State v. Clifton

165 So. 3d 387, 14 La.App. 3 Cir. 1266, 2015 La. App. LEXIS 1042, 2015 WL 3390277
CourtLouisiana Court of Appeal
DecidedMay 27, 2015
DocketNo. 14-1266
StatusPublished

This text of 165 So. 3d 387 (State v. Clifton) 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. Clifton, 165 So. 3d 387, 14 La.App. 3 Cir. 1266, 2015 La. App. LEXIS 1042, 2015 WL 3390277 (La. Ct. App. 2015).

Opinion

PICKETT, Judge.

FACTS

Bin 2001, the defendant, Jerry Vaughn Clifton, allegedly touched the vaginal area of his eleven-year-old step-granddaughter L.G.1 In a separate incident the same year, he allegedly instructed his six-year-old step-granddaughter A.G. to remove her clothes, then laid her on a bed and licked her vaginal area and chest.

[389]*389On December 13, 2010, the State filed a bill of information charging the defendant Jerry Vaughn Clifton a.k.a. Jerry V. Clifton a.k.a. Jerry Clifton with six counts of aggravated incest, violations of La.R.S. 14:78.1. Later, the state amended the bill by adding language to Count 1, dismissing Count 3, and renumbering Counts 4 and 5.

Jury selection began on March 17, 2014. It was resumed and completed on March 19. The jury began hearing evidence on the latter date. On March 21, the jury found the defendant guilty as charged on the first two counts.

On May 13, 2014, the court sentenced the defendant to serve sixty-one months at hard labor on each count, to run consecutively. The court denied his motion for post-verdict judgment of acquittal and his motion to reconsider sentence.

ASSIGNMENTS OF ERROR

1. The Trial Court erred when it denied the defense’s challenges for cause of Juror Christopher Bliss, Juror # 61, and Juror Sharon Raetta Harvey.

2. The Trial Court erred in denying defendant’s post verdict judgment of acquittal.

[,3. The Trial Court erred in imposing a sentence herein that is excessive and unconstitutionally harsh.

4. For any and all errors patent on the face of the record.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.

ASSIGNMENT OF ERROR NUMBER TWO

We will address the second assignment of error first, because it necessarily addresses the sufficiency of the evidence. A finding that the evidence was insufficient would necessitate reversal of the conviction, thus this assignment must be resolved first. State v. Hearold, 603 So.2d 731 (La.1992).

The defendant argues the district erred by denying his motion for post-verdict judgment of acquittal. Such motions are governed by La.Code Crim.P. art. 821(B), which states: “A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.”

The analysis for such claims is well-settled:

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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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 witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this [390]*390Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

At the time of the offenses in 2001, the elements of aggravated incest were set forth in La.R.S. 14:78.1, which stated in pertinent part:2

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile or a person with a physical or mental disability, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

The basic allegation was that the defendant touched the vaginal areas of the two minor victims, who were his step-granddaughters. He also committed other sexual acts with them.

The core of the defendant’s claim is that the testimony of the state’s witnesses was inconsistent and incredible. As an example, he notes that A.G. testified that her initial report to her older friend Jennifer Behan resulted from seeing a program about sex offenses. However, Behan testified they had seen a movie earlier. The defendant also notes that A.G. did not report the incident until ^approximately nine years after the offense. The defendant also notes that A.G. admitted in her taped statement to a detective that she did not like her grandfather and that he did not threaten her to keep her quiet. The defendant also claims that the record shows that the investigating detective, Rhonda Jordan, suggested answers to A.G. during their interview.

The other victim, L.G., reported the defendant’s actions years after they occurred, having heard of A.G.’s report. Initially, she denied having been victimized. At trial, she explained her denial by noting that she was in shock at the time. L.G. testified that the defendant touched her in the vaginal area and that three other times he masturbated in front of her.

The defendant characterizes the victims’ testimony as vague and cites State v. Wiltcher, 41,981 (La.App. 2 Cir. 5/9/07), 956 So.2d 769, for the proposition that self-contradictory testimony is insufficient to support a conviction. We note that case’s language:

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is [391]*391sufficient support for a requisite factual conclusion. State v. Burd, 40,480 (La. App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1088 (La.11/9/06), 941 So.2d 35.

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165 So. 3d 387, 14 La.App. 3 Cir. 1266, 2015 La. App. LEXIS 1042, 2015 WL 3390277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clifton-lactapp-2015.