State v. Powell

• Decision Date: 12 October 1983
• Docket Number: No. CR83-339,CR83-339
• Citation: State v. Powell, 438 So.2d 1306 (La. App. 1983)
• Parties: STATE of Louisiana, Plaintiff-Appellee, v. Clyde POWELL, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 1306

438 So.2d 1306

STATE of Louisiana, Plaintiff-Appellee, v.Clyde POWELL, Defendant-Appellant.

No. CR83-339.

Court of Appeal of Louisiana Third Circuit.

Oct. 12, 1983.

Writ Denied Dec. 9, 1983.

Elvin C. Fontenot, Jr., Tillman & Fontenot, Leesville, for defendant-appellant.

Mark Kramer, Asst. Dist. Atty., Leesville, for plaintiff-appellee.

Before STOKER, LABORDE and KNOLL, JJ.

LABORDE, Judge.

Defendant, Clyde Powell, was indicted by a grand jury for the crime of aggravated rape.LSA-R.S. 14:42.A twelve member jury in a 10-2 decision rendered a responsive verdict of guilty to forcible rape.LSA-R.S. 14:42.1.Defendant was sentenced to serve a two year mandatory jail term with a five year suspended sentence.Defendant contends that the trial court erred in denying his motion for a new trial since the evidence presented at trial was not sufficient to establish his guilt beyond a reasonable doubt.LSA-C.Cr.P. 851(1).Defendant appeals the trial court's denial of this motion.We reverse and render acquittal.

The alleged offense occurred on the evening of November 22, 1980 at approximately 8:15 p.m. when the victim, Cassandra Weeks Sylvester(Weeks), was standing on the corner of Havana Street in Leesville, waiting for a ride to Fort Polk.She related the following account of the incident.As she was waiting for her cousin to pick her up, the defendant, Clyde Powell, drove past her in an early 1970's model car.The defendant noticed the victim, stopped his car and parked not far from where she was standing.Shortly thereafter the victim, Weeks, approached defendant's car inquiring about his reasons for stopping.At trial she admitted having met the defendant earlier that evening and testified that she voluntarily went over and entered his car to talk for a while.From this point the facts are highly disputed.

Weeks testified that she entered defendant's car after he agreed to bring her to her cousin's residence located nearby.The defendant then allegedly brought Weeks to a secluded area and threatened to kill her when she refused to have sexual intercourse with him.Weeks stated that defendant slapped her in the face three or four times while threatening to kill her.He allegedly threatened to use a weapon which, he had indicated, was under the seat of the car.Weeks admitted that she never saw the weapon or an object of any type which defendant threatened to kill her with.Following these incidents the victim testified that they each removed their own pants and defendant had intercourse with her on the front seat of the car.Thereafter, defendant brought Weeks to where she initially approached him that evening and the victim sought help from nearby friends who in turn contacted the police.

Defendant admits taking the victim in his car for a ride around the block to a nearby bar, but denied ever having had intercourse with her.The record is void of any substantial evidence, other than the victim's testimony, tending to prove: (1)the act of sexual intercourse, and (2) the statutory acts of force or threats which prevented the victim from resisting.

The issue arising out of defendant's assignment of error is whether the evidence presented at trial, taken in a light most favorable to the prosecution, proves beyond a reasonable doubt all of the essential elements of the crime for which the defendant was convicted.

Pursuant to C.Cr.P. art. 851(1)the defendant moved for a new trial on the ground that the verdict was contrary to the law and evidence.In criminal cases, the jurisdiction of the Courts of Appeal is limited to questions of law only.La. Const. art. V, sec. 10(B)(1974).Generally, we are precluded from reviewing the record on questions of fact and will not disturb the trial court ruling on a motion for new trial in the absence of an abuse of discretion.State v. Caminita, 411 So.2d 13(La.1982)cert. denied, 459 U.S. 976, 103 S.Ct. 314, 74 L.Ed.2d 291(1982);State v. Turner, 365 So.2d 1352(La.1978).However, in State v. Mathews, 375 So.2d 1165(La.1979), the Louisiana Supreme Court determined that the United States Supreme Courtcase of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.This standard of review is now relied upon by the courts in an appellate review to determine whether the trial court abused it's discretion in denying a motion for new trial when defendant contends on appeal that the verdict was contrary to the law and evidence.State v. West, 419 So.2d 868(La.1982).We note however, that the most appropriate manner to raise the issue of insufficiency of the evidence is by motion for post verdict judgment of acquittal.C.Cr.P. art. 821.This motion and statutory provision mandates application of the Jackson standard by the trial court and vests authority in the appellate courts to render modified verdicts or acquittals on review of the evidence.Review of the evidence by an appellate court is required by the Due Process Clause of the Fourteenth Amendment of the United States Constitution when it is alleged that the evidence was insufficient to support the conviction.State v. Graham, 422 So.2d 123(La.1982).Armed with these constitutional standards we proceed to review the evidence in a light most favorable to the State to determine whether a rational fact finder could find that the essential elements of the crime have been proven beyond a reasonable doubt.

In order for the defendant's guilty verdict of forcible rape to withstand the constitutional challenge of sufficiency of the evidence, the evidence must disclose under the Jackson standard that:

(1)defendant committed an act of anal or vaginal sexual intercourse with the alleged victim without her consent;

(2) the alleged victim was not the spouse of the defendant; and

(3) the alleged victim was prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that resistance would not prevent the rape.

Clearly the record shows that Weeks was not the spouse of the defendant, nor that she consented to having sex with him.

The only evidence concerning the act of sexual intercourse is the testimony of the victim.There was no other factual evidence to corroborate her testimony.Nevertheless, we find that any rational trier of fact could have reasonably concluded that the evidence taken in the light most favorable to the prosecution, showed beyond a reasonable doubt sufficient proof of the element.Under the Jackson test we feel that the jury (fact finder) could have reasonably accorded great weight to the victim's testimony to the extent that this element of the crime was proven beyond a reasonable doubt.

There was no showing, however, of resistance on the part of the victim and very little evidence that she was prevented from resisting by force or threats of physical violence under the circumstances.Construing the evidence in a light most favorable to the prosecution, we do not feel that any rational trier of fact could find beyond a reasonable doubt that there was force or threats of physical violence where the victim reasonably believed that resistance to the act would be to no avail.We specifically note the trial court's written reasons in his denial of the motion for new trial(Tr-53):

"Had I been one of the jurors, or had this been a bench trial, I may have concluded ... that the evidence was insufficient to prove, beyond a reasonable doubt, that the victim was prevented from resisting in the manner recited by the statute."

The trial judge went on to deny the motion for new trial on the basis that he would not supplant the findings of the jury with his own opinion.However, he concluded that the jury could have found that there was sufficient evidence to prove this element under the Jackson standard.We disagree.

Even if we were to give conclusive weight to the victim's testimony in the trial, the State has still failed to present evidence to prove an essential element of the crime.This is evidenced by the trial court's doubt in his reasons as stated above.Certainly, the victim was afraid, but she also testified that the defendant said he would not hurt her.It is important to note that all of the witnesses who saw the victim immediately after the alleged rape testified that they did not see any cuts, bruises or evidence of any physical attack.Her own testimony indicates that she did not make any efforts to resist.The victim asserted at trial that the defendant threatened to kill her, yet, he did nothing to warrant a reasonable person in these circumstances to believe that resistance would not prevent the rape.The victim testified that she took her own pants off while defendant disrobed.She admitted that she never saw the object under the seat which defendant allegedly threatened to kill her with.

After a thorough review of the record we find that the evidence is insufficient to convince a reasonable fact finder beyond a...