State v. Alvarez

71 So. 3d 1079, 10 La.App. 5 Cir. 925, 2011 La. App. LEXIS 841, 2011 WL 2582868
CourtLouisiana Court of Appeal
DecidedJune 29, 2011
DocketNo. 10-KA-925
StatusPublished
Cited by16 cases

This text of 71 So. 3d 1079 (State v. Alvarez) 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. Alvarez, 71 So. 3d 1079, 10 La.App. 5 Cir. 925, 2011 La. App. LEXIS 841, 2011 WL 2582868 (La. Ct. App. 2011).

Opinion

MARION F. EDWARDS, Chief Judge.

|gThe defendant/appellant, Mike Alvarez (“Alvarez”), was charged with three counts of aggravated crime against nature upon a known juvenile, violations of La. R.S. 14:89.1.

Prior to trial, the State filed a Notice of Intent to Introduce Evidence of Similar Crimes in Sex Offense Cases Pursuant to L.C.E. Article 412.2. That notice alleged that Alvarez was convicted of carnal knowledge of a juvenile in 1997. On June 17, 2010, a twelve-person jury returned guilty verdicts as to all three counts of aggravated crime against nature. Alvarez was sentenced to a term of imprisonment of fifteen years on each count, to be served consecutively, without benefit of parole, probation, or suspension of sentence.

The State indicated that it would be filing a multiple bill, which is the subject of a separate appeal.

P.B., the victim in this matter, was fourteen years old at the time of trial. She testified that, in the summer of 2001, when she was six years old, she was living at Duke Street in Kenner with her mother, T.B., and her mother’s boyfriend, Caesar Alvarez, who is Alvarez’s brother. P.B. testified that Alvarez “made me suck his private part” three times that summer. The first time, she was in the living room when Alvarez called her and told her to come downstairs. Alvarez then told P.B. |ato get on her knees and suck his private part. P.B. complied. Alvarez also showed her a sex tape. Afterwards, he made her get on top of him and was “making me roll on him and things.” He got her off of him, and then made her “suck his thing” again. The second time, Alvarez was in the bathroom when he told P.B. to suck his private part. According to P.B., some “white stuff’ came out and Alvarez told her to spit the white stuff into the sink and wash her mouth out. The third time, P.B. was in the kitchen. P.B. told her mother about these incidents, but she did not take her to a doctor or to the police. P.B.’s mother [1082]*1082did tell Caesar Alvarez about it. Thereafter, after P.B.’s mother lost custody of her children, P.B. told her grandmother about Alvarez’s actions.

Detective Joseph McRae, of the Kenner Police Department’s Criminal Investigations Division, testified that, in February of 2007, he was contacted by the Children’s Hospital Care Center regarding sexual abuse of P.B. P.B. was at the care center with regard to physical abuse by her mother. Detective McRae interviewed P.B. thereafter. During that interview, P.B. told Detective McRae that “Mike” made her “suck” his “ding-a-ling.” Detective McRae arranged an appointment and interview at the Jefferson Children’s Advocacy Center. P.B. identified Alvarez from a photographic line-up during the subsequent interview.

Detective McRae interviewed Alvarez after he was arrested. Detective McRae testified that, during the interview, Alvarez adamantly denied P.B.’s allegations. He also told Detective McRae that he had never been inside the Kenner residence and had only seen the children twice, once outside the residence, and once in a department store. Alvarez declined to make a recorded statement.

Erika Dupepe, a forensics interviewer with the Gretna Police Department, testified that she was stationed at the Jefferson Children’s Advocacy Center in 2007. A DVD recording of an interview with P.B. at the Center was made and | identified by Ms. Dupepe and was played for the jury. In the interview, P.B. stated that Alvarez was staying at the house she shared with her mother and Caesar Alvarez to “get back on his feet.” P.B. described how Alvarez made her “suck his private part” on three occasions. On one of the three occasions, P.B. indicated that she swallowed “white stuff,” which she promptly spit out. She tried to tell her mother and Caesar Alvarez about what had happened, but Caesar refused to believe it.

S.B., P.B.’s grandmother, testified that she has never met Alvarez before. According to S.B., in the summer of 2001, P.B. was living with her mother on Duke Street in Kenner. S.B. visited the family during that time but did not see Alvarez there. S.B. testified that she learned of the offenses “in 2000 ... No it was in '99, I believe.” She indicated that P.B. was living with her at the time of trial because P.B.’s mother had abused the children, and the children had been taken away by OCS.

J.B., P.B.’s brother, testified that he, his mother, Caesar Alvarez, and Alvarez lived on Duke Street in Kenner in 2001. According to J.B., Alvarez did not reside at the Duke Street residence but, rather, was there “from time-to-time. Every other day, he would spend the night ... sometimes, you know.” He described Alvarez’s visits as “very frequent.” J.B. testified that P.B. told him what Alvarez had done approximately one or two months after the offenses occurred.

Alvarez presented several witnesses on his behalf. Kevin Buchner, a friend, testified that he used to work with Alvarez and that, in 2001, Alvarez lived on Frenchmen Street. Mr. Buchner indicated that he saw Alvarez frequently during that time. According to Mr. Buchner, he never mentioned visiting his brother, nor was he aware of Alvarez living anywhere other than Frenchmen Street at any time during 2001.

IsBobby Marshall, III testified that he worked with Caesar Alvarez and Alvarez at a Harahan Lazy Boy store in 2004. Mr. Marshall testified that he and Alvarez “double dated” with T.B. on at least one occasion in 2004. Mr. Marshall indicated that he did not know Caesar Alvarez, Alvarez, or T.B. in 2001.

Caesar Alvarez testified that he met T.B. early in 2001 and began living with [1083]*1083her shortly thereafter. They lived in the Duke Street residence and Alvarez “never came to my [Duke Street] house.” Caesar Alvarez further indicated that T.B. did not have any friends visit the Duke Street residence in 2001. After living with T.B. in the Duke Street residence for approximately eight months, T.B. and Caesar Alvarez moved to Frenchmen. Street at the end of 2001. According to Caesar Alvarez, the first time that T.B. met Alvarez was in 2003 or 2004 when both he and Alvarez were working at Lazy Boy. To his knowledge, P.B. never saw Alvarez at the Duke Street house.

David Alvarez, another of the Alvarez’s brothers, testified that he was living in Kenner in 2001 and had visited Caesar Alvarez. According to David Alvarez, in 2001, Alvarez was living on Frenchmen Street and did not visit him or Caesar Alvarez that summer. Alvarez’s mother, Angilista Alvarez, also testified that Alvarez lived on Frenchmen Street in 2001.

On direct examination, Alvarez testified that he had a 1997 conviction for carnal knowledge of a juvenile. At the time, he was twenty years old. Although he denied knowing the victim of the 1997 crime was under eighteen, he, nonetheless, pled guilty to that charge because he “knew I did wrong.” He further testified that, during the summer of 2001, he had two jobs and was living at an apartment at 1842 Frenchmen Street. He had to be at work early and worked late, only having two days off. Alvarez stated that he did not visit David Alvarez or Caesar Alvarez that ^summer, and he did not hang out with his brothers. According to him, the first time he saw P.B. was on the day of trial. He denied molesting her.

On appeal, Alvarez contends that the evidence used to convict him of three counts of aggravated crime against nature was legally insufficient.

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Bluebook (online)
71 So. 3d 1079, 10 La.App. 5 Cir. 925, 2011 La. App. LEXIS 841, 2011 WL 2582868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alvarez-lactapp-2011.