State v. Parker

• Decision Date: 13 September 2007
• Docket Number: 311-KA.,No. 42,42
• Citation: 963 So.2d 497
• Parties: STATE of Louisiana, Appellee v. Bobby R. PARKER, Sr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

963 So.2d 497

STATE of Louisiana, Appellee v. Bobby R. PARKER, Sr., Appellant.

No. 42,311-KA.

Court of Appeal of Louisiana, Second Circuit.

August 15, 2007.

Rehearing Denied September 13, 2007.

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McGlynn, Glisson & Koch, by Karl J. Koch, Baton Rouge, for Appellant.

William R. Coenen, Jr., District Attorney, Penny Douciere, Assistant District Attorney for Appellee.

Before WILLIAMS, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

Defendant, Bobby R. Parker, Sr., was convicted of three counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. He was sentenced on each count to serve 7 years hard labor with 2 years suspended, to run consecutively with one another, for a total of 15 years. Defendant now appeals. For the reasons stated herein, we affirm Defendant's conviction and sentence.

FACTS

Defendant was charged by bill of information filed in December 2004, with three counts of indecent behavior with a juvenile, in violation of La. R.S. 14:81. The three offenses involved three female juveniles, hereinafter referred to as A.F.¹, 8 years old at the time of the offense, B.I., 7 years old at the time of the offense, and A.P., 12 years old at the time of the offense. All three offenses occurred at or around Defendant's home located near Woolen Lake. A.F. and B.I. were Defendant's step-granddaughters at the time the offenses occurred, and A.P. was Defendant's neighbor.

The State filed a notice of intent to use other crimes evidence of Defendant's improper behavior against his two step daughters-in-law, D.G. and C.W., and his daughter-in-law's sister, M.H. The trial court conducted a Prieur hearing to determine the admissibility of such evidence and ruled in favor of the State.

As stated, Defendant was convicted by a jury on all three charges. A pre-sentence investigation report was completed and he was sentenced on each count to serve 7 years hard labor with 2 years suspended, to run consecutively with one another, for a total of 15 years. Defendant filed a motion for reconsideration of sentence, which was denied without a hearing. This appeal ensued.

DISCUSSION

Assignment of Error Number Three (verbatim): The evidence presented at trial was insufficient to sustain a conviction; taking the evidence in the light most favorable to the state, no reasonable jury could have found the defendant's guilt beyond a reasonable doubt as to the charged offenses.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if the evidence is constitutionally insufficient. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2d Cir.1992). This standard was legislatively adopted in La. C. Cr. P. art. 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). 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. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993); State v. Lee, 32,272 (La.App. 2d Cir.8/18/99), 742 So.2d 651, writ denied, 99-2730 (La.3/17/00), 756 So.2d 326.

This court's authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

La. R.S. 14:81(A) provides that indecent behavior with juveniles is the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference of greater than 2 years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child's age shall not be a defense.

Specific intent to commit the offense of indecent behavior with a juvenile need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. State v. Blanchard, 00-1147 (La.4/20/01), 786 So.2d 701.

In the case sub judice, Defendant argues that the testimony of the State's three witnesses was so internally inconsistent, and was otherwise shown to be unreliable through cross-examination, as to render belief in that testimony unreasonable. He urges that no reasonable jury would have convicted him on this testimony.

The State argues that it presented a solid case against Defendant based on testimony of the three victims and family members and that law enforcement was able to corroborate many aspects of the victims testimony. The State further argues that the testimony of the victims was consistent with one another and was accepted as credible by the jury. We agree.

B.I., the first victim, testified about an incident that had occurred at Defendant's house on Woolen Lake during its construction in 1999. She was only 7 years old at the time. She was spending the night at Defendant's house and was sleeping on the floor in sleeping bags with her cousin A.F. At this time, the interior walls were not complete with only the studs and framing in place. She testified that, at some point during the night, A.F. moved to where Defendant and J.P., his wife at the time, were sleeping. Later in the night, B.I. moved and laid down between Defendant and A.F. because she was scared. She further testified that Defendant lifted up her nightgown and started rubbing on her stomach, leg and in her vaginal area. She stated that she was scared at first and then pushed him away. She testified that a little while later, he pulled her night gown back up and continued the same behavior. She stated that she moved away from Defendant after she got tired of it and moved to the other side of A.F.

B.I. testified that she did not tell any adults about what happened, but she did tell A.F. the following day when they both went swimming. B.I. stated that, when she asked A.F. if Defendant had done anything to her, A.F. stated that Defendant had "pulled down her underwear and rubbed on her."

B.I. also recounted a second incident that occurred a few weeks to a month after the first incident in a now completed guest bedroom at Defendant's house. She testified that, Defendant came in naked while she was sleeping in a guest bedroom with A.F. and another child. He lifted up her night gown. She stated that she kicked him away, but he held her arms and legs down while he pulled down her underwear and started rubbing between her legs and inserted his finger inside of her. B.I. testified that A.F. woke up and tried to push Defendant off of her, but Defendant pushed A.F. back, causing A.F. to fall off the bed. Shortly thereafter, B.I. testified that Defendant left the room after giving her a warning not to speak. B.I. stated that she told her adult foster sister, J.B., about the incident almost a year later when she turned 8 years old.

J.B. corroborated B.I.'s testimony. She testified that, in July 2000, Defendant's wife came by offering to take B.I., A.F., and another child to her house for the weekend. She testified that, when she told B.I. about it, B.I. stated that she did not want to go, became very upset and burst into tears. She stated that B.I. told her that "Pappao Bobby did bad things to me." J.B. testified that she had never met Defendant or knew anything about him.

A.F., the second victim and Defendant's wife's granddaughter, testified about a visit to her grandmother's in August or September 1999 when she was 8 years old. She was there with her grandmother, Defendant, B.I. and her little brother. She testified that, at some point during the night while she was sleeping, Defendant woke her up and asked if she and her brother wanted to sleep near him. She testified that she agreed and moved to a spot on the floor next to Defendant. She said that Defendant then lifted up her nightgown, pulled down her underwear and started rubbing her bottom with his hand. She further testified that she got up and moved away from Defendant and then B.I. took her spot next to Defendant.

A.F. testified that she did not report this incident to an adult, but did discuss the incident with B.I. the following day. She also testified that she recalled the second incident that occurred in 2000. A.F. confirmed that she spent the night at Defendant's house and slept in an extra bedroom with B.I. and another child. She stated that she woke up and saw Defendant on top of B.I. She testified that, when she tried to push him off of B.I., Defendant pushed her...