NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-54
STATE OF LOUISIANA
VERSUS
KELVIN MOSES ************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 12-65 HONORABLE EDWARD M. LEONARD, JUDGE
************
J. DAVID PAINTER JUDGE
Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty, Judges. AFFIRMED.
J. Phil Haney District Attorney Angela B. Odinet Assistant District Attorney 415 Main Street St. Martinville, LA 70582 COUNSEL FOR APPELLEE: State of Louisiana
Edward J. Marquet Louisiana Appellate Project P.O. Box 53733 Lafayette, LA 70505 COUNSEL FOR DEFENDANT-APPELLANT: Kelvin Moses
Kelvin Moses Pro Se D.W.C.C.-H3A 6370 Bell Hill Rd. Homer, LA 71040 PAINTER, Judge.
Defendant, Kelvin Moses, appeals his conviction for molestation of a
juvenile. For the following reasons, we affirm.
FACTS
N.M., a fourteen year old boy, accused Defendant, his great uncle, of raping
him while he was at Defendant’s apartment.
Defendant was charged with molestation of a juvenile, a violation of La.R.S.
14:81.2, by bill of information filed on January 12, 2012. Defendant entered a plea
of not guilty on January 27, 2012. Trial by jury started on May 7, 2012, and the
following day, the jury found Defendant guilty as charged. On June 19, 2012,
Defendant was sentenced to fifteen years at hard labor. A motion for appeal was
filed on July 11, 2012, and was subsequently granted.
DISCUSSION
Error Patent Review
All appeals are reviewed for errors patent on the face of the record, pursuant
to La.Code Crim.P. art. 920. After reviewing the record, we find an error patent.
However, the error is harmless.
The bill of information charged Defendant with molestation of a juvenile in
violation of La.R.S. 14:81.2(A)(1) and (B)(2). At the time of the commission of the
offense, La.R.S. 14:81.2 did not contain subparagraphs (A)(1) or (B)(2). Those
provisions were added with the rewriting of La.R.S. 14:81.2 during the 2011
legislative session. See 2011 La. Acts. No. 67 § 1. The pertinent provisions at the
time of the commission of the offense were La.R.S. 14:81.2(A) and (C). However,
the erroneous citation of a statute in the charging instrument is harmless error as
long as the error does not mislead the defendant to his prejudice. La.Code Crim.P.
1 art. 464. Defendant does not allege any prejudice because of the erroneous citation.
Therefore, any error is harmless.
Failure to Establish an Element of the Crime
On appeal, Defendant asserts that the State failed to establish an element of
the crime, i.e., control or supervision. Defendant argues that he was not in a
position of control or supervision over the juvenile.
The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
State v. Teno, 12-357, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1073.
Defendant was convicted of molestation of a juvenile, which 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.
La.R.S. 14:81.2(A)(1).
Detective Cassie Duhon testified at trial that she investigated a call regarding
Defendant on April 25, 2011. At that time, she went to Iberia Medical Center to
interview the victim, N.M., then thirteen years old. N.M. informed her that he had
been raped by Defendant at Defendant’s apartment. 2 Clair Guidry, an employee of the Acadiana Crime Lab, testified that seminal
fluid was identified and blood was detected on the rectal swab taken from N.M. A
mixed DNA profile was found on the rectal swab. The major contributor of DNA
was N.M., and the minor contributor was Defendant. Guidry testified that the
probability of selecting an unrelated individual at random having the same partial
minor DNA profile found on the swab was approximately one in 1.2 billion.
Detective Annette Derise also interviewed N.M. at Iberia Medical Center on
April 25, 2011. N.M. told Detective Derise that Defendant picked him up and was
supposed to bring him to his aunt’s house. Defendant told N.M. that his aunt was
not at home, so they went to Defendant’s apartment. While there, N.M. took a bath
and then laid on the sofa. While N.M. was on the sofa, Defendant started fondling
between N.M.’s legs with his foot. N.M. then moved to another sofa, where he
dozed off while watching television. N.M. told Detective Derise that Defendant
picked him up, took him to the bedroom, threw him on the bed, made him perform
oral sex, then rolled him over and penetrated him anally. Detective Derise testified
that N.M. reported the events to a friend, Terrika Joseph. Joseph then reported the
events to Tawana Vital Lecrox, who reported the events to N.M.’s mother. N.M.’s
mother subsequently called Defendant, who denied that the events occurred.
Detective Derise testified that she interviewed Defendant on September 8,
2011, and that he denied that the events described by N.M. took place. He did,
however, admit that he picked N.M. up and that N.M. was at his apartment. He
denied that N.M. was supposed to sleep at an aunt’s house. Defendant said that he
tried to make N.M. do his homework and that N.M. did not want to. Defendant
then fell asleep on the sofa, and N.M. woke Defendant up to bring him home.
N.M. was fourteen years old at the time of trial, with a date of birth of
October 15, 1997. N.M. testified that during Easter of 2011, Defendant, his great- 3 uncle, raped him. N.M. testified that Defendant was going to bring him to his Aunt
Kelly’s house, but Defendant drove to his apartment instead. N.M. testified that
while at Defendant’s apartment, Defendant told him to take a bath, and he did.
Defendant subsequently asked N.M. if he had cleaned his private areas. After the
bath, N.M. laid down on the sofa, wearing Defendant’s shirt and a pair of his own
boxers. N.M. testified that he started falling asleep, and Defendant touched him
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-54
STATE OF LOUISIANA
VERSUS
KELVIN MOSES ************
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 12-65 HONORABLE EDWARD M. LEONARD, JUDGE
************
J. DAVID PAINTER JUDGE
Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty, Judges. AFFIRMED.
J. Phil Haney District Attorney Angela B. Odinet Assistant District Attorney 415 Main Street St. Martinville, LA 70582 COUNSEL FOR APPELLEE: State of Louisiana
Edward J. Marquet Louisiana Appellate Project P.O. Box 53733 Lafayette, LA 70505 COUNSEL FOR DEFENDANT-APPELLANT: Kelvin Moses
Kelvin Moses Pro Se D.W.C.C.-H3A 6370 Bell Hill Rd. Homer, LA 71040 PAINTER, Judge.
Defendant, Kelvin Moses, appeals his conviction for molestation of a
juvenile. For the following reasons, we affirm.
FACTS
N.M., a fourteen year old boy, accused Defendant, his great uncle, of raping
him while he was at Defendant’s apartment.
Defendant was charged with molestation of a juvenile, a violation of La.R.S.
14:81.2, by bill of information filed on January 12, 2012. Defendant entered a plea
of not guilty on January 27, 2012. Trial by jury started on May 7, 2012, and the
following day, the jury found Defendant guilty as charged. On June 19, 2012,
Defendant was sentenced to fifteen years at hard labor. A motion for appeal was
filed on July 11, 2012, and was subsequently granted.
DISCUSSION
Error Patent Review
All appeals are reviewed for errors patent on the face of the record, pursuant
to La.Code Crim.P. art. 920. After reviewing the record, we find an error patent.
However, the error is harmless.
The bill of information charged Defendant with molestation of a juvenile in
violation of La.R.S. 14:81.2(A)(1) and (B)(2). At the time of the commission of the
offense, La.R.S. 14:81.2 did not contain subparagraphs (A)(1) or (B)(2). Those
provisions were added with the rewriting of La.R.S. 14:81.2 during the 2011
legislative session. See 2011 La. Acts. No. 67 § 1. The pertinent provisions at the
time of the commission of the offense were La.R.S. 14:81.2(A) and (C). However,
the erroneous citation of a statute in the charging instrument is harmless error as
long as the error does not mislead the defendant to his prejudice. La.Code Crim.P.
1 art. 464. Defendant does not allege any prejudice because of the erroneous citation.
Therefore, any error is harmless.
Failure to Establish an Element of the Crime
On appeal, Defendant asserts that the State failed to establish an element of
the crime, i.e., control or supervision. Defendant argues that he was not in a
position of control or supervision over the juvenile.
The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
State v. Teno, 12-357, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1073.
Defendant was convicted of molestation of a juvenile, which 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.
La.R.S. 14:81.2(A)(1).
Detective Cassie Duhon testified at trial that she investigated a call regarding
Defendant on April 25, 2011. At that time, she went to Iberia Medical Center to
interview the victim, N.M., then thirteen years old. N.M. informed her that he had
been raped by Defendant at Defendant’s apartment. 2 Clair Guidry, an employee of the Acadiana Crime Lab, testified that seminal
fluid was identified and blood was detected on the rectal swab taken from N.M. A
mixed DNA profile was found on the rectal swab. The major contributor of DNA
was N.M., and the minor contributor was Defendant. Guidry testified that the
probability of selecting an unrelated individual at random having the same partial
minor DNA profile found on the swab was approximately one in 1.2 billion.
Detective Annette Derise also interviewed N.M. at Iberia Medical Center on
April 25, 2011. N.M. told Detective Derise that Defendant picked him up and was
supposed to bring him to his aunt’s house. Defendant told N.M. that his aunt was
not at home, so they went to Defendant’s apartment. While there, N.M. took a bath
and then laid on the sofa. While N.M. was on the sofa, Defendant started fondling
between N.M.’s legs with his foot. N.M. then moved to another sofa, where he
dozed off while watching television. N.M. told Detective Derise that Defendant
picked him up, took him to the bedroom, threw him on the bed, made him perform
oral sex, then rolled him over and penetrated him anally. Detective Derise testified
that N.M. reported the events to a friend, Terrika Joseph. Joseph then reported the
events to Tawana Vital Lecrox, who reported the events to N.M.’s mother. N.M.’s
mother subsequently called Defendant, who denied that the events occurred.
Detective Derise testified that she interviewed Defendant on September 8,
2011, and that he denied that the events described by N.M. took place. He did,
however, admit that he picked N.M. up and that N.M. was at his apartment. He
denied that N.M. was supposed to sleep at an aunt’s house. Defendant said that he
tried to make N.M. do his homework and that N.M. did not want to. Defendant
then fell asleep on the sofa, and N.M. woke Defendant up to bring him home.
N.M. was fourteen years old at the time of trial, with a date of birth of
October 15, 1997. N.M. testified that during Easter of 2011, Defendant, his great- 3 uncle, raped him. N.M. testified that Defendant was going to bring him to his Aunt
Kelly’s house, but Defendant drove to his apartment instead. N.M. testified that
while at Defendant’s apartment, Defendant told him to take a bath, and he did.
Defendant subsequently asked N.M. if he had cleaned his private areas. After the
bath, N.M. laid down on the sofa, wearing Defendant’s shirt and a pair of his own
boxers. N.M. testified that he started falling asleep, and Defendant touched him
between the legs with his foot. Defendant then picked him up and brought him to
the bedroom. Defendant carried him like a baby, laid him on the bed, and got on
top of him. Defendant took off his clothes and raped him. N.M. testified that he
told Defendant to get off him. When asked if he hit Defendant, N.M. testified, “No,
because I never wanted anybody to put their hands on me[,] and I was really scared
cause [sic] I could of [sic] got, he could of [sic] actually murdered me or
something like that.” Defendant did not have a weapon during the incident. After
the incident, N.M. returned home. N.M. testified that Defendant told him, “this is
going to be our little secret.”
N.M. testified that Defendant visited his mother at their home. He spent the
night at Defendant’s apartment once, but Defendant was not home.
Terrika Joseph testified that during Easter of 2011, N.M. called her between
10:00 and 11:00 p.m. crying. N.M. told her he was “played with.” Joseph went to
see N.M., and N.M. stated that his uncle had “played with” him. Joseph attempted
to get N.M. to explain what he meant. She questioned N.M., asking, “did
somebody stick something, you know,” and N.M. said, “yes.” Joseph then told
N.M. that he needed to talk to his mother. Joseph testified that N.M. was nervous,
crying, and pacing. She called N.M.’s nanny, who came over. Defendant later went
to N.M.’s home. Joseph testified that N.M. was a “little bipolar.”
4 Nicole Collins, N.M.’s mother, testified that she was at her daughter’s house
on the night in question, and N.M. returned after 9:00 or 10:00 p.m. Collins was
asked if she gave Defendant permission to pick up N.M., and she stated: “Well he
came to get him to sleep over and I said it was okay that he can [sic] go, but I was
assuming that he was going to my Aunt Kelly [sic] house.” Lecrox was the first
person who told Collins what happened to N.M. Collins testified that N.M. was
hesitant to talk to her about the incident. She then decided to bring him to the
hospital.
Collins testified that N.M. did not have any homework on the evening in
question, and she had never asked Defendant to assist with N.M.’s homework.
Additionally, she had never asked Defendant to speak with N.M. about anything
going on in his life or be a mentor to him. To Collins’s knowledge, N.M. had never
spent any one-on-one time with Defendant. However, Defendant had spent time
with N.M. when he visited their home.
Collins indicated that N.M. had been diagnosed with ADHD but had not
taken medication for the condition in two years. Additionally, he had never been
diagnosed as bipolar. Collins was shown medical records that indicated that she
stated N.M. had ADHD and was bipolar.
Defendant testified that Collins was his niece and that he visited her and
N.M. at their home. Defendant stated that N.M. spent the night at his house three
times, twice with his aunt and a third time during Easter of 2011. Defendant
testified that, on the date in question, Collins called around 10:00 p.m. and
requested that N.M. stay at his house. He picked up N.M. a little after 10:00 p.m.
Defendant testified that Collins said N.M. was cutting up at school, and she needed
something to be done with him. Defendant thought Collins wanted him to get N.M.
to “do his work. Have him to do right in school instead of cutting up.” Defendant 5 had previously spoken with N.M. about his behavior in school. However, he had
never helped N.M. with his homework before. Defendant testified that he was
asked to help N.M. the week before the night in question.
Defendant testified that once at his apartment, he told N.M. to take a bath
and then do his homework. Defendant testified that N.M. said he was not going to
do the work. While N.M. was sitting at a table in the dining area, Defendant dozed
off on the sofa. N.M. subsequently woke Defendant and said that he wanted to go
home. Defendant indicated that he brought N.M. home shortly after 11:00 p.m.
Collins opened the door of the house for N.M. Ten to fifteen minutes later, Collins
called him and said that N.M. told her that Defendant raped him. He then told
Collins that he was coming over. By the time he returned to Collins’s house,
Collins and N.M. had gone to the hospital.
Defendant testified that he had sex with adults and used condoms and that
the previously used condoms were placed on the side of his bed or thrown in the
trash can, which included the trash can in the bathroom where N.M. showered.
Defendant took his trash out when the cans were full. Defendant testified that he
lived alone. Defendant denied assaulting N.M. On cross-examination, Defendant
was asked, “Is it your testimony that [N.M.] because he didn’t want to do
homework took a used rubber and put your semen up his rectum.” Defendant
responded, “I guess, I’m not sure.”
Kelly Davis testified that Defendant was her brother and that Collins was her
niece. She testified that she was introduced to N.M. after the allegations at issue
arose. Davis stated that N.M. was not supposed to spend the night at her house on
the night in question and that he had never been to her house.
Defendant argues that N.M.’s testimony demonstrates the lack of force,
violence, duress, menace, psychological intimidation, or threat of great bodily 6 harm and that he was not questioned by the State regarding any such acts. N.M.
testified that he merely told Defendant to “get off me.”
Defendant also argues that there was no evidence of influence by virtue of a
position of control or supervision over N.M. Defendant asserts that Collins testified
that Defendant did not live with her, was never a mentor to N.M., she never called
upon Defendant to talk with N.M. about any aspect of his life, N.M. never slept
over at Defendant’s house, and the two never spent any one-on-one time together.
Collins gave Defendant permission to transport N.M. to his Aunt Kelly’s house for
the night. Additionally, N.M. testified that Defendant was to bring him to his Aunt
Kelly’s house. N.M. did not see Defendant a lot, speak with or interact with him,
never spent the night with Defendant, and his homework was not Defendant’s
concern.
Defendant argues that neither Collins nor N.M. directly testified that he had
authority or control over N.M. Defendant contends that the jurisprudence requires
the State to establish that N.M. was entrusted to Defendant’s custody and that he
had decision-making authority over N.M. In support of his position, Defendant
cites several cases in which a defendant was found not to have supervision and
control. However, in each of those cases, the alleged conduct occurred when other
adults were present in the house and/or when there was testimony that the
defendant was at the house in a capacity which did not include supervision and
control. State v. Forbes, 97-1839 (La.App. 1 Cir. 6/29/98), 716 So.2d 424, State v.
Rideaux, 05-446 (La.App. 3 Cir. 11/02/05), 916 So.2d 488. See also State v.
Teague, 04-1132, p. 9 (La.App. 3 Cir. 2/2/05), 893 So.2d 198.
To the contrary Defendant herein was the only adult present at the time of
the alleged conduct. Defendant testified that Collins called around 10:00 p.m. and
requested that N.M. stay at his house. N.M. testified that Defendant was going to 7 bring him to his Aunt Kelly’s house. However, Defendant drove N.M. to his
apartment. Collins testified that Defendant picked up N.M. for a sleepover, which
she said was okay but that she assumed that Defendant was bringing N.M. to his
Aunt Kelly’s house. Regardless of the scenario, Defendant was alone with N.M,
and N.M. was under his supervision and control while he was either transported to
Aunt Kelly’s house or visiting Defendant’s apartment.
Because Defendant was the only adult present, and Collins allowed N.M. to
leave home with Defendant, Defendant had supervision and control over N.M. See
State v. A.B.M., 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021, State v. Johnson,
10-547 (La.App. 3 Cir. 12/8/10), ___ So.3d___ and State v. Strother, 43,363
(La.App. 2 Cir. 8/20/08), 990 So.2d 130, writ denied, 08-2289 (La. 5/15/09), 8
So.3d 580. Therefore, we find that the State proved the elements of molestation of
a juvenile beyond a reasonable doubt.
Inflammatory Comments
In his first pro se assignment of error, Defendant contends that the
prosecution committed error when it commented upon a statement made by one of
its witnesses about Defendant.
At the conclusion of the State’s rebuttal closing argument, the prosecutor
stated: “You heard one of the witness’s say she [was] happy he didn’t rape her kids.
I’m glad for that, I just wish he wouldn’t of [sic] raped this one.”
Defendant contends that the State’s comments violated La.Code Crim.P. art.
770, because it was a comment upon another crime not in evidence and/or the
comment was so inflammatory as to be a violation of the provisions of La.Code
8 Crim.P. art. 771.1 Defendant then asserts that, because of this inflammatory
comment, his conviction should be reversed.
However, Defendant failed to contemporaneously object to the remarks at
issue. Accordingly, Defendant did not preserve this claim for appellate review.
La.Code Crim.P. art. 841. Therefore, we will not consider this assignment of error.
Unanimous Verdict Instruction
In his second pro se assignment of error, Defendant asserts that the trial court
violated Article I § 17 of the Louisiana Constitution of 1974 by advising the jury
that its verdict must be unanimous.
When instructing the jury, the trial court stated: “Your verdict must be
unanimous. All must agree. When all of you agree upon the same verdict, whatever
it might be, you may render it. Unless all of you agree on a verdict, no verdict can
be returned.”
Defendant argues that although the jurors were not allowed to rehear or
review evidence, their concerns were expressed through an attempt to either
support guilt and/or render a reduced verdict. Defendant states that, nevertheless,
the trial court’s action in cautioning the jurors that the verdict must be unanimous
indirectly forced jurors to relinquish whatever doubt they may have had in
exchange for a unanimous finding of guilt.
Defendant did not object to the trial court’s jury instruction. Therefore, this
claim was not preserved for appellate review. La.Code Crim.P. art. 841. However,
this court will review this claim because Defendant’s assertion that the jury
instructions were erroneous is incorrect.
At the time of the commission of the offense, La.R.S. 14:81.2(C) provided:
1 Article 770 governs mandatory mistrials, and article 771 governs the use of admonishments. 9 Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.
“Cases in which the punishment may be confinement at hard labor shall be tried by
a jury composed of six jurors, all of whom must concur to render a verdict.”
La.Code Crim.P. art. 782(A).
The charge at issue was triable by a jury of six, all of whom had to concur to
render a verdict. La.R.S. 14:81.2; La.Code Crim.P. art. 782(A). Hence, the trial
court’s instructions to the jury were correct.
CONCLUSION
For these reasons, Defendant’s conviction is affirmed.
AFFIRMED.