State of Louisiana v. J. M.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-624

STATE OF LOUISIANA

VERSUS

J.M.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 11735-03
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
James T. Genovese, Judges.

CONVICTIONS AFFIRMED;
SENTENCES VACATED; REMANDED
FOR RESENTENCING.

John Foster DeRosier
District Attorney - 14th Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mitchell P. Bergeron
Public Defender’s Office
120 West Pujo Street - Suite 201
Lake Charles, LA 70601
Telephone: (337) 436-1718
COUNSEL FOR:
Defendant/Appellant - J.M.

THIBODEAUX, Chief Judge.

Defendant, J.M.1, appeals his jury convictions and trial court sentences

for two counts of aggravated incest and one count of attempted aggravated incest. He

was sentenced as follows:

[D]efendant, [J.M.], is hereby ordered to serve as to
each count of aggravated incest, ten years with the
Department of Corrections to run concurrent of which six
years on each count is suspended. You will serve four
years on each count consecutive to one another before
being eligible for release.

With regard to the attempted aggravated incest, you
are ordered to serve five years with the Department of
Corrections consecutive to the ten years on each of the
other counts of which three years are suspended and you
will serve those two years balance consecutive to the other
eight years for the two counts of aggravated incest.

In other words, you will serve a total of ten years
with the Department of Corrections and there will be 15
years that have been suspended.

Defendant was also ordered to pay a fine, court cost, and restitution to the victims.

We affirm Defendant’s convictions. We vacate his sentences, however,

and remand for resentencing.

ISSUES

Defendant is now before this court on appeal, alleging four errors:

insufficient evidence to sustain the verdicts, erroneous denial of Defendant’s request

that the victims be sequestered, erroneous imposition of consecutive sentences, and

excessiveness of the sentences.

1
Because the victims are minors, initials of the parties will be used to protect the victims’
identities. La.R.S. 46:1844(W).

LAW AND DISCUSSION

Insufficiency of the Evidence

Defendant argues that the inconsistencies which existed within the three

victims’ initial interviews with the Children’s Advocacy Center counselor and the

inconsistencies within their testimonies given at trial were such that it was

inconceivable the jury would find Defendant guilty beyond a reasonable doubt.

Defendant further argues that the State failed to prove all of the elements of the

crimes of aggravated incest and attempted aggravated incest, and that the State failed

to show that the offenses occurred in the time frame alleged in the indictment.

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 (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). The role of the factfinder is to
weigh the respective credibility of each witness.
Therefore, the appellate court should not second guess the
credibility determinations of the factfinder 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).

State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118, 120, writ

denied, 99-3259 (La. 5/5/00), 761 So.2d 541.

Defendant was convicted of two counts of aggravated incest committed

against Ja.P. and Je.P. and one count of attempted aggravated incest committed

against S.F. Louisiana Revised Statutes 14:78.1, in the relevant parts, provides:

A. Aggravated incest is the engaging in any
prohibited act enumerated in Subsection B with a person
who is under eighteen years of age and who is known to
the offender to be related to the offender as any of the
following biological, step, or adoptive relatives: child,

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grandchild of any degree, brother, sister, half-brother, half-
sister, uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

....

(2) any lewd fondling or touching of the person of
either the child or the offender, done or submitted to with
the intent to arouse or to satisfy the sexual desires of either
the child, the offender, or both.

The attempt statute, La.R.S. 14:27, provides, in part:

A. Any person who, having a 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.

Moreover, in State v. Arwood, 00-152, pp. 6-7 (La.App. 5 Cir. 6/27/00),

762 So.2d 1266, 1270, the fifth circuit stated:

In order to support a conviction for attempted
aggravated incest, the State is required to prove that the
defendant specifically intended to engage in an act listed in
Subsection B of LSA-R.S. 14:78.1 with his daughter. Such
proof is indispensable, as specific intent to accomplish the
offense is the sine qua non of the criminal offense of
attempt. State v. Trackling, 609 So.2d 206, 207 (La.1992).
Specific intent is a state of mind and as such need not be
proven as a fact, but may be inferred from the
circumstances and actions of the accused. See State v.
Graham, 420 So.2d 1126, 1128 (La.1982); and State v.
Lewis, 698 So.2d 456, 459 (La.App. 5 Cir.1997), writ
denied, 716 So.2d 881 (La.1998).

At trial, the only direct evidence presented of Defendant’s guilt were the

testimonies of the three victims and the videotapes made during the interviews

conducted by the Children’s Advocacy Center a short time following the victims’

disclosures to the police of Defendant’s acts.

At trial, J.P., the adoptive father of two of the victims, testified that he

was alerted to a problem by S.F.’s mother, L.C.F. She had called J.P. and asked him

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if he knew why S.F. insisted that she did not want to visit with Defendant. J.P. had

also noticed that his daughters were making up excuses not to visit with their

grandfather. After he had talked to S.F.’s mother, he asked the two girls why S.F. did

not want to visit Defendant. The oldest, Je.P., then told him that their grandfather had

been touching S.F. She told him that their grandfather had been touching Je.P. and

Ja.P., too.

L.C.F. testified that after J.P. called her and told her what his girls were

saying, she did not confront S.F. directly because she wanted S.F. to tell her first.

L.C.F. said she kept asking S.F. why she was mad at Defendant. Finally, S.F. told her

about the touching.

The allegations were reported to Mike Primeaux, a detective with the

Calcasieu Parish Sheriff’s Office sex crimes unit, on or about December 2, 2002. He

arranged and monitored the taped interviews of the girls at the Children’s Advocacy

Center.

Je.P. was interviewed on December 27, 2002. Je.P., who was twelve at

the time, told about an incident that involved herself and Ja.P., which took place in

Defendant’s greenhouse while they played “Doctor.” She stated that he was the

doctor, and that she and Ja.P. took turns being the patient. She said that while she sat

on a workbench, Defendant examined a “bobo” on her thigh. He then reached up the

pant leg of her shorts and touched her in the “bad place.” Je.P. indicated, on a

drawing of a nude child, that the “bad place” was the genital area. She stated that

when it was Ja.P.’s turn to be the patient, she saw him touch Ja.P. in the same “bad

place.” Je.P. said that she and Ja.P. ran into the house and locked themselves in a

back bedroom and called their father to come and get them. She said that Defendant

did not want them to call. Je.P. also stated that she had seen him touch Ja.P. another

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time while Ja.P. was sitting on the couch at Defendant’s house watching television.

She also said that Defendant made her watch a “dirty movie” of people doing things

without their clothes on. During the interview, Je.P. was unclear about how many

times Defendant had touched her and the other two girls.

Je.P. was fifteen at the time of trial. At trial, Je.P.’s testimony was fairly

consistent with the information she gave at the interview, except that she testified that

S.F. was with her and her sister during the incident in the greenhouse. However, she

later testified that S.F. was not in the greenhouse on that particular occasion.

Ja.P. was ten years old at the time of the interview at the Children’s

Advocacy Center. She told of playing “Doctor” in the greenhouse with Defendant

and S.F. She thought she was seven at the time of the incident. She described how

Defendant was the doctor and she was the patient and that she had a “bobo” on her

leg that needed fixing. She said that he made her take her pants down. She was

unclear as to whether he touched her under or over her panties. She indicated on a

drawing of a nude child that he touched her on her genital area. She stated that he

made her and S.F. go into the greenhouse with him. She also stated that S.F. had told

her that she saw Defendant touch Je.P. She further related a time when they played

“Truth or Dare,” and Defendant wanted them to dare him to take his clothes off. She

said he wanted them to “do something,” but they refused and locked themselves in

the back bedroom. She said that Defendant threatened them, “like burn the house or

shoot us.” She talked about him touching them while they were on a swing, and that

he would not take them home when they asked. (Ja.P. was not always clear on who

was with her, Je.P. or S.F., or both). She described the “dirty movie” he made her and

the other girls watch. She said the movie was of people in bed. She stated that

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Defendant asked them to do what the people were doing. She said that he hid the

movie in the laundry room.

Ja.P. was thirteen when she testified at trial. She testified that incidences

of playing “Doctor” in the greenhouse happened several times with her and the other

two girls and that Defendant touched them over and under their panties. She

remembered Defendant making threats if they told, but could not recall what threats

he made. She also recalled watching the “dirty movie” in the living room. Later, she

stated that the touching happened to her and S.F. several times but that she was

unsure whether it happened to Je.P. more than once.

S.F. was ten at the time of the interview. At the beginning of the

interview, S.F. stated that “something happened” several times when she was eight.

When she was asked what the something was, she hung her head and would not

speak. When asked where something might have happened, she asked to write it

down. S.F. then made a list of four places where something happened and who was

there when it happened. Eventually, she said that one night when she and Ja.P. were

at Defendant’s house, he put his hand on her lap on top of her “private part.” S.F.

indicated on a drawing of a nude girl that he touched her on her genital area. She said

that one time, after she had used the bathroom in his bedroom, he asked her to take

off her clothes. S.F. described the greenhouse and told of playing “Doctor.” She

described how he pulled Je.P.’s shorts down and touched Je.P. on her “private part.”

She described the movie that he made them watch. She said that there were nasty

people in the movie who did not have any clothes on. She said that Defendant kept

the movie in the laundry room.

At trial, S.F., who was thirteen then, described how Defendant was

always the doctor when they played. She described how he would pretend to fix the

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“upper part” of her legs, and then he would touch her “private part” under her pants

but over her panties. She stated that she saw him touch Ja.P. in the same manner.

She also saw him touch Ja.P. while Ja.P. was sitting on the couch watching television.

She described the game of “Truth or Dare” she had discussed in the taped interview,

but this time she said that he wanted her and Ja.P. to kiss each other, and when they

refused, he got mad at them. She also described the pornographic videotape she was

made to watch.

Defendant testified at trial. He adamantly denied all the allegations. He

admitted that he played “Doctor” with the girls, but denied that he touched them as

they claimed. He denied that he showed them a pornographic movie. He stated that

he has never had a pornographic tape in his house. He stated that he believed J.P. put

the sisters up to lying because J.P., who he claimed was unable to have his own

children, was fearful of him coming between the two girls and their adoptive father.

He stated that S.F. lied so she could be with the other two girls.

Defendant’s wife and daughter also testified. Neither of them had

noticed any problems with the three girls and their grandfather.

In brief, Defendant points to several inconsistencies in the girls’

testimonies at trial and with the statements made at the Children’s Advocacy Center.

The inconsistencies were of who was touched in whose presence and when and where

they were touched. As an example, Defendant points to Je.P.’s videotaped statement

that Defendant touched her first when she, Ja.P., and Defendant were playing Doctor

in the greenhouse. At trial, she indicated that he played Doctor with Ja.P. first.

Furthermore, during the videotaped interview, S.F. did not include the greenhouse on

her list of places where she was when Defendant touched her.

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Defendant argues that “law enforcement officers and the Child Advocacy

counselor” failed to “properly investigate this case to confirm or deny certain facts”

and that this compounded the problem. At trial, Detective Primeaux admitted that he

did not obtain a search warrant for Defendant’s house to locate the alleged

pornographic tape. Further, Defendant points to the fact that there was no medical

evidence of sexual abuse submitted at trial.

However, at trial, Detective Primeaux testified that he did not ask for

medical examinations because the victims had all indicated that Defendant had

touched them on their genital areas but did not indicate any penetration. “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.

Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied,

04-0583 (La. 7/2/04), 877 So.2d 143.

While there were inconsistencies in the girls’ statements as to where

exactly, when exactly, and who was present when the activity occurred, the salient

facts were consistently presented: playing Doctor where only Defendant was the

doctor, a pretended problem with the victims’ upper legs, the dirty movie that showed

naked people in bed, the tape hidden in the laundry room, and the game of “Truth or

Dare” where Defendant wanted the girls to take off their clothes or that they dare him

to take off his clothes. At trial, Defendant admitted that he played Doctor once with

the girls in the greenhouse. He testified that he had actually moved them from the

greenhouse to the back of his truck because of all the pesticides in the greenhouse.

He testified that he had gotten an old stethoscope from his wife and used that

instrument during their play. Defendant’s wife corroborated his testimony regarding

8

the stethoscope. However, none of the girls mentioned a stethoscope or playing

Doctor in the back of Defendant’s truck either during the interview with the Child

Advocacy counselor or at trial.

Defendant further argues that the State failed to establish that the

incidences occurred between January 1, 2001, and December 19, 2002, as alleged in

the indictment. Testimony at trial and information asserted in the videotapes indicate

that the inappropriate touching happened on a continuing basis. Je.P., whose birth

date was in November 1990, had just turned twelve prior to the interview with the

Children’s Advocacy Center. She indicated that the incident in the greenhouse

happened when she was about nine years of age, which would have put the date

within a month or two of January 2001. Both sets of parents testified that in 2002,

the girls had began to be reluctant to visit with their grandfather. Moreover, “[t]he

date of the offense is not a specific element of aggravated incest.” State v. Foshee,

99-1423, p. 6 (La.App. 3 Cir. 4/5/00), 756 So.2d 693, 696.

Finally, Defendant asserts that the State failed to prove the element of

“intent to arouse or to satisfy the sexual desires of either the child, the offender, or

both.” La.R.S. 14:78.1(B)(2). The State does not have to prove actual arousal, only

the intent to arouse. State v. Rollins, 581 So.2d 379 (La.App. 4 Cir. 1991). “Specific

intent is a state of mind and as such need not be proven as a fact, but may be inferred

from the circumstances and actions of the accused.” State v. Harris, 99-1288, p. 7

(La.App. 5 Cir. 1/24/01), 782 So.2d 1055, 1059, writ denied, 01-0485 (La. 1/25/02),

806 So.2d 668. In Arwood, 762 So.2d 1266, the defendant was convicted of

attempted aggravated incest. The fifth circuit found that there was sufficient evidence

of the defendant’s intent to arouse or satisfy his sexual desire. The victim, the

daughter of the defendant, testified that her father would get into the bathtub with her

9

and touch her private parts with his hand. He would sleep naked with her and pull

her shirt up and lay on top of her.

In the current case, the facts presented at trial indicated a continuous and

planned activity. All of the victims testified that they were forced to watch a

pornographic movie. One of the victims reported that they were asked to take off

their clothes, and when they refused, Defendant became angry. Moreover, Defendant

was always the “Doctor,” indicating control of the girls. There was sufficient

evidence of Defendant’s intent to sexually gratify himself.

Finally, “[i]n the absence of internal contradiction or irreconcilable

conflicts with physical evidence, the testimony of one witness, if believed by the

court, is sufficient to support a conviction or convictions.” State v. Stec, 99-633, pp.

4-5 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. There was sufficient evidence on

which the jury could reasonably find Defendant guilty of the crimes of aggravated

incest and attempted aggravated incest. There is no merit to this assignment of error.

Sequestration of the Victims

Defendant asserts that the trial court committed reversible error when it

denied his requests at trial to sequester the victims. In brief, Defendant argues:

The alleged victims, Je.P., Ja.P., and S.F., were
allowed to stay in the courtroom while each other were
testifying. Even if it is conceded that a victim may have
the right to be in the courtroom while their claims are being
discussed, it is contended that right would not allow them
to be in the courtroom while other victims’ claims are
being discussed and when the other parties are not family.
Although two of the victims, Je.P. and Ja.P., were sisters,
the third victim, S.F., was not related to these parties.

The Louisiana Code of Evidence Article 615, in pertinent part, provides:

A. As a matter of right. On its own motion the
court may, and on request of a party the court shall, order
that the witnesses be excluded from the courtroom or from

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a place where they can see or hear the proceedings, and
refrain from discussing the facts of the case with anyone
other than counsel in the case. In the interest of justice, the
court may exempt any witness from its order of exclusion.

B. Exceptions. This Article does not authorize
exclusion of any of the following:

....

(4) The victim of the offense or the family of the
victim.

On the morning of trial, Defendant asked that the victims be excluded

from the courtroom during each other’s testimony. Defendant asserted that his right

to proper cross-examination would be violated because the victims could feed off one

another or look to each other for support throughout the testimony. The trial court

denied Defendant’s request, stating that it had no authority to exclude the victims and

their families. Moreover, the trial court noted that the videotapes would show any

discrepancies in the testimonies.

In State v. Johnson, 01-2334, p. 5 (La.App. 4 Cir. 12/4/02), 833 So.2d

508, 511, the defendant complained because one of the two victims he robbed was

allowed to remain in the courtroom during the other victim’s testimony. Finding that

the defendant’s right to effective cross-examination was not violated, the fourth

circuit held:

Further, the purpose of a sequestration order is to
prevent a witness from hearing or learning of the testimony
of the other witnesses before he takes the stand, preventing
the witness from deliberately tailoring his testimony to that
of other witnesses. A sequestration order is also intended
to exclude conscious and subconscious influence by one
witness upon another. An order sequestering the witnesses
is designed to do two things: (1) insure that a witness will
testify from to [sic] his own knowledge of the case without
being influenced by the testimony of another witness and
(2) strengthen the role of cross-examination in developing
facts. State v. Kimble, 407 So.2d 693 (La.1981).

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In this case, the record shows that Thuy Trinh’s
testimony was not influenced by her mother’s testimony,
and that the defendant’s ability to cross-examine Thuy
Trinh was not undermined. Thuy Trinh’s testimony at the
motion hearing was identical to the information she
provided Detective Deiringer on the day of the offense.

See also, State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/06/05), 917 So.2d 471, writ

denied, 05-2469 (La. 4/28/06), 927 So.2d 283, where the fifth circuit held that it was

not error for the trial court to have denied the defendant’s request to sequester the

victim.

As noted by the trial court in the present case, the victims’ testimonies

at trial were essentially corroborated by the videotapes made at the Children’s

Advocacy Center and each other. While there were minor deviations from the facts

alleged, there was nothing to indicate that the victims were testifying in support of or

influenced by each other’s testimony. This assignment of error is without merit.

Concurrent Versus Consecutive Sentences and
Excessiveness of the Sentences

Errors number three and four concern the consecutive application of the

sentences and question whether the sentences were excessive under the circumstances

of the case. However, as noted in the Errors Patent section below, the sentences must

be vacated. Therefore, a discussion of these issues is not necessary.

ERRORS PATENT

After reviewing the record, we find several errors patent which require

that the sentences imposed be vacated. First, Defendant’s sentences are illegal.

Initially, the trial court stated that any sentences it imposed would be consecutive;

however, it then stated that Defendant’s ten-year sentences on each count of

aggravated incest would run concurrently. Later, the trial court stated that the

12

probationary periods of five years would also run concurrently. These sentences are

thus indeterminate and require that the case be remanded for resentencing.

Second, the trial court failed to set the amount of restitution to be paid

to the victims. In ordering restitution be paid, the trial court stated:

You will be required to make restitution to each of the
victims according to amounts that are submitted for any
counseling and treatment as provided for by law. Those
amounts will be submitted to the Office of Probation and
Parole and be made a part of your payment schedule. I
believe we will have a feeling for what those total amounts
will be by the time that you’re released.

In State v. Joseph, 05-186, pp. 2-3 (La.App. 3 Cir. 11/2/05), 916 So.2d

378, 380, this court stated:

This court has held that when a trial court fails to
state the amount of restitution owed as a condition of
probation, the sentence is illegal and the case must be
remanded for resentencing. State v. Dauzat, 590 So.2d 768
(La.App. 3 Cir.1991), writ denied, 598 So.2d 355
(La.1992), cf. State v. Randle, 02-309, 02-310 (La.App. 3
Cir. 10/2/02), 827 So.2d 657.

Thus, at resentencing, the trial court should be instructed to set the amount of

restitution to be paid to each victim.

Third, the trial court failed to establish a payment plan for the payment

of the $1,500 fine, court costs, and the $500 reimbursement to the Indigent Defender

Board. The trial court stated that the fine and court costs were to be “spread out over

the 60 months of [his] supervised probation on a schedule to be worked out by

Probation and Parole and approved by [the] court.” This court has previously found

such a statement insufficient to establish a payment plan. See State v. Thomas, 05-

1051 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, and State v. Brack, 99-1103 (La.App.

3 Cir. 3/1/00), 758 So.2d 310. Thus, we order the trial court to establish a payment

plan for any fees imposed as conditions of probation at the resentencing proceeding.

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A payment plan is also required for any restitution ordered as a condition of

probation. See State v. Morris, 05-725 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107.

CONCLUSION

The evidence was sufficient to sustain the guilty verdicts on two counts

of aggravated incest and one count of attempted aggravated incest beyond a

reasonable doubt. Furthermore, the trial court did not err when it denied Defendant’s

request to sequester the victims during each others’ testimonies. Accordingly, we

affirm Defendant’s convictions. However, because of the indeterminate nature of the

sentences and the lack of a payment plan for the fines, court costs, and restitution

ordered, the sentences are vacated, and this matter is remanded to the trial court for

resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED;

REMANDED FOR RESENTENCING.

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