State v. Thomas

711 So. 2d 808, 1998 WL 163571
CourtLouisiana Court of Appeal
DecidedApril 8, 1998
Docket30490-KA
StatusPublished
Cited by31 cases

This text of 711 So. 2d 808 (State v. Thomas) 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. Thomas, 711 So. 2d 808, 1998 WL 163571 (La. Ct. App. 1998).

Opinion

711 So.2d 808 (1998)

STATE of Louisiana, Appellee,
v.
Donald Ray THOMAS, Appellant.

No. 30490-KA.

Court of Appeal of Louisiana, Second Circuit.

April 8, 1998.

*810 Louisiana Appellate Project by Richard J. Gallot, Jr., Ruston, for Appellant.

Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Karen Avery and Catherine Estopinal, Assistant District Attorneys, for Appellee.

Before MARVIN, C.J., and NORRIS and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, Donald Ray Thomas, urges eight assignments of error in appealing his jury conviction of aggravated rape, La. R.S. 14:42. We affirm.

FACTS

After receiving an anonymous call reporting that JT had been the victim of sexual abuse, Bill Bamonte, an investigator for the Caddo Office of Community Services, Division of Child Protection, conducted an interview with the six-year-old at her school on April 9, 1996. The young girl told him that her father, Donald Ray Thomas, on two separate occasions put his finger into her vagina and in another incident "tried to put his private part in her private part" and "had put her mouth on his private part," even with her mother in the room smoking a cigarette. The next day, the upset child recanted the statement, informing Bamonte that her father said she would go to jail if she continued to talk to the investigator and instructed her to say, among other things, that "she must have been confused." Later, on April 15, 1996, to Caddo Parish Sheriff's investigator Mike Christian, the child reiterated her original statement.

Christian had previously interviewed JT's parents on April 11, 1996. The mother acknowledged being aware of both episodes, occurring six months to a year prior to her statement, and being present in the room as the child stated. The father initially denied having any sexual contact with his daughter but, when confronted with contrary statements from his wife and JT, finally admitted trying to put his finger in the six-year-old's vagina, fondling her genitals, and attempting on one occasion to have sex with the child when she got into bed with him and his wife.

The authorities arrested the father and charged him with aggravated rape. Upon grand jury indictment, the matter proceeded to trial on March 17, 1997. After conviction, the court imposed a life sentence.

DISCUSSION

SUFFICIENCY OF EVIDENCE

Defendant complains, in his second assignment of error, that the trial court denied his Motion for Post-Verdict Judgment of Acquittal challenging the sufficiency of the evidence to support the aggravated rape verdict.

The criterion for evaluating sufficiency is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational fact-trier could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). That standard, initially enunciated in Jackson and now legislatively embodied within La.C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983); State v. Perry, 612 So.2d 986 (La.App. 2d Cir.1993).

Of course, it is always the function of a judge or jury to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir. 1992), writ denied, 617 So.2d 905 (1993). Where a trier of fact has made a rational determination, an appellate court should not disturb it. Id.; State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (1992). Indeed, in the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of *811 one witness, if believed by the fact-trier, is sufficient support for the requisite factual conclusion. State v. Thomas, supra.

In the present matter, the crime of aggravated rape required proof by the state that defendant engaged in anal or vaginal sexual intercourse with the victim, then less than twelve years old. Such acts would be deemed without the child's lawful consent due to her tender age. Emission is not necessary and any sexual penetration, however slight, is sufficient to complete the crime. La. R.S. 14:41, 14:42. Arguing that the evidence, due to the lack of proof of penetration, would "at most ... prove an attempt by [a]ppellant to engage in sexual intercourse with his daughter," Thomas urges this court to modify the verdict as authorized by La.C.Cr.P. art. 821(E).

While the medical examination did not establish that the child had been penetrated, both testifying physicians noted that the absence of such physical evidence does not mean that penetration did not occur because of the elastic and quick-healing tissues involved. More importantly, the evidence of penetration in this case comes from the unequivocal testimony of JT, who discussed two of the incidents with a clarity exceeding her six years. Concerning the episode where her mother remained in the room, she stated, "[m]y dad had sex with me," while further indicating that he touched her privates with "his hands and his privates." When asked if the encounter hurt, the child answered in the affirmative.

Stating that in the second incident her father called her into her brother's bedroom, the child twice testified that defendant "stuck his privates in mine" and told her not to tell her mother. Given that the physical evidence does not unresolvably contravene the victim's statements, her testimony alone is sufficient to establish penetration and the other elements of the offense. Cf. State v. Rives, 407 So.2d 1195 (La.1981); State v. Abbott, 29,497 (La.App.2d Cir. 06/18/97), 697 So.2d 636. The evidence thus sufficiently supports the jury's conclusion that, beyond a reasonable doubt, defendant fully accomplished the aggravated rape of his six-year-old daughter. This assignment of error is without merit.

ADMISSIBILITY OF STATEMENT

In assignments one and three, defendant maintains that the trial court erroneously accepted into evidence his statement made to Investigator Christian. Thomas argues that his admissions resulted from "subtle, psychological coercion" and deprived him of his right to have an attorney present during questioning. In essence, these same grounds had been urged earlier in a motion to suppress and a motion for new trial, both denied by the district court.

Of course, before a confession can be introduced into evidence, the state faces the burden of showing the statement to have been made freely and voluntarily, and not formulated under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.C.Cr.P. art. 703(D); La. R.S. 15:451; State v. Comeaux, 93-2729 (La.07/01/97), 699 So.2d 16. The test for voluntariness involves a review of the totality of the circumstances surrounding the statement, and any inducement offered is but one factor in that analysis. State v. Lavalais, 95-0320 (La.11/25/96), 685 So.2d 1048, 1053, cert. denied ___ U.S. ___, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997).

Although promises or inducements will void a defendant's confession, State v. Serrato, 424 So.2d 214 (La.1982); State v. Jackson, 414 So.2d 310 (La.1982), a mild exhortation to tell the truth, or an indication that if the defendant cooperates the officer will "do what he can" or "things will go easier," will not negate the voluntary nature of a confession. State v.

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Bluebook (online)
711 So. 2d 808, 1998 WL 163571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-lactapp-1998.