State v. Ponsell

766 So. 2d 678, 2000 WL 1192697
CourtLouisiana Court of Appeal
DecidedAugust 23, 2000
Docket33,543-KA
StatusPublished
Cited by109 cases

This text of 766 So. 2d 678 (State v. Ponsell) 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. Ponsell, 766 So. 2d 678, 2000 WL 1192697 (La. Ct. App. 2000).

Opinion

766 So.2d 678 (2000)

STATE of Louisiana, Appellee,
v.
George H. PONSELL, Jr., Appellant.

No. 33,543-KA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2000.

*680 Louisiana Appellate Project by J. Wilson Rambo, Counsel for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, Counsel for Appellee.

Before CARAWAY, KOSTELKA and DREW, JJ.

DREW, J.

George H. Ponsell, Jr. was indicted by grand jury and convicted of two counts of Aggravated Incest in violation of La. R.S. 14:78.1. Following his adjudication as a Third Felony Habitual Offender, the trial court sentenced him to life imprisonment without benefit of probation, parole, or suspension of sentence. Defendant appealed, alleging the insufficiency of the evidence utilized to convict him on the aggravated incest offenses as well as to adjudicate him as an habitual offender. He further complained of Prieur violations and an excessive sentence. The convictions and sentence are affirmed.

FACTS

While babysitting, Mrs. Ponsell, wife of the defendant, observed her seven-year-old granddaughter, S.A., and her brother each touching the other's genitals. Mrs. Ponsell reported this inappropriate incident to her daughter, T.H., who was S.A.'s mother. T.H. asked S.A. whether anyone had touched her in that area and named several adult male family and non-family members whom S.A. had been around. S.A. responded that "PawPaw George" had "bothered her" by putting his finger inside her panties on two occasions. "PawPaw George," referred to the defendant, who was the child's step-grandparent by virtue of his marriage to Mrs. Ponsell (the mother of T.H. and the grandmother of S.A.). T.H. contacted the Monroe Police Department. At trial, a jury of six convicted the defendant after deliberating less than one-half hour, on two counts of Aggravated Incest, for the illicit fondling of his seven-year-old step-granddaughter, S.A.

DISCUSSION

La. R.S. 14:78.1 defines the crime of Aggravated Incest, providing in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section: (1) Sexual intercourse, sexual battery, aggravated sexual battery, carnal knowledge of a juvenile, *681 indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state. (2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

Sufficiency of Evidence

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court must first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

However, this court's authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Bosley, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La. App.2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

Trial

The appellant contended that there was no physical evidence of molestation of the child and that the testimonial evidence, both in-court and out-of-court, was hearsay. Accordingly, he claimed there was insufficient evidence to sustain his conviction. This complaint is without merit.

Contrary to appellant's assertions, the evidence at trial was overwhelmingly sufficient to sustain his conviction. The victim testified that the defendant stuck his finger in her (pointing to the region of her vagina) while she was visiting the defendant and her grandmother. She testified that this happened twice, that it hurt her, and that he (the defendant) told her not to tell anyone.

The victim's mother (T.H.) testified her mother and the defendant babysat for her while she worked. When she picked up the children, her mother, Mrs. Ponsell, informed her that the children were touching each other's genitals. T.H. then questioned S.A. whether anyone had touched her genital area. T.H. named several *682 adult men whom the victim had been around. She asked the victim "whether it's your dad, whether its your "PawPaw George," whether it's Mark or whether its your Uncle Joey." T.H. stated S.A. told her that "PawPaw George," i.e, the defendant, had been touching her and had put his finger in her on two occasions.

Dr. Meade O'Boyle, an expert in child sexual abuse, testified that S.A. told her that "PawPaw George" had put his hand inside her underwear on two occasions and that it hurt and made her feel uncomfortable. Although Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
766 So. 2d 678, 2000 WL 1192697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ponsell-lactapp-2000.