State of Louisiana v. F. F. Q.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-315

STATE OF LOUISIANA

VERSUS

F.F.Q.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 16903-10
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

John F. DeRosier
District Attorney – Fourteenth Judicial District
Carla S. Sigler – Assistant District Attorney
1020 Ryan Street
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598
(337) 313-0467
COUNSEL FOR DEFENDANT/APPELLANT:
F.F.Q.

GENOVESE, Judge.

In this criminal case, Defendant, F.F.Q.,1 appeals his convictions of oral

sexual battery and sexual battery, basically alleging insufficiency of the evidence

and defective indictment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Defendant was indicted on the charges of forcible rape, oral sexual battery,

sexual battery, and cruelty to juveniles. Defendant waived his right to trial by jury

and proceeded to bench trial only on the charges of forcible rape, oral sexual

battery, and sexual battery. He was found guilty of oral sexual battery, in violation

of La.R.S. 14:43.3, and found guilty of sexual battery, in violation of La.R.S.

14:43.1. Thereafter, Defendant pled guilty to the remaining charge of cruelty to

juveniles, in violation of La.R.S. 14:93.

Defendant next appeared in court for a habitual offender hearing and

sentencing. Following Defendant’s admission to a prior felony conviction, the trial

court found him to be a second felony habitual offender. Accordingly, Defendant

was sentenced to serve twenty years at hard labor for both the oral sexual battery

conviction and the sexual battery conviction to run concurrently with each other.

Pursuant to Defendant’s plea and conviction on the charge of cruelty to juveniles,

he was sentenced to serve ten years at hard labor to run consecutively to the

sentences imposed for oral sexual battery and sexual battery. The trial court

subsequently amended Defendant’s sentences and ordered the sentences to be

served without benefit of parole, probation, or suspension of sentence.

Defendant has appealed his convictions of oral sexual battery and sexual

battery only; he has not appealed his sentences. He presents the following three

1
Pursuant to La.R.S. 46:1844(W), the initials of the parties involved will be used to protect the
identity of the victims.

assignments of error.

ASSIGNMENTS OF ERROR

1. The verdict is suspect because state child protection workers
told the alleged victim in this case about a Florida charge
against F.F.Q. and how he had allegedly abused another child.
This was done specifically to elicit claims of sexual abuse
against F.F.Q. when the child had consistently denied them in
other interviews. It included showing her details of the Florida
allegations from divorce papers. Only after this prejudicial
information was discussed with the victim in this case did she
allege extreme sexual abuse, including rape, bondage[,] and
oral sexual battery.

2. Where alleged child rape victim noted that she decided what
to tell the police based on whether appellant F.F.Q. would be in
jail, the inconsistent reports by the alleged victim were clearly
willfully [sic] created for an ulterior motive. The evidence
therefore cannot be considered sufficient to convict of even the
responsive verdict of sexual battery.

3. The indictment was fatally flawed and should have been
quashed, requiring the [S]tate to re-convene the grand jury,
where the process was manipulated for unfair advantage and no
other reason. The abuse of the grand jury process violated Due
Process of Law and was prejudicial as a matter of law, without
regard to contemporaneous objection or consent.

DISCUSSION OF THE RECORD

Defendant’s bench trial began on May 4, 2010. M.R., the alleged victim in

this case, was the first witness to testify. She was sixteen years of age at the time

of trial. She testified that at the time of the alleged sexual offenses, she was living

with J.F., her grandmother, and J.F.’s husband, Defendant herein.

M.R. stated that Defendant had non-consensual sexual intercourse with her

on numerous occasions, that he made her perform oral sex on him, that he

performed oral sex on her, that he inserted his fingers in her vagina, and that he

took nude photos of her on several occasions. M.R. stated that Defendant

threatened her and her family and that she believed these threats were real because

he had already hurt her and their animals. M.R. stated that the first instance of

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sexual contact between her and Defendant occurred on January 28, 2007. She

recalls that date because she had kept a journal while in foster care.

M.R. first reported these allegations to her foster care sister, Chelsea. Their

foster care mother, Ms. Lois, learned of these occurrences when she found M.R.’s

journal. Ms. Lois then took M.R. to the Children’s Advocacy Center to talk to Ms.

Emily. Ms. Emily had M.R. examined by Dr. Scott Bergstedt.

Dr. Bergstedt testified that he examined M.R. on May 14, 2008. M.R. told

Dr. Bergstedt that Defendant had her perform oral sex on him, that he had

performed oral sex on her, that he had vaginal and anal intercourse with M.R., that

he had put his fingers in her vagina, that he had touched her breasts over her

clothes, and that he had grabbed her buttocks. Dr. Bergstedt explained that M.R.

stated Defendant had physically abused her and threatened to kill her and her

family if she refused to do certain things. Upon examination, Dr. Bergstedt found

that M.R.’s hymen was not intact and that she had healed lacerations suggestive of

vaginal penetration and consistent with repetitive penetration. He also found a scar

evidencing a tear as a result of trauma between M.R.’s rectum and vagina.

B.L. testified on behalf of the State. She stated that when she was eleven,

Defendant lived with her mother, that Defendant was physically violent toward her

and her mother, that he had non-consensual sex with her, and that he threatened to

kill her family members, set their house on fire, and would do anything possible to

hurt them if she refused him.

Virginia Tolin, a foster care worker with Child Protection (O.C.S.), testified

that M.R. had come into the care of O.C.S. on February 19, 2008, as a result of

allegations that Defendant had been physically abusive. She stated that she and

Kathy Hammond had picked M.R. up from her home and had driven her to the

foster home.

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Ms. Hammond testified that she was an investigator for O.C.S. and had

investigated reported allegations of abuse and neglect. Ms. Hammond was made

aware of Defendant having been arrested for failure to register as a sex offender

following a Florida conviction.

We note that J.F., M.R.’s grandmother and wife of Defendant, testified on

Defendant’s behalf. She stated that she had never seen Defendant have sexual

contact with M.R., flirt with her, or touch her sexually. She conceded that she was

aware that M.R. had been physically injured by Defendant, that she had initially

lied to the police about the source of the injuries, and that she lied because M.R.

did not want Defendant to be arrested.2

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we have reviewed the record

for any errors patent. We have found no actionable errors patent.

ASSIGNMENTS OF ERROR NOS. 1 & 2

Defendant contends that the victim’s testimony was not credible because her

allegations were prompted by information that there were other accusations against

him:

The verdict is suspect because state child protection workers told the
alleged victim in this case about a Florida charge against F.F.Q. and
how he had allegedly abused another child. This was done
specifically to elicit claims of sexual abuse against F.F.Q. when the
child had consistently denied them in other interviews. It included
showing her details of the Florida allegations from divorce papers.
Only after this prejudicial information was discussed with the victim
in this case did she allege extreme sexual abuse, including rape,
bondage[,] and oral sexual battery.

Defendant also argues that the victim’s testimony was not credible because it

was inconsistent and because her accusations were prompted by ulterior motives:

2
Several other witnesses testified at trial, but their testimony was cumulative, immaterial, or
impertinent.
4

Where alleged child rape victim noted that she decided what to tell
the police based on whether appellant F.F.Q. would be in jail, the
inconsistent reports by the alleged victim were clearly willfully [sic]
created for an ulterior motive. The evidence therefore cannot be
considered sufficient to convict of even the responsive verdict of
sexual battery

Thus, Defendant is contending that there was insufficient evidence to convict him

because the victim should not have been believed.

The Louisiana Supreme Court has discussed the standard of review for

evaluating the sufficiency of the evidence on appeal:

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 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 (citations

omitted).

[The supreme court has] repeatedly cautioned that due process,
rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to
substitute its own appreciation of the evidence for that of the fact
finder or to second guess the credibility determinations of the fact
finder necessary to render an honest verdict. A reviewing court may
intrude on the plenary discretion of the fact finder ―only to the extent
necessary to guarantee the fundamental protection of due process of
law.‖

State v. Calloway, 07-2306, p. 10 (La. 1/21/09), 1 So.3d 417, 422 (citations

omitted). ―The trier of fact makes credibility determinations and may, within the

bounds of rationality, accept or reject the testimony of any witness . . . .‖ State v.

Higgins, 03-1980, p. 17 (La. 4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S.

883, 126 S.Ct. 182 (2005) (quoting State v. Mussall, 523 So.2d 1305, 1310

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(La.1988)). ―Credibility determinations are within the sound discretion of the trier

of fact and will not be disturbed unless clearly contrary to the evidence.‖ State v.

Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S.

905, 128 S.Ct. 239 (2007) (citing State v. Vessell, 450 So.2d 938 (La.1984)).

In its reasons for ruling, the trial court specifically addressed the issue of

M.R.’s credibility:

And I understand the concerns that Mr. Clemons had . . . about
[M.R.’s] stories in many cases being all over the place. And I looked
for – I looked at all those inconsistencies and I looked for what was
consistent and what made sense to me, and what made sense to me
was Dr. Bergstedt’s testimony that her hymen had been ruptured.
And I gave the [D]efendant wide latitude in asking about other
instances of sexual intercourse, over the objection of the State. And I
heard no one come in and say that they had had sexual intercourse
with this girl. The only person she ever identified as having sexual
intercourse with her was the [D]efendant . . . . [M.R.] apparently
grew up in a home where pornography was allowed to exist, where
she was allowed to view it, whether intentionally or unintentionally.
She grew up in a home where the person she called mother allowed
her to lie to police about what had occurred to her, and maybe even
encouraged her to do that, who failed to protect her. I believe [M.R.]
when she tells me she had intercourse with [Defendant]. She’s too
young to be doing that. And the defendant should have known better.

We find the factfinder’s credibility determination to be supported by the

evidence. A review of the testimony and evidence presented at trial shows that

M.R.’s account seemed to vary some about when and how many times pictures

were taken plus a few other details. However, she maintained the core facts of the

incidents and reported them over and over again to each person she spoke to about

the sexual abuse. Moreover, the physical evidence supported those core facts.

Therefore, we do not find the trial court’s credibility call to be clearly wrong.

Accordingly, these two assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant asserts that his indictment should have been quashed:

The indictment was fatally flawed and should have been quashed,

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requiring the state to re-convene the grand jury, where the process was
manipulated for unfair advantage and no other reason. The abuse of
the grand jury process violated Due Process of Law and was
prejudicial as a matter of law, without regard to contemporaneous
objection or consent.

Defendant does not brief this assignment of error. ―All specifications or

assignments of error must be briefed. The court may consider as abandoned any

specification or assignment of error which has not been briefed.‖ Uniform Rules—

Courts of Appeal, Rule 2–12.4. Accordingly, this assignment of error is deemed

abandoned.

DISPOSITION

Defendant’s convictions are affirmed.

AFFIRMED.

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