STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1162
STATE OF LOUISIANA
VERSUS
TED DWAYNE STEVENS, JR.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR-132400 HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell, Judges.
AFFIRMED.
James E. Boren 830 Main Street Baton Rouge, LA 70802 (225) 387-5786 COUNSEL FOR DEFENDANT/APPELLANT: Ted Dwayne Stevens, Jr.
Rachel I. Conner 3015 Magazine Street New Orleans, LA 70115 (504) 581-9083 COUNSEL FOR DEFENDANT/APPELLANT: Ted Dwayne Stevens, Jr. Michael Harson District Attorney James N. Prather, Jr. Assistant District Attorney Fifteenth Judicial District P.O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana PETERS, J.
A Lafayette Parish jury convicted the defendant, Ted Dwayne Stevens, Jr.,
of aggravated rape, a violation of La.R.S. 14:42, and second degree sexual battery,
a violation of La.R.S. 14:43.2. Thereafter, the trial court sentenced the defendant
to serve life imprisonment at hard labor, without benefit of parole, probation, or
suspension of sentence on the aggravated rape conviction; and to serve a
concurrent fifteen-year sentence at hard labor on the second degree sexual-battery
conviction. The defendant has appealed his convictions, asserting seven
assignments of error. For the following reasons, we affirm the convictions in all
respects.
DISCUSSION OF THE RECORD
The victim in this criminal proceeding is the wife of the defendant.1 On the
morning of December 18, 2010, she and the defendant traveled in their dual-cab
Silverado Chevrolet truck with two of their three children to Lafayette, Louisiana,
to attend the wedding of her niece. They checked into the Lafayette Staybridge
Suites Hotel, where a number of the wedding guests were staying, and then
attended the wedding and the subsequent reception.
The reception was held at Abacus, a banquet and reception facility rented for
the occasion, and the alcohol flowed freely during the evening. The defendant and
L.S. left the reception late in the evening,2 and, at the time, L.S. was significantly
intoxicated.
When they arrived at the hotel, the defendant parked in a remote area of the
parking lot and initiated a physical/sexual encounter with his wife in the truck.
The immediate result of this encounter was that L.S. began bleeding profusely. 1 Pursuant to the mandate of La.R.S. 46:1844(W)(1)(a), she will be referred to by the initials “L.S.” throughout this opinion. 2 The two children had returned to the hotel with other relatives earlier in the evening. She lost consciousness, became unresponsive, and her physical condition rapidly
deteriorated. A 911 call was placed, after which she was transported by ambulance
to Lafayette General Hospital (Lafayette General).
When L.S. arrived at the Lafayette General Emergency Room in the early
morning hours of December 19, 2010, she was initially in no condition to provide
any information to the medical personnel, and no one accompanying her provided
a history upon which to establish a baseline for diagnosis and treatment. The
medical personnel performed a head-to-toe examination and, in doing so,
discovered the source of her bleeding to be a severe tearing-type injury in the area
of her rectum. Monique Cohen, the duty nurse assisting in the examination,
suggested that she had never before witnessed a patient with this “degree of tearing
around the rectum” and that both the anus and vagina appeared to have significant
tearing. Ms. Cohen also observed that L.S. had multiple areas of abrasions,
including abrasions on both knees, her lower back, and her posterior arms. With
regard to these abrasions, she suggested that “[i]t’s like she had fallen on her knees
or had been pushed down or held down.”
The emergency room physician quickly concluded that the damage suffered
by L.S. would require corrective surgery, and Dr. David Barrios, a Lafayette,
Louisiana general surgeon, was called in to assist in the evaluation and treatment
process. Dr. Barrios first examined L.S. in her hospital room at approximately
6:00 a.m. on December 19, 2010. Because of L.S.’s pain level, Dr. Barrios could
not complete his examination in the hospital room, so he simply moved his patient
into the operating room.
2 Upon further examining L.S., Dr. Barrios observed a significant amount of
blood and torn tissue in the perineum. 3 In attempting to explain the degree of
damage he observed, the doctor suggested that while he had seen many severe
situations during his career, when he first saw the damage to L.S., he had to sit
down because he actually became “weak.” Dr. Barrios then inserted a camera past
the perineum for a laparoscopic view of the intestines, but found no obvious holes.
However, he did observe bruising of the internal structures approximately eight to
ten inches down into the pelvis. He closed the obvious holes in the abdomen and
refocused his efforts on the perineum injuries.
In doing so, Dr. Barrios found a very deep laceration through the anal
sphincter 4 and noticed that the muscles were completely torn in that area. He
described these lacerations as being six to seven centimeters in size and agreed that
the injuries effectively destroyed L.S.’s anus. Further examination revealed two
additional small lacerations further in the anal canal. Dr. Barrios washed these
internal lacerations and closed them with sutures.
L.S. remained in the hospital under Dr. Barrios’ care, and, when the sutures
began to dissolve, it became apparent to the doctor that her wounds were not going
to heal properly. Dr. Barrios then performed an additional surgery creating a
diverting colostomy. He explained that without proper healing of the injured area,
every bowel movement would flood the injured area with bacteria and create a
continuous infection problem. This surgery took place on December 29, 2010.
Sometime later in his treatment of L.S., Dr. Barrios recommended that she seek
additional medical help from a specialist in the area of anal/rectal care.
3 Dr. Barrios described the perineum as the area between the vagina and the anus. 4 Dr. Barrios suggested that the anal sphincter helps to control bowel movements. 3 When L.S. returned to Texas, she followed Dr. Barrios’ advice and
ultimately came under the care of Dr. Rayloff Bailey, whom she described as a
nationally known specialist in anal/rectal surgery. She testified that shortly before
trial, Dr. Bailey performed a form of plastic surgery in an effort to eliminate her
need for the colostomy bag, which was unsuccessful. At the time of trial, she still
was connected to the colostomy bag, and she described what appears to be her
lifetime situation as having her rectum hanging out of her intestines.
Officers of the Lafayette Police Department performed an initial
investigation in the early morning hours of December 19, 2010, and this
investigation resulted in the defendant’s arrest. On February 9, 2011, a Lafayette
Parish Grand Jury indicted the defendant for both aggravated rape and second
degree sexual battery. A jury trial began on July 16, 2012, and the jury ultimately
returned guilty verdicts on both counts. After the trial court sentenced the
defendant, he perfected this appeal, asserting seven assignments of error.
OPINION
The jury convicted the defendant of aggravated rape, a violation of La.R.S.
14:42, and second degree sexual battery, a violation of La.R.S. 14:43.2. As it
applies to this case, La.R.S. 14:42(A) provides that:
Aggravated rape is a rape committed . . . 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 be force.
With regard to the offense of second degree sexual battery, La.R.S. 14:43.2
provides in pertinent part that:
A. Second degree sexual battery is the intentional engaging in any of the following acts with another person when the offender intentionally inflicts serious bodily injury on the victim: 4 (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender[.]
....
B. For purposes of this Section, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty or a substantial risk of death.
The defendant asserts on appeal that no rape occurred. However, with regard to
the sexual-battery conviction, he does not dispute the fact that L.S. sustained her
injuries while he was engaged in an act described in La.R.S. 14:43.2(A)(1).
Six of the seven assignments of error address procedural or evidentiary
issues, which the defendant asserts affected the ultimate outcome of the trial. Only
in the third assignment of error does the defendant challenge the sufficiency of the
evidence presented by the state and then only as to the aggravated-rape conviction.
Because a finding of merit in an assignment of error addressing the sufficiency of
evidence will normally preclude the necessity of considering the remaining
assignments of error pertaining to that offense, we will consider the third
assignment of error first. State v. Hearold, 603 So.2d 731 (La.1992).
Assignment of Error Number Three
The well-settled 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); State v. Captville,
448 So.2d 676, 678 (La.1984)). This standard, generally referred to as the Jackson
standard, is now legislatively embodied in La.Code Crim.P. art. 821. It does not 5 allow the appellate court “to substitute its own appreciation of the evidence for that
of the fact-finder.” State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521
(citing State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165; State v.
Lubrano, 563 So.2d 847, 850 (La.1990)). The factfinder’s role is to weigh the
credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d
1268. Thus, other than insuring the sufficiency evaluation standard of Jackson,
“the appellate court should not second-guess the credibility determination of the
trier of fact,” but rather, it should defer to the rational credibility and evidentiary
determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, p. 4
(La.App. 3 Cir. 9/30/98), 720 So.2d 724, 727).
The defendant bases his argument in this assignment of error on two
assertions: (1) that there exists no evidence of penile penetration, and (2) that L.S.
was too intoxicated to resist to the utmost.
At trial, L.S. testified that her husband forced drinks on her at the reception
and, by the time she left Abacus, she was highly intoxicated.5 After being placed
in the truck, she passed out and, when she regained consciousness, the next thing
she was aware of was that she was sitting in the front seat of the truck with her
husband, who was in front of her, pulling down her underwear. She described
what happened next with the following testimony:
I remember being in the car, the truck, and he’s just in front of me, and he’s pulling my underwear down. And I said, “What are you doing? What are you doing?” And then the next thing I know he starts shoving something inside me. And I’m horrified looking down, and his hand is going up to where I couldn’t -- I could just see to his wrist, I couldn’t see his hand or anything. And I started screaming, “Stop! Stop!” You know, hollering hysterically, “Stop!” And I was
5 This testimony was supported by the testimony of Tassie Flessas, a Spring, Texas resident, and Kenneth Boyles, Jr., a Youngsville, Louisiana resident. Both men attended the reception and testified that they observed the defendant pushing drinks toward L.S. Mr. Flessas described himself as an acquaintance of L.S., and Mr. Boyles, Jr. is her nephew. Mr. Boyles, Jr. also testified that he assisted the intoxicated L.S. into her vehicle when she and the defendant left Abacus. 6 screaming. And I took my feet and tried to scramble back but I was against the seat so I was looking down. I could see to his wrist at that point, and I was trying to push my hands back, but then he grabbed my hands and held them back against the seat. That’s when he hit my nose. And he held them against the seat, and then I just remember I couldn’t look forward to actually see when he put his penis inside. I never saw a penis, but I just saw his hands back here, and his body then going, moving. I was so torn up. I don’t know which private he was in because I just hurt so bad, but I could see his body, just the lower half moving.
When later questioned concerning the defendant penetrating her with his penis, she
responded, “I do not know which one he put it in. I do know he penetrated me. I
could see his body penetrating me. At that time I could not feel. I didn’t have an
anus or vagina anymore. It was almost like one piece. I was ripped up, sir.” With
regard to her resisting her husband’s attack, L.S. testified at one point, “I never had
consensual sex with him, sir. I fought him, I fought him, I screamed at the top of
my lungs. I had my feet on him. I had my hands on him until he grabbed my
hands and pinned them down, I had my back on the seat.” She also stated that in
her past sexual experience with her husband, he was normally unable to achieve an
organism unless he hurt her in some way.
According to L.S., as the defendant’s attack on her continued, she fell in and
out of consciousness. She recalled him telling her at one point to get out of the
truck and, when she failed to immediately respond, he grabbed her hair and she
simply collapsed. Her next recollection was waking up in the hospital and telling
the defendant to leave the room.
The defendant’s version of what occurred on that evening is decidedly
different from that of L.S. According to the defendant, he did not force alcoholic
drinks on her and, although Mr. Boyles, Jr. did assist in getting L.S. into the truck,
she was not nearly as intoxicated as she suggested. In fact, according to the
7 defendant, he talked to her during the drive to the hotel and she responded to his
attempted conversation.
He testified that after he parked the truck in the hotel parking lot, he exited
the truck on the driver’s side 6 and opened the passenger door to help her out.
According to the defendant, when he opened the door, he was met by his wife, who
began kissing and touching him. He responded and, as they continued to kiss and
touch each other, L.S. pulled up her dress, removed her underwear, and spread her
legs apart, placing one leg on the door’s window frame and the other on the rear
door frame. He immediately placed two fingers inside of her anus and began to
masturbate himself with his other hand.
According to the defendant, it was only after he had ejaculated that he
realized something was wrong because he noticed some blood on his hand. Using
some paper towels, he attempted to clean L.S. while at the same time helping her
with her dress. He then moved the truck closer to the hotel entrance and opened
the passenger door for L.S. The defendant testified that despite having reached a
sexual climax, at no time did he place his penis in L.S.’s vagina or anus. By this
time, L.S. had lost consciousness again and was lying outside the truck on the hotel
parking lot.
The evidence concerning what occurred next is also in conflict. Kenneth
Boyles, L.S.’s father, testified that after leaving the reception and returning to the
hotel at approximately 10:00 p.m., he received a telephone call from the defendant
sometime after midnight, asking him to meet him in the hotel lobby. When Mr.
Boyles arrived in the lobby, the defendant told him that L.S. had passed out and
was lying in the hotel parking lot.
6 L.S. testified that he moved directly from the driver’s seat to the passenger seat without exiting the vehicle.
8 When he got to his daughter, Mr. Boyles said that she was lying on her back
next to the family vehicle, bleeding from the nose, and he could not tell whether
she was dead or alive. At about the same time, Chris Morris and his sister7 walked
up. According to Mr. Boyles, when Mr. Morris asked what had happened to L.S.,
the defendant told him that L.S. had passed out drunk and added that this happened
often. Mr. Morris, who is a trained paramedic, checked L.S.’s vital signs and
found her to have a very weak pulse. He further noted that she was unconscious,
unresponsive, clammy to the touch, and very pale in color. He immediately
concluded that she was in serious distress and gave his cellular telephone to his
sister, instructing her to call 911.
Mr. Morris testified that he and Mr. Boyles then carried L.S. to her room in
the hotel and laid her on the bed. At this point, Mr. Morris realized for the first
time that L.S.’s clothes were soaked with blood. He also noticed that some of that
blood had transferred to his shirt as he carried L.S. from the parking lot.
At this point, Mr. Boyles called his son and L.S.’s brother, Dr. Rick Boyles.
Dr. Boyles, a Seabrook, Texas family practice physician, also attended the
wedding and stayed at the hotel. Dr. Boyles testified that the telephone call came
at approximately 2:00 a.m. and that when he arrived at his sister’s room and first
touched her, he thought she was dead. She was ice cold to the touch, unresponsive,
bleeding from the nose, and her face appeared to be swollen. With some difficulty,
he finally found a pulse. Finding his sister is such serious condition, Dr. Boyles
chose not to move her. Instead, he waited for the EMS personnel to arrive. He
questioned the defendant concerning the source of the large amount of blood
present, and the defendant responded that he did not know. When the EMS
7 Mr. Morris and his sister had also attended the reception and were just returning to the hotel, having visited a number of other bars with Mr. Boyles, Jr., after leaving the reception.
9 personnel transported L.S. by ambulance to the hospital, Dr. Boyles and his father
followed in a separate vehicle.
With regard to this phase of events, the defendant had a different version as
well. He testified that Mr. Morris did appear after he moved the truck closer to the
hotel entrance and was attempting to remove L.S. from the truck. Because he was
having difficulty with her lifeless body,8 he asked Mr. Morris for help, telling him
that L.S. was drunk. When Mr. Morris inquired about the bleeding, he told him
that he needed to call her father, and that Mr. Morris should call 911. However,
according to the defendant, Mr. Boyles did not answer his telephone and Mr.
Morris carried L.S. to their hotel room.
Although blood was found on the hotel parking lot approximately two and
one-half to three feet from the truck, the defendant denied that L.S. fell from the
truck. Additionally, he disputed Dr. Boyles statement that he did not examine L.S.
in the hotel room. He suggested that Dr. Boyles was aware of the source of the
blood because he and the defendant had looked up under L.S. and observed a small
tear or gash in the rectal area. 9
After L.S. arrived at the hospital emergency room and had regained
consciousness sufficient to communicate to some degree, Ms. Cohen noted that she
was anxious, tearful, repeating herself, and wondering what was going to happen to
her children. She had a loss of memory and seemed unsure of herself in answering
questions propounded to her. In fact, according to Ms. Cohen, L.S. was not even
sure she was bleeding. When asked whether common sense suggested that L.S.’s
8 He is six feet two inches tall and weighs 170 pounds while his wife is five feet five inches tall and weighs approximately 105 pounds. 9 It is not completely clear from the defendant’s testimony whether he claims this inspection of L.S. occurred in the hotel room or at the hospital. 10 condition exhibited that of “a brutal attack and rape[,]” she responded,
“Absolutely.”
Dr. Boyles testified that when he arrived at the hospital, his sister was
already undergoing a CAT scan of the brain 10 and there still appeared no
established reason for the excessive bleeding. Fearing she would die if the source
of the bleeding was not located and stopped, he again asked the defendant
concerning the source of the blood and received the same answer as before. At this
point, he became so worried about the defendant’s attitude that he instructed his
father to not leave the defendant alone with L.S.
According to Dr. Boyles, he, his father, and the defendant were ultimately
able to join L.S. in her room, and he said that once she regained consciousness and
observed the defendant at the foot of her bed, she became emotional. She looked
at the defendant and said, “Get away from me. I know what you did. You never,
never should have done that. Get away.” When the defendant attempted to place
his hand on her, she said, “Don’t touch me. Get away.” She then told the
emergency room doctor that she did not want the defendant in the room, and the
doctor had him escorted from the hospital.
Thereafter, the defendant was not allowed to see L.S. during her remaining
stay in Lafayette General. In fact, L.S. testified that out of fear for her safety, her
patient registration in the hospital was changed to an alias. Before she could
completely recover from her injuries, her husband had returned to Texas and filed
for a divorce from her. In fact, one of the first things she was faced with when
returning to Texas was a January 27, 2011 court appearance relative to the custody
of her children. She testified that at that time she was still in intense pain.
10 The results of this test ruled out any head injury.
11 The defendant denied that anyone asked him questions concerning the cause
of L.S.’s bleeding at the hotel, and he stated that the first time Dr. Boyles
questioned him was at the hospital. He acknowledged that L.S. told him to leave,
and he complains that he was not given the opportunity to explain anything at the
hospital.
Vaginal and anal swabs taken by Ms. Cohen when L.S. was first brought to
the emergency room, and a number of other evidentiary items recovered by the
police officers involved in the initial investigation were forwarded to the Acadiana
Crime Lab in New Iberia, Louisiana, and made subject to testing by Carolyn
Booker, a forensic DNA analyst. Ms. Booker found that the vaginal swabs
contained both blood and seminal fluids, and, based on her testing procedure, she
concluded that the blood was that of L.S. However, she was not able to recover a
sufficient amount of DNA from the seminal fluids present to establish the
defendant as the donor. She also found evidence of blood and seminal fluids on
the front of the boxer shorts worn by the defendant on the evening of December 18,
2010, as well as on the back inner lining of the dress worn by L.S. The blood, in
both cases, was determined to be that of L.S., and the seminal fluids, in both cases,
was determined to be that of the defendant. Blood found on the right sleeve and
front tail of the shirt worn by the defendant on the evening of December 18, 2010,
was determined to be that of the defendant. The deposit of blood on the right
sleeve extended above the cuff, and the blood on the front of the shirt began from
the bottom of the tail and reached above the lower buttons on the shirt’s placket.
During their initial investigation, Lafayette Police officers took pictures of
the dual-cab truck as well as other items of evidence. A number of the pictures of
the interior of the truck reflect the location of blood stains, with the primary blood
12 deposit being located on the center of the front passenger seat, toward the rear of
the seat.11
The record also contains conflicting expert testimony concerning the cause
of L.S.’s injuries. While L.S. testified to a history of sexual abuse at the hands of
the defendant, the defendant suggested that she was a willing participant in what he
described as “insertion sex.” The defendant testified that he and L.S. began dating
when they were teenagers and began living together when he was seventeen. He
testified that they began having sexual intercourse when they were teenagers and
that L.S. was pregnant when they married. According to the defendant, early in
their sexual activities, they began anal intercourse and, soon thereafter, began
regular experimentation with digital penetration and penetration of L.S.’s anus
with sexual toys and other objects.12
Dr. Barrios did note that L.S. appeared to have been a victim of years of
abuse because of the overall condition of her anal area, but he also concluded that
this chronic abuse would not have caused the “acute injury pattern” he saw in this
case. When questioned whether the insertion of a penis would have caused this
amount of damage, he stated, “A penis wouldn’t cause this injury pattern, I can
guarantee you that.” Additionally, while he recognized that a history of sexual
activity involving the anus could have weakened the anus, he also asserted that it
would not have caused the trauma to the depth he found in this case. When asked
whether a fist could have caused this damage, he stated, “Absolutely, it could.” In
other words, he found that L.S.’ injury did not result from “a chronic history of a
deviate sexual practice.”
11 While the pictures do show some blood on the side of the front seat next to the door, the blood stains on the center of the seat are predominant. 12 The defendant acknowledged using a small souvenir baseball bat on occasion. 13 On the other hand, while acknowledging that L.S.’s injuries are real, Dr.
Steven Darbonne, an emergency room and internal medicine physician who, at the
time of trial, was working at the Iberia Medical Center in New Iberia, Louisiana,
testified for the defendant and concluded that in his medical opinion, the damage to
L.S. was caused solely by the insertion of the defendant’s two fingers. He based
this on the history of the defendant having inserted objects into his wife’s anus,
suggesting that this activity caused her anus to stretch and to become susceptible to
failure from a minor physical contact. He found it hard to believe that a fist could
be inserted in the anus, and he suggested that even if it were possible, the fist
would have to be inserted a little at a time and not as described by L.S.
In contrast to her trial testimony, L.S. had made statements to medical and
law enforcement personnel that did not mention penile insertion. Nothing was said
to Ms. Cohen during the initial evaluation, and, when Dr. Barrios attempted to
obtain a history from her, he found that she was initially too intoxicated to
cooperate. In a later discussion with his patient, she told him that her husband had
forced her to drink and that he had forced something into her anus. However, she
did not mention penile insertion to the doctor.
Detective Covey Menard, of the Lafayette Police Department, obtained his
first statement from L.S. on the morning of December 19, 2010. When he first met
L.S., he recognized that she appeared impaired, but he did not know whether the
level of impairment was alcohol or medically induced. Despite her condition, L.S.
told the detective that the defendant had forced drinks on her at the reception and,
after they left the reception, he inserted his fist into her anus. She stated that she
told him to stop and that she tried to get away, but that the defendant pulled her
back and caused her nose to bleed. The detective specifically asked L.S. if the
14 defendant had penetrated her with his penis, and she responded that he had placed
it in her anus.
Consistent with his normal investigative practice, Detective Menard
obtained a follow up statement from L.S. on December 27, 2010, while she was
still in Lafayette General. Although she was still heavily medicated, L.S. provided
Detective Menard with some additional details of the offense. Specifically,
Detective Menard testified that L.S. told him that sometime after she had been
placed in the vehicle, the defendant started grabbing her and she tried to get away.
She remembered him inserting something in her anus, but was not sure what the
object was. She only recalled that it was inserted deep into her anus and that it
hurt. She told Detective Menard that at some point, she blacked out. When she
came to, she was screaming for him to stop. According to the detective, this time
when questioned concerning the penis insertion, L.S. stated that she thought he
had, but was unsure. She simply did not remember at this point in time. However,
she specifically recalled seeing his bloody shirt cuff.
When questioned concerning the content of her prior statement, L.S. testified
that she remembered very little immediately after the offense and that by time she
made the second statement to Detective Menard, she was still unclear concerning
what was going on. She was afraid for the safety of her children and had been told
that individuals in Texas were already pilfering her personal property. In fact, she
was so fearful of her safety that she was registered in the hospital under an alias.
She did recall that when she spoke to the investigating officer she was still lying in
her own body waste in the hospital bed, but that she remembered little of what she
may have related to the officer.
15 Concerning L.S.’s ability to resist to the utmost, the defendant points out that
her urine-alcohol content when she first arrived at Lafayette General, was .312.13
While no witness directly discussed the effect such a finding would have on
anyone in the general population, much less L.S. individually, Dr. Boyles did
testify that when he was told of his sister’s intoxication level by the emergency
room, he recognized that she “was getting close to a lethal level.” Thus, the
defendant argues, L.S. was too intoxicated to resist to the utmost and, even
assuming a finding of penile insertion, the offense was simple rape and not
aggravated rape.14
The jury obviously believed that the defendant committed anal or vaginal
sexual intercourse with L.S., without her lawful consent, and in a situation where
she resisted to the utmost and where the defendant overcame her resistance by
force. La.R.S. 14:42(A)(1). Viewing all the evidence in the light most favorable
to the state, we find that the jury functioned as a rational trier of fact in finding that
the state proved each of the essential elements of aggravated rape beyond a
reasonable doubt. Leger, 936 So.2d 108.
L.S.’s version of what occurred on the evening of December 18, 2010, is
supported by both testimonial and physical evidence. The blood on the tail and
sleeve of the defendant’s white shirt, the location of the major blood stain in the
truck, the degree of damage suffered by L.S., and the testimony of Dr. Barrios all
13 A blood-alcohol content of .08 is sufficient to convict an individual of operating a vehicle while intoxicated. La.R.S. 14:98(A)(1)(b). However, Dr. Darbonne disputed this finding by the emergency room personnel. He testified that the medical staff at Lafayette General should have taken a blood sample rather than a urine sample. In his experience, a urine sample is not accurate, and a .312 urine sample reading could equate to a blood sample anywhere between .174 and .332. 14 The defendant relies on the definition of simple rape found in La.R.S. 14:43(A)(1), which is a rape without lawful consent “[w]hen the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.” 16 support L.S.’s assertion that the defendant inserted his fist into her anus, and the
jury obviously rejected the defendant’s assertion that the damage was caused by
the insertion of two fingers of his right hand into L.S.’s anus. L.S.’s assertion that
the defendant was directly in front of her in the seat and that he inserted his penis
into her vagina while holding her in place with his fist inserted in her anus is also
supported by the physical evidence. The location of the major blood stain in the
truck discounts the defendant’s claim that he was outside the truck masturbating
while causing his wife massive injury with two fingers or that she was such a
willing participant from the moment he opened the truck door. Furthermore, L.S.’s
version of where she was positioned in the truck is supported by the blood on the
tail of the defendant’s shirt. For that portion of his shirt to have come into contact
with L.S.’s bleeding genital area, the defendant would have had to be directly in
front of her in close proximity and not outside the truck. This same rationale
applies to the fact that the defendant’s boxer shorts came into contact with L.S.’s
bleeding body and that the defendant’s seminal fluids were found mixed with
L.S.’s blood on both the shorts and the inner back lining of her dress. We find no
error in the jury’s obvious determination that penile insertion occurred.
The jury also obviously rejected the defendant’s position that L.S. was too
intoxicated to resist the rape to the utmost. While the defendant relies on the
emergency room urine alcohol-content finding of .312 in this argument, we note
that the defendant disputed her level of intoxication in his own testimony when he
asserted that he and L.S. communicated with each other while traveling from the
reception to the hotel. We also note that the defendant’s own expert testified that
the emergency room finding was inaccurate because it was based on a urine
analysis and that the actual blood alcohol content could have been anywhere
between .174 and .332. 17 With regard to the inconsistent statements made by L.S. within the short
period after the offense, the jury could have considered the degree of trauma she
had suffered, as well as the extent of her permanent injuries, and considered her
trial testimony as being more accurate.
We find no merit in this assignment of error.
Assignment of Error Number One
In this assignment of error, the defendant asserts that the trial court erred in
prohibiting him from introducing videos depicting him and L.S. engaged in
consensual sex acts15 involving the insertion of various objects into her anus or
vagina. At a pretrial hearing held on May 10, 2012, the trial court granted the
state’s motion requesting that the videos not be admitted into evidence.
Louisiana Code of Evidence Article 402 provides, in part, that “[e]vidence
which is not relevant is not admissible.” Additionally, La.Code Evid. art. 403
provides, in part, that even if evidence is found to be relevant, it may be excluded
“if its probative value is substantially outweighed by the danger or unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or waste of time.” At the May 10, 2010 hearing, the trial court first
found that the videos were not relevant “because of the nature of the videos versus
the nature of the alleged act[.]” However, the trial court went further in its reasons
for rejecting the video and seemed to suggest that even if relevant, they would not
meet the balancing test of La.Code Evid. art. 403.
We find no error in the trial court’s ruling. The defendant testified in detail
concerning what he claims was the history of “insertion sex” between him and his
wife, but, as pointed out by the trial court, a history of consensual deviate sexual
15 The defendant refers to these acts as “insertion sex.” 18 activity does not justify an act of nonconsensual activity otherwise defined as a
criminal act. Accordingly, we find no merit in this assignment of error.
Assignment of Error Number Two
In his second assignment of error, the defendant asserts that the trial court
erred in allowing the trial to be “infected with the rampant admission of bad
character evidence.” Specifically, the defendant complains of aspects of the
testimony of L.S., Sergeant Richard Gilbert, Dr. Barrios, and Mr. Boyer. He
asserts that in their testimony, the trial court allowed the admission of evidence of
irrelevant and prejudicial bad acts and other crimes evidence in violation of the
defendant’s state and federal constitutional rights.
With regard to the testimony of L.S., the defendant complains of her
assertions of prior sexual assaults and general abuse. L.S.’s testimony painted a
picture of a controlling and abusive husband who, for the last ten to fourteen years
of their marriage, made every moment of her existence miserable. According to
L.S., the defendant dictated her wardrobe, her social involvement, her involvement
with her children, and even her personal hygiene activities. 16 When anything
occurred of which he disapproved, the response was instant and usually violent.17
While she tried to hold her own in public disagreements, there were always
consequences when she returned home. She testified that acts of rape by her
husband were daily and often multiple and that she chose not to try to leave the
environment out of fear for the safety of her children and her immediate family.
With that background in mind, L.S. testified that the morning of December
18, 2010, was no different from any other day. She woke up to another act of 16 L.S. testified that she was not even allowed to trim her pubic hair. That, she claimed, was done at the discretion of her husband. 17 L.S. described instances where he would cut up clothes that she acquired without his permission, destroyed presents she received from others, and threatened to harm her and the children if she did not obey his every command. 19 involuntary sexual intercourse with her husband and then had to await his return
from having his hair braided before the family could leave their Texas home for
Louisiana. When she expressed a concern that they might be late for the wedding,
he began driving erratically. Her fears for the family’s safety were met with more
erratic driving tactics and, on one occasion, he simply stopped in the middle of the
highway and killed the engine.
L.S. testified that at the reception, the defendant immediately started forcing
her to consume shots of Tequila and began buying rounds for other wedding
guests. She did not want the alcohol, but drank it out of fear that he would cause a
scene and ruin the wedding. At some point during the evening, they became
involved in a dispute with one of the bartenders and would have been thrown out
of Abacus but for Kenneth Boyles, Jr. intervening and talking the manager into
letting them stay.18
The defendant presented substantial testimony in response to these assertions
through the testimony of his brother, Clint Dwayne Stevens; his father, Ted
Dwayne Stevens, Sr.; his aunt, Sharon Rayleene Stevens; and her son-in-law and
daughter, Dennis Mike Berberich, Jr. and Jaci Jo Berberich. All of these witnesses
testified that the defendant was the active parent for the three children and that L.S.
had little to do with the responsibilities associated with raising the children. They
all also denied that the defendant was the dominant figure in the marriage and
strongly suggested that L.S. suffered from either a drinking or substance abuse
problem. While seeming to have no knowledge of what occurred on December 18,
2010, or of the significance of the injuries sustained by L.S., all of these witnesses
18 The testimony of Mr. Boyles, Jr. supported L.S.’s testimony concerning the bartender incident. 20 testified that L.S. openly discussed her sex life with them on a regular basis and
that she usually was the one instigating the conversation.
The defendant even called their thirteen-year-old son to testify against his
mother. The young man provided no information concerning the evening of
December 18, 2010, but suggested that he had seen his mother intoxicated at least
twice per week prior to that time. He never saw his father drive erratically on the
trip from Texas, and he noted that his mother spent the whole time on her cell
phone. While he noted that his parents argued every day, he did not believe that
his father dominated his mother. According to the young man, approximately two
months before the trial, he returned home one afternoon and observed his mother
drinking and smoking “those big long white things.” He went to a friend’s house
and, when he returned later, he found his mother on the floor “passed out, naked,
[and] intoxicated.”
On cross-examination, the young man denied ever seeing his father hit his
mother, but admitted getting between them and holding a knife on his father on one
occasion. He also acknowledged that he had heard his mother crying and
screaming in the past when his “dad was manhandling her.” He also admitted that
he had spent the weekend before trial with his father and stated that he came to
testify “to make sure my father did not go to prison.”
Sergeant Gilbert is a Special Victim’s Unit Investigator with the Sheriff’s
Department in Harris County, Texas. He testified that in November of 2010, he
responded to a 911 call and seized items19 which now constitute evidence against
the defendant in sixty-five Texas sexual-assault complaints, where L.S. is the
19 Sergeant Gilbert described the objects as a baseball bat, bottles, and other similar objects. 21 victim. According to Sergeant Gilbert, at the time of this trial, the defendant had
been arrested on one of the complaints.
The complaint with regard to Dr. Barrios’s testimony is that he was
improperly allowed to testify concerning the medical history he obtained from L.S.
Specifically, the defendant objects to Dr. Barrios relating that portion of the
medical history related to prior injuries she sustained when the defendant placed
objects into her anus.
With regard to the testimony of all of these witnesses, as well as the
testimony of Mr. Boyles, the defendant first asserts that the state failed to provide
him proper pretrial notice of the bad character or other crimes evidence that these
witnesses ultimately testified to and that this failure violated the requirements of
State v. Prieur, 277 So.2d 126 (La.1973). In reviewing the record, however, we
find no Prieur-based objections expressed by the defendant at trial other than a
sidebar complaint during L.S.’s testimony that he had not received proper notice of
the other crimes or bad acts she was testifying to. In response, the state argued that
the defendant had opened the door to such evidence in opening statements when
the defendant’s counsel informed the jury that L.S. had a history of sexual activity
that included the insertion of objects into her anus. “[W]hen a defendant opens the
door to such evidence, Prieur notice is not required.” State v. Marcotte, 01-1586,
p. 13 (La.App. 3 Cir. 5/15/02), 817 So.2d 1245, 1253, writ denied, 02-1687 (La.
2/7/03), 836 So.2d 96. We find no merit in this portion of the defendant’s
assignment of error.
Considering the complaints addressed toward the testimony of L.S., we do
note that the record contains objections voiced by the defendant during her
testimony. However, none of these objections were as to the relevance of the
testimony. With regard to the testimony of Sergeant Gilbert and Dr. Barrios, the 22 defendant voiced no objection to the testimony to which he now complains. In the
case of all three of these witnesses, the defendant failed to preserve these issues for
review on appeal. La.Code Crim.P. art. 841; La.Code Evid. art. 103. Therefore,
we find no merit in these portions of the defendant’s assignments of error.
We do, however, find that the defendant did voice a relevancy objection to a
portion of Mr. Boyles’ testimony. Mr. Boyles testified that the defendant was
dominant in his relationship with L.S. and that when he was around the defendant
and L.S., he observed that L.S. was always required to sit next to the defendant,
wear buttoned-down clothes, only read approved magazines, and ride in the back
seat of the truck. The defendant objected to this line of questioning on the basis of
relevance, and the trial court overruled the objection. When the state renewed this
line of questioning, the defendant requested a sidebar conference outside the
presence of the jury and, at that conference, renewed his relevancy objection. The
trial court again overruled his objection.20
Thus, the defendant preserved only his objection to Mr. Boyles’ testimony
for appellate review. With regard to this issue, the supreme court has explained:
The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is, and has been, such evidence is not admissible to prove the accused committed the charged crime because he has committed other such crimes in the past or to show the probability he committed the crime in question because he is a man of criminal character. State v. Lee, 05-2098, p. 44 (La.1/16/08), 976 So.2d 109, 139; State v. Patza, 3 La. Ann. 512 (1848).
Nevertheless, although evidence of other crimes, wrongs, or acts may not be admitted to prove the accused is a person of criminal character, evidence of other crimes has long been admissible if the state establishes an independent and relevant reason for its admission. See State v. Anderson, 45 La. Ann. 651, 654, 12 So. 737, 738 (1893).
20 The defendant also complains that Mr. Boyles’ testimony concerning the pending divorce was prejudicial, but did not voice a relevancy objection at trial. Thus, he did not preserve this issue for appellate review. La.Code Crim.P. art. 841; La.Code Evid. art. 103. 23 This very principle is embodied in our Code of Evidence at Article 404(B)(1), which provides, in pertinent part:
Except as provided in Article 412 [regarding a victim’s past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
La.Code Evid. art. 404(B)(1). While still prohibiting the state from introducing evidence of other crimes, wrongs, or acts to show a probability the accused committed the charged crime because he is a “bad” person, the rule articulated in Article 404(B)(1) allows admission for other purposes, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La.Code Evid. art. 404(B)(1); Lee, 05-2098 at p. 44, 976 So.2d at 139; State v. Kennedy, 00-1554, p. 5 (La.4/3/01), 803 So.2d 916, 920.
Several other statutory and jurisprudential rules also govern the admissibility of other crimes evidence even when one or more of these permitted purposes is asserted. State v. Miller, 98-0301, pp. 3-4 (La.9/9/98), 718 So.2d 960, 962. Foremost, at least one of the enumerated purposes in Article 404(B)(1) must have substantial relevance independent from showing defendant’s general criminal character in that it tends to prove a material fact genuinely at issue. Lee, 05-2098 at p. 44, 976 So.2d at 139; State v. Moore, 440 So.2d 134, 137 (La.1983).
Moreover, the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. Lee, 05-2098 at p. 44, 976 So.2d at 139; State v. Hatcher, 372 So.2d 1024, 1027 (La.1979). Separate and apart from the showing of relevancy and prejudice, the state must also prove the defendant committed the other acts, Lee, 05- 2098 at p. 44, 976 So.2d at 139, and satisfy the requirements set forth in Prieur, i.e., the state must provide the defendant with notice before trial it intends to offer prior crimes evidence.
Logically, it falls to the trial court in its gatekeeping function to determine the independent relevancy of such evidence and balance its 24 probative value against its prejudicial effect. La.Code Evid. art. 403; Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988). Upon finding such relevance, the court must then balance all the pertinent factors weighing in favor of and against its admissibility. See C. McCormick, Evidence § 190, 768 (6th ed.2006). In this analysis, the court seeks to answer the question: Is this evidence so related to the crime on trial or a material issue or defense therein that, if admitted, its relevancy will outweigh the prejudicial effect, which the defendant will necessarily be burdened with?
The trial court’s answer to this question and its corresponding ruling on the admissibility of the additional other crimes evidence will not be disturbed absent an abuse of discretion, State v. Scales, 93- 2003, pp. 4-5 (La.5/22/95), 655 So.2d 1326, 1330-31, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). Finally, the erroneous admission of other crimes evidence has long been held subject to harmless error review. La.Code Crim. Proc. art. 921; State v. Johnson, 94-1379, pp. 14-15 (La.11/27/95), 664 So.2d 94, 100-01 (errors leading to improper admission of evidence subject to harmless- error analysis; error harmless if verdict “surely unattributable” to error)(quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).
State v. Garcia, 09-1578, pp. 53-55 (La. 11/16/12), 108 So.3d 1, 38-39, cert. denied, __ U.S. __, 133 S.Ct. 2863 (2013) (alteration in original).
In the present case, it is questionable whether this singular reference to the
defendant’s controlling nature had any probative value in this case. It is equally
questionable how much prejudice such evidence generated. As we previously
noted, L.S. sustained significant injuries and the jury heard other potentially
prejudicial “bad acts” evidence which was admitted absent a proper objection by
the defendant. The reference by Mr. Boyles is minor considering the complete
record before us, and we do not find that it was more prejudicial than probative or
that the verdict could be found to be attributable to the admission of this evidence.
The evidence, arising from these offenses, as a whole is of such a grotesque nature
that there is little likelihood that the allegations of the defendant’s controlling
nature contributed significantly to the convictions. We find no merit in this portion
of the defendant’s assignment of error as well.
25 Assignment of Error Number Four
In this assignment of error, the defendant argues that the trial court erred by
denying his motion for mistrial when the state, in its cross examination of his aunt,
referred to the other crimes evidence testified to by Sergeant Gilbert. As
previously noted, the defendant failed to object when the state presented the
testimony of Sergeant Gilbert.
The defendant’s complaint relates to the state’s question to Ms. Stevens
concerning her knowledge of the defendant’s criminal difficulties in Texas.
Specifically, the state asked Ms. Stevens, “Would you be surprised if Houston is
sitting on sixty-five (65) felonies --?” Before the state could finish the question,
the defendant interrupted with an unspecified objection, and the court immediately
sustained the objection. The defendant further asked that the court instruct the jury
to disregard the question, and the court so instructed the jury. The defendant then
moved for a mistrial, and the trial court rejected the motion.
The defendant now asserts on appeal that La.Code Crim.P. art. 770 mandates
a mistrial and that the trial court erred in not granting the motion. However, as this
court has explained in State v. Evins, 626 So.2d 480, 494 (La.App. 3 Cir. 1993),
“under LSA-C.Cr.P. art. 770, a mistrial is mandated solely when the evidence as to
another crime committed or alleged to have been committed by the defendant is
not admissible.” In the present case, the evidence concerning the criminal charges
in Texas had already been admitted without objection. Thus, the trial court did not
err in rejecting the mistrial motion, and we find no merit in this assignment of
error.
Assignment of Error Number Five
In this assignment of error, the defendant asserts that the trial court erred in
admitting double hearsay through the testimony of Dr. Boyles, who was accepted 26 by the trial court as an expert in the field of family medicine. Specifically, the
defendant references Dr. Boyles’ testimony concerning statements made to him by
the emergency room physician.
The defendant complains of Dr. Boyles’ testimony concerning what he was
told by the emergency room physician in response to his question regarding
whether his sister’s injuries arose from consensual activity. According to Dr.
Boyles, the physician told him, “No human could consent to that.” The defendant
voiced no objection to this testimony at trial, and the issue is not preserved for
appeal. La.Code Crim.P. art. 841; La.Code Evid. art. 103. Thus, we find no merit
in this assignment of error.
Assignment of Error Number Six
In his sixth assignment of error, the defendant argues that the state
improperly cross-examined him regarding his post-arrest silence, as prohibited by
Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). Again, when this cross-
examination occurred, the defendant failed to voice a contemporaneous objection.
Furthermore, the defendant failed to object when the state referred to the
defendant’s post-arrest silence during its closing argument. Therefore, this issue
has not been preserved for review. La.Code Crim.P. art 841; La.Code Evid. art.
103. Thus, we find no merit in this assignment of error.
Assignment of Error Number Seven
In this final assignment of error, the defendant argues that his convictions
are unconstitutional, since the jury votes were not unanimous. It does not appear
that the defendant raised this issue below, either by contemporaneous objection or
by pretrial constitutional challenge. Thus, this issue has not been preserved for
review. La.Code Crim. P. art 841; La.Code Evid. art. 103; La.R.S. 13:4448. We
find no merit in this assignment of error. 27 DISPOSITION
For the foregoing reasons, we affirm the defendant’s convictions in all