State v. F.B.A.

983 So. 2d 1006
Louisiana Court of Appeal·Decided May 28, 2008·No. No. 07-1526·Published·Cited by 20 cases

Opinion

PETERS, J.

hA jury convicted the defendant, F.B.A.,1 of aggravated rape, a violation of La.R.S. 14:42, and aggravated incest, a violation of La.R.S. 14:78.1. Thereafter, the trial court sentenced him to serve life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence on the aggravated rape conviction and to serve fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence on the aggravated incest conviction. The trial court ordered that the sentences run concurrent to one [1009] another. The defendant has appealed his convictions, asserting that the evidence was insufficient to support the convictions and that he was denied effective assistance of counsel at trial. For the following reasons, we affirm the convictions in all respects.

SUFFICIENCY OF THE EVIDENCE ISSUE

The first assignment of error raised by the defendant’s counsel, as well as the first assignment of error raised by the defendant in his pro se assignments of error, addresses the sufficiency of the evidence presented by the State of Louisiana (state) in support of the convictions. The basic argument is that the testimony of the victim is so inconsistent that it does not meet the proof beyond a reasonable doubt standard. In fact, the defendant suggests that the testimony is “unreliable, untrustworthy and incredible.”

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 (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 credibilities of the witnesses, and | ^therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La. 1983). To obtain a conviction, the elements of the crime must be proven beyond a reasonable doubt.

State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580.

Furthermore, the testimony of a single witness is sufficient to support a conviction “[i]n the absence of internal contradiction or irreconcilable conflicts with physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir. 3/15/05), 900 So.2d 929, 936. The trier of fact may accept or reject the testimony of any witness, and the determination of the credibility of that witness, in whole or in part, is left to its sound discretion and “will not be re-weighed on appeal.” Id. at 936.

At the time the offenses now before us occurred, La.R.S. 14:42(A)(4) defined aggravated rape in pertinent part as “a rape committed ... where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed ... [w]hen the victim is under the age of twelve years.” Additionally, La. R.S. 14:78.1 defined aggravated incest as follows:

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, crime against nature, cruelty to juveniles, parent enticing a child into prosti[1010] tution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
| s (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.
C. Consent is not a defense under this Section.

The record in this matter establishes certain facts that are not in dispute. The individual that the state asserts is the victim in these criminal charges is V.J.L., who was born on December 22, 1989, and is the defendant’s step-daughter. V-J.L.’s mother, S.J., is a citizen of the Netherlands and met the defendant while residing in South Carolina in 1997. She and the defendant began cohabiting, and in 1998, the couple had a son, C.M.2 In that same year, after C.M.’s birth, the family moved from South Carolina to Houston, Texas. In 1999, S.J. and the defendant were married. In 2001, the family moved to Kinder, Louisiana, where S.J. obtained employment at the local casino. Because the defendant continued to work in Houston, he was separated from the family for days at a time.

The first suggestion of any sexual activity involving V.J.L. arose in January of 2002 when S.J. noticed blood in VJ.L.’s underwear.3 In response to this finding, the defendant4 took V.J.L. to Dr. Darryl Elias, a Jennings, Louisiana physician, who examined her to determine the cause of this discharge. The defendant remained in the room while Dr. Elias examined V.J.L. Based on his findings, the doe-tor concluded that V.J.L. suffered from the human papilloma virus (HPV), a sexually transmitted disease which causes genital warts and lesions. According to Dr. Elias, V.J.L’s hymen was no longer present and the condition of her vagina and the lesions around her genital area were consistent with sexual intercourse. From the size of the lesions, |4he estimated that the sexually transmitted disease had been present for six to twelve months prior to his examination. Additionally, the vaginal warts present at the time of his examination extended from the top of the vaginal opening to the rectum. Despite his physical findings, when he questioned V.J.L., she denied having been involved in any sexual activity. Dr. Elias reported his findings to the local office of the State of Louisiana Office of Community Services (OCS) and informed that office of his concerns that V.J.L. had been a victim of molestation.

Although OCS attempted to investigate Dr. Elias’ suspicion, the investigation reached no conclusion one way or the other. When interviewed by James R. Le-maire, an OCS investigator, V.J.L. continued to deny any sexual activity, and an interview of S.J. produced no helpful information. Mr. Lemaire did not interview the defendant. Because of V.J.L.’s continued denials and the lack of any other evidence of sexual abuse, Mr. Lemaire closed his file.

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State v. F.B.A., 983 So. 2d 1006 (La. Ct. App. 2008).

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