State of Louisiana v. Robert Bott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0726

STATE OF LOUISIANA

VERSUS

R.B.1

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 48,475
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese,
Judges.

CONVICTIONS AFFIRMED. REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
Laurie A. Hulin
Assistant District Attorney
Fifteenth Judicial District
100 North State Street, Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

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Pursuant to La.R.S. 46:1844(W), initials of the defendant, the minor victims, and the other
witnesses will be used to protect the identity of the victims.

Richard Allen Spears
Attorney at Law
101 Taylor Street
New Iberia, LA 70560
(337) 367-1960
COUNSEL FOR DEFENDANT/APPELLANT:
R.B.

PETERS, J.

The State of Louisiana (state) charged the defendant, R.B., by grand jury

indictment, with four counts of sexual battery, violations of La.R.S. 14:43.1; four

counts of molestation of a juvenile, violations of La.R.S. 14:81.2; and four counts of

indecent behavior with a juvenile, violations of La.R.S. 14:81. After a bench trial, the

trial court acquitted the defendant of the four counts of indecent behavior with a

juvenile but convicted him of the remaining eight counts. The trial court then

sentenced the defendant to serve ten years at hard labor without the benefit of

probation, parole, or suspension of sentence on each of the four counts of sexual

battery (to be served concurrently), and thirty years at hard labor without the benefit

of probation, parole, or suspension of sentence on each of the four counts of

molestation of a juvenile (to be served concurrently with each other, but consecutive

to the ten-year concurrent sentences imposed for the sexual battery convictions). The

defendant has perfected this appeal, arguing in his single assignment of error that the

evidence is insufficient to support the verdicts reached. For the following reasons,

we affirm the convictions in all respects but remand the matter to the trial court with

instructions to amend the court minutes so that the minutes correctly reflect the

sentences imposed for the convictions of molestation of a juvenile.

APPLICABLE LAW

The offenses for which the defendant was convicted involve four minor

children:.

(1) A.H., who was nine years old when trial commenced on November 3, 2009. She

is the daughter of R.H., who was the defendant’s live-in girlfriend when the

allegations first arose.

The remaining victims are the three children of T.L., who is R.H.’s sister:

(2) B.G., a male child who was twelve years old when trial commenced on November

3, 2009;

(3) Br.G., a female child who was nine years old when trial commenced on November

3, 2009; and

(4) T.G., a male child who was eleven years old when trial commenced on November

3, 2009.

Louisiana Revised Statutes 14:43.1(A) defines sexual battery as follows:

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.

At the time of the offenses at issue, La.R.S. 14:81.2(A) defined molestation of a

juvenile as follows:

Molestation of a juvenile is 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. Lack of knowledge
of the juvenile’s age shall not be a defense.

The record reflects that the defendant was born on July 29, 1957, and was fifty-two

years old at the time of trial. Thus, the elements of proof involving the age

differential between the defendant and his victims in both statutes are not at issue.

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Additionally, because of the respective ages of the children, consent is not an issue.

La.R.S. 14:43.1(A).

With regard to the offenses of sexual battery, as the statute applies in this

matter, the essential element at issue is whether the state established beyond a

reasonable doubt that the defendant touched the anus or genitals of any of his victims

with any instrumentality or any part of his body. Sexual battery may be committed

even if the victim is clothed, with no “skin on skin contact,” because “clothing

constitutes an instrumentality with which to touch the victim’s genitals.” State v.

Bouton, 615 So.2d 23, 25-26 (La.App. 3 Cir. 1993).

With regard to the molestation offenses, the elements at issue are (1) whether

the defendant committed a lewd or lascivious act upon the person or in the presence

of the victim—and if he did, (2) whether the act was committed with the intention of

arousing or gratifying his sexual desires or those of his victim; and (3) whether the

act was committed by the use of (a) force, violence, duress, menace, psychological

intimidation, or threat of great bodily harm, or (b) influence by virtue of a position

of control or supervision over the victim. See State v. Teague, 04-1132 (La.App. 3

Cir. 2/2/05), 893 So.2d 198.

The defendant’s only assignment of error addresses the sufficiency of the

evidence used to convict him.

The standard of appellate review for a sufficiency of the evidence
claim 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560 (1979). A determination of the weight of evidence is a question of
fact, resting solely with the trier of fact who may accept or reject, in
whole or in part, the testimony of any witnesses. A reviewing court may
impinge on the factfinding function of the jury only to the extent

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necessary to assure the Jackson standard of review. It is not the function
of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86 (some
citations omitted).

DISCUSSION OF THE FACTUAL RECORD

The state’s first involvement with the defendant with reference to these charges

occurred on April 30, 2007, when Sergeant James Gleason of the Vermilion Parish

Sheriff’s Department received a complaint from T.L. and her boyfriend, S.G., to the

effect that the defendant was in possession of child pornography and that a juvenile

was residing with him. During his investigation of this complaint, Sergeant Gleason

came into possession of four computer diskettes containing “approximately 11 digital

photographs of what appeared to be a prepubescent female[’s] genitals and buttocks.”

A subsequent search of the defendant’s home uncovered another computer disk inside

the defendant’s digital camera containing similar images.

At trial, B.G. testified that the incidents giving rise to the criminal charges

occurred at his grandfather’s house where his aunt, R.H., and the defendant were

living. According to B.G., while Br.G. was showing him, A.H., and T.G. some

images on a camera, the defendant joined them and instructed them to undress. They

did so, according to B.G., because the defendant threatened them. He stated that after

they removed their clothes, they “had to play with each other.” B.G. explained that

this meant playing with their “private parts,” which he described as the parts where

one would “tee-tee or pee-pee” and his “butt.” B.G. testified that as he touched

A.H.’s private parts, the defendant was taking pictures.2

2
None of the photographs seized in the investigation were photographs depicting the activities
testified to by the child victims.

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B.G. testified that he did not see A.H. touch anyone, and observed that at all

times the defendant remained clothed and did not touch anyone in his presence. He

did testify, however, that Br.G. later told him that the defendant touched her in her

private parts and that both Br.G. and A.H. later told him that they had been subject

to similar activity from the defendant on more than one occasion. According to B.G.,

sometime after the incident he told his grandmother that he and the other children

“got messed with.”

A.H. testified that the defendant touched her on her “bottom,” where she

would “pee-pee from,” on three occasions, and that these incidents occurred at her

grandfather’s house and in a building adjacent to the house. Furthermore, according

to A.H., the defendant told her that he would “rape [her] mama” if she told anyone.3

With regard to the camera incident testified to by B.G., A.H. acknowledged that the

defendant made the children take their clothes off and had them take pictures of

themselves. However, she testified that none of the children touched each other.

When asked if the defendant touched any of the children, she answered in the

affirmative, but when asked where he touched the children, she testified that it was

“in the den after we took our pictures of ourselves.”

At trial, F.S., the grandmother of T.L.’s children, testified that B.G., T.G., and

Br.G. all told her of inappropriate behavior by the defendant. According to F.S., B.G.

told her the defendant had molested him and that he had made him and T.G. “play

with each other” while the defendant took pictures while they were naked. However,

F.S. acknowledged that B.G. did not tell her the defendant touched either him or T.G.

She also suggested that B.G. told her that the defendant had done the same thing to

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She testified that she did not know what “rape” meant, but that the term frightened her.

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Br.G. and their cousin, A.H. The reason B.G. had kept quiet, according to F.S., was

that the defendant told B.G. he would kill B.G.’s mother if B.G. told anyone.

According to F.S., Br.G. was the first to confide in her, followed by B.G. and T.G.

However, when the grandmother made arrangements to have the children interviewed

by the appropriate authorities, none of the children told the interviewer that anything

inappropriate had been done to them or that they had been photographed or video

recorded.4

Shortly after Sergeant Gleason received the complaint from T.L. and S.G., B.G.

was interviewed by a representative of a local shelter facility. Thereafter, he and T.G.

were subjected to several “counseling” sessions with another employee of the facility

to help the boys feel free to “open up” concerning what had happened to them. After

they went through the initial interview and counseling, and almost three months after

Sergeant Gleason received the initial complaint, the boys were interviewed by

Nicolette Joseph, a forensic interviewer who testified at trial. These July 24, 2007

interviews were video recorded and both video recordings were introduced into

evidence.

In his video recorded interview with Ms. Joseph, B.G. acknowledged that it

was not the first time he had been at the shelter facility. According to B.G., he had

been in the facility when he was eight years old because the defendant had “messed

with him” at that time. According to B.G., he woke up on one occasion to find the

defendant’s hand touching his private parts through his clothes. However, he only

told his father and grandfather because Br.G. had told them that she was a victim of

the defendant’s inappropriate actions as well.

4
The video recordings of the initial interviews were not introduced at trial.

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B.G. stated in the interview that when he was nine years old, he saw the

defendant touch Br.G. “down there” underneath her clothes. According to B.G., he

was spying on Br.G. and the defendant through a crack in the door to the room they

occupied at the time. He told Ms. Joseph that Br.G. told the defendant to stop, but

that he could not see exactly what the defendant was doing at the time. On another

occasion, when B.G. was eight years old and Br.G. was six, he claims to have seen

the defendant taking pictures of Br.G. without her clothes. However, B.G. denied

seeing the defendant take naked pictures of any of the other children and said that the

defendant never made him touch anyone.

In his video recorded interview with Ms. Joseph, nine-year-old T.G. stated that,

on one occasion while at his [T.G.’s] grandfather’s house, the defendant touched his

“private” with his hand. However, T.G. stated that the touching occurred outside his

clothes and not directly on the skin. He further stated that B.G. and Br.G. told him

the defendant had touched them on their privates underneath their clothing, and that

B.G. told him that the defendant had taken pictures of B.G. and Br.G. However,

T.G.’s response to many of Ms. Joseph’s questions was simply “I don’t know.” T.G.

did not testify at trial, and the only direct evidence from him is the interview with Ms.

Joseph.5

One of R.H.’s former boyfriends, W.M., testified that during the three years he

resided with R.H., A.H. had made an allegation to R.H. that “one of the boys touched

her.”6 Additionally, T.L. testified that both B.G. and T.G. had been molested in 2000

while in foster care.

5
Br.G. also did not testify.
6
W.M. construed the comment “one of the boys” to mean B.G. and/or T.G.

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In finding the defendant guilty on the eight counts, the trial court noted that

“the credibility, the believability of the reporting by the children” is the question

“always in everyone’s mind” in cases of this nature. After making that statement, the

trial court concluded that it believed the testimony of the children because the three

who presented any evidence on the offenses gave reports that were “basically

consistent, in general,” and that the inconsistency in the details lent credibility to their

testimony because these inconsistencies indicated the testimony was not coached. In

considering the statements of the children in the interviews with Ms. Joseph, the trial

court noted that the interviews took place after the children reported incidents “in a

comfortable setting, in a non-threatening setting, relat[ing] what occurred in their own

words and without being [led].” The defendant disagrees with the trial court’s

analysis and asserts in his sole assignment of error that the evidence does not

sufficiently support the verdicts.

Sexual Battery Convictions

As previously stated, the essential element at issue with regard to the sexual

battery convictions is whether the state established beyond a reasonable doubt that

the defendant touched the anus or genitals of any of his victims with any

instrumentality or any part of his body. Despite the conflicts in much of the evidence,

A.H. did testify at trial that the defendant touched her on her “bottom” where she

would “pee-pee from” on three occasions; B.G. stated in the interview with Ms.

Joseph that the defendant “messed with him” by touching his genital area, but on top

of his clothing; B.G. stated in the same interview that he saw the defendant touch

Br.G.’s genitals underneath her clothing; and in the interview with Ms. Joseph, T.G.

stated that the defendant touched his genitals once beneath his clothing. Thus, the

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state presented evidence which, if true, establishes the essential element in these

charges.

The trial court accepted this evidence as proof beyond a reasonable doubt and,

when considered in light of our scope of review as set forth in State v. Macon, 957

So.2d 1280, we find no error in the trial court’s determination in this regard.

Therefore, we find no merit in the defendant’s assignment of error as it relates to the

defendant’s conviction on four counts of sexual battery.

Molestation of a Juvenile Convictions

As previously stated, with regard to the molestation convictions, the elements

at issue are (1) whether the defendant committed a lewd or lascivious act upon the

person or in the presence of the victim—and if he did, (2) whether the act was

committed with the intention of arousing or gratifying his sexual desires or those of

his victim; and (3) whether the act was committed by the use of (a) force, violence,

duress, menace, psychological intimidation, or threat of great bodily harm, or (b)

influence by virtue of a position of control or supervision over the victim.

B.G. testified at trial that the defendant instructed him and the other three

children to undress and, while naked, to “play with each other” by touching each

other’s “private parts.” He further testified that as he was touching A.H.’s private

parts, the defendant was taking pictures. On the other hand, A.H. testified that the

defendant made the children undress but denied touching anyone, or being touched

by anyone, while undressed. While B.G. testified that the defendant took pictures of

the naked children, A.H. testified that the defendant caused them to take pictures of

themselves. Both agreed that the defendant remained clothed during the entire

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experience and never touched any of the naked children. They both also testified that

the defendant threatened to harm them or their mother if they told anyone.

In State v. Prejean, 45 So.2d 627, 629 (La.1950), the supreme court stated with

regard to the definitions of “lewd” and “lascivious,” as it pertains to the offense of

indecent behavior with a juvenile, that:

The word “lewd” means lustful, indecent, lascivious, and signifies that
form of immorality which has relation to sexual impurity or
incontinence carried on in a wanton manner. The word “lascivious”
means tending to excite lust, lewd, indecent, obscene, relating to sexual
impurity, tending to deprave the morals in respect to sexual relations.
See Black’s Law Dictionary (DeLuxe Ed.).

Put another way, a lewd or lascivious act is “lustful, obscene, indecent, tending to

deprave the morals in respect to sexual relations, and relating to sexual impurity or

incontinence carried on in a wanton manner. Id. at 630. Thus, “a person knowingly

engaged in any overt sexual activity performed in the physical proximity of a child

enters a zone of danger in which he runs the risk that a trier of fact may later find that

activity criminal in nature.” State v. Interiano, 03-1760, p. 8 (La. 2/13/04), 868

So.2d 9, 15.

The trial court in the matter now before us concluded that the lewd and

lascivious act contemplated by La.R.S. 14:81.2 was the defendant’s act of directing

the children to disrobe and act out sexually his instructions while photographing the

children’s actions. The trial court concluded “that it was his camera, over which he

had control as well, and that that constitutes a lewd and lascivious act contemplated

by the statute.” The trial court further concluded that despite the fact the pictures

were taken without his physical participation in the children’s activities, they were

taken “under his control, direction, and threats.”

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The supreme court has stated in Interiano, 868 So.2d at 16, that “in the absence

of a physical touching upon the person of the child, La.R.S. 14:81(A) requires the

knowing commission of a sexual act such that the child sees or senses that a sexual

act is taking place, even if the child is not able to articulate or even comprehend what

the offender is doing, for a violation to occur.” See also State v. Lowe, 08-669

(La.App. 3 Cir. 12/10/08), 999 So.2d 194, writ denied, 09-54 (La. 9/25/09), 18 So.3d

80. In this case, the evidence, if believed, establishes that the defendant instructed

the children to take off their clothes and to “play with each other” by touching their

“private parts.” We conclude that this is the knowing commission of an act which the

children sensed as a sexual act despite their inability to articulate or comprehend the

act itself. The trial court reached this factual conclusion and, applying the scope of

review to which we are restricted, we find no error in this conclusion.

While there is no direct evidence that the defendant physically participated in

the children’s efforts to “play with themselves” other than to photograph the activity,

a reasonable trier of fact could easily conclude that everything he orchestrated with

the children was for the purpose of arousing or gratifying his sexual desires. Finally,

the testimony of the children fully establish the fact that the acts were committed by

the use of threat of great bodily harm.

We find no merit in this assignment of error.

Error Patent Evaluation

In fulfilling our obligation under La.Code Crim.P. art. 920 to search the record

for errors patent on the face of the appellate record, we find that the minutes of

sentencing need correction.

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At the April 19, 2010 sentencing hearing, the trial court imposed sentences on

the convictions for molestation of a juvenile to be served without the benefit of

parole, probation, or suspension of sentence, pursuant to La.R.S. 14:81.2(E)(1).

However, the minutes of the sentencing proceeding do not reflect that these sentences

were imposed without the benefit of probation, parole, or suspension of sentence. We

remand this matter to the trial court with instructions to amend the minutes of the

April 19, 2010 sentencing proceeding to correctly reflect the sentences imposed.

State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56.

DISPOSITION

We affirm the convictions in all respects. We remand the matter to the trial

court with instructions to amend the minutes of the molestation of a juvenile

sentencing proceeding to correctly reflect the sentences imposed.

CONVICTIONS AFFIRMED. REMANDED WITH INSTRUCTIONS.

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