State v. Greenup

123 So. 3d 768, 12 La.App. 5 Cir. 881, 2013 WL 4521015, 2013 La. App. LEXIS 1714
CourtLouisiana Court of Appeal
DecidedAugust 27, 2013
DocketNo. 12-KA-881
StatusPublished
Cited by10 cases

This text of 123 So. 3d 768 (State v. Greenup) 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. Greenup, 123 So. 3d 768, 12 La.App. 5 Cir. 881, 2013 WL 4521015, 2013 La. App. LEXIS 1714 (La. Ct. App. 2013).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

12Pefendant, Troy Greenup, appeals his conviction for aggravated rape upon a victim under the age of thirteen in violation of La. R.S. 14:42. Defendant argues the trial court erred in admitting evidence of a prior sexual battery of another boy, claiming that evidence was overwhelmingly prejudicial. Defendant also argues the trial court erred in denying defendant’s motion for new trial, asserting that the state’s improper rebuttal argument prejudiced the jury and affected the verdict. For the following reasons, we find these assignments of error to be without merit and affirm defendant’s conviction. However, we remand this matter to the trial court for notification to the defendant of his sex offender registration requirements pursuant to La. R.S. 15:540 et seq.

STATEMENT OF THE CASE

On June 9, 2011, a Jefferson Parish Grand Jury returned an indictment charging defendant with aggravated rape upon a victim under the age of thirteen in violation of La. R.S. 14:42.1. On June 10, 2011, defendant was arraigned and ^entered a plea of not guilty to the charge. The matter proceeded to trial by jury, where on June 14, 2012, a 12-person jury returned a verdict of guilty as charged.

Defendant filed motions for post-verdict judgment of acquittal and new trial, which the trial court denied on July 20, 2012. That day, after defendant waived sentencing delays, the trial court sentenced defendant to mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal follows.

FACTS

The case arises out of D.B.’s allegations against his father, the defendant in this matter.1 D.B. alleges that when he was between the ages of three and five years old, on multiple occasions, defendant used his penis to penetrate D.B.’s mouth and “butt.” D.B. alleges these acts started when he was living with his parents in Westwego in an apartment on Tanglewood Street and continued after they moved to a residence on Avenue D. D.B. was born in 1997 and later testimony by D.B.’s mother corroborated the fact that they all lived together from May 2000 until sometime in 2003 or 2004, when D.B.’s mother and D.B. moved in with D.B.’s maternal grandparents.2 D.B. alleges his father ceased these acts when he and his mother moved out. D.B. did not report these acts at the time they occurred.

Several years later, in mid-2010, D.B.’s mother received a phone call from a person asking her to testify for defendant in an unrelated matter. D.B.’s mother did [771]*771not immediately agree; she testified that she prayed on the matter and after a Rcouple of months, in September 2010, asked her son whether his father had ever hurt him:

I just asked him. I just told him he wasn’t in trouble, and I needed to know — needed him to be honest and let me know if his daddy’s ever touched him wrong.... He said “Yes.”

D.B.’s mother continued to ask him questions about what specific acts his father committed. D.B.’s mother testified that D.B. told her that these acts occurred when she went to work.

D.B.’s mother did not call the police, rather, she sought counseling for D.B. from a clinic in Marrero. That clinic then reported D.B.’s allegations to the Office of Community Services (“OCS”). In response, OCS (now the Department of Children and Family Services) investigated the matter.

Ms. Kay Evans, an OCS investigator, interviewed D.B., his mother, and his father. Ms. Evans testified that D.B.’s allegations were consistent and that she recommended that D.B. stay with his mother because D.B.’s father no longer had access to him. Ms. Evans also interviewed each of D.B.’s siblings, who all denied having been abused by the defendant. Ms. Evans also testified that she prepared a report indicating that D.B.’s father denied the allegations of abuse and further denied ever living with D.B. during the relevant time period.

After its investigation, OCS notified the police and D.B. was brought to the Audrey Hepburn Care Center and the Children’s Advocacy Center (“CAC”) for further investigation.

On October 16, 2010, at the Audrey Hepburn Care Center, Anne Troy, a forensic nurse practitioner, interviewed and examined D.B. D.B. told Ms. Troy that while his mother was away at work, defendant forced him to put his mouth on defendant’s penis and defendant inserted his penis into D.B.’s anus. Ms. Troy then physically examined D.B. Although that examination revealed no physical 1 r,evidence of sexual abuse, Ms. Troy testified that such findings are not unusual because the alleged abuse had occurred many years prior.

On January 18, 2011, Staci Lanza of the CAC interviewed D.B. In that interview, D.B. alleged that when he was three or four years old, on multiple occasions, defendant removed D.B.’s clothes and inserted his penis into D.B.’s mouth and “butt.” In that recorded interview, D.B. stated that, during the first instance of abuse, his father had laid behind him on a bed in the living room, with both of them naked, and inserted his penis into D.B.’s “butt.” D.B. also alleged that on a different occasion, defendant forced D.B. to put his mouth on defendant’s penis. D.B. alleged that this type of abuse also happened after he moved to a new residence with his mother and father. D.B. alleged that in his new residence, his father penetrated him orally and anally with his penis.

On November 14, 2011, the state filed a “Notice of Intent to Use Evidence of Other Crimes.” The state sought to introduce evidence of defendant’s past sexual battery of another boy, L.T., under La. C.E. 404(B) to prove opportunity, intent, and modus operandi, and under La. C.E. 412.2 to prove a lustful disposition toward children. After a hearing on the matter, the trial court ruled that the state would be permitted to introduce such evidence at trial. Defendant’s counsel objected to this ruling.

The matter proceeded to trial. At trial, the state introduced evidence of defendant’s past sexual battery of another young boy, L.T. The state called L.T.’s [772]*772mother, and then L.T. Before either testified however, the trial judge read a limiting instruction to the jury, informing the jury that they could only consider such testimony for the purposes of finding defendant had “a system, intent, and/or lustful disposition towards children.” Once on the stand, L.T.’s mother testified that she was introduced to defendant through her boyfriend’s cousin and for about 16a year in 2009 or 2010 defendant came to her house “nearly every day” in the afternoon. She testified that, during that time, L.T. was five years old. L.T.’s mother testified that L.T. and defendant were alone only when she and the other adults were outside smoking cigarettes, a time period typically of five to ten minutes. L.T. then took the stand and testified that defendant touched his “private area,” what L.T. identified as his “pee-pee,” while both he and defendant were clothed. L.T. also testified that he touched the defendant’s “private area.” He testified that this occurred at his house when he and defendant were alone while the others were outside. L.T. testified this happened one night while he was watching a movie and that he thereafter told his mother about the occurrence. L.T.’s recorded interview from the CAC was published to the jury.

The defense called only one witness, Bonnie Henderson. Ms. Henderson testified that defendant had never lived with D.B. and his mother.

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Cite This Page — Counsel Stack

Bluebook (online)
123 So. 3d 768, 12 La.App. 5 Cir. 881, 2013 WL 4521015, 2013 La. App. LEXIS 1714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-greenup-lactapp-2013.