Opinion
2015 KA 1765
04-27-2016
STATE OF LOUISIANA v. MORRIS J. GRIFFIN
Jeff Landry Attorney General and Terri R. Lacy Assistant Attorney General Baton Rouge, Louisiana Richard J. Ward, Jr. District Attorney and Chad Aguillard Assistant District Attorney Attorneys for Appellee, State of Louisiana Prentice L. White Baton Rouge, Louisiana Attorney for Appellant, Morris J. Griffin Morris J. Griffin Angola, Louisiana Appellant, Pro Se
NOT DESIGNATED FOR PUBLICATION On Appeal from the 18th Judicial District Court In and for the Parish of Pointe Coupee State of Louisiana
Trial Court No. 78,697-F, Div. A The Honorable James J. Best, Judge Presiding Jeff Landry
Attorney General
and
Terri R. Lacy
Assistant Attorney General
Baton Rouge, Louisiana Richard J. Ward, Jr.
District Attorney
and
Chad Aguillard
Assistant District Attorney Attorneys for Appellee,
State of Louisiana Prentice L. White
Baton Rouge, Louisiana Attorney for Appellant,
Morris J. Griffin Morris J. Griffin
Angola, Louisiana Appellant,
Pro Se BEFORE: WHIPPLE, G.J., WELCH, AND DRAKE, JJ. DRAKE, J.
Defendant, Morris J. Griffin, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. He pled not guilty. Following a jury trial, defendant was found guilty as charged. Defendant subsequently filed a motion for new trial and postverdict judgment of acquittal, which the trial court denied. Thereafter, the trial court sentenced defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant now appeals, alleging one counseled assignment of error and two pro se assignments of error. For the following reasons, we affirm defendant's conviction and sentence.
In 2015, the legislature amended the title of "aggravated rape" to "first degree rape." See 2015 La. Acts No. 184, § 1 & 2015 La. Acts No. 256, § 1. However, any reference to the former crime of aggravated rape is the same as a reference to the current crime of first degree rape. See La. R.S. 14:42(E).
FACTS
The victim, S.G., was born on April 4, 2002. From approximately October of 2006 until June of 2012, S.G. and her mother lived next to defendant, S.G.'s uncle, in Pointe Coupee Parish.
In accordance with La. R.S. 46:1844(W), the victim herein is referenced only by her initials or as "the victim." --------
In September of 2012, S.G. disclosed to her mother that defendant had sexually abused her. In subsequent interviews and at trial, S.G. described that from ages seven to ten, she would occasionally spend the night at defendant's trailer. Multiple times over the course of these visits, defendant would perform oral sex on S.G., force her to perform oral sex on him, or touch her in other inappropriate ways. S.G. reported that defendant also showed her pornographic images and videos, and he threatened her with a gun never to tell anyone.
Defendant did not testify at trial. After he was arrested, defendant gave a statement to the police in which he denied any wrongdoing, explaining that his only physical contact with S.G. were occasions when he would rub her back or hug her.
SUFFICIENCY OF EVIDENCE
In his second pro se assignment of error (addressed here first), defendant argues that the evidence presented at trial was insufficient to support his conviction for aggravated rape. He argues that the victim's claims of sexual abuse were not corroborated by behavioral changes or visible signs of sexual abuse.
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 La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), 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 factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
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. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
In pertinent part, aggravated rape is a rape committed upon a person where the oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense. See La. R.S. 14:42(A)(4).
In the instant case, there was ample, uncontroverted evidence that defendant committed the aggravated rape of S.G. The state played for the jury two recorded interviews of S.G. in which she indicated that defendant had, on multiple occasions, sexually abused her when she was between the ages of seven and ten years old. S.G. described that defendant performed oral sex on her, forced her to perform oral sex on him, touched his "private" to her "private," and engaged in other forms of inappropriate fondling. S.G.'s statements in these two interviews were consistent with each other and with testimony that she gave at trial. The results of S.G.'s physical exam, taken several months after the abuse had ended, revealed "normal" findings. As explained in greater detail below, the state presented expert testimony to demonstrate that it is not unusual for child victims of sexual assault to display no signs of physical trauma.
Defendant did not testify at trial. When he spoke with the police following his arrest, defendant denied having ever inappropriately touched S.G. He explained that he would occasionally rub her back or hug her.
The evidence presented at trial supports the jury's verdict. Viewed 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 defendant was guilty of aggravated rape. The victim's testimony alone was 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. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (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. See Ordodi, 946 So.2d at 662.
This assignment of error is without merit.
EXPERT TESTIMONY
In his sole counseled assignment of error, defendant contends that the trial court improperly allowed the testimony of Anne Troy to exceed the permissible bounds of expert testimony in violation of the rules of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), State v. Foret, 628 So.2d 1116 (La. 1993), and State v. Chauvin, 2002-1188 (La. 5/20/03), 846 So.2d 697. In a pro se assignment of error raising the same argument, defendant avers that the trial court erred in denying his motion for new trial and postverdict judgment of acquittal.
In Foret, the defendant had been charged with molestation of a juvenile, but was found guilty of attempted molestation of a juvenile. Foret, 628 So.2d at 1117. At trial, the state presented testimony from Dr. William Janzen, Ph.D., who qualified as an expert in the field of psychology with expertise in child sexual abuse. Id. at 1118. Dr. Janzen testified that he interviewed the victim on three separate occasions and concluded, in his expert opinion, she was telling the truth about being the victim of sexual abuse. Id. at 1119. As the basis for this opinion, Dr. Janzen relied upon factors present in Child Sexual Abuse Accommodation Syndrome ("CSAAS"). Id. at 1123-24. Notably, Dr. Janzen described specific details of the allegations made by the victim and, with the court's permission, named the defendant as the person whom the victim identified as her abuser. Id. at 1119. Dr. Janzen stated, "[t]he details that [the victim] gave me are consistent with the dynamics of sexual abuse and so my conclusion would, therefore, be that she has been sexually abused and should be in counseling to help her cope with that." Id. at 1120. Subsequently, Dr. Janzen summed up his testimony by stating that, given the details related to him by the victim and considering the various dynamics of sexual abuse, his only conclusion was that the victim had been sexually abused. Id.
The supreme court in Foret found that Dr. Janzen's CSAAS-based testimony was of "highly questionable scientific validity," and failed to unequivocally pass the Daubert threshold test of scientific reliability. Id. at 1127. The court further determined that the use of CSAAS-based testimony for the purpose of bolstering a witness's credibility created a risk of prejudice that outweighed the evidence's questionable probative value, and thus, such opinion testimony as a determinant of the victim's credibility was not admissible. Id. at 1129.
The Foret court did note that this sort of expert testimony must focus on why "superficially bizarre" reactions such as delayed reporting take place in some cases. Id. at 1130. Such opinion testimony must seek to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents without giving testimony directly concerning the particular victim's credibility. Id. If the testimony is limited in this way, then it is of assistance to the jury in evaluating the psychological dynamics and resulting behavior patterns of alleged victims of child abuse, where the child's behavior is not within the common experience of the average juror. Id.
In Chauvin, the defendant was convicted of indecent behavior with juveniles. Chauvin, 846 So.2d at 698. At trial, the state presented the expert testimony of a licensed clinical social worker who testified that one of the victims had been diagnosed as suffering from Posttraumatic Stress Disorder ("PTSD"). Id. at 699. The social worker then testified that the symptoms of PTSD were consistent with a child who had been sexually abused. Id. at 700.
The Louisiana Supreme Court found that the testimony of the social worker violated the rules of Daubert and Foret. The court noted that the state did not limit the testimony in an attempt to explain delayed reporting, and it found no showing that PTSD evidence was reliable and accurate as substantive proof of sexual abuse. Id. at 708-09.
In the instant case, the state offered Anne Troy, a nurse practitioner, as an expert in child maltreatment and child abuse. Ms. Troy examined the victim at the Audrey Hepburn Care Center on October 17, 2012. As part of her examination, Ms. Troy took a medical history report from the victim. The audio of this medical history report was played for the jury at trial. As part of the medical history report, the victim described to Ms. Troy the precise types of sexual abuse she had suffered.
Following the presentation of the recorded medical history report, the state asked Ms. Troy whether she had the opportunity to view the victim's forensic interview taken at the Children's Advocacy Center, which had previously been introduced at trial. Ms. Troy replied that she had and that there was nothing about the medical history that was inconsistent with that interview, or which raised any red flags. Next, the state asked Ms. Troy (over defendant's objection), whether the history related by the victim was "consistent with a child who has been sexually abused." Ms. Troy replied that the history was consistent with sexual abuse and explained:
When we talk to children, we're looking for detail. We're looking for sensory responses. We're looking for spontaneous responses and she was clear, detailed, spontaneous and she was consistent in what she was saying, even when I went back over things, she was continuing to give me the same history.
[. . .]
She was very upset, she was crying, she was very uncomfortable that there was a physician in the room and you heard at one point where
she said, "Can it be just you and me talking?" So, she's very embarrassed and I had to tell her that the witness in the room needed to stay, but that we always tell the residents not to look over at the child for that very reason. But, they feel extra eyes on them makes them embarrassed. So, she was expressing that embarrassment, shame and was very consistent with somebody who was just giving a disclosure and talking about something that had been threatened for her to be quiet about.
The state then asked about Ms. Troy's physical findings with respect to the victim. Ms. Troy reported that the victim had a normal exam, which she described as common in cases of child sexual abuse because children heal very quickly and may tend to delay disclosure. Therefore, she did not find it inconsistent with a report of sexual abuse not to find physical trauma.
Ms. Troy also began to testify that approximately ninety-five percent of child victims of sexual abuse involving penetration will present normal physical findings. This statistic was a key point of contention during the pretrial Daubert hearing, where Ms. Troy cited several studies and her own experience in support. The trial court does not appear to have made any specific pretrial determination regarding the admissibility of this statistical evidence other than to state that Ms. Troy would be subject to full cross-examination at trial. At trial, defense counsel immediately objected to Ms. Troy's testimony regarding this statistic as being unresponsive to the question she had been asked, and the trial court sustained the objection. Ms. Troy did not mention the statistic again, and defense counsel did not seek any remedy as a result of this sustained objection, so any Daubert issues with respect to this statistic were resolved when the trial court sustained defense counsel's objection at trial. Compare State v. Vidrine, 2008-1059 (La. App. 3d Cir. 4/29/09), 9 So.3d 1095, 1110-11, writ denied, 2009-1179 (La. 2/26/10), 28 So.3d 268 (vacating a defendant's conviction where he was denied a Daubert hearing and the state's expert testified over defense counsel's objection regarding statistics that went beyond providing a scientific perspective from which the jury could evaluate the victim's testimony).
Next, Ms. Troy discussed the concept of delayed reporting and general reasons that delayed reporting occurs in child sexual abuse cases. Ms. Troy stated:
In general, there are several reasons, one is [naiveté]. Children don't even know what is happening to them is wrong. We actually don't do the good touch, bad touch for that very reason, because when you touch genitals it feels good and you're not even sure it's something you should tell someone else. You don't know that everybody isn't having that happen. There's internal reasons, where kids feel embarrassed or ashamed or blame themselves or they are afraid that someone who's paying rent is going to be out of the house if they tell mom. So, external reasons for fear for mom being mad or not believing them or some economic consequence of it will keep kids quiet.
[. . .]
Kids that are fearful that they're going to be blamed, fearful that they're going to be punished, fearful that there's going to be some consequences, and many are not. seeing someone again, because a lot of times kids have a relationship with the perpetrator. They want the abuse to stop, they don't want bad things to happen to the perpetrator.
In closing, Ms. Troy was asked whether, given the victim's history and the physical findings, she could conclude whether the medical evaluation was consistent with a child who had been abused. Ms. Troy stated that even with a normal physical examination, that conclusion was "correct." On cross-examination, Ms. Troy stated again that the physical exam resulted in a normal finding, and she conceded that there were no definitive findings of sexual abuse.
Defendant first raised the issue of the admissibility of Ms. Troy's testimony at a pretrial Daubert hearing, and he entered numerous (overruled) objections to it at trial. On appeal, he reiterates the argument that Ms. Troy's testimony should have been inadmissible because it improperly bolstered the credibility of the victim's "uncorroborated allegation of abuse."
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case. La. Code Evid. art. 702. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused. La. Code Evid. art. 704. The credibility of a witness may not be supported until it has been attacked. La. Code Evid. art. 607(B).
Defendant argues that Ms. Troy's testimony went to credibility, not generalities, because she testified that her findings were "consistent with" a determination that sexual abuse had taken place. Defendant contends that this language is identical to the language used by Dr. Janzen in the Foret case, so Ms. Troy's testimony should have been excluded.
At the outset, we note a critical difference between Ms. Troy's testimony and the testimonies of Dr. Janzen in Foret and the social worker in Chauvin. Ms. Troy's testimony did not rely upon a collateral diagnosis, such as CSAAS or PTSD, to conclude a finding of sexual abuse. Unlike these cases, Ms. Troy did not definitively state that S.G. had been sexually abused. While Dr. Janzen testified in Foret that the victim's details were "consistent with the dynamics of sexual abuse," he also continued that his "only conclusion" was that the victim had "been sexually abused." See Foret, 628 So.2d at 1120. In the instant case, Ms. Troy agreed with the state that her observations of the victim's demeanor, as well as the physical findings, were "consistent with a child who has been abused," even with a normal physical examination. However, unlike Dr. Janzen, Ms. Troy did not testify that sexual abuse was her "only conclusion," nor did she affirmatively state that the victim had been sexually abused. Compare Foret, 628 So.2d at 1120. Moreover, on cross-examination, Ms. Troy admitted that she could not make a definitive finding of sexual abuse. At the pretrial Daubert hearing, Ms. Troy stated that she would never give an opinion at trial as to S.G.'s credibility regarding the claim of sexual abuse. Her trial testimony did not cross such a line.
Taken as a whole, Ms. Troy's testimony had a twofold effect outside of simply serving to bolster the victim's credibility. First, Ms. Troy's testimony regarding the victim's normal physical exam served to demonstrate that victims of child sexual abuse often do not present signs of physical trauma from the abuse. Second, Ms. Troy explained to the jury the concept of delayed reporting in general terms, which the Foret court expressly sanctioned. See Foret, 628 So.2d at 1130. Thus, Ms. Troy's testimony assisted the jury in understanding "superficially bizarre" circumstances in the instant case. See Foret, 628 So.2d at 1130. While Ms. Troy may have used language similar to that used by Dr. Janzen in Foret, she did not ultimately deliver an expert opinion stating that her only conclusion was that the victim had told the truth about being sexually abused. Ms. Troy's testimony was within the limits of Daubert, Foret, and Chauvin, and it assisted the trier of fact in understanding the victim's lack of lingering physical trauma and her delayed disclosure of the abuse. Therefore, the trial court did not err or abuse its discretion in denying defendant's requests to exclude Ms. Troy's testimony.
These assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.