State of Louisiana v. Wendell Bourque

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1092

STATE OF LOUISIANA

VERSUS

WENDELL BOURQUE

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-868-04
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

AFFIRMED.

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Wendell Bourque

Michael Cade Cassidy
District Attorney - 31st Judicial District Court
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Plaintiff/Appellee:
State of Louisiana

Stacey C. Naquin
31st Judicial District Court - Assistant District Attorney
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Plaintiff/Appellee:
State of Louisiana

SAUNDERS, Judge.

Herein, the Defendant appeals his conviction and sentence on the charge of

sexual battery pursuant to La.R.S. 43.1. For the following reasons, we affirm both

the conviction and sentence.

FACTS AND PROCEDURAL HISTORY:

Defendant, Wendell Bourque, was charged on October 15, 2004, by a bill of

information with one count of sexual battery, a violation of La.R.S. 43.1. A jury trial

commenced on May 24, 2005, and on May 26, 2005, Defendant was found guilty as

charged. On February 4, 2009, Defendant filed a “Motion for New Trial.” A hearing

was scheduled for February 26, 2009, following which Defendant’s motion was

denied. On March 5, 2009, Defendant was sentenced to ten years at hard labor

without the benefit of probation, parole, or suspension of sentence, with credit for

time served. Defendant filed a “Motion to Reconsider Sentence” on March 23, 2009,

which was denied without written reasons or a hearing on the same date.

At trial, A.S. testified that the seven-year-old victim, who was her cousin, was

living with her at the time of the incident. On the evening of April 2, 2004,

Defendant, who was a long time friend of the family, stopped by A.S.’s house around

6:00 p.m. He stated that his daughter, who was fifteen at the time, was coming over

to his house to visit for the weekend and asked if the victim could spend the weekend

also. Later, in the evening, A.S. stopped by Defendant’s house and asked to borrow

some money. She noticed Defendant’s daughter was not there and asked where she

was. Defendant told her his daughter went to town with some friends. She stated that

“[the victim] seemed fine and happy, and I said, okay, and he let me borrow the

money, and then I left.” A.S. stated that the next day, Sunday, when she was at a

Lake Arthur baseball field, she saw Defendant’s daughter and asked where was her

father. The daughter stated she did not know. A.S. asked her if she had spent the

weekend with Defendant and she said that she had not. This fact was corroborated

during trial by Defendant’s daughter. Later, Defendant called A.S. on her cell phone

and then dropped the victim off at the ball field. That evening, when the victim got

into a tub of hot water she started crying, saying that her “bottom” burned. A.S.

testified:

I asked her what was wrong, and she said her bottom burned real
bad, and then I already had, you know, him say that Selena was
suppose[d] to be there, and I started putting things together in my head,
and I asked her if anyone had touched her, and that’s whenever she had
told me Wendell had.

A.S. called her mother, L.R., to come over. According to A.S., the victim told

them that “she was at Wendell’s house play fighting and he had stuck his finger in her

private area–her vagina.” A.S. asked her mother to take the victim to the hospital

because her own baby was ill and she could not leave.

On cross examination, A.S. testified that she had known Defendant all her life

and that she often visited at his house and on occasion she had left her own three

children in his care. She said that he told her that the victim had “loose bowels” the

evening of the alleged battery and that he had given her some Pepto-Bismol.

L.R. testified that at the hospital, the doctor showed her the victim’s vaginal

area and that “[t]here was redness.” She stated that police officers met her at the

hospital and she followed them back to Danny Semmes’ office, who was an

investigator with the Sabine Parish Sheriff’s Officer. There, he told her to return

again the next day because the victim was too traumatized “to talk about it anymore.”

Danny Semmes testified that after he interviewed the victim the next day, he

went to Defendant’s house and advised him of the complaint. He stated that

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Defendant said he was aware of the allegation. Defendant was Mirandized and his

house was searched. A pair of little girls panties and shorts were found in the

washing machine.

Dr. William Gaar was the emergency room physician at Jennings American

Legion Hospital on the evening L.R. took the victim in for an examination. He

testified that he saw redness in the vaginal area of the victim, but did not see any

tearing of the hymen. He indicated that he thought the redness was vaginitis and

recommended the area to be treated with Neosporin. He testified that the vaginitis

could have been caused by a finger being inserted into the vagina, or possibly by

soap, sweat, or too tight underpants.

The victim, who was nine years old at the time of trial, testified. She stated that

on the evening of the alleged battery, after she and Defendant ate dinner, she went

into his bedroom to watch TV. He came into the bedroom and they began to wrestle.

She said that during the wrestling, he “stuck his finger in my wrong spot. . . . my

privates.” She said that she left the room for a minute then asked him when she could

go home and he told her tomorrow. She told A.S. the next evening while she was

bathing. She testified that she did not recall A.S. coming over to Defendant’s house

that night and agreed that she experienced “loose bowels” that evening.

Finally, Dr. Lee J. Monlezun was qualified as an expert in obstetrics and

gynecology. Using Doctor Gaar’s medical report from the evening the victim was

admitted into the emergency room for possible molestation, he explained his

interpretation of the results of the examination. He noted that Doctor Gaar wrote in

his report that the victim’s vaginal opening was “approximately one point five

centimeters (1.5cm). No tears noted.” He stated that he examined Defendant’s

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fingers, and that only his little finger may have been small enough to enter the

victim’s vagina without tearing the hymen. The doctor explained that the burning the

victim experienced when she got into the bath tub was caused by “vulvovaginitis, it’s

going to burn, especially if it’s warm water.” The doctor opined that the condition

was undoubtedly caused by the loose bowels or diarrhea and not the result of a finger

being inserted into her vagina. While admitting that there was a possibility that

Defendant could have inserted his little finger into the victim’s vagina, he seriously

doubted he could have done so without some tearing because the victim said they

were wrestling around.

Defendant has perfected a timely appeal and raises four assignments of errors,

as follows: (1) the evidence was insufficient to sustain the verdict; (2) the trial court

erred when it denied Defendant’s motion for mistrial based on other crimes evidence

which was impermissibly introduced; (3) the trial court erred when it denied

Defendant’s “Motion for a New Trial”; and (4) the trial court “did not provide notice

of time limitation for post conviction application under Article 881.1 of the code of

criminal procedure.”

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The verdict in this case is contrary to law in that the physical
evidence and the direct [evidence] conclusively established that
the offense conduct did not occur. The alleged victim’s testimony
was rebutted by physical evidence through expert medical
testimony establishing that the alleged victim’s medical condition
was scientifically unrelated to the claimed conduct, and the State
never established the intent necessary to support conviction under
the Statute for Sexual Battery.

2. The Trial Court erred when it denied a Mistrial in spite of the
introduction of testimony on a videotape regarding what the
alleged victim had heard about the defendant’s past conduct. This
had nothing to do with the documentation of a child’s first report
or any other material or relevant issue. The Trial Court could not

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allow admission of such information because it considered that
part of the tape not specifically included in the objection.

3. The trial Court erred when it denied the Motion for New Trial,
despite evidence provided by the State to the Defense after trial
that key elements of the State’s Case were based on Perjury. The
Defense was under no burden beyond proving that there was
exculpatory evidence which could change the result and which
had not been available despite due diligence.

4. The Trial Court did not provide Notice of Time Limitation for
Post Conviction Application under Article 881.1 of the Code of
Criminal Procedure.

LAW AND DISCUSSION ON THE MERITS:

Assignment of Error Number 1

In pertinent part, sexual battery is defined as:

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.

La.Code Crim.P. art. 43.1.

Defendant argues that the evidence, as presented by the State, was insufficient

to support a conviction for sexual battery.

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 credibility of the witnesses. Therefore, the
appellate court should not second-guess the credibility determination of
the trier of fact beyond the sufficiency evaluations under the Jackson
standard of review. See King, 436 So.2d 559, citing State v. Richardson,

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425 So.2d 1228 (La.1983).

State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.

Moreover, this court has held that the testimony of the victim alone may be

sufficient to prove the elements of the offense, even if there was no physical evidence

of the alleged conduct. State v. Jaramillo, 06-1377 (La.App. 3 Cir. 3/7/07), 953

So.2d 146, writ denied, 07-732 (La. 11/2/07), 966 So.2d 600.

Defendant argues in brief that the State failed to prove that he inserted his

finger into the victim’s vagina because the medical history shows that the redness or

irritation experienced by the victim was caused by a bout of diarrhea, and not

Defendant’s finger. Defendant argues that “[t]he State cannot change its approach to

this case simply because the evidence fails to support its charge: the Defendant was

not alleged to have simply touched the child, but to have penetrated her with his

fingers.”

We find that when viewed in a light most favorable to the State, the evidence

was sufficient to prove all the elements of the charged offense. To prove that

Defendant was guilty of sexual battery, the State had only to prove he touched the

anus or genitals of the victim and that the touching was without consent. The

victim’s trial testimony was consistent with what she told her cousin initially and the

Children’s Advocacy Center interviewer. While Doctor Monlezun testified that

Defendant’s fingers were too big to have penetrated the victim’s vagina without

tearing the hymen–he measured them against the emergency room’s doctor’s

estimation of the size of the victim’s vaginal opening. We find that it cannot be

speculated what a seven-year-old would consider “in” her wrong spot. Furthermore,

we find that although the medical evidence does not prove that he actually penetrated

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her with his finger, the victim could have had the vaginitis caused by the diarrhea and

still have been touched inappropriately by Defendant.

Finally, Defendant argues that “[t]he likely reason for the State to rely on the

penetration of Bourque’s fingers was to establish intent, particularly important where

there was a story of wrestling for sport around the time this happened, and a

penetration might rule out ‘unintentional’ touching.”

As noted by Defendant, sexual battery is a general intent crime. State v.

Stevenson, 05-52 (La.App. 5 Cir. 6/28/05), 908 So.2d 48, writ denied, 05-2592 (La.

6/2/06), 929 So.2d 1247.

Louisiana Revised Statutes 14:10, criminal intent, provides:

(1) Specific criminal intent is that state of mind which exists when
the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.

(2) General criminal intent is present whenever there is specific
intent, and also when the circumstances indicate that the offender, in the
ordinary course of human experience, must have adverted to the
prescribed criminal consequences as reasonably certain to result from
his act for failure to act.

In general intent crimes, criminal intent necessary to sustain a conviction is

shown by the very doing of the acts which have been declared criminal. State v.

Howard, 94-23 (La. 6/3/94), 638 So.2d 216.

We find that criminal intent was established when the State offered uncontested

testimony that after he asked if the victim could visit for the night, Defendant misled

A.S. that his own daughter would be there at his house, and then again lied when A.S.

went to his house and noticed the daughter was not there. Defendant intentionally

deceived A.S. so that he could be alone with the victim. Accordingly, we find that

Defendant exhibited specific intent, and, therefore, there was general intent to commit

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the offense.

We, thus, find that there is no merit to this assignment of error.

Assignment of Error Number 2

At trial, the jury was shown an edited version of a videotape made when Joelyn

Doland, director of Children’s Advocacy Center, interviewed the victim regarding the

alleged sexual battery. Defendant objected after the jury was shown the video

because during the interview the victim mentioned having heard about another

incident involving Defendant and a juvenile. Defendant moved for a mistrial, which

was denied by the trial court for the reason that there was no contemporaneous

objection made prior to the publication of the video to the jury.

Defendant argued that he specifically requested that any references to other

crimes or bad acts be redacted from the tape, to which the trial court had agreed and

ordered the State to do so during a motion-in-limine hearing held just prior to

commencement of the trial. The trial court took a recess and, in chambers, reviewed

the video and compared a specific list of areas in the video that Defendant had

objected to during the motion-in-limine hearing.

Having reviewed the video, and its own notes, the trial court stated:

THE COURT: All right. Right now is where it’s at, 10:09:34, 5,
and so forth.

....

THE COURT: All right. The hand notations that I have, again, do
not show that as an area that was object to. Mr. Bull, maybe you can
correct me?

MR. BULL: Well, Your Honor, not a–not a specific–in other
words, I tried to provide this to the Court without having the–the–the
full tape, but I objected to any reference to any other crimes, and
that’s–that’s one of my exact statements in the motion in limine.

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....

THE COURT: The Court finds that there was not a
contemporaneous objection at the time of the motion in limine
specifying which area of the tape that we’re dealing with now. As a
result, the objection is waived. The defense provided the Court with its
specific list of those specific objections throughout the tape, including
the counter numbers. The counter number of the area that we’re now
dealing with is not on this list. The Court relied on that in making its
ruling yesterday after it had viewed the tape as well, and, again, the
Court finds that there is–there was not a specific objection to the–the
area that we are now dealing with in which there is now an objection.
The–the defense objection is overruled, and the motion–and the motion
for a mistrial as well is denied.

Defendant asserts that he had objected to the playing of any portion of the tape

which contained any other crimes evidence. He argues that “[t]his ruling is reversible

error because it misapplies the contemporaneous objection rule and violated the Code

of Criminal Procedure.” Defendant cites La.Code Crim.P. art. 770, which mandates

a mistrial when a prejudicial comment refers to other crimes evidence or bad acts by

a judge, district attorney, or a court official within the hearing of the jury.

However, whereas the victim was not any of the persons listed, La.Code

Crim.P. art. 771 is the appropriate statute dealing with prejudicial comments made in

front of the jury. Louisiana Code of Criminal Procedure Article 771 provides that an

admonition to the jury be made to disregard the remark and “[i]n such case, on motion

of the defendant, the court may grant a mistrial if it is satisfied that an admonition is

not sufficient to assure the defendant a fair trial.”

As a general matter, mistrial is a drastic remedy which should only be
declared upon a clear showing of prejudice by the defendant. State v.
Scott, 04-1312 (La.1/19/06), 921 So.2d 904; State v. Wilkerson, 403
So.2d 652, 659 (La.1981) (mere possibility of prejudice is not enough
to warrant mistrial). In addition, a trial judge has broad discretion in
determining whether conduct is so prejudicial as to deprive an accused
of a fair trial. State v. Sanders, 93-0001, pp. 20-21 (La.11/30/94), 648
So.2d 1272, 1288-89; State v. Wingo, 457 So.2d 1159, 1166 (La.1984).

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State v. Leonard, 05-1382, p. 11 (La. 6/16/06), 932 So.2d 660, 667.

The comment made by the victim to the Children’s Advocacy Center’s

interviewer was to the effect that she had heard Defendant had done something like

this to other “kids.” There was no indication of the source of this information or any

detail as to what the “this” was. The comment was brief and without elaboration. A

mistrial in this case is only authorized where substantial prejudice will otherwise

result. State v. Dozier, 97-1564 (La.App. 3 Cir. 5/20/98), 713 So.2d 729, writ

denied, 98-1694 (La. 11/25/98) 729 So.2d 573. We cannot say that the remark of the

victim made it impossible for Defendant to have received a fair trial; accordingly, the

trial court did not abuse its discretion.

We find that there is no merit to this assignment of error.

Assignment of Error Number 3

Defendant argues that a witness who testified at trial, L.R., came forward after

the trial and told the assistant district attorney who prosecuted the case that because

she had concerns about Defendant being a child molester, after he had returned the

victim to A.S., she asked the victim if anyone, including Defendant, had

inappropriately touched her. She said that the victim told her no. L.R. stated that she

told A.S. the victim said she had not been touched by the Defendant, but A.S.

persuaded her not to say anything because she believed the victim was telling the

truth when she said she was sexually battered by Defendant. This information was

relayed to defense counsel via a letter. A hearing was held on February 26, 2009 on

Defendant’s “Motion for New Trial.” The trial court denied the motion stating that

it could not grant a new trial based solely on a letter.

Defendant argues that the trial court erred when it denied his motion.

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However, we find that Defendant’s “Motion for New Trial” was untimely filed. The

verdict was rendered on May 26, 2005. The District Attorney’s Office sent the letter

to defense counsel on June 6, 2005. Defendant’s “Motion for New Trial” based on

the alleged newly discovered evidence was not filed until February 4, 2009.

Louisiana Code of Criminal Procedure Article 851, in pertinent part, provides:

The motion for a new trial is based on the supposition that
injustice has been done the defendant, and unless such is shown to have
been the case the motion shall be denied, no matter upon what
allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial
whenever:

....

(3) New and material evidence that, notwithstanding the exercise
of reasonable diligence by the defendant, was not discovered before or
during the trial, is available, and if the evidence had been introduced at
the trial it would probably have changed the verdict or judgment of
guilty.

Louisiana Code of Criminal Procedure Article 853 provides that a motion for

a new trial based on newly discovered evidence “may be filed within one year after

verdict or judgment of the trial court, although a sentence has been imposed. . . .” In

State v. Jackson, 09-45 (La.App. 3 Cir. 10/7/09), 19 So.3d 631, this court addressed

the issue of timeliness in a factually similar case. In Jackson, the accuser made an

affidavit stating that he had falsely accused the defendant. The defendant filed a

motion for a new trial based on newly discovered evidence. The motion was filed

more than one year after judgment was rendered and the defendant was awaiting

sentencing on a habitual offender adjudication. He argued that he had one year from

the date of habitual offender sentencing in his case. The trial court denied the motion

based on the untimely filing of the motion. On appeal, this court stated that the

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statute specifically meant that a motion for new trial must be filed within one year

from the date of the judgment and not from the date of sentencing. In the current

case, Defendant’s “Motion for New Trial” was filed more than four years after the

verdict was rendered.

Accordingly, we will not consider Defendant’s assignment of error number

three.

Assignment of Error Number 4

In brief, Defendant asserts the trial court failed to advise him of the two years

from the date the conviction and sentence becomes final in which to file for post-

conviction relief as set forth in La.Code Crim.P. art. 930.8. However, this assertion

is not correct. The trial court did advise Defendant of the two-year time delay after

it imposed the sentence.

Further, trial counsel filed a “Motion to Reconsider the Sentence” asserting that

the sentence was excessive. This motion was timely filed on March 23, 2009. It was

denied without written reasons. Trial counsel then filed a “Motion and Order to

Appeal Sentence,” which was granted by the trial court on March 24, 2009.

However, when appellate counsel submitted his appellate brief, except for the

reference to La.Code Crim.P. art. 881.1 in this assignment of error, he did not raise

any issue regarding the sentence. According to the Uniform Rules—Courts of

Appeal, Rule 3–2, this court will not review issues raised for the first time on appeal,

“unless the interest of justice clearly requires otherwise.” Accordingly, we will not

address this assignment of error.

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CONCLUSION:

For the foregoing reasons, the Defendant’s conviction and sentence are

affirmed.

AFFIRMED.

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