in the mayor’s office she hid in the mayor’s private bathroom for a few minutes. When she came out, she said Rick “grabbed” her and put her up against a wall before pulling her to the couch and “ripping “ her pants off. (Vol. III pp. 606-15) She claimed her bellybutton ring was ripped out in the process. Then, in her version of the story, Rick performed oral sex on her before returning to his office for a condom, leaving her alone with at least two phones—her boyfriends cell phone and the land line. When he came back in she claimed he penetrated her vaginally with her on her back, then turned her over and penetrated her again. (Vol III pp.618-22)
Then they both got dressed and walked downstairs to the ATM. She attempted to get enough money for the bond, but was unsuccessful. At this point they went back upstairs to look for her underwear. (Vol. III pp. 624-6). Others noticed the two of them outside at the ATM, and noticed no signs of anyone seeming to be in distress. (Vol. IV pp. 692-7) When they could not find KW’s underwear, they left again, and Rick too KW to her hotel, Sam’s Town.
After Rick dropped KW off at Sam’s Town, she went directly to the bar, where she stayed or approximately five minutes before going to look for her mother. (Vol. III pp. 628-9). From the tone of her texts to KW, it is clear KW’s mother was not pleased with her disappearance. (See Exhibit A). Only after spending five minutes in the bar did K.W. go looking for her mother, whom she found in the lobby in the company of a policeman. (Vol. III p. 629).
Much of the interaction between K.W. and Rick is captured on video. Most of the surveillance footage is marked with date- and time-stamps. A review of the timeline reveals K.W. sent several texts to her mother and to her boyfriend's phone (before she realized she had that phone), in which she "cried rape" before any sexual contact took place between K.W. and Rick. K.W. willingly engaged in a sexual encounter with Rick, all the while planning to tell her family he raped her.
As a result of this incident, Rick was fired from the City of Shreveport. (Vol. III p. 512). His wife of fifteen years divorced him. (Vol. III p. 544). At the time of trial, he was embroiled in a custody battle in which his wife was seeking sole custody of his children. (Vol. III p. 546). His reputation, indeed, his entire life was destroyed.
ACTION OF TRIAL COURT
By Bill of Information filed on April 4, 2011, the State of Louisiana charged Rick Seaton with one count of forcible rape and one count of abuse of office. (Vol. I p. 6). On September 27, 2011, Rick waived his right to a jury trial and elected a bench trial. (Vol. I p. 2; Vol. II p. 325). Bench trial commenced on January 17, 2012. (Vol. I p. 2; Vol. II p. 328). At the conclusion of the State's evidence, Rick's trial counsel moved for a judgment of acquittal. That motion was denied. (Vol. IV pp. 687-92). At the close of the trial, the Trial Court found Rick guilty as charged on both counts. (Vol. V p. 944).
A bond hearing followed on February 1, 2012. Rick's father, a retired Methodist pastor, and one of Rick's fellow church members testified on his behalf at that hearing. Nevertheless, the Trial Court denied an appeal bond. (Vol. V p. 972). On March 12, 2012, the Trial Court denied Rick's Motion for Post-Verdict Judgment of Acquittal. Following testimony from four witnesses who testified on Rick's behalf, the Trial Court imposed sentence of fifteen years at had labor, with the first three years to be served without benefit of probation, parole or suspension of sentence as to the count of forcible rape. Further, Rick must register as sex offender for the rest of his life. As to the count of abuse of office, the Trial Court imposed three years at hard labor. The sentences were ordered to be served concurrently. (Vol. V p. 1003).
Rick's trial counsel filed a Motion to Reconsider Sentence on April 9, 2012. (Vol. II p. 255). That motion was denied without hearing on April 10, 2012. (Vol. II p. 257). A notice of appeal was timely filed on April 20, 201 On April 9, 2012. Vol and, the Louisiana
(Vol. II p 257.) That motion was denied without hearing on April 10, 2012. (Vol. II p. 257) A notice of appeal was timely filed on April 20, 2012; and the Louisiana Appellate Project, through undersigned counsel, was appointedto represent Rick for purposes of appeal. (Vol. II pp. 298-303
ASSIGNMENTS OF ERROR
1. The evidence adduced at trial, the testimony of K.W. was insufficient to support convictions for abuse of office and forcible rape.
2. It was double jeopardy to charge Rick Seaton with both abuse of office and forcible rape.
3. The sentence of fifteen years at hard labor, the first three years to be served without benefir of probation, parole or suspension of sentence, plus lifetime registration as a sex offender, is excessive under the facts and circumstances of this case.

ISSUES ON APPEAL
1. Whether KW’s testimony was sufficient to support a conviction for abuse of office and forcible rape.
2. Whether is was double jeopardy to charge Rick Seaton with both abuse of office and forcible rape.
3. Whether the sentence of fifteen years at hard labor, the first three to be served without benefit of probation, parole or suspension of sentence, plus lifetime registration as a sex offender, is excessive under the facts and circumstances of this case.

ARGUMENT
ASSIGNMENT OF ERROR NO. 1: insufficient evidence

The evidence adduced at the trial of this matter did not support a conviction for abuse of office or forcible rape. In fact, the evidence supports deception by the "victim." Examination of the timeline of events revealed she "cried rape" before any sexual activity took place. This event involves a consensual sexual encounter which, while inappropriate, was not illegal.
The standard of review for sufficiency of the evidence is set forth in Jackson v, Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):
A conviction must be based on proof sufficient for any national trier of fact, when viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime proven beyond a reasonable doubt.

In reviewing the sufficiency of the evidence to support a criminal conviction, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the court to determine whether the evidence is minimally sufficient. A complete reading of the transcript of this trial sho*s that the state failed to meet the burden of Jackson v. Virginia. In Jackson v. Virginia, the United States
Supreme Court set out the standard by which appellate courts are to review the sufficiency of the evidence in criminal prosecutions:
the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of the fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319.

This standard was adopted by the Louisiana Supreme Court in State v. Matthews, 375 So.2d 1165 (La. 1979). Further, in State v. Rhodes, 29-207 (La. App. 2 Cir. 11/22/97); 688 So.2d 628 the court stated:

The relevant inquiry when reviewing a conviction for the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact cold have found the essential elements of the crime proven beyond. a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S-Ct. 2781, 61 L,Ed.2d 560 (1979). This standard, now legislatively embodied within La.C,Cr.P. Art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Combs, 600 So.2d 751 (La. App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992). All evidence, both circumstantial and direct, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt.

An examination of the timeline of events in this matter reveals the evidence in this case was not enough to satisfy a rational juror (or, trier of fact, as this was a bench trial) of Rick's guilt, beyond a reasonable doubt, as to either offense.
In order to obtain a conviction for forcible rape, "the state has the burden of
proving that (1) anal or vaginal intercourse occurred; (2) without the lawful consent of the victim; (3) the victim's resistance is prevented by force or threats of physical violence; and (4) the victim reasonably believes that such resistance would not prevent the rape." State v. Richardson, 425 So. 2d 1228 (L4. 1983). In order to obtain a conviction for abuse of office, the State must prove: (1) the defendant is a public officer or employee; (2) a knowing and intentional use of the authority of his office or position, direct or indirect; (3) compulsion or coercion of a person to provide the public officer, public employee or any other person with anything of apparent present or prospective value; and, (4) the public officer or employee is not entitled by the nature of his office to the services sought or the object of 4is demand. La. R.S. 14:134.3. The State failed to prove the intercourse happened witihout K.W.' s consent. It also failed to prove any use of Rick's office or authority to compel or coerce K.W. to have sex with him.

But she wasn't stumbling drunk. (vol. I p. 402). Jonathan Lone, the bondsman with whom she spoke in the jail, said she had alcohol on her breath, but did not describe her as seeming drunk. (Vol. II pp. 418-21).
In none of the surveillance videos does K.W. appear to be stumbling or showing any other visible signs of intoxication. The State's expert testified, based on the blood sample taken from K.W. between 1:30 and 2:00 a.m., she would have been between .11 and .16 BAC between 8:00 and 9:00 .m. (Vol. III pp. 503-4). According to Dr. James Booker, the defense expert, this level would not have been enough for the onset of stupor or blackout. Usually, a BAC of .27 to .30 is required before the onset of stupor. (Vol. IV pp. 708-9). Based on his observation of the videos, and the State's expert's testimony as to her BAC, Dr. Booker opined she was in the "excitement stage" of intoxication. (Vol. IV p. 712). A range well below the onset of "stupor." (Vol. IV p. 714). Her claims of being so into!xicated she could not remember parts of the encounter are not credible.
The "missing" links
Deputy Gerald Posey, the Caddo Parish Sheriff's Office IT director, testified regarding the video footage from Government Plaza. Summaried in layman's terms, his testimony was that five segments of video footage, showing Rick and K.W. entering and leaving parts of the building, were "deleted" from the software interface such that they appeared to be missing. Only through "gaps" in the footage was he able to determine there were missing pieces. These missing pieces, or segments of footage, were still on the server. It was Deputy Posey' s testimony Rick was a "power user" who had near-administrative access to the system, such that he could have "deleted" the video segments. (Vol. II pp. 479-84).
Dan Thomas, the City of Shreveport's IT director,testified the video surveillance system for Government Plaza is strictly under the control of the Caddo
Parish Sheriffs Office. No one at the City — including Rick Seaton — had "Power user" access. With the access City employees had, they could only view, not delete or change, videos from the system. (Vol. IV pp. 724-5). In addition, any attempts to delete or alter the videos would have been recorded in a log, whp.ch could have stayed on the system as long as ninety days. As soon as CPSO was notified there were possible attempts to tamper with the videos, the hard drive from the system should have been removed and turned over to the DA's office for evidence from the log file. (Vol. IV p. 733). This did not happen. The State made much of the fact Rick had electronics which would have allowed him remote access to his office computer. Through tkOs, the State opined he could have deleted the videos remotely. But Rick lost those electronics which would have granted him that access, later that same night. (Vol. IV pp. 821-4). He did not have time or access to delete any videos.
These five discussions represent only the most gaping of the holes in the State's case. There are others.
• Did Rick Seaton have a cell phone?
K.W. testified Rick never made any phone calls on her behalf that evening; in fact, she testified he told her He did not have a cell phone.
Both Rick and Sgt. William Goodin testified Rick called Goodin to find out the procedure for using a credit card to bond someone out of jail. Goodin did not know, but called the jail to find out, then called Rick back with an answer to his question. (Vol. II p. 410; Vol. W p. 789).
What happened to K.W.'s bellybutton ring?
K.W. testified she had just gotten a bellybutton ring a short time before, which Rick ripped out with her jeans when he pulled them down. Despite a thorough search by police, no bellybutton ring was found in the mayor's office or anywhere else in the building.

What happened to K.W.'s panties?
K.W. testified she could not find her pantiesiwhen she got dressed after the encounter. She and Rick went back upstairs to look for them after using the ATM, but never found them. Despite a thorough search by police, no panties were found in the mayor's office or anywhere else in the building.
Why didn't she look drunk?
In the video footage from the city jail, K.W. walks in high heels without swaying or stumbling. She stands at the door for most of a minute, waiting for it to open, but did not sway or wobble. She displayed NONE of the signs police officers are trained to look for in determining whether a person iq intoxicated
"Officer John"?
The text about "Officer John" raping her was sent, according to K.W., while she was in the bathroom of the mayor's office.
The time on the text, 8:50 p.m., plus footage from the city jail, indicate the text was actually sent while she was sitting in the city jail, with Rick standing next to her. If she had sent it from the mayor's restroom, as she claimed, she had already been in Rick's office at tha.t point and seen the nameplate on his door — thus, she would have known his name was not John.
Given the many holes in the State's case, the evidence was not sufficient to convince a reasonable trier of fact, beyond a reasonable doubt, Rick was guilty of either offense.
ASSIGNMENT OF ERROR NO. 2: Double jeopardy
It was double jeopardy to charge Rick Seaton with both abuse of office and forcible rape. The same evidence was required to prove bOth charges, and the evidence required to convict of the one supported conviction Of the other. "The Double Jeopardy Clauses of the federal and Louisiana constitutions not only prohibit successive trials for the same offense but also ‘proect[] against multiple punishments for the same offense. State v. Murray, 00-1 258 I (La. 9/18/2001), 799 So. 2d 453, 454-5, citing North Carolina v. Pearce, 395 U,S. 711, 717 (1969). "When the same act or transaction constitutes a violation of two distinct statutory provisions, `the test to be applied to determine whether there are two o nses or only one, is whether each provision requires proof of a fact which the other does not.' Murray, 799 So.2d at 454-5, citing Blockburger v. United States, 284 .S. 299, 304 (1932).
"Louisiana's somewhat broader 'same evidence' test considers not only the material elements of each offense but also whether the evidence required to convict of one crime would also support conviction of the other, focusing 'on the evidence necessary for conviction, not all the evidence introduced at trial.' Murray, 799 So.2d at 454-5, citing State v. Steele, 387 Sc. 2d 1175, 1177 (La. 1980). "The test precludes the state from 'relabeling the offense to charge defendant a second time with the same criminal conduct.' Murray, 799 So.2d at 454-5, citing Steele, 387 So. 2d at 1178. Though Louisiana applies an amalgam of the two tests, double jeopardy exists in Louisiana wherever the evidence to support one conviction is necessary to support a conviction for the other. See Drake, 71 So.3d at 461.
Here, the State could not have proven the abuse of office charge without the evidence used to support the forcible rape charge, Nor could it have proven the forcible rape charge without the evidence used to support the abuse of office charge. The same evidence was presented to support convictions On both counts. No distinction existed between the evidence presented to support alconviction for abuse of office and the evidence presented to support a conviction fat forcible rape. This case involves exactly what the "same evidence" test exists to preclude – the State has relabeled the offense to charge Rick Seaton a second time with the same criminal conduct.
ASSIGNMENT OF ERROR NO. 3:
Excessive sentence
On the charge of forcible rape, the Trial Court sentenced Rick Seaton to fifteen years at hard labor, the first three years to be served without benefit of probation, parole or suspension of sentence. On the charge of abuse of of:ice, the Trial Court's sentence was three years at hard labor. The Trial Court orde* the sentences to be served concurrently. (Vol. V p. 1003). Even run concurrently, these sentences are excessive under the facts and circumstances of this case. A sentence which falls within the statutory limits, may violate a defendant's constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La. 1979) and State v. Johnson, 97-1906 (La. 3/3/98); 769 So.2d 672. The sentencing Judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessiv' in the absence of a manifest abuse of discretion by the Sentencing Judge, State v. Bonnanno, 384 So. 2d 355 (La. 1980) and State v. Cunningham, 431 Sold 854 (La. App. 2d Cir. 1983), writ denied 438 So.2d 1112 (La. 1983). A sentence is constitutionally excessive in violation of La. Const. Article I, Section 20, if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonnanno, supra and State v. Cilinningham, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So. 2d 288 (La. 1985); State v. Richardson, 545 So. 2d 714 (La. App. 2 Cir. 1980); State v. Major, 604 So. 2d 137 (La. App. 2 Cir. 1992).

It is not necessary for the trial court to articulate whitch aggravating and mitigating circumstance listed in. La. C.-Cr:P. Article 894.1 in every case. However, it is necessary for the record to indicate those factors were adequately considered in particularizing the sentence to the person before the court. State v. Smith, 433 So.2d 688 (La. 1983). Once that determination is made the next inquiry is whether or not there is a sufficient factual basis for the sentence, which is clearly shown by the record. It is the goal of La. C.Cr.P. Article 894.11 to provide a factual basis- for the sentence imposed; thus providing a record that will allow for a reasoned review of the sentence. State v. Lanclos, 419 So4244r7:5 (La. 1982). There are a number of factors that should be considered: he should review the defendant's personal history; his prior-criminal record, the seriousness of the offense; the likelihood he will commit another' crime, his potential for rehabilitation through correctional services other than confinement.. State v. Jones, 398S Sc.2d 1049)(La, 1981.)
In State v. Telsee 425 SO: 2d 1251 (La. 1983). The Louisiana Supreme Court set forth several factors: to be used in "determining whether- the sentence by its excessive length or severity is greatly disproportionedi to the underlying offense." Citing Hart v. Coiner, 483 P.2d 1136, 1401 (4th: Cir. 1973, Furman.- Georgia, 408. U.S. 238 (1972) (Brennan, J. Concurring) and Rummel v. Estelle-445US.263 (1980) (Powell, J. dissenting) the Court in Telsee held, "Disproportionality analysis; is cumulative and focuses on a combination of these factors. The initial elements to, be analyzed in determining whether the punishment is constitionallly disproportionate are the nature of the offense and the offender.” The Telsee Court went on to state, "We have held that the statutory grounds for the selection and imposition of a sentence, La. C.Cr.P. Rt. 8.94.11 (1977), provide helpful criteria for this purpose: Statiew Seputtladb;,367 Sol. ail at...MR. The goal of the legislative scheme embodied in this article is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case. State vs. Jackson, 360 So. 2d 842 (La. 1978)