State of Louisiana Versus Philip Bridgewater

STATE OF LOUISIANA NO. 22-KA-517

VERSUS FIFTH CIRCUIT

PHILIP BRIDGEWATER COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-6796, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

April 26, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst

AFFIRMED;
REMANDED FOR CORRECTION OF THE UCO
MEJ
RAC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Laura S. Schneidau
Zachary L. Grate

COUNSEL FOR DEFENDANT/APPELLANT,
PHILIP BRIDGEWATER
Bruce G. Whittaker

JOHNSON, J.

Defendant, Phillip Bridgewater, appeals his conviction of and sentence for

one count of sexual battery upon a juvenile under the age of thirteen in violation of

La. R.S. 14:43.1. For the reasons that follow, we affirm defendant’s conviction

and sentence.

FACTS AND PROCEDURAL HISTORY

On May 29, 2019, Defendant, Philip Bridgewater, was charged by bill of

information with count one - sexual battery upon a juvenile under the age of

thirteen, and count two - indecent behavior upon a juvenile under the age of

thirteen, in violation of La. R.S. 14:43.1 and 14:81. He was arraigned and pled not

guilty on October 18, 2019. A few months prior to trial, the district court heard

Defendant’s Motions to Suppress Statement and Evidence. After having taken the

matters under advisement, the district court denied both motions on March 24,

2021. Trial commenced on July 25, 2022 before a jury of twelve members. On July

28, 2022, the jury found Defendant guilty as charged on count one, and not guilty

on count two, by unanimous vote. The next day, Defendant filed a Motion for New

Trial and a Motion for Post Verdict Judgment of Acquittal. The court denied both

motions after a hearing on August 25, 2022.

Also, on August 25, 2022, the district court heard four victim impact

statements-- one given by the victim’s mother, and another from the victim, Q.B.,

which was read into the record. Two other statements in support of Q.B. were

given by the Defendant’s ex-wife and another member of his family. Defendant

submitted a letter he wrote along with other letters in support of him to the court.

After the defense waived sentencing delays, the court sentenced Defendant to

imprisonment at hard labor for thirty years, all to be served without benefit of

parole, probation, or suspension of sentence, with credit for time served. The

22-KA-517 1

Notification and Registration of Sex Offender process was completed, and

Defendant was advised of his right to appeal and seek post-conviction relief.

The following facts were developed at trial through testimony and admitted

evidence:

One evening in October 2018, the victim Q.B.1, who was born in 2008 and

ten years old at the time, was clingy and very affectionate with her mother, M.C.

After M.C. retired for the night, Q.B. came into her room and said that she wanted

to stay home and that her stomach hurt. M.C. had Q.B. lay down next to her and

she described Q.B. “kind of like shrinking into [her].” Q.B. initially denied that

something had happened to her when asked. After her denial, Q.B. told her mother

that she would tell her “if somebody touched you or anything” when her mother

asked. Q.B. then disclosed what happened and started to cry.

Q.B. told M.C. that “[D]addy touched me.” She described Defendant

“putting his tongue down her throat” and touching her chest and genitals. She also

told her mother that Defendant held her down and she tried to make him stop.

When Q.B. asked her father what he was doing, he told her that he “could love her

better that way.” Q.B. denied that the disclosure was the first time it happened, or

that the abuse began that year. M.C. established a timeline of incidents by asking

Q.B. about whether the abuse occurred when she had certain teachers. Q.B. told

her that Ms. Gum was her teacher when the abuse started. Ms. Gum was Q. B.’s

first grade teacher. Q.B. also told her mother that the abuse occurred in “the quiet

room” in the house on Cleveland Place in Metairie, where her father lived with his

1
In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S.
46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use
only initials to identify the victim and any defendant or witness whose name can lead to the victim's
identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. Mesa, 18-526 (La.
App. 5 Cir. 11/27/19), 287 So.3d 89, n.1, writ granted, cause remanded, 19-1908 (La. 6/3/20), 296 So.3d
1044, and on reconsideration, 18-526 (La. App. 5 Cir. 9/9/20), 303 So.3d 411.

22-KA-517 2

wife, and the night before she and her siblings returned home was the last time it

happened.

M.C. stopped questioning Q.B. because she did not “want to keep pressing

her [. . .] she was already crying.” Q.B.’s mother held her until she fell asleep.

The mother called her sister to come over, then called her attorney. Her attorney

advised her to take Q.B. to Children’s Hospital in New Orleans, which she did the

following morning.

Q.B. spoke to the providers at Children’s Hospital by herself. Those

providers referred the family to the Audrey Hepburn Care Center, and Q.B. was

seen there on the same day. A doctor spoke to the family and then took Q.B. to

another room for a private interview. A detective spoke to M.C. in the meantime.

M.C. also spoke to Dr. Neha Mehta separately. M.C. was present when Q.B.

underwent a physical examination.

On October 22, 2022, five days later, M.C. spoke to Detective Judd Harris

with the Jefferson Parish Sheriff’s Office (“JPSO”). JPSO referred the family to

the Children’s Advocacy Center where Erika Dupepe conducted a forensic

interview of Q.B. At least two of Q.B.’s siblings were also interviewed at the

CAC. M.C. denied observing the interview, or watching it at a later date. The

mother also denied asking Q.B. about the interview process – she “wanted to make

sure it wasn’t tainted in any kind of way.” She also did not want to add the number

of times Q.B. would have to explain what happened to her. Other than for trial

preparation the week before, M.C. only spoke to, or met, the assistant district

attorneys periodically to touch base about the status of the case. She also did not

speak to her attorney about the case at all, other than initially asking for advice on

how to handle the situation. During Q.B.’s therapy sessions, M.C. sat in the

waiting room. M.C. obtained a protective order so Q.B. and her siblings would not

have to visit with Defendant after Q.B.’s disclosure. M.C. denied discussing the

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matter with Q.B. in the time period between the visits to Audrey Hepburn Care

Center and the CAC. She only told Q.B.’s siblings that they could not see their

dad, but did not tell them why.

M.C. testified at trial that, prior to the incident, she did not want to keep

Q.B, or her siblings, away from Defendant, because she only saw her father during

summers as a child, and she wanted better for her children. She and Defendant,

who was born in July 1986, met as teenagers before Katrina and started a romantic

relationship a few years after. Q.B. was born in 2008, and her siblings were born

in 2009 and 2010. The couple separated in 2014, but agreed to joint custody

without court intervention until August or September of 2018. M.C. acknowledged

that Defendant later married a psychiatrist, and that the couple had a child together.

She averred that she told her children to call their stepmother “whatever they felt

comfortable calling her” and denied telling the children that they did not have to

acknowledge Defendant’s youngest child as their sister. M.C. testified that Q.B.

participates in the gifted and talented program, and she never saw or learned of any

change in Q.B.’s grades or behavior at school.

Sergeant Judd Harris worked in the personal violence unit at JPSO from

2015 – 2019. As the lead detective on the case, he responded to a dispatch to the

Audrey Hepburn Care Center on October 22, 2022. After speaking to M.C. and

Dr. Mehta and reviewing Q.B.’s CAC interview recording, he issued an arrest

warrant for Defendant. Sgt. Harris also authored and executed the search warrant

for Defendant’s home at 5505 Cleveland Place in Metairie. While there, JPSO

took pictures of the home, including “the quiet room” Q.B. described. The pictures

were entered into evidence, along with a copy of the recorded interview Sgt. Harris

conducted with Defendant (which was shown to the jury), and photographs taken

of the contents of Defendant’s phone. One of the texts shown to the jury was a

22-KA-517 4

request from Q.B. to Defendant to sleep in the quiet room on Saturday, October 6,

2019.

On cross-examination, Sgt. Harris acknowledged that he never actually

spoke to the victim during the course of his investigation. Also, Defendant

voluntarily came down to the station and allowed him to search his phone and take

photographs. No clothes or linen were searched or taken from the home and JPSO

did not use a blacklight to search for biological matter on the home’s surfaces.

Thirteen days lapsed between the last alleged incident of abuse and JPSO’s search

of the home. At the end of his testimony, the district court admitted two copies of

Defendant’s recorded statement wherein he denied the allegations against him; the

redacted copy was published to the jury.

The district court recognized Dr. Neha Mehta as an expert witness in child

abuse pediatrics. On October 11, 2018, she provided care to Q.B. A copy of the

medical records that were generated during Q.B.’s visit was entered into evidence.

Dr. Mehta explained that children who have been abused “can present a variety of

ways” and it is not easy to tell whether they have been abused based on their

appearance or (adaptive) behavior. Also, “if the child feels safe and if they feel

supported, in general, most children will disclose further information as time goes

on[ . . . ] as they spend less and less time with the person abusing them [. …]

Disclosure is a process.”

Dr. Mehta further explained that it was unusual for a child to say something

the first time something happens and not uncommon for an abused child to delay

their disclosure. Dr. Mehta testified:

[T]he younger you are the first time something happens, the less
ability you have to understand what it means[.]
[...]
As children get older, if they're aware that there's a problem
here, they're often embarrassed and it's their own internal dialogue
that's stopping them: Is it my fault that this happened; will people

22-KA-517 5

think bad about me; I don't have the vocabulary to explain what's
happening, I don't even know all the words for what this is.

A variety of barriers. Is my mom going to believe me; will we
become homeless; am I going to be getting my relative in trouble; am
I going to get in trouble. So these sort of internal messages that
children tell themselves are a huge barrier and usually the main things
that children describe to me as a reason they were reluctant to say
anything.

And then it is also possible that children have been told not to
tell. So in some cases, someone says, don't tell anyone about this or
you're going to get in trouble or things of that nature.

Q.B. met with Dr. Mehta shortly after the emergency department identified

the need for an acute medical evaluation. The doctor’s impression of Q.B. was that

“[s]he had a good vocabulary for her age and good communication skills.” She

noted that when Q.B. discussed a topic she was comfortable with she was “clearly

articulate and answer[ed] questions in detail and length.” As Dr. Mehta “moved to

topics that were more sensitive, she became more quiet, more hesitant to answer.

She frequently stated that she was feeling anxious. She was feeling uncomfortable.

This was something she really didn't want to talk about, but she was still able to

answer questions appropriately.”

Q.B. told Dr. Mehta that the abuse had happened more than one time; the

last incident of abuse was about 48 hours before they met; Q.B. had been sleeping

in a quiet room; Defendant “had been touching her.” Q.B. told the doctor that

Defendant told her that he would stop before and said that he would not do it

anymore, “but he did; and he told me he would love me better.” Q.B. also

described abuse on top of and underneath her clothes, and previous incidents

involved touching inside of the underwear, and Defendant touching the skin of her

chest, vagina, and buttocks area. Q.B. told the doctors that the abuse started when

she was five years old and the abuse occurred in previous apartments the family

lived in besides the Cleveland Place address. Since Q.B.’s visit to the Care Center

was within 72 hours of the last incident of abuse, swabs from the body were

22-KA-517 6

collected for an evidence kit to look for DNA; Dr. Mehta testified that she was not

expecting to find any DNA evidence. Q.B. told Dr. Mehta the abuse “was gross,

that she was embarrassed by it, that she didn’t want to talk about it.” Q.B. also

expressed concern that her disclosure would cause her mother to view her

differently.

Dr. Mehta did not have any concerns that Q.B. had been coached, and her

diagnosis was that Q.B. presented consistently with child sexual abuse. She also

examined Q.B.’s younger sister closest in age. That child did not make a

disclosure of sexual abuse but was aware of the allegations against Defendant (that

he had touched her sister inappropriately).

Dr. Marcela Zozaya of the JPSO Crime Laboratory, an expert in the field of

forensic DNA analysis testified that some of the samples from Q.B.’s collection kit

tested negative for seminal fluid, semen, or DNA. Because the most probative

samples from the areas of the body that were mentioned in the last reported

instance of abuse tested negative, the rest of the samples were not tested. Dr.

Zozaya also stated that it would be unlikely to detect male DNA from the swabs if

72 hours had passed since the last physical contact and detection became “less

likely the more time that passes.”

Erika Dupepe is the executive director of Jefferson Parish’s Child Advocacy

Center, and a former full-time forensic interviewer. She explained the process

used to conduct Q.B.’s forensic interview and the steps taken to maintain

neutrality, and not to lead a child to make a particular statement. The video and a

redacted copy of the video recording of Q.B.’s CAC interview was published to the

jury. The State stipulated that Q.B.’s eight-year old siblings made no disclosures

during their interviews.

Q.B. was fourteen years old at the time of the trial. She was preparing to

enter the ninth grade and also continue participating in a gifted arts program. She

22-KA-517 7

identified pictures of the house on Cleveland Street and the quiet room. The last

time Q.B. was in the house, she and one of her siblings were having a sleepover in

the sibling’s room. She woke up really late to her father touching her in between

her legs. She pretended to be asleep, but observed Defendant touching her when

she was peeking. Q.B. did not remember whether the touching was on her skin, or

her clothes, but she felt “uncomfortable.” She pushed him away, but Defendant

pushed her back down. Defendant apologized when she started to cry. Sometimes

the abuse in the house in Metairie occurred while she was staying in her sister’s

room on the top bunk bed. Q.B. recalled her father rubbing and feeling her breasts

or “butt cheeks” during other incidents. She also recalled falling asleep in the gym

while playing and waking up to “[Defendant . . .] touching me again between my

legs and the handcuffs were on me above my head[,]” with her pants and

underwear removed.

Q.B. also recalled the first time her father touched her inappropriately. She

recalled that they lived at a house at 1400 Vespasian Street. She was playing a

video game with her siblings and her father called her to a dark room with the

lights off, where her mother, who was at school at the time, would sleep. She also

recalled instances where her father would molest her while standing on the ladder

of the bunk bed while her siblings were in the room. She estimated that occurred a

total or five or six times. Defendant told Q.B. not to tell her mother or he would get

in trouble. Q.B. also recalled an incident where she was sleeping and then felt

Defendant “trying to kiss [her] lips and feeling his tongue in [her] mouth.”

Q.B. testified that she told her mother after she went to hang out in her

mother’s room because she was having trouble sleeping. Her mother made her

promise to tell if anything was wrong, and then she disclosed the abuse. She was

nervous and scared that her mother would hate her or blame her for what

happened. Q.B. remembered crying a lot and her mother comforting her. She

22-KA-517 8

hoped that she would not have to go to Defendant’s house anymore, so she would

not be hurt again and her father would not find out that she told her mother what

was happening. She recalled that she told her mother at nighttime and her mother

called someone afterwards. She also remembered going to the clinic to get a

checkup and going to a place to get therapy. Q.B. remembered the forensic

interview and watched the videotape with the assistant district attorney to prepare

for trial. She told the assistant district attorney that she did not want her mother

present when she testified, in case she said something her mother had not heard

previously.

Q.B. never screamed or yelled while she was being molested and her

siblings never woke up during any of the instances of abuse. She never discussed

the abuse with any of her siblings because she did not want them to think of her

differently either. She spoke to her mother about the abuse in general terms after

she completed therapy. Q.B. maintained that no one gave her the impression that

she had to describe anything that did not happen or exaggerate details about the

abuse.

The trial ended on July 28, 2022 after three days of testimony. The jury

unanimously found Defendant guilty as charged on count one, and not guilty on

count two.

On July 29, 2022, Defendant filed a Motion and Incorporated Memorandum

for New Trial and a Motion for Post Verdict Judgment of Acquittal. The trial court

considered and denied the motions at the beginning of the sentencing hearing held

on August 25, 2022. M.C. read Q.B.’s and her own victim impact statements in

open court. The judge noted that he read letters that Defendant’s ex-wife and niece

sent to an assistant district attorney on the case, and all four letters were filed into

22-KA-517 9

the record under seal.2 Letters from Defendant, three of his siblings, his sister-in-

law, and cousin were also filed into the record on his behalf. The judge advised

Defendant that he also read those letters. After Defendant waived delays, the trial

court sentenced him to thirty years at hard labor without benefit of probation,

parole, or suspension of sentence.

The district court advised that it denied Defendant’s motions for post verdict

judgment of acquittal and for new trial because it disagreed with the assertion that

the verdict rendered by the jury was contrary to law and that the jury correctly

found the factual elements of guilt were proven beyond a reasonable doubt and

Defendant did commit the crime he was charged with: sexual battery upon a victim

under the age of thirteen as defined by R.S. 14:43.1 C(2). The judge noted that the

statute provided a mandatory minimum sentence. After a discussion of factors

provided by La. C.Cr.P. art. 894.1 that were considered, the district court sentenced

Defendant to thirty years imprisonment at hard labor without the benefit of

probation, parole, or suspension of sentence. Defendant objected and later filed a

Motion to Reconsider Sentence, which the district court denied on August 30,

2022. A few weeks later, a stay away order to protect Q.B. for the duration of

Defendant’s incarceration was issued and filed under seal. The instant appeal

followed.

ASSIGNMENTS OF ERROR

Defendant alleges the following:

1. It was an abuse of discretion and error to deny Defendant’s Motion for
New Trial and for Post Verdict Judgment of Acquittal where the
evidence was insufficient to support the verdict beyond a reasonable
doubt.

2. The sentence imposed of thirty years at hard labor without benefits is
unconstitutionally excessive.

2
The defense objected at trial and in its Motion to Reconsider Sentence to the State’s exhibits/letters from
Defendant’s ex-wife and niece being entered into the record under seal as they were not provided by a
victim or family member as required under La. R.S. 46:1844.

22-KA-517 10

LAW AND DISCUSSION

SUFFICIENCY OF THE EVIDENCE

Defendant argues that, where the allegation made against him was

uncorroborated, and rested upon the testimony of a single witness who described

an implausible criminal scenario, the evidence was insufficient, and the verdict of

the jury was irrational and contrary to the due process of law.

The State contends that, based upon the law and evidence admitted at trial, it

proved Defendant committed the crime of sexual battery of a juvenile under the

age of thirteen beyond a reasonable doubt. Further, the State urges that it met the

constitutional standard regarding the sufficiency of the evidence pursuant to

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). The State also notes that corroboration of Q.B.’s testimony is not required.

Further, “the jury found [her] account of sexual abuse by Bridgewater to be

credible and her recounting of the incidents materially consistent” and the theory

that Q.B.’s recollections of the abuse may have only been descriptions of,

according to Defendant, a “fevered dream-nightmare,” “defies credibility.” Last,

the trial court did not err in denying Defendant’s motion for new trial and his

motion for post verdict judgment of acquittal.

Sufficiency of the evidence is properly raised in the trial court by a motion

for post verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v.

Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215 So.3d 473, 477. 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 guilt. State v. Durand, 07-4 (La. App. 5 Cir. 6/26/07), 963 So.2d 1028, 1033,

writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753. An appellate review of the

denial of the motion for post verdict judgment of acquittal is controlled by the

22-KA-517 11

standards set forth in Jackson v. Virginia, supra. See State v. Trice, 14-636 (La.

App. 5 Cir. 12/16/14), 167 So.3d 89, 92.

The constitutional standard for sufficiency of the evidence is whether, upon

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

of fact could find that the State proved all of the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, supra, State v. Chinchilla, 20-60

(La. App. 5 Cir. 12/23/20), 307 So.3d 1189, 1195, writ denied, 21-274 (La.

4/27/21), 314 So.3d 838.

In reviewing the sufficiency of the evidence, an appellate court must

determine whether the evidence, direct or circumstantial or a mixture of both,

viewed in the light most favorable to the prosecution, was sufficient to convince a

rational trier of fact that all of the elements of the crime were proven beyond a

reasonable doubt. Jackson, supra; State v. Gonzalez, 15-26 (La. App. 5 Cir.

8/25/15), 173 So.3d 1227, 1232. This directive that the evidence be viewed in the

light most favorable to the prosecution requires the reviewing court to defer to the

actual trier of fact’s rational credibility calls, evidence weighing, and inference

drawing. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702.

This deference to the fact-finder does not permit a reviewing court to decide

whether it believes a witness or whether the conviction is contrary to the weight of

the evidence. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097,

1102. Further, a reviewing court errs by substituting its appreciation of the

evidence and the credibility of witnesses for that of the fact-finder and overturning

a verdict on the basis of an exculpatory hypothesis of innocence presented to, and

rationally rejected by, the jury. State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310

So.3d 794, 804. As a result, under the Jackson standard, a review of the record for

sufficiency of the evidence does not require the reviewing court to determine

whether the evidence at trial established guilt beyond a reasonable doubt, but

22-KA-517 12

whether, upon review of the whole record, any rational trier of fact would have

found guilt beyond a reasonable doubt. Id.

In its determination of whether any rational trier of fact would have found

the defendant guilty, a reviewing court will not re-evaluate the credibility of

witnesses or re-weigh the evidence. Lane, 310 So.3d at 804. The credibility of a

witness, including the victim, is within the sound discretion of the trier of fact, who

may accept or reject, in whole or in part, the testimony of any witness. State v.

Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233. Thus, in the

absence of internal contradiction or irreconcilable conflicts with physical evidence,

the testimony of one witness, if believed by the trier of fact, is sufficient to support

a conviction. Lane, supra.

The testimony of the victim alone can be sufficient to establish the elements

of a sexual offense, even when the State does not introduce medical, scientific, or

physical evidence to prove the commission of the offense. Gonzalez, 173 So.3d at

1232. It is presumed that the trier of fact considered discrepancies in testimony in

assessing credibility and weight of testimony. Id.

Here, Defendant, born in 1986, was charged and convicted of sexual battery

of a known juvenile (born in 2008) under the age of thirteen.

La. R.S. 14:43.1 provides in pertinent part:

A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any
instrumentality or any part of the body of the offender,
directly or through clothing, or the touching of the anus or
genitals of the offender by the victim using any
instrumentality or any part of the body of the victim,
directly or through clothing, when any of the following
occur:
[...]

(2) The victim has not yet attained fifteen years of age
and is at least three years younger than the offender.

(3) The offender is seventeen years of age or older and
any of the following exist:

22-KA-517 13

(a) The act is without consent of the victim, and
the victim is prevented from resisting the act
because either of the following conditions exist:

[...]

(ii) The victim is incapable, through unsoundness
of mind, of understanding the nature of the act, and
the offender knew or should have known of the
victim's incapacity.

At trial, Q.B. testified that she was fourteen years old and entering the ninth

grade. She testified that she last saw Defendant four years earlier, and she and her

siblings would have overnight visits at his house on Cleveland Place in Metairie.

The last time Q.B. visited the home, she and her brother were having a sleepover

and they fell asleep in her brother’s room; she woke up and felt someone touching

her between her legs and discovered, peering through squinted eyes (because she

was pretending to be asleep), that Defendant was touching her. Q.B. recalled other

instances where her father touched her in the Metairie home. She described other

instances of abuse where Defendant touched her breasts, between her legs, and/or

buttocks in the room she shared with her sisters and the “quiet room.” She testified

regarding an incident in the gym where her hands were bound above her head with

toy handcuffs and her underwear and pants were removed. Q.B. stated the abuse

started when she lived at the house on Vespasian Street when she was five or six

years old -- she was playing a video game with her siblings when Defendant called

her back to M.C.’s room, while M.C. was at school. She also remembered that

there were other incidents where she was partially undressed because Defendant

had removed her clothes, and one time where Defendant was trying to kiss her and

she “[felt] his tongue in her mouth.”

Further, Q.B.’s mother M.C. testified that Defendant was born in 1986 and

Q.B. was born in 2008. She testified that the family moved to the house on

22-KA-517 14

Vespasian Street in Algiers, Orleans Parish around the spring of 2012, a year and a

half after her youngest children were born. M.C. and her children did not move

until after Hurricane Ida, which made landfall in Louisiana on August 29, 2021.

After M.C. and Defendant split, Defendant lived in Algiers and Gretna before

moving to a house on Cleveland Place in Metairie, where he lived with his wife

and their daughter. M.C. stated that she sent the children to visit Defendant up

until the time of Q.B.’s disclosure in October 2018 because she wanted them to

have relationships with their father.

Accordingly, we find Q.B.’s testimony that, several times over a period of

approximately five years, Defendant touched her breasts, vaginal area, and

buttocks, on top of and underneath her undergarments, was sufficient to convince a

rational trier of fact, the jury, that Defendant was guilty of the charged offense of

sexual battery beyond a reasonable doubt. Although Defendant cedes that Q.B.’s

testimony is “substantially in agreement” with her account given in the forensic

interview four years prior, he urges that the “story” is “hard-to-believe, wholly

uncorroborated” and “implausibl[e]” and argues that the verdict should be set

aside. But, again, in the case of sexual offenses, the testimony of the victim alone

can be sufficient to establish the elements of a sexual offense, even where the State

does not introduce medical, scientific or physical evidence to prove the

commission of the offense. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982

So.2d 146, 153–54, writ denied sub nom. State ex rel. Dixon v. State, 08-987 (La.

1/30/09), 999 So.2d 745.

Defendant also points to “the many gaps in [Q.B.’s] memory” to support his

claims challenging the sufficiency of the evidence adduced by the State. However,

the judgment of witness credibility is within the sound discretion of the trier of

fact, who may accept or reject, in whole or in part, the testimony of any witness.

Id. at 153; State v. Simms, 03-1459 (La. App. 5 Cir. 12/28/04), 892 So.2d 111, 121.

22-KA-517 15

Where conflicting testimony produces an issue of material fact that requires for its

resolution the determination of witness credibility, the trier of fact's resolution is a

matter of weight, not sufficiency, of the evidence. Dixon, 982 So.2d at 153. In this

case, there is no physical evidence. The State’s expert witness in child abuse

pediatrics, Dr. Mehta, explained that she would expect to find little physical

evidence if the exam occurred more than 72 hours after the last incidence of abuse,

like in the instant case. Dr. Mehta also discussed disclosure being “a process” and

children not always having the language to explain what is happening to them.

Moreover, this Court has recognized that memory lapse and alleged inconsistencies

may have resulted from the victim’s tender age — Q.B. was five years old —when

the abuse began; the traumatic nature of the experience; exposure to unfamiliar

surroundings; or the method of interrogation. See State v. Simmons, 03-20 (La.

App. 5 Cir. 4/29/03), 845 So.2d 1249, 1258 citing State v. Foy, 439 So.2d 433, 434

(La. 1983).

Considering the law and evidence, we find that that a rational trier of fact

viewing the evidence in a light most favorable to the prosecution, could have found

beyond a reasonable doubt that the evidence was sufficient under the standard set

forth in Jackson to support Defendant’s conviction. Hence, the district court did

not err in denying Defendant’s Motions for New Trial and for Post Verdict

Judgment of Acquittal.

EXCESSIVE SENTENCE

Defendant argues that a sentence of thirty years at hard labor is

unconstitutionally excessive, and shocking to the conscience, in this case where the

accused is a first offender and where the crime of conviction was premised largely

on through-the-clothing touching which, while illegal, is on the lower end of the

scale of the proscribed criminal conduct. Defendant further argues that even the

minimum sentence to be imposed for the crime committed, twenty-five years,

22-KA-517 16

would be excessive and cruel and unusual punishment, contrary to the State and

federal constitutions.

The State counters that the record fully supports the sentence imposed and

the trial court did not abuse its broad sentencing discretion.

When imposing sentences, a trial court has vast discretion in imposing a

sentence within statutory limits. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18),

254 So.3d 828, 836, writ not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154,

and writ denied, 18-1909 (La. 4/8/19), 267 So.3d 606 citing State v. Williams, 03-

3514 (La. 12/13/04), 893 So.2d 7, 16-17. However, there is no requirement that

specific matters be given any particular weight at sentencing. State v. McGowan,

16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1163, writ not considered sub

nom. State ex rel. McGowan v. State, 17-1675 (La. 10/27/17), 228 So.3d 1227.

The Eighth Amendment to the United States Constitution and Article I, § 20

of the Louisiana Constitution prohibit the imposition of excessive punishment. Id.

at 1162. A sentence is considered excessive, even if it is within the statutory

limits, if it is grossly disproportionate to the offense or imposes needless and

purposeless pain and suffering. Id. In reviewing a sentence for excessiveness, the

appellate court must consider the punishment and the crime in light of the harm to

society and gauge whether the penalty is disproportionate as to shock the court’s

sense of justice. State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500,

519, writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836. An appellate court cannot

set aside a sentence as excessive absent a manifest abuse of discretion. See

Williams, 893 So.2d at 16.

In determining whether a sentence is excessive, an appellate court considers:

(1) the nature of the crime; (2) the nature and background of the offender; and (3)

the sentences imposed for similar crimes by the same and other courts. State v.

Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 837, writ not considered,

22-KA-517 17

18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909 (La. 4/8/19), 267

So.3d 606. On appeal, the issue is not whether a different sentence might have

been more appropriate, but whether the trial court abused its vast discretion. Id.;

Dixon, 254 So.3d at 836-37.

La. R.S. 14:43.1 provides, in pertinent part:

C. (2) Whoever commits the crime of sexual battery on a
victim under the age of thirteen years when the offender
is seventeen years of age or older shall be punished by
imprisonment at hard labor for not less than twenty-five
years nor more than ninety-nine years. At least twenty-
five years of the sentence imposed shall be served
without benefit of parole, probation, or suspension of
sentence.

Defendant was sentenced to thirty years imprisonment at hard labor without

the benefit of parole, probation, or suspension of sentence for the charge of sexual

battery of a juvenile under the age of thirteen years. Defendant argues that he “is a

first [time] offender and where the crime of conviction was premised largely on

through-the-clothing touching which, while illegal, is on the lower end of the scale

of the proscribed criminal conduct.” Accordingly, Defendant’s sentence is at the

lower end of the sentencing range and less than a third of the maximum sentence

he could have received.

Before imposing Defendant’s sentence, the judge advised Defendant that he

read the victim impact statements from Q.B. and her mother. He also read two

other statements made on behalf on Q.B., Defendant’s statement, and the five

letters that his family members sent on his behalf. The district court noted that

Defendant helped care for his father who suffered with dementia. However,

pursuant to La. C.Cr.P. art. 894.1, the judge also highlighted his consideration of

the following: the offender’s conduct during the commission manifested deliberate

cruelty to the victim; the offender knew or should have known that the victim of

the offense was particularly vulnerable or incapable of resistance due to extreme

22-KA-517 18

youth; the offender used his or her position or status to facilitate the commission of

the offense; and the offense resulted in significant mental and probably permanent

injury to his daughter, the victim in this case. Defendant touched Q.B.

inappropriately and exploited his position as her father to gain access to her during

periods when he was supposed to be caring for and visiting with Q.B. and her

siblings. He also instructed her not to tell her mother about the abuse, or otherwise

seek help. Defendant knew Q.B., his biological daughter, was vulnerable due to her

young age when the abuse began and took advantage of her lack of protective

capacity, inability to resist, and he overpowered her at times during the abuse. Last,

as a result of the abuse, Q.B. was afraid – afraid that her mother would blame her

for the abuse, afraid that her mother and siblings would see her differently, and

afraid of being hurt again. Before her disclosure, she became quiet and stopped

doing her favorite things. Q.B.’s victim impact statement described suffering from

a negative self-image and having suicidal thoughts. Q.B. also testified about

therapy she received and coping mechanisms she learned to use to deal with the

memories of the abuse.

Upon sentencing Defendant, the district court also drew attention to La.

C.Cr.P. art. 894(A)(3) and its directive that the court should impose a (particular)

sentence of imprisonment if “a lesser sentence would deprecate the seriousness of

[his] crime.” Further, similar or harsher sentences have been imposed for similar

crimes by this Court and other courts and have been found to not be

constitutionally excessive. In support of its position, the State cites to State v.

Howard, 18-159 (La. App. 5 Cir. 11/7/18), 259 So.3d 583, writ denied, 18-2034

(La. 4/29/19), 268 So.3d 1031. In Howard, the defendant was convicted of

indecent behavior with a juvenile under the age of thirteen (count one) and sexual

battery of a juvenile under the age of thirteen (count two). As to count two, the

defendant was sentenced to forty years at hard labor, without the benefit of parole,

22-KA-517 19

probation, or suspension of sentence. This court declared that the fact that the

defendant accomplished his crimes without the use of weapons did not negate the

fact that his ability to overpower his victims was made possible through his

superior height, weight, and strength. The defendant also had a position as a trusted

authority figure within the home, which he exploited to commit his crimes.

The State also cites to State v. Lilly, 12-8 (La. App. 1 Cir. 9/21/12), 111

So.3d 45, writ denied, 12-2277 (La. 5/31/13), 118 So.3d 386. In Lilly, the

defendant was convicted of sexual battery in violation of La. R.S. 14:43.1(C)(2)

and was sentenced to thirty-five years at hard labor. The victim was four years old

at the time of the incident. On appeal, the defendant argued that the sentence was

excessive for a fifty-seven-year-old first-felony offender where the State, at most,

proved a fingertip touching of the victim’s vaginal area. The appellate court upheld

the sentence, noting that the victim’s age made her particularly vulnerable and that

the defendant was in a position of trust as her babysitter. Id. at 49-50, 63-64.

In State v. Brenckle, 14-883 (La. App. 5 Cir. 5/14/15), 170 So.3d 1141,

1155-56, the defendant was convicted of the sexual battery of two young children,

a boy and a girl. The trial court considered La. C.Cr.P. art. 894.1, in addition to

two victim impact statements presented prior to sentencing before it imposed two

concurrent forty-year sentences. This Court found that those sentences were not

constitutionally excessive, noting that they were less than half the maximum

sentences that could have been imposed.

Last, the jurisprudence indicates that maximum, or nearly maximum terms

of imprisonment may not be excessive when the defendant has exploited a position

of trust to commit sexual battery or indecent behavior with a juvenile. State v.

Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied, 01-

2965 (La. 10/14/02), 827 So.2d 414. Considering the nature of the crime, the

position of trust Defendant held as the victim’s biological father, the ages of the

22-KA-517 20

victim when the abuse occurred, and her lack of protective capacity, we find that

the record supports the sentence imposed and the district court did not abuse its

wide discretion in imposing a thirty-year sentence in this case. Further, we find

Defendant’s sentence, which is at the lower end of the statutorily prescribed range,

is not constitutionally excessive.

ERRORS PATENT

The record was reviewed for errors patent, pursuant to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

The Louisiana Uniform Commitment Order (UCO) incorrectly reflects the

dates of the offenses on counts one and two as January 18, 2013. However, the

record reflects that counts one and two occurred on or between January 18, 2013

and October 10, 2018. To ensure accuracy in the record, we remand this matter for

the district court to correct the UCO to reflect the entire date range of the offense.

Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit

the corrected UCO to the appropriate authorities, including the Department of

Corrections’ legal department, in accordance with La. C.Cr.P. art. 892(B)(2). See

Lane, supra (remanding the case with instructions to the trial court to correct the

UCO to include the entire date range of the offenses as to counts one and two).

DECREE

Considering the foregoing, Defendant’s conviction and sentence are

affirmed. The matter is remanded for further proceedings consistent with this

opinion.

AFFIRMED;
REMANDED FOR CORRECTION OF THE UCO

22-KA-517 21

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-517
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
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ATTORNEY AT LAW (APPELLEE)
LOUISIANA APPELLATE PROJECT DISTRICT ATTORNEY
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