STATE OF LOUISIANA NO. 20-KA-181
VERSUS FIFTH CIRCUIT
ANTHONY L. LANE COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-5760, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
January 27, 2021
MARC E. JOHNSON JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS TO CORRECT UNIFORM COMMITMENT ORDER (UCO) AND APRIL 16, 2020 MINUTE ENTRY MEJ SMC JJM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Gail D. Schlosser Laura S. Schneidau
COUNSEL FOR DEFENDANT/APPELLANT, ANTHONY L. LANE Prentice L. White JOHNSON, J.
Defendant, A.L., seeks review of the Twenty-Fourth Judicial District Court’s
judgment finding Defendant guilty of two counts of indecent behavior with a
juvenile in violation of La. R.S. 14:81.1 Defendant was sentenced to six years with
the Department of Corrections at hard labor for each count, to be served
consecutively. Defendant was also required to register as a sex offender pursuant
to La. R.S. 15:544. Defendant alleges that the evidence presented by the State
during the two-day trial was insufficient to support his convictions. For the
following reasons, we affirm the trial court’s ruling.
FACTS AND PROCEDURAL HISTORY
On November 3, 2017, a bill of information charging Defendant with one
count of indecent behavior with a juvenile, “Beth” (D.O.B. 10/29/1999), in
violation of La. R.S. 14:81. Defendant pled not guilty at his arraignment four days
later. The State filed a superseding bill of information on July 13, 2018, charging
Defendant with two counts of indecent behavior with a juvenile (D.O.B.
10/29/1999 and D.O.B. 11/22/1998) in violation of La. R.S. 14:81. Defendant pled
not guilty at his second arraignment on December 8, 2018.
Trial commenced on February 10, 2020, and a six-person jury unanimously
found Defendant guilty the next day. Defendant’s Motion to Suppress Statement
was denied on February 20, 2020. Defendant’s motions for new trial and for post-
verdict judgment of acquittal were also denied, and on March 16, 2020, Defendant
was sentenced to six years imprisonment at hard labor for each count of indecent
behavior with a juvenile, to be served consecutively, after waiving sentencing
delays. The trial court also advised Defendant of his obligation to register as a sex
1 Pursuant to La. R.S. 46:1844(W)(3), we will refer to Defendant in the case by his initials and use pseudonyms to identify the victims and their family members. State v. Gibson, 09-486 (La. App. 5 Cir. 3/9/10); 38 So.3d 373, 375, writ denied, 10-802 (La. 11/5/10); 50 So.3d 814; see also State v. Myles, 04- 677 (La. App. 5 Cir. 1/25/05); 894 So.2d 515, 528.
20-KA-181 1 offender and provided Defendant with a written copy of the sex offender
notification requirements. Defendant’s timely motion for appeal was granted on
March 30, 2020, but his motion to reconsider sentence was denied on April 23,
2020.
At trial, “Mary”, the victims’ aunt, testified that she and her nieces, with
whom she visited weekly, enjoyed a close relationship. However, “Anne” secretly
joined the military after her high school graduation. “Mary” was “very shocked”
by the decision because “Anne” had been accepted to L.S.U. “Mary” recalled that
“Beth” visited her at work on September 5, 2017, and the pair sat and talked in
“Mary”’s car. During that conversation, “Beth” explained to “Mary” why her
sister “Anne” joined the military. “Mary” recalled that “Beth”’s demeanor
changed and “Beth” started to cry as she told her aunt that “Anne” was running
away from Defendant, their father. “Beth” was 17 years old when she disclosed to
her aunt that she and her sister had been abused. “Beth” asked “Mary” to keep the
information a secret. Later, “Beth” gave “Mary” permission to tell “Nancy”,
“Mary”’s sister and the girls’ mother, about their conversation. “Mary” went to
“Nancy”’s job to tell her about her visit with “Beth” and then the sisters went to
“Nancy”’s house in Metairie, where “Mary” called 911 to inform the police. The
State offered, filed, introduced and published the 911 call before playing the video
tape in open court.
“Mary” described “Anne” and “Beth” as “good girls” who listen to their
parents and “don’t cause them no problems” or get into trouble. “Mary” did not
know about any marital problems between her sister and Defendant or an incident
in 2015 where the police were called out to the home. Defendant and “Mary”’s
sister “Nancy” had dated since “Mary” was 15 years old. According to “Mary”,
Defendant was not a normal, doting father; “he was just there.” She never saw
Defendant do anything inappropriate, and the girls loved their father. Her nieces
20-KA-181 2 were not allowed to date or have boys over to the home. Although “Mary” read
text messages between “Beth” and “Anne”, she did not see the text messages
between “Anne” and Defendant, but testified “[“Beth”] told [her] that “Anne”
didn’t go to college because [Defendant] texted “Anne” and said [‘]I don’t care
where you gone, I’m always going to find you[’] and that’s why [“Anne”] joined
the Army and left.” After Defendant went to jail, “Nancy” moved into “Mary”’s
home.
“Nancy”, Defendant’s wife and the victim’s mother, confirmed that her
sister “Mary” visited her at work and informed her of her younger daughter’s
disclosure on September 6, 2017. She and Defendant had been married for fifteen
or sixteen years. “Nancy” explained that the family had lived in the apartment on
Populus2 since 2012. She and Defendant were separated at times while living on
Populus, and Defendant was not always in the home. The family also lived on
May, at one point, and stayed with family whenever they were evicted. The only
time “Anne” had her own room was the first time the family lived on Populus.
When “Anne” and “Beth” were around nine or ten years old, the family stayed on
Hedera. “Nancy” described her daughters as “wonderful kids” and sweet, and
added that “Anne” is “strong like me.”
In 2017, “Nancy” worked at a day care and a chemical plant and also went
to school full-time. She left the home at 2:15 a.m. in the morning and Defendant
would be responsible for the children. On September 6, 2017, “Mary” went to
“Nancy”’s job and told her that they had to go home because something happened.
“Nancy” spoke to “Beth” at the house and “Nancy” recalled that “Beth” had tears
in her eyes and was crying. “Nancy” testified that “Beth” said that “her dad had
been touching her. Her dad had been coming in her room and touching her.”
“Nancy” agreed with the decision to call the police. When the police arrived, they
2 All street names of the victims’ addresses have been changed to protect their privacy. See note 1, supra.
20-KA-181 3 spoke to “Beth” privately. “Anne” had been gone for approximately three weeks
before her sister’s disclosure. “Nancy”’s efforts to find “Anne” were unsuccessful
but she suspected “Anne” went to the military because she had found a packing list
in her laundry. “Nancy” remembered that “Anne” was in ROTC in school, but
stated that it was not “Anne”’s lifelong dream to enter the military. Before “Anne”
left, “Nancy” felt that the girls had become a little withdrawn. “Anne” refused to
give her father a ride to work once and “Beth” was very quiet and had a crying
spell approximately a month before the disclosure was made. “Nancy” gave
“Anne”’s phone to the police in April 2018 in hopes that it would contain evidence
of communications between Defendant and the victims. “Nancy” testified that she
did not know a lot about phones, but her husband fixed and repaired phones if any
family member’s phone broke or was not working properly.
“Nancy” explained that her whole family saw her children a lot but she did
not share details about the state of her marriage because she is a private person and
her sister “talks too much.” Defendant drank and worked at a club when the girls
were eleven and twelve years old. “Nancy” admitted that she and Defendant
argued a lot, and “Anne” got in the middle of a physical fight between them once.
The girls were not allowed to date or entertain boys in the home. “Nancy” also
testified that the girls had jobs and paid their own phone bills. “Nancy” never
learned specific details about the abuse. She asked her daughters about the
disclosures, but respected their privacy when they chose not to respond.
Detective Kerstin (Mcabee) Henderson began her career in law enforcement
in 2007. In 2017, she worked in the personal violence unit of Jefferson Parish
Sheriff’s Office (JPSO). She responded to the call at 2535 Populus on September
6, 2017. Det. Henderson recalled that “Beth” was shy and not forthcoming, but
“Beth” was able to describe past incidents that Det. Henderson discerned were
criminal in nature. “Beth” was 17 years old at the time of the initial interview,
20-KA-181 4 which she recorded. “Beth” told her that the abuse began around sixth or seventh
grade and the last incident was around ninth grade. “Beth” told the detective that
she did not witness abuse of any other victims, but she did talk to her sister,
“Anne” about the abuse. “Beth” told Det. Henderson that the abuse took place at
2535 Populus and also on May Avenue, a previous residence.
Det. Henderson also interviewed “Beth”’s aunt and mother. “Beth”’s aunt,
“Mary”, confirmed the circumstances of the initial disclosure. “Beth”’s mother,
“Nancy”, told Det. Henderson that she did not have prior knowledge of the abuse,
but she did recall an earlier incident where her older daughter “Anne” ran out of
the house because she was upset about something that happened inside. Det.
Henderson testified that there were no child custody issues in the home at the time
the disclosure was made.
After speaking with “Beth” and her aunt and mother, Det. Henderson met
with Defendant at the JPSO Criminal Investigations Bureau. The entirety of her
contact and conversation with Defendant was recorded. A redacted version of the
video, that the State and the defense stipulated to as including all relevant portions
of Defendant’s statement, was played in open court. Det. Henderson testified that
she advised Defendant of his Miranda rights. The form she used to assist her with
advising Defendant of his rights was also admitted into the record as evidence.
After taking Defendant’s statement, Det. Henderson applied for an arrest warrant
charging Defendant with sexual battery and indecent behavior with a juvenile.
“Beth” was the only victim at the time; Det. Henderson had not made contact with
“Anne”, who lived out-of-state, at that time.
Det. Henderson also interviewed the girls’ younger sister who did not make
any disclosure but informed the detective that “Anne” asked her, before she left, if
her father ever did anything to her. Det. Henderson eventually made contact with
“Anne” after continuous attempts, but “Anne”’s mother had provided her with
20-KA-181 5 “Anne”’s cell phone in the meantime. “Beth”, and later “Anne”, told Det.
Henderson about inappropriate text message conversations between “Anne” and
Defendant. Det. Henderson made arrangements for “Anne” to be interviewed by
the Killeen (TX) Police Department and for the interview to be recorded. Det.
Henderson subsequently received a written statement and a video/audio recorded
statement. After reviewing “Anne”’s written and video statements, Det.
Henderson obtained a second arrest warrant for sexual battery and indecent
behavior with a juvenile on May 30, 2018.
Det. Henderson testified that, through those statements, “Anne” disclosed
incidents of abuse began when she was in fourth grade and continued until she was
17 years old. “Anne” disclosed that her father touched her on her vagina and
exposed himself to her. Det. Henderson was unable to interview Defendant a
second time before he was released. Det. Henderson requested a digital forensic
search of “Anne”’s phone. She received a report from Solomon Burke, a digital
forensic examiner. Det. Henderson testified that there was no physical evidence
because of the delayed reporting, and that delayed reporting regarding child or
juvenile disclosures of sexual abuse was common.
JPSO Sgt. Solomon Burke was the commander of the digital forensics unit.
The parties stipulated that Sgt. Burke was an expert in the field of mobile device
forensics. Sgt. Burke prepared a JusticeTrax report after attempting to examine
“Anne”’s Apple iPhone. Sgt. Burke recalled that he was unable to exam the phone
because a factory reset had been performed and an exam would only yield the
factory settings on the device and no usable data. Sgt. Burke explained that the
phone could be reset from the phone itself, or remotely by sending a signal from
iTunes or your cellular service carrier with authorization. Sgt. Burke testified that
a factory reset, or wipe, deletes all the information the apps on the phone
previously contained. Sgt. Burke said that Photo Vault is an app designed to hide
20-KA-181 6 images by labeling them with a proprietary file extension so the images are hidden
unless someone is able to gain access to the app – those images are not stored in
the gallery.
“Beth” testified that her birthday was October 29, 1999 and she lived with
her mother and sixteen-year-old sister while working and preparing to continue her
education. In September of 2017, “Beth” recalled that she was seventeen years
old and a senior at Grace King High School and she worked at a fast food
restaurant. “Beth” recalled that her sister “Anne” called her from the airport to say
goodbye and to let her know that she was leaving to join the military. “Beth” did
not tell her mother where her sister was going because she did not want her mother
to tell their father where her older sister was. “Anne” texted “Beth” and described
texts that “Anne” received from their father that said that he would try to find
“Anne” when she went away to college and that he was in love with “Anne”.
“Beth” did not remember if she saw the text messages “Anne” described.
“Beth” recalled going to visit her aunt at her job after she spoke to her sister.
“Beth”’s Aunt “Mary” began to question her about “Anne” and whether she was in
communication with her sister and why “Anne” left “out of the blue.” “Beth”
further testified:
And I was telling her, like, that, like, why -- she was asking why she didn't tell my momma and my daddy. And [“Anne”] and my momma don't really, like, -- they're not that close and they don't communicate. And I was, like, it doesn't matter that she didn't tell my dad because, like, they, like, it's not like, I said it was none of his business that she didn't tell him. And she was, like, what do you mean? And I was, like, you know, you don't know, like, you don't understand. And she was, like, you know, like, you know, what you mean? And I was, like -- and she was, like, touched? And I was, like, yeah.
20-KA-181 7 “Beth” recalled that her aunt was crying during her disclosure and “Beth”
asked her aunt not to say anything because she did not want to “mess up the
family.” The next day, “Beth” said her aunt told her that she could not keep her
disclosure a secret and that she would tell “Beth”’s mother. “Beth” saw her mother
at home, at 2535 Populus, after her aunt told her mother about her disclosure.
“Beth” said that “Nancy” asked her why “Beth” did not tell her what was
happening. “Beth” responded, “Like, it kind of just came out.”
“Beth” described the first incident of abuse that took place at the family’s
apartment on May. She said that her father was sleeping in her little sister’s bed
because he had gotten into an argument with her mother. She woke up and jumped
when she felt what she discovered was her father rubbing her vagina on the outside
of her clothes. She said that her father was next to her in the twin bed at that point
and he pretended to be asleep. “Beth” went into her mother’s room and sat on the
bed but did not say anything. She returned to her room and her father was still
laying down. “Beth” also recounted another time on May where she was watching
TV on the couch with Defendant and her sister “Anne”, and Defendant exposed his
penis and stared at her.
“Beth” also remembered a time on Populus when she was in the eighth or
ninth grade. She had a new pink bed but was waiting on a new mattress. She said
that she woke up to Defendant stroking her vagina and trying to put his hand
through the leg opening of her panties towards her crotch from the floor where he
had been laying down. “Beth” told her sister “Anne” about the incident as she
cried the next morning. She also told “Anne” about what happened at their
residence on May, and “Anne” confided to her that it happened to “Anne” also.
“Beth” also recalled an incident near Halloween where Defendant admitted to
spiking her water bottle after she asked him about it because its contents tasted
different after she left to shower. “Beth” had seen Defendant “crushing up pills,
20-KA-181 8 like, sleeping pills” earlier that day. “Beth” mentioned that she had taken sleeping
pills before “because she had some problems.” She thought that her father had
spiked her drink with alcohol.
“Beth” testified about another time on Populus where Defendant tried to
touch her through a blanket while she was discussing with him why she and
“Nancy” were fussing at one another earlier that day. “Beth” confirmed that she
and her sister were not allowed to date and that she loved her father, but she did
not make the allegations up to get her father out of the house. She said that she
would also receive “creepy” text messages from Defendant to turn the TV off and
unlock the door, which she would keep locked “because he [would] come into the
room.”
“Anne”’s birthday was November 22, 1998 and she was 21 years old at the
time of the trial. During high school, she worked at Wendy’s, Taco Bell, another
restaurant, and Walgreens. She used the money she earned to pay her phone bill,
car note and insurance. “Anne” testified that joining the military was not her
lifelong dream; she wanted to go to college. “Anne” participated in ROTC to
avoid taking gym class. “Anne” recalled that, just before graduation, she received
text messages from her father, while they were both at home in different rooms,
that read that “he was in love with [her] and wherever [she] was going, he was
coming with [her].” She deleted that message and subsequent messages Defendant
sent as she received them. She took screenshots of the messages, but deleted them
“because [she] was embarrassed. It was inappropriate.” “Anne” also feared others
would discover what was happening. She deleted the screenshots from her iCloud
and downloaded then to an app. She did not remember the name of the app but
testified that the app was locked and a password had to be used to access the app.
She mentioned that she had to block Defendant from her phone, but he had
multiple phones and changed numbers frequently. She also said that she received
20-KA-181 9 emails from her father at some point. “Anne” said that around 2:00 or 3:00 in the
morning, for months, Defendant would sit in the dark and stare at their bedroom
door. She said that if they came out he would ask if they were looking for
something, or if they needed him. Defendant said that she and her father never had
a close relationship, that he “creep[sic] [her] out” and that he did not participate in
their school activities. “Anne” observed her father drinking in the past but she had
never seen him drunk.
On the stand, “Anne” identified the iPhone 6 she took with her to basic
training. She recalled that it did not function reliably before she left home, but by
the time she left home the phone had died. “Anne” explained that the iPhone could
be reset by factory reset, or by wiping the phone using your iCloud login. She also
stated that she was the only person who knew her iCloud password. She tried to
get the phone repaired but the vendor was not successful – she did give the
repairman her iCloud password, but she could not say whether he was able to
perform a factory reset. “Anne” purchased a new phone that same day.
“Anne” also testified that her parents had a lot of arguments, and that she
called 911 once and the police came to the house at least once. She said that
furniture was broken during fights and holes were punched in the walls. “Anne”
mentioned that her parents did not allow them to date or have any friends visit
them at home.
“Anne” joined the military the same day she went to speak to the recruiter.
She said that the military was “the only way to guarantee that I could be, like
independent and not struggle and not have to come back home[.]” She spoke to an
area detective some months after joining the military. She testified that the first
instance of abuse she remembered occurred when she was in fourth grade at the
family’s apartment on Hedera in Metairie. “Anne” said that Defendant “caressed
her private area” and touched her vagina with his finger while giving her a
20-KA-181 10 piggyback ride up the stairs. “Anne” described laying at the foot of her parents’
bed before her mother had to leave for work at the plant around 2:00 or 3:00 a.m.
She recalled one time attempting to leave and being told to stay and inching away
slowing and getting in the bed with her little sister and “wrapping [her] legs around
her so he wouldn’t take her.”
When “Anne” had her own room on Populus Avenue she would hear
someone playing with the door in the middle of the night. She said Defendant
would use his nail or a coin to unlock the door, but if she woke up, he would just
close the door and leave. “Anne” described setting “booby traps” behind the door
so she could remain asleep. “Anne” also would lock her door because Defendant
touched them inappropriately. She mentioned Defendant sticking his hands in
their shirts and grabbing their breasts while play fighting. She said that this
happened at least three times when she and her sister just started wearing bras and
before they stopped playing with their father because “it wasn’t worth it.”
“Anne” testified that the family had been evicted from their home a lot and
her parents also separated several times. While living at the apartment on May,
“Anne” recalled Defendant faking arguments with their mother so he could sleep
in one of their beds. “Beth” asked to sleep in “Anne”’s bed once because
Defendant had touched her one night. “Anne” described another incident where
her father caressed her vagina but she woke up immediately and he pretended to be
asleep. “Anne” testified that the next day her father left money in her drawer for
$120 shoes he knew she wanted even though her mother said “no” the day before
because all the family had was bill money. “Anne” gave the money to her mom
for shoes, but her mother used the money for bills. “Anne” did not tell her mother
what was going on after this incident because she was embarrassed and scared.
“Anne” said she did tell “Beth” “it happened to me” when “Beth” told her about
the abuse she had experienced, but the sisters did not share details. Also, once
20-KA-181 11 while they were at the house on May, “Beth” told “Anne” that Defendant “pulled
his private area out” while they were watching TV in the living room. “Anne” told
“Beth” to come in their room and lock the door until their mother returned home.
“Anne” said that the girls mostly stayed with their grandmother while the family
lived on May.
When the family lived on Populus the second time, the sisters kept their door
locked all of the time. One night, “Anne” woke up to find her sister “Beth” crying
after Defendant crawled into the room and touched “Beth”. “Anne” recalled
another incident where she observed her naked father in the shower bathing
because the bathroom door was wide open. She said that Defendant looked “dead
at [her]” before she left the house. She said that her father got dressed and came
after her, screaming her name and asking her what she was doing. “Anne” recalled
telling him to leave her alone and stop following her. “Anne” waited in the car for
30 minutes, until her mother came back. “Anne” and her sister attempted to tell
their mother about this particular incident, but their mother was half-asleep.
After “Anne” testified, the trial judge confirmed that Defendant understood
his rights and chose not to testify. The judge then charged the jury with
instructions. On March 16, 2020, the court noted that a jury had unanimously
convicted A.L. and concluded that the facts and evidence supported his convictions
before denying Defendant’s post-trial motions (Motion for a New Trial and Motion
for Post-Verdict Judgment of Acquittal to challenge sufficiency of the evidence).
The State also read a victim impact statement that “Nancy” wrote on behalf of
herself and her daughters before the district court sentenced Defendant to six years
commitment with the Department of Corrections at hard labor for each count of
indecent behavior with a juvenile, to be served consecutively.
20-KA-181 12 ASSIGNMENT OF ERROR
Defendant alleges that the evidence presented at trial was insufficient to
support his conviction on two counts of indecent behavior with a juvenile in
violation of La. R.S. 14:81. Defendant notes that the allegations against him
surfaced years after the last alleged incident of abuse took place. Defendant urges
the district court committed reversible error when it accepted the jury’s guilty
verdict, despite there being no physical evidence, eyewitnesses, or prior
documentation of the alleged incidents and prays this court set aside his felony
convictions.
LAW AND DISCUSSION
In reviewing the sufficiency of the evidence, an appellate court must
determine if the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements of the crime have been proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979); State v. Mickel, 09-953 (La. App. 5 Cir. 5/11/10); 41
So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11); 52 So.3d 885; State v.
Ordonez, 16-619 (La. App. 5 Cir. 3/15/17); 215 So.3d 473, 477. This directive
that the evidence be viewed in the light most favorable to the prosecution
requires the reviewing court to defer to the actual trier of fact’s rational
credibility calls, evidence weighing, and inference drawing. State v. Clifton,
17-538 (La. App. 5 Cir. 5/23/18); 248 So.3d 691, 702. This deference to the
fact-finder does not permit a reviewing court to decide whether it believes a
witness or whether the conviction is contrary to the weight of the evidence.
State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ
denied, 09-1305 (La. 2/5/10); 27 So.3d 297. Further, a reviewing court errs by
substituting its appreciation of the evidence and the credibility of witnesses for
20-KA-181 13 that of the fact-finder and overturning a verdict on the basis of an exculpatory
hypothesis of innocence presented to, and rationally rejected by, the jury. State
v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13); 128 So.3d 515, 531, writ denied,
13-2793 (La. 5/16/14); 139 So.3d 1024 (citing State v. Calloway, 07-2306 (La.
1/21/09); 1 So.3d 417, 418). As a result, under the Jackson standard, a review
of the record for sufficiency of the evidence does not require the reviewing
court to determine whether the evidence at trial established guilt beyond a
reasonable doubt but whether, upon review of the whole record, any rational
trier of fact would have found guilt beyond a reasonable doubt. See State v.
Jones, 08-20 (La. App. 5 Cir. 4/15/08); 985 So.2d 234, 240.
In its determination of whether any rational trier of fact would have found
the defendant guilty, a reviewing court will not re-evaluate the credibility of
witnesses or re-weigh the evidence. See Caffrey, supra. The resolution of
conflicting testimony rests solely with the trier of fact, who may accept or
reject, in whole or in part, the testimony of any witness. See State v. Bailey, 04-
85 (La. App. 5 Cir. 5/26/04); 875 So.2d 949, 955, writ denied, 04-1605 (La.
11/15/04); 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163
L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or
irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. State v. Dixon,
07-915 (La. App. 5 Cir. 3/11/08); 982 So.2d 146, 153, writ denied, 08-987 (La.
1/30/09); 999 So.2d 745. The victim’s testimony alone can be sufficient to
establish the elements of a sexual offense, even when the State does not
introduce medical, scientific, or physical evidence to prove the commission of
the offense. State v. Lestrick, 13-289 (La. App. 5 Cir. 10/9/13); 128 So.3d 421,
430, writ denied, 13-2643 (La. 4/25/14); 138 So.3d 643; see also Dixon, supra
20-KA-181 14 at 153; see also State v. Bruce, 14-877 (La. App. 5 Cir. 3/25/15); 169 So.3d
671, 675, writ denied, 15-833 (La. 3/4/16); 187 So.3d 1007.
The jury found Defendant guilty of indecent behavior with a juvenile
(D.O.B 10/29/1999) in violation of La. R.S. 14:81 (count one) and indecent
behavior with a juvenile (D.O.B 11/22/1998) in violation of La. R.S. 14:81
(count two). Indecent behavior with a juvenile is defined, in pertinent part, as:
A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person;
(1) Any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. Lack of knowledge of the child’s age shall not be a defense;
La. R.S. 14:81.
Accordingly, to convict a defendant of indecent behavior with a juvenile
under La. R.S. 14:81, the State must prove that (1) there was an age difference
of greater than two years between the accused and the victim, who was not yet
seventeen; (2) the accused committed a lewd or lascivious act upon the person
or in the presence of a child; and (3) that the accused intended to arouse or
gratify either his own or the victim’s sexual desires. State v. Battaglia, 03-692
(La. App. 5 Cir. 11/25/03); 861 So.2d 704, 708, writ denied, 04-1701 (La.
4/29/05); 901 So.2d 1058. A lewd or lascivious act has been defined as “one
which tends to excite lust and to deprave the moral with respect to sexual
relations and which is obscene, indecent, and related to sexual impurity or
incontinence carried on in a wanton manner.” State v. Shokr, 16-337 (La. App.
5 Cir. 2/8/17); 212 So.3d 1212, 1216, writ denied, 17-589 (La. 12/15/17); 231
So.3d 638 (citing State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06); 934 So.2d
280, 291, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154). Additionally, the
statute’s definition of a lewd and lascivious act “encompasses not only the
20-KA-181 15 physical touching of the victim in an indecent manner, but also ‘indecent sexual
displays in the presence of children under the age of seventeen.’” Id. (citing
State v. Interiano, 03-1760 (La. 2/13/04); 868 So.2d 9, 15). In determining
whether an act is lewd or lascivious, the trier of fact must consider the time, the
place, and all of the circumstances surrounding its commission, including the
actual or implied intention of the actor. State v. Domangue, 12-760 (La. App. 5
Cir. 5/23/13); 119 So.3d 690, 695 (citing State v. Sturdivant, 27,680
(La. App. 2 Cir. 2/28/96); 669 So.2d 654, 659).
Indecent behavior with a juvenile is a specific intent crime for which the
State must prove the offender’s intent to arouse or gratify his sexual desires by
his actions involving a child. State v. Borden, 07-396 (La. App. 5 Cir. 5/27/08);
986 So.2d 158, 166, writ denied, 08-1528 (La. 3/4/09); 3 So.3d 470. Specific
intent to commit indecent behavior with a juvenile need not be proved as fact,
but may be inferred from the circumstances and actions of the defendant.
Domangue, 119 So.3d at 696.
Upon review of the record, we find that the evidence the State presented at
trial established each element of the offenses for which Defendant was
convicted. “Anne” and “Beth” testified as to acts committed by Defendant that
constitute indecent behavior with a juvenile. “Anne” testified regarding separate
incidents that occurred at various addresses. First, she testified that when she
was in fourth grade and living at the Hedera address, Defendant touched her
vagina through her clothes while giving her a “piggyback ride” up the stairs.
Next, “Anne” testified that, on at least three different occasions, Defendant
touched her inappropriately while they were “play fighting” by putting his hands
in her shirt and grabbing her breast at the family’s home on Populus. Finally,
“Anne” testified that, at the May address when she probably was in seventh
grade, Defendant entered her room while she was asleep and “caressed” her
20-KA-181 16 vagina. “Anne” also testified that Defendant once intentionally exposed himself
in the shower and stared at her while she was watching television. Defendant
then chased after “Anne” and screamed her name after she ran outside.
“Beth” also testified at trial about separate incidents that occurred at the
family’s various homes. She testified that the abuse began when she was in sixth
grade. She shared a bedroom with her sisters at the May address. “Beth”
recalled waking up one night to Defendant rubbing the top of her vagina, outside
of her clothing. “Beth” described another incident where Defendant exposed his
penis and watched her while she was lying on the couch in the living room and
they were watching television. “Beth” also testified that, when she was in eighth
or ninth grade and the family lived at the Populus address, Defendant “stroked”
her vagina while she was asleep and she woke up when Defendant attempted to
put his hand in her underwear. “Beth” testified that “Anne” was also asleep in
the room when this happened and that she told “Anne” about the incident the next
morning.
“Anne” and “Beth” testified that they were born in 1998 and 1999,
respectively, and the incidents mostly occurred when they were in grade school
and middle school. The bills of information, minute entries, and uniform
commitment order show that Defendant was born in 1978. Therefore, the state
also established that the victims were under the age of seventeen at the time the
incidents took place and Defendant, their father, was more than two years their
senior.
As previously discussed, the victim’s testimony alone is sufficient to
establish the elements of a sexual offense. See Clifton, 248 So.3d at 703.
“Anne” and “Beth”’s testimony was sufficient to establish Defendant’s actions
were lewd and lascivious acts. See Domangue, 119 So.3d at 696 (finding that
defendant’s actions constituted a lewd and lascivious act where victim testified
20-KA-181 17 that defendant touched her on her private part, which she described as her
“bottom parts,” both underneath and on top of her clothing, on five or more
occasions); State v. Bahm, 490 So.2d 384, 388 (La. App. 5th Cir. 1986) (finding
a victim’s testimony that the defendant had rubbed her genitals, inserted his
finger into her vagina, touched her breasts, and exposed his penis to her fifty to
sixty times over a three-year period, and the testimony of the thirteen-year-old
victim that the defendant had twice exposed his penis to her, were sufficient to
show that the defendant committed lewd and lascivious acts upon the person
and/or in the presence of the victims); State v. Mallette, 15-1131 (La. App. 3 Cir.
6/8/16); 193 So.3d 603, 632, writ denied, 16-1301 (La. 6/16/17); 221 So.3d 837
(finding the defendant’s act of touching the victim’s vagina over and under her
clothing with his hand constituted lewd and lascivious acts).
In addition, the requisite element of specific intent to arouse or gratify the
sexual desires of either person may be inferred from the circumstances and the
action of the offender. See State v. Blanchard, 00-1147 (La. 4/20/01), 786 So.2d
701. Here, the circumstances indicate that Defendant entered “Anne” and
“Beth”’s bedroom on separate occasions and then touched their genitals through
their clothing as they slept. “Beth” testified that Defendant did this to her on two
separate occasions. During one of these incidents, “Beth” woke up because
Defendant attempted to put his hand beneath her underwear. “Anne” testified
that Defendant touched her vagina with his finger while giving her a “piggyback
ride.” She also recalled defendant sticking his hands in her shirt and grabbing
her breast through her bra on three occasions. Defendant’s repeated touching of
“Anne” and “Beth” indicate that his actions were not accidental but lewd and
lascivious acts performed with the specific intent to arouse or gratify his sexual
desires.
20-KA-181 18 We find that the evidence was sufficient for the jury to infer that
Defendant intended to arouse his sexual desire by committing these intentional
sexual acts. See State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12); 102 So.3d
801, 811-12, writ denied, 12-1694 (La. 2/22/13); 108 So.3d 763. Similarly, in
Lirette, we found that the defendant had requisite intent to arouse or gratify
himself based on the victim’s testimony that the defendant woke her up when he
was moving her legs, rubbed her, squeezed her “butt,” and touched her vagina.
Also, in State v. Lestrick, 128 So.3d at 435, this Court found that the State
proved, beyond a reasonable doubt, the defendant, who inserted (or attempted to
insert) his fingers just inside the waistband of one victim and rubbed a second
victim’s chest and vagina on top of her clothes was guilty of two counts of
indecent behavior with a juvenile. The Court found that the defendant’s
activities of “lying on the bed with two juveniles half his age [and his repeated
touching of victims indicated] that his actions were not accidental, but rather
were lewd and lascivious acts performed with the specific intent to arouse or
gratify his sexual desires.”
On appeal, Defendant asserts that “Anne” and “Beth”’s allegations were
uncorroborated. He points out that neither victim witnessed the other being
abused, although a few of the alleged incidents occurred in a shared bedroom
when all three were present. Defendant further asserts that “Anne” and “Beth”’s
allegations are unsupported by any physical, scientific, or eyewitness accounts.
However, the testimony of a victim need not be corroborated to support a
conviction. See State v. Ordonez, 215 So.3d, at 478. It is well-settled that a
victim’s testimony alone can be sufficient to establish the elements of a sexual
offense, even when the State does not introduce medical, scientific, or physical
evidence to prove the commission of the offense. Bruce, supra.
20-KA-181 19 Further, “Anne”’s testimony corroborated “Beth”’s testimony and vice
versa. Both “Anne” and “Beth” testified that the other was asleep when
Defendant touched them in their shared bedroom at the May address. “Anne”
testified that around this time, “Beth” asked to sleep in her bed because
Defendant had touched her. “Anne” recalled that “Beth” immediately told her
that Defendant exposed his penis to her. Also, “Anne” and “Beth” testified that
they would move items in front of their door at night to alert them if and when
Defendant attempted to enter their bedroom.
The State also presented the testimony of other witnesses whose testimony
was consistent with that of the victims. “Nancy” recalled entering “Anne” and
“Beth”’s room and finding items blocking their door. “Nancy” also testified that
one evening she found “Anne” sitting outside and crying and “Anne” told her that
Defendant was “standing there naked.” Detective Henderson also testified that
“Nancy” told her about this incident with “Anne”.
At trial, Defendant’s statement was played for the jury, and he denied
touching his daughters. In reaching a verdict, the jury made a credibility
determination. Again, the trier of fact is free to accept or reject, in whole or in
part, the testimony of any witness, and, in this case, the jury accepted the State
witnesses’ version of events. Further, where there is conflicting testimony about
factual matters, the resolution of which depends upon a determination of the
credibility of witnesses, the matter is one of the weight of the evidence, not its
sufficiency. State v. McClure, 14-253 (La. App. 5 Cir. 3/11/15); 169 So.3d 510,
522, writ denied, 15-684 (La. 2/26/16); 187 So.3d 468. An appellate court’s
function is not to re-determine the defendant’s guilt or innocence based on its
appreciation of the facts and credibility of the witnesses. State v. Hidalgo, 20-89
(La. App. 5 Cir. 3/18/20); 293 So.3d 780, 785.
20-KA-181 20 In the instant matter, the jury heard all of the testimony, viewed all of the
evidence presented at trial, and found Defendant guilty. We find no internal
contradiction or irreconcilable conflict within “Anne” and “Beth”’s testimony, or
between their testimony and that of the other witnesses. Viewing the evidence in
a light most favorable to the State, we find Defendant’s assignment of error is
without merit, a rational trier of fact could have found Defendant guilty beyond a
reasonable doubt of two counts of indecent behavior with a juvenile, and the
evidence is sufficient to support Defendant’s convictions.
ERRORS PATENT
The record was reviewed for errors patent, pursuant to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). The following errors were noted.
Trial commenced before a six-person jury on February 10, 2020. On that
same date, the State amended the superseding bill of information regarding the
dates of the offenses on counts one and two. The State amended the offense date
range on count one from on or between January 1, 2012 and December 31, 2016,
to on or between January 1, 2012 and October 29, 2016 as to count one. The
State amended the offense date range on count two from on or between January
1, 2009 and July 31, 2017, to on or between January 1, 2009 and November 22,
2015. The amendments to the end dates for the windows the abuse occurred
were amended to correspond with the victims’ seventeenth birthdays. The
amendments were done by hand and the amended bill of information was signed
and dated “February 10, 2020” by an assistant district attorney. It is unclear
from the record whether the indictment was amended before or after the trial
began.
The amendment of indictments and bills of information is regulated by La.
C.Cr.P. art. 487(A):
20-KA-181 21 An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance. The date or time of the commission of an offense need not be alleged in the
indictment, unless the date or time is essential to the offense. La. C.Cr.P. art.
468. Further, the date and time of the offenses are not essential elements of the
offense of indecent behavior with a juvenile. See Lirette, 102 So.3d at 811; State
v. Lyles, 03-141 (La. App. 5 Cir. 9/16/03); 858 So.2d. 35, 44 (“The date and time
of the offenses are not essential elements of the offense of indecent behavior with
a juvenile [La. R.S. 14:81] and, therefore, a bill of information which does not
reflect the date and time of the offense is not insufficient.”). A mistake reflecting
the date for which the offense occurred has been held to be such a defect of form
when not essential to the offense. State v. Dye, 384 So.2d 420, 422 (La. 1980);
See State v. Lawson, 393 So.2d 1260, 1263 (La. 1981). Therefore, we find that
the amendment of the date of the violation of La. R.S. 14:81 alleged in the bill of
information was a defect as to form, not a defect of substance, and, pursuant to
La. C.Cr.P. 487(A), the trial court had the authority to allow the amendment at
any time.
We also note that the record does not show that Defendant was re-
arraigned after the State amended the superseding bill of information on February
10, 2020. The purpose of an arraignment is to inform the defendant of the
substance of the crime he is charged with. La. C.Cr.P. art. 551. A re-
arraignment is only required after amendment of a bill of information if the
20-KA-181 22 substance of the charge is changed. State v. Tillery, 14-429 (La. App. 5 Cir.
12/16/14); 167 So.3d 15, 23-24, writ denied, 15-106 (La. 11/06/15), 180 So.3d
306 (finding that a defendant is not entitled to re-arraignment on an amended
indictment when changes to the indictment do not alter the nature of the crime).
Again, we find the amendments regarding the dates of the offenses did not alter
the substance of the charges against Defendant; so, it was not necessary for
Defendant to be re-arraigned. Further, Defendant entered into trial without
objecting to proceeding before he was re-arraigned, thereby waiving his
objection; Defendant is considered to have pled not guilty. See La. C.Cr.P. art.
555.
Also, there are discrepancies between the sentencing minute entries and the
transcript in this case. The minute entry dated April 16, 2020 corrected the
previous minute entry, which did not reflect the victim impact statement read into
the record at sentencing. However, that minute entry does not reflect the offense
date ranges as amended by the February 10, 2020 bill of information. See State v.
Daniels, 18-307 (La. App. 5 Cir. 6/11/19); 275 So.3d 380, 401 (citing State v.
Lyons, 13-564 (La. App. 5 Cir. 1/31/14); 134 So.3d 36, writ denied, 14-0481 (La.
11/7/14); 152 So.3d 170). Also, the Uniform Commitment Order (UCO) does not
include the entire offense date range as to counts one and two.
Last, although the record reflects the trial court advised Defendant on the
record that he was required to comply with the sex offender
notification/registration requirements and provided Defendant with a written
copy of those requirements, we note that the Uniform Commitment Order
(UCO) does not include as a “Sentence Condition” pre-printed on the form that
Defendant shall comply with the Sex Offender Registration statute under the
provisions of La. C.Cr.P. art. 895 and La. R.S. 15:541, et seq. However, the
20-KA-181 23 advisal is noted in the sentencing minute entry and we will remand the matter
for the trial court to correct the UCO.
DECREE
Based on the foregoing, Defendant’s convictions and sentences are affirmed.
The case is remanded with instructions to the trial court to correct the UCO to
include the entire date range of the offenses as to counts one and two and add a
sentence condition ordering Defendant to comply with the Sex Offender
Registration statute, and also correct the April 16, 2020 minute entry to include the
offense date ranges provided by the February 10, 2020 amended bill of
information.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS TO CORRECT UNIFORM COMMITMENT ORDER (UCO) AND APRIL 16, 2020 MINUTE ENTRY
20-KA-181 24 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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20-KA-181 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE) GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) PRENTICE L. WHITE (APPELLANT)
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