State v. Dale

• Decision Date: 18 November 2015
• Docket Number: No. 50,195–KA.,50,195–KA.
• Citation: 180 So.3d 528
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana, Appellee v. Ronald C. DALE, Appellant.

180 So.3d 528

STATE of Louisiana, Appellee

v.Ronald C. DALE, Appellant.

No. 50,195–KA.

Court of Appeal of Louisiana, Second Circuit.

Nov. 18, 2015.

Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.

Dale G. Cox, Jr., District Attorney, George Winston, Mekisha Smith Creal, Tommy J. Johnson, Assistant District Attorneys, for Appellee.

Before DREW, MOORE and CALLOWAY (Pro Tempore), JJ.

MOORE, J.

The defendant, Ronald Charles Dale, was convicted of molestation of a juvenile under the age of 13, a violation of La. R.S. 14:81.2(A). Following adjudication as a second felony offender, Dale was sentenced to 49 ½ years at hard labor, the first 25 to be served without the benefit of parole. Dale now appeals, alleging insufficient evidence to convict, improper introduction of "other acts" evidence, and an excessive sentence. For the following reasons, we affirm the conviction and sentence. However, we remand the case to the trial court for compliance with La. R.S. 15:542 and 15:543.

FACTS

The charges against Dale, age 46, followed a police investigation that began after the victim, K.W., age 6 at the time of the offense, reported to her father that "Uncle Ronnie" had been touching her and "hunching" on her while she was in the home of her maternal great-grandmother, Elloise Clarkson. K.W. repeated the story to her mother, Ms. Clarkson's granddaughter and the defendant's niece. K.W.'s father reported the incident to Detective John Flores of the Shreveport Police Department.

Subsequently, K.W. was interviewed at the Gingerbread House where she described Dale's conduct to a forensic interviewer, Jennifer Flippo. K.W. revealed that Dale told her to lie on his bed where he got on top of her to "do what parents do." K.W. said that Dale would "hunch" her and move around. She said both Dale and K.W. had their clothes on during the incidents, which happened more than once, and only when she was at Ms. Clarkson's house. K.W. said she did not think anyone saw what happened. Ms. Clarkson was always in the living room when it occurred.

Dale resides in the home with Ms. Clarkson, and he has his own bedroom located at the end of the hallway. According to Ms. Clarkson, it was not possible to see inside his room from the living room.

KW's mother testified that she occasionally left K.W. and her two sisters at Ms. Clarkson's home for two or three hours at a time, but did not recall ever leaving them overnight. She further testified that Dale had her permission to discipline K.W. in Ms. Clarkson's home because he was an adult and a family member.

Ms. Clarkson testified that she was always home when K.W. was at her house. The children played board games and dominoes, watched television, or played outside. Ms. Clarkson and Ralph Evans, a cousin, testified that the children would sometimes jump on Dale's bed, watch television in his room, and play dominoes with Dale in his room, but only until they got unruly, and then he would make them leave.

In the course of their investigation, police learned that Dale had allegedly done similar things to K.W.'s mother when she was young. K.W.'s mother testified that Dale would take her to his room, climb on top of her and move around on her while both had their clothes on. She said she was five or six years old, and that Dale was "grown." She could not recall the number of times that he did this to her.

Detective Flores brought Dale in for questioning. During the recorded interview, Dale admitted to touching K.W.'s mother when she was young and to touching K.W. Dale was subsequently arrested and ultimately charged with one count of molestation of a juvenile under the age of 13, La. R.S. 14:81.2(A), (D)(1) and (E)(1), by a third amended bill of information.

At trial, Det. Graves, Jennifer Flippo, K.W., and K.W.'s mother and father testified on behalf of the prosecution. Ms. Clarkson and Mr. Evans testified for the defense.

In addition to the facts above, Ms. Clarkson stated that she was certain that nothing could have happened to K.W. because she was always home when K.W. was at her house, and she never allowed K.W. to be in Dale's room with the door closed. Mr. Evans testified that he never saw anything inappropriate while living at Ms. Clarkson's house, and that Dale and K.W. seemed to get along fine. Evans admitted, however, that he was not present at the home between 8:00 a.m. and 4:30 p.m. on most weekdays.

Following the two-day bench trial, the trial judge entered a verdict of guilty as charged.

Dale filed a motion for new trial and a motion for post-verdict judgment of acquittal. Both motions were denied on October 20, 2014, on which date the trial judge adjudicated Dale a second-felony offender, based on the instant conviction and a 2004 conviction for unauthorized entry of an inhabited dwelling.

The court sentenced Dale to 49 ½ years' imprisonment, the first 25 of which to be served without the benefit of parole, and noted that this sentence was the mandatory minimum permitted by La. R.S. 15:529.1. At sentencing, the court stated that he considered the following facts to be aggravating factors: the offense was a heinous crime; the victim was a young, particularly vulnerable child; and, Dale's extensive criminal history.

The trial judge found the following mitigating factors: there was no element of violence in the crime; the character letters on behalf of the defendant; and, the minimum mandatory sentence required by law is sufficiently harsh to meet punitive and rehabilitative requirements.

Dale subsequently filed a motion to reconsider sentence. The trial court denied this motion, holding that the record demonstrated a thoughtful consideration of aggravating and mitigating factors and that the 49 ½ year sentence was the mandatory minimum.

This appeal followed. Dale urges three assignments of error: sufficiency of the evidence, improper introduction of "other acts" evidence, and excessive sentence.

DISCUSSION

By his first assignment of error, Dale contends that the state failed to present sufficient evidence to support all the elements of the crime of molestation of a juvenile under the age of 13, especially the requirement that the victim was under his supervision or control at the time of the offense. Also, Dale complains that there was no physical evidence of the offense—only the testimony of the victim, and that the state did not establish the date of the offense.

The standard of review for an evidence sufficiency 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Tate, 2001–1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Johnson, 47,913 (La.App. 2 Cir. 4/10/13), 113 So.3d 1209. An appellate court does not substitute its own appreciation of the evidence for that of the fact finder, or assess the credibility of witnesses or reweigh evidence. State v. Pigford, 2005–0477 (La.2/22/06), 922 So.2d 517 ; State v. Johnson, supra, at 113 So.3d 1209.

Louisiana R.S. 14:81.2 defines molestation of a juvenile:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

Dale does not contest that the state proved three of the four elements of the offense, namely, (1) the age difference between Dale and K.W.; (2) that Dale's acts were lewd or lascivious; and (3) that Dale had the intention of arousing or gratifying his sexual desires. He argues that the evidence did not establish the fourth element, that K.W. was under his supervision or control at the time of the alleged misconduct. He also contends that the conviction cannot be upheld based solely on the testimony of the minor victim without any medical or physical evidence. Finally, he contends the state failed to prove when the incident(s) occurred.

The facts established by the testimony of the victim indicate that Dale used the victim to sexually gratify himself by simulated copulation while both he and K.W. remained fully clothed. Consequently, one would not expect there would be physical or medical evidence of the offense. However, the testimony of a sexual assault victim alone is sufficient to convict a defendant. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Johnson, supra at 1209; State v. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574, writ denied, 2006–2554 (La.5/11/07), 955 So.2d 1277 ; State v. Ellis, 38,740 (La.App. 2 Cir. 8/18/04), 880 So.2d 214.

In this instance, the fact finder found K.W.'s testimony to be credible, stating that her testimony was specific, detailed and compelling. The trial judge also found K.W. to be a credible witness under La. C.E. art. 601. Prior to trial, the district court held a hearing and determined that the statements made by K.W. during the Gingerbread House recorded interview were credible and that the interview and recording were in compliance with La. R.S. 15:440.2 and La. R.S. 15:440.4.

When issuing its verdict, the court stated:

I believe that the case law is very clear ... that the nature of the acts alleged admitted to by the defendant based on his statements and the nature of the acts stated by the victim are sufficient in and

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