State v. Watson, 39,362-KA.

• Decision Date: 20 April 2005
• Docket Number: No. 39,362-KA.,39,362-KA.
• Citation: 900 So.2d 325
• Parties: STATE of Louisiana, Appellee, v. Kenya Kimona WATSON, Appellant.
• Court: Louisiana Supreme Court

900 So.2d 325

STATE of Louisiana, Appellee, v. Kenya Kimona WATSON, Appellant.

No. 39,362-KA.

Court of Appeal of Louisiana, Second Circuit.

April 20, 2005.

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Paula C. Marx, Lafayette, Kenota P. Johnson, for Appellant.

Paul J. Carmouche, District Attorney, Tommy J. Johnson, Dhu Thompson, Ron C. Stamps, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS and GASKINS, JJ.

WILLIAMS, J.

The defendant, Kenya Kimona Watson, was charged by bill of information with molestation of a juvenile, a violation of LSA-R.S. 14:81.2. After a jury trial, the defendant was found guilty of the responsive verdict of indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. The defendant was sentenced to serve five years at hard labor, with all but six months of the sentence suspended, and placed on three years supervised probation. The defendant filed motions for post-verdict judgment of acquittal and new trial, which were denied by the trial court. The defendant now appeals. For the following reasons, we affirm the defendant's conviction and sentence.

FACTS

T.A.,¹ the mother of the minor victim, L.A., had a job hanging drywall in January 2003. The defendant was staying at T.A.'s residence, located in Shreveport, Louisiana. While T.A. was at work, the defendant babysat T.A.'s two children. T.A. had known the defendant for approximately nine or ten years and considered her to be a friend. The defendant was about twenty-six years old and pregnant at that time. The then ten-year-old male victim, L.A., has a learning disability.

On January 20, 2003, T.A. came home from work early and discovered that her bedroom door was closed, which was an unusual occurrence. When T.A. attempted to open the door, it was pushed back closed from the inside. T.A. finally was able to turn the doorknob and force the bedroom door open, knocking the defendant onto the bedroom floor. The defendant was wearing only a T-shirt, and some "X-rated stuff" was playing on the VCR. When T.A. closed the bedroom door, she saw the victim standing behind it. The victim was wearing a T-shirt and his "pants and stuff" were at his knees. T.A. immediately took the victim with her to a friend's house.

When T.A. was alone with the victim, she asked him why he was in the room watching the pornographic tape with the defendant. The victim told T.A. that the defendant called him into the room. The victim related that he told the defendant that his mama would get mad at him if she found out that he watched the tape. The victim said that the defendant told him that if he "didn't tell, [she] wouldn't tell." The victim initially told T.A. that nothing was going on. Eventually, the victim told T.A. that the defendant pulled him on top of her, and she wanted them to "hunch." T.A. immediately notified the police. The following day, T.A. brought the pornographic tape to the police.

The victim was interviewed through the Sex Crimes Unit of the Shreveport Police Department at the Children's Advocacy Center (the Gingerbread House) by personnel specially trained to conduct interviews with children involved in sex crimes. This forensic interview was videotaped to insure the veracity of the child during the interview. The victim described to the interviewer how the defendant wanted to "hunch" with him. He described how their clothes were removed and how they moved around. The victim also described the genital areas involved in the movie and the actions between him and the defendant.

The defendant was subsequently charged by bill of information with molestation of a juvenile. At a pretrial evidentiary hearing (Gingerbread Hearing), the trial court ruled that the videotaped interview of the child sex abuse victim was admissible into evidence. The defendant later filed a motion in limine seeking to prohibit the introduction of the pornographic tape and the videotaped statement of the minor victim. The trial court denied the motion.

At the defendant's jury trial, T.A. testified to the facts and circumstances of the offense. The investigating officer and the forensic interviewer also testified regarding the circumstances surrounding the investigation and the interview. The videotape of the forensic interview was introduced at trial and played for the jury. Also, a portion of the pornographic videotape was played for the jury during trial.

The victim testified at trial and verified that the taped interview was truthful. He admitted on cross-examination that he initially told his mother that nothing had happened, and that the defendant had never touched his "privates." However, the victim clarified on re-direct examination that the defendant did not touch his "privates" with her hands, but that her private parts touched his private parts.

The defendant testified at trial. She denied any sexual contact with the victim, or that she was ever alone with the victim in the bedroom. The defendant testified that she was wearing a T-shirt and boxer shorts when T.A. walked in, and denied being naked from the waist down. She admitted to watching the pornographic movie, but asserted that the victim walked in the bedroom behind T.A. when the door was opened. The defendant explained that she thought T.A. conspired with the victim to fabricate this charge to get her out of T.A.'s house.

The jury subsequently found the defendant guilty of the responsive verdict of indecent behavior with a juvenile. The defendant filed motions for post-verdict judgment of acquittal and new trial, which were denied by the trial court. The defendant was sentenced to serve five years at hard labor, with all but six months of the sentence suspended, and placed on three years supervised probation.

DISCUSSION

Sufficiency of the Evidence

By her first three assignments 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 her motions for post-verdict judgment of acquittal and new trial. The defendant argues that the elements of the crime of indecent behavior with a juvenile were not proved beyond a reasonable doubt. The defendant asserts that every reasonable hypothesis of innocence was not excluded because the state failed to prove the lewd or lascivious act or to show that the defendant was intentionally exposing herself to the victim with the intention of arousing or gratifying sexual desires. The defendant further asserts that the state failed to prove that the incident occurred. The defendant argues that, other than the contradictory testimony of T.A. and the victim, there was no independent evidence of the commission of indecent exposure by the defendant. The defendant outlines these alleged inconsistencies, and argues that the charge against her was fabricated. Thus, the defendant asserts that the evidence was insufficient to support the conviction and the conviction should be reversed.

The question of sufficiency of 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 as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court must first determine the sufficiency of the evidence. The reason for reviewing sufficiency 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 elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App. 2d Cir.9/25/98), 719 So.2d...