Opinion
NO. 2014 KA 0290
09-19-2014
STATE OF LOUISIANA v. CHARLIE RENE ROMERO
Scott M. Perrilloux District Attorney Matthew Belser Greg Murphy Patricia Amos Assistant District Attorneys Livingston, LA Attorneys for Appellee, State of Louisiana Devonna Ponthieu Michael L. Thiel Livingston, LA Attorneys for Defendant-Appellant, Charlie Rene Romero
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21st Judicial District Court, In and for the Parish of Livingston, State of Louisiana
Trial Court No. 27937
Honorable Zorraine M. Waguespack, Judge Presiding Scott M. Perrilloux
District Attorney
Matthew Belser
Greg Murphy
Patricia Amos
Assistant District Attorneys
Livingston, LA
Attorneys for Appellee,
State of Louisiana
Devonna Ponthieu
Michael L. Thiel
Livingston, LA
Attorneys for Defendant-Appellant,
Charlie Rene Romero
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM, J.
The defendant, Charlie Rene Romero, was charged by bill of information with molestation of a juvenile under the age of thirteen years, a violation of La. R.S. 14:81.2(A) and (D)(1). He pled not guilty and, following a jury trial, was found guilty as charged. The defendant filed a motion for new trial and/or postverdict judgment of acquittal, which was denied. The defendant was sentenced to forty years imprisonment at hard labor with twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The defendant now appeals, designating three assignments of error. We affirm the conviction and sentence.
FACTS
In 2010 and 2011, eight-year-old R.G. and her family lived next door to the thirty-year-old defendant and his family, who lived in a trailer on Amy Benton Lane in Pine Grove, Livingston Parish. R.G. was best friends with the defendant's son and would often go next door to play with him. On several occasions, when R.G. was inside the defendant's home, the defendant would have her sit on his lap. The defendant would then place a blanket over her body while he fondled her breasts and vagina. On other occasions, the defendant took R.G. to his bedroom, put her on his bed, and licked her neck. In 2012, R.G. told a teacher about the molestation. R.G. was subsequently brought to the Children's Advocacy Center (CAC) in Denham Springs, where she was. interviewed about what the defendant had done to her. R.G. testified at trial, and.a recording of her CAC interview was played for the jury. Jessica Romero, the defendant's wife, testified at trial that the blanket described by R.G. in the CAC interview was a gift from the defendant that she received for Christmas in 2011. The defendant testified at trial and denied the allegations of molestation.
The victim is referred to by her initials. See La. R.S. 46:1844(W).
The bill of information indicates the dates of the offense were on or between April 1, 2010 and April 30, 2011.
ASSIGNMENTS OF ERROR NOS. 1 AND 3
In these related assignments of error regarding sufficiency, the defendant argues, respectively, the State did not prove all the elements of molestation of a juvenile; and the case was not proven beyond a reasonable doubt because of the many inconsistencies in the testimony.
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 or not, 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 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, 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. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.
La. R.S. 14:81.2(A)(1) provides:
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 shall not be a defense.
Thus, the prosecution had to prove each element of the crime, namely: (1) the defendant was over the age of seventeen and was more than two years older than R.G., who was under the age of 17; (2) the defendant committed a lewd or lascivious act upon, or in the presence of R.G., (3) the defendant had the specific intent to arouse or gratify either R.G.'s or his own sexual desires; and (4) the defendant committed the lewd or lascivious act by 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. See State v. Redfearn, 44,709 (La. App. 2nd Cir. 9/23/09), 22 So.3d 1078, 1086-87, writ denied, 2009-2206 (La. 4/9/10), 31 So.3d 381.
In his brief, the defendant argues the State did not show that he exercised any kind of control or supervision over R.G. As such, according to the defendant, the State failed to prove the use of "influence by virtue of a position of control or supervision" element. This is the only element of the instant offense contested by the defendant.
At trial, R.G.'s mother testified on cross-examination that, while she never asked the Romeros (the defendant and/or his wife) to babysit R.G. or gave them authority to supervise R.G., it appeared to be mutually understood among the adults that they would watch neighborhood children who came to their respective houses. The relevant exchange between defense counsel and R.G.'s mother follows:
Q. Okay. And were there a lot of kids that lived in the neighborhood, in --
A. Yes, ma'am.
Q. -- Pine Grove?
A. Yes, ma'am.
Q. All right. You never gave the Romeros authority to supervise your daughter, correct?
A. It was mutual. The kids played together. No problem. Loved all the kids to death. I mean, they came to my house. [R.G.] went to their house. They all played together. We were -- we were all friends.
Q. But you never gave -- you never asked the Romeros to babysit your daughter?
A. No, ma'am.
Q. Correct?
A. (Witness responds with a negative nod.)
Q. And you never gave them authority to supervise your daughter, [R.G.], correct?
A. They would watch her if she was over at their house. They would -- yes, ma'am. They would watch her. And if their kids came to my house, I'd watch them just while -- if they were over there playing, at the time, supervising them. Yes, ma'am.
Q. But you never specifically asked them to supervise or to --
A. No. Never to --
Q. -- babysit your --
A. -- babysit.
Q. -- child?
A. No.
The foregoing was the extent of trial testimony regarding the issue of control or supervision. As such, the State arguably did not prove the use of "influence by virtue of a position of control or supervision" element beyond a reasonable doubt. See, e.g., State v. Forbes, 97-1839 (La. App. 1st Cir. 6/29/98), 716 So.2d 424, 428. We need not, however, decide the issue because R.G.'s CAC interview clearly established beyond a reasonable doubt that the defendant molested R.G. through the use of force. In her CAC interview, R.G. stated that on several occasions, the defendant would have her sit on his lap in the living room in his trailer. R.G. indicated that the defendant would touch her vagina and breasts and that when she tried to get up, "he kept pulling me back down." She stated this would scare her. R.G. explained that while on his lap, the defendant would try to put his hand down her shirt, and she would try to pull his hand back out; but he kept on "doing it farther." She stated this scared her because "I didn't want him to like hit me or anything like that." R.G. further revealed the defendant would take her to his bedroom, lay her on his bed, get on top of her, and lick her neck. She stated she was "just really scared" on the bed because when she would try to get up, he would push her back down When asked to explain how she was lying on the bed, R G. stated the defendant "would just like hold me down like that and he would just start licking my neck." In the interview room, R.G, lay back on the bean bag chair she was sitting on and raised her arms above her head as she described how the defendant held "me down like that." When asked how the defendant would hold her, R.G. replied that he would sit on top of her. R.G. also stated that when the defendant touched her vagina, he would ask her if that bothered her. She said that it did, but "he would just keep on doing it."
In its jury charges, the trial court instructed the jurors on every element of molestation of a juvenile that the State was required to prove. The final element, arranged in the disjunctive, required proof the defendant molested R.G. either by use of force, violence, duress, menace, psychological intimidation, or threat of great bodily harm; or by the use of influence by virtue of a position of control or supervision over the juvenile. See State v. Bey, 2003-277 (La. App. 3rd Cir. 10/15/03), 857 So.2d 1268, 1271.
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Based on the foregoing testimony by R.G., wherein she stated that the defendant consistently physically overcame R.G.'s attempts at resistance (physical or otherwise) in order to molest her, the State clearly established the "use of force" element. See State v. Leblanc, 506 So.2d 1197, 1200 (La. 1987) (the "use of force" element refers to the forcible means of overcoming the will or the resistance of the victim); State v. Breaux, 2002-382 (La, App. 5th Cir. 10/16/02), 830 So.2d 1003, 1010 (elements of molestation of a juvenile established where the forty-year-old defendant, who touched his five-year-old victim's buttocks and "went" inside her vagina, covered his victim's mouth with his hand when she tried to call to her mother). Cf. State v. Teague, 2004-1132 (La. App. 3rd Cir. 2/2/05), 893 So.2d 198, 204-05 ("use of force" element not established where the defendant simply-touched the victim's penis while the victim was riding in the defendant's truck). Moreover, given R.G.'s young age and the defendant's position of authority, a factfinder could have reasonably concluded the defendant was able to molest R.G. through duress or psychological intimidation. See State v. Mack, 514 So.2d 567, 569 (La. App. 4th Cir. 1987).
The defendant also argues the evidence was insufficient because of the inconsistencies in the testimony of the witnesses. According to the defendant, there was "a lot of vagueness" especially in R.G.'s testimony wherein she claimed the incidents occurred a few years before she told her mother; she claimed she was molested six or seven times, but kept going back to the defendant's house; she stated that people were in the other rooms when the incidents occurred, and that she could not give an exact time when the defendant molested her. Also, R.G. identified a blanket the defendant used to put over her when she sat on his lap. In the CAC interview, R.G. said the blanket was black with the image of a wolf howling at the moon. According to the defendant, however, Ms. Romero testified that she did not get that blanket (as a gift) until December of 2011, months after the incidents allegedly occurred.
Regarding the blanket, a trier of fact could have drawn the reasonable conclusion that Ms. Romero lied about when she was given the blanket; or perhaps she was being truthful, and R.G. was referring to a different blanket. In any event, the foregoing arguments raised by the defendant were credibility issues. The jury-heard the testimony and viewed the physical evidence presented to it at trial and found the defendant guilty as charged. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, 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 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 re weigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st 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. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which 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. 1st Cir. 1985).
When a case involves circumstantial evidence, and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So.2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So.2d 113 (La. 1988). The jury's verdict reflected the reasonable conclusion that based on R.G.'s testimony in the CAC interview, the defendant molested her over a period of time when she was eight years old. In finding the defendant guilty, the jury clearly rejected the defendant's theory of innocence. See Captville, 448 So.2d at 680-81.
After a thorough review of the record, we find the evidence supports the jury's unanimous verdict. 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 molestation of a juvenile. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
These assignments of error are without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court violated his right to a fair trial and equal protection by denying him extra time to consult with his attorney after the defense rested. Just prior to closing arguments, the following exchange between counsel and the trial court took place:
The Court: All right. Are you all ready to make your closing statements?
Ms. Ferrara [defense counsel]: Your Honor, if I could have five minutes, I would appreciate it.
The Court: Are you ready, Mr. Belser?
Mr. Belser [prosecutor]: Yes, ma'am.
The Court: Ms. Ferrara, can you do it while he's giving his closing --
Ms. Ferrara: I would appreciate five minutes, Your Honor, if it would not be too much trouble for the court.
The Court: Well, I promised these jurors that we would finish this case today. So, that's what I'm trying to do. You didn't work on yours last night or did you?
Ms. Ferrara: Well, I did, Your Honor, but there's one --
The Court: No. Let's go. Mr. Belser?
The defendant argues in brief the right to a speedy trial "goes too far when the judge tells a jury that the trial is going to be finished in one day." Defense counsel was not given five minutes to confer with her client, while earlier in the trial, according to the defendant, the prosecutor's request for a recess was granted. These assertions are baseless.
The defendant's reference to the prosecutor asking for a recess is inaccurate. Because of the expected extensive testimony of his next witness, the prosecutor suggested the jurors could take their lunch break then, and the trial court agreed. Further, the trial court was well within its right to grant or deny defense counsel's request for a five-minute conference. A trial court has broad discretion and the duty to require that criminal proceedings be conducted in an orderly and expeditious manner. See State v. Washington, 614 So.2d 711, 713 (La. 1993) (per curiam); La. Const. Art. V, § 1; La. Code Crim. P. art. 17. The trial court's rulings on matters pertaining to the conduct of the trial will not be disturbed absent an abuse of discretion. State v. Reeves, 263 La. 923, 925-26, 269 So.2d 815, 816 (1972) (per curiam).
Given that both attorneys had presented their cases-in-chief, the evidentiary portion of the trial was over. As such, we cannot find, and the defendant has not shown, how the denial of a five-minute meeting with defense counsel just prior to closing arguments affected any substantial rights of the defendant, prejudiced him in any way, or had any effect on the outcome of the trial. See La. Code Crim. P. art. 921.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.