State v. Hamdalla

126 So. 3d 619, 2012 La.App. 4 Cir. 1413, 2013 WL 5488888, 2013 La. App. LEXIS 1994
Louisiana Court of Appeal·Decided October 2, 2013·No. No. 2012-KA-1413·Published·Cited by 26 cases

Opinions

PAUL A. BONIN, Judge.

11 Thayer Hamdalla appeals his conviction for the offense of forcible rape, a violation of La. R.S. 14:42.1 A. Having been adjudicated a second-felony offender, he also appeals the imposition of the maximum sentence of eighty years. See La. R.S. 14:42.1 B and 15:529.1 A(l). With respect to his conviction, he argues first that the evidence is insufficient to support the conviction and second that the trial judge abused her discretion in admitting hearsay testimony of the rape victim’s mother. With respect to the sentence imposed upon him, he argues that the 80-year sentence is unconstitutionally excessive.

We have reviewed the record for sufficiency of evidence under the well-known Jackson v. Virginia standard and conclude that the evidence is sufficient. We have also reviewed the complained-of evidentia-ry ruling under an abuse-of-discretion standard and find no reversible error in admitting the mother’s testimony. Finally, after a review of the sentencing hearing and the pre-sentence investigation report along with the objections lodged to it, we conclude that the sentencing judge did not abuse her considerable discretion in determining that Mr. |2Hamdalla was among the worst of offenders and thereby imposing the maximum sentence. Accordingly, we affirm his conviction and sentence.1

In the following Parts, we more fully explain our decision.

I

In this Part, we explain why we conclude that, under the Jackson v. Virginia [621] standard, the evidence in this case is sufficient for the conviction of Mr. Hamdalla for forcible rape.

A

We first consider the essential elements of the crime of forcible rape. Forcible rape punishes, inter alia, oral sexual intercourse committed without the consent of the victim. See La. R.S. 14:42.1 A. The intentional touching of the genitals of the offender by the victim using the mouth or tongue of the victim can constitute oral sexual intercourse. See La. R.S. 14:41 C(2). Forcible rape is deemed to be without the consent of the victim “[w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.” La. R.S. 14:42.1 A(l). Thus, the essential elements of the offense which the prosecution must prove beyond a reasonable doubt in this case are (1) an intentional act of oral intercourse (2) committed without the lawful consent of the victim when the victim is prevented from resisting the act by force or threats of physical violence under circumstances in which the victim reasonably believes that |3resistance would not prevent the rape. See State v. Reel, 10-1737, p. 7-8 (La.App. 4 Cir. 10/3/12), 126 So.3d 506, 511, 2012 WL 4711881, at *4.

We turn now to a consideration of the trial evidence.

B

Mr. Hamdalla was a taxicab driver. Upon leaving a club in which adults may have consensual sex with strangers, the victim, a twenty-seven year old woman, entered Mr. Hamdalla’s taxi. During the ride, Mr. Hamdalla reached into the backseat area and began to feel or stroke the victim’s ankle. The victim made no objection to his conduct at that point. Mr. Hamdalla invited the young woman to ride in the front seat, and she climbed into the front seat.

Once she was in the front seat, Mr. Hamdalla deviated from the route to her home. Arriving in a dark area with warehouses, Mr. Hamdalla stopped his taxi. Fearing that he was going to force her out of the taxicab, the young woman became even more frightened of what was going to happen. Mr. Hamdalla began to touch her vagina under her dress. The victim denied that she had “come on” to Mr. Ham-dalla. She testified: “I was scared. I wanted ... to tell him to stop, but I just couldn’t. I couldn’t speak.” At the point when Mr. Hamdalla put his hand up her dress, she testified that she “kind of froze up.” She said: “I tried to push it away, but I just couldn’t.” She tried to tell him to stop, but she “couldn’t find the words.”

Then Mr. Hamdalla grabbed the young woman’s hand and made her hand touch his exposed penis. The taxi driver was in the driver’s seat, and she was in the passenger seat. She said that he was holding her wrist and her arm with one 14arm. He tried to make her touch his penis, and she pulled away for a couple of minutes. She testified that she was afraid of getting out of the car in that bad area; she thought something worse might happen. She did not know where the taxi was located. She did not touch his penis willingly. The defendant then “grabbed” her head “and forced it down onto his penis.”

When she was asked if she resisted, she replied: “Yes.” She tried to pull herself away, but Mr. Hamdalla was too strong. She denied wanting to have oral sex (or any sexual encounter) with Mr. Hamdalla. According to the victim, Mr. Hamdalla then forced his penis into her mouth and ejaculated. His penis was in her mouth for “a few seconds.”

[622] Then, he let go of her. She moved back as far as she could go, and Mr. Hamdalla handed her a Kleenex tissue to wipe her mouth. She wiped her mouth and kept the Kleenex. He then pulled out his GPS and asked where she wanted to go. Neither of them said a word. He dropped her off at her mother’s house. She started to give him money, but then put it back in her wallet. He did not ask for money.

The victim’s testimony was not contradicted by any other witness.

C

At the outset of our consideration of the legal precepts which govern our review for sufficiency of evidence, we note that it is clearly established that the testimony of a victim, alone, can be sufficient to establish the elements of the offense of forcible rape, even where the prosecution does not introduce medical, |fiscientific, or physical evidence to prove the commission of the offense by the defendant. See State v. Armstead, 11-1344, p. 4 (La.App. 4 Cir. 7/25/12), 98 So.3d 891, 894, writ denied, 2012-1881 (La.3/8/13), 109 So.3d 355; State v. Wells, 10-1338, p. 5 (La.App. 4 Cir. 3/30/11), 64 So.3d 303, 306. See also State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004.

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State v. Hamdalla, 126 So. 3d 619, 2012 La.App. 4 Cir. 1413, 2013 WL 5488888, 2013 La. App. LEXIS 1994 (La. Ct. App. 2013).

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