Opinion
No. 2010 KA 1074.
December 22, 2010.
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF WEST BATON ROUGE, STATE OF LOUISIANA TRIAL COURT NUMBER 070665 HONORABLE J. ROBIN FREE, JUDGE PRESIDING.
Richard J. Ward, Jr., Port Allen, LA, Elizabeth A. Engolio, Plaquemine, LA, Counsel for Appellee, State of Louisiana.
Prentice L. White, Baton Rouge, LA, Counsel for Defendant/Appellant, Rickey A. Reaux.
BEFORE: WHIPPLE, McDONALD, AND McCLENDON, JJ.
The defendant, Rickey A. Reaux, was charged by grand jury indictment with one count of forcible rape, a violation of LSA-R.S. 14:42.1, and pled not guilty. Following a jury trial, he was found guilty of the responsive offense of simple rape, a violation of LSA-R.S. 14:43. He filed a motion for a new trial and for a post-verdict judgment of acquittal, but the motion was denied. He was sentenced to twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals, contending the evidence was insufficient to support the conviction. For the following reasons, we affirm the conviction and sentence.
FACTS
The defendant is the biological father of J. H., the victim. The victim was born out of wedlock, and the defendant supported her and her mother for only three or four months, before abandoning them and commencing a relationship with another woman.
The victim is referenced herein only by her initials. See LSA-R.S. 46:1844(W).
In 2004, when the victim was approximately sixteen years old, the defendant contacted her through his son, and subsequently began meeting with her and giving her money and gifts without her mother's knowledge. Shortly before August 26, 2006, the victim and her mother quarreled, and the victim went to stay with the defendant at his home in Port Allen.
On the evening of August 25, 2006, the victim went with the defendant and Rebecca Gomez, his ex-girlfriend, to Chuck's (a local bar) to celebrate Gomez's birthday. The victim developed a migraine headache while at Chuck's and asked the defendant to take her back to his home. The defendant drove the victim to his home after stopping at another bar and at a Jack-In-The-Box restaurant. At the defendant's home, the victim took some Advil Cold and Sinus medicine and went to bed. She indicated all she drank that evening was a couple of sips of a screwdriver and one beer.
According to the victim, before she fell asleep, the defendant came into her room and got on her bed. The victim asked the defendant what he was doing and where he was going to sleep, and he replied, "oh, I'm sleeping in my bed." She later recalled that she thought she saw the defendant leave her room before she fell asleep. However, she was subsequently awakened by "a pain in [her] butt," and the defendant holding her legs open and performing oral sex on her. She stated she felt the defendant's mouth touching her genitals. Her underwear and pajama pants/shorts had been removed. The victim "freaked out," but the defendant climbed on top of her and held her down while she tried to fight him, told him to get off of her, told him to leave her alone, and told him he was "f — — sick." She indicated the defendant "stuck his dick in [her]," and she struggled to get it out of her. She saw and felt the defendant's penis. She eventually pushed the defendant away, grabbed her pants, and told the defendant to "just get out." She indicated the defendant left her room, claiming he was sorry. She locked her door, and the defendant stated, "It's okay, baby, I'm your daddy." The victim called her friend, "Cindy," who was familiar with the area where the defendant's home was located, and asked her to come and get her.
The victim denied she argued with her mother about a social security claim filed by the defendant against her mother. She conceded she did not report the alleged rape to the first police officer she encountered, but indicated he only asked if she was okay, and she told him she just wanted to "to get out of here."
West Baton Rouge Parish Sheriff's Office Sergeant Kenneth Pitre was the first police officer to arrive at the defendant's house on August 26, 2006. The victim did not complain that she had been raped, but was crying, "looked like she was scared to death[,]" and "barely said anything." Sergeant Pitre turned the victim over to Sergeant Thibodeaux for interviewing.
West Baton Rouge Parish Sheriff's Office Sergeant Kirby Joseph Thibodeaux, Jr. testified that when he talked to the victim on August 26, 2006, she told him she was awakened at approximately 3:00 a.m. by the defendant having oral sex with her. She indicated she told the defendant to stop, but he held her down and forced his penis into her vagina. She indicated the defendant stated, "baby, it's okay, I'm your dad[,]" and she told him to get out. Sergeant Thibodeaux indicated the victim was embarrassed by what had happened to her.
West Baton Rouge Parish Sheriff's Office Detective Keith Kibby spoke to the victim on August 26, 2006, at approximately 6:35 a.m. The victim indicated she began staying with her father because she had argued with her mother. She indicated that she was not feeling well before she went to sleep and so she took some Advil Cold and Sinus medicine. She indicated she was awakened by a pain in her "butt" and her father performing oral sex on her. The victim stated she told the defendant to stop and tried to push him away, but he climbed on top of her, put his body weight on her, held her down, and started to insert his penis into her.
Dr. Rodney William Tregle, Jr. examined the victim on August 26, 2006, at 9:05 a.m. She was visibly shaken and very fearful. She indicated her father had anally penetrated her with something, had vaginally penetrated her with his penis, and had orally contacted her breasts and vagina. She had fresh bruises on her arms and chest. There was no sign of injury to her anus or vagina. Dr. Tregle indicated, however, the lack of injury to the victim's anus and vagina did not necessarily discredit her claim of rape because she was a full-grown adult female who had previously had vaginal, anal, and oral sexual intercourse.
When the victim spoke to Major Johnson approximately a month prior to trial, she claimed the defendant had not put his penis in her vagina. At trial, she explained she altered her account of the incident because it was too difficult to discuss what the defendant had done to her.
Louisiana State Police Crime Lab DNA Analyst Alyson Saadi testified her laboratory examined the rape kit taken from the victim. The lab found insufficient DNA to prepare a profile. There was absolutely no DNA in the vaginal washings. Saadi indicated, however, "If there's just a little bit of DNA in that area and someone urinates then you're washing some of that DNA away, or if you wipe the area, you're wiping it away." Two kits were used for the reagents at the copying stage of DNA analysis. One of the kits detected a gender marker for a male in the rectal swab, and one of the kits failed to detect the marker. The lab could reach no conclusions from the samples that were rendered.
Orchid Cellmark Laboratory Director Dr. Rick Staub was accepted by the court as an expert in the field of genetic forensic testing. His laboratory examined specimens from the victim's rape kit to look for male DNA, but detected no male DNA whatsoever. Dr. Staub found "it a little perplexing that no one was able to obtain [the defendant's] profile from any of those samples." He explained that the absence of the defendant's profile could indicate either that he committed the act, but left too little DNA to profile, or that the crime did not occur as alleged.
SUFFICIENCY OF THE EVIDENCE
In his sole assignment of error, the defendant argues the evidence was insufficient to support the conviction because the physical evidence did not support the victim's claim of rape, because she changed her account of whether or not he penetrated her with his penis, and because it was possible she was under the influence of alcohol and antihistamines at the time of the alleged rape.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove, in order to convict," every reasonable hypothesis of innocence is excluded. State v. Wright, 98-0601, p. 2 (La. App. 1st Cir. 2/19/99), 730 So. 2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So. 2d 1157, 2000-0895 (La. 11/17/00), 773 So. 2d 732 (quoting LSAR.S. 15:438).
When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So. 2d at 487.
As pertinent here, rape "is the act of anal, oral, or vaginal sexual intercourse with a . . . female person committed without the person's lawful consent." LSA-R.S. 14:41(A). "Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." LSA-R.S. 14:41(B). Oral sexual intercourse means the touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender. LSA-R.S. 14:41(C)(1). Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because "the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity." LSA-R.S. 14:43(A)(1).
After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of simple rape and the defendant's identity as the perpetrator of that offense against the victim. The verdict rendered against the defendant indicates the jury accepted the victim's testimony that the defendant raped her while she slept after taking medicine and rejected the defense theory that the victim's account was "an unfounded sexual assault accusation." When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So. 2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So. 2d 126 (La. 1987). No such hypothesis exists in the instant case. Moreover, on review, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. The testimony of the victim alone is sufficient to prove the elements of the offense, as the trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Lofton, 96-1429, p. 5 (La. App. 1st Cir. 3/27/97), 691 So. 2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So. 2d 1331.
Additionally, in reviewing the evidence, we cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 2006-0207, p. 14 (La. 11/29/06), 946 So. 2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So. 3d 417, 418 (per curiam).
We also note the defendant's conviction would be affirmed even if it were deemed to be a "compromise verdict." In State ex rel. Elaire v. Blackburn, 424 So. 2d 246, 251 (La. 1982), cert denied, 461 U.S. 959, 103 S. Ct. 2432, 77 L. Ed. 2d 1318 (1983), the Louisiana Supreme Court recognized the legitimacy of a "compromise verdict," i.e., a legislatively approved responsive verdict which does not fit the evidence, but which (for whatever reason) the jurors deem to be fair, as long as the evidence is sufficient to sustain a conviction for the charged offense. If a defendant timely objects to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict, the court overrules the objection, and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict. However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury. See State ex rel. Elaire, 424 So. 2d at 251.
In his brief to this court, the defendant argues both that the "evidence did not support the indictment" and "for this jury to convict [the defendant] of simple rape without more definitive proof that he had unconsenual [sic] sexual intercourse with [the victim] is reversible error." He also argues "the jury wanted to convict [the defendant] of something[.]" The trial court charged the jury on the responsive offense of simple rape without a timely defense objection.
Forcible rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because "the victim is prevented from resisting the act by force[.]" LSA-R.S. 14:42.1(A)(1). The victim testified the defendant held her down and "stuck his dick in [her]," while she tried to fight him. Accordingly, the evidence was also sufficient to convict the defendant of forcible rape.
This assignment of error is without merit.
REVIEW FOR ERROR
The defendant requests that this court examine the record for error under LSA-C.Cr.P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under LSA-C.Cr.P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514, pp. 18-22 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So. 2d 1277.