31,737 La.App. 2 Cir. 3/31/99, State v. Mickens
| Decision Date | 31 March 1999 |
| Parties | 31,737 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Peggy J. Sullivan, Louisiana Appellate Project, Monroe, Counsel for Appellant.
Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Susan E. Hamm, Assistant District Attorney, Counsel for Appellee.
Before NORRIS, GASKINS and CARAWAY, JJ.
[31,737 La.App. 2 Cir. 1] NORRIS, Chief Judge.
Charged with two counts of molestation of a juvenile when the offender has control or supervision, La. R.S. 14:81.2, Cantreal Dewayne Mickens was found guilty by a jury of the lesser included offense of indecent behavior with a juvenile, La. R.S. 14:81 on one count and as charged on the other. The District Court sentenced him to serve seven years hard labor for the indecent behavior conviction and ten years hard labor on the molestation conviction. The sentences were ordered to be served consecutively and without eligibility for good time diminution as a sex offender pursuant to La. R.S. 15:537. Mickens now appeals, urging several assignments of error. For the reasons expressed, we affirm.
Suspecting that her live-in boyfriend of three and one-half years, Cantreal Dewayne Mickens, might be molesting her then 13 year old daughter, C.C., as well as her three other children, Vicki Criff confronted the minors regarding her suspicions on October 14, 1997. Upon learning that Mickens, age 24, had molested C.C. on at least two occasions over a seven month period, she called the Ouachita Parish Sheriff's Office. That same day, Mickens was arrested for the offenses and charged by the State with two counts of molestation of a juvenile when the offender has control or supervision between April and October 1997.
After a two day trial, a six person jury found Mickens guilty of indecent behavior with a juvenile on one count and molestation of a juvenile when the offender has control or supervision on the other count. After ordering and reviewing a pre-sentence investigation report ("PSI"), the district judge sentenced Mickens to the maximum seven year hard labor sentence on the indecent behavior conviction and to 10 years on the molestation conviction, the sentences to run consecutively. Additionally, at the request of the state, the court also denied [31,737 La.App. 2 Cir. 2] Mickens eligibility for good time diminution of both sentences pursuant to La. R.S 15:537. After the denial of a timely motion for reconsideration of sentence, this appeal ensued urging assignments of error relative to sufficiency of the evidence, erroneous admission of hearsay evidence, and excessiveness of sentence. 1
By his fourth assignment of error, Mickens contends the evidence is not sufficient to support either conviction. We disagree.
When a defendant challenges both the sufficiency of evidence and one or more other trial errors, the appellate court should first resolve the sufficiency challenge. State v. Hearold, 603 So.2d 731 (La.1992); State v. Evans, 29,675 (La.App. 2 Cir. 9/24/97), 700 So.2d 1039, writ denied, 97-2942 (La.1/9/98), 705 So.2d 1121. The constitutional standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132. This standard, initially enunciated in Jackson and now legislatively embodied in 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. Daniels, 614 So.2d 97 (La.App. 2d Cir.), writ denied, 619 So.2d 573 (1993). This standard does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess credibility of witnesses or re-weigh evidence. [31,737 La.App. 2 Cir. 3] State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
To convict a defendant of molestation of a juvenile, the state must prove: (1) the defendant is a person over the age of 17; (2) the victim is a person under the age of 17; (3) there is an age difference of at least two years between the persons; (4) the defendant committed a lewd or lascivious act upon the person or in the presence of the victim; (5) the defendant committed such act with the intention of arousing or gratifying the sexual desires of either the defendant or the victim; and (6) the defendant committed the act either by the use of (a) force, violence, duress, menace, psychological intimidation, or threat of great bodily harm, or (b) influence by virtue of a position of control or supervision over the victim. La. R.S. 14:81.2; State v. Roberts, 541 So.2d 961 (La.App. 2d Cir.1989). The crime of indecent behavior with a juvenile is identical to the crime of molestation of a juvenile except that it does not require proof of the use of any type of force or influence as set forth in element (6) above. La. 14:81; State v. Hillman, 613 So.2d 1053 (La.App. 3d Cir.), writ denied, 617 So.2d 1181 (1993); see also, State v. Sturdivant, 27,680 (La.App.2d Cir.2/28/96), 669 So.2d 654.
The defendant in brief does not argue that the state failed to prove any specific element of either crime of conviction beyond a reasonable doubt but argues that the only real proof he committed the crime was C.C.'s own testimony. He contends that "[t]he evidence as presented, resting on the testimony of a young girl, faced with restrictions on her freedom was not sufficient to prove beyond a reasonable doubt that [defendant] was the person who engaged in sexual activities with [C.C.]."
When the defendant asserts that he was not the perpetrator, or he remains silent, the State bears the burden of negating any reasonable probability of misidentification. State v. Powell, 27,959 (La.App. 2d Cir.4/21/96), 677 So.2d [31,737 La.App. 2 Cir. 4] 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Even so, the appellate court must not substitute its opinion of the facts for that of the jury. It is the province of the jury to resolve conflicting inferences from the evidence. State v. Free, 26,267 (La.App.2d Cir.9/21/94), 643 So.2d 767, writ denied, 94-2846 (La.3/10/95), 650 So.2d 1175; see also, State v. Davis, 97-331 (La.App. 3d Cir.10/29/97), 702 So.2d 1014, writ denied, 97-2990 (La.11/6/98), 726 So.2d 919. Thus, upon review we must consider all the evidence in the light most advantageous to maintaining a verdict. State v. Free, supra. Furthermore, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a defendant's conviction. State v. Braswell, 605 So.2d 702 (La.App. 2d Cir.1992), and citations therein; State v. Gradick, 29,231 (La.App.2d Cir.1/22/97), 687 So.2d 1071. This is equally applicable to the testimony of sexual assault victims. State v. Rives, 407 So.2d 1195 (La.1981); State v. Thomas, 30,490 (La.App.2d Cir.4/8/98), 711 So.2d 808; State v. Free, supra; State v. Standifer, 513 So.2d 481 (La.App. 2d Cir.1987). Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence. State v. Turner, 591 So.2d 391 (La.App.2d Cir.1991), writ denied, 597 So.2d 1027 (1992).
At trial, C.C., who was the last witness, testified that Mickens lived in the home and regularly babysat her and her siblings while her mother worked; he would also discipline them by grounding and spanking them. She stated that she believed that she had to do what he said. C.C. related that defendant first began touching her inappropriately shortly after they moved into a residence on Tanglewood Drive in Monroe. While not remembering the exact dates, she said that on the first occurrence defendant placed his foot between her legs on her [31,737 La.App. 2 Cir. 5] "private" while they sat on the couch. On later occasions, defendant would wrestle with her, touching her "behind," "breasts," and "private part," sometimes under her clothing.
Next, C.C. testified that the touching turned into something more during one of the wrestling incidents. After defendant started touching her on that occasion, defendant pulled a sheet over C.C.'s head, held her wrists down and began having sex with her. The victim explained that Mickens got on top of her and "put his private parts in [hers]" and that he continued even after she asked him to stop. Defendant told her she would get in trouble if she told anyone. C.C. noted that she found blood in her panties the next morning. She further related that Mickens did the same thing to her on another occasion and stated that she experienced pain both times. C.C. testified that she could not remember the date or month either of these episodes took place. However, she was able to recall that in the early morning on the date Mickens was arrested he had wrestled with her and had began touching her on her breasts and private parts just prior to her mother entering her bedroom, the event which ultimately led C.C. to reveal the sexual assault.
Asked why she did not reveal Mickens's crime to her mother, C.C. stated that she was scared at first. She indicated that she believed that her mother loved defendant and wanted to marry him. Besides being afraid her mother would believe defendant over her, C.C. did not want to make her mother unhappy. However, she testified that she finally told her cousin, Curitessa, defendant had touched her, indicating to Curitessa that she had lied when she denied this to her mother just minutes earlier. She further stated that...
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