State v. Burd

• Decision Date: 27 January 2006
• Docket Number: No. 40,480-KA.,40,480-KA.
• Citation: 921 So.2d 219
• Parties: STATE of Louisiana, Appellee, v. Aristede Francois BURD, Appellant.
• Court: Court of Appeal of Louisiana — District of US

921 So.2d 219

STATE of Louisiana, Appellee, v. Aristede Francois BURD, Appellant.

No. 40,480-KA.

Court of Appeal of Louisiana, Second Circuit.

January 27, 2006.

W. Jarred Franklin, Louisiana Appellate Project, for Appellant.

Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Bill Edwards, Dhu Thompson, Assistant District Attorneys, for Appellee.

Before CARAWAY, MOORE and LOLLEY, JJ.

CARAWAY, J.

In this case, the defendant was convicted of aggravated rape after the jury rejected his defense of a consensual sexual encounter with the victim. He was sentenced to life imprisonment at hard labor without benefits. Finding sufficiency of the evidence and no reversible error in other issues raised by defendant, we affirm.

Facts

On February 18, 2003, the defendant, Aristede Francois Burd, offered a ride to A.T., who was 31 weeks pregnant, as she walked home from a casino in downtown Shreveport. The defendant told the victim that his name was "Charles." A.T. testified that she became uncomfortable when the defendant suggested that they "pick somebody up." She opened the car door at a stop light and told him unless he took her directly home she would get out of the car. He promised "he wasn't going to do anything," and she closed the door. After driving to A.T.'s apartment complex, Burd assaulted her with a knife as she exited the vehicle and threatened to kill her and her unborn baby if she did not cooperate. The defendant took her inside her apartment where she was raped at knife point. A.T. testified that at one point during the attack, her hand was cut and she went into the bathroom to rinse off the blood from her wounded hand. A.T. testified that when she came out of the bathroom, defendant had left her apartment. After unsuccessfully attempting to copy the license plate number from the defendant's vehicle, A.T. ran to find the security guard for the apartment building. When she could not find the security guard, she called 9-1-1 from a nearby pay phone.

Shreveport Fire Department personnel responded to the call and found the victim in the parking lot with blood on her hands and a cut on her right palm. Officer Angela Pell of the Shreveport Police Department obtained a description of the vehicle and information that the defendant lived near the LSU Medical Center Hospital. Another officer located the defendant's vehicle parked at an apartment complex near the hospital.

The victim was transported to the hospital for treatment of her hand wound and physical examination for rape. Connie Brown of the North Louisiana Criminalistics Laboratory testified that DNA tests conducted on the profile of a breast swab obtained from the rape kit examination was consistent with being a mixture of DNA from A.T. and the defendant.

Officer John Delgado collected evidence at the victim's apartment, including her clothes which he found in a hamper by the bed. He observed blood and bodily fluids on the sheets and mattress. No knife was found in the apartment. Once the victim identified the defendant in a photo lineup, Detective Kim Rei led a search of the defendant's apartment almost 24 hours after the incident was reported. Tennis shoes stained with blood, two shirts, and two kitchen knives with black handles were seized. The defendant's vehicle was impounded and searched. Officer Rei took defendant's statement in which he asserted that his sexual conduct with A.T. was consensual. The confession was played for the jury.

At trial, evidence of a prior sex crime by Burd was presented. The victim, K. H., testified that, in 1999, the defendant forced her into a car and threatened her with a black-handled kitchen knife. She stated that while she was in the car, the defendant raped her twice and threatened to cut her if she screamed. The defendant then took her to his apartment and raped her again.

The defendant was convicted of aggravated rape and sentenced to life imprisonment without benefits.

Discussion

Appellant argues that there is insufficient evidence to support his conviction for aggravated rape, that the sexual encounter was consensual and that the state failed to prove lack of consent therefor. He claims that inconsistencies in the victim's testimony at trial and statements she made during the investigation destroyed her credibility.

La. R.S. 14:42(A) defines aggravated rape as a rape committed where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.

(5) When two or more offenders participated in the act.

(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422. 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 support for a requisite factual conclusion. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490; State v. Simpson, 39,268 (La. App.2d Cir.1/26/05), 892 So.2d 694.

The primary issue on appeal is whether the sexual intercourse between the defendant and the victim occurred without the victim's consent. In his statement to police, the defendant confirmed that A.T. needed a ride home to her apartment. He said he took her to her apartment and that one thing led to another and they had sex. Burd's explanation for A.T.'s cut and the bloody scene found in her apartment was that after the sexual encounter, A.T. became depressed and suicidal. He claimed that A.T. produced a knife and that in his efforts to prevent her from harming herself, her hand was cut. He then admits that he left the scene without rendering further aid.

In contrast, A.T. testified that she arrived at the casino at 11:00 or 11:30 p.m. and left after a couple of hours. She had lost her money and had no fare for a cab. A few blocks from the casino, the defendant stopped and opened the door for her from inside the vehicle. When she tried to get out of the car at her apartment, she had difficulty opening the door and the defendant immediately came around and opened the door for her. As she exited the vehicle, Burd pulled a knife from behind him, put it on her stomach, and told her that they were going into her apartment. At that point, he threatened to kill her and her baby if she did not follow his directions.

Officer Pell testified that when she obtained A. T.'s initial statement, she was crying and very shaken up. The victim was so upset, she had trouble talking. The victim told Officer Pell that the defendant pulled a knife on her in the apartment building parking lot and tried to force her to have intercourse in the vehicle. Dr. Behm testified that A.T. reported that the defendant took her home then pulled out a knife.

Burd attempts on appeal to point out certain alleged discrepancies in the details of A.T.'s statements and actions which the defense implies should elevate Burd's account of the parties' encounter over A.T.'s account. None of these details were of such material content to seriously call into question A.T.'s account of a forcible rape. The parties were not prior acquaintances; A.T. was 7-1/2 months pregnant; and Burd confirmed that they first encountered each other by chance only because of her need for a ride home. Burd's version of the attempted suicide and his unexcused abandonment of the injured woman are easily beyond belief when considered in the context of all other facts shown by the evidence. Burd's argument therefore goes to credibility which was for the jury to decide. The...