State v. Ordonez

• Decision Date: 15 March 2017
• Docket Number: NO. 16–KA–619,16–KA–619
• Citation: 215 So.3d 473
• Parties: STATE of Louisiana v. Freddy ORDONEZ
• Court: Court of Appeal of Louisiana — District of US

215 So.3d 473

STATE of Louisiana
v.
Freddy ORDONEZ

NO. 16–KA–619

Court of Appeal of Louisiana, Fifth Circuit.

March 15, 2017

215 So.3d 475

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Bridget A. Dinvaut, J. Philip Prescott, Jr.

COUNSEL FOR DEFENDANT/APPELLANT, FREDDY ORDONEZ, Bruce G. Whittaker

Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg

CHEHARDY, C.J.

Defendant, Freddy Ordonez, appeals his conviction and sentence for sexual battery. For the reasons that follow, we affirm defendant's conviction, amend his sentence, affirm the sentence as amended, and remand the matter.

PROCEDURAL HISTORY

On January 22, 2007, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant with one count of sexual battery of a juvenile, a violation of La. R.S. 14:43.1. The State, unable to locate the victim, dismissed the prosecution on February 9, 2009. The State reinstated the prosecution on July 23, 2013, which defendant challenged as a violation of his right to a speedy trial. The district court agreed and quashed the bill of information on January 21, 2014. On the State's appeal, however, this Court reversed and remanded the matter. See State v. Ordonez , 14-186 (La.App. 5 Cir. 9/24/14), 151 So.3d 94.

Following a two-day jury trial, a six-person jury returned a verdict of guilty as charged on January 22, 2015. Defendant filed a post-verdict judgment of acquittal that the court denied. On April 20, 2015, defendant was sentenced to four years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, with credit for time served. Defendant was further ordered to serve one year of probation following completion of his four-year sentence, with the condition of undergoing mental health counseling for sexual abuse. On June 30, 2016, defendant moved for an out-of-time appeal, which the district court granted on July 6, 2016.

FACTS

In May of 2006, M.K.,¹ the victim in this case, was eleven years old and resided in LaPlace, Louisiana. Like any eleven-year-old girl, M.K. attended school, played sports, listened to music, and hung out with her friends. She especially spent a lot of time with her "best friend," Stephanie Ordonez, the daughter of defendant. M.K. was at Stephanie's house every day after school, on the weekends, and spent the night there "all the time." It was "like [her] second home."

M.K. testified that on the afternoon of May 17, 2006, while Stephanie was at dance class with her mother, M.K. was studying in Stephanie's bedroom. Defendant was in the house along with Stephanie's aunt and Stephanie's three-year-old niece. As M.K. lay on the bed reviewing her note cards, defendant was coming in and out of the room, returning to a computer in the corner. At some point he stopped, stood near M.K., staring, and told her, "You have beautiful legs." He then sat down on the bed next to her and began touching her legs. Without her permission, he moved his hand underneath the skort² of her school uniform and touched her vagina with his fingers. M.K. "freaked out," ran downstairs, and locked herself in the room with the three-year-old. Shortly

215 So.3d 476

thereafter, she exited the room and asked for the phone. As defendant handed her the phone, he told her, "Don't tell anybody because I could get in trouble." M.K. assured him she wouldn't and called her mother, who told her that her father was coming to pick her up. Moments later, Stephanie returned home and M.K. told her what had happened. Stephanie, in turn, told her mother, who confronted defendant. Defendant dropped to his knees apologizing to M.K.

When M.K.'s father arrived to pick her up, she ran out the door, "bawling" and told her father what had happened. He called the police. A patrol officer responded and transported defendant to the detective bureau, where Lieutenant Freddie Young of the St. John the Baptist Parish Sheriff's Office interviewed him. Before speaking with defendant, Lt. Young spoke with M.K. in the presence of her father. According to Lt. Young, M.K. explained that Stephanie's mother and Stephanie were at Wal–Mart while she was alone in Stephanie's bedroom. M.K. recounted to the officer that defendant entered the room, did something on the computer, and then remarked that she had pretty legs, sat down next to her, put his hand under her school uniform, and touched her vagina. M.K. further explained to Lt. Young that she told Stephanie what had happened as soon as she returned home and that Stephanie told her mom, who confronted defendant. She stated that defendant got on his knees, apologized, and begged her not to tell anyone.

Lieutenant Young then interviewed defendant, who was advised of his Miranda³ rights and agreed to answer questions. According to Lt. Young, defendant explained that he was in Stephanie's bedroom trying to use the computer when he noticed that the room was warm and that M.K.'s forehead was red. He touched her forehead, touched her leg, turned on the fan, and left the room.

Stephanie, her mother, and her aunt all testified at trial that the air conditioning did not work properly and that the house, especially upstairs, was often uncomfortably warm. They all stated that it was hot in the house on the afternoon of May 17, 2006.

Stephanie testified that when she arrived back home with her mother from dance class and Wal–Mart that afternoon, she found M.K. playing with her niece and joined them. Initially, M.K. was not crying, but after about ten minutes, Stephanie noticed M.K. tearing up. M.K. told Stephanie that defendant had tried to touch her thighs, which caused Stephanie to cry and tell her mother.

Similarly, Norvia Ordonez, Stephanie's mother, testified that on the afternoon of May 17, 2006, she left home to pick up Stephanie from dance school and to stop at Wal–Mart. She returned approximately twenty or thirty minutes later to find M.K. playing with Ms. Ordonez's three-year-old granddaughter. Ms. Ordonez did not observe M.K. to be upset or crying. A short time later, however, both Stephanie and M.K. came to her crying. Stephanie relayed what M.K. had told her, prompting Ms. Ordonez to become "hysterical" and confront defendant.

On the other hand, Stephanie's aunt, Lydia Valasquez, testified that she did not see M.K. crying at any point that day. Ms. Valasquez recounted that she went into Stephanie's bedroom that afternoon, M.K. was on the bed, it was hot, and defendant was reaching up to the ceiling fan. M.K. then went downstairs to play with the

215 So.3d 477

three-year-old. M.K. seemed normal to Ms. Valasquez.

Defendant took the stand and testified in his defense. He explained that when he arrived home on the afternoon of May 17, 2006, his sister-in-law, his granddaughter, and M.K. were in the house. His wife had just left to pick up Stephanie. He checked his mail, and had received a bill that he intended to pay online. He wanted to print the receipt so he went upstairs to use the printer in Stephanie's bedroom. M.K. was on the bed. While trying to get the printer to work, defendant noticed that M.K. was "very, very red" and that the room was "very hot." Defendant touched M.K.'s...