Nos. 05-05-00207-CR, 05-05-00208-CR
Opinion issued November 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-23702-JV, F03-23703-JV. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice FITZGERALD.
A jury convicted Samuel C. Nicodemus of two sexual assault offenses and assessed punishment at ten years' imprisonment in each case. In two issues, appellant contends the evidence is legally and factually insufficient to support the convictions. We affirm the trial court's judgments.
Background
At 9:00 a.m. on October 4, 2003, L.M. went to the Remede Spa Woman's Center (Spa) to get a one-hour body massage. L.M., testified her boyfriend gave her gift certificates to the Spa for a facial, a makeup session, and two body massages. L.M. had received one massage by appellant on a previous date. When she went to the Spa on October 4, 2003, appellant came into the lobby and led L.M. to the massage room. Appellant left the room while L.M. undressed and got on the massage table under a sheet. L.M. testified she removed all of her clothing. As she lay on her stomach, appellant placed a heating pad on her back, then began rubbing her feet. L.M. testified the massage was very relaxing for the first ten minutes. Then, appellant placed part of the sheet between L.M.'s legs, exposing her right leg and buttocks, and positioned her leg away from her body. As appellant began massaging L.M.'s thigh, he continued up toward her hip. Appellant put one finger inside L.M.'s vagina and moved the finger in a circular motion. L.M. testified she was shocked, but did not say anything, nor did appellant speak. L.M. tensed her body. Appellant removed his finger, put L.M.'s leg under the sheet, then massaged the other leg and her arms and shoulders. When L.M. turned onto her back, appellant placed an eye pillow over L.M.'s eyes to help her relax. Appellant again draped the sheet between L.M.'s legs and began to massage the exposed leg and thigh. Appellant inserted his finger into her vagina a second time. L.M. said, "I'm not comfortable with that." Appellant replied, "That's okay. It's no big deal." L.M. testified she felt afraid, but did not get up and leave because she was naked. L.M. testified appellant placed her leg back under the sheet and continued the massage. Appellant asked L.M. if she was having any stomach problems, then put his hand on L.M.'s stomach under the sheet and began rubbing. Appellant said his grandmother was an "OB-GYN and helped him know about the female body and about vaginal dryness and stomach pains." L.M. testified she felt confused and uncomfortable about what appellant was saying. When appellant asked L.M. how she felt, L.M. lied and said she was relaxed so the session would end. L.M. testified she did not scream when appellant inserted his finger into her vagina because she was shocked and caught off guard. She said appellant was very calm through the entire time he was in the room. When appellant left the room so L.M. could get dressed, L.M. cried for a few minutes before she got dressed and went to the lobby. L.M. paid the receptionist, made an appointment for a makeup session, then went home. She did not tell the receptionist because appellant was standing in the lobby and she felt humiliated and embarrassed. L.M. called the Spa about a week later to cancel the makeup appointment and to get the owner's name and address. On October 10, 2004, L.M. sent a letter to the Spa owner detailing what appellant had done. The owner called L.M. about what had happened, then took the letter to the police. C.P. testified she went to the Spa for a body massage at 12:15 p.m. on October 4, 2003. Although she had been to the Spa about a year previously, she had never met appellant. Appellant introduced himself to her in the lobby and took her to a small room. Appellant asked C.P. if she felt uncomfortable taking off her underwear for the massage. C.P. said she did not have a problem doing that. Appellant left the room. C.P. got undressed and laid on the massage table underneath a sheet. Appellant came into the room and began the massage. As appellant massaged her legs, she felt very relaxed. C.P. testified appellant began massaging close to the inside thigh area, then he put his finger inside her vagina and moved his finger around several times. C.P. testified she tensed her body, but did not say anything to appellant because she was shocked and fearful of appellant, whom she did not know. Appellant removed his finger from C.P.'s vagina and asked C.P. to roll over. C.P. testified she had received massages at other businesses and the therapist always left the room whenever she turned over onto her back. Appellant neither left the room nor averted his eyes. Appellant placed a gel mask over C.P.'s eyes and began massaging her left leg, then moved to the right leg. As appellant massaged her thigh area, appellant inserted his finger inside C.P.'s vagina a second time. C.P. tensed her body, but again did not say anything to appellant. Appellant never spoke and appeared to be very calm. Appellant took his finger out of C.P.'s vagina, then immediately put his face on her vagina. C.P. testified she felt appellant's tongue inside her vagina. Appellant had a part of his body on top of C.P.'s legs, pinning her down. C.P. testified that everything happened very quickly. C.P. did not yell out when appellant pinned her down and put his tongue in her vagina because she feared what appellant might do. When she tensed her body, appellant told her to relax and concentrate on her breathing techniques. Appellant then stood behind C.P.'s head, massaged her neck, moved his hands down toward her breasts, then started moving down her stomach. C.P. told appellant to stop. Appellant immediately stopped. Appellant placed a small sheet over C.P.'s face and massaged her temples, stating that would make her forget everything that had happened. Then appellant removed the sheet from C.P.'s face and asked C.P. if she understood what he was talking about. C.P. nodded her head in agreement, but said nothing. Appellant left the room. After appellant had left the room, C.P. got dressed, paid the receptionist, and left the Spa. C.P. testified she felt panic, humiliation, and fear, and did not intend to tell anyone about what appellant had done. However, C.P. stopped at a fast-food restaurant down the street from the Spa and called a friend, who encouraged her to go to the police. C.P. drove to the police station and spoke with an officer. A few days later, the police photographed bruises on C.P.'s thigh where C.P. said appellant had pinned her down. Joi Mairet, the owner of the Spa, testified she offered regular Swedish massages, facials, makeup applications, and had a small boutique where she told items at the Spa, but she did not allow any type of sexual massage. Mairet testified appellant had worked for her as a licensed massage therapist for almost one year at the time of the incident. According to Mairet, she found out about the allegations of sexual assault when the receptionist called her. Mairet went to the Spa and spoke with the police officers, then she terminated appellant's employment that day. One week later, Mairet received a letter from L.M., who complained that appellant had inserted his finger into her vagina while giving a massage. Mairet called L.M. and talked about the incident, then gave the letter to the police. Mairet testified that her computer records at the Spa showed both L.M. and C.P. had massages performed by appellant on October 4, 2003. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To obtain convictions for sexual assault, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly, without C.P.'s consent, caused the sexual organ of C.P. to contact appellant's mouth, and caused the penetration of the sexual organ of L.M. by appellant's finger and without L.M.'s consent. See Tex. Pen. Code Ann. § 22.011(a)(1) (Vernon Supp. 2004-05). The uncorroborated testimony of a sexual assault victim alone is sufficient to support a conviction if she informed any person, other than the defendant, of the alleged offense within one year after the offense. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Gagliardo v. State, 78 S.W.3d 469, 477 (Tex.App.-Tyler 2001, pet. ref'd). Discussion
Appellant argues the evidence is legally and factually insufficient to show penetration occurred. Appellant claims the testimony of L.M. and C.P. was irrational and inconsistent and asserts that neither L.M. nor C.P. said anything when appellant allegedly sexually assault them, made an outcry to the receptionist who was on the premises, or attempted to terminate the massage session or leave the room, and there was no physical evidence or any other evidence to corroborate their testimony. The State responds the evidence is legally and factually sufficient because the jury was free to believe the witnesses' testimony. Although couched in terms of sufficiency to show penetration, appellant attacks L.M.'s and C.P.'s credibility only. The jury, however, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). It was the jury's function to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's sexual assault convictions. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We resolve appellant's issues against him. We affirm the trial court's judgment in each case.