State v. Gilliam

• Decision Date: 10 March 2022
• Docket Number: 2021-KA-0506
• Citation: 336 So.3d 513
• Parties: STATE of Louisiana v. Hugh GILLIAM
• Court: Court of Appeal of Louisiana — District of US

336 So.3d 513

STATE of Louisiana

v.Hugh GILLIAM

No. 2021-KA-0506

Court of Appeal of Louisiana, Fourth Circuit.

MARCH 10, 2022

DANIEL J. DYSART, ASSISTANT DISTRICT ATTORNEY, ASHTON LICCIARDI, ASSISTANT DISTRICT ATTORNEY, St. Bernard District Attorney's Office, 1101 W. St. Bernard Hwy. St. Bernard, Louisiana 70043, Counsel for Plaintiff/Appellee

SHERRY WATTERS, New Orleans, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, Louisiana 70158, Counsel for Defendant/Appellant

(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Lynn M. Luker, Pro Tempore)

LYNN M. LUKER JUDGE PRO TEMPORE

Defendant, Hugh Gilliam, appeals his conviction and sentence on one count of sexual battery and one count of indecent behavior with a juvenile. For the following reasons, we affirm defendant's conviction and sentence on both counts.

PROCEDURAL HISTORY

On July 31, 2019, the state filed a bill of information charging defendant with one count of molestation of a juvenile in violation of La. R.S. 14:81.2(A)(1), to which defendant plead not guilty. Victim-impact statements were provided by the juvenile's family members at a pretrial hearing. On January 16, 2020, the state moved for a competency evaluation. Following a hearing on the matter, defendant was found competent to stand trial.

On April 29, 2021, the state filed a superseding bill of information charging defendant with one count of sexual battery and one count of indecent behavior with a juvenile, violations of La. R.S. 14:43.1(A)(2), and La. R.S. 14:81(A)(1), respectively. Defendant entered pleas of not guilty on May 3, 2021, and trial commenced the following day. On May 6, 2021, the jury returned unanimous verdicts of guilty as charged on both counts.

Defendant filed a motion for new trial asserting that the verdict was contrary to the evidence and that the trial court erred in denying the defendant's oral motion for mistrial made during the jury deliberations. The motion for new trial was denied.

After observing all sentencing delays, the trial court imposed a sentence of forty years imprisonment at hard labor on the count of sexual battery, with twenty-five years, to be served without the benefit of parole, probation or suspension of sentence. On the count of indecent behavior with a juvenile, the trial court imposed the maximum sentence of twenty-five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The two sentences were to run concurrently, and defendant was given credit for time served. Defendant's appeal followed.

STATEMENT OF FACT

On March 29, 2019, L.N.¹ , a six-year-old female, accompanied her mother, J.N. and eight-year-old brother to a trailer park in Chalmette, Louisiana, where J.N. was hired to clean a trailer. James Norsworthy, a former St. Bernard Sheriff's deputy, testified at trial that on March 29, 2019, he was dispatched to a call at 1900 Andres Street in Chalmette. There, he met with J.N. who was present with her daughter, L.N. and her eight-year-old son. He stated that according to J.N., she was inside cleaning a trailer while her children played just outside. At some point, J.N. realized that L.N. was gone. According to Norsworthy's testimony, L.N. told her mother (after the incident) that she saw defendant flying a drone nearby, and went to defendant's residence alone. Norsworthy explained that defendant, known to J.N. from the neighborhood as Jeff, lived across the street and just one trailer down toward the levee.

Norsworthy reported that when J.N. went to look for L.N. she found her "on the other side of [defendant's] trailer." She saw L.N. "with her pants down and [defendant] squatted down in front of her with his phone in his hand like he was trying to take a picture of her." L.N. initially denied that anything inappropriate occurred, but after further questioning, L.N. stated that after her pants were pulled down, defendant touched her vaginal area with his fingers. Norsworthy authored an incident report and forwarded the complaint to the detective bureau where it was assigned to Det. Michele Capena.

On cross-examination, Norsworthy stated that J.N. did not pressure L.N. into making any statements, notwithstanding L.N.’s initial statement that nothing happened while her pants were pulled down. He further explained that he did not speak to defendant at the time because defendant had already left for work. Consequently, he was unable to inspect the drone or any footage the attached camera may have recorded. Norsworthy did not speak to any neighbors.

J.N. testified at trial that she resided with her husband and two children in Gonzalez, Louisiana. She stated that she cleaned houses for a living, including in St. Bernard Parish. She explained that she regularly brought her children with her to clean houses.

On March 29, 2019, J.N. was in Chalmette cleaning the trailer of an acquaintance named Corey. At that time, she was introduced to defendant as Jeff Gilliam, when he came over to speak to Corey. J.N. stated that her children met defendant at the same time she did. J.N. identified defendant, as Jeff Gilliam, in the courtroom.

J.N. reported that just before the incident occurred, she was outside of the trailer eating lunch with her children when defendant approached them, asking for Corey. She explained that Corey was inside the trailer sleeping. Defendant left and returned with a white drone, which J.N. stated caught her daughter's attention. After lunch, J.N. told the children to come inside the trailer with her while she finished cleaning, but the children wanted to stay outside. Defendant offered to stay with them, but J.N. declined his assistance. J.N.’s son again asked if they could stay outside and told J.N. they would remain on the porch and that he would watch his sister. J.N. acquiesced, but stated that she left the trailer door open while she finished cleaning.

J.N. testified that while she proceeded to clean, she noticed her son alone inside the trailer without L.N. He informed his mother that L.N. walked away with defendant. J.N. ran outside but did not see L.N.; she panicked and began shouting for her daughter. She eventually ran behind defendant's trailer where she saw L.N. and defendant, "with her pull-up and her shorts down to her ankles."²

J.N. stated that L.N. was facing defendant with her back to J.N., but J.N. was able to see her daughter's bare buttocks. J.N. could tell that L.N.’s vaginal area would also have been exposed in the front. J.N. testified that L.N. was standing upright with her hands out. Defendant was squatting down a few inches in front of L.N., "down by her private area, eye contact with it." J.N. further stated that she saw a phone in one of defendant's hands and could see "the elbow moving up and down." She denied that L.N. was squatting down or using the restroom in defendant's yard, and denied that L.N. had ever used the restroom outside or in anyone's yard.

Upon seeing L.N. with defendant, J.N. yelled and ran toward them. Defendant ran to the other side of his trailer and locked himself inside while J.N. continued to bang on his front door. J.N. stated that L.N. kept apologizing. J.N. picked L.N. up and brought her back to Corey's trailer. L.N. told her mother that defendant was showing her pictures of doctors on his phone, and "patting [her] tutu, he was just touching it." J.N. explained that L.N. used the word "tutu" as a term for her vagina. L.N. further told her mother that defendant wanted L.N. to pull her pants down, but she needed help, so defendant helped her.

Once J.N. brought L.N. back inside the trailer, she noticed that L.N,’s diaper was wet. L.N. admitted that she urinated in the diaper, but explained that it happened when J.N. started screaming and picked her up. J.N. testified that she gave her statements to the police shortly after the incident, and the detective scheduled a forensic interview at the Child Advocacy Center ("CAC") for L.N. several days later.

On cross-examination, J.N. admitted that she told the police that when she first demanded to know what happened, L.N. replied, "[n]othing, mother, I'm okay." However, J.N. testified that she actually could not recall L.N. telling her that nothing happened. She could only recall L.N. repeating "[i]t's okay, it's okay, it's okay..." notwithstanding what was written in the police report.

J.N. described defendant as wearing a T-shirt and jean-shorts on the day of the incident. She noticed he wore glasses and had tattoos on his arms. J.N. stated that on the day she brought L.N. to the CAC for her forensic interview, L.N. had placed a temporary tattoo on her arm. J.N. told L.N. that tattoos were not supposed to go on people's arms, but L.N. replied, "Well, [defendant] got them on his arm." When asked why L.N. would tell the interviewer that the person who touched her did not have tattoos, J.N. speculated that it was because she had told L.N. that defendant did not have any tattoos in an attempt to avoid the discussion. J.N. also testified that she could not recall whether she told the police or Det. Capena about defendant having tattoos.

Det. Capena testified that in April 2019, she was assigned to a case involving defendant, Hugh Gilliam, who she identified in open court. Det. Capena confirmed that when J.N. approached defendant's yard, she could see that L.N.’s pants and diaper were pulled down and that defendant was moving his arm, though defendant's hand was not visible. J.N. screamed, and defendant hurried away. J.N. also explained to Det. Capena that L.N. had "difficulties with her movements and stuff, and that [was] why she [wore] a diaper at her age." Det. Capena also confirmed that J.N. identified defendant by name during her statements to police, as she was familiar with him from the neighborhood.

Det. Capena stated that defendant signed a waiver of rights form, on which he indicated he was born on March 3, 1989. Defendant also agreed to provide a recorded statement,...