State v. Hernandez

93 So. 3d 615, 11 La.App. 5 Cir. 712, 2012 WL 1192150, 2012 La. App. LEXIS 484
CourtLouisiana Court of Appeal
DecidedApril 10, 2012
DocketNo. 11-KA-712
StatusPublished
Cited by10 cases

This text of 93 So. 3d 615 (State v. Hernandez) 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. Hernandez, 93 So. 3d 615, 11 La.App. 5 Cir. 712, 2012 WL 1192150, 2012 La. App. LEXIS 484 (La. Ct. App. 2012).

Opinions

SUSAN M. CHEHARDY, Judge.

|2On Mai’ch 27, 2008, Carlos R. Hernandez was indicted by the Jefferson Parish Grand Jury for violation of La. R.S. 14:42, aggravated rape of a juvenile male, date of birth June 15, 1996. The defendant was arraigned the next day and entered a plea of not guilty. He filed a motion to suppress statement, which was denied on February 19, 2009. On September 10, 2009, the trial judge ruled that evidence of prior sexual offenses committed by the defendant would be admissible at trial. The indictment was amended on March 4 and March 8, 2010, to change the dates the offenses occurred. The trial judge subsequently granted the State’s motions in li-mine prohibiting the defendant from introducing evidence of the victims’ prior sexual conduct.

The case was tried on June 1 through June 4, 2010, before a 12-member jury, which found the defendant guilty as charged. The defendant filed a motion for new trial on June 17, 2010, which was denied that same day. The defendant waived sentencing delays and the trial judge sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.1 The defendant filed a timely motion for appeal that was granted.

RFACTS

K.A.2

The victim, K.A., was 13 years old at the time of trial. He testified that when he was 11 years old, he took a trip with his biological father. When K.A. returned, he learned that neighbors had called the police claiming that the defendant, his stepfather, had touched them children inappropriately. K.A. then told his mother, F.A., that the defendant had raped him once when he was five or six years old. During that incident, the defendant told K.A. to take off his clothes and get on the bed. Afterward, the defendant took off his clothes and “stuck his penis” in K.A.’s “butt.”

K.A. believed this incident occurred when he was five or six years old, because he recalled at the time that he rode the bus to school with “little people,” and that he was a “little person” at that time. He did not tell anyone what happened at that time because he was afraid and he thought the defendant would hurt his mother. The defendant also told K.A. not to tell anyone and that he would get in trouble if he told.

[619]*619At some point prior to trial, KA. admitted to an employee of the district attorney’s office, James Thomas, that the defendant had raped him “a number of times,” and that he had waited a long time to make those additional allegations because he was embarrassed. K.A testified that the incidents occurred between the ages of seven to eleven, in their apartment on Holmes Boulevard and at their residence on Helen Street.3

K.A. then recalled an incident when they lived on Helen Street. At that time, K.A.’s mother left the house, and the defendant told K.A. to take off his 14clothes and lie on the sofa. Afterward, the defendant took off his clothes and then “stuck his penis” in K.A.’s “butt.” When the defendant was finished, the defendant removed his penis and went to wash it. KA. recalled that when he was in first and second grade, his mother worked outside the home, and that when she was away, the defendant would take care of him. F.A. (K.A.’s mother) and W.A. (KA.’s brother) also recalled that the defendant took care of K.A. when F.A. was not home.

On January 6, 2008, Deputy Donald Cannatella of the Jefferson Parish Sheriffs Office was dispatched to Helen Street in response to a complaint of aggravated rape. At that time, Deputy Cannatella met with F.A. and K.A., and he learned from K.A. that the defendant had put his penis in K.A.’s “butt” five years prior. Deputy Cannatella notified his supervisor and the detective bureau and turned over the investigation to Detective Balser. Detective Balser, in turn, contacted Detective Kay Horne after learning that Detective Horne had investigated other incidents involving the defendant. F.A., K.A., and W.A. subsequently went to the detective bureau and met with Detective Horne. At that time, Detective Horne learned from K.A. that the defendant stuck his “private up [K.A.’s] butt” one time.

Afterward, K.A. was referred to the Children’s Advocacy Center, where he was interviewed by Erika Dupepe on January 17, 2008, regarding the allegations against the defendant. That interview was recorded and shown to the jury. Following that interview, K.A. was examined on January 28, 2008, by Dr. Jameka Head at Children’s Hospital. At that time, K.A. complained of one instance of penile-anal contact by his stepfather, the defendant, six or seven years prior, and said that his stepfather had told him not to tell anybody.

|sDr. Adrienne Atzemis, Dr. Head’s supervisor, testified that K.A.’s examination was overall within normal limits except he had redness around his bottom that was nonspecific for abuse. She further testified that the lack of findings was not a problem. Dr. Atzemis explained that the anus can stretch to the point of injury, but that it can heal very quickly with no scarring. She also explained that children commonly do not disclose sexual abuse immediately for many reasons, including not knowing it is wrong, embarrassment, fear, feeling responsible for it, protecting family members, threats, and positive reinforcements. Lastly, Dr. Atzemis testified that disclosure commonly starts with one incident and later includes others.

The State also presented evidence that the defendant committed other crimes of a sexual nature involving L.P., J.W., and J.A.

L.P. and J.W.

L.P. and J.W., who were nine years old at the time of trial, used to go to the [620]*620defendant’s house to eat dinner and to get money from the defendant to spend on candy. On the night before Christmas, when L.P. was seven years old, she went to the defendant’s house. While she was there, the defendant put his hands in her panties and “wiggled around” with his finger. Shortly thereafter, J.W. went to the defendant’s house to get L.P. When she arrived, L.P. was sitting on the defendant’s lap. After J.W. told L.P. that her father was looking for her, the defendant pulled J.W. on his lap and then touched her inside her pants on her “private part” where she “goes to the bathroom,” and moved his hand around. L.P. and J.W. then went and told their mothers, who called the police. When J.W.’s mother confronted the defendant immediately after the incident, the defendant repeatedly said the girls were no longer allowed at his house.

IfiL.P. and J.W. later spoke to the police, and they were interviewed by Erika Du-pepe of the Children’s Advocacy Center on January 7, 2008. Those interviews were videotaped and shown to the jury. L.P. and J.W. were also examined at Children’s Hospital by Dr. Atzemis on January 11, 2008, and Dr. Atzemis testified that there were no abnormal findings and no expectations of any. It is noted that when Detective Horne (who was in plain clothes) and Deputy Howard (who was in uniform) went to the defendant’s house to speak to him about the allegations involving L.P. and J.W., before Detective Horne could introduce herself, the defendant blurted out, “I didn’t touch those babies, I love babies.”

J.A.

J.A., who was ten years old at the time of trial, testified that the defendant used to live with her grandmother, F.A., and that K.A. was her uncle. When she was seven or eight years old, she went to visit her grandmother. While J.A. was in K.A.’s room watching K.A.

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Cite This Page — Counsel Stack

Bluebook (online)
93 So. 3d 615, 11 La.App. 5 Cir. 712, 2012 WL 1192150, 2012 La. App. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hernandez-lactapp-2012.