State v. Wade

• Court: Louisiana Supreme Court
• Writing for the Court: Williams
• Citation: State v. Wade, 908 So.2d 1220 (La. 2005)
• Decision Date: 09 August 2005
• Docket Number: No. 39,797-KA.,39,797-KA.
• Parties: STATE of Louisiana, Appellee v. Freddie WADE, Appellant.

Page 1220

908 So.2d 1220

STATE of Louisiana, Appellee v. Freddie WADE, Appellant.

No. 39,797-KA.

Court of Appeal of Louisiana, Second Circuit.

August 9, 2005.

COPYRIGHT MATERIAL OMITTED

G. Paul Marx, Lafayette, for Appellant.

Freddie Wade, Pro Se.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, William J. Edwards, Assistant District Attorneys, for Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

WILLIAMS, J.

The defendant, Freddie Wade, was charged by grand jury indictment with aggravated oral sexual battery of M.W.,¹ a violation of LSA-R.S. 14:43.4;² armed robbery of M.W., a violation of LSA-R.S. 14:64; aggravated rape of B.C., a violation of LSA-R.S. 14:42;³ and indecent behavior with a juvenile, L.C., a violation of LSA-R.S. 14:81. After a jury trial, the defendant was found guilty of the responsive verdict of attempted aggravated oral sexual battery, and guilty as charged of armed robbery, aggravated rape and indecent behavior with a juvenile. The trial court denied the defendant's motions for post-verdict judgment of acquittal and new trial. Subsequently, the defendant was adjudicated a third felony habitual offender. The defendant's armed robbery sentence was enhanced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. He was sentenced to serve ten years at hard labor without the benefit of parole, probation or suspension of sentence for the attempted aggravated oral sexual battery conviction and life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction. The defendant was also sentenced to serve three and one-half years at hard labor for the indecent behavior with a juvenile conviction. The trial court ordered all four sentences to run concurrently. The defendant appeals. For the following reasons, the defendant's convictions and sentences are affirmed.

FACTS

On May 27, 1999, at approximately 2:14 a.m., the 62-year-old female victim, M.W., was asleep in her Shreveport home when she was awakened by a crashing noise. A black man entered her bedroom and demanded money. He was armed with a knife that had a six-inch long blade. M.W. told the man that her money was in her purse on the dresser beside her bed. He took $22 from her billfold and told her to lie down on the bed or he would cut her with the knife. The man ripped off M.W.'s pajamas and forced her to participate in oral sex with him. He also put his mouth on her breast. The man, who had entered the home by breaking a kitchen window, left through the carport door. M.W.'s television and videocassette recorder were also taken during the crimes. A rape kit was performed on M.W. at the hospital, and DNA from the breast swab was later linked to the defendant.

On the evening of May 12, 2002, 14-year-old B.C. and her younger siblings went to a Mother's Day party at their aunt's house after church. Their aunt brought them back to their home in Shreveport at approximately midnight, so that their mother could stay at the party a little longer. In the early morning hours of the next day, B.C. was sleeping in the bed she shared with her 8-year-old sister, L.C., when a man woke her up by grabbing her legs. She later recognized the intruder as a neighbor named "Fred," and she made an in-court identification of the defendant as the intruder.

During the struggle that ensued, the defendant kept telling B.C. to "shut up." He grabbed her by her bra and ripped it in half, leaving it hanging open. The defendant put B.C. on the bed where L.C. was sleeping. He pulled down his pants, pulled her to the edge of the bed, and began licking her vagina and breasts. The defendant then "forced himself" on B.C. by forcing his penis into her vagina. L.C. woke up and was calling B.C.'s name and crying. The defendant stopped and stood in front of B.C., who was sitting on the edge of the bed. The defendant rubbed L.C.'s face, and he told her to stop crying. L.C. testified that she woke up when someone grabbed her leg, and she heard "screaming and stuff." She saw a man close to B.C. and B.C.'s bra hanging open. B.C. and L.C. saw the defendant's face by the light from the bathroom. L.C. also made an in-court identification of the defendant as the neighbor she knew as "Fred," and as the intruder on the night of the crimes.

It was later determined that the defendant had entered the home through a broken bedroom window that was covered by a piece of cardboard. Fingerprints lifted from the piece of cardboard were matched to those of the defendant. A rape kit was performed on B.C. at the hospital, and DNA from the breast swab was later linked to the defendant. B.C.'s physical examination revealed abrasions to the genitalia.

The defendant was subsequently charged by grand jury indictment with four crimes: armed robbery and aggravated oral sexual battery of M.W. on May 27, 1999 (counts one and two); and aggravated rape of B.C. and indecent behavior with a juvenile, L.C., both on May 13, 2002 (counts three and four). The trial court denied the defendant's motion to quash/sever the charges. After a jury trial, the defendant was found guilty of the responsive verdict of attempted aggravated oral sexual battery, and guilty as charged of armed robbery, aggravated rape and indecent behavior with a juvenile.

The defendant's motions for post-verdict judgment of acquittal and new trial were denied by the trial court. The state filed a third felony habitual offender bill of information with regard to the armed robbery conviction, and the defendant was adjudicated a third felony habitual offender. On count one, the defendant was sentenced to serve ten years at hard labor without the benefit of parole, probation or suspension of sentence for the attempted aggravated oral sexual battery conviction. On count two, the defendant's armed robbery sentence was enhanced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. On count three, the defendant was sentenced to serve life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for the aggravated rape conviction. On count four, the defendant was sentenced to serve three and one-half years at hard labor for the indecent behavior with a juvenile conviction. The trial court ordered the four sentences to run concurrently. The defendant appeals.

DISCUSSION

Sufficiency of the Evidence:

By this assignment of error, the defendant contends the evidence presented at trial was insufficient to support the jury's verdict of indecent behavior with a juvenile, and thus, the trial court erred by not granting his motions for post-verdict judgment of acquittal and new trial. The defendant argues that the testimony of B.C. and L.C. does not support a finding of guilt with regard to the charge of indecent behavior with a juvenile. He argues that the evidence conclusively established that L.C. was sleeping in the room and was unaware of anything, and that the perpetrator stopped raping B.C. and left the room when L.C. woke up. The defendant notes that L.C. testified that she saw a man close to her sister, and L.C. did not testify with regard to anything sexual or any perception consistent with the definition of a "lewd or lascivious act."

The state contends the evidence, viewed in the light most favorable to the prosecution, was sufficient to find the defendant guilty as charged of indecent behavior with a juvenile. It argues that given the factual circumstances of the instant case, the jury could conclude that L.C. awoke while the defendant was in a position to be observed and/or perceived to be engaged in indecent behavior.

The question of sufficiency of the evidence is properly raised by a motion for post-verdict judgment of acquittal. State v. Howard, 31,807 (La.App. 2d Cir.8/18/99), 746 So.2d 49, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190.

LSA-C.Cr.P. art. 821 provides that a motion for 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. This is a question of legal sufficiency. State v. Combs, 600 So.2d 751 (La.App. 2d Cir.1992), writ denied, 604 So.2d 973 (La.1992).

LSA-C.Cr.P. art. 851(1) provides that the court shall grant a motion for new trial whenever the verdict is contrary to the law and the evidence, i.e., that the evidence was insufficient to sustain the conviction. A motion for new trial presents only the issue of the weight of the evidence. Under this article, the trial judge has wide discretion to determine the weight of the evidence. The refusal to grant such a motion is not subject to appellate review, except for error of law. State v. Mitchell, 26,070 (La.App. 2d Cir.6/22/94), 639 So.2d 391, writ denied, 94-1981 (La.12/16/94), 648 So.2d 387, citing Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); State v. Robinson, 624 So.2d 1260 (La.App. 2d Cir.1993), writ denied, 93-2899 (La.2/11/94), 634 So.2d 372; State v. Thomas, 609 So.2d 1078 (La.App. 2d Cir.1992), writ denied, 617 So.2d 905 (La.1993).

When issues are raised on appeal both with regard to the sufficiency of the evidence and with regard to one or more trial errors, the reviewing court must first determine the sufficiency of the evidence. The reason for reviewing the sufficiency of the evidence first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,...