State v. Gonzalez

173 So. 3d 1227, 15 La.App. 5 Cir. 26, 2015 La. App. LEXIS 1622, 2015 WL 5052546
CourtLouisiana Court of Appeal
DecidedAugust 25, 2015
DocketNo. 15-KA-26
StatusPublished
Cited by27 cases

This text of 173 So. 3d 1227 (State v. Gonzalez) 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. Gonzalez, 173 So. 3d 1227, 15 La.App. 5 Cir. 26, 2015 La. App. LEXIS 1622, 2015 WL 5052546 (La. Ct. App. 2015).

Opinion

MARC E. JOHNSON, Judge.

| ¡¡Defendant appeals his convictions for aggravated rape and sexual battery on the basis of insufficient evidence, erroneous admission of other crimes evidence, and the erroneous qualification of a witness as an expert in delayed disclosure. For the reasons that follow, we affirm his convictions.

Defendant, Rogelio Gonzalez, was indicted by a grand jury on September 8, 2011, and charged with one count of aggravated rape on a juvenile under the age of 13 in violation of La. R.S. 14:42 and one count of sexual battery on the same juvenile in violation of La. R.S. 14:43.1. He pled not guilty and, after waiving his right to a jury trial, proceeded to a bench trial on October 15, 2013. After a two-day trial, the trial judge found Defendant guilty as charged on both counts and sentenced him to life imprisonment on count one (aggravated rape) and 25 years on count two (sexual battery), both without the benefit of parole, probation or |4suspension of sentence and to run concurrently with each other. Defendant was subsequently granted this out-of-time appeal.

FACTS

In April 2011, the Mansfield Police Department in Texas received a report of a sexual assault that occurred several years earlier in Kenner, Louisiana. After interviewing the victim, E.R.,1 who was then living in Texas and was 15 years old at the time of the interview, the Mansfield Police Department contacted the Kenner Police Department, which proceeded to further investigate the matter.

During the investigation, Detective La-shonda Woodfork with the Kenner Police Department interviewed the victim, who recounted what happened to her, her mother, her grandmother, and her uncle. Detective Woodfork also reviewed the victim’s recorded Texas forensic interview and learned that the incident occurred at E.R.’s grandmother’s house in Kenner sometime between October 2005 and April 2006, while E.R. was attending A.C. Alexander Elementary School. During E.R.’s Texas interview, she stated that she was lying on the bed in her grandmother’s room when her grandmother’s brother, who E.R. knew only as “Uncle,” came into the room and took off her pants and underwear. According to E.R., “Uncle” then took off his pants and underwear and tried [1231]*1231to put his penis in her vagina, but it did not “fit,” at which time he put his fingers on the inside of her vagina. Subsequently, during Detective Woodfork’s investigation, E.R. identified Defendant as “Uncle” in a family photograph. Defendant was later arrested.

At trial, E.R. corroborated the information she gave during her Texas interview. She testified that while she was attending A.C. Alexander Elementary School she was sexually abused by Defendant at her grandmother’s house. She recounted that after her grandmother had left the house, Defendant came into the | ¿room where she was lying on the bed watching television and removed both his and her pants and underwear and touched her vagina with his penis. She explained that she felt a sharp pain in the lower part or bottom of her vagina and that it hurt. E.R. further testified that Defendant touched around her vagina with his fingers. E.R. stated that Defendant stopped when he heard her Uncle Jonathan come into the house. She stated that upon hearing the front door, Defendant pulled up his pants and walked out of the room. E.R. went to the bathroom and then followed Jonathan around the rest of the day. E.R. testified that Jonathan did not see what Defendant did to her and that she did not tell him what had happened.

Jonathan Gonzalez testified that he lived with his grandmother in Kenner in 2005 and 2006 while he attended John Quincy Adams Middle School. He stated that E.R. would be at the house when he came home from school and .that Defendant would watch E.R. when no one was home. He recalled a day when he came home from school and found Defendant present at the house and E.R. visibly upset and sad; however, E.R. never told him why she was upset.

E.R. testified that she never told anyone about the incident until she told her best friend in 2011, when she was living in Texas. She later told her brother and mother, at which time the police were called and she recounted the incident to the police. E.R. explained that she developed nightmares after the incident in which she was being sexually assaulted by someone but she could not see his face.

Defendant also testified at trial. He testified that he did sheetrock and taping work and was very busy after Hurricane Katrina, which hit the area in August 2005. He admitted that he visited his sister’s home but noted that it was not often and stated that he was never at the home alone with E.R. He claimed that all of E.R.’s statements were lies.

\ «ISSUES

Defendant raises several issues on appeal. Appellate counsel’s sole assignment of error on appeal and Defendant’s first pro se assignment of error is that the evidence is insufficient to uphold Defendant’s convictions. Defendant argues that the only evidence against him is the uncorroborated and conflicting testimony of the victim.

Defendant also raises three additional pro se assignments of error. He first maintains the trial court improperly admitted other crimes evidence. Specifically, he argues the trial court erroneously admitted evidence of his alleged lustful disposition based on hearsay and uncharged, unproven allegations.

Second, Defendant asserts the trial court erred in qualifying State witness Carrie Paschall as an expert in delayed disclosure. He contends that the field of delayed disclosure has been denounced by the Louisiana Supreme Court, the field does not meet the expert testimony crite[1232]*1232ria under Daubert>2 and that Ms. Paschall was not qualified to make a psychological assessment.

Finally, Defendant alleges he was denied his constitutional rights by the erroneous use of La. R.S. 46:1844(W). Defendant claims he was deprived of his rights when this Court ordered’that he could not make a copy of the record and that he was only allowed review of the record in the presence of a prison official. He contends these restrictions prevented him from utilizing the record in any meaningful way because he is illiterate and does not speak the English language.

LAW & ANALYSIS

Sufficiency of the Evidence

Defendant argues the State failed to prove his guilt beyond a reasonable doubt because E.R. waited five years to report the incident, had psychological tissues, and was not credible. He contends there was no evidence to corroborate E.R.’s testimony.

In reviewing the sufficiency of the evidence, an appellate court must determine whether the evidence, direct or circumstantial or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but rather the reviewing court is required to consider the whole record and determine whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Videau, 13-520 (La.App. 5 Cir. 12/27/13); 131 So.3d 1070, 1082,

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Cite This Page — Counsel Stack

Bluebook (online)
173 So. 3d 1227, 15 La.App. 5 Cir. 26, 2015 La. App. LEXIS 1622, 2015 WL 5052546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-lactapp-2015.