State of Louisiana v. Nathaniel Climes Thibeaux AKA Nathaniel Thibeaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-293

STATE OF LOUISIANA

VERSUS

NATHANIEL CLIMES THIBEAUX

AKA NATHANIEL THIBEAUX

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 152704
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

VERDICT MODIFIED IN PART AND AFFIRMED IN PART;
JUDGMENT OF CONVICTIONS ON TWO COUNTS OF FORCIBLE
RAPE AND ONE COUNT OF SEXUAL BATTERY ENTERED;
SENTENCES VACATED AND REMANDED FOR RESENTENCING.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
Telephone: (337) 436-2900
COUNSEL FOR:
Defendant/Appellant - Nathaniel Climes Thibeaux aka Nathaniel
Thibeaux

Keith A. Stutes
District Attorney – 15th Judicial District
P. O. Box 3306
Kenneth P. Hebert
Assistant District Attorney – 15th Judicial District
Lafayette, LA 70502-3306
Telephone: (337) 232-5170
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

Defendant Nathaniel Climes Thibeaux was convicted by a jury of

three counts of aggravated rape of H.A. (DOB 2/14/01), 1 violations of La.R.S.

14:42(A)(1), and six counts of aggravated crimes against nature of H.A., violations

of La.R.S. 14:89.1(A)(2)(a). The trial court sentenced Mr. Thibeaux to life at hard

labor without the benefit of probation, parole, or suspension of sentence for each

count of aggravated rape, to run concurrently with each other. The trial court also

sentenced Mr. Thibeaux to ten years without benefit of probation, parole, or

suspension of sentence for each count of aggravated crime against nature, to run

concurrently with each other but consecutively to the three counts of aggravated

rape. Mr. Thibeaux now appeals his conviction to this court. For the reasons that

follow, we modify the verdict and render a judgment of conviction of the lesser

included offense of forcible rape on counts one and two and of the lesser included

offense of sexual battery on count three. We remand for resentencing on these

counts.

I.

ISSUES

We must decide:

(1) whether the assistance of counsel provided to Mr.
Thibeaux fell below that guaranteed by the Sixth
Amendment of the Constitution of the United
States;

(2) whether the evidence introduced at the trial of this
case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

1
In accordance with La.R.S. 46:1844(W), we will refer to the victim by her initials only
in order to protect her identity.

(1979) standard, was insufficient to prove beyond
a reasonable doubt that Mr. Thibeaux committed
aggravated rape of H.A.; and

(3) whether Mr. Thibeaux’s convictions for both three
counts of aggravated rape and three counts of
aggravated crimes against nature involving sexual
intercourse are in violation of the Fifth
Amendment’s prohibition against double jeopardy.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Thibeaux is accused of nine separate acts of sexual misconduct,

including sexual intercourse, with his thirteen to fourteen-year-old stepdaughter,

H.A., that occurred over a ten-month period between August 2014 and June 2015.

The State presented the details of the various crimes to the jury through H.A.’s

testimony, her videotaped Hearts of Hope interview, and the report made during

her sexual assault examination.

At trial, H.A. testified that the first time Mr. Thibeaux molested her

was in August 2014 right before school started. She explained how she was

awoken from her sleep when she felt Mr. Thibeaux touching her breasts and

vagina, both above and underneath her clothes. This occurred in her bedroom at

the apartment she lived in with her mother and stepfather. H.A. also told of

another time when her mother almost caught Mr. Thibeaux molesting her in her

bedroom:

She came inside, she came into my room and he was in
my room. And he just jumped off the bed and he
pretended he was praying. He said he was praying with
me or something. And then she got really angry. Then
she went in the living room. And he told me to hurry up
to put on my clothes and then he left and went meet her
in the other room.

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When her mother asked if Mr. Thibeaux had touched her, H.A. told her mother that

he had not because, she explained, Mr. Thibeaux had told her to say “no” if her

mother ever asked such a question.

Sometime around November 2014, the family moved from the

apartment into a house. H.A. testified that, about a week or two after the move,

Mr. Thibeaux told her to go sleep on the sofa in the living room. After her mother

fell asleep, he came into the living room, took off H.A.’s pants, touched and licked

her breasts and her vagina, and then “put” his penis into her vagina. She further

explained:

The first time he did it, he used a condom. And
then he would try to whip me and I would go screaming.
Well, I didn’t really scream but I thought, you know, it
would make him a little nervous so I started making little
noises. And he would tell me, “It’s all right. You can do
anything with me but don’t say anything. And I would
move my legs and he would try to move them down.”

In her recollection of that sexual encounter, H.A. also described a

separate time when Mr. Thibeaux instructed her to open her legs, applied vaseline

to her vagina, and then penetrated her vagina with his penis. After a while, he

ejaculated on her stomach and “wipe[d] it off with a towel.” She explained that

she did not try to push Mr. Thibeaux off because she “was afraid that he might do

more than that.” She decided to “just face[] it.”

When asked if there was ever a time that Mr. Thibeaux “put” his penis

anywhere else, H.A. spoke of when she was in the living room on the phone with

her boyfriend and Mr. Thibeaux got on the sofa, pulled off her pants, pulled down

his pants, and penetrated her vaginally with his penis. After she told him to stop,

Mr. Thibeaux “put” his penis in her anus. Although she tried to stop him, “he kept

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holding [her] down. After a while he just did it.” At trial, she stated that was the

only time Mr. Thibeaux “put” his penis “in her butt.”

The State then asked H.A. whether there was any other time “where

he had sex with you and you resisted him.” In response, H.A. told of when her

mother left to pick up her brother from Breaux Bridge Highway. H.A. had just

taken a shower when Mr. Thibeaux came into her room naked and told her to hurry

up before her mother came back. He then had vaginal intercourse with her. H.A.

testified that the last time Mr. Thibeaux had sex with her was in her room on June

8, 2015.

When asked if Mr. Thibeaux ever did anything to her other than sex,

H.A. stated that he would touch her “on the outside” and make her touch his penis.

She recalled a time when “[h]e was in the living room and he had pulled me down.

He had pulled his pants down and he said something and then I was crying and he

told me to hurry up and do it, to touch him.” Questioned whether she did as he

directed, H.A. responded: “Yes. After all that, he had stopped and I started

crying.” Overall, H.A. testified that Mr. Thibeaux molested her over fifteen times

in the living room of the family home and about that many times in her bedroom.

H.A. explained that she was too afraid to tell—afraid she would never

see her mother happy again if she told—because her mother loved Mr. Thibeaux so

much. She also stated that she was “really afraid and . . . didn’t know what else

would happen, that he could do something else like abuse, so I didn’t do anything.”

H.A. further testified that Mr. Thibeaux threatened that she would not be able to

see her boyfriend if she ever told anyone and that he told her to have sex with her

boyfriend. But, on June 9, 2015, when her mother’s brother finally asked her

outright if Mr. Thibeaux was molesting her, H.A. explained that she felt

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comfortable telling both her uncle and her mother the truth because her mother was

mad at Mr. Thibeaux. In fact, from Mr. Thibeaux’s testimony, it was revealed that

H.A’s mother had kicked Mr. Thibeaux out of the family dwelling earlier that day.

That night H.A. was taken to Our Lady of Lourdes Hospital (OLOL), where a

sexual assault examination was performed. While no outward signs of trauma

were noted, DNA was collected from the panties she was wearing as well as from

the fitted sheet that both H.A. and her mother testified was placed only on H.A.’s

bed.

H.A. then recounted for the jury an incident that occurred after she

had been removed from her mother’s care. She recalled that her mother picked her

up and brought her to Burger King where Mr. Thibeaux met them. When he

approached the vehicle, H.A. started crying. Both her mother and Mr. Thibeaux

then tried to get her to recant and say she was only having sex with her boyfriend,

not her stepfather.

On cross-examination, defense counsel asked H.A. whether she

screamed, yelled, kicked, or did any of those things when Mr. Thibeaux came into

her room that first time to which she responded in the negative. Defense counsel

then asked if she was hurting when she went to the hospital to which she replied

that she was not hurting, scratched, bruised, or bleeding. H.A. also admitted that

she initially denied that Mr. Thibeaux had touched her when asked by her uncle,

and she further admitted that she would often voluntarily go to the store with Mr.

Thibeaux and even asked to go with him.

H.A. acknowledged that she never told her mother what her stepfather

was doing to her and never screamed for her mother. And even though she was on

the phone with her boyfriend during one of the rapes, she did not tell him that she

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needed help. She knew her boyfriend’s mother well but did not tell her anything,

and she saw her uncle several times a month but did not tell him either. Although

H.A. went to a counselor once a week during this time, H.A. did not speak to the

counselor about what her stepfather was doing to her. In fact, she told the

counselor that she liked Mr. Thibeaux and that everything in the house was fine.

Her counselor, Mary Smith, testified, however, that she observed H.A.

with Mr. Thibeaux, and while he was “very affectionate with her[,]” H.A. was

“very withdrawn.” Ms. Smith recalled one instance in which her receptionist

called her into the waiting area to observe Mr. Thibeaux’s inappropriate

“caressing” of H.A.: “he would sit by her and he would kind of caress her hair;

very attentive. In sessions as well, he would be informative.” When Ms. Smith

asked H.A. about her relationship with Mr. Thibeaux, H.A. would withdraw and

shut down. But Ms. Smith conceded, on cross-examination, that H.A. never told

her of the alleged sexual molestation and she never saw any telltale signs of sexual

molestation, which, by law, she would have been mandated to report.

The State then played for the jury the video of H.A.’s Hearts of Hope

interview, conducted on June 16, 2015. When asked why she was being

interviewed, H.A. stated that she had been raped by her stepfather. She explained

that Mr. Thibeaux started “messing with her all of a sudden” in August of the

previous year and touching her almost every night. In November, Mr. Thibeaux

started raping H.A. The last day Mr. Thibeaux raped H.A. was on Monday of the

previous week. H.A. also described the Burger King incident when she and her

mother saw Mr. Thibeaux.

When asked to remember a specific time in August that Mr. Thibeaux

touched her, H.A. told the interviewer that the first night, after she had fallen

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asleep, she felt fingers all over her body. She woke up scared, and Mr. Thibeaux

told her to be cool and be quiet. She put the covers over her head and went back to

sleep. H.A. said that Mr. Thibeaux touched her breasts and her vagina over and

underneath her clothes and then went to bed.

In her discussion of that incident, H.A. described another night when

Mr. Thibeaux scared her by taking off her clothes and “licking” her vagina. Her

mother “almost caught him” when she walked in, but Mr. Thibeaux hurriedly put

the covers back on H.A., pretending he was praying with her. H.A.’s mother left

the room mad. Mr. Thibeaux went to talk to H.A.’s mother and eventually called

for H.A. He asked H.A. if he ever touched her, and H.A. said “no” because that is

what Mr. Thibeaux told her to say.

The interviewer reminded H.A. that she said Mr. Thibeaux began

raping her in November. H.A. stated that she remembered it being November

because that was when they moved into their house. Around the fifth day after

they moved into the house, Mr. Thibeaux went to H.A.’s room and started touching

her vagina underneath her clothes. He then pulled his shorts and H.A.’s shorts off,

got on top of her, “put” his penis into her vagina, and started “humping” her. H.A.

stated that it hurt for a while and then it stopped. The next day, no one talked

about what happened. No one heard what was going on, and no one asked what

was going on.

Asked to describe another time, H.A. recounted when Mr. Thibeaux

had told her to go sleep in the front room. After he came into the room, Mr.

Thibeaux touched her underneath her clothes, took off her shorts, and started

“licking” her. He then penetrated her vagina with his penis and “began humping.”

7

Because it was hurting, Mr. Thibeaux put vaseline on H.A.’s vagina and then

penetrated her vaginally again with his penis.

The interviewer asked H.A about a time when H.A. saw Mr. Thibeaux

put on a condom. H.A. recalled when Mr. Thibeaux came into her room, started

touching her, and pulled down her shorts. He put a condom on his penis, got on

top of her, and “put” his penis in her vagina. Then Mr. Thibeaux started

“humping” her and putting her in different positions. She explained that Mr.

Thibeaux would pick her legs up and start “humping” her in such a position.

On the Monday prior to the interview, H.A. recounted how Mr.

Thibeaux came into her room, began touching her, and then penetrated her vagina

with his penis. After about ten minutes, Mr. Thibeaux ejaculated and then went

back into his room. In each sexual encounter, H.A. recalled that Mr. Thibeaux

would “wipe off” any seminal fluid from her vagina with a towel and even one

time with her school shirt. According to H.A., her mother was always asleep when

Mr. Thibeaux did these things to her, and it was always nighttime.

When the interviewer asked H.A. if Mr. Thibeaux ever talked to her

about not telling anyone, H.A. stated that, before school one morning, he asked her

if she was going to tell anyone. She told him she would not. The reason she did

not want to tell anyone was because she was shy and scared. The interviewer

asked H.A. if Mr. Thibeaux ever threatened her if she told someone. H.A.

responded that Mr. Thibeaux told her that she would not be able to see her

boyfriend if she ever told.

The interviewer then inquired as to whether there was any time when

Mr. Thibeaux “put his private” somewhere else besides in her vagina. H.A. said in

reply that he “put” his penis in her “butt.” She described how she was in the front

8

room when Mr. Thibeaux came in and began touching her vagina. He then

penetrated her vagina with his finger and started “humping” her in her anus,

ejaculating in her anal canal. This, she clarified, was a completely different time

than the other time something happened in the front room. She also said that it was

painful when he penetrated her anally and that she tried to fight him, but Mr.

Thibeaux held her legs. H.A. stated that he “put his private” in her anus another

time, but she did not remember much about that time.

In further clarification, H.A. stated that Mr. Thibeaux’s penis did not

“go anywhere else” besides her vagina and anus, but she did have to touch his

penis. One night while watching T.V., Mr. Thibeaux told H.A. to come over, and

he pulled down his pants. He then grabbed her hand and made her touch and rub

his penis. H.A. said this was a completely different time than any other time she

talked about. When she pulled her hand away, Mr. Thibeaux left to go to another

room.

After the video finished, the State called H.A.’s mother, Ashley

Thibeaux, who testified that she initially believed her daughter. She even called

Mr. Thibeaux and threatened him with violence for violating her child. When

asked what Mr. Thibeaux said in response to her threat, Mrs. Thibeaux answered,

“He told me that he didn’t do anything and he told me that [H.A.] had came on to

him.” When questioned about the Burger King encounter and whether she had any

concerns about bringing her daughter into a car with the man accused of molesting

her, Mrs. Thibeaux replied that she had no such concerns after she saw her

daughter embrace Mr. Thibeaux when he arrived at the restaurant. She further

testified about how H.A. had recanted her story. Mrs. Thibeaux stated that H.A.

told her that she was sleeping with her boyfriend and was afraid she was pregnant.

9

When questioned if H.A.’s counselor ever told her that H.A. was having sex with

her boyfriend but not having sex with Mr. Thibeaux, Mrs. Thibeaux answered,

“No.” She just remembered the counselor telling her that she thought H.A. was

having sex with her boyfriend. H.A.’s counselor, however, denied ever making

this statement when she took the stand.

Mrs. Thibeaux admitted that she was with her husband in Opelousas

in the weeks after H.A. reported the sexual assaults. And although she knew the

police were looking for her husband, she explained that she did not call the police

because H.A. told her nothing had happened between her and Mr. Thibeaux. Mrs.

Thibeaux also testified that she and Mr. Thibeaux never had sex on H.A.’s bed.

Though the family would share old sheets, the sheets from H.A.’s bed were new

and only used on H.A.’s bed.

On cross-examination, Mrs. Thibeaux testified that she never heard

H.A. yell for help and never saw any suspicious conduct between H.A. and Mr.

Thibeaux. She also testified that she had caught H.A. lying to her about school and

about her boyfriend.

Through the testimony of Jill Laroussini, a Registered Nurse and

Sexual Assault Nurse Examiner (S.A.N.E.), the State introduced the report of

H.A.’s sexual assault examination, performed on June 9, 2015, at OLOL.

According to the report prepared by Ms. Laroussini, H.A. affirmed that her vagina

was penetrated with a penis, finger, and tongue; that her anus was penetrated with

a penis, finger, and tongue; and that there was penetration of H.A.’s mouth by a

penis. Ms. Laroussini testified that her intent in the report was to refer to just the

most recent sexual assault. H.A. also reported that she “go[t] on top of [Mr.

Thibeaux].” According to the report, H.A. was getting “Depo[-Provera]”

10

injections, which contain the hormone progestin and can be used for birth control

and hormonal abnormalities.

As for the section of the report addressing verbal threats, H.A.

reported: “If I asked him to visit my boyfriend, he told me I have to do that if I

want to go.” The report further recorded that there were no threats of harm,

choking, bites, hitting, burns, guns, knives, blunt objects, restraints, chemicals, or

other weapons, but there was holding. Specifically, H.A. reported: “Holds my

arms and my legs.” Also contained in the report was H.A.’s narration of the sexual

assault that allegedly occurred on June 8, 2015, about which Ms. Laroussini

testified:

“Yesterday nine or 10:00 they was watching TV in
her room. He came out the room and he sat on my bed
and he stuck - -

....

“He sat on my bed and he started me [sic] and stuff
between my legs. I don’t remember what he said. He
started touching on my breasts. He put his mouth there.
Took off my shorts and started [sic] lick on me. He took
off his shorts. He put his private in me. Started humping
me and stuff. I was fighting him and he pulled my arms
away from him. After a while he stopped then he got off
me and told me pull my shorts back on. Then he went
back in my mama’s room. I continued playing on my
mama’s phone and then I started crying. He put the
liquid stuff on me.” And then I signed as though it was
done and then later in the exam she reported, “Back in
time he was doing it while I was on the phone with my
boyfriend. He wanted to know why I was crying.”

While Ms. Laroussini’s physical examination of H.A. showed no

tears, bruises, or other injuries, she noted that H.A. did have “quite a large amount

of yellow-white liquid substance dripping from the vaginal vault.” She explained

that the yellow-white substance may have been a result of the body’s creation of

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more mucus to wash out something that did not belong in the vagina. When asked

if there was any evidence that H.A. had had sex recently, Ms. Laroussini replied:

On physical exam and direct visualization, I did not find
injury. I can’t say. I don’t have the expertise to say
whether a patient has had sex recently. But I can tell you
that her report was consistent with my findings. And we
do not see injury in about 85 to 90 percent of rape cases.

On cross-examination, Ms. Laroussini stated that, when she examined H.A.’s anus,

everything looked in the normal limits, and she did not chart the presence of

hemorrhoids.

Carolyn Booker, a DNA analyst who was accepted as an expert,

testified about her analysis of the stains from H.A.’s fitted bed sheet and panties.

According to her, a mixed DNA profile consisting of at least four contributors was

obtained from the epithelial fraction of the seminal fluid stain on the sheet from

which neither H.A. nor Mr. Thibeaux could be excluded as contributors. Ms.

Booker explained that 99.996 percent of people in the world are expected to be

excluded from this mixture, as H.A.’s boyfriend was. She further opined: “In the

absence of identical twins, it can be concluded to a reasonable degree of scientific

certainty that Nathaniel Thibeaux is the source of the DNA from the sperm fraction

in the seminal fluid stain on the sheet.”

As for the sperm fraction of the seminal fluid on H.A.’s panties, Ms.

Booker testified that three contributors were found. H.A. could not be excluded as

a contributor to the epithelial fraction of seminal fluid found on her panties, but

both Mr. Thibeaux and H.A.’s boyfriend were excluded as contributors. H.A.

could also not be excluded from the sperm fraction on the panties, but both Mr.

Thibeaux and H.A.’s boyfriend were excluded. Nevertheless, a mixed partial Y-

STR profile was also obtained from the sperm fraction of the seminal fluid stain on

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the panties from which Mr. Thibeaux could not be excluded as a contributor,

though H.A.’s boyfriend was again excluded.

Explaining how Mr. Thibeaux could be excluded in the DNA profile

but not excluded in the Y-STR profile, Ms. Booker testified: “The Y chromosome

testing is a little bit more sensitive than the autosomal testing. And I got a better

profile from the Y testing, so I can draw a conclusion that he could not be excluded

as a Y donor.” Moreover, because he could not be excluded on the Y-STR, she

testified that it was possible that some of the samples she tested in the DNA profile

were from Mr. Thibeaux. If she had a better sample, she would have been able to

be more accurate.

Ms. Booker testified on cross-examination that presumptive testing

was positive for blood on the rectal swabs but not in the fingernail swabs collected

during H.A.’s sexual assault examination. The vaginal swabs that were taken in

the sexual assault kit showed no seminal fluid. Additionally, no spermatozoa were

found on the vaginal, oral, or rectal slides. Ms. Booker also explained that seminal

fluid comes from males only but that female epithelial cells can be mixed in the

sample. She clarified on re-direct that, although there were three male contributors

to the epithelial fraction of seminal fluid on the sheet, there was only one

contributor to the sperm fraction—Mr. Thibeaux.

The sole witness to testify for the defense was Mr. Thibeaux. He

testified that he had been in prison four times—twice for distribution of cocaine

and twice for possession of cocaine. Further, he denied raping, molesting,

fondling, or any other activity with H.A. and also denied having oral, vaginal, or

anal sex with H.A. When asked on cross-examination to explain why he would

13

have told his wife that the reason he did what he did to H.A. was because H.A.

came on to him, Mr. Thibeaux explained:

Well, I did say that. But the reason why I said that, a lot
of people caught what I said in the wrong way. She came
onto me as a father figure. [H.A.] and the rest of her kids
really never had a father in their life.

Again when asked if he raped and molested his stepchild at least thirty times, Mr.

Thibeaux replied, “I haven’t touched her, sir.”

In its closing statement, the State broke down the conduct that

supported each of the offenses charged:

• Count One (Aggravated Rape)—the first time Mr.
Thibeaux anally raped H.A.

• Count Two (Aggravated Rape)—the first time Mr.
Thibeaux vaginally raped H.A.

• Count Three (Aggravated Rape)—the vaginal rape
that occurred when H.A.’s mother left to pick up H.A.’s
brother and H.A. had just showered.

• Count Four (Aggravated Crime Against Nature—
sexual intercourse)—the vaginal intercourse where Mr.
Thibeaux used vaseline.

• Count Five (Aggravated Crime Against Nature—
Sexual Intercourse)—the other time Mr. Thibeaux had
anal intercourse with H.A. as described in her Hearts of
Hope interview.

• Count Six (Aggravated Crime Against Nature—
Sexual Intercourse)—the last time Mr. Thibeaux had
vaginal intercourse with H.A. on June 8, 2015.

• Count Seven (Aggravated Crime Against Nature—
lewd fondling)—the first time Mr. Thibeaux molested
H.A. in the apartment.

• Count Eight (Aggravated Crime Against Nature—
lewd fondling)—the time Mr. Thibeaux licked H.A.’s
vagina and her mother walked in.

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• Count Nine (Aggravated Crime Against Nature—
lewd fondling)—the incident where Mr. Thibeaux made
H.A. grab his penis.

The jury returned unanimous guilty verdicts on counts one, two, four, five, seven,

and eight. The verdict on count three was ten to two in favor of guilty, and the

verdicts on counts six and nine were eleven to one also in favor of guilty.

III.

ERRORS PATENT

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

by the court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent. The trial court did not specify whether Mr.

Thibeaux’s sentences for aggravated crime against nature are to be served with or

without hard labor. Therefore, we vacate the sentences and remand for

resentencing with instructions to specify whether the sentences are to be served

with or without hard labor.

IV.

LAW AND DISCUSSION

When a defendant raises issues on appeal both as to the sufficiency of

the evidence and as to one or more trial errors, the reviewing court must first

resolve the sufficiency issue. State v. Hearold, 603 So.2d 731 (La.1992). This is

because, if the entirety of the evidence is insufficient to support the conviction,

“the accused must be discharged as to that crime, and any discussion by the court

of the trial error issues as to that crime would be pure dicta since those issues are

moot.” Id. at 734. Accordingly, we will first address Mr. Thibeaux’s sufficiency

arguments.

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Sufficiency of Evidence

In his second assignment of error, Mr. Thibeaux asserts that the

evidence was insufficient to prove that three separate acts of sexual intercourse

occurred and that H.A. resisted each sexual act to the utmost but her resistance was

overcome by force. Rather, he contends that the evidence presented to prove

counts one through three was sufficient to convict him of sexual battery; thus, the

aggravated rape convictions should be reversed, verdicts of sexual battery should

be entered, and the case should be remanded for resentencing on the lesser

verdicts.

Standard of Review

This court in State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.

5/7/97), 695 So.2d 1367, 1371, set forth the analysis for insufficiency of the

evidence claims:

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.

16

Elements of Aggravated Rape

The State charged Mr. Thibeaux with three counts of aggravated rape

upon his stepdaughter, violations of La.R.S. 14:42(A)(1). H.A. was thirteen when

the rapes began and had turned fourteen by the time they ended. At the time of the

offenses, La.R.S. 14:42(A)(1) provided, in pertinent part:2

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.

To prove Mr. Thibeaux committed the aggravated rapes as charged in

the indictment, the State was required to establish that the victim, in each separate

instance, resisted the act to the utmost, but her resistance was overcome by force.

In brief to this court, Mr. Thibeaux notes that H.A. admitted that she did not

scream during the alleged acts, did not try to push Mr. Thibeaux off, and did not

kick Mr. Thibeaux. Moreover, H.A. offered very little details suggesting any force

was used upon her. As to the first encounter, when asked what she did, H.A.

testified that “I would move my legs and he would try to move them down”

without explanation. Again in her forensic interview, H.A. discussed that Mr.

Thibeaux would move her legs. However, Mr. Thibeaux posits that the

movements were more for placement of position rather than to subdue or restrain.

2
After the commission of the instant offenses, the crimes of aggravated rape and forcible
rape were renamed first degree rape and second degree rape, respectively, in 2015 La. Acts No.
184, § 1. The elements, however, were unchanged. Therefore, for consistency with the
transcript and record, we will refer to the crimes as aggravated rape and forcible rape.

17

According to Mr. Thibeaux, the only time H.A. discussed any type of

resistance was during the first anal rape. When asked if she tried to stop him, H.A.

said she did, but he kept holding her down. But again, Mr. Thibeaux notes that she

did not elaborate as to what she meant by this comment or what she did to try to

stop him. H.A. testified that although she was on the phone with her boyfriend,

she did not tell her boyfriend what was occurring and she did not ask for help. The

only threat H.A. testified to was that Mr. Thibeaux told her she would not be

allowed to see her boyfriend if she told anyone. But these responses and non-

existent, or at most minimal, resistance, Mr. Thibeaux argues, do not indicate H.A.

resisted to the utmost but was overcome by force.

The State, however, contends that the jury decided the elements of

aggravated rape were met after hearing H.A.’s testimony at trial and her Hearts of

Hope interview. As to count one, the State notes that H.A. stated that the first time

Mr. Thibeaux raped her anally she tried to fight him off, but he held her down and

did it anyway. She told the jury that, not only did she tell him to stop, she

physically tried to stop him, but he kept holding her down. Regarding count two,

H.A. testified that Mr. Thibeaux tried to whip her and that she made noises in

hopes that it would make him nervous. She also testified that she would resist by

moving her legs around, but he would hold them down.

Concerning count three, H.A. was asked whether there was any other

time where Mr. Thibeaux had sex with her and she resisted him. H.A. then

proceeded to tell the story about the time she was home alone with Mr. Thibeaux

when he came into her room after she had taken a shower and made her have sex

with him. The State points to this line of questioning and her response

immediately followed her relaying of the events involved in count one wherein she

18

described trying to stop Mr. Thibeaux from anally raping her, but he kept holding

her down. By the State’s immediately asking H.A. if there was any other time she

resisted Mr. Thibeaux, it was rational, the State argues, for a jury to conclude that

her resistance in the events of count three was similar to the resistance she had just

described in count one. The State further contends that the jury was able to see

both H.A.’s and Mr. Thibeaux’s size when they walked to the witness stand to

testify and, thus, was able to compare their sizes.

In determining whether the evidence of the victim’s resistance and the

force used to overcome it were sufficient for any rational factfinder to find that the

requirements for aggravated rape were proven beyond a reasonable doubt, we look

to the jurisprudence for both comparison and guidance as to proportionality.

This court, in State v. Pitts, 11-1020, p. 7 (La.App. 3 Cir. 4/4/12), 87

So.3d 306, 313, writ denied, 12-980 (La. 10/26/12), 99 So.3d 639, addressed the

proof necessary for aggravated rape as compared to forcible rape:

The degree of force necessary to prove forcible
rape was addressed by the court in State v. Berniard, 03-
484, p. 10 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 73,
writ denied, 03-3210 (La.3/26/04), 871 So.2d 345:

The difference between aggravated
rape and forcible rape is the “degree of force
employed and the extent to which the victim
resists.” State v. Parish, 405 So.2d 1080,
1087 (La.1981); State v. Puckett, 02-997, p.
10 (La.App. 5th Cir.1/28/03), 839 So.2d
226, 231. A greater degree of force is
necessary to justify the more serious
punishment imposed for aggravated rape.
State v. Jackson, 437 So.2d 855, 858
(La.1983). The degree of force employed
and the determination of the grade of rape is
for the jury to decide. State v. Cepriano, 00-
213, p. 9 (La.App. 5th Cir.8/29/00), 767
So.2d 893, 899. Nonetheless, the mere fact
the defendant was unarmed and the victim

19

suffered no extensive physical pain or injury
does not negate the possibility that an
aggravated rape occurred. Puckett, 02-997
at p. 8, 839 So.2d at 231.

While a greater degree of force is necessary to justify the more serious punishment

imposed for aggravated rape, “there is no magic formula to determine which acts

of coerced sexual intercourse warrant the greater punishment of aggravated rape

rather than forcible rape. Each case must be examined on its own facts.” State v.

Jackson, 437 So.2d 855, 858 (La.1983). Thus, the jury is assigned “the function of

fixing the range of permissible punishment for convicted offenders by returning a

verdict which appropriately fits the crime and the degree of force employed.”

State v. Willie, 422 So.2d 1128, 1129 (La.1982).

Viewing all the evidence in a light most favorable to the state, this

court, in State v. Helaire, 496 So.2d 1322, 1323 (La.App. 3 Cir. 1986), writ denied,

503 So.2d 13 (La.1987), found the evidence was sufficient to uphold the

defendant’s conviction for the aggravated rape of his fourteen-year-old “common-

law” stepdaughter. According to her trial testimony, the victim attempted to get

away when the defendant began making sexual advances toward her, but

eventually the defendant “grabbed her arm and pulled her into the bedroom” where

he “lifted up her robe, pulled down her panties, got on top of her, and forced her to

have sexual intercourse with him.” Id. at 1323. When she tried to get out from

under him, the defendant held her down and was “too heavy.” Id. at 1325. The

victim testified that she asked him to stop, but he would not. She further detailed

how she cried and screamed during the rape and how the defendant threatened that

he was going to do something to her and her mother that the victim would not like.

The victim’s younger brother further testified that he heard her crying and “peeped

20

through the keyhole to see what was going on.” Id. at 1323. Once he entered the

room, the defendant stopped his attack. On appeal, this court found that “[s]ince

the victim was only fourteen at the time of the offense and the defendant was much

heavier and stronger, the jury could find that the victim resisted to her utmost.” Id.

at 1326.

In State v. Puckett, 02-997 (La.App. 5 Cir. 1/28/03), 839 So.2d 226,

writ denied, 03-891 (La. 12/12/03), 860 So.2d 1148, the fifth circuit likewise

affirmed the defendant’s conviction of aggravated rape based on the sufficiency of

the evidence. The evidence established that the defendant therein rang the victim’s

doorbell and then “forced his way into the victim’s home when she opened the

door. He grabbed her, ripped her nightgown, and threw her down on the sofa bed

all while pulling her hair and punching her.” Id. at 230. Grabbing her off the sofa,

he then pushed her to the floor “where he poured syrup all over her hair and body.”

Id. at 230. The defendant tightly held the victim’s head, forcing her to perform

oral sex, and then had vaginal intercourse with her. The victim testified that she

tried to fight him off “as hard as she could and that she never gave up her fight.”

Id. at 230. As a result of the assault, the victim had a torn toenail, an abrasion on

her foot, and her head and calf were sore to the touch. In affirming, the court

reasoned:

The jury had before it the responsive verdict of forcible
rape but determined the amount of force employed and
resistance exerted amounted to aggravated rape.
Additionally, the jury heard testimony from both the
victim and the defendant. The jury either concluded that
the evidence proved that the victim resisted to her utmost
and was overcome by force or was prevented from
resisting by defendant’s acts of physical abuse
immediately before the rape which were tantamount to
threats of great bodily harm accompanied by apparent
power of execution. We find that the evidence supports

21

the jury’s determination that the amount of force
employed constituted aggravated, rather than forcible,
rape.

Id. at 231-32.

Relying on Puckett, this court, in State v. Davis, 09-1061 (La.App. 3

Cir. 4/7/10), 36 So.3d 351, writ denied, 11-1908 (La. 4/27/12), 86 So.3d 623, also

found the amount of force was sufficient to satisfy the element of aggravated rape.

The victim therein testified that she “was sleeping with her six-month-old son

when she awoke to see the defendant rushing toward her.” Id. at 353. Grabbing

her by the hair, the defendant threw the victim out of bed onto “the floor and then

back on the bed” again. Id. at 353. He told her to take off her underwear. “When

she did not act fast enough, he threw her on the floor again at which time she

complied.” Id. at 354. “He pushed her over the bed and attempted to penetrate

her from behind, but she kept squirming around.” Id. at 354. Unsuccessful, he

then dragged her from the bedroom to the living room, “pushed her down into the

couch,” and again attempted several times to penetrate her vaginally from behind,

but was unable to because “she kept trying to move away[.]” Id. at 354-44. The

defendant then dragged her back into the bedroom. Pushing her to her knees, the

defendant “tried to force her to perform oral sex on him, but she refused.” Id. at

355. Finally, with a pillow over her face and “a plastic Wal-mart bag” wrapped

around his penis, he penetrated her vaginally. Id. at 355. The victim testified that

she was terrified that the defendant was going to kill her and her baby. In

affirming the jury’s verdict, this court reasoned: “The jury heard the testimonies

and had the option to impose the responsive verdict of forcible rape, but must have

determined that the victim resisted to the utmost and that the physical abuse

22

inflicted was tantamount to threats of great bodily harm accompanied by apparent

power of execution.” Id. at 357.

However, more recently, in State v. Carter, 14-926 (La.App. 3 Cir.

4/1/15), 160 So.3d 647, writ denied, 15-859 (La. 6/17/16), 192 So.3d 770, this

court concluded that the evidence was insufficient to find that the victim resisted

the defendant’s sexual acts to the utmost but her resistance was overcome by force.

Therein, the jury convicted the defendant of the lesser included responsive offense

of attempted aggravated rape, which still required the state to prove the victim

resisted to the utmost but was overcome by force. Although the victim testified to

several sexual encounters with the defendant beginning when she was “six . . .

years old and continuing until she was in her teens[,]” this court found that there

were only three incidents upon which the jury could have based its verdict. Id. at

649. In the first two incidents, the defendant “offered to give [the victim] driving

lessons.” Id. at 649. On the first occasion, “he pulled to the side of the road,

alleging he needed to adjust the seat, pulled his penis out of his pants, and then had

[the victim] sit on his lap to drive.” Id. at 649-50. The victim testified that there

was no penetration “because she was wearing her panties and skirt.” Id. at 650.

During the second encounter, the defendant again “pulled over and adjusted the

seat,” but the victim, realizing what was happening, “refused to sit on [his] lap.”

Id. at 650.

In the third incident, the victim testified that she was “watching

television when [the d]efendant came to her house . . . . and asked for a

watermelon from [her] father’s [produce] truck.” Id. at 656. The defendant came

to the truck shortly after she did, and while she was in the bed of the truck, he

made [her] lay down, and . . . had sex with [her].” Id. at 656 (alterations in

23

original). She further testified that he picked up her dress, pushed her panties over

to the side, and got on top of her. Although she was able to “just jump[] up” after

the defendant penetrated her vaginally, the victim testified that she was scared,

hysterical, and “didn’t know [what] was going to happen.” Id. at 656 (alterations

in original). This court noted, however, that the victim “did not testify that she

resisted to the utmost” or that the defendant “overcame her resistance with force”

in any of the encounters; nor was there any testimony that the victim resisted from

the witness to the assaults, who conceded that the victim did not scream during the

rape. Id. at 652. Therefore, this court concluded:

The State did not offer any other evidence in
support of each of the elements of the crime of
aggravated rape or attempted aggravated rape, the
offense of which Defendant was eventually convicted.
B.P. was not under twelve during the relevant time
frame, testified that Defendant did not threaten her, and
the State did not prove that B.P. “resist[ed] the act to the
utmost, but [that her] resistance [was] overcome by
force.” Even when viewed in a light most favorable to
the prosecution, the State failed to prove Defendant
committed the offense of attempted aggravated rape
beyond a reasonable doubt.

Id. at 652-53 (alterations in original).

Considering the evidence introduced at trial herein as to the present

victim’s resistance and the force used to overcome it in relation to the resistance

and force recited in the cases above, we find the evidence was insufficient for any

rational factfinder to find that the element of aggravated rape at issue—H.A.

resisted to the utmost but her resistance was overcome with force—had been

proven beyond a reasonable doubt. In each of the cases in which the courts found

that the element of utmost resistance overcome by force was satisfied, the State

presented evidence that the victim resisted by crying, screaming, trying to run

24

away, or squirming, or that her attempts to do so were met with threats or physical

violence in the form of the defendant throwing, grabbing, dragging, punching, or

striking the victim.

The evidence herein shows that as to count one, the first anal rape,

H.A. said that she resisted, but Mr. Thibeaux held her down. As to count two, the

first vaginal rape, H.A. testified that Mr. Thibeaux would try to whip her and that

she would make noises. She also said that she resisted by moving her legs, but Mr.

Thibeaux would hold them down. Regarding the third count, we find the only

specific evidence of resistance was the fact that H.A. described the rape in

response to the State’s question, “Was there any other time where he had sex with

you and you resisted him?” H.A. testified, however, that she did not scream, yell,

or kick Mr. Thibeaux during any of the assaults. There was no testimony that H.A.

tried to get away and was prevented by either threats of harm or force from Mr.

Thibeaux. The only threat spoken of was her ability to see her boyfriend. And

though the movement of her legs was met by Mr. Thibeaux holding her down or

trying to “whip” her, this force is not to the degree of or in proportion to the force

exerted in the jurisprudence discussed above. Thus, although there was evidence

of resistance as to each count, we do not find that any rational factfinder could

have found that this evidence, even when viewed in a light most favorable to the

prosecution, proves beyond a reasonable doubt that H.A. resisted the acts to the

utmost but that her resistance was overcome by force so to warrant the greater

degree of punishment imposed for aggravated rape.

Because we find the State did not prove beyond a reasonable doubt

that Mr. Thibeaux committed the offense of aggravated rape, we will now consider

whether a lesser included responsive offense was proven.

25

Responsive Verdicts

Pursuant to La.Code Crim.P. art. 821(E), an appellate court, instead of

granting a judgment of acquittal, may modify the verdict and render a judgment of

conviction on a lesser included responsive offense, “[i]f the appellate court finds

that the evidence, viewed in a light most favorable to the state, supports only a

conviction of a lesser included responsive offense.” When the evidence does

support a conviction on a lesser included offense, “the discharge of the defendant

is neither necessary [n]or proper.” State v. Byrd, 385 So.2d 248, 251 (La.1980).

The following are the only responsive verdicts that may be rendered when an

indictment charges the offense of aggravated rape:

Guilty.

Guilty of attempted aggravated or first degree rape.

Guilty of forcible or second degree rape.

Guilty of attempted forcible or second degree rape.

Guilty of sexual battery.

Guilty of simple or third degree rape.

Guilty of attempted simple or third degree rape.

Guilty of oral sexual battery.

La.Code Crim.P. art. 814(A)(8). Therefore, we must now address whether the

evidence was sufficient to prove the responsive verdicts of forcible rape or the

even lesser included responsive offense of sexual battery, as Mr. Thibeaux

concedes.

26

Elements of Forcible Rape

Louisiana Revised Statutes 14:42.1 defines forcible rape, in pertinent

part, as follows:

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

(1) When the victim is prevented from
resisting the act by force or threats of
physical violence under circumstances
where the victim reasonably believes that
such resistance would not prevent the rape.

Recently, this court clarified the proof necessary to sustain a conviction for forcible

rape:

To sustain a conviction for forcible rape, actual
resistance is not required. Rather, all that is necessary is
that the victim be prevented from resisting by force or
threats of physical harm to such an extent that she
reasonably believed resistance to be futile. Only a
subjective, reasonable belief is necessary.

Carter, 160 So.3d at 654 (citations omitted).

In State v. Powell, 438 So.2d 1306 (La.App. 3 Cir.), writ denied, 443

So.2d 585 (La.1983), the minor victim approached the defendant’s car and asked

him for a ride. Although he agreed to take her to a cousin’s house, he brought her

to a secluded area instead. The victim testified that the defendant slapped her,

threatened to kill her, and indicated a weapon was under the seat of the vehicle.

After she removed her own pants, he had sexual intercourse with her. A panel of

this court concluded that there was no evidence of resistance and little evidence

that she believed resistance to be futile. However, Judge Stoker, in a strongly

worded dissent, opined:

27

The victim in this case stated that she submitted
because the defendant threatened to kill her if she did not.
Although she did not state in so many words that she did
not resist because she believed that resistance would not
prevent the rape, that is the clear meaning of her
testimony. If that meaning is not given to her testimony,
it is tantamount to requiring a person threatened with
rape to either be faced with a dangerous weapon or to
resist to the utmost and, in either case, subject themselves
to the possibility of great physical harm or death. This is
resistance in the context of aggravated rape. Forcible
rape requires less.

Id. at 1310.

This court then endorsed the Powell dissent in State v. Schexnaider,

03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, and upheld a conviction for

forcible rape when the defendant neither threatened the victim nor had a weapon.

In Schexnaider, the minor victim testified that she and the defendant were sitting

on the tailgate of the defendant’s truck when he “grabbed her face, kissed her and

pushed her onto her back in the bed of his pick-up truck.” Id. at 454. The

defendant then “proceeded to get on top of her,” took off her shoes and pants, and

penetrated her vaginally. Id. at 454. Although the defendant did not slap her and

she did not resist, the victim did testify that “when she get[s] frightened, she

freezes.” Id. at 454. Eventually, “she was finally able to tell the [d]efendant

‘No,’” and when she threatened to tell her friend, the defendant stopped. Id. at

454. The victim also testified that there was really nothing she could do to get the

defendant off of her because “he was bigger than her, and she was pinned under

the Defendant’s weight.” Id. at. 457. This court found “that the evidence and

testimony introduced at trial establishes that Defendant used sufficient force

against the victim to sustain the Defendant’s conviction.” Id. at 459.

28

More recently, this court in Carter, 160 So.3d 647, found that, while

the evidence recited previously did not support a conviction for attempted

aggravated rape, it did support the lesser included offense of forcible rape. In so

holding, the Carter court relied on Schexnaider and the fifth circuit’s decision in

State v. Wilkinson, 00-339, p. 15 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 766,

writ denied, 00-3161 (La. 10/12/01), 799 So.2d 494, wherein the court found that

the evidence was sufficient to convict the defendant of forcible rape when the

defendant, without threatening the victim and without a weapon:

forcibly grabbed [the victim], threw her to the ground,
pushed down her clothing, laid on top of her and
penetrated her vaginally several times. [The victim], a
fourteen-year-old, was frightened, weighed down by the
backpack and did not know whether any action on her
part would have caused him to do additional harm. She
was thrown into a secluded area and could have
reasonably believed that screaming would be futile.

Comparing the facts before it with both Wilkinson and Schexnaider, the Carter

court found:

The parallels between Wilkinson, Schexnaider, and
the instant matter are striking and support a finding of
forcible rape. In Schexnaider, 852 So.2d at 454, 457, the
defendant “pushed her onto her back in the bed of his
pick-up truck” and “got on top of her.” In Wilkinson, 772
So.2d at 766, the defendant “pushed down [the victim’s]
clothing [and] laid on top of her” after he grabbed her
and threw her to the ground. In the instant matter,
although the victim testified that Defendant “said, lay
down,” she also testified “[she] didn’t know [intercourse]
was going to happen[]” and that Defendant “made” her
lie down in the bed of the truck. Then, he pushed her
panties to the side; she did not willingly remove them.
Then, he “got on top of [her]” and had sex with her.
Additionally, B.P. indicated she was scared, confused,
and upset. She “jumped up” when it began to hurt. In
slightly different words, the victims in Schexnaider,
Wilkinson, and the instant matter said the same thing; an
adult man made them get on their back, got on top of
them, and penetrated them vaginally. Although B.P. did

29

not explicitly say that she did not resist because she
believed that resistance would be futile, it is clear from
B.P.’s testimony that when Defendant “made [her] lay
down,” “pushed” her panties to the side, and “got on top
of [her,]” she believed it pointless to resist.
Consideration of the victim’s age and size supports this
conclusion. B.P. was a young girl of barely twelve years
old; Defendant was an adult man. Although B.P. did not
directly testify to the size difference between the two, she
explained that, at one point, Defendant was large enough
to physically pick her up and carry her to his bathroom,
where he got on top of her and had sex with her. The
conclusion that B.P. thought it futile to resist is further
buttressed by the history of Defendant having taken
advantage of her on numerous prior occasions and her
having been helpless to dissuade him on any of the prior
occasions. . . . A jury could reasonably have concluded
that the victim reasonably believed that, against the force
Defendant exerted with his body as he “got on top” of
B.P., resistance was useless, especially in light of her
age, her size, and the extensive history between the two.

Id. at 656-57 (all but final alteration in original).

As recited and noted above, the evidence presented by the State

through H.A.’s testimony, her Hearts of Hope interview, and the report of her

sexual assault examination does support a finding that she resisted in each of the

sexual assaults for which Mr. Thibeaux was convicted of aggravated rape. In both

counts one and two, H.A. testified that she did resist but her resistance was

thwarted by Mr. Thibeaux holding her down or attempting to “whip” her.

Moreover, the jury was able to compare the sizes of both H.A. and Mr. Thibeaux

and take the difference in their sizes into consideration. Also of relevancy was the

fact that H.A. was only thirteen and fourteen at the time of the rapes and Mr.

Thibeaux was an adult man. Additionally, Mr. Thibeaux was in a position of

authority over H.A., which may have affected her belief that further resistance

would be useless.

30

Taken with the history of abuse H.A. testified to at trial and in her

interview and her fear that “he could do something else like abuse[,]” which

prompted her to not “do anything[,]” the jury could have concluded that H.A.

reasonably believed that further resistance was useless. Therefore, we find the

evidence was sufficient to prove forcible rape as to counts one and two. But as to

the third count, while H.A. did recount the vaginal rape that occurred when she

was home alone with Mr. Thibeaux in response to the State’s question about

whether there was any other time she resisted, the State did not present any

evidence or details regarding either (1) the force employed by Mr. Thibeaux, or (2)

H.A.’s belief that resistance would be futile in that instance. An inference that the

same amount of force was exerted as in count one just because H.A. testified to

count three directly following her testimony as to count one is simply not sufficient

to prove the elements of forcible rape.

However, as Mr. Thibeaux concedes, the evidence was sufficient to

prove sexual battery pursuant to La.R.S. 14:43.1(A), which provides, in pertinent

part:

Sexual battery is 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,
directly or through clothing, or the touching of the anus
or genitals of the offender by the victim using any
instrumentality or any part of the body of the victim,
directly or through clothing, when any of the following
occur:

(1) The offender acts without the
consent of the victim.

(2) The victim has not yet attained
fifteen years of age and is at least three years
younger than the offender.

31

All the elements necessary to prove the offense of sexual battery were clearly met

in this case as to count three given that H.A. testified that Mr. Thibeaux penetrated

her vagina with his penis without her consent when she was under the age of

fifteen and more than three years younger than Mr. Thibeaux.3 Accordingly, we

modify the verdict and render a judgment of conviction on the lesser included

offense of forcible rape for counts one and two and on the lesser included offense

of sexual battery for count three. We further remand for resentencing in

accordance with that judgment.

Ineffective Assistance of Counsel

Mr. Thibeaux asserts that he received ineffective assistance of counsel

in several respects: failure to challenge jurors for cause, defense counsel’s absence

during the playing of H.A.’s Hearts of Hope interview, failure to make sure bench

conferences were recorded, and failure to object to the trial court’s instruction on

impeachment evidence.

Legal Standard for Ineffective Assistance of Counsel

The United States Supreme Court has set forth the legal standard for

such constitutional challenges, explaining:

A criminal defendant is guaranteed the effective
assistance of counsel. United States Sixth Amendment;
La. Const. art. I, § 13; Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Washington, 491 So.2d 1337 (La.1986). To establish a
claim of ineffective assistance, a defendant must show
that counsel’s performance fell below an objective
standard of reasonableness under prevailing professional
norms; and, that counsel’s professional errors resulted in

3
The Louisiana Uniform Abuse Prevention Order, dated June 30, 2015, recites Mr.
Thibeaux’s date of birth as “8/8/78” and his height and weight as “5’10”” and “180”,
respectively.

32

prejudice to the extent that it undermined the functioning
of the adversarial process and rendered the verdict
suspect. Strickland v. Washington, supra; Lockhart v.
Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180
(1993). This does not mean “errorless counsel [or]
counsel judged ineffective by hindsight, but counsel
reasonably likely to render effective assistance.” State v.
Ratcliff, 416 So.2d 528, 531 (La.1982).

A claim of ineffectiveness is generally relegated to
post-conviction, unless the record permits definitive
resolution on appeal. E.g., State v. Prudholm, 446 So.2d
729 (La.1984). However, when the record is sufficient
for review, this Court will reach the merits of complaints
about counsel’s performance and grant relief when
appropriate. E.g., State v. Hamilton, 92-2639
(La.7/1/97), 699 So.2d 29, 32-35.

State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157, reversed

on other grounds, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37.

Failure to Challenge Jurors For Cause

Mr. Thibeaux first contends his trial counsel was ineffective for

failing to challenge three jurors for cause and failing to peremptorily strike these

same jurors from serving on the jury. One of the jurors, M.B., had a niece who

was molested by her stepfather. Another juror, T.A., told the court that she and her

two sisters were sexually molested for ten years by her father. The third juror,

S.B., was molested by her grandfather for two years. Mr. Thibeaux argues that

there was no conceivable trial strategy for leaving M.B., T.A., and S.B. on the jury

in the present case. He further contends that there is no way to know the impact

these jurors may have had on the final votes of the other jurors, namely on counts

three, six, and nine, which were not unanimous verdicts. Therefore, Mr. Thibeaux

concludes that he was prejudiced by his counsel’s inaction.

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In response, the State argues that defense counsel’s decisions to

accept the jurors were trial strategy decisions that should be relegated to post-

conviction relief. We agree.

As this court stated in State v. Mitchell, 13-426, pp. 28-29 (La.App. 3

Cir. 11/6/13), 125 So.3d 586, 605, writ denied, 14-102 (La. 6/20/14), 141 So.3d

807:

Decisions relating to investigation, preparation, and
strategy require an evidentiary hearing and cannot
possibly be reviewed on appeal. Only in an evidentiary
hearing in the district court, where the defendant could
present evidence beyond that contained in the instant
record, could these allegations be sufficiently
investigated. Accordingly, the defendant’s claims of
ineffective assistance of counsel will be relegated to post-
conviction relief.

Because we find defense counsel may have exercised trial strategy in his decision

as to these jurors, we relegate this matter to post-conviction relief, where an

evidentiary hearing may be held to investigate defense counsel’s reasons, if any,

for not challenging these jurors.

Defense Counsel’s Absence During Playing of Hearts of Hope Video

Mr. Thibeaux next asserts that his trial counsel was ineffective for

absenting himself during the playing of H.A.’s Hearts of Hope interview to the

jury. As the record reflects, trial counsel informed the court and the jury that he

would be stepping out for a few minutes during the playing of the video to which

the court responded:

Sure, absolutely. [Defense counsel] has a conference that
he has to take on an issue that is kind of an emergency
issue in federal court. So he will step into the back and
take care of that issue. I think you’ve - - everybody
understands you have reviewed the video as well.

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Trial counsel assured the court that he had reviewed the video.

In brief, Mr. Thibeaux argues that during his counsel’s absence, he sat

alone at the defense table, in full view of the jury, while the jury listened to the

repeated allegations made by H.A. Although there was no examination of a

witness during this time frame, critical evidence was received and deciphered by

the jury. Further, Mr. Thibeaux asserts that the perception portrayed by the

absence of counsel was surely one of abandonment of his client. He also claims

that the video was played twice and that the record raises serious questions of

whether defense counsel’s presence in the courtroom could have prohibited the

need for any potential playing of the video for a second time, which could not have

been favorable to Mr. Thibeaux.

The State, however, in its brief, explains that defense counsel returned

to the courtroom within twenty minutes, well before the video ended, and that the

tape was not played twice. Any reference to stopping the video merely involved

fast forwarding over a section that the parties had previously agreed to exclude

because it contained evidence of prior bad acts on the part of Mr. Thibeaux.

Thereafter, the State began the tape again. Moreover, the State asserts defense

counsel had already reviewed the video and knew that there was no content played

to which he needed to object. Therefore, according to the State, this claim should

be denied as just not factually valid.

Although there is some lack of clarity as to when the tape was stopped

and started again, we find the record does not indicate the video was played twice.

Considering the fact that defense counsel reviewed the tape, informed the jurors as

to why he would be absent, and returned to court before any other evidence was

35

introduced, we find that Mr. Thibeaux fails to show that he suffered any prejudice

so to prove this ineffective assistance of counsel claim.

Failure to Make Sure Bench Conferences Were Recorded

In his third assertion, Mr. Thibeaux claims that his trial counsel was

ineffective for failing to make sure bench conferences were recorded. According

to him, numerous bench conferences were held during the course of the trial, but

none was recorded. Further, although many of the bench conferences discussed

procedural matters, some were obviously for the purpose of arguing objections.

Failure of these bench conferences to be recorded, Mr. Thibeaux argues, has

limited his appellate review and resulted in circumstances where others have to

second-guess what may have transpired, particularly in those hearings where it was

acknowledged that pertinent objections were raised and legal arguments made.

Though alone this might not rise to a showing of prejudice, Mr. Thibeaux argues

that this, coupled with the other actions and inactions of his trial counsel, suggests

“an appearance of impropriety” concerning counsel’s representation.

In State v. Pinion, 06-2346, pp. 7-8 (La. 10/26/07), 968 So.2d 131,

134-35, our supreme court stated the following regarding unrecorded bench

conferences:

This Court has never articulated a per se rule either
requiring the recording of bench conferences or
exempting them from the scope of La.C.Cr.P. art. 843,
which requires in felony cases the recording not only of
the evidentiary portions of trial but also of “the
examination of prospective jurors . . . and objections,
questions, statements, and arguments of counsel.” State
v. Hoffman, 98-3118, p. 50 (La. 4/11/00), 768 So.2d 542,
586. The Court has instead conducted a case-specific
inquiry to determine whether the failure to record the
conferences results in actual prejudice to the defendant’s
appeal. As a general rule, the failure of the record to

36

reflect the argument of counsel on objections, even when
made in open court, does not affect a defendant’s appeal
because it does not hinder adequate review of the trial
court’s ruling. State v. Johnson, 438 So.2d 1091, 1104
(La.1983). Thus, the failure to record bench conferences
will ordinarily not affect the direct review process when
the record suggests that the unrecorded bench
conferences had no discernible impact on the proceedings
and did not result in any specific prejudice to the
defendant.

Considering the vague arguments made by Mr. Thibeaux with respect

to any prejudice that he suffered as a result of the unrecorded bench conferences in

the present case and the lack of any indication that these bench conferences had a

discernible impact on his trial, we find Mr. Thibeaux has failed to prove prejudice

and, in turn, a claim of ineffective assistance of counsel.

Failure to Object to Instruction on Impeachment Evidence

Mr. Thibeaux last asserts that his trial counsel was ineffective for

failing to object to the untimely and poorly-worded instruction regarding

impeachment evidence given by H.A.’s counselor, Ms. Smith. The testimony at

issue occurred when Mrs. Thibeaux was asked if H.A.’s counselor ever told her

that H.A. said she was having sex with her boyfriend but was not having sex with

Mr. Thibeaux. Mrs. Thibeaux answered, “No.” She just remembered the

counselor telling her that she thought H.A. was having sex with her boyfriend.

Mrs. Thibeaux subsequently testified that H.A. told her that she and Mr. Thibeaux

did not have sex and that she and her boyfriend had had sex. Ms. Smith then

testified that she never told Mrs. Thibeaux that she thought H.A. was having sex

with her boyfriend. Cassandra McAlister, the Department of Children and Family

Services Child Welfare Specialist assigned to H.A.’s case, also testified that Mrs.

Thibeaux told her that H.A.’s counselor had told Mrs. Thibeaux that H.A. was

37

sleeping with her boyfriend. Prior to closing arguments, the trial court gave the

jury the following limiting instruction:

That evidence or that testimony that came in was
some evidence by Ms. McAlister and Ms. Smith, in
regards to Ashley Thibeaux’s statement in regards to did
she ever tell Ms. McAlister that her daughter’s therapist
informed her that it was just the boyfriend or a boyfriend
that she was having sex with.

That statement and that evidence and testimony is
not to be used for any other purpose other than
impeachment purposes, only, of a statement or prior
inconsistent statement. That is for you to bring to the
deliberation room and use that as you see fit, only for
impeachment purposes of [Mrs.] Thibeaux’s testimony.

Mr. Thibeaux contends the trial court’s instruction was untimely as it

should have been made at the time the evidence was admitted. Additionally, he

argues that, rather than instructing the jurors that it was their duty to decide

whether Mrs. Thibeaux’s testimony had been impeached, the instruction actually

unduly led the jurors to believe that the judge was instructing them to find that her

testimony had been impeached.

Regardless of the timeliness of the trial court’s instruction or its

wording, we find that Mr. Thibeaux fails to show that he was prejudiced by his

counsel’s failure to object. Even without any instruction at all, we note that the

testimony was somewhat confusing. Still Mr. Thibeaux fails to show that the trial

court’s instruction to the jury substantially affected the jury’s evaluation of Mrs.

Thibeaux’s testimony or that such an instruction would have affected the jury’s

verdict. Furthermore, considering the physical evidence linking Mr. Thibeaux to

the sexual misconduct against H.A., i.e., the DNA and Y-STR profiles, as well as

H.A.’s extensive testimony, we find Mrs. Thibeaux’s statement, impeached or not

impeached, did not have a substantial affect on the jury’s decision as to whether

38

Mr. Thibeaux had sex with H.A. Thus, we conclude that Mr. Thibeaux has not

proven that his trial counsel was ineffective for failing to ensure the timeliness of

the instruction or for failing to object to the wording of the instruction.

For the foregoing reasons, we find this assignment of error lacks

merit.

Double Jeopardy

In his third assignment of error, Mr. Thibeaux contends that his

convictions for the three counts of aggravated rape and his convictions for three

separate counts of aggravated crime against nature violated his protection against

double jeopardy because the evidence admitted at trial was insufficient to discern

six separate and distinct acts of sexual intercourse. He asserts that H.A.’s

testimony was too vague as to dates, events, and specifics for the jury to

sufficiently ascertain what descriptions and details were pertinent to each alleged

act of sexual intercourse.

Regarding a similar allegation of double jeopardy, this court

elucidated:

Defendant further argues that because there was no
evidence of each individual offense, he was subjected to
double jeopardy when he was convicted of five separate
offenses based on a single allegation of sexual touching.
In State v. Ramsdell, 09-1510, pp. 10-11 (La.App. 3 Cir.
10/6/10), 47 So.3d 78, 85, this court discussed double
jeopardy, in part, as follows:

The Double Jeopardy provisions in
the state and federal constitutions protect a
defendant from both a second prosecution
for the same offense and multiple
punishments for the same criminal act. U.S.
Const. amend. V; La. Const. art. 1, § 15;
State v. Doughty, 379 So.2d 1088 (La.1980).
. . . However, an accused who commits

39

separate and distinct offenses during the
same criminal episode or transaction may be
convicted and sentenced for each offense
without violating the prohibition against
double jeopardy. State v. Williams, 05-1338
(La.App. 3 Cir. 3/1/06), 924 So.2d 1159,
writ denied, 06-1471 (La.12/15/06), 944
So.2d 1284.

Furthermore, Louisiana jurisprudence does not
follow the “‘same transaction’ test which would prohibit
prosecutions for different crimes committed during one
sequential, continuing course of conduct.” State v. Letell,
12-180, pp. 7-8 (La.App. 1 Cir. 10/25/12), 103 So.3d
1129, 1137, writ denied, 12-2533 (La.4/26/13), 112
So.3d 838. Finally, in Louisiana, double jeopardy fails to
protect an offender who violates numerous statutory
provisions on a crime spree. Id.

Every time Defendant completed the act of
touching the victim’s vagina or breast, either on the
couch or in her bed, over or under her clothes, it was a
separate and distinct act, whether it was sexual battery,
indecent behavior with a juvenile, or molestation of a
juvenile.

State v. Urena, 13-1286, pp. 8-9 (La.App. 3 Cir. 5/7/14), 161 So.3d 701, 707, writ

denied, 14-1603 (La. 4/10/15), 164 So.3d 829.

Elements of Aggravated Crime Against Nature

The aggravated crime against nature statute provides, in pertinent part:

A. Aggravated crime against nature is either of the
following:

....

(2)(a) The engaging in any prohibited
act enumerated in Subparagraph (b) of this
Paragraph 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 or any
degree, brother, sister, half-brother, half-
sister, uncle, aunt, nephew, or niece.

40

(b) The following are prohibited acts
under this Paragraph:

(i) 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.

(ii) 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.

La.R.S. 14:89.1.

As discussed above, the indictment, in counts four, five, and six,

charged Mr. Thibeaux with committing aggravated crimes against nature upon

H.A. by having sexual intercourse with her. Counts seven, eight, and nine charged

Mr. Thibeaux with committing aggravated crimes against nature upon H.A. by

lewdly fondling or touching her. Although the indictment did not set forth the

specific conduct upon which each of the aggravated crime against nature charges

are based, the State in closing argument explained to the jury the conduct specific

to each charge: count one—first anal rape; count two—first vaginal rape with

condom; count three—vaginal rape when H.A.’s mother was not home and H.A.

41

had just taken a shower; count four—vaginal intercourse with vaseline; count

five—the other time Mr. Thibeaux [had anal intercourse with] H.A.; count six—

last rape on June 8, 2015; count seven—molestation in apartment; count eight—

oral sex when H.A.’s mother walked in; and count nine—time when Mr. Thibeaux

made H.A. grab his penis.

Although Mr. Thibeaux argues that the State failed to prove separate

instances of conduct for each offense, he specifically attacks counts four and five,

positing that count four is the same as counts two or three. Our review of the

record evidence reveals that count four is based on the incident wherein H.A. was

in the front room of her house, and Mr. Thibeaux took off her shorts, began

“licking” her vagina, and then penetrated her vaginally with his penis. In her video

interview, H.A. recalled that Mr. Thibeaux used vaseline. Count two, however, is

based on conduct described by H.A. in that same interview as the first time that

Mr. Thibeaux vaginally raped her. H.A. described both instances during the same

portion of her trial testimony. But she clearly stated that they were two separate

encounters differentiated from each other by Mr. Thibeaux’s use of a condom in

the first vaginal rape and his use of vaseline in the second. Therefore, even though

her testimony was confusing, we find that there was sufficient evidence for the jury

to conclude two separate acts of conduct—one time being with a condom where

H.A. made noises (count two) and another time where Mr. Thibeaux used vaseline

(count four). The record further supports the jury’s finding that the rape that

occurred when Mr. Thibeaux entered her room after she had just showered (count

three) was a separate incident from the vaseline conduct charged in count four.

Mr. Thibeaux also contends that count five is the same conduct

charged in count one (the first anal rape). The record evidence shows, however,

42

that count five was supported by H.A.’s statement in her Hearts of Hope interview

that Mr. Thibeaux had anal sex with her at least one more time other than the

conduct asserted in count one. Mr. Thibeaux attacks the credibility of this

statement by arguing that it conflicts with H.A.’s trial testimony where she stated

that the incident described in count one was the only time Mr. Thibeaux “put his

private in [her] butt.” Regardless of the credibility of the testimony, which was for

the jury to evaluate, there was evidence of two separate incidents of anal rape.

Thus, we find the same evidence was not used for both count one and count five.

Because the record evidence reasonably supports the jury’s finding of nine separate

sexual encounters between H.A. and Mr. Thibeaux, we find this assignment also

lacks merit.

V.

CONCLUSION

For the foregoing reasons, we find the evidence was insufficient to

find Mr. Thibeaux guilty of all three counts of aggravated rape. However, the

evidence is sufficient to find him guilty of forcible rape as to counts one and two

and sexual battery as to count three. We, therefore, modify the judgment of the

trial court, enter a judgment of conviction as to forcible rape for counts one and

two and as to sexual battery for count three, and remand for resentencing. We

further affirm the convictions of aggravated crime against nature, vacate Mr.

Thibeaux’s sentences for aggravated crime against nature, and remand these

convictions for resentencing with instruction to the trial court to specify whether

the sentences are to be served with or without hard labor. Mr. Thibeaux’s claim of

ineffective assistance of counsel as to trial counsel’s failure to challenge three

43

jurors for cause and failure to exercise peremptory challenges to strike those jurors

is hereby relegated to post-conviction relief.

VERDICT MODIFIED IN PART AND AFFIRMED IN PART;

JUDGMENT OF CONVICTIONS ON TWO COUNTS OF FORCIBLE

RAPE AND ONE COUNT OF SEXUAL BATTERY ENTERED;

SENTENCES VACATED AND REMANDED FOR RESENTENCING.

44