State v. Pontiff

• Decision Date: 06 May 2015
• Docket Number: No. 14–1049.,14–1049.
• Citation: 166 So.3d 1120
• Parties: STATE of Louisiana v. Jared Paul PONTIFF.
• Court: Court of Appeal of Louisiana — District of US

166 So.3d 1120

STATE of Louisiana

v.Jared Paul PONTIFF.

No. 14–1049.

Court of Appeal of Louisiana, Third Circuit.

May 6, 2015.

Annette Roach, Lake Charles, LA, for Defendant/Appellant: Jared Paul Pontiff.

Michael Cade Cassidy, District Attorney, Stacey C. Naquin, Assistant District Attorney, Jennings, LA, for Appellee: State of Louisiana.

Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.

Opinion

EZELL, Judge.

On November 18, 2013, the defendant, Jared Pontiff, was charged by bill of information with two counts of aggravated rape, violations of La.R.S. 14:42. On that same date, Defendant entered pleas of not guilty to the charges. Recognizing that aggravated rape must be charged by grand jury indictment, the state amended the bill of information on January 27, 2014, to charge Defendant with one count of oral sexual battery of D.B., a violation of La.R.S. 14:43.3, and with one count of sexual battery of K.B., a violation of La.R.S. 14:43.1.¹ Defendant's jury trial began on January 27, 2014, and ended on February 4, 2014, with the jury returning a verdict of not guilty of oral sexual battery of D.B. and guilty of sexual battery of K.B.

On February 10, 2014, Defendant filed a motion for new trial, and on February 19, 2014, Defendant filed a motion for judgment of acquittal. The trial court denied both motions and proceeded to sentencing after asking Defendant if he was ready for sentencing. After Defendant pronounced his readiness for sentencing, the trial court sentenced Defendant on his sexual battery conviction to thirty years at hard labor, with twenty-five years to be served without the benefit of probation, parole, or suspension of sentence. Thereafter, on April 21, 2014, Defendant filed a Motion for Appeal and Designation of Record, which was granted on that same date. On April 21, 2014, Defendant also filed a Motion to Reconsider Sentence, which was denied without a hearing.

Defendant is now before the court, alleging six assignments of error.

FACTS

Defendant was accused of committing oral sexual battery and sexual battery against the two sons of his girlfriend between the dates of June 1, 2012, and August 10, 2012. One of the victims, D.B., was age thirteen at the time the offense was allegedly committed, and the other victim, K.B., was age eight when the offense was allegedly committed.² Defendant was found not guilty of the oral sexual battery of D.B. and guilty of the sexual battery of K.B.

ASSIGNMENT OF ERROR NUMBER FIVE

In this assignment of error, Defendant alleges that the evidence was insufficient to convict him of sexual battery of K.B. We will address this assignment of error first since a finding of merit to the error alleged in the assignment would preclude the necessity of considering the remaining assignments of error. See State v. Hearold, 603 So.2d 731 (La.1992).

As noted by appellate counsel, Defendant was acquitted of oral sexual battery of D.B.; thus, this assignment of error is limited to the sexual battery of K.B. However, we will discuss the evidence pertaining to the offense against D.B. since it was evidence considered by the jury and is relevant to the offense against K.B. Appellate counsel argues that the evidence was insufficient because there were inconsistencies throughout K.B.'s pre-trial statements and trial testimony. The State, on the other hand, argues that the inconsistencies are understandable considering K.B.'s young age and the trauma of the sexual battery. Because the jury found K.B.'s testimony credible, the State asserts that the evidence was sufficient to convict Defendant of the sexual battery of K.B.

Standard of Review

This court has stated the following regarding the standard for reviewing a claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05–11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Captville, 448 So.2d 676, 678 (La.1984) ). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05–477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96–1048 (La.10/4/96), 680 So.2d 1165 ; State v. Lubrano, 563 So.2d 847, 850 (La.1990) ). The appellate court's function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94–3116 (La.10/16/95), 661 So.2d 442.

The factfinder's role is to weigh the credibility of witnesses. State v. Ryan, 07–504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97–64, pp. 4–5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726–27 ). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder's role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120], [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09–2357, pp. 10–11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).

State v. Francis, 12–1221, pp. 6–7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ denied, 13–1253 (La.11/8/13), 125 So.3d 449.

Evidence Introduced at Trial

Jasper Doucet testified that he was a police officer with the Jennings Police Department in August of 2012. On August 10, 2012, Officer Doucet was dispatched to 126 Allen Street in response to a call by a juvenile. The juvenile, D.B., told Officer Doucet that Defendant touched his penis and had also touched D.B.'s younger brother, K.B. When Officer Doucet talked with K.B., he noticed that K.B. kept looking over his shoulder and seemed anxious. Officer Doucet told K.B. that D.B. said Defendant touched the two of them. When Officer Doucet asked K.B. if he had been touched by Defendant, K.B. told Officer Doucet that Defendant made K.B. touch Defendant's penis.

Albert Daniel Semmes, the deputy chief of the Jennings Police Department, testified that on August 10, 2012, he was advised of a possible child molestation. Officer Semmes contacted State of Louisiana, Office of Child Services (OCS), and caseworker Shamira Lyons responded to assist him. Officer Semmes was advised that D.B., a thirteen year old, reported to 911 that he and his brother, K.B., had been the victims of molestation. The suspect, Officer Semmes testified, was the boyfriend of D.B.'s mother, H.S. Officer Semmes was told by another officer that Defendant engaged in masturbation with D.B. while in the bedroom with the lights turned off and that Defendant performed oral sex on D.B.

Officer Semmes talked to H.S., who confirmed that she walked in while Defendant and D.B. were in the bedroom with the lights turned off but claimed that the two were seated across the room from each other. When H.S. turned the lights on and asked Defendant what was going on, Defendant told her that D.B. asked him about masturbation and Defendant was explaining masturbation to D.B. H.S. also told Officer Semmes that D.B. was a problem child who lied and set fires. Although she had been informed by the boys about the sexual abuse allegations, H.S. did not believe them.

When Officer Semmes questioned Defendant, Defendant stated that D.B. was making the allegations up because he was mad at his mom and because D.B. had problems. Defendant admitted being in a room with D.B. with the lights turned off but stated that D.B. was asking him about masturbation. Officer Semmes further testified that Defendant admitted that H.S. asked him why D.B.'s pants were down, but Defendant had no explanation. Later, on cross-examination, Officer Semmes acknowledged that during Defendant's interview, Defendant stated that he did not know D.B.'s pants were down until he was confronted by H.S. outside. Defendant, however, had no explanation for the lights being off.

On cross-examination, defense counsel asked Officer Semmes about an interview of A.B., the sister of D.B. and K.B. According to Officer Semmes, A.B. said she did not think Defendant did anything wrong or inappropriate to her brothers. A.B. further stated that she believed D.B. called 911 because he was mad at his mother for not allowing him to use the weed eater.

The next witness to testify for the state was David Duplechain, the...