State of Louisiana v. D. R. M.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-1554

STATE OF LOUISIANA

VERSUS

D. R. M.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 68257
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

Don M. Burkett
District Attorney
Eleventh Judicial District
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Carey J. Ellis, III
La. Appellate Project
707 Julia St.
Rayville, LA 71269
(318) 728-2043
COUNSEL FOR DEFENDANT/APPELLANT:
D. R. M.

Anna Louise Garcie
Attorney at Law
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

PETERS, J.

The State of Louisiana (state) charged the defendant, D.R.M.,1 with the

offense of aggravated rape of R.B., his stepdaughter and a child under the age of

thirteen, in violation of La.R.S. 14:42. The defendant waived a jury trial, and after

a bench trial, the trial court convicted the defendant of the offense. Thereafter, the

trial court sentenced the defendant to serve life in prison without benefit of parole,

probation, or suspension of sentence. The defendant appeals his conviction

asserting two assignments of error, and for the following reasons, we affirm the

defendant‟s conviction in all respects.

DISSCUSSION OF THE RECORD

The evidentiary record establishes without dispute the dates of certain events

pertinent to this litigation. The victim in this case, R.B., was born on November 1,

1995, and is one of two children born to the marriage of her mother, K.B., and her

former husband. The other child is a male whose age was not established at trial,

but the evidentiary record does note that he was twenty-one years old at the time of

June 23, 2011, trial.

K.B.2 married the defendant on August 9, 2003. For the next few years,

K.B.‟s children moved back and forth between the home that K.B. shared with the

defendant and her former husband‟s home. However, in 2007, both children came

to live full-time with K.B. and the defendant.

According to her mother, R.B. began her menstrual cycle in mid-2007

between the fifth and sixth grades. At the time, she was a few months short of her

twelfth birthday. Other pertinent dates include the purchase of a four-wheeler on

February 6, 2007, the older brother‟s July 2, 2008, departure from home to attend
1
Initials are used in this opinion pursuant to the requirements of La.R.S. 46:1844(W).
2
At trial, K.B. referred to herself by her maiden name. However, for clarity we will refer
to her as K.B. throughout the opinion.

college in North Carolina, and the purchase by the defendant and K.B. of a second

vehicle in December of 2008.

These dates are important in evaluating the facts surrounding the offense

itself because the defendant asserted at trial that, although he did have oral and

vaginal sexual intercourse with his stepdaughter, the acts were consensual, and

furthermore, that the first such act occurred after the purchase of the second

vehicle in December of 2008.

The criminal activity came to the attention of law enforcement authorities on

July 27, 2010. K.B. telephoned the Sabine Parish 911 Emergency Assistance

Office to report that she had walked in on R.B. and a nineteen-year-old male

engaged in consensual sex in the girl‟s bedroom. Before law enforcement officers

arrived, K.B. confronted her daughter and asked if she had been intimate with

other men. After initially denying any other sexual activity, and in response to her

mother‟s interrogation, R.B. finally confessed that she and the defendant had been

engaged in sexual activity for two years. When Detective David Self of the Sabine

Parish Sheriff‟s Office arrived at the home of K.B. and the defendant in response

to the 911 call, R.B. again repeated her statement concerning the defendant, and

added that she had told her best friend, C.H., two years earlier when the activity

first began.

In furtherance of his investigation and within days after receiving the initial

report of criminal activity, Detective Self arranged for R.B. to be interviewed at the

Rapides Advocacy Center in Alexandria, Louisiana; interviewed C.H.; and

questioned the defendant. The charge against the defendant arose as a result of

Detective Self‟s findings in his investigation.

At trial, R.B. testified that the defendant began his criminal violation of her

by making her perform oral sex on him. She asserted that while she performed the
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oral sex act, he would touch and feel her on her private parts. She placed the

timing of the first act of this nature to have occurred before she began her period.

According to R.B., the beginning of her menstrual cycles caused a significant

change in the way the defendant approached her. She testified that during

menstruation, the defendant would keep his hands outside her clothes. At all other

times, he would fondle her bare skin. R.B. also testified that sometime before her

first menstrual cycle occurred, the defendant began rubbing her naked vagina with

his penis, although he did not attempt penetration. At some point after this initial

activity, and before her brother left for college in July of 2008, he began inserting

his penis in her vagina. According to R.B., sexual intercourse continued on a

regular basis, sometimes in the truck near a cemetery, and sometimes in places

traveled to on the four-wheeler.

R.B. testified that the defendant told her not to tell anyone because, if she

did, they both would be in trouble. The only person she told was C.H., her best

friend and confidant.

C.H. was born on May 15, 1996, making her fifteen at the time of trial. She

and R.B. have been friends since the second grade and rode the school bus together

every day. She testified that R.B. told her in confidence that the defendant had

raped her once. According to C.H., they were in the fifth grade and at R.B.‟s

house for the weekend when this conversation occurred. C.H. tried to convince

R.B. to tell K.B., but R.B. responded that she did not want to hurt her mother‟s

feelings.

The defendant testified in his own defense and admitted that he and R.B. had

engaged in oral and vaginal intercourse. However, he asserted that the acts were

consensual and that the first time was not before acquisition of the second vehicle

in December of 2008. He suggested that any sexual activity between him and R.B.
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before July of 2008 would have been impossible because of the presence of R.B.‟s

older brother. According to the defendant, sometime after December of 2008, he

walked in on his stepdaughter masturbating in her room, and given the scene

before him, he only half-heartedly chastised her. Thereafter, it was not long before

their sexual activity began in earnest. However, he asserted that all of the sexual

activity occurred at home.

On appeal, the defendant asserted two assignments of error:

1. The [s]tate failed to present sufficient evidence to support the
verdict of aggravated rape.

2. The trial court erred by failing to suppress the statements of the
[d]efendant.

OPINION

Errors Patent

In addition to the assignment of errors raised by a defendant, La.Code Crim.

P. art. 920(2) requires that we review an appeal for “[a]n error that is discoverable

by a mere inspection of the pleadings and proceedings and without inspection of

the evidence.” We have performed this error patent review and find no such

errors.

Assignment of Error Number One

In his first assignment of error, the defendant questions the sufficiency of the

evidence, not regarding the existence of a sexual relationship between him and

R.B., but on the trial court‟s factual finding that the oral or vaginal sexual

intercourse with R.B. began when she was under the age of thirteen.

Louisiana Revised Statutes 14:41(A) defines rape as “the act of anal, oral, or

vaginal sexual intercourse with a male or female person committed without the

person‟s lawful consent.” The defendant was convicted of aggravated rape which,

as it applies in this case, is defined in La.R.S. 14:42(A)(4) as a rape which occurs
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“where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful

consent of the victim because it is committed . . . [w]hen the victim is under the

age of thirteen years.”

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, 61
L.Ed.2d 560 (1979); State v. Mussal, 523 So.2d 1305 (La.1988). 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. State v. Silman, 95-0154 (La.
11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the
factfinding function of the jury only to the extent necessary to assure
the Jackson standard of review. State v. Bordenave, 95-2328 (La.
4/26/96), 678 So.2d 1920. 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.

The Jackson standard of review is now legislatively embodied in La.Code Crim.P.

art. 821. While the reviewing court has the right to “impinge” on the trier of fact‟s

factual conclusions, it is not allowed to substitute its own analysis of the facts for

that of the trier of fact. State v. Pigford, 05-477 (La. 2/22/06), 922 So.2d 517.

However, an appellate court may impinge on the fact finder=s
discretion and its role in determining the credibility of witnesses “only
to the extent necessary to guarantee the fundamental due process of
law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a conviction,
an appellate court must preserve “ „the factfinder=s role as weigher of
the evidence‟ by reviewing „all of the evidence . . . in the light most
favorable to the prosecution.‟ ” McDaniel v. Brown, 558 U.S. [120],
130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).
When so viewed by an appellate court, the relevant question is
whether, on the evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Applied in cases relying on circumstantial evidence, . . . this
fundamental principle of review means that when a jury “reasonably
rejects the hypothesis of innocence presented by the defendant[ ], that
hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.” State v. Captville, 448
So.2d 676, 680 (La.1984).
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State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378. (first and
fourth alteration in original).

R.B. testified that the defendant had oral and/or vaginal intercourse with her

prior to her thirteenth birthday. The trial court concluded that R.B.‟s testimony

was “compelling and credible.” Additionally, the time line established by R.B.‟s

testimony was supported by that of both K.B. and C.H.

A victim‟s or witness‟s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02-1043, p. 3 (La. 6/27/03); 848 So.2d
559. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness‟s testimony, if believed by the
fact finder, is sufficient support for a requisite factual conclusion.
State v. Robinson, 02-1869, p. 16 (La. 4/14/04); 874 So.2d 66, 79.

State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 634, cert denied,

__U.S.__, 132 S.Ct. 1859 (2012).

We find that a rational trier of fact could have found the elements of

aggravated rape established beyond a reasonable doubt in this case. We find no

merit in the defendant‟s first assignment of error.

Assignment of Error Number Two

On December 15, 2010, the defendant filed a motion to suppress the

videotaped confession he gave Detective Self on July 30, 2010. The trial court

initially considered this motion at a hearing held January 3, 2011.

Detective Self testified at that hearing that after being advised of his

constitutional rights pursuant to Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602

(1966), the defendant initially denied having any form of sexual activity with R.B.

at any time. When the defendant asked for an attorney, Detective Self stopped

videotaping the interview. Five to ten minutes later, according to the detective, the

defendant “looked at [him] and said „David, I did it.‟” According to Detective

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Self, he returned the defendant to the interview room, read him his Miranda rights

a second time, and asked the defendant if he wished to continue the interview

without an attorney. Detective Self testified that the defendant waived his right to

have his attorney present and as the second half of the interview progressed, the

defendant admitted to having consensual oral and vaginal sexual intercourse with

R.B. approximately twenty times in the ten to eleven months prior to July 30,

2010. It is this second part of the interview that is addressed by the defendant‟s

motion to suppress. The state introduced the videotape, and what the state asserted

was an accurate transcript of the contents of the videotape into evidence at the

suppression hearing.

The trial court took the motion under advisement, and on February 16, 2011,

denied the motion. In its reasons for denying the motion, the trial court stated that

it found that the defendant‟s confession “appears to have been given freely and

voluntarily and at his own insistence.” In later hearings relating to the suppression

issue, the trial court acknowledged that, in relying on the asserted accuracy of the

transcript, it did not watch the videotape in its entirety. Over the defendant‟s

continuing objection, the state introduced the confession into evidence at trial.

After the trial on the merits, the defendant filed a motion for new trial

wherein he asserted that the videotape of the interviews included content not

reflected in the transcript introduced at trial. After a July 14, 2011, hearing, the

trial court took the issue under advisement. By a written order with reasons dated

August 25, 2011, the trial court granted the defendant‟s motion. On August 31,

2011, the state filed a motion seeking clarification of the trial court‟s August 25

order, and this motion was heard by the trial court on September 29, 2011.

In its reasons for granting the new trial, the trial court noted that there were

significant discrepancies between the transcript provided at the suppression hearing
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and the videotape of the interview. Specifically, it found that the videotape

revealed Detective Self‟s continued interrogation of the defendant after he had

requested legal counsel “nearly up to the time he confessed.” The trial court noted

also that over one hour had passed, and not five to ten minutes as Detective Self

had suggested, between the end of the videotape and the renewal of the interview;

and furthermore, that Detective Self “was untruthful and purposefully evasive to

[the trial] court at the motion to suppress hearing” and “reinitiated the interrogation

moments after defendant demanded an attorney and the audiotape recorder was

turned off.” In other words, the trial court concluded that the defendant could not

have reinstated the interrogation because it had never stopped and; therefore, the

defendant never waived his right to counsel.

At the September 29, 2011, hearing, the trial court took the state to task for

submitting to the trial court a transcript that it had not checked for accuracy, and

restated its displeasure with what it considered an intentional attempt to mislead

the court. Specifically, the trial court noted that “justice was not served by

incomplete transcripts that were submitted by the Office of the District Attorney

upon which [the trial] court could not rely regarding constitutional violation of the

defendant‟s Fifth Amendment right to counsel.” Nevertheless, the trial court set

aside its earlier ruling and denied the motion for new trial because “the record, in

and of itself, without the subject confession, supports a finding that any rational

trier of fact could have found proof beyond a reasonable doubt of each of the

essential elements of the crime charged.” In the October 21, 2011, written reasons

for this ruling, the trial court specifically noted that it could find the defendant

guilty of the offense “without reliance on the confession.” Specifically, the trial

court found the admission of the confession into evidence to be “harmless error

and that the record, in and of itself, without the subject confession, supports a
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finding that any rational trier of fact could have found proof beyond a reasonable

doubt of each of the essential elements of the crime charged[.]”

The defendant also asserts that the trial court erred in failing to suppress the

defendant‟s statements. In considering this issue, we first note that “[a]n error is

harmless if it is unimportant in relation to the whole and the verdict rendered was

surely unattributable to the error.” State v. Koon, 96-1208 p.8 (La. 5/20/97), 704

So.2d 756, 763, cert. denied, 522 U.S. 1001, 118 S.Ct. 570 (1997). However,

because the evidence to be suppressed in this case is that of a coerced confession,

we must take great care in determining whether or not its admission into evidence

is mere harmless error. State v. Leger, 05-0011 (La. 7/10/06), 936 So.2d 108; cert.

denied, 549 U.S. 1221 127 S.Ct. 1279 (2007).

After thorough review, we find no error in the trial court‟s conclusion that

the introduction of the defendant‟s confession was harmless error. Absent the

confession, the state presented sufficient evidence to prove each element of

aggravated rape beyond a reasonable doubt. We find no merit in this assignment

of error.

DISPOSITION

For the foregoing reasons, the defendant‟s conviction is affirmed in all

respects.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules —Courts of Appeal, Rule 2-16.3.

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