State of Louisiana v. Marcus Guillory

NOT FOR PUBLICATION
STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-637

STATE OF LOUISIANA

VERSUS

MARCUS GUILLORY

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 169927
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett and Shannon J.
Gremillion, Judges.

CONVICTION AFFIRMED; REMANDED.

Michael F. Kelly, Assistant District Attorney
P.O. Box 528
209 North Main Street
Marksville, LA 71351
(318) 253-5815
COUNSEL FOR APPELLEE:
State of Louisiana

Josephine P. Heller
8075 Jefferson Highway
Baton Rouge, LA 70809
(225) 383-9703
COUNSEL FOR DEFENDANT/APPELLANT:
Marcus Guillory

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

It was alleged by the State that in 2005 and 2006, Defendant, Marcus

Guillory, sexually abused his girlfriend’s seven or eight year old daughter, K.L, by

touching her body under her clothing and inserting his finger into her vagina. K.L.

alleged Defendant molested her on several occasions, and although she told her

mother about the molestation, nothing was done. The child was eventually

removed from her mother’s care due to neglect. K.L. explained her delay in

reporting the acts, noting her mother did not believe her so she was reticent to tell

anyone else.

Defendant was indicted on October 18, 2012, for molestation of a juvenile, a

violation of La.R.S. 14:81.2. On August 22, 2013, the State filed “Notice of

Intention of Introducing Evidence of Other Crimes, Wrongs or Acts.” A hearing

was held on August 22, 2013, following which the trial court determined the

evidence of other crimes, wrongs, or acts was admissible at trial. A jury trial

occurred. K.L. testified as to the alleged molestation, and her testimony was

deemed credible by a doctor who examined K.L. A unanimous jury found

Defendant to be guilty as charged. Defendant filed a “Motion for New Trial,”

which was denied following a hearing.

Defendant was sentenced on March 18, 2014 as a habitual offender.1 On

this date, he was sentenced to one hundred ten years with the first twenty-five

years to be served without the benefit of parole, probation, or suspension of

sentence.

Defendant has perfected a timely appeal, wherein he alleges four

assignments of error: 1) The district court erred in allowing the admission of
1
On November 7, 2013, the State filed a bill of information charging Defendant as a third
felony offender pursuant to La.R.S. 15:529.1, under lower court docket number 176,814.
Defendant’s adjudication as a third felony offender and sentence is currently before this court
under docket number 14-638.

evidence of prior bad acts; 2) The evidence was insufficient to support the

conviction of molestation of a juvenile; 3) The district erred in failing to articulate

any factors in formulating its sentence; and 4) The district court erred in denying

Defendant’s Motion to Proceed in Forma Pauperis on Appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends the trial court erred

when it allowed inadmissible evidence of prior sexually assaultive behavior to be

presented to the jury. The State sought to admit the testimony of three witnesses,

two of whom alleged that Defendant sexually assaulted them, and one who alleged

she witnessed sexually assaultive behavior by Defendant. Following testimony

and argument, the trial court ruled that the testimony was admissible.

Louisiana Code of Evidence Article 412.2 provides:

A. 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
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 balance test provided in Article 403.

Louisiana Code of Evidence Article 403 provides:

Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, or waste of time.

Defendant argues, however, that “[t]he issue here is not whether the prior

acts were sufficiently similar. Rather, the issue is whether the evidence established

that the prior acts occurred at all.”

At the hearing, two witnesses testified regarding Defendant’s abusive

behavior. Monica Buhler was the first witness to testify. She was a former

girlfriend of Defendant. She testified she met Defendant in 2000, and he moved in

with her and her four-year-old daughter. They were together until 2004, when she

discovered him one night masturbating over her daughter’s eight-year-old friend

who was sleeping. She said that the two girls had earlier gone to bed together. At

about 2:30 a.m., she awoke to find Defendant absent from their bed. When she

walked out into the living room, which was lit because the television was on, she

saw Defendant kneeling upright on the couch, masturbating over the sleeping girl.

She stated that in the morning she called the girl’s father and together they went to

the police. Although the police investigated the incident, Defendant was not

charged.

Ms. Buhler further testified that at the time of the incident she questioned

her daughter, K.M., extensively, as to whether Defendant ever exhibited sexual

behavior towards her, but K.M. denied any such activity. However, she explained

that after she told her husband and daughter, she was contacted by the State and

asked to testify at trial, K.M., who was seventeen at the time, began crying and told

her that Defendant had sexually abused her.

K.M. testified Defendant moved into the house when she was four. She said

he would force her to do oral sex with him and put objects, including his fingers, in

her vagina. She stated he would often come into her bedroom at night and “do

things” to her and that he would take her out to the shed behind the house and force

her to masturbate him. She said that he threatened to kill her and her mother if she

ever told. At the time of the incident with her friend, even after her mother forced

him out of the house that night, she was still afraid, so when asked at the police

station whether he ever abused her, she said he had not.

At the hearing, Defendant argued the testimony was not admissible because

there was never an arrest or conviction concerning these allegations. However, the

trial court, referring to La.Code Evid. art. 412.2, stated that an arrest or conviction

was not necessary to utilize the provision since the statute states “evidence of the

accused’s commission of another crime, wrong, or act involving sexually

assaultive behavior or acts which indicate a lustful disposition toward children

may be admissible[.]” (emphasis added.)

As noted above, Defendant argues the State did not “establish by a

preponderance of the evidence that these prior acts occurred. Thus any evidence of

these prior acts was inadmissible.” We disagree.

In State v. Johnson, 43,843, pp. 15-16 (La.App. 2 Cir. 1/28/09), 2 So.3d 606,

615-16, writ denied, 09-464 (La. 11/6/09), 21 So.3d 300, the second circuit

addressed the issue of whether an unadjudicated act was admissible pursuant to

La.Code Evid. art. 412.2 and what standard of proof applied, as follows:

In the present case, the prior conviction showed that the
defendant had engaged in sexual relations with a minor, R.A., in the
past. The unadjudicated acts showed that the defendant had previously
engaged in other sexual activity with R.A. when she was a young girl
living in the defendant's household. In fact, R.A.’s age at the time of
the unadjudicated acts was similar to that of the victim in the present
offense. The trial court properly found that the prior conviction and
the unadjudicated acts were admissible because they demonstrated
that the defendant had a lustful disposition toward children. See and
compare State v. Caston, supra; State v. Humphries, 40,810 (La.App.
2d Cir.4/12/06), 927 So.2d 650, writ denied, 2006-1472
(La.12/15/06), 944 So.2d 1284.

The record shows that the trial court applied the balancing test
required under La. C.E. art. 403 whereby the probative nature of such
evidence is weighed against the prejudicial effect. In allowing the
prior conviction to be used at trial, the lower court stated that it had
previously considered the balancing test of La. C.E. art. 403 and
found that the prior conviction was admissible, with certain
limitations. Prior to R.A.’s testimony, the trial court gave the jury a
limiting instruction that the evidence that the defendant was involved
in the commission of an offense other than the offense for which he
was on trial was to be considered only for the limited purpose of
showing that the defendant had a lustful disposition “to commit the
crime charged.”

In connection with R.A.’s testimony regarding the
unadjudicated offenses, the trial court specifically found that it was
relevant to show the defendant's lustful disposition toward children,
particularly given R.A.’s young age when the acts occurred. The trial
court recognized that there would be some prejudicial effect from the
admission of this testimony, but found that the testimony was
admissible with a limiting instruction. . . .

The defendant also objects that the prior unadjudicated offenses
testified to by R.A. were not proven by clear and convincing evidence
as required by State v. Davis, 449 So.2d 466 (La.1984), and State v.
Mills, 2000-2525 (La.App. 4th Cir.12/27/01), 806 So.2d 59, writ
denied, 2002-0278 (La.10/25/02), 827 So.2d 1171. To the contrary,
R.A.’s testimony provided a sufficient degree of specificity to
establish that the offenses were in fact committed.

We do note that in the instant case, no limiting instruction was given by the

trial court to the jury regarding the purpose of the “bad acts” witnesses’

testimonies. Louisiana Code of Evidence Article 105 provides:

When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose
is admitted, the court upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly. Failure to restrict the
evidence and instruct the jury shall not constitute error absent a
request to do so.

However, a review of the record shows that Defendant did not request a limiting

instruction be given to the jury.

Furthermore, while the trial court did not explicitly discuss it, the trial court

noted several times during its ruling that when it makes a decision to admit or

reject other acts evidence, it gives considerable consideration to whether the

probative value of the evidence was substantially outweighed by the danger of

unfair prejudice. La.Code Evid. art. 403. The trial court noted that the evidence

was indeed prejudicial, but considering the legislative attitude as reflected in the

enactment of La.Code Evid. art. 412.2, to help prevent the sexual abuse of young

children, the probative value outweighed the prejudicial effect of the evidence.

Therefore, we find no error on the part of the trial court in its determination

that the testimonies of the two witnesses were relevant and admissible at trial.

ASSIGNMENT OF ERROR NUMBER TWO

Next, Defendant argue the evidence was insufficient to convict him of the

crime of molestation of a juvenile. The extent of Defendant’s argument in brief is

that the State failed to present any physical evidence establishing molestation and

that the jury based its decision to convict him solely on the “erroneous admission

of prior bad acts[.]”

The analysis for a claim of insufficient evidence is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Molestation of a juvenile is defined in La.R.S. 14:81.2(A), which states:

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.

Defendant argues the jury convicted him based solely on the “erroneous

admission of prior bad act.” However, Defendant fails to note the fact the victim in

this case testified.

K.L. testified when she was seven years old, Defendant and her mother

began living together. She described how when her mother was asleep or absent

from the home, he would go into her bedroom, rub her all over her body, and put

his fingers into her vagina. She said it happened three or four times over a year.

She stated one time he tried to get her to touch his penis, but was interrupted by her

mother arriving home. K.L. said that when she told her mother of Defendant’s

behavior, her mother said she would handle it, but nothing changed.

K.L. testified that when she was nine years old, she and her siblings were

removed from the home because of neglect. After being placed with her paternal

grandparents, K.L. eventually told of Defendant’s sexual molestation against her.

K.L. explained that she waited to tell because she was embarrassed and did not

think anyone would believe since her mother appeared not to believe her.

“The testimony of a single witness is sufficient to support a verdict absent

internal contradiction or irreconcilable conflict with the physical evidence, and any

credibility determination made by the trier of fact is normally not within the

purview of the reviewing court.” State v. C.S., 10-507, p. 3 (La.App. 3 Cir.

11/17/10), 50 So.3d 983, 985 (citing State v. Schexnaider, 03-144 (La.App. 3 Cir.

6/4/03), 852 So.2d 450). Furthermore, the testimony of the victim alone is

sufficient to prove the elements of the offense even in the absence of medical,

scientific, or physical evidence. State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05),

904 So.2d 816, writ denied, 05-2591 (La. 5/26/06), 930 So.2d 20.

In the current case, Defendant does not point to any internal contradiction or

irreconcilable conflict concerning the victim’s testimony that would support his

argument. There is nothing in the record that would establish the jury’s verdict was

based on insufficient evidence.

While Defendant argues that the testimony regarding prior “bad acts” was so

prejudicial the jury convicted him of the charged offense without sufficient

evidence, as stated above, the other “bad acts” were properly admitted for the

jury’s consideration.

ASSIGNMENT OF ERROR NUMBER FOUR

At sentencing, on March 18, 2013, Defendant requested and was granted

appointed counsel. On May 9, 2013, current defense counsel filed a “Motion to

Enroll as Counsel of Record” and then filed a “Motion to Designate Record.” On

May 21, 2013, approximately two months after he was sentenced, Defendant filed

a “Motion and Order to Proceed in Forma Pauperis On Appeal,” which was denied

because he had retained counsel. New counsel, who had been appointed by the

trial court and assigned by the Louisiana Appellate Project, filed a “Motion to

Withdraw as Counsel of Record” on May 27, 2013. The motion was granted on the

same date. In this assignment, Defendant argues the trial court erred when it

denied his motion to proceed in forma pauperis and to receive appointed counsel.

Defendant cites State v. Abdullah, 98-216, p. 5 (La.App. 3 Cir. 10/12/98),

722 So.2d 23, 26, as follows:

Addressing whether the presence of retained counsel
automatically bars a later request by an indigent defendant for state
funded auxiliary services, the Louisiana Supreme Court in State v.
Jones, 97-2593 (La.3/4/98); 707 So.2d 975, stated:

“[W]e find that the retention of private counsel from a
collateral source at no cost to defendant does not rob the
defendant of his right to a fair trial and thus defendant
may be entitled to State funding for auxiliary services.
The presence of retained counsel, be this from a
collateral source or pro bono, should not work a hardship
against an indigent accused who otherwise would be
entitled to State funded auxiliary services. The
determinative question is the defendant’s indigency, not
whether he has derived any assistance from collateral
sources.” (Emphasis added).

In Abdullah, this court went on to state:

Defendant has a constitutional right to seek appellate review of his
conviction and sentence. Whether defendant’s counsel was retained
or failed to secure adequate funds from a collateral source to pay his
fee or appeal costs is not determinative here. The threshold question
is this defendant’s indigency.

Id.

In brief, the State “concedes that State v. Abdullah, 98-216 (La. App. 3 Cir.

10/12/98), 722 So.2d 23, is controlling. Since this case will be remanded for re-

sentencing as found in docket number 14-638, which involved an appeal

concerning Defendant’s adjudication as a third felony offender and sentence, the

State does not object to a hearing to determine Appellant’s right to proceed on

appeal in forma pauperis.” As we are affirming Defendant’s conviction, but

vacating his sentence as discussed in Guillory, 14-638, we will remand the issue of

whether Defendant is entitled to be appointed appellate counsel for the purpose of

appealing the newly imposed sentence should he so choose.

Due to the fact we are vacating Defendant’s sentence in Guillory, 14-638,

we need not address Defendant’s assignment of error contending the trial court

failed to articulate for the record any of the factors as required by La.Code Crim.P.

art. 894.1.

DECREE

For the foregoing reasons, Defendant’s conviction of molestation of a

juvenile is affirmed. On remand, the trial court is to address the issue of whether

Defendant is entitled to be appointed appellate counsel for the purpose of

appealing any the newly imposed sentence should he so choose.

CONVICTION AFFIRMED; REMANDED.

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