State v. McKinney

194 So. 3d 699, 2015 La.App. 1 Cir. 1503, 2016 WL 1623906, 2016 La. App. LEXIS 804
CourtLouisiana Court of Appeal
DecidedApril 25, 2016
DocketNo. 2015 KA 1503
StatusPublished
Cited by11 cases

This text of 194 So. 3d 699 (State v. McKinney) 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. McKinney, 194 So. 3d 699, 2015 La.App. 1 Cir. 1503, 2016 WL 1623906, 2016 La. App. LEXIS 804 (La. Ct. App. 2016).

Opinion

McCLENDON, J.

| ¡^Defendant, Joseph S. McKinney, was charged by bill of information with molestation of a juvenile, a violation of LSA-R,S. 14:81.2. He entered a plea of not guilty. Following a jury trial, defendant was found guilty as charged.1 He subsequently filed a motion for new trial, which the trial court denied. Thereafter, the trial court sentenced defendant to thirty-five years at hard labor. Defendant now appeals, alleging two counseled assignments of error. He has also filed a pro se brief containing one cognizable assignment of error. 1 For the following reasons, we affirm defendant’s conviction, but vacate his sentence and remand for resentencing.

■ .FACTS

The victim, C.M.,2 is defendant’s biological daughter, and her date of birth is April 1,1997. C.M. and her younger sister lived with defendant in Indiana following the death of 'their mother in September of 2003.

When C.M. was twelve, she and her sister moved with defendant, to Louisiana. On April 23, 2011, C.M. and. her sister were placed into foster care because C.M. reported having been physically abused by defendant. After approximately one year in foster care, C.M. reported to her foster [702]*702mother that defendant had also sexually-abused her since she was six years old.

According to C.M., defendant began to perform oral sex on her when she was six years old. As the abuse progressed, defendant forced C.M. to perform oral sex on him, and he would also instruct her to cross her legs so that he could use the friction of her thighs to stimulate his penis until he ejaculated. While defendant briefly ceased these acts upon arriving in Louisiana, they resumed when the family moved into a residence in St. Amant. One day, after C.M. turned thirteen, defendant instructed her to come to his bedroom, where he vaginally |sraped her. Defendant continued to vaginally rape C.M. several times per week until she was removed from the home. Following a jury trial, defendant was found guilty of molestation of a juvenile.

SUFFICIENCY OF EVIDENCE

In his second assignment of error (addressed first), defendant contends that the trial court erred in denying his motion for new trial, based on a claim of insufficient evidence, because there was no physical evidence to corroborate C.M.’s testimony.3

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const, amend. XIV; LSA-Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after- viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also LSA-C.Cr.P. art. 821 B; State v. Ordodi, 06-0207 (La.11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988). The Jackson standard of review, incorporated in Article 821B, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, LSA-R.S. 15:438 provides that the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 01-2585 (La.App. 1 Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts | ¿reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La.App. 1 Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157, and 00-0895 (La.11/17/00), 773 So.2d 732.

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is [703]*703an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age is not a defense. LSA-R.S. 14:81.2 A(l). The Louisiana Supreme Court has defined “lewd and lascivious conduct” very broadly as any conduct which is “lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to the sexual impurity or incontinence carried on in a wanton manner.” See State v. Jones, 10-0762 (La.9/7/11), 74 So.3d 197, 204.

Thus, in order to commit molestation of a juvenile; the offender must possess the specific intent of arousing or gratifying the sexual desires of himself or the child upon whose person he committed a lewd or lascivious act or in whose presence he committed such an act. However, specific intent need not be proven as a fact. It may be inferred, from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93-1361 (La. App. 1 Cir. 5/20/94), 637 So.2d 814, 817-18, writ denied, 94-1563 (La.10/28/94), 644 So.2d 649, abrogated on other grounds, State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 . and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Specific criminal intent' is that state of mind which exists when-the'circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or | fifailure to act. LSA-R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Lavy, 13-1025 (LaApp. 1 Cir. 3/11/14), 142 So.3d 1000, 1005, writ denied, 14-0644 (La.10/31/14), 152 So.3d 150.

C.M. testified at trial regarding the acts committed against her by defendant. She first detailed , the repeated physical abuse inflicted upon her by defendant, including biting, punching, and hitting her with objects. C.M. then described that the molestation began at six years old (prior to her moving to Louisiana), when-defendant first performed oral sex on her in his bedroom. Over time, defendant also forced her to perform oral sex on him, used “sex toys” on her vaginal area, and stimulated himself to orgasm using the friction of her legs. C.M. stated that this abuse would occur multiple times per week. This activity briefly ceased upon the family’s move to Louisiana, when they lived with one of defendant’s friends. However, the abuse resumed when the family moved into their own residence in St. Amant, when the victim was still twelve years old. C.M. testified that defendant treated her as a mother and a wife, and she was forced on occasion to perform sexual acts in exchange for being allowed to spend time with her friends.

C.M.

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Cite This Page — Counsel Stack

Bluebook (online)
194 So. 3d 699, 2015 La.App. 1 Cir. 1503, 2016 WL 1623906, 2016 La. App. LEXIS 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-lactapp-2016.