State v. G.R.H., No. 08-1549 (La. App. 6/3/2009)
| Decision Date | 03 June 2009 |
| Docket Number | No. 08-1549.,08-1549. |
| Parties | STATE OF LOUISIANA v. G.R.H. |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 113225, DIV. L, HONORABLE MARILYN CASTLE, DISTRICT JUDGE.
THOMAS E. GUILBEAU, Attorney at Law, Counsel for Defendant-Appellant: G.R.H.
KEITH B. NORDYKE, Nordyke and Greenfield, L.L.C., Counsel for Defendant-Appellant: G.R.H.
MICHAEL HARSON, District Attorney, KEITH A. STUTES, Assistant District Attorney, Office of the District Attorney, Counsel for Appellee: State of Louisiana.
Court composed of AMY, PICKETT, and PAINTER, Judges.
Defendant, G.R.H., was charged with one count of aggravated rape, a violation of La.R.S. 14:42; and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2.1 After a jury found him guilty as charged, he was sentenced to life imprisonment at hard labor. Defendant now appeals his conviction and sentence. For the following reasons, we affirm.
Defendant was accused of raping his niece, P.B., who was under the age of twelve at the time of the offense. The bill of indictment charged that the offense occurred between 1966 and 1972. Defendant was charged by bill of indictment filed on October 25, 2006, with one count of aggravated rape, a violation of La.R.S. 14:42; and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2. A written plea of not guilty was filed on November 28, 2006.
A Motion for Severance of Offenses was filed on February 7, 2007. On July 17, 2008, the State moved to sever the offenses of molestation of a juvenile and proceed to trial on the charge of aggravated rape. Trial commenced on July 16, 2008, and the following day, the jury found the Defendant guilty as charged. On July 31, 2008, the trial court sentenced the Defendant to life imprisonment at hard labor. A Motion for Appeal was subsequently granted, and Defendant is now before this court asserting the following six assignments of error:
1) The Trial Court erred in failing to dismiss the prosecution as time barred and as a violation of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section two of the Louisiana Constitution.
2) The Trial Court erred in allowing other crimes evidence of the alleged sexual touching of two nieces C.H. and D.H.2
3) The Trial Court erred in imposing a sentence of life imprisonment when the jurisprudence would permit only a twenty year sentence.
4) If this Court rules that the prosecution was capital in nature, then procedural rules in effect in 1972 should be applied and a reversal is mandatory.
5) Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), the evidence was insufficient to sustain this conviction.
6) G.R.H. requests that this Honorable Court determine if there are unbriefed errors patent and reverse for same.
For the following reasons, we find that these assignments of error lack merit, and we affirm Defendant's conviction and sentence.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After a thorough review of the record in this case, we find that there are no errors patent.
"When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence." State v. Hearold, 603 So.2d 731, 734 (La. 1992). Thus, we first address Defendant's fifth assignment of error wherein he contends that the evidence was insufficient to sustain his conviction.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, "assuming every fact to be proved that the evidence tends to prove." La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 "works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury." Neal, 2000-0674 p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, ___ U.S. ___, 128 S.Ct. 537 (2007).
Defendant was convicted of aggravated rape occurring between 1966 and 1972.
During that time, La.R.S. 14:42 defined aggravated rape as follows:3
"Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
....
"(3) Where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.
State v. Miller, 111 So.2d 108, 111 (La.1959).
P.B. testified that during the 1960's she spent the night at the home of her uncle, the Defendant, and her aunt, P.H., many times. She recalled sharing the room with their daughter, who was in a crib, and that Defendant came into the room looming over her. P.B. further testified that Defendant would have her walk around the bedroom and then he would rub her genitals inside and outside her clothing. P.B was not sure if Defendant's fingers went inside her vagina. P.B. further testified that Defendant masturbated in her presence. These acts occurred every time P.B. went to Defendant's home in Broussard, and she was there no less than one to two times a month for a least one to two nights.
The following exchange occurred regarding P.B.'s age at the time of these events:
Q. There's public records downstairs in the clerk's office that indicate [the Defendant's daughter's] date of birth is in 1968. You were born in 1966. Does that fit — A.
A. '64. '62. Excuse me.
Q. '62? '62. I'm sorry. So you were born in '62. She was born in '68.
A. Okay.
Q. All right. So, when she was a young child, in 1968, this is when the acts began to start on you?
A. Yes.
Q. So, by that figuring, in 1968, you were about how old?
A. Six.
P.B.'s date of birth was August 30, 1962.
P.B. testified that while Defendant lived in a house on La Neuville Road, he would enter the bedroom where P.B. slept and rub her vagina. P.B. was eight or nine years old at the time, and Defendant's daughter was in bed with her. P.B. further testified that Defendant would enter the bedroom, kneel over her, "have his hands on it, in my vagina," masturbate to orgasm, "leave it on me," wipe her with her own underwear, then leave the room. P.B. was also eight or nine years old when this occurred. P.B. stated that Defendant's wife was across the hall during these events and that her bedroom door was open. P.B. also testified that Defendant began rubbing his penis on her while he masturbated and "would insert it enough" and then ejaculate on her. She was then asked, "Did he actually insert his penis fully into you," and she responded, P.B. further stated that she would hit Defendant and that he would go away, but this was usually after he had already "finished." P.B. testified that Defendant did this more than twenty times. P. B. further testified that on many occasions, Defendant partially inserted his penis into her vagina. P.B. indicated that she experienced pain during these events and that she would cry and say stop. However, she did not scream at the top of her lungs. P.B. testified that Defendant subsequently began to fondle her and masturbate while they watched television.
P.B. stated that she was ten or eleven years old when she refused to go to Defendant's home. When she was approximately fifteen or sixteen, she told her mother what Defendant had done to her. P.B. testified that her mother informed her that she had reported the events to the police and nothing could be done because too much time had passed. P.B. testified that she told her aunt, P.H., about these events the night of her senior prom and that P.H. told her she was lying.
In 2006, P.B. went to her mother's home to see her cousin C.H.'s baby. P.B. testified that when she saw C.H., she "saw her eyes, and I knew." D.H. also came over during P.B.'s visit, and D.H. had the same look. P.B. testified that she went home and prayed and decided to go to the police. Before going to the police, P.B. called C.H. and asked if Defendant had done anything to her. P.B. testified that C.H. cried and said yes. P.B. then informed C.H. that she was going to the police, and C.H. told her not to.
C.A., P.B.'s mother, testified that when P.B. was a child she spent the night with Defendant and his wife on a regular basis. C.A. further testified that when P.B. was eight or nine years old she started seeing a tremendous change in P.B. P.B. went from being a real sweet person to a "very rebellious, angry, mean little girl." When C.A. would mention Defendant and his wife, P.B. would get angry. P.B. did not stay overnight at Defendant's home after that.
C.A. further testified that when she told P.B. they would be attending a family function, P.B. did not want to go. At age sixteen, P.B. told C.A. that Defendant molested her. Also, when P.B. got married at age seventeen, she did not want Defendant to attend the ceremony. C.A. testified that after P.B. told her she was molested, C.A. told her mother and Defend...
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