State of Louisiana v. H.J.L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-823

STATE OF LOUISIANA

VERSUS

H.J.L.
**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 46647
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Chris J. Roy, Sr.,*
Judges.

AFFIRMED.

Michael Harson
District Attorney, 15th JDC
Laurie A. Hulin
Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Appellee:
State of Louisiana

William Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
Counsel for Defendant-Appellant:
H. J. L.

*
Honorable Chris J. Roy, Sr., participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

PICKETT, Judge.

FACTS

In December 2006, R. B., the defendant’s stepdaughter and the victim’s aunt,

discovered sexually explicit pictures of the victim and the defendant on the

defendant’s personal computer. When R. B. questioned the victim, the victim told her

that the defendant had touched her “bottom,” hurt her “bottom,” and put his “thing”

in her. R. B. advised her mother, the defendant’s wife, of what she had found. The

two women reported this information to the police. When the defendant was brought

in for questioning, he admitted to taking the pictures of the victim, touching the

victim in an inappropriate manner, and attempting to penetrate her vagina.

The defendant, H.J.L., was charged by indictment with aggravated rape, a

violation of La.R.S. 14:42. After a jury trial, he was found guilty as charged. On

April 28, 2008, the defendant was sentenced to serve life in prison at hard labor

without benefit of probation, parole, or suspension of sentence. The defendant has

appealed both his conviction and sentence.

ASSIGNMENT OF ERROR

The defendant argues three assignments of error:

1) There is insufficient evidence to prove the guilt of the defendant for
the offense of aggravated rape beyond a reasonable doubt.

2) The trial court erred by allowing a copy of the defendant’s videotaped
statement to police into evidence.

3) The sentence imposed is excessive for this offender and offense.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

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there are no errors patent.

Assignment of Error Number One

In his first assignment of error, the defendant contends that the evidence was

insufficient to sustain a conviction of aggravated rape. In particular, the defendant

argues that the state did not prove that he engaged in an act of sexual intercourse with

the victim.

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). It is the role of the fact finder to
weigh the respective credibilities of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the trier of fact beyond the sufficiency evaluations under the Jackson
standard of review. See Graffagnino, 436 So.2d at 563, citing State v.
Richardson, 425 So.2d 1228 (La.1983). To obtain a conviction, the
elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La. App. 3 Cir. 12/12/01), 801 So. 2d 578, 580.

Louisiana Revised Statutes 14:41 defines rape as:

(A) Rape is the act of anal, oral, or vaginal sexual intercourse with a
male or female person committed without the person’s lawful consent.

(B) Emission is not necessary, and any sexual penetration, when the rape
involves vaginal or anal intercourse, however slight, is sufficient to
complete the crime.

At the time of the offense, aggravated rape, in pertinent part, was defined in La.R.S.

14:42 as:

(A) Aggravated rape is a rape committed upon a person sixty-five years
of age or older or when the anal or vaginal sexual is deemed to be
without lawful consent of the victim because it is committed under any
one or more of the following circumstances:

....

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(4) When the victim is under the age of twelve years. Lack of
knowledge of the victim’s age shall not be a defense.

In order to convict the defendant of aggravated rape in this case, the state had

to prove that the defendant committed an act of anal or vaginal sexual intercourse

with this victim when the victim was under the age of twelve years.

In December 2006, R. B., the defendant’s stepdaughter and the victim’s aunt,

discovered sexually explicit pictures of the victim and the defendant on the

defendant’s personal computer. R.B. saved copies of the pictures to a CD. The next

day, R. B. showed the pictures to her mother, N. L. The two of them reported this

information to the Kaplan Police Department and gave a statement. Sergeant Scott

Lemaire took possession of the compact disc and reviewed the pictures. He attempted

to interview the victim, but she would not talk to him. Detective Virgie Lemaire, a

female officer, was called in to talk to the victim. R. B. also talked to the victim. R.

B. testified that the victim told her that the defendant “touched her at the bottom and

that he has hurt her . . . and put his . . . she said thing, but his penis in her.” When

asked by the prosecutor what the victim was referring to when she used the word

“bottom,” R. B. responded, “To her vagina.”

The victim was examined by her family practitioner, Dr. Randall J. Faulk, who

testified at trial both as a fact witness and an expert witness. Dr. Faulk testified that

upon conducting a post-incident exam of the victim, he determined that her hymen

was not intact. Dr. Faulk indicated that this caused him to suspect trauma or

penetration.

After taking the initial complaint from R. B. and N. L., Sergeant Lemaire

executed a search warrant on the defendant’s home and seized a number of items

including two cameras, floppy discs, compact discs, and a computer. The defendant

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was then taken to the police station for questioning. The defendant gave the officers

a statement which was videotaped. The videotaped statement was admitted into

evidence and played for the jury. In that statement the defendant admitted to two

separate incidents involving inappropriate conduct with the victim, his step-

granddaughter. The first incident occurred in June 2006 while the defendant was

home alone with the victim. The defendant said he took pictures of the victim in a

two-piece bathing suit while she was on the couch. He then took her to the computer

room where he photographed her in her panties. He admitted that on that day he

touched the victim’s breasts with his hands.

The second incident occurred in July 2006 when, once again, the defendant

was home alone with the victim. He described pictures that he took of the victim

naked, both posing on her knees and laying on her back with her legs open. He

admitted that he too was naked and that he had rubbed his penis between her legs and

her genitals. He admitted to taking pictures of this as well. He stated he asked the

victim if he was hurting her and she told him no. When asked if he attempted to

penetrate her the defendant admitted that he had attempted penetration but stopped

because he can no longer get an erection. The defendant admitted to using his fingers

to rub the victim’s genitals but stopped because she complained that it was “burning.”

The pictures the defendant admitted to taking and described in his videotaped

statement are consistent with the pictures found on his computer which R.B. saved

on a compact disc. Those pictures were introduced into evidence and published to

the jury. The pictures include pictures of the victim naked in various poses such as

those described by the defendant and pictures the defendant admitted taking of his

penis pressed against the victim’s genitals.

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Although in his videotaped statement the defendant said he can no longer have

an erection, and he now argues that his impotence rendered penetration impossible,

his wife gave conflicting testimony. According to N. L., in 2006 the defendant could

still have an erection but sometimes had to take Viagra.

The victim testified at the trial. Her birth certificate, filed into evidence at trial,

established she was approximately six-and-a-half-years old when the offense occurred

and seven years old at the time the offense was reported. She testified that the

defendant put his penis inside her.

The defendant’s primary argument is that the state failed to prove penetration

and therefore failed to establish a rape occurred.

In State v. Bertrand, 461 So.2d 1159 (La.App. 3 Cir. 1984), writ denied, 464

So.2d 314 (La.1985), the defendant argued that the concept of penetration required

proof of actual penetration of the vagina itself. This court stated, “Any penetration,

however slight, of the aperture of the female genitalia, even its external features, is

sufficient.” Id. at 1161. Bertrand has been consistently followed. See, e.g., State v.

Ross, 03-564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, writ denied, 04-376 (La.

6/25/04), 876 So.2d 829.

A rape victim’s testimony alone is sufficient to establish the fact of

penetration. State v. Mitchell, 453 So.2d 1260 (La.App. 3 Cir.), writ denied, 457

So.2d 16 (La.1984). In the matter before us the state presented, in addition to the

victim’s testimony that the defendant put his penis inside her, medical testimony that

the victim’s hymen is no longer intact, and pictures taken by the defendant that show

the glans of the penis partially inserted in the victim’s labia majora. We find

sufficient evidence of penetration to support the conviction.

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After viewing the evidence in the light most favorable to the prosecution, as

required by Jackson, we find a rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. This assignment of error

lacks merit.

Assignment of Error Number Two

In his second assignment of error, the defendant contends that the trial court

improperly admitted into evidence a copy of his videotaped confession. At trial, the

state notified the trial court that the original video of the defendant’s statement was

unavailable as the video would produce no image, only a black screen. The trial court

conducted a hearing outside the presence of the jury. The trial court allowed a copy

of the taped interview to be admitted into the record, ruling that under the provisions

of La.Code Evid. art. 1004(1), a copy of the recording is admissible when evidence

shows that all originals are lost or have been destroyed, and there is no showing of

destruction or loss in bad faith.

Sergeant Scott Lemaire interviewed the defendant on December 2, 2006. The

interview was videotaped. Sergeant Lemaire made two copies of the video. One

copy was given to the state, and the other was given to the defendant. The original

tape was then placed in the evidence vault at the police station. A week prior to trial,

Sergeant Lemaire viewed the original video and found it unaltered. On the morning

of trial, he viewed it again and the video was black. Although he attempted to play

the video with two different cameras, the tape produced only a black screen.

We find the trial court did not err by allowing a copy of the defendant’s

videotaped interview to be allowed into evidence. Louisiana Code of Evidence

Article 1004 provides that “[t] he original is not required, and other evidence of the

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contents of a writing, recording, or photograph is admissible if . . . [a]ll originals are

lost or have been destroyed[.]” We note the same copy of the defendant’s statement

was used by the court at a previous hearing without objection by the defendant. This

assignment of error lacks merit.

Assignment of Error Number Three

The defendant’s third assignment of error is a claim of excessive sentence.

The defendant did not file a motion to reconsider his sentence, and therefore, his

excessiveness claim is barred by La.Code Crim.P. art. 881.1. However, in the interest

of justice, this court has chosen to review such an assignment as a bare claim of

excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41,

writ denied, 06-1233 (La. 11/22/06), 942 So.2d 552.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 [p.5] (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ
denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question
is whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 [p. 3] (La.5/31/96); 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43,

writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

The defendant was sentenced to life imprisonment at hard labor without benefit

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of parole, probation, or suspension of sentence. This is the mandatory sentence for

aggravated rape if the victim is under the thirteen years of age. La.R.S.

14:42(D)(2)(b).

In State v. Foley, 456 So. 2d 979, 981 (La.1984), the supreme court discussed

the penalty for aggravated rape as follows:

The mandatory life sentence for aggravated rape is a valid
exercise of the state legislature’s prerogative to determine the length of
sentence for crimes classified as felonies. State v. Prestridge, 399 So.2d
564 (La.1981); State v. Farria, 412 So.2d 577 (La.1982); and State v.
Talbert, 416 So.2d 97 (La.1982).

In light of the court’s reasoning in Foley, we find the defendant’s sentence is not

excessive and that this assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed in all respects.

AFFIRMED.

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