State v. Burnham

942 So. 2d 571, 2006 WL 2877322
CourtLouisiana Court of Appeal
DecidedOctober 11, 2006
Docket41,146-KA
StatusPublished
Cited by3 cases

This text of 942 So. 2d 571 (State v. Burnham) 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. Burnham, 942 So. 2d 571, 2006 WL 2877322 (La. Ct. App. 2006).

Opinion

942 So.2d 571 (2006)

STATE of Louisiana, Appellee,
v.
Richard BURNHAM, Appellant.

No. 41,146-KA.

Court of Appeal of Louisiana, Second Circuit.

October 11, 2006.

*572 Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, for Appellant.

Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Edward M. Brossette, Assistant District Attorneys, for Appellee.

Before BROWN, STEWART, and DREW, JJ.

BROWN, Chief Judge.

Defendant, Richard Burnham, was convicted at a bench trial of aggravated rape, a violation of La. R.S. 14:42, and sentenced to life imprisonment at hard labor without benefit. Defendant has appealed his conviction. For the reasons set forth below, both defendant's conviction and sentence are affirmed.

Facts

An indictment charges that on February 8, 2003, at approximately 4:00 a.m., defendant raped his girlfriend's 11-year-old daughter. The victim testified at trial that the videotape of her statement made at the Gingerbread House was an accurate depiction of the events that occurred on that date. During the interview, the victim said that defendant, who was dressed in a white robe, came into her room while it was dark, stripped her clothes off, put lotion on her "private" and "stuck his self" in her. The victim specified that defendant put "his thing" inside her "private" multiple times and that it hurt. The victim told the interviewer that Glenn Wiggins, another resident of the household, entered the room while defendant was naked on top of her to ask about the "bumping noise." The victim stated that she tried to push defendant off but that he held her tight and covered her mouth so that she would not scream. The victim stated that defendant stopped when Wiggins entered the room and "faked like he was getting some covers" for her cousin. The victim told the interviewer that her mother was at the hospital with her grandmother when the incident occurred. The victim said that after the assault she bled from her "private," wiped herself with tissue, threw the tissue away, dressed again, and went back to sleep. The victim said that Wiggins asked her about the incident the next day and "they" (either Wiggins or Wiggins and his girlfriend, Valerie Brooks) told the victim's mother about the assault. Her mother called the police immediately after seeing the blood in the victim's underwear.

At trial, the victim testified that defendant came to her bed and covered her mouth with his hand. She identified the green panties introduced into evidence as hers and stated that she wore them that night. The victim stated that she asked Wiggins for help when he came into the room and that Wiggins never saw defendant naked because defendant "jumped out the bed and put his robe on and said he was getting some covers." The victim agreed with defense counsel that her earlier statement that Wiggins had seen defendant in bed with her naked was not true. The victim testified that she took her panties off at the hospital where they were put into a bag. The victim then stated that her mother called her a bad name at the hospital, but she didn't know why.

The child's mother testified that defendant had been her boyfriend at the time of the incident. The mother stated that she found blood in her daughter's panties and on the child's vagina. The mother said *573 that her daughter had not yet begun her menstrual cycle. The mother testified that she called 911 and reported the incident, and the tape of that call was admitted into evidence. The mother said that she had been at the hospital with her grandmother during the assault, and that Valerie Brooks told her about the rape when she got home. The mother testified that Glenn Wiggins told her that he had walked into the victim's room and found defendant leaning over the bed "like he was looking for some clothes" before running out. The mother also testified that the green panties belonged to her daughter, that she did not share underwear with her daughter, that she and her daughter wore different sizes, and that the mother did laundry for the household. She said that she gave the panties to the detective when asked and that the detective "put them in a bag." The mother said that her daughter had never had male visitors at the house and did not remember calling her daughter a "little bitch" at the hospital.

The parties stipulated at trial that Joanne Lawler, the nurse who examined the victim, would have testified that the victim was bleeding from her vagina, that there was no damage to the anus, that her hymen was intact, and that "this would be consistent with rapes of this nature." Detective Paula Moreno stated that authorities could not perform a rape kit because of the time lapse between the event and reporting and because the victim was a child. Detective Moreno said that she asked the mother to bring the child's underwear to the interview conducted at the Gingerbread House. Detective Moreno stated that she did not collect the tissue the victim used to wipe herself or the lotion used by defendant. She did collect the robe worn by defendant but it was not examined for blood stains.

Detectives Moreno and Eric Miles interviewed defendant, who denied the charge, said that he had "busted" the victim having sex "many times" with young boys in the weeks or months before the present offense, and stated that the "bumping noise" that Glenn Wiggins heard was the "cold hinge" making noise when defendant entered the victim's bedroom. Defendant told police that he went into the victim's bedroom to get a sheet because it was cold and to cover Marcus Jenkins, who was sleeping on the couch. In his statement, defendant also stated that the victim "ain't too stable." Detective Moreno testified that she was unable to locate Jenkins, who defendant claimed was in the house at the time of the offense. Detective Moreno interviewed Wiggins, who said that he heard noises from the victim's bedroom but did not witness the rape.

Wendy Westermann testified that she conducted the interview with the victim at the Gingerbread House, that she and the victim drew a picture of the victim's family, and that the victim used the picture to describe the events. Jennifer Valentine, a DNA analyst for Northwest Crime Lab, compared cuttings from the crotch area of the victim's panties to vaginal and buccal swabs from the victim and a reference swab from defendant. "Prostate specific antigen," a protein found in semen, found on the panties contained a DNA mixture from at least two people. Defendant's DNA matched as the major contributor, and the victim's DNA matched as the minor contributor.

Considering the above evidence, the trial court found defendant guilty as charged of aggravated rape and sentenced him to the mandatory sentence of life imprisonment at hard labor without benefit. Defendant has appealed his conviction.

*574 Discussion

Sufficiency of the Evidence

Defendant points out that the evidence introduced included only testimony, the videotape of the victim's statement, and DNA testing results. According to defendant, the victim's testimony was inconsistent with her videotaped statement. Defendant further notes that the victim's testimony did not corroborate her mother's statement regarding whether the mother referred to the child as a "little bitch" at the hospital. He questions the conflicting accounts of how the victim's panties were gathered for evidence and the DNA tests performed on them. Defendant notes that his robe was not tested and that Wiggins did not testify at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
942 So. 2d 571, 2006 WL 2877322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burnham-lactapp-2006.