State v. Rickmon
| Docket Number | 2023-KA-0048 |
| Decision Date | 30 August 2023 |
| Parties | STATE OF LOUISIANA v. KEVIN RICKMON |
| Court | Court of Appeal of Louisiana — District of US |
APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 18-02076 DIVISION "C" Honorable Kim C. Jones, Judge Presiding
Jeff Landry
Attorney General
J Taylor Gray
Assistant Attorney General
Winston E. White
Assistant Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
COUNSEL FOR APPELLEE/STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Kevin Vincent Boshea
ATTORNEY AT LAW
COUNSEL FOR DEFENDANT/APPELLANT
Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Karen K. Herman
This is a criminal appeal. The defendant, Kevin Rickmon ("Defendant"), appeals his convictions and sentences for sexual battery and attempted third degree rape. For the reasons set forth below, we affirm Defendant's convictions and sentences.
On November 13, 2018, the St. Bernard Parish Grand Jury indicted Defendant on one count of sexual battery, a violation of La. R.S. 14:43.1, and one count of attempted third degree rape, a violation of La. R.S. 14:27 (43). Defendant appeared for his arraignment on December 19, 2018, and entered a plea of not guilty. A trial by jury commenced on May 11, 2021.
On May 14, 2021, the jury returned verdicts of guilty as charged on both counts. After both guilty verdicts were read, the judge directed the clerk to poll the jury in writing. Each juror was provided a polling slip which asked, "Is this your verdict?"[1] After the jurors completed the polling slips, the clerk collected the slips and then read aloud the name and response given by each individual juror. Each juror responded "yes" or "guilty." Upon completion of the polling process, the judge certified the verdicts as legal.
Defendant orally moved for a new trial on June 22, 2021, on the basis that the verdicts were contrary to the law and the evidence. The district court denied Defendant's motion for a new trial. On the same day, the district court designated both convictions as crimes of violence and sentenced Defendant to six years at hard labor for sexual battery, without benefit of probation, parole or suspension of sentence, and ten years at hard labor for attempted third degree rape, without benefit of probation, parole or suspension of sentence, and ordered the sentences to run concurrently. On June 24, 2021 Defendant filed a motion to reconsider sentence, which was denied by the district court on June 25, 2021. This appeal followed.
The victims in this case are two female siblings who lived with their mother and a younger brother who was blind.[2] Both victims testified against Defendant. The State's case was supported by various testimonies and evidence, including forensic reports of cellphone extractions from the victims.
The first incident involving the attempted rape occurred on July 23, 2016, when the older sibling victim ("Older Sibling") was 15 years old. She testified that Defendant sat on a couch, removed her clothes, and attempted intercourse, but failed due to a lack of an erection. The incident was interrupted by the arrival of another sibling. Shortly thereafter, the Older Sibling told her friend about the attempted rape, and the friend testified to this at trial. The Older Sibling also after the incident noted what happened on her cellphone.
The second incident involving the sexual battery occurred on June 11, 2018, when the younger sibling victim ("Younger Sibling") was 14 years old. She testified that Defendant touched her breast, slapped her on the buttocks and touched her vagina over her clothes. The brother testified and collaborated that he heard Defendant that night. After leaving the bedroom, Defendant bumped into the brother in the hallway. Upon making contact with the brother, Defendant briefly addressed the boy. The brother knew it was Defendant, because he recognized Defendant's voice. The brother asked Defendant what he was doing, but received no response. The brother heard Defendant exit the apartment shortly thereafter.
The following day, while the victims' mother was preparing dinner, she asked the Younger Sibling to go over to Defendant's apartment to borrow breadcrumbs. While she was inside the apartment, Defendant slapped her on the behind. She grabbed the container of breadcrumbs and rushed back to her apartment. Upon returning home, the Younger Sibling informed her mother and her older sister that she never wanted to go back to Defendant's apartment but offered no explanation as to why.
At dinner that night, the brother asked why Defendant had been at the apartment the previous night when everyone was asleep. Thereafter, the sisters went into one of the bedrooms, where the Younger Sibling told the Older Sibling what had happened to her earlier that day. The Older Sibling, in turn, told the Younger Sibling that "something similar" had happened to her with Defendant a couple of years earlier.
After the victims confided in each other, they told Defendant's wife, who did not take action. They later informed their mother, leading to the involvement of law enforcement.
At trial, Detective Lieutenant Robert Garofalo and Detective Sergeant Brad Alphonso also testified on behalf of the State. The State introduced various pieces of evidence, including forensic extraction reports for the victims' cell phones, which were introduced into evidence and admitted as State's exhibits A and B.[3]
The lead investigator, Sgt. Alphonso, collected evidence, interviewed witnesses, and obtained an arrest warrant. The victims were interviewed at the Child Advocacy Center, corroborating their accounts. Phone records and conversations were used as evidence.
As part of his investigation, Sgt. Alphonso recorded an interview with the friend that the Older Sibling called and told about the attempted rape shortly after it happened. He also recorded an interview with the victims' blind younger brother. The discs containing the audio interviews of the friend and the brother were admitted as State's exhibits 3 and 4, respectively.
The defense presented testimony that challenged the victims' accounts. Defendant's wife testified that she did not perceive the incidents as relayed to her by the victims as crimes and believed the victims were discussing unrelated issues. Defendant himself testified that he interacted with the victims without any inappropriate behavior.
The trial included a range of testimonies, evidence, and conflicting statements. The victims' allegations were supported by testimonies, their accounts to family and a friend, and cellphone records, while the defense aimed to cast doubt on their credibility and the seriousness of the events.
Defendant alleges the following errors:
A review of the record reveals a single possible error patent. At the beginning of the sentencing hearing, defense counsel orally moved for a new trial; the district court denied the motion and shortly thereafter sentenced Defendant. La. C.Cr.P. art. 873 requires a twenty-four hour delay between the denial of a motion for new trial and sentencing. However La. C.Cr.P. art. 852 requires a motion for new trial be in writing. Where a motion does not comply with La. C.Cr.P. art. 852, the trial court does not err in sentencing defendant immediately. State v. Davis, 00278, p. 19 (La.App. 5 Cir. 8/29/00), 768 So.2d 201, 214. Cf. State v. Lewis, 993150, p. 6 (La.App. 4 Cir. 2/14/01), 781 So.2d 650, 653 (). We find that the district trial court in this case was not required to wait because the motion for new trial was not in writing.
Defendant argues that the evidence produced against him at trial was insufficient to support his conviction for attempted third degree rape. More particularly, he contends that the State failed to prove his identity as the perpetrator beyond a reasonable doubt. In support of this argument, Defendant asserts that the victim of the attempted third degree rape did not positively identify him at trial as the perpetrator. We address this assignment of error first.[4]
When as in this case, the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary 03-3067, p. 18 (La. 4/24/06), 931 So.2d 297, 311; State v. Neal, 00-0674, p. 11 (La. 6/29/01), 796 So.2d 649, 658. However, positive identification by only one witness is sufficient to support a conviction. Id. The credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and credibility will not be reweighed on appeal. Neal, 00-0674, p. 11, 796 So.2d at 658; Weary, 03-3067, pp. 19-20, 931 So.2d at 311-12. A reviewing court may impinge on the fact-finder's discretion only to the extent necessary...
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