State v. D.M.

958 So. 2d 77
CourtLouisiana Court of Appeal
DecidedMay 9, 2007
DocketNo. 42,038-KA
StatusPublished
Cited by6 cases

This text of 958 So. 2d 77 (State v. D.M.) 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. D.M., 958 So. 2d 77 (La. Ct. App. 2007).

Opinion

PEATROSS, J.

[ defendant, D.M.1, was charged with aggravated incest. After being found competent to stand trial, Defendant was convicted as charged in a bench trial and was sentenced to ten years at hard labor, with credit for time served. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

An investigator for the DeSoto Parish Office of Child Protective Services (“OCS”), Janet Arnold, received a report alleging that Defendant was molesting his grandchildren. Defendant was in his mid-50s and had been diagnosed with and was being treated for paranoid schizophrenia. He lived with his daughter, who is also the mother of the victim in this case.2 Ms. Arnold went to the home to talk to her and her two children, B.M. and B.M.’s sister. B.M. was a 14-year-old boy with Asper-ger’s Syndrome, a form of autism, who was in special education classes at school. During her interview with B.M., he denied that Defendant had ever tried to have sex with him, but stated that he did not know what oral sex meant. Ms. Arnold testified that, after she explained oral sex to B.M., he quickly responded that he and Defendant did that when Defendant would take him for walks in the woods. B.M. told Ms. Arnold that Defendant would ask him to pull down his pants and then Defendant would perform oral sex on him. B.M. told |2Ms. Arnold that this had occurred three times, and after each time, Defendant would take him to a nearby store for cigarettes or candy.

Ms. Arnold further testified that, during this initial interview, the mother indicated to her that she was aware of a prior allegation that Defendant had molested B.M.’s sister, but that she had no knowledge of Defendant molesting B.M. Ms. Arnold informed her supervisor, removed the children from the home and contacted DeSoto Parish Sheriffs Office.

Adam Ewing, an investigator for the DeSoto Parish Sheriffs Office, conducted an investigation after being contacted by [81]*81Ms. Arnold. Officer Ewing testified that B.M. told him about the walks in the woods where Defendant would put his mouth “between his legs” and then take him to the Big Bass Grocery Store for candy. Officer Ewing explained that the neighborhood where they lived was surrounded by woods and that the Big Bass Grocery Store was around the corner from the home. Officer Ewing further testified that B.M. told him that Defendant would pick up leaves from the ground, roll them in notebook paper and let him smoke it.

Officer Ewing testified that B.M. was very uncomfortable discussing this and it was a difficult interview due to B.M.’s mental and emotional problems, but he did not believe anyone had prompted B.M. to make the allegations or that his statement appeared to be rehearsed. Officer Ewing testified that he did not know of a reason for B.M. to make up such an allegation and that he did not think B.M. could understand how he might gain from doing so.

IsRegarding the mother, Officer Ewing testified that the mother was aware of a past allegation that Defendant had molested B.M.’s sister but that she told him that she was not concerned about Defendant living in the home with them because there was no proof of those allegations. Officer Ewing also testified that the mother wanted to delay the investigation until she could arrange for Defendant’s disability check to come directly to her.

It was Officer Ewing’s belief that the report to OCS originated from a social worker who worked with Defendant while he was in the mental health unit of the VA hospital. Officer Ewing testified that he did not think that the mother induced B.M. to make false allegations because she did not want law enforcement or OCS involved in her family and that there was no evidence that she wanted to “get rid of Defendant.”

Officer Ewing also interviewed Defendant, during which Defendant told him about the walks in the woods and the trips to the Big Bass Grocery Store. Defendant, however, denied any sexual contact between himself and B.M. According to Officer Ewing, Defendant explained that B.M. would get rowdy after eating candy and that he would have to wrestle him to the floor. Defendant also stated that B.M. pulled out his penis one time and asked Defendant to “suck it,” but that he did not do it. Defendant told Officer Ewing that he did not tell his daughter about this incident because he did not want to get B.M. in trouble. Defendant also told Officer Ewing that allegations regarding B.M.’s sister when she was two years old stemmed from her walking up to him naked, pulling down his pants and'climbing onto his lap. Defendant told Officer Ewing that he put her on the |4floor and told her not to do that. Defendant also told Officer Ewing that he had schizophrenia and had been taking medication for it for years.

B.M. testified that his grandfather, Defendant, had touched his private parts with his hand and mouth when they were in the woods and that he had done this three times. B.M. also testified that his mother did not tell him to say these things about his grandfather.

The mother testified that Defendant had gotten in trouble in Colorado for stabbing a security guard and that he had not been taking medication for his schizophrenia at the time. As a condition of his probation, which was transferred to Louisiana for supervision, Defendant was to live with his daughter while on probation, take his medication and seek mental health therapy. The mother testified that Defendant came to live with her in late August 2004, but that he did not take his medication regularly or seek therapy.

[82]*82The mother testified that she learned of the allegations regarding B.M. during December 2004, when Defendant had been committed to the mental health unit of the VA Hospital. She further testified that, when Defendant did not take his medication, he would talk to people who were not there and that he had to be committed because he was not taking his medication. While Defendant was in the hospital, the mother found a note written by B.M., wherein he stated that he wanted to sue Defendant or have him put in jail. The mother testified that she had also read something in Defendant’s journal that made her feel uncomfortable, so she asked both B.M. and his sister if Defendant had been touching them or playing with|Bthem. B.M. said no, but the mother testified that she could tell that he was lying. She explained that she had had problems with B.M. “playing with himself’ and that B.M. told her that his penis had been hurting, that he showed it to Defendant and that the Defendant rubbed it to make it feel better. The mother testified that she called OCS because B.M. told the same story to his grandmother.

The mother testified that she did not need Defendant to live with her in order to get money from his disability check because she had a job and her son and husband both received disability checks. Despite her testimony that she called OCS to report the inappropriate behavior allegations that her children had related to her, also testified that she did not believe B.M.’s story and that she believed that OCS gave him the idea. The mother testified that B.M. has a low I.Q., that he was very impressionable and that he was susceptible to repeating something he was told to say. The mother testified that he might have been motivated to make up these allegations because he wanted to live with his grandmother, with whom he had lived until age 11. Finally, the mother also testified that B.M. was a compulsive liar and that B.M.

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Cite This Page — Counsel Stack

Bluebook (online)
958 So. 2d 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dm-lactapp-2007.