State v. Magee

• Decision Date: 24 June 1986
• Docket Number: No. KA,KA
• Citation: 491 So.2d 454
• Parties: STATE of Louisiana v. Timothy MAGEE. 85 1452.
• Court: Court of Appeal of Louisiana — District of US

Page 454

491 So.2d 454

STATE of Louisiana v. Timothy MAGEE.

No. KA 85 1452.

Court of Appeal of Louisiana First Circuit.

June 24, 1986.

Julian J. Rodrigue, Covington, for defendant-appellant Timothy Magee.

William J. Burris, Franklinton, for plaintiff-appellee State of La.

Before GROVER L. COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

GROVER L. COVINGTON, Chief Judge.

Defendant, Timothy Magee, was charged by bill of information with attempted forcible rape. He was tried by a jury, which convicted him as charged; and he was subsequently sentenced to serve three years at hard labor, with the first year to be without benefit of probation, parole or suspension of sentence. He has appealed, urging seven assignments of error, to wit:

1. The trial judge erred in denying defendant's motion for a new trial based on the sufficiency of the evidence.

2. The trial judge erred in denying defendant's motion for a new trial based on the state's failure to prove an essential element of the crime.

3. The trial judge erred in refusing to grant a new trial based on the state's failure to prove defendant's intent to commit the crime.

4. The trial judge erred in denying defendant's motion for a new trial based on the court's erroneous ruling on defendant's motion to quash the prosecution.

5. The trial judge erred in refusing to grant defendant's motion for a post-verdict judgment of acquittal.

6. The trial judge erred in denying defendant's motion in arrest of judgment.

7. The trial judge erred in refusing to grant a new trial on the grounds previously set forth and, further, because the verdict is contrary to the law, the evidence, and the jurisprudence of the state.

Defendant's brief concerning assignment of error number one does not contain a specific allegation of error, citation of authority, or principle of law. Therefore, we consider this assignment abandoned. Uniform Rules--Courts of Appeal, Rule 2-12.4.

FACTS

Defendant was charged with the attempted forcible rape of a co-worker. Trial testimony established that several employees of the Bogalusa, Louisiana, construction company, including defendant and the victim, enjoyed an afternoon card game while their employer was out of town. Most of the participants drank beer while the game was in progress. During the course of the game, the victim lost approximately $8.00 to defendant, and promised to return the money later that day.

The victim left work in the early afternoon, returning to her trailer to bathe and refresh herself. While she was seated in the bathtub, she heard the front door open and someone call her name. Thinking it was her brother-in-law, who lived next door, the victim responded that she was in the bathtub and invited him into the trailer to wait for her.

Defendant walked into the bathroom as she sat in the tub. She told him to "get the hell out," and he turned and walked out towards the front door. The victim got out of the tub and hurriedly began drying herself. Defendant returned, naked, to the bathroom and grabbed her arms. She immediately began struggling with him, attempting to escape. Defendant threatened her if she continued to resist. He attempted to kiss her; and she bit his tongue, causing substantial bleeding. Defendant attempted to penetrate her; he was not successful, however, and ejaculated on her legs and the floor.

Afterwards, defendant apologized for his actions. He also threatened future harm if she told anyone what had occurred. He stayed in the trailer until she had dressed herself, and they both left to drive back to town. The victim saw a friend along the way and stopped to talk to her for a few minutes. Because the victim was so upset over the incident, the friend accompanied her to the home of the victim's mother; and they contacted the Washington Parish Sheriff's office. A warrant was obtained for defendant's arrest and he was arrested the following day.

After his arrest, defendant gave a taped statement which was played to the jury. In the statement, he admitted he went into her trailer and walked into the bathroom. He further admitted that she asked him to leave but, instead, he took off his boots and pants and went back into the bathroom. He claimed he grabbed and hugged her and that she struggled for ten to fifteen minutes before he stopped "cause that wasn't what she wanted."

Defendant also testified at trial. He again admitted that he went to her trailer and returned to the bathroom after she first ordered him to leave. He claimed, however, that the struggle which ensued was occasioned because "she went berserk," and that he was only trying to keep her from hurting herself.

VALIDITY OF CRIME CHARGED

In assignments of error four and six, defendant submits the offense of which he was convicted cannot exist. In assignment of error number four, he argues the trial court erred in denying his motion for a new trial based on the court's ruling denying a motion to quash the prosecution because it is not punishable under a valid statute. In assignment of error number six, he argues the trial court erred in denying his motion in arrest of judgment on the same ground.

Defendant claims the offense of attempted forcible rape cannot exist if the victim does overcome the force by an act of resistance. He argues, therefore, that since it is impossible for the state to prove the element of "resistance preventing the rape," the crime of attempted forcible rape cannot be proven.

In interpreting the articles of the criminal code, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context and with reference to the purpose of the provision. La.R.S. 14:3. In order to attempt to commit a crime an offender must actively desire to cause the specific results required by a particular criminal statute and do or omit an act for the purpose of and tending toward the accomplishing of his object. La.R.S. 14:10, 27.

Accordingly, in order to commit attempted forcible rape, an offender must actively desire to commit rape by preventing the victim from resisting the act by force or threats where the victim may reasonably believe that such resistance would not prevent the rape. See State v. Parish, 405 So.2d 1080 (La.1981). See also State v. Turnbull, 377 So.2d 72 (La.1979). An offender who has the specific intent to commit a rape by threatening or forcing his victim into submission and who does an act in furtherance of his goal has committed the offense of attempted forcible rape even if his victim successfully repels the threats or force.

These assignments of error have no merit.

SUFFICIENCY OF THE EVIDENCE

In assignments of error two, three, five and seven, defendant submits the evidence is not sufficient to support the verdict.

In assignment of error number five, defendant contends the evidence is not sufficient because the victim's conduct was not indicative of fear or trauma. He implies, moreover, that the victim actually facilitated the incident by failing to lock the door to the bathroom or flee from the trailer. He further argues the conduct of the victim after the incident, that is, by stopping to talk to a friend as she drove to her mother's home, did not indicate...