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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA                                                          *   NO. 2005-KA-0717
VERSUS                                                                      *   COURT OF APPEAL
MICHAEL FERNANDEZ                                                           *   FOURTH CIRCUIT
                                                                            *   STATE OF LOUISIANA
*
*
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 440-905, SECTION “D”
Honorable Frank A. Marullo, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr.,
and Judge Edwin A. Lombard)
Eddie J. Jordan, Jr.
District Attorney
Michael G. Morales
Assistant District Attorney
310 Andrew Higgins Drdive
New Orleans, LA   70130
COUNSEL FOR PLAINTIFF/APPELLEE
Laura Pavy
LOUISIANA APPELLATE PROJECT
P.O. Box 750602
New Orleans, LA   7017-50602
COUNSEL FOR DEFENDANT/APPELLANT




AFFIRMED AND REMANDED
The Appellant, Michael Fernandez, appeals his conviction and
sentence for aggravated rape, aggravated kidnapping and aggravated
burglary. We affirm and remand to the trial court for sentencing.
Procedural History
On July 31, 2003, the Orleans Parish Grand Jury indicted defendant,
Michael Fernandez (“Fernandez”) on the following nine counts: (1) the May
20, 2002 aggravated rape of D.D., a violation of La. R.S. 14:42; (2) the May
20, 2002 simple burglary of an inhabited dwelling belonging to D.D., a
violation of La. R.S. 14:62.2; (3) the May 3, 2003 aggravated rape of D.D., a
violation of La. R.S. 14:42; (4) the May 3, 2003 aggravated kidnapping of
D.D., a violation of La. R.S. 14:44; (5) the May 18, 2003 aggravated
burglary of an inhabited dwelling belonging to Patrick Rogan and Lydia
Hopkins, a violation of La. R.S. 14:60; (6) the May 18, 2003 aggravated
kidnapping of Amanda White, a violation of La. R.S. 14:44; (7) the May 18,
2003 aggravated kidnapping of Conner Richardson, a violation of La. R.S.
14:44; (8) the May 2, 2003 simple burglary of an inhabited dwelling
belonging to Jacqueline Joyce, a violation of La. R.S. 14:62.2; and, (9) the
May 25, 2003 aggravated burglary of an inhabited dwelling belonging to




Joseph and Wilmae Spedale, a violation of La. R.S. 14:60.
On August 5, 2003 Fernandez appeared before the trial court for
arraignment and pled not guilty to all charges.
The trial court heard and denied Fernandez’s Motion to Suppress
Identifications on October 2, 2003.  Further, the trial court heard and denied
his Motion to Suppress Evidence on May 14 and 20, 2004.  On May 15,
2004, the State brought its case against Fernandez to trial before a twelve-
person jury.  The evidence phase of the trial lasted from November 16
through 19, 2004.  Due to media publicity, the trial court sequestered the
jury from November 17, 2004 through the close of the trial.  In any event,
the State introduced seventy-four exhibits and presented testimony from
twenty-three witnesses.  The defense presented testimony from two
witnesses.  The defendant did not testify on his own behalf.  After
deliberations, the jury convicted Fernandez of counts 3 through 7.
Fernandez filed a Motion for New Trial, which the trial court denied
on April 4, 2005.  The trial court did not wait twenty-four hours after the
denial of Fernandez’s Motion for New Trial, as per La. C.Cr.P. art. 873,
before it imposed sentence.  Instead, the trial court sentenced defendant on
April 4, 2005.  Specifically, the trial court sentenced Fernandez to four
sentences of life at hard labor without benefit of probation, parole, or




suspension of sentence for the aggravated rape and three aggravated
kidnapping convictions.  Further, the trial court sentenced Fernandez to
twelve years at hard labor for the aggravated burglary conviction.  The trial
court did not state whether the sentences are to be served concurrently or
consecutively.
Fernandez made an oral Motion to Reconsider Sentence on April 4,
2005.   The record and the minute entries fail to show whether the trial court
ruled on Fernandez’s oral motion.  Further, neither the record nor the
sentencing transcript shows that Fernandez filed or made a Motion for
Appeal.  Rather, at the close of the sentencing Fernandez asked the trial
court to assign the Louisiana Appellate Project to act as his counsel on
appeal.  The trial court granted Fernandez’ oral motion.
Assignments of Error
Fernandez argues two assignments of error on appeal: 1) that the
State’s evidence was insufficient to support two of the three aggravated
kidnapping verdicts; and, 2) that the trial court imposed illegally excessive
sentences.
This Court finds that the first assignment of error is without merit.
However, a review of the instant case reveals that Fernandez’s sentences
would be premature in light of the trial court’s failure to act on his Motion




for Reconsideration of Sentence.
Statement of the Facts
Fernandez was tried for crimes relating to four distinct incidents.  The
first incident concerned the May 20, 2002 simple burglary of a house owned
by D.D. and aggravated rape of D.D.  The second incident concerned the
May 3, 2003 aggravated rape and aggravated kidnapping of D.D.  The third
incident involved the May 18, 2003 burglary of a house belonging to Lydia
Hopkins, and aggravated kidnapping of Amanda White and Conner
Richardson.  The fourth incident involved the May 25, 2003 aggravated
burglary of a house belonging to, and occupied by, Joseph and Wilmae
Spedale.  This Opinion will discuss incidents two and three, but will omit
discussion of incidents one and four because no convictions arose out of the
charges stemming from these incidents.
Incident Two
D.D. testified that on May 3, 2003 she had fallen asleep on a bed in
front of the television in a back room of her home.  She awoke to find a man
standing over her trying to unbutton her clothes.  After the incident, D.D.
picked Fernandez out of a photographic lineup and identified him as the
intruder.  Further, D.D. identified Fernandez from the witness stand as the
intruder.  As soon as she woke up, Fernandez told her to shut up and began




to hit her in the face.  D.D. asked Fernandez repeatedly how he got in the
house.  Fernandez stated:   “You gave me a key the last time I was here.”
D.D. testified that she knew Fernandez was lying.  In any event, D.D.
testified that Fernandez kept hitting her but she tried to fight him off.
Eventually, Fernandez raped D.D. vaginally and anally.  D.D. testified that
Fernandez stopped because she was bleeding.  Fernandez stated:   “I’m going
to get hepatitis.”  Fernandez then cleaned himself off using an afghan
belonging to D.D.
Fernandez then asked D.D. for money.  D.D. gave him all the money
she had in her purse but Fernandez wanted more.  Accordingly, D.D. then
drove Fernandez to an ATM on Carrollton near its intersection with Oak
Street.  D.D. could not recall whose idea it was to drive to the ATM.  D.D.
testified that during the ride to the ATM Fernandez kept threatening to kill
D.D. if she went to the police.  Regarding Fernandez, D.D. testified:   “he
said that there was somebody on the street watching me.  A brother, he said
that he had a brother on the street that was watching me.” D. D. withdrew
$300.00 from her account, gave it to Fernandez, and dropped him off at
Willow Street.
After she dropped Fernandez off, D.D. returned home, had a drink,
and waited a few hours to call 911.  D.D. testified that she hesitated to call




911 because she was scared that Fernandez would return.  D.D. testified that
she called the police after a couple of hours and that the police came to her
home and spoke with her.
Detective Jeff Jacobs testified that he was assigned to investigate the
May 3, 2003 rape of D.D.  Detective Jacobs stated that he arrived at D.D.’s
house that night and described the crime scene upon his arrival:
The front door of the residence had a burn mark on
it.  The front door contained six window panes.
The bottom left one was broken.
Inside the house they had a window, and the
window was ajar.  The glass was broken and it
looked like the screen had been destroyed.
On top of the air conditioner compressor on that
left side of the house there were pieces of broken
glass which were piled up on top of it.
Inside of the residence where the incident was
supposed to have occurred, the rear room with the
television, they had a bed and a desk.
Detective Jacobs interviewed D.D. and took her to Charity Hospital
for a sexual assault examination.  Sharon Kimmel, a sexual assault nurse at
Charity Hospital, testified that she tended to D.D. in 2003.  Specifically,
Kimmel testified that she interviewed, physically examined, and provided
health and safety information to D.D.  Kimmel also testified that she took




photographs of D.D.’s injuries, and gathered clothing and biological
evidence from D.D. for inclusion in a sexual assault evidence collection kit.
Denise Mire of the Coroner’s Office testified that she tested the
evidence kit assembled by Sharon Kimmel.  Ms. Mire stated that she tested
the physical evidence as well as oral, vaginal, and rectal swabs for the
presence of seminal fluid.  Ms. Mire testified that she was unable to identify
seminal fluid on any of the items presented to her.
Detective Jacobs also called the Crime Lab out to the scene.
According to Detective Jacobs, the Crime Lab technicians took photographs
and collected evidence.  Specifically, Detective Jacobs identified numerous
photographs of D.D. and her home, as well as a blanket that was seized as
evidence.  Detective Jacobs also identified a video surveillance tape from the
Fidelity Homestead on Carrollton near Oak Street which showed D.D.
retrieving money from an ATM machine.  Detective Jacobs further testified
that D.D. was able to assist a forensic artist in the preparation of a composite
sketch of her attacker.  At trial, forensic composite sketch artist Johnny
Donnells identified a sketch that he prepared with the assistance of D.D.
after the May 3, 2003 incident.
Furthermore, the record also shows that the police collected
significant evidence from D.D.’s house after the incident.  Specifically,




Steven Villere testified that he collects evidence from crime scenes for the
Police Department’s Crime Lab.  Mr. Villere testified that he was at D.D.’s
home after the May 3, 2002 incident.  Mr. Villere further testified that he
took numerous photographs of D.D.’s home, collected the broken glass from
the point of entry, six fingerprints, a blowtorch that presumably had been
used on D.D.’s front door, as well as a mattress cover and a blanket from the
room wherein the rape occurred.  The State introduced the six fingerprints
into evidence as State Exhibit Thirty-Eight.
Officer Jay Jacquet testified that he examines latent fingerprints for
the New Orleans Police Department.  He testified that he examined the six
latent fingerprints introduced into evidence as the State’s exhibit and was
able to match three of the six to Fernandez.  Officer Jacquet stated that he
personally took Fernandez’s fingerprints prior to the start of trial and that the
fingerprints he took from Fernandez matched those recovered from D.D.’s
house after the May 3, 2003 incident.
Madeline Collins testified that she is a criminalist with the New
Orleans Police Department’s Crime Lab and that she analyzes evidence for
detectives.  Ms. Collins testified that in the present case she was asked to test
a pair of panties, a tee shirt, a pair of pants, a blanket, and a mattress cover.
Ms. Collins testified that the panties tested positive for human blood; she




found hair on the tee shirt; the pants tested positive for human blood and
seminal fluid, and the blanket and mattress cover tested positive for hair,
human blood, and seminal fluid.  The record shows that the blanket and
mattress cover tested by Ms. Collins were taken from D.D.’s house after the
May 3, 2003 incident and introduced into evidence at trial as State’s Exhibit.
Karen Holmes testified that up until November 2004 she had worked
for the Crime Lab as a DNA analyst.  The record shows that Ms. Holmes
analyzed evidence (specifically cuttings from the blanket and mattress
cover) collected from D.D.’s home after the May 3, 2003 incident.  Further,
Ms. Holmes also analyzed a buccal swab collected from Fernandez’s mouth
pursuant to a search warrant issued after Fernandez’s arrest.  Ms. Holmes
compared the DNA found in the samples of seminal fluid collected from
D.D.’s blanket and mattress cover with the DNA found in the buccal swab
collected from Fernandez.
Ms. Holmes testified that the DNA test results for the seminal fluid
recovered from D.D.’s blanket and mattress cover were consistent with the
DNA collected from the buccal swab taken from Fernandez.  In other words,
Ms. Holmes testified that whoever left the seminal samples on the blanket
and mattress cover would either have to be Fernandez or someone who had
his exact same genetic profile.




According to Detective Jacobs, Fernandez was arrested in the uptown
area for trespassing.  The arresting officers thought that Fernandez matched
the composite sketch of D.D.’s attacker and notified Detective Jacobs of
Fernandez’s arrest.  At virtually the same time, the Crime Lab notified
Detective Jacobs that fingerprints taken from D.D.’s house matched
Fernandez’s.  Fernandez was then arrested for the May 3, 2003 rape of D.D.
Detective Jacobs then revisited D.D. and presented her with a
photographic lineup containing Fernandez’s picture.  D.D. identified
Fernandez as her attacker in the photographic lineup.  Detective Jacobs also
testified that he obtained a warrant for, and eventually collected, a buccal
swab from defendant’s mouth after defendant was arrested for the rape of
D.D.  The jury found defendant guilty of the aggravated rape and aggravated
kidnapping of D.D.  Fernandez does not contest these convictions on appeal.
Incident Three
Victims Conner Richardson and Amanda White went to a friend’s
house on May 17, 2003.  Richardson and White left their friend’s house and
arrived at White’s parents home at 1311 Lowerline Street in New Orleans
around 6:00 a.m. on May 18, 2003.  The house was empty as White’s
parents were out of town at a retreat.  As they approached the front door,
Richardson and White noted that it was slightly ajar.  White explained that




the house was old and neither thought that anything was abnormal.
After walking into the house, Richardson and White noticed that the
family dog, which was kept in the back of the house when the family was
away, was barking loudly.  As Richardson and White walked to the back of
the house to check on the dog, an intruder came out from around a corner
and struck White on the head with a wooden duck decoy belonging to her
stepfather.  White screamed, and the intruder hit her on the head again.  The
intruder then ran past Richardson and White, locked the front door, and
ordered Richardson and White to get down onto the ground and not look at
him.  After the incident, both Richardson and White picked Fernandez out of
a photographic lineup and identified him as the intruder.  Further, both
Richardson and White identified Fernandez from the witness stand as the
intruder.
Richardson and White then got onto the floor and complied with
Fernandez’s order to give him all of their money.  Richardson and White had
approximately sixty-five dollars between them.  Fernandez told them that
this amount was not enough.  Richardson and White testified that Fernandez
then decided that he would take White and their ATM cards and force White
to drive him to a cash machine to get more money.  Fernandez then ordered
White to get up and wait while he duct-taped Richardson to a chair.




Richardson described the event as stressful and chaotic.
Fernandez also ordered White to remember Richardson’s PIN
number.  After Fernandez bound Richardson to a chair, he left with White.
White testified that before they left the scene Fernandez ordered her to
accompany him to an alleyway on the side of the house in order to collect
some personal belongings.  White testified that she asked Fernandez not to
kill her and that he responded that he would not kill her.  White also testified
that she asked Fernandez not to rape her and that he responded that he would
not because he was Catholic.
While they were in the alleyway, Fernandez asked White if she
remembered Richardson’s PIN number.  White responded that she did not
remember the number.  Therefore, White and Fernandez went back into the
house in order to get Richardson’s PIN number.  When they went back
inside, they found that Richardson had nearly freed himself from his bonds.
Fernandez then struck Richardson in the head with a “vacuum head cleaner.”
Fernandez also threatened to stab White if Richardson got up again.
Fernandez then found some rope in the house and tied Richardson to the
chair.
White and Fernandez then left to go to an ATM on Carrollton. When
they arrived at the bank, White learned that she and Richardson only had a




total of approximately $200.00 in their respective accounts.  Accordingly,
Fernandez made White overdraw their accounts and give him the money.
After she withdrew the money, Fernandez ordered White to drive towards
the river.
Fernandez told White that he knew that her family was out of town.
White testified further:                                                           “He showed me some bills that he had picked up,
and he said that he had all of our social security numbers.  That if I did
anything that he would send somebody.   That he had brothers, and that he
would send somebody to kill me and my family.” White testified that she
believed Fernandez’s threats.
After dropping off Fernandez, White returned to the house and untied
Richardson.  Richardson and White then left the house and went to
Richardson’s apartment.  From there, Richardson and White traveled to
Richardson’s parent’s house in Metairie.   White testified that she hesitated to
call the police because she was afraid that Fernandez would make good on
his threats.  In any event, White eventually found the number where her
parents could be contacted.  Her parents returned to New Orleans in
approximately forty-five minutes.   White, Richardson and her parents
eventually went back uptown to the house and called the police.
Lydia Hopkins testified that she lives in the house at 1311 Lowerline




Street in New Orleans with Patrick Rogan, her husband, and her daughter,
Amanda White.  Mrs. Hopkins identified numerous pictures of her house
and testified that Fernandez did not have permission to be in the house.
Sergeant Ken Bowen testified that in May 2003 he was a New Orleans
police officer assigned to the Second District in the Property Crimes
Division.  Detective Bowen also testified that he and his partner, who is no
longer alive, were assigned to conduct a follow-up investigation of the
foregoing incident.  Specifically, Detective Bowen testified that after his
partner interviewed Richardson and White he learned from the New Orleans
Police Department Sex Crimes Division that Fernandez had been arrested for
a nearby home invasion and rape.  Detective Bowen then prepared a
photographic lineup containing Fernandez’s photograph and presented it to
Richardson and White individually.  Bowen testified that both Richardson
and White picked Fernandez out of the lineup as their attacker.
The State also introduced the testimony of William Moran, vice-
president and fraud security manager for Hibernia National Bank.  Moran
testified that he met with Bowen in order to retrieve digital photographs of
White and Fernandez at Hibernia’s ATM on Carrollton.  Moran was able to
find two digital images of White at the ATM.  However, Fernandez’s face
was turned away from the camera in both pictures.  On the stand, White




identified herself in the photos.  The State introduced the pictures into
evidence.  The jury found Fernandez guilty of the aggravated kidnapping of
Richardson and White and the aggravated burglary of the house belonging to
Patrick Rogan and Lydia Hopkins.  Fernandez does not contest the
aggravated burglary conviction.
Errors Patent
A review of the record for errors patent reveals two potential errors.
The first error occurred when the trial court sentenced Fernandez on April 4,
2005, immediately after denying his Motion for New Trial.  Fernandez did
not waive his right to the twenty-four hour delay between the denial of his
Motion for a New Trial and the imposition of sentence.  La. C.Cr.P. art. 873.
In State v. Augustine, 555 So.2d 1331 (La.1990), the Louisiana
Supreme Court held that failure to waive the twenty-four hour delay voided
the defendant's sentence if the defendant attacks his sentence, even though
the defendant fails to specifically allege this failure as an error on appeal.
However, there are instances where the failure to observe the twenty-four
hour delay is determined not to be reversible error although the sentence is
challenged on appeal.
In State v. Bentley, 97-1552 (La. App. 4 Cir. 10/21/98), 728 So.2d
405, this Court held that any error in failing to observe the twenty-four hour




delay in sentencing after the denial of a motion for new trial did not
prejudice a defendant whose original sentence was vacated, and he was then
found to be a habitual offender.  Similarly, this Court has also held that any
error in failing to observe the twenty-four hour delay in sentencing after the
denial of a motion for new trial did not prejudice a defendant who was
sentenced to a mandatory life imprisonment at hard labor without benefit of
probation, parole or suspension of sentence.   State v. Allen, 94-1895 (La.
App. 4 Cir. 9/15/95), 661 So.2d 1078.
In the present case, the trial court sentenced Fernandez to four
sentences of mandatory life imprisonment for his aggravated rape and
aggravated kidnapping convictions and one twelve-year sentence for his
aggravated burglary conviction.  On appeal, Fernandez asserts that the
imposition of four mandatory minimum life sentences was excessive. He
fails to argue that the twelve-year sentence for his aggravated burglary
conviction was excessive.  The second error occurred when the trial court
failed to rule on Fernandez’s Motion for Reconsideration of Sentence.
Specifically, at the very end of Fernandez’s sentencing hearing his attorney
stated:                                                                          “One last oral motion, Judge, for the court to reconsider the
sentence.” The trial court responded:   “It’s filed in the record.”
A review of the record reveals that Fernandez failed to file a written




Motion to Reconsider Sentence.  Further, the oral motion did not specify the
grounds upon which it was based.  Therefore, Fernandez is relegated to
having this court review his sentence based only on the bare claim of
excessiveness.  State v. Mims, 619 So.2d 1059 (La. 1993).
Defendant’s second assignment of error asserts an excessiveness
claim.  Nevertheless, the record fails to show that the trial court ruled on
defendant’s motion for reconsideration.
This Court has held that it cannot conduct an excessiveness review of
a sentence when a trial court fails to rule on a defendant’s motion for
reconsideration.  See State v. Davis, 2000-0275, pp. 10-11(La. App. 4 Cir.
2001), 781 So.2d 633, 640.  When this Court has affirmed a conviction, yet
found that the trial court failed to rule on a defendant’s motion to reconsider
sentence, this Court has held that an excessiveness review would be
premature and ordered the case remanded for ruling on the motion.   See
State v. Allen, 1999-2579 (La. App. 4 Cir. 1/24/01), 781 So.2d 88.
As previously noted, Fernandez’s first assignment of error asserts that
two of the underlying life-sentence convictions should be reversed.  Further,
his second assignment of error asserts that his four life sentences are
illegally excessive.  Therefore, two of Fernandez’s underlying life sentence
convictions are final.
Legal Analysis




Assignment of Error No. 1
Fernandez’s first assignment of error argues that this Court should
reverse his convictions for the aggravated kidnappings of Conner
Richardson and Amanda White because the evidence presented was
insufficient to support the convictions.  Specifically, in order to prove that an
individual is guilty of the crime of aggravated kidnapping the State must
show, among other things, that a defendant intended to force his victim to
give up anything of value in order to secure a release of the person under the
defendant’s control.
Fernandez does not assert that the State failed to prove the other
elements of aggravated kidnapping vis-à-vis Richardson and White.  Rather,
he argues that the State failed to show that he intended to force Richardson
and White to give up something of value in exchange for their release.
The standard for reviewing a claim of insufficient evidence is
whether, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found all of the essential
elements of the offense proven beyond a reasonable doubt.   Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).  The reviewing court is to
consider the record as a whole and not just evidence most favorable to the
prosecution; and if rational triers of fact could disagree as to the




interpretation of the evidence, the rational decision to convict should be
upheld.  State v. Mussall, 523 So. 2d 1305 (La. 1988).  Additionally, the
reviewing court is not called upon to decide whether it believes the
witnesses or whether the conviction is contrary to the weight of the
evidence.  Id.  The trier of fact’s determination of credibility is not to be
disturbed on appeal absent an abuse of discretion.   State v. Cashen, 544 So.
2d 1268 (La. App. 4 Cir. 1989).
When circumstantial evidence forms the basis for the conviction, such
evidence must exclude every reasonable hypothesis of innocence.  La. R.S.
15:438.  The court does not determine whether another possible hypothesis
suggested by the defendant could afford an exculpatory explanation of the
events.  Rather, this court when evaluating the evidence in the light most
favorable to the prosecution, must determine whether the possible alternative
hypothesis is sufficiently reasonable that a rational juror could not have
found proof of guilt beyond a reasonable doubt under Jackson.  State v.
Davis, 92-1623 (La. 5/23/94), 637 So. 2d 1012.  This is not a separate test
from Jackson, but is instead an evidentiary guideline for the jury when
considering circumstantial evidence, and this test facilitates appellate review
of whether a rational juror could have found the defendant guilty beyond a
reasonable doubt.  State v. Wright, 445 So. 2d 1198 (La. 1984).




La. R.S. 14:44 provides:
Aggravated kidnapping is the doing of any of the
following acts with the intent thereby to force the
victim, or some other person, to give up anything
of apparent present or prospective value, or to
grant any advantage or immunity, in order to
secure a release of the person under the offender’s
actual or apparent control:
(1) The forcible seizing and carrying of any person
from one place to another; or
(2) The enticing or persuading of any person to go
from one place to another; or
(3) The imprisoning or forcible secreting of any
person.
Whoever commits the crime of aggravated
kidnapping shall be punished by life imprisonment
at hard labor without benefit of parole, probation,
or suspension of sentence.
At issue is whether the “extortion” element was satisfied.  The
Louisiana Supreme Court addressed this particular issue in State v. Arnold,
548 So.2d 920 (La. 1989).  In Arnold, the defendant grabbed the victim as
she was unlocking her car door, forced her to get into his car, and drove off.
As he was driving, the defendant prevented the victim's escape, holding her
down on the seat by the hair and threatening her with a knife.  The defendant
stopped in the parking lot of an apartment complex and told the victim to
remove her pants and underwear.  He then attempted to vaginally rape her
three times, but was unable to achieve penetration.  Consequently, he forced




her at knife point to perform oral sex on him.  He then stuck a towel in her
mouth and told her to leave.  As she tried to do so, he grabbed her by the
hair and stabbed her in the neck.  The victim pulled the knife from her neck
and ran off.
The defendant in Arnold was convicted of attempted aggravated rape,
aggravated crime against nature, attempted second degree murder, and
aggravated kidnapping.  The Second Circuit reversed the aggravated
kidnapping conviction, finding no evidence to prove that the defendant had
forced the victim to have sex with him for the specific purpose of securing
her release.
The Louisiana Supreme Court reversed, finding that sufficient
evidence existed to support the conviction, stating that the relevant factor
was not whether the defendant explicitly told the victim that having sex with
him would secure her release.  Instead, the issue was whether the kidnapper
"sought to obtain something of value, be it sex or money or loss of simple
human dignity, by playing upon the victim's fear and hope of eventual
release in order to gain compliance with his demands."   Arnold, 548 So.2d at
925.   The Supreme Court noted further that the requisite “intent is
manifested not merely by the kidnapper’s words or actions, but by analyzing
whether a reasonable person in the victim’s place, given the totality of the




circumstances, would believe that he or she would not be safely released
unless he or she complied with the kidnapper’s demands. . .                     .”   Id., at 924.
In other words, the “extortion” element looks “to the victim’s perception of
what he or she must do in order to survive.”   Arnold, 548 So.2d at 925.
A review of the evidence in the light most favorable to the prosecution
shows that a rational trier of fact could have found that Fernandez committed
the crime of aggravated kidnapping against Richardson and White. The
evidence shows that Fernandez:   (1) repeatedly struck, punched, and kicked
Richardson and White; (2) made, what Richardson considered to be, sexual
threats against Richardson and White; (3) forced both victims to reveal the
PIN numbers to their bank accounts; (4) compelled White to take him to an
ATM and withdraw the victims’ money; and, (5) threatened to stab and kill
White.  Further, the evidence establishes that all of these events transpired
against a backdrop of fear, threat, intimidation, and violence.
Viewing the evidence in a light most favorable to the State, a
reasonable person in either Richardson’s or White’s place, given the totality
of the circumstances, would believe that they would not be safely released
unless they complied with Fernandez’s demands.  Therefore, the
undersigned asserts that Fernandez’s first assignment of error lacks merit.
Assignment of Error No. 2




Fernandez’s second assignment of error asserts that his four
mandatory minimum life sentences are illegally excessive.  As previously
discussed, an excessiveness review is premature because the trial court failed
to rule on Fernandez’s Motion to Reconsider Sentence.
Decree
Accordingly, we affirm Michael Fernandez’s conviction and remand
this matter to the trial court for consideration of Fernandez’s Motion to
Reconsider Sentence.  Further, this Court reserves Fernandez’s right to
appeal from the trial court’s ruling on his motion and his sentences.
AFFIRMED AND REMANDED

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