State v. Richoux

101 So. 3d 483, 11 La.App. 5 Cir. 1112, 2012 WL 3971719, 2012 La. App. LEXIS 1123
CourtLouisiana Court of Appeal
DecidedSeptember 11, 2012
DocketNo. 11-KA-1112
StatusPublished
Cited by20 cases

This text of 101 So. 3d 483 (State v. Richoux) 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. Richoux, 101 So. 3d 483, 11 La.App. 5 Cir. 1112, 2012 WL 3971719, 2012 La. App. LEXIS 1123 (La. Ct. App. 2012).

Opinion

SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant challenges his convictions and sentences for aggravated rape, sexual battery of a victim under thirteen years of age, and indecent behavior with a juvenile under thirteen years of age. For the following reasons, we affirm defendant’s convictions and sentences.

Procedural History

On September 16, 2010, a Jefferson Parish Grand Jury indicted Michael Richoux on two counts of aggravated rape of a victim under thirteen years of age, violations of La. R.S. 14:42, one count of sexual battery of a victim under thirteen years of age, a violation of La. R.S. 14:43.1, and one count of indecent behavior with a juvenile, a violation of La. R.S. 14:81. On Septem[485]*485ber 20, 2010, defendant was arraigned and entered a plea of not guilty.

On August 22, 2011, the matter proceeded to trial before a twelve-person jury. After a three-day trial, the jury unanimously found defendant guilty as charged on all four counts.

On August 30, 2011, the defense filed a motion for new trial, which the trial court heard and denied on September 1, 2011. That day, defendant waived the | .¡statutory sentencing delays and the trial court sentenced defendant as follows: for each count of aggravated rape, life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence; for sexual battery of a child under thirteen years of age, ten years at hard labor without benefit of probation, parole, or suspension of sentence; and for indecent behavior with a juvenile, seven years at hard labor without benefit of probation, parole, or suspension of sentence. The trial judge also informed defendant of the sex offender registration requirements and ordered his compliance. On September 7, 2011, the trial court granted defendant’s appeal.

Facts

At the time of trial, the victim, S.B.,1 was 12 years old.2 At trial, Lisa Breaux testified that the victim is her daughter’s best friend. Further, Mrs. Breaux has been friends with the victim’s mother and her aunts for many years and that she has known the victim since she was born.

On June 9, 2010, the victim was at the Breaux’s house for a sleepover. During the sleepover, the victim told her best friend and her best friend’s sister that the defendant, who they all knew, had been touching her. As a result, the girls told their mother, Lisa, who spoke with S.B. alone.

Mrs. Breaux testified that, during this conversation, the victim, who was hysterical, confessed that defendant taught her how to kiss with her tongue, he put his mouth on her breasts, showed her naked pictures of her aunt, dressed her in provocative underwear, used a vibrator on her, performed oral sex on her, inserted his penis into her mouth, and engaged in vaginal intercourse with her. After this |4conversation, Mrs. Breaux called the victim’s mother, K.D., who immediately came to the Breaux’s house.

The victim’s mother, K.D., contacted the Gretna Police Department to report the abuse. Sergeant Tris Lear interviewed the victim and her mother. Sergeant Lear also scheduled an interview of the victim at the Jefferson Parish Child Advocacy Center (CAC).

The victim testified that the defendant,3 her maternal uncle by marriage, began touching her inappropriately when she was six years old. The victim testified that, at first, defendant touched her “private parts” over her clothes. She indicated that her “private parts” meant her vaginal area.

The victim further testified that, when she was seven or eight years old, defendant started kissing her on the mouth. The victim testified that, when she was about nine years old, defendant touched her “other private parts,” which referred to her breasts.

In addition, the victim testified that, during the same time frame, defendant [486]*486“licked” her vaginal area with his mouth, touched her vaginal area with his penis, and made her touch his penis with her hand. Although, at trial, the victim denied performing oral sex on defendant, she stated, during her initial interview with the forensic examiner at the Child Advocacy Center (CAC), that she “licked his private.” 4

Further, the victim testified that, on two separate occasions, defendant took photographs of her without clothing. She also testified that defendant touched her with a vibrator on her unclothed vaginal area. Finally, defendant showed the victim nude pictures of his wife (her aunt).

|fiPursuant to the information obtained from the interviews, Sergeant Lear sought and was issued an arrest warrant for defendant. Defendant was subsequently arrested on June 22, 2010. Detective Brett Taylor of the Westwego Police Department obtained a search warrant for defendant’s residence. As a result of the search, nude photographs of defendant’s wife and a flesh-colored vibrator were seized.5

On August 26, 2010, Dr. Elaine Wets-man, who was offered as an expert in child abuse pediatrics, physically examined the victim. As is common in child sexual abuse cases, the physical examination did not reveal any observable injury.

After hearing the testimony and viewing evidence, the jury unanimously found defendant guilty as charged on all four counts. This timely appeal follows.

Law and Argument

On appeal, defendant raises three assignments of error: first, the trial court erred in denying the motion for new trial; second, the trial court erred in admitting evidence of other crimes; and, third, the testimony of the victim was insufficient to prove an essential element of the crime of aggravated rape.

When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Id. Thus, we will first address defendant’s third assignment of error.

In his third assignment of error, defendant argues that the evidence was insufficient to establish the offense of aggravated rape. He contends that the State failed to present credible evidence that there was either sexual intercourse or oral-feenitaI6 contact. Defendant claims, that, at best, the evidence established sexual battery.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953, p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885.

[487]

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Bluebook (online)
101 So. 3d 483, 11 La.App. 5 Cir. 1112, 2012 WL 3971719, 2012 La. App. LEXIS 1123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richoux-lactapp-2012.