State v. Collins

763 So. 2d 618, 1999 WL 735863
Louisiana Court of Appeal·Decided December 8, 1999·No. 32,409-KA·Published·Cited by 16 cases

Opinion

763 So.2d 618 (1999)

STATE of Louisiana, Appellee,
v.
Charles L. COLLINS, Appellant.

No. 32,409-KA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.
Opinion Granting Rehearing December 8, 1999.

*621 Wilson Rambo, Monroe, Joseph W. Hendrix, Shreveport, Diane L. Foster, New Orleans, Counsel for Appellant.

Richard P. Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Brian L. King, Asst. Dist. Attys., Counsel for Appellee.

Before WILLIAMS, PEATROSS and DREW, JJ.

WILLIAMS, Judge.

The defendant, Charles Collins, was charged by bill of information with indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. Having waived his right to a jury trial, a bench trial was held and the defendant was found guilty as charged. The trial court sentenced the defendant to serve three and one-half years at hard labor and ordered him to pay a fine of $1,000, in addition to court costs, or to serve six months default jail time. Pursuant to LSA-R.S. 15:537, the trial court denied the defendant's eligibility for diminution of sentence based on good behavior.

The defendant filed a motion to reconsider sentence on the ground that the sentence was excessive. He also filed a motion for post-verdict judgment of acquittal. Although the trial court modified the defendant's sentence and removed the defendant's ineligibility for diminution of his sentence for "good time," the defendant's motion for post-verdict judgment of acquittal and motion to reconsider sentence were denied. The defendant appeals. For the following reasons, we amend the sentence to delete the fine and default time and affirm the defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On April 7, 1996, twelve-year-old L.J. was visiting the defendant's home which was next door to her home in a Caddo Parish apartment complex. L.J. and the defendant's stepdaughter, S.H., were friends.

According to L.J., she and S.H. were watching television in the bedroom when they fell asleep on the bed. The victim testified that she was alone in the room when the defendant entered and attempted to remove her shorts and underwear and began to fondle her. L.J. testified that the defendant licked her behind her ears and on her chest. She testified that he blocked her access to the door when she attempted to leave the bedroom. L.J. further testified that the defendant offered her money as she left the apartment and he said, "Please don't hurt me."

The defendant testified that L.J. was at his apartment visiting S.H. on the day of the incident. According to the defendant, he and his wife were in the apartment during the time the girls were watching television. The defendant testified that, shortly thereafter, he went outside to play basketball. While he was playing, his wife and L.J.'s mother came out of the apartment. His wife informed him that they were going to the casino, and she would call him if she won any money. The defendant testified that he went inside to retrieve the telephone and encountered L.J. lying in his stepdaughter's bed. According to the defendant, when he told her to go outside and play with the other children, she became angry and pushed him as she *622 stormed out. The defendant testified that this was the extent of his contact with L.J.

Forensic evidence was gathered and a DNA analysis was performed using this evidence. The evidence included breast swabs/bite mark swabs from L.J. and saliva samples taken from the defendant. The DNA analysis revealed that the genetic markers from the evidence taken from L.J. matched those found in evidence taken from the defendant.

After a bench trial, the trial judge found the defendant guilty of indecent behavior with a juvenile and sentenced him to serve three and one-half years at hard labor. Defendant was also fined $1,000 plus costs or six months default jail time. The defendant appeals.

DISCUSSION

Assignments of Error Nos. 1 & 6

By these assignments, the defendant contends the evidence was insufficient to sustain a conviction and the trial court erred in denying his motion for post-verdict judgment of acquittal. Specifically, the defendant argues that the victim's statement to police officers following the incident and her testimony at trial were so inconsistent as to render her testimony unreliable.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson v. Virginia, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5 § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to the trier-of-fact's decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333, State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir. 1986), writ denied, 499 So.2d 83 (1987). Moreover, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760.

In order to convict a defendant of indecent behavior with a juvenile, the state must prove that the defendant: (1) committed any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen; (2) was over the age of seventeen and more than two years older than the victim; and (3) had the intention of arousing or gratifying the sexual desires of either person. LSA-R.S. 14:81; State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175.

Here, the defendant does not argue that the state failed to prove any specific element beyond a reasonable doubt. *623 Rather, the defendant argues that the evidence presented to support his conviction was based on the unreliable and inconsistent testimony of the victim.

In determining the defendant's guilt, the trial court relied

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