State v. Delaney, No. 07-267 (La. App. 10/10/2007)
| Decision Date | 10 October 2007 |
| Docket Number | No. 07-267.,07-267. |
| Parties | STATE OF LOUISIANA v. SAMUEL DELANEY. |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ALLEN, NO. CR04-3760, HONORABLE PATRICIA C. COLE, DISTRICT JUDGE.
M. MICHELE FOURNET, Attorney at Law Counsel for Defendant/Appellant, Samuel Delaney.
DOUGLAS L. HEBERT JR., District Attorney 33rd J.D.C., JOE GREEN, ADA, 33rd J.D.C., SHERRON ASHWORTH, 33rd J.D.C., Counsel for Appellee, State of Louisiana.
Court composed of SAUNDERS, PICKETT, and GENOVESE, Judges.
On August 31, 2004, Samuel Delaney was charged by the grand jury of Allen Parish with two counts of aggravated rape, violations of La.R.S. 14:42, two counts of indecent behavior with a juvenile, violations of La.R.S. 14:81, and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2. Trial commenced on August 21, 2006, and the defendant was found guilty as charged on all counts by a jury on August 25, 2006. The defendant was sentenced on December 8, 2006, to two terms of life imprisonment without the benefit of parole, probation or suspension of sentence on the two convictions for aggravated rape, ten years imprisonment at hard labor on the two convictions for molestation of a juvenile, and seven years imprisonment at hard labor for the two convictions for indecent behavior with a juvenile. All of the sentences were ordered to be served concurrently.
The defendant did not file a motion to reconsider the sentence. However, on December 5, 2006, the defendant filed a "Motion for New Trial and Incorporated Memorandum" and a "Motion for Post Verdict Judgment of Acquittal and Incorporated Memorandum." Both motions were heard prior to sentencing on December 8, 2006, and were denied in open court.
The defendant has perfected a timely appeal, alleging six assignments of error:
1. The trial court erred in refusing to allow the defense to present evidence of two instances of prior sexual assault by third parties on one of the alleged victims in this case.
2. The trial court erred in denying the motion for mistrial and failing to give an admonition based on a witness's reference to a purported unrelated offense.
3. The trial court erred in refusing to quash the indictment for duplicity.
4. The trial court erred in allowing Dr. John Simoneaux to testify as to the credibility of the complaining minors.
5. The trial court erred in allowing introduction of prior, purportedly consistent, statements by the alleged victims in the form of videotaped statements.
6. The trial court erred in denying the Motion for Post Verdict Judgment of Acquittal.
FACTS:
The defendant lived with T.F. in his home in Allen Parish. T.F.'s youngest daughter, K.M., who initially lived with her father and visited her mother on the weekends, moved into the house a few months prior to the defendant being arrested for the offenses. T.F.'s oldest daughter, H.F., lived with her father, but visited her mother on the weekends. Between the months of August 2003 and February 2004, the defendant, individually, forced the two minor victims to have oral sex with him. He attempted to penetrate their vaginas with his penis and with a dildo. The defendant walked around the house with his penis exposed to one of the victims and made each of them watch a pornographic movie. He touched and rubbed their vaginas while they were in bed and made them masturbate him using hand lotion or Vaseline as a lubricant.
ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.
ASSIGNMENT OF ERROR NUMBER 6:
For his sixth assignment of error, the defendant asserts that the trial court should have granted his "Motion for Post Verdict Judgment of Acquittal" for the reason that the evidence was insufficient to sustain the convictions of aggravated rape, molestation of a juvenile, and indecent behavior with a juvenile. In his motion and in brief to this court, the defendant argues that
We will address the defendant's sixth assignment of error first for the reason that should the evidence be insufficient to sustain the convictions, the defendant would be entitled to an acquittal and the remaining assignments of error would be moot. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970 (1981).
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
T.F., the mother of the two victims, testified at trial. She had been living with the defendant since March 2002. At the time she moved in with him, she did not have custody of her children, a son and daughter by R.M., Sr., and a daughter by B.L. The youngest daughter, K.M., and her brother, R.M., visited on the weekends. The oldest daughter, H.F., at first visited during the day once a week, then in August 2003 began having weekend visitation. During this same time period, T.F. received custody of the K.M. and R.M., and they began to live full-time in the defendant's house.
T.F. stated that there had been an "R" rated movie in the house. She said that there were four movies on one tape, three kids movies, then a movie titled "Scoring." She said it contained only women's bare breasts. She said she did not want her son to see it so she taped over the movie.
In February 2004, H.F.'s father called T.F. and asked her to come over immediately. She went to his house with K.M. and R.M., and H.F. told her mother about the defendant's sexual abuse. They talked to H.F. by herself, then called K.M. into the room and questioned her. At this time, K.M. told her mother about what the defendant was doing to her. T.F. stated that later, after she got home, she questioned K.M. again and K.M. "told me that it wasn't true, that Sam wasn't doing anything and that [H.] was — I don't know — she said that [H.] had told her to do it." T.F. stated that a few weeks later, R.M. told her she had lied because she was jealous of the attention the defendant was giving to her brother. T.F. said that H.F.'s father called Children's Protection Services, and a woman came out to interview her, the defendant, R.M., and K.M. Because K.M. recanted the allegations, the investigation did not go further and T.F. continued to live with the defendant. However, H.F. never went back for visitation.
H.F.'s father, B.L., testified. Accordingly to B.L., his daughter first told her stepmother about the sexual abuse. He stated that he reported the offenses to the sheriff's department, but because he lived in one parish and the offenses took place in another parish, it was four or five months before anyone took any action. Finally, he was contacted by the Children's Protection Services.
Children's Advocacy Program interviewed the two victims regarding the allegation of the offenses committed against them by the defendant. The tapes were submitted at trial as State's Exhibits 5 and 7.
At the time of the interview, K.M. was living again with her father. She was seven years old. She told the interviewer she was happy to be living with her father because there nothing bad could happen to her. She called genital areas "wrong spots" and said that Mr. Sam tried to stick his wrong spot into her wrong spot. He made her watch "nasty" movies of men and women who were naked. He kept the movie on top of the kitchen hutch and made her watch it repeatedly. He made her suck his wrong spot or rub it with her hands using a lotion or Vaseline as a lubricant. He went into her bedroom at times when her mother was sleeping and got into bed with her. He sometimes would kneel beside the bed and put his mouth on her wrong spot. She said that when he tried to penetrate her, it hurt. She told the interviewer that sometimes he would pee a "slimy" stuff from his wrong spot and that it tasted bad.
The defendant had a shed behind the house called the "cock house" where he kept his fighting roasters. He would take K.M. to the cock house and, after sitting her in a chair, would kneel in front of the chair and rub her wrong spot with his wrong spot. K.M. said that he told her if she told anyone, he would kill her and her sister, H.F. He told her this more than once. She said that she did not tell for two reasons: one, that she believed he would kill her and her sister, and two, that she did not think anyone would believe her, and her mother would be kicked out of the house. She stated that even after the allegations were made, the abuse did not stop.
At trial, K.M.'s testimony was consistent with what she stated during the...
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