State v. Johnson

670 So. 2d 651, 1996 WL 95021
CourtLouisiana Court of Appeal
DecidedMarch 6, 1996
Docket95-1002
StatusPublished
Cited by11 cases

This text of 670 So. 2d 651 (State v. Johnson) 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. Johnson, 670 So. 2d 651, 1996 WL 95021 (La. Ct. App. 1996).

Opinion

670 So.2d 651 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Rodney JOHNSON, Defendant-Appellant.

No. 95-1002.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1996.

*652 Charles F. Wagner, Dist. Atty., Alexandria, for State.

Joseph Richard Kutch, Pineville, for Rodney Johnson.

Before COOKS, DECUIR and GREMILLION, JJ.

*653 GREMILLION, Judge.

The defendant, Rodney Johnson, was charged by bill of indictment on October 20, 1994, with one count of aggravated rape of a child in violation of La.R.S. 14:42. Defendant entered a plea of not guilty on October 28, 1994. Pursuant to the state's motion, a Prieur hearing was held on March 29, 1995. On April 11, 1995, before jury selection, the state amended the bill of indictment to allege the defendant committed aggravated rape between January 1, 1986 and April 1989 rather than on January 1, 1986 and April 1989. After a petit jury trial was held on April 11-13, 1995, defendant was found guilty as charged by a unanimous vote. On April 28, 1995, defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant made an oral motion to reconsider the sentence, which was denied by the trial court. Defendant now appeals his conviction, alleging four assignments of error.

FACTS

Defendant committed aggravated rape upon his stepdaughter, N.J.[1], between the dates of January 1, 1986 and April, 1989. N.J. was between the ages of three and six years during the course of the sexual conduct alleged in the bill of indictment. The initial accusation of rape occurred when N.J. blurted out that her stepfather had raped her and now had done the same to her sister.

ASSIGNMENT OF ERROR NUMBER 1

Defendant claims the trial court erred in permitting the prosecution to introduce testimony at trial involving other sexual crimes committed by defendant against someone other than the victim. This testimony was set forth in a Prieur hearing. On January 18, 1995, the state filed a Motion to Introduce Evidence of Other Crimes pursuant to La.Code Evid. art. 404(B). According to the state, the defendant engaged in sexual behavior with another child, whose date of birth is April 11, 1986. The state alleged the evidence was "admissible pursuant to La. C.E. 404(B) because it shows a propensity and plan of the defendant to engage minor children living in his home in various forms of sexual behavior." At the Prieur hearing held on March 29, 1995, J.J. testified[2]. At the time of the hearing, J.J. was eight years old and in the third grade. According to J.J.'s testimony, the victim is her twelve year old sister. J.J. further testified that her father is the defendant, Rodney Johnson. Although J.J.'s mother and the defendant split up, J.J. continued to see the defendant on the weekends. J.J. testified as follows:

Q: When you spent the night at your dad's house, did anything ever happen that made you feel kinda bad? Made you feel uncomfortable?
* * * * * *
Q: Okay. Was that the time that something happened that made you feel bad?
A: Yes.
Q: Can you tell the Judge what happened?
A: He rubbed lotion on me and went too high.
Q: He went too high? How high did he go, honey?
A: To my waist.
Q: Okay. Did ... did he touch you somewhere that made you feel bad?
A: Yes.
Q: And where was that?
A: My private.
Q: Okay. Did he do anything else besides touch it?
A: Put his mouth on it.

When asked if anything happened to her sister, N.J., J.J. testified: "[w]hat happened to me but he didn't get to do what he done to me. He just went to her legs. She went underneath the bed."

The victim, N.J., also testified at the Prieur hearing. When asked if anything unusual *654 happened when she and J.J. spent the night with the defendant, N.J. testified:

A: He was rubbing ... he asked my sister if she wanted some lotion on her legs and she said alright. Then I asked for some.
Q: You asked for some?
A: Yes, sir. But I was gonna rub it on myself.
Q: Okay.
A: And he just grabbed my leg and rubbed it and then he grabbed me and I yanked my leg away and rolled under the bed. Slept there for the night.

N.J. stated that the defendant grabbed her once on her private part when he was trying to rub lotion on her leg. She also said that she did not see anything happen to her sister. Both girls gave this same testimony at trial.

At the Prieur hearing, the state argued that the evidence of the lotion incident with J.J. was admissible to show "a propensity and plan of the Defendant to engage minor children living in his home in various forms of sexual behavior." In response, the defendant argued the evidence was insufficient to show the behavior of the defendant was criminal. The trial court found the evidence admissible.

The trial court did not err in its ruling. This court was faced with a similar issue in State v. Howard, 520 So.2d 1150 (La.App. 3 Cir.1987), writ denied, 526 So.2d 790 (La. 1988). After extensively discussing Louisiana's jurisprudence on this issue, this court concluded:

Louisiana cases have determined that other crimes evidence may be admissible if the evidence had independent relevance to establish motive. State v. Abercrombie, [375 So.2d 1170 (La.1979)] supra; State v. Sutfield, 354 So.2d 1334 (La.1978). Other crimes evidence which has independent relevance and is admitted to show motive must satisfy two tests: 1) the evidence must be clear and convincing that the defendant committed the other crimes, and 2) the probative value of the evidence must outweigh the risk of prejudice—the risk that the defendant will be convicted because the evidence is used to show he is a man with a criminal disposition. State v. Abercrombie, supra. (The Abercrombie case makes a clear distinction between motive and intent. Although specific intent is not an essential element of aggravated rape, evidence introduced to establish general intent or motive is admissible. State v. Hills, 259 La. 436, 250 So.2d 394 (1971).)
In the instant case, the evidence of previous sexual assaults against a daughter at a period of time analogous to the current victim (pre-teen years) and under similar circumstances (appellant intoxicated and alone with the victim in that others are either away or asleep) demonstrated motive and a plan to systematically engage in nonconsensual relations with his daughters as they matured physically. See State v. Goforth, 59 N.C.App. 504, 297 S.E.2d 128 (1982). Additionally, the testimony was introduced to corroborate the assertions by the prosecutrix. See State v. Raye, 73 N.C.App. 273, 326 S.E.2d 333 (1985); People v. Hammer, 98 Mich.App. 471, 296 N.W.2d 283 (1980). The evidence of the prior crimes was clear and convincing in that the victim of that assault testified to the facts.

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Cite This Page — Counsel Stack

Bluebook (online)
670 So. 2d 651, 1996 WL 95021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-lactapp-1996.