State Of Louisiana v. Johnny Moore, Jr.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 KA 0417

STATE OF LOUISIANA

VERSUS

JOHNNY MOORE, JR.

Judgment Rendered: DEC 2 2 2021

On Appeal from the
17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
1 Trial Court No. 582998

Honorable Christopher J. Boudreaux, Judge Presiding

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C

Lieu T. Vo Clark Attorney for Defendant -Appellant,
Mandeville, LA Johnny Moore, Jr.

Kristine M. Russell Attorneys for Appellee,
District Attorney State of Louisiana
Gregory G. Stahlnecker
Assistant District Attorneys
Thibodaux, LA

BEFORE: WHIPPLE, C. J., PENZATO, AND RESTER, JJ.

HESTER, J.

A grand jury charged defendant, Johnny Moore, Jr., by bill of indictment with

first degree rape, a violation of La. R. S. 14: 42. He pled not guilty. After a trial,

jurors found defendant guilty as charged. The trial court imposed a sentence of life

imprisonment at hard labor, to be served without the benefit of probation, parole, or

suspension of sentence. Defendant now appeals. For the following reasons, we

affirm the conviction and sentence.

STATEMENT OF FACTS

In October 2018, F. S., ' a seventeen -year- old girl with intellectual and physical

disabilities, disclosed to her parents and grandmother that defendant, her uncle, had

been raping her. After learning of the abuse, F. S.' s step -father reported it to the

police.

Deputy Nicole Doucet of the Lafourche Parish Sheriff' s Office was a

detective in October 2018 and was assigned to investigate F. S.' s allegations. After

speaking with F. S., Deputy Doucet determined a forensic interview of F. S.,

conducted by the Child Advocacy Center (" CAC"), would be necessary.

The recorded forensic interview was shown to the jury at trial. In the video,

F. S. explained that she understood that a lie was something that would get the person

saying it in trouble. She had difficulty recalling information like the ages of her

brother and cousins or the color of her dog. It appears she understood that if she did

not know the answer to something that she could respond as such. She reported that

defendant "touched [ her] in the wrong area," gesturing towards the area between her

legs. Later in the interview, F. S. described this area as her " front." The incidents,

which occurred on multiple occasions, first started when she was 16 years old. The

first time was in a locked room while she and defendant were alone. Defendant

would pick her up and carry her into the bedroom, take her clothes off, put her in the

The victim is referred to herein by her initials. See La. R.S. 46: 1844( W).
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bed, take off his pants, and " stick his thing" in her. He also " did it to [ her] butt,"

which would hurt and make her cry. F. S. said she knew it was not right and it was

inappropriate" for her and that he should know better. Defendant would also

perform oral sex on her and would ignore her requests to stop. Defendant would get

stuff all over" her legs and in her that " squirted" from his " bird," and he would

quickly clean it up. While having sex, he would ask her " odd questions" like if it

felt good, and would make moaning sounds because he liked it. F. S. said that

urination would be painful after having intercourse, and she " would bleed down

there." F. S. believed defendant may have attempted to take naked photos of her with

his phone, but said she never saw the photos and that " you' d have to check his

phone."

F. S. also stated that defendant expressed his desire to buy her " inappropriate

clothes" and " things about sex" off of the internet. Defendant gave her other types

of gifts, but F. S. said she threw them away because she did not want to be reminded

of him. Defendant told F. S. that she should not tell anyone and keep their secret

because they would both go to jail.

F. S. stated she did not remember the abuse until her grandmother brought it

up to her. She also did not recall what her grandmother had said to remind her, but

that whatever she said triggered her memory of the abuse. F. S. liked watching

YouTube videos, but " knew better" than to watch anything inappropriate because

her mother would " fuss me."

Following the CAC interview, Deputy Doucet referred F. S. for a physical

examination at Children' s Hospital. Dr. Paige Culotta, a pediatrician specializing in

the field of child abuse, testified that F. S. told her defendant had put his " bird" in

the wrong spot." Dr. Culotta clarified that F. S. pointed to her vaginal area as " the

wrong spot." F. S. later disclosed to Dr. Culotta that defendant' s " bird" also touched

her butt on the inside, and that defendant had ejaculated inside of her. Dr. Culotta

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testified that she did not see any recent acute injuries to F. S.' s genitals, but that

would not be unexpected where the reported abuse happened more than 72 hours

prior to the examination. She also observed that intellectually, F. S. " was not a

typical 17 year old."

After the forensic exam, Deputy Doucet went to defendant' s residence, where

she located him, and he voluntarily accompanied her to the criminal operations

center for questioning. Before questioning began, Deputy Doucet informed

defendant of his Miranda2 rights and he signed an acknowledgement and waiver of

those rights. This initial interview was not recorded.

During the questioning, defendant explained to Deputy Doucet that he viewed

F. S. as a daughter and that F. S. would often sleep over and spent almost every

weekend with him, often in the same bed as him. Defendant informed Deputy

Doucet that F. S. was very immature for her age and perceived the world differently

than a normal person. After only informing defendant that she was investigating an

allegation of molestation of F. S., Deputy Doucet testified that she was thrown off

guard when defendant asked if F. S. had been raped. According to Deputy Doucet,

defendant stated that he would never touch F. S. and theorized that F. S.' s mother

must have discovered that F. S. was having sex with a boyfriend, but was blaming

defendant instead.

After Deputy Doucet indicated to defendant that she did not believe that he

was being truthful with her, defendant revealed that he believed that F. S. was in love

with him and that she had kissed him on the cheek, which made him uncomfortable.

He then confessed that on the last occasion he saw F. S., she came into his room,

undressed, got on his bed, and waved him over. Defendant told Deputy Doucet he

pulled his genitalia out of his pants and proceeded to " touch the tip of his dick" to

F. S.' s labia. He explained to the deputy that it was F. S. who initiated the event, and

2 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 ( 1966).

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it was up to him to teach F. S. to pleasure herself. Deputy Doucet testified that

defendant eventually acknowledged that he had consensual sex with F. S.

After these disclosures, Deputy Doucet decided to Mirandize defendant again

and record a second interview with him. The video recording' was introduced into

evidence and was played for the jury. In it, defendant acknowledged that F. S. is his

niece and again explained what he believed led to his being accused of rape. He said

F. S. had asked him if she could come to his house, and she was dropped off by her

father. When she arrived, F. S. entered his room, hugged him, tried to kiss him,

grabbed his leg, and explained that " she didn' t have much time." Defendant closed

the door, and F. S. climbed onto his bed and removed her clothing. According to

defendant, F. S. then waved defendant over, and defendant said he " let inhibitions

get ahold of [him]," pulled his shorts down " a little," and intended to have sex with

F. S. However, once his " penis touched her," defendant " realized what [ he] was

doing" and understood that it was wrong, so he " backed away." He admitted that

the head of his penis touched " the very beginning of [her] vagina," but he declared

that it did not go inside and that there was no penetration. Defendant said the way

F. S. was laying on his bed looked " very promiscuous," but the incident was the only

time it had been " that extreme." He recounted two prior occasions where he fell

asleep in his bed and awoke to find F. S. awake and smiling in his room and his pants

and boxers inexplicably around his knees. Defendant also said that he sometimes

woke up on the couch with her on top of him, and other times she tried to kiss him.

Defendant again expressed his belief that F. S. was in love with him.

Defendant also explained that F. S. came to him with questions about sex and

the urge to release" and " what she could do about it." Defendant explained that he

showed her YouTube videos to show her " what she could do to help herself."

3 While there is a State Exhibit 2 included in the record on appeal, it does not appear to have been
separately offered and entered into evidence. Exhibit 2 only consists of the audio from the video
interview found in State Exhibit 3.

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Defendant said he " took it upon [ himself]" to " teach her the correct way" through

YouTube videos and instructed her to " find her mom' s toys" or " use other things

too" like vegetables. According to defendant, F. S. called him three separate times

while she was masturbating to ask him questions. He also explained that a " very

sexual" friend on the street was teaching F. S. and showing her pornographic videos

as well. Defendant said he stopped talking to her as much following those

exchanges, but also acknowledged he did not disclose the conversations to anyone

else because he did not want her to be punished " for just being curious about her

own body." At the conclusion of the recorded interview, defendant apologized for

the thing that he almost did and hoped that F. S. could " take something away from

this to realize [ that] you can' t be doing these kinds of things to people."

Ashley Moore, defendant' s estranged wife, confirmed that F. S. would often

visit her and her husband. Because of her work schedule, defendant would

sometimes be alone with F. S. for hours at a time. She also recalled an occasion in

2016 when defendant touched F. S.' s lower stomach, which made F. S.

uncomfortable, and F. S. did not come to visit for some time after. Ashley also

observed that from October 2017 until F. S. reported the abuse to her family, F. S.

was no longer " like herself." She described F. S. as being very affectionate with

defendant and would hug him too much and always wanted to be all over defendant

or sit on his lap. She also knew F. S. had sent defendant Facebook and text messages.

Dr. Rafael Salcedo, a clinical psychologist specializing in forensic

psychology, evaluated F. S.' s level of intellectual functioning. He testified at trial

that F. S. has " significant intellectual limitations" and presented to him as very

childlike, immature, and innocent. In his evaluation, Dr. Salcedo learned that F. S.

suffered from intractable epileptic seizures throughout her life. He also noted that

F. S. went to high school and had accommodations made for her intellectual

disability. After administering formal intellectual testing on F. S., Dr. Salcedo

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determined F. S. had a Wechsler full scale IQ of 50 ( falling within the mild to

moderate range of intellectual disability), and a Vineland Adaptive Behavior Scale

overall composite score of 31 out of 100. Dr. Salcedo' s evaluation of F. S. revealed

that she was intellectually disabled, and he opined that F. S. had a severe and chronic

developmental disability. Further, Dr. Salcedo concluded that F. S. was " incredibly

naive," and "just says what' s on her mind with very little [i] n the way of [c] ensoring

or manipulation...."

F. S. was 18 years old and in the eleventh grade at the time she testified at trial.

She said that defendant put his " bird" in her " private part" on more than one occasion

and that he used his mouth to touch parts of her body. F. S. explained that defendant

would remove her clothes and touch her, that defendant " would say that he would

want to get [ her] pregnant," and that " warm stuff' would come out of his " bird" that

could " get a girl pregnant[.]" She acknowledged that she once had a Facebook

account and would have online conversations with defendant. During cross-

examination, F. S. identified a photo of herself that she had sent defendant some time

previously on Facebook but did not recall sending the picture. F. S. also recognized

a voice message she left for defendant on August 15, 2018 in which she asked him

to come get her, but she did not remember leaving the message.

F. S. explained that she had not remembered the abuse until October 2018

when her grandmother said something about defendant raping her. At the time, F. S.

had forgotten that she made a prior disclosure to her grandmother, but, at trial, she

recalled previously asking her grandmother " to come help me and save me."

However, it was the October 2018 conversation with her grandmother that prompted

F. S. to tell her parents what had been happening. F. S. clarified that her seizures

made her " forget a lot" and that she " can' t remember everything because of [her]

epilepsy." F. S. also explained that she did not report the abuse sooner because

defendant had told her that she would go to jail with him if she did.

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ASSIGNMENTS OF ERROR 1, 2, AND 3: INSUFFICIENT EVIDENCE

In three assignments of error, defendant contends the evidence was

insufficient to show defendant' s guilt beyond a reasonable doubt. Defendant asserts

that the victim' s testimony was unreliable and that the physical examination did not

corroborate her allegations. Defendant alleges that F. S. admitted that " she did not

remember anything until she had the conversation with her grandmother who

brought up that [ defendant] had raped [ her.]" In sum, defendant argues on appeal

his admission that he touched his penis to F. S.' s labia does not establish the

necessary element of penetration; therefore, the State did not prove beyond a

reasonable doubt that he committed rape. While defense counsel claimed the State

failed to provide any evidence that F. S. was unable to resist due to her mental or

physical infirmities at trial, defendant does not contest that F. S. was unable to resist

due to physical or mental infirmity on appeal.

The State claims the evidence presented at trial was sufficient to sustain the

conviction. The State highlights the victim' s testimony that defendant penetrated

her vagina, as well as defendant' s unrecorded statements to Deputy Doucet in which

he acknowledged penetrating the victim."

A conviction based on insufficient evidence cannot stand, as it violates due

process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims

challenging the sufficiency of the evidence, this court must consider " whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d

560 ( 1979) ( emphasis in original); see also La. Code Crim. P. art. 821( B); State v.

Mussall, 523 So. 2d 1305, 1308- 09 ( La. 1988). The Jackson standard, incorporated

in Article 821, 4 is an objective standard for testing the overall evidence, both direct

and circumstantial, for reasonable doubt. State v. Watts, 2014- 0429 ( La. App. 1 st

Cir. 11/ 21/ 14), 168 So. 3d 441, 444, writ denied, 2015- 0146 ( La. 11/ 20/ 15), 180

So. 3d 315.

The trier of fact is free to accept or reject, in whole or in part, the testimony

of any witness, including that of experts. State v. Armentor, 2019- 1267 ( La. App.

1st Cir. 7/ 31/ 20), 309 So. 3d 762, 767, writ denied, 2020- 01032 ( La. 2/ 17/ 21), 310

So. 3d 1149. Unless there is internal contradiction or irreconcilable conflict with the

physical evidence, the testimony of a single witness, if believed by the trier of fact,

is sufficient to support a factual conclusion. State v. Moultrie, 2014- 1535 ( La. App.

lst Cir. 12/ 14/ 17), 234 So. 3d 142, 146, writ denied, 2018- 0134 ( La. 12/ 3/ 18), 257

So. 3d 1252. Moreover, when there is conflicting witness testimony about factual

matters, the resolution of which depends upon a determination of the credibility of

the witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Logan, 2019- 0590 ( La. App. 1st Cir. 7/ 20/ 20), 2020 WL 4048059, * 3

unpublished). An appellate court will not re -weigh evidence to overturn a

factfinder' s determination of guilt. State v. Galan, 2018- 1481 ( La. App. 1st Cir.

5/ 14/ 19), 277 So. 3d 365, 369, writ denied, 2019- 01027 ( La. 1/ 22/ 20), 291 So. 3d

1042.

4 Louisiana Code of Criminal Procedure article 821 provides, in pertinent part, as follows:
A. The defendant may move for a post verdict judgment of acquittal
following the verdict. A motion for a post verdict judgment of acquittal must be
made and disposed of before sentence.

B. A post verdict judgment of acquittal shall be granted only if the court
finds that the evidence, viewed in a light most favorable to the state, does not
reasonably permit a finding of guilty.
C. If the court finds that the evidence, viewed in a light most favorable to
the state, supports only a conviction of a lesser included responsive offense, the
court, in lieu of granting a post verdict judgment of acquittal, may modify the
verdict and render a judgment of conviction on the lesser included responsive
offense.

6

Rape is " the act of anal, oral, or vaginal sexual intercourse with a male or

female person committed without the person' s lawful consent." La. R. S. 14: 41( A).

Emission is not necessary, and any sexual penetration, when the rape involves

vaginal or anal intercourse, however slight, is sufficient to complete the crime." La.

R. S. 14: 41( B). Louisiana Revised Statute 14: 42 provides in pertinent parts:

A. First degree rape is a rape committed upon a person sixty-five years
of age or older or where the anal, oral, or vaginal sexual intercourse
is deemed to be without lawful consent of the victim because it is
committed under any one or more of the following circumstances:

6) When the victim is prevented from resisting the act because
the victim suffers from a physical or mental infirmity preventing such
resistance.

C. For purposes of this Section, the following words have the following
meanings:

1) " Physical infirmity" means a person who is a quadriplegic or
paraplegic.

2) "Mental infirmity" means a person with an intelligence
quotient of seventy or lower.

As an initial matter, as noted above, defendant does not argue here that F. S.

did not suffer from an intellectual disability. Moreover, the State produced ample

testimony, both forensic and anecdotal, regarding F. S.' s intellectual disabilities and

childlike" manner. In short, the evidence established that F. S. was prevented from

resisting defendant due to her intellectual disability.

On appeal, defendant disputes F. S.' s credibility where she demonstrated

difficulty remembering in her forensic interview and trial testimony and because F. S.

did not " remember" the rape until her grandmother reminded her. Defendant also

claims the physical evidence does not corroborate F. S.' s account. However, Deputy

Doucet credibly testified that defendant admitted to having penetrative vaginal sex

with F. S., and F. S. testified consistently that defendant raped her on multiple

occasions. It is apparent the jury also found credible the explanation that F. S.' s

grandmother was referring to F. S.' s prior disclosure of the rape that F. S. had

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forgotten due to her physical and mental limitations. Importantly, the expert and lay

witnesses who testified about F. S. indicated she appeared incapable of deception and

abstract thought. The jury further viewed the CAC interview video in which F. S.

presented consistently with the other testimony given about her affect and

capabilities. Dr. Culotta explained that given the span of time between the incident

and the reporting, it was not unusual to find a lack of physical trauma on F. S.

Moreover, defendant' s recorded statement indicated an ongoing, highly

inappropriate relationship with F. S. that, according to defendant, culminated in his

intent and attempt to put his penis inside her vagina.

After a thorough review of the record, we find that the evidence supports the

guilty verdict. Presented with defendant' s explanation of his inappropriate behavior

with F. S., the jury made a credibility determination and rejected defendant' s

hypothesis that his sexual contact with F. S. was not penetrative. The jury was not

unreasonable in finding unpersuasive defendant' s attempts in the recorded interview

to minimize his wronging and blaming a 17 -year- old, intellectually disabled F. S. for

doing these kinds of things to people." Moreover, it is apparent that the jury found

the testimony of the witnesses to be credible. We are convinced that viewing the

evidence in the light most favorable to the State, any rational trier of fact could have

found beyond a reasonable doubt, and to the exclusion of every reasonable

hypothesis of innocence, that defendant was guilty of first degree rape. See State v.

Calloway, 2007- 2306 ( La. 1/ 21/ 09), 1 So. 3d 417, 419 ( per curiam).

CONVICTION AND SENTENCE AFFIRMED.

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