30-683 La.App. 2 Cir. 6/24/98, State v. Dorsey

• Decision Date: 24 June 1998
• Citation: 718 So.2d 466
• Parties: 30-683 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 466

718 So.2d 466

30-683 La.App. 2 Cir. 6/24/98

STATE of Louisiana, Appellee, v. Theodore DORSEY, Appellant.

No. 30683-KA.

Court of Appeal of Louisiana Second Circuit.

June 24, 1998.

Louisiana Appellate Project by Amy C. Ellender, Mer Rouge, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Susan E. Hamm, Assistant District Attorney, for Appellee.

Before WILLIAMS, STEWART and PEATROSS, JJ.

[30-683 La.App. 2 Cir. 1] STEWART, Judge.

This criminal appeal arises from the 4th Judicial District Court, Parish of Ouachita, the Honorable D. Milton Moore presiding. Defendant, Theodore Dorsey, was charged with and convicted by a jury of attempted forcible rape, La. R.S. 14:27 and La. R.S. 14:42.1. The court sentenced the defendant to serve 15 years imprisonment at hard labor without benefit of probation, parole or suspension of sentence. For the following reasons, we affirm defendant's conviction and sentence.

FACTS

At 10:00 p.m. on October 15, 1996, in Monroe, Louisiana, S.T. ¹ walked past a nightclub on the way to a friend's house. In front of the nightclub, she saw her stepbrother Michael Bowie and the defendant standing together. She spoke to her stepbrother and continued on to her friend's house.

After visiting her friend, S.T. decided to walk home. On her way back home, she encountered the defendant. The defendant, who was alone, told her that her stepbrother had "got into it with some guys" and was looking for her. S.T. said that her stepbrother was known for getting into trouble and that she wanted to find out what was wrong so she went with the defendant to find her brother. The two walked some distance toward the home of Bowie's girlfriend, but when they did not find Bowie, S.T. told the defendant that she was going to go home.

S.T. testified that when she turned to go home, the defendant jumped on her and forced her to the ground. The defendant was much larger and stronger than S.T. She struggled with the defendant and screamed for help as the defendant ordered her to be still. She tried to escape but fell, and the defendant grabbed her and said "I'm going to f--- you." S.T. continued to scream for help as [30-683 La.App. 2 Cir. 2] the defendant ripped her shirt off and dragged her toward a thicket. The defendant told S.T. to "shut up" and began to hit her on the head. S.T. would not stop screaming, and the defendant said "Bitch, shut up or I'm going to jug you." She explained that "jug" is a slang word for "stab" and that she saw that the defendant had a black case on his belt which she believed to contain a knife.

S.T. testified, as follows:

And so he straddled across me after he got me down in the thicket. He straddled across me. And he tried to unbutton my pants and pull them down.... He kept telling me, he said ... 'Pull. Come on and help me pull them down. Pull them down.' Like that. And I told him, I said, 'I'm not going to help you pull them down.' And he said 'Yes, you are.' And I said, 'No, I'm not.' Because he couldn't get them down. So he wanted me to pull them down and I wouldn't do it. And so he started hitting me again and I started screaming.

The defendant was unable to remove the victim's pants although he had unbuttoned and unzipped them. Dorsey then ripped off the victim's bra, licked her breasts and neck and put his tongue in her mouth. The victim said that the defendant then exposed his penis and demanded that she suck it. When she refused to do this, the defendant put his hand over her mouth and told her "If you act right, I'll let you go" and "You've got to do what I tell you to do if you want me to let you go."

At this time (around 1:00 a.m.), Mr. Clifton Robinson and his dog were walking down some nearby railroad tracks and heard the victim screaming. Mr. Robinson asked the two if they were all right. The defendant told Robinson that he and his girl were "just having problems," but S.T. screamed that she needed help and that the defendant was trying to rape her. The defendant got up and ran away.

Mr. Robinson (who has a variety of prior convictions and pending felony charges) said that S.T.'s clothing was in disarray and that she was "pretty upset and crying and frightened." Notably, Mr. Robinson testified that he and his dog [30-683 La.App. 2 Cir. 3] happened upon the victim because they were walking on the railroad tracks in order to catch a train headed toward Mississippi.

Shortly thereafter, Monroe Police Department (MPD) Officer Charles Johnikin was driving down a nearby street when he saw Mr. Robinson and the victim. Officer Johnikin testified that the victim was wearing a bra and pants and that she was "very hysterical" and frightened. The victim also had various bruises and scars about her face and arms. S.T. told the officer that a black male had tried to rape her. She described the defendant and told the officer the direction in which he ran. The victim told the officer that the defendant was wearing a football jersey bearing the number "73."

Recognizing that S.T.'s description matched a person he had just seen two blocks away, Officer Johnikin located and arrested the defendant. The defendant denied being with the victim or any female that evening.

MPD Officer Anthony G. Williams assisted Officer Johnikin at the crime scene. Officer Williams recovered the victim's torn yellow shirt from the scene and observed that the grass in the area appeared to be flattened as if someone had been lying on the ground there. Officer Williams testified, as follows:

[The defendant] said "Why are you charging me with attempted rape?" He said that he gave her five dollars and she wanted ten dollars to have sex with him.... He [also] said he grabbed her.

MPD Detective Arthur Graves interviewed the victim on October 16. The detective testified that S.T. was still very shaken from the attack. Detective Graves also testified that the victim never told him that the defendant said "I'm going to f--- you," but testified that she told him that the defendant said "I don't want to f--- you no more anyway" at one point.

For his case in chief, the defendant recalled Officer Johnikin, who testified that the victim never told him that the defendant said "I'm going to f--- you." The [30-683 La.App. 2 Cir. 4] Indigent Defender Board investigator, Daniel Kelly, testified that he interviewed the victim twice and that during these interviews, the victim never told him that the defendant made this statement. However, the investigator said that S.T. told him that she felt like the defendant was trying to rape her.

S.T. said that she didn't remember if she made that statement to police but testified, as follows:

It's just ... I mean something like that I didn't think to say that or anything like that because anybody with common sense would know that. And it's just, I mean--... it's not something I want to be telling everybody.

Based on all this evidence, the jury convicted the defendant of attempted forcible rape.

DISCUSSION

Assignment of Error 1: It was error for the Trial Court to refuse to include the special jury instructions the defendant requested.

Trial in this matter commenced on April 29, 1997. The day before, defense counsel filed a written request for certain special jury charges. The defendant requested that the court read to the jury the definitions of oral sexual battery, La. R.S. 14:43.3, sexual battery, La. R.S. 14:43.1, battery, La. R.S. 14:33, and simple battery, La. R.S. 14:35. The parties argued the matter before trial began, and the judge withheld ruling until after the close of evidence. When the case was complete, the judge refused to include these definitions in the charge, stating:

[T]he Court had considered those offenses and did not find that they were germane or relevant to the charged offense and that they would amount to what would be tantamount to a comment on the evidence, inasmuch as they are not permissive responsive verdicts and distinguish the charged offense attempted forcible rape from the homicide offenses; wherein, the Court of Appeal has held that negligent homicide must be included if there is a defense theory that could be argued. But I will note your objection and the special requested jury charges are in the record.

[30-683 La.App. 2 Cir. 5] On appeal, the defendant argues that the court's refusal to read these charges was reversible error.

La.C.Cr.P. art. 803 provides, in pertinent part:

When a count in an indictment sets out an offense which includes other offenses of which the accused could be found guilty under the provisions of Article 814 or 815, the court shall charge the jury as to the law applicable to each offense.

La.C.Cr.P. art. 814 provides, in pertinent part:

(A) The only responsive verdicts which may be rendered when the indictment charges the following offenses are:

11. Attempted Forcible Rape:

Guilty.

Guilty of attempted simple rape.

Not guilty.

None of the offenses included in the defendant's special charges are included in La.C.Cr.P. art. 814(A)(11). Moreover, these other crimes were not elements of the crime charged or of the responsive offense and the jury did not need the instructions to understand the charge or the responsive verdict. Therefore, with regard to La.C.Cr.P. art. 814, the court did not err by refusing to give the requested charges.

One of the grounds cited by the court in denying these charges was that the charges would amount to a prohibited comment on the evidence. La.C.Cr.P. art. 806 provides:

The court shall not charge the jury concerning the facts of the case and shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.

The requested charges did not "concern" the facts of the case in the manner contemplated by La.C.Cr.P. art. 806. In giving the charges, the court would not have told the jury what...