State v. Hannon, 37,351-KA.

• Decision Date: 20 August 2003
• Docket Number: No. 37,351-KA.,37,351-KA.
• Citation: 852 So.2d 1141
• Parties: STATE of Louisiana, Appellee, v. Walter HANNON, a/k/a Walter Elmore, Appellant.
• Court: Court of Appeal of Louisiana — District of US

852 So.2d 1141

STATE of Louisiana, Appellee, v. Walter HANNON, a/k/a Walter Elmore, Appellant.

No. 37,351-KA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 2003.

Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, for Appellant.

Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, for Appellee. Before STEWART, CARAWAY and DREW, JJ.

STEWART, J.

The defendant, Walter Hannon ("Hannon"), was convicted by a jury of attempted forcible rape and attempted oral sexual battery. He was sentenced and found to be a habitual offender. His original sentence was vacated and he was re-sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The latter sentence was ordered to be served without benefits. The defendant now appeals. For the reasons that follow, we affirm his convictions, but we vacate his sentences, and remand the matter for further proceedings consistent with this court's opinion.

FACTS

On or about November 2, 2000, the victim, T.W.¹, a 13-year-old male, encountered the defendant on his way to a playground near the victim's home. The defendant raced and "slap boxed" with the victim, and told the victim his name was Walter Hannon. The next day, the victim was playing in his front yard area at 1903 Samuel Drive in Monroe when he was grabbed by the defendant, who covered his mouth and arms and dragged him down the street. The defendant then took the victim "the back way" to an uninhabited structure located on Samuel Drive and opened the door with a key. The victim, who weighed about 105 pounds and was approximately 5'5" tall, was taken to a dark room by the defendant. The victim was alone in the room with the defendant. Some Vaseline and a towel were already in the room. The defendant performed oral sex on the victim. The defendant then put Vaseline on his own private parts and forced the victim to have anal intercourse. The defendant told the victim that he would kill him if he told anyone. The defendant then took the Vaseline and towel with him and left.

The victim went home and told his grandmother, who called the police. The victim went in a car with some family members to look for the defendant. They encountered the defendant when he came out of a house near the corner where he and the victim had raced the day before. David Banks, who was the boyfriend of the victim's aunt and one of the persons riding with the victim, got out of the car and asked the defendant for a cigarette while the aunt tried to get the attention of a nearby law enforcement officer, but the defendant "took off running."

In the early morning hours after the crimes, the victim was taken to St. Francis Medical Center where a rape examination was performed and physical evidence was removed from the victim's body. The examining physician, Dr. Robert Carey, observed bruising around the victim's rectum, anus and a mucosal tear of the victim's anus which could have been caused by penile penetration. The victim told the examining physician that the defendant performed oral sex on his body and anally penetrated him. Among the other information the physician noted in the history that he took from the victim was that the victim said the defendant kissed his neck. A couple of days later, the victim was shown a photographic lineup by police. The victim selected the defendant's picture. The victim also gave a recorded statement to police. The defendant was charged by a bill of information with forcible rape and oral sexual battery. The defendant was tried by a jury. Evidence introduced at trial included the testimony of the victim, who related the facts and circumstances surrounding the crimes, and made an in-court identification of the defendant as the assailant. During his trial testimony, the victim acknowledged that he told police during his recorded statement that the defendant took him to 1938 Samuel Drive. However, the victim corrected himself at trial and stated that the rape occurred at 1930 Samuel Drive. The victim also denied telling police during his recorded statement that the defendant tried to open any other doors. The victim said that there was nothing unusual about the house in which the crimes occurred—he asserted that it had not been burned. On cross-examination, the victim clarified that he was not forced to perform oral sex on the defendant. The victim did not recall telling the examining physician that the defendant kissed his neck.

At trial, the examining nurse and physician testified regarding the results of the victim's physical examination and the collection of the physical evidence contained in the rape kit. Investigating officers testified regarding the investigation of the crime and the collection and chain of evidence. The state presented evidence that the defendant was born on July 23, 1967, and that the victim was born on September 3, 1987.

Linda Armstrong of the North Louisiana Crime Lab, an expert in DNA analysis, testified that she analyzed the DNA suspected reference samples obtained from the defendant and compared them to DNA samples obtained from the rape kit performed on the victim. Armstrong determined that the sperm fraction from the victim's anal swab was consistent with the DNA profile she obtained from the reference sample of the defendant. Specifically, Armstrong calculated that the probability of finding the same DNA profile if the DNA had come from an African American other than the defendant was approximately one in fourteen point seven trillion. Armstrong's conclusions and calculations were confirmed at trial by Dr. Pat Wojtkiewicz, another expert in DNA analysis and statistical data.

The state also presented the trial testimony of Earnest Gary Hamilton, Sr., the owner of West Ouachita Painting Company, who employed the defendant at the time of the crimes, and who saw him working on Samuel Drive on the date of the crimes. Hamilton testified that the defendant had worked on the apartments on either side of 1938 Samuel Drive and had access to a master key. He related that the unit located at 1938 Samuel Drive had been burned and was unlocked. Hamilton's payroll records, confirming the defendant's employment on the date of the crimes, were introduced at trial. Also, Tijuana Thompson, who was employed by the Monroe Housing Authority, testified that the defendant was receiving payments for work being done on Samuel Drive at the time the crimes were committed.

The defense presented the testimony of Theresa Wilson, an alibi witness. Wilson was living with the defendant at the time of the crime and is the mother of his child. She testified that the defendant was at her residence on the evening of the crimes from a little after five o'clock until about eleven or twelve o'clock. On cross-examination, Wilson acknowledged that she had feelings for the defendant. She also acknowledged that she never told the authorities that the defendant was with her until just before trial. The defense also presented the testimony of two witnesses who were also present to corroborate her story. The defendant was convicted of attempted forcible rape and attempted oral sexual battery. On July 22, 2002, the trial court sentenced the defendant to serve 20 years at hard labor on count one, attempted forcible rape, and 5 years at hard labor on count two, attempted oral sexual battery.

On August 22, 2002, the defendant was found to be a multiple offender. His original sentence was vacated and he was sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The sentences were ordered to be served concurrently to one another, but consecutively with any sentence the defendant was serving for his parole violation. The sentence for attempted forcible rape was ordered to be served without benefit of parole, probation or suspension of sentence. The defendant's timely filed motions to reconsider sentence were denied. This appeal followed.

DISCUSSION

Insufficiency of the Evidence

Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, XXXX-XXXX (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Ponsell, 33,543 (La. App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable...