State v. Johnson

• Decision Date: 12 August 2015
• Docket Number: 50,005–KA.
• Citation: 175 So.3d 442
• Parties: STATE of Louisiana, Appellee v. Phillip Orlando JOHNSON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

175 So.3d 442

STATE of Louisiana, Appellee

v.Phillip Orlando JOHNSON, Appellant.

50,005–KA.

Court of Appeal of Louisiana, Second Circuit.

Aug. 12, 2015.

Washington & Wells by Alex J. Washington, Shreveport, LA, for Appellant.

Dale G. Cox Counsel, William Jacob Edwards, Sarah S. Midboe Hood, Jessica Diane Cassidy, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS and LOLLEY, JJ.

Opinion

LOLLEY, J.

Following a jury trial, the defendant, Phillip Orlando Johnson, was convicted of aggravated rape and aggravated kidnapping, violations of La. R.S. 14:42 and La. R.S. 14:44, respectively. He was subsequently sentenced to life imprisonment at hard labor without benefits on each count, to be served concurrently. Johnson appeals his convictions, which we affirm for the following reasons.

FACTS

On November 3, 2010, K.J., a 13–year–old girl, was walking to school down W. 73rd Street in Shreveport, Louisiana. She was grabbed by a man wearing a cap and bandana over his face and dragged to an abandoned, burned-out house on the street. Cordell Morris and Samantha Thompson witnessed the man grab K.J. and drag her into the abandoned house. Thompson called the police, and Officer Rodney Medlin of the Sheveport Police Department responded to the call, arriving shortly after it was made. Officer Medlin entered the house where the man had dragged K.J. He saw the man standing over K.J. and witnessed the perpetrator run away. Officer Medlin secured K.J. in his patrol car. Soon after this, the perpetrator was apprehended, and K.J. positively identified him as her attacker. She was then taken to Willis–Knighton Hospital for a medical examination.

Ultimately, Johnson was charged via a superseding indictment with the aggravated rape and aggravated kidnapping of K.J. After a jury trial, the jury unanimously found Johnson guilty as charged. At the subsequent sentencing hearing, Johnson made an oral motion for post-verdict judgment of acquittal, which the trial court denied. Johnson waived sentencing delays, and the trial court sentenced him to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, on each count. The sentences were ordered to be served concurrently. This appeal followed.

DISCUSSION

Sufficiency of the Evidence

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. Tate, 2001–1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004) ; State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008–0499 (La.11/14/08), 996 So.2d 1086. 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. Pigford, 2005–0477 (La.02/22/06), 922 So.2d 517 ; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009–0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994–3116 (La.10/16/95), 661 So.2d 442. 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. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, 177 L.Ed.2d 1068.

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. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009–0372 (La.11/06/09), 21 So.3d 299.

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. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002–2595 (La.03/28/03), 840 So.2d 566, 2002–2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005–0213 (La.01/19/06), 921 So.2d 94.

Aggravated Rape

In his first assignment of error, Johnson submits that the evidence was insufficient to convict him of aggravated rape, specifically because K.J.'s trial testimony contradicted her initial statements regarding her attack, creating reasonable doubt as to his guilt. We disagree.

Regarding the crime of rape, La. R.S. 14:41 provides:

A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent.

B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

C. For purposes of this Subpart, “oral sexual intercourse” means the intentional engaging in any of the following acts with another person:

(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender.

(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

Specifically, as to the crime of aggravated rape, La. R.S. 14:42 provides, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.

(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.

The testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Drake, 46,232 (La.App.2d Cir.06/22/11), 71 So.3d 452. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. Id.

Here, the evidence presented at trial was sufficient for the jury to find Johnson guilty of aggravated rape. Notably, pursuant to the statute, aggravated rape may consist of either oral or vaginal sexual intercourse. At trial, K.J. testified that Johnson forcibly dragged her into the abandoned, burned-out house, while armed with a knife, and then pulled his penis out of his pants and instructed her to “suck this.” K.J. stated that Johnson forced her to perform oral intercourse on him as he stood over her, and that his penis went into her mouth multiple times. K.J. also stated that Johnson then attempted to put his penis in her vagina, but was unable to do so. Officer Medlin testified that when he arrived at the house, he saw Johnson on top of K.J., who had her pants pulled down and her shirt pulled up.

We recognize the inconsistencies between K.J.'s trial testimony regarding the attack and some of her prior statements. Immediately after the attack, K.J. was taken to the hospital and examined by Rita Trant, a sexual assault nurse. According to Trant, K.J. reported that her attacker had inserted his penis in her vagina, but that she had not performed oral intercourse on him. The day after her attack, K.J. was taken to the Gingerbread House, an advocacy center for abused children, where she was interviewed by a staff member. The video of her interview at the Gingerbread House was played for the jury. In that interview, K.J. stated that her attacker had put his penis in her vagina, rather than her mouth.

Although Johnson's assignment of error purports to question the sufficiency of evidence regarding the crime of aggravated rape, the gist of his argument goes to the credibility of the victim's statements during the investigation and trial. Although K.J.'s account changed at trial, she was questioned about the discrepancies, and she gave an explanation as to why her account changed. At trial, K.J. freely admitted that some of her testimony was different than what she said initially in the Gingerbread House interview, explaining that she was embarrassed, did not want to talk about the incident, and wanted to terminate the interview as quickly as possible. In convicting Johnson of aggravated rape, the jury obviously chose to believe K.J.'s trial testimony regarding the oral intercourse and her explanation as to why she previously said that Johnson had vaginally raped her. The jury was able to observe K.J.'s demeanor and listen to her testimony at trial, under questioning by both the prosecutor and the defense counsel. We are not called to assess the credibility of witnesses or reweigh evidence. As stated, the jurisprudence is constant and clear: a reviewing court accords great deference to a jury's decision to accept or...