Opinion
NO. 22-KA-476
05-10-2023
STATE of Louisiana v. Bryna Dawan BRITTON
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Shreveport, Matthew R. Clauss, Molly M. Massey, Laura S. Schneidau, Metairie COUNSEL FOR DEFENDANT/APPELLANT, BRYNA DAWAN BRITTON Bruce G. Whittaker, New Orleans
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Shreveport, Matthew R. Clauss, Molly M. Massey, Laura S. Schneidau, Metairie
COUNSEL FOR DEFENDANT/APPELLANT, BRYNA DAWAN BRITTON Bruce G. Whittaker, New Orleans
Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
WICKER, J. Defendant, Bryna Dawan Britton, appeals his convictions and sentences for third degree rape in violation of La. R.S. 14:43 and sexual battery upon a known juvenile in violation of La. R.S. 14:43.1. On appeal, defendant's sole assignment of error seeks review of the denial of his post-trial motions challenging the sufficiency of the evidence presented against him at trial. Upon review of the record on appeal, we find the evidence presented at trial sufficient to support defendant's convictions and we affirm his convictions and sentences. However, we remand this matter to the trial court for correction of errors patent.
STATEMENT OF THE CASE
On January 4, 2018, a Jefferson Parish Grand Jury indicted defendant, Bryna Dawan Britton, with first degree rape upon a known juvenile in violation of La. R.S. 14:42 (count one) and sexual battery upon a known juvenile in violation of La. R.S. 14:43.1 (count two). Defendant was arraigned on January 8, 2018, and pled not guilty to both charges. On May 2, 2022, the case proceeded to trial before a twelve-person jury. On May 5, 2022, the jury unanimously found defendant guilty of the responsive verdict of third degree rape on count one and guilty as charged on count two.
In the indictment, in count one, the State alleged that the offense occurred on or between December 1, 2013 and July 23, 2014. In count two, the State alleged that the offense occurred on or between July 24, 2014 and July 31, 2015. The State also alleged in count two that defendant committed sexual battery upon a known juvenile wherein the victim had not yet attained fifteen years of age and is at least three years younger than the offender.
On June 13, 2022, defendant filed a Motion for New Trial and for Post-Verdict Judgment of Acquittal, which the trial judge denied. On that same date, June 13, 2022, the trial judge sentenced defendant to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence for his third degree rape conviction and imprisonment for ten years without benefit of probation, parole, or suspension of sentence on his sexual battery conviction, with both sentences to run concurrently with each other and any other sentence the defendant may be serving.
Immediately after sentencing, the State filed a multiple offender bill of information on count one alleging defendant to be a second-felony offender. Defendant stipulated to the multiple offender bill. On the same date, the trial court adjudicated defendant as a second felony offender, vacated defendant's original sentence on count one, and resentenced defendant as a second felony offender to imprisonment at hard labor for fifteen years without benefit of parole, probation, or suspension of sentence to run concurrently with the sentence on count two. This timely appeal followed.
The multiple offender bill alleged that defendant had previously pled guilty to aggravated assault in Mississippi in violation of Mississippi Code Section 97-3-7, on September 6, 1996, and had been sentenced to twenty years at hard labor.
FACTS
K.J., age twenty at the time of trial, testified that her stepfather, defendant, Bryna Britton, sexually abused her from age twelve to fourteen. K.J. asserted that during that time, she lived in a condominium in Harvey with defendant, her mother, and her two half-sisters. She explained that defendant had been her stepfather since she was four years old and that she called him "Dad." K.J. explained that her mother worked outside the home Monday through Friday while she was at school during her sixth and seventh grade years but that her mother changed jobs and began working at home during her eighth and ninth grade years. She maintained that defendant did not work outside the home during that time frame.
The initials of the victim are used under the authority of La. R.S. 46:1844(W)(3), which allows the court to protect the identity of a crime victim who is a minor or a victim of a sex offense by using his or her initials. State v. Greene , 06-667 (La. App. 5 Cir. 1/30/07), 951 So.2d 1226, 1229 n.1, writ denied , 07-546 (La. 10/26/07), 966 So.2d 571.
At trial, K.J. testified that on December 31, 2013, when she was twelve years old and in the seventh grade, her grandmother died. She specifically recalled that after her grandmother died, defendant started sexually abusing her. She explained that she was in the seventh grade and wanted to shave her legs because she was being ridiculed, but her mother would not allow it. K.J. had told defendant that she wanted to shave her legs. One evening, defendant brought his pouch with his shaving supplies to the bathroom, shaved K.J.’s legs with his electric razor, and rubbed cocoa butter on her legs afterward. K.J. testified that defendant told her not to tell her mother that he shaved her legs. She thought at the time that she would get in trouble if her mother knew. She explained that she did not find defendant's behavior uncomfortable at that time, because defendant had raised her since she was four years old.
K.J. testified that defendant shaved her legs on one other occasion when she was twelve.
K.J. testified that at some point thereafter, when she was twelve years old, defendant came into her bedroom where she was lying on the bed. She recalled that it was during the day and that no one else was at home. K.J. stated that defendant pulled her panties down and pulled her to the end of the bed. She explained that she was lying on her back, with her knees on the bed and her legs hanging on the side of the bed. She stated that defendant was on his knees on the floor, and that he put his mouth on her vagina and moved his tongue around on the outside of her vagina for approximately ten minutes.
K.J. described another incident occurred when defendant awoke her while she was sleeping one night when she was "twelve or thirteen." She stated that she and her sisters were in the bedroom that the three of them shared when defendant woke her up. K.J. explained that defendant brought her into the bathroom, after which defendant pulled her pants and underwear down, then pulled his pants down. K.J. testified that she was facing forward in the doorway and that he was behind her. Defendant rubbed cocoa butter on her legs, rubbed around her "butt" area, and "played with himself." She stated that he then pushed her down so that she was bent over and that he tried to insert his penis into her "butt;" however, she squeezed her "butt" so he could not get inside. K.J. recalled that she then pulled her pants back up, and noticed that he was still "ejaculating," which she explained meant that he still had his hand on his penis going back and forth. K.J. described another incident when defendant attempted to anally penetrate her. She testified that one day after she had taken a bath, defendant called for her to go to her mother's room. K.J. explained that she was wearing defendant's robe, which he removed. She also explained that she laid down on the bed on her back and that defendant got on top of her and put his penis in her "butt" area, pointing out that it went in a "little bit" and that it "hurted." She recalled being either twelve or thirteen when this incident occurred. K.J. testified that similar incidents happened with defendant approximately five or seven times throughout middle school.
It appears from K.J.’s testimony that she used the word "ejaculating" but that she meant masturbating.
K.J. testified that, on other occasions, while defendant was "beating his meat," defendant asked her to do it for him. On one occasion, in her mother's bathroom, she testified that she put her hand on defendant's penis "beating his meat" and that while she did it, semen came out of his penis. She further testified that on another occasion, defendant tried to get her to put her mouth on his penis, but she refused.
K.J. testified that on one occasion, her mother walked into the bathroom while she was bent over with defendant behind her. K.J. testified that she noticed defendant get nervous, so she lied and told her mother that defendant was checking for hemorrhoids in her butt. K.J. recalled that her mother was upset and continued to ask K.J. what happened but at that time K.J. did not tell her mother about the abuse. K.J. testified that defendant stopped sexually abusing her for a period of time after her mother almost caught him during the incident in the bathroom. K.J. testified that by the beginning of ninth grade, the abuse had stopped.
K.J. testified that at some point while attending Belle Chasse Academy (BCA) in middle school, she told her school friend, Khaila Streams, that her stepfather had been touching her inappropriately. She asserted that she felt like she needed to tell someone her own age about the abuse, but did not plan to tell any adult. K.J. asserted that she started ninth grade at New Orleans Military and Maritime Academy (NOMMA) and that in tenth grade, when she was fifteen years old, she began dating Quadre Williams. She explained that defendant had become more "hands on," and that she was concerned he would start sexually abusing her again.
K.J. testified that while in a relationship with Mr. Williams, she disclosed the abuse to him. She also told defendant that she had a boyfriend and that she and her boyfriend had oral sex and that she had told her boyfriend what defendant had done to her. K.J. thought that if she told defendant that Mr. Williams knew about the abuse, defendant would not begin to sexually abuse her again. She stated that although she did not want defendant to get into trouble, she wanted his behavior to stop.
K.J. testified that in response, defendant asked her if his penis was bigger than Mr. Williams’ penis. She further testified that defendant said that he thought she liked what he was doing to her. She recalled defendant told her that when he got upset with her mother, what he did to her (K.J.) made him feel better. K.J. testified that she told defendant he needed to find another coping skill because she did not like what he had done to her. K.J. explained that she started having oral sex with Mr. Williams when she was fifteen years old, that she did not have vaginal sex with anyone by that time, and that she never told her mother that she had anal or vaginal sex with anyone aside from the report of defendant raping her.
K.J. testified that the next person she told about having oral sex with Mr. Williams was her godmother or "nanny," Kenya Dibartolo. She explained that she and her godmother talked about everything and that she felt comfortable talking to Ms. Dibartolo. K.J. asserted that during a FaceTime call, she told Ms. Dibartolo that she had already told defendant that she and Mr. Williams had been physically intimate. She stated that two days later, Ms. Dibartolo asked her why she felt comfortable talking to defendant about any sexual activity with her boyfriend. K.J. testified that she could not lie to Ms. Dibartolo, so she started crying. K.J. explained that Ms. Dibartolo then asked her if defendant had done something to her and that she (K.J.) cried harder. K.J. testified that after she stopped crying, she told Ms. Dibartolo that defendant had touched her inappropriately. She stated that while she was speaking with Ms. Dibartolo by phone on FaceTime, her mother came home. When her mother asked K.J. why she had been crying, Ms. Dibartolo, who was still on FaceTime, told K.J.’s mother to go into her room so they could talk. She stated that her mother went into the room and that Ms. Dibartolo told her what happened. K.J. testified that her mother came out of the room upset and walked outside. Approximately an hour later, her mother came back inside and asked K.J. if she had snuck a boy into the house. K.J. responded affirmatively. K.J. testified that at that time, her mother did not ask her one question about the abuse or anything about what Mrs. Dibartolo had told her mother over the phone.
K.J. testified that she stayed at home that night but did not see defendant. She recalled that the next morning, her mother told her that she was going to stay at Ms. Dibartolo's house for the weekend and the following two-day school break. Thereafter, K.J. went back to her mother's house in Harvey and spent the night there because she had to go to school the next morning. She explained that Ms. Dibartolo lived in Gentilly but that she was still going to school at NOMMA in Algiers. K.J. testified that she was downstairs waiting for her mother before school the next morning. When defendant saw her, he immediately said, "she had a boy in the house." K.J. further testified that defendant told her, "I should kill you" and "go outside." She testified that she was scared. K.J. explained that when she got to school, she had an anxiety attack and that she was crying and shaking. When questioned, she told her teacher that her stepfather told her he was going to kill her. She was sent to the counselor's office and the school counselor asked K.J. why defendant would threaten her. K.J. testified that at that time she disclosed the sexual abuse to her school counselor.
K.J. testified that the counselor called the police and the Department of Child and Family Services (DCFS). She further testified that after she spoke to them, she was taken to the Jefferson Parish Sheriff's Office (JPSO). K.J. recalled that the police told her she could not stay in the house with defendant, so they called Ms. Dibartolo, who agreed that K.J. could stay with her. K.J. testified that she stayed with Ms. Dibartolo until January 2018.
K.J. testified that while she stayed with Ms. Dibartolo, she missed school for approximately one week. She explained that after she reported the abuse to police, she fell behind in her schoolwork. K.J. recalled that at some point, she returned to school for two days but then left. During her two-day return to school, she learned at school that her boyfriend Mr. Williams had cheated on her and she began crying and told the counselor she could not "do it" anymore. K.J. testified that the counselor called K.J.’s mother and told her to take K.J. to Children's Hospital. She acknowledged telling someone she wanted to hurt herself. K.J. said she stayed at Children's Hospital for a week. After her hospital stay, her mother and Mrs. Dibartolo took K.J. to the Audrey Hepburn Care Center where she was examined by Dr. Ellie Wetsman and the Children's Advocacy Center (CAC) where she was interviewed about the sexual abuse from defendant.
K.J. testified that she got whippings as a child for things like being mean to her sisters or not sharing with them. K.J. recalled that her Uncle Elijah touched her inappropriately when she was three or four years old and that the first person she told was defendant. K.J. stated that she did not tell anyone before because she did not want her uncle to get into trouble. She also testified that her uncle used to "play with" her Aunt Cora, who is only five years older than K.J. She acknowledged that when she was eleven years old, she lied to her mother and defendant and told them that Cora had inappropriately touched her. She further admitted that she also lied and told her grandparents that Cora, rather than her Uncle Elijah, had touched her. K.J. admitted that she never told anyone until trial that Cora never actually touched her inappropriately.
K.J. explained that defendant would always ask, in front of her mother, if Cora did something to her, so she felt pressured into saying that Cora touched her. She said she wanted to stop being questioned about it.
K.J. testified that after defendant was arrested, her mother wanted her to move back home. She further testified that she did not do so and that her therapist requested a restraining order against her mother. K.J. testified that her mother removed her from NOMMA and forced her to go to McDonough 35 for eleventh grade because she did not want K.J. in school with Mr. Williams.
K.J. testified that she and Mr. Williams began dating again at the end of her eleventh-grade year. She also stated that she switched schools again to attend twelfth grade at New Orleans Charter Science and Mathematics High School because she was not academically challenged at McDonough 35. After she graduated from high school, she started college at Xavier University but stopped when she and Ms. Dibartolo moved to Atlanta. When she returned to New Orleans, she lived on campus at Xavier until transferring to River Parishes Community College where she was studying biological sciences in the hope of being an orthodontist. At the time of trial, K.J. lived in Gonzales with Mr. Williams and their six-week-old baby boy.
As to the number of times the sexual abuse occurred, K.J. testified that defendant's penis penetrated her "butt" approximately three times. She also testified that she did not remember how many times he put his mouth on her vagina but that it was more times than when he put his penis in her "butt." K.J. further testified that she "beat his meat" a lot, but less than ten times. With respect to defendant's attempts to keep her quiet, she explained that after one incident, she cried, but that defendant told her to stop crying and gave her money. K.J. also recalled another time when defendant gave her a "Kendall Fire" tablet, even though she was not allowed to watch television or use devices when it was time to go to sleep.
K.J. testified that she intended to keep defendant's sexual abuse a secret but that she could not lie when Ms. Dibartolo asked. She further testified that she did not lie when she told her story to Ms. Streams, Mr. Williams, the JPSO deputy, the JPSO detective, the school counselor, the interviewer at the CAC, and Dr. Wetsman. K.J. explained that she had suffered much loss since she reported defendant's behavior. She stated that she suffers from anxiety and depression; that she did not get to finish school at NOMMA where she wanted to—pointing out that she would have graduated as the valedictorian; that she wanted to go to Spellman but ended up going to Xavier and community college; that she lost the relationship with her sisters and did not get to see them grow up; and that she lost the relationship with her mother. K.J. testified at trial that she still loved her mother and defendant.
At trial, Khaila Streams testified that she met K.J. in the sixth grade at school. She stated that she and K.J. were very close friends at that time who confided in each other. Ms. Streams recalled that one day in seventh grade, she noticed that K.J. seemed very stressed out, disheveled, and very uncomfortable. Ms. Streams stated that K.J. then told her that the male living in her house had been touching her breasts and vaginal area and that it was an ongoing situation. She also stated that K.J. told her that the male would come into her room and massage her breasts and vaginal area.
Ms. Streams also testified that one day in gym class with K.J., she noticed that K.J. had a scratch and a bruise, which K.J. told her was from cheerleading or running into a door.
Ms. Streams explained that she comforted K.J. and that she did not tell an adult because K.J. told her it was very important not to tell anyone and she promised K.J. she would not do so. She testified that she told K.J. that someone needed to know what had happened and she offered to go with K.J. to tell someone but K.J. declined. She testified that K.J. told her that she did not tell her mother because she was afraid her mother would not believe her. Ms. Streams testified that she and K.J. graduated from BCA in 2015, and that she and K.J. went to different high schools.
Ms. Streams testified that in their freshman year in high school, she had a second conversation with K.J. She explained that although she had not seen K.J. since eighth grade graduation, she checked in to make sure K.J. was okay, and to encourage her to tell someone. Ms. Streams testified that in tenth grade in December 2017, she was called to the principal's office for a detective to question her about K.J. Ms. Streams testified that at that time she did not know that K.J. had finally disclosed the sexual abuse to someone and had not been warned that an officer or anyone would be questioning her about K.J.’s disclosure of the abuse. Ms. Streams testified that she told the detective what K.J. disclosed to her in 2014. She denied ever having a conversation with K.J. regarding her court testimony. Ms. Streams asserted that the last time she saw K.J. was at eighth grade graduation, that she and K.J. went to different high schools, and that they have mainly communicated only through Snapchat.
Mr. Quadre Williams testified that he was twenty years old at the time of trial and that he first met K.J. when he was a freshmen and K.J. was a sophomore at NOMMA. Mr. Williams explained that their friendship developed into a relationship in February 2017. He testified that at some point, K.J. told him on the phone that she had been raped and touched. Mr. Williams pointed out that K.J. did not initially provide many details of when or where it happened, and did not tell him who had raped or touched her. Eventually, K.J. disclosed the identity of the perpetrator as her stepfather.
Mr. Williams testified that during their relationship while he was in ninth grade in 2017, he and K.J. engaged in oral sex. He denied having anal or vaginal sex with K.J. during the time period. He admitted that at some point in their relationship, he had sneaked into K.J.’s home but stated that no one ever caught him sneaking into the home. In December 2017, a detective came to his house to ask him questions concerning K.J.’s disclosure to him. Thereafter, he and K.J. began dating again and at the time of trial lived together.
Mr. Williams stated that he and K.J. broke up for a period of time after she returned from her hospital stay and reconciled.
Sarah Jorge, a school counselor, testified that she worked at NOMMA, an "A" ranked school, from 2016 to 2018. She described arriving early to school the morning of August 15, 2017, and seeing K.J., who she described as a straight "A" student with no prior disciplinary issues, in her counseling office. Ms. Jorge asserted that K.J. was crying, and told her that when she left home that morning, her stepfather told her he wanted to kill her. She further testified that K.J. disclosed that her stepfather had inappropriately touched her and that it began when she was twelve or thirteen years old. Ms. Jorge explained that K.J. told her that she was worried that the touching would start again, and that she was concerned because she had a boyfriend and did not want to cheat on him. She testified that K.J. described that her stepfather had rubbed cocoa butter on her legs, used his fingers to penetrate her vagina, and that he had penetrated her anus with his penis on multiple occasions.
Ms. Jorge testified that K.J. described an incident during which K.J.’s mother walked into the bathroom where K.J. and her stepfather were and that K.J.’s panties were down. She stated that K.J. told her that she had just gotten in trouble with her mother because she was having her boyfriend over to the house without her mother's knowledge and was unsure if her mother would believe her. Because she was a mandated reporter, Ms. Jorge contacted law enforcement and DCFS. Ms. Jorge testified that a police officer subsequently came to the school where he interviewed K.J. She recalled that K.J. was sad and embarrassed and that she hung her head down frequently during the interview.
JPSO Deputy Clarence Davis testified that he was the initial responding officer in this case. He further testified that on August 15, 2017, at 7:46 a.m., he was dispatched to NOMMA regarding a third degree rape. Deputy Davis asserted that he met with the school counselor, Ms. Jorge, and then spoke to K.J. He learned that K.J. first told an adult, Ms. Dibartolo, on August 9, 2017. Deputy Davis testified that he notified the detective bureau, the DCFS, and K.J.’s mother.
Stillwell Russell Sr., a DCFS investigator, testified that in August of 2017, DCFS received a call from NOMMA that a child had made a sexual abuse disclosure. Mr. Russell testified that he interviewed K.J., but that once a child makes a disclosure, DCFS does not do an in-depth interview but rather allows the child to be interviewed at the CAC. Mr. Russell testified that K.J. disclosed to him that her stepfather was sexually molesting her and eventually began sodomizing her. Mr. Russell recalled that K.J. reported that the sexual abuse started when she was twelve years old and that there was a two-year hiatus. Mr. Russell testified that he met K.J. and her mother at the detective bureau later that evening. Detective Shannon Guidry testified that on August 15, 2017, she worked for the JPSO in the personal violence section as a detective. She further testified that on that date, she was contacted regarding K.J.’s disclosure to the school counselor that her stepfather had inappropriately touched her. Detective Guidry interviewed K.J. and arranged for K.J. to be interviewed at the CAC while she monitored the interview from another room. Detective Guidry testified that K.J.’s statements during the CAC interview were consistent with what K.J. had reported to her and that K.J.’s body language and mannerisms appeared "very genuine." She testified that K.J. reported that she was twelve years old when the abuse began and that K.J.’s version of events remained consistent. Detective Guidry further testified that she interviewed the school counselor, Ms. Jorge, and K.J.’s mother, who "totally defended her husband [defendant]."
He stated that K.J. also told him that defendant touched her breasts and vagina.
Mr. Russell testified concerning a prior allegation against the mother for lack of supervision and a prior history of physical abuse of K.J. Mr. Russell explained that in 2011, there were bruises and minor facial injuries on K.J., which the agency validated—meaning that the situation was more likely to have happened than not. After he investigated the reported sexual abuse, Mr. Russell testified that because the mother stated that she was unaware of the abuse and would do everything to keep K.J. safe, DCFS did not take K.J. into custody but allowed the mother to make a plan for K.J. to stay with Ms. Dibartolo.
Detective Guidry also testified that she also interviewed another relative during her investigation.
After completion of her investigation, Detective Guidry prepared an affidavit for an arrest warrant for defendant. After defendant's arrest, Detective Guidry brought defendant to the police station, where defendant provided a recorded statement. In his statement, defendant denied the allegations K.J. made against him. Defendant stated that he never sexually abused K.J., that he never put his penis in her butt, explaining that his wife did not even allow him to do that, and denied ever shaving K.J.’s legs or rubbing lotion on her legs. Defendant stated in his interview that K.J. was a "smelly, unclean girl" who would not have allowed him to rape her and would have told someone sooner had he actually molested or raped her. In his statement, defendant claimed that K.J. made up the allegations against him after she was caught sneaking her boyfriend into the house because she was afraid he would whip her.
The video-recorded statement, which was redacted by stipulation between the state and defendant, was played for the jury.
Defendant, the parent who did not work outside the home and stayed home with the children throughout most of K.J.’s childhood, also denied ever having bathed K.J. as a child.
Dr. Wetsman, a board certified child abuse pediatrician, was accepted as an expert in the field of general pediatrics and child abuse pediatrics. Dr. Wetsman testified that she previously worked at the Audrey Hepburn Care Center for approximately fifteen years and that she evaluated K.J., who disclosed that her stepfather had raped her and physically whipped her. Dr. Wetsman diagnosed child sexual abuse and physical abuse.
Dr. Wetsman testified that she examined K.J. and that the exam was normal, which she explained was not inconsistent with a child who had been sexually abused as K.J. indicated in her history. Dr. Wetsman testified that it is most common for a child who had been sexually abused to wait a period of time before disclosing the abuse. Dr. Wetsman explained that sometimes the child does not know the abuse is wrong; the child may be naïve; the perpetrator may have made them feel like they would be in trouble if they disclose; the child may have a lot of guilt and shame; or the perpetrator may have threatened the child, who may be scared to disclose the abuse. DISCUSSION
Dr. Wetsman further explained that in order to assess the credibility of the child, one must look for details as to whether the history was consistent. Dr. Wetsman testified that it is very credible if the child gives the same story to law enforcement, child protection, and the forensic interviewer. She also stated that it was not unusual for a parent not to believe the child and that it was very common for a mother to choose the perpetrator over her own child. Dr. Wetsman maintained that it is devastating to a child not to be believed by a parent.
In his sole assignment of error on appeal, defendant challenges the sufficiency of the evidence presented against him at trial, contending that the trial court erred in denying his Motion for New Trial and for Post-Verdict Judgment of Acquittal where the evidence was insufficient to support his convictions. Defendant contends that his convictions rested upon the testimony of a single witness, K.J., at trial. He argues that K.J., who previously falsely accused another relative of sexual abuse, lacked credibility and further pointed out that there was no physical evidence presented to corroborate K.J.’s allegations of sexual abuse against him.
In this case, defendant filed a post-trial pleading titled "Motion for New Trial and for Post-Verdict Judgment of Acquittal" seeking that the trial court set aside the guilty verdicts and grant a post-verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821, or in the alternative, order a new trial pursuant to La. C.Cr.P. art. 851(B)(1) and (B)(5). In that motion, which the trial court denied, defendant argued that the evidence presented at trial was insufficient to support the verdicts.
The question of sufficiency of evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal. La. C.Cr.P. art. 821 ; State v. Ellis, 95–1005 (La. App. 5th Cir. 3/26/96), 672 So.2d 1007, 1008 (citation omitted); State v. Gibbs, 03–967, p. 14 (La. App. 5th Cir. 12/30/03), 864 So.2d 866, 874, ftnt. 2. The standard for appellate review of the sufficiency of evidence 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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) ; State v. Bailey, 04–85, p. 4 (La. App. 5th Cir. 5/26/04), 875 So.2d 949, 954–955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id. at 7, 985 So.2d at 240 ; State v. Flores , 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122.
With respect to the denial of the motion for new trial based on La. C.Cr.P. art 851(1), this Court in State v. Lyles, 03-141, p. 17-18 (La. App. 5 Cir. 9/16/03), 858 So.2d 35, 50, stated that:
The denial of a defendant's motion for new trial, based on La. C.Cr.P. art. 851(1), presents nothing for review on appeal. However, the Louisiana Supreme Court and this Court have addressed the constitutional issue of sufficiency of the evidence under such circumstances.
State v. Hooker , 05-251 (La. App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074, citing State v. Lyles, supra .
When the trier-of-fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Hooker , 05-251 (La. App. 5 Cir. 1/17/06), 921 So.2d 1066, 1074. It is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence. State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50, 56 ; Bailey, 04–85 at 5, 875 So.2d at 955. Moreover, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the jury, is sufficient to support a conviction or convictions. State v. Winston , 02-1161 (La. App. 5 Cir. 3/25/03), 844 So.2d 184, 190, writ denied , 03-1284 (La. 11/14/03), 858 So.2d 419 ; State of La. in the Interest of L.A., 95-409 (La. App. 5 Cir. 12/13/95), 666 So.2d 1142, 1144. A reviewing court may impinge on the factfinder's discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Harris , 02-1589 (La. 5/20/03), 846 So.2d 709, 713 (quotations omitted).
Defendant in this case, in count one, was indicted for first degree rape of a known juvenile in violation of La. R.S. 14:42, but was convicted of third degree rape in violation of La. R.S. 14:43. At the time of the offense in count one, La. R.S. 14:42 provided the law regarding aggravated rape, now known as first degree rape, in pertinent part:
The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti , 01-3407 (La. 6/21/02), 820 So.2d 518, 520-22.
A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: ...
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
In the indictment, in count one, the State alleged that the offense occurred on or between December 1, 2013 and July 23, 2014. In count two, the State alleged that the offense occurred on or between July 24, 2014 and July 31, 2015. The victim, K.J., testified that her date of birth was July 24, 2001.
If there is sufficient evidence to convict a defendant of a greater offense which includes the offense for which defendant was convicted, the evidence will necessarily and automatically, because of our statutory system of responsive verdicts, support the conviction for the lesser offense. State v. Ducksworth , 17-35 (La. App. 5 Cir. 12/13/17), 234 So.3d 225, 231–32 ; State v. Schrader , 518 So.2d 1024, 1034 (La. 1988) ; State ex rel. Elaire v. Blackburn , 424 So.2d 246 (La. 1982) ; State v. Cooley , 260 La. 768, 257 So.2d 400 (1972). Third degree rape is a specifically provided responsive verdict to the charge of first degree rape as set forth under La. C.Cr.P. art. 814(11), titled "Responsive Verdicts; in particular."
This holding is applicable in this case, where defendant did not object to the inclusion of this lesser included offense.
Defendant was also indicted, in count two, for sexual battery of a known juvenile in violation of La. R.S. 14:43.1 where the victim had not yet attained fifteen years of age and is at least three years younger than the offender. As to that count, the jury returned a verdict of guilty as charged. At the time of the offenses, La. R.S. 14:43.1 provided:
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, 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, when any of the following occur:
(1) The offender acts without the consent of the victim.
(2) The act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the victim.
At trial, the victim, K.J., testified that, when she was twelve years old, defendant came into her bedroom while she was lying in her bed, pulled her panties down, pulled her to the end of the bed, put his mouth on her vagina, and moved his tongue around on the outside of her vagina for approximately ten minutes. Although K.J. testified that she was "twelve or thirteen" when defendant put his penis in her "butt", she clearly testified that she was twelve years old when the oral sex occurred. She further testified that she specifically recalled the time frame because of the memorable event of her grandmother's death on New Year's Eve the year that she was twelve. This testimony alone is sufficient to support a conviction of first degree rape in violation of La. R.S. 14:42. First degree rape is defined as a rape where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent because the victim was under the age of thirteen at the time of the offense. Because the evidence presented at trial was sufficient to convict defendant of the charged offense of first degree rape, which carries a mandatory life sentence, it is necessarily sufficient to support his conviction for third degree rape in violation of La. R.S. 14:43. State v. Ducksworth, supra .
At trial, K.J. further testified that from the age of twelve to fourteen, defendant forced her to "beat his meat" or masturbate him on multiple occasions. She also testified that defendant anally penetrated her multiple times, with the last time being when she was fourteen years old. The evidence at trial demonstrated that when these incidents occurred, K.J. was younger than fifteen and was at least three years younger than defendant. Therefore, the state produced sufficient evidence to support defendant's conviction for one count of sexual battery. See also State v. Bienvenu , 14-541 (La. App. 5 Cir. 12/16/14), 167 So.3d 63, 66, writ denied , 15-0098 (La. 11/20/15), 180 So.3d 314.
On appeal, defendant attacks K.J.’s credibility. However, the testimony of one witness, reasonably believed by the trier of fact and in the absence of internal contradiction or irreconcilable conflicts with physical evidence, is sufficient to support a conviction. State v. Williams , 18-112 (La. App. 5 Cir. 11/7/18), 259 So.3d 563, 574, writ denied , 18-2038 (La. 4/22/19), 268 So.3d 295.
Additionally, the State presented evidence to bolster the victim's credibility. The jury heard K.J. testify that she told her friend, Ms. Streams, about defendant's inappropriate touching of her breasts and vagina at the time it was occurring and years before K.J. told an adult. Ms. Streams, who was not in an intimate or close relationship with K.J. at the time of trial, corroborated K.J.’s testimony. Ms. Streams testified that when they were thirteen years old, K.J. told her that the male living in her house was touching her breast and vaginal area and that this was an ongoing situation. Also, Dr. Wetsman testified that in order to assess the credibility of the child, one must look for details as to whether the history was consistent. The testimony at trial established that the history given by the victim to Ms. Streams, Mr. Williams, law enforcement, the DCFS, the CAC interviewer, and Dr. Wetsman, was consistent. Moreover, Ms. Jorge the school counselor testified that K.J. had never had any disciplinary issues and Detective Guidry testified that in her experience, K.J.’s mannerisms and demeanor seemed "very genuine." We find the factfinder had sufficient testimony to assess K.J.’s credibility at trial.
Accordingly, we find the evidence was sufficient to support the jury's verdicts and defendants convictions and, thus, we find the trial judge did not err in denying defendant's post-trial motion and we affirm defendant's convictions and sentences.
ERRORS PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors patent require corrective action:
Sex Offender Registration
The transcript does not reflect that defendant was advised in writing of the sex offender notification requirements at the time of the original sentencing. The record reflects that the trial court failed to provide defendant with written notification of the sex offender registration requirements of La. R.S. 15:542 as required by La. R.S. 15:543(A). Accordingly, we remand this matter and order the trial court to inform defendant of the registration requirements of La. R.S. 15:542 by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof in the record that defendant received such notice. See State v. Baskin , 15-704 (La. App. 5 Cir. 3/30/16), 188 So.3d 470, 475, writ denied , 16-833 (La. 4/24/17), 220 So.3d 741.
Post-Conviction Relief Advisal
The transcript reflects that the trial court incompletely advised defendant of his post-conviction relief time delays. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Becnel , 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017, 1022. Accordingly, we hereby advise defendant by way of this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Barnett , 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 235.
Inconsistent Minute Entry/Transcript
The transcript reflects that the trial court ordered defendant's original sentences to run concurrently with each other and with any and all other sentences that he might be serving. The transcript also reflects that after imposing the enhanced sentence, the trial court ordered the sentences to run concurrently with each other. The uniform commitment orders indicate, "This sentence shall be concurrent with any or every sentence the offender is now serving," and that the sentence on each count is to run concurrently. However, the June 13, 2022 sentencing minute entry only reflects that the sentences are to run concurrently with each other and not with any other sentence defendant is serving. Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch , 441 So.2d 732, 734 (La. 1983). Accordingly, we remand this matter to the trial court with instructions to correct the sentencing minute entry to conform to the transcript to show that the trial judge ordered the original sentence on count two to run concurrently to any and all other sentences defendant might be serving. See State v. Garcie , 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290.
DECREE
Accordingly, for the reasons stated herein, we affirm defendant's convictions and sentences. We hereby remand this matter for the trial court to provide written sex offender notification requirements as provided in La. R.S. 15:543(A) and for correction of the sentencing minute entry as set forth herein.