State v. Carter

• Decision Date: 01 April 2015
• Docket Number: No. 14–926.,14–926.
• Citation: 160 So.3d 647
• Parties: STATE of Louisiana v. Ernest CARTER, Jr.
• Court: Court of Appeal of Louisiana — District of US

160 So.3d 647

STATE of Louisiana

v.Ernest CARTER, Jr.

No. 14–926.

Court of Appeal of Louisiana, Third Circuit.

April 1, 2015.

Michael Harson, District Attorney, Ronald E. Dauterive, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of Louisiana.

Edward John Marquet, Louisiana Appellant Project, Lafayette, LA, for Defendant/Appellant, Ernest Carter, Jr.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.

Opinion

SAUNDERS, Judge.

Ernest Carter, Jr. (hereafter “Defendant”) appeals his conviction of attempted aggravated rape, asserting that the evidence was insufficient to sustain a conviction and that the sentence imposed was excessive. For the following reasons, we find that the evidence is insufficient to sustain a conviction of aggravated rape, but sufficient to sustain a conviction for the lesser included offense of forcible rape; therefore, we modify the verdict, render a judgment of conviction for forcible rape, vacate the sentence imposed, and remand for sentencing in accordance with the modified judgment.

FACTS AND PROCEDURAL HISTORY

B.P., the victim, alleges she was sexually assaulted by Defendant between 1969 and 1977. The victim was between the ages of six and fourteen at the time. Defendant was born in 1944 and was between the ages of twenty-five and thirty-three during this time period.

On May 1, 2013, Defendant was charged by grand jury indictment with one count of aggravated incest of K.C., a violation of La.R.S. 14:78.1, and one count of aggravated rape of B.P., a violation of La.R.S. 14:42.¹ Defendant entered a written plea of not guilty to the charges. Prior to trial, the State severed the charge of aggravated incest of K.C. and proceeded only as to count two, aggravated rape of B.P.

The jury returned a verdict of not guilty to the charge of aggravated rape, but unanimously found Defendant guilty of attempted aggravated rape, one of the responsive verdicts, and determined the offense occurred between September 12, 1975, and August 18, 1977.² Subsequently, the trial court sentenced Defendant to twenty-five years at hard labor. Defendant now appeals and alleges the evidence was insufficient for the jury to convict him of attempted aggravated rape and that the sentence imposed was excessive.

ASSIGNMENTS OF ERROR

On appeal, Defendant asserts that:

1. when viewed in the light most favorable to the prosecution, no rational jury could have found him guilty beyond a reasonable doubt of attempted aggravated rape when the alleged misconduct occurred decades prior to it being reported and there was no physical evidence to support the allegations of misconduct; and

2. the sentence of twenty-five years at hard labor was excessive in light of his age and health.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we have reviewed the record for errors patent on the face of the record and find none.

STANDARD OF REVIEW

The standard of review for an insufficient evidence claim is well-settled:

In State v. Bryant, 12–233 (La.10/16/12), 101 So.3d 429, the Louisiana [S]upreme [C]ourt addressed the sufficiency of the evidence claims, reiterating that the appellate review of such claims is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676 (La.1984). In applying the Jackson v. Virginia standard, the appellate court must determine that, when viewed in the light most favorable to the prosecution, the evidence is “sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Bryant, 101 So.3d at 432. See also La.Code Crim.P. art. 821.

State v. Williams, 13–497, p. 3 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1239, writ denied, 13–2774 (La.5/16/14), 139 So.3d 1024.

ASSIGNMENT OF ERROR NUMBER ONE

On appeal, Defendant argues that the evidence was insufficient to convict him of attempted aggravated rape. Although the State presented no physical evidence, several witnesses testified. We summarize the pertinent testimony below.

Testimony of B.P.

At trial, B.P. testified that Defendant had sexual encounters with her beginning when she was six or seven years old and continuing until she was in her teens. The victim testified that she was contacted by a relative in reference to an investigation of Defendant, which motivated her to come forward about the incidents.

The victim alleged that, on two occasions, when she was six or seven years old, Defendant came into the room where she was napping and put his penis between her legs, without penetration. She testified that other children were present in the room when these incidents occurred. The victim also testified that, when she was approximately seven years old and had spent the night at Defendant's house with Defendant's daughter, Pamela Davis (hereafter “Ms. Davis”), who is B.P.'s cousin, Defendant carried B.P into the bathroom and had sex with her. Again, she testified that at least one other child was present in the room. B.P. recalled this being the first time Defendant penetrated her, although she had some difficulty recalling the chronology of events. She further testified that, when she was eight or nine years old, Defendant had sex with her in the bed of her father's produce truck. She testified that there were adults and children in the house nearby. She explained that Ms. Davis knew of the incident in the bed of the truck and that Ms. Davis was about five years old.

The victim further alleged that, on two occasions, Defendant offered to give her driving lessons. Thereafter, Defendant took her driving, and Ms. Davis was in the back seat. On the first occasion, he pulled to the side of the road, alleging he needed to adjust the seat, pulled his penis out of his pants, and then had her sit on his lap to drive. B.P. testified that there was no penetration because she was wearing her panties and skirt. On the second occasion, when Defendant pulled over and adjusted the seat, the victim realized what was happening and refused to sit on Defendant's lap.

B.P. testified that, on several occasions, she reported the abuse to her mother, who is Defendant's sister, but that “[t]elling [her] mom wasn't enough. It wasn't getting anywhere.” B.P. never reported the abuse to her father because “[she] was scared of [her] dad.” B.P. explained that, after the second driving incident, she purchased a recording device and recorded Defendant confessing to the things he had done to her. She played the recording for her mother, who then called a meeting, during which this recording was played. Present at the meeting were Defendant, Defendant's wife, B.P., Ms. Davis, and B.P.'s mother. B.P. testified that Defendant's wife identified him in the recording. A second meeting was called with the pastor of their church; the pastor's wife, who was Defendant's sister; Defendant, who was a deacon at the church; Defendant's wife; B.P.; and B.P.'s mother. B.P. testified that, at the second meeting, Defendant admitted the allegations, and it was decided that Defendant would stop all sexual activities with the victim. In exchange, the victim would not tell anyone of the offenses. The recording was not presented as evidence.

Testimony of Pamela Davis

Ms. Davis testified that she is three years younger than B.P. Ms. Davis testified that Defendant would “quite often” give her pornographic magazines with pictures circled in them to bring to the victim. Ms. Davis testified that B.P. had gone to get a watermelon out of her father's truck, Defendant went with her, and they were taking a long time. She thought Defendant must be waiting for her in the car. When she did not see Defendant in the car, she checked the garage. There, she witnessed Defendant and the victim in the bed of the produce truck, and it appeared to her that they were having intercourse, although she did not actually see Defendant's penis and his clothes were not off. Ms. Davis testified that she recalled being eight or nine years old and “[she] wasn't five.” Ms. Davis further testified that the incident occurred in 1975 or 1976.

Ms. Davis recalled one driving incident. Ms. Davis testified that she, Defendant, and B.P. were in the front seat of the car. When they arrived in the area where B.P. would be driving, they stopped, and Defendant instructed her to get in the back seat. Ms. Davis testified that she was usually allowed to sit in the front seat with Defendant and B.P., but that on this occasion, she was directed to sit in the back seat, so the incident “stood out for [her.]” She testified that B.P. was sitting on Defendant's lap and drove for “a while.” She testified that she did not see anything sexual.

Ms. Davis recalled being present at the meeting where the allegations against Defendant were discussed with Defendant, Defendant's wife, B.P., and B.P.'s mother. She recalled her mother, Defendant's wife, identifying Defendant as the person who had been recorded.

Discussion

Defendant argues that the evidence was insufficient to convict him of attempted aggravated rape. In brief, Defendant notes the lengthy span of time that elapsed between the alleged misconduct and the victim's testimony, the inaction by B.P.'s mother, the fact that others were nearby when the misconduct occurred, and the “unbelievable” testimony concerning the “secret pact.” He further asserts that the physical evidence contradicts the testimony of the victim, although his argument focuses on the absence of physical evidence. Essentially, Defendant argues that the victim's testimony lacks credibility.

Attempted Aggravated Rape

“Louisiana jurisprudence has consistently held that the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even if there is no physical evidence.” State v. Ware, 11–337, p. 4 (La.App. 3 Cir. 11/23/11), 80 So.3d 593, 597, writ denied sub nom. State ex rel....