State v. Kelly

456 So. 2d 642
Louisiana Court of Appeal·Decided August 22, 1984·No. 16317-KA·Published·Cited by 18 cases

Opinion

456 So.2d 642 (1984)

STATE of Louisiana, Appellee,
v.
Willie Williamson KELLY, Defendant-Appellant.

No. 16317-KA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 1984.
Rehearing Denied September 21, 1984.
Writ Denied December 7, 1984.

*644 Wright and Parker by Daniel P. Parker, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Johnny Parkerson, Dist. Atty., Robert S. Kennedy, Jr., Asst. Dist. Atty., for appellee.

Before PRICE, JASPER E. JONES and NORRIS, JJ.

PRICE, Judge.

Defendant appeals his conviction of Aggravated Crimes Against Nature, La.R.S. 14:89.1 and has made numerous assignments of error. We find no merit in any of the assignments and affirm the conviction for the reasons assigned.

FACTS:

Defendant is accused of forcing his six-year-old granddaughter to perform fellatio on him. The child's mother, defendant's daughter-in-law, testified at trial that she noticed severe behavioral changes in her daughter, then five years old, in October 1982. Upon questioning, the child indicated the defendant had been engaging in sexual behavior with her.

Ms. Kelly further testified that when she confronted the defendant about the matter, he denied the allegation and said the child had told him her mother was sexually abusing her. Not knowing whom to believe, Ms. Kelly sought, and received, assurances from her husband, from whom she was separated at the time, that her daughter would not be left alone with the defendant at any time.

In February 1983, again in response to her mother's questioning, the child indicated she had been left alone with the grandfather at times during visitations with her father and the sexual abuse had continued. At this point, during a time when her daughter was supposed to be staying with her father, Ms. Kelly contacted the district attorney's office and made a statement regarding the matter. She then went to her ex-husband's house to pick up the little girl, but found she was at defendant's home. She picked her up there and drove directly to the sheriff's office.

During the drive Ms. Kelly asked the child if she remembered the previous discussion about her grandfather, and she replied that she did. During that conversation, she indicated that the same type of incident had occurred just a while before. When her mother tried to elicit a more specific time reference, the child repeated that it had happened just a while ago and *645 pointed back towards the defendant's home.

The little girl was subsequently placed in the foster care of Brenda Erwin through the Child Protection Agency. At the suggestion of agency personnel, Erwin had ordered a set of anatomically perfect dolls, male and female, for the emotional treatment of the child. The mother borrowed the dolls when custody was returned to her. Ms. Kelly testified that during a discussion with the little girl some two or three weeks before trial, she voluntarily brought the dolls to her mother and demonstrated what the defendant did to her. She placed the female doll on its back and placed the male doll on top of it. She pulled the pants down on the male doll and pulled the dress up and the pants down on the female doll. She then placed the penis of the male doll in the mouth of the female doll, and placed the hand of the male doll at the vagina of the female doll. She also had the male doll play with the breasts of the female doll.

After a competency examination of the child by the trial court outside the presence of the jury, she was placed on the witness stand and reaffirmed the testimony given by her mother, using the dolls to demonstrate to the jury what the defendant had done to her.

Dr. Meade O'Boyle, a pediatrician in Monroe, testified at trial that she had examined the child on February 25, 1983. According to her testimony, the child had a profuse vaginal discharge and redness and slight swelling of her vagina, although her hymen was intact. Dr. O'Boyle testified that the condition revealed by the physical examination was consistent with that of a child who has been sexually abused.

The defendant testified in his own behalf and denied the charges against him. The remainder of his defense consisted primarily of a number of character witnesses.

On rebuttal, the state introduced the testimony of two male foster children who had lived in the home of the defendant five years ago. Both boys testified that while they were staying in his home the defendant forced them to perform various sexual acts similar to those described by the complainant in this case.

The jury found the defendant guilty as charged by a vote of 11 to 1.

ASSIGNMENTS OF ERROR:

1) The trial court erred in allowing the testimony of the child's mother to be heard by the jury when such testimony was hearsay, and where the State had failed to establish a corpus delecti.
2) The trial court erred in allowing the testimony of the child's mother regarding any statements made at the district attorney's office where said statements were not subsequently introduced into evidence and said testimony laying a foundation for said statements merely prejudiced the jury.
3) The trial court erred in finding that the six-year-old child was competent to testify considering the contradictory nature of her answers during its interrogation and considering her age and the number of times she was educated in how the State desired her to testify.
4) The trial court erred in allowing the child to testify where the DA promised her that after said testimony she could go home and she had been educated several times as to what testimony the prosecution desired.
5) The trial court erred in failing to grant defendant's motion for mistrial considering that the child's testimony was so prejudicial that a mere admonition to the jury could not suffice to remedy the damage of inadmissible testimony.
6) The trial court erred in allowing Officer Richard Medares to testify regarding the arrest of the defendant herein, where such testimony served no purpose other than to prejudice the jurors.
7) The trial court erred in allowing the state to call David Kelly as its witness, *646 where the State failed to sound his name at the beginning of the trial.
8) The trial court erred in sustaining the state's objection to hearsay testimony of the child's father as to what the child told him where the Court had previously allowed the mother's testimony regarding statements by the child.
9) The trial court erred in allowing the state to present testimony regarding prior acts of the defendant on rebuttal, where there was no showing that defendant had ever been accused or convicted of molesting any children in the past, and no proper foundation had been laid for that testimony.
10) The trial court erred in allowing the testimony of the two foster children where they failed to identify the defendant as the same Mr. Kelly that they lived with several years prior to their testimony and where no corroborating evidence was offered to place them in his residence at that time.

ASSIGNMENT NO. 1:

By this assignment of error, the defendant asserts that the statements made by the child to her mother during their ride from the defendant's home to the Sheriff's Office constituted hearsay evidence, and thus were inadmissible.

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