State v. Fussell
| Decision Date | 27 September 2006 |
| Docket Number | No. 2006-324.,2006-324. |
| Citation | 941 So.2d 109 |
| Parties | STATE of Louisiana v. Leon D. FUSSELL. |
| Court | Court of Appeal of Louisiana — District of US |
J. Reed Walters, District Attorney, Steven P. Kendrick, Assistant District Attorney, Jena, LA, for Appellee, State of Louisiana.
Mark O. Foster, Natchitoches, LA, for Defendant-Appellant, Leon D. Fussell.
Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
Defendant, Leon D. Fussell, was indicted by a grand jury on one count of aggravated rape, in violation of La.R.S. 14:42, and nineteen counts of pornography involving juveniles, in violation of La.R.S. 14:81.1(A)(3). A jury convicted Defendant of aggravated rape and sixteen charges of pornography involving juveniles. Defendant was acquitted of the three remaining pornography charges. On the aggravated rape conviction, Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. On count sixteen of the pornography charges, Defendant received a sentence of ten years at hard labor without the benefit of parole, probation, or suspension of sentence, to run consecutively to the sentence for the rape. For counts four through fifteen and seventeen through nineteen, Defendant was sentenced to serve two years at hard labor on each count without the benefit of parole, to run consecutively to each other and the other two sentences.
Defendant appeals his convictions and sentences, raising numerous claims in one attorney-filed brief and three pro se briefs.
Defendant claims the evidence presented by the State was insufficient to prove he committed aggravated rape and was in possession of pornography involving juveniles with intent to distribute.
At trial, D.H., the mother of the victim, T.H., testified that in the early part of 2002, she, her husband, P.H., and their children moved to a new house in Olla. T.H. was nine years old at this time. The house was referred to by the family as the "green house." Defendant, a friend of P.H.'s, came to their home on a regular basis.
D.H. testified Defendant sometimes gave T.H. money for school and occasionally bought her candy and mood rings. When D.H. was asked whether Defendant ever helped T.H. do anything in her room, she testified he helped T.H. clean her room and sometimes would help her with her homework.
Around Easter of 2002, P.H. had a twenty-eight day stay at a rehabilitation hospital in Lake Charles for his drinking problem. During P.H.'s absence, Defendant was at the house "a good bit of the time" and would occasionally spend the night, sleeping on the couch.
D.H. testified, after the family moved to the green house, but before P.H. left for rehabilitation, P.H. was drinking heavily and they had financial problems. This resulted in a lot of arguing and disagreements. D.H. testified she was taking medication for depression, and pain medication for endometriosis. According to D.H., at times when Defendant was at her house, she was intoxicated from her medication and she was unaware of what was going on. Although D.H. testified she never heard T.H. scream or cry out, she did notice that T.H.'s behavior changed in that she was angrier than usual. D.H. denied fabricating the allegations against Defendant to protect P.H.
During P.H.'s trial testimony, he was asked whether he ever noticed Defendant taking a particular interest in T.H. He testified that Defendant bought her mood rings and candy, but nothing of any major value. Defendant also offered to help T.H. with her homework and to clean up her room. According to P.H., Defendant helped T.H. do things in her room "quite a few times." Although P.H. recalled times when T.H. and Defendant were in her room with the door shut, he testified he did not see anything inappropriate going on when he would open the door.
T.H. testified at trial that while she was living in the green house, Defendant stayed overnight about three to four times per week and he would sleep in their living room. T.H. testified Defendant put his penis in her vagina, and when initially asked what else he did to her, she stated she could not remember. The prosecutor then asked T.H. if Defendant ever placed his penis anywhere else on her body, and she testified he put it in her "rear end" a little bit. T.H. denied that Defendant ever touched her anywhere with his tongue. When asked how many times she thought "this" happened between the time she moved into the green house and the time she finally told someone, T.H. responded, "a lot." T.H. testified she did not tell anyone about the incidents prior to telling a friend's mother in April of 2002, because she was scared and she felt threatened. She thought she would be killed if she told because "Fussell" told her that.
At trial, T.H. identified two notes that she had put on the door of her room. One note stated, T.H. testified she wrote this note because she did not want Defendant to be in her room; however, the note did not work. The other note, was a two-page note that was found on T.H.'s bedroom door on April 22, 2002. On one page is written, "Do not disturb me by [T.H.]." The other page states,
T.H. testified Defendant showed her two photographs of dogs involved in sexual acts with humans, one being a young girl.1 This occurred while in her room in the green house. When asked if Defendant showed her these pictures at the same time "he would do the things to [her] that [she] earlier testified to," T.H. responded, "Yes." According to T.H., Defendant also gave her cigarettes to smoke while in her room.2 He also showed her a condom.
As mentioned above, T.H. reported the incidents to a friend's mother in April of 2002. Defendant's behavior was reported, and T.H. was examined by Dr. I.C. Turnley. Dr. Turnley testified at trial and was accepted by the court as "an expert medical doctor with experience and also expertise in the forensic examination of alleged sexual abuse of persons." Dr. Turnley testified he obtained a history from T.H. prior to examining her. T.H. told Dr. Turnley that an adult male had penetrated her vaginally with his penis and she thought he had attempted to penetrate her anally on one occasion. She also indicated to Dr. Turnley that Defendant penetrated her vaginally with his tongue. Dr. Turnley's physical examination of T.H. indicated evidence of sexual activity; there was redness, irritation and a slight vaginal discharge. His examination indicated there was some type of vaginal penetration, but he could not identify the source. According to Dr. Turnley, it is uncommon to find this in a nine-year-old child, and it was his opinion that T.H. had been involved in some sexual activity. Although Dr. Turnley noted some redness just below the vaginal opening, nothing out of the ordinary was noted by Dr. Turnley during his examination of T.H.'s anus.
Dr. Turnley provided Detective Paul Smith with the report from his examination of T.H. An arrest warrant was issued for Defendant. Deputies Scott McLendon and Scott Cockerham executed the warrant at P.H.'s residence. When Deputy Cockerham approached Defendant, he was sitting in his truck with no shoes on. While Defendant was putting his shoes on with his left hand, "[h]e was fiddling around with his right hand and—kind of behind him." Deputy McLendon testified that when he saw the Defendant fidgeting around behind his back in the area of his pocket, he pulled Defendant out of the truck to ensure he had no weapons. After Defendant was removed from the truck, Deputy McLendon looked to see what Defendant had been "fooling with" and he found some folded pictures. These pictures, which formed the basis for some of the pornography charges, were introduced at trial.
After Defendant's arrest, Detective Smith obtained a search warrant for his mother's home. In Defendant's bedroom closet, Detective Smith found one of the notes T.H. had put on the door of her bedroom. Along with the note, Detective Smith found numerous pictures, which were introduced at trial. T.H. testified she had never been in Defendant's mother's house and she had no idea how her note could have gotten there.
Defendant testified at trial. He denied ever having touched T.H. Although Defendant acknowledged having been in T.H.'s room with the door closed on a couple of occasions, he explained that they were throwing a ball and T.H. would close the door when the ball went behind it. According to Defendant, about the time the door would close, P.H. would open it. Defendant testified P.H. and D.H. watched him very closely. Defendant implicated Bill Morris as the perpetrator because he frequently spent the night in the house while P.H. was gone. Defendant testified he did not recall T.H. putting notes on her door, and he denied having ever seen the photographs recovered from his truck and his bedroom closet. He felt that the pictures may have been placed in his closet by either P.H. or law enforcement officers.
Although he acknowledges the jurisprudence provides a victim's testimony alone can be sufficient to prove the elements of the crime, Defendant claims the State presented virtually no evidence to substantiate the victim's testimony. Specifically, he notes there was no evidence of where, when, or how often the offense occurred. He contends the medical examination is essentially meaningless considering the absence of evidence of when the act occurred. He asserts the evidence presented by the State is not sufficient to support his conviction of aggravated rape.
Aggravated rape is committed when the act of anal, oral, or vaginal sexual intercourse transpires without the lawful consent of the victim because the victim is under the age of twelve...
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