State v. Dale

180 So. 3d 528, 2015 La. App. LEXIS 2287, 2015 WL 7280597
CourtLouisiana Court of Appeal
DecidedNovember 18, 2015
DocketNo. 50,195-KA
StatusPublished
Cited by35 cases

This text of 180 So. 3d 528 (State v. Dale) 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. Dale, 180 So. 3d 528, 2015 La. App. LEXIS 2287, 2015 WL 7280597 (La. Ct. App. 2015).

Opinion

MOORE, J.

hThe defendant, Ronald Charles Dale, was convicted of molestation of a juvenile undér the age of 13, a violation of La. R.S. 14:81.2(A). Following adjudication as a second felony . offender, Dale was sentenced to 49½ years at hard labor, the first 25 to be served without the benefit' of parole. • Dale now appeals, alleging insufficient evidence to convict, improper intro-: duction of- “other acts” evidence, and an excessive sentence. - For the following reasons, we affirm the conviction and sentence. However,, we remand the case to the trial court for compliance with La. R.S. 15:542 and 15:543. ■ -

FACTS

The charges against Dale, age 46, followed a-, police investigation that began after the victim, K.W., age 6 at the time of the'offense, reported to her father that “Uncle Ronnie” had been touching her and “hunching” on her while she was in the home of her maternal great-grandmother, Elloise Clarkson. K.W. repeated the story to her mother, Ms. Clarkson’s granddaughter and the. defendant’s niece, K.W.’s father reported the, incident to Detective John Flores of the Shreveport Police Department.

[532]*532Subsequently, K.W. was interviewed at the Gingerbread House where she described Dale’s conduct to a forensic interviewer, Jennifer Plippo. K.W. revealed that Dale told her to lie on his bed where he got on top of her to “do what parents do.” K.W. said that Dale would “hunch” her and move around. She said both Dale and K.W. had their clothes on during the incidents, which happened more than once, and only when she was at Ms. Clarkson’s house. K.W. said she did not think anyone saw what happened. [2Ms. Clarkson was always in the living room when it occurred.

Dale resides in the home with Ms. Clarkson, and he has his own bedroom located at the end of the hallway. According to Ms. Clarkson, it was not possible to see inside his room from the living room.

KW’s mother testified that she occasionally left K.W. and her two sisters at Ms. Clarkson’s home for two or three hours at a time, but did not recall ever leaving them overnight. She further testified that Dale had her permission to discipline K.W. in Ms. Clarkson’s home because he was an adult and a family member.

Ms. Clarkson testified that she was always home when K.W. was at her house. The children played board games and dominoes, watched television, or played outside. Ms. Clarkson and Ralph Evans, a cousin, testified that the children would sometimes jump on Dale’s bed, watch television in his room, and play dominoes with Dale in his room, but only until they got unruly, and then he would make them leave.

In the course of their investigation, police learned that Dale had allegedly done similar things to KW.’s mother when she was young. KW.’s mother testified that Dale would take her to his room, climb on top of her and move around on her while both had their clothes on. She said she was five or six years old, and that Dale was “grown.” She could not recall the number of times that he did this to her.

Detective Flores brought Dale in for questioning. During the recorded interview, Dale admitted to touching KW.’s mother when she was young and to touching K.W. Dale was subsequently arrested and ultimately ^charged with one count of molestation of a juvenile under the age of 13, La. R.S. 14:81.2(A), (D)(1) and (E)(1), by a third amended bill of information.

At trial, Det. Graves, Jennifer Flippo, K.W., and KW.’s mother and father testified on behalf of the prosecution. Ms. Clarkson and Mr. Evans testified for the defense.

In addition to the facts above, Ms. Clarkson stated that she was certain that nothing could have happened to KW. because she was always home when K.W. was at her house, and she never allowed K.W. to be in Dale’s room with the door closed. Mr. Evans testified that he never saw anything inappropriate while living at Ms. Clarkson’s house, and that Dale and K.W. seemed to get along fine. Evans admitted, however, that he was not present at the home between 8:00 a.m. and 4:30 p.m. on most weekdays.

Following the two-day bench trial, the trial judge entered a verdict of guilty as charged.

Dale filed a motion for new trial and a motion for post-verdict judgment of acquittal. Both motions were denied on October 20, 2014, on which date the trial judge adjudicated Dale a second-felony offender, based on the instant conviction and a 2004 conviction for unauthorized entry of an inhabited dwelling.

The court sentenced Dale to 49½ years’ imprisonment, the first 25 of which to be served without the benefit of parole, and noted that this sentence was the mandato[533]*533ry minimum permitted by La. R.S. 15:529.1. At sentencing, the court stated that he considered the following facts to be aggravating factors: the offense was a heinous crime; the victim was a Ryoung, particularly vulnerable child; and, Dale’s extensive criminal history.

The trial judge found the following mitigating factors: there was no element of violence in the crime; the character letters on behalf of the defendant; and, the minimum mandatory sentence required by law is sufficiently harsh to meet punitive and rehabilitative requirements.

Dale subsequently filed a motion to reconsider sentence. The trial court denied this motion, holding that the record demonstrated a thoughtful consideration of aggravating and mitigating factors and that the 49⅜ year sentence was the mandatory minimum.

This appeal followed. Dale urges three assignments of error: sufficiency of the evidence, improper introduction of “other acts” evidence, and excessive sentence.

DISCUSSION

By his first assignment of error, Dale contends that the state failed to present sufficient evidence to support all the elements of the crime of molestation of a juvenile under the age of 13, especially the requirement that the victim was under his supervision or control at the time of the offense. Also, Dale complains that there was no physical evidence of the offense— only the testimony of the victim, and that the state did not establish the date of the offense.

The standard of review for an evidence sufficiency claim 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Johnson, 47,913 (La.App. 2 Cir. 4/10/13), 113 So.3d 1209. An appellate court does not substitute its own appreciation of the evidence for that of the fact finder, or assess the credibility of witnesses or reweigh evidence. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Johnson, supra, at 113 So.3d 1209.

Louisiana R.S. 14:81.2 defines molestation of a juvenile:

A.

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Bluebook (online)
180 So. 3d 528, 2015 La. App. LEXIS 2287, 2015 WL 7280597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dale-lactapp-2015.