State v. Hawkins

633 So. 2d 301, 1993 WL 504620
Louisiana Court of Appeal·Decided November 24, 1993·No. KA 93 0013·Published·Cited by 7 cases

Opinion

633 So.2d 301 (1993)

STATE of Louisiana
v.
Donald HAWKINS.

No. KA 93 0013.

Court of Appeal of Louisiana, First Circuit.

November 24, 1993.

*302 Doug Moreau, Dist. Atty., Baton Rouge, Sonceree Smith, Asst. Dist. Atty., for State-appellee.

Bryan Bush, Baton Rouge, for defendant-appellant.

Before CARTER, GONZALES and WHIPPLE, JJ.

GONZALES, Judge.

The defendant, Donald Hawkins, was charged by bill of information with molestation of a juvenile, a violation of La.R.S. 14:81.2. He pled not guilty, and after trial by jury, was found guilty as charged.[1] He *303 was sentenced to ten years imprisonment with credit for time served. The defendant has appealed urging the following eleven assignments of error:

1. The trial court erred in failing to grant a Motion for New Trial and Arrest of Judgment when there was no showing at trial that the difference in age between the defendant and the victim was greater than two years.
2. The trial court erred in granting the state's Prieur motion to permit testimony concerning other offenses alleged to have been committed by the defendant.
3. The trial court erred in failing to declare a mistrial for the improper argument of the prosecutor.
4. The trial court erred in failing to admonish the jury to disregard the comments made by the prosecutor in her closing argument.
5. The trial court erred in permitting Melinda Logan, Social Services Specialist III, to testify that her investigation was "concerning sexual intercourse by [victim's] father, Mr. Donald Hawkins."
6. The trial court erred in permitting Melinda Logan to testify that the victim's demeanor was similar to that of children who are victimized sexually, without requiring that she be qualified as an expert.
7. The trial court erred in permitting Melinda Logan to testify as to previous investigations involving S. Hawkins and sexual intercourse with the defendant.
8. The trial court erred in permitting Melinda Logan to testify by use of hearsay.
9. The trial court erred in permitting Kathy Guttry to testify by use of hearsay.
10. The trial court erred in permitting Lorraine Hawkins to testify that she signed a statement which was made by her daughter, even though she was not present when the statement was made.
11. The trial court erred in sustaining the state's objection alleging hearsay testimony during defense counsel's questioning of S. Hawkins.

The victim, who was fifteen years old at the time of trial, testified that in September of 1989, her stepfather, the defendant, stayed at her home when her mother went out of town. She stated that she was watching television with her sister and brother when the defendant came into the room and told them to put on their "sleeping" clothes and go to bed. She stated that they changed clothes as instructed, but then went back to watch television before going to sleep. The victim testified that she slept in the same room with her sister and brother.

She stated that the defendant came into the room and instructed her to fold some clothes in his bedroom. The victim testified that the defendant followed her into his bedroom and told her to lay down on the bed, which she did. She stated that the defendant took off her nightgown and then took off his own clothes. She testified that the defendant rubbed her breasts, laid on top of her and put his "private part" on her "private part;" and then the defendant put his mouth on her "private part."

The victim testified that, after the defendant got off of her, she left the bedroom and went to her room. She stated that she did not tell her mother until later because she was scared. She also testified that, on an occasion prior to this incident, the defendant locked her in a room and touched her. The victim subsequently told her mother about the incidents; the police were notified, and the defendant was subsequently arrested.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, the defendant contends that the trial court erred *304 in failing to grant a Motion for a New Trial and Arrest of Judgment as there was not a showing at trial that the age difference between him and the victim was greater than two years. In his brief to this Court, the defendant argues that the trial record is devoid of any showing of his age, and thus, a new trial should have been granted since an essential element of the crime was not proven.

Notwithstanding the lack of direct evidence presented at the trial that the defendant was over the age of seventeen and more than two years older than the victim at the time of the offense, these facts can be inferred from the following evidence: (1) the defendant was married to the victim's mother; (2) the defendant's sixteen year old daughter, S. Hawkins, testified at trial; and (3) the defendant was being tried as an adult rather than a juvenile. See State v. Francis, 560 So.2d 514, 518-519 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990); State v. Shelton, 545 So.2d 1285, 1294 (La.App. 2d Cir.), writ denied, 552 So.2d 377 (La.1989). Also, the victim's birth certificate states that on the date of the victim's birth, November 28, 1976, the defendant was twenty-four years of age.[2] Thus, we reject the defendant's contention that the evidence was insufficient to support his conviction. The essential elements of the offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

The defendant contends in his second assignment of error that the trial court erred in granting the state's Prieur motion to permit testimony concerning other offenses alleged to have been committed by him for the purpose of establishing modus operandi or system. In his brief to this Court, the defendant argues that it was error to allow the state to introduce evidence of a crime to which he had previously pled guilty. The defendant argues that the state failed to meet three of the requirements set forth by the Louisiana Supreme Court for the admission of other crimes evidence to prove modus operandi or system.

Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. State v. McDermitt, 406 So.2d 195, 200 (La.1981). In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, evidence of the commission of other crimes is inadmissible unless the evidence has an independent relevancy besides simply showing a criminal disposition. State v. Lafleur, 398 So.2d 1074, 1080 (La.1981). Article 404(B)(1) of the Louisiana Code of Evidence provides the following exceptions to the general rule of inadmissibility of other crimes evidence:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

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State v. Hawkins, 633 So. 2d 301, 1993 WL 504620 (La. Ct. App. 1993).

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