State v. Abbott

697 So. 2d 636, 1997 WL 333800
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
Docket29497-KA
StatusPublished
Cited by14 cases

This text of 697 So. 2d 636 (State v. Abbott) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abbott, 697 So. 2d 636, 1997 WL 333800 (La. Ct. App. 1997).

Opinion

697 So.2d 636 (1997)

STATE of Louisiana, Appellee,
v.
Richard Dean ABBOTT, Appellant.

No. 29497-KA.

Court of Appeal of Louisiana, Second Circuit.

June 18, 1997.

*637 J. Edward Patton, II, Lavalle B. Salomon, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, Jimmy White, Assistant District Attorney, for Appellee.

Before HIGHTOWER, BROWN and CARAWAY, JJ.

BROWN, Judge.

Defendant, Richard Dean Abbott, was indicted for the aggravated rape of his nine-year-old stepdaughter. The original indictment alleged that the rape occurred on December 4, 1993; however, an amended indictment changed the date of the crime to reflect the incident's occurrence between June 1 — December 8, 1993. A jury found defendant guilty as charged and he was sentenced as statutorily mandated to life at hard labor without benefit of parole, probation or suspension. Defendant appeals, urging numerous assignments of error. For the reasons set forth below, we affirm.

Facts

On the evening of December 8, 1993, defendant's nine-year-old stepdaughter disclosed to her mother and her babysitter, Cynthia Garrett, that defendant had touched her in her privates. This revelation occurred after defendant had moved out of the family home three days earlier on December 5. Mrs. Abbott testified that she did not ask her daughter for specific details at that time but immediately left her house and went to find and confront her husband. Mrs. Abbott found defendant at the home of his best friend, Joel Clark. Mrs. Abbott told defendant that the child had told her what he had done and that she was going to the police. Mrs. Abbott did not divulge any details and defendant did not ask what he was accused of doing. Defendant had Joel Clark drive him to defendant's mother's house. According to *638 Mr. Clark, defendant acted "paranoid," accusing Clark of purposely driving slow so that the police would be able to catch them.

Too upset to drive, Mrs. Abbott was picked up from a friend's house by a West Monroe police officer and taken to the police station.[1] After Mrs. Abbott reported her daughter's allegations, she was taken home. Mrs. Abbott then drove her daughter and Mrs. Garrett to the Ouachita Cottage, a police safe house for abused children. It was there that the child was interviewed by Officer Tom Zeigler.

The interview with the child was videotaped through a two-way mirror. The child related that defendant had taken off her clothing and touched her privates and breasts with his fingers and had put his privates (penis) into her privates (vagina).

On December 10, 1993, the victim was examined by Dr. Meade O'Boyle, a pediatric specialist in sexual abuse. Dr. O'Boyle found no hymen enlargement; however, she discovered that the child's hymen was not intact, indicating that something had gone through the hymenal ring. Dr. O'Boyle also found two vaginal scars. From these findings, Dr. O'Boyle concluded that the injuries were consistent with the child's account of sexual abuse.

Defendant did not contest the findings of Dr. O'Boyle; however, he and his witnesses testified that twin boys living next door forcibly inserted a stick into the victim's vagina in the summer of 1993. The boys were the children of Mrs. Abbott's neighbors and babysitters, Cynthia and Larry Garrett.

Although the victim had not revealed the incident to either Dr. O'Boyle or the police, she testified at trial that one of the Garrett boys "poked at her privates" with a stick. She was wearing either shorts or a bathing suit at the time, and she was unable to say when this incident occurred.

At trial, Mrs. Abbott denied knowledge of the incident with the Garrett boys. Defense witnesses, however, claimed that the mother was told, but that she took no action. Mrs. Garrett likewise denied any prior knowledge of the incident.

At trial, which was held on May 4-6, 1996, more than two and one-half years after the investigation began, the victim was not able to remember some specific details of the molestation, including when it occurred. She did testify that when her mother was at work, her stepfather took off both of their clothes and touched her between her legs with his hands and his privacy. She stated that when defendant tried to put his privacy in her privacy, she told him to stop because it hurt. According to the victim, defendant told her that he would hurt her if she told anybody and he promised to buy her a computer.

The victim testified that her brothers were playing in the yard when the incident occurred. Afterwards, she put on her clothes and went outside to play. She did not tell her brothers what defendant had done, nor did she tell her mother until after defendant had moved out of the house.

The victim stated that the incident occurred on a weekend when the defendant had a day off. Although the amended indictment alleged that the crime occurred between June 1 and December 8, 1993, the state claims that the particular incident occurred on Saturday, December 4, 1993. Defendant told the investigating detective, Brent Chappell, that on December 4, he was alone with the children and that they had played outside most of the day. Defendant's friend, Joel Clark, stated that he remembered that defendant babysat the children on the Saturday after Thanksgiving 1993.

Larry Garrett, the Abbott's neighbor, testified that he noticed at some time between Thanksgiving and Christmas 1993 that the victim's two younger brothers were playing in the backyard without her. He believed that Mrs. Abbott was at work that day and that defendant was at home with the children. This was the second time that he had seen the younger boys playing without their sister, and he was concerned. Mr. Garrett stated that he went to the Abbotts' back door to look for the victim. He knocked on the door and got no answer, even though he *639 knew defendant and the victim were somewhere in the house. He quietly entered the house, looked down the hall and saw defendant laying in bed with his eyes open. Mr. Garrett was unable to see or hear the victim. Feeling uncomfortable, Mr. Garrett left the house without speaking or being seen. Later that day, after Mrs. Abbott came home from work, Mr. Garrett finally saw the victim. Within a week of this occurrence, Mr. Garrett recalled that the victim reported that defendant had molested her.

Mrs. Abbott lived with defendant off and on for approximately nine years before they separated in December 1993. According to Mrs. Abbott, defendant rarely babysat the children.[2] Mrs. Abbott was unclear concerning where she was on December 4. Her employment records showed that she took sick leave on this day to recuperate from dental surgery.

After a three day trial, the jury, in a 10 to 2 verdict, found defendant guilty as charged.[3] The trial court sentenced defendant to life imprisonment. Defendant has appealed his conviction and sentence.

Discussion

Sufficiency of the Evidence

Sexual intercourse without lawful consent is rape. La. R.S. 14:41 (A). Aggravated rape includes anal or vaginal intercourse deemed to be without lawful consent because the victim is under the age of twelve years. La. R.S. 14:42 (A)(4). Any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime. La. R.S. 14:41 (B)

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
697 So. 2d 636, 1997 WL 333800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abbott-lactapp-1997.