State v. Rogers, 87-KA-423

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: BOWES
• Citation: 519 So.2d 246
• Parties: STATE of Louisiana v. Kenneth ROGERS. 519 So.2d 246
• Docket Number: No. 87-KA-423,87-KA-423
• Decision Date: 11 January 1988

Page 246

519 So.2d 246 STATE of Louisiana
v.
Kenneth ROGERS. No. 87-KA-423. 519 So.2d 246 Court of Appeal of Louisiana,
Fifth Circuit. Jan. 11, 1988.

Page 247

Martha E. Sassone, Indigent Defender, Gretna, for Kenneth Rogers.

Dorothy Pendergast, Asst. Dist. Atty., Research & Appeals, Gretna (Louise Korns, of counsel), for State.

Before BOWES, GAUDIN and WICKER, JJ.

BOWES, Judge.

Defendant, Kenneth Rogers, was indicted by the grand jury of violation of LSA R.S. 14:42.1, forcible rape. On motion of defendant, a sanity hearing was held and it was determined that the defendant was legally sane and competent to stand trial. The defendant elected to be tried before a judge alone, was found guilty as charged, and sentenced to ten years at hard labor with credit given for time served. Defendant appeals his conviction and sentence.

The facts of the case are as follows. On the morning of March 17, 1984, after teaching a children's dance class, the victim returned to her apartment, where she stopped to drop off her purse. She immediately left the apartment to get her mail from the apartment complex mailboxes. On her way, she encountered the defendant, who told her he was a new resident there. He then asked if she would like to play tennis with him, but the victim declined the invitation. However, she did continue to speak with him. On the return from the mailboxes, the defendant asked her if she would like to see where he lived. She agreed to go with him, but stated she could only stay a minute.

The defendant's abode was an upstairs efficiency apartment. Upon arriving there, the defendant walked in first, followed by the victim, who proceeded directly to the balcony to experience the view of the swimming

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pool from an upper floor. When she turned back into the apartment, the defendant grabbed her by the breast. She tried to push him away, but was unsuccessful. When she asked "What is wrong? Are you crazy? I didn't come up here for this," the defendant got angry and pushed her toward the bed. He told her if she screamed he would kill her. He then pushed her onto the bed, sat on her legs, and told her to get undressed. She explained that she couldn't get undressed while he was sitting on her, and, when he released her, she ran for the door, but he caught her by the neck before she could escape and held her while he pulled at her clothes and his own. At that time, he put her on the bed and proceeded to rape her.

After completion of the act, he lay on top of her and begged her not to get him in trouble. When she was free, the victim got partially dressed and returned to her apartment, where she called the apartment complex manager and the police. She was taken to Lakeside Hospital where she was examined and seminal fluid was found.

Later that evening, the defendant was arrested when he returned to his apartment. He testified that although he did have sexual intercourse, it was the victim who initiated it and all acts were consensual.

On appeal, defendant presents four assignments of error:

1. The trial court erred in denying defendant's motion for a new trial.

2. The trial court erred in finding defendant guilty of forcible rape when the evidence was insufficient to support such a finding.

3. The trial court erred in sentencing the defendant to a term of ten (10) years at hard labor.

4. Also assigned as error are any and all errors patent on the face of the record.

Assignment of Error Nos. 1 and 2 ¹

Defendant urges that this court examine the record of the case to determine whether, as a matter of law, the evidence presented at trial was sufficient to prove all elements of the crime alleged.

Defendant was charged under LSA-R.S. 14:42.1 with the crime of forcible rape. This statute defines forcible rape as:

A. Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

Consequently, to prove the charge of forcible rape, the prosecution has the burden of proving that (1) anal or vaginal intercourse occurred, (2) without the lawful consent of the victim, (3) the victim's resistance is prevented by force or threats of physical violence, and (4) the victim reasonably believes that such resistance would not prevent the rape. State v. Richardson, 425 So.2d 1228 (La.1983).

In the instant case, there was no dispute that sexual intercourse occurred. Both the victim and the defendant testified to penetration and the examining physician at Lakeside Hospital testified that he found seminal fluid. Therefore, the issues to be determined are: (1) whether or not the intercourse took place without consent of the victim; (2) whether her resistance was prevented by force or threats; (3) and did she reasonably believe such resistance would not prevent the rape.

The victim testified that when she attempted to push the defendant away, he told her that if she screamed he would kill her. Further, she stated that she believed if she resisted, or tried to fight back, that he would have hurt her. Finally, when she did get free for a moment and ran to the door, he followed her, grabbed her by the neck and held her until the actual intercourse took place.

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Although the lack of voluntary consent on the part of the victim was contradicted by the defendant, the fact finder obviously found the victim's testimony more credible and rejected the defendant's testimony. Certainly, the victim's testimony seems logical and we do not...