Opinion
NO. 2011-KA-1514
03-13-2013
STATE OF LOUISIANA v. KENNETH MOSLEY
Leon A. Cannizzaro, Jr. District Attorney Matthew C. Kirkham Assistant District Attorney COUNSEL FOR APPELLEE, STATE OF LOUISIANA Powell W. Miller LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT, KENNETH MOSLEY
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 475-292, SECTION "I"
Honorable Karen K. Herman, Judge
Judge Dennis R. Bagneris , Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr., Judge Joy Cossich Lobrano)
LOBRANO, J., CONCURS IN THE RESULT
Leon A. Cannizzaro, Jr.
District Attorney
Matthew C. Kirkham
Assistant District Attorney
COUNSEL FOR APPELLEE, STATE OF LOUISIANA
Powell W. Miller
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT, KENNETH MOSLEY
CONVICTIONS
AFFIRMED; SENTENCES
AFFIRMED IN PART;
VACATED IN PART AND
REMANDED
Defendant, Kenneth Mosely, appeals his convictions for aggravated rape of an individual under the age of thirteen years, a violation of La. R.S. 14:42(A)(4); sexual battery upon an individual under the age of thirteen years, a violation of La. R.S. 14:43.1(A)(2); and forcible rape, a violation of La. R.S. 14.42.1. Defendant received life imprisonment at hard labor on the aggravated rape conviction; ninety-nine years at hard labor on the sexual battery conviction; and forty years at hard labor arising out of the forcible rape conviction. The sentences were to be served without benefit of probation, parole, or suspension of sentence, with all sentences to run concurrently.
For the reasons that follow, we affirm the defendant's convictions on all counts and the sentences imposed arising out of his aggravated rape and forcible rape convictions. However, we vacate and remand for resentencing the sentence received for his sexual battery conviction.
STATEMENT OF THE CASE
Defendant, Kenneth Mosely, was charged by grand jury indictment on January 17, 2008 with: Count One- aggravated rape of an individual under the age of thirteen years; Count Two-sexual battery upon an individual under the age of thirteen; and Count Three- forcible rape. Counts One and Two were committed against C.P.1 who was born on November 26, 1993. Count Three was committed against her sister, C.P.2, whose date of birth is April 2, 1992. All counts allegedly took place between May 1, 2006 and September 1, 2006.
See La. R.S.46:1844(W) (barring public disclosure, except during trial, of the names, addresses, or identities of crime victims under the age of eighteen years and of all victims of sex offenses, and authorizing use of initials, abbreviations, etc.).
Defendant pleaded not guilty at his February 1, 2008 arraignment. On August 12, 2008, the State filed a notice of intent to introduce evidence of similar crimes pursuant to La. C.E. art. 412.2.
A twelve-person jury found defendant guilty of all three counts. On April 8, 2011, the trial court denied defendant's motions for new trial and for post-verdict judgment of acquittal. Thereafter, the trial court sentenced defendant as follows: Count One (aggravated rape)-life imprisonment at hard labor; Count Two (sexual battery)-ninety-nine years at hard labor; and Count Three (forcible rape)-forty years at hard labor—all sentences to be served concurrently and without benefit of probation, parole, or suspension of sentence.
Defendant timely filed the present appeal. FACTS
The following testimony was adduced at trial.
T.P.B., mother of the two victims, testified that C.P.1's birthday was April 2, 1992, and that C.P.2's birthday was November 26, 1993. T.P.B. stated that C.P.2 was a school friend of defendant's daughter, K.R. T.P.B. recalled a day in June 2006 when defendant came to her home and picked up C.P.1 to take C.P.1, C.P.2, K.R., and other girls to see a Lil' Wayne concert and to spend the night at defendant's home.
T.P.B. testified that her daughters first made allegations of improper contact in August 2007. T.P.B. subsequently went to the New Orleans Police Department's Fourth District Police Station to report the allegations. After T.P.B. took her daughters to see a doctor, she learned that C.P.1 was pregnant.
T.P.B. admitted on cross examination that another young man was the father of C.P.1's child. She knew the father of the child very well, but did not report him to police for having sex with C.P.1 because it was consensual. T.P.B. confirmed on redirect examination that C.P.1 told her with whom she had been sexually active and maintained that C.P.1 never accused anyone of raping her in connection with that pregnancy.
C.P.2 testified that in 2006, K.R., defendant's daughter, was her best friend. C.P.2 identified defendant in court. She spent the night several times at defendant's residence. She and K.R. would go places with defendant, such as to the homes of his friends and to wave pools. However, she said she was no longer friends with K.R. because defendant raped her in the summer of 2006.
C.P.2 testified that sometime in the summer of 2006, defendant picked her up alone to go to a wave pool with K.R. and some other friends. They drove to a store en route to pick up K.R. While sitting at the store in defendant's car, he rubbed C.P.2 under her shirt, pulled her pants to the side, and touched her vagina. She began crying, and he stopped. She did not do anything to physically to resist him. She did not tell anyone or call anyone when it happened because she was embarrassed and scared. C.P.2 testified that she did not really understand what he was doing to her.
C.P.2, K.R, and some other girls returned to defendant's residence after they could not get into the wave pool. The other girls eventually left and K.R. went to spend the night with her mother. C.P.2 remained to spend the night at defendant's residence with defendant and his wife.
Sometime around midnight, defendant awakened C.P.2 and told her to come into the living room with him. Defendant sat on the couch and she sat on the floor. After they talked for a while, defendant told her to sit on the sofa with him, whereupon he took out his penis and started to masturbate. Defendant grabbed her hand and made her put it on his penis and move it in an up and down motion until he ejaculated. After wiping his penis, he placed a towel on the sofa and made C.P.2 lie down on the sofa. He removed her pants and underwear and inserted his penis into her vagina. She began crying and told him to stop because it hurt. Defendant removed his penis, wiped her vagina, and then performed oral sex on her. She told him to stop. When he stopped, he made her wipe her vagina in the bathtub while he brushed his teeth. Afterwards, she returned to K.R.'s room and went to sleep. The next day, she did not tell K.R., her parents, her sister, or anyone else what happened because she did not want anyone to judge her. She said she felt like a whore.
C.P.2 estimated that the above incident happened about two weeks before the Lil' Wayne concert. Believing that the molestation would not happen again, she returned to defendant's residence. She said that defendant drove K.R., several other friends, and C.P.2 to pick up her sister, C.P.1. C.P.2 recalled that the concert was for the following night and that the girls planned to stay at defendant's house.
After they returned to defendant's house, the other girls left, leaving C.P.1, C.P.2., and K.R. Defendant told K.R. and C.P.2 to go into a room. He put on a pornographic tape and made them watch it, telling them not to come out of the room. C.P.1 was in the living room at that time. C.P.2 next saw C.P.1 in the bathroom, sitting on the toilet, making a face. C.P.2 said C.P.1 wanted to cry at that point, but did not. She said defendant left his apartment at some point that night and drove to pick up "T", C.P.1's former boyfriend, whom he brought to the apartment. "T" slept there. C.P.2 testified that they spent the night at defendant's residence and left the next day, when her aunt, her mother's sister, picked them up.
Approximately one year later, C.P.1 told her what happened to her, saying that she was having nightmares. After her sister told her what happened to her, she told C.P.1 what defendant had done to her. They both then told their mother when they came home from school the next day. Subsequently, the sisters talked to the police, were interviewed by a woman, and examined by a physician. C.P.2 did not know C.P.1 was pregnant before they went to the doctor. C.P.2 testified that she was twelve years old when these events occurred in the summer of 2006. She did not know precisely what rape meant, and so she told her mother that she had not been raped. At the time, she thought rape meant full insertion of the penis accompanied by "pumping" movements. She testified that she told her mother that defendant did something to her, just that he had not raped her.
Her older sister, C.P.1, testified that defendant raped her around the time of the Lil' Wayne concert in the summer of 2006. Defendant picked her up and took K.R., her sister, and some other friends to a McDonald's. Then he took the girls to a daiquiri shop and bought them daiquiris, although he claimed the drinks were alcohol-free.
Once they returned to defendant's residence, he said he needed to discuss "house" rules with her. However, defendant then started to talk about sex and lubricants with her. Defendant eventually took her down to his car. He discussed making his daughter watch pornography. C.P.1 testified that she initially was sitting on the rear seat with her leg in the open door, but defendant told her to put her leg inside so he could close the door. She did so. Defendant then locked all the doors. She panicked, but he calmed her by saying that it was just dangerous in that area.
Defendant continued to discuss sexual matters, placed his hands on her thighs, and told her to pull her shorts down. C.P.1 told him no and tried to open the car door. Defendant eventually removed her pants, put on a condom, and raped her. She said it lasted about ten minutes. She testified she was really scared and wondered if defendant would kill her after raping her. She said she screamed and cried out; although on cross examination, she qualified her testimony by stating that she did not scream at the top of her lungs. Defendant told her to shut up. C.P.1 relayed that he finally stopped raping her when a female apartment resident turned on her light, came outside, and began talking. C.P.1 said that at that point, defendant jumped off of her and pulled up his pants and told C.P.1 to pull up hers. She said she was in pain. Defendant told her to wipe her face. He threatened her by saying that she better not say anything because he knew where she and her sister lived, and/or where her friends lived.
C.P.1 went back up the stairs because her sister was there. However, defendant would not let her go inside until she stopped crying. She estimated that she stood there for thirty minutes until he finally let her go back inside of the apartment. After C.P.1 went into the bathroom, she noticed vaginal bleeding.
Defendant took a shower and then left. He returned with "T", C.P.1's boyfriend. She did not tell "T" that she had been raped, but did tell him about how defendant was talking about lubricants and condoms. C.P.1 testified that she had never had sex with "T".
C.P.1 did not tell "T" about the rape until everything came out a year later. C.P.1 said her aunt told "T" about the rape. She said that he revealed that defendant had called him and asked him to say that he, "T", had raped her, because defendant said he could not go back to jail. C.P.1 testified that she finally told her sister, C.P.2, about the rape one night when she awoke from a nightmare about the rape. C.P.1 said C.P.2 then told her defendant had tried to touch her, but she started crying and he left her alone. They told their parents the next night.
C.P.1 did not know she was pregnant when she told her mother that she had been raped. She did not discover her pregnancy until after they had talked to detectives about the rape and after she had been examined by a physician. C.P.1 testified that defendant took her virginity when he raped her. She said her subsequent boyfriend, "D", impregnated her. He was the only person with whom she had had consensual sex at that time. C.P.1 stated on cross examination that the reason she had sex with her boyfriend was because defendant made her feel "nasty" and that sex was her means of acting out.
Dr. Yameika Head was qualified by joint stipulation as an expert in the field of child abuse pediatrics. Dr. Head testified that there are many reasons for delayed disclosure of sexual abuse by a child, including embarrassment, feeling a little bit guilty about it, or being threatened not to tell. Dr. Head detailed the procedure she followed with C.P.1 and C.P.2 when she interviewed and examined them on September 4, 2007. Dr. Head stated that C.P.1 gave a history of penile-vaginal contact by her friend's father. Dr. Head stated that C.P.1's physical findings were consistent with C.P.1's history. She acknowledged that tests showed that C.P.1 was pregnant.
Dr. Head testified that C.P.2 had the same evaluation and comprehensive physical examination as C.P.1. C.P.2 related a history of penile-vaginal contact, digital-vaginal contact, oral-vaginal contact, and oral-oral contact, by her friend's father. Dr. Head said that C.P.2 had a normal physical examination that was consistent with the history given.
New Orleans Police Department Detective Kurt Coulon was assigned to the sex crimes unit in August 2007. He became involved in the case after the victims and their parents went to the Fourth New Orleans Police District Station. He referred them to the Children's Advocacy Center (CAC) for a forensic interview. He later obtained three warrants for defendant's arrest based on his investigation and the forensic interviews.
JoAnn Verrett, a forensic interviewer for the Child Advocacy Center, conducted interviews of C.P.1 and C.P.2 in September 2007. Ms. Verrett testified that she had formerly worked for the New Orleans Police Department for twenty-five years and had been a child abuse detective. She identified videotapes or DVDs of her separate interviews of C.P.1 and C.P.2, which were played for the jury.
E.P was the mother of B.P., a friend of both victims. She also had met defendant on one occasion, when he came to her home with her daughter, B.P., defendant's daughter, K.R., and I.G., another friend, to ask if B.P. could go to the Lil' Wayne concert in June 2006. She did not permit B.P. to go to the concert because she did not know the defendant. However, she did give permission for BP to go to defendant's house with the other girls.
B.P. confirmed that in 2006, she was friends with C.P.1 and C.P.2. She also knew K.R.; they were not friends, but went to school together. She met defendant once, in June 2006. B.P. identified defendant in court. She testified that on the day after the Lil' Wayne concert, defendant and his daughter took B.P. and her friend, I.G., to defendant's residence. After the girls "chilled" for a couple of hours, she had an uncomfortable incident with defendant which caused her to leave.
B.P. stated that she, I.G., and K.R. were about to go out on the balcony, when defendant either called her or came to get her, and they went to his bedroom. Defendant said he wanted to talk, and he told her she could close the door. She said he could keep the door open. She asked him what he wanted to talk about, and he told her to sit on the bed. He sat next to her, but not too close. Defendant began asking her if she was an only child, how she was doing in school, and if she had a boyfriend. Defendant then asked her if she knew anything about condoms and lubricants.
B.P. testified that defendant had started to get a little closer as he was talking to her about sex. He then asked her to lie down, open her legs, and told her he was going to insert his fingers into her vagina. Defendant rested his hand on her thigh, and she pushed it off. He touched her shoulder, and she told him not to touch her. She testified that at that point, she got up. B.P. called him a pervert and threatened to call her father. Defendant said: "No, it is not anything like that. It is not anything like that." She did not tell anyone that day about what happened. She said she wanted to forget about it.
B.P. did not talk about the incident until C.P.1 and C.P.2 revealed what defendant had done to them. B.P. was present at the home of C.P.1 and C.P.2 when C.P.1 began crying and talking about having nightmares. B.P. asked what she was having nightmares about, and C.P.1 told her that defendant had raped her. C.P.2 then stated that defendant had done it to her also. B.P. then told the sisters about her experience with defendant. The three girls went to the front of the residence. The sisters' mother asked them why they were crying. B.P. said that was when it all came out. B.P. testified that because C.P.1's stomach was showing, she knew C.P.1 was pregnant at the time C.P.1 divulged that defendant had raped her. However, she did not recall C.P.1 actually telling her she was pregnant.
B.A.2, fifteen years old at the time of trial, testified that defendant was the father of her brother, "B". She first met defendant ten years earlier, when "B" was born. B.A.2 verified that defendant spent time in her residence in 2004. She described an incident that happened with defendant when she was nine years old. She stated that defendant touched her between her legs. He then picked her up and put her on top of him; and he made her "hump" him. He stopped after her sister, B.A.1, came downstairs to check on her. After she went upstairs, her sister asked if defendant had been touching her.
B.A.2 added that she did not know C.P.1, C.P.2, or B.P. B.A.2 acknowledged that she was introduced to B.P. at the District Attorney's Office, but maintained she did not know anything about B.P.
B.A.1, twenty-one years old at the time of trial, testified that she had one brother, "B", and two sisters, B.A.2 and B.A.3. B.A.1 identified defendant in court as the father of her brother, "B". In 2004, when B.A.1 was thirteen years old and living with her mother, B.A.2, and "B", she saw defendant frequently at their apartment. On one occasion in December 2004, at approximately 11:00 a.m. or noon, she saw her sister, B.A.2, on top of defendant. She stood where they could not see her and watched to see what they were doing. B.A.1 said defendant had his hands on B.A.2's waist and he was moving her back and forth like one would do having sex. Her private part was touching his private part, although both were fully clothed. B.A.1 went back upstairs and called B.A.2 upstairs. She asked B.A.2 what happened, telling B.A.2 she had seen what B.A.2 had been doing with defendant. B.A.2 began crying. B.A.1 eventually told her mother about the incident.
On cross examination, defense counsel asked B.A.1: "And you don't claim Mr. Mosley ever played ride the horsey or anything like that with you, do you?" She replied "no." On redirect examination, the prosecutor asked B.A.1 if she knew what defense counsel had meant when he asked her if she had ever "rode the pony" with defendant. She asked the prosecutor if defense counsel "was talking about on top of him?" When the prosecutor replied in the affirmative, B.A.1 answered "no."
The prosecutor then asked B.A.1 if defendant had ever touched her, and she replied that he began touching her when she was ten years old. The first incident occurred when she was in her mother's bed with her sister and her brother. She testified that defendant was at their residence when her mother left to get drugs. Defendant got into bed with her, her sister B.A.2, and her brother. He then touched her between her legs and played with himself until he ejaculated. She said she did not know what had just happened. She did not do anything about it because she felt that no one would believe her, and because her mother was on drugs.
B.A.1 testified that defendant molested her again while she was still ten years old, under the same circumstances. She said her mother was always leaving. She said that on that second occasion, defendant did the same acts—touching her while playing with himself. He had a white towel. B.A.1 said this happened three times. She finally told her grandmother about the abuse when she was seventeen years old. B.A.1 said she did not tell her mother because her mother was going through "the situation" with B.A.2. She finally told her mother in 2010. B.A.1 said that when she was interviewed about what happened to B.A.2 she did not tell anyone what had happened to her. She did not say anything at that time because she said that when she told someone about B.A.2, "they" thought she was making it up. Consequently, she said she knew "they" would not believe her if she told them that it had happened to her.
K.R., defendant's daughter, was called as a defense witness. K.R. denied that defendant had K.R. or her friends watch porn films. She claimed that her father did not encourage her to have sex and denied that he taught her about condoms or lubricants. Defendant never bought alcohol for her or her friends.
K.R. claimed that she was not sexually active and that she knew of no instances where defendant picked up her junior high school friends so they could have sex in her room. K.R. testified that defendant would never hurt her and that he never touched any of "them." She first learned of the accusations against defendant by C.P.1 and C.P.2 on the news. Since then, she has not spent any time with C.P.1 or C.P.2; they stopped talking.
A.C., a friend of K.R., also testified that she was never shown any pornographic films by defendant. She maintained that he did not buy her alcohol or have her touch his penis. She never saw defendant do anything inappropriate with any of the girls. However, she admitted that she was never at defendant's house when C.P.1, C.P.2, or B.P. was there.
I.G., a friend of C.P.1, testified. She said she went to the Lil' Wayne concert at the Alario Center; however, she did not see C.P.1 or C.P.2 there. Afterwards, she went home to get clothes to spend the night at defendant's residence. Her friend, B.P., also came to defendant's residence.
I.G. did not recall precisely when C.P.1 had warned her that defendant was a rapist. She testified that C.P.1 and she had gotten into a fist fight about the rape allegations. I.G. added that defendant never showed her pornographic films, raped her, fondled her, or said anything lewd or sexual to her. He never gave her alcohol or a daiquiri. However, she acknowledged that she was never alone in defendant's presence.
NOPD Detective Kurt Coulon was recalled as a witness by defendant. He said that his supplemental police report of August 27, 2007 showed that C.P.1 identified that she was assaulted on the day in 2006 when defendant picked her up to attend the Lil' Wayne concert. His report also stated that C.P.2 told him she was assaulted the night before the Lil' Wayne concert. Det. Coulon testified that he attempted to talk to K.R., but her mother would not permit it. He admitted that no one revealed to him that C.P.1 was pregnant. Det. Coulon did not interview any of the other girls that he had been told were raped or molested by defendant.
Det. Coulon confirmed on cross examination by the State that no one ever came to him and said C.P.1 and C.P.2 lied about their allegations against defendant. He said that C.P.1, C.P.2, and B.P. related the allegations against defendant on August 27, 2007; and on that date, he attempted to contact defendant, but was unable to do so.
When recalled to testify by defendant, T.P.B. said that her daughters and B.P. were not crying or hysterical when they made the allegations against defendant. She reiterated that she did not discover C.P.1 was pregnant until after the doctor's examination. She said C.P.1 told her she did not know herself that she was pregnant until that time.
The final witness for the defense was Ed Bolger. Bolger testified that he ran the Federal Bureau of Prisons, United States Department of Justice, Reentry Program, a halfway house program. He testified that paperwork he received from the United States Probation Office reflected that defendant was first placed in custody in October 2001. Thereafter, he was in Bolger's custody from October 15, 2004, with an anticipated release from incarceration date of February 14, 2005. Bolger testified that during those four months defendant was in his custody, defendant would have been under the community custody component ("CCC") of the program for two months, during which time he would have only been allowed to leave the facility to look for work or begin a job search.
Bolger advised that he could not state if he knew where defendant was at all times or if he actually went to all jobs sites where he might have applied for work. Bolger also confirmed that he had no records showing where defendant was during November or December of 2004, while he was in his custody.
ERRORS PATENT
The record contains one patent error. The trial court sentenced defendant on Count Two, sexual battery perpetrated on a victim (C.P.2) under the age of thirteen years, to imprisonment at hard labor for ninety-nine years, without benefit of parole, probation, or suspension of sentence. That sentence was the maximum sentence allowed under La. R.S. 14:43.1(C) at the time of defendant's April 8, 2011, sentencing, for sexual battery on a victim under the age of thirteen years, when the offender is seventeen years of age or older. The trial court followed the sentencing provisions of La. R.S. 14:43.1(C)(2), enacted by Acts 2008, No. 33, § 1, which became effective August 15, 2008. However, the statute was amended twice before the August 15, 2008 amendment.
Prior to August 15, 2006, La. R.S. 14:43.1(C) provided for a single sentence of imprisonment with or without hard labor for not more than ten years, without benefit of parole, probation, or suspension of sentence, for a sexual battery conviction.
Thereafter, La. R.S. 14:43.1(C) was amended by Acts 2006, No. 103, § 1 ("The Mary Jean Thigpen Law"), effective August 15, 2006, to provide two different sentences under Subsections (C)(1) and (2). Subsection (C)(1) provided for the same ten-year sentence in effect at the time of the 2006 amendment. However, Subsection (C)(2) imposed a separate sentence of punishment by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment, with at least twenty-five years of the sentence being without benefit of parole, probation, or suspension of sentence for those convicted of sexual battery on a victim under the age of thirteen when the offender was seventeen years or older.
The 2008 amendment to La. R.S 14:43.1(C)(2) changed the maximum sentence from life imprisonment at hard labor to ninety-nine years at hard labor. As referenced herein, the trial court employed this provision in sentencing defendant in the present matter. However, the statute in effect at the time of the commission of the offense governs the applicable punishment for the crime. State v. Hyde, 2007-1314, pp. 1-2 (La. 11/21/07), 968 So.2d 726, 727.
Defendant in the instant case was charged by grand jury indictment with committing sexual battery upon C.P.2 between the 1st day of May, 2006 and the 1st day of September, 2006. Therefore, if the offense occurred between May 1, 2006, and prior to August 15, 2006, defendant could only have been sentenced to imprisonment with or without hard labor for not more than ten years, without benefit of parole, probation, or suspension of sentence. If the offense occurred on or after August 15, 2006 and before September 1, 2006, defendant could have been sentenced to imprisonment at hard labor for not less than twenty-five nor more than life imprisonment, with at least twenty-five years of the sentence being without benefit of parole, probation, or suspension of sentence. Based upon this Court's review of the testimony of the victim and other witnesses, defendant committed sexual battery on C.P.2 before August 15, 2006.
In particular, C.P.2 testified that defendant committed the acts upon her in the summer of 2006, two weeks before a Lil' Wayne concert. C.P.1 said that defendant raped her around the time of the Lil' Wayne concert. T.P.B, the mother of the girls, testified that defendant came to her residence on June 30, 2006 and drove off with her two daughters to see the Lil' Wayne concert.
E.P., mother of B.P., who was a friend of both victims, testified that she met defendant once. She said that was in June 2006 when defendant came to her home with her daughter, B.P., K.R., and I.G., to ask if B.P. could go to the Lil' Wayne concert.
B.P. also testified that she met defendant once, in June 2006. She was at I.G.'s home when defendant came there. Defendant wanted to take the girls, including his daughter, K.R., and C.H., to the concert. K.R. also referenced that the Lil' Wayne concert was in the summer of 2006.
We find no testimony to contradict that defendant sexually battered C.P.2 close in time to the Lil' Wayne concert and that the Lil' Wayne concert referenced was in June 2006. In employing the Jackson v. Virginia sufficiency of the evidence analysis, viewing all the evidence in a light most favorable to the prosecution, no rational trier of fact could have found beyond a reasonable doubt that defendant committed sexual battery upon C.P.2 on or after August 15, 2006. Therefore, defendant's sentence for that conviction was governed by La. R.S. 14:43.1(C) as in effect prior to August 15, 2006. The statute provided for imprisonment with or without hard labor for not more than ten years, without benefit of parole, probation or suspension of sentence-not the sentence imposed of ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence.
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
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Further, assuming arguendo, that some doubt or uncertainty exists as to whether the sexual battery on C.P.2 was committed by defendant prior to August 15, 2006, "where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser." State v. Bosworth, 373 So. 2d 152, 155 (La. 1979).
Accordingly, for the above reasons, we vacate defendant's sentence of ninety-nine years at hard labor on Count Two, the sexual battery conviction, and remand to the trial court for resentencing consistent with this opinion. ASSIGNMENT OF ERROR
In his sole assignment of error, defendant argues that the trial court erred in ruling: (1) that the State could introduce evidence of other crimes that were not only unadjudicated, but were uncorroborated by any physical evidence; and (2) that the State could introduce "unnoticed" evidence of other crimes by defendant that it knew of before trial. The first prong of this assignment of error concerns evidence of other crimes, wrongs, and/or acts by defendant involving then minor females, B.P., B.A.2, and B.A.1. The second prong of this assignment of error concerns only B.A.1. We first consider defendant's claim that the trial court erred in allowing the State to introduce unadjudicated other crimes evidence and in conjunction therewith, failing to conduct the balancing test required by La. C.E. art. 403 as to whether the probative value of the evidence outweighed its prejudicial effect.
The evidence of defendant's other crimes, wrongs, and/or acts was admitted pursuant to La. C.E. art. 412.2, which states:
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.
La. C.E. art. 412.2 permits the introduction of "uncharged" acts involving sexually assaultive behavior or acts which indicate a lustful disposition toward children. State v. Hughes, 2002-2455, p. 2 (La. 1/31/03), 841 So. 2d 718, 719 ("The state introduced the testimony regarding other uncharged acts of child sexual abuse allegedly committed by respondent under the authority of newly-enacted La. C.E. art. 412.2(A) ...."). A trial court's ruling on the admissibility of evidence under La. C.E. art. 412.2 is reviewed for abuse of discretion. State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So. 3d 309, 316.
La. C.E. art. 403, referred to in La. C.E. art. 412.2, states that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." Unfair prejudice as used in La. C.E. art. 403 means that "the offered evidence has 'an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.' " Author's Note (3), La. C.E. art. 403, Handbook on Louisiana Evidence Law, Pugh, Force, Rault & Triche, p. 380 (2011).
A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. White, 2009-0025, p. 9 (La. App. 4 Cir. 9/16/09), 22 So. 3d 197, 204. Further, a trial court's ruling to admit the introduction of evidence carries with it an implicit conclusion that the trial court found that the probative value of the evidence substantially outweighed the danger of unfair prejudice, confusion of the issues, or misleading the jury, as per La. C.E. art. 403. State v. Magee, 2011-0574, p. 49,fn. 37 (La. 9/28/12), --- So. 3d ---, ---,fn. 37, 2012 WL 4465165.
In the instant case, defendant was charged with and tried for three crimes involving sexually assaultive behavior involving two victims who were under the age of seventeen at the time of the offenses. Clearly, pursuant to La. C.E. art. 412.2, evidence of defendant's commission of other crimes, wrongs, or acts involving sexually assaultive behavior against B.P., B.A.2, and B.A.1 was admissible and could be considered in determining whether defendant committed the offenses alleged herein, subject to the balancing test provided in Article 403.
Defendant asserts that proof of the other crimes, wrongs, acts contemplated by La. C.E. art. 412.2 have to be established by clear and convincing evidence. He therefore argues that the State did not meet its burden of proof in proving the other crimes evidence because the allegations raised by B.P., B.A.1 and B.A.2 were un-witnessed and not supported by physical evidence. However, the issue of whether such other crimes, wrongs, or acts have to be established by clear and convincing evidence or by a preponderance of the evidence, remains undecided. See State v. Rose, 2006-0402, pp. 12-13,fn. 3 (La. 2/22/07), 949 So. 2d 1236, 1243,fn. 3 ("[W]e need not reach the issue of the applicable burden of proof because we find that the State satisfied its burden under either the clear and convincing evidence standard or the preponderance of the evidence standard."); State v. Scoggins, 2010-0869, p. 12 (La. App. 4 Cir. 6/17/11), 70 So. 3d 145, 153, writ denied, 2011-1608 (La. 2/10/12), 79 So. 3d 1033 ("With the Legislature expressing its intent to hold the State to a preponderance of the evidence burden on this issue via La. C.E. art. 1104, and considering that the Louisiana Supreme Court has not addressed the burden of proof under La. C.E. art. 1104, it is not unreasonable to conclude that the State's burden of proof for introducing other crimes evidence at trial is by a preponderance of the evidence.").
Insofar as defendant argues that there was insufficient evidence to document proof of the prior crimes, wrongs, or acts perpetrated by defendant on B.P., B.A.2, and B.A.1, it is well-established that, absent internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139, p. 9 (La. App. 4 Cir. 11/29/06), 943 So. 2d 362, 369; State v. Pittman, 2011-0741, p. 3 (La. App. 4 Cir. 2/29/12), 85 So. 3d 782, 784, writ denied, 2012-0680 (La. 9/14/12), 97 So. 3d 1016.
Notwithstanding, there was some testimony to corroborate certain aspects of the "other crimes" testimony. In the case of B.A.2, her sister, B.A.1, corroborated, at least in part, what she claimed defendant had done to her. B.P.'s testimony, along with the testimony of defense witnesses, defendant's daughter and I.G., verified that B.P. spent the night at defendant's residence with them on the night that B.P. said defendant acted lustfully towards her.
Accordingly, we conclude that the record establishes that the State met its burden of proving such prior crimes, wrongs, or acts under either the clear and convincing evidence standard or the preponderance of the evidence standard. Further, this Court cannot say that the trial court abused its discretion in implicitly finding that the probative value of the evidence-as to plan, knowledge, absence of mistake or accident in defendant's molestation of pubescent and pre-pubescent girls—was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Defendant next argues that the trial court erred in permitting the State to question B.A.1 about defendant's molestation of her, given that the State did not give pre-trial notice of these acts, as required by La. C.E. art. 412.2(B). Defendant maintains that the State set a trap to have his trial counsel "open the door" to B.A.1's molestation allegations. Defendant also urges that the trial court improperly denied his motion for a mistrial after it permitted the State to examine B.A.1; defendant avers that the defense did not have sufficient time to meaningfully prepare to examine B.A.1 on these prior bad acts and/or to review reports regarding her molestation claims.
The State does not dispute that it did not give such pre-trial notice of the acts involving B.A.1, or that defendant had requested such reasonable notice. However, it represents that the State did not provide notice because it did not have sufficient notice of B.A.1's molestation claims in advance of trial to file a La. C.E. art. 412.2 notice. The State contends that its direct examination of her showed that it did not intend to introduce B.A.1's molestation claims into evidence for purposes of the notice requirements of La. C.E. Article 412.2. Instead, the State maintains that it only questioned B.A.1 as to any potential molestation acts after defense counsel opened the door to such questioning.
Our review of the record supports the State's position. On direct examination, the State asked B.A.1 to testify solely as to an act that she witnessed defendant perpetrate on her younger sister, B.A.2. On cross-examination, defense counsel asked B.A.1: "And you don't claim Mr. Mosley ever played ride the horsey or anything like that with you, do you?" After B.A.1 responded "no," the prosecutor, on redirect examination, then asked B.A.1 if she knew what defense counsel meant when he asked her if she had ever played "ride the pony" with defendant. When she indicated that she had not been on "top of him," the prosecutor then asked if defendant had ever touched her, which triggered an objection by defense counsel.
Defendant suggests that the State intended all along to set a trap for his defense counsel in order to "open the door" to B.A.1's allegations, with the expectation that it would get B.A.1's unnoticed allegations before the jury. Defendant asserts that the State's "ready" argument that the defense had opened the door is to question B.A.1 about her own molestation claims is evidence the State had been prepared for this trap to be sprung.
La. C.E. art. 611(A) states that a trial court shall exercise reasonable control over the mode and order of interrogating witnesses so as to, inter alia, make the interrogation and presentation effective for the ascertainment of the truth. La. C.E. art. 611(D) states that "[a] witness who has been cross examined is subject to redirect examination as to matters covered on cross examination." La. C.E. art. 611(E) states that the State in a criminal prosecution shall have the right to rebut evidence adduced by their opponents.
Louisiana courts routinely reject assignments of errors on appeal concerning instances where trial courts have allowed the State to question witnesses as to matters it otherwise would not have been permitted to delve into, holding that respective defense counsel "opened the door" to such questioning. See State v. Manning, 2003-1982, p. 59 (La. 10/19/04), 885 So. 2d 1044, 1097 (defense "opened the door" to State bringing up at sentencing hearing otherwise prohibited evidence of the defendant's other crimes when cross examining a witness whose report contained that other crimes information and which report the defendant had introduced in evidence—citing, inter alia, then Comment (c) to La. C.E. art. 607 ("new evidence code does not change the traditional policy, based on waiver and fair play, permitting freer admissibility of extrinsic evidence after an adverse party has "opened the door" to otherwise inadmissible evidence)"); State v. Taylor, 2001-1638, pp. 17-18 (La. 1/14/03), 838 So. 2d 729, 745-746 (defense counsel's opening statement comment that the defendant had no previous knowledge of how to use firearms "opened the door" to the State's cross examination of the defendant regarding his alleged gun ownership—what the defendant argued was impermissible other crimes evidence); State v. Robinson, 2009-1137, pp. 7-8 (La. App. 4 Cir. 3/24/10), 33 So. 3d 1019, 1023 (defense counsel's questioning of his own witness concerning the defendant's good deeds "opened the door" for the State to ask the witness if she knew of the defendant's prior criminal convictions, citing La. C.E. art. 611 and State v. Koon, 96-1208, p. 25 (La. 5/20/97), 704 So. 2d 756, 771-772 ("The State has the right to rebut testimony elicited from a witness by the defense.") ); State v. Lagarde, 2003-0606, p. 17 (La. App. 4 Cir. 12/10/03), 861 So. 2d 871, 882 (defense "opened the door" to State's cross examination of its expert witnesses as to the defendant's failure to request DNA testing of evidence, where the defense had questioned why DNA testing had not been performed on the evidence—"the questions were posed to rebut the implication of the state being sloppy in failing to request such DNA testing.").
Similarly, in the instant case, the trial court properly permitted the State to question B.A.1 on redirect examination about defendant's molestation of her to rebut evidence defense counsel obtained from her cross examination that inferred that defendant had never molested her. Our review of the record does not support defendant's claim that the State improperly misled defense counsel or set a trap for him so that it could introduce this "unnoticed" sexually assaultive/lustful disposition testimony from B.A.1.
Defendant also presents no legal argument to support his contention that the trial court erred in denying his motion for mistrial. The record shows only that defense counsel asked for a recess and requested any reports, documentation, tape recordings, etc. pertaining to B.A.1, "so we can be prepared, without any time, to cross examine her." The trial court allowed the trial to continue after the State indicated that it did not have any such records and subsequently, denied defendant's motion for a mistrial. Defendant cites no evidence in the record to show that the State had any report, documentation, tape recordings, etc. pertaining to B.A.1's molestation allegations. Instead, the record reflects that defense counsel thoroughly cross examined B.A.1 as to her allegations of molestation by defendant. Additionally, in its case in chief, the defense called Ed Bolger, who testified that defendant was incarcerated in 2001 and that defendant was in his custody in a federal "halfway house" from October 15, 2004, with an anticipated release date of February 14, 2005. Hence, the jury had Bolger's testimony before it to decide if his testimony undermined B.A.1's timeline as to when she witnessed defendant engage in inappropriate acts with her sister, B.A.2., in 2004, as well as B.A.1's credibility in general.
Therefore, when we review all the facts and evidence presented, defendant fails to demonstrate substantial prejudice to his defense counsel's ability to provide an adequate defense after the trial court allowed the trial to continue, permitted the State to question B.A.1 about her molestation claims, and denied defendant's request for a mistrial.
Accordingly, we find no merit to defendant's claim that the trial court erred in allowing testimonial evidence of other crimes to be introduced at trial.
CONCLUSION
For the foregoing reasons, defendant's convictions and the sentences imposed for his convictions on Count One-aggravated rape of an individual under the age of thirteen and Count Three-forcible rape are affirmed. However, we vacate the ninety-nine year sentence imposed for his conviction on Count Two- sexual battery, and remand for resentencing consistent with the opinion expressed herein.
CONVICTIONS AFFIRMED;
SENTENCES AFFIRMED IN
PART; VACATED IN PART; AND
REMANDED