State v. Dixon

• Decision Date: 11 March 2008
• Docket Number: No. 07-KA-915.,07-KA-915.
• Citation: 982 So.2d 146
• Parties: STATE of Louisiana v. Donald L. DIXON.
• Court: Court of Appeal of Louisiana — District of US

982 So.2d 146

STATE of Louisiana v. Donald L. DIXON.

No. 07-KA-915.

Court of Appeal of Louisiana, Fifth Circuit.

March 11, 2008.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Margaret Hay, Assistant District Attorneys

Twenty-Fourth Judicial District, Gretna, Louisiana, for Plaintiff/Appellee.

Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, Louisiana, for Defendant/Appellant.

Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.

THOMAS F. DALEY, Judge.

Defendant, Donald L. Dixon, was charged with one count of aggravated rape committed between August 1, 2003 and January 31, 2005, in violation of R.S. 14:42. He was found guilty as charged by a unanimous twelve-person jury on March 15, 2007. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on April 20, 2007. This appeal follows.

FACTS

The victim, K.J., testified that her stepfather, defendant, sexually abused her on six occasions during "the second grade and the third grade."¹ She testified in detail that the abuse included anal penetration, vaginal penetration, and oral sexual intercourse. The victim testified that she was twelve years old and in the fifth grade at the time of trial, March 14, 2007. The victim stated that she first reported the abuse in part to R.J., her brother, and J.J., her mother. She testified that she later reported the abuse to Essie Thomas, her school's social worker. The victim also testified that she reported the abuse to "people from Child Protection," Gretna police officers, and Omalee Gordon of the Children's Advocacy Center. The victim further stated that she reported the abuse to Dr. Ellie Wetsman at Children's Hospital.

Specifically, K.J. testified that the incidents of abuse occurred in her mother's and stepfather's bedroom while her mother was at work. She alleged that Defendant brought her into his bedroom to lay her on the bed and "throw a pillow" over her head. She alleged that Defendant would undress in an adjacent bathroom and would return naked, which she saw in a mirror on the side of the bedroom despite the pillow. She explained that she had "nothing on but my shirt" and defendant "would put his thing in my butt." She testified that this experience was painful and that "[s]ometimes it would be wet. And sometimes, it would be dry." She then stated that defendant threatened her to remain silent about the incident and that she was scared.

She testified that defendant "would smell my underwear, seeing did I take a shower." Defendant "would put his private part and rub it on mines." Further, she said, "he licked my private part to see did I take a shower," using a blue towel in the process, according to the victim's narration. She further detailed an incident when she was kneeling: Defendant was standing in front of her and told her to "suck his private part." She reports that defendant asked her "did that feel good?" and testified that it tasted "nasty." In response to "when he finished making you lick his front private part, was your mouth dry or was it wet?", she answered "[i]t was wet" and "[i]t looked like spit." She then stated that she told her brother, R.J., who notified their mother, J.J., but did not tell them the entire story because she was scared of defendant. On cross-examination, the victim confirmed that all incidents of abuse occurred in his bedroom. On redirect examination, the victim affirmed that no one told her how to testify.

Essie Thomas, social worker at the victim's school, explained how the victim was referred to Thomas on four occasions for "a hygiene problem" during her time in the second grade. Other school employees had "said she smelled like sex."² The victim did not disclose any abuse to Thomas on those occasions. Thomas testified that on May 4, 2005, the victim disclosed to her six incidents of sexual abuse by defendant including anal penetration and oral sexual intercourse.

Thomas Gray, a Gretna police officer, testified that he met with the victim on May 4, 2005 and that the victim was ten years old at the time. Gray testified that the victim disclosed to him six incidents of sexual abuse by defendant including acts of anal penetration and oral sexual intercourse. Alfred Disler, a Gretna police officer, also testified that he met with the victim on May 4, 2005. Disler testified that on May 4, 2005, the victim disclosed to him without detail six incidents of sexual abuse by defendant. On redirect examination, Disler stated that the victim has not recanted her accusations in his presence. James Belton, III, the victim's biological father, also testified that the victim has not recanted her accusations in his presence.

Dr. Ellie Wetsman was qualified as an expert in the field of pediatric forensic medicine. She testified that on May 10, 2005, she conducted a physical examination of the victim. She explained that because the most recent incident of abuse was beyond 72 hours old at the time of the victim's referral on May 4, it was unlikely that any physical evidence of abuse would have been present, and therefore the victim's condition had not been considered emergent. She testified that a "loop" mark was present on the victim's thigh, which is indicative of being beaten with an object in that shape, such as a belt buckle. This, she felt, corroborated the victim's claims that she had been whipped by the defendant.

Dr. Wetsman testified that the victim reported to her six incidents of sexual abuse by defendant including acts of anal penetration, vaginal penetration, and oral sexual intercourse. She related that the victim complained during the examination of recurrent rectal bleeding associated with the incidents of abuse. The State then offered into evidence an audio recording of the victim's statement to Dr. Wetsman (State's Exhibit 7), which was played for the court, and a transcript of that recording (State's Exhibit 8).

Dr. Wetsman then testified that the victim tested positive for trichomonas, a sexually transmitted parasite. Dr. Wetsman stated that "the absence of physical evidence from the anal/genital exam was also consistent with the history that [the victim] gave." She explained that the hymen is "designed to be penetrated without injury," despite that "[m]ost of us were brought up to believe" the contrary. She further explained that injuries to the mouth and anus heal very quickly. Dr. Wetsman also stated that the victim's report of rectal bleeding is consistent with anal penetration. Dr. Wetsman then noted that the victim did not recant her accusations.

On cross-examination, Dr. Wetsman testified that she found no physical evidence of rectal bleeding. She also conceded that trichomonas can be transmitted via wet towels and clothing, that she was unable to determine the source of the victim's infection, and that she was not aware of any findings tending to show that defendant was infected with trichomonas.

Omalee Gordon, forensic interviewer for the Children's Advocacy Center, testified that she recorded on video her May 6, 2005 interview with the victim. She described the procedures used in making the video, in order that it might be authenticated. The video recording was then entered into evidence as State's Exhibit 9 and played for the court. A review of the recording reveals no contradiction within the victim's testimony, and the victim details therein six incidents of sexual abuse by defendant including acts of anal penetration, vaginal penetration, and oral sexual intercourse. The State entered into evidence Exhibits 2 and 3, which are drawings by the victim marking the places that defendant touched the victim and the places where defendant compelled the victim to touch him.

Dr. Scott Benton was qualified as an expert in the field of forensic pediatric medicine. He explained that most evidence of physical and sexual abuse is not recoverable after 24 hours, but that his employer, the Children At Risk Evaluation Center, considers a patient emergent if the abuse was within the previous 72 hours. He also explained how children tend to delay in their disclosure of abuse. Dr. Benton then testified that vaginal penetration will not necessarily cause injury or scarring of the hymen. He testified that most vaginal injuries from abuse heal in a matter of days and that most anal injuries heal within a week. Dr. Benton then testified that young children may have very accurate memories of what happened to them, but may have lacked the "temporal awareness" to recall exactly when events occurred.

Dr. Benton testified further that the presence of trichomonas in a juvenile is a "suggestive finding," which means that the finding occurs "predominantly in a person who's had sexual activity or sexual assault." He explained that though trichomonas has been found on wet towels and in hot tubs, no scientific literature has demonstrated that the organism is infectious outside of human bodies. Dr. Benton then testified that, after reviewing the evidence, his expert opinion on the case was that the victim gave a clear and consistent history of sexual abuse by the defendant.

On cross-examination, Dr. Benton agreed that a person can be a pedophile at any age, but most people "decide what they're interested in sexually much earlier" than defendant's age, 35. On redirect examination, Dr. Benton affirmed that trichomonas is one of the most infectious of sexually transmitted diseases: "pretty much, the rule is, if you have sex with someone who has trichomonas, you've got trichomonas."

J.J., the victim's mother, testified for the defense. She testified that she and defendant met in 1999 and married in 2000. She stated that defendant attempted to instill "a little discipline" for the children, and that the victim did not like it. J.J. testified that the victim frequently expressed that she wanted J.J. to reunite with the victim's father.

J.J....