State v. King

524 So. 2d 1376, 1988 WL 35586
Louisiana Court of Appeal·Decided April 19, 1988·No. KA 87 1323·Published·Cited by 6 cases

Opinion

524 So.2d 1376 (1988)

STATE of Louisiana
v.
Ed KING.

No. KA 87 1323.

Court of Appeal of Louisiana, First Circuit.

April 19, 1988.

*1377 Freeman Ramsey, Asst. Dist. Atty., Amite, for plaintiff-appellee.

James Dukes, Robert Troyer, Asst. Public Defender, Amite, for defendant-appellant.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

Defendant was indicted by the Tangipahoa Parish Grand Jury and charged with five counts in a single indictment. The counts charged were aggravated rape, sexual battery and aggravated oral sexual battery of his seven-year-old daughter, violations of La.R.S. 14:42, 43.1 and 43.4, respectively. Additionally, the counts charged sexual battery and aggravated oral sexual battery of his one and one-half-year-old daughter, violations of La.R.S. 14:43.1 and 43.4, respectively. Defendant was tried by a jury which convicted him as charged on all five counts. Subsequently, the trial court sentenced defendant to life, without benefit of parole, probation or suspension of sentence for the aggravated rape. For each of the sexual batteries defendant received ten years. A sentence of twenty years was imposed for each of the aggravated oral sexual batteries. The court ordered that all five sentences run consecutive to each other.

Defendant has appealed, urging seven assignments of error, consisting of two unnumbered assignments and five numbered assignments. Defendant briefed five of his assignments of error and expressly abandoned assignment of error one and the second of his unnumbered assignments.

FACTS

The record reflects that defendant was thirty years old at the time of his March 10-12, 1987, trial. Kimberly King, defendant's wife and the victims' stepmother, testified that she, defendant and the children lived together in Tangipahoa Parish for about three or four months. They lived there in what she described as a "wreck", an "old house" that was a single story brick building. She testified that they had moved from Illinois to Louisiana and that, at the time the police came and removed the children from their home, they were living in the "run down building" in Hammond, Louisiana.

On September 8, 1986, Tangipahoa Parish deputy sheriff Kermit Stewart met with Monica Edwards, a state child protection investigator, and another individual. They informed Stewart that they had a "pick up order" for defendant's two children. In response, he picked up the children at their home on Ward Line Road in Hammond. On September 16, 1986, Tangipahoa Parish deputy sheriff Cullen Kennedy executed a warrant for defendant's arrest at defendant's Ward Line Road residence.

In response to a September 8, 1986, referral that had been received regarding the sexual abuse of defendant's seven-year-old child, Monica Edwards went to the child's school that same day and interviewed her. During the interview, the child told Edwards that defendant "licked on her thing," makes her "lick his," and "sticks it inside the little hole in front" and "inside her *1378 butt." During the initial interview, the seven-year-old victim told Edwards that defendant had been doing the foregoing things to her for a "long, long time" and that the last time it happened was the weekend preceding the initial interview.

Later, on September 12, 1986, Monica Edwards conducted a second interview with the seven-year-old victim at the Division of Children, Youth and Family Services of the Department of Health and Human Resources in Amite, Louisiana. This interview was videotaped pursuant to La.R.S. 15:440.1 et seq., which provides for electronic recording of statements by child abuse victims fourteen years of age or under and for the admissibility of such a recording as an exception to the hearsay rule. At trial, the videotape was introduced into evidence and viewed by the jury. During the videotaped interview, the victim made additional disclosures that defendant had also committed similar acts to her younger sister.

Dr. Nicholas Cefalu, Jr., qualified and was accepted by the trial court as an expert in the field of medicine with a speciality in family practice. He testified that he examined the seven-year-old victim on September 9, 1986. He determined that the child had some cervical irritation. When asked if he could determine how long the irritation had existed, he opined that it had existed for four to seven days. Based upon his findings of vaginal, cervical irritation and some laxity of the hymenal ring, Dr. Cefalu concluded that his examination had revealed a case of probable sexual abuse.

At trial, the seven-year-old victim gave testimony in which she repeated her descriptions of the acts of sexual abuse that defendant had committed against her and her sister.

ALLEGED FAILURE TO ESTABLISH VENUE

In defendant's first unnumbered assignment of error, he contends that the state failed to establish venue. We disagree.

La.C.Cr.P. art. 611 provides that all trials shall take place in the parish where the offense has been committed unless a change of venue is obtained. In order for the conviction to stand, venue must be proven during the course of the trial. La. C.Cr.P. art. 615; State v. Adams, 394 So.2d 1204 (La.1981); State v. Hookfin, 476 So.2d 481 (La.App. 1st Cir.1985). However, because venue is a special question, the scope of appellate review on that question is limited to determining whether there was some evidence, no matter how little, submitted to the jury to establish venue. State v. Adams, 394 So.2d at 1210. To sustain this proof, a trial court may take judicial notice of the fact that geographical locations mentioned by witnesses are within a particular parish, even if the parish is never specifically mentioned in the testimony. See La.R.S. 15:422; State v. Hookfin, 476 So.2d at 493.

The seven-year-old victim testified on direct examination that the offenses were committed while "we were living in that junky house." On cross-examination, the child testified that she did not remember living in a two story house. Thereafter, the child was asked two successive questions. The questions and her answer were as follows:

Q. When some of these things happened to you, weren't you living in the upstairs? It wasn't in that brick house was it?

A. No, sir.

Based upon the child's reply to the foregoing questions, defendant argues that the offenses could not have happened in Louisiana because the family only lived in the brick house while in Louisiana.

However, Tangipahoa Parish deputy sheriff Kermit Stewart testified that, after meeting with Monica Edwards on September 8, 1986, he picked up the victims at their single story brick home on Ward Line Road. Tangipahoa Parish deputy sheriff Cullen Kennedy testified that he arrested defendant on September 16, 1986, at his 1870 Ward Line Road residence, in Hammond, Louisiana. Monica Edwards testified that she went to the residence accompanied *1379 by law enforcement personnel. She described it as a one story brick home located in Tangipahoa Parish that appeared from the outside as "almost abandoned" and from the inside as unkept. Edwards further testified that the seven-year-old victim told her that the offenses (committed against both victims) occurred at that home. Kimberly Sue King testified that she, defendant and the victims lived together in an abandoned one story brick building in Tangipahoa Parish for about three or four months and that they were residing in the "run down" building in Hammond when the police came and took the children a

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State v. King, 524 So. 2d 1376, 1988 WL 35586 (La. Ct. App. 1988).

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