State of Louisiana v. Carvin Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-805 consolidated with 04-806

STATE OF LOUISIANA

VERSUS

CARVIN SMITH

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 03-CR-118994-A
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, C.J., Glenn B. Gremillion, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

G. Paul Marx
P. O. Box 82389
Lafayette, LA 70598-2389
Telephone: (337) 237-2537
COUNSEL FOR:
Defendant/Appellant - Carvin Smith

Dan B. McKay, Jr.
Assistant District Attorney
P. O. Box 1200
Marskville, LA 71351
Telephone: (318) 346-2336
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Honorable Charles A. Riddle, III
District Attorney, 12th Judicial District Court
P. O. Box 1200
Marksville, LA 71351
Telephone: (318) 346-2336
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Carvin Smith
Avoyelles Correctional Center
1630 Prison Road
Cottonport, LA 71327-4055

THIBODEAUX, Chief Judge.

The Defendant, Carvin Smith, appeals his conviction of obscenity on the

basis of insufficiency of the evidence. We affirm.

FACTS

On May 2, 2003, at the Avoyelles Correctional Center, two female

guards, Sergeant Artie Jones and then-Cadet Stephanie Mayeux, were processing mail

at a desk area in the facility. While they were working, Defendant was in a shower

in the same general area, but was not immediately visible from the women’s

positions.

A short while later, Defendant moved to a window in the shower area,

where Ms. Mayeux could see him when she looked up from the mail. When she saw

him, he was standing in the shower window, looking at the women and masturbating.

Sergeant Jones turned around and saw him with his erect penis in his hand.

Defendant would not obey their verbal commands to stop, but relented when a male

guard, Sergeant Greg Normand, approached him. Sergeant Normand also saw

Defendant masturbating.

LAW AND DISCUSSION

Defendant argues the evidence was insufficient to support his conviction.

Specifically, he suggests that since he was in a shower, a reasonable observer could

not have been offended by seeing his genitals, which would in all likelihood be

exposed. This argument is the sole basis of Defendant’s sufficiency challenge. A

number of inmates testified on his behalf at trial, but he does not now compare the

relative credibility of the State witnesses with that of his witnesses. At trial,

Defendant adduced testimony from inmate witnesses who stated that he did not

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masturbate. Also, the parties entered a stipulation that twelve more inmate witnesses

would testify they could see into the shower area, but did not see Defendant

masturbate. However, he does not refer to such testimony in his argument. Defendant

does not claim on appeal that he was not masturbating or that the guards could not see

him. Rather, he argues he was in a private area where he rightfully expected not to

be watched.

This court has explained:

When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court is
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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444
U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex
rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State
v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393
So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the
credibility determinations of the triers of fact beyond the
sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559
(citing State v. Richardson, 425 So.2d 1228 (La.1983)). In
order for this Court to affirm a conviction, however, the
record must reflect that the state has satisfied its burden of
proving the elements of the crime beyond a reasonable
doubt.

State v. Kennerson, 96-1518, pp. 4-5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

As already observed, Defendant was convicted of obscenity. The

elements of that crime are set forth in La.R.S. 14:106(A)(1), which states, in pertinent

part:

The crime of obscenity is the intentional:

Exposure of the genitals, pubic hair, anus, vulva, or female
breast nipples in any public place or place open to the
public view, or in any prison or jail, with the intent of

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arousing sexual desire or which appeals to prurient interest
or is patently offensive.

Defendant argues that since he was in the shower, he was entitled to

expect some measure of privacy, at least from “general observation by prison staff.”

In support of his argument, he cites language from this court:

It is common sense that a prison shower is a location
afforded greater privacy than a prison infirmary.
Obviously, there are no visitors in prison showers, and it
cannot be reasonably held to be a “place open to the public
view” as the statute provides. It is true a prisoner’s
expectation of privacy, to a large extent, must give way to
the immediacy of his imprisoned circumstances and the
security measures which must be put in play to assure the
orderly conduct of daily life in such a confined
environment. Still, a “prison shower” heretofore has been
regarded as one of the few places a prisoner is permitted to
attend to his “private needs” except for minimal security
monitoring by authorized prison personnel. While we
today pass no judgment on the wisdom of the legislative
amendment to La.R.S. 14:106(A)(1), we find the conduct
for which this Defendant was charged did not amount to
obscenity under the previous law. Therefore, we reverse
Defendant’s conviction and sentence.

State v. Holmes, 03-177, pp. 3-4 (La.App. 3 Cir. 2/18/04), 866 So.2d 406, 408

(footnote omitted).

However, the Holmes case was based upon an earlier version of La.R.S.

14:106, that did not contain the phrase, “or in any prison or jail.” Further, the two

cases differ factually. Although the factual recitation in Holmes was not detailed, it

stated that the defendant masturbated in the shower, while observed by a female

guard. Id. In the present case, the State’s witnesses testified that although Defendant

was in the shower area, he had to move about five feet from the shower head to reach

the window where he masturbated within view of Sergeant Jones and Ms. Mayeaux.

The two guards were approximately thirty feet away from the window, which was

about four feet high by one foot wide, with its bottom sill about two feet above floor

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level. Thus, the evidence showed that Defendant took action to put himself within

view of the two female guards. Further, Ms. Mayeaux testified she yelled for him to

stop. She noted that he initially appeared startled by her yelling, but continued his

actions while staring at her through the window. Her testimony on this point was

generally corroborated by the other two guards. Defendant suggests there was no

need for Ms. Mayeaux to look at the window, as her mail-sorting duty did not require

her to look up. However, Ms. Mayeaux and Sergeant Jones both testified that general

observation of their surroundings was part of their duty.

Thus, even if Holmes stated the controlling law, it would not apply to the

present case. Defendant cannot reasonably have expected privacy while standing in

the window of a prison shower area.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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