State Of Louisiana v. Michael Reshon Harper

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2023 KA 0644

STATE OF LOUISIANA

VERSUS

MICHAEL RESHON HARPER

Judgment Rendered: Nov 0 9 2023

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 4251- F- 2020
The Honorable Ellen M. Creel, Judge Presiding

Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
Matthew Caplan

Assistant District Attorney
Covington, Louisiana

Prentice L. White Counsel for Defendant/ Appellant
Baton Rouge, Louisiana Michael Reshon Harper

BEFORE; GUIDRY, C.J., CHUTZ, AND LANIER, JJ.

GUIDRY, C.J.

The defendant, Michael Reshon Harper, was charged by bill of information

with one count of second degree rape, in violation of La. R.S. 14: 42. 1( A)( 1), to

which he pled not guilty. Following a jury trial, the defendant was found guilty of

the responsive verdict of attempted third degree rape, a violation of La. R.S. 14: 43

14: 27( A). He was then adjudicated a third felony offender, and the trial court

imposed a sentence of nine years at hard labor pursuant to La. R.S. 15: 529. 1. 1 The

defendant now appeals, designating as error the sufficiency of the evidence. For

the following reasons, we affirm the defendant' s conviction, multiple offender

adjudication, and sentence.

FACTS

In the early morning hours of August 4, 2018, fourteen -year- old Z.D.,' the

victim in this case, was asleep in the home she shared with her mother and her

younger brothers in Covington, Louisiana. Z.D. was then awoken and pulled out

of her bed and into the bathroom by a man she later identified as the defendant,

who was friends with her mother. The defendant told Z.D. that if she said

anything, he would kill her. He proceeded to undress Z. D. and attempted to anally

penetrate her. Z.D.' s mother then knocked on the door, at which point the

defendant tried to push Z. D. into the bathroom closet. The defendant then lei the

residence, and the police were called. Following an investigation, during which

1 We note that the trial court imposed the enhanced sentence without restricting the benefit of
probation, parole, or suspension of sentence, as is required. See La. R.S. 15: 529. 1 & La. R. S.
14: 43( B); see also State v. Chatman, 17- 0132 ( La. App. 1st Cir. 9/ 15/ 17), 2017 WL 4082285, * 2
unpublished). ("[ A] sentence under the Habitual Offender Law calls for the conditions imposed
in the reference statute."). Nonetheless, the " without benefit" provisions of La. R. S. 15: 529. 1
and La. R.S. 14: 43( B) are self a
- ctivating. Thus, we need not take corrective action. See State v.
Smith, 08- 2129 ( La. App. 1st Cir. 518109), 2009 WL 1270320, * 3 ( unpublished), writ denied, 09-
1293 ( La. 215110), 27 So. 3d 297; State v. Williams, 00- 1725 ( La. 11128/ 01), 800 So. 2d 790,
799; La. R. S. 15: 301. 1( A).

2 Because this charge involves a sex offense, we reference the victim by her initials. See La.
R. S. 46: 1844( W).

VA

the defendant made a written and oral statement' and provided a DNA sample, the

defendant was arrested for the rape of Z.D.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, the defendant argues that the evidence was

insufficient to support his conviction for attempted third degree rape beyond a

reasonable doubt. Specifically, the defendant contends that the State failed to

prove that he either penetrated or attempted to penetrate Z. D.

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, an appellate court must determine

whether any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt based on the entirety of the evidence,

viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443

U. S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979); State v. Livous, 18-

0016 ( La. App. 1 st Cir. 9/24/ 18), 259 So. 3d 1036, 1039, writ denied, 18- 1. 788 ( La.

4/ 15/ 19), 267 So. 3d 1130; see also La. C. Cr.P. art. 821( B). When circumstantial

evidence forms the basis of the conviction, the evidence, " assuming every fact to

be proved that the evidence tends to prove ... must exclude every reasonable

hypothesis of innocence." La. R.S. 15: 438; Livous, 259 So. 3d at 1040.

The due process standard does not require the reviewing court to determine

whether it believes the witnesses or whether it believes the evidence establishes

guilt beyond a reasonable doubt. State v. Mire, 14- 2295 ( La. 1/ 27/ 16), 269 So. 3d

698, 703 ( per curiam). Rather, appellate review is limited to determining whether

the facts established by the direct evidence and inferred from the circumstances

established by that evidence are sufficient for any rational trier of fact to conclude

beyond a reasonable doubt that the defendant was guilty of every essential element

3 The defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L.Ed.2d 694 { 1966) prior to giving a statement.
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of the crime. The weight given evidence is not subject to appellate review;

therefore, an appellate court will not reweigh the evidence to overturn a

factfinder' s determination of guilt. Livous, 259 So. 3d at 1040.

Louisiana Revised Statutes 14: 41( A) defines rape as " the act of anal .. .

sexual intercourse ... committed without the person' s lawful consent." Louisiana

Revised Statutes 14: 41( B) further provides that " any sexual penetration . . .

however slight, is sufficient to complete the crime." Louisiana Revised Statutes

14: 43( A)(4) defines third degree rape as " a rape committed when the anal, oral, or

vaginal sexual intercourse [ occurs] ... without the consent of the victim."

Attempt is defined by La. R.S. 14: 27( A) as follows:

Any person who, having the specific intent to commit a crime, does or
omits an act for the purpose of and tending directly toward the
accomplishing of his object is guilty of an attempt to commit the
offense intended; and it shall be immaterial whether, under the
circumstances, he would have actually accomplished his purpose.

Specific intent is therefore a required element for a conviction of attempted

third degree rape. Specific intent is defined by La. R.S. 14: 10( l) as " that state of

mind which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to act."

Thus, to support a conviction for attempted third degree rape, the State had to

prove beyond a reasonable doubt that the defendant: ( 1) had the specific 'intent to

commit third degree rape; and ( 2) that he did an act for the purpose of, and tending

directly toward, the accomplishing of his objective. See La. A.S. 14: 43 and La.

R.S. 14: 27; see also State v. Walston, 22- 0317 ( La. App. 1st Cir. 11/ 4/ 22), 2022

WL 16707997, * 2 ( unpublished), writ denied, 22- 01809 ( La. 9/ 19/ 23), _ So. 3d

Z.D. testified at trial that on the night of August 4, 2018, she was asleep in

her bed when the defendant, her mother' s friend whom Z.D. had met on one prior

occasion, came into her room and woke her up. He then pulled her into the

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bathroom, closed and locked the bathroom door, and kept the light turned off. He

told Z,D, that if she said anything, he would kill her. He then began kissing Z.D.' s

neck, touching her private parts, and removing his clothes. Z.D. testified that the

defendant then bent her forward over the sink and attempted to anally penetrate
her.
At that point, Z.D.' s mother began calling her name and knocking on the
bathroom door. The defendant then attempted to hide Z.D. in the bathroom closet.

However, the closet contained the home' s water heater and Z.D. could not fit. The

defendant then opened the bathroom door and walked out, stating " I didn' t do
nothing." When asked to clarify whether the defendant' s penis actually penetrated
her, Z.D. confirmed that it did " a little bit." After the police were called, Z.D. was

transported to Children' s Hospital in New Orleans for an examination.

Shortly after the incident, Z.D. was brought to the Children' s Advocacy

Center ( CAC) for an interview. However, the video recording of that interview

failed to pick up any audio, and none of the interview could be heard in the

recording. Accordingly, Z.D. spoke with CAC a second time approximately two
years after the incident occurred. Z.D.' s second CAC statement was largely

consistent with her trial testimony. She explained that the defendant forced her

into the bathroom and threatened to kill her if she said anything. Z. D.

affirmatively stated that the defendant penetrated her. However, Z.D. also stated

that August 4, 2418 was the first time she had ever seen the defendant, and that the

defendant fondled her breasts and asked her to perform oral sex on him, which she

refused.

Dr. Emily Harrison, a pediatrician and expert in the field of pediatrics,

examined Z.D. at Children' s Hospital in New Orleans after the incident occurred.

Dr. Harrison testified that as part of Z.D.' s examination she completed a rape kit,

during which multiple swabs were collected from Z.D.' s person. Additionally, Dr.

Harrison performed a BlueMax light scan wherein the patient' s body is scanned for

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potential biological material. The BlueMax light scan suggested potential

biological material located on Z.D.' s left buttock, and a swab of that area was

taken as well.
The swabs were then submitted for DNA testing. Dr. Harrison also

testified that Z.D. reported to her that the defendant' s penis touched her anus, and

when asked if the defendant penetrated her, Z.D. replied that " he tried."

Tara Bell, a forensic DNA analyst at the St. Tammany Parish Coroner' s

Office and an expert in the field of DNA analysis, analyzed the DNA evidence

collected in this case. Ms. Bell testified that swabs from Z.D.' s perineum, breasts,

navel, neck and ear, and inner thigh produced a DNA profile consistent with the

defendant' s DNA profile. The swab that was taken pursuant to the BlueMax light

scan also produced a DNA profile consistent with the DNA sample provided by the

defendant. Accordingly, Ms. Bell testified that the defendant could not be

excluded as the contributor for DNA profiles found on Z.D.' s perineum, breasts,

navel, neck and ear, inner thigh, and the BlueMax light scan swab.

The defendant did not testify in this case. However, he did provide a written

and oral statement to police officers, both of which were presented at trial. In both

of his statements, the defendant denied any wrongdoing and told police that when

he went to use the bathroom at Z.D.' s mother' s house, a man named Miguel

Williams was already in there. According to the defendant, he entered the

bathroom after Mr. Williams exited. While in the bathroom, Z.D.' s mother began

calling Z,D.' s name. Soon after, Z.D. was found in the bathroom closet. The

defendant claimed that he did not know that Z.D. was in the closet while he was

using the bathroom, and insisted that his DNA would not be found on her person.

After a thorough review of the record, we find that a rational trier of fact,

viewing the evidence presented at trial in the light most favorable to the State,

could find the evidence proved beyond a reasonable doubt, and to the exclusion of

every reasonable hypothesis of innocence, that the defendant had the specific intent

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to commit third degree rape, and that he performed an act in furtherance of

accomplishing that offense.

If believed, the testimony of the victim alone, with no other evidence, is

sufficient to prove the elements of the offense. Moreover, in the absence of

internal contradiction or irreconcilable conflict with the physical evidence, the

testimony of one witness is sufficient to support a factual conclusion. State v.

Alexander, 14- 1619 ( La. App. 1st Cir. 9118115), 182 So, 3d 126, 131, writ denied,

15- 1912 ( La. 1125116), 185 So. 3d 748.

Herein, Z.D.' s testimony and pre-trial statements consistently established

that the defendant forcibly removed her from her bed while she was sleeping,

pulled her into the unlit bathroom, locked the door, and told her that she would be

killed if she said anything. He then began to kiss and fondle her, before pulling

down her pants and attempting to anally penetrate her against her will. This

testimony, by itself, establishes each element of attempted third degree rape.

Furthermore, in addition to Z.D.' s testimony and pre- trial statements, the

jury was presented with extensive DNA evidence which corroborated Z.D.' s

allegations that the defendant fondled her breasts and kissed her neck before he

tried to anally penetrate her. DNA which was consistent with the defendant' s was

found on Z.D.' s breasts, navel, neck, ear, inner thigh, perineum, and left buttock.

The defendant' s argument that the State failed to prove either penetration or

attempted penetration where Z.D. stated, at various points, that the defendant tried

to penetrate her, that he did in fact penetrate her, and that he penetrated her " a little

bit" is unfounded. Initially, we note that actual penetration is not an element of

attempted third degree rape. What is required, however, is proof that the defendant

specifically intended to commit third degree rape, and that he took a step in

furtherance of that goal. Moreover, when there is conflicting testimony about

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

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credibility of the witnesses, the matter is one of the weight of the evidence, not its

sufficiency. The trier of fact' s determination of that weight to be given evidence is

not subject to appellate review. An appellate court will not reweigh the evidence

to overturn a fact finder' s determination of guilt. Alexander, 182 So. 3d at 131.

It is clear from the record that Z.D. herself was unsure whether penetration

actually occurred. However, each of Z.D.' s statements established that the

defendant forced Z.D. into the bathroom, began fondling and undressing her, and

threatened to kill her if she said anything. Given this information, a rational juror

could have concluded that the defendant had the specific intent to commit third

degree rape. Furthermore, given the presence of the defendant' s DNA on Z.D.' s

perineum, buttocks, and inner thigh, a rational juror could have concluded that the

defendant attempted to anally penetrate Z.D., regardless of whether penetration

actually occurred. See State_v. Henderson, 22- 0795 ( La. App. 1st Cir. 2/ 24/23),

361 So. 3d 1028, 1033.

Finally, the defendant' s statements accusing Mr. Williams of being the

individual in the bathroom with Z.D. were belied by the fact that Mr. Williams also

provided a DNA sample, and he was excluded as a possible donor to the DNA

found on Z.D.' s person. Lying or purposeful misrepresentations reasonably raise

the inference of a " guilty mind" and can be indicative of an awareness of

wrongdoing. State v. Dyson, 16- 1571 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 220,

234, writ denied, 17- 1399 ( La. 6115/ 18), 257 So. 3d 685.

Accordingly, we cannot say that the fact finder' s determination was

irrational under the facts and circumstances presented. See State v. Ordodi, 06-

0207 ( La. 11/ 29/06), 946 So. 2d 654, 662. An appellate court errs by substituting

its appreciation of the evidence and credibility of witnesses for that of the fact

finder and thereby overturning a verdict on the basis of an exculpatory hypothesis

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of innocence presented to, and rationally rejected by, the fact finder. See State v.

Callaway, 07- 2306 ( La. 1121109), 1 So. 3d 417, 418 ( per curiam).

This assignment of error is without merit.

PATENT ERROR REVIEW

This court conducts an independent review of the entire record, including a
review for error under La. C. Cr.P. art. 920( 2). Our review has revealed the

existence of a patent sentencing error in this case.

Defendant herein filed a motion for new trial and a motion for post -verdict

judgment of acquittal, both of which the trial court denied just prior to the

imposition of sentence. Louisiana Code of Criminal Procedure art. 873 mandates,

in pertinent part, that "[ i] f a motion for a new trial, or in arrest of judgment, is

filed, sentence shall not be imposed until at least twenty- four hours after the

motion is overruled ... [ unless] the defendant expressly waives a delay[.]" There

is no indication in the record before us that the defendant waived the twenty -four-

hour sentencing delay. Therefore, the trial court erred by sentencing the defendant

immediately after ruling on the motion for new trial.

Nevertheless, the Louisiana Supreme Court has indicated that a failure to

observe the twenty -four-hour delay mandated by La. C. Cr.P. art. 873 will be

considered harmless error where the defendant cannot show that he suffered

prejudice from the violation, and sentencing is not challenged on appeal. State v.

Augustine, 555 So. 2d 1331, 1333- 34 ( La. 1990). Herein, the defendant has made

no such challenge to his sentence, nor is there any indication from the record that

the violation caused the defendant prejudice. Accordingly, any error in the trial

court' s failure to observe the twenty -four-hour delay was harmless beyond a

reasonable doubt, and does not require a remand for resentencing. See State v.

Dawson, 19- 1612 ( La. App. 1st Cir. 11117120), 316 So. 3d 77, 90, writ denied, 21-

00217 ( La. 514121), 315 So. 3d 222.

V,

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND
SENTENCE AFFIRMED.

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