Opinion
2018 KA 1481
05-14-2019
STATE of Louisiana v. Victor GALAN
Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Attorneys for the State of Louisiana Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for Defendant/Appellant, Victor Galan Victor Galan, Angola, Louisiana, Defendant/Appellant, In Proper Person
Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Attorneys for the State of Louisiana
Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for Defendant/Appellant, Victor Galan
Victor Galan, Angola, Louisiana, Defendant/Appellant, In Proper Person
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
CRAIN, J.
The defendant, Victor Galan, appeals his aggravated rape conviction and sentence of life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. See La. R.S. 14:42. We affirm.
The defendant committed the instant crime before the effective date of the amendment to Louisiana Revised Statute 14:42, which re-designated the crime of "aggravated rape" as "first degree rape"; therefore, this opinion references the crime as "aggravated rape." See La. R.S. 14:42E; 2015 La. Acts No. 184, § 1 (eff. Aug. 1, 2015) and 2015 La. Acts No. 256, § 1 (eff. Aug. 1, 2015); see also State v. Smith , 17-1333, 2018 WL 1007350, p.1 n.1 (La. App. 1 Cir. 2/21/18), writ denied , 18-0405 (La. 2/18/19), 264 So.3d 771.
FACTS
The victim, E.B.R.M., is the biological daughter of the defendant, and in 2014 lived with the defendant, her mother (who was married to the defendant), and her two younger sisters (also children of the defendant and the victim's mother). At trial, E.B.R.M. testified that following her eleventh birthday, the defendant began touching her breasts and buttocks, then began masturbating on her and sodomizing her, sometimes while she was in bed with her sisters. The abuse continued over a six-month period and stopped when E.B.R.M.'s sisters told their mother what was happening, E.B.R.M. confirmed their accounts, and E.B.R.M.'s mother reported the abuse to the police. The defendant denied raping or inappropriately touching E.B.R.M., claiming his daughters are illegal immigrants and were coerced into making these accusations against him to obtain a "U-visa," which is available to certain crime victims and their families.
The victim and her sister are referenced by their initials. See La. R.S. 46:1844W.
Pursuant to the Victims of Trafficking and Violence Protection Act of 2000, a "U-visa" can be granted to victims of certain crimes who assist United States law enforcement officials in investigating or prosecuting those crimes. See 8 U.S.C.A. § 1101(a)(15)(U) ; Ordonez Orosco v. Napolitano , 598 F.3d 222, 224 (5th Cir.), cert. denied, 562 U.S. 863, 131 S.Ct. 389, 178 L.Ed.2d 87 (2010). The "U-visa" is a nonimmigrant visa classification that provides legal status to petitioners and qualifying family members to apply for work authorization and remain in the United States. See 8 U.S.C.A. § 1101(a)(15)(U) ; Calderon-Ramirez v. McCament , 877 F.3d 272, 274 (7th Cir. 2017).
SUFFICIENCY OF THE EVIDENCE
The defendant contends his conviction should be reversed because it is based on insufficient evidence.
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, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258 (per curiam ); see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So. 2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence, "assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence." La. R.S. 15:438 ; Oliphant , 133 So. 3d at 1258.
The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire , 14-2295 (La. 1/27/16), 269 So.3d 698, 703–04 (per curiam ) (2016 WL 314814, *4). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Gardner , 16-0192 (La. App. 1 Cir. 9/19/16), 204 So.3d 265, 267. The weight given evidence is not subject to appellate review; therefore, an appellate court will not reweigh evidence to overturn a factfinder's determination of guilt. State v. Livous , 18-0016 (La. App. 1 Cir. 9/24/18), 259 So.3d 1036, 1040, writ denied , 18-1788 (La. 4/15/19), 267 So.3d 1130.
Rape is "the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent." La. R.S. 14:41A. "Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." La. R.S. 14:41B. The crime of aggravated rape includes a rape committed where the sexual intercourse is deemed to be without lawful consent of the victim because it is committed when the victim is under the age of thirteen years. La. R.S. 14:42A(4).
E.B.R.M. testified that the defendant raped her multiple times when she was eleven years old. Her testimony detailed the act, explicitly describing sexual penetration. E.B.R.M.'s sister, F.G., testified that on one occasion she awoke in the same bed as E.B.R.M., lifted the covers, and saw the defendant raping E.B.R.M. She too explicitly described sexual penetration. The defendant contends that without corroborating physical evidence, the testimony of E.B.R.M. and her sister, is insufficient to prove penetration occurred. He argues the lack of physical evidence is more consistent with an early statement by E.B.R.M. that the defendant placed his penis between her buttocks. The defendant's argument is legally incorrect.
If believed, the testimony of the victim alone, with no other evidence, is sufficient to prove the elements of the offense. State v. Alexander , 14-1619 (La. App. 1 Cir. 9/18/15), 182 So.3d 126, 131, writ denied , 15-1912 (La. 1/25/16), 185 So.3d 748 ; State v. James , 02-2079 (La. App. 1 Cir. 5/9/03), 849 So.2d 574, 581. 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 , 03-1980 (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. Alexander , 182 So.3d at 131.
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 weight given evidence is not subject to appellate review. An appellate court will not re-weigh evidence to overturn a factfinder's determination of guilt. Alexander , 182 So.3d at 131.
The defendant waived his right to be tried by a jury and elected to proceed with a bench trial. The trial judge specifically found the testimony of E.B.R.M. and F.G. credible and found no evidence either was coached as suggested by the defendant. Although the defendant suggests their testimony is inconsistent with E.B.R.M.'s normal physical exam, Ann Troy, the forensic nurse practitioner who examined E.B.R.M. and testified as an expert in the field of child maltreatment specializing in sexual abuse and delayed disclosure, explained normal findings are common in children because their bodies heal very quickly. 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 all elements of aggravated rape were proven.
The evidence supports the trial court's verdict that the defendant was guilty of aggravated rape. This assignment of error is without merit.
MOTION FOR MISTRIAL
The defendant additionally contends the trial court erred in denying his motion for mistrial based on the state's late disclosure of various documents, including what defense counsel described as a second drawing made by E.B.R.M.'s sister, F.G., during her interview at the Child Advocacy Center. According to the arguments presented to the trial court, the state provided the documents to the defense after completion of the first day of trial, claiming to have just received them. The motion for mistrial was made the following day. The defense argued it was prejudiced because it was unable to cross examine the state's witnesses, specifically F.G., who by that time had been released, to show inconsistencies in their testimony. The defense also argued its trial strategy would have changed had it received the documents earlier, claiming it would have been more adamant in seeking funding for experts. The state contended it provided open file discovery and turned over the documents as soon as they were received, noting the documents did not relate to the victim and contained no Brady information. After extensive discussion with counsel for the parties, the trial court denied the motion for mistrial, but recessed the trial so the defense could review the documents. The trial continued two days later. On appeal, the defendant argues his conviction should be reversed because, after receipt of the "surprise discovery material," his counsel did not have time to prepare a defense or strategy.
Louisiana Code of Criminal Procedure article 729.5 prescribes sanctions for failure to honor a discovery right, leaving it to the trial court's discretion whether a continuance, mistrial, or other order short of dismissal is warranted. Although a mistrial is among the available sanctions, it is a drastic remedy. Except where it is mandatory, a mistrial is warranted only when a trial court error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Andrews , 19-0068 (La. 1/14/19), 260 So.3d 1202, 1202 (per curiam ).
We find the trial court did not abuse its discretion in denying the motion for mistrial. The trial court allowed defense counsel time to review the evidence, indicating it would recess the trial for months if necessary. Thereafter, the defendant had the opportunity to recall the state's witnesses and impeach their testimony with the new evidence. See Andrews , 260 So.3d at 1202. Considering this, the defendant was not deprived of the opportunity to attempt to use the evidence. The defendant has not shown he was prejudiced by the trial court's election to handle the tardy disclosure of the evidence by an alternative other than granting a mistrial. See State v. Arnaud , 412 So.2d 1013, 1017-18 (La. 1982) (finding the defendant was not prejudiced and there was no constitutional violation of his right to a fair trial where the trial court proceeded with trial despite the fact the state tardily provided the defense with a medical report).
The trial court additionally stated that when the trial resumed the defendant could re-urge the motion for mistrial and attempt to articulate the prejudice suffered by the late disclosure; however, the defendant did not re-urge the motion when the trial resumed.
This assignment of error is also without merit.
CONVICTION AND SENTENCE AFFIRMED.
McDonald, J., concurs.