State v. Roy

177 So. 3d 1103, 15 La.App. 3 Cir. 515, 2015 La. App. LEXIS 2157, 2015 WL 6735621
Louisiana Court of Appeal·Decided November 4, 2015·No. No. 15-515·Published·Cited by 5 cases

Opinion

CONERY, Judge.

|! Defendant, Barry Roy, was charged by grand jury indictment with two counts of molestation of a juvenile while the juveniles were under his supervision and control, violations of La.R.S. 14:81.2. The victim of the first count was C.A.,1 and the victim of the second count was A.B. C.A. and A.B. were both under the age of seventeen at the time of the offenses. Defendant entered pleas of not guilty to both counts. Thereafter, Defendant was tried by a jury and found guilty of both counts.

The State filed a habitual offender bill against Defendant charging Defendant as a second habitual offender. Defendant entered a plea of not guilty to the charge. Defendant filed a “Motion for New Trial for Newly Discovered Evidence.” Subsequently, Defendant was adjudicated a second habitual offender on both counts of molestation of a juvenile.

The trial court denied Defendant’s motion for new trial and sentenced Defendant as a habitual offender to ten years at hard labor on each count, to run consecutively. Defendant filed a “Motion to Reconsider Sentence Imposed Pursuant to the Habitual Offender Law, La.R.S. 15:529.1,” which the trial court denied that same date. Defendant filed a pro se “Motion for New [1105] Trial,” and his attorney filed a motion to reconsider sentence. The trial court held a hearing and again denied the motion to reconsider sentence filed by Defendant’s counsel and the pro se motion for new trial filed by Defendant.

Defendant then filed a “Notice of Appeal and Motion to Substitute Counsel,” which the trial court granted that same date. Now before this court are |?,two separate appeals. Record number 15-515 is the appeal of Defendant’s conviction for two counts of molestation of a juvenile (lower court # 173084). Record number 15-516 is the appeal of Defendant’s habitual offender adjudication and sentences (lower court # 181963-A).

In his appeal of his conviction in 15-515, Defendant challenges the sufficiency of the evidence as to both of the convictions for molestation of a juvenile. For the following reasons, we affirm.

FACTS

Both victims testified that in 2011 and 2012, Defendant, DOB May 30, 1975, had sexual intercourse with them. Further, during that time, Defendant was the live-in boyfriend of the victims’ mother. C.A. and A.B. were both under the age of seventeen during that time period.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR

On appeal, Defendant challenges the sufficiency of the evidence as to his convictions for two counts of molestation of a juvenile. The jury convicted Defendant of committing molestation of A.B. and C.A. when Defendant had control or supervision over them. The crime of molestation of a juvenile, La.R.S. 14:81.2, provides in pertinent part:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual |sdesires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

In particular, Defendant asserts that the State failed to elicit information from the mother of A.B. and C.A. as to whether Defendant exercised supervision or control over the victims. Further, Defendant asserts that the victims fabricated the allegations.

The State asserts that Defendant moved into the victims’ home, pretended to be the father they did not have, and took advantage of two teenage girls in a dysfunctional home. The State further asserts, “Barry Roy preyed upon the ongoing conflict between [the mother] and her daughters; and masterfully turned that home into a sexual haven for himself, using two (2) teenagers to quench his sexual appetite.”

This court has stated the following regarding the standard for reviewing a claim of insufficiency of the evidence to support a conviction:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof [1106] beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. |4Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

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State v. Roy, 177 So. 3d 1103, 15 La.App. 3 Cir. 515, 2015 La. App. LEXIS 2157, 2015 WL 6735621 (La. Ct. App. 2015).

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