State of Louisiana v. Paul Broussard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-415

STATE OF LOUISIANA

VERSUS

PAUL BROUSSARD

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22316-08
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.

AFFIRMED.

John Foster DeRosier
District Attorney - 14th Judicial District Court
Karen C. McLellan
Assistant District Attorney – 14th Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Todd Samuels Clemons
1740 Ryan Street
Lake Charles, LA 70601
Telephone: (337) 477-0000
COUNSEL FOR:
Defendant/Appellant - Paul Broussard

THIBODEAUX, Chief Judge.

Defendant was convicted of attempted sexual battery for

inappropriately touching an eleven-year-old girl and was sentenced to twelve and

one-half years at hard labor, without benefit of parole, probation, or suspension of

sentence. Defendant argues the trial court improperly considered evidence of other

crimes and the evidence was insufficient to support the conviction. Considering

the testimony of the victim alone was sufficient to prove the elements of this

sexual offense, we affirm Defendant‟s conviction and sentence.

I.

ISSUES

Defendant raises the following assignments of error:

(1) the trial court erred in considering other crimes evidence
without articulating an appropriate use of this evidence
under La.Code Evid. arts. 404(B) and 412.2;

(2) the trial court erred by admitting the other crimes
evidence under a preponderance of evidence standard;

(3) trial counsel was ineffective in failing to properly
challenge the admissibility of the other crimes evidence;
and,

(4) the evidence was insufficient to support a conviction for
attempted sexual battery.

II.

FACTS AND PROCEDURAL HISTORY

In the summer of 2007, J.B.,1 an eleven-year-old girl, spent the night

1
The victim‟s initials are used to protect her identity in accordance with La.R.S.
46:1844(W).

at Defendant Paul Broussard‟s home. J.B. was good friends with Defendant‟s

daughter, Alexis, and since kindergarten, she would frequently sleep over. On the

particular evening which forms the basis of this prosecution, J.B. testified that she

was sleeping on the couch when Defendant picked her up to put her in bed. In the

process of carrying J.B., he put his hand in her underwear and touched her vaginal

and anal area. In December 2007, J.B. first told her friend Emily about the

incident. Emily testified that beyond this incident, J.B. once told her that

sometimes Defendant would tickle her below the waist and occasionally touch her

inappropriately. On March 3, 2008, J.B. told her aunt who then told J.B.‟s mother.

When a formal investigation began on March 12, 2008, Defendant

told detectives that he was aware of the allegations through the elders of his

church. He maintained that he was falsely accused. Defendant‟s wife, Julie

Broussard, further testified that she was surprised by the allegations as her husband

was not the type to engage in these actions. On March 17, 2008, J.B. was

interviewed at the Child Advocacy Center (CAC) where she identified on a picture

of a girl that Defendant touched her in her vaginal area.

A grand jury indicted Defendant for sexual battery, a violation of

La.R.S. 14:43.1.2 During the course of the proceedings, the State filed its notice of

intent to introduce evidence of similar sexual offenses committed by Defendant

with victim, M.W.

At a Prieur hearing on March 9, 2010, M.W. testified that she often

babysat for Defendant and Julie from the time she was fifteen. She slept either on

the couch or in the bed of one of their children. About ten years prior to the

2
The alleged incident occurred in 2007. Since that time, La.R.S. 14:43.1 has been
amended twice. See 2008 La. Acts, No. 33, effective August 15, 2008; 2011 La. Acts, No. 67,
effective August 15, 2011.

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hearing, M.W. arrived at Defendant‟s home planning to sleep there. Defendant

suggested she sleep in the bedroom he shared with Julie, who was at work. He

followed M.W. to the bedroom, got into bed with her, tried to kiss her, and put his

hands up her shirt. M.W. repeatedly pushed Defendant away until he ultimately

stopped. M.W. told her mother about the incident a few hours later, but she did not

report it to the police. While Julie denies ever speaking to M.W. about the incident,

M.W. testified that she informed Julie, who responded by saying, “I cannot believe

he has done this again.” In approximately 2003, Defendant sent M.W. a card

apologizing for his behavior. He also wrote a letter in which he apologized and

asked for forgiveness.

In the Prieur hearing, the trial judge admitted evidence of the prior

acts involving M.W. because the facts were similar and showed “lustful

predisposition to have sexual contact with young teenage girls.” On December 15,

2010, the trial judge found Defendant guilty of attempted sexual battery, a

violation of La.R.S. 14:27 and 14:43.1. Referring to the M.W. evidence admitted

at trial, the judge commented, “[t]o be honest with you, but for that testimony, I

probably would not have convicted [Defendant] . . . It was the evidence that made

the difference between guilty and not guilty.” He sentenced Defendant to twelve

and one-half years at hard labor, without benefit of parole, probation, or suspension

of sentence, and with credit for time served. The trial judge denied Defendant‟s

motions for post-verdict judgment of acquittal and for new trial.

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III.

LAW AND DISCUSSION

Sufficiency of Evidence

When issues are raised on appeal as to both sufficiency of evidence

and other trial errors, the appellate court should first review the sufficiency of the

evidence. State v. Hearold, 603 So.2d 731 (La.1992). The standard of review in a

sufficiency of the evidence claim is “whether, viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found proof

beyond a reasonable doubt of each of the essential elements of the crime charged.”

State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549

U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979)).

In State v. Simon, 10-1111, p. 7 (La.App. 3 Cir. 4/13/11), 62 So.3d

318, 323, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922, this court upheld a

verdict of sexual battery, noting “the testimony of the victim alone can be

sufficient to establish the elements of a sexual offense, even if there is no physical

evidence.” The case involved a six-year-old victim who testified in a CAC

interview that she awoke when the defendant pulled down her pants and touched

her “„in‟ her „behind[.]‟” Id. During the interview, the victim used a diagram to

circle the part of her body where the defendant touched her. The victim‟s older

brother testified his sister had told him about the incident, and he told their mother.

Because the jury obviously found the victim‟s version of the events to be credible,

this court concluded that it would not second-guess that credibility determination

and affirmed the defendant‟s conviction.

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Here, J.B. testified Defendant picked her up while she was sleeping

and placed his thumb in her vagina while he carried her. In a CAC interview, she

identified on a picture where Defendant touched her. Furthermore, she told her

friend Emily and her aunt about the incident. The trial judge convicted Defendant

of attempted sexual battery, indicating that he believed all the witnesses testified

truthfully. Following Simon, J.B.‟s testimony alone was sufficient to satisfy the

elements of attempted sexual battery. It is not our place to second-guess the

judge‟s determination of credibility. This assignment of error lacks merit.

Errors Involving Admission and Consideration of Other Crimes Evidence

Defendant further contends that the trial court improperly considered

evidence of Defendant‟s prior offense with M.W. This argument is moot as J.B.‟s

testimony alone was sufficient to support Defendant‟s guilty verdict. In addition,

as the past crimes evidence was not necessary to attain the conviction, we need not

consider whether trial counsel was ineffective in failing to challenge its

admissibility. See Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052 (1984).

Even if the other crimes evidence was necessary, Defendant‟s

argument as to its admissibility and use fails. The evidence was properly admitted

in the Prieur hearing under a preponderance of the evidence standard. See

La.Code Evid. art. 1104; Huddleston v. U.S., 485 U.S. 681, 108 S.Ct. 1496 (1988).

Furthermore, Louisiana Code of Evidence Article 412.2 states, in pertinent part

that:

When an accused is charged with a crime involving
sexually assaultive behavior, or with acts that constitute a
sex offense involving a victim who was under the age of
seventeen at the time of the offense, evidence of the
accused‟s commission of another crime, wrong, or act
involving sexually assaultive behavior or acts which

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indicate a lustful disposition toward children may be
admissible and may be considered for its bearing on any
matter to which it is relevant subject to the balancing test
provided in Article 403.

Here, the trial judge indicated in his judgment that M.W.‟s testimony “tend[ed] to

corroborate J.B.‟s testimony because it show[ed] interest in younger [women],

younger girls, little girls and [inappropriately] touching them.” In accordance with

La.Code Evid. art. 412.2, the judge only considered the evidence to show

Defendant‟s lustful disposition towards younger women. As such, the evidence

was properly considered.

Errors Patent

In accordance with La.Code Crim.P. art. 920(2), we have conducted a

thorough review of the record on its face and find no errors patent.

IV.

DISPOSITION

For the foregoing reasons, we affirm Defendant‟s conviction and

sentence for attempted sexual battery.

AFFIRMED.

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