State v. Kirby

• Citation: 309 So.3d 946
• Decision Date: 13 January 2021
• Docket Number: No. 53,661-KA,53,661-KA
• Parties: STATE of Louisiana, Appellee v. Torey KIRBY, Appellant
• Court: Court of Appeal of Louisiana — District of US

309 So.3d 946

STATE of Louisiana, Appellee

v.Torey KIRBY, Appellant

No. 53,661-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered January 13, 2021

LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, WILLIAM C. GASKINS, TOMMY J. JOHNSON, Assistant District Attorneys, Shreveport, Counsel for Appellee

Before MOORE, THOMPSON, and BODDIE (Pro Tempore), JJ.

MOORE, C.J.

Following a jury trial, the defendant, Torey Kirby, was convicted as charged of attempted third degree rape, simple burglary of an inhabited dwelling, and unauthorized entry of an inhabited dwelling. Prior to sentencing, Kirby was determined to be a second-felony offender. The court sentenced Kirby to concurrent sentences of 10 years at hard labor without benefit of probation or suspension of sentence for each conviction.

Kirby now appeals the convictions for attempted third degree rape and simple burglary. For the following reasons, we affirm the convictions and sentences.

FACTS

On January 8, 2018, after working a 12-hour graveyard shift as a nurse at Willis-Knighton Medical Center, the victim, K.F., returned to her home in the Broadmoor neighborhood shortly after 7:00 a.m. The house is located directly behind a Thrifty Liquor store. Once she was home, K.F. took her dog outside to do his business, and then brought him back inside; she forgot to lock the door behind her as she headed to the bedroom. Exhausted, she disrobed and went to bed.

Later that morning – just minutes before noon – she was awakened by the sound of her dog growling and backing up against her. She noticed the stench of cigarette smoke. When she opened her eyes, she saw a black male standing at the foot of her bed holding a bottle of Absolut Vanilla Vodka in one hand and a cigarette in the other. The vodka came from her kitchen cabinet.

The intruder said something to her that she did not understand as her dog lunged off the bed toward the defendant. She screamed at him repeatedly to get out, and he retreated down the hallway with the dog on his heels. K.F. immediately called 911, and she heard the back door open. She thought that perhaps the intruder had left; unfortunately, he only stepped outside the door onto the patio while the dog ran outside and left the property.¹

While remaining on the phone with 911, K.F. put on her bathrobe and cautiously walked down the hallway, which opens into the dining room with the kitchen to the left. She walked into the kitchen toward the open side door leading outside to the patio. She saw the defendant standing just outside the threshold of the door. When he saw her, he came back into the doorway from the patio. She testified that he sat down in the threshold of the door and continued to swig the bottle of vodka he took from her kitchen.

K.F. said the defendant turned up the bottle, took a large drink, and then stated that "he was going to f--- my fine ass." K.F. was still connected to 911, and the call was being recorded. She responded: "So you are going to f--- my fine ass?" She began repeatedly yelling at him to get out.

The defendant stood up inside the kitchen doorway licking his lips and moving his mouth provocatively. She testified that he said, "Dam[n], Bitch, I'm going to f--- you." The defendant moved toward her, telling her he was going to show her something. He struggled to get his pants down while trying to expose himself, but was not completely successful during the several attempts. K.F. testified that he exposed his pubic area including the base and part of the shaft of his penis several times.

K.F. grabbed a butcher knife and told the defendant that she would stab him. She can be heard on the 911 recording audio telling the defendant, "No. Stop." She ran through the house and then out the front door just as the police arrived. The recording of the 911 tape was admitted into evidence and played to the jury.

Kirby was arrested by Shreveport Police Department ("SPD") Officer Jordon Lewis. Officer Lewis testified that he found Kirby sitting in the threshold of the side door of K.F's house drinking an alcoholic beverage and ignoring commands. He said that Kirby appeared to be intoxicated.

After the arrest, Ofc. Lewis placed Kirby in the backseat of his patrol car, which was equipped with video surveillance equipment. At trial, the state played to the jury a video recording ("MVS video") of the defendant's behavior in the vehicle after his arrest. Officer Lewis identified the video and the defendant therein. When questioned regarding the defendant's level of intoxication, he testified that the defendant was able to stand, walk, talk coherently in complete sentences, and remain conscious during his interactions with him. He testified that Kirby did not fall asleep at any time and understood that he was being arrested.

Finally, Detective Bryan Lauzon of the SPD testified regarding his investigation of the case. He did not interview Kirby until January 9, 2018, the day after the incident, because he was told that Kirby might be intoxicated, but interviewed him at the Shreveport City Jail shortly after 2:00 p.m. on that day. The interview was recorded and played to the jury with certain parts excised by agreement between the state and the defense.

During the interview, Kirby admitted entering the side door of K.F.’s residence, walking around the house and finding K.F. and the dog in the bedroom, and taking the bottle of vodka. He claimed he had no intent to harm or hurt K.F., and he denied making any sexual statements or advances toward her.

The jury returned guilty verdicts on all three counts. After the defendant was sentenced, this appeal followed.

DISCUSSION

By his first assignment of error, Kirby contends that the state failed to prove beyond a reasonable doubt that he had specific intent to commit attempted third degree rape. He maintains that because he was intoxicated, he lacked the specific intent to commit third degree rape. He also argues that his conduct and demeanor before and after he made the sexual statements to K.F. and attempted to remove his pants do not prove beyond a reasonable doubt that he had specific intent to commit third degree rape. Accordingly, he argues that the conviction should be reversed and the sentence vacated.

This assignment raises a sufficiency of the evidence question of whether the evidence regarding the element of "specific intent" was sufficient for the jury to find that the defendant was guilty of attempted third degree rape beyond a reasonable doubt. The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. La. C. Cr. P. art. 821 ; Jackson v. Virginia , 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Tate , 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied , 541 U.S. 905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004) ; State v. Young , 51,711 (La. App. 2 Cir. 1/18/18), 245 So. 3d 353, writ denied , 18-0309 (La. 11/14/18), 256 So. 3d 283. The Jackson standard 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 , 05-0477 (La. 2/22/06), 922 So. 2d 517 ; State v. Young , supra ; State v. Dotie , 43,819 (La. App. 2 Cir. 1/14/09), 1 So. 3d 833, writ denied , 09-0310 (La. 11/6/09), 21 So. 3d 297.

The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. State v. Young , supra ; State v. Demery , 49,732 (La. App. 2 Cir. 5/20/15), 165 So. 3d 1175, writ denied , 15-1072 (La. 10/17/16), 207 So. 3d 1067. A reviewing court may not impinge on the fact finder's discretion unless it is necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied , 531 U.S. 840, 121 S. Ct. 104, 148 L.Ed. 2d 62 (2000) ; State v. Young , supra ; State v. Demery , supra .

Third degree rape is defined by La. R.S. 14:43(A)(4) :

Third degree rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed when the offender acts without the consent of the victim.

Attempt is defined by La. R.S. 14:27(A) :

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

"Specific intent" is therefore a required element for a conviction of attempt to commit the offense intended, in this case, third degree rape. Specific intent is defined by La. R.S. 14:10(1), which states:

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.

Under some circumstances, intoxication may provide a defense to the prosecution of a crime when the intoxication precludes the presence of specific intent to commit the criminal offense. According to La. R.S. 14:15(2), "the fact of an intoxicated or drugged condition of the offender at the time of the commission of the crime is immaterial" "except where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of a specific criminal intent or of special knowledge required in a particular crime."

The state maintains that the evidence proved beyond a reasonable doubt that Kirby had specific intent to commit third degree rape: Kirby told K.F. he was going to f--- her at least twice; he acted in a sexually provocative manner trying to expose himself, and he moved toward her despite K.F.’s protests which...