State v. Ferguson

540 So. 2d 1116, 1989 WL 20732
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1989
Docket88 KA 0450
StatusPublished
Cited by15 cases

This text of 540 So. 2d 1116 (State v. Ferguson) 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. Ferguson, 540 So. 2d 1116, 1989 WL 20732 (La. Ct. App. 1989).

Opinion

540 So.2d 1116 (1989)

STATE of Louisiana
v.
Steven James FERGUSON.

No. 88 KA 0450.

Court of Appeal of Louisiana, First Circuit.

February 28, 1989.

*1117 Mark Rhodes, Asst. Dist. Atty., Houma, for plaintiff and appellee—State of La.

Matthew Barker, Thibodaux, for defendant and appellant—Steven J. Ferguson.

Before CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

Defendant, Steven James Ferguson, was charged by bill of information with one count of forcible rape, in violation of LSA-R.S. 14:42.1, and one count of aggravated crime against nature, in violation of LSA-R.S. 14:89.1. Defendant was tried by a jury, which convicted him as charged. For the forcible rape, defendant was sentenced to imprisonment for a term of fifteen years at hard labor, with the first two years to be served without benefit of probation, parole, or suspension of sentence; and for the aggravated crime against nature, defendant received a sentence of six years imprisonment at hard labor, without benefit of suspension of sentence, probation, or parole. The trial court ordered that the sentences be served consecutively.

Defendant has appealed, setting forth seven assignments of error, as follows:

1. The trial court erred by overruling defendant's objection to the testimony of the victim's sister regarding the victim's description of her attacker.
2. The trial court erred in overruling defendant's objection to Houma City Police Detective Richard Belanger's testimony as to the victim's description of her attacker.
3. The trial court erred by allowing the prosecutor to question defendant about the facts and circumstances of a previous criminal conviction of defendant.
4. The trial court erred by overruling defendant's objection to the prosecutor's questions to defendant regarding what type clothes defendant had worn during the period of time from the alleged attack of the victim until defendant's arrest.
5. The jury's verdicts are contrary to the law and the evidence.

6. The trial court erred by denying defendant's motion for post verdict judgment *1118 of acquittal and motion for new trial.

7. The trial court erred by imposing excessive sentences.

Assignment of error number six was not briefed on appeal and is, thereby, considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4.[1]

The record reflects that the instant offenses occurred on October 1, 1986, shortly after 8:00 p.m. The offenses were committed in Terrebonne Parish against a female victim.[2]

The victim's testimony revealed that, on the day in question, she was walking home from a National Food Store located on Grand Caillou Road. While the victim was walking through the Honduras School yard, she heard someone say: "hey girl." She turned her head around and saw a man she later identified as defendant. The victim became frightened and started walking fast. Defendant asked her what was her name. The victim continued walking, quickening her pace. Defendant asked the victim if she wanted to smoke "a joint," and she answered in the negative. Defendant asked her if she knew where he could get a light. The victim replied in the negative and stated that she lived nearby and was going home.

Defendant grabbed the victim by her throat, picked her up, and carried her into a dark area between two portable structures on the school grounds. When defendant grabbed her, he told her he had a gun and was going to "blow her f'ing brains out" if she did not do what she was told. The victim did not see a gun and did not know if defendant actually had one. Defendant told the victim to disrobe; and, when she apparently either did not do so or did not disrobe quickly enough, defendant removed her clothes. Applying both of his hands to her head, defendant forced the victim to perform oral sex on him. According to the victim, defendant continued to tell her he had a gun. The victim was scared for her life. Defendant made the victim lie down, and he then vaginally raped her.

Thereafter, defendant made the victim get dressed and walk around to a water fountain. He told the victim he was going to Florida and for her to meet him at the National Food Store in an hour. The victim observed a bicycle approaching; and, as an apparent diversionary tactic, she told defendant to look at the bicycle. When defendant let go of the victim, she took off running to her mother's house.

When the victim got to her mother's house, she found her sister and her sister's husband there. The victim told her sister she had been raped. The victim was taken to the hospital, and the police were contacted. Houma City Police Detective Richard Belanger interviewed the victim at the hospital.

Defendant was arrested for these offenses on October 22, 1986. Thereafter, the victim went to the police station where she viewed photographs and identified defendant as her attacker. Additionally, the victim made a positive in-court identification of defendant.

ASSIGNMENTS OF ERROR NOS. ONE AND TWO:

By means of these assignments, defendant asserts that the trial court erred by overruling defendant's objections to the testimony of the victim's sister and Detective Belanger as to the victim's descriptions of her attacker. Defendant argues that *1119 the witnesses' testimony constituted hearsay and, thus, their testimony was inadmissible.

On direct examination of the victim's sister, she was asked if the victim had described her assailant. Defense counsel objected to the question. The state countered that the testimony would be an excited utterance or first complaint of a rape victim, and the trial court overruled the objection. The witness then testified that, when the victim came home, the victim told her that the assailant was wearing gray corduroy pants and that he looked like Steve.

The record reveals that the next witness to testify was Detective Richard Belanger. On direct examination, the following exchange occurred:

Q. About what time did you get to the hospital, Richard?

A. I received the complaint at 8:35 [p.m.]—approximately 8:40 [p.m.], somewhere in that area.

Q. You got the complaint about 8:35 from the hospital?

A. Yes, sir.
Q. Did she give you a description of the man that she said had accosted her?
A. Yes, sir, she did.
Q. I am going to show you photographs —well, give me the description she gave you.

A. She told me he was a white male subject about 5' 10" to 6'; slim build; shoulder length hair, parted down the middle neatly cut and trimmed and styled.

Initially, we note that, because defendant did not object at trial to Belanger's testimony as to the victim's description of her assailant, defendant's contentions on appeal (in reference to Belanger's testimony) constitute a basis for objection raised for the first time on appeal; and, hence, those contentions are not properly before this Court. See State v. Brown, 481 So.2d 679 (La.App. 1st Cir.1985), writ denied, 486 So.2d 747 (La.1986). However, in any event, we find that the testimony of the victim's sister as well as Belanger's testimony (regarding the victim's description of her attacker) were admissible under the excited utterance exception to the hearsay rule.

There are two basic requirements for the excited utterance exception.

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Cite This Page — Counsel Stack

Bluebook (online)
540 So. 2d 1116, 1989 WL 20732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferguson-lactapp-1989.