State of Louisiana v. Timothy G. Falcucci

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-1473

STATE OF LOUISIANA

VERSUS

TIMOTHY G. FALCUCCI

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 105807 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and James T. Genovese, Judges.

AFFIRMED WITH INSTRUCTIONS.

Michael Harson District Attorney, 15th Judicial District Court Michelle S. Billeaud Assistant District Attorney, 15th Judicial District Court P. O. Box 3306 Lafayette, LA 70502-3306 Telephone: (337) 232-5170 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

Mark O. Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 Telephone: (318) 572-5693 COUNSEL FOR: Defendant/Appellant - Timothy G. Falcucci THIBODEAUX, Chief Judge.

The Defendant, Thomas G. Falcucci, appeals his jury conviction of

sexual battery, a violation of La.R.S. 14:43.1, on the basis of insufficiency of the

evidence. The Defendant also asserts that his constitutional right to a complete

record on appeal was violated by the trial court’s failure to order the recording and

transcription of the hearing held during voir dire on his request to “back-strike” a

juror. His claims are meritless and we, therefore, affirm his conviction.

ISSUE

The sole issue is whether the evidence, viewed in a light most favorable

to the prosecution, is sufficient to support a conviction of sexual battery.

FACTS

On December 3, 2004, the victim, an eighteen-year-old female, went to

a hospital following an automobile accident, and diagnostic x-rays were ordered by

the emergency room physician. The Defendant was the x-ray technician on duty at

that time. During the preparation of the victim for a lumbar x-ray, the Defendant

informed the victim that he needed to touch her genitals and insert fingers into her

vagina. Believing that the Defendant needed to touch her in that manner to complete

the x-ray process, the victim complied. The victim became inquisitive of the

necessity of such touching after noticing that the Defendant was not wearing gloves

when he touched and inserted his fingers into her vagina. The victim eventually

discussed the incident with her parents, the incident was reported to the hospital, and

the Defendant was ultimately arrested. LAW AND DISCUSSION

Sufficiency of the Evidence

The Defendant argues that the evidence is insufficient to support a

conviction of sexual battery. More specifically, the Defendant maintains that the

State failed to prove that the alleged touching was done without the victim’s consent.

The Defendant contends that the State did not ask the victim whether or not the

victim consented because, viewed in the light most favorable to the State, the

testimony shows that the victim consented to the touching. The Defendant further

asserts that if the State’s argument is that the victim consented to the touching of her

genitals because she was misled by the Defendant into believing that his actions were

proper medical procedure, then the conviction must be overturned for insufficient

evidence.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

2 Sexual battery is defined in La.R.S. 14:43.1, which reads in pertinent

part:

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, . . .

(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; . . .

The only element of the offense which the Defendant challenges is the

victim’s consent. The Defendant maintains that “[t]he legislature has not created any

exception to allow for a conviction for sexual battery where there was consent, but

the consent was obtained by fraud, artifice or pretense.” The Defendant argues that

for this court to affirm his conviction such an exception would need to be judicially

created. Further, the Defendant contends that such an exception would expose health

care providers to the risk of convictions for sexual battery by a patient who first

consented to the touching of the genitals during a medical exam, but later became

unhappy with the doctor’s technique.

Consent is defined in Blacks Law Dictionary 300 (7th ed. 1999) as an

“[a]greement, approval, or permission as to some act or purpose, esp. given

voluntarily by a competent person.” The factual circumstances militate

overwhelmingly against valid consent by the victim.

The Defendant instructed the victim to remove clothing for the procedure

and invaded the victim’s genitals with his hand and fingers for no known medical

reason. The unrefuted testimony of Mr. Cory James “Jim” Thibodeaux, a certified x-

ray technician; Ms. Linda Tate, a nursing supervisor; and Mr. David Beaugh, the

clinical coordinator of the hospital’s radiology department, indicates that neither the

removal of the victim’s pants and underwear nor the touching of her genitals was a

3 necessary part of the medical procedure that the Defendant was expected to perform

as an x-ray technician. Mr. Thibodeaux stated that clothing is fine during the

procedure as long as there is no metal covering the area being investigated. When

shown the pants the victim was wearing when she was taken to be x-rayed, he

testified that there was nothing on them that would leave an artifact. Thus, she would

not need to remove them. Mr. Thibodeaux concluded his testimony by stating that

he never needs to put his finger into a woman’s vagina or go anywhere near the

vaginal area to manipulate or move her for an x-ray.

Mr. Beaugh stated that he has performed thousands of lumbar spinal x-

rays during his twenty-one years in the radiology business and that he has never heard

of putting a finger into the vagina to manipulate the body and align the x-ray machine

for that particular procedure. He added that he has never seen it or read it in a book,

and he has never done that to take an x-ray. According to Mr. Beaugh, it is not

necessary to go anywhere near the vaginal area to get a lumbar spine x-ray.

It was not necessary for the victim to remove her clothes, nor did the

procedure ever necessitate the touching of the victim’s genitals. Clearly, the

Defendant did not properly perform the lumbar spine x-ray. The testimony of the

victim indicates that she did not voluntarily consent to, agree to, approve of, or give

permission to the Defendant to sexually violate her during the performance of the

lumbar spinal x-ray.

The victim testified that she took it for granted that the Defendant’s

actions were part of the procedure and that she was supposed to be able to trust him.

She thought he was just doing his job. The victim explained that she was raised to

trust medical professionals, that she did not know the difference between an x-ray

4 technician and a physician at that time, that she was only eighteen years old, and that

she had just moved out of her parents’ home.

During the victim’s cross-examination, the defense attempted to discredit

the victim’s testimony by comparing her testimony at trial to her testimony in a

deposition taken in a civil matter filed against both the hospital and the Defendant.

However, the discrepancies were very minor and had little to do with her consent to

the lumbar x-ray procedure. The Defendant also focused on the victim’s delay in

reporting the incident until the following day. The victim, however, consistently

testified that she did not initially question his actions, trusting him as a medical

professional. After taking a little time to process what had transpired that evening,

the eighteen-year-old victim spoke with her mother the next morning, less than

twenty-four hours after the incident. This delay was a very small window of time for

a woman her age. Within a twenty-four-hour period, all of the pertinent hospital

officials had been advised of the incident. Further, she promptly reported to the

Lafayette police station less than forty-eight hours following the alleged incident.

The victim consented to a properly conducted lumbar spinal x-ray which,

according to the testimony at trial, did not require the touching of the victim’s

genitals. Although she complied with the Defendant’s instructions, believing that his

actions were necessary for the procedure, she clearly did not have the requisite

knowledge of the proper procedure. As such, her lack of knowledge and the

Defendant’s fraudulent representations vitiated any “implied” consent on the victim’s

part when she did not question the Defendant during the procedure or rush to accuse

him that evening of improperly touching her. Accordingly, the Defendant has not

shown that the victim consented to the x-ray procedure as performed by the

Defendant.

5 Supplemental Assignment of Error

The Defendant argues that the trial court’s failure to record and

transcribe a pre-trial hearing on the Defendant’s request to “back-strike” a juror

during voir dire violated his constitutional right to have a complete record on appeal.

We disagree. The record indicates that on December 17, 2007, the Defendant filed a

Motion to Suspend Briefing and to Supplement the Record, seeking an order from

this court to instruct the trial court to supplement the record with the transcript of the

October 17, 2006 hearing and ruling on the Defendant’s right to “back-strike,” or to

certify that a transcript of the hearing was not available.

In response to the Defendant’s motion, an order was issued by this court

on December 19, 2007, instructing the court reporter to transcribe the portion of jury

selection on October 17, 2006, that corresponded to the following excerpt from the

minutes:

DEFENSE COUNSEL QUESTIONED THE COURT AS TO THE PROCEDURE FOR BACKSTRIKING AND PRESENTED ARGUMENTS. AFTER GIVING REASONS, THE COURT INDICATED THAT BACKSTRIKING WILL NOT BE ALLOWED.

On January 17, 2008, a supplemental record was received by this court. Contained

therein is a certificate from a court reporter, Joan B. Molbert, C.C.R., indicating that

she had no notes or tape recording of the excerpt that was requested.

In his supplemental brief, the Defendant contends that without a

complete record, this court cannot fully review the record for constitutional or patent

errors. According to the Defendant, the missing transcript involved a hearing on

defense counsel’s request to “back-strike” prospective jurors tentatively on the panel.

The Defendant asserts that La.Code Crim.P. art. 795 provides for “back-striking” or

strike backs of prospective jurors by a defendant and that a juror temporarily accepted

6 and sworn pursuant to La.Code Crim.P. art. 788 may still be challenged peremptorily

prior to the swearing of the panel in accordance with La.Code Crim.P. art. 790, citing

State v. Watts, 579 So.2d 931 (La.1991) and State v. Taylor, 93-2201 (La. 2/28/96),

669 So.2d 364. As such, the Defendant contends that the right to peremptorily

exempt jurors from the panel was critical to his case when faced with “thin and

contradictory evidence.”

The State, on the other hand, maintains that the record is complete,

containing the transcription of the entire voir dire process. Additionally, the State

asserts that both parties had used all of their respective peremptory challenges with

the first panel of prospective jurors and that five jurors were selected from that panel.

Thus, the sixth and alternate jurors needed to be selected from the second panel. The

State maintains that since neither side had any remaining peremptory challenges, the

next prospective juror would be seated as a juror unless successfully challenged for

cause by either party. During the voir dire process of the second panel, the State

notes that the Defendant did not object to the trial court’s prior determination of no

“back-strikes,” nor did the Defendant request or move to allow “back-strikes.”

Finally, the State contends that the only juror that the Defendant was not happy with

was Trooper Flynn, the last juror seated. The State avers that at that time, the

Defendant had no remaining peremptory challenges and “back-striking” would have

been impossible.

With regard to the Defendant’s complaint that the record is void of a

hearing on “back-striking,” the State contends that the Defendant made only an

inquiry regarding “back-striking,” as indicated in the minutes. More specifically, the

State explains that after both parties questioned the potential jurors, counsel for both

parties joined the trial judge in the jury deliberation room to go through challenges.

7 After allowing challenges for cause, but prior to beginning the jury selection process,

the Defendant inquired as to the trial court’s position on “back-striking.” The State

asserts that the Defendant did not move to “back-strike” and that there was no

argument by either party. The trial judge simply advised that he was not inclined to

allow “back-striking.”

According to the State, neither party objected, and both sides accepted

the trial court’s position on the issue, which is supported by the minutes. There is no

mention of either side objecting to the trial court’s ruling. Because the Defendant

failed to object to the trial court’s ruling regarding “back-striking” at the time the

decision was made, or at any time during the voir dire process or trial, the State

argues that the alleged error was waived pursuant to La.Code Crim.P. art. 841. The

State asserts that without an objection from either party the trial court had no reason

to review or revisit its decision regarding “back-striking.” Finally, the State

maintains that although the Defendant has a right to employ “back-strikes” under

La.Code Crim.P. art. 795(B)(1), the erroneous denial of that right is subject to the

harmless error analysis.

The minutes in the record of October 17, 2006 reflect that prior to voir

dire, the trial court was presented with motions in limine by both the State and the

Defendant, and that following arguments, both motions were granted. No other

motions were taken up at that time. Next, the record indicates that the twenty-one

prospective jurors were seated and questioned. Next, outside the presence of the jury,

the trial court considered the challenges for cause wherein the State challenged four

jurors, three of which were granted and one denied.

The transcript indicates that a brief recess was taken. The minute entry

at issue was recorded after the State’s challenges for cause. However, the minutes do

8 not indicate whether the Defendant’s question regarding “back-striking” occurred

before or after the parties began making peremptory challenges as there are no minute

entries regarding the peremptory challenges that correspond to the transcript. The

transcript shows that following a recess, the parties began making peremptory

challenges until five jurors were chosen. There is, however, no record of the

discussion regarding “back-striking” at any time during the challenging of the

prospective jurors.

The State is correct in its assertion that both parties had used all of their

peremptory challenges at that time and that two more jurors were still needed. Also,

there were no objections by either party at that point as to any of the jurors selected

or to any of the trial court’s rulings regarding challenges for cause.

According to the transcript and minutes, the jurors were returned to the

courtroom, and the trial court announced the names of the five jurors chosen. The

selected jurors were sworn in and then escorted out of the court room. The trial court

addressed the remaining jury panel and then recessed for lunch. After the lunch

recess, the second panel of potential jurors was seated and questioned. The

prospective jurors were removed from the courtroom, and the Defendant asserted the

first challenge for cause against juror Flynn, a state trooper. Mr. Flynn was returned

to the courtroom for additional questioning regarding his relationship with a State’s

witness, a detective involved in the case. The trial court then denied the Defendant’s

challenge for cause, and the Defendant noted his objection for the record to the trial

court’s ruling. Thus, Mr. Flynn became the sixth member of the jury, and the

alternate chosen was the next person on the list that was not challenged. The minutes

and the transcript indicate that there were no other objections made by the Defendant

during voir dire.

9 In support of his argument, the Defendant refers this court to State v.

Pinion, 06-2346 (La. 10/26/07), 968 So.2d 131, where the supreme court held that the

court reporter’s failure to adequately record the bench conferences in which the state

and defendant made challenges for cause and exercised their peremptory challenges

prejudiced the defendant’s appeal. This case, however, is distinguishable from

Pinion. Here, the court reporter recorded the entire voir dire with the exception of the

portion where the Defendant inquires about the trial court’s procedure for “back-

striking.” Thus, the omission does not demonstrate prejudice as in Pinion. But the

minutes in question do not indicate that the Defendant was exercising a challenge for

cause or a peremptory challenge. Thus, there is no challenge omitted from the

transcript. Further, the transcript of the voir dire thoroughly covers both the State and

the Defendant’s challenges for cause and peremptory challenges, and that coverage

is not disputed by the Defendant.

In a recent case, State v. Williams, 06-1327 (La.App. 4 Cir. 1/23/08),

___ So.2d ___, the fourth circuit held that the defendant was not prejudiced on appeal

by the lack of transcription of in-chamber portions of the jury voir dire in the record.

The court reasoned that the record contained detailed jury sheets that indicated the

peremptory strikes for each party as well as the jurors who ultimately served on the

jury or whom the defendant had to excuse peremptorily. Likewise, in this case, the

Defendant has not shown how the unrecorded portion of the in-chamber conversation

between defense counsel and the trial judge during voir dire has prejudiced his case

on appeal. There is no indication in the voir dire transcript or in the record that the

Defendant moved that the trial court allow “back-striking” or attempted to “back-

strike” a particular juror. Additionally, there is no indication in the minutes or

transcript that the Defendant objected to the trial court’s inclination to disallow

10 “back-striking.” Simply put, the Defendant did not reserve his right to appeal the trial

court’s decision to disallow “back-striking” by objecting, as required by La.Code

Crim.P. art. 841, despite the Defendant’s assertion that jury selection was critical to

his case. Further, had the Defendant filed a motion asking the trial court to allow

“back-striking,” and the trial court denied the motion, then the Defendant would be

required to object at the time of the trial court’s ruling to preserve his right of review

on appeal.

There is no dispute that the voir dire transcript does not include any

discussion with regard to “back-striking.” However, as noted above, the minutes

indicate that the Defendant questioned the trial court as to the procedure for “back-

striking,” but did not file a motion asking that the trial court allow “back-striking.”

Also, there is no formal motion to “back-strike” in the record, nor does the record

reflect that the Defendant sought to challenge any particular juror using a “back-

strike.” Additionally, the minutes do not reflect that the Defendant objected to the

trial court’s decision to disallow “back-striking” at the time the discussion was had,

nor does the voir dire transcript reflect an objection with regard to the prohibition of

“back-striking” at any time during the voir dire process. Accordingly, the Defendant

was not prejudiced by the unrecorded portion of the transcript. This assignment of

error is without merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find one error

patent.

The court minutes do not reflect that the Defendant was properly advised

of the time limitation for filing an application for post-conviction relief. In reviewing

11 the sentencing transcript to determine whether the Defendant was advised of this

information, we conclude that the Defendant was incorrectly advised by the trial court

of the time limitation as follows:

Pursuant to Louisiana Code of Criminal Procedure Article 930.8, no Application for Post-Conviction Relief shall be included if it is done out of time of appeal. So you shall - - you must do so within a two year period of time of the judgment of conviction and then the sentences become final.

According to La.Code Crim.P. art. 930.8, an application for post-

conviction relief must be filed within two years after the judgment of conviction and

sentence has become final. Thus, the trial court is directed to inform the Defendant

of the correct provisions of Article 930.8 by sending appropriate written notice to the

Defendant within ten days of the rendition of this opinion and to file written proof

that the Defendant received the notice in the record of the proceedings. State v. Roe,

05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06),

924 So.2d 163.

CONCLUSION

The Defendant’s conviction is affirmed. The trial court is instructed to

inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to the Defendant within ten days of the rendition of this

opinion and to file written proof that the Defendant received the notice in the record

of these proceedings.