State v. Blake

872 So. 2d 602, 2004 WL 957660
CourtLouisiana Court of Appeal
DecidedMay 5, 2004
Docket03-1465
StatusPublished
Cited by10 cases

This text of 872 So. 2d 602 (State v. Blake) 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. Blake, 872 So. 2d 602, 2004 WL 957660 (La. Ct. App. 2004).

Opinion

872 So.2d 602 (2004)

STATE of Louisiana
v.
Mark Edward BLAKE.

No. 03-1465.

Court of Appeal of Louisiana, Third Circuit.

May 5, 2004.

*604 Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Lafayette, LA, for State/Appellee.

Peggy J. Sullivan, Monroe, LA, for Defendant/Appellant Mark Edward Blake.

Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.

WOODARD, Judge.

On appeal, we consider whether the evidence presented at trial was sufficient to support the Defendant's conviction on two counts of sexual battery. We also determine whether his trial counsel was ineffective. We affirm.

*605 * * * * *

On April 21, 2001, Mark Edward Blake, who was thirty-eight years old at the time, committed a sexual battery on two children, a five-year-old girl and a seven-year-old girl, at their grandmother's home. Their grandmother was dating the Defendant when this incident occurred. Sometime afterwards, these girls, who were sisters, told their mother that the Defendant rubbed their breasts, vagina, and anus with his hands, rubbed his penis on their legs, and forced them to touch his penis with their hands. The older child also accused him of kissing her and sticking his tongue in her mouth.

On May 1, 2001, the parents of these two children reported this to the police. Two days later, on May 3, 2001, Dr. Powlin Manuel examined the children and found no evidence of trauma to their genitalia. However, he noted that one of the victims complained of "burning with urination" and had "redness" in the "external genitalia" area.

On July 27, 2001, the trial court charged the Defendant, by bill of information, with two counts of sexual battery in violation of La.R.S. 14:43.1. He waived formal arraignment on September 20, 2001 and entered a plea of not guilty.

On August 19, 2003, this matter came to trial. A jury convicted the Defendant as charged. On September 3, 2003, the trial court sentenced him to five years on each count with each sentence to run consecutively.

On August 21, 2003, the Defendant filed a motion for post verdict judgment of acquittal or, in the alternative, for a new trial. Without a hearing, the trial court denied this motion on August 29, 2003.

On appeal, the Defendant asserts that: (1) the evidence was insufficient to support a conviction for sexual battery; (2) his sentence constitutes an excessive sentence under the facts and circumstances of this case; (3) the trial court did not adequately comply with La.Code Crim.P. art. 894.1 and did not sufficiently articulate a basis for the sentences imposed; (4) by failing to file a "Motion to Reconsider Sentence," his trial counsel was ineffective; and (5) the trial court failed to inform him of the delays for application for post-conviction relief.

* * * * *

ERRORS PATENT/ASSIGNMENT OF ERROR NO. 5

According to La.Code Crim.P. art. 920, we must review all appeals for errors patent on the face of the record. We found one. In addition, we note that the sentencing minutes require correction.

The Defendant contends that the trial court did not advise him of the time period for filing an application for post-conviction relief as La.Code Crim.P. art. 930.8 provides. The sentencing minutes indicate that the trial court informed him of this time period, but the sentencing transcript does not. Furthermore, we note that the sentencing transcript indicates that his sentences are to be served without benefit of parole, probation or suspension of sentence; however, the sentencing minutes do not contain this restriction.

"When there is a conflict between the transcript and the minutes, the transcript prevails."[1] Thus, we remand this case for correction of the sentencing minutes so that they are consistent with the transcript—the Defendant will serve his sentences without benefit of parole, probation *606 or suspension of sentence. Also, we direct the trial court to inform him of Article 930.8's provisions by sending him appropriate written notice within ten days of the rendition of this opinion, and to file in the record written proof that the Defendant received this notice.[2]

SUFFICIENCY OF THE EVIDENCE

The Defendant contends that the evidence was insufficient to support a conviction for sexual battery.

Regarding sufficiency of the evidence, this court has held:

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 (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 witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review.[[3]]

The trial court charged the Defendant with and found him guilty of two counts of sexual battery in violation of La.R.S. 14:43.1, which states, 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, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(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; or
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

Accordingly, to convict the Defendant, the State must prove that: (1) the victims were younger than fifteen years old; (2) the Defendant was at least three years older than the victims; and (3) the Defendant touched the anus or genitals of the victims with any part of his body. The fact that both of the victims were under the age of fifteen when this incident occurred is undisputed. It is further undisputed that the Defendant is more than three years older than both of them. Therefore, the State, only, needed to prove that the touching element was satisfied beyond a reasonable doubt.

A victim's testimony, alone, is sufficient to prove the elements of an offense.[4] Regarding witness testimony, we acknowledged:

The trier of fact may accept or reject, in whole or in part, the testimony of any witness. The fact that the record contains *607 evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient. Thus, in the absence of internal contradictions or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient to support the requisite factual conclusion.[[5]]

This court further held:

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Bluebook (online)
872 So. 2d 602, 2004 WL 957660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blake-lactapp-2004.