State v. Wilson

• Decision Date: 06 April 2016
• Docket Number: No. 50,418–KA.,50,418–KA.
• Citation: 189 So.3d 513
• Parties: STATE of Louisiana, Appellee v. Robert Dale WILSON, Appellant.
• Court: Court of Appeal of Louisiana — District of US

189 So.3d 513

STATE of Louisiana, Appellee

v.Robert Dale WILSON, Appellant.

No. 50,418–KA.

Court of Appeal of Louisiana, Second Circuit.

April 6, 2016.

Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.

Robert Dale Wilson, pro se.

James E. Stewart, Sr., District Attorney, Sarah S. Midboe Hood, Tommy J. Johnson, George Winston, III, Assistant District Attorneys, for Appellee.

Before WILLIAMS, CARAWAY and GARRETT, JJ.

WILLIAMS

, J.

The defendant, Robert Dale Wilson, was charged by amended bill of information with two counts of molestation of a juvenile under the age of 13 and one count of molestation of a juvenile, violations of LSA–R.S. 14:81.2(A)(1) and (D)(1) and (B)(2)

. Following a jury trial, defendant was found guilty as charged of one count of molestation of a juvenile under the age of 13, and guilty of one count of indecent behavior with a juvenile under the age of 13, and one count of indecent behavior with a juvenile, violations of LSA–R.S. 14:81. The trial court sentenced defendant to serve 25 years at hard labor without the benefit of parole, probation or suspension of sentence for his molestation conviction, five years at hard labor, the first two years to be served without the benefit of parole, probation or suspension of sentence and five years at hard labor for his convictions of indecent behavior with a juvenile under age 13 and indecent behavior with a juvenile respectively, with the sentences to be served concurrently. Defendant's motions for new trial, post-verdict judgment of acquittal and reconsideration of sentence were denied. The defendant now appeals. For the following reasons, we affirm in part, reverse in part and remand.

FACTS

In August 2012, H.R.,¹ an 11–year–old girl, visited her pediatrician, Dr. Holloway–Alford, with a complaint of redness and pain in her vaginal area. During the exam, H.R. told the doctor that her grandfather, the defendant, had placed his fingers in her vagina. The doctor's office reported this information to the police. In the investigation, the Caddo Parish Sheriff's Office contacted P.B., eleven years old, and B.B., 13 years old, two girls who lived with their mother and H.R.'s aunt in a residence next door to defendant. The girls reported inappropriate touching by defendant. After the three girls were interviewed at the Gingerbread House, defendant was questioned at the Sheriff's Office. At the conclusion of the interview, defendant was arrested and charged with two counts of molestation of a juvenile under the age of 13 and one count of molestation of a juvenile.

At trial, Angela Wilson, a daughter of defendant and mother of H.R. and two sons, testified that H.R. has had problems with skin rashes on and around her vagina since infancy, and that the adults in the family, including defendant, would help apply the cream prescribed by H.R.'s physician to treat the rash. Angela stated that a year before defendant was arrested she spoke with him and requested that he cease applying the cream to H.R.'s vaginal area because H.R. had entered puberty. Angela testified that she told defendant that only she and H.R.'s grandmother, defendant's wife Debra, would help H.R. apply the cream from that point forward. According to Angela, defendant said he understood her concerns about H.R. reaching puberty and he would cease placing ointment on H.R.'s skin. Angela stated that despite this conversation, she later learned from H.R. that defendant had continued to apply the ointment to H.R.'s vaginal area.

Angela explained that defendant referred to his grandchildren as "Papaw's kids" and would dedicate one day a month to each grandchild, when the child would pick an activity to do with defendant, such as going to a movie or eating at a restaurant. Angela testified that H.R. participated in these "Papaw–Grandkid Days," but about a month prior to her disclosure to Dr. Holloway–Alford, the girl had "started making excuses about not wanting to go." Angela also testified that she would periodically allow H.R. and her other children to stay with defendant and his wife and that H.R. had sometimes gone to work sites with defendant, who performed odd jobs and simple contracting work at properties in the local area.

H.R., the daughter of Angela Wilson, was born in 2001. In court, H.R. identified defendant as her grandfather, whom she called "Papaw." H.R. testified that she recalled going to the Gingerbread House, talking to Jennifer Flippo and allowing the interview to be recorded. The videotaped recording of H.R.'s Gingerbread House interview was played for the jury and admitted into evidence. In the interview, H.R. stated that the inappropriate contact had started occurring about a year before she told her doctor that defendant touched her vagina and that these incidents would happen when she was staying with her grandparents and while at work with defendant.

H.R. stated that she had a history of rashes in her vaginal area, that she had told defendant about them when she was staying with her grandparents, and that defendant applied medication to her skin for the rashes. H.R. described one of the instances when defendant touched her vagina as follows:

The last time he did it we were in [a shed in back] where he puts all his tools and stuff. And there was a table in there and he put me on it and ... he said he had to check and that's what he called it, to see if I had scratches or anything. And he was hurting me so I told him to stop ‘cause I started crying and everything. And he'd wear gloves sometimes when he was in there ‘cause he has a lot of gloves ‘cause of his hand. He keeps doing that.

R.p. 90 (interviewer's comments omitted). H.R. continued by stating that while she was lying flat on the table, defendant "put his finger in there," indicating her vagina. H.R. described another episode when she was sitting on a recliner in defendant's house and he sat on the recliner with her and "put his finger in the hole ... and just, you know, [went] back and forth sometimes ... And sometimes, just stick it in there. And when he did that, sometime, he'd like move, like he'd be on top ... And he'd like move ... and I could—you know, I could feel his parts—on my part." R.pp. 88–89. H.R. stated in the interview that she initially thought defendant was "just checking on me," but she told her Aunt D.J. about defendant's behavior because H.R. didn't think that the touching was necessary. H.R. told the interviewer that she later found out that something had happened to P.B. and B.B. as well, but did not know what exactly had occurred.

In her trial testimony after viewing the Gingerbread House interview, H.R. explained her understanding that a lie is something that "didn't happen, ... but the truth is what actually happened or how you actually feel." H.R. testified that she told Dr. Holloway–Alford the same information that she gave to the interviewer at the Gingerbread House. H.R. recalled speaking with Lucky Raley, an investigator with the Public Defender's Office. H.R. testified that her first interview with Raley was recorded and that she told him the same information that she had given to the Gingerbread House interviewer. H.R. explained that she participated in "Papaw–Grandkid" days, during which defendant would take one of his grandchildren "wherever we wanted to go." H.R. testified that she loved her grandfather, but that her description of his improper touching was the truth.

On cross-examination, H.R. stated that she spoke with Raley twice and told him the same information on both occasions. H.R. testified that she had written letters to defendant while he was in prison and that she loved her grandfather, but reiterated that all of her allegations against defendant were the truth.

P.B., the daughter of Vera Gardner, was born in 2001 and is B.B.'s sister. At trial, P.B. testified that she, B.B., and their mother live with their Aunt D.J., who is a daughter of defendant. In court, P.B. identified the defendant as her grandfather, whom she called "Papaw." P.B. stated that telling the truth means saying something that really happened. P.B. testified that she recalled going to the Gingerbread House, talking to Jennifer Flippo and allowing the interview to be recorded. The videotaped recording of P.B.'s Gingerbread House interview was played for the jury and admitted into evidence. In the interview, P.B. stated that defendant touched her skin under her shorts when he and his wife were babysitting P.B. and B.B. while their mother was traveling out of state. P.B. told the interviewer that one day after she had returned home from school, defendant entered her room, closed the door and told her to leave the light off. P.B. stated that defendant then picked her up and touched her skin under her pants. P.B. said that the defendant's hand was moving while he was touching her genitals.

After the Gingerbread House interview was played for the jury, P.B. testified that "not all of" what she said in the Gingerbread House interview was true. P.B. explained that her description of what happened was true, but that at the time of trial she thought that defendant's inappropriate touching was an accident. At trial, P.B. confirmed her prior statement at the Gingerbread House that defendant touched her skin under her clothing:

MIDBOE: Okay. When you said when he pushed his hand on your private area, that it was moving?

P.B.: Yes. But it wasn't like how y'all are thinking it was.

MIDBOE: Well, and I don't want you to suppose how I'm thinking. Just tell me what happened.

P.B.: Like, it was, like, shaking, like a normal shake.

MIDBOE: Okay.

P.B.: Like you wouldn't notice it if it was outside of your clothes.

R.pp. 445–46. P.B. stated that she later spoke with Raley, that the interview was recorded and that she told Raley that the defendant's touching of her private area was accidental. P.B. recounted that defendant would blow raspberries, wrestle, tickle, and jump on the trampoline with P.B. and his other grandchildren. P.B....