State v. Roberts

• Decision Date: 19 September 2007
• Docket Number: No. 42,417-KA.,42,417-KA.
• Citation: 966 So.2d 111
• Parties: STATE of Louisiana, Appellee v. Bryan Clayton ROBERTS, Appellant.
• Court: Court of Appeal of Louisiana — District of US

966 So.2d 111

STATE of Louisiana, Appellee v. Bryan Clayton ROBERTS, Appellant.

No. 42,417-KA.

Court of Appeal of Louisiana, Second Circuit.

September 19, 2007.

Louisiana Appellate Project, by Mark O. Foster, for Appellant.

Paul J. Carmouche, District Attorney, Geya Williams Prudhomme, John Ford McWilliams, Jr., Assistant District Attorneys, for Appellee.

Before PEATROSS, DREW & LOLLEY, JJ.

PEATROSS, J.

Defendant, Bryan Clayton Roberts, was convicted by a jury of molestation of a juvenile, in violation of La. R.S. 14:81.2. The trial court found Defendant to be a third-felony habitual offender and sentenced him to 20 years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now appeals. For the reasons stated herein, Defendant's conviction is affirmed and his sentence is amended and, as amended, is affirmed.

FACTS

Defendant was convicted of molesting J.O., the eight-year-old daughter of his girlfriend, L.O. On the night of January 20, 2005, L.O. was wondering why it was taking Defendant, her live-in boyfriend of three years, so long to come to bed, and she decided to get something to drink from the kitchen. As she walked through the living room on her way to the kitchen, L.O. saw Defendant sitting on the couch next to J.O., who was sleeping. L.O. saw Defendant moving his hand away from between J.O.'s legs. When he realized L.O. was there, Defendant jumped up suddenly and moved in front of the window. L.O. asked Defendant what he was doing; Defendant said that he was covering J.O. because she looked cold. L.O. saw that J.O. was uncovered from below the waist and told Defendant that he did not do a good job of covering J.O. Defendant then "got up" in L.O.'s face, acted very angry, and asked L.O. what she thought he was doing to his daughter.¹ The record indicates that Defendant had been physically abusive to L.O. in the past and, for this reason, L.O. was afraid and decided to act as if nothing was wrong. L.O. testified that she did not sleep any that night because Defendant's defensive behavior made her wonder if he had been sexually abusing her daughter.

The next morning as L.O. was getting J.O. ready for school, L.O. asked J.O. if anyone had been "messing with her in an inappropriate way or making her feel uncomfortable by touching her." J.O. told L.O. that she could not tell because he would hurt them if she told; L.O. told J.O. that she could fix it. After five minutes of crying, J.O. told L.O. that "daddy has been messing with my private area." J.O. told L.O. that Defendant had been touching her on her private parts; that sometimes it hurt when he did this; that he would put his fingers inside her and tell her that this is the way that daddies show their love for their children; that he made her put his private part in her mouth and ask her to lick it; that he kissed her private part with his lips and tongue; and that he told her that no one would believe her if she told anyone and that he would kill her mother if she told. L.O. told J.O. that she was going to go to the school that day, but that J.O. should tell someone at school what Defendant had done in case she did not make it there.

That same morning, L.O. told Defendant that she had a meeting at the school. Defendant told L.O. that he wanted to go with her, but L.O. told him she did not need him to go with her. Defendant became angry and pushed L.O. on the couch, but then agreed to let her go to the school without him. As L.O. left the house, Defendant threw the vacuum cleaner over the balcony towards her, followed her into the yard and yelled obscenities at her in front of the neighbors. Defendant followed L.O. as she walked to the school and threatened to blow up the school and hurt the children if she did not come home with him. He also threatened to beat up anyone who came between them and threatened that, if the police came to arrest him, he would make sure that they killed him. L.O. told him that he could come back to the school at noon to walk her home if he was worried about the safety of the neighborhood, and Defendant agreed to this. L.O. waited for Defendant to walk around the corner, then she went inside and told the school secretary and principal about what Defendant had been doing to J.O., about Defendant's physical abuse towards her and about the threats he made in regard to the school.

School officials contacted Shreveport Police, and Detective Paula Moreno responded to the call. L.O. told Det. Moreno what happened, and Det. Moreno took L.O., J.O. and J.O.'s twin brother to the YWCA shelter. Later, Det. Moreno transported them to the Gingerbread House for an interview. L.O. denied that she coached J.O. on what to say during the interview, and she testified that she had no further contact with Defendant after that day. J.O. testified at trial that she went to the Gingerbread House, and the video tape of her interview was played before the jury. The girl testified that she knew the difference between true and false and that she was telling the truth in the interview. On cross-examination, J.O. testified that someone else had touched her private parts, but that it happened after Defendant did it. J.O. also denied making up the allegations in order to get Defendant out of the house.

The video tape of the interview showed J.O. talking with the interviewer, Latonya Hocker of the Gingerbread House, who began by asking her some introductory questions. J.O. told the interviewer that she lived with her mom, dad and her twin brother, but that she did not live with her dad now because he messed with her and touched her private part. J.O. indicated on a drawing that the area between her legs was the area which she considered to be her private part. J.O. said that Defendant had touched her private part with his hands, on top of her clothes and on one occasion while she was playing in her mom and dad's room after her brother left the room. J.O. stated that Defendant had done this four or five times. J.O. said the first time it happened was while she was at her Uncle Tommy's house with Defendant and her brother; her mother and Uncle Tommy had gone to court because he was trying to get his children back. J.O. said that she was six years old when this happened and that Defendant touched her between her legs, inside her clothes. She remembered that it was daytime and cold outside during this particular incident. J.O. said it happened again in her bedroom at their old house and that Defendant touched her inside her clothes and between her legs. She stated that this happened more than once in her mom's and dad's room and that it happened one time in the kitchen, but that Defendant touched her outside her clothes then. She further stated that it happened in her bedroom. J.O. said that Defendant did not touch the inside of her body, and Defendant told her not to tell anyone or he would kill her. J.O. admitted that she told her mom and that her mom told her to tell the school.

In addition, J.O. related that one time Defendant got on top of her and "humped" her while her mom was watching a movie; J.O. said that she was wearing her clothes, but that his private part was touching her private part. J.O. demonstrated what Defendant did to her with two toy bears. She indicated on a diagram that Defendant's penis was his private part and said that, once, Defendant showed her his private part in the kitchen and said "the f-word." J.O. said that Defendant called his private part a "pecker" and that he had put his pecker on her private part when she was wearing clothes, but that he was not wearing clothes at the time. She explained that Defendant wanted her to touch his pecker, but that he did not make her touch it. J.O. said that Defendant bit her private part while she was asleep and her mom had noticed a bite mark on her private part when getting her ready for school. J.O. said that Defendant put his pecker on her buttocks, on the outside of their clothes, and that they both were wearing clothes at the time. J.O. also said that Defendant put his tongue in her mouth. At the end of the interview, the interviewer asked J.O. if her mother told her to say anything and J.O. said that her mother told her to tell the truth. The interviewer asked if Det. Moreno told her to say anything, and J.O. said that the lady with the badge did not tell her anything. The interviewer asked J.O. if she had made up any of what she said during the interview, and J.O. said that she did not make up anything.

Det. Moreno testified that she watched the interview on a closed-circuit television as it was being conducted and that the interviewer wore an "ear bug" so that she could talk to her directly, suggest questions or let her know if they could not understand what was being said. Det. Moreno testified as to what she saw during the interview and testified that J.O.'s demeanor seemed calm. She related that, when listening to such an interview, she listens to see if the child is able to give specific details and the way in which the child describes things in order to make sure that the child has not been led to say something or that the child is not repeating something she heard from adults. Det. Moreno further testified that J.O.'s words appeared to be her own and that she did not see any signs of J.O. being "coached" to make these allegations. According to Det. Moreno, J.O.'s statement in the interview was consistent with what L.O. told her before the interview. Det. Moreno testified that there was no physical evidence of molestation found, but that sometimes there is no physical evidence when the crime does not involve penetration or enough physical contact to cause damage. Det. Moreno also testified that sometimes children heal so fast that there is no physical evidence by the time the doctor conducts a physical examination.

Defendant testified that he considered J.O. to be his daughter during the three years he was in a relationship...