State v. V.L.G.

Decision Date07 December 2011
Docket Number11-634
PartiesSTATE OF LOUISIANA v. V. L. G.
CourtCourt of Appeal of Louisiana — District of US

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT

PARISH OF CALCASIEU, NO. 28438-09

HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

BILLY HOWARD EZELL
JUDGE

Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING WITH INSTRUCTIONS.

John Foster DeRosier

Fourteenth Judicial District Court District Attorney

Carla Sue Sigler

Assistant District Attorney

Counsel for Plaintiff/Appellee:

State of Louisiana

Catherine Lynn Bartholomew

Counsel for Defendant/Appellant:

V. L. G.

Karen C. McLellan

The Gray Law Firm

Counsel for Plaintiff/Appellee:

State of Louisiana

Ezell, Judge.

The Defendant, V.L.G., was charged in an indictment filed on August 20, 2009, with two counts of aggravated rape, in violation of La.R.S. 14:42, and one count of aggravated incest, in violation of La.R.S. 14:78.1. The Defendant entered a plea of not guilty on August 31, 2009.

Trial by jury commenced on January 12, 2010, and the Defendant was found guilty as charged on January 16, 2010. The Defendant filed a motion for post-verdict judgment of acquittal and motion for new trial on February 3, 2010. On February 5, 2010, the trial court denied the motion for post-verdict judgment of acquittal and granted the motion for new trial to serve the ends of justice.

The State sought supervisory review of the trial court's grant of the motion for new trial. In State v. [V.L.G.], an unpublished writ ruling bearing docket number 10-299 (La.App. 3 Cir. 4/27/10), this court denied the State's writ application, stating the following:

WRIT DENIED: The State has failed to establish that the trial court committed an error of law when it granted Defendant's motion for a new trial based on La.Code Crim.P. art. 851(5). See also La.Code Crim.P. art 858. Accordingly, the trial judge did not misuse his authority by granting the motion for a new trial. State v. Miller, 05-1111 (La. 3/10/06), 923 So.2d 625. Moreover, the grant of a motion for new trial to serve the ends of justice is not subject to review upon appeal. State v. Bell, 04-1183 (La.App. 3 Cir. 3/2/05), 896 So.2d 1236, writ denied, 05-828 (La. 11/28/05), 916 So.2d 143.

In State v. [V.G.], 10-1231 (La. 10/8/10), 45 So.3d 612, the supreme court found the grant or denial of a new trial to serve the ends of justice presented a question of law subject to appellate review for an abuse of discretion. The supreme court then reversed the trial court's ruling granting a new trial. Id.

On October 29, 2010, the Defendant filed a "MOTION TO RECONSIDER THE DENIAL OF NEW TRIAL PURSUANT TO LA C.Cr.P. Art. 851 (1), ANDMOTION FOR NEW TRIAL PURSUANT TO LA C.Cr.P. Art. 851 (3)." The motion was set for hearing on January 5, 2011. The State filed a supervisory writ with this court contending the trial court erred in setting a hearing on the motion. This court, in in State v. [V.L.G.], an unpublished writ ruling bearing docket number 10-1425 (La.App. 3 Cir. 12/17/10), reversed the trial court's ruling granting a hearing on the Defendant's untimely motion for new trial and remanded the matter for sentencing. The supreme court denied writs in State v. [V.L.G.] 11-34 (La. 1/6/11), 53 So.3d 465.

On January 7, 2011, the Defendant was sentenced to life imprisonment on each count of aggravated rape. He was then sentenced to ten years at hard labor for aggravated incest. All sentences were ordered to be served concurrently. A motion to reconsider sentence was filed on February 3, 2011, and was subsequently denied.

The Defendant also filed a motion for appeal on February 3, 2011. The motion was subsequently granted. The Defendant is now before this court asserting eight assignments of error. He contends the evidence was insufficient to convict him of aggravated rape; the State's failure to timely disclose impeachment evidence caused irreparable harm; defense counsel was ineffective for failing to request a mistrial following the delayed presentation of Brady material; the testimony of Dr. Earl Soileau exceeded the bounds of admissible Child Sexual Abuse Accommodation Syndrome; redacted phone recordings were not admissible; this court erred in reversing the trial court's granting of a hearing on his second request for a new trial; the trial court erred in denying the motion for arrest of judgment based on grounds that a non-unanimous jury verdict is unconstitutional; and his life sentences are excessive.

FACTS

D.C.'s date of birth is September 25, 1994. D.C. testified that her mother was once married to the Defendant. She further testified that when she was eight years old, the Defendant exposed his penis to her and told her to pretend it was a snow cone or ice cream cone. D.C. then performed oral sex on the Defendant. D.C. testified that the Defendant told her not to tell anyone about the incident. D.C. further testified that after that incident, "it pretty much happened like every day."

When D.C. was ten or eleven years old, the Defendant began having vaginal sex with her. D.C. was questioned about the events as follows:

Q Do you remember him telling you anything during this?
A No.
Q Did he ever threaten you?
A Yes.
Q What did he threaten you with, [D.C.]?
A He told me if I ever told anybody that he would hurt me, or he would kill me.
Q Do you feel like he could really do that?
A Yeah.

D.C. testified that the Defendant had vaginal sex with her every day or every other day.

The Defendant and D.C.'s mother were divorced in October 2007. In 2007, D.C. went to live with the Defendant. While she lived there, "[t]he same thing" happened.

D.C. testified that the abuse occurred over spring break in March 2009. At that time, she performed oral sex on the Defendant.

D.C. later testified that the Defendant said if she told anyone he would hurt her. She further testified as follows:

Q Would he make any other kind of comments?
A He would just be like don't tell anybody.
Q Would he threaten you with anything if you told somebody?
A Uh-huh.
Q You said - what exactly did he threaten you with?
A A gun.
Q Do you remember where that happened?
A Where?
Q Yes.
A It was on Duchess Street.
Q You said that you saw a gun?
A Uh-huh.

D.C. testified that she was not whipped or beaten when the Defendant found out she told her mother and grandmother that something was happening to her.

D.C. further testified as follows:

I think after a time that it happened, I was crying and I think I said I was going to tell mom, and I guess he got mad and he came into the living room or the kitchen, get [sic] the gun, and he was like, if you tell her, I'm going to use the gun on you, or something like that.

D.C. then testified that she thought that was what had occurred. She then stated, "I'm not sure what actually happened." She indicated this occurred after she performed oral sex on the Defendant.

ASSIGNMENT OF ERROR NUMBER ONE

The Defendant contends the evidence was insufficient to convict him of two counts of aggravated rape.

Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
(5) When two or more offenders participated in the act.
(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

La.R.S. 14:42(A).

The indictment set forth the charges of aggravated rape as follows: AGGRAVATED RAPE (UNDER 13 YEARS OF AGE)-2 COUNTS It further described the charges as follows:

COUNT 1: AGGRAVATED RAPE (UNDER 13 YEARS OF AGE) [V.L.G.] DID ENGAGE IN ORAL SEXUAL INTERCOURSE WITH TO WIT: D.C. DOB: 9-25-1994, A JUVENILE, WITHOUT THE VICTIM'S LAWFUL CONSENT UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS PREVENTED FROM RESISTING THE ACTS BY THREATS OF GREAT AND IMMEDIATE BODILY HARM, ACCOMPANIED APPARENT POWER OF EXECUTION OCCURRING IN CALCASIEU PARISH.
COUNT 2: AGRAVATED RAPE (UNDER 13 YEARS OF AGE) [V.L.G.] DID ENGAGE IN VAGINAL SEXUAL INTERCOURSE
WITH TO WIT: D.C. DOB: 9-25-1994, A JUVENILE, WITHOUT THE VICTIM'S LAWFUL CONSENT UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS PREVENTED FROM RESISTING THE ACTS BY THREATS OF GREAT AND IMMEDIATE BODILY HARM, ACCOMPANIED APPARENT POWER OF EXECUTION OCCURRING IN CALCASIEU PARISH.

The Defendant contends the indictment specifically stated that lack of consent was due to the Defendant having prevented D.C. from resisting through threats of great and immediate bodily harm accompanied by apparent power of execution. Further, the jury instructions included three recitations relating to force or threats of force. The Defendant contends the element of force as charged in the indictment was not proven beyond a reasonable doubt.

The Defendant cites La.Code Crim.P. art. 480, which states:

If an offense may be committed by doing one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, two or more of such acts, means, intents, or results may be charged conjunctively in a single count of an indictment, or set forth conjunctively in a bill of particulars, and proof of any one of the acts, means, intents, or results so charged or set forth will support a conviction.

He contends there was no conjunctive charging in the indictment. The Defendant...

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