State v. Barbain

• Decision Date: 04 November 2015
• Docket Number: No. 2015–KA–0404.,2015–KA–0404.
• Citation: 179 So.3d 770
• Parties: STATE of Louisiana v. Derek J. BARBAIN.
• Court: Court of Appeal of Louisiana — District of US

179 So.3d 770

STATE of Louisiana

v.Derek J. BARBAIN.

No. 2015–KA–0404.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 4, 2015.

Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Scott Vincene, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.

Sherry Watters, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

ROSEMARY LEDET, Judge.

In this criminal appeal, the defendant, Derek Barbain, seeks review of his convictions and sentences for sexual battery, aggravated rape, and aggravated incest. For the reasons that follow, we affirm.¹

STATEMENT OF THE CASE

On October 21, 2011, Mr. Barbain was charged by a three count grand jury indictment with the following:

• The sexual battery of T.B.,² from May 1, 2005 through July 31, 2005, in violation of La. R.S. 14:43.1 ;

• The aggravated rape of T.B., from March 1, 2006 to March 19, 2007, in violation of La. R.S. 14:42 ; and

• The aggravated incest of T.B. from March 20, 2007 to July 29, 2011 in violation of La. R.S. 14:78.1.³

On October 25, 2011, Mr. Barbain was arraigned; and he pled not guilty. On that same date, the district court granted defense counsel's request to schedule a mental competency hearing.

On November 10, 2011, Mr. Barbain was interviewed by Dr. Sarah DeLand and Dr. Harminder Malik. On November 15, 2011, a mental competency hearing was held. Accepting the doctors' recommendation, the district court found Mr. Barbain competent to stand trial.

On May 2, 2012, the district court granted Mr. Barbain's motion to withdraw his right to jury trial and to invoke his right to trial by judge.

On January 11, 2013, the State filed a notice of intent to offer evidence of similar crimes, wrongs, or acts involving previous sexually assaultive behavior or acts by the defendant at the time of trial under La.Code of Evidence Article 412.2.

After several continuances, trial was scheduled to commence on August 12, 2013. On the morning of trial, the district court denied Mr. Barbain's request for a continuance and denied Mr. Barbain's counsel's motion to withdraw.⁴ In addition, despite defense counsel's objections, the district court judge stated that he would allow the State to introduce evidence pursuant to La. C.E. art. 412.2.⁵ On that same date, a bench trial commenced. On August 13, 2013, the trial concluded; the district court judge found Mr. Barbain guilty as charged on all three counts.

Mr. Barbain's counsel requested a mental competency hearing before the district court heard post-trial motions and conducted sentencing. On February 6, 2014, a mental competency hearing was held at which Dr. Michael Blue testified. Accepting Dr. Blue's recommendation, the district court found Mr. Barbain incompetent for post-trial motions and sentencing.⁶ On October 9, 2014, the district court held another competency hearing, at which Dr. Thomas Oden testified. Accepting the recommendation of Dr. Oden, the district court found Mr. Barbain competent to proceed with post-trial motions and sentencing.

On November 18, 2014, Mr. Barbain filed a motion for new trial. On December 8, 2014, the district court denied Mr. Barbain's motion for new trial and granted his motion for appeal. On December 9, 2014, the district court sentenced Mr. Barbain to ten years at hard labor without benefit of parole, probation, or suspension of sentence for sexual battery; life imprisonment without benefit of parole, probation, or suspension of sentence for aggravated rape; and ten years at hard labor for aggravated incest, all to be served concurrently and with credit for time served. This appeal followed.

STATEMENT OF THE FACTS

T.B., the victim, was born on March 20, 1994. Her mother, L.B., started dating Mr. Barbain in the summer of 2000. Shortly thereafter, Mr. Barbain and his daughter, D.R., moved in with L.B. and her children, T.B. and C.R. In 2005, after moving to the Willowbrook Apartments in New Orleans, Mr. Barbain touched T.B.'s genitals over her clothes and inserted his finger into her vagina.

On July 30, 2005, L.B. and Mr. Barbain were married. After Hurricane Katrina struck the New Orleans area in August of 2005, the family temporarily relocated to Texas. In 2006, the family moved back to New Orleans into a leased house on Haynes Boulevard, near Crowder Boulevard. Before moving in, Mr. Barbain asked T.B. if she wanted to view the house before anyone else. While at the house, Mr. Barbain undressed T.B. and had vaginal intercourse with her. After the family moved into the residence, Mr. Barbain continued having sex—vaginal and oral—with T.B.

C.R., T.B.'s brother, routinely checked on his mother at night due to her back problems. On many occasions, he observed Mr. Barbain entering T.B.'s bedroom. C.R. witnessed Mr. Barbain exiting T.B.'s room an hour or two later with a big Koolaid smile on his face. On one occasion, while Mr. Barbain was babysitting T.B. and C.R., he touched T.B.'s breasts, vagina, and butt before positioning himself on top of her. C.R. entered the room and witnessed Mr. Barbain on top of T.B. in bed having sex. Mr. Barbain explained that he and T.B. were wrestling and ordered C.R. to leave the room.

Between 2007 and 2008, the family moved to a residence on Haynes Boulevard, near Bullard Avenue. Mr. Barbain continued having sexual intercourse with T.B. During this time, Mr. Barbain frequently sent C.R. to the store. While C.R. was out of the house, Mr. Barbain would touch her inappropriately. T.B. also testified that she would awaken at night to see Mr. Barbain standing over her touching himself.

The abuse continued throughout 2009 and 2010, after the family moved to a residence on Vanderkloot Avenue in New Orleans. By this time T.B. was around sixteen years old, and she knew what Mr. Barbain was doing to her was wrong. The abuse became less frequent. Mr. Barbain however attempted to continue the abuse by promising T.B. money and gifts. In response, T.B. started acting out, talking back to her mother and Mr. Barbain, and getting in altercations with them.

T.B. initially did not confide in anyone about the abuse. She was embarrassed and afraid to tell her mother out of fear that her mother's depression would cause her to harm herself. T.B. testified that her father, Julius Ivery,⁷ had a bad temper; she was afraid he would have physically hurt Mr. Barbain if she disclosed the abuse.

On July 29, 2011, T.B. was in a heated altercation with her mother and Mr. Barbain regarding her disrespectful attitude. When Mr. Barbain picked T.B. up from work that afternoon, he attempted to give her a bracelet as an apology. Not wanting Mr. Barbain to touch her, T.B. refused to accept the bracelet. Upon returning home, an altercation ensued when L.B. learned that T.B. did not accept the bracelet. After the altercation with her mother, T.B. called Mr. Ivery and asked that he come get her.

After Mr. Ivery arrived at T.B.'s house on Vanderkloot Avenue, they went for a drive. Mr. Ivery noticed that T.B. was very emotional and crying. He asked T.B. if her mother hit her or if someone touched her; T.B. responded that she was touched. When he inquired further, T.B. stated that she did not want to explain. Mr. Ivery testified that he knew instantly that she meant she was touched sexually, but he refused to ask her any further questions. He returned to the residence to speak with L.B. and Mr. Barbain. Mr. Ivery informed L.B. of what T.B. disclosed. Meanwhile, Mr. Barbain left the area. Later that day, Mr. Ivery called 911 and reported what T.B. disclosed.⁸

DISCUSSION

Assignment of Error Number 3

Mr. Barbain's third assignment of error is insufficiency of the evidence. We address this assignment first in accordance with the well-settled jurisprudential rule that "[w]hen issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.' " State v. Miner, 14–0939, p. 5 (La.App. 4 Cir. 3/11/15), 163 So.3d 132, 135 (quoting State v. Hearold, 603 So.2d 731, 734 (La.1992) ).

The Louisiana Supreme Court noted in State v. Brown, 03–0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, the standard for determining an insufficiency of evidence claim is as follows:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Neal, 00–0674, (La.6/29/01) 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984) ).

Id.

The determination of credibility is a question of fact within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Brown, 12–0853, p. 2 (La.App. 4 Cir. 2/6/13), 109 So.3d 966, 968 (citing State v. Holmes, 06–2988, p. 34 (La.12/2/08), 5 So.3d 42, 68 ; State v. Vessell, 450 So.2d 938, 943 (La.1984) ). "It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence." State v. Richards, 11–0349, p. 9 (La.App. 4 Cir. 12/1/11), 78 So.3d 864, 869 (citing State v. Cummings, 668 So.2d 1132 (La.1996) ; State v. Rosiere, 488 So.2d 965, 968 (La.1986) ).

In the absence of internal contradiction or an irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Rapp, 14–0633, pp. 6–7 (La.App. 4 Cir. 2/18/15), 161 So.3d 103, 108 (citing State v. Marshall, 04–3139, p. 9 (La.11/29/06), 943 So.2d 362, 369 ). When there is conflicting testimony about factual matters,...