State v. Magee
| Decision Date | 06 June 2014 |
| Docket Number | 2013 KA 1726 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STATE OF LOUISIANA v. DONALD RAY MAGEE, JR. |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 11-CR5-114111, DIV. B, PARISH OF WASHINGTON
STATE OF LOUISIANA
Walter P. Reed
District Attorney
Covington, Louisiana
Counsel for Plaintiff-Appellee
State of Louisiana
Kathryn Landry
Special Appeal Counsel
Baton Rouge, Louisiana
Dennis W. Moore
New Orleans, Louisiana
Counsel for Defendant-Appellant
Donald Ray Magee, Jr.
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: CONVICTION AND SENTENCE AFFIRMED.
Defendant, Donald Ray Magee, Jr., was charged by bill of information with sexual battery, a violation of La. R.S. 14:43.1, for which he pled not guilty. Following a jury trial, defendant was found guilty as charged. The trial court denied defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced defendant to thirty-five years imprisonment at hard labor and ordered that twenty-five years of the sentence be served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals, assigning as error the sufficiency of the evidence; the trial court's denial of his motion for mistrial; and the constitutionality of the sentence. For the following reasons, we affirm the conviction and sentence.
In January of 2011, the victim, C.W. and her twin sister (whose initials are also C.W.), were left in their home alone with defendant.1 The victim and the rest of the family knew defendant because he fathered a child with a member of the family. According to the victim, before her mother left, she instructed defendant (who the victim knew by name and as "Pumpkin") to discipline the victim for earlier bad behavior. Defendant instructed the victim to wait in the bedroom while he entered the restroom. When he came back into the bedroom he removed the victim's clothing and placed his "private," also described by the victim as his penis, between the cheeks of her buttocks, but not "in the hole." The victim also indicated that defendant kissed her on the lips and touched her all over her body, including her vagina, with his hands. Defendant threatened to shoot her if she told anyone and further told her that he knew where her grandmother lived. Accordingto the victim, defendant discontinued when he heard her mother pulling back into the driveway.
In the first assignment of error, defendant contends that the evidence in this case is insufficient to convict him of sexual battery. Defendant notes that the victim told her therapist, Joan Scanlan, about an incident of sexual misconduct four months after it allegedly occurred. Defendant further notes that the victim did not tell anyone else, such as her grandmother or sister, about the allegations prior to the disclosure to Scanlan. Defendant also notes that the initial disclosure was prompted by Scanlan during routine questioning for patients diagnosed with post traumatic stress disorder (PTSD). Defendant contends that there were inconsistencies in Scanlan's report and argues that her trial testimony was unreliable and untruthful in some respects. Defendant contends that Detective David Miller of the Bogalusa Police Department did not independently corroborate statements made by the victim during the forensic interview. Defendant notes that Detective Miller failed to take a statement from the victim's mother and twin sister. Defendant also notes that Dakota Chavers, an adult friend of the family, denied leaving the residence with the victim's mother on the day in question though the victim claimed otherwise. Defendant further notes that the victim failed to give a time period for the incident, failed to state how long she was in the bedroom before defendant entered the room, did not indicate how long the conduct lasted, and gave no indication as to how she or defendant knew about her mother's return just before the conduct as alleged was discontinued. Defendant argues that there were conflicts among the victim's various statements and that it is unclear as to whether she was truthful before and during the trial.
The standard of review for the sufficiency of evidence to uphold a conviction is whether or not, viewing the evidence in the light most favorable tothe prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime and the defendant's identity beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C.Cr.P. art. 821; State v. Lofton, 96-14295 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. The Jackson standard of review incorporated in Article 821 is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. State v. Davis, 2000-2685 (La. App. 1st Cir. 11/9/01), 818 So.2d 76, 79. This standard of review, in particular the requirement that the evidence be viewed in the light most favorable to the prosecution, obliges the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. See State v. Mussall, 523 So.2d 1305, 1308-11 (La. 1988). Thus, the reviewing court is not permitted to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. See State v. Burge, 515 So.2d 494, 505 (La. App. 1st Cir. 1987), writ denied, 532 So.2d 112 (La. 1988).
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. Thomas, 589 So.2d 555, 570 (La. App. 1st Cir. 1991). Because a determination of the weight of the evidence is a question of fact, this court has no appellate jurisdiction to review it in appeals of criminal cases. State v. Gordon, 2001-0236 (La. App. 1st Cir. 2/15/02), 809 So.2d 549, 552 writ denied, 2004-2438 (La. 6/24/05), 904 So.2d 733. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a jury's determination of guilt. State v. Hendon, 1994-0516 (La. App. 1st Cir. 4/7/95), 654 So.2d 447, 450.
It is well settled that if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence or prove the commission of the offense by the defendant. State v. Lilly, 2012-0008 (La. App. 1st Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386: see also State v. Hampton, 1997-2096 (La. App. 1st Cir. 6/29/98), 716 So.2d 417, 418. As it pertains to this case, La. R.S. 14:43.1(A)(1) defines sexual battery as an intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, where the offender acts without the victim's consent. We note that in this case the victim was under the age of thirteen and the defendant was thirty-three years old. See La. R.S. 14:43.1(C)(2).
The victim's grandmother, E.D., was raising the twins at the time of the trial. They had been living with her since February 2011, when she reported to the Office of Child Services (OCS) inappropriate behavior by her daughter including the use of drugs and allowing other intoxicated adults in the home, although on cross-examination she admitted that she never actually saw her daughter use drugs. E.D. testified that she was notified about the instant allegations when the children's therapist, Joan Scanlan, contacted her after one of her routine sessions with the victim. E.D. stated that she was in shock because the victim did not tell her about the incident. She confronted the victim and the victim disclosed details consistent with the information provided by Scanlan. The police were contacted and they conducted a photograph line-up with the victim at E.D.'s home.
Detective Miller testified that he first became involved in the case after being alerted by OCS that the victim made a disclosure of sexual abuse during therapy. Detective Miller spoke with Scanlan to determine the nature of the disclosure before contacting the Children's Advocacy Center (CAC) to schedule aforensic interview of the victim. The CAC interview was conducted on May 27, 2011, and the detective observed it on closed-circuit television. Detective Miller testified that the disclosure made by the victim during the interview was consistent with the information relayed by Scanlan. Detective Miller confirmed that the victim identified the defendant in a photographic lineup.
During cross-examination, Detective Miller specified that prior to the CAC interview, Scanlan told him that the victim disclosed that defendant rubbed his penis between her butt cheeks, which was consistent with what she relayed to JoBeth Rickels during the CAC interview. He indicated that Scanlan did not state that penetration had been alleged. The detective noted, however, that the investigation was ongoing and that rape had not been ruled out. The police ultimately determined that the victim gave consistent disclosures that specifically denied penetration.
The victim testified that she was thirteen years old and confirmed her date of birth, December 2, 1998. She confirmed that she and her twin sister started living with her grandmother in February of 2011, when she was twelve years old. When asked why she moved in with her grandmother she indicated that her mother "got on drugs" and was violent. The victim identified defendant in open court, confirmed she also knew him by the nickname "Pumpkin," and stated that he would...
To continue reading
Request your trial