State v. Fontan

624 So. 2d 916, 1993 WL 358195
CourtLouisiana Court of Appeal
DecidedSeptember 16, 1993
Docket92-KA-2355
StatusPublished
Cited by1 cases

This text of 624 So. 2d 916 (State v. Fontan) 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. Fontan, 624 So. 2d 916, 1993 WL 358195 (La. Ct. App. 1993).

Opinion

624 So.2d 916 (1993)

STATE of Louisiana
v.
Charles D. FONTAN, Jr.

No. 92-KA-2355.

Court of Appeal of Louisiana, Fourth Circuit.

September 16, 1993.

*917 Harry F. Connick, Dist. Atty., Val M. Solino, Asst. Dist. Atty., New Orleans, for plaintiff.

Nick F. Noriea, Jr., Gainsburgh, Benjamin, Fallon David & Ates, New Orleans, for defendant.

Before KLEES, ARMSTRONG and WALTZER, JJ.

ARMSTRONG, Judge.

On May 8, 1991, the defendant, Charles D. Fontan, Jr., was charged by bill of information with forcible rape and second degree kidnapping. R.S. 14:42.1; 14:44.1. He was arraigned May 16, 1991 and pled not guilty. The trial judge found him guilty as charged November 20, 1991. His trial counsel withdrew, and new counsel filed a motion for new trial January 8, 1992 which was denied April 13, 1992. He was sentenced July 1, 1992 to ten years at hard labor with the first two to be served without benefit of parole, probation or suspension of sentence on each count. The sentences are to be served concurrently.

At trial the seventeen year old victim testified that on January 14, 1991, at approximately 9:30 a.m., she was at the Jackson Avenue ferry landing waiting for her boyfriend. She waited downstairs for the ferry for fifteen to twenty minutes. During that time, she saw the defendant drive up in a burgundy Chevrolet Caprice with a gold stripe on the side, go upstairs to the enclosed ferry waiting area, and return within seconds. He waved to her, got into his car and drove away. He passed by her several more times in his car. The victim intermittently went upstairs to the waiting area to see if the ferry was coming. On one trip, she left her jacket downstairs on a bench. When she came back downstairs the jacket was missing. *918 The defendant drove up and asked her if she had lost something. She said she had, and he held up her jacket. He threw the jacket into the back seat of the car and told her to come get it. She went to the passenger side of the car, but both doors were locked. She went around the car and opened the rear driver's side door. A baby seat was in the back seat. The victim tried to reach across it to retrieve her jacket. She had one foot in the car and one foot outside when the defendant sped off. He ordered her to put the jacket over her head. She refused, and the defendant slapped her. She then put the jacket over her head. The defendant drove to a location unknown to the victim. It appeared to her to be along the river inside the flood wall. He ordered her to take off her clothes. She refused, and the defendant then ripped her shirt. The victim closed her eyes. The defendant then pulled her pants down to her knees, ripped her underwear, and placed his penis into her vagina. The victim was frightened to resist for fear of what the substantially larger defendant might do. The defendant then drove the victim back to the ferry landing. Once there, the defendant passed once or twice in his car, and the victim was able to note the license plate. She asked a woman nearby what time it was and the woman responded 10:15. The victim then took the ferry over to her boyfriend's school. She told him about the events. The two of them then went to the victim's mother's workplace and told her. She then went to Charity Hospital.

Later, she identified the defendant in a photographic lineup.

Dr. Leslie Greco examined the victim. She found blood in the victim's vaginal area. The area was tender and irritated, and there were indications of spermatozoa. She took swabs and forwarded them to the Crime Lab. The specimens were negative for spermatozoa.

Detective Reginald Williams, NOPD, met with the victim at Charity. She described the perpetrator as a white male, receding hairline, wearing what appeared to be a security guard uniform: blue pants, light blue shirt with a badge. She described the car and gave him the license plate number. The number the victim gave him was assigned to a Buick. He discovered that the last number was wrong, and found a car matching the description given him by the victim. He obtained the address of the registered owner, Charles Fontan. He went to the defendant's address and observed the car with a baby seat in the back seat. Williams contacted the Department of Motor Vehicles and obtained the driver's license photograph of the defendant. Because that photograph was in black and white, Williams converted five Bureau of Identification photographs to black and white and presented the lineup to the victim whereupon she chose the photograph of the defendant. Williams obtained an arrest warrant and executed it on the defendant at the RTA bus barn where the defendant works as a bus driver. The defendant was advised of his Miranda rights twice. On the way to Central Lock-up, the defendant made two statements. First, he asked whether the victim had had a medical examination and then said he could prove his innocence because he had had a vasectomy and could not have had sperm in his ejaculate. Then, he said that "he got along real well with blacks." The defendant was wearing the RTA uniform at the time of his arrest: navy blue pants, light blue shirt with RTA emblem.

On cross-examination, Williams testified he thought the rape occurred at 10:30 a.m. He said the victim was not sure of the last numeral on the license plate, and that as to the second numeral, he substituted the numeral "3" for the numeral "8" the victim had reported.

The defendant testified he worked on the morning of the crime from 5:38 a.m. to 9:36 a.m. driving a route in Algiers. The defense introduced his work assignment sheet to prove that fact. He then went to his bank a few blocks from the Arabella Street bus barn and withdrew $20.00. The defense introduced records of the bank transaction at 9:44 a.m. He said he often drops drivers off at the Jackson Avenue ferry landing in his car, and that he passes the landing four times a day. He said that on the day of the crime, he passed the landing on the way to his credit union downtown. He testified he had had a vasectomy.

*919 ERRORS PATENT

A review of the record reflects that there are no errors patent.

ASSIGNMENTS OF ERROR ONE, TWO, AND THREE:

The defendant argues his trial counsel was ineffective because he did not call alibi witnesses; that the trial court erred in denying his motion for new trial based on the verdict being contrary to the evidence after the court heard the alibi evidence; and that the evidence, when considered in light of the alibi evidence, was insufficient.

At the hearing on the motion for new trial, Mark Rosa, President of the New Orleans Municipal Employees' Credit Union, testified his records revealed there was a withdrawal from the defendant's account at 10:42 a.m. on the morning of the crime at the branch office in City Hall. Frank Echols, Superintendent of Station Operation at Arabella Station, testified the defendant was working, driving a bus in Algiers from 6:00 a.m. to 9:38 a.m. Pamela Gill testified that on the morning of the crime she was working at her job as parking lot cashier at the Superdome from 9:00 a.m. to 1:00 p.m. She said that she fills in for the other cashier "Barbara" when Barbara is on lunch break between 10:00 a.m. and 11:00 a.m. Shortly after 10:00 a.m., the defendant walked in and asked for Barbara. He appeared calm. Since Barbara had just left, he and Gill spoke for as long as thirty minutes. He then left to go to his credit union across the street.

The state called the defense trial attorney who testified he was aware that the defendant had gone to the credit union on the morning of the crime.

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Related

State v. Atkins
713 So. 2d 1168 (Louisiana Court of Appeal, 1998)

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Bluebook (online)
624 So. 2d 916, 1993 WL 358195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fontan-lactapp-1993.