State v. Alphonso

496 So. 2d 1113, 1986 La. App. LEXIS 7743
CourtLouisiana Court of Appeal
DecidedOctober 9, 1986
DocketNo. KA-5279
StatusPublished
Cited by2 cases

This text of 496 So. 2d 1113 (State v. Alphonso) 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. Alphonso, 496 So. 2d 1113, 1986 La. App. LEXIS 7743 (La. Ct. App. 1986).

Opinion

CIACCIO, Judge.

By unanimous vote, a twelve-member jury found defendant guilty of having violated La.R.S. 14:89.1, Aggravated Crime [1115]*1115Against Nature. Defendant appeals on the basis of five assignments of error. Finding no merit to these assignments, and finding no errors upon inspection of the pleadings and proceedings, we affirm.

By his first assignment of error defendant complains that “the test for competency as a witness was inconclusive before swearing in the victim.” At the time of the crime the victim was nine years old. When she testified at trial, her eleventh birthday was four days away.

La.R.S. 15:469 provides:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

At trial defendant did not object concerning the victim’s competency as a witness. Nevertheless, the trial judge satisfied himself concerning the victim’s competency by discussing with her, prior to swearing her as a witness, the nature of the act of testifying and her obligation to tell the truth. During his examination of the victim the prosecutor questioned her regarding her understanding of truth and falsity and the necessity that she tell the truth. During the trial no one voiced even the slightest concern over the victim’s competency as a witness. Our review of her testimony has raised no question concerning her competency.

The trial judge did not err in the manner by which he satisfied himself of the victim’s competency as a witness. Defendant did not object to the trial judge’s finding of competency, and has not provided any reason for this court to question that finding. This assignment of error has no merit.

By his second assignment of error defendant challenges the sufficiency of the evidence. At the time of the crime defendant was married to the victim’s mother. He is not the victim’s father. The victim testified that one evening when her mother had gone to play bingo, defendant, who had remained home to care for the children, awakened her from her bed and requested that she join him in his bedroom to watch television. Once in his bedroom, defendant turned off the lights and told the victim that he was going to hypnotize her. He then told the victim to kneel on the floor beside the bed, to close her eyes and open her mouth; he was going to have her do something “nasty” that her mother sometimes did for him. The victim protested that it better not be a “french kiss.” Defendant placed his penis in the victim’s mouth. He moved his penis in and out of the victim’s mouth while also stroking it with his hand for what the victim says was ten to fifteen minutes during which time his originally flacid penis achieved an erection. The victim said that defendant did not ejaculate, but that when he removed his penis from her mouth he wiped it on the bed covers. Several minutes later she says that she began to choke because he had tried to shove his penis down her throat.

Using her limited vocabulary the victim testified to the above-recounted events. She went on to say that the defendant told her not to tell her mother and then gave her some money. She testified that when this incident occurred she was nine years old. Other testimony established that at that time defendant was a man in his mid-twenties.

Shortly after this incident the victim’s mother and defendant separated, although not because of this incident as the victim had not yet revealed it to her mother. The mother took the children and went to Tennessee. During this trip the victim revealed the incident first to her older sister and then to her mother. When they returned some months later, the victim’s mother contacted the local authorities.

Defendant testified denying the incident occurred and claiming that it was a story concocted by the mother and her boyfriend to prevent defendant from seeking custody of his two children born of his marriage to the victim’s mother. He also presented the [1116]*1116testimony of his brother, his sister, and a friend of his sister, that the victim had stated that the story was a lie which she told at the request of her mother and her mother’s boyfriend. The sister’s friend said, however, that the victim stated only that she did not want to testify, not that the story was untrue.

The defense also attempted to establish the existence of a continuing, relatively close relationship between the defendant and the victim, and the victim’s mother, and the other children.

The jury heard all of this evidence. Obviously, the jury was called upon to evaluate the credibility of the various witnesses. From the verdict of guilty as charged it is clear that the jury believed the victim.

On appeal in criminal cases appellate courts do not review facts. Appellate courts do, however, consider the sufficiency of the evidence as a question of law. Applying the appropriate standard for appellate review of the sufficiency of the evidence, we find that viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found every essential element of the crime of aggravated crime against nature to have been proved beyond a reasonable doubt. We hold, therefore, that the evidence is sufficient to sustain defendant’s conviction.

To support his assignments of errors numbers 3 and 4 defendant argues that “the court erred in failing to allow defense counsel to impeach the testimony of [the victim’s mother].” At trial defense counsel questioned defendant’s brother as to whether defendant and the victim’s mother had lived together during any time after defendant’s arrest on these charges. Defendant’s brother answered, “Oh, yes.” The prosecutor objected, questioning the relevancy of this information. Defense counsel responded:

Your Honor, the purpose of the testimony is to show that the party, the defendant and the mother of the child have had contact, have been in association with each other after the alleged date to show that the mother has in effect, has been a dominant force in this entire matter.

The judge sustained the prosecutor’s objection, after which defense counsel asked no more questions of the witness.

Initially we note that the question to which the prosecutor objected was answered by the witness. Regardless of the court’s ruling, therefore, defendant had already elicited the information sought. Defense counsel took exception to the court’s ruling, but he asked no more questions of the witness. Since the only question asked was answered, there remains nothing for this court to review. Defendant asked no questions which remained unanswered. Further, additional information along the line of questioning concerning the post-arrest relationship between defendant and the victim’s mother was elicited from defendant when he testified.

Additionally, defense counsel’s argument for the information’s admissibility in the trial court was not founded upon impeachment as is the argument made to this court. As can be seen from counsel’s argument quoted above, he argued that the information was relevant to establish the victim’s mother’s dominance over the situation and the parties involved.

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Related

State v. Anderson
526 So. 2d 499 (Louisiana Court of Appeal, 1988)
State v. Williams
513 So. 2d 356 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
496 So. 2d 1113, 1986 La. App. LEXIS 7743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alphonso-lactapp-1986.