State v. Myles

887 So. 2d 118, 2004 WL 2290375
Louisiana Court of Appeal·Decided October 12, 2004·No. 04-KA-434·Published·Cited by 19 cases

Opinion

887 So.2d 118 (2004)

STATE of Louisiana
v.
Oscar MYLES.

No. 04-KA-434.

Court of Appeal of Louisiana, Fifth Circuit.

October 12, 2004.

*120 Bruce G. Whittaker, New Orleans, Louisiana, for Appellant, Oscar Myles, III.

Oscar Myles, III, Allen Correctional Center, Kinder, Louisiana, in Proper Person.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Appellate Counsel, Ralph C. Cox, III, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.

Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.

SUSAN M. CHEHARDY, Judge.

On January 15, 2003, the Jefferson Parish District Attorney's Office filed a bill of information charging the defendant, Oscar Myles, with molestation of a juvenile, a violation of La. R.S. 14:81.2. The defendant was arraigned on January 16, 2003, and pled not guilty.

On May 15, 2003, the six-member jury returned a verdict of guilty as charged. On June 4, 2003, the trial court denied the defendant's Motion for New Trial and sentenced the defendant to four years at hard labor with credit for time served. On the same day, the State filed a multiple offender bill of information alleging that defendant was a fourth-felony offender and defendant denied the allegations. The trial court also granted defendant's motion for appeal.

On August 20, 2003, after the hearing on the multiple-offender bill of information, the trial court found defendant to be a fourth offender. The trial judge then imposed an enhanced sentence on defendant of twenty years at hard labor "without benefits."[1] On the same day, the defendant filed a Motion to Reconsider Sentence. The defendant then filed another Motion for Appeal to include *121 the multiple-offender finding and sentence.

FACTS

On November 11, 2002, Officer Corey Newby of the Gretna Police Department responded to a domestic disturbance at 710 Cook Street in Gretna. When Officer Newby arrived, he learned that a woman had stabbed her boyfriend. Officer Newby testified that, after the woman, J.W.,[2] was arrested, she told Officer Newby that she wanted to leave her three children with her neighbor, Oscar Myles. Officer Newby testified that he went to the woman's apartment, found Myles in the apartment with two boys and a girl, alerted Oscar Myles of the woman's request, and documented Myles' information for his police report. Officer Newby also testified that, before he left the complex's parking lot, he saw the two boys that had been in the woman's apartment run down the breezeway to another apartment in the complex.

At trial, B.W., the eleven-year-old victim, testified that on the night her mother was arrested, the defendant waited about ten minutes after the policeman left her apartment then sent B.W.'s brothers to his apartment to watch television. After her brothers left, defendant locked the front door to the apartment then went into the bathroom. When he returned, he knelt in front of her as she was watching television and started kissing her on the lips. Next, he picked her legs up, laid her on her back on the couch, pulled down her pajama pants and underwear, then laid on top of her with his pants at his knees. He continued to kiss her mouth. He then touched and kissed her chest. He also touched her with his fingers on the outside and inside of her "private part area," which hurt badly. When defendant asked her if she wanted him to stop, she responded "yes." He kissed her again then got up and pulled up his pants. She testified that she quickly pulled up her underwear and pants. When defendant unlocked and opened the front door, she heard "Kristi" ask defendant why he was in the apartment "alone with a female." Her brothers arrived back at their apartment and "Kristi" stayed with them.

Kristi Kordys, the assistant manager of the apartment complex, testified that she knew the children's mother had been arrested so she went to their apartment to check on them. As she arrived, she saw the boys walking toward their apartment and saw Oscar Myles at the front door of the victim's apartment. Kordys also saw the victim standing inside the apartment near the doorway. Kordys remembered that the victim was wearing very loose pants, which she was clutching at the waist. She could tell that the drawstring on the pants was not tied.

Kordys stated that she confronted Myles about the propriety of being alone in the apartment with B.W. and he informed her that J.W. had left him in charge of her children. He then told Kordys that he was helping B.W. look for "paperwork" to help get J.W. out of jail. Kordys, on the apartment manager's instruction, stayed with the children at that point, got them ready for bed, and locked them into their apartment.

In the early morning hours of November 12, 2002, A.W., the children's maternal aunt, picked them up and brought them to her house. She testified that the children immediately went to bed after they arrived *122 at her house. A.W. learned that, while she was at work the next day, B.W. just stayed in bed with the covers over her head. She did not eat that day. Later that evening, B.W. would not leave her room to watch videos with the family.

When B.W.'s great-uncle, I.T., called that evening, he told A.W. to find out if the children had been separated after their mother was arrested. As soon as her brothers admitted that they were separated, B.W. hung her head and got quiet. B.W.'s aunt asked the boys to leave and questioned B.W. alone. Initially, B.W. did not respond to any of her questions, except to say that she was separated from her brothers. B.W. testified that she felt ashamed and did not tell her aunt what happened until later, seven or eight that night.

Eventually, B.W. told her aunt that the defendant pulled her pants down, touched her breast, and put his fingers inside of her. A.W. immediately took B.W. to Lakeland Medical Center. Officer Newby of the Gretna Police Department, who had earlier arrested B.W.'s mother, came to Lakeland to interview B.W., and then escorted them to Children's Hospital. At Children's Hospital, Dr. Albert Baker, an emergency room physician, performed a forensic examination on B.W. to test for sexual abuse. During the forensic examination, Dr. Baker performed a general physical exam and pelvic exam. He also collected fluid and blood samples. According to Dr. Baker, the results of the exams and tests were unremarkable. Dr. Baker opined that it was not unusual that an eleven-year-old female who was digitally penetrated by an adult male would not have significant findings during a physical exam.

Omalee Gordon, a forensic interviewer with the Jefferson Parish Children's Advocacy Center, testified that she interviewed B.W. about the incident. Their interview, which was videotaped, was played for the jury.

Dr. Scott Benton, who is Director of the Pediatric Emergency Medicine Program at the Children At Risk Evaluation Center of Children's Hospital, was accepted as an expert in the field of pediatric forensic medicine. He testified that it was not surprising that nothing remarkable was found in B.W.'s examination because at her age the hymen is "stretchy" so there would be minimal residual trauma unless there was undue force or a unique situation. In addition, her lack of resistance further lessened the probability of trauma.

He testified that, in his experience, it is very rare that a child comes forward immediately after a sexual abuse incident. Children in the age range of B.W.,

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State v. Myles, 887 So. 2d 118, 2004 WL 2290375 (La. Ct. App. 2004).

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