STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-333
STATE OF LOUISIANA
VERSUS
MICHAEL GUILLORY
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 13755-14 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, James T. Genovese and John E. Conery, Judges.
AFFIRMED.
John F. DeRosier, District Attorney Karen McLellan, Assistant District Attorney 901 Lakeshore Drive, Suite 800 Lake Charles, LA 70601 (337) 437-3400 ATTORNEY FOR APPELLEE State of Louisiana
William R. Thornton Louisiana Appellate Project P.O. Box 51992 Lafayette, LA 70505-1992 (337) 534-4656 ATTORNEY FOR DEFENDANT/APPELLANT Michael Guillory COOKS, Judge.
Defendant, Michael Guillory, appeals the jury’s verdict convicting him of
forcible rape and indecent behavior with a juvenile.1 The trial court sentenced
Defendant as a second felony offender to fifty years at hard labor for forcible rape
and ten years at hard labor for indecent behavior with a juvenile.
Defendant alleges one assignment of error: He contends the State “failed to
prove that [he] committed the crimes alleged, beyond a reasonable doubt, because
no rational juror could have found [him] guilty, based on the evidence adduced at
trial.”
On June 2, 2015, the State filed its response brief. The State acknowledged
the case against Defendant contained discrepancies but countered that point by
stating that the victims “never wavered from their testimony that they were
attacked by the Defendant.” The State maintained that its case excluded all
reasonable hypotheses of innocence and that the jury’s determination was rational.
Defendant’s assignment of error requires an in-depth evaluation of the proof
presented at trial to establish his guilt. Accordingly, we will thoroughly examine
the evidence presented below to determine if Defendant’s sufficiency of evidence
challenge has merit.
FACTS AND PROCEDURAL HISTORY
The State’s first witness was Detective Jason Alexander, who was an
investigator with the forensic unit of the Calcasieu Parish Sheriff’s Office at the
time of the incident. He testified that he reported to Lake Charles Memorial
Hospital on October 13, 2007, regarding “sexual allegations against Michael
Guillory” being made by two minor female victims, N.W. and M.R., which
1 Defendant filed a motion to consolidate the matters captioned in docket numbers 15-333 and 15-334 for briefing purposes only. Docket number 15-333, addressed in this opinion, applies to Defendant’s appeal of his conviction after a trial on the merits, and docket number 15- 334 applies to Defendant’s habitual offender proceedings and sentencing. This court granted the motion and ordered the matters consolidated for briefing purposes only. 2 occurred on or about October 6, 2007. When asked to describe his interactions,
Detective Alexander said N.W. “wouldn’t look at me.” The two girls were later
interviewed by Emily Williams at the Children’s Advocacy Center, which
Detective Alexander monitored via closed-circuit television. He also met with
N.W.’s mother at the hospital. The detective testified Defendant called the mother
twice while at the hospital and that he listened to two voicemails left by him, one
in which he asked her to call him immediately, and another in which he said he had
“explaining to do.” The detective later arranged for N.W.’s mother to make a
controlled phone call to Defendant, which in turn resulted in a face-to-face meeting
between the two that was recorded. The detective identified Defendant in court
and testified that he obtained the victims’ medical records. On cross-examination,
Detective Alexander acknowledged that two individuals spoke to the victims
before he did.
Next, the State called Ms. Kim Burt Roland, who was working as a triage
nurse at the hospital on October 13, 2007. She explained that her job was to
document the chief complaint of those entering the emergency room (hereafter
“E.R.”). M.R. told Ms. Roland she was raped by a twenty-five year-old man
named “Mike” and that he licked her breasts and stomach and put her legs around
him and started humping. Ms. Roland explained the procedures the staff follows
when an individual enters the E.R. alleging sexual assault, which includes
completing a SANE exam within seventy-two hours to collect physical evidence.2
The State then entered M.R.’s October 13, 2007, medical record into evidence,
which indicated she stated the incident occurred “last week” and “Michael
Guillory” touched her under the clothes on her chest area and behind, and they
would both be in big trouble if she told anyone, that she said “No” several times,
2 A “SANE” exam is a sexual assault examination performed by a nurse with specialized training to aid victims of sexual violence.
3 he took out his “thing” (meaning “penis”) and asked her if she wanted to know
how to play with it, and he showed her his condoms.
N.W.’s chief complaint was that she, too, was raped by her mother’s friend
and he was wearing a condom when it occurred. N.W.’s medical records from
October 13, 2007, were also entered into evidence. The record indicates that the
rape occurred “one week ago.” It was explained that no SANE exam was
completed because the alleged assault occurred more than seventy-two hours prior
to N.W.’s visit at the E.R. On cross-examination, defense counsel highlighted that
because of the delay in reporting, there was no physical evidence of a sexual
assault as to either victim.
The State’s third witness was Ms. Emily Williams, who interviewed N.W.
and M.R. at the Children’s Advocacy Center (hereafter “CAC”). The interviews
were recorded and entered into evidence.
N.W.’s interview was played for the jury first. The interview was conducted
on October 16, 2007, and N.W. began by saying she was “molested.” She
explained that she went with her mother and “Mike” to get M.R. to bring her back
to her house for the night. Her mother first fell asleep on the couch, but then her
mother went to sleep in her bedroom. Shortly after that, “Mike” picked N.W. up
off the couch and brought her into her bedroom. She did not wake up until he put
her on the bed. She says the first thing she remembers is seeing “Mike” molesting
her. He was taking his clothes off and put something on his “private.” She
explained that she was scared and froze at that moment, and she “guessed” that he
spread her legs. Her shorts were loose, and he moved her underwear to the side
and held them to the side to “molest” her. She described how she was laying on
her back as this occurred, eventually saying that “he put his thing in me.” She
alternatively described it as him putting his “private” in her “middle spot.”
Throughout, he asked her “does that feel good?” and “does that hurt?” She said he
4 also put his hand on her chest but did not remember if it was under or over her
shirt. After some prodding, she said it was over the shirt. He did not make her do
anything to him. After the encounter, she went back to the couch, laid on M.R. and
cried. She said she could not remember if M.R. was asleep or not at the time and
that her mother was in her room. She did not see if he did anything to M.R., but
M.R. told N.W. that he “molested” her. N.W. said that M.R. told her that he put
his thing inside of M.R. too. She said she was scared that he would hurt her and
that a man named Andrew had hurt her before. Andrew had tried to remove her
clothes, but she kicked him off. She told M.R. first about what happened, then her
mother’s friend, Alicia. Ms. Williams showed her two drawings. The first was a
female, on which she circled the chest and “middle spot.” She said he went inside
her “middle spot.” The second was a male, on which she circled the hand and
penis. She also placed an “X” over the penis to signify where he put the “thing” on
his penis, presumably meaning a condom. She did not know what happened to the
condom, nor did she see anything come out of his penis. Finally, she explained
how her mother confronted him in her presence.
Defense counsel cross-examined Ms. Williams subsequent to the jury’s
viewing of N.W.’s interview but before its viewing of M.R.’s interview. Ms.
Williams acknowledged that N.W. spoke with an Alicia Daigle before her
interview regarding the allegations against Defendant and that Ms. Daigle may
have used techniques that Ms. Williams would not have used in her profession,
such as possibly asking leading questions to obtain information from N.W. Ms.
Williams also acknowledged that, aside from Ms. Daigle, N.W. had also spoken
with M.R. and her mother about what had occurred prior to her visit to the CAC.
M.R. had apparently told N.W. that Defendant “put his thing in her [M.R.].” She
also agreed with defense counsel that N.W. had said she was “halfway asleep”
right after the Defendant forcibly raped her and that she needed help from the
5 Defendant walking from one room to another. Finally, defense counsel highlighted
that N.W. had revealed an allegation of sexual abuse within the preceding year by
her mother’s former boyfriend, Andrew.
After cross-examination of Ms. Williams on her interview with N.W., the
State redirected her, playing M.R.’s interview for the jury. M.R. began by stating
her age, thirteen years old, and date of birth, July 31, 1995. She explained how she
had known N.W. for about three years and that N.W. was her favorite friend.
N.W.’s mother picked her up late on a Friday night. The next day, there was a
twenty-five year old man at N.W.’s house that touched them, although she did not
see what happened to N.W. She said the man “French kissed” her and touched her.
He took out his “private spot” and asked if she wanted to know how to play with it.
He took her by the hand and said if she told anyone about what happened that they
would both be in trouble. He took out condoms and showed them to her. She said
that N.W. told her that he put his thing in N.W. When asked when this occurred,
she said it was a Friday night two weeks prior but that he did not do anything to
her until the next day. She originally said she left on Monday but then quickly
corrected herself and said she left Saturday. She said N.W.’s grandmother told her
what happened to N.W. She said that she went into N.W.’s room, where her phone
was charging, and that he followed her in the room and that is when he took out his
“thing” and kissed her and touched her under her bra. She did clarify that “thing”
meant “penis.” He also put his tongue on her chest and in her mouth in the
hallway of the house. Ms. Williams specified with her that there were three
instances in all, one in the hallway where he put his tongue on her chest, another in
the hallway where he put his tongue in her mouth, both of which occurred after he
pulled his penis out for her in N.W.’s bedroom. She said that the bedroom incident
occurred early the next morning, around five or six a.m., but she also said that
N.W.’s mom was at work when these incidents occurred. She then said there was
6 also an incident in the “front room” where he kissed her. At one point, M.R. and
N.W. were discussing what he was doing to them, and he walked into the room
where they were talking and pulled their pants down. M.R. said that N.W. told her
that he put his “thing” in her two times, kissed her, grabbed her chest, and grabbed
her behind. She said that in the hallway, he put M.R.’s legs around him and
“bounced” her. Ms. Williams then showed M.R. the drawings of a male and
female. She circled the “boobs” on the female, saying he licked and touched them,
circled the hands, and circled the vagina, calling it the “front of the butt” and
saying he put his hands on it over her clothes. On the male drawing, she circled the
mouth and hands, saying he used them on her “boobs,” and used his hand on her
vagina. Additionally, she circled the chest saying he made her touch it, and she
circled the penis. She explained that she ultimately confided in her mother because
she was worried about N.W. She said he also called her twice after and that one
time, her father spoke to him on the phone.
On cross-examination, defense counsel highlighted how M.R., like N.W.,
never mentioned having gone to a carnival on the Friday evening just prior to when
the abuse began. Ms. Williams agreed that M.R. did not mention Defendant
putting his “thing” inside her, although N.W. told Ms. Williams otherwise.
Defense counsel attacked the variation in M.R.’s recounting of what occurred,
specifically how she stated that she left N.W.’s house on Monday, then changed it
to Saturday; how M.R. told her that N.W.’s grandmother told M.R. about the
Defendant picking N.W. up off the couch Friday night and bringing her into a back
room (which was later contradicted at trial during M.R.’s testimony); how
Defendant first abused her around five a.m. on Saturday morning, then changed it
to around six a.m., but that N.W.’s mom woke them up first while Defendant was
still sleeping on Saturday morning; and how Defendant had slapped N.W. on the
arm at one point, causing a bruise, which N.W. never mentioned. On redirect, Ms.
7 Williams explained that a child victim will not disclose in great detail every single
incident that may have happened over a course of days.
Ms. Alicia Guthridge (formerly Alicia Daigle), a friend of N.W.’s mother,
took the stand next. She explained that the mother asked her to speak to N.W.
concerning “sexual contact” between N.W. and Defendant. Ms. Guthridge
testified that N.W. told her Defendant “did it with her and that he used a condom.”
She clarified that N.W. told her “he had sex with her.” Ms. Guthridge did struggle
to remember specific details, because the conversation occurred “a while back,” so
she referred to her written statement, in which she wrote that N.W. used the word
“thing.” On cross-examination, defense counsel pointed out Ms. Guthridge had no
specialized training or experience in talking to children about sexual abuse.
Referring to Ms. Guthridge’s statement, defense counsel pointed out that Ms.
Guthridge asked N.W., in leading fashion, “did that guy touch you?” and “did he
put his thing in you?” On redirect, the prosecutor had Ms. Guthridge read her
statement verbatim and attempted to enter the statement over Defendant’s
objection, which the court took “under advisement.”3
M.R.’s mother, was the State’s next witness. She explained that when M.R.
first told her about what Defendant did the following Monday after school, she was
“bawling.” She then proceeded to explain, with no objection from Defendant,
what M.R. told her, that there was someone who messed with and touched her and
that M.R. thought N.W. was being hurt too. She recounted how M.R. told her that
Defendant touched her chest, put his tongue in her throat, and showed her his
“thing.” “At some point” later on, the two mothers decided to bring N.W. and
M.R. to the hospital. M.R.’s mother acknowledged on cross-examination that she
3 The court never made a final ruling. However, the issue was not raised by Defendant on appeal, rendering it moot. 8 and N.W.’s mother were in contact prior to going to the hospital, as were her
daughter and N.W.
M.R. was the State’s sixth witness. Due to the length of time since the
incident occurred, M.R. acknowledged she did not “remember everything.” She
began by identifying Defendant in court and explained how she went to N.W.’s
house after attending a carnival in Jennings. According to her testimony, after
N.W.’s mother went to work the next day, “that’s when everything started to
happen.” She explained that she went to check her phone which was charging in
N.W.’s room and Defendant followed her in, took out his “private,” and asked her
if she wanted to learn how to play with it. She was twelve years old at the time.
She also testified while at N.W.’s house, Defendant showed her condoms, picked
her up in the hallway and put her legs around him and began “bouncing” her, that
he put his hands on her chest and “all over” her, and that he put his tongue down
her throat. Defendant also grabbed her hand and told her not to tell anyone about
what happened. Defense counsel’s cross-examination elicited the fact that what
M.R. referred to as Defendant’s “private” was indeed his penis. She conceded that
she never did speak with N.W.’s grandmother about what happened, in
contradiction of what she said during the CAC interview. She testified that N.W.’s
mother was home at one point when both she and Defendant were alone in N.W.’s
room. She stated Defendant told her “Hey, if [N.W.]’s mom asks anything, I was
in the bathroom, you were in the bedroom.” She explained that she did not tell
N.W.’s mother about anything that was occurring because she did not know what
Defendant was capable of. She said she began feeling unsafe but did not text her
own mother because she was concerned about being at the house “while everything
was going on,” which presumably referred to potential reaction by Defendant to
any accusations she may have made. She could not recall having seen the
Defendant ever strike N.W., but she did remember seeing a bruise on N.W.’s arm
9 without specifying how N.W. became bruised. Finally, she conceded that she
could not remember what time on Saturday the Defendant exposed himself to her.
On redirect, she acknowledged she made a “mistake” when she told Ms. Williams
that she had spoken to N.W.’s grandmother about the Defendant picking N.W. up
off the couch and bringing her into a back room. She recalled that she had in fact
received that information when both she and N.W. were in N.W.’s room discussing
what Defendant was doing to them. At that time, Defendant walked in and pulled
both girls’ pants down.
The State then called N.W. She, too, began by identifying Defendant in
court. She testified that M.R. came to stay at her home after the carnival in
Jennings, but also admitted that she did not remember everything. She said that
she did remember being asleep on the couch with M.R. and that the Defendant
picked her up and brought her to her room, where he laid her down, pulled her
clothes to the side, and “raped” her. By “raped,” she meant that Defendant “stuck
his thing inside of [her].” As the prosecutor attempted to get more detail from
N.W. about what exactly occurred, N.W. used the words “rape” and “molest”
interchangeably, saying that she “get[s] them confused every now and then” but
that he did put his “thing” in her. Contrary to M.R.’s testimony, she stated that the
Defendant “always” had them in “a different room” so that neither ever saw what
he did to the other. On cross-examination, defense counsel brought up an
individual named Landon, who N.W. described as a neighbor that she did not like.
She did not remember Landon coming over on the Saturday in question. She said
that she, M.R., and her mother were asleep on the couches when Defendant picked
her up and brought her to her room and that she was half asleep. She did not call
for help because she “froze.” She could not remember if M.R. told her whether or
not Defendant put his “thing” in M.R. but that she might have “mis-heard” [sic]
her. She said she “thinks” the Defendant hit her arm at some point and that it
10 caused a bruise to her arm. She testified she did not recall any specific threats of
harm but did recall Defendant “telling [her] to tell [M.R.] to be quiet or he would
get [them] in trouble.” Defense counsel also pressed N.W. on the details of the
Defendant’s penis, but she could only remember seeing it and the Defendant
putting a condom on. She could not remember if, afterward, her mother was asleep
or if she had already left for work. On redirect, the prosecutor established that
N.W.’s date of birth was March 6, 1994, making her thirteen years old at the time
of the offense, that Defendant put his penis in her, and that all of the alleged
misconduct occurred at N.W.’s her home.
The State next called Detective Phil Robertson of the Lake Charles Police
Department, who assisted the sex crimes division of the sheriff’s department in
recording a conversation between N.W.’s mother and Defendant on October 15,
2007. The State recalled Detective Jason Alexander of the Calcasieu Parish
Sheriff’s Department to enter the recording into evidence. After a discussion
outside the presence of the jury regarding the content of the recording, the State
called N.W.’s mother to the stand.
N.W.’s mother testified she lived in Gillis, Calcasieu Parish, prior to moving
to her current residence in Jennings, Louisiana. She brought her daughter, N.W.,
to the carnival with M.R. and Defendant, and afterword the four went back to her
home in Gillis. She explained how the girls were to sleep on the couch “closer to
[her] room,” and that Defendant would sleep in [N.W.]’s room “at the end of the
trailer.” She recalled seeing Defendant come out of either the bathroom or N.W.’s
room “at some point that night” and that “[M.R.] was in the bedroom.” She
explained that she did not suspect that Defendant was doing anything improper
until M.R. called N.W. and asked N.W. whether she told her mom about what
happened. She took the phone from N.W. and spoke to M.R. herself, who
explained that Defendant “touched” her and “raped” N.W. Upon learning of the
11 allegations, N.W.’s mother said she asked N.W., who would not tell her anything.
She then confronted Defendant while with N.W., and Defendant denied the
allegations. She then enlisted the help of her friend Alicia to talk to N.W. about
what had happened, and after N.W. talked to her, she decided to bring N.W. to the
hospital. She explained that, with the assistance of law enforcement, she arranged
to meet with Defendant and record their conversation. The State then published
the recording for the jury. A review of the roughly eighty-minute recording
reveals mostly a one-sided conversation during which Defendant discusses many
irrelevant subjects, such as guns and his ability to lift really heavy weights. In any
event, Defendant stated he was “hurt” by the accusations but described himself as
“stupid” too. He did admit he touched N.W.’s breasts, said N.W. tried cuddling
with him, and both girls flashed their breasts at him. He said the allegations made
by M.R. were a “joke” but he felt bad about the situation with N.W., and that he
“really f_ _ _ ed up.” He told N.W.’s mother she would be at risk of losing N.W.
because of the situation and incorrectly explained to her the “law” on child
molestation. For example, he said squeezing a child’s muscle or picking a child up
was child molestation.
On cross-examination, N.W.’s mother explained that she never had any
intimate relationship with Defendant. She testified she began “doing clothes” at
some point Friday night after waking up from being asleep on the couch and that
she thought M.R. was in the bedroom with Defendant while N.W. slept on the
couch. That was also the same time she saw Defendant exiting either the bathroom
or the bedroom. She woke the girls early Saturday morning, around six or seven
a.m., before she left for work. She thought she woke the Defendant as well before
leaving and had not seen him moving around any time before waking him.
Regarding the recorded conversation, she explained that she told Defendant the
girls were telling her different stories so that he would not “catch on to what [she]
12 was doing.” She testified that, as far as she knew, N.W.’s allegations against
Andrew were never investigated further. She did, however, admit that she tried to
stab Andrew when he was “beating up” on her. Defense counsel also highlighted
Defendant’s definition of molestation, as Defendant explained it on the recording,
to mean something as simple as squeezing a muscle or picking the child up.
N.W.’s mother also acknowledged that Defendant would “horseplay” with N.W.
and that she did not find it to be inappropriate. Defense counsel also discussed a
supposed admission by N.W.’s mother to Lovisa LeBert that she did not believe
the incident with Defendant occurred, but N.W.’s mother denied ever saying that.
She also denied ever contacting Defendant after the incident or spending any time
with him.
Ashley Kibler testified next, explaining that she had met Defendant at a
concert in 2007 when she was fifteen years old. Soon after meeting him, she saw
him again after her friend “Danny” picked her up for a party and dropped the two
of them off at a camper in Lake Charles while he went to the store. “Danny” never
came back, and as they waited for him at the camper, Defendant went inside and
talked to someone. When Defendant came back out, he began talking to her, then
rubbing her, and pushing her against a car. He put one hand over her mouth, lifted
her leg, moved her underwear to the side and put his penis inside of her. She said
that after this happened, sometime between twelve and two a.m., Defendant went
to “check on something” and never came back. She testified she did not report the
incident immediately, but waited until two weeks later. She identified Defendant
in court, and said she received a letter from him threatening her if she pursued the
charges. She also discussed threats made by people other than Defendant, with no
objection from defense counsel. No limiting instruction was requested nor given at
the time of the witness’s testimony. On cross-examination, she told defense
counsel that her friend Danny’s last name was “Hess.” She acknowledged there
13 were other homes nearby the camper, within earshot, but she did not scream
because she was scared. She responded “Yes” to counsel’s question “Are you sure
[the Defendant] used his penis?” However, she did not see it because it was dark.
The State next called first assistant district attorney Cynthia Killingsworth,
of the Calcasieu District Attorney’s Office. She identified Defendant, testified that
she had prosecuted him for oral sexual battery in 2002. No limiting instruction
was requested nor given at the time of the witness’s testimony. After defense
counsel cross-examined the witness regarding Defendant’s age at the time of the
conviction, to which she answered he was sixteen years old, the State rested its
case.
The defense’s case began with Daniel Hess. He testified that he knew
Ashley Kibler from high school but that he did not know her well or ever spend
time with her. He did not recall ever giving her a ride in his car or dropping her off
anywhere, nor did he know Defendant. On cross-examination, the State attempted
to elicit that because the witness could not answer defense counsel’s questions “for
sure,” it was at least “possible” that he had done those things to which Ashley
Kibler testified. The witness simply answered that he did not know but maintained
that he did not believe he ever gave Ashley Kibler a ride.
Defendant next called Lovisa LeBert, whose son had been incarcerated with
Defendant. She had also lived with N.W.’s mother, after Andrew had asked her if
N.W.’s mother could move in with her. Several years had passed, yet Ms. LeBert
testified that about a month before trial, N.W.’s mother told her through a
Facebook conversation that “[s]he didn’t know if it really happened because
[N.W.] didn’t go to her for a whole week.” Ms. LeBert also stated that N.W.’s
mother told her that M.R. said “nothing happened” between her and the Defendant.
Cross-examination consisted of the prosecutor revealing that she had attempted to
discuss the case with Ms. LeBert before trial, but was unsuceesful.
14 Defendant’s next witness was Marion Rougeau, who described herself as a
friend of Defendant for the past six or seven years. She testified she would have
been with Defendant almost every day around the time of his arrest, including
October 15-17, during which time N.W.’s mother called Defendant. Nothing more
was drawn from Ms. Rougeau. The prosecutor again highlighted the fact that she
tried to speak with this witness prior to trial, to no avail.
Marcellette Tweed, Defendant’s mother, took the stand next. She testified
that N.W.’s mother would come to her house to visit Defendant and would give
him rides just weeks before his arrest. The prosecutor on cross-examination asked
the witness if she loved her son, and she answered that she did.
Defendant then called Detective Michael Primeaux, who investigated the
allegations made by Ashley Kibler against the Defendant, back in August of 2007.
The detective did not explain what, if anything, resulted from Ashley Kibler’s
statement to the police. He did confirm, however, that Ashley Kibler was a
runaway juvenile at the time and that there were other houses in the vicinity of the
alleged offense. On cross-examination, the Detective stated that he was able to
determine that Defendant was living somewhere on or near Thornton Street, where
the alleged offense occurred.
The defense recalled N.W. She testified she told an officer that she had
gotten up off the couch on the Friday night after the carnival to get a blanket,
which is when the assault occurred. At the time of her testimony at trial, however,
all she could remember is Defendant picking her up and bringing her to the room.
She could not remember going to get a blanket. She stated that she could only
remember one incident but that “[i]t may have happened twice,” but she could not
be sure.
Defendant’s next witness was Lieutenant Gerald Allen. He testified that he
worked at the Calcasieu Parish Sheriff’s Office in 2007 as a patrol deputy. He
15 spoke to N.W., who provided a statement saying she went to her bedroom from the
living room to get a blanket and fell on the bed, not that she was carried to her
room by Defendant.
The Defendant’s last witness was his sister, Ms. Pansy Guillory. She
testified that Defendant had a tattoo on his penis. She had never “seen it” but knew
about it because “anybody” in the family or close to the Defendant knew,
apparently. Defense counsel subsequently admitted Defendant’s jail medical
screen, which indicated that he did indeed have a tattoo on his penis, obviating any
need to have his sister testify about the unique features of his penis. The State had
knowledge that Ms. Guillory spoke with Defendant the night before her testimony,
and on cross-examination elicited that she told Defendant during the conversation
that she was going to “work her magic” in court, using her “power of persuasion.”
Upon completion of Ms. Guillory’s testimony, the Defense rested its case.
ANALYSIS
As set forth earlier, Defendant alleged as his sole assignment of error that
evidence adduced at trial was insufficient to support his conviction. The analysis
for an insufficiency of evidence claim is well-settled:
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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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 witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
16 Forcible rape is defined as follows:
[R]ape committed when the anal, oral, or 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.
La.R.S. 14:42.1.
Indecent behavior with a juvenile is defined as follows:
[T]he commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: (1) 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. Lack of knowledge of the child’s age shall not be a defense[.]
La.R.S. 14:81.
Defendant argues that “significant inconsistencies and contradictions” in the
victims’ own statements and each other’s statements, which provide the only direct
evidence against Defendant, render his convictions invalid, as “no rational juror
could have found that the State proved, beyond a reasonable doubt, that the
Defendant committed the charged offenses.”
A review establishes the evidence adduced at trial presented some credibility
issues. The jury was required to base its decision on the testimony of two victims
who were only twelve and thirteen years old at the time of the offenses, six years
after the abuse occurred. There was no physical evidence to corroborate their
claims, and the testimony varied throughout the trial concerning what exactly
occurred and when. However, we note under the reasoning of Kennerson,
credibility is a matter for the fact-finder. “It is well-settled that a jury is free to
believe some, none, or all of any witness’s testimony.” State v. Perkins, 11-955, p.
10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817. As to the essential elements of the
crimes charged, we find the State did indeed satisfy its burden to prove each
beyond a reasonable doubt.
17 In reaching this conclusion, we have relied primarily on the trial testimony
of the victims. Defendant himself conceded that “such testimony [i.e., testimony
of a victim/victims alone] is usually sufficient to convict.” Defendant also
conceded that the victims “generally maintained the ‘what’ of the allegations” but
“varied widely on the ‘when’, ‘where’ and ‘how’ of the events.” Aside from
standard recitations of the law on this particular point, Defendant failed to cite any
fact-specific jurisprudence applicable to this case. To the contrary, the victims did
maintain the “what” of their allegations, which established the essential elements
of the crimes. N.W. testified Defendant put his penis in her vagina under
circumstances indicating that it was by force and without consent. M.R. testified
Defendant used his mouth on her breasts when she was less than seventeen years
old. Based on the testimony of witness Killingsworth, Defendant’s date of birth in
1982 established he was two years older than M.R. in 2007.
Although Defendant contends much of the testimony provided by the other
witnesses, taken alone, is underwhelming; we note, in conjunction with the
testimony of the victims, it becomes more compelling. For example, the nurse at
the E.R. corroborated what the girls testified to; Ms. Reed testified that M.R. was
“bawling” when M.R. finally told her about what happened; and Defendant himself
admitted that he touched N.W.’s breasts. As to the latter point, the jury logically
could have considered that Defendant was merely minimizing his true conduct. As
to all the evidence presented, the jury credited what it deemed fit and discredited
the rest. This court is not privy to the jury’s deliberations and must accept the
credibility determinations of the jury within the limits of Jackson. Under that
mandate, we find, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.
18 DECREE For the foregoing reasons, we affirm Defendant’s convictions.