Opinion
2015 KA 0100
09-18-2015
STATE OF LOUISIANA v. ROGER DALE MEDLEY
Walter P. Reed District Attorney Covington, Louisiana and Kathryn W. Landry Baton Rouge, Louisiana Attorneys for State of Louisiana Margaret Smith Sollars Thibodaux, Louisiana Attorney for Defendant/Appellant Roger Dale Medley
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA
DOCKET NUMBER 530,999, DIVISION "F"
HONORABLE MARTIN E. COADY, JUDGE Walter P. Reed
District Attorney
Covington, Louisiana
and
Kathryn W. Landry
Baton Rouge, Louisiana
Attorneys for
State of Louisiana
Margaret Smith Sollars
Thibodaux, Louisiana
Attorney for Defendant/Appellant
Roger Dale Medley
BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McDONALD, J.
Defendant, Roger Dale Medley, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. He pled not guilty. Following a jury trial, he was found guilty of the responsive offense of indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. The trial court denied defendant's motions for new trial and post-verdict judgment of acquittal and sentenced him to twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Subsequently, the trial court denied defendant's motion to reconsider sentence. Defendant now appeals, asserting three assignments of error. For the following reasons, we affirm his conviction and sentence.
The transcript of the sentencing hearing does not reflect an express waiver of the twenty-four hour delay associated with the trial court's ruling on these motions. However, defense counsel reminded the trial court of these post-trial motions immediately after the trial court indicated that it would hear victim impact statements and proceed to sentencing. Defense counsel's subsequent actions indicate an implicit waiver of the delay associated with the denial of these motions. See State v. Jones, 97-2521 (La. App. 1 Cir. 9/25/98), 720 So.2d 52, 53.
FACTS
On or around November 20, 2011, three-year-old A.M. told his mother, K.O., that his father, defendant, had sexually assaulted him. A.M. described that defendant choked him with his "woodie," a term that A.M. used to mean "penis." A.M. stated that defendant had promised to buy him a toy in exchange for performing this act.
In accordance with LSA-R.S. 46:1844(W), the victim herein is referenced only by his initials or as "the victim." With the exception of defendant, who is the victim's father, the victim's family members are also referenced only by their initials.
An investigation spanning approximately one year ensued following this allegation. It included representatives from the Slidell Police Department, the Department of Children and Family Services, a licensed clinical social worker, and the St. Tammany Parish Children's Advocacy Center ("CAC"). In a December 2012 recorded forensic interview with CAC forensic interviewer Jo Beth Rickels, A.M. reiterated the story about defendant forcing oral sex upon him in exchange for a toy. A.M. indicated that the incident occurred in the shower. Later the same month, defendant was arrested and charged with the aggravated rape of A.M.
SUFFICIENCY OF THE EVIDENCE
In his second assignment of error (addressed first), defendant contends that the evidence presented at trial was insufficient to support the jury's verdict finding him guilty of indecent behavior with a juvenile. He argues that the evidence presented at trial demonstrated that K.O. was not a credible witness and that the police failed to adequately investigate the allegations against him.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; La. Const, art. I, §2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in LSA-C.Cr.P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 01-2585 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
Louisiana Revised Statute 14:42 provides in pertinent part:
A. Aggravated rape is a rape committed . . . where the . . . oral . . . 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.
Louisiana Revised Statute 14:41 provides in pertinent part:
A. Rape is the act of . . . oral . . . sexual intercourse with a male or female person committed without the person's lawful consent.
Louisiana Revised Statute 14:81 provides in pertinent part:
A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child's age shall not be a defense[.]
As to the elements of the responsive offense of indecent behavior with juveniles, the trial court instructed the jury regarding the enhanced version of this offense, which involves the commission of the offense against a victim under thirteen years of age. See LSA-R.S. 14:81(H)(2).
At trial, the jury had the opportunity to view two CAC interviews of A.M. In the first interview, recorded December 14, 2011, approximately three weeks after the alleged incident, A.M. engaged in conversation with Ms. Rickels and correctly identified certain body parts on an anatomical illustration she showed him. However, he was largely unresponsive to questions suggesting any inappropriate act by his father. Despite Ms. Rickels' best efforts to interview him, A.M. provided no pertinent information. After only a few minutes, A.M. took a stuffed animal from the interview room and left to find his mother.
In the second interview, recorded December 4, 2012, nearly one year later, A.M. provided Ms. Rickels with more pertinent information. Within a few seconds of entering the interview room, A.M. began to ask "what's that private stuff?" Ms. Rickels asked A.M. to explain what he meant, and he stated that one time, in the shower, his dad put "this in my mouth" (indicating to his own penis). A.M. also pointed to an anatomical illustration to indicate that defendant's penis had gone into his mouth. A.M. explained to Ms. Rickels that defendant had offered him a toy to complete that act, but he never did give him a toy and that his dad was a liar. A.M. further stated that it "choked his mouth" when defendant's penis went into his mouth. Ms. Rickels asked A.M. whether anyone had told him to tell her this story. He stated that Ms. Lisa (Lisa Tadlock, a licensed clinical social worker who was A.M.'s therapist) had told him to tell her.
Slidell Police Department Detective Brian Brown testified that he was the lead investigator in this case. He began his investigation after being contacted by a Child Investigative Services case worker. Detective Brown testified that he never interviewed A.M. because he was not trained to interview juveniles in sexual abuse cases. He noted that K.O. was occasionally uncooperative throughout his investigation, even where he suspended the investigation at one point because he was suspicious that K.O. might be manipulating A.M.
Ms. Rickels testified regarding some of the circumstances of her interview with A.M. She described some red flags for the jury that might indicate a child is being manipulated or coached to give a particular statement. One red flag that Ms. Rickels described involves a situation where a child, without any prompting from her, blurts out an allegation. Ms. Rickels indicated that situations where children do not remain consistent in their story also raise red flags. On cross-examination, Ms. Rickels admitted that A.M. blurted out his allegation against defendant within only a few seconds of the beginning of the second interview. However, on redirect examination, she clarified that A.M.'s blurt might be explained by his awareness of the reason for his second interview with her - that is, because he had made allegations against defendant to two therapists.
K.O. testified that she and defendant were never married but were living together until they separated about three weeks before the date of the incident. According to K.O., on that date, defendant and A.M. were at defendant's sister's house, R.M., when defendant called her to say that A.M. was sick and needed medicine. K.O. drove to Walgreens for the medicine, and R.M. came to get her there because K.O's car ran out of gas. K.O. decided to spend the night at R.M's house and get gas in the morning. K.O. testified that as she and A.M. were lying down next to each other to go to sleep, A.M. told her that defendant had choked him with his "woodie," a word he used for his penis. K.O. stated that A.M. told her the same thing the following morning, adding that defendant had promised to buy him a toy. After K.O. asked defendant why A.M. would "say something like that," they both sat with the child, and K.O. said, "[A.M.], you need to tell Mommy what you said about Daddy." According to K.O., A.M. then pointed to defendant's private part and said, "Daddy choked me like this." K.O. stated that she reported the incident to the Slidell Police Department and that a daycare worker later reported it to Social Services.
Lisa Tadlock, A.M.'s therapist beginning in November 2012, approximately one year after the alleged incident, testified regarding her twenty-three therapy sessions with him over a period of approximately eighteen months. Initially, she was evaluating A.M. to determine if it was appropriate for him to have visitation with defendant. In one of their first sessions, A.M. told her that he had told another therapist that defendant put his penis in A.M.'s mouth. He also informed her that defendant had promised him a toy if he allowed him to commit that act, but he was mad because defendant never delivered on that promise. In Ms. Tadlock's opinion, A.M. appeared to understand the difference between the truth and a lie, and he remained consistent in his story. She noted that it was difficult for young children to maintain a lie for a long period of time.
A.M. testified via closed-circuit television. He stated that he had watched the video of his second interview with Ms. Rickels and that the things he said on the video were true. A.M. also said that defendant lied about buying him a toy.
Defendant called two witnesses on his behalf. The first was Noel Ramos, a personnel director for Weeks Marine, defendant's former employer. Mr. Ramos told of an incident where a woman came into the employer's office with a letter for defendant. The letter was from an attorney and concerned possible representation for an injury that defendant may have suffered on the job. K.O., under earlier cross-examination, had admitted to going to defendant's place of employment with a letter, but she denied that it involved a lawsuit. Mr. Ramos admitted that the woman, who he could not identify, asked him to pass the letter on to defendant.
R.M., defendant's sister, testified that defendant and K.O. had a tumultuous relationship. She stated that K.O. used A.M. as a pawn to manipulate defendant. R.M. stated that, on the morning after K.O. spent the night, she drove K.O. to Walgreens to retrieve her car. She testified that K.O. told her what A.M. said defendant had done to him. According to R.M., K.O. related this information in a nonchalant manner, with a "half smirk." During the investigations following the incident, R.M. spoke with Detective Brown on the phone, but she said he never followed up with her. She also spoke briefly with someone from the Office of Child Services.
Defendant also testified at trial. He categorically denied committing the act of which he was accused. He described his on-again/off-again relationship with K.O. following A.M.'s birth. He testified to an incident where K.O. unlawfully entered a friend's house where he was staying while in town from work. He also described that K.O. would routinely manipulate him using A.M. When he heard A.M.'s accusatory statement the morning after K.O. spent the night, defendant admitted to getting defensive and questioning K.O. as to who she had been bringing around his son. Defendant described that he had spoken to the Office of Child Services investigator freely about the incident, but he spoke to Detective Brown only after his arrest.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985).
The testimony in the instant case was clearly conflicting. While A.M. testified that his second CAC interview contained the truth about defendant's actions, defendant categorically denied that anything illicit took place. A.M.'s credibility was bolstered by the testimonies of K.O., Ms. Rickels, and Ms. Tadlock. However, K.O.'s credibility was impugned by Detective Brown, R.M., and defendant. In short, the jury made a credibility determination and ultimately decided against the version of events offered by defendant. The testimony of the victim was sufficient to establish the elements of this offense. See State v. Clouatre, 12-0407 (La. App. 1 Cir. 11/14/12), 110 So.3d 1094, 1100. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi, 946 So.2d at 662. Thus, viewing the evidence in the light most favorable to the State, the evidence would indicate that defendant, who was thirty years old at the time of the offense, engaged in oral sexual intercourse with A.M., his three-year-old son. Therefore, the State proved facts sufficient to convict defendant of the aggravated rape of A.M.
In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a "compromise verdict," i.e., a legislatively approved responsive verdict that does not fit the evidence, but that, for whatever reason, the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. If the defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection, at a time when the trial judge can correct the error, then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. See State ex rel. Elaire, 424 So.2d at 251.
Here, defendant did not object to the instruction on the responsive verdict of indecent behavior with a juvenile. It is possible that the jury returned a "compromise" verdict of this responsive offense because of the complex credibility issues present in this case. Regardless of the jury's ultimate reasoning, the evidence presented at trial was sufficient to convict defendant of the charged offense, so it was also sufficient to support defendant's conviction for the responsive offense of indecent behavior with a juvenile. This assignment of error is without merit.
DENIAL OF CHALLENGE FOR CAUSE
In his first assignment of error (addressed second), defendant argues that the trial court erred in denying a challenge for cause of a prospective juror. He contends that this prospective juror was biased toward the prosecution.
An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges of jurors. La. Const. art. I, §17(A). The purpose of voir dire examination is to determine prospective jurors' qualifications by testing their competency and impartiality and discovering bases for the intelligent exercise of cause and peremptory challenges. State v. Burton, 464 So.2d 421, 425 (La. App. 1 Cir.), writ denied, 468 So.2d 570 (La. 1985). A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to law may be reasonably implied. See LSA-C.Cr.P. art. 797; State v. Martin, 558 So.2d 654, 658 (La. App. 1 Cir.), writ denied, 564 So.2d 318 (La. 1990). A trial court is accorded great discretion in determining whether to seat or reject a juror for cause, and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion. Martin, 558 So.2d at 658.
A defendant must object at the time of the ruling on the refusal to sustain a challenge for cause of a prospective juror. LSA-C.Cr.P. art. 800(A). Prejudice is presumed when a challenge for cause is erroneously denied by a trial court and the defendant has exhausted his peremptory challenges. To prove there has been error warranting reversal of his conviction, the defendant need only show: (1) the erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges. State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1281. A defendant who has not exhausted his peremptory challenges must establish that he was prejudiced by a ruling denying a cause challenge, e.g., that he was forced to hoard his remaining peremptory challenges at the cost of accepting a juror he would have peremptorily challenged. See State v. Jones, 03-3542 (La. 10/19/04), 884 So.2d 582, 592; State v. Vanderpool, 493 So.2d 574, 575 (La. 1986).
During the first panel of prospective jurors, the parties spoke to Steven Larmann. Mr. Larmann described that he had previously served on a federal grand jury for nineteen months. He rated the local police a nine on a zero-to-ten scale; several other prospective jurors gave the same ratings, and two others actually rated the local police a ten. He rated his willingness to serve a seven, and his decisiveness a nine, both of which were in line with ratings given by other prospective jurors.
When the prospective jurors were asked if anything came to mind that would make them potentially unfair to one side or another, Mr. Larmann asked to approach the bench. He intimated that he did not know if he could be fair because of his grand jury experience, during which time that grand jury indicted every individual that came before it. Nonetheless, Mr. Larmann indicated that he was fully willing to follow the law "no matter what." He stated that he did not think it would be a problem to give defendant a fair trial.
As voir dire continued, Mr. Larmann further expressed that he could be fair and impartial. He stated that he did not believe defendant would have to take the stand to testify. He also expressed the opinion that it was worse for an innocent person to go to jail than it was for a guilty person not to be convicted.
During selections of the first panel, defense counsel challenged Mr. Larmann for cause. The trial court denied this challenge, and defense counsel used a peremptory challenge to excuse Mr. Larmann. On the first panel, defense counsel used seven peremptory challenges, including the one used to excuse Mr. Larmann. On the second panel, from which the actual jury was completed, defense counsel used only two more peremptory challenges, leaving three unused. See LSA-C.Cr.P. art. 799.
Considering Mr. Larmann's responses as a whole, we find that the trial court did not err or abuse its discretion in denying defendant's challenge for cause. While Mr. Larmann expressed what he felt might be a slight bias toward the prosecution, he continually affirmed his ability to remain impartial and to decide the case according to the law. To whatever extent may have been necessary, Mr. Larmann was rehabilitated following his disclosure to the court and the parties.
Moreover, even if we were to conclude that the trial court did err in declining to excuse Mr. Larmann for cause, defendant has failed to demonstrate any prejudice as a result of this ruling. In fact, he has failed to allege any prejudice in his brief. There is no evidence that defendant was forced to hoard his peremptory challenges, as is evidenced by the fact that he had three such challenges remaining prior to the selection of alternate jurors. See Vanderpool, 493 So.2d at 575. This assignment of error is without merit.
EXCESSIVE SENTENCE
In his final assignment of error, defendant argues that his sentence of twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, is unconstitutionally excessive. He argues that his lack of criminal history, as well as his history of military service and heroism, should mitigate in favor of a lesser sentence.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. See State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985).
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors the trial court is to consider when imposing sentence. While the entire checklist of LSA-C.Cr.P. art. 894.1 need not be recited, the record must reflect that the trial court adequately considered the criteria. State v. Brown, 02-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569. A trial court is given wide discretion in the imposition of a sentence within statutory limits, and a sentence imposed by it will not be set aside absent a manifest abuse of that discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen, when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:81(H)(2).
At defendant's sentencing hearing, the trial court heard impact statements from A.M.'s aunt and grandfather. They both expressed concerns about the effects defendant's actions have had on A.M.'s life and about the potential threat that defendant posed to their family. Thereafter, the State requested the maximum sentence of twenty-five years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.
Prior to sentencing defendant, the trial judge stated that any sentence less than the one he intended to impose would deprecate the seriousness of the offense. Further, the trial judge found that with a child as young as A.M., defendant's act manifested deliberate cruelty. He noted that defendant knew or should have known that the victim was particularly vulnerable because of his youth and also because defendant himself, as the victim's father, was in a supervisory position or status over him. The trial judge further stated that this type of crime could result in injury that could manifest itself throughout A.M.'s entire life. In mitigation, the trial court noted that defendant had no prior criminal history. Considering these facts and circumstances, the trial court imposed the instant sentence.
Considering the record as a whole, we cannot say that the trial court erred or abused its discretion in imposing the sentence of twenty years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. At the time of sentencing, the trial judge considered and recited the applicable aggravating and mitigating factors of LSA-C.Cr.P. art. 894.1. See LSA-C.Cr.P. art. 894.1(A)(3), (B)(1), (B)(2), (B)(4), (B)(9), and (B)(33). While defendant's previous military service and acts of heroism were factors to consider, they do not rise to a level that necessitates a modification of the trial court's sentence. This assignment of error is without merit.
For the foregoing reasons, we affirm defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.