Opinion
NUMBER 2017 KA 1118
02-16-2018
STATE OF LOUISIANA v. JAMES WALTMAN
Samual C. D'Aquilla District Attorney and Stewart Hughes Haley Green Molly G. O'Flynn Assistant District Attorneys Clinton, LA Counsel for Appellee, State of Louisiana Prentice L. White Baton Rouge, LA Counsel for Defendant/Appellant, James Waltman
NOT DESIGNATED FOR PUBLICATION Appealed from the Twentieth Judicial District Court In and for the Parish of East Feliciana State of Louisiana
Docket Number 14-CR-249
Honorable William G. Carmichael, Judge Presiding
Samual C. D'Aquilla
District Attorney
and
Stewart Hughes
Haley Green
Molly G. O'Flynn
Assistant District Attorneys
Clinton, LA Counsel for Appellee,
State of Louisiana Prentice L. White
Baton Rouge, LA Counsel for Defendant/Appellant,
James Waltman BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ. WHIPPLE, C.J.
The defendant, James Waltman, was charged by bill of information on count one with forcible rape, a violation of LSA-R.S. 14:42.1 (prior to amendment by 2015 La. Acts No. 184, § 1 and 2015 La. Acts No. 256, § 1), and on count two with second degree kidnapping, a violation of LSA-R.S. 14:44.1, and pled not guilty on both counts. The defendant waived his right to a trial by jury and, after a bench trial, was found guilty as charged on both counts. On count one, the trial court imposed twenty-five years imprisonment at hard labor, with all but ten years of the sentence suspended and the remaining ten years to be served without the benefit of probation, parole, or suspension of sentence, and five-years active probation with conditions. On count two, the trial court imposed five-years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, to be served concurrently with the sentence imposed on count one. The defendant now appeals, challenging the sufficiency of the evidence in the sole assignment of error. For the following reasons, we affirm the convictions and sentences.
By 2015 La. Acts No. 256, § 1, LSA-R.S. 14:42.1 was amended, subsequent to the offense herein, to change the name of the offense previously termed "forcible rape" to "second degree rape." See 2015 La. Acts No. 256, § 4, and LSA-R.S. 14:42.1(C).
The trial court imposed the following conditions on the five-year period of probation on count one: payment of a $1,000.00 fine, plus costs; payment of $1,000.00 to the indigent defender board; avoidance of any contact with the victim or the victim's family; completion of registration as a sex offender; statutory conditions pursuant to LSA-C.Cr.P. art. 894; and payment of a $50.00 monthly supervisory fee.
While the minutes were silent in regard to the restriction of benefits on count two, the sentencing transcript shows that the entire sentence on count two was imposed without the benefit of probation, parole, or suspension of sentence. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So. 2d 732, 734 (La. 1983).
STATEMENT OF FACTS
On April 30, 2014, the East Feliciana 911 Communications Center received a call from a crying female (H.T., referred to as "the victim" herein) and was able to determine the caller's location as she travelled eastbound on Highway 63 in the parish. During the 911 call, the victim did not initially speak, crying continuously as the call remained open. She ultimately began conversing with a male (the defendant) in the background, begging him to "leave me be" and stating, "you're gonna f------ kill me." She continued to cry as they argued. She accused him of pulling a knife out on her, and he then told her that she was "out of f------ control" at the time and that he wanted to calm her down. She further stated that he came to her house at 11:00 at night and "went crazy." As he continued to defend his actions, she accused him of raping her and threatening to kill her, stating that he had the knife, a gun, and dynamite. She stated that she thought he was going to kill her and that his actions did not calm her down, adding that it, "scared the f--- out of me." During the conversation, the victim identified the person to whom she was talking as James. The call dropped as she continued to cry and cough. The dispatcher called the cell phone number back, but there was no answer.
In accordance with LSA-R.S. 46:1844(W), the victim herein is referenced only by her initials or as "the victim."
The defendant and the victim were married, but were separated at the time of the offenses. By the time of the trial on September 28, 2016, the divorce had been finalized for two years.
Working with the police, the 911 communications center used the cell phone number and/or a history of calls to determine the victim's identity, address, and phone number. At about 6:30 p.m., police officers were dispatched to the victim's last known address. When Sergeant Tom Floyd of the East Feliciana Parish Sheriff's Office first arrived at the residence, the gate was locked. After midnight he returned, at which point the gate was open. He entered the gate and drove up a hill, and the residence was located at the end of the driveway.
The police also reviewed past records that showed that within two weeks of the instant call, there was a previous report involving the victim and the defendant and a history of physical abuse.
Sergeant Floyd approached the residence as backup officers arrived. The victim came to the door and Sergeant Floyd noted that she appeared to have been assaulted, recalling that she had a black eye and cuts on her face. Sergeant Floyd waited for Detective Kevin Garig to arrive to interview the victim. Detective Garig noted that the victim had bruises on her face, a black left eye, redness in the corner of her right eye that appeared to be caused by a broken blood vessel, a mark on her neck, and cuts on her face and legs. She gave Detective Garig the clothing that she was wearing at the time of the incident, including a gray shirt and khaki pants with blood on them. The victim also informed the police that she was expecting the defendant to return, noting that he had left in her vehicle, a Ford F-150 pick-up truck. Upon the defendant's arrival, he was handcuffed and arrested.
During her recorded interview, the victim indicated that unbeknownst to the defendant, she called 911 as he became angry and violent and allowed the call to remain open before nervously discontinuing the call. She detailed the events that took place after the defendant realized that she had called 911. She stated that the defendant would not allow her to get out of her truck. She further stated that he bound her hands behind her back with the belt, drove to a secluded area, put the belt around her arms, repeatedly hit her, pulled down her clothes, and had engaged in sexual intercourse with her without her consent. The defendant broke the handle on the passenger door to prevent her from exiting the truck. She noted that she did not put her underwear back on and that she had left them in her truck.
While the instant offenses took place on Wednesday, April 30, 2014 (after the victim's 911 call), according to the victim, the rape incident she described during the 911 call took place a number of days before the instant offenses.
After his arrest, the defendant also gave a recorded interview. After being advised of his Miranda rights and before requesting a lawyer, he admitted arguing with the victim, but denied knowledge of her injuries or attacking her.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).
SUFFICIENCY OF THE EVIDENCE
In the sole assignment of error, the defendant challenges the evidence in support of the verdicts. He argues that the victim fabricated the claims because she felt that the justice system had failed her when she was ordered to pay court costs and fees after not appearing for a hearing on her motion for a protective order against the defendant. The defendant contends that the victim felt betrayed and admitted to getting loud, crying, and being very aggravated with the defendant and the court system. He further claims that she was under the influence of prescription drugs at the time of the claims. He notes that the common denominator in both felony offenses is the lack of consent and contends that he and the victim had regular and frequent contact despite the fact that the victim filed for a protective order. He admits to having sexual intercourse with the victim, but argues that it was consensual and that the report of rape was the result of the medication that the victim was taking. He argues that the victim's difficulty in recalling some of the facts during her trial testimony indicates a high probability that her account was distorted. The defendant further claims that neither a handgun nor a stick of dynamite were discovered during the investigation. He claims that the victim admitted that she did not tell the police that the defendant had a handgun, though she testified that he did. He argues that the victim is unstable and has a propensity to exaggerate.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV; LSA-Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So. 2d 1360, 1369 (La. App. 1st Cir.), writ denied, 598 So. 2d 373 (La. 1992). See also LSA-C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660. 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, LSA-R.S. 15:438 provides that the fact finder must be satisfied that 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. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987).
Rape is defined, in pertinent part, by LSA-R.S. 14:41(A) as, "the act of ... vaginal sexual intercourse with a ... female person committed without the person's lawful consent." "Emission is not necessary, and any sexual penetration, when the rape involves vaginal ... intercourse, however slight, is sufficient to complete the crime." LSA-R.S. 14:41(B). Forcible rape is defined, in pertinent part, as "rape committed when the ... vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ... [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape." LSA-R.S. 14:42.1(A)(1). A conviction of second degree kidnapping requires, in pertinent part, that the State prove that the victim was forcibly seized and carried from one place to another, physically injured or sexually abused, or was kidnapped while the defendant was armed with a dangerous weapon. See LSA-R.S. 14:44.1(A)(3), (A)(5), (B)(1).
See footnote 1, supra.
After the defendant returned to the residence, the victim consented to the search of her vehicle, evidence was collected, and additional photographs were taken. Detective Garig located a brown belt that was looped through the buckle, a pair of blue women's underwear, a significant amount of apparent blood on the passenger side of the console, and a semi-automatic pistol. He further observed that the handle on the passenger-side door was broken.
The brown belt located by Detective Garig was among the items submitted for testing at the Louisiana State Police Crime Lab. According to the lab results, the victim and the defendant could not be excluded as donors of the DNA sample taken from the belt. Further, a blood sample taken from the truck was consistent with the victim's DNA profile.
At trial, the victim testified that she and the defendant were married for nine years, but were divorced at the time of the trial. On the day of the instant offenses, there was a hearing for a protective order and the defendant was "worried and upset about it." Prior to the hearing date, the defendant came to the victim's house and pleaded with her to not pursue a divorce or the restraining order and was "real erratic and just very aggressive" at the time. He told the victim that he had a present for her, and according to the victim, when she opened the bag, a block of dynamite was enclosed. She took some steps backwards, began crying, and pleaded with the defendant for her life. The defendant further had a gun and a knife and made the victim walk to a pond near her house, where he forced her to have sexual intercourse. She stated that she was scared and decided not to pursue the restraining order.
The victim gave varying accounts as to whether the defendant held the gun or the knife to her side while walking to the pond, though she insisted that he had both weapons at the time.
After the hearing took place without the victim being there, on the day of the 911 call and the instant offenses, the defendant called the victim and asked her to give him a ride and she agreed. As she was driving, the defendant informed her that because she did not appear in court, she would have to pay the court costs. She further testified, "It was like they were punishing me because I was scared." The victim became angry as the defendant yelled at her. She pulled the truck over as they travelled on Highway 67 and told the defendant to get out, but he refused. The defendant threw the soda he was drinking at the victim and struck her before pushing her to the passenger side of the truck and driving off with her. The victim then dialed 911 and allowed the call to remain open. Fearing that the defendant would realize that she had called 911, the victim ended the call as he drove up to a gravel pit and turned off the truck. He got out of the truck, walked over to the passenger's side, noticed that the victim had her cell phone, grabbed the phone, began punching the victim, and looked at the call history. He panicked, becoming furious after seeing she had called 911. He repeatedly cursed at the victim and told her, "You dialed 9-1-1, you F----ing bitch. Now, we're both dead." He pulled her hair, wrapped his belt around her neck, broke the handle on the passenger door, and repeatedly threatened to kill her.
He drove the truck out of the gravel pit, threw the victim's phone out of the window, drove down a dirt road, and parked in a secluded area. After the victim grabbed the defendant's pocket knife, he slammed her head into the dashboard, and she threw the knife out of the window. He told her to get out of the truck, instructing her not to try to escape. As she nevertheless started running, he pushed her to the ground and began kicking and punching her. He removed the belt from her neck, put it around her wrists, took her back to the truck, and pulled down her pants and underwear. The victim started coughing up blood and had difficulty breathing as the defendant removed the belt from her wrists, pulled his pants down, held her legs apart, and forced her to have vaginal, sexual intercourse. The victim specifically denied consenting to the sexual intercourse or using any drugs at the time of the offenses.
The victim testified that she was taking Seroquel when she first met the defendant and that he told her to stop taking it because he felt that it caused her to sleep "too deeply."
The defendant testified at trial and denied bringing dynamite to the victim's residence or having access to dynamite at the time, though he had handled it before in connection with his occupation. He denied holding a gun or knife on the victim and further denied raping the victim. The defendant testified that he and the victim had consensual sex at the gravel pit, a place that they frequented. After he told the victim about the court costs, she became very irritated. He took control of the vehicle because of the victim's irrational behavior and erratic driving, noting that she was screaming and yelling at the time. The defendant admitted that he repeatedly slapped the victim when she kicked him, after he discovered that she had called 911. He further admitted that the victim's lip started bleeding after he hit her. He denied restraining the victim with a belt, testifying that the victim's DNA was on the belt because she had worn it in the past. He admitted that the handle on the passenger door of the vehicle was broken, but denied breaking it or knowing when or how it was broken.
Consistent with the victim's testimony, the defendant testified that the victim was taking Seroquel for sleeping issues when they met. He stated that once they were married, he told her to stop taking the drug and that she was not taking it at the time in question.
In this case, the defendant claims that the victim is unstable and consented to the actions at issue. However, the trier of fact accepted the victim's rendition of the facts and rejected the defendant's hypothesis of innocence that his acts were consensual. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So. 2d 31, 38 (La. App. 1st Cir. 1984). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So. 2d 362, 369, cert. denied, 552 U.S. 905, 128 S. Ct. 239, 169 L. Ed. 2d 179 (2007). Where 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. Richardson, 459 So. 2d at 38. 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 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932. Considering the lengthy recorded 911 call where the victim can be heard crying and proclaiming the defendant's previous actions, the victim's trial testimony, the DNA evidence, the photographs of the vehicle, and the victim's injuries in this case, we cannot say that the trial court's determination was irrational under the facts and circumstances presented. See Ordodi, 946 So. 2d at 662.
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 trier of fact. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So. 3d ___, ___, 2016 WL 314814, *4 (per curiam).
We have conducted a thorough review of the record. We are convinced that a rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of forcible rape and second degree kidnapping. Accordingly, we find no merit in the sole assignment of error.
The defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.