State of Louisiana v. Nathaniel Climes Thibeaux AKA Nathaniel Thibeaux
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-293
STATE OF LOUISIANA
VERSUS
NATHANIEL CLIMES THIBEAUX
AKA NATHANIEL THIBEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 152704 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
VERDICT MODIFIED IN PART AND AFFIRMED IN PART; JUDGMENT OF CONVICTIONS ON TWO COUNTS OF FORCIBLE RAPE AND ONE COUNT OF SEXUAL BATTERY ENTERED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 Telephone: (337) 436-2900 COUNSEL FOR: Defendant/Appellant - Nathaniel Climes Thibeaux aka Nathaniel Thibeaux Keith A. Stutes District Attorney – 15th Judicial District P. O. Box 3306 Kenneth P. Hebert Assistant District Attorney – 15th Judicial District Lafayette, LA 70502-3306 Telephone: (337) 232-5170 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
Defendant Nathaniel Climes Thibeaux was convicted by a jury of
three counts of aggravated rape of H.A. (DOB 2/14/01), 1 violations of La.R.S.
14:42(A)(1), and six counts of aggravated crimes against nature of H.A., violations
of La.R.S. 14:89.1(A)(2)(a). The trial court sentenced Mr. Thibeaux to life at hard
labor without the benefit of probation, parole, or suspension of sentence for each
count of aggravated rape, to run concurrently with each other. The trial court also
sentenced Mr. Thibeaux to ten years without benefit of probation, parole, or
suspension of sentence for each count of aggravated crime against nature, to run
concurrently with each other but consecutively to the three counts of aggravated
rape. Mr. Thibeaux now appeals his conviction to this court. For the reasons that
follow, we modify the verdict and render a judgment of conviction of the lesser
included offense of forcible rape on counts one and two and of the lesser included
offense of sexual battery on count three. We remand for resentencing on these
counts.
I.
ISSUES
We must decide:
(1) whether the assistance of counsel provided to Mr. Thibeaux fell below that guaranteed by the Sixth Amendment of the Constitution of the United States;
(2) whether the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
1 In accordance with La.R.S. 46:1844(W), we will refer to the victim by her initials only in order to protect her identity. (1979) standard, was insufficient to prove beyond a reasonable doubt that Mr. Thibeaux committed aggravated rape of H.A.; and
(3) whether Mr. Thibeaux’s convictions for both three counts of aggravated rape and three counts of aggravated crimes against nature involving sexual intercourse are in violation of the Fifth Amendment’s prohibition against double jeopardy.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Thibeaux is accused of nine separate acts of sexual misconduct,
including sexual intercourse, with his thirteen to fourteen-year-old stepdaughter,
H.A., that occurred over a ten-month period between August 2014 and June 2015.
The State presented the details of the various crimes to the jury through H.A.’s
testimony, her videotaped Hearts of Hope interview, and the report made during
her sexual assault examination.
At trial, H.A. testified that the first time Mr. Thibeaux molested her
was in August 2014 right before school started. She explained how she was
awoken from her sleep when she felt Mr. Thibeaux touching her breasts and
vagina, both above and underneath her clothes. This occurred in her bedroom at
the apartment she lived in with her mother and stepfather. H.A. also told of
another time when her mother almost caught Mr. Thibeaux molesting her in her
bedroom:
She came inside, she came into my room and he was in my room. And he just jumped off the bed and he pretended he was praying. He said he was praying with me or something. And then she got really angry. Then she went in the living room. And he told me to hurry up to put on my clothes and then he left and went meet her in the other room.
2 When her mother asked if Mr. Thibeaux had touched her, H.A. told her mother that
he had not because, she explained, Mr. Thibeaux had told her to say “no” if her
mother ever asked such a question.
Sometime around November 2014, the family moved from the
apartment into a house. H.A. testified that, about a week or two after the move,
Mr. Thibeaux told her to go sleep on the sofa in the living room. After her mother
fell asleep, he came into the living room, took off H.A.’s pants, touched and licked
her breasts and her vagina, and then “put” his penis into her vagina. She further
explained:
The first time he did it, he used a condom. And then he would try to whip me and I would go screaming. Well, I didn’t really scream but I thought, you know, it would make him a little nervous so I started making little noises. And he would tell me, “It’s all right. You can do anything with me but don’t say anything. And I would move my legs and he would try to move them down.”
In her recollection of that sexual encounter, H.A. also described a
separate time when Mr. Thibeaux instructed her to open her legs, applied vaseline
to her vagina, and then penetrated her vagina with his penis. After a while, he
ejaculated on her stomach and “wipe[d] it off with a towel.” She explained that
she did not try to push Mr. Thibeaux off because she “was afraid that he might do
more than that.” She decided to “just face[] it.”
When asked if there was ever a time that Mr. Thibeaux “put” his penis
anywhere else, H.A. spoke of when she was in the living room on the phone with
her boyfriend and Mr. Thibeaux got on the sofa, pulled off her pants, pulled down
his pants, and penetrated her vaginally with his penis. After she told him to stop,
Mr. Thibeaux “put” his penis in her anus. Although she tried to stop him, “he kept
3 holding [her] down. After a while he just did it.” At trial, she stated that was the
only time Mr. Thibeaux “put” his penis “in her butt.”
The State then asked H.A. whether there was any other time “where
he had sex with you and you resisted him.” In response, H.A. told of when her
mother left to pick up her brother from Breaux Bridge Highway. H.A. had just
taken a shower when Mr. Thibeaux came into her room naked and told her to hurry
up before her mother came back. He then had vaginal intercourse with her. H.A.
testified that the last time Mr. Thibeaux had sex with her was in her room on June
8, 2015.
When asked if Mr. Thibeaux ever did anything to her other than sex,
H.A. stated that he would touch her “on the outside” and make her touch his penis.
She recalled a time when “[h]e was in the living room and he had pulled me down.
He had pulled his pants down and he said something and then I was crying and he
told me to hurry up and do it, to touch him.” Questioned whether she did as he
directed, H.A. responded: “Yes. After all that, he had stopped and I started
crying.” Overall, H.A. testified that Mr. Thibeaux molested her over fifteen times
in the living room of the family home and about that many times in her bedroom.
H.A.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-293
STATE OF LOUISIANA
VERSUS
NATHANIEL CLIMES THIBEAUX
AKA NATHANIEL THIBEAUX
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 152704 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
VERDICT MODIFIED IN PART AND AFFIRMED IN PART; JUDGMENT OF CONVICTIONS ON TWO COUNTS OF FORCIBLE RAPE AND ONE COUNT OF SEXUAL BATTERY ENTERED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 Telephone: (337) 436-2900 COUNSEL FOR: Defendant/Appellant - Nathaniel Climes Thibeaux aka Nathaniel Thibeaux Keith A. Stutes District Attorney – 15th Judicial District P. O. Box 3306 Kenneth P. Hebert Assistant District Attorney – 15th Judicial District Lafayette, LA 70502-3306 Telephone: (337) 232-5170 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
Defendant Nathaniel Climes Thibeaux was convicted by a jury of
three counts of aggravated rape of H.A. (DOB 2/14/01), 1 violations of La.R.S.
14:42(A)(1), and six counts of aggravated crimes against nature of H.A., violations
of La.R.S. 14:89.1(A)(2)(a). The trial court sentenced Mr. Thibeaux to life at hard
labor without the benefit of probation, parole, or suspension of sentence for each
count of aggravated rape, to run concurrently with each other. The trial court also
sentenced Mr. Thibeaux to ten years without benefit of probation, parole, or
suspension of sentence for each count of aggravated crime against nature, to run
concurrently with each other but consecutively to the three counts of aggravated
rape. Mr. Thibeaux now appeals his conviction to this court. For the reasons that
follow, we modify the verdict and render a judgment of conviction of the lesser
included offense of forcible rape on counts one and two and of the lesser included
offense of sexual battery on count three. We remand for resentencing on these
counts.
I.
ISSUES
We must decide:
(1) whether the assistance of counsel provided to Mr. Thibeaux fell below that guaranteed by the Sixth Amendment of the Constitution of the United States;
(2) whether the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
1 In accordance with La.R.S. 46:1844(W), we will refer to the victim by her initials only in order to protect her identity. (1979) standard, was insufficient to prove beyond a reasonable doubt that Mr. Thibeaux committed aggravated rape of H.A.; and
(3) whether Mr. Thibeaux’s convictions for both three counts of aggravated rape and three counts of aggravated crimes against nature involving sexual intercourse are in violation of the Fifth Amendment’s prohibition against double jeopardy.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Thibeaux is accused of nine separate acts of sexual misconduct,
including sexual intercourse, with his thirteen to fourteen-year-old stepdaughter,
H.A., that occurred over a ten-month period between August 2014 and June 2015.
The State presented the details of the various crimes to the jury through H.A.’s
testimony, her videotaped Hearts of Hope interview, and the report made during
her sexual assault examination.
At trial, H.A. testified that the first time Mr. Thibeaux molested her
was in August 2014 right before school started. She explained how she was
awoken from her sleep when she felt Mr. Thibeaux touching her breasts and
vagina, both above and underneath her clothes. This occurred in her bedroom at
the apartment she lived in with her mother and stepfather. H.A. also told of
another time when her mother almost caught Mr. Thibeaux molesting her in her
bedroom:
She came inside, she came into my room and he was in my room. And he just jumped off the bed and he pretended he was praying. He said he was praying with me or something. And then she got really angry. Then she went in the living room. And he told me to hurry up to put on my clothes and then he left and went meet her in the other room.
2 When her mother asked if Mr. Thibeaux had touched her, H.A. told her mother that
he had not because, she explained, Mr. Thibeaux had told her to say “no” if her
mother ever asked such a question.
Sometime around November 2014, the family moved from the
apartment into a house. H.A. testified that, about a week or two after the move,
Mr. Thibeaux told her to go sleep on the sofa in the living room. After her mother
fell asleep, he came into the living room, took off H.A.’s pants, touched and licked
her breasts and her vagina, and then “put” his penis into her vagina. She further
explained:
The first time he did it, he used a condom. And then he would try to whip me and I would go screaming. Well, I didn’t really scream but I thought, you know, it would make him a little nervous so I started making little noises. And he would tell me, “It’s all right. You can do anything with me but don’t say anything. And I would move my legs and he would try to move them down.”
In her recollection of that sexual encounter, H.A. also described a
separate time when Mr. Thibeaux instructed her to open her legs, applied vaseline
to her vagina, and then penetrated her vagina with his penis. After a while, he
ejaculated on her stomach and “wipe[d] it off with a towel.” She explained that
she did not try to push Mr. Thibeaux off because she “was afraid that he might do
more than that.” She decided to “just face[] it.”
When asked if there was ever a time that Mr. Thibeaux “put” his penis
anywhere else, H.A. spoke of when she was in the living room on the phone with
her boyfriend and Mr. Thibeaux got on the sofa, pulled off her pants, pulled down
his pants, and penetrated her vaginally with his penis. After she told him to stop,
Mr. Thibeaux “put” his penis in her anus. Although she tried to stop him, “he kept
3 holding [her] down. After a while he just did it.” At trial, she stated that was the
only time Mr. Thibeaux “put” his penis “in her butt.”
The State then asked H.A. whether there was any other time “where
he had sex with you and you resisted him.” In response, H.A. told of when her
mother left to pick up her brother from Breaux Bridge Highway. H.A. had just
taken a shower when Mr. Thibeaux came into her room naked and told her to hurry
up before her mother came back. He then had vaginal intercourse with her. H.A.
testified that the last time Mr. Thibeaux had sex with her was in her room on June
8, 2015.
When asked if Mr. Thibeaux ever did anything to her other than sex,
H.A. stated that he would touch her “on the outside” and make her touch his penis.
She recalled a time when “[h]e was in the living room and he had pulled me down.
He had pulled his pants down and he said something and then I was crying and he
told me to hurry up and do it, to touch him.” Questioned whether she did as he
directed, H.A. responded: “Yes. After all that, he had stopped and I started
crying.” Overall, H.A. testified that Mr. Thibeaux molested her over fifteen times
in the living room of the family home and about that many times in her bedroom.
H.A. explained that she was too afraid to tell—afraid she would never
see her mother happy again if she told—because her mother loved Mr. Thibeaux so
much. She also stated that she was “really afraid and . . . didn’t know what else
would happen, that he could do something else like abuse, so I didn’t do anything.”
H.A. further testified that Mr. Thibeaux threatened that she would not be able to
see her boyfriend if she ever told anyone and that he told her to have sex with her
boyfriend. But, on June 9, 2015, when her mother’s brother finally asked her
outright if Mr. Thibeaux was molesting her, H.A. explained that she felt
4 comfortable telling both her uncle and her mother the truth because her mother was
mad at Mr. Thibeaux. In fact, from Mr. Thibeaux’s testimony, it was revealed that
H.A’s mother had kicked Mr. Thibeaux out of the family dwelling earlier that day.
That night H.A. was taken to Our Lady of Lourdes Hospital (OLOL), where a
sexual assault examination was performed. While no outward signs of trauma
were noted, DNA was collected from the panties she was wearing as well as from
the fitted sheet that both H.A. and her mother testified was placed only on H.A.’s
bed.
H.A. then recounted for the jury an incident that occurred after she
had been removed from her mother’s care. She recalled that her mother picked her
up and brought her to Burger King where Mr. Thibeaux met them. When he
approached the vehicle, H.A. started crying. Both her mother and Mr. Thibeaux
then tried to get her to recant and say she was only having sex with her boyfriend,
not her stepfather.
On cross-examination, defense counsel asked H.A. whether she
screamed, yelled, kicked, or did any of those things when Mr. Thibeaux came into
her room that first time to which she responded in the negative. Defense counsel
then asked if she was hurting when she went to the hospital to which she replied
that she was not hurting, scratched, bruised, or bleeding. H.A. also admitted that
she initially denied that Mr. Thibeaux had touched her when asked by her uncle,
and she further admitted that she would often voluntarily go to the store with Mr.
Thibeaux and even asked to go with him.
H.A. acknowledged that she never told her mother what her stepfather
was doing to her and never screamed for her mother. And even though she was on
the phone with her boyfriend during one of the rapes, she did not tell him that she
5 needed help. She knew her boyfriend’s mother well but did not tell her anything,
and she saw her uncle several times a month but did not tell him either. Although
H.A. went to a counselor once a week during this time, H.A. did not speak to the
counselor about what her stepfather was doing to her. In fact, she told the
counselor that she liked Mr. Thibeaux and that everything in the house was fine.
Her counselor, Mary Smith, testified, however, that she observed H.A.
with Mr. Thibeaux, and while he was “very affectionate with her[,]” H.A. was
“very withdrawn.” Ms. Smith recalled one instance in which her receptionist
called her into the waiting area to observe Mr. Thibeaux’s inappropriate
“caressing” of H.A.: “he would sit by her and he would kind of caress her hair;
very attentive. In sessions as well, he would be informative.” When Ms. Smith
asked H.A. about her relationship with Mr. Thibeaux, H.A. would withdraw and
shut down. But Ms. Smith conceded, on cross-examination, that H.A. never told
her of the alleged sexual molestation and she never saw any telltale signs of sexual
molestation, which, by law, she would have been mandated to report.
The State then played for the jury the video of H.A.’s Hearts of Hope
interview, conducted on June 16, 2015. When asked why she was being
interviewed, H.A. stated that she had been raped by her stepfather. She explained
that Mr. Thibeaux started “messing with her all of a sudden” in August of the
previous year and touching her almost every night. In November, Mr. Thibeaux
started raping H.A. The last day Mr. Thibeaux raped H.A. was on Monday of the
previous week. H.A. also described the Burger King incident when she and her
mother saw Mr. Thibeaux.
When asked to remember a specific time in August that Mr. Thibeaux
touched her, H.A. told the interviewer that the first night, after she had fallen
6 asleep, she felt fingers all over her body. She woke up scared, and Mr. Thibeaux
told her to be cool and be quiet. She put the covers over her head and went back to
sleep. H.A. said that Mr. Thibeaux touched her breasts and her vagina over and
underneath her clothes and then went to bed.
In her discussion of that incident, H.A. described another night when
Mr. Thibeaux scared her by taking off her clothes and “licking” her vagina. Her
mother “almost caught him” when she walked in, but Mr. Thibeaux hurriedly put
the covers back on H.A., pretending he was praying with her. H.A.’s mother left
the room mad. Mr. Thibeaux went to talk to H.A.’s mother and eventually called
for H.A. He asked H.A. if he ever touched her, and H.A. said “no” because that is
what Mr. Thibeaux told her to say.
The interviewer reminded H.A. that she said Mr. Thibeaux began
raping her in November. H.A. stated that she remembered it being November
because that was when they moved into their house. Around the fifth day after
they moved into the house, Mr. Thibeaux went to H.A.’s room and started touching
her vagina underneath her clothes. He then pulled his shorts and H.A.’s shorts off,
got on top of her, “put” his penis into her vagina, and started “humping” her. H.A.
stated that it hurt for a while and then it stopped. The next day, no one talked
about what happened. No one heard what was going on, and no one asked what
was going on.
Asked to describe another time, H.A. recounted when Mr. Thibeaux
had told her to go sleep in the front room. After he came into the room, Mr.
Thibeaux touched her underneath her clothes, took off her shorts, and started
“licking” her. He then penetrated her vagina with his penis and “began humping.”
7 Because it was hurting, Mr. Thibeaux put vaseline on H.A.’s vagina and then
penetrated her vaginally again with his penis.
The interviewer asked H.A about a time when H.A. saw Mr. Thibeaux
put on a condom. H.A. recalled when Mr. Thibeaux came into her room, started
touching her, and pulled down her shorts. He put a condom on his penis, got on
top of her, and “put” his penis in her vagina. Then Mr. Thibeaux started
“humping” her and putting her in different positions. She explained that Mr.
Thibeaux would pick her legs up and start “humping” her in such a position.
On the Monday prior to the interview, H.A. recounted how Mr.
Thibeaux came into her room, began touching her, and then penetrated her vagina
with his penis. After about ten minutes, Mr. Thibeaux ejaculated and then went
back into his room. In each sexual encounter, H.A. recalled that Mr. Thibeaux
would “wipe off” any seminal fluid from her vagina with a towel and even one
time with her school shirt. According to H.A., her mother was always asleep when
Mr. Thibeaux did these things to her, and it was always nighttime.
When the interviewer asked H.A. if Mr. Thibeaux ever talked to her
about not telling anyone, H.A. stated that, before school one morning, he asked her
if she was going to tell anyone. She told him she would not. The reason she did
not want to tell anyone was because she was shy and scared. The interviewer
asked H.A. if Mr. Thibeaux ever threatened her if she told someone. H.A.
responded that Mr. Thibeaux told her that she would not be able to see her
boyfriend if she ever told.
The interviewer then inquired as to whether there was any time when
Mr. Thibeaux “put his private” somewhere else besides in her vagina. H.A. said in
reply that he “put” his penis in her “butt.” She described how she was in the front
8 room when Mr. Thibeaux came in and began touching her vagina. He then
penetrated her vagina with his finger and started “humping” her in her anus,
ejaculating in her anal canal. This, she clarified, was a completely different time
than the other time something happened in the front room. She also said that it was
painful when he penetrated her anally and that she tried to fight him, but Mr.
Thibeaux held her legs. H.A. stated that he “put his private” in her anus another
time, but she did not remember much about that time.
In further clarification, H.A. stated that Mr. Thibeaux’s penis did not
“go anywhere else” besides her vagina and anus, but she did have to touch his
penis. One night while watching T.V., Mr. Thibeaux told H.A. to come over, and
he pulled down his pants. He then grabbed her hand and made her touch and rub
his penis. H.A. said this was a completely different time than any other time she
talked about. When she pulled her hand away, Mr. Thibeaux left to go to another
room.
After the video finished, the State called H.A.’s mother, Ashley
Thibeaux, who testified that she initially believed her daughter. She even called
Mr. Thibeaux and threatened him with violence for violating her child. When
asked what Mr. Thibeaux said in response to her threat, Mrs. Thibeaux answered,
“He told me that he didn’t do anything and he told me that [H.A.] had came on to
him.” When questioned about the Burger King encounter and whether she had any
concerns about bringing her daughter into a car with the man accused of molesting
her, Mrs. Thibeaux replied that she had no such concerns after she saw her
daughter embrace Mr. Thibeaux when he arrived at the restaurant. She further
testified about how H.A. had recanted her story. Mrs. Thibeaux stated that H.A.
told her that she was sleeping with her boyfriend and was afraid she was pregnant.
9 When questioned if H.A.’s counselor ever told her that H.A. was having sex with
her boyfriend but not having sex with Mr. Thibeaux, Mrs. Thibeaux answered,
“No.” She just remembered the counselor telling her that she thought H.A. was
having sex with her boyfriend. H.A.’s counselor, however, denied ever making
this statement when she took the stand.
Mrs. Thibeaux admitted that she was with her husband in Opelousas
in the weeks after H.A. reported the sexual assaults. And although she knew the
police were looking for her husband, she explained that she did not call the police
because H.A. told her nothing had happened between her and Mr. Thibeaux. Mrs.
Thibeaux also testified that she and Mr. Thibeaux never had sex on H.A.’s bed.
Though the family would share old sheets, the sheets from H.A.’s bed were new
and only used on H.A.’s bed.
On cross-examination, Mrs. Thibeaux testified that she never heard
H.A. yell for help and never saw any suspicious conduct between H.A. and Mr.
Thibeaux. She also testified that she had caught H.A. lying to her about school and
about her boyfriend.
Through the testimony of Jill Laroussini, a Registered Nurse and
Sexual Assault Nurse Examiner (S.A.N.E.), the State introduced the report of
H.A.’s sexual assault examination, performed on June 9, 2015, at OLOL.
According to the report prepared by Ms. Laroussini, H.A. affirmed that her vagina
was penetrated with a penis, finger, and tongue; that her anus was penetrated with
a penis, finger, and tongue; and that there was penetration of H.A.’s mouth by a
penis. Ms. Laroussini testified that her intent in the report was to refer to just the
most recent sexual assault. H.A. also reported that she “go[t] on top of [Mr.
Thibeaux].” According to the report, H.A. was getting “Depo[-Provera]”
10 injections, which contain the hormone progestin and can be used for birth control
and hormonal abnormalities.
As for the section of the report addressing verbal threats, H.A.
reported: “If I asked him to visit my boyfriend, he told me I have to do that if I
want to go.” The report further recorded that there were no threats of harm,
choking, bites, hitting, burns, guns, knives, blunt objects, restraints, chemicals, or
other weapons, but there was holding. Specifically, H.A. reported: “Holds my
arms and my legs.” Also contained in the report was H.A.’s narration of the sexual
assault that allegedly occurred on June 8, 2015, about which Ms. Laroussini
testified:
“Yesterday nine or 10:00 they was watching TV in her room. He came out the room and he sat on my bed and he stuck - -
....
“He sat on my bed and he started me [sic] and stuff between my legs. I don’t remember what he said. He started touching on my breasts. He put his mouth there. Took off my shorts and started [sic] lick on me. He took off his shorts. He put his private in me. Started humping me and stuff. I was fighting him and he pulled my arms away from him. After a while he stopped then he got off me and told me pull my shorts back on. Then he went back in my mama’s room. I continued playing on my mama’s phone and then I started crying. He put the liquid stuff on me.” And then I signed as though it was done and then later in the exam she reported, “Back in time he was doing it while I was on the phone with my boyfriend. He wanted to know why I was crying.”
While Ms. Laroussini’s physical examination of H.A. showed no
tears, bruises, or other injuries, she noted that H.A. did have “quite a large amount
of yellow-white liquid substance dripping from the vaginal vault.” She explained
that the yellow-white substance may have been a result of the body’s creation of
11 more mucus to wash out something that did not belong in the vagina. When asked
if there was any evidence that H.A. had had sex recently, Ms. Laroussini replied:
On physical exam and direct visualization, I did not find injury. I can’t say. I don’t have the expertise to say whether a patient has had sex recently. But I can tell you that her report was consistent with my findings. And we do not see injury in about 85 to 90 percent of rape cases.
On cross-examination, Ms. Laroussini stated that, when she examined H.A.’s anus,
everything looked in the normal limits, and she did not chart the presence of
hemorrhoids.
Carolyn Booker, a DNA analyst who was accepted as an expert,
testified about her analysis of the stains from H.A.’s fitted bed sheet and panties.
According to her, a mixed DNA profile consisting of at least four contributors was
obtained from the epithelial fraction of the seminal fluid stain on the sheet from
which neither H.A. nor Mr. Thibeaux could be excluded as contributors. Ms.
Booker explained that 99.996 percent of people in the world are expected to be
excluded from this mixture, as H.A.’s boyfriend was. She further opined: “In the
absence of identical twins, it can be concluded to a reasonable degree of scientific
certainty that Nathaniel Thibeaux is the source of the DNA from the sperm fraction
in the seminal fluid stain on the sheet.”
As for the sperm fraction of the seminal fluid on H.A.’s panties, Ms.
Booker testified that three contributors were found. H.A. could not be excluded as
a contributor to the epithelial fraction of seminal fluid found on her panties, but
both Mr. Thibeaux and H.A.’s boyfriend were excluded as contributors. H.A.
could also not be excluded from the sperm fraction on the panties, but both Mr.
Thibeaux and H.A.’s boyfriend were excluded. Nevertheless, a mixed partial Y-
STR profile was also obtained from the sperm fraction of the seminal fluid stain on
12 the panties from which Mr. Thibeaux could not be excluded as a contributor,
though H.A.’s boyfriend was again excluded.
Explaining how Mr. Thibeaux could be excluded in the DNA profile
but not excluded in the Y-STR profile, Ms. Booker testified: “The Y chromosome
testing is a little bit more sensitive than the autosomal testing. And I got a better
profile from the Y testing, so I can draw a conclusion that he could not be excluded
as a Y donor.” Moreover, because he could not be excluded on the Y-STR, she
testified that it was possible that some of the samples she tested in the DNA profile
were from Mr. Thibeaux. If she had a better sample, she would have been able to
be more accurate.
Ms. Booker testified on cross-examination that presumptive testing
was positive for blood on the rectal swabs but not in the fingernail swabs collected
during H.A.’s sexual assault examination. The vaginal swabs that were taken in
the sexual assault kit showed no seminal fluid. Additionally, no spermatozoa were
found on the vaginal, oral, or rectal slides. Ms. Booker also explained that seminal
fluid comes from males only but that female epithelial cells can be mixed in the
sample. She clarified on re-direct that, although there were three male contributors
to the epithelial fraction of seminal fluid on the sheet, there was only one
contributor to the sperm fraction—Mr. Thibeaux.
The sole witness to testify for the defense was Mr. Thibeaux. He
testified that he had been in prison four times—twice for distribution of cocaine
and twice for possession of cocaine. Further, he denied raping, molesting,
fondling, or any other activity with H.A. and also denied having oral, vaginal, or
anal sex with H.A. When asked on cross-examination to explain why he would
13 have told his wife that the reason he did what he did to H.A. was because H.A.
came on to him, Mr. Thibeaux explained:
Well, I did say that. But the reason why I said that, a lot of people caught what I said in the wrong way. She came onto me as a father figure. [H.A.] and the rest of her kids really never had a father in their life.
Again when asked if he raped and molested his stepchild at least thirty times, Mr.
Thibeaux replied, “I haven’t touched her, sir.”
In its closing statement, the State broke down the conduct that
supported each of the offenses charged:
• Count One (Aggravated Rape)—the first time Mr. Thibeaux anally raped H.A.
• Count Two (Aggravated Rape)—the first time Mr. Thibeaux vaginally raped H.A.
• Count Three (Aggravated Rape)—the vaginal rape that occurred when H.A.’s mother left to pick up H.A.’s brother and H.A. had just showered.
• Count Four (Aggravated Crime Against Nature— sexual intercourse)—the vaginal intercourse where Mr. Thibeaux used vaseline.
• Count Five (Aggravated Crime Against Nature— Sexual Intercourse)—the other time Mr. Thibeaux had anal intercourse with H.A. as described in her Hearts of Hope interview.
• Count Six (Aggravated Crime Against Nature— Sexual Intercourse)—the last time Mr. Thibeaux had vaginal intercourse with H.A. on June 8, 2015.
• Count Seven (Aggravated Crime Against Nature— lewd fondling)—the first time Mr. Thibeaux molested H.A. in the apartment.
• Count Eight (Aggravated Crime Against Nature— lewd fondling)—the time Mr. Thibeaux licked H.A.’s vagina and her mother walked in.
14 • Count Nine (Aggravated Crime Against Nature— lewd fondling)—the incident where Mr. Thibeaux made H.A. grab his penis.
The jury returned unanimous guilty verdicts on counts one, two, four, five, seven,
and eight. The verdict on count three was ten to two in favor of guilty, and the
verdicts on counts six and nine were eleven to one also in favor of guilty.
III.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed
by the court for errors patent on the face of the record. After reviewing the record,
we find there is one error patent. The trial court did not specify whether Mr.
Thibeaux’s sentences for aggravated crime against nature are to be served with or
without hard labor. Therefore, we vacate the sentences and remand for
resentencing with instructions to specify whether the sentences are to be served
with or without hard labor.
IV.
LAW AND DISCUSSION
When a defendant raises issues on appeal both as to the sufficiency of
the evidence and as to one or more trial errors, the reviewing court must first
resolve the sufficiency issue. State v. Hearold, 603 So.2d 731 (La.1992). This is
because, if the entirety of the evidence is insufficient to support the conviction,
“the accused must be discharged as to that crime, and any discussion by the court
of the trial error issues as to that crime would be pure dicta since those issues are
moot.” Id. at 734. Accordingly, we will first address Mr. Thibeaux’s sufficiency
arguments.
15 Sufficiency of Evidence
In his second assignment of error, Mr. Thibeaux asserts that the
evidence was insufficient to prove that three separate acts of sexual intercourse
occurred and that H.A. resisted each sexual act to the utmost but her resistance was
overcome by force. Rather, he contends that the evidence presented to prove
counts one through three was sufficient to convict him of sexual battery; thus, the
aggravated rape convictions should be reversed, verdicts of sexual battery should
be entered, and the case should be remanded for resentencing on the lesser
verdicts.
Standard of Review
This court in State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367, 1371, set forth the analysis for insufficiency of the
evidence claims:
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.
16 Elements of Aggravated Rape
The State charged Mr. Thibeaux with three counts of aggravated rape
upon his stepdaughter, violations of La.R.S. 14:42(A)(1). H.A. was thirteen when
the rapes began and had turned fourteen by the time they ended. At the time of the
offenses, La.R.S. 14:42(A)(1) provided, in pertinent part:2
A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
To prove Mr. Thibeaux committed the aggravated rapes as charged in
the indictment, the State was required to establish that the victim, in each separate
instance, resisted the act to the utmost, but her resistance was overcome by force.
In brief to this court, Mr. Thibeaux notes that H.A. admitted that she did not
scream during the alleged acts, did not try to push Mr. Thibeaux off, and did not
kick Mr. Thibeaux. Moreover, H.A. offered very little details suggesting any force
was used upon her. As to the first encounter, when asked what she did, H.A.
testified that “I would move my legs and he would try to move them down”
without explanation. Again in her forensic interview, H.A. discussed that Mr.
Thibeaux would move her legs. However, Mr. Thibeaux posits that the
movements were more for placement of position rather than to subdue or restrain.
2 After the commission of the instant offenses, the crimes of aggravated rape and forcible rape were renamed first degree rape and second degree rape, respectively, in 2015 La. Acts No. 184, § 1. The elements, however, were unchanged. Therefore, for consistency with the transcript and record, we will refer to the crimes as aggravated rape and forcible rape.
17 According to Mr. Thibeaux, the only time H.A. discussed any type of
resistance was during the first anal rape. When asked if she tried to stop him, H.A.
said she did, but he kept holding her down. But again, Mr. Thibeaux notes that she
did not elaborate as to what she meant by this comment or what she did to try to
stop him. H.A. testified that although she was on the phone with her boyfriend,
she did not tell her boyfriend what was occurring and she did not ask for help. The
only threat H.A. testified to was that Mr. Thibeaux told her she would not be
allowed to see her boyfriend if she told anyone. But these responses and non-
existent, or at most minimal, resistance, Mr. Thibeaux argues, do not indicate H.A.
resisted to the utmost but was overcome by force.
The State, however, contends that the jury decided the elements of
aggravated rape were met after hearing H.A.’s testimony at trial and her Hearts of
Hope interview. As to count one, the State notes that H.A. stated that the first time
Mr. Thibeaux raped her anally she tried to fight him off, but he held her down and
did it anyway. She told the jury that, not only did she tell him to stop, she
physically tried to stop him, but he kept holding her down. Regarding count two,
H.A. testified that Mr. Thibeaux tried to whip her and that she made noises in
hopes that it would make him nervous. She also testified that she would resist by
moving her legs around, but he would hold them down.
Concerning count three, H.A. was asked whether there was any other
time where Mr. Thibeaux had sex with her and she resisted him. H.A. then
proceeded to tell the story about the time she was home alone with Mr. Thibeaux
when he came into her room after she had taken a shower and made her have sex
with him. The State points to this line of questioning and her response
immediately followed her relaying of the events involved in count one wherein she
18 described trying to stop Mr. Thibeaux from anally raping her, but he kept holding
her down. By the State’s immediately asking H.A. if there was any other time she
resisted Mr. Thibeaux, it was rational, the State argues, for a jury to conclude that
her resistance in the events of count three was similar to the resistance she had just
described in count one. The State further contends that the jury was able to see
both H.A.’s and Mr. Thibeaux’s size when they walked to the witness stand to
testify and, thus, was able to compare their sizes.
In determining whether the evidence of the victim’s resistance and the
force used to overcome it were sufficient for any rational factfinder to find that the
requirements for aggravated rape were proven beyond a reasonable doubt, we look
to the jurisprudence for both comparison and guidance as to proportionality.
This court, in State v. Pitts, 11-1020, p. 7 (La.App. 3 Cir. 4/4/12), 87
So.3d 306, 313, writ denied, 12-980 (La. 10/26/12), 99 So.3d 639, addressed the
proof necessary for aggravated rape as compared to forcible rape:
The degree of force necessary to prove forcible rape was addressed by the court in State v. Berniard, 03- 484, p. 10 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 73, writ denied, 03-3210 (La.3/26/04), 871 So.2d 345:
The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” State v. Parish, 405 So.2d 1080, 1087 (La.1981); State v. Puckett, 02-997, p. 10 (La.App. 5th Cir.1/28/03), 839 So.2d 226, 231. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. State v. Jackson, 437 So.2d 855, 858 (La.1983). The degree of force employed and the determination of the grade of rape is for the jury to decide. State v. Cepriano, 00- 213, p. 9 (La.App. 5th Cir.8/29/00), 767 So.2d 893, 899. Nonetheless, the mere fact the defendant was unarmed and the victim
19 suffered no extensive physical pain or injury does not negate the possibility that an aggravated rape occurred. Puckett, 02-997 at p. 8, 839 So.2d at 231.
While a greater degree of force is necessary to justify the more serious punishment
imposed for aggravated rape, “there is no magic formula to determine which acts
of coerced sexual intercourse warrant the greater punishment of aggravated rape
rather than forcible rape. Each case must be examined on its own facts.” State v.
Jackson, 437 So.2d 855, 858 (La.1983). Thus, the jury is assigned “the function of
fixing the range of permissible punishment for convicted offenders by returning a
verdict which appropriately fits the crime and the degree of force employed.”
State v. Willie, 422 So.2d 1128, 1129 (La.1982).
Viewing all the evidence in a light most favorable to the state, this
court, in State v. Helaire, 496 So.2d 1322, 1323 (La.App. 3 Cir. 1986), writ denied,
503 So.2d 13 (La.1987), found the evidence was sufficient to uphold the
defendant’s conviction for the aggravated rape of his fourteen-year-old “common-
law” stepdaughter. According to her trial testimony, the victim attempted to get
away when the defendant began making sexual advances toward her, but
eventually the defendant “grabbed her arm and pulled her into the bedroom” where
he “lifted up her robe, pulled down her panties, got on top of her, and forced her to
have sexual intercourse with him.” Id. at 1323. When she tried to get out from
under him, the defendant held her down and was “too heavy.” Id. at 1325. The
victim testified that she asked him to stop, but he would not. She further detailed
how she cried and screamed during the rape and how the defendant threatened that
he was going to do something to her and her mother that the victim would not like.
The victim’s younger brother further testified that he heard her crying and “peeped
20 through the keyhole to see what was going on.” Id. at 1323. Once he entered the
room, the defendant stopped his attack. On appeal, this court found that “[s]ince
the victim was only fourteen at the time of the offense and the defendant was much
heavier and stronger, the jury could find that the victim resisted to her utmost.” Id.
at 1326.
In State v. Puckett, 02-997 (La.App. 5 Cir. 1/28/03), 839 So.2d 226,
writ denied, 03-891 (La. 12/12/03), 860 So.2d 1148, the fifth circuit likewise
affirmed the defendant’s conviction of aggravated rape based on the sufficiency of
the evidence. The evidence established that the defendant therein rang the victim’s
doorbell and then “forced his way into the victim’s home when she opened the
door. He grabbed her, ripped her nightgown, and threw her down on the sofa bed
all while pulling her hair and punching her.” Id. at 230. Grabbing her off the sofa,
he then pushed her to the floor “where he poured syrup all over her hair and body.”
Id. at 230. The defendant tightly held the victim’s head, forcing her to perform
oral sex, and then had vaginal intercourse with her. The victim testified that she
tried to fight him off “as hard as she could and that she never gave up her fight.”
Id. at 230. As a result of the assault, the victim had a torn toenail, an abrasion on
her foot, and her head and calf were sore to the touch. In affirming, the court
reasoned:
The jury had before it the responsive verdict of forcible rape but determined the amount of force employed and resistance exerted amounted to aggravated rape. Additionally, the jury heard testimony from both the victim and the defendant. The jury either concluded that the evidence proved that the victim resisted to her utmost and was overcome by force or was prevented from resisting by defendant’s acts of physical abuse immediately before the rape which were tantamount to threats of great bodily harm accompanied by apparent power of execution. We find that the evidence supports
21 the jury’s determination that the amount of force employed constituted aggravated, rather than forcible, rape.
Id. at 231-32.
Relying on Puckett, this court, in State v. Davis, 09-1061 (La.App. 3
Cir. 4/7/10), 36 So.3d 351, writ denied, 11-1908 (La. 4/27/12), 86 So.3d 623, also
found the amount of force was sufficient to satisfy the element of aggravated rape.
The victim therein testified that she “was sleeping with her six-month-old son
when she awoke to see the defendant rushing toward her.” Id. at 353. Grabbing
her by the hair, the defendant threw the victim out of bed onto “the floor and then
back on the bed” again. Id. at 353. He told her to take off her underwear. “When
she did not act fast enough, he threw her on the floor again at which time she
complied.” Id. at 354. “He pushed her over the bed and attempted to penetrate
her from behind, but she kept squirming around.” Id. at 354. Unsuccessful, he
then dragged her from the bedroom to the living room, “pushed her down into the
couch,” and again attempted several times to penetrate her vaginally from behind,
but was unable to because “she kept trying to move away[.]” Id. at 354-44. The
defendant then dragged her back into the bedroom. Pushing her to her knees, the
defendant “tried to force her to perform oral sex on him, but she refused.” Id. at
355. Finally, with a pillow over her face and “a plastic Wal-mart bag” wrapped
around his penis, he penetrated her vaginally. Id. at 355. The victim testified that
she was terrified that the defendant was going to kill her and her baby. In
affirming the jury’s verdict, this court reasoned: “The jury heard the testimonies
and had the option to impose the responsive verdict of forcible rape, but must have
determined that the victim resisted to the utmost and that the physical abuse
22 inflicted was tantamount to threats of great bodily harm accompanied by apparent
power of execution.” Id. at 357.
However, more recently, in State v. Carter, 14-926 (La.App. 3 Cir.
4/1/15), 160 So.3d 647, writ denied, 15-859 (La. 6/17/16), 192 So.3d 770, this
court concluded that the evidence was insufficient to find that the victim resisted
the defendant’s sexual acts to the utmost but her resistance was overcome by force.
Therein, the jury convicted the defendant of the lesser included responsive offense
of attempted aggravated rape, which still required the state to prove the victim
resisted to the utmost but was overcome by force. Although the victim testified to
several sexual encounters with the defendant beginning when she was “six . . .
years old and continuing until she was in her teens[,]” this court found that there
were only three incidents upon which the jury could have based its verdict. Id. at
649. In the first two incidents, the defendant “offered to give [the victim] driving
lessons.” Id. at 649. On the first occasion, “he pulled to the side of the road,
alleging he needed to adjust the seat, pulled his penis out of his pants, and then had
[the victim] sit on his lap to drive.” Id. at 649-50. The victim testified that there
was no penetration “because she was wearing her panties and skirt.” Id. at 650.
During the second encounter, the defendant again “pulled over and adjusted the
seat,” but the victim, realizing what was happening, “refused to sit on [his] lap.”
Id. at 650.
In the third incident, the victim testified that she was “watching
television when [the d]efendant came to her house . . . . and asked for a
watermelon from [her] father’s [produce] truck.” Id. at 656. The defendant came
to the truck shortly after she did, and while she was in the bed of the truck, he
made [her] lay down, and . . . had sex with [her].” Id. at 656 (alterations in
23 original). She further testified that he picked up her dress, pushed her panties over
to the side, and got on top of her. Although she was able to “just jump[] up” after
the defendant penetrated her vaginally, the victim testified that she was scared,
hysterical, and “didn’t know [what] was going to happen.” Id. at 656 (alterations
in original). This court noted, however, that the victim “did not testify that she
resisted to the utmost” or that the defendant “overcame her resistance with force”
in any of the encounters; nor was there any testimony that the victim resisted from
the witness to the assaults, who conceded that the victim did not scream during the
rape. Id. at 652. Therefore, this court concluded:
The State did not offer any other evidence in support of each of the elements of the crime of aggravated rape or attempted aggravated rape, the offense of which Defendant was eventually convicted. B.P. was not under twelve during the relevant time frame, testified that Defendant did not threaten her, and the State did not prove that B.P. “resist[ed] the act to the utmost, but [that her] resistance [was] overcome by force.” Even when viewed in a light most favorable to the prosecution, the State failed to prove Defendant committed the offense of attempted aggravated rape beyond a reasonable doubt.
Id. at 652-53 (alterations in original).
Considering the evidence introduced at trial herein as to the present
victim’s resistance and the force used to overcome it in relation to the resistance
and force recited in the cases above, we find the evidence was insufficient for any
rational factfinder to find that the element of aggravated rape at issue—H.A.
resisted to the utmost but her resistance was overcome with force—had been
proven beyond a reasonable doubt. In each of the cases in which the courts found
that the element of utmost resistance overcome by force was satisfied, the State
presented evidence that the victim resisted by crying, screaming, trying to run
24 away, or squirming, or that her attempts to do so were met with threats or physical
violence in the form of the defendant throwing, grabbing, dragging, punching, or
striking the victim.
The evidence herein shows that as to count one, the first anal rape,
H.A. said that she resisted, but Mr. Thibeaux held her down. As to count two, the
first vaginal rape, H.A. testified that Mr. Thibeaux would try to whip her and that
she would make noises. She also said that she resisted by moving her legs, but Mr.
Thibeaux would hold them down. Regarding the third count, we find the only
specific evidence of resistance was the fact that H.A. described the rape in
response to the State’s question, “Was there any other time where he had sex with
you and you resisted him?” H.A. testified, however, that she did not scream, yell,
or kick Mr. Thibeaux during any of the assaults. There was no testimony that H.A.
tried to get away and was prevented by either threats of harm or force from Mr.
Thibeaux. The only threat spoken of was her ability to see her boyfriend. And
though the movement of her legs was met by Mr. Thibeaux holding her down or
trying to “whip” her, this force is not to the degree of or in proportion to the force
exerted in the jurisprudence discussed above. Thus, although there was evidence
of resistance as to each count, we do not find that any rational factfinder could
have found that this evidence, even when viewed in a light most favorable to the
prosecution, proves beyond a reasonable doubt that H.A. resisted the acts to the
utmost but that her resistance was overcome by force so to warrant the greater
degree of punishment imposed for aggravated rape.
Because we find the State did not prove beyond a reasonable doubt
that Mr. Thibeaux committed the offense of aggravated rape, we will now consider
whether a lesser included responsive offense was proven.
25 Responsive Verdicts
Pursuant to La.Code Crim.P. art. 821(E), an appellate court, instead of
granting a judgment of acquittal, may modify the verdict and render a judgment of
conviction on a lesser included responsive offense, “[i]f the appellate court finds
that the evidence, viewed in a light most favorable to the state, supports only a
conviction of a lesser included responsive offense.” When the evidence does
support a conviction on a lesser included offense, “the discharge of the defendant
is neither necessary [n]or proper.” State v. Byrd, 385 So.2d 248, 251 (La.1980).
The following are the only responsive verdicts that may be rendered when an
indictment charges the offense of aggravated rape:
Guilty.
Guilty of attempted aggravated or first degree rape.
Guilty of forcible or second degree rape.
Guilty of attempted forcible or second degree rape.
Guilty of sexual battery.
Guilty of simple or third degree rape.
Guilty of attempted simple or third degree rape.
Guilty of oral sexual battery.
La.Code Crim.P. art. 814(A)(8). Therefore, we must now address whether the
evidence was sufficient to prove the responsive verdicts of forcible rape or the
even lesser included responsive offense of sexual battery, as Mr. Thibeaux
concedes.
26 Elements of Forcible Rape
Louisiana Revised Statutes 14:42.1 defines forcible rape, in pertinent
part, as follows:
A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When 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.
Recently, this court clarified the proof necessary to sustain a conviction for forcible
rape:
To sustain a conviction for forcible rape, actual resistance is not required. Rather, all that is necessary is that the victim be prevented from resisting by force or threats of physical harm to such an extent that she reasonably believed resistance to be futile. Only a subjective, reasonable belief is necessary.
Carter, 160 So.3d at 654 (citations omitted).
In State v. Powell, 438 So.2d 1306 (La.App. 3 Cir.), writ denied, 443
So.2d 585 (La.1983), the minor victim approached the defendant’s car and asked
him for a ride. Although he agreed to take her to a cousin’s house, he brought her
to a secluded area instead. The victim testified that the defendant slapped her,
threatened to kill her, and indicated a weapon was under the seat of the vehicle.
After she removed her own pants, he had sexual intercourse with her. A panel of
this court concluded that there was no evidence of resistance and little evidence
that she believed resistance to be futile. However, Judge Stoker, in a strongly
worded dissent, opined:
27 The victim in this case stated that she submitted because the defendant threatened to kill her if she did not. Although she did not state in so many words that she did not resist because she believed that resistance would not prevent the rape, that is the clear meaning of her testimony. If that meaning is not given to her testimony, it is tantamount to requiring a person threatened with rape to either be faced with a dangerous weapon or to resist to the utmost and, in either case, subject themselves to the possibility of great physical harm or death. This is resistance in the context of aggravated rape. Forcible rape requires less.
Id. at 1310.
This court then endorsed the Powell dissent in State v. Schexnaider,
03-144 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, and upheld a conviction for
forcible rape when the defendant neither threatened the victim nor had a weapon.
In Schexnaider, the minor victim testified that she and the defendant were sitting
on the tailgate of the defendant’s truck when he “grabbed her face, kissed her and
pushed her onto her back in the bed of his pick-up truck.” Id. at 454. The
defendant then “proceeded to get on top of her,” took off her shoes and pants, and
penetrated her vaginally. Id. at 454. Although the defendant did not slap her and
she did not resist, the victim did testify that “when she get[s] frightened, she
freezes.” Id. at 454. Eventually, “she was finally able to tell the [d]efendant
‘No,’” and when she threatened to tell her friend, the defendant stopped. Id. at
454. The victim also testified that there was really nothing she could do to get the
defendant off of her because “he was bigger than her, and she was pinned under
the Defendant’s weight.” Id. at. 457. This court found “that the evidence and
testimony introduced at trial establishes that Defendant used sufficient force
against the victim to sustain the Defendant’s conviction.” Id. at 459.
28 More recently, this court in Carter, 160 So.3d 647, found that, while
the evidence recited previously did not support a conviction for attempted
aggravated rape, it did support the lesser included offense of forcible rape. In so
holding, the Carter court relied on Schexnaider and the fifth circuit’s decision in
State v. Wilkinson, 00-339, p. 15 (La.App. 5 Cir. 10/18/00), 772 So.2d 758, 766,
writ denied, 00-3161 (La. 10/12/01), 799 So.2d 494, wherein the court found that
the evidence was sufficient to convict the defendant of forcible rape when the
defendant, without threatening the victim and without a weapon:
forcibly grabbed [the victim], threw her to the ground, pushed down her clothing, laid on top of her and penetrated her vaginally several times. [The victim], a fourteen-year-old, was frightened, weighed down by the backpack and did not know whether any action on her part would have caused him to do additional harm. She was thrown into a secluded area and could have reasonably believed that screaming would be futile.
Comparing the facts before it with both Wilkinson and Schexnaider, the Carter
court found:
The parallels between Wilkinson, Schexnaider, and the instant matter are striking and support a finding of forcible rape. In Schexnaider, 852 So.2d at 454, 457, the defendant “pushed her onto her back in the bed of his pick-up truck” and “got on top of her.” In Wilkinson, 772 So.2d at 766, the defendant “pushed down [the victim’s] clothing [and] laid on top of her” after he grabbed her and threw her to the ground. In the instant matter, although the victim testified that Defendant “said, lay down,” she also testified “[she] didn’t know [intercourse] was going to happen[]” and that Defendant “made” her lie down in the bed of the truck. Then, he pushed her panties to the side; she did not willingly remove them. Then, he “got on top of [her]” and had sex with her. Additionally, B.P. indicated she was scared, confused, and upset. She “jumped up” when it began to hurt. In slightly different words, the victims in Schexnaider, Wilkinson, and the instant matter said the same thing; an adult man made them get on their back, got on top of them, and penetrated them vaginally. Although B.P. did
29 not explicitly say that she did not resist because she believed that resistance would be futile, it is clear from B.P.’s testimony that when Defendant “made [her] lay down,” “pushed” her panties to the side, and “got on top of [her,]” she believed it pointless to resist. Consideration of the victim’s age and size supports this conclusion. B.P. was a young girl of barely twelve years old; Defendant was an adult man. Although B.P. did not directly testify to the size difference between the two, she explained that, at one point, Defendant was large enough to physically pick her up and carry her to his bathroom, where he got on top of her and had sex with her. The conclusion that B.P. thought it futile to resist is further buttressed by the history of Defendant having taken advantage of her on numerous prior occasions and her having been helpless to dissuade him on any of the prior occasions. . . . A jury could reasonably have concluded that the victim reasonably believed that, against the force Defendant exerted with his body as he “got on top” of B.P., resistance was useless, especially in light of her age, her size, and the extensive history between the two.
Id. at 656-57 (all but final alteration in original).
As recited and noted above, the evidence presented by the State
through H.A.’s testimony, her Hearts of Hope interview, and the report of her
sexual assault examination does support a finding that she resisted in each of the
sexual assaults for which Mr. Thibeaux was convicted of aggravated rape. In both
counts one and two, H.A. testified that she did resist but her resistance was
thwarted by Mr. Thibeaux holding her down or attempting to “whip” her.
Moreover, the jury was able to compare the sizes of both H.A. and Mr. Thibeaux
and take the difference in their sizes into consideration. Also of relevancy was the
fact that H.A. was only thirteen and fourteen at the time of the rapes and Mr.
Thibeaux was an adult man. Additionally, Mr. Thibeaux was in a position of
authority over H.A., which may have affected her belief that further resistance
would be useless.
30 Taken with the history of abuse H.A. testified to at trial and in her
interview and her fear that “he could do something else like abuse[,]” which
prompted her to not “do anything[,]” the jury could have concluded that H.A.
reasonably believed that further resistance was useless. Therefore, we find the
evidence was sufficient to prove forcible rape as to counts one and two. But as to
the third count, while H.A. did recount the vaginal rape that occurred when she
was home alone with Mr. Thibeaux in response to the State’s question about
whether there was any other time she resisted, the State did not present any
evidence or details regarding either (1) the force employed by Mr. Thibeaux, or (2)
H.A.’s belief that resistance would be futile in that instance. An inference that the
same amount of force was exerted as in count one just because H.A. testified to
count three directly following her testimony as to count one is simply not sufficient
to prove the elements of forcible rape.
However, as Mr. Thibeaux concedes, the evidence was sufficient to
prove sexual battery pursuant to La.R.S. 14:43.1(A), which provides, in pertinent
part:
Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, directly or through clothing, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, directly or through clothing, when any of the following occur:
(1) The offender acts without the consent of the victim.
(2) The victim has not yet attained fifteen years of age and is at least three years younger than the offender.
31 All the elements necessary to prove the offense of sexual battery were clearly met
in this case as to count three given that H.A. testified that Mr. Thibeaux penetrated
her vagina with his penis without her consent when she was under the age of
fifteen and more than three years younger than Mr. Thibeaux.3 Accordingly, we
modify the verdict and render a judgment of conviction on the lesser included
offense of forcible rape for counts one and two and on the lesser included offense
of sexual battery for count three. We further remand for resentencing in
accordance with that judgment.
Ineffective Assistance of Counsel
Mr. Thibeaux asserts that he received ineffective assistance of counsel
in several respects: failure to challenge jurors for cause, defense counsel’s absence
during the playing of H.A.’s Hearts of Hope interview, failure to make sure bench
conferences were recorded, and failure to object to the trial court’s instruction on
impeachment evidence.
Legal Standard for Ineffective Assistance of Counsel
The United States Supreme Court has set forth the legal standard for
such constitutional challenges, explaining:
A criminal defendant is guaranteed the effective assistance of counsel. United States Sixth Amendment; La. Const. art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La.1986). To establish a claim of ineffective assistance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel’s professional errors resulted in
3 The Louisiana Uniform Abuse Prevention Order, dated June 30, 2015, recites Mr. Thibeaux’s date of birth as “8/8/78” and his height and weight as “5’10”” and “180”, respectively.
32 prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). This does not mean “errorless counsel [or] counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.” State v. Ratcliff, 416 So.2d 528, 531 (La.1982).
A claim of ineffectiveness is generally relegated to post-conviction, unless the record permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel’s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 32-35.
State v. Bright, 98-398, pp. 40-41 (La. 4/11/00), 776 So.2d 1134, 1157, reversed
on other grounds, 02-2793, 03-2796 (La. 5/25/04), 875 So.2d 37.
Failure to Challenge Jurors For Cause
Mr. Thibeaux first contends his trial counsel was ineffective for
failing to challenge three jurors for cause and failing to peremptorily strike these
same jurors from serving on the jury. One of the jurors, M.B., had a niece who
was molested by her stepfather. Another juror, T.A., told the court that she and her
two sisters were sexually molested for ten years by her father. The third juror,
S.B., was molested by her grandfather for two years. Mr. Thibeaux argues that
there was no conceivable trial strategy for leaving M.B., T.A., and S.B. on the jury
in the present case. He further contends that there is no way to know the impact
these jurors may have had on the final votes of the other jurors, namely on counts
three, six, and nine, which were not unanimous verdicts. Therefore, Mr. Thibeaux
concludes that he was prejudiced by his counsel’s inaction.
33 In response, the State argues that defense counsel’s decisions to
accept the jurors were trial strategy decisions that should be relegated to post-
conviction relief. We agree.
As this court stated in State v. Mitchell, 13-426, pp. 28-29 (La.App. 3
Cir. 11/6/13), 125 So.3d 586, 605, writ denied, 14-102 (La. 6/20/14), 141 So.3d
807:
Decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal. Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, the defendant’s claims of ineffective assistance of counsel will be relegated to post- conviction relief.
Because we find defense counsel may have exercised trial strategy in his decision
as to these jurors, we relegate this matter to post-conviction relief, where an
evidentiary hearing may be held to investigate defense counsel’s reasons, if any,
for not challenging these jurors.
Defense Counsel’s Absence During Playing of Hearts of Hope Video
Mr. Thibeaux next asserts that his trial counsel was ineffective for
absenting himself during the playing of H.A.’s Hearts of Hope interview to the
jury. As the record reflects, trial counsel informed the court and the jury that he
would be stepping out for a few minutes during the playing of the video to which
the court responded:
Sure, absolutely. [Defense counsel] has a conference that he has to take on an issue that is kind of an emergency issue in federal court. So he will step into the back and take care of that issue. I think you’ve - - everybody understands you have reviewed the video as well.
34 Trial counsel assured the court that he had reviewed the video.
In brief, Mr. Thibeaux argues that during his counsel’s absence, he sat
alone at the defense table, in full view of the jury, while the jury listened to the
repeated allegations made by H.A. Although there was no examination of a
witness during this time frame, critical evidence was received and deciphered by
the jury. Further, Mr. Thibeaux asserts that the perception portrayed by the
absence of counsel was surely one of abandonment of his client. He also claims
that the video was played twice and that the record raises serious questions of
whether defense counsel’s presence in the courtroom could have prohibited the
need for any potential playing of the video for a second time, which could not have
been favorable to Mr. Thibeaux.
The State, however, in its brief, explains that defense counsel returned
to the courtroom within twenty minutes, well before the video ended, and that the
tape was not played twice. Any reference to stopping the video merely involved
fast forwarding over a section that the parties had previously agreed to exclude
because it contained evidence of prior bad acts on the part of Mr. Thibeaux.
Thereafter, the State began the tape again. Moreover, the State asserts defense
counsel had already reviewed the video and knew that there was no content played
to which he needed to object. Therefore, according to the State, this claim should
be denied as just not factually valid.
Although there is some lack of clarity as to when the tape was stopped
and started again, we find the record does not indicate the video was played twice.
Considering the fact that defense counsel reviewed the tape, informed the jurors as
to why he would be absent, and returned to court before any other evidence was
35 introduced, we find that Mr. Thibeaux fails to show that he suffered any prejudice
so to prove this ineffective assistance of counsel claim.
Failure to Make Sure Bench Conferences Were Recorded
In his third assertion, Mr. Thibeaux claims that his trial counsel was
ineffective for failing to make sure bench conferences were recorded. According
to him, numerous bench conferences were held during the course of the trial, but
none was recorded. Further, although many of the bench conferences discussed
procedural matters, some were obviously for the purpose of arguing objections.
Failure of these bench conferences to be recorded, Mr. Thibeaux argues, has
limited his appellate review and resulted in circumstances where others have to
second-guess what may have transpired, particularly in those hearings where it was
acknowledged that pertinent objections were raised and legal arguments made.
Though alone this might not rise to a showing of prejudice, Mr. Thibeaux argues
that this, coupled with the other actions and inactions of his trial counsel, suggests
“an appearance of impropriety” concerning counsel’s representation.
In State v. Pinion, 06-2346, pp. 7-8 (La. 10/26/07), 968 So.2d 131,
134-35, our supreme court stated the following regarding unrecorded bench
conferences:
This Court has never articulated a per se rule either requiring the recording of bench conferences or exempting them from the scope of La.C.Cr.P. art. 843, which requires in felony cases the recording not only of the evidentiary portions of trial but also of “the examination of prospective jurors . . . and objections, questions, statements, and arguments of counsel.” State v. Hoffman, 98-3118, p. 50 (La. 4/11/00), 768 So.2d 542, 586. The Court has instead conducted a case-specific inquiry to determine whether the failure to record the conferences results in actual prejudice to the defendant’s appeal. As a general rule, the failure of the record to
36 reflect the argument of counsel on objections, even when made in open court, does not affect a defendant’s appeal because it does not hinder adequate review of the trial court’s ruling. State v. Johnson, 438 So.2d 1091, 1104 (La.1983). Thus, the failure to record bench conferences will ordinarily not affect the direct review process when the record suggests that the unrecorded bench conferences had no discernible impact on the proceedings and did not result in any specific prejudice to the defendant.
Considering the vague arguments made by Mr. Thibeaux with respect
to any prejudice that he suffered as a result of the unrecorded bench conferences in
the present case and the lack of any indication that these bench conferences had a
discernible impact on his trial, we find Mr. Thibeaux has failed to prove prejudice
and, in turn, a claim of ineffective assistance of counsel.
Failure to Object to Instruction on Impeachment Evidence
Mr. Thibeaux last asserts that his trial counsel was ineffective for
failing to object to the untimely and poorly-worded instruction regarding
impeachment evidence given by H.A.’s counselor, Ms. Smith. The testimony at
issue occurred when Mrs. Thibeaux was asked if H.A.’s counselor ever told her
that H.A. said she was having sex with her boyfriend but was not having sex with
Mr. Thibeaux. Mrs. Thibeaux answered, “No.” She just remembered the
counselor telling her that she thought H.A. was having sex with her boyfriend.
Mrs. Thibeaux subsequently testified that H.A. told her that she and Mr. Thibeaux
did not have sex and that she and her boyfriend had had sex. Ms. Smith then
testified that she never told Mrs. Thibeaux that she thought H.A. was having sex
with her boyfriend. Cassandra McAlister, the Department of Children and Family
Services Child Welfare Specialist assigned to H.A.’s case, also testified that Mrs.
Thibeaux told her that H.A.’s counselor had told Mrs. Thibeaux that H.A. was
37 sleeping with her boyfriend. Prior to closing arguments, the trial court gave the
jury the following limiting instruction:
That evidence or that testimony that came in was some evidence by Ms. McAlister and Ms. Smith, in regards to Ashley Thibeaux’s statement in regards to did she ever tell Ms. McAlister that her daughter’s therapist informed her that it was just the boyfriend or a boyfriend that she was having sex with.
That statement and that evidence and testimony is not to be used for any other purpose other than impeachment purposes, only, of a statement or prior inconsistent statement. That is for you to bring to the deliberation room and use that as you see fit, only for impeachment purposes of [Mrs.] Thibeaux’s testimony.
Mr. Thibeaux contends the trial court’s instruction was untimely as it
should have been made at the time the evidence was admitted. Additionally, he
argues that, rather than instructing the jurors that it was their duty to decide
whether Mrs. Thibeaux’s testimony had been impeached, the instruction actually
unduly led the jurors to believe that the judge was instructing them to find that her
testimony had been impeached.
Regardless of the timeliness of the trial court’s instruction or its
wording, we find that Mr. Thibeaux fails to show that he was prejudiced by his
counsel’s failure to object. Even without any instruction at all, we note that the
testimony was somewhat confusing. Still Mr. Thibeaux fails to show that the trial
court’s instruction to the jury substantially affected the jury’s evaluation of Mrs.
Thibeaux’s testimony or that such an instruction would have affected the jury’s
verdict. Furthermore, considering the physical evidence linking Mr. Thibeaux to
the sexual misconduct against H.A., i.e., the DNA and Y-STR profiles, as well as
H.A.’s extensive testimony, we find Mrs. Thibeaux’s statement, impeached or not
impeached, did not have a substantial affect on the jury’s decision as to whether
38 Mr. Thibeaux had sex with H.A. Thus, we conclude that Mr. Thibeaux has not
proven that his trial counsel was ineffective for failing to ensure the timeliness of
the instruction or for failing to object to the wording of the instruction.
For the foregoing reasons, we find this assignment of error lacks
merit.
Double Jeopardy
In his third assignment of error, Mr. Thibeaux contends that his
convictions for the three counts of aggravated rape and his convictions for three
separate counts of aggravated crime against nature violated his protection against
double jeopardy because the evidence admitted at trial was insufficient to discern
six separate and distinct acts of sexual intercourse. He asserts that H.A.’s
testimony was too vague as to dates, events, and specifics for the jury to
sufficiently ascertain what descriptions and details were pertinent to each alleged
act of sexual intercourse.
Regarding a similar allegation of double jeopardy, this court
elucidated:
Defendant further argues that because there was no evidence of each individual offense, he was subjected to double jeopardy when he was convicted of five separate offenses based on a single allegation of sexual touching. In State v. Ramsdell, 09-1510, pp. 10-11 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, 85, this court discussed double jeopardy, in part, as follows:
The Double Jeopardy provisions in the state and federal constitutions protect a defendant from both a second prosecution for the same offense and multiple punishments for the same criminal act. U.S. Const. amend. V; La. Const. art. 1, § 15; State v. Doughty, 379 So.2d 1088 (La.1980). . . . However, an accused who commits
39 separate and distinct offenses during the same criminal episode or transaction may be convicted and sentenced for each offense without violating the prohibition against double jeopardy. State v. Williams, 05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.12/15/06), 944 So.2d 1284.
Furthermore, Louisiana jurisprudence does not follow the “‘same transaction’ test which would prohibit prosecutions for different crimes committed during one sequential, continuing course of conduct.” State v. Letell, 12-180, pp. 7-8 (La.App. 1 Cir. 10/25/12), 103 So.3d 1129, 1137, writ denied, 12-2533 (La.4/26/13), 112 So.3d 838. Finally, in Louisiana, double jeopardy fails to protect an offender who violates numerous statutory provisions on a crime spree. Id.
Every time Defendant completed the act of touching the victim’s vagina or breast, either on the couch or in her bed, over or under her clothes, it was a separate and distinct act, whether it was sexual battery, indecent behavior with a juvenile, or molestation of a juvenile.
State v. Urena, 13-1286, pp. 8-9 (La.App. 3 Cir. 5/7/14), 161 So.3d 701, 707, writ
denied, 14-1603 (La. 4/10/15), 164 So.3d 829.
Elements of Aggravated Crime Against Nature
The aggravated crime against nature statute provides, in pertinent part:
A. Aggravated crime against nature is either of the following:
(2)(a) The engaging in any prohibited act enumerated in Subparagraph (b) of this Paragraph with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild or any degree, brother, sister, half-brother, half- sister, uncle, aunt, nephew, or niece.
40 (b) The following are prohibited acts under this Paragraph:
(i) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(ii) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
La.R.S. 14:89.1.
As discussed above, the indictment, in counts four, five, and six,
charged Mr. Thibeaux with committing aggravated crimes against nature upon
H.A. by having sexual intercourse with her. Counts seven, eight, and nine charged
Mr. Thibeaux with committing aggravated crimes against nature upon H.A. by
lewdly fondling or touching her. Although the indictment did not set forth the
specific conduct upon which each of the aggravated crime against nature charges
are based, the State in closing argument explained to the jury the conduct specific
to each charge: count one—first anal rape; count two—first vaginal rape with
condom; count three—vaginal rape when H.A.’s mother was not home and H.A.
41 had just taken a shower; count four—vaginal intercourse with vaseline; count
five—the other time Mr. Thibeaux [had anal intercourse with] H.A.; count six—
last rape on June 8, 2015; count seven—molestation in apartment; count eight—
oral sex when H.A.’s mother walked in; and count nine—time when Mr. Thibeaux
made H.A. grab his penis.
Although Mr. Thibeaux argues that the State failed to prove separate
instances of conduct for each offense, he specifically attacks counts four and five,
positing that count four is the same as counts two or three. Our review of the
record evidence reveals that count four is based on the incident wherein H.A. was
in the front room of her house, and Mr. Thibeaux took off her shorts, began
“licking” her vagina, and then penetrated her vaginally with his penis. In her video
interview, H.A. recalled that Mr. Thibeaux used vaseline. Count two, however, is
based on conduct described by H.A. in that same interview as the first time that
Mr. Thibeaux vaginally raped her. H.A. described both instances during the same
portion of her trial testimony. But she clearly stated that they were two separate
encounters differentiated from each other by Mr. Thibeaux’s use of a condom in
the first vaginal rape and his use of vaseline in the second. Therefore, even though
her testimony was confusing, we find that there was sufficient evidence for the jury
to conclude two separate acts of conduct—one time being with a condom where
H.A. made noises (count two) and another time where Mr. Thibeaux used vaseline
(count four). The record further supports the jury’s finding that the rape that
occurred when Mr. Thibeaux entered her room after she had just showered (count
three) was a separate incident from the vaseline conduct charged in count four.
Mr. Thibeaux also contends that count five is the same conduct
charged in count one (the first anal rape). The record evidence shows, however,
42 that count five was supported by H.A.’s statement in her Hearts of Hope interview
that Mr. Thibeaux had anal sex with her at least one more time other than the
conduct asserted in count one. Mr. Thibeaux attacks the credibility of this
statement by arguing that it conflicts with H.A.’s trial testimony where she stated
that the incident described in count one was the only time Mr. Thibeaux “put his
private in [her] butt.” Regardless of the credibility of the testimony, which was for
the jury to evaluate, there was evidence of two separate incidents of anal rape.
Thus, we find the same evidence was not used for both count one and count five.
Because the record evidence reasonably supports the jury’s finding of nine separate
sexual encounters between H.A. and Mr. Thibeaux, we find this assignment also
lacks merit.
V.
CONCLUSION
For the foregoing reasons, we find the evidence was insufficient to
find Mr. Thibeaux guilty of all three counts of aggravated rape. However, the
evidence is sufficient to find him guilty of forcible rape as to counts one and two
and sexual battery as to count three. We, therefore, modify the judgment of the
trial court, enter a judgment of conviction as to forcible rape for counts one and
two and as to sexual battery for count three, and remand for resentencing. We
further affirm the convictions of aggravated crime against nature, vacate Mr.
Thibeaux’s sentences for aggravated crime against nature, and remand these
convictions for resentencing with instruction to the trial court to specify whether
the sentences are to be served with or without hard labor. Mr. Thibeaux’s claim of
ineffective assistance of counsel as to trial counsel’s failure to challenge three
43 jurors for cause and failure to exercise peremptory challenges to strike those jurors
is hereby relegated to post-conviction relief.
VERDICT MODIFIED IN PART AND AFFIRMED IN PART;
JUDGMENT OF CONVICTIONS ON TWO COUNTS OF FORCIBLE
RAPE AND ONE COUNT OF SEXUAL BATTERY ENTERED;
SENTENCES VACATED AND REMANDED FOR RESENTENCING.
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State of Louisiana v. Nathaniel Climes Thibeaux AKA Nathaniel Thibeaux, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-nathaniel-climes-thibeaux-aka-nathaniel-thibeaux-lactapp-2017.