State of Louisiana v. R. D.

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-717

STATE OF LOUISIANA

VERSUS

R. D.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 4205-05
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

CONVICTIONS AFFIRMED; SENTENCE VACATED; AND REMANDED
FOR RE-SENTENCING.

James E. Burks
3112 Enterprise Blvd.
Lake Charles, LA 70601
Counsel for Defendant-Appellant:
R. D.

John F. Derosier
District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan St.
Lake Charles, LA 70601
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, R. D., 1 appeals his conviction for molestation of a juvenile and two

counts of sexual battery. For the following reasons, we affirm, vacate the sentence

imposed in connection with the charge of sexual battery, and remand for re-

sentencing on that offense.

FACTS AND PROCEDURAL HISTORY

Between January 1, 2000 and January 1, 2004, Defendant forced the victim, his

minor stepdaughter, to engage in various sexual activities, including fondling,

kissing, oral sex, and digital penetration of the victim’s anus.

On February 10, 2005, Defendant was charged with molestation of juvenile,

a violation of La.R.S. 14:81.2, and with two counts of sexual battery, violations of

La.R.S. 14:43.1. Following a trial by jury held on December 4-7, 2007, Defendant

was found guilty as charged.

Defendant was sentenced on January 16, 2008. In connection with the

conviction of molestation of a juvenile, Defendant was sentenced to ten years at hard

labor, the first five years suspended, and the trial court ordered five years of

supervised probation upon Defendant’s release from jail. General conditions for

probation as set forth in La.Code Crim.P. art. 895 were ordered, as well as the

following special conditions: 1) pay $50.00 per month for a supervision fee and $5.50

per month for technology registration fee; 2) submit to psychological evaluation and

successfully complete recommendations for sex offender treatment; 3) remain drug

and alcohol free and stay out of bars and away from any illicit drugs and substance

abusers; 4) submit to electronic monitoring or home incarceration as required by

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Initials are used herein in compliance with La.R.S. 46:1844(W).

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probation officer; 5) have no contact with any minor children; 6) register as a sex

offender; 7) conform with the elements of supervised release; and 8) have no contact

with the victim.

The court sentenced Defendant to serve five years at hard labor, without benefit

of probation, parole, or suspension of sentence on each count of sexual battery. The

sentences were ordered to run concurrently with each other and concurrently with the

sentence for molestation of a juvenile.

Defendant did not file a motion to reconsider his sentences. He is now before

this court on appeal, asserting that the evidence at trial was insufficient to sustain the

convictions. Additionally, Defendant asserts that the trial court erred in not allowing

him to question the victim regarding her sexual activities with her boyfriend, C.G.

Lastly, Defendant alleges that the trial court erred in denying his Motion for

Judgment of Acquittal.

DISCUSSION

Error Patent

As required by La.Code Crim.P. art 920, we review all appeals for errors patent

on the face of the record. After reviewing the record, we find an error patent that

requires us to vacate Defendant’s sentence for molestation of a juvenile and to

remand for resentencing.

For the offense of molestation of a juvenile, the trial court sentenced Defendant

to serve ten years with the Department of Corrections, with five years suspended.

The trial court put Defendant on supervised probation for five years, and, as a

condition of probation, required that Defendant be “subject to electronic monitoring

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or home incarceration by Probation & Parole at their discretion . . . depending on the

circumstances at the time.”

We find no authority prohibiting the imposition of either home incarceration

or electronic monitoring as conditions of probation. “The specific conditions of

probation enumerated in Article 895 are not exclusive. See Official Revision

Comment (a). The sentencing judge is granted general authority to “impose any

specific conditions reasonably related to . . . rehabilitation.” State v. Rugon, 355

So.2d 876, 878 (La.1977). Also, La.Code Crim.P. art. 894.2 allows home

incarceration in lieu of imprisonment for not more than two years under certain

circumstances. La.Code Crim.P. art 895 allows courts to require service of a term of

imprisonment of not more than two years without hard labor as a condition of

probation.

As for electronic monitoring, La.Code Crim.P. art 894.2 allows a court to

impose electronic monitoring as a condition of home incarceration. The current

version of La.R.S. 14:81.2 regarding molestation of a juvenile requires electronic

monitoring for life after an offender has completed his or her term of imprisonment

when the victim is under the age of thirteen years. Although we are aware of no

statutory authority explicitly granting a court authority to impose home incarceration

and/or electronic as a condition of probation, it has not been recognized as error

patent. Additionally, we are aware of no authority expressly denying a trial court

authority to impose such conditions.

However, the failure of the trial court to specify whether Defendant would be

subject to electronic monitoring or home incarceration, or both, rendered Defendant’s

sentence indeterminate and, therefore, illegal.

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This court requires re-sentencing when the indeterminacy involves probation.

See State v. Williamson, 04-1440 (La.App. 3 Cir. 3/2/05), 896 So.2d 302; State v. Van

Winkle, 06-1636 (La.App. 3 Cir. 6/6/07), 964 So.2d 400.

Therefore, we vacate Defendant’s sentence for molestation of a juvenile and

remand the case to the trial court with instructions that it specify whether, as a

condition of probation, Defendant will be subject to electronic monitoring, home

incarceration, or both. Additionally, the trial court is ordered to specify the

condiditons of the home incarceration. If electronic monitoring is imposed and any

conditions are required, the trial court should specify those as well. See State v.

Breaux, 05-358 (La.App. 5 Cir. 12/27/05), 920 So.2d 274

Sufficiency of the Evidence

Defendant argues that the evidence presented at trial was insufficient to support

the conviction because the sole evidence was the testimony of the alleged victim.

More specifically, Defendant contends that the victim’s testimony is riddled with

inconsistencies rendering it “unreliable, untrustworthy, and incredible.” Further,

Defendant asserts that the prosecution failed to prove beyond a reasonable doubt that

he committed the offenses.

The analysis for a claim of insufficient evidence is well settled:

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

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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, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Louisiana Revised Statutes 14:81.2(A) defines molestation of a juvenile as “the

commission by anyone over the age of seventeen of any lewd or lascivious act upon

the person or in the presence of any child under the age of seventeen, where there is

an age difference of greater than two years between the two persons, with the

intention of arousing or gratifying the sexual desires of either person, by the use of

force, violence, duress, menace, psychological intimidation, threat of great bodily

harm, or by the use of influence by virtue of a position of control or supervision over

the juvenile.” In State v. Cloud, 06-877, p. 9 (La.App. 3 Cir. 12/13/06), 946 So.2d

265, 272, writ denied, 07-86 (La. 9/21/07), 964 So.2d 331, (citing State v. Rollins,

581 So.2d 379, 382 (La.App. 4 Cir. 1991)), this court defined a lewd or lascivious act

as “one which tends to excite lust and to deprave the morals with respect to sexual

relations and which is obscene, indecent, and related to sexual impurity or

incontinence carried on in a wanton manner.”

Sexual battery is defined by La.R.S. 14:43.1, as follows:

A. Sexual battery is the intentional engaging in any of the following
acts with another person where the offender acts without the consent of
the victim, or where the act is consensual but the other person, who is
not the spouse of the offender, has not yet attained fifteen years of age
and is at least three years younger than the offender:

(1) The touching of the anus or genitals of the victim by the offender
using any instrumentality or any part of the body of the offender; or

(2) 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.

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In State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 491,

this court followed the ruling in State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir.

1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La. 7/2/04), 877 So.2d 143, which

stated that “in the absence of contradiction or irreconcilable conflict with physical

evidence . . . 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 offense.” Therefore, the State did not

need to introduce any evidence other than the testimony of the victim to establish the

elements of the offense.

At trial, the victim explained that when Defendant began touching her

inappropriately, she did not understand what was happening. She said that Defendant

would do things that were not normal, but she tried to pass it off as normal until she

couldn’t anymore.

She testified that Defendant began coming into her room very late at night and

would feel her body through the covers while she was lying in bed. Defendant

progressed to acts such as oral sex. He bribed her with money to do things like raise

her shirt. He made her give him oral sex and performed oral sex on her, when she

was in ninth grade. On one occasion, he put his finger into her anus. She further

testified that she was forced to watch, read, and listen to explicit sexual material on

Defendant’s computer, including an article about a study which found that it was

good for a woman’s complexion to swallow semen.

The victim testified that she did not want to participate in these acts but thought

she had to if she wanted to live there. She stated that Defendant would pull her hair

and force her if she did not do what he wanted. She testified that he told her not to

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report his actions and said that no one would believe her. Because he treated her well

in front of other people, she thought no one would ever think he was capable of

molesting her. She further stated that she did not report his actions because she was

afraid of what would happen. She wanted her half-sister to have a home with a

mother and father, she was afraid of being taken from her mother, and she did not

want her mother to lose her home.

On appeal, Defendant alleges that the victim’s testimony alone is not sufficient

in the instant case because of contradictions between the testimony of Sam Armer, a

licensed clinical social worker, and the testimony of the victim and her mother.

Defendant maintains that the victim did not show any of the likely responses to sexual

abuse that were described by Ms. Armer, in that she did not miss school, use drugs

or alcohol, run away from home, become aggressive or withdrawn, or have a drop in

grades.

At trial, Ms. Armer testified that there are some common behaviors seen in

victims of child molesters. However, she stated that a variety of responses are

possible. She noted that teens often become clinically depressed and react to trauma

and depression by acting out sexually with their peers or becoming more sexually

active, running away, and using drugs or alcohol at an earlier than usual age. Ms.

Armer testified that the most common indicators of sexual molestation in teens are

anger and rebellion, including verbal altercations and outbursts in the home.

An examination of the record reveals multiple instances of verbal and physical

altercation and outbursts in the home, rebellious behavior with her mother and

Defendant, and sexual activity with her boyfriend. Although the victim’s grades

showed inconsistent ups and downs in the various grading periods, there is no distinct

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pattern. However, it was not Ms. Armor’s testimony that a molested child’s grades

always decline.

Defendant asserts that the victim’s claims regarding being forced to watch,

read, and look at pornographic material is not supported by the evidence found on his

computer. The examination of his computer showed only a small amount of

pornography and no articles such as she described. However, this absence of physical

evidence does not contradict or discredit the victim’s testimony.

Defendant next points to alleged inconsistencies between the testimonies of the

victim and her mother with regard to such things as allowances and family bed times.

While small discrepancies exist in the testimony of victim and her mother, they are

not relevant to the allegations of sexual abuse.

Defendant further suggests that the victim is not credible because she lied to

her boyfriend about her age. The boyfriend testified that she lied to him about her age

at first and then later told the truth. The jury heard this testimony and concluded that

her testimony was credible. That determination should not be disturbed absent

manifest error.

The testimony of the victim contains evidence of all the elements of

molestation of a juvenile and of sexual battery. With regard to molestation of a

juvenile, the record reflects that Defendant was in his late thirties to early forties

when the offenses occurred and that the victim was twelve to fifteen years old.

Defendant committed several lewd and lascivious acts on the victim with the

intention of arousing or gratifying his sexual desires. Defendant used force on the

victim and used his position of control or supervision as the victim’s step-father.

With regard to sexual battery, the record supports the contention that on more than

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one occasion, Defendant intentionally touched the victim’s anus and/or genitals or

had the victim touch his genitals without the victim’s consent. The evidence was

sufficient to support Defendant’s convictions.

Motion for Judgment of Acquittal

Defendant further argues that the trial court erred in not granting his motion for

judgment of acquittal based on the assertion that the evidence was insufficient to

support his convictions. Having found that the evidence presented at trial was

sufficient to affirm Defendant’s convictions, we find that the trial court properly

denied Defendant’s motions.

Evidence of the Victim’s Past Sexual Conduct

Defendant argues that the trial court erred in refusing to allow the defense to

question the victim regarding sexual activities with her boyfriend at the time the

offenses were reported. Defendant asserts that he wanted to show that the victim

reported that he had molested her because she was angry with him because he

confronted her boyfriend about his relationship with the victim. He further contends

that the victim made the allegations of molestation because he made her break up with

her boyfriend. However, Defendant was not prohibited from asking questions

concerning his own involvement in the victim’s breakup with her boyfriend, which

might have led her to make claims of molestation in retaliation. This defense strategy

could have been presented without inquiry into the sexual relationship between the

victim and her boyfriend.

When asked by defense counsel what she meant when she said that at a certain

point her relationship with her boyfriend became more than friendship, the victim

responded by saying that they had sex. The State objected based on La.Code Evid.

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art. 412 which limits use of a victim’s past sexual behavior in sexual assault cases to

cases involving a question of consent to the behavior or where there is a question as

to whether the accused is the source of semen or injury. The trial court concluded

that it did not need to admonish the jury with regard to the question or answer

because defense counsel did not ask the victim about her sexual activities with her

boyfriend. However, the court did not believe that the victim’s answer opened the

door to further questioning about her past sexual history.

We agree with the trial court that the question was not a violation of La.Code

Evid. art. 412, because it was not an inquiry into the victim’s past sexual activity. We

further agree that her answer did not open the door to inquiry into her past sexual

history as that would be a violation of Article 412.

We find no error in the trial court’s ruling.

CONCLUSION

Defendant’s convictions are affirmed. However, his sentence for molestation

of a juvenile is vacated and the case is remanded to the trial court with instructions

that it specify whether, as a condition of probation, Defendant will be subject to

electronic monitoring, home incarceration, or both. Additionally, the trial court is

ordered to specify the conditions of the home incarceration. If electronic monitoring

is imposed and any conditions are required, the trial court should specify those as

well.

CONVICTIONS AFFIRMED; SENTENCE VACATED; AND REMANDED

FOR RE-SENTENCING.

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