State v. Roberts

769 So. 2d 162, 2000 WL 1407738
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2000
Docket33,814-KA
StatusPublished
Cited by1 cases

This text of 769 So. 2d 162 (State v. Roberts) 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. Roberts, 769 So. 2d 162, 2000 WL 1407738 (La. Ct. App. 2000).

Opinion

769 So.2d 162 (2000)

STATE of Louisiana, Appellee,
v.
David Earl ROBERTS, Appellant.

No. 33,814-KA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 2000.

*163 Peggy J. Sullivan, Louisiana Appellate Project, Counsel for Appellant.

Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, John Michael Ruddick, Assistant District Attorney, Counsel for Appellee.

Before BROWN, STEWART and PEATROSS, JJ.

BROWN, J.,

Defendant, David Earl Roberts, was convicted by a unanimous jury of the aggravated rape of his seven-year-old stepdaughter. After rejecting a motion for post-judgment verdict of acquittal, the trial court imposed the mandatory sentence of life imprisonment without benefit. Defendant appeals claiming the evidence was insufficient, and the trial court erred regarding jury instructions and the admission of a videotaped interview of the victim. Finding no error, we affirm.

Discussion

Sufficiency of the Evidence

According to defendant, a rational jury could not have convicted him based upon the evidence. Defendant notes that the victim was the only witness to the crime and that she was unable to identify him in court as the perpetrator of the crime. He also claims that although the evidence shows that the child's vagina (and anus) had been penetrated, it does not prove that the object of penetration was a penis. Defendant further asserts that the testimonies of the child, mother and experts were inconsistent, bizarre and unbelievable. He suggests in brief that the perpetrator may have been the victim's grandfather.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), constitutional due process requires a reviewing court to look at the probative nature of the evidence, in a manner most favorable to the prosecution, to insure that *164 a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. When the record of historical facts support conflicting inferences, a reviewing court must presume that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to that resolution. Jackson, supra; State v. Bosley, 29,253 (La. App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333; State v. Bellamy, 599 So.2d 326 (La.App. 2d Cir.1992), writ denied, 605 So.2d 1089 (La.1992).

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

Aggravated rape is the act of anal or vaginal sexual intercourse committed without the person's lawful consent because it is committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.

La. R.S. 14:42(A); State v. Ingram, 29,172 (La.App.2d Cir.01/24/97), 688 So.2d 657, writ denied, 97-0566 (La.09/05/97), 700 So.2d 505.

The victim's mother learned of the sexual molestation of her seven-year-old daughter when she observed her three-year-old daughter hitting her dolls and using profanity while doing so.[1] The toddler told her mother that her father had said those things to her older sister and that he had done things to her sister.[2] The mother then questioned her seven-year-old daughter, who broke down and described various sexual acts that her "daddy" had performed, including oral, anal and vaginal sex.[3] The victim related that her father told them they could never tell and that if they did, he would kill the girls and their mother. Approximately ten days later, when she felt safe in moving out of the home she shared with defendant, the mother reported the sexual abuse to the authorities.

Although the victim did not recognize defendant in the courtroom at trial, she stated that the perpetrator was her stepfather, David Earl Roberts. At trial, it was established that the victim had poor eyesight and did not have her glasses, which had recently been broken. It was also shown that defendant had significantly changed his appearance. Defendant, who at the time of his arrest had long hair and a beard, had gained weight, cut his hair and shaved off his beard.[4]

The record reflects that the victim was seven years old at the time of the latest assault. Dr. O'Boyle's physical examination revealed that the child had been penetrated in a manner consistent with penetration by a penis. Dr. O'Boyle also testified that the young girl's anus *165 showed definite signs of penetration. The victim testified that defendant put his penis in her mouth, vagina and anus and that he had ejaculated ("put gooey stuff with his `wee wee' in her tee tee and in her mouth which made her gag").

Defendant also contends that the testimony is inconsistent and bizarre. He characterizes as contradictory the testimony of the victim, her mother and the experts. The record does not support this argument. The alleged conflicts in testimony present no real contradictions on the basic questions.[5] In any event, in reviewing the evidence for sufficiency, this court must accept the jury's credibility calls and inferences drawn from conflicting evidence when those determinations are reasonably supported by the record. We may not second-guess the jury's resolution of the factual conflicts, but consider only whether the evidence deemed credible by the jury is legally sufficient to establish each essential element of the offense beyond a reasonable doubt. State v. Bosley, supra; State v. Baker, 28,152 (La.App.2d Cir.05/08/96), 674 So.2d 1108, writ denied, 96-1909 (La.12/06/96), 684 So.2d 925.

Finally, defendant suggests that he has been misidentified as the perpetrator, suggesting that it may well have been the victim's grandfather, since she also refers to him as "daddy." The victim assertively identified as the perpetrator her stepfather, "David Earl." She also described a marking near defendant's penis as a "mole" which was corroborated by the victim's mother, although she characterized it more as a distinct "marking" near his penis in the pubic hair.

The testimony of a victim alone is sufficient to prove the elements of the offense of aggravated rape. State v. Ingram, supra; State v. Walters, 26,888 (La. App.2d Cir.05/10/95), 655 So.2d 680. In this case, however, that testimony was corroborated by medical and physical evidence.

The evidence, viewed in a light most favorable to upholding the jury's verdict, was clearly sufficient to convict defendant of aggravated rape.

Jury Instructions

Defendant claims error in the trial court's refusal to give the following two jury instructions:

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Related

State v. Morrison
999 So. 2d 1197 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
769 So. 2d 162, 2000 WL 1407738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-roberts-lactapp-2000.