State of Louisiana v. Tony Garnell Pennywell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1376

STATE OF LOUISIANA

VERSUS

TONY GARNELL PENNYWELL

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 312,478
HONORABLE PATRICIA E. KOCH, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

James C. Downs
District Attorney
Monique Y. Metoyer
Assistant District Attorney
Post Office Drawer 1472
Alexandria, Louisiana 71309
(318) 473-6650
Counsel for Appellee:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Tony Garnell Pennywell

Tony Garnell Pennywell
Louisiana State Penitentiary
Camp D, Hawk 2/R
Angola, Louisiana 70712
Defendant/Appellant

KEATY, Judge.

Defendant, Tony Garnell Pennywell, appeals his convictions for two counts

of aggravated rape and three counts of aggravated incest. For the following

reasons, we affirm the convictions for both counts of aggravated rape and for two

counts of aggravated incest. We vacate the conviction and sentence for the

remaining count of aggravated incest, render a judgment of guilty of attempted

aggravated incest, and remand to the trial court for sentencing thereon. We further

instruct the trial court to amend the sentences imposed to reflect that all are to be

served at hard labor.

FACTS AND PROCEDURAL HISTORY

Defendant was charged with three counts of aggravated rape, violations of

La.R.S. 14:42, and three counts of aggravated incest, violations of La.R.S. 14:78.1,

upon his granddaughter, T.W. 1 Defendant entered pleas of not guilty to all

charges. Following trial, the jury returned verdicts of guilty on two counts of

aggravated rape. On the third count of aggravated rape, the jury found Defendant

guilty of the responsive verdict of sexual battery, a violation of La.R.S. 14:43.1.

The jury also found Defendant guilty of all three counts of aggravated incest.

A motion for post-verdict judgment of acquittal or alternative motion for

new trial was subsequently filed in open court and was denied. On the same date,

Defendant was sentenced to serve life imprisonment without benefit of probation,

parole, or suspension of sentence for each count of aggravated rape. Defendant

was also sentenced to serve twenty-five years without benefit of probation, parole,

1
The victim’s initials are being used in accordance with La.R.S. 46:1844(W).

or suspension of sentence for sexual battery and for each count of aggravated

incest. The twenty-five-year sentences were ordered to run consecutively.

Defendant is now before this court asserting one assignment of error.

Defendant contends that the evidence was insufficient to support his convictions

for aggravated rape and aggravated incest.2

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals

for errors patent on the face of the record. After reviewing the record, we have

discovered one error patent regarding Defendant’s sentence.

The crimes of which Defendant was convicted, including aggravated rape,

sexual battery, and aggravated incest, all require a hard labor sentence. Although

the court minutes indicate the trial court ordered the sentences imposed to be

served at hard labor, the sentencing transcript does not so indicate. ―[W]hen the

minutes and the transcript conflict, the transcript prevails.‖ State v. Wommack, 00-

137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62. Accordingly, the sentences imposed in this case are

illegally lenient. See State v. Loyden, 04-1558 (La.App. 3 Cir. 4/6/05), 899 So.2d

166. We instruct the trial court to amend Defendant’s sentences to reflect that they

be served at hard labor. The trial court is also instructed to make a notation in the

minutes reflecting the amendment. La.Code Crim.P. art. 882.

ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends that the evidence

presented at trial was insufficient to find him guilty of aggravated rape and

aggravated incest.

2
Defendant does not appeal the conviction for sexual battery.

2

The standard of 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) (emphasis in original); State v. Mussall, 523 So.2d 1305
(La.1988). An appellate court does not re-weigh the evidence or
assess the credibility of witnesses. Mussall, 523 So.2d 1305.
Determining the weight of the evidence is a question of fact, reserved
for the fact-finder, and we will only infringe on that function to the
extent necessary to meet the Jackson standard. State v. Silman, 95-
0154 (La.11/27/95), 663 So.2d 27.

State v. Bethley, 12-844, p. 2 (La.App. 3 Cir. 2/6/13), 107 So.3d 834, 837, writ

denied, 13-570 (La. 8/30/13), 120 So.3d 263.

Louisiana Revised Statutes 14:41 defines rape as follows:

A. Rape is the act of anal, oral, or vaginal sexual intercourse
with a male or female person committed without the person’s lawful
consent.

B. Emission is not necessary, and any sexual penetration, when
the rape involves vaginal or anal intercourse, however slight, is
sufficient to complete the crime.

C. For purposes of this Subpart, ―oral sexual intercourse‖
means the intentional engaging in any of the following acts with
another person:

(1) The touching of the anus or genitals of the victim by the
offender using the mouth or tongue of the offender.

(2) The touching of the anus or genitals of the offender by the
victim using the mouth or tongue of the victim.

The jury convicted Defendant of two counts of aggravated rape. Louisiana

Revised Statutes 14:42 defines aggravated rape, in pertinent part:

A. Aggravated rape is a rape committed upon a person . . .
where the anal, oral, or vaginal sexual intercourse is deemed to be
without lawful consent of the victim because it is committed under
any one or more of the following circumstances:

....

3

(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim’s age shall not be a defense.

The jury also convicted Defendant of three counts of aggravated incest.

Louisiana Revised Statutes 14:78.1 defines aggravated incest, in pertinent part:

A. Aggravated incest is the engaging in any prohibited act
enumerated in Subsection B with a person who is under eighteen
years of age and who is known to the offender to be related to the
offender as any of the following biological, step, or adoptive relatives:
child, grandchild of any degree, brother, sister, half-brother, half-sister,
uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, second degree sexual
battery, carnal knowledge of a juvenile, indecent behavior with
juveniles, pornography involving juveniles, molestation of a juvenile
or a person with a physical or mental disability, crime against nature,
cruelty to juveniles, parent enticing a child into prostitution, or any
other involvement of a child in sexual activity constituting a crime
under the laws of this state.

(2) Any lewd fondling or touching of the person of either the
child or the offender, done or submitted to with the intent to arouse or
to satisfy the sexual desires of either the child, the offender, or both.

Investigator Stephen Phillips with the Rapides Parish Sheriff’s Office

testified that Defendant’s date of birth was April 1, 1965, and that he was over

eighteen years old at the time the offenses occurred.

Ashley Honor, a forensic interviewer employed at the Rapides Children’s

Advocacy Center, interviewed T.W. T.W. was shown anatomical drawings and

circled body parts thereon. Honor wrote the names of the body parts as described

by T.W. Honor testified that T.W. did not appear to have difficulty understanding

the questions asked during the interview and was able to explain what had occurred.

Tiffany Smith testified that she was the mother of T.W., whose date of birth

is August 5, 2004, and that Defendant was her father and T.W.’s grandfather.

Smith testified that she and her children once lived in Alexandria, Louisiana.

4

Defendant moved to Alexandria from North Carolina in late August 2011 and lived

at her residence on and off but was residing there between April and June 2012.

Smith indicated that Defendant began watching her kids a week after

February 13, 2012. Defendant watched the kids while she was at work from 6:00

a.m. to 2:00 p.m. Smith left for work at approximately 5:30 a.m., and Defendant

woke the kids and got them ready for school. Smith testified that the bus picked up

T.W. and her sister at approximately 7:20 a.m. and dropped them off at home at

4:20 p.m. Smith testified that T.W. did not miss school on April 16, 2012.3

Smith quit working on June 9, 2012, and she and her children subsequently

moved to Texas. On July 1, 2012, T.W. began to cry when Smith asked her what

was wrong. T.W. then told Smith the Defendant forced her to have sex with him.

The following day, Smith reported the event to the sheriff’s office in Texas but was

told she needed to report the incident in Rapides Parish, Louisiana. She then drove

to Rapides Parish and reported the matter to police there. Smith took T.W. to the

Children’s Advocacy Center and to see a doctor. Smith testified she did not ask

T.W. for any details regarding what had happened to her.

Smith testified that ―sex‖ was the word used by T.W. Smith said she had not

had any prior conversations with T.W. about sex and never used the word around

her. Smith had no idea how T.W. would have known what sex was.

During her courtroom testimony, T.W. gave her date of birth as August 5,

2004, and she said she was eight years old at the time of trial. T.W. made an in-

court identification of Defendant.

3
T.W. testified that the offense occurring on this date was interrupted by a car accident in
front of her residence.

5

T.W. testified that bad things happened to her more than one time while

Defendant, her grandfather, babysat her. T.W. indicated the first incident occurred

when she was on the couch watching television. T.W. stated that Defendant was

lying on the couch with her and rubbed her private part over her clothing. While

rubbing her, Defendant said, ―do you want me to stop, do you want me to stop.‖

T.W. testified that she told Defendant to stop, and he did not.

On cross-examination, T.W. was asked if Defendant was asleep when this

occurred, and she said he was awake. She was then asked to read the transcript of

her interview at the advocacy center and was questioned as follows:

BY MR. HICKMAN:

Starting with, and I was watching TV, right here. Right
here.

Q Read that for me. Read it out loud so the jury can hear.

A And I was watching TV, he got on the- -

Q Couch.

A On the couch with me and he put his hand right here and
started rubbing it and then he woke up.

Q Okay. What you told Ms. Honor [was] that he was rubbing on
you and then he woke up. Is that what you told her? Is that
correct? That’s what you just read, right?

A Uh-huh. (Yes)

Q And that’s what we just heard on the tape, that he was
rubbing you and then he woke up.

A (Indicating an affirmative answer)[.]

Q So at what point did he go to sleep, [T.W.]?

A I don’t know.

Q You don’t know?

6

A No.

Q Okay. But he did wake up though, right?

A Yes.

Q Okay. And he woke up while he was on the couch with you?

A Yeah.

Q Okay. Did he do anything else to you while he was on the
couch?

A No.

Q Okay. So while he was sleeping and you say his hand was
on your private part, why didn’t you just get up?

A I tried to.

Q You tried to. But what happened? What happened?

A I don’t know.

Q Okay. You didn’t get up?

A No.

Q And he was asleep, right?

A (Indicating an affirmative answer)[.]

A second incident occurred in Defendant’s bed on April 16, 2012. T.W.

testified that Defendant went into her bedroom and told her to go to his room. At

that time, Defendant was just wearing his underwear. Once she was inside the

bedroom, Defendant told T.W. to take off her clothes, and she complied.

Defendant then told T.W. to get on top of him, and she did. T.W. testified that

Defendant then got on top of her, had her put her legs up, and started ―humping‖

her. T.W. further testified that Defendant’s private part was touching her private

part.

7

Defendant next told T.W. to roll over onto her stomach. According to T.W.,

Defendant then put his ―private part on my – in my bottom.‖ When asked if

Defendant touched her body with any other part of his body, T.W. testified that

Defendant licked her ―boobs,‖ her stomach, and her private part. T.W. further

testified that Defendant rubbed her private part with his hands and kissed her with

open lips. T.W. testified that Defendant stopped what he was doing because he

heard a car accident happen outside the home. T.W. indicated that Defendant went

outside to see if anyone was hurt, he called 911, and he subsequently returned to

tell her to get dressed for school. T.W. testified that she dressed herself and her

sister for school that morning, and they made it to school on time.

T.W. testified that another incident occurred in Defendant’s bedroom;

however, T.W. did not recall what happened. When asked if Defendant put his

private part ―on‖ her private part, T.W. agreed. She further agreed that Defendant

put his mouth on her private part. T.W. indicated that Defendant stopped what he

was doing when her mother came home and was trying to open the door to the

residence. T.W. said her mother got her keys mixed up. On re-direct examination,

T.W. agreed that she remembered things better at her visit to the advocacy center.

T.W. testified she was living in Texas when she told her mother what had

occurred. She said she told her mother that Defendant forced her to have sex with

him. T.W. testified she had not had any prior discussion with anyone about sex,

and she did not know where she had heard that word. T.W. knew her parents had

movies that depicted sex, and one of those movies had been left in the living room

or her mother’s bedroom.

T.W. identified State’s Exhibits 6 and 7 and indicated she circled body parts

on the drawings, and Honor wrote on them. State’s Exhibit 6 depicts a naked girl

8

with her vaginal area circled and labeled ―private part‖ and the buttocks circled and

labeled ―bottom.‖ State’s Exhibit 7 depicts a naked adult male with his genital

area circled and labeled ―private part.‖

T.W. identified herself on the video of her interview at the advocacy center.

During the interview, T.W. said that Defendant had to leave because he forced her

to have sex with him, and she spelled out the word sex instead of saying it. When

asked what sex was, T.W. said she did not know.

When asked what happened, T.W. discussed telling Defendant she and her

sister were hungry. She then said she was watching television when Defendant got

on the couch with her and put his hand on her private part and rubbed it. T.W.

stated that Defendant asked her if she wanted him to stop. T.W. also stated that

Defendant was asleep. She then stated that Defendant told her to go in her mom’s

room, but she told him she did not want to. Defendant then told her not to tell her

mother what had happened. T.W. said this occurred in the evening when her

mother was at work.

Upon further questioning, T.W. remembered asking Defendant for eggs,

bacon, and toast, and she and her sister were eating. She and Defendant then went

into his bedroom where Defendant told her to take her clothes off and had sex with

her. T.W. said the act hurt.

T.W. was again asked questions about what occurred when she was sitting

on the couch. She stated this occurred in the morning. She was on the couch, and

Defendant asked her to retrieve a cover. The two covered up, and Defendant put

his hand on her private and asked if she wanted him to stop. T.W. told him, ―yes,‖

and Defendant started kissing her on the lips, and his lips were open. Defendant

touched her private part with his hand on top of her clothes. T.W. said

9

Defendant’s hand remained still, and he was asleep. She said she did not know

what made Defendant stop. When Defendant woke up, he went outside to do

laundry. Once Defendant came back, it was night, and T.W.’s mother was still at

work. T.W. stated that Defendant did it again. When asked what Defendant did

again, T.W. stated that he told her to take her clothes off, and they went into his

room. T.W. said she lay down on the bed, and Defendant licked her breasts,

stomach, and private part. T.W. told Defendant to stop, but he would not.

Defendant wore a T-shirt and underwear then took his clothes off and told T.W. to

get on top of him. Defendant then started humping on her. T.W. described

―humping‖ as Defendant moving up and down. At that time, Defendant’s private

part was touching T.W.’s private part. T.W. identified the male genital as a private

part. When asked how she knew their private parts were touching, T.W. said she

did not know. T.W. said it hurt when Defendant was humping her because

Defendant put his private part on hers and then put his private part all the way in

her private part. During this incident, Defendant said, ―can you feel it baby.‖

Defendant stopped when he heard T.W.’s mother coming through the door. T.W.

said nothing came out of her or Defendant’s private parts.

T.W. was asked if, during the time she was in the room with Defendant,

Defendant’s private part touched any other part of her body. T.W. said it touched

her bottom. T.W. said Defendant told her to roll over onto her stomach, and

Defendant put his whole private part in her bottom, and it hurt. Defendant stopped

because he heard a wreck outside. T.W. said it had been raining that morning, and

her mother had gone to work earlier that day.

Dr. Brian Elkins testified that he examined T.W. on July 6, 2012. Dr. Elkins

found no abnormalities in the vaginal or anal areas, indicating the hymen had

10

smooth edges without evidence of any trauma. Dr. Elkins testified that his findings

would not indicate there had never been any sexual contact. Dr. Elkins testified

that the anus has a high rate of complete healing and can heal within a few days.

Dr. Elkins also testified that a great deal of healing in the vagina can occur within

seventy-two hours, and, after one month, the rate of abnormal findings after sexual

abuse was quite low. Dr. Elkins further testified that it would not be unusual for

there to be no evidence of a sexual offense that occurred earlier in the year.

Dr. Elkins agreed that penetration of the vaginal area could occur without

destroying the hymen.

Delores Jordan testified that she was involved in an automobile accident on

April 16, 2012, in which she hydroplaned and hit a telephone pole. Jordan testified

that before she got out of her car, Defendant came to assist her. Defendant then

called the police. Jordan testified that Defendant told her he saw her hydroplaning,

he knew that whoever was in the car was going to be killed, and he heard the bang

when the car hit the pole. Defendant was dressed in a shirt and pants at that time.

Jordan testified that Defendant was there immediately, and, by the time she opened

her car door, he was there to help her out of the car.

Defendant asserts that T.W.’s testimony was inconsistent, uncorroborated,

and did not prove beyond a reasonable doubt that the offenses occurred.

Defendant notes that T.W. testified the first incident of inappropriate touching

occurred on the couch while she was watching television, and her story changed as

to whether he was asleep or awake during that time. Defendant notes that T.W.

described an event that happened at night and ended when her mother came home

from work; however, Smith testified she worked from 6:00 a.m. to 2:00 p.m. and

did not recall working nights.

11

Regarding the incident allegedly interrupted by the car accident, Defendant

argues that he could not have been having sex with T.W., witnessed an accident,

got dressed, went outside to assist, called the police, and had T.W. get herself and

her sister dressed and ready for the bus by 7:20 a.m. Defendant also notes that

T.W. told Smith that Defendant forced her to have sex but said she did not know

what that word meant. Defendant further notes that Dr. Elkins found no evidence

of sexual abuse.

Defendant asserts that the trier of fact erred in finding T.W. to be a credible

witness. Defendant argues that the evidence does not justify the verdicts of

aggravated rape and aggravated incest; thus, his convictions for those offenses

should be reversed.

T.W. testified that prior to the wreck that interrupted Defendant’s actions,

Defendant’s private part touched her private part as he was ―humping‖ her, he

licked her private part, and he placed his private part in her bottom. In the

advocacy video, T.W. stated that, during this incident, Defendant put his private

part in her bottom.

During her testimony, T.W. agreed that prior to being interrupted by her

mother’s return home from work, Defendant put his private part on her private part

and licked her private part. In the advocacy video, T.W. stated that Defendant

licked her private part and put his private part in her private part. All of the acts

reported by T.W. occurred when she was under thirteen years of age.

The jurors were free to reject or accept, in whole, or in part, the testimony of

the victim. See State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160,

writ denied, 07-1129 (La. 12/14/07), 970 So.2d 529. Furthermore, the testimony

of the victim alone can support a verdict of guilty of a sexual offense even where

12

the State does not introduce medical, scientific, or physical evidence to prove the

commission of the offense. State v. Guillory, 12-936 (La.App. 3 Cir. 3/6/13), 129

So.3d 108.

Although there were inconsistencies between T.W.’s trial testimony and her

statements at the advocacy center, the jury chose to believe portions of T.W.’s

testimony, and this court should not second guess those credibility determinations.

See State v. Davis, 02-1043 (La. 6/27/03), 848 So.2d 557. The two verdicts of

guilty of aggravated rape are supported by T.W.’s testimony that she was seven

years old at the time of the offenses and that Defendant performed oral sex on her

on two occasions. For the reasons asserted herein, Defendant’s two convictions for

aggravated rape are affirmed.

Defendant was also convicted of three counts of aggravated incest. The

evidence clearly indicates T.W. was seven years old at the time of the offenses, and

Defendant was her grandfather. The State charged Defendant with aggravated

incest for having sexual intercourse with T.W.

The State was required to prove the allegations set forth in the indictment.

In State v. Daye, 12-1469 (La.App. 3 Cir. 6/5/13) (unpublished opinion), the

defendant was charged with several offenses, including one count of a transaction

involving proceeds from drug offenses, a violation of La.R.S. 40:1041. In the first

bill of information, the defendant was charged with violating La.R.S. 40:1041.

When the state amended the bill of information, it charged the defendant with

violating La.R.S. 40:1041(A). On appeal, the defendant asserted the evidence was

insufficient to support his conviction, as the state limited its charge to Subsection

(A) of La.R.S. 40:1041, as cited in the amended bill of information. The defendant

also alleged the state failed to object when the trial court instructed the jury on only

13

that subsection of the statute. This court discussed the issue in Daye, 12-1469, pp.

6-10, as follows:

In making his argument, Defendant attempts to distinguish this
court’s opinion in State v. V.L.G., 11-634, 2011 WL 6077831,
wherein this court found no merit to an insufficiency of the evidence
claim similar to the present Defendant’s claim. The defendant in
V.L.G. argued that the State limited itself to charging the defendant
with committing an aggravated rape wherein the victim was prevented
from resisting ―by threats of great and immediate bodily harm,
accompanied by apparent power of execution.‖ La.R.S. 14:42(2).
According to the defendant in V.L.G., the State did not conjunctively
charge the defendant in accordance with La.Code Crim.P. art. 480.
Instead, the State specifically charged that the victim’s lack of consent
was due to the defendant’s force. Additionally, the defendant in V.L.G.
argued that the jury instructions ―included three recitations relating to
force or threats of force.‖ V.L.G., WL 6077831, at *3. Claiming the
element of force was not proven beyond a reasonable doubt, the
defendant in V.L.G. asserted that the evidence was insufficient to
convict him of aggravated rape.

Although the court in V.L.G. agreed that the evidence was
insufficient to prove that the victim was prevented from resisting
V.L.G.’s acts by threats of great and immediate bodily harm
accompanied by apparent power of execution as alleged in the
indictment, this court found that the real issue was notice:

We agree there was insufficient evidence to prove
D.C. was prevented from resisting the Defendant’s acts
by threats of great and immediate bodily harm
accompanied by apparent power of execution as alleged
in the indictment. This court’s inquiry should not end
here. The actual issue in the case at bar is whether the
Defendant was adequately informed of the charges
against him.

The Defendant did not file a motion for bill of
particulars nor did he allege, pre-trial, that the indictment
did not provide adequate notice of the charges. The
indictment clearly indicated D.C. was under the age of
thirteen at the time the offense at issue were [sic]
committed, and the Defendant was fully informed of the
facts the State intended to show on the charges of
aggravated rape. Further, there was no objection to the
sufficiency of the indictment at trial.

Id. at p. 7 (citations omitted). Thus, the court found V.L.G.’s
insufficiency of the evidence assignment lacked merit.

14

Defendant in the present case argues that V.L.G. is
distinguishable because the indictment filed against V.L.G. indicated
in several places that the victim was under the age of thirteen, another
way in which the victim’s lack of consent could be proved under
La.R.S. 14:42; but, in the present case, Defendant argues that there is
nothing in the charging instrument to notify him that another
subsection of La.R.S. 40:1041 could be used. Defendant also attempts
to distinguish V.L.G. because in that case, the trial court instructed the
jury on four different ways aggravated rape could be committed,
including the victim’s age, but, in the present case, the trial court
instructed the jury as to subsection A only.

We find these attempts to distinguish V.L.G. without merit
because the prosecutors in both this case and in V.L.G. expanded the
charging instrument by making certain statements in both voir dire
and arguments to the jury. The prosecutor in V.L.G. informed
prospective jurors during voir dire that one of the aggravating factors
at issue was the fact that the victim was under the age of thirteen.
Also, during closing argument, the prosecutor asserted that it had
proven that the victim was under the age of thirteen when raped by
V.L.G. In the present case, the prosecutor stated the following during
voir dire:

Mr. Daye is also charged with proceeds involving
transactions from drug offenses. I have to prove to you
beyond a reasonable doubt that charge, that he possessed
money. And that that money that he possessed was the
proceeds from illegal drug transactions. On that same
date this gentleman possessed money and that the money
possessed was derived from drug transactions.

Also, during opening and closing argument, the State referred to the
money found on Defendant as ―drug proceeds‖ and ―proceeds from
illegal drug transactions.‖ This language tracks language used in
subsection D of La.R.S. 40:1041:

D. It is unlawful for any person to knowingly or
intentionally receive or acquire proceeds derived from
any violation of R.S. 40:966 et seq., or to knowingly or
intentionally engage in any transaction involving
proceeds from any such violations.

Considering Defendant’s failure to object to the State’s statement in
voir dire and argument, this court concludes that Defendant was put
on notice that the State was proceeding under subsection D.

The fourth circuit addressed a very similar issue in State v.
Williams, 02-260 (La.App. 4 Cir. 3/12/03), 842 So.2d 1143, writ

15

denied, 03-1991 (La.1/16/04), 864 So.2d 625, and writ denied, 06-
1583 (La.3/23/07), 951 So.2d 1096, and concluded that the real issue
was whether the defendant was notified of the charges against him
rather than what was set forth in the charging instrument. In Williams,
the bill of information charged Williams with second degree
kidnapping under subsection B(1) of La.R.S. 14:44.1. Although the
evidence was not sufficient to find Williams guilty of B(1), the fourth
circuit found that the evidence was sufficient to find Williams guilty
of another subsection of the second degree kidnapping statute—B(3).
Thus, the court was faced with deciding ―whether the defendant’s
conviction can be upheld based upon subsection B(3) even though the
subsection alleged in the bill of information was subsection B(1).‖ Id.
at 1147. Finding that Williams’ conviction could be upheld, the court
noted that Williams’ attorney was present at a motion to suppress
hearing held five months prior to trial, at which evidence to support
subsection B(3) was introduced. The court also noted that it was
―apparent that defense counsel had prepared his case based upon the
assumption that the defendant had been charged under subsection
B(3), not B(1) as alleged in the bill of information.‖ Id. at 1148.
Williams’ defense counsel actually moved for a directed verdict at the
conclusion of the case, arguing that he had arrived that morning under
the belief that the State was proceeding under B(3) only to realize at
some point that the bill of information charged Williams under B(1).
Thus, the fourth circuit concluded that ―this is not a case where
counsel had been misled as to what evidence the State was planning to
present and was unprepared to meet the allegations in the bill of
information.‖ Id.

This court finds that the State’s assertions to the jury during
voir dire and arguments were sufficient to put Defendant on notice
that it was proceeding under a different subsection, namely subsection
D. As set forth above, subsection D of La.R.S. 40:1041 provides in
pertinent part:

It is unlawful for any person to knowingly or
intentionally receive or acquire proceeds derived from
any violation of R.S. 40:966 et seq., or to knowingly or
intentionally engage in any transaction involving
proceeds from any such violations.

Under this subsection, the State was simply required to prove that
Defendant knowingly and intentionally received proceeds derived
from a violation of La.R.S. 40:966-971.

In its opening statement and closing arguments in the case at bar, the State

noted that Defendant was charged with three counts of aggravated incest. In its

closing statement, the State set forth how it proved the elements of aggravated rape.

16

The State then asserted the following: ―The second time he has her to come into

his bed where he vaginally, orally and anally rapes her. The third time is when

vaginal rape happens again and oral rape. . . .‖ The State continued:

No, it’s two times that she talks about rape allegations. Within those
rape allegations she talks about the multiple ways that’s performed on
her. So that if you believe her that he orally put his mouth on her,
which she said happened twice, you have aggravated rape. If you
believe her when she tells you in these two separate occasions that he
vaginally penetrated her, you have other counts of aggravated rape.
And if you believe her that she was sodomized, that is another count
of aggravated rape. . . . You know it’s her grandfather, that’s a given,
so that’s not in dispute.

The State never specifically asserted how it proved that Defendant

committed aggravated incest. The State asserts that three counts of aggravated

incest were proven. The State then asserts that the crime of incest is divided into

two categories, crimes involving consanguinity and those involving affinity. The

State further asserts: ―[Tiffany Smith] testified appellant is her father, and thus the

grandfather of T.W. The jury correctly found Appellant guilty.‖

The case at bar is distinguishable from Daye and V.L.G. in that voir dire is

not a part of the record, and there was no specific reference to what constituted

proof of aggravated incest in the State’s arguments to the jury. The case at bar is

also distinguishable from Williams in that there were no pretrial motions filed by

defense counsel.

The trial court instructed the jury that it could find Defendant guilty of

aggravated incest if he committed a prohibited act, which included:

Sexual intercourse, sexual battery, second degree sexual battery,
carnal knowledge of a juvenile, indecent behavior with a juvenile,
pornography involving juveniles, molestation of a juvenile or a person
with a physical or mental disability, crime against nature, cruelty to
the juveniles, parent enticing a child into prostitution, or any other
involvement of a child in sexual activity constituting a crime under
the laws of this state; any lewd fondling or touching of the person of

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either the child or the offender, done or submitted to with the intent to
arouse or to satisfy the sexual desires of either the child, the offender,
or both.

There was no objection by defense counsel when this portion of the jury

instructions was read.

In State v. Glynn, 94-332 (La.App. 1 Cir. 4/7/95), 653 So.2d 1288, writ

denied, 95-1153 (La. 10/6/95), 661 So.2d 464, the defendant was charged with

aggravated rape, a violation of La.R.S. 14:42(A)(3). The defendant was convicted

and, on appeal, argued the trial court erred in charging the jury as to three potential

aggravating circumstances when the indictment listed only one aggravating

circumstance. The first circuit found:

The evidence introduced at the trial was sufficient to support an
aggravated rape conviction under Subsections 1, 2, or 3. Ordinarily,
the evidence should be limited to the particular theory under which
the defendant is being prosecuted, in this case LSA-R.S. 14:42 A(3).
However, any portion of the victim’s testimony which would have
supported an aggravated rape conviction under subsections 1 or 2 was
nevertheless admissible as part of the res gestae. In any event,
regardless of the res gestae evidence which might have supported a
jury charge under subsections 1 or 2, we find that the trial court erred
in charging the jury on subsections 1 and 2. The state specifically
limited its theory of the prosecution by listing in the indictment
subsection 3 exclusively. Yet, we reject the defendant’s assertions
that he was prejudiced or denied a fair and impartial trial by the trial
court’s erroneous inclusion of subsections 1 and 2 in its charge to the
jury on aggravated rape. In light of the overwhelming evidence of the
defendant’s guilt, and considering the fact that the defendant received
open file discovery in this case, we find that this erroneous jury
charge was harmless beyond a reasonable doubt. La.C.Cr.P. art. 921.

Glynn, 653 So.2d at 1309-10 (emphasis added).

Based on the language used in Glynn, the jury instructions in the case at bar

would not be sufficient to put Defendant on notice that the State would prove he

committed aggravated incest by any means other than having sexual intercourse

with T.W., as the State limited its theory of proving the offense of aggravated

18

incest by listing only sexual intercourse in the bill of information. Thus, the State

was required to prove Defendant committed aggravated incest by having sexual

intercourse with T.W.

Defendant had vaginal intercourse with T.W. during the incident interrupted

by her mother and had anal intercourse with T.W. during the incident interrupted

by the wreck. These acts support the jury’s verdicts on two of the three counts of

aggravated incest.

There was testimony that Defendant’s private part was touching T.W.’s

private part when he was ―humping‖ her during the same incident that he had anal

sexual intercourse with her, which was interrupted by the wreck. Two charges

may arise from the same criminal episode. In State v. Nichols, 337 So.2d 1074,

1078 (La.1976), the supreme court stated: ―We have consistently rejected the

contention that an accused who commits separate and distinct offenses during the

same criminal episode or transaction may not be prosecuted and convicted for each

offense.‖ Accordingly, Defendant could be prosecuted for anal sexual intercourse

and touching T.W.’s private part with his private part.

In State v. Hawkins, 06-739 (La.App. 5 Cir. 9/25/07), 968 So.2d 1082, writ

denied, 07-2272 (La. 4/18/08), 978 So.2d 347, the fifth circuit found the evidence

was sufficient to establish penile penetration when the victim described the

defendant massaging his penis against her vaginal area, and, when asked if the

defendant glided his penis through her vagina, she responded affirmatively. She

then agreed that she felt the defendant go ―underneath or in [her] vagina in the

slightest.‖ Id. at 1089.

In State v. Gaddis, 07-395 (La.App. 5 Cir. 11/13/07), 973 So.2d 21, writ

denied, 08-156 (La. 10/10/08), 993 So.2d 1277, the defendant was convicted of

19

two counts of aggravated rape. After finding the defendant had oral sexual

intercourse with both victims, the fifth circuit stated:

While the children were not as explicit in their testimony as to
whether or not Gaddis had vaginal or anal intercourse with them, it
appears that all of the evidence, including their interviews, their
testimony, and Dr. Benton’s testimony and notes indicate that Gaddis
also committed aggravated rape on both children by anal and/or
vaginal sexual intercourse. In particular, although M testified at trial
that she was not sure whether the defendant’s penis went inside of her
―private part,‖ she testified the defendant touched her in her ―private
part‖ with his ―thing,‖ which would make her stomach hurt. She
explained that the defendant made ―hard breathing‖ sounds. In her
interview with Ms. Gordon, she explained that the defendant’s ―wee-
wee‖ touched where she went ―potty.‖

Although K testified she was not certain whether Gaddis’ penis
went inside her when he made her ―rock back and forth‖ on his
exposed ―private part‖ while she was not wearing pants, she answered
affirmatively when asked at trial whether it hurt her ―butt.‖ K also
testified that the defendant made her sit on him from the front and
from the back on more than one occasion. She testified she also saw
the defendant put M on his lap and rock her back and forth. In fact,
during her interview with Ms. Gordon, K detailed a particular
occasion in which Gaddis pushed her to the side and told her ―let me
and [M] get our freak on.‖

Id. at 26-27.

The case at bar is distinguishable from both Hawkins and Gaddis in that

there was no testimony regarding penetration of T.W.’s private part by Defendant’s

private part during the ―humping‖ incident that occurred during the episode in

which Defendant had anal sexual intercourse with T.W. Accordingly, the State

failed to prove penetration, however slight, and the evidence was not sufficient to

support the jury’s verdict for the third count of aggravated incest.

[U]nder State v. Byrd, 385 So.2d 248 (La.1980), and La.Code Crim.
Proc. art. 821(E), discharge of the defendant is neither necessary nor
proper when the evidence presented at trial does not support the
verdict returned but does support a responsive verdict or lesser
included grade of the offense. [State v.] Bright[, 98-398,] at p. 15, [(La.
4/11/00),] 776 So.2d [1134] at 1144; State v. Hart, 96-0697, pp. 16-17
(La.3/7/97), 691 So.2d 651, 661-62.

20

State v. Higgins, 03-1980, p. 18 (La. 4/1/05), 898 So.2d 1219, 1232, cert. denied,

05-5104 (2005), 546 U.S. 883, 126 S.Ct. 182.

Attempted aggravated incest is a responsive verdict to the charge of

aggravated incest. La.Code Crim.P. art. 815. A person is guilty of an attempt to

commit an offense when he ―does or omits an act for the purpose of and tending

directly toward the accomplishing of his object‖ and he has the specific intent to

commit the crime. La.R.S. 14:27(A). ―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.‖

La.R.S. 14:10(1). ―Specific intent may be inferred from the circumstances

surrounding the offense and the conduct of the defendant.‖ State v. Jones, 10-762,

p. 6 (La. 9/7/11), 74 So.3d 197, 201. Based on the indictment, the evidence must

prove beyond a reasonable doubt that Defendant specifically intended to have

sexual intercourse with T.W. See State v. Marrero, 11-1285 (La.App. 1 Cir.

2/10/12), 92 So.3d 21, writ denied, 12-563 (La. 6/15/12), 90 So.3d 1060.

In State v. Robinson, 610 So.2d 1041 (La.App. 3 Cir. 1992), the victim

testified that she and her father, the defendant, were alone in the house. The first

incident occurred in the bedroom of the home of the defendant’s girlfriend. The

victim testified that her father asked her to remove her clothing while he did the

same. As she lay on the bed, he stood in front of her and put his penis in her

―tutu.‖ Id. at 1042. The second incident occurred in the living room of the same

home. On that occasion, both the victim and her father were completely nude and

she was laying on top of him watching television. The defendant denied that the

two incidents ever occurred. Because the trial court found statements about

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whether penetration occurred inconclusive, it found the defendant guilty of

attempted aggravated rape.

On appeal, the defendant argued the evidence was insufficient to support his

conviction. In reviewing the sufficiency of the evidence, this court stated:

Although the trial court could not conclusively determine penetration
occurred, the young victim stated that on one occasion her father put
his penis in her ―tutu‖ and that he put his ―wrong place‖ in her ―wrong
place‖. Even though the trial court found that there was not enough
evidence for penetration; we feel that defendant’s actions constitute an
―act in furtherance of‖ penetration. The defendant’s ―instantaneous‖
specific intent is a state of mind and need not be proven as fact but
may be inferred from the circumstances and actions of the defendant.
State v. Boyer, 406 So.2d 143 (La.1981); State v. Maxey, supra [527
So.2d 551 (La.App. 3 Cir. 1988), writ denied, 541 So.2d 868
(La.1989)]. Thus, defendant’s contention and that he did not have
specific intent must fail. When the evidence is considered in the light
most favorable to the prosecution, any rational trier of fact could have
concluded beyond a reasonable doubt that the defendant had the
specific intent and committed an act in furtherance thereof. Therefore,
we feel the state proved all of the elements of the crime of attempted
aggravated rape beyond a reasonable doubt.

Id. at 1045.

Accordingly, we find that the evidence in the present case supports the

imposition of a verdict of guilty of attempted aggravated incest, as Defendant’s

acts of having T.W. take her clothes off and lie on the bed and Defendant then

placing his private part on her private part while ―humping‖ her constituted an act

in furtherance of penetration.

Defendant’s conviction and sentence for the third count of aggravated incest

is reversed, and we find Defendant guilty of attempted aggravated incest. This

matter is remanded to the trial court for sentencing on the modified judgment of

attempted aggravated incest.

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DECREE

For the reasons provided above, Defendant’s two convictions for aggravated

rape and two of his convictions for aggravated incest are affirmed. However, the

remaining conviction and sentence for aggravated incest is vacated, a judgment of

guilty of attempted aggravated incest is entered, and the matter is remanded to the

trial court for sentencing on that conviction. We further instruct the trial court to

amend the sentences imposed to reflect that all are to be served at hard labor and to

make a notation in the minutes to reflect this amendment.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

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