State ex rel. D.G.

11 So. 3d 548, 2008 La.App. 4 Cir. 0938, 2009 La. App. LEXIS 632
CourtLouisiana Court of Appeal
DecidedApril 30, 2009
DocketNo. 2008-CA-0938
StatusPublished
Cited by1 cases

This text of 11 So. 3d 548 (State ex rel. D.G.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. D.G., 11 So. 3d 548, 2008 La.App. 4 Cir. 0938, 2009 La. App. LEXIS 632 (La. Ct. App. 2009).

Opinion

JOAN BERNARD ARMSTRONG, Chief Judge.

|tOn February 14, 2008, a Petition for Delinquency, was filed against D.G., a fourteen year-old juvenile, setting forth one charge against him of sexual battery under La. R.S. 14:43.1. 1

D.G. appeared in court on February 20, 2008, requested and was appointed counsel from the Indigent Defender Board; he also denied the allegations in the Petition. Various motions were filed and answered, among them a Motion to Preclude Incompetent Testimony filed on April 24, 2008 on behalf of D.G. The motion was deferred to trial.

An adjudication hearing was held on May 14, 2008. Just before the end of the hearing the juvenile judge stated that:

The Court, at this time, adjudicates the juvenile delinquent to the crime of Sexual Battery. I sentence you to a period of incarceration with the Office of Youth Development for a period of two years.
At this point defense counsel interjected: |2Your Honor, I would request that before you do a sentencing in this matter that we’d be allowed to submit evidence on behalf of the defendant.

The State then asked to have a chance to offer a victim2 impact statement “before sentencing,” to which the judge responded: “Not a problem.” The judge went on to state that: “It’s now scheduled for a victim impact statement and a dispositional date at the same time.” Accordingly, the dispo-sitional hearing was held on June 11, 2008, pursuant to which the juvenile judge imposed a disposition of three years with the Office of Youth Development, instead of the two years he contemplated at the original hearing, with a referral to the sexual predators counseling class. This appeal follows.

La. Ch.C. art. 883 requires the State to “prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” This echoes the constitutional requirement that the State prove every element of the offense beyond a reasonable doubt. In re Winship, 897 U.S. 858, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In evaluating whether the evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Nevertheless, the reviewing court may not disregard its duty to consider whether the evidence is constitutionally sufficient simply because the record contains evidence that tends to support each fact nec[552]*552essary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted |ato consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. Id. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Id.

Counsel for D.G. takes the position that the State failed to prove that there was a touching by D.G. of either the genitals or anus of the victim. The victim was not called as a witness, but was physically present in the courthouse and there was no physical or other impediment to calling him as a witness.

The record reflects that there was considerable testimony that D.G. requested the victim to perform oral sex upon him on one or more occasions, but there is no evidence that the victim acceded to any of these requests or that there was any genital contact, oral or otherwise. Mere requests for genital contact, without actual contact, are insufficient to meet the definition of sexual battery as set forth in La. 14:43.1. Therefore, D.G.’s adjudication cannot be sustained on the basis of an oral sexual battery. However, as hereinafter discussed, we find that the adjudication can be sustained on the basis of the juvenile judge’s finding of anal contact.

Counsel for D.G. also complains that the State failed to introduce sufficient evidence to prove beyond a reasonable doubt that he committed a sexual battery upon the victim by anal contact.

The victim’s aunt, who testified as the person to whom the victim made the “initial complaint of sexually assaultive behavior” (referred to as the “first | ¿reporter”) under La. C.E. art. 801 D(l)(d), testified that the victim told her that D.G. was trying to put his “thing” in his “butt.”

La. C.E. art. 801 provides in pertinent part:

D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
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(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.

The first person to whom the victim made the “initial complaint of sexually as-saultive behavior” may have been his eight-year old cousin, J. Therefore, D.G. contends that the hearsay exception testimony in La.C.E. art. 801(D)(1) hearsay exception for “initial complaint of sexually assaultive behavior” does not apply to the testimony of his aunt as she was not the person to whom the victim first reported the “sexually assaultive behavior” of D.G.

The State counters that the statement made by the victim to his aunt was one of initial complaint because implicit in La.C.E. art. 801(D)(1) hearsay exception for “initial complaint of sexually assaultive behavior” is the assumption that the initial complaint is made to an adult or other competent person.

In admitting the testimony of the victim’s aunt as a “first reporter” the trial court reasoned that: “I believe that a first reporter is a responsible person that can, in fact, take steps [to further] the investigation or to preserve the safety of the [553]*553child. I’m going to rule that [an] 8-year-old child does not meet the definition of a first reporter as this [Court is] concerned.” Neither the State nor D.G. cite any authorities in support of their respective positions on this issue, and this Court has | ¿located none. Therefore, we consider this to be a matter of first impression. In doing so we find that we are persuaded by the logic of the trial court’s reasoning as quoted earlier in this same paragraph. Accordingly, we find no error in the ruling of the trial court allowing the testimony of the victim’s aunt to be treated as an “initial complaint of sexually assaultive behavior.”

The State also introduced a DVD of the interview Joan Verrett, a social worker at the Children’s Advocacy Center, conducted with the victim. When asked whether anything happened, the victim said only that his uncle [D.G.] rubbed his private part on his butt. When asked to identify body parts on line drawings of full frontal and rear views of a young boy and a young girl he labeled as “private parts” both the pubic areas and the buttocks shown on both sets of pictures.

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Related

State Ex Rel. Dg
11 So. 3d 548 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
11 So. 3d 548, 2008 La.App. 4 Cir. 0938, 2009 La. App. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dg-lactapp-2009.