State v. Miller

84 So. 3d 611, 11 La.App. 5 Cir. 498, 2011 WL 6187123, 2011 La. App. LEXIS 1533
Louisiana Court of Appeal·Decided December 13, 2011·No. No. 11-KA-498·Published·Cited by 19 cases

Opinion

WALTER J. ROTHSCHILD, Judge.

12Pefendant, Michael Miller, was indicted by a grand jury on October 8, 2009, on one count of aggravated rape in violation of LSA-R.S. 14:42, and one count of aggravated incest in violation of LSA-R.S. 14:78.1. Defendant was arraigned and pled not guilty. On December 8, 2010, a 12-person jury found him guilty as charged on both counts.

Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which the court denied. Defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence on the aggravated rape conviction, and he was sentenced to 20 years imprisonment at hard labor on the aggravated incest of a child conviction. The court ordered the sentences to run consecutively. Defendant made an oral motion to reconsider ¡.-¡sentence, which the court denied. By this appeal, defendant asserts two assignments of error.

At trial, Sergeant James Wine of the Jefferson Parish’s Sheriffs Office testified that on December 4, 2007, he responded to a report of sexual abuse. He met with the victim, J.B.,1 and his father, Ja.B. J.B. alleged that he had been sexually abused approximately two to three years prior by defendant, Mike Miller, at an address on Central Avenue. J.B. lived in two different apartments on Central Avenue and could not remember either address. Sergeant Wine drove J.B. to Central Avenue, and J.B. showed him the location where the abuse occurred.

The alleged sexual abuse in this case occurred when J.B. was living with his mom, S.B., and his stepfather, Mike Miller, between May 20, 2002 and March 8, 2004. J.B. testified at trial.2 J.B. recalled the first time the abuse occurred when he was “about six” years old. J.B. stated, “[Defendant] called me into the living room. He was laying (sic) down and he exposed his penis to me and told me to suck it.” J.B. did as he was told. J.B. stated that defendant “spermed out” and then “he would wipe it on a rag.” J.B. testified that this occurred more than once. When asked where the abuse occurred, J.B. responded, “On Central.”

J.B. also recalled other instances of abuse that occurred when he was seven years old. J.B. stated, “I was to kneel on the couch, pull down my pants, and he put his penis through my legs and pushed it back and forth.” When asked how defendant would push it back and forth, J.B. responded, “He would hump.” J.B. testified that sometimes “there was pornography on the TV” during the abuse. When asked what was happening on the tape, J.B. responded that “a male and pfemale were having sex.” J.B. testified that the abuse occurred while his mom was at work. Defendant threatened to kill J.B. if [614]*614he told anyone. J.B. testified that the abuse stopped when defendant went to jail in 2004, when J.B. was about eight years old.

The victim’s father, Ja.B., testified that his son, J.B., was born on May 20, 1996, when Ja.B. was 16. Ja.B. was convicted in 1997, when he was 17, and was in prison until October of 2002. Ja.B. testified that a few months after he was released from prison, J.B., his mom, S.B., and defendant moved to Central Avenue. They lived there for three to six months before moving into another apartment on Central Avenue. Ja.B. testified that he initially saw J.B. on the weekends, but it started to become an issue when they moved to the new apartment on Central Avenue. He stated that when speaking to J.B.’s mother, S.B., he could hear defendant in the background not agreeing to the visitation. He testified that after defendant moved out in 2004, he could see his son “anytime [he] wanted.”

Ja.B. further testified that J.B. began living with him in September of 2007 due to his son’s behavioral issues. J.B.’s behavior worsened, and J.B. began “showing his privates” at school. Finally, at the suggestion of others, Ja.B. asked his son if anyone had ever abused him. J.B. responded affirmatively. J.B. told his father that he had been abused by defendant, “Mr. Mike.” Ja.B. then called the St. Tammany Parish Sheriffs Office, and they informed him that he needed to take J.B. to Jefferson Parish, where the abuse occurred. That evening, Ja.B. drove J.B. to Jefferson Parish, and they met with Sergeant Wine.

The victim’s mother, S.B., testified that she married defendant in September 2001, when J.B. was five years old. After they married, J.B. lived primarily with rela-fives. In 2002, S.B. and defendant moved into an apartment on Central |fiAvenue, and J.B. began staying with them more often. At that time, S.B. testified she was working at a daycare, but defendant was not working.

They subsequently moved into another apartment on Central Avenue.3 S.B. testified that defendant would walk J.B. to school in the morning and afternoon. Additionally, S.B. testified that J.B. began to have behavioral problems at Jefferson Elementary School when they were living on Central Avenue.

Erika Dupepe of the Jefferson Children’s Advocacy Center (“CAC”) testified that she interviewed J.B. on April 16, 2008, at the CAC. She testified regarding the role of the CAC and her qualifications as a forensic interviewer. She further testified about the interview process in general and the procedures that were followed when she interviewed J.B. The DVD of the CAC interview was then played for the jury.

Dr. Adrienne Atzemis testified as an expert in the field of child abuse pediatrics. Dr. Atzemis testified regarding possible reasons for a child’s delayed disclosure of sexual abuse and behavioral problems that result from sexual abuse. She further testified that she examined J.B. at Children’s Hospital on May 1, 2008. She stated that J.B. “disclosed a clear and detailed history of sexual abuse by Mr. Miller.” She stated:

He disclosed two types of contact. The first was penile/oral contact, meaning that Mr. Mike’s penis was in his mouth or his mouth was on Mr. Mike’s penis. And then also penile/thigh contact. He was saying that it was in between his legs. The penis was touching his thighs.

[615]*615She farther stated that J.B. had disclosed that defendant threatened to hurt him “if he told about what happened.”

Defendant was the defense’s only witness. Defendant denied watching pornography with J.B. and denied abusing J.B.

|fiBy this appeal, defendant claims the evidence was legally insufficient to convict him of aggravated rape and aggravated incest. Defendant argues that J.B.’s testimony had a number of inconsistencies. First, defendant contends that J.B. was inconsistent in his accounting of how defendant sexually abused him. Second, defendant argues that J.B. was inconsistent as to where the abuse occurred. Third, defendant argues that J.B. made inconsistent statements regarding whether a pornographic video was playing on the TV. Finally, defendant argues that J.B.’s statement concerning a washing machine at one of the apartments illustrates that J.B. was not being truthful.

Defendant further contends that the inconsistencies in J.B.’s testimony, as well as certain language he used, indicates that he was coached. Defendant also argues that J.B.’s biological father, Ja.B., was angry with defendant, suggesting that Ja.B. fabricated the allegations of abuse in retaliation.

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State v. Miller, 84 So. 3d 611, 11 La.App. 5 Cir. 498, 2011 WL 6187123, 2011 La. App. LEXIS 1533 (La. Ct. App. 2011).

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