State v. Willie
| Decision Date | 11 March 2021 |
| Docket Number | 2020 KA 0340 |
| Parties | STATE OF LOUISIANA v. RUSTY WILLIE |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 36616, Div. "B"
The defendant, Rusty Willie, was charged by bill of information with two counts of sexual battery upon K.M., a victim under the age of thirteen, violations of La. R.S. 14:43.1. He pled not guilty and, following a jury trial, was found guilty as charged on both counts. On each count, the defendant was sentenced to twenty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run consecutively. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating three assignments of error. We affirm the convictions and sentences.
K.M.'s parents had joint custody of her. Both of K.M.'s parents were remarried. Her mother was married to the defendant. In the fall of 2017, nine-year-old K.M.1 was staying at her mother's house in Livingston Parish for one of the shared custodial weeks. K.M. testified at trial that she was sleeping on the couch in the living room. The defendant came home from work late that night and pulled down K.M.'s pants, which woke her up. The defendant then pulled down her underwear to above her knees, and he rubbed her vagina for about one or two minutes, then left. Over a month later, K.M. was again staying at her mother's house. She was lying awake on the top bunkbed in her bedroom. The defendant walked into her room and rubbed her vagina over her underwear for about one or two minutes, then left.
The defendant did not testify at trial.
In his first assignment of error, the defendant argues the trial court erred in admitting evidence under La. Code Evid. art. 412.2 because it was more prejudicial than probative.
Prior to trial, the State filed notice of intent to introduce evidence of other crimes, bad acts, or wrongs, pursuant to La. Code Evid. art. 412.2. The defendant objected to the use of such evidence, which involved another victim, K.T. The trial court ruled that the evidence regarding K.T. was admissible at trial. At trial, K.T. testified that in 2010 when she was seventeen years old, she went to live with the defendant and his wife for a couple of weeks. She and the thirty-one-year old defendant began a consensual sexual relationship. At some point, K.T. moved out of the defendant's house and into a camper on her aunt's property. She informed the defendant that she wanted to discontinue the relationship with him. Despite cutting ties with the defendant, the defendant went to K.T.'s camper several weeks later. He began touching K.T. and she told him she did not "want to do this" and wanted nothing "to do with this anymore." The defendant took her clothes off and threw her on the bed. He grabbed and held her and, without her consent, had vaginal and oral intercourse with her. K.T. called the police the next day, who went to her camper and took a report. K.T. then went to the hospital to have a rape kit done.
The defendant asserts in brief that K.T. testified about irrelevant information such as her belief the defendant was neglecting his child. She also catalogued various details of her relationship with the defendant while she lived with him and his wife and took care of their child. This testimony, according to the defendant, was unduly and unfairly prejudicial and should have been excluded from evidence at trial since the likelihood this evidence lent confusion of the issues was high.Also, the defendant suggests, the probative value of the testimony of sexually assaultive behavior was not high because it did not pertain to the allegations of the instant case in any way. He argues that, rather, this evidence, rather, of his sexual assault served to paint a picture of him as a person of low character. At best, the defendant suggests, "any moderately probative evidence portrayed here was quite narrow when compared to the totality of that testimony." As such, the defendant contends, the evidence failed the balancing test of La. Code of Evid. art. 403, and the trial court abused its discretion in allowing the evidence.
Louisiana Code of Evidence article 412.2 provides:
Louisiana Code of Evidence article 412.2 was a legislative response to earlier decisions from the Louisiana Supreme Court refusing to recognize a "lustful disposition" exception to the prohibition of other crimes evidence under La. Code Evid. art. 404. State v. Buckenberger, 2007-1422 (La. App. 1st Cir. 2/8/08), 984 So.2d 751, 757, writ denied, 2008-0877 (La. 11/21/08), 996 So.2d 1104. Ultimately, questions of relevancy and admissibility of evidence are discretion calls for the trial court. Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Mosby, 595 So.2d 1135, 1139 (La. 1992); State v. Friday, 2010-2309 (La. App. 1st Cir. 6/17/11), 73 So.3d 913, 925, writ denied, 2011-1456 (La. 4/20/12), 85 So.3d 1258.
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
We find no abuse of discretion in the trial court's ruling allowing the introduction of K.T.'s testimony at trial. While the defendant argues in brief that much of K.T.'s testimony was irrelevant, K.T. simply responded to the questions she was asked. Moreover, defense counsel lodged few objections to K.T.'s testimony at trial. During her testimony, K.T. began describing an incident where the defendant inappropriately touched her in a swimming pool. Defense counsel objected because they were not familiar with this incident. The trial court informed the prosecutor to move on. Over the next fourteen pages of testimony, including K.T.'s description of how the defendant sexually assaulted her, defense counsel objected twice. One objection was sustained and the other was overruled.
At any rate, based on the similarities between the defendant's behavior with K.M. and K.T., we find the evidence of other sexually assaultive behavior was highly relevant and probative to show the defendant's propensity for sexual activity with young females related to him or under his care and living in his household. See State v. Robertson, 51,521 (La. App. 2nd Cir. 8/16/17), 243 So.3d 1196, 1203-04. We note that even though the victim in the instant matter was several years younger than seventeen-year-old K.T., the evidence of K.T.'ssexual abuse by the defendant was still relevant and admissible under La. Code Evid. art. 412.2. Evidence of a defendant's sexually assaultive behavior is admissible under La. Code Evid. art. 412.2 regardless of the victim's age. State v. Wright, 2011-0141 (La. 12/6/11), 79 So.3d 309, 316.
Article 412.2 uses the term "sexually assaultive behavior" as a general expression that is not restricted to the statutory definition of "assault" given in La. R.S. 14:36. As used in this Article sexually assaultive behavior includes the types of conduct that are proscribed, for example, by simple rape, forcible rape, aggravated rape, sexual battery, and crimes against nature. This enumeration is intended to be illustrative and not exclusive. State v. Layton, 2014-1910 (La. 3/17/15), 168 So.3d 358, 361-62. Thus, the defendant's non-consensual sexual intercourse with K.T. clearly constituted sexually assaultive behavior under La. Code Evid. art. 412.2.
Based on the foregoing, we find that the probative value of the evidence of the defendant's sexual assault of K.T. was not outweighed by the danger of unfair prejudice under La. Code Evid. art. 403. See State v. Verret, 2006-1337 (La. App. 1st Cir. 3/23/07), 960 So.2d 208, 220-22, writ denied, 2007-0830 (La. 11/16/07), 967 So.2d 520. The trial court did not abuse its discretion in finding this evidence relevant and admissible and, accordingly, this assignment of error is without merit.
In his second assignment of error, the defendant argues ...
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