                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #050


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 14th day of October, 2015, are as follows:




BY WEIMER, J.:


2014-K -1172      STATE OF LOUISIANA v. TOBY JAMES FRUGE (Parish of Lafayette)
                  (Forcible Rape 2 Counts)

                  Finding no manifest abuse of the district court’s broad
                  sentencing discretion in this case, we reverse those portions of
                  the appellate court decision that (1) vacated the simple rape
                  sentence and (2) remanded the matter to the district court for
                  resentencing.    The district court’s simple rape sentence is
                  reinstated, and the matter is remanded for execution of the
                  sentence.
                  REVERSED IN PART; SIMPLE RAPE SENTENCE REINSTATED; REMANDED FOR
                  EXECUTION OF SENTENCE.
10/14/15

                       SUPREME COURT OF LOUISIANA


                                   NO. 2014-K-1172

                               STATE OF LOUISIANA

                                       VERSUS

                               TOBY JAMES FRUGE

                    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                         THIRD CIRCUIT, PARISH OF LAFAYETTE



WEIMER, Justice.

         The state’s writ application was granted to review those portions of the

appellate court decision that reversed the district court’s imposition of the maximum

sentence for defendant’s simple rape conviction and remanded the case to the district

court with instructions for resentencing. For the following reasons, we reverse the

decision of the appellate court, in part, reinstate defendant’s simple rape sentence, and

remand to the district court for the execution of the sentence.

                        FACTS AND PROCEDURAL HISTORY

         Toby James Fruge was charged with the forcible rape1 of two women, R.A.

(count 1) and J.H. (count 2), in two separate incidents that occurred approximately

two years apart.

         In 2004, R.A., approximately 20 years old, went out for drinks after work with

a friend. While consuming drinks at a bar, R.A. danced with defendant before



1
    See La. R.S. 14:42.1.
leaving with her friend. Distracted by defendant who was following them in his

vehicle, R.A.’s friend inadvertently steered her car into a ditch. Thereafter, defendant

drove R.A.’s friend home and, then, while supposedly in route to R.A.’s home, took

R.A., who was sleeping or passed out, to a dark gravel road where he grabbed her, put

her in the driver’s seat, pulled down her pants, and raped her while she screamed and

begged for her life. After the rape, defendant drove R.A. home.

       In 2006, 20-year-old J.H. spent the night at her sister’s home and played a

drinking game with defendant and her sister’s fiancé. She then went to sleep on the

couch, only to awaken when defendant, who had pulled down her jeans and

underwear to her knees, held her down by her breasts. After penetration by

defendant, J.H. pushed him onto the floor and ran crying to her sister’s room while

defendant ran out of the residence and fled the scene in his car as he was being

pursued on foot by the fiancé of J.H.’s sister.

       These counts were tried together. Although at trial defendant maintained that

the sex with R.A. in 2004 was consensual and he denied having sex with J.H. in 2006,

a jury in 2009 found defendant guilty of the forcible rape of R.A. and guilty of the

simple rape of J.H.2 He was then sentenced to 30 years of imprisonment at hard labor

with at least two years served without the benefit of probation, parole, or suspension

of sentence on the forcible rape3 and to 25 years of imprisonment at hard labor




2
   Although both counts charged defendant with forcible rape, a verdict of simple rape is a
permissible verdict to the charge of forcible rape. See La. C.Cr.P. art. 814(A)(10),
3
  “Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than
five nor more than forty years. At least two years of the sentence imposed shall be without benefit
of probation, parole, or suspension of sentence.” La. R.S. 14:42.1(B).

                                                2
without the benefit of probation, parole, or suspension of sentence on the simple rape

conviction.4 The sentences were ordered to run concurrently.

       On appeal of the convictions and sentences, the appellate court examined the

underlying facts of both rapes and found there was sufficient evidence to affirm the

convictions; however, the sentences for both were vacated. See State v. Fruge,

09-1131 (La.App. 3 Cir. 4/7/10), 34 So.3d 422, writ denied, 10-1054 (La. 11/24/10),

50 So.3d 828. The appellate court vacated the forcible rape sentence because it

lacked specification of the number of years to be served “without benefit.” Id.,

09-1131 at 2, 34 So.3d at 424. The simple rape sentence was also vacated in the

absence of findings to support the imposition of the maximum available sentence.

Id., 09-1131 at 20, 34 So.3d at 434. The matter was remanded for resentencing to

allow the district court to impose a determinate sentence relative to the forcible rape

conviction and to comply with the sentencing guidelines of La. C.Cr.P. art. 894.15

relative to the simple rape conviction. Id.

       On remand, defendant was resentenced by the district court to 30 years of

imprisonment at hard labor for the forcible rape conviction, two years of which was

ordered to be served without the benefit of parole, probation, or suspension of

sentence. As to the simple rape conviction, defendant was again sentenced to 25

years of imprisonment at hard labor “without benefit.” Once more, these sentences

were ordered to run concurrently.




4
  “Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor,
without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years.”
La. R.S. 14:43(B).
5
 The appellate court specifically found lacking a statement on the record of the considerations and
basis of the sentence. See La. C.Cr. P. art. 894.1(C).

                                                  3
       While examining the sentences for excessiveness, the appellate court observed

that the district court found the crimes “manifested deliberate cruelty to the victims;

that the offenses were violent and brutal in nature; and that the offenses resulted in

significant physical and psychological suffering to the victims.” State v. Fruge,

13-1386, p. 5 (La.App. 3 Cir. 5/7/14), 139 So.3d 602, 605. Notably, the 32-year-old

defendant had a “couple” of misdemeanor convictions, but no prior felony

convictions. Fruge, 13-1386 at 6, 139 So.3d at 605. However, defendant, as

observed by the district court, had been convicted in this case of two separate rapes.

Id.

       Comparing the forcible rape sentence to that imposed in State v. Steele,

10-1336 (La.App. 3 Cir. 5/4/11), 63 So.3d 412,6 the appellate court found that the

district court did not abuse its discretion in imposing a 30-year sentence and

restricting only two years of that sentence to “without benefit.” See Fruge, 13-1396

at 7, 139 So.3d at 606. Accordingly, the forcible rape sentence was affirmed. As to

the 25-year sentence on the simple rape conviction, the district court considered the

sentences imposed in State v. Clark, 05-0647 (La.App. 3 Cir. 12/30/05), 918 So.2d

552,7 and State v. Cleveland, 12-0163 (La.App. 4 Cir. 4/10/13), 115 So.3d 578, writ

denied, 13-0926 (La. 11/8/13), 125 So.3d 444.8 Finding that the record supported

neither a determination that defendant was the worst type of offender nor the

imposition of the maximum 25-year sentence, the appellate court vacated the simple



6
  The Steele court sentenced defendant to 30 years at hard labor “without benefit.” Steele, 10-1336
at 1, 63 So.3d at 413,
7
  The Clark court ultimately reduced the verdict from forcible rape to simple rape and then directed
that the sentence for that offense be reduced by the district court to five years or less. Clark,
05-0647 at 5, 918 So.2d at 556.
8
  In Cleveland, the court affirmed a 15-year sentence on a conviction for the simple rape of an
inebriated victim.

                                                 4
rape sentence and “remand[ed] the matter instructing the [district] court that a

mid-range sentence at hard labor, with no opportunity for probation or parole, to run

concurrently with the thirty-year sentence for forcible rape, is supported by the

record.” See Fruge, 13-1386 at 9, 139 So.3d at 607.

      The dissenting appellate court judge was troubled by the majority’s focus “on

the maximum sentence for simple rape” and its failure to properly consider “the total

sentencing exposure for both crimes.” Id., 13-1386 at 2 n.2, 139 So.3d at 608 n.2

(Conery, J., dissenting). Admittedly, a lesser sentence “may have been more

appropriate” on the simple rape conviction under the facts of this case; however, the

dissenting judge cautioned that the appellate court “should not substitute [its]

judgment for that of the trial judge.” Id., 13-1386 at p. 2 n.2 and p. 3, 139 So.3d at

608 n.2 and 609 (Conery, J., dissenting). Given that defendant’s crimes involved two

separate victims in two separate incidents, the district court had the discretion to run

the sentences consecutively. See id., 13-1386 at 2, 139 So.3d at 608 (Conery, J.,

dissenting). Although defendant could have possibly been sentenced to a total

maximum term of 65 years of imprisonment at hard labor without benefit of parole,

probation, or suspension of sentence for the two rapes, the district court judge

exercised sentencing restraint by ordering that defendant’s sentences run

concurrently, thereby, making his total term of imprisonment for the two rapes 30

years. Id. Therefore, in the opinion of the dissenting judge, the 25-year simple rape

sentence was not constitutionally excessive, especially when considering the

deference afforded to the district court in this regard. See id., 13-1386 at 3, 139 So.3d

at 609 (Conery, J., dissenting).

      From that portion of the appellate court’s decision that vacated the simple rape

sentence, the state sought review by this court, contending that the appellate court

                                           5
erred in finding that the simple rape sentence was excessive under the facts of this

case and in ordering the imposition of a mid-range sentence for simple rape to run

concurrently with his sentence for forcible rape.9 The state’s writ application was

granted for consideration of whether the district court abused its sentencing discretion

under the facts of this case by imposing the maximum sentence for defendant’s simple

rape conviction. See State v. Fruge, 14-1172 (La. 4/24/15), 168 So.3d 406.

                                          DISCUSSION

       The imposition of a sentence, even though within statutory limits, may violate

a defendant’s right, under the Louisiana Constitution,10 against excessive punishment.

State v. Campbell, 404 So.2d 1205, 1207 (La. 1981). A penalty is excessive if it is

grossly disproportionate to the severity of the crime. See State v. Goode, 380 So.2d

1361, 1364 (La. 1980).               In determining whether the penalty is grossly

disproportionate to the crime, a reviewing court must consider the punishment and

the crime in light of the harm to society caused by its commission and decide whether

the penalty is so disproportionate to the crime committed as to shock the sense of

justice. See id., citing Gregg v. Georgia, 428 U.S. 153, 187 (1976).

       The following factors are useful in determining whether a sentence, by its

excessive length or severity, is grossly out of proportion to the underlying crime: the

nature of the offense and the offender, a comparison of the punishment in this case

with the sentences imposed for similar crimes, the legislative purpose behind the

punishment, a comparison of the punishment with sentences imposed for similar




9
  Defendant has challenged the 30-year forcible rape sentence for excessiveness in a separate writ
proceeding that is currently pending before this court. See State v. Fruge, 2014-KO-1088.
10
  See La. Const. Art. I, § 20 (“No law shall subject any person to euthanasia, to torture, or to cruel,
excessive, or unusual punishment.”).

                                                  6
crimes, and a comparison of the punishment provided for this crime in other

jurisdictions. State v. Smith, 99-0606, p. 18 (La. 7/6/00), 766 So.2d 501, 514-15.

      Here, the district court noted the seriousness of the offenses, stating that

defendant’s “conduct during the commission of the offenses manifested deliberate

cruelty to the victims.” The nature of the offenses was characterized as “violent and

brutal.” The offenses were found to have “resulted in significant physical and

psychological suffering to the victims.” Although defendant challenges this finding

based on the lack of medical evidence, witness testimony provides a reasonable basis

for this finding. Furthermore, the district court had the opportunity to observe the

demeanor and mannerisms of witnesses, including inflections or hesitations in their

voices or manner of speaking, in determining credibility. While defendant was a

first-time offender, the district court observed that defendant had been convicted by

the jury in this case of two separate rapes, occurring two years apart.

      A comparison of defendant’s punishment for the simple rape conviction with

sentences imposed for similar crimes, particularly, in Clark, 05-0647 at 5, 918 So.2d

at 556, and Cleveland, 12-0163 at 17, 115 So.3d at 588, raises questions as to the

district court’s imposition of the maximum sentence in this case. While a comparison

of sentences imposed for similar crimes may provide some insight, “sentences must

be individualized to the particular offender and to the particular offense committed.”

State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir. 1991). It is within the purview of the

district court to particularize the sentence because the district court “remains in the

best position to assess the aggravating and mitigating circumstances presented by

each case.” State v. Cook, 95-2784, p. 2 (La. 5/31/96), 674 So.2d 957, 958. The

district court is given wide discretion in the imposition of sentences within statutory

limits, and the sentence imposed should not be set aside as excessive in the absence

                                          7
of a manifest abuse of discretion by the trial court. State v. Spencer, 374 So.2d

1195, 1202 (La. 1979). Therefore, the only relevant question on review is “whether

the [district] court abused its broad sentencing discretion, not whether another

sentence might have been more appropriate.” Cook, 95-2784 at 3, 674 So.2d at 959,

quoting State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984).

        In this case, defendant was indicted for two counts of forcible rape arising from

separate incidents during which he took advantage of different intoxicated young

women years apart. The district court imposed a sentence of 30 years, ten years shy

of the maximum, with only two years being “without benefit,” the minimum term of

parole disability, for the 2004 forcible rape, while it imposed a sentence of 25 years,

the maximum, for the 2006 simple rape. The district court did not explain why it

punished defendant for less than the maximum sentence for the more serious offense

of forcible rape, but imposed the maximum sentence for the less serious offense.

However, we note that under La. R.S. 15:574.4(B)(1),11 defendant would not become

eligible for early release on parole on the 30-year forcible rape sentence until he

served 25-and-a-half years of imprisonment at hard labor, which is longer than his

25-year simple rape sentence.

        Important to the consideration of the excessiveness of the simple rape sentence

is the fact that the district court ordered the sentences in this case to run concurrently.

Under La. C.Cr.P. art. 883, it is presumed that consecutive sentences are ordinarily

appropriate for crimes, as in the instant case, that do not form part of the same

transaction or series of transactions. Apparently because defendant was a first-time




11
   “Notwithstanding any other provisions of law to the contrary, a person convicted of a crime of
violence and not otherwise ineligible for parole shall serve at least eighty-five percent of the sentence
imposed, before being eligible for parole.” La. R.S. 15:574.4(B)(1).

                                                   8
felony offender,12 the district court, after considering the sentences imposed for the

forcible rape conviction and the simple rape conviction, believed that the imposition

of concurrent rather than consecutive sentences was proper.13

         The crime of simple rape presupposes that the defendant has taken advantage

of the victim’s abnormal state of mind induced by intoxication or any other cause.

See La. R.S. 14:43(A).14            That a defendant may have taken advantage of an

12
   At the time of trial, defendant was technically a first offender and could not have been sentenced
as a second offender under La. R.S. 15:529.1 on the simple rape conviction because he did not
commit the 2006 sexual assault on J.H. after his 2009 conviction for the 2004 attack on R.A. See
La. R.S. 15:529.1(A)(1), which at the time of the offenses, provided:

                 Any person who, after having been convicted within this state of a felony or
         adjudicated a delinquent under Title VIII of the Louisiana Children’s Code for the
         commission of a felony-grade violation of either the Louisiana Controlled Dangerous
         Substances Law involving the manufacture, distribution, or possession with intent
         to distribute a controlled dangerous substance or a crime of violence as listed in
         Paragraph (2) of this Subsection, or who, after having been convicted under the laws
         of any other state or of the United States, or any foreign government of a crime
         which, if committed in this state would be a felony, thereafter commits any
         subsequent felony within this state, upon conviction of said felony, shall be punished
         as follows: ....

See 2001 La. Acts 403, § 2, effective June 15, 2001. Louisiana R.S. 15:529.1(A)(1) was enumerated
as La. R.S. 15:529.1(A) and rewritten by 2010 La. Acts 911, § 1 and 973, § 2 to read:

                 Any person who, after having been convicted within this state of a felony, or
         who, after having been convicted under the laws of any other state or of the United
         States, or any foreign government of a crime which, if committed in this state would
         be a felony, thereafter commits any subsequent felony within this state, upon
         conviction of said felony, shall be punished as follows: ....

The habitual offender statute does not create a separate offense or punish an individual for past
crimes; rather the statute increases punishment on the basis of an individual’s status as a repeat
offender. The goal is to deter and punish recidivism by punishing more harshly those who commit
the most crimes because of their continuing disregard for the law. State v. Johnson, 97-1906 (La.
3/4/98), 709 So.2d 672, 677.
13
   See State v. Underwood, 353 So.2d 1013, 1019 (La. 1977) (“theory and practice” dictate that
“concurrent rather than consecutive sentences are the usual rule, at least for a defendant without
previous criminal record and in the absence of a showing that the public safety requires a longer
sentence.”).
14
     In pertinent part, La. R.S. 14:43 (A) provides:

                Simple rape is a rape committed when the anal, oral, or vaginal sexual
         intercourse is deemed to be without the lawful consent of a victim because it is
         committed under any one or more of the following circumstances:

                 (1) When the victim is incapable of resisting or of understanding the nature

                                                   9
unconscious or sleeping victim alone does not place him among the most

blameworthy of offenders committing the crime of simple rape.15 Nevertheless, the

evidence related to the similar sexual assaults in this case shows that this defendant

had engaged in a pattern of preying on young, incapacitated women, a factor the

district court was free to consider in rendering the sentences in this case. Considering

defendant’s 2006 rape of J.H. in the context of his behavior over an extended period

of time, rather than in isolation, we are unable to find that the district court manifestly

abused its broad sentencing discretion by imposing the maximum term of

imprisonment for the rape of J.H., particularly since the district court would have

been justified in ordering consecutive sentences in this case, thus, extending the

period for parole ineligibility.16 Under the facts of this particular case, the reduction

in sentencing exposure that defendant received by the district court’s decision to




       of the act by reason of a stupor or abnormal condition of mind produced by an
       intoxicating agent or any cause and the offender knew or should have known of the
       victim's incapacity.

              (2) When the victim, through unsoundness of mind, is temporarily or
       permanently incapable of understanding the nature of the act and the offender knew
       or should have known of the victim’s incapacity.
15
  Maximum sentences are ordinarily reserved for the worst offenders committing the most serious
violations of the charged crime. See State v. Lathers, 444 So.2d 96, 100 (La. 1983); State v.
Telsee, 425 So.2d 1251, 1253 (La. 1983); State v. Quebedeaux, 424 So.2d 1009, 1014 (La. 1982).

   J.H. was not prevented from resisting the act by the use of force once she awoke and pushed
defendant off her. However, J.H.’s resistance was too late to keep defendant from taking advantage
of her while she was in alcohol aided, if not alcohol induced, sleeping condition on the couch.
Because of her intoxicated state, defendant was able to, without resistance, take down J.H.’s pants
and underwear and penetrate her in the commission of a simple rape before she regained full
awareness of what was happening and responded.

16
   This holding is in accord with jurisprudential guidelines for sentence review under La. Const. art.
I, § 20. See State v. Strother, 09-2357, p. 17 (La. 10/22/10), 49 So.3d 372, 382 (“[T]he goal of
sentence review is not to fine tune the sentence imposed according to what an appellate court may
conclude is the more appropriate punishment for the offense and for the particular offender, but to
identify those sentences which fail to serve any of the recognized penological goals of sentencing
and thus result in the needless infliction of pain and suffering.”) (citation omitted).

                                                 10
order the sentences to run concurrently supports the constitutionality of defendant’s

simple rape sentence.




                                         11
                                      DECREE

      Finding no manifest abuse of the district court’s broad sentencing discretion

in this case, we reverse those portions of the appellate court decision that (1) vacated

the simple rape sentence and (2) remanded the matter to the district court for

resentencing. The district court’s simple rape sentence is reinstated, and the matter

is remanded for execution of the sentence.

      REVERSED IN PART; SIMPLE RAPE SENTENCE REINSTATED;

REMANDED FOR EXECUTION OF SENTENCE.




                                          12
