State v. Brock

521 So. 2d 477, 1988 La. App. LEXIS 241, 1988 WL 9219
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1988
DocketNo. KA-7805
StatusPublished
Cited by3 cases

This text of 521 So. 2d 477 (State v. Brock) 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. Brock, 521 So. 2d 477, 1988 La. App. LEXIS 241, 1988 WL 9219 (La. Ct. App. 1988).

Opinion

BYRNES, Judge.

On February 19, 1987, defendant William Brock was convicted of molestation of a juvenile, a violation of R.S. 14:81.2, and sentenced to ten years at hard labor. On appeal, Brock asserts that there was insufficient evidence to convict him of the charged offense and that his sentence was unconstitutionally excessive. We disagree and affirm.

FACTS

Defendant was engaged to Ms. Gorman, the victim’s mother, and had been living with her in their Algiers residence since early 1986. In June of 1986, Gorman’s three year old child “B.G.” who had previously been living with the child’s grandmother, moved into the apartment that Brock and Gorman shared. On August 8, 1986, “B.G.” complained to her mother that her “pee pee” hurt as she went to the bathroom. Gorman examined “B.G.” and found what she described as one of Brock’s pubic hairs lodged "... in between the flaps of her private area”. When Gorman asked “B.G.” about this, the child would not answer. Gorman remarked that “B.G.” acted stiff and withdrawn at that time. Later when Gorman explained to “B.G.” that she was going to sever her relationship with Brock, the child stated that Brock was bad and that he had touched her private area. Gorman then locked Brock out of the apartment.

Four days later Gorman related what “B.G.” had told her to a neighbor. The police were called and an investigation begun. “B.G.” was then taken to Charity Hospital where she was examined by Dr. Garza who found her vaginal area “very, very red” with abrasion to the right side of the vaginal area. He concluded that the trauma was most likely caused by manual digital manipulation. Dr. Garza ruled out self-manipulation. Brock was arrested that day and charged with molestation of a juvenile.

At trial, Gorman testified to the events of August 8, 1986, and related a suspicious occurrence which happened about a week prior to that date when Gorman noticed blood in “B.G.” ’s stool. Gorman asked Brock why “B.G.” was bleeding, and he responded "... she’s just constipated and sometimes you bleed like that”. Gorman further stated that at times “B.G.” did not want to be left alone with Brock and appeared very stiff. Gorman also testified that she had once awakened to find Brock “sitting on the rim of the tub with her [“B.G.”] between his legs. They would be fully dressed, but she would be full of tears as if she wants to say something to me but can’t”. Gorman further testified that Brock would often pick up “B.G.” from the babysitter's house while she worked and take her back to the apartment. Gorman also stated that “B.G.” was never left unattended at home and was never left alone with any other men.

[479]*479Cheryl Donato also testified that “B.G.” use to play with her daughter at the Dona-to home. She stated that “B.G.” was very playful when Brock was not around but when he would arrive, she would “be quiet, not talkative at all, scared half of the time and really stiff”.

Brock, who also testified at trial, stated that he did not molest “B.G.” and that there were no other men around the apartment who would have had the opportunity to sexually abuse “B.G.”. At the conclusion of trial, a jury found Brock guilty as charged. This appeal follows.

ASSIGNMENTS OF ERROR

By his first assignment of error, Brock asserts that the State failed to show beyond a reasonable doubt that he was guilty of the crime charged. We disagree. In reviewing this claim we must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosiere, 488 So.2d 965 (La.1986). This test applies to both direct and circumstantial evidence. State v. Porretto, 468 So.2d 1142 (La.1985); R.S. 15:438.

In order to convict the defendant in this case, the State was required to prove that:

(1) there was a lewd or lascivious act committed by a person over the age of seventeen upon the person or in the presence of any child under the age of seventeen and that the age difference between the two parties is greater than two years; (2) that the act was done with the intention to arouse or gratify the sexual desires of either person; and (3) the act was accomplished by the use of force, violence, duress, menance, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. R.S. 14:81.2; State v. Perry Mack, 514 So.2d 567 (La.App. 4th Cir.1987).

The record establishes beyond reasonable doubt that “B.G.” was the victim of a “lewd or lacivious act” — someone caused trauma to the child’s vagina by manual digital manipulation. The testimony of Dr. Garza was sufficient to establish the occurrence of the act and rule out the possibility that the trauma was self-inflicted. The record also leaves no doubt that Brock was over seventeen and that “B.G.” was more then two years younger. In fact at the time of trial, “B.G.” was 4 and Brock was 23.

As to the identity of the perpetrator, “B.G.” told her mother that Brock hurt her and had touched her private parts. The mother testified to this at trial. Brock himself, while denying his guilt, admitted that the child had not been left unattended and that no other man would have had the opportunity to molest her. Testimony at trial also revealed that Brock often volunteered to help “B.G.” when she went to the bathroom, that he was observed by the child’s mother sitting on the edge of the bathtub with the child between his legs (although both were clothed at the time). Viewing this testimony in the light most favorable to the prosecution, we find that it was sufficient to support the jury’s conclusion that Brock was the perpetrator.

As to the second element of the offense, the State had to prove that the perpetrator acted with the intention of arousing sexual desires of one of the parties.

The testimony of Dr. Gazara established that the trauma to the child’s vagina was caused by digital manipulation and was not self-inflicted. The only reasonable explanation for such manipulation is some sort of sexual gratification for one of the participants. This common sense conclusion, combined with the circumstances outlined above, were in our opinion sufficient to exclude every reasonable hypothesis of innocence and prove beyond any reasonable doubt that the act which constituted the offense in this case was performed with the intention of arousing or gratifying the sexual desires of one of the parties.

The third element of the offense required a showing that the act was accomplished through the use of force, psychological in[480]*480timidation, or the use of influence by virtue of a position of control or supervision over the juvenile. In our opinion, the record establishes that Brock was in a position of control and supervision over He was often alone in the apartment with the child and at these times provided adult supervision and control. Moreover, the nature of his relationship with the child’s mother reinforces our belief that Brock was either placed in or assumed control over “B.G.” from time to time. The record also established that “B.G.” was stiff and uncomfortable in Brock’s presence, thus indicating the possibility of psychological intimidation.

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Related

State v. Rollins
581 So. 2d 379 (Louisiana Court of Appeal, 1991)
State v. Shelton
545 So. 2d 1285 (Louisiana Court of Appeal, 1989)
State v. Brock
534 So. 2d 441 (Supreme Court of Louisiana, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
521 So. 2d 477, 1988 La. App. LEXIS 241, 1988 WL 9219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brock-lactapp-1988.