State v. Simmons
| Decision Date | 15 February 1993 |
| Docket Number | No. 92-KA-1066,92-KA-1066 |
| Citation | 621 So.2d 1135 |
| Parties | STATE of Louisiana, v. Kevin R. SIMMONS. |
| Court | Court of Appeal of Louisiana — District of US |
Reasons by Ward, J., for Grant of Rehearing Aug. 12, 1993.
Harry Connick, Dist. Atty., Roger Jordan, Robyn C. Gulledge, Asst. Dist. Attys., New Orleans, for the State.
Arthur J. Boudreaux, III, Baton Rouge, for Kevin R. Simmons.
Before KLEES, WARD and LANDRIEU, JJ.
The State filed a bill of information charging that Reverend Kevin Simmons forcibly raped a 14 year old girl, a member of his congregation, in August of 1988, when he was in New Orleans during a convention. Simmons was tried by a twelve-person jury which found him guilty as charged. After the jury verdict Simmons filed a motion asking the trial court to enter a post-verdict judgment of acquittal. The trial court granted partial relief, and pursuant to the authority of C.Cr.P. art. 821, the trial court vacated the jury verdict of guilty of forcible rape and entered a verdict of guilty of sexual battery, a lesser included responsive guilty verdict. The State appealed the trial court's judgment which vacated the jury verdict of guilty of forcible rape. 1
That part of La.C.Cr.P. art. 821 which the trial court relied upon provides:
B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty.
C. If the court finds that the evidence, viewed in a light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post-verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
The State contends that the trial court erred because the trial evidence, when viewed in a light most favorable to the State, adequately supports the verdict of forcible rape, or the lesser included verdict of attempted forcible rape. We disagree. The trial record does not support a conviction for either forcible rape or any other responsive guilty verdict except that of sexual battery.
The record shows that in August, 1988, Simmons, the pastor of the Indian Mound Baptist Church near Baton Rouge, drove to New Orleans with his young son and the victim, aged fourteen. Simmons had asked her to accompany him to New Orleans to look after his son.
Upon arriving in New Orleans, Simmons stopped at the home of some friends and dropped off his son. The victim and Simmons then went to a hotel across the street from the New Orleans Baptist Theological Seminary. Simmons told the victim that he had to go there to pay his bill because that was where he would stay when attending classes at the seminary. After exiting the lobby, he drove toward the rear of the hotel and asked the victim if she would like to see the room. At first she said no, but then acquiesced.
Once inside the room Simmons shut the door and the curtains. He began kissing the victim and then undressed her. He too disrobed and placed the victim on the bed where he unsuccessfully attempted to put his penis into her vagina. Simmons then put the victim on a small table where he once again unsuccessfully tried to put his penis into her vagina. Simmons went into the bathroom where he drew a bath, and both he and the victim got into the tub. Afterwards Simmons and the victim got dressed and Simmons drove to a gift shop where he told the victim to buy a toy for his son so as to explain their absence to his friends. The victim testified that while in the hotel room she asked Simmons if he were in love with her and that he stated he was in lust, not love, with her.
Until New Year's Eve of 1990, the victim had only told her best friend, but on that night she told her brother's best friend, and her mother overheard her. Her mother confronted her New Year's Day, 1991, and the victim told her what had happened. The next day the victim's father was told what had happened, and he informed church authorities who denied Simmons' privileges of preaching and teaching Sunday school.
The victim saw a rape counselor, who reported the incident to the police in New Orleans. When questioned by the police, Simmons admitted coming down to New Orleans with the victim, but denied he attempted sexual intercourse. Rather, he claimed he brought the victim to New Orleans at her request to be tested for pregnancy from sexual intercourse with someone else. The tests were to be conducted at the motel by a female from the seminary. Simmons' statement was admitted into evidence.
Simmons did not testify.
In its sole assignment of error, the State complains that the trial court erred in granting defendant's post-verdict judgment of acquittal and in modifying the jury's verdict of guilty of forcible rape to a verdict of guilty of sexual battery. The State argues that it proved beyond a reasonable doubt that Simmons used force on the victim considering the factual circumstances surrounding the offense.
The elements of the offense of forcible rape are: (1) anal or vaginal sexual intercourse regardless of the degree of penetration; (2) intercourse without the consent of the victim; (3) a victim that was prevented from resisting by force or the threat of physical violence; and (4) who reasonably believed that resistance would not prevent the rape. R.S. 14:41, 14:42.1; State v. Wright, 598 So.2d 561 (La.App. 4 Cir.1992); State v. Crockett, 583 So.2d 593 (La.App. 4 Cir.1991).
Simple rape is the act of anal or vaginal sexual intercourse with a female who is deemed legally incapable of resisting or intelligently consenting, whether she consents or not, or when the consent is fraudulently obtained. La.R.S. 14:43.
In granting the motion and modifying the verdict, the trial judge obviously concluded that after viewing the evidence in the light most favorable to the State, the evidence and the law pertinent thereto did not support the verdict returned or verdicts of guilty of attempted forcible rape, simple rape, or attempted simple rape. The trial court, in its Judgment On Motion For Post Verdict Acquittal And Motion For New Trial then concluded that all of the essential elements of...
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95-540 La.App. 5 Cir. 11/28/95, State v. Alberto
...of physical violence; and (4) who reasonably believed that resistance would not prevent the rape. La.R.S. 14:42.1; State v. Simmons, 621 So.2d 1135 (La.App. 4 Cir.1993). The victim testified that defendant had vaginal intercourse with her against her wishes and despite her resistance. She t......
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...fifteen years of age and is at least three years younger than the offender.As noted by the fourth circuit in State v. Simmons , 621 So.2d 1135, 1138 (La.App. 4 Cir. 1993), amended on rehearing , sexual battery "prohibits the touching of the anus or genitals of the victim where he or she has......
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97-1161 La.App. 4 Cir. 2/10/99, State v. Straughter
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