State of Louisiana v. Stephen Bruno

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-521
STATE OF LOUISIANA
VERSUS
STEPHEN BRUNO
FOR REE
APPEAL FROM THE

SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 12-769
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

KAKA KKK AK

VAN H. KYZAR
JUDGE

KK AK KK KK

Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.

AFFIRMED;
REMANDED WITH INSTRUCTIONS

Edward K. Bauman

Louisiana Appellate Project

P. O. Box 1641

Lake Charles, LA 70602-1641

(337) 491-0570

COUNSEL FOR THE DEFENDANT/APPELLANT:
Stephen Bruno

Jeffrey M. Landry
Attorney General
Winston White
Assistant Attorney General
P. O. Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR APPELLEE:
State of Louisiana
Louisiana Attorney General’s Office

KYZAR, Judge.

The defendant, Stephen Bruno, appeals from a jury verdict finding him
guilty of six counts of aggravated rape of two juvenile victims, three counts of
attempted aggravated rape of a juvenile, and three counts of molestation of a
juvenile of three victims. For the reasons assigned herein, we affirm the
convictions and remand the matter to the trial court with instructions.

DISCUSSION OF THE RECORD

On March 19, 2013, the defendant was charged by bill of indictment with
ten counts of aggravated rape, in violation of La.R.S. 14:42(A)(4). The victims of
these offenses were T.G., a female who was between four and seven years old

when the offenses were committed, and her cousin, J.G., a male who was between

six and thirteen years old at the time the offenses. The State subsequently added
four counts of molestation of a juvenile, in violation of La.R.S. 14:81.2(A)(1). In
addition to T.G. and J.G., the victims were Z.G. and J.W., both females who were
between four and thirteen years old at the time of the offenses.

Each of the victims testified at the trial and described in varying detail the
events which happened to them when they were minors. At the time of the
offenses, the defendant was married to the aunt of T.G. and Z.G., who were sisters,
and J.W. J.G. was the defendant’s step-son. All of the victims identified the
defendant as having committed various acts of rape and sexual molestation upon
them, as will be discussed more directly below.

On September 17, 2015, the defendant was found guilty by a jury of three
counts of aggravated rape of T.G., three counts of aggravated rape of J.G., three

counts of molestation of a juvenile of J.G., Z.G., and J.W., and three counts of

in accordance with La.R.S. 46:1844(W), we refer to the all of the victims in this case by
their initials.

attempted aggravated rape of T.G. The defendant was also found not guilty of one
count of aggravated rape of T.G. and one count of molestation of a juvenile of T.G.
All of the verdicts were unanimous.

On November 24, 2015, the trial court sentenced the defendant to life
imprisonment at hard labor, without benefit of probation, parole, or suspension of
sentence, on each of the six aggravated rape convictions; to ten years at hard labor,
without benefit of probation, parole or suspension of sentence, on each of the three
attempted aggravated rape convictions; and to ten years at hard labor on each of
the three molestation of a juvenile convictions. The trial court ordered the
molestation of a juvenile sentences to run consecutively to each other and to the
aggravated rape sentences. The remaining sentences were ordered to run
concurrently to each other.

The defendant now appeals his convictions, raising three assignments of
error:

I. The evidence presented at trial was insufficient to find Stephen
Bruno guilty of all charges.

II. The trial court erred in denying Stephen Bruno’s challenges for
cause.

Ill. The record is incomplete thereby denying the right to full
review on appeal.

ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find one error patent.
The minutes from the November 24, 2015 sentencing hearing and the
sentencing transcript both indicate that the trial court informed the defendant that

he had two years in which to file an application for post-conviction relief.

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Louisiana Code of Criminal Procedure Article 930.8 provides that the defendant
has two years after the conviction and sentence become final to seek post-
conviction relief. In State v. Conway, 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d
1132, and State v. Julien, 13-1327 (La.App. 3 Cir. 5/21/14), 139 So.3d 1152, writ
denied, 14-1406 (La. 5/15/15), 169 So.3d 383, this court found insufficient an
advisement regarding the time for seeking post-conviction relief similar to the one
given in this case. This error, however, does not require reversal of the defendant’s
conviction or sentence. State v. Porter, 50,380 (La.App. 2 Cir. 1/13/16), 185 So.3d
153. Therefore, the trial court is directed to inform the 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 this opinion and to file written proof into the record
indicating that the defendant received the notice.
ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues that there was
insufficient evidence to support his twelve convictions. Specifically, the defendant
argues that “the testimony given by the State’s witnesses were inconsistent,
uncorroborated, and did not prove that any crime occurred beyond a reasonable
doubt.” The defendant’s entire argument is that the State’s witnesses were not

credible, and therefore, their testimony was not sufficient to support his

. a: 2
convictions.

The analysis for an insufficient evidence claim 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

” The defendant’s sufficiency claim is based solely on the credibility of the witnesses and
does not actually challenge whether the witnesses’s testimonies, if believed, were sufficient to
prove the elements of the each offense charged. Accordingly, we do not address the individual
elements of each of the defendant’s twelve convictions.

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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. 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 v.
King, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)).

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

Additionally, in State v. Darbonne, 01-39 pp. 3-4 (La.App. 3 Cir. 6/6/01),
787 So.2d 576, 579 (footnotes omitted), writ denied, 02-533 (La. 1/31/03), 836
So.2d 64, this court specifically addressed the issue of a conviction for a sex
offense based solely on victim testimony:

Absent internal contradiction or irreconcilable conflict with

physical evidence, one witness’ testimony is sufficient to support a
defendant’s conviction of a sex offense, even where the State does not
introduce medical, scientific, or physical evidence to prove the
commission of the offense. Additionally, this court has affirmed
convictions, where the defendant was convicted of a sex offense,
based solely on minor victims’ testimonies.

This court has previously stated that “discrepancies in factual testimony
which require a determination of the witnesses’ credibility go to the weight of the
evidence, not its sufficiency.” State in re J.A., 15-641, p. 3 (La.App. 3 Cir.
12/2/15), 179 So.3d 959, 961, writ denied, 15-2317 (La. 3/4/16), 188 So.3d 1058.
The defendant, despite noting that witness “credibility is not ordinarily reviewed
on appeal,” argues, without citing supporting jurisprudence, that such testimony
can occasionally be “so incredible as to merit review and ultimate acquittal under
Jackson.” He claims that this is the case here. We disagree.

T.G., who was seventeen at the time of the defendant’s trial, stated that

although she was unsure exactly how old she was when the incidents with the

defendant occurred, she believed she was younger than seven or eight. She was
able to recall that she was in elementary school and the name of her school at the
time. She testified that on one occasion the defendant took her into a bathroom at
his house and “made [her] suck his penis.” She testified that she woke up in a
chair, naked, later that night and that the defendant was masturbating and
ejaculating on her. She also stated that the defendant took her into the bedroom the
following day, put her on all fours, had vaginal intercourse with her from behind,
and then put a “toy” in her vagina.

T.G. also described multiple events that occurred around the same time,
when the defendant and his family were staying with her family. She described an
event where the defendant took her into the back room, put her on her hands and
knees, and had vaginal intercourse with her from behind while he was watching
pornography. Afterwards, she described the defendant using her hands to play
with his penis, making her suck his penis, and then putting his mouth on her
vagina. T.G.’s mother testified at the trial and confirmed that the defendant and his
family did live with them for a period of time.

T.G. also described an incident that occurred while she was using the
bathroom at her grandmother’s house, when the defendant entered with her sister,
Z.G., and made Z.G. “pull her drawers down and lay down while he masturbate[d]
and watch[ed] her.” T.G. stated that the defendant also touched her vagina while
she was sitting on the toilet. T.G. stated that she told no adults about these
incidents because she was “embarrassed, scared” and did not want to get her
cousin’s father sent to jail. However, she admitted that she and her cousins talked

about them a lot when they were young.

T.G. testified that she could not recall exactly what she told the counselor at
Hearts of Hope, a facility where the victims were interviewed during the
investigation. She said that she was nervous during the interview and did not
really understand the questions the counselor was asking her. T.G. admitted that
she did not tell the counselor everything because she “wouldn’t be able to come
out with it to [her] own family so why would [she] just sit there and talk to a
person like, you know, [she] barely even know [sic] about [her] situation.” She
also testified that when she told the counselor that her aunt was the first person she
told about the incidents, she meant that her aunt was the first adult she told.

Z.G., T.G.’s older sister, testified that the defendant would take her into a
room, make her undress, and then would touch around her vagina with his fingers.
Z.G. also described an incident where the defendant took her into the kitchen of his
house, pulled her pants down, and took pictures with a camera. Z.G. also testified
that while the defendant and his family were staying with her family, the defendant
would come into the bathroom with her and make her “jack him off,” before he
would ejaculate on the floor. That the defendant and his family lived with Z.G.
and T.G.’s family for a period of time was confirmed by several other witnesses
during the course of the trial.

Z.G. testified that she told no adults about the defendant’s actions because
she was young and scared. She stated that she initially told her aunt that no one
had touched her because she “didn’t want her to know about it,” but then she
admitted the defendant’s actions once she realized that her aunt already knew.
Z.G. could not recall exactly how old she was when these events occurred; but she
testified, unequivocally, that she was under the age of seventeen, as she was only

eighteen at the time of trial.

J.W. testified that the defendant would call her into the bathroom at her
grandmother’s house in New Iberia, make her pull down her pants, and then would
masturbate in front of her. She further stated that she was in elementary school at
the time and that she told no one about these incidents prior to telling her aunt
because she was scared of the defendant. She became emotional during this
portion of her testimony, sobbing and stating “he was mean” and that she was
always “scared of him.” J.W. stated that the defendant never actually touched her
and that while she remembered previously testifying in court, she could not
remember what had occurred. She finally said that she remembered telling an
officer that she was about seven years old when the incidents started and about
nine years old when they stopped.

J.G., the defendant’s former stepson, testified that from the time he was six
years old and until he was about fourteen, the defendant would touch his genitals
and make him perform oral sex on him. J.G. stated that this happened so often that
he could not say exactly how many times it occurred. He also testified that the
defendant penetrated him anally when he was approximately ten years old. J.G.
stated that there were never any adults around when these incidents happened, and
on a few occasions, he walked in on the defendant touching himself while Z.G.
was using the restroom. On those occasions, he stated that the defendant would
tell him to get out and threaten to beat him. J.G. testified that he only told his
mother about the incidents because she specifically asked him about them. He said
that he would have taken it to his grave had she never questioned him about the
defendant. J.G. admitted that he moved in temporarily with the defendant and his

new wife, when he was a senior in high school. He explained that he had moved

on from the incidents and that he felt safe because the defendant’s wife was usually
at home.

As previously stated, the defendant’s entire argument is that the testimony
given by the victims is so incredible that it merits “review and ultimate acquittal
under Jackson.” This argument lacks merit for several reasons. Initially, we note
that the defendant’s argument is based on his claim that the victims’ trial
testimonies differed from their statements to the counselor at Hearts of Hope.
However, we find no merit with this argument because none of the recorded
statements were shown to the jury or admitted into evidence. Although defense
counsel attempted to impeach Z.G. with her recorded interview, the trial court

denied the request to publish the recording unless the entire interview was

published to the jury, which defense counsel refused to do. Defense counsel
ultimately proffered Z.G.’s recorded interview. However, since the defendant has
failed to assign as error the trial court’s failure to admit the recording into
evidence, we will not consider any of the alleged inconsistent statements made by
the victims during those recordings.

The defendant’s remaining argument consists of little more than
inconsistencies, which were explained during the victims’ testimonies. The
inconsistency between T.G.’s statement to the counselor that her aunt was the first
person to learn about the incidents, and her trial testimony, that it was discussed by
all of the cousins prior to her aunt’s discovery, was clarified when T.G. explained

that she meant that her aunt was the first adult to learn about the incidents.

*Defense counsel objected to the trial court’s denial of her request to show only a portion
of the video, claiming that it forced her to choose between impeaching the witness and
incriminating the defendant with “other crimes” evidence, as the video included a claim that he
molested his own daughters.

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Additionally, the defendant focused on the fact that both T.G. and J.G.
testified that they were each present at least once when he was masturbating over
Z.G., while Z.G. testified that this occurred only when they were alone. While a
discrepancy does exist between these and other statements, we find that it can
easily be explained based on the embarrassment and/or fear of the defendant
expressed by all of the victims, coupled with the approximately ten years between
the incidents and the trial.

Moreover, the defendant has cited no case in support of his argument that
multiple witnesses, testifying between the ages of seventeen and twenty regarding
events that happened more than a decade beforehand, should be disregarded
because of minor inconsistencies in their testimonies. We have previously stated
that “[t]his court will overturn a jury’s credibility assessment only when a
witness’s own testimony demonstrates that the witness’s ability to perceive events
was impaired in some way.” State v. Hypolite, 04-1658, p. 5 (La.App. 3 Cir.
6/1/05), 903 So.2d 1275, 1279, writ denied, 06-618 (La. 9/22/06), 937 So.2d 381.
There is nothing in the record that suggests that the witnesses’ own abilities to
perceive events were in any way impaired. To the contrary, much of the testimony
of each witness as to various facts was confirmed by the testimony of other
witnesses. Accordingly, we find that the defendant has failed to establish any
reason why we should second guess the jury’s credibility determinations of the
victims in this matter.

Considering our finding regarding the jury’s credibility determinations and
the evidence presented at trial through the victims’ testimonies, and after reviewing
the evidence in the light most favorable to the prosecution, we find that any

rational trier of fact could have found that the defendant committed aggravated

rape through anal, oral, or vaginal sexual intercourse on multiple occasions with
victims who were under the age of thirteen, a violation of La.R.S. 14:42(A)(4).
We further find that any rational trier of fact could have found that the defendant,
on three occasions, committed attempted aggravated rape through attempted anal,
oral, or vaginal sexual intercourse with a victim who was under the age of thirteen,
a violation of La.R.S. 14:27 and La.R.S. 14:42(A)(4). Additionally, we find that
any rational trier of fact could have found that the defendant, who was over the age
of seventeen, committed molestation of a juvenile when he performed lewd or
lascivious acts upon victims under the age of seventeen, with the intention of
arousing or gratifying his sexual desires by the use of influence by virtue of his
position of control or supervision over the victims, in violation of La.R.S.
14:81.2(A)(1). Accordingly, the defendant’s first assignment of error is denied for
lack of merit.
ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the defendant argues that the trial court
committed reversible error when it denied his challenges for cause of two potential
jurors, namely Suzanne Dugas and Brenda Langlinais. The defendant challenged
both potential jurors for cause on the basis that they expressed reservations
regarding their ability to ignore his decision not to testify on his own behalf. The
trial court ruled that the State sufficiently rehabilitated both potential jurors and
denied the defendant’s challenges for cause, forcing him to use his two final
peremptory challenges on Ms. Dugas and Mrs. Langlinais.

“Prejudice is presumed when a challenge for cause is denied erroneously by
the trial judge and the defendant has exhausted all of his peremptory challenges.”

State v. Hart, 96-697, p. 7 (La. 3/7/97), 691 So.2d 651, 656. In order to prove his

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claim, the defendant “need only show the following: (1) erroneous denial of a
challenge for cause; and (2) use of all his peremptory challenges.” Jd. The
transcript shows that the defendant used his final two peremptory challenges to
remove the potential jurors at issue in this assignment of error. Accordingly, the
only issue that remains is whether the trial court erroneously denied the
defendant’s challenges for cause regarding Ms. Dugas and Mrs. Langlinais.

As this court recently noted in State v. Washburn, 16-335, p. 14 (La.App. 3
Cir. 11/2/16), So.3d___, __, reviewing courts must be “mindful that trial courts
have wide discretion in determining whether to reject a juror for cause, and those
determinations cannot be disturbed absent an abuse of discretion.” Ms. Dugas and
Mrs. Langlinais both initially indicated that they would either need or want to hear
the defendant testify in order to find him innocent. However, both potential jurors
also stated that they understood that the defendant’s presumption of innocence
meant that he did not have to testify, as it was the State’s burden to prove him
guilty. They agreed that they could and would follow the law in deciding the case
and that they could decide the case based solely on the evidence presented. The
trial court found that this was sufficient to rehabilitate the two potential jurors; thus
it denied the defendant’s challenges for cause. In addition to the verbal assurances
of the potential jurors, the trial court was in the unique position to see and hear the
manner in which each juror responded during their rehabilitation by the State.
Several other challenges for cause by the State and the defendant had been granted
during the course of jury selection. Thus, we cannot conclude that the trial court
abused its “wide discretion” in denying the challenges for cause as to Ms. Dugas
and Mrs. Langlinais. Accordingly, we find that the defendant’s assignment of

error lacks merit.

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ASSIGNMENT OF ERROR NUMBER THREE
In his final assignment of error, the defendant argues that he has been denied
his right to full appellate review due to several instances of ambiguity in the voir
dire transcript. The defendant cites State v. Landry, 97-499 (La. 6/29/99), 751
So.2d 214, for his argument that the trial court must provide an adequate record
and that an inadequate record entitles a defendant to a new, fully-recorded trial.
He also cites State v. Spears, 08-831 (La.App. 3 Cir. 3/4/09), 8 So.3d 119, noting
that one of the issues in Spears, which led to the defendant receiving a new trial,
were the multiple references in the voir dire transcript to potential jurors as merely
“Potential Juror.” In response, the State’s argues that while there were a few
occasions wherein jurors were referred to as “Potential Juror,” the vast majority of
the transcript identifies who was speaking. It further notes that the defendant
failed to point out a single instance where the failure to name a potential juror had
an actual effect on the trial court’s alleged error in denying his two peremptory
challenges for cause.
For the following reasons, we find no merit in this assignment of error.
Louisiana Constitution Article 1, § 19 ensures a defendant’s
“right of judicial review based upon a complete record of all evidence
upon which the judgment is based.” See also La.Code Crim.P. art.
843 (which provides, in part, that “[i]Jn felony cases, . . . the clerk or
court stenographer shall record all of the proceedings. . . .”). However,
the Supreme Court of Louisiana has explained that a defendant is not

entitled to relief on the basis of an incomplete record “absent a
showing that he was prejudiced by the missing portions of the record.”
State v. Draughn, 05-1825, p. 63 (La.1/17/07), 950 So.2d 583, 625,
cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007).
Further, slight inaccuracies in the record or inconsequential omissions
which are immaterial to a proper determination on appeal are not
cause for the reversal of a defendant’s conviction. /d. Rather, even an
incomplete record may be adequate for appellate review. Id.

State v. Duraso, 12-1463, 12-1465, pp. 11-12 (La.App. 3 Cir. 12/11/13), 127 So.3d
1015, 1023, writs denied, 14-50, 14-74 (La. 6/20/14), 141 So.3d 286.

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The issue, therefore, is whether the defendant was prejudiced by the failure of the
voir dire transcript to positively identify the speaker every time a potential juror
spoke. We find that no such prejudice occurred in this case. The defendant points
to no specific instance where the words of an unidentified speaker would have
affected his argument regarding his challenges for cause of Ms. Dugas or Mrs.
Langlinais. Furthermore, there is no instance where the dialogue with an
unidentified speaker affected our analysis of the defendant’s second assignment of
error, even if it could be attributed to the potential jurors in question. Accordingly,
we find that the defendant has failed to establish that he was prejudiced by the
slight inaccuracies or inconsequential omissions contained in the trial court’s voir
dire transcript. Thus, this assignment of error is without merit.
DISPOSITION

The defendant’s convictions and sentences are affirmed; however, the trial
court is ordered to inform the defendant of the provisions of La.Code Crim.P. art.
930.8, by sending appropriate written notice to the defendant within ten days of the
rendition of this opinion and to file written proof into the record indicating that the
defendant received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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

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