Opinion
No. 2008 KA 1504 R.
December 8, 2010.
ON REMAND FROM THE SUPREME COURT OF LOUISIANA ON APPEAL FROM THE 32ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF TERREBONNE, LOUISIANA TRIAL COURT NO. 477, 855 HONORABLE DAVID ARCENEAUX, JUDGE.
HON. JOSEPH L. WAITZ, JR., DISTRICT ATTORNEY, MARK RHODES, ELLEN DAIGLE DOSKEY, ASSISTANT DISTRICT ATTORNEYS, HOUMA, LA, ATTORNEYS FOR STATE OF LOUISIANA.
BERTHA M. HILLMAN, THIBODAUX, LA, ATTORNEY FOR DEFENDANT-APPELLANT, DAVID GILBERT ARDOIN.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
The defendant, David Gilbert Ardoin, was charged by grand jury indictment with aggravated rape of M.C., a violation of La.R.S. 14:42(A)(4) (count one), and with aggravated incest, a violation of La.R.S. 14:78.1 (count two). The defendant pled not guilty to both charges, waived trial by jury, and elected to have a bench trial. Following trial, the trial court found the defendant not guilty of aggravated rape and guilty of aggravated incest. The defendant filed motions for new trial and postverdict judgment of acquittal, which were denied. The defendant was sentenced to ten years imprisonment at hard labor.
The defendant appealed and, in a single assignment of error, argued that the evidence was insufficient to support the aggravated incest conviction. In this court's published decision, we found that the testimonial evidence adduced at trial established that the defendant was married to Trina Ardoin. Trina's brother was Edward Flynn, and Edward's daughter was M.C. As such, Trina was M.C.'s biological aunt. In finding the defendant was, therefore, M.C.'s uncle by marriage, and not a biological, step, or adoptive relative of M.C., this court reversed the judgment of conviction of aggravated incest and modified it to a judgment of conviction of the lesser and included offense of molestation of a juvenile. The sentence was vacated, and the case remanded to the trial court for resentencing on the modified judgment of conviction. State v. Ardoin, 2008-1504, pp. 4-7 (La. App. 1 Cir. 2/13/09), 6 So.3d 237, 240-242, writ granted, 2009-0578 (La. 11/25/09), 22 So.3d 166, reversed, 2009-0578 (La. 5/11/10), 35 So.3d 1065 (per curiam).
The State applied for certiorari review, which was granted. The Supreme Court reversed this court's decision and remanded the case. The Supreme Court found that by including step-relationships within the ambit of Louisiana's aggravated incest statute, the legislature plainly meant to encompass relationships of affinity within a family arising from the marriages or remarriages of blood relatives including blood parents and siblings. Thus, according to the Supreme Court, assuming that M.C. was the biological daughter of Edward Flynn, then Trina was M.C.'s aunt by consanguinity, and the defendant, as the husband of Trina and the brother-in-law of Edward, was M.C.'s uncle by affinity. State v. Ardoin, 2009-0578, pp. 4-6 (La. 5/11/10), 35 So.3d 1065, 1067-1068.
We found in our decision that, whether Edward was the biological father of M.C. or not, the defendant was not the biological, step, or adoptive uncle of M.C. As such, we did not determine whether the State proved that M.C. was the biological daughter of Edward, which was part of the defendant's sufficiency claim. Ardoin, 2008-1504 at pp. 4-5, 6 So.3d at 240. On remand, the Supreme Court has directed us to address this aspect of the defendant's argument. Ardoin, 2009-0578 at p. 6, 35 So.3d at 1068. Because we find that the evidence at trial established that Edward Flynn was the biological father of M.C., we now affirm the defendant's conviction and sentence.
FACTS
The defendant was married to Trina Ardoin. Trina's brother was Edward Flynn. Edward's daughter was M.C., the seven-year-old victim. Therefore, Trina was M.C.'s aunt. M.C. lived with the defendant and Trina. Trina had raised M.C. since she was six months old. Edward's wife was Merdean Flynn, M.C.'s stepmother. M.C. visited Edward and Merdean on weekends and holidays. During one of these visits in June 2006, M.C. told Merdean about inappropriate behavior by the defendant. M.C. told Merdean the defendant came into the room, raised up her shirt and kissed her on the stomach. The defendant told M.C. he was finding a tickle spot. The defendant then pulled down M.C.'s pajama bottoms, rolled her over, and kissed her on the buttocks. Later, M.C. was questioned by Edward and Merdean about the incident. Edward asked M.C. if the defendant had done anything else to her. M.C. responded that "he stuck his finger down there."
M.C. testified at trial. M.C. stated that they were living in a trailer in Gibson. She was sitting on the couch when the defendant knelt, pulled down her pants and panties, and licked her "bottom private part." On another occasion, the defendant had M.C. stroke his penis with her hand until he ejaculated. M.C. also testified that the defendant came into her room and touched her vagina with his hand. According to M.C., the defendant performed oral sex on her about ten times.
The defendant testified at trial. He denied the allegations. He stated he never put his tongue on M.C.'s private parts, and he never forced M.C. to touch him.
ASSIGNMENT OF ERROR
In his only assignment of error, the defendant argues the evidence was insufficient to support the conviction of aggravated incest. Specifically, the defendant contends the State failed to prove that M.C. was the biological daughter of Edward Flynn and, as such, failed to establish that the defendant was related to the victim as a biological, step, or adoptive relative.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; La.Const. art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, 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 (1979). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. 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. See State v. Patorno, 2001-2585, pp. 4-5 (La. App. 1 Cir. 6/21/02), 822 So.2d 141, 144.
Louisiana Revised Statutes 14:78.1 provides, in pertinent part:
A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
The State must prove several elements to establish the offense of aggravated incest. First, the State must show that the victim was less than eighteen years of age. Second, the State must show that the offender knew that the victim was related to him within the specified degrees. The statute enumerates a list of relatives who may be victims of the offense and specifies that the offender must be aware of his relationship to the victim. Finally, the State must prove that the defendant has engaged in one of the prohibited acts with the victim. See State v. Flores, 27,736, p. 5 (La. App. 2 Cir. 2/28/96), 669 So.2d 646, 650.
The sole issue before us is whether the State proved that M.C. was the biological daughter of Edward Flynn. In its reasons for its judgment, the trial court found that the elements for aggravated incest had been met. Regarding the relationship element, the trial court found that Edward was the father of M.C. and that, therefore, the defendant was the uncle, or "step-uncle," of M.C.
The testimonial evidence adduced at trial established that the defendant was married to Trina Ardoin. Trina's brother was Edward Flynn. Edward's daughter was M.C. Therefore, Trina was M.C.'s biological aunt. As such, the defendant was M.C.'s uncle by marriage. Edward did not testify at trial. However, the testimony of several witnesses at trial established that Edward was the biological father of M.C. Detective Cher Pitre, with the Terrebonne Parish Sheriffs Office, testified that she investigated the complaint of sexual abuse of M.C. Detective Pitre stated that Edward was Trina's brother and M.C.'s biological father. Detective Pitre further indicated that because Edward did not take any protective measures for his daughter, M.C., after hearing about the alleged abuse, Edward was arrested and charged with accessory after the fact.
Merdean Flynn, Edward's wife, testified that the defendant was Edward's brother-in-law. Merdean stated that Edward had children from his previous relationship. When asked by the prosecutor how many children Edward had, Merdean responded:
To my knowledge, he has [P.F.] from his first marriage. And it was so-said he have a second child that's called [J.]; but [J.] does not carry my husband's last name. He carries the daddy that he's with now's last name. And also [M.C.].
Merdean testified that even though M.C. lived with Trina and the defendant, she (Merdean) and Edward saw M.C. on the weekends and holidays. Merdean further testified that when M.C. told her that the defendant had abused her, Merdean told Edward what M.C. had told her. Edward told Merdean that the defendant was "just playing" with M.C. Subsequently, Merdean told Edward about two other occurrences where the defendant had acted inappropriately with M.C. Edward ignored the situation and never confronted the defendant. Merdean told Edward he needed "to defend [his] daughter." When Edward refused to heed Merdean's advice, Merdean made Edward leave their home. Edward then moved into the defendant's house.
M.C. testified that her real father's name was "Eddie" and that Eddie and her "nanny" Trina are brother and sister. Also during direct examination, the following colloquy took place:
Q. Okay. All right. Now, did you get to visit your real daddy on weekends and holidays and stuff like that?
A. Yes, sir.
Q. All right. And what did you call him?
A. Dad.
Q. Okay. And that's Eddie, right?
A. Yes, sir.
Q. Okay. All right. And did — Did your daddy, Ed, have a wife that lived with him the last couple of years?
A. Yes, sir.
Q. What was her name?
A. Ms. Merdean.
Trina Ardoin testified that she was married to the defendant. She further testified that M.C. was her niece and that M.C.'s father was Edward Flynn. When asked why M.C. did not carry her father's last name, Trina replied that Edward was not on the birth certificate. When asked if she knew why he was not on the birth certificate, Trina responded, "No, I do not. I was told he refused to sign it, but I don't know."
There was some testimony at trial that raised the possibility that Edward was not M.C.'s biological father. For example, Rose David testified that she was Trina's mother. Since Trina and Edward were siblings, Edward was Rose's son. Rose testified that when M.C. was taken away, Rose was refused contact with her because the Office of Child Safety said it could not prove that Rose was M.C.'s grandmother. Also, on cross-examination the following colloquy between Merdean and defense counsel took place:
Q. Hasn't there been some question — I don't know whether it's recently or whatever, but in the course of this case — In fact, I even discussed it with you —
A. Sunday, yeah.
Q. — that somebody believes that he is not really the true biological father?
A. Yeah. And that somebody is Trina.
Q. Okay. But at some point, didn't Ed consider the possibility of a DNA test to see?
A. To my awareness, to my knowledge, no. Because this is what he had stated in my presence. This is what he had stated to me as long as I have been with Edward: To him, he might think [M.C.] might not be his, but in his heart deep down [M.C.] is his biological daughter and he does not want to take a DNA test.
The burden of proving paternity of a living parent is by a preponderance of the evidence. Simply stated, it must be shown that paternity by the parent is more probable than not. Proof of paternity is a factual question, and a trial court's determination of the issue should not be disturbed absent a finding of manifest error. State v. Scott, 34,949, p. 12 (La. App. 2 Cir. 1/25/02), 823 So.2d 960, 967-68, writ denied, 2002-1622 (La. 5/16/03), 843 So.2d 1122.
The trial court heard all of the testimony and viewed all of the evidence presented to it at trial and, notwithstanding any alleged inconsistencies, the trial court found that M.C. was the biological daughter of Edward Flynn. It is clear in its finding of guilt that the trial court found the testimony of M.C., Detective Pitre, Merdean, and Trina credible and reliable enough to establish the biological relationship between M.C. and Edward. 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 fact finder's determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (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. State v. Mitchell, 99-3342, p. 8 (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).
After a thorough review of the record, we find no need to disturb the trial court's factual finding of paternity, namely that Edward Flynn was the biological father of M.C. Since M.C. was the daughter of Edward, and Edward was the brother of Trina, who was married to the defendant, the defendant was M.C.'s uncle by affinity; and since step-relationships in the aggravated incest statute encompass relationships of affinity, the defendant falls within the class of offenders as defined by that statute. See Ardoin, 2009-0578 at p. 5, 35 So.3d at 1068.
Accordingly, we find that the evidence supports the trial court's finding of guilt. We are convinced that 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 aggravated incest. The assignment of error is without merit.