State v. Graham

• Decision Date: 03 July 2014
• Docket Number: No. 2013 KA 1806.,2013 KA 1806.
• Citation: 148 So.3d 601
• Parties: STATE of Louisiana v. William J. GRAHAM.
• Court: Court of Appeal of Louisiana — District of US

148 So.3d 601

STATE of Louisiana

v.William J. GRAHAM.

No. 2013 KA 1806.

Court of Appeal of Louisiana, First Circuit.

July 3, 2014.

Rehearing Denied July 24, 2014.

Walter P. Reed, District Attorney, Covington, LA, for Plaintiff/Appellee State of Louisiana.

Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, LA, Teresa Culpepper Carroll, Jonesboro, LA, for Defendant/Appellant William J. Graham.

Before PARRO, GUIDRY, and DRAKE, JJ.

Opinion

GUIDRY, J.

The defendant, William J. Graham, was charged by amended grand jury indictment with one count of aggravated incest of a victim under thirteen years of age, a violation of La. R.S. 14:78.1, and pled not guilty. Following a jury trial, he was found guilty by unanimous verdict of the responsive offense of molestation of a juvenile, a violation of La. R.S. 14:81.2. He was sentenced to fifty years at hard labor, with twenty-five years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. He now appeals, challenging: the sufficiency of the evidence; the admission of the recorded statement of the victim into evidence; the responsiveness of the verdict to the charge; and the sentence as excessive. For the following reasons, we affirm the conviction and sentence.

FACTS

In October of 2007, the victim, R.B.,¹ her twin sister, J.B., and their mother, K.G., moved into the home of W.G., the father of the defendant, in Mandeville. The defendant also lived in the home. On October 12, 2008, K.G. and W.G. married each other.

On January 17, 2009, R.B. was four years old, and the defendant was nineteen years old. On that date, while bathing the victim, K.G. reminded her, “[r]emember we don't ever let anybody touch us down there. It's our private places.” The victim replied, “[w]ell, Justin does.” She further stated, “[w]ell, [the defendant] tells me to take my pants and my underwear down and he checks me for tee-teeing. He sticks his hands way back here and it hurts.” The next day, W.G. asked the defendant's mother and her husband to come to his home, where they,

along with K.G. and W.G., confronted the defendant concerning the victim's allegations. The defendant initially claimed he had done “nothing.” He then stated, “had he done it, he would have pushed it so far back in his memory that he wouldn't have tried to remember.” Thereafter, he stated, “[w]ell, maybe I did do it, but I just touched her on the outside, that's all that I did.”

On February 2, 2009, the victim made a recorded statement concerning the offense. Referencing the defendant, the victim asked the interviewer, “[d]o you know where he sticks his finger at?” The victim then gestured to the area between her legs, stating, “[i]n me. It didn't go inside my blood.” Thereafter, the victim identified the vagina on a sketch of a girl as the “pee pee” and stated the defendant had put his finger on her “pee pee.” She indicated the defendant had put his finger on her skin and it was “not okay.” She stated the incident happened on just one occasion in the defendant's bedroom. Preceding the incident, she indicated the defendant pulled her clothes down. When asked if the defendant touched the inside or the outside of her skin, she stated, “outside.” However, when asked to demonstrate what had occurred with anatomically correct dolls, the victim indicated the defendant had put his finger inside her vagina. She stated “[i]t hurt a little.” When asked if the defendant had done this to anyone else, the victim indicated the defendant had “stuck his finger” on her stepbrother and the defendant's half-brother's “pee pee,” “right inside his blood,” to which her stepbrother said, “Stop.”

On March 12, 2013, the victim was called to the stand at trial. At that time, she was nine years old. She had no idea why she was in court and did not recognize the defendant in court. She also did not remember what had occurred when she was four years old and did not remember giving a recorded statement.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant argues the evidence was insufficient on the elements of whether a lewd or lascivious act occurred, whether he had a specific intent to arouse or gratify the sexual desires of himself or the victim, and whether he had control or supervision over the victim.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438 ; State v. Wright, 98–0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, writs denied, 99–0802 (La.10/29/99), 748 So.2d 1157 and 00–0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98–0601 at p. 3, 730 So.2d at 487.

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the

sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age is not a defense. La. R.S. 14:81.2(A) (prior to renumbering by 2011 La. Acts, No. 67, § 1).

Thus, in order to commit molestation of a juvenile, the offender must possess the specific intent of arousing or gratifying the sexual desires of himself or the child upon whose person he committed a lewd or lascivious act or in whose presence he committed such an act. However, specific intent need not be proven as a fact. It may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Babin, 93–1361, p. 4 (La.App. 1st Cir.5/20/94), 637 So.2d 814, 817–18, writ denied, 94–1563 (La.10/28/94), 644 So.2d 649, abrogated on other grounds, State ex rel. Olivieri v. State, 00–0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 and 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Henderson, 99–1945, p. 3 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied, 00–2223 (La.6/15/01), 793 So.2d 1235.

A lewd and lascivious act is an act that is lustful, obscene, indecent, tending to deprave the morals in respect to sexual relations, and relating to sexual impurity or incontinence carried on in a wanton manner. See State v. Jones, 10–0762, p. 4 n. 1 (La.9/7/11), 74 So.3d 197, 200 n. 1.

The defendant argues the evidence proved no more than he “possibly touched [the victim's] private area on one occasion when checking to see if she

had urinated.” However, the verdict rendered against the defendant indicates the jury rejected the defense theory that the defendant touched the victim's vagina only to see if she had urinated on herself and credited the evidence indicating that the touching of the victim's vagina (in a manner that caused her pain) was a lewd and lascivious act committed with the specific intent to arouse or gratify the sexual desires of the defendant or the victim.

When a case involves circumstantial evidence, and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant case. Further, as the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99–0385, p. 9 (La.App. 1st Cir.11/5/99), 745 So.2d 217, 223, writ denied, 00–0829 (La.11/13/00), 774 So.2d 971. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Glynn, 94–0332, p. 32 (La.App. 1st Cir.4/7/95), 653 So.2d 1288, 1310, writ denied, 95–1153 (La.10/6/95), 661 So.2d 464. Additionally, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06–0207, p. 14 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07–2306, pp. 1–2 (La.1/21/09), 1 So.3d 417, 418 (per...