STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-415
STATE OF LOUISIANA
VERSUS
PAUL BROUSSARD
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 22316-08 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J. David Painter, Judges.
AFFIRMED.
John Foster DeRosier District Attorney - 14th Judicial District Court Karen C. McLellan Assistant District Attorney – 14th Judicial District Court P. O. Box 3206 Lake Charles, LA 70602-3206 Telephone: (337) 437-3400 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Todd Samuels Clemons 1740 Ryan Street Lake Charles, LA 70601 Telephone: (337) 477-0000 COUNSEL FOR: Defendant/Appellant - Paul Broussard THIBODEAUX, Chief Judge.
Defendant was convicted of attempted sexual battery for
inappropriately touching an eleven-year-old girl and was sentenced to twelve and
one-half years at hard labor, without benefit of parole, probation, or suspension of
sentence. Defendant argues the trial court improperly considered evidence of other
crimes and the evidence was insufficient to support the conviction. Considering
the testimony of the victim alone was sufficient to prove the elements of this
sexual offense, we affirm Defendant‟s conviction and sentence.
I.
ISSUES
Defendant raises the following assignments of error:
(1) the trial court erred in considering other crimes evidence without articulating an appropriate use of this evidence under La.Code Evid. arts. 404(B) and 412.2;
(2) the trial court erred by admitting the other crimes evidence under a preponderance of evidence standard;
(3) trial counsel was ineffective in failing to properly challenge the admissibility of the other crimes evidence; and,
(4) the evidence was insufficient to support a conviction for attempted sexual battery.
II.
FACTS AND PROCEDURAL HISTORY
In the summer of 2007, J.B.,1 an eleven-year-old girl, spent the night
1 The victim‟s initials are used to protect her identity in accordance with La.R.S. 46:1844(W). at Defendant Paul Broussard‟s home. J.B. was good friends with Defendant‟s
daughter, Alexis, and since kindergarten, she would frequently sleep over. On the
particular evening which forms the basis of this prosecution, J.B. testified that she
was sleeping on the couch when Defendant picked her up to put her in bed. In the
process of carrying J.B., he put his hand in her underwear and touched her vaginal
and anal area. In December 2007, J.B. first told her friend Emily about the
incident. Emily testified that beyond this incident, J.B. once told her that
sometimes Defendant would tickle her below the waist and occasionally touch her
inappropriately. On March 3, 2008, J.B. told her aunt who then told J.B.‟s mother.
When a formal investigation began on March 12, 2008, Defendant
told detectives that he was aware of the allegations through the elders of his
church. He maintained that he was falsely accused. Defendant‟s wife, Julie
Broussard, further testified that she was surprised by the allegations as her husband
was not the type to engage in these actions. On March 17, 2008, J.B. was
interviewed at the Child Advocacy Center (CAC) where she identified on a picture
of a girl that Defendant touched her in her vaginal area.
A grand jury indicted Defendant for sexual battery, a violation of
La.R.S. 14:43.1.2 During the course of the proceedings, the State filed its notice of
intent to introduce evidence of similar sexual offenses committed by Defendant
with victim, M.W.
At a Prieur hearing on March 9, 2010, M.W. testified that she often
babysat for Defendant and Julie from the time she was fifteen. She slept either on
the couch or in the bed of one of their children. About ten years prior to the
2 The alleged incident occurred in 2007. Since that time, La.R.S. 14:43.1 has been amended twice. See 2008 La. Acts, No. 33, effective August 15, 2008; 2011 La. Acts, No. 67, effective August 15, 2011.
2 hearing, M.W. arrived at Defendant‟s home planning to sleep there. Defendant
suggested she sleep in the bedroom he shared with Julie, who was at work. He
followed M.W. to the bedroom, got into bed with her, tried to kiss her, and put his
hands up her shirt. M.W. repeatedly pushed Defendant away until he ultimately
stopped. M.W. told her mother about the incident a few hours later, but she did not
report it to the police. While Julie denies ever speaking to M.W. about the incident,
M.W. testified that she informed Julie, who responded by saying, “I cannot believe
he has done this again.” In approximately 2003, Defendant sent M.W. a card
apologizing for his behavior. He also wrote a letter in which he apologized and
asked for forgiveness.
In the Prieur hearing, the trial judge admitted evidence of the prior
acts involving M.W. because the facts were similar and showed “lustful
predisposition to have sexual contact with young teenage girls.” On December 15,
2010, the trial judge found Defendant guilty of attempted sexual battery, a
violation of La.R.S. 14:27 and 14:43.1. Referring to the M.W. evidence admitted
at trial, the judge commented, “[t]o be honest with you, but for that testimony, I
probably would not have convicted [Defendant] . . . It was the evidence that made
the difference between guilty and not guilty.” He sentenced Defendant to twelve
and one-half years at hard labor, without benefit of parole, probation, or suspension
of sentence, and with credit for time served. The trial judge denied Defendant‟s
motions for post-verdict judgment of acquittal and for new trial.
3 III.
LAW AND DISCUSSION
Sufficiency of Evidence
When issues are raised on appeal as to both sufficiency of evidence
and other trial errors, the appellate court should first review the sufficiency of the
evidence. State v. Hearold, 603 So.2d 731 (La.1992). The standard of review in a
sufficiency of the evidence claim is “whether, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found proof
beyond a reasonable doubt of each of the essential elements of the crime charged.”
State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549
U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979)).
In State v. Simon, 10-1111, p. 7 (La.App. 3 Cir. 4/13/11), 62 So.3d
318, 323, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922, this court upheld a
verdict of sexual battery, noting “the testimony of the victim alone can be
sufficient to establish the elements of a sexual offense, even if there is no physical
evidence.” The case involved a six-year-old victim who testified in a CAC
interview that she awoke when the defendant pulled down her pants and touched
her “„in‟ her „behind[.]‟” Id. During the interview, the victim used a diagram to
circle the part of her body where the defendant touched her. The victim‟s older
brother testified his sister had told him about the incident, and he told their mother.
Because the jury obviously found the victim‟s version of the events to be credible,
this court concluded that it would not second-guess that credibility determination
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-415
STATE OF LOUISIANA
VERSUS
PAUL BROUSSARD
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 22316-08 HONORABLE WILFORD D. CARTER, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J. David Painter, Judges.
AFFIRMED.
John Foster DeRosier District Attorney - 14th Judicial District Court Karen C. McLellan Assistant District Attorney – 14th Judicial District Court P. O. Box 3206 Lake Charles, LA 70602-3206 Telephone: (337) 437-3400 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Todd Samuels Clemons 1740 Ryan Street Lake Charles, LA 70601 Telephone: (337) 477-0000 COUNSEL FOR: Defendant/Appellant - Paul Broussard THIBODEAUX, Chief Judge.
Defendant was convicted of attempted sexual battery for
inappropriately touching an eleven-year-old girl and was sentenced to twelve and
one-half years at hard labor, without benefit of parole, probation, or suspension of
sentence. Defendant argues the trial court improperly considered evidence of other
crimes and the evidence was insufficient to support the conviction. Considering
the testimony of the victim alone was sufficient to prove the elements of this
sexual offense, we affirm Defendant‟s conviction and sentence.
I.
ISSUES
Defendant raises the following assignments of error:
(1) the trial court erred in considering other crimes evidence without articulating an appropriate use of this evidence under La.Code Evid. arts. 404(B) and 412.2;
(2) the trial court erred by admitting the other crimes evidence under a preponderance of evidence standard;
(3) trial counsel was ineffective in failing to properly challenge the admissibility of the other crimes evidence; and,
(4) the evidence was insufficient to support a conviction for attempted sexual battery.
II.
FACTS AND PROCEDURAL HISTORY
In the summer of 2007, J.B.,1 an eleven-year-old girl, spent the night
1 The victim‟s initials are used to protect her identity in accordance with La.R.S. 46:1844(W). at Defendant Paul Broussard‟s home. J.B. was good friends with Defendant‟s
daughter, Alexis, and since kindergarten, she would frequently sleep over. On the
particular evening which forms the basis of this prosecution, J.B. testified that she
was sleeping on the couch when Defendant picked her up to put her in bed. In the
process of carrying J.B., he put his hand in her underwear and touched her vaginal
and anal area. In December 2007, J.B. first told her friend Emily about the
incident. Emily testified that beyond this incident, J.B. once told her that
sometimes Defendant would tickle her below the waist and occasionally touch her
inappropriately. On March 3, 2008, J.B. told her aunt who then told J.B.‟s mother.
When a formal investigation began on March 12, 2008, Defendant
told detectives that he was aware of the allegations through the elders of his
church. He maintained that he was falsely accused. Defendant‟s wife, Julie
Broussard, further testified that she was surprised by the allegations as her husband
was not the type to engage in these actions. On March 17, 2008, J.B. was
interviewed at the Child Advocacy Center (CAC) where she identified on a picture
of a girl that Defendant touched her in her vaginal area.
A grand jury indicted Defendant for sexual battery, a violation of
La.R.S. 14:43.1.2 During the course of the proceedings, the State filed its notice of
intent to introduce evidence of similar sexual offenses committed by Defendant
with victim, M.W.
At a Prieur hearing on March 9, 2010, M.W. testified that she often
babysat for Defendant and Julie from the time she was fifteen. She slept either on
the couch or in the bed of one of their children. About ten years prior to the
2 The alleged incident occurred in 2007. Since that time, La.R.S. 14:43.1 has been amended twice. See 2008 La. Acts, No. 33, effective August 15, 2008; 2011 La. Acts, No. 67, effective August 15, 2011.
2 hearing, M.W. arrived at Defendant‟s home planning to sleep there. Defendant
suggested she sleep in the bedroom he shared with Julie, who was at work. He
followed M.W. to the bedroom, got into bed with her, tried to kiss her, and put his
hands up her shirt. M.W. repeatedly pushed Defendant away until he ultimately
stopped. M.W. told her mother about the incident a few hours later, but she did not
report it to the police. While Julie denies ever speaking to M.W. about the incident,
M.W. testified that she informed Julie, who responded by saying, “I cannot believe
he has done this again.” In approximately 2003, Defendant sent M.W. a card
apologizing for his behavior. He also wrote a letter in which he apologized and
asked for forgiveness.
In the Prieur hearing, the trial judge admitted evidence of the prior
acts involving M.W. because the facts were similar and showed “lustful
predisposition to have sexual contact with young teenage girls.” On December 15,
2010, the trial judge found Defendant guilty of attempted sexual battery, a
violation of La.R.S. 14:27 and 14:43.1. Referring to the M.W. evidence admitted
at trial, the judge commented, “[t]o be honest with you, but for that testimony, I
probably would not have convicted [Defendant] . . . It was the evidence that made
the difference between guilty and not guilty.” He sentenced Defendant to twelve
and one-half years at hard labor, without benefit of parole, probation, or suspension
of sentence, and with credit for time served. The trial judge denied Defendant‟s
motions for post-verdict judgment of acquittal and for new trial.
3 III.
LAW AND DISCUSSION
Sufficiency of Evidence
When issues are raised on appeal as to both sufficiency of evidence
and other trial errors, the appellate court should first review the sufficiency of the
evidence. State v. Hearold, 603 So.2d 731 (La.1992). The standard of review in a
sufficiency of the evidence claim is “whether, viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found proof
beyond a reasonable doubt of each of the essential elements of the crime charged.”
State v. Leger, 05-11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549
U.S. 1221, 127 S.Ct. 1279 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979)).
In State v. Simon, 10-1111, p. 7 (La.App. 3 Cir. 4/13/11), 62 So.3d
318, 323, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922, this court upheld a
verdict of sexual battery, noting “the testimony of the victim alone can be
sufficient to establish the elements of a sexual offense, even if there is no physical
evidence.” The case involved a six-year-old victim who testified in a CAC
interview that she awoke when the defendant pulled down her pants and touched
her “„in‟ her „behind[.]‟” Id. During the interview, the victim used a diagram to
circle the part of her body where the defendant touched her. The victim‟s older
brother testified his sister had told him about the incident, and he told their mother.
Because the jury obviously found the victim‟s version of the events to be credible,
this court concluded that it would not second-guess that credibility determination
and affirmed the defendant‟s conviction.
4 Here, J.B. testified Defendant picked her up while she was sleeping
and placed his thumb in her vagina while he carried her. In a CAC interview, she
identified on a picture where Defendant touched her. Furthermore, she told her
friend Emily and her aunt about the incident. The trial judge convicted Defendant
of attempted sexual battery, indicating that he believed all the witnesses testified
truthfully. Following Simon, J.B.‟s testimony alone was sufficient to satisfy the
elements of attempted sexual battery. It is not our place to second-guess the
judge‟s determination of credibility. This assignment of error lacks merit.
Errors Involving Admission and Consideration of Other Crimes Evidence
Defendant further contends that the trial court improperly considered
evidence of Defendant‟s prior offense with M.W. This argument is moot as J.B.‟s
testimony alone was sufficient to support Defendant‟s guilty verdict. In addition,
as the past crimes evidence was not necessary to attain the conviction, we need not
consider whether trial counsel was ineffective in failing to challenge its
admissibility. See Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052 (1984).
Even if the other crimes evidence was necessary, Defendant‟s
argument as to its admissibility and use fails. The evidence was properly admitted
in the Prieur hearing under a preponderance of the evidence standard. See
La.Code Evid. art. 1104; Huddleston v. U.S., 485 U.S. 681, 108 S.Ct. 1496 (1988).
Furthermore, Louisiana Code of Evidence Article 412.2 states, in pertinent part
that:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused‟s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which
5 indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
Here, the trial judge indicated in his judgment that M.W.‟s testimony “tend[ed] to
corroborate J.B.‟s testimony because it show[ed] interest in younger [women],
younger girls, little girls and [inappropriately] touching them.” In accordance with
La.Code Evid. art. 412.2, the judge only considered the evidence to show
Defendant‟s lustful disposition towards younger women. As such, the evidence
was properly considered.
Errors Patent
In accordance with La.Code Crim.P. art. 920(2), we have conducted a
thorough review of the record on its face and find no errors patent.
IV.
DISPOSITION
For the foregoing reasons, we affirm Defendant‟s conviction and
sentence for attempted sexual battery.