Opinion
2022 KA 0231.
11-04-2022
STATE of Louisiana v. Tyler Ray SMITH.
WELCH, J.
The State of Louisiana charged the defendant, Tyler Ray Smith, by amended bill of information with molestation of a juvenile under the age of thirteen years, a violation of La. R.S. 14:81.2. The defendant pled not guilty and waived his right to a jury trial. Following a bench trial, the trial court found the defendant guilty as charged. The trial court sentenced the defendant to thirty-five years imprisonment at hard labor, with twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.
FACTS
Evangela Henry was in a relationship with the defendant for five years. While never married, Evangela and the defendant lived together with their two sons and the victim, S.S., who is Evangela's daughter from a prior relationship. On November 23, 2017, Evangela and her family celebrated Thanksgiving Day at the home of Chastity Elam (the defendant's sister) in Tickfaw, Louisiana. Later that evening, the defendant and Devon Saylor (father of Chastity's children) were awake and playing video games in the living room, while everyone else had gone to bed. The victim, S.S., who was then twelve years old, and Bethany (a friend of Chastity) were sleeping on a sectional couch in the living room. At some point during the night, the defendant approached S.S. and put his hands down her pants. According to S.S., she was awakened to the defendant sticking his fingers inside her vagina. S.S. "froze" and did not say anything. After the incident, S.S. told her best friend that the defendant had done something to her.
We refer to the victim, S.S., by her initials to protect her identity and provide for her safety and welfare. See La. R.S. 46:1844(W)(1)(a).
It appears S.S. may have been confused at trial about when she told her best friend. On cross-examination, defense counsel asked S.S. if it was in December 2018, and S.S. responded in the affirmative. In her interview at the Children's Advocacy Center ("CAC"), S.S. stated she told her best friend at the beginning of 2018.
Approximately one year and seven months later, on June 1, 2019, S.S. told Evangela and her biological father that the defendant had touched her inappropriately in her vaginal area. The next day, Evangela took S.S. to the hospital. The police were contacted and, about a week later, S.S. provided a recorded statement at the Children's Advocacy Center ("CAC") in Hammond.
When Evangela confronted the defendant about the incident, he denied it. When the defendant was interviewed by the police, he denied any wrongdoing. The defendant did not testify at trial.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the State failed to present sufficient evidence to uphold his conviction. Specifically, the defendant avers there was not proof beyond a reasonable doubt that a molestation occurred.
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." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). The Jackson standard, incorporated in La. C.Cr.P. art. 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. McKinney, 2015-1503 (La. App. 1st Cir. 4/25/16), 194 So.3d 699, 702, writ denied, 2016-0992 (La. 5/12/17), 220 So.3d 747.
When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. McKinney, 194 So.3d at 702. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. Id. The facts then established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 2014-1619 (La. App. 1st Cir. 9/18/15), 182 So.3d 126, 129-30, writ denied, 2015-1912 (La. 1/25/16), 185 So.3d 748.
Molestation of a juvenile is the commission by anyone over the age of seventeen of 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, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age is not a defense. La. R.S. 14:81.2(A)(1). The Louisiana Supreme Court has defined "lewd and lascivious conduct" very broadly as any conduct which is "lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to the sexual impurity or incontinence carried on in a wanton manner." See State v. Jones, 2010-0762 (La. 9/7/11), 74 So.3d 197, 204.
Thus, in order to commit molestation of a juvenile, the offender must possess the specific intent of arousing or gratifying the sexual desires of himself or the child upon whose person he committed a lewd or lascivious act or in whose presence he committed such an act. However, specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. McKinney, 194 So.3d at 703. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); McKinney, 194 So.3d at 703. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. McKinney, 194 So.3d at 703.
The defendant argues on appeal that the State's evidence consisted solely of the uncorroborated, contradictory statements of S.S. who waited nearly two years to report the incident. Specifically, the defendant avers that S.S. provided conflicting accounts of the incident to the various people she spoke to regarding the incident.
Detective Suanne Guaraggi, with the Tangipahoa Parish Sheriff's Office, handled S.S.'s case. The defendant argues that while S.S. told the officer dispatched to the hospital in reference to the incident (Deputy James Anthony Perez, Jr.) that everyone except S.S., one of her brothers, and the defendant had left Chastity's house that night, S.S. said something different in her CAC interview; namely, that everyone was at the house sleeping, including Bethany, who was sleeping on the sofa next to her. The defendant also points out that during the CAC interview, S.S. denied that the defendant told her not to tell anyone. During one of S.S.'s therapy sessions, however, S.S. told her counselor that the defendant threatened to harm her mother and brothers if she screamed or told anyone.
Deputy James Anthony Perez, Jr. with the Tangipahoa Parish Sheriff's Office was dispatched to the hospital in reference to the incident. Apparently, Deputy Perez was one of the first officers to speak with S.S. Deputy Perez filed a report. Detective Guaraggi testified that she was familiar with the report.
Even though Evangela and the defendant were not married, S.S. referred to the defendant as her ex-step dad.
On cross-examination, Detective Guaraggi testified that she could not remember the specifics of Deputy Perez's report, but she recalled S.S. said that some people left the residence and that it was her (S.S.), one of her brothers, and the defendant who were still present in the home at the time of the incident. In the CAC interview, S.S. did not indicate that anyone had left the house, but that everyone was asleep, and she and Bethany were sleeping on the couch in the living room while the defendant was playing video games in the living room.
S.S. could have mistakenly believed that some of the people at the house had gone home that night. Further, it was not clear at trial who S.S. thought left the house or what she had told Deputy Perez. At any rate, Chastity testified that nine people were present at her house for Thanksgiving, and it appears from her testimony that all of them slept in the various rooms at the house that night.
In the CAC interview, S.S. responded in the negative when she was asked if the defendant ever told her not to tell or anything like that. In therapy sessions, S.S. told her counselor that the defendant "threatened her by telling her if she tells anyone or tries to scream, he would hurt her brothers and mother."
S.S.'s CAC interview was on June 10, 2019. Her first therapy session with her counselor was in December 2019. During her therapy sessions, S.S. indicated she had thoughts of suicide. Her counselor advised S.S.'s stepmother to take S.S. to the emergency room from which S.S. was sent to an inpatient facility for treatment. S.S. began therapy again in February 2020; it was at this time that S.S. revealed for the first time to the counselor what the defendant had done to her. Based on the foregoing, S.S. may not have wanted to fully disclose everything at the CAC interview. During the CAC interview, she was reticent, quiet, and uncomfortable. Even when S.S. began therapy, she did not disclose everything. It was only after two months of therapy and receiving inpatient treatment that S.S. disclosed the incident to her counselor.
In any event, if believed, the testimony of the victim alone, with no other evidence, is sufficient to prove the elements of the offense. See State v. Craddock, 2010-1473 (La. App. 1st Cir. 3/25/11), 62 So.3d 791, 795, writ denied, 2011-0862 (La. 10/21/11), 73 So.3d 380. Also, if believed, and in the absence of internal contradiction or irreconcilable conflict with the physical evidence, the testimony of one witness is sufficient to support a factual conclusion. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). The fact that the record contains evidence that conflicts with the testimony accepted by a trier of fact does not render the accepted evidence insufficient. State v. Marrero, 2011-1285 (La. App. 1st Cir. 2/10/12), 92 So.3d 21, 29, writ denied, 2012-0563 (La. 6/15/12), 90 So.3d 1060.
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 fact finder's determination of guilt. State v. Huey, 2013-1227 (La. App. 1st Cir. 2/18/14), 142 So.3d 27, 32, writ denied, 2014-0535 (La. 10/3/14), 149 So.3d 795, cert. denied, 574 U.S. 1198, 135 S.Ct. 1507, 191 L.Ed.2d 443 (2015). The trial court was aware of any possible conflicting testimony or accounts of what transpired that night. Regardless, S.S. was consistent in her allegation that the defendant had touched her vagina, and the trial court chose to believe S.S.
The evidence supports the verdict of the trial court. Viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the molestation of a juvenile under the age of thirteen years. See McKinney, 194 So.3d at 702-03. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in imposing an excessive sentence. Louisiana Code of Criminal Procedure article 881.1, provides, in pertinent part:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
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B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
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E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
The thirty-day deadline provided by Article 881.1(A)(1) prohibits a trial court from reconsidering its sentencing decision once the deadline has passed. An out-of-time motion to reconsider sentence is not contemplated by the Code of Criminal Procedure nor allowed by the jurisprudence. Likewise, a motion for appeal is not a substitute for a timely motion to reconsider sentence and does not satisfy the requirements of Article 881.1. State v. Ybarzabal, 2018-0555 (La. App. 1st Cir. 2/25/19), 2019 WL 926891, *4 (unpublished).
A thorough review of the record indicates that the defendant did not orally move for reconsideration of his sentence at the time of sentencing, nor did he subsequently file a written motion to reconsider the sentence. Under La. C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider may be based, shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. Ybarzabal, 2019 WL 926891 at *4; State v. Ferguson, 2015-0427 (La. App. 1st Cir. 9/18/15), 181 So.3d 120, 136-37, writ denied, 2015-1919 (La. 11/18/16), 210 So.3d 282. Consequently, the defendant's failure to urge claims of excessiveness and specific grounds for reconsideration of the sentences herein by oral or timely written motion precludes our review of this assignment of error. Ybarzabal, 2019 WL 926891 at *4. Accordingly, we find that review of this assignment of error is procedurally barred.
Louisiana Code of Criminal Procedure article 881.2(A)(1) provides that the "defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence" and "also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions."
DECREE
For the foregoing reasons, we affirm the defendant's conviction and sentence.