Opinion
No. KA 08 01320.
May 6, 2009.
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 12817-04 HONORABLE D. KENT SAVOIE, PRESIDING.
John F. DeRosier, District Attorney, Carla S. Sigler, Assistant District Attorney, 1020 Ryan Street, Lake Charles, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Mark O. Foster, Louisiana Appellate Project, P.O. Box 2057, Natchitoches, LA, COUNSEL FOR DEFENDANT-APPELLANT: I. F., Jr.
Court composed of SYLVIA R. COOKS, MARC T. AMY and J. DAVID PAINTER, Judges.
Defendant appeals his convictions of attempted aggravated rape and forcible rape, alleging insufficient evidence to sustain the verdicts.
FACTS AND PROCEDURAL HISTORY
It was alleged Defendant, I. F., the biological father of J.A.L., had continuous sexual intercourse with her between the years of 1983 and 1986. The victim's date of birth is October 16, 1972.
We will use the initials of the parties involved to protect the identity of the victim as required by La.R.S. 46:1844(W).
Defendant was indicted on two counts of aggravated rape, in violation of La.R.S. 14:42. A jury trial occurred, and Defendant was found guilty of one count of attempted aggravated rape, a violation of La.R.S. 14:27 and 14:42, and one count of forcible rape, a violation of La.R.S. 14:42.1. Defendant was sentenced to serve forty years imprisonment on each count to be served concurrently, with twenty-five years to be served without the benefit of parole.
Defendant perfected this appeal, alleging there was insufficient evidence to sustain the verdicts of attempted aggravated rape and forcible rape. For the following reasons, we affirm the convictions.
ASSIGNMENT OF ERROR
Defendant argues the convictions for attempted aggravated rape and forcible rape were based solely on the uncorroborated testimony of the victim; therefore, he contends, the evidence was insufficient.
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La. 1983); State v. Duncan, 420 So.2d 1105 (La. 1982);
State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La. 1983).
State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, citing, State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27.
The two offenses of aggravated rape were alleged to have occurred between January 1983 and October 1984 and between October 1984 and May 1986. At the time of the commission of the offenses, La.R.S. 14:42 provided:
Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
See also State v. Henry, 439 So.2d 1242 (La.App. 5 Cir. 1983), aff'd, 449 So.2d 486.
Defendant was convicted of the responsive verdicts of attempted aggravated rape and forcible rape. The attempt statute, La.R.S. 14:27, at the time of the offense provided:
A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
Forcible rape, at the time of the offense, was defined as a rape committed, when the anal, oral, or vaginal sexual intercourse was without lawful consent because the victim was prevented from resisting by force or threats of violence and the victim reasonably believed that resistance was futile. La.R.S. 14:42.1. See also State v. Foley, 456 So.2d 979 (La. 1984).
At trial, the victim stated her date of birth was October 16, 1972. She testified she did not meet her biological father until she was approximately six years old. Shortly thereafter, he began picking her up on weekends and taking her to visit his mother, who also lived in Donaldsonville. At the time, he lived in St. James with his girlfriend. On these visits, the victim testified Defendant would take her driving through the cane fields, and would rub her breasts and vagina. He made her touch his penis. According to the victim, when she asked him what he was doing, he told her "that was something a daddy was supposed to do." When she was eight years old, her father took her to live with his mother in Donaldsonville and the rides and touching continued. When she began her menses, he told her "that it was time for him to go further." She testified he then began penetrating her with his penis. This happened when she was eleven. Shortly after she turned eleven, he moved to Lake Charles and took her with him. The victim stated she essentially became his slave. She had to cook and clean and have sex with him. She testified to one incident where she told him she did not want to have sex with him anymore, so he put a gun to her head and sodomized her. By the time she turned twelve, she was pregnant.
The victim testified it was Defendant who figured out she was pregnant because she stopped having periods. He took her to have an abortion, but she was told that her pregnancy was too advanced. He then dropped her off at a home for unwed mothers in Lafayette. The baby was born on May 25, 1986. The victim stated because she refused to give up the baby for adoption, Defendant sent her and the baby to live with her mother in Donaldsonville. "[H]e dropped me off and just said, you know. He said, she allowed herself to get pregnant. Here, now you have her." He told her to tell her family that the father was a neighborhood boy in Lake Charles. The baby died on October 14, 1986.
The victim testified that approximately a year later, Defendant called her and wanted her to visit. He told her he had a new girlfriend, that the girlfriend was dying to meet her, and that she knew about their sexual relationship. The victim said that the girlfriend told her "[s]he would protect me," and that she did until they both started having sex with her. Then one weekend, when Defendant came to pick her up for a weekend visit, she refused to go. She testified she was in the front yard with her aunts, P. and R., and her boyfriend, H. She said that she told her father "[w]hy don't you just tell them what you been doing to me." She said he hurriedly jumped into the car and left.
After the victim had accused him of the sexual abuse and charges were filed, he left a message for her to call him. She had her aunt, O.L., who was Defendant's sister, listen in on the phone conversation. The victim testified he told her she had to "take back everything I said. I lied. I made it all up because of him fooling with someone down the street, and I was angry because he was fooling around." She said that he told her "you were so young. I was attracted to you, you know. I love you. I didn't mean to hurt you." At trial, the following line of questioning ensued:
Q. So, when your father told you that he was attracted to you and he didn't mean to hurt you, what did you say?
A. I was eight years old. How can you be attracted to me?
Q. And what did he say when you asked him how could he have been attracted to you?
A. He say I was fine.
On cross examination, the victim testified she told her boyfriend that her father had abused her, telling him only that he fondled her. She later married her boyfriend, and they often visited her father and his wife in New Orleans. Even after she and her husband divorced five years later, she continued visiting her father and his wife in New Orleans until 1998. When asked why she visited her father after all the abuse, she explained she visited with him because, initially her husband protected her, then "I guess I just thought that was my way of living. I mean, he abused me; but still he showed me some compassion. That's all I knew. I didn't have anywhere else to go. I mean, they used to give me things. I don't — I don't know."
Defendant argues in brief that the convictions were based solely on testimony by the victim of sexual abuse which allegedly occurred more than twenty years prior to the charges being filed. He points to this court's opinion in State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04), 872 So.2d 602, wherein this court stated that absent internal contradictions or irreconcilable conflicts with physical evidence, a victim's testimony, if believed, is sufficient to support convictions for sexual offenses without medical, scientific, or physical evidence. However, Defendant argues, the "language is being misused to the point that a defendant is being imprisoned for the rest of his life based on nothing more that[sic] barest allegations." Defendant cites a string of cases wherein, he contends, there were medical examinations of the victims and there was some sort of physical evidence on the victims' bodies which corroborated their allegations of sexual offenses, or some sort of eyewitness testimonies putting the abusers in the bed with the victims. He contends that in the present case, there was no such corroborating evidence. He argues:
In this case, no medical evidence or physical evidence whatsoever was adduced to corroborate the bare allegations that a grown man had repeated forcible intercourse with a very young child for several years. This fact cannot be merely quickly dismissed with the standard language that no medical evidence is needed.
There is also no corroborating evidence whatsoever. Not a single family member or friend came forward to support any aspect of the victim's claims. Likewise, the state failed to produce any evidence of prior, similar sexual offenses.
Byron Arceneaux, a sergeant with the Ascension Parish Sheriff's Office, testified they attempted to exhume the baby's body for a DNA match between Defendant and the baby, but the baby's unmarked grave could not be located in the graveyard where he was buried. Moreover, the victim's mother testified the victim never told her about any sexual activity between her and Defendant. However, she corroborated the victim's testimony regarding the age of the victim when she went to live with her paternal grandmother, when she moved to Lake Charles, and when she came back with a baby boy.
We have reviewed the record and disagree with Defendant's assertions that there was no corroborating evidence. Documents established that the victim delivered a baby when she was thirteen years old, in May 1986; thereby establishing that she was impregnated when she was twelve years old.
P.W., the victim's maternal aunt, testified and recalled the incident in the front yard of the victim's mother's house, when the victim "screamed out that she didn't want to go with him anymore because he was touching her in, you know, in the wrong places." She testified that Defendant "left immediately."
The victim's other maternal aunt, R.T., also testified regarding the incident in the front yard. "[M]y niece [J] said something about she didn't want to go back with her father, something like he was having her sex or something like that."
The victim's former husband, H., testified that when they were first dating, he had asked her why she did not want to visit with her father. He stated that at first she would not tell him, but then she told him her father was sexually abusing her, that he put his hand between her legs "and stuff like that." He said she cried so hard he had to hold her up from collapsing on the ground.
Finally, the victim's paternal aunt, O.L., testified regarding the telephone conversation she heard between Defendant and the victim. The aunt testified:
A. Oh, he told her, he say, you didn't tell her about the baby. Did you tell anybody about the baby? And, he said, because that's our secret. That was our secret.
. . . .
A. Okay. What he said — well, I was attracted to you. Or, you know you're fine; and I was attracted to you.
Doctor Earl Soileau, an expert in adolescent and family medicine with a specialty in sexually abused children, testified that it was typical for a child to not tell of the abuse. He stated that the abuser was often a member of the family or someone they knew, and that "they are totally unprepared to decide on what to do next. So, usually — and this is further typically made to be — made to look like their fault, or there is coercion, they will be told that they will be harmed or hurt or killed . . ." He further testified it was not an uncommon occurrence for people to go into adulthood without ever revealing the childhood abuse. In fact, he stated "[i]t's a fairly substantial number." He further testified since it was years later and the victim has had three children, it would be futile to conduct a medical exam in an attempt to establish sexual activity years ago.
We find the evidence was sufficient to sustain the verdicts beyond a reasonable doubt. In State v. Guidry, 95-254 (La.App. 3 Cir. 11/2/95), 664 So.2d 698, this court held that even though there was some contradiction within the victim's testimony, her testimony alone was sufficient to sustain the verdict of sexual battery. The accused was charged with aggravated rape. The victim, then ten years old, testified that her mother's boyfriend had sex with her. This court held:
[T]he defendant touched her on her chest and on her vagina and that he got on top of her and moved back and forth. She stated that the defendant showed her her mother's gun and threatened to kill her and her mother. The victim's testimony is unclear and contradictory as to whether the defendant ever disrobed her and whether he inserted his penis into her vagina.
Although a victim's testimony is contradictory, it can support a conviction of sexual battery if it is clear with respect to the essential elements of sexual battery. c.f. State v. Toups, 546 So.2d 549 (La.App. 1 Cir. 1989). We find that the victim's unequivocal testimony about defendant's touching her chest and vagina and laying on top of her clearly establishes the act element of the crime of sexual battery for Jackson purposes. With respect to intent, this element is also established by the victim's testimony and from the circumstances surrounding the offense. State v. Yarbrough, 596 So.2d 311 (La.App. 3 Cir.), writ denied, 599 So.2d 317 (La. 1992).
As defendant correctly argues in his brief, the victim's testimony is unclear as to whether the defendant ever disrobed her and whether he inserted his penis into her vagina. Since neither penetration nor disrobing is an element of the crime of sexual battery, this conflicting testimony only relates to the victim's credibility. It is the role of the fact finder to weigh the respective credibility of the witness, and therefore the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559. It is the province of the trier of fact to accept or reject, in whole or in part, the testimony of any witness. State v. Nolan, 503 So.2d 1186 (La.App. 3 Cir.), writ denied, 507 So.2d 226 (La. 1987); State v. Jeansonne, 580 So.2d 1010 (La.App. 3 Cir.), writ denied, 584 So.2d 1170 (La. 1991). It was within the jury's province to reject the victim's testimony as to penetration, but to accept her testimony as to the defendant's manual contact with her vaginal area. In so doing, the jury properly exercised its fact-finding role, weighing the testimony of the various witnesses.
Id. at 700.
In the current case, the victim's testimony was unequivocal, straightforward, and all aspects of her testimony were corroborated — the time line of where and with whom she lived, that she conceived a child when she was twelve years old, and that she told her father in front of her boyfriend and two aunts she would not go with him. The two aunts' testimonies corroborated the incident, noting that Defendant hurriedly fled after being told no. Finally, the corroborating testimony of Defendant's sister was that she heard him say, "[Y]ou didn't tell her about the baby. Did you tell anybody about the baby? . . . because that's our secret. That was our secret." The victim testified he threatened her with harm when she did not comply with his demand to have sex. She testified he told her not to tell anyone when he first started to touch her and subsequently when he began having intercourse with her. "I was afraid of [him] always. He always kept a gun on him. So, yes, when he said he would kill me, I was afraid of him."
While Defendant was convicted of attempted aggravated rape and forcible rape, we note the victim's testimony and corroborating testimonies supported convictions for aggravated rape. Defendant began having sexual intercourse with the victim when she was under the age of twelve years old and the sexual activity continued after the age of twelve by threats of violence. The jury had the benefit of hearing the victim's testimony and the witnesses' testimonies, and obviously believed the victim to the extent that they imposed the responsive verdicts of attempted aggravated rape and forcible rape. The Louisiana Supreme Court has held that compromise verdicts are permissible, so long as the evidence supports either the verdict given or the original charge. State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La. 1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432 (1983). In State v. Mussall, 523 So.2d 1305, 1310 (La. 1988), the supreme court, citing Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, further held that "[I]rrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law."
DECREE
For the foregoing reasons, Defendant's convictions are affirmed.