State of Louisiana v. Jonathan Jacito Frank

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-969

STATE OF LOUISIANA

VERSUS

JONATHAN JACITO FRANK

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 30367-09
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
Counsel For Defendant/Appellant:
Jonathan Jacito Frank

KEATY, Judge.

Defendant, Jonathan Jacito Frank, appeals his conviction and sentence for

aggravated rape. For the following reasons, we affirm.

PROCEDURAL BACKGROUND

At approximately 2:00 a.m. on September 10, 1994, the victim, A.W., 1 was

sleeping at her apartment when she awoke to a knife pressing against her neck. As

she attempted to fight the perpetrator, he struck her face and eye and fractured her

nose. He also cut her hand as she tried to push him away. Despite her efforts, he

forced the victim to have sex with him. After he left her apartment, the victim

reported the rape to the police.

Defendant, Jonathan Jacito Frank, was subsequently indicted on

September 17, 2009, for aggravated rape, a violation of La.R.S. 14:42. At trial,

A.W. could not positively identify Defendant as the rapist although she described

the rapist as a dark-skinned, black male. On May 15, 2014, following a jury trial,

he was convicted as charged. Defendant then filed a motion for a new trial which

was subsequently denied at a May 22, 2014 hearing. The trial court thereafter

sentenced Defendant to life imprisonment without the possibility of parole,

probation, or suspension of sentence.

Defendant appeals his conviction, assigning the following two errors:

(1) When viewed under the standard enunciated in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), the evidence in
the instant case was insufficient to prove all of the elements
required for aggravated rape; and

(2) The trial court erred in denying Defendant’s motion for a new
trial.

1
Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity as
she was a minor at the time of the offense.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that

there is one error patent.

Louisiana Code of Criminal Procedure Article 831 provides in pertinent part:

A. Except as may be provided by local rules of court in
accordance with Articles 522 and 551, a defendant charged with a
felony shall be present:

....

(5) In trials by jury, at all proceedings when the jury is present,
and in trials without a jury, at all times when evidence is being
adduced[.]

In this case, the record shows that the jury viewed the State’s exhibits

without Defendant being present. As a result, defense counsel objected and moved

for a mistrial, arguing that Defendant was prejudiced. Defendant’s counsel alleged

that since Defendant re-entered the courtroom from the back and in the presence of

the jury, he could be prejudiced if the jury realized that he was incarcerated.

Defense counsel stated that they did their best to minimize any prejudice by

walking Defendant into the courtroom ahead of uniformed security.

The trial court denied the mistrial based in part on the bailiff’s testimony at

the hearing that Defendant never re-entered the courtroom in front of the jury. The

trial court further stated:

I don’t see any prejudice whatsoever. The jury has had an opportunity
to see how we’ve conducted ourselves throughout this proceeding and
we’ve made a particular effort not to have them be made aware that
your client was incarcerated. He walked out of the courtroom on
several occasions when we interviewed jurors, assisted by you, and in
my explanation to them I explained that he was outside visiting with
his attorney.

2

In State v. Medious, 98-419, p. 5 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086,

1089-90, writ denied, 98-3201 (La. 4/23/99), 742 So.2d 876, the defendant argued

that the trial court violated La.Code Crim.P. art. 831(4) when it determined, “out of

the presence of the defendant and his attorney, that the jury, which had already

retired to deliberate, could view State Exhibit nos. 4 and 5[.]” The fifth circuit

noted that the defendant and his counsel were “present during all rulings

concerning the admissibility of the state’s evidence.” Id. at 1090. It further noted

that “the defendant’s trial attorney verbally stated that the defense had no

objections with regards to the admission of any of the state’s eight exhibits into

evidence.” Id. The fifth circuit stated:

In State v. Overton, 337 So.2d 1058, 1066 (La.1976) on
rehearing, the Supreme Court discussed whether LSA-C.Cr.P. art. 831
required the presence of a defendant and his attorney when a trial
judge ruled on whether a deliberating jury would be allowed to view
two photographs that the state had entered into evidence, and stated as
follows:

. . . If the trial judge in Louisiana communicates with the
jury, he should do so in open court. The defendant and
his attorney should be present. Even when the request is
[a] simple request to review documents in evidence, that
request should not be granted in the absence of defendant
and counsel.

However, the court went on to explain that because there was no
violation of a specific statute, nor of a constitutional right, the
appropriate inquiry was whether the defendant had suffered any
prejudice. Id.

Id. (alteration in original).

The Medious court held that the defendant failed to complain or show that he

was prejudiced when the trial court ruled in the absence of him and his attorney

regarding the jury’s request to view two state exhibits. Id. Accordingly, the fifth

circuit found that the trial court was without error. Id.

3

Just like in Medious, Defendant and his attorney in the instant case were

present when the exhibits were admitted into evidence, and Defendant failed to

allege or prove that he was prejudiced. The record also fails to support

Defendant’s allegation that the jury saw him enter the courtroom from the rear,

implicating that he was incarcerated at the time of trial. Therefore, we find that

this error is harmless.

II. First Assignment of Error

In his first assignment of error, Defendant argues that the evidence was

insufficient to prove all of the elements required for aggravated rape. He alleges

that since the State’s case relied mostly upon circumstantial evidence, as there was

no eyewitness identification, the State was required to negate any reasonable

probability of misidentification which it failed to do. He further argues that the

State failed to exclude every reasonable hypothesis of innocence.

Louisiana Revised Statutes 14:42 provides that:

A. Aggravated rape is a rape committed upon a person sixty-
five years of age or older or 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:

(1) When the victim resists the act to the utmost, but whose
resistance is overcome by force.

....

(3) When the victim is prevented from resisting the act because
the offender is armed with a dangerous weapon.

In State v. Miller, 98-1873, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 118,

120, writ denied, 99-3259 (La. 5/5/00), 761 So.2d 541, this court noted that the

applicable standard of review utilized regarding an insufficiency of evidence claim

as follows:

4

[A]fter 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 (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).
The role of the factfinder is to weigh the respective credibility of each
witness. Therefore, the appellate court should not second guess the
credibility determinations of the factfinder 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 State v. Ortiz, 96-1609, p. 12 (La. 10/21/97), 701 So.2d 922, 930, cert.

denied, 524 U.S. 943, 118 S.Ct. 2352 (1998), the Louisiana Supreme Court stated:

When circumstantial evidence is used to prove the commission of the
offense, La. R.S. 15:438 requires that “assuming every fact to be
proved that the evidence tends to prove, in order to convict, it must
exclude every reasonable hypothesis of innocence.” This is not a
separate test to be applied when circumstantial evidence forms the
basis of a conviction; all evidence, both direct and circumstantial,
must be sufficient to satisfy a rational juror that the defendant is guilty
beyond a reasonable doubt. State v. Porretto, 468 So.2d 1142
(La.1985).

In the present case, the record shows that physical evidence rather than

circumstantial evidence was placed before the jury. This is supported by the trial

court testimony of LeAnne Suchanek, who qualified as an expert in DNA analysis.

She testified that, with a 99.9 percent degree of scientific certainty, Defendant was

the source of the DNA found in the sperm swabbed from A.W.’s vagina.

Suchanek testified that “the match statistic for this case was approximately 1 in

184 trillion[,]” unless, of course, Defendant had an identical twin. In support of his

argument that the State failed to negate the likelihood of misidentification,

Defendant argues that there was no evidence introduced regarding whether

Defendant had an identical twin. We find that there is nothing in the record,

however, indicating the existence of an identical twin.

5

Defendant argues that certain facts in the instant case support a finding of

insufficient evidence. Specifically, Defendant contends that no additional testing

was performed on the subject samples despite advances in DNA analysis. Our

review of Suchanek’s testimony indicates that she agreed that the last testing of

Defendant’s and the victim’s DNA was in August 2009. She further testified that

DNA analysis is a rapidly evolving science. There is nothing in the record or

Defendant’s brief, however, indicating that he has contested the validity of the

DNA test results implicating him in the rape.

Defendant contends that Suchanek testified to an unusual finding in the

DNA testing. Our review of her testimony indicates that Suchanek revealed that

her unusual finding was nothing more than something with the print dye noted by

the software and flagged. She further testified that her supervisor checked her

DNA analysis results.

Defendant contends that Suchanek testified that notwithstanding a DNA

match, other people could be tested. Despite her testimony, Defendant alleges that

none of his relatives were tested. Our review of Suchanek’s testimony shows that

she agreed that none of Defendant’s relatives were tested. Nevertheless, she had

previously testified that Defendant’s DNA matched the DNA found on the victim

to a scientific certainty. Suchanek testified that unless Defendant had an identical

twin, the match statistic was approximately 1 in 184 trillion.

Finally, Defendant alleges that Suchanek testified that she was unable to

guarantee a sample mix-up. Based upon our review of her testimony, Defendant

mischaracterizes Suchanek’s statement. Specifically, Suchanek testified that in

2009, she obtained the victim’s DNA sample in order to ensure that a mix-up of

the DNA samples taken from the victim after the rape in 1994 did not occur. This

6

2009 sample verified that those samples taken in 1994 were from the victim

according to Suchanek’s testimony.

Based on the above, we find that the State met its burden of proof in this

case. Although there was no eyewitness identification, the DNA analysis

established Defendant’s guilt beyond a reasonable doubt.

III. Second Assignment of Error

In his second assignment of error, Defendant contends that the trial court

erred by not granting his motion for a new trial. In his motion, Defendant alleged

that some of the jurors heard a derogatory comment regarding him which was

made by the trial court’s bailiff.

When Defendant filed his motion for a new trial, it was governed by

La.Code Crim.P. art. 851, which provided:

The motion for a new trial is based on the supposition that
injustice has been done the defendant, and, unless such is shown to
have been the case the motion shall be denied, no matter upon what
allegations it is grounded.

The court, on motion of the defendant, shall grant a new trial
whenever:

....

(5) The court is of the opinion that the ends of justice would be
served by the granting of a new trial, although the defendant may not
be entitled to a new trial as a matter of strict legal right.

At the outset, we note that in State v. Guillory, 10-1231 (La. 10/8/10), 45

So.3d 612, the supreme court noted that previous jurisprudence conflicted as to

whether a trial court’s ruling on a motion for new trial under La.Code Crim.P. art.

851(5) presented a question of law reviewable under an abuse of discretion

standard. The supreme court stated that some rulings held that the grant or denial

of a new trial under subparagraph five was unreviewable. Id. Thus, the supreme

7

court in Guillory partially overturned this line of jurisprudence when it determined

that a grant or denial of a motion for new trial pursuant to La.Code Crim.P. art.

851(5) presented a question of law that was subject to appellate review for abuse of

discretion. Id.

In the instant case, a hearing occurred on May 22, 2014, to address

Defendant’s motion for a new trial. At the hearing, Patricia Cole testified that she

had been dating Defendant for approximately one year. She testified that during

jury selection in the instant matter, she was standing outside of the courtroom

when she heard William “Bill” Domingue, Sr., the trial court’s bailiff, discussing

the case. Cole testified that when an attorney asked the bailiff about the

proceeding taking place inside the courtroom, the bailiff told the attorney that

Defendant was “‘cocky and bold and it’s going to hit him right there in the face.”’

Cole testified that this exchange occurred during a break on the first day of jury

selection when the potential jurors were standing outside of the voir dire courtroom.

She testified that five other people were standing close to the bailiff when he made

his comments and that three of those five individuals were subsequently selected to

be on the jury.

At that hearing, Domingue’s testimony indicates that he agreed with Cole in

that he had a conversation with another lawyer who was trying a civil case in

another courtroom. Domingue testified, however, that they simply exchanged

information regarding what type of cases were being tried. Throughout his

testimony, Domingue denied making a statement that Defendant was cocky and

that it was going to hit him in the face, as he was aware of the prohibition against

discussing a case outside of the courtroom.

8

The Deputy Clerk of Court, Kay Miller, testified that she was the minute

clerk assigned to Defendant’s trial. Miller testified that when the trial court asked

the jurors the following day whether they had overheard any inappropriate

comments made outside of the courtroom, there was no response from the jury.

She testified that she had memorialized the trial court’s admonishment regarding

inappropriate comments in the May 14, 2014 minute entry.

At the hearing, the trial court noted that it found Cole’s testimony

questionable given her bias in favor of her relationship with Defendant. The trial

court stated that it was aware of Domingue’s “understanding of what his role is in

the court system, which includes not commenting” as Cole testified. As a result,

the trial court denied Defendant’s motion for a new trial.

Based on the above, we find that there is no merit to this assignment of error,

as Defendant has failed to show that the trial court abused its discretion.

DECREE

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

9