State v. Houston

• Decision Date: 10 March 2006
• Docket Number: No. 40,642-KA.,40,642-KA.
• Citation: 925 So.2d 690
• Parties: STATE of Louisiana, Appellee v. Walter HOUSTON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

925 So.2d 690

STATE of Louisiana, Appellee v. Walter HOUSTON, Appellant.

No. 40,642-KA.

Court of Appeal of Louisiana, Second Circuit.

March 10, 2006.

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Louisiana Appellate Project, by Christopher A. Aberle, Annette Fuller Roach, Mandeville, for Appellant.

Paul J. Carmouche, District Attorney, Laura Wingate, Ron Stamps, Assistant District Attorney, for Appellee.

Before BROWN, MOORE and LOLLEY, JJ.

MOORE, J.

The appellant was charged by bill of indictment with three counts of aggravated rape and five counts of molestation of a juvenile.¹ After a jury acquitted him on the rape charges and convicted him on the five counts of molestation of a juvenile, he was adjudicated a third felony offender and sentenced on count four to serve 24 years at hard labor without benefit of parole, probation or suspension of sentence. He received concurrent sentences of 15 years at hard labor for each of the other four counts, along with payment of costs. The appellant filed a timely appeal of the convictions and sentences. We affirm in part, amend the conviction for count eight, and remand for resentencing.

FACTS

The defendant's secret sexual activities with the victims came to light in late December 2002, when SJ was tickling her daughter, TJ, and accidentally brushed up against the four-year-old's vaginal area. The child told her she was not supposed to touch her there because she (SJ) was not a man, and she was not "Papa," the appellant herein. The child told her mother that appellant had rubbed her and kissed her "private" when her grandmother was not there. Appellant is the child's step-grandfather.

SJ called her sister's house to speak with her other daughter, KJ, and asked her if appellant had touched her "in the wrong place." With reluctance, KJ, age seven, stated that appellant had touched her "kitty area" a lot of times when her grandmother was not at home.

SJ spoke with her sister, TA, to determine if her daughters SA, age 8, and JL, age 14, had also been molested. The young girls also said the appellant had done or said inappropriate things to them. Additionally, her son, DS, age 10, stated that he had seen the appellant touch the "privates" of his cousins and younger sister when they were in the swimming pool.

The women contacted The Gingerbread House where videotaped interviews of all five children were conducted on January 8, 2003. The three younger girls also underwent physical examinations to determine if there was any evidence of sexual abuse.

Subsequently, the appellant was charged by indictment with three counts of aggravated rape and five counts of molestation of a juvenile for crimes alleged to have occurred between June 8, 2002 and January 2003. He was tried by a jury of twelve.

At trial, the state introduced the videotaped interviews of the five children into evidence and adduced testimony from the children, their mothers, investigators and medical experts. The defense called the appellant's wife as a witness. She testified that her daughter had framed the appellant because of an argument between them around Labor Day 2002.

The appellant was acquitted of the aggravated rape charges but found guilty of all five counts of molestation. The trial court denied the motions for post verdict judgment of acquittal and a new trial. The appellant was adjudicated a third felony offender on January 5, 2005. At the sentencing hearing on February 2, 2005, the trial court enhanced the penalty of count four and ordered the appellant to serve 24 years at hard labor without benefit of parole, probation or suspension of sentence. The sentence for each of the other four counts was 15 years at hard labor to run concurrently and costs.

The trial court amended the sentence on March 14, 2005, to reflect that the appellant was ordered to register as a sex offender. This appeal followed.

DISCUSSION

By his first five assignments, Houston contends that the evidence was insufficient to convict on each of the molestation charges; by his sixth assignment, he contends the court erred in failing to grant his motion for post verdict judgment of acquittal, which is also a sufficiency of evidence claim.

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. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

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. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2 Cir. 5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048.

La. R.S. 14:81.2(A) defines molestation of a juvenile as follows:

A. 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 shall not be a defense.

Thus, the essential elements the prosecution must prove beyond a reasonable doubt for the crime of molestation of a juvenile are:

(1) accused was over the age of 17;

(2) accused committed a lewd or lascivious act upon the person or in the presence of a child under age 17;

(3) accused was more than two years older than the victim;

(4) accused had specific intent to arouse or gratify either the child's sexual desires or his or her own sexual desires; and

(5) accused committed the lewd or lascivious act by use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm or by use of influence by virtue of position of control or supervision over juvenile.

See State v. Watson, 39,362 (La.App. 2 Cir. 4/20/05), 900 So.2d 325.

Insufficiency of the evidence to establish the identities of the victims.

Appellant contends that in the indictment, the children are identified only by gender and date of birth, not by name, in apparent compliance with the Victim's Rights Act. Appellant argues that the state failed to establish the birth dates of each victim in the videotaped statements and at trial in order to properly identify "which child was the alleged victim of each count, and thus, the evidence is insufficient for purposes of establishing the identity of the victim as to each count beyond a reasonable doubt."

In fact, the indictment lists the names and birth dates of each child along with the charges. Further, each child stated his or her name and age at trial. The age that each child voiced at trial matches the age that child should be in accordance with the birth date listed in the indictment. The evidence also shows each verdict sheet contained the corresponding victim's name. This argument is without merit.

Assignment of Error Number One: There was insufficient evidence introduced at trial to support a finding of guilty of Molestation of a Juvenile with regard to the female juvenile, JL, whose date of birth is April 11, 1988.

Houston argues that the testimony of JL showed that he...