State v. Butters

527 So. 2d 1023, 1988 WL 49498
CourtLouisiana Court of Appeal
DecidedMay 17, 1988
Docket87 KA 1639
StatusPublished
Cited by6 cases

This text of 527 So. 2d 1023 (State v. Butters) 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. Butters, 527 So. 2d 1023, 1988 WL 49498 (La. Ct. App. 1988).

Opinion

527 So.2d 1023 (1988)

STATE of Louisiana
v.
John BUTTERS.

No. 87 KA 1639.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.

*1024 Walter P. Reed, Dist. Atty., Covington, William R. Campbell, New Orleans, for State.

Clarence P. Guillory, Asst. Indigent Defender, Covington, for defendant.

Before COVINGTON, C.J., and SAVOIE and LEBLANC, JJ.

SAVOIE, Judge.

John Butters was charged by bill of information with incest with a descendant, in violation of LSA-R.S. 14:78. He pled not guilty and, after trial by jury, was found guilty as charged. He received a sentence of fifteen years at hard labor. The defendant has appealed, alleging seven assignments of error, as follows:

1. The trial court erred in admitting evidence of other crimes.

2. The trial court erred in denying the defendant's motion for a mistrial.

3. The trial court erred by improperly charging the jury as to the elements of the crime.

4. The evidence was insufficient to support the defendant's conviction.

5. The trial court erred in denying the defendant's motion for a new trial.

6. The trial court erred in denying the defendant's motion for a post-verdict judgment of acquittal.

7. The trial court erred in imposing an excessive sentence.

Between January 1, 1986, and August 31, 1986, the defendant engaged in sexual intercourse with his then eleven year old daughter. At the trial, the victim's former teacher, Robin Cardinelli, characterized the victim as a learning disabled child who functioned at the fourth grade level while in the fifth grade. The victim testified that the defendant had engaged in both vaginal and anal sexual intercourse with her and that this conduct occurred on more than one occasion. However, she was unable to relate any specific dates or identify the sequence in which these acts took place.

Describing one sexual episode, the victim testified that the defendant summoned her to his bedroom, placed her on the bed, and removed her pants. The defendant did not remove his pants. Instead, he unzipped them, laid down on top of her, and inserted his penis into her vagina. The victim also testified that the defendant touched her breasts and engaged in anal sexual intercourse with her. She testified that the above conduct occurred when her mother was at work. However, her brother was home when this particular episode took place.

The victim's brother testified about the sexual incident described above. He testified that he entered the bedroom in response to a call from the victim and observed the defendant and the victim lying on the bed. Although he testified that they had their clothes on, he also stated that the victim was on her back and the defendant was on top of her.

*1025 The two doctors who physically examined the victim reached different conclusions about whether or not she had been sexually abused. Dr. Francis Rodwig, an expert in gynecology, testified that he examined the victim on October 10, 1986. He took a history and conducted a complete physical examination of the victim which took approximately forty-five minutes. He testified that his pelvic examination of the victim revealed findings that were within normal limits and that the hymenal ring was intact, although there was some "possible scarring external to the hymenal ring." His rectal examination of the victim also revealed no abnormalities. Dr. Rodwig concluded: "I felt after completing my examination I could find no evidence of actual sexual abuse, but the child had given a history of such that there may be some. With the few physical findings, [sic] that some activity may have taken place." Dr. Rodwig also stated that the victim told him that the defendant had been sleeping with her when her mother was at work, but she denied that her father had had actual sexual relations with her.

Dr. Rebecca Russell, an expert in pediatric medicine and child abuse, testified that she examined the victim on December 23, 1986. She stated that, although she did not time her interview and examination of the victim, in general, such an interview and examination would take three to four hours. She testified that her pelvic examination of the victim revealed the hymen had a "worn healed gap" and a band of scar tissue. Dr. Russell also testified that the victim's hymenal opening and vaginal cavity were large enough to accommodate an adult male penis, although the exam indicated that the victim was not routinely sexually active.

Dr. Russell testified that her rectal examination of the victim was conducted with the victim in the knee-chest position and that this examination indicated that the victim's anus gaped open. Dr. Russell testified that her findings from the rectal examination were consistent with the repeated insertion of some object into the victim's anus. She testified that conducting a rectal examination while the person was in the knee-chest position was a relatively new procedure. Finally, Dr. Russell testified that she had listened to the previous testimony of Dr. Rodwig and concluded that Dr. Rodwig had conducted his rectal examination of the victim while the victim was positioned on her back.

Dr. Valerie Turgeon, who was accepted by the trial court as an expert in psychology and a child abuse specialist, testified that she had examined the victim on September 23, 1986. She testified that her analysis of the victim led her to conclude that the victim had been sexually abused.

At the trial, the victim's mother was asked whether or not the victim had ever reported this sexual abuse. The victim's mother replied: "She would tell me that her daddy was messing with her, but she wouldn't go into detail with me. And I never thought about asking her, because I just thought because [sic] he was always onto her about something."

On cross-examination, the victim's mother testified that her marriage to the defendant had encountered problems since his back injury in 1979. She testified that at times the defendant had severely disciplined his children with a belt. She also testified that a family friend, Albert Cordez, had visited their home on an almost daily basis in the last year. However, she testified that the victim had never accused Mr. Cordez of molesting her. The victim's mother also testified that the victim had never denied that the defendant had molested her.

The defendant did not testify at the trial. His brother, Edward Butters, testified that on two occasions he had seen Mr. Cordez and the victim "horsing around" and touching each other's genitals. He also testified that, on a later occasion when he observed Mr. Cordez standing in the hall and looking into the victim's room, he took Mr. Cordez down the street, threatened him with a gun, and informed him to never return. He testified that, since that date, Mr. Cordez had not returned. Edward Butters testified that he informed the defendant of these incidents concerning Mr. Cordez, but *1026 the defendant was under medication for his back and did not appear to understand. Finally, he testified that he had also informed the victim's mother of these events; she had replied that he should not worry about it.

The defendant's oldest son from a previous marriage (the victim's half brother) testified that on one occasion around Christmas, 1986, the victim had stated that the defendant "didn't touch her". He testified that the victim made this statement in the presence of several people, including his wife, Carol, and his stepmother (the victim's mother). His wife, Carol Butters, corroborated his testimony about this denial made by the victim.

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Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 1023, 1988 WL 49498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-butters-lactapp-1988.