State v. Greene

• Decision Date: 30 January 2007
• Docket Number: No. 06-KA-667.,06-KA-667.
• Citation: 951 So.2d 1226
• Parties: STATE of Louisiana v. George S. GREENE.
• Court: Court of Appeal of Louisiana — District of US

951 So.2d 1226

STATE of Louisiana v. George S. GREENE.

No. 06-KA-667.

Court of Appeal of Louisiana, Fifth Circuit.

January 30, 2007.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Kia M. Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, and SUSAN M. CHEHARDY.

EDWARD A. DUFRESNE, Jr., Chief Judge.

The Jefferson Parish Grand Jury returned an indictment on December 12, 2002, charging defendant, George Greene, with one count of aggravated rape in violation of LSA-R.S. 14:42, one count of pornography involving a child under the age of 17 in violation of LSA-R.S. 14:81.1, and one count of sexual battery upon a juvenile in violation of LSA-R.S. 14:43.1. On September 29, 2004, a twelve person jury found defendant guilty as charged on all three counts. The trial court sentenced defendant to life imprisonment for the aggravated rape conviction, ten years for the child pornography conviction, and ten years for the sexual battery conviction. The judge imposed the sentences without the benefit of parole, probation, or suspension, and also ordered that the sentences be served consecutively. Defendant now appeals.

FACTS

At approximately 3:26 p.m. on October 21, 2002, Deputy Keith Cannizaro was dispatched to investigate a complaint of child sexual abuse. He met with B.T. (the victim's mother), P.T. (the victim's step-father), and S.S. (the victim).¹ B.T. told Deputy Cannizaro that her twelve year old daughter had disclosed she had been sexually abused by defendant, who is the victim's biological father. Deputy Cannizaro spoke to S.S. who stated defendant performed oral sex on her, had her perform oral sex on him, had intercourse with her, and took pictures of her wearing panties and in the nude. She told Deputy Cannizaro the abuse occurred every time she visited defendant, which was approximately twice a month, and that defendant told her not to tell anyone because it was their little secret. Deputy Cannizaro instructed S.S.'s mother to take her to Children's Hospital for an examination.

S.S.'s mother took S.S. to Children's Hospital that same day where she was examined by Dr. Sonseeahray Bridges in the emergency room. According to Dr. Bridges, S.S. stated her father had touched her in inappropriate ways resulting in penetrating vaginal and oral sex. Dr. Bridges' physical examination of S.S. was unremarkable. She noted a fold of hymen tissue which was either a normal variant or a possible tear that healed. She stated the variant was not necessarily indicative of sexual abuse. Dr. Bridges explained that less than 20% of sexual abuse victims show physical signs of abuse. As a result of the exam, Dr. Bridges ordered routine labs and tests to test for sexual diseases and requested social services be contacted.

Meanwhile, Detective Scott Guillory obtained a search warrant for defendant's home. Among the items seized were several pornographic videotapes and magazines. At some point during the search, defendant agreed to accompany Detective Guillory to the Detective Bureau where he gave three taped statements. In his statements, defendant admitted having sexual contact with S.S. when she was eleven years old. He specifically admitted having oral sex with her, vaginal-penile contact, and inserting a hot dog in her rectum and moving it in and out. He stated S.S. instigated the oral sex and the vaginal-penile contact.

Approximately one week later, the victim was taken to the Child Advocacy Center (CAC) where a videotaped interview, which was played for the jury during trial, was conducted by Omalee Gordon. At trial, S.S. testified that she met defendant, her biological father, when she was approximately four years old. Shortly thereafter, she started visiting him at his home about twice a month during which time he touched her private areas, which she described as her "tulip and twat." S.S. testified defendant put his penis in her mouth and told her to suck or lick it, inserted a hot dog into her butt, showed her magazines of naked people and movies of people "doing it," took pictures of her wearing a thong after instructing her to lean over and hold her butt cheeks open, and put his penis inside her "twat." She stated the last incident of abuse occurred Labor Day weekend in 2002.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant contends that the trial court erred by allowing the state to introduce evidence of other crimes. Defendant specifically argues the trial court erred in allowing evidence relating to prior sexual abuse committed by defendant on T.L., his step-daughter, and B.G., his biological daughter. Prior to trial, the state filed a notice of intent to use evidence of similar crimes, under LSA-C.E. arts. 404(B) and 412.2. After several hearings, the trial court granted the motion to allow the state to present evidence of defendant's past sexual acts.

At trial, the state presented the testimony of T.L. and B.G. and played the videotaped interview each gave to the Child Advocacy Center in 1992. T.L., who was twenty-three years old at the time of trial, testified defendant is her stepfather whom she has known since she was eight or nine years old. She stated defendant started touching her in inappropriate ways after she, her mother, and brother, moved in with defendant when T.L. was almost ten years old. She explained he had a fetish with her butt and that he touched and rubbed it with his hands and his penis. T.L. testified defendant would ejaculate either on her body or in a towel. She denied defendant ever "put himself inside of [her]."

B.G., who was twenty-six years old at the time of trial, testified defendant is her biological father. She stated defendant sexually abused her from the time she was eight years old until right before she turned thirteen. She explained defendant rubbed his penis on the walls of her vagina until he ejaculated.

Defendant now argues that the trial court erred in allowing this other crimes evidence. He contends that the evidence is inadmissible under LSA-C.E. art. 404(B), which prohibits evidence of lustful disposition. He also maintains the evidence is inadmissible under LSA-C.E. art. 412.2 because the prior sexual assaults occurred before the article was enacted and prior to its August 15, 2001 effective date. Defendant asserts the admission of this other crimes evidence under Article 412.2 violates the ex post facto laws.

We first note that defendant did not raise this particular argument in the trial court. Although defendant challenged the retroactivity of LSA-C.E. art. 412.2 at trial, he argued it was inapplicable because there was no evidence the charged offense occurred after the article's effective date. Defendant never argued the article was inapplicable because the past sexual acts occurred before the effective date of the article, which is the sole basis of his argument on appeal. We note that a new ground for an objection cannot be presented for the first time on appeal. State v. Housley, 05-502 (La.App. 5 Cir. 1/31/06), 922 So.2d 659, 664-665, writ denied, 06-1183 (La.11/17/06), 942 So.2d 531.

Nonetheless, we have considered defendant's arguments and find them to be without merit. LSA-C.E. art. 412.2, which became effective on August 15, 2001, provides in pertinent part:

A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

Article I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. State v. Everett, 00-2998 (La.5/14/02), 816 So.2d 1272, 1280. The United States Supreme Court has identified four categories of law that violate the ex post facto prohibition: 1) any law that makes an action criminal that was innocent when done and before the passing of the law, 2) any law that aggravates a crime or makes it greater than it was when committed, 3) any law that changes the punishment and inflicts greater punishment than the law provided when the crime was committed, and 4) any law that alters the legal rules of evidence and requires less or different testimony in order to obtain a conviction than was required at the time the offense was committed. Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 1697, 149 L.Ed.2d 697 (2001).

In State ex rel. Olivieri v. State, 00-172 (La.2/21/01), 779 So.2d 735, 744, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), the Louisiana Supreme Court held that in determining whether there has been an ex post facto violation, the analysis should focus on whether the new law redefines criminal conduct or increases the penalty by which it is punished, and not whether the defendant has simply been disadvantaged. State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 653, writ denied, 05-0597 (La.6/3/05), 903 So.2d 455.

Although the Louisiana Supreme Court has yet to decide whether the retroactive application of Article 412.2 violates the ex post facto prohibition, the Third Circuit has held that its retroactive application does not constitute an ex post facto violation. State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, ___ U.S. ___, 127 S.Ct. 668, 166 L.Ed.2d 514 (U.S.11/27/06). In so concluding, the Third Circuit stated:

Article 412.2 did not alter the amount of...