State of Louisiana v. David Wayne Sims

NOT FOR PUBLICATION

16-20

STATE OF LOUISIANA

VERSUS

DAVID WAYNE SIMS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 26735-13
HONORABLE G. MICHAEL CANADAY, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED.

John F. DeRosier, District Attorney
Carla S. Sigler, Assistant District Attorney
Karen C. McLellan, Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
ATTORNEY FOR APPELLEE
State of Louisiana

Edward J. Marquet
P.O. Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
ATTORNEY FOR DEFENDANT/APPELLANT
David Wayne Sims

COOKS, Judge.

Defendant, David Wayne Sims, is the biological father of A.C. and the step-

father of D.C.1 It was alleged by D.C., whose date of birth was June 8, 2000, that

Defendant had sexual intercourse with her for a three-year period beginning in

2009. It was also alleged by A.C., whose date of birth was August 19, 2004, that

between the dates of January 2011 and September 2012, Defendant fondled her

genitals.

On December 12, 2013, Defendant was indicted by a grand jury for

aggravated rape, a violation of La.R.S. 14:42, and sexual battery, a violation of

La.R.S. 14:43.1.2 A jury trial commenced on April 27, 2015. On May 1, 2015, the

jury found Defendant guilty as charged on both offenses.

On May 27, 2015, Defendant was sentenced to life imprisonment without

the benefit of parole, probation, or suspension of sentence for the offense of

aggravated rape, and fifty years at hard labor without the benefit of parole,

probation, or suspension of sentence for the offense of sexual battery. The

sentences were ordered to be served consecutively. Defendant filed a “Motion for

Reconsideration of Sentence,” alleging the sentences were excessive. The motion

was denied without a hearing.

Defendant has perfected a timely appeal, wherein he alleges the evidence

was insufficient to sustain the verdicts of aggravated rape and sexual battery and a

non-unanimous jury verdict in the case of the aggravated rape conviction violated

his Fifth, Sixth, and Fourteenth Amendment rights. Finding no merit to either

assignment of error, we affirm Defendant’s convictions and sentences.

1
The initials of the victims in this case are used to protect their identities as required by
La.R.S. 46:1844(W).
2
Aggravated rape is now referred to as first degree rape, effective August 1, 2015. Acts
2015, No. 184, § 1.
2

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 the

record fails to indicate the trial court advised Defendant of the prescriptive period

for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus,

the trial court is directed to inform Defendant of the provisions of article 930.8 by

sending appropriate written notice to him within ten days of the rendition of the

opinion and to file written proof in the record that Defendant received the notice.

State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762

(La. 2/10/06), 924 So.2d 163.

ANALYSIS

I. Sufficiency of the Evidence.

Defendant argues the State failed to establish all the elements of the offenses

of aggravated rape and sexual battery. He argues the victims’ statements, given to

an advocacy interviewer of children that allege sexual abuse, were vague and non-

specific and were not supported by any of the physical evidence.

Regarding sufficiency claims, this court stated in State v. Freeman, 01-997,

pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580:

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 (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 credibilities of the witnesses,
and therefore, the appellate court should not second guess the
credibility determinations of the trier of fact beyond the sufficiency
evaluations under the Jackson standard of review. Graffagnino, 436
So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).
To obtain a conviction, the elements of the crime must be proven
beyond a reasonable doubt.

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Louisiana jurisprudence has consistently held that the testimony of the

victim alone can be sufficient to establish the elements of a sexual offense, even if

there is no physical evidence. State v. Schexnaider, 03-144 (La.App. 3 Cir.

6/14/03), 852 So.2d 450; State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750

So.2d 1036, writ denied, 99-3477 (La. 6/30/00), 765 So.2d 1062, and writ denied,

00-150 (La. 6/30/00), 765 So.2d 1066. Furthermore, “[I]n the absence of internal

contradiction or irreconcilable conflict with physical evidence, one witness’s

testimony, if believed by the finder of fact, is sufficient support for a requisite

factual conclusion.” State v. Robinson, 02-1869, p. 16 (La. 4/14/04), 874 So.2d 66,

79, cert. denied, 543 U.S. 1023, 125 S.Ct. 658 (2004) (citing State v. White, 28,095

(La.App. 2d Cir. 5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La. 11/15/96),

682 So.2d 760, and writ denied, 98-282 (La. 6/26/98), 719 So.2d 1048.)

At the time of the offense, aggravated rape was defined by La.R.S. 14:42, in

pertinent part, as follows:

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:

....

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

Sexual battery is defined as “the intentional touching of the anus or genitals

of the victim by the offender using any instrumentality or any part of the body of

the offender . . . without the consent of the victim.” La.R.S. 14:43.1(A)(1).

Joe Savoie, a detective with the Lake Charles Police Department, testified he

was contacted on September 6, 2012, regarding an allegation of sexual abuse of

two children. He met with the victims and their mother. D.C. was twelve years

old and A.C was eight years old at the time. He set up appointments with the

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Department of Children and Family Services for the two victims to be interviewed

by a children’s advocacy interviewer. The interview took place on September 11,

2012. Detective Savoie stated he waited until after the children were interviewed

before he sought out Defendant to question him regarding the allegations.

Detective Savoie watched the interviews via closed-circuit television, and testified

that what the children told the interviewer was consistent with what they had told

him when he spoke with them and their mother. He stated even though D. C. could

not give specific dates, she gave a very detailed description of the sexual acts and

of the locations in the apartments where the acts occurred. The sexual acts first

started when she was about nine years old in the upstairs of an apartment that was

shortly thereafter condemned. When they moved to the new apartment, the acts

mainly took place in the kitchen or in the hallway. Detective Savoie checked with

the housing authority and verified the dates when the old apartment complex was

condemned and the family moved into the new complex. The dates coincided with

the time frame the victim indicated.

Testimony established that during this time period, Defendant had been

incarcerated in the parish jail from July 2012 to September 2012. After he was

released, he did not return to the victims’ household.

On September 19, 2012, the children were taken to a health facility, had

pelvic examinations, and were tested for sexually transmitted diseases.

On October 3, 2012, Defendant reported to the police department,

complaining that the children’s mother was tattooing them. At that time, Detective

Savoie advised Defendant of the allegations and conducted a brief interview,

wherein Defendant denied the allegations.

On October 16, 2012, it was reported that D.C. was infected with herpes

simplex 2 virus. A.C. was not infected. Detective Savoie testified he sought out

Defendant in order to get blood work to test for herpes, but Defendant had

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disappeared. A year later, in October 2013, Detective Savoie was informed that

Defendant was then in the Calcasieu Parish Jail. Defendant was transported to the

police department and interviewed by Detective Savoie again. A search warrant

was obtained to have Defendant tested for herpes. It was thereafter determined

that Defendant was infected with herpes simplex 2 virus.

David Duplechian, with the Family and Youth Counseling Agency, was the

advocate that interviewed the two victims. D. C. was twelve years old at the time

of the interview. When asked if she knew why she was being interviewed, the

victim said it was because her dad made her do stuff that was not supposed to be

done. She described how, when she was nine years old, before the first apartment

was condemned, he made her put her mouth on his “wrong spot.” After they

moved to the new apartment, he put his “wrong spot” in her “wrong spot.” When

asked if she could say what her “wrong spot” was, she said “vagina.” When asked

what he was doing, she said she heard her mother use the words “sexual

intercourse.” She described how he pulled her head to his penis or how he bent her

over a table and entered her from behind. Before they moved to the new

apartment, it usually happened upstairs in her bedroom, but after they moved, the

sexual activity generally happened in the kitchen or hallway, sometimes when her

mother was home upstairs or at work. She described the white stuff that came out

of his penis. She spoke of a Mexican blanket that he would put on the floor.

Sometimes he got on top of her or he would make her sit on top of him. She said

that he told her not to tell anyone because if she did, he would go to jail for a long

time.

A.C., who was nine at the time of the interview, stated that her father only

touched her. She said that he rubbed her “wrong spot” over her clothing. She did

not report any further sexual activity. However, she did indicate that she was

aware something was happening to her sister at times when her father would tell

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her to go upstairs. She said she never saw anything, but would hear him yell words

she was not supposed to say. When prompted to say the words, she muttered f--k,

b---h, and n----r. Both interviews were published to the jury.

The children’s mother, who had since married Kevin Smith, testified she

was not aware of any sexual abuse between Defendant and the victims. She stated

she found out when Defendant was serving a jail sentence for unpaid traffic tickets.

After Defendant got out of jail, he saw D.C. and Mr. Smith together in a store.

Defendant yelled at D.C. that he knew she told on him. Later, Mr. Smith

mentioned to D.C.’s mother that there was “something up” between Defendant and

D.C. Mrs. Smith asked D.C. about anything that may have happened between her

and Defendant. Mrs. Smith said the victim cried for a long time, then told her of

the sexual abuse. Mrs. Smith testified that she did not have herpes. She said she

knew because she was HIV positive and had blood work done every six months.

Defendant testified, and he denied the allegations. Defendant speculated the

victim contracted herpes when her mother tattooed her with a homemade tattooing

device. He further speculated that the reason the girls made the allegations of

sexual abuse was because he had refused to allow their mother to sell their food

stamps to various relatives so she could play bingo.

In brief, Defendant points out that after the two girls were examined, the

medical records stated in the reports: ‘“external genitalia, normal; no lesions or

discharge; vagina-clear discharge’.” Regarding A.C.’s statements, Defendant

incorrectly argues:

It simply defies all reason and logic that an adult male, intent upon
repeatedly sexually abusing a child by placing his hand in her vagina
day after day, week after week, month after month from January 1,
2011 through September 6, 2012, would leave no trace of injury in
such a delicate area . . . . If one were to believe the vague memory of
A.C., how could one not reasonably expect to find vaginal or genitalia
injury?

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The record establishes A.C. stated during her interview that her father

rubbed her vaginal area through her clothing and then only a few times. Defendant

argues the same regarding D.C.’s physical examination without taking into

consideration he was in jail from July 2012 to September 2012 and had no contact

with the victim afterwards. The examinations took place two and a half months

later. The jury was presented with the two girls’ statements made to the advocacy

interviewer. Defendant had sexual intercourse with his older daughter from the

time she was nine years old until she was twelve years old. He rubbed his younger

daughter’s genitals. They heard the mother’s testimony and Defendant’s

testimony. The physical evidence established that both D.C. and Defendant were

infected with herpes simplex 2 virus. Furthermore, Defendant failed to establish

internal contradictions or inconsistencies in the two victims’ statements or with the

physical evidence. We find the evidence was sufficient to establish all the

elements of aggravated rape and sexual battery.

As noted above, a witness’s testimony alone can be sufficient to support a

requisite factual conclusion. Robinson, 874 So.2d 66. The trier of fact’s

determination of the weight to be given evidence is not subject to appellate review.

An appellate court will not re-weigh the evidence to overturn a fact finder’s

determination of guilt. State v. Huey, 13-1227 (La.App. 1 Cir. 2/18/14), 142 So.3d

27, writ denied, 14-535 (La. 10/3/14), 149 So.3d 795, cert. denied, ___ U.S. ___,

135 S.Ct. 1507 (2015).

II. Unanimous Verdict.

In his second assignment of error, Defendant argues his Sixth Amendment

right to a unanimous verdict for a conviction of aggravated rape, which mandates

life imprisonment, was violated. See La.R.S. 14:42(D)(1). He alleges that La.Code

Crim.P. art. 782, which allows non-unanimous verdicts in non-capital cases where

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“punishment is necessarily confinement at hard labor,” is unconstitutional. The

jury, in this case, returned a ten-to-two vote to convict him of the offense.

An appellate court may not consider a constitutional challenge unless it was

properly pleaded and raised in the trial court. State v. Hatton, 07-2377 (La.7/1/08),

985 So.2d 709. While Defendant does not mention it in his brief, a “Motion for

Special Jury Instruction—Unanimous Verdict with Incorporated Memorandum”

was filed on April 20, 2015. The motion was heard on April 27, 2015, and denied

on the same date. The trial court noted Defendant’s objection to the denial.

In his motion for the special jury instruction regarding unanimous verdicts,

Defendant questioned the survivability of Apodaca v. Oregon, 406 U.S. 404, 92

S.Ct. 1628 (1972) for noncompliance with the federal rule regarding unanimous

jury verdicts “once the United States Supreme Court again grants certiorari on this

issue.” He argued that for this reason he was preserving the issue. He further

argued there was a racial bias behind the State’s insistence that La.Code Crim.P.

art. 782 was constitutional and, whereas he was black, his Fourth Amendment right

against discrimination was being violated.

In State v. Wilmot, 13-994, pp. 6-9 (La.App. 5 Cir. 5/14/14), 142 So.3d 141,

146-48 (footnotes omitted), wherein the defendant was convicted of aggravated

rape, sentenced to life imprisonment, and argued on appeal that La.Code Crim.P.

art. 782 was unconstitutional, the fifth circuit stated:

The punishment for aggravated rape is life imprisonment at
hard labor without benefit of parole, probation, or suspension of
sentence. La. Const. Art. I, § 17(A) provides that a criminal case “in
which the punishment is necessarily confinement at hard labor shall
be tried before a jury of twelve persons, ten of whom must concur to
render a verdict.” In addition, LSA-C.Cr.P. art. 782(A) provides, in
part: “Cases in which punishment is necessarily confinement at hard
labor shall be tried by a jury composed of twelve jurors, ten of whom
must concur to render a verdict.” In the instant case, defendant was
found guilty of aggravated rape by a verdict of eleven to one. He now
challenges the constitutionality of the non-unanimous jury verdict.

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Under both state and federal jurisprudence, a criminal
conviction by a less than unanimous jury does not violate the Sixth
and Fourteenth Amendments to the United States Constitution. In
Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184
(1972), the United States Supreme Court held that a state court
conviction of a crime by less than a unanimous jury does not violate
the right to trial by jury specified by the Sixth Amendment and made
applicable to the states by the Fourteenth Amendment.

Likewise, the Louisiana Supreme Court has consistently held
that non-unanimous jury verdicts for twelve-person juries are not
unconstitutional in non-capital cases. See State v. Edwards, 420 So.2d
663, 674 (La.1982). In State v. Bertrand, 08-2215, 08-2311
(La.3/17/09), 6 So.3d 738, 743, the Louisiana Supreme Court
specifically reversed a district court ruling which found LSA-C.Cr.P.
art. 782 unconstitutional. In reaffirming well-established
jurisprudence that a non-unanimous jury verdict is constitutional and
does not violate the Fifth, Sixth, or Fourteenth Amendments, the
Bertrand court stated as follows:

Due to this Court’s prior determinations that
Article 782 withstands constitutional scrutiny, and
because we are not presumptuous enough to suppose,
upon mere speculation, that the United States Supreme
Court’s still valid determination that non-unanimous 12
person jury verdicts are constitutional may someday be
overturned, we find that the trial court erred in ruling that
Article 782 violated the Fifth, Sixth, and Fourteenth
Amendments. With respect to that ruling, it should go
without saying that a trial judge is not at liberty to ignore
the controlling jurisprudence of superior courts.

In accordance with State v. Bertrand, supra, this Court has
consistently upheld the constitutionality of Louisiana law which
allows for non-unanimous jury verdicts in non-capital cases. See
State v. Napoleon, 12-749 (La.App. 5 Cir. 5/16/13), 119 So.3d 238,
246; State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d
608, 614, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v.
Wade, 10-997 (La.App. 5 Cir. 8/30/11), 77 So.3d 275, 281-282; State
v. Carter, 10-973 (La.App. 5 Cir. 8/30/11), 75 So.3d 1, 5-6, writ
denied, 11-2060 (La.2/10/12), 80 So.3d 469; State v. Jacobs, 07-887
(La.App. 5 Cir. 5/24/11), 67 So.3d 535, 591-592, writ denied, 11-1753
(La.2/10/12), 80 So.3d 468, cert. denied, ___ U.S. ___, 133 S.Ct. 139,
184 L.Ed.2d 67 (2012); and State v. Smith, 09-100 (La.App. 5 Cir.
8/25/09), 20 So.3d 501, 505-508, writ denied, 09-2102 (La.4/5/10), 31
So.3d 357.

As part of his equal protection argument on appeal, defendant
contends that the enacting provision of Article I, § 17 of the Louisiana
Constitution was based on racial discriminatory intent and therefore
violates equal protection. Both the United States Supreme Court and
the Louisiana Supreme Court have previously addressed this issue and

10

found it to be without merit. In Apodaca v. Oregon, 92 S.Ct. at 1634,
the Supreme Court reasoned:

We also cannot accept petitioners’ second
assumption-that minority groups, even when they are
represented on a jury, will not adequately represent the
viewpoint of those groups simply because they may be
outvoted in the final result. They will be present during
all deliberations, and their views will be heard. We
cannot assume that the majority of the jury will refuse to
weigh the evidence and reach a decision upon rational
grounds, just as it must now do in order to obtain
unanimous verdicts, or that a majority will deprive a man
of his liberty on the basis of prejudice when a minority is
presenting a reasonable argument in favor of acquittal.
We simply find no proof for the notion that a majority
will disregard its instructions and cast its votes for guilt
or innocence based on prejudice rather than the evidence.

Likewise, in State v. Bertrand, 6 So.3d at 743, the Louisiana
Supreme Court rejected the argument that non-unanimous jury
verdicts have an insidious racial component and pointed out that a
majority of the United States Supreme Court also rejected that
argument in Apodaca v. Oregon, supra.

Recently, the defendant, in State v. Hammond, 12-1559
(La.App. 1 Cir. 3/25/13), 115 So.3d 513, writ denied, 13-887
(La.11/8/13), 125 So.3d 442, cert. denied, ___ U.S. ___, 134 S.Ct.
1939, 188 L.Ed.2d 965 (2014), raised the same arguments raised by
defendant herein. In the Hammond case, the defendant argued that
Article I, § 17(A) of the Louisiana Constitution, that allows for non-
unanimous jury verdicts, violates the right to jury trial and the right to
equal protection of the laws guaranteed by the Sixth and Fourteenth
Amendments of the United States Constitution. As in the instant case,
the defendant, as part of his equal protection argument, asserted that
the enactment of the source provision in the Louisiana Constitution of
1898 was motivated by an express and overt desire to discriminate on
the basis of race. Relying on Apodaca v. Oregon, supra, and State v.
Bertrand, supra, the appellate court rejected the defendant’s
arguments and found that Article I, § 17(A) of the Louisiana
Constitution and LSA-C.Cr.P. art. 782(A) are not unconstitutional
and, therefore, not in violation of the defendant’s federal rights.

Likewise, based on well-established jurisprudence, we find no
merit to defendant’s arguments relating to the constitutionality of
Louisiana law which allows for non-unanimous jury verdicts in non-
capital cases. These assigned errors are without merit.

See also State v. Webb, 13-146 (La.App. 4 Cir. 1/30/14), 133 So.3d 258, writ

denied, 14-436 (La. 10/3/14), 149 So.3d 793, cert. denied, ___U.S. ___, 135 S.Ct.

1719 (2015), and State v. Dorsey, 12-1816 (La.App. 1 Cir. 2/4/14), 137 So.3d 651,

11

writ denied, 14-378 (La. 9/19/14), 148 So.3d 951, cert. denied, ___ U.S. ___, 135

S.Ct. 1495 (2015), wherein the defendants, who were convicted of aggravated rape

and sentenced to life imprisonment, raised the same constitutional issues as in the

current case, and La.Code Crim.P. art. 782(A) was found constitutional by the

appellate courts, and reviews of those decisions were denied by Louisiana Supreme

Court and the United States Supreme Court.

Therefore, we find this assignment of error has no merit.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are

affirmed. The trial court is directed to inform Defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to him within ten

days of the rendition of the opinion and to file written proof in the record that

Defendant received the notice.

AFFIRMED.

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