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State v. Ciravola

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Aug 5, 2015
2015 KA 0032 (La. Ct. App. Aug. 5, 2015)

Opinion

2015 KA 0032

08-05-2015

STATE OF LOUISIANA v. WARREN CIRAVOLA, JR.

Walter Reed District Attorney Jay Adair Assistant District Attorney Franklinton, LA and Kathryn Landry Special Appeals Counsel Baton Rouge, LA Attorneys for Plaintiff/Appellee State of Louisiana Cynthia Meyer New Orleans, LA Attorney for Defendant/Appellant Warren Ciravola


NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana
No. 13 CR8 122104
The Honorable Scott Gardner, Judge Presiding
Walter Reed
District Attorney
Jay Adair
Assistant District Attorney
Franklinton, LA
and
Kathryn Landry
Special Appeals Counsel
Baton Rouge, LA
Attorneys for Plaintiff/Appellee
State of Louisiana
Cynthia Meyer
New Orleans, LA
Attorney for Defendant/Appellant
Warren Ciravola
BEFORE: GUIDRY, McDONALD, AND HOLDRIDGE, JJ. HOLDRIDGE, J.

The defendant, Warren C. Ciravola, Jr., was charged by grand jury indictment with aggravated incest (victim under the age of thirteen), a violation of Louisiana Revised Statutes 14:78.1 (count one), and aggravated rape (victim under the age of thirteen), a violation of Louisiana Revised Statutes 14:42A(4) (count two). He entered a plea of not guilty. At the jury trial, both the defendant and the victim, his minor daughter C.B., testified. Both consistently stated that the defendant did not commit any of the sexual acts for which he had been indicted. The victim, without reservation, denied that her father raped her. The vast majority of the evidence against the defendant and the evidence introduced to contradict the victim's testimony was hearsay evidence. With one exception, the defendant's attorney did not contemporaneously object to the hearsay testimony. Therefore, the evidence was admitted at trial, and the defendant failed to preserve the right to raise any objection to any inadmissible evidence on appeal. See La. Code Crim. Pro. art. 841 A; La. Code Evid. art. 103A(1); State v. Hernandez, 11-712 (La. App. 5th Cir. 4/10/12), 93 So.3d 615, writ denied, 2012-1142 (La. 9/28/12), 98 So.3d 834. (the defendant is precluded from raising alleged trial errors admitting hearsay testimony where his trial counsel failed to lodge a contemporaneous objection.)

We note that while the crime of aggravated incest has been repealed, that conduct is now incorporated into the crime of aggravated crime against nature. See 2014 La. Acts No. 177, §§ 1, 2 & No. 602, §§ 4, 7, effective June 12, 2014.

The indictment sets forth the victim's date of birth as July 20, 2000, and that the offenses were committed between May 1, 2012 and February 14, 2013.

After the jury trial, the defendant was found guilty as charged. The defendant filed motions for new trial and post-verdict judgment of acquittal, both of which were denied. He was sentenced on count one to fifty years with the first twenty-five years to be served without the benefit of parole, probation, or suspension of sentence. On count two, the defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The district court ordered that the sentences run consecutively. The defendant now appeals, alleging three assignments of error. For the following reasons, we affirm the defendant's convictions on both counts. We affirm the defendant's sentence on count two, amend the sentence on count one to provide that it be served at hard labor, and affirm as amended.

FACTS

In January 2013, C.B., the twelve-year-old victim, was injured during physical education class. Her mother picked her up from school and brought her to the emergency room, where they learned that she was seven to eight months pregnant. The following day, Pauline Bankston, the principal at the victim's school, spoke with the victim, and the victim stated that her baby was due in March 2013, that she hoped it was born on the defendant's birthday, and that she was going to name her baby after the defendant, her father. A few weeks later, Bankston received a report from a paraprofessional at the school that R.C., one of the victim's classmates, disclosed that she saw the victim and the defendant at a parade. According to R.C., the victim stated that the defendant was the father of the baby. Bankston reported this information to the Department of Children and Family Services ("DCFS") and the Washington Parish Rape Crisis Center.

Initials are being used to protect the identity of the minor victim and other minors involved. See La. R.S. 46:1844W.

The following month, DCFS investigator Felicia Hillhouse was notified that the victim missed an appointment with her doctor, was not stating the identity of her unborn child's father, and lived in a home that was inadequate care for a baby. Based on that information, on February 14, 2013, Hillhouse reported to the victim's school and learned that the victim had started the parish school board's homebound program. Hillhouse and Michelle Green, also with DCFS, then drove to the victim's home where she lived with her mother and the defendant. The two investigators arrived between 1:00 and 2:00 p.m., and the defendant answered the door approximately two minutes after Hillhouse initially knocked. He exited onto the steps of the home and told Hillhouse that she could not enter because he was in the process of cleaning. Hillhouse testified that the defendant was wearing an almost knee-length dark blue terrycloth robe and had an erection. As the defendant sat on the steps to speak with Hillhouse, he continually pulled his robe closed and crossed his legs. Hillhouse saw the victim peek outside of the window and asked the defendant who she was. The defendant stated that she was his daughter. When asked where his wife was, the defendant stated that she was at work. Hillhouse and the defendant talked on the porch for ten or fifteen minutes, and although she asked to enter the home four times, the defendant refused.

While talking outside, Hillhouse and the defendant discussed the victim's pregnancy. The defendant stated that the victim was never around other men, so he did not know the identity of the unborn child's father. He stated that he planned to let the police handle the situation and that the offender should be incarcerated. Hillhouse assured the defendant that whoever fathered the child would be incarcerated and opined that other criminals do not "take kindly" to inmates who have hurt or molested a child. According to Hillhouse, when she made that statement, the defendant's facial expression "dropped," and he looked at her in a completely different way before backing up, telling her to have a good day, and returning inside. After she left the victim's home, Hillhouse contacted the police who met and escorted her back to the home twenty or twenty-five minutes after the initial visit. The defendant walked outside, still wearing his robe, but did not appear to have an erection. He allowed Hillhouse to enter the home, where she observed the victim was sitting on a couch in the living room with a blanket pulled up to her waist. The victim was wearing a long white T-shirt that she stated belonged to the defendant. She was wearing a black zip-up "hoodie" over the T-shirt, and her legs were bare. After Hillhouse instructed the victim to get up and get dressed, the victim leaned down and picked up a pair of underwear from the floor beside the couch. The victim then walked through the living room with the underwear and entered the bathroom. The defendant attempted to follow the victim, but was told that he could not.

Hillhouse saw clothes piled in the victim's room as well as on both of the couches in the living room. When asked where the victim slept, the defendant stated that she slept on the couch. When it was pointed out to him that the couch was full of clothes, the defendant explained that the victim also slept in the bed with him and her mother. He also explained that the victim's bathroom was not in working condition, so she used her parents' bathroom.

Hillhouse took the victim into custody, drove her to the DCFS office in Bogalusa, and asked whether she would be surprised to hear that it was reported that she stated that the defendant was the father of her baby. According to Hillhouse, the victim had been crying prior to that question, but when that was asked, she put her head down and began sobbing. That same day, the victim was taken to a hospital in Bogalusa for a rape examination and placed with foster parent, Ada Horton, where she still resided at the time of trial. The victim did not disclose to Hillhouse the identity of the father of her unborn child.

Washington Parish Sheriff's Office Captain Tommie Sorrell took over the investigation and learned that the defendant had been identified as a suspect. Captain Sorrell met with the victim and her mother on February 15, 2013. Captain Sorrell first met with the victim's mother and informed her that she believed that DCFS interrupted the victim and the defendant engaging in sexual intercourse. When confronted with this information, the victim's mother did not show "a whole lot of emotion" but stated that she did not "want to think that this could happen." According to Captain Sorrell, the victim did not want to name the father of the baby until Captain Sorrell told the victim that Captain Sorrell believed that the victim and the defendant were having sexual intercourse when DCFS workers arrived at their home the day prior and that the defendant was the father of the victim's unborn child. After Captain Sorrell made that statement, the victim broke down, began crying, and "went into hysterics." The victim continually stated, "It's not my father's baby." The victim finally whispered in the ear of Melissa Creel, who was representing Washington Parish Rape Crisis Center, that her cousin, B.C., was the father.

B.C. was born on April 9, 1999.

Captain Sorrell asked the victim whether she understood the reproductive process and the male and female body parts. The victim indicated that she did understand and explained that she called a penis a "wheedle." She explained in a very nonchalant and childlike manner that often, just for fun, the defendant would run around naked, and she would see his "wheedle."

Captain Sorrell spoke with the victim's mother who stated that she thought the father was B.C. or B.C.'s father and that she also suspected that the defendant could be the father and had even questioned him on the matter. The defendant reported to the police station in order to give a DNA sample. While at the police station, Captain Sorrell told the defendant that his wife stated that she thought he may be the father. The defendant walked out and yelled at his wife in the station's lobby asking, "Did you tell them that you thought I fathered the baby?" Captain Sorrell witnessed the encounter and testified that the defendant yelled at his wife to the point that she and two investigators got up to make sure everyone was okay in the lobby.

The victim was interviewed by JoBeth Rickels with the Children's Advocacy Center ("CAC") on April 5, 2013. During the interview, the victim explained that the defendant was in jail because of the February 14, 2013 encounter with DCFS. She stated that the DCFS workers said she picked up a pair of underwear from the living room floor, but she actually picked up her bra and went into her parents' bathroom and put on the bra. The victim told Rickels that she retrieved the underwear in question from the bathroom and put them on. She stated that the defendant was in the bathroom before she entered, but she was unsure how his sperm, which was later discovered on the crotch area of the victim's underwear, were transferred to the underwear.

The victim was previously interviewed by Rickels on January 24, 2013, in reference to rape allegations against one of her uncles, Shane, who was incarcerated in 2005.

The victim told Rickels that the abuse by Shane occurred when she was eleven years old, and other than Shane, the only person that she had sexual intercourse with was B.C. She claimed that she had sexual intercourse with B.C. four times, all of which occurred either in her bedroom or the living room of her home. The victim stated it happened for the first time when she was eleven years old, and the last time that it happened was February 2013. She stated that she was pregnant during their last encounter, but B.C. did not know.

Rickels asked the victim about their first conversation, before the victim's baby was born and reminded her that she indicated that she thought Shane was the father. The victim admitted that that statement was a lie, but said at first, she did think Shane was the father, but after she thought back, she realized that the father was B.C. However, the victim also stated in her interview that she realized that B.C. was the father when she received the DNA results. She stated that when she received this information, she "was relieved it wasn't [the defendant], but kinda upset that it was [B.C.]." Rickels asked the victim how the defendant could be the father, and the victim responded by stating that although everyone kept saying that the defendant was the father, she knew that he was not. She told Rickels that the baby could only have been fathered by B.C. or Shane. The victim told Rickels that her father did not "do anything to her" and that he always calls her his "baby girl." She explained that all she did with her father was play PlayStation games and attend concerts and that her mother was always present.

According to Rickels, children do not always immediately disclose abuse. She explained that the type of relationship a child has with his or her perpetrator affects their willingness to disclose. Rickels explained the child may feel conflicted because although the child does not like the abuse, the perpetrator may be someone the child loves or likes to be with.

According to Captain Sorrell, the victim's accounts of her sexual encounters with B.C. were inconsistent. The first time that she spoke with the victim, the victim disclosed that B.C. raped her one time, and she could not give any additional details. In other conversations with Captain Sorrell, the victim stated that B.C. raped her four times. On the date of her CAC interview, the victim told Captain Sorrell that the incidents occurred in four different locations, but when the victim met with Rickels, although she maintained that she was raped by B.C. four times, she gave four completely different locations. Captain Sorrell interviewed B.C. who admitted having sexual intercourse with the victim. He stated that the victim always instigated the contact, and he gave the locations in the house where they had sexual intercourse and stated that it happened more than five, but less than ten times. On cross-examination, Captain Sorrell opined that the victim was socialized to think this was acceptable behavior, and when she was confronted and realized that the behavior went against the societal norm, she became embarrassed.

Louisiana State Police Crime Lab DNA analyst Andrew Ingram tested the underwear and samples collected from the victim during her sexual assault examination. He also received reference samples from the defendant, B.C., B.C.'s father, and the victim's baby. The results indicated that B.C. could not be excluded as the father of the baby. Two stains on the victim's underwear were tested. The DNA profile obtained from the epithelial fraction of Stain T-2 from the underwear was consistent with the DNA profile obtained from the reference sample of the victim, but there was insufficient DNA in the sperm fraction to produce a valid profile. With regard to Stain T-l, the DNA profile obtained from the epithelial fraction of the stain located on the victim's underwear was consistent with the DNA profile obtained from the victim, and the sperm fraction of that stain was consistent with being a mixture of DNA from two individuals, with one major and one minor contributor. The victim could not be excluded as the major contributor to the profile, and the defendant could not be excluded as the minor contributor to the profile. According to the results, both B.C. and B.C.'s father could be excluded as the minor contributor. Assuming two contributors, the deduced DNA profile was 87.5 thousand times for the Caucasian population, 426,000 times for the black population, and 757,000 times for the southwestern Hispanic population, more likely to be observed if it had originated from a mixture of DNA from the victim and the defendant than if it had originated from the victim and an unknown, unrelated individual.

Based on the disclosure by R.C. and the defendant's DNA located on the crotch area of the victim's underwear, a warrant was obtained for the defendant's arrest, and he was arrested on March 14, 2013. After the baby was born and it was determined that the defendant was not the father, the victim told Captain Sorrell that she was "relieved." When asked how she could explain the fact that the defendant's semen was located on her underwear, the victim stated that her underwear must have been left on the bathroom floor and kept repeating, "It's not my daddy's baby. I told you it wasn't my daddy's baby. I haven't had sex with my dad. He hasn't hurt me."

D.D., another child living with the victim's foster mother, testified that she had a conversation with the victim prior to the birth of the victim's baby. According to D.D., the victim was calm at first, but she started crying a little and stated that the defendant did not rape her, but that "it was given up, and that she wanted the baby to be for her dad and that she didn't think he should be prosecuted because he didn't pretty much do anything, she let it happen[.]" D.D. reported this information to her foster mother, Ada Horton. Horton testified that D.D. told her that the victim stated, "Everybody is saying that my daddy raped me, but I gave it to him." According to Horton, D.D. was very concerned. D.D. testified that after the victim found out that the defendant was not the father, she was "kind of upset." D.D. stated that the victim came in her room, began crying, and stated, "I wanted my dad to be the father, not my cousin."

At the time of trial, the victim was thirteen years old and in the eighth grade. The victim denied that her father touched her inappropriately or had sexual contact with her. However, she admitted that she told Captain Sorrell that she was "relieved" when she learned that B.C., and not the defendant, was the father of her baby. The victim admitted that she saw R.C. at a parade in February 2013, but denied telling R.C. that she was "pregnant for her dad." The victim's account of the day that she was taken into custody was slightly different than that of Hillhouse. According to the victim, while her mother was at work, she and the defendant were cleaning the house. She denied looking outside of the window while the defendant and Hillhouse spoke during Hillhouse's first visit. She testified that she was cleaning her room when DCFS returned with a police officer, and she was told to sit on the couch because she should not have been cleaning. According to the victim, her father was wearing a navy-blue ankle-length robe, and she was wearing long pants when DCFS arrived. She claimed that she was also wearing the underwear at issue and had slept in them the night before. The victim denied picking up any clothing or underwear from the living room floor when she was told to get dressed. She also claimed that she did not recall telling Rickels that she picked up a bra from the living room floor and put on her underwear in her parents' bathroom.

According to the victim's testimony, she had a conversation with her mother after she found out that she was pregnant, and her mother asked if the defendant may be the father. The victim stated that she told her mother the defendant was not the father. The victim testified that she remembers D.D. asking whether the defendant "took it from [her]" but claimed that she did not tell D.D. that she "gave it up to him." The victim denied telling D.D. that she was disappointed that the defendant was not the father. She also denied telling Captain Sorrell that the defendant would sometimes run around naked as a joke. She did not know how the defendant's sperm got on her underwear.

On cross-examination, the victim insisted that she never had sexual intercourse with the defendant, and that the defendant never touched her inappropriately. She denied telling her counselor that she had sexual contact with her dad. The victim stated that when they learned that she was pregnant, her mother asked if the defendant could be the father. She explained that she was "relieved" that the defendant was not the father, not because she thought he was the father, but because the gossip that the defendant was the father would end. She explained that the underwear that she was wearing on the day that DCFS took her into custody were the same pair she slept in the night before. She initially stated that they were clean and that she got them out of the laundry room, but then said that she may have grabbed them out of the dirty clothes basket.

After the State rested its case, the defendant recalled the victim. She explained that she told D.D. that she wanted the baby to be raised by the defendant, not that the defendant was the father of the baby, and indicating that she wished the baby was from her father, she could have meant that she wanted the defendant to raise the baby.

The defendant testified at trial. He claimed that DCFS arrived at his house around 8:00 a.m. on the day the victim was taken into custody. According to the defendant's testimony, when he opened the door, he was wearing a blue robe with boxer shorts underneath and did not have an erection. The defendant claimed that when Hillhouse returned, the victim was inside her room sitting on a beanbag chair or cleaning. He denied stating that the victim sometimes slept in his room.

The defendant claimed that the victim told him that "Bernard" was the father of the baby, and he thought she was referring to his brother, B.C.'s father. According to the defendant, his wife did not inquire whether he was the father of the victim's baby, and his wife denied making that statement to Captain Sorrell. The defendant denied yelling at his wife in the police station lobby.

The defendant denied having sexual intercourse with the victim, stating that the victim was his "baby girl," his "heart and [his] soul." When he was asked about the fact that his sperm was located on the crotch area of a pair of underwear worn by the victim on the day she was removed from the home, he agreed that the underwear belonged to the victim and gave an explanation. According to the defendant, he and his wife had sexual intercourse in their bathroom a few times, and he grabbed articles of clothing and wiped her. He stated that the underwear at issue could be the article of clothing that he grabbed in one of those instances.

SUFFICIENCY

In cases such as this one, where the defendant has raised issues on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should preliminarily determine the sufficiency of the evidence before discussing the other issues raised on appeal. When the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992). Accordingly, we will first address the defendant's second assignment of error, which challenges the sufficiency of the State's evidence. Specifically, the defendant argues that the State failed to prove beyond a reasonable doubt that he was guilty of the aggravated rape and aggravated incest of the victim.

In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the legislature in enacting Louisiana Code of Criminal Procedure article 821 (pertaining to motions for post-verdict judgment of acquittal based on insufficiency of evidence), is whether the evidence, when viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. See State v. Brown, 2003-0897 (La. 4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). The Jackson standard of review is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statute 15:438 provides that, in order to convict, the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

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. State v. Wright, 98-0601 (La. App. 1st. Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 and 2000-0895 (La. 11/17/00), 773 So.2d 732.

Rape is defined as the act of anal, oral, or vaginal sexual intercourse with a person without the person's lawful consent. La. 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. La. R.S. 14:41B. Oral sexual intercourse is defined as the intentional engaging in any of the following acts with another person: (1) the touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; (2) the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim. La. R.S. 14:41C. Aggravated rape is defined, in pertinent part, as a rape committed where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed when the victim is under the age of thirteen. La. R.S. 14:42A(4).

Louisiana Revised Statutes 14:78.1 (prior to its repeal 2014) provided, in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child....

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, . . . carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, . . . crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

At trial, Hillhouse testified that when she arrived at the defendant's home, he answered the door wearing a short robe, had an erection, and refused to let her inside. She saw the victim peeking outside of the window and was told that the defendant and the victim were the only two individuals at the house. When Hillhouse returned twenty minutes later, the defendant was still in his robe, and the victim was not wearing pants. The victim picked up a pair of underwear from the floor that were later tested, and it was determined that the defendant's sperm were on the crotch of the underwear. Rickels testified that the type of relationship a child has with the perpetrator of the sexual abuse affects whether the child will disclose abuse. Although the victim denied having any sexual activity with the defendant to state officials, testimony at trial established that she told peers that he was the father of her child and that she "gave it up to him." Further, she described herself as "relieved" when she found out the defendant was not the father of her baby. The testimony at trial established that the victim and the defendant were very close and that the victim had a strong love for the defendant.

After a thorough review of the record, we are convinced that any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found beyond a reasonable doubt, and to the exclusion of those reasonable hypotheses of innocence raised by the defendant at trial, all of the elements of aggravated rape and aggravated incest and the defendant's identity as the perpetrator of those offenses against the victim. The verdicts rendered against the defendant indicate that the jury rejected the defendant's claims of innocence and his explanation for the presence of his DNA on the victim's underwear. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984). No such hypothesis exists in the instant case. Further, the verdicts rendered indicate that the jurors believed the testimony of Hillhouse and D.D. and discounted the trial testimony of the victim and the defendant. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder's determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (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 (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 factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).

This assignment of error is without merit.

HEARSAY

The defendant argues that the district court erred by allowing hearsay testimony. Specifically, the defendant complains that the court allowed Bankston to testify as to what R.C. told her. The defendant further contends that he was denied his right to confront R.C.

During Bankston's testimony, the prosecutor asked why she contacted DCFS and the Washington Parish Rape Crisis Center in relation to the victim's pregnancy after her initial report to each agency. Bankston responded:

One of the paraprofessionals at school came to me and a student had disclosed to her that she had seen [the victim] with her dad and another man at the Bogalusa parade and [the victim] was barefoot and all of that and she talked to her. She said she asked her, "[C.B.--]".

Defense counsel objected to the comment as hearsay, and the district court sustained the objection. The prosecutor told the witness that she could not repeat what was said and proceeded to ask Bankston who the potential suspect was based on the information that she received. The defendant objected again, arguing that there was not a proper foundation. The court ruled that the "witness can state what she said" when she contacted DCFS. Bankston responded, "I contacted [DCFS] and told them that I had been given information that the [victim] had stated that [the defendant] was the father of the baby." Defense counsel did not object to Bankston's statement. By failing to enter a contemporaneous objection to the alleged erroneous admission of Bankston's testimony repeating the information given to her, the defendant failed to preserve the alleged error on appeal. See La. Code Crim. P. art. 841A and La. Code Evid. art. 103A(1). Moreover, Bankston's testimony regarding the victim's statement to R.C. was cumulative to that of Captain Sorrell, who also indicated that the victim made a similar disclosure to R.C.

As to the defendant's contention that he was denied his constitutional right of confrontation because he was unable to cross-examine R.C., we note that the defendant failed to lodge any contemporaneous objections on the grounds of a Crawford confrontation violation. As such, the defendant has waived his right to raise these issues on appeal. La. Code Crim. P. art. 841 A; La. Code Evid. art. 103A(1); see State ex rel. L.W., 2009-1898 (La. App. 1st Cir. 6/11/10), 40 So.3d 1220, 1227, writ denied, 2010-1642 (La. 9/3/10), 44 So.3d 708; State v. Young, 99-1264 (La. App. 1st Cir. 3/31/00), 764 So.2d 998, 1005. This assignment of error is without merit.

Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

EXCESSIVE SENTENCE

In his last assignment of error, the defendant contends that the district court erred in imposing excessive sentences. The defendant does not challenge the length of the individual sentences as excessive. Instead, he specifically argues that the consecutive, rather than concurrent, nature of the sentences renders them unconstitutionally excessive.

At the time of sentencing, defense counsel stated that he would like to file a motion to reconsider sentence. The court denied the motion. The written motion to reconsider sentence states, in pertinent part, the following:

1. The sentence is, on its face, constitutionally excessive;

2. The interests of Justice require a less severe sentence;
3. Defendant further adopts all reasons orally argued before the court at the time of sentencing and the ruling in State v. Dorthey, 623 So.2d 1276.

Louisiana Code of Criminal Procedure article 881.1B requires a party who files a motion to reconsider sentence to state in the motion the specific ground on which the motion is based. A party is precluded from urging on appeal any ground which was not raised in the motion to reconsider. La. Code Crim. P. art. 881.1E. Thus, the defendant's motion to reconsider the sentence, on the ground that the sentence was "constitutionally excessive", was insufficient to preserve the claim he now raises on appeal that the district court erred by imposing consecutive sentences. See State v. Riles, 2006-1039 (La. App. 1st Cir. 2/14/07), 959 So.2d 950, 955-56, writ denied, 2007-0695 (La. 11/2/07), 966 So.2d 599.

Moreover, if we were to consider this claim, we would find it baseless. The basis for the defendant's argument is that the district court abused its discretion by imposing consecutive sentences because there was no evidence that the offenses occurred over a period of time. He complains that the only evidence introduced at trial in support of that assertion was the "opinion" of Captain Sorrell that the victim "was socialized that this is acceptable behavior."

Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct. See La. Code Crim. P. art. 883. However, even if convictions arise out of a single course of conduct, consecutive sentences are not necessarily excessive; other factors must be taken into consideration in making this determination. For instance, consecutive sentences are justified when the offender poses an unusual risk to the safety of the public. See State v. Crocker, 551 So.2d 707, 715 (La. App. 1st Cir. 1989). Some other factors include the defendant's criminal history, the dangerousness of the offense, the viciousness of the crimes, the harm done to the victim, and the potential for the defendant's rehabilitation. State v. Parker, 503 So.2d 643, 646 (La. App. 4th Cir. 1987). Additional factors that may serve as justification for consecutive sentences include multiplicity of acts and lack of remorse. State v. Lewis, 430 So.2d 1286, 1290 (La. App. 1st Cir.), writ denied, 435 So.2d 433 (La. 1983). See also State v. Badeaux, 2001-406 (La. App. 5th Cir. 9/25/01), 798 So.2d 234, 241, writ denied, 2001-2965 (La. 10/14/02), 827 So.2d 414 (wherein the fifth circuit held that the district court did not abuse its discretion by imposing consecutive sentences on a defendant who was convicted of sexual battery and indecent behavior with a juvenile. Although the events therein occurred on the same day as part of a common scheme or plan, and the offenses were part of the same transaction, the district court noted the severity of the crimes, vulnerability of the child victim, and the defendant's use of his position as an adult neighbor).

Prior to imposing the defendant's sentence, the district court stated that it heard this trial and saw "the enormous amount of damage that this victim has suffered[.]" Citing Louisiana Code of Criminal Procedure article 894.1, the court found that there was an undue risk that during a period of suspended sentence or probation, the defendant would commit another crime; that the defendant was in need of correctional treatment or custodial environment that could be provided most effectively by his commitment to an institution, and that a lesser sentence would deprecate the seriousness of the offenses. The court found that the defendant knew or should have known that the victim was particularly vulnerable and incapable of resistance due to extreme youth, but he "advanced and connected." See La. Code Crim. P. art. 894.1A(1), A(2), A(3) and B(2).

Based on those findings, the district court sentenced the defendant for his aggravated incest conviction to a term of fifty years imprisonment at hard labor with the first twenty-five years to be served without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:78.1 (prior to its repeal). For his aggravated rape conviction, the defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:42. Further, the court made a specific finding that "this was one of the most egregious and worse offenses that have continued over a period of time. And for that reason, I impose the fifty-year sentence ... consecutive to that imposed in count two."

We have reviewed the district court's reasons and the entire record before us, and we find no abuse of the district court's broad sentencing discretion in imposing consecutive sentences considering the egregious nature of the offenses and amount of damage suffered by the victim. Contrary to the defendant's claim that sufficient justification is lacking, the consecutive sentences are adequately justified for these particular crimes and for this particular defendant, who abused a position of trust and responsibility to his daughter without any regard for the lifelong harm that his conduct may cause the young victim. Accordingly, this assignment of error is without merit.

SENTENCING ERROR

Whoever commits the crime of aggravated incest on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:78.1D(2) (prior to its repeal). In sentencing the defendant, the district court failed to provide that the sentence on count one was to be served at hard labor. Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, Louisiana Code of Criminal Procedure article 920(2) authorizes consideration of such an error on appeal. Further, Louisiana Code of Criminal Procedure article 882A authorizes correction by the appellate court. We find that correction of this illegally lenient sentence does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not simply amend the sentence. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. Accordingly, since a sentence at hard labor was the only legal sentence that could be imposed, on count one, we amend the sentence to fifty years imprisonment at hard labor, with the first twenty-five years to be without benefit of parole, probation, or suspension of sentence.

The minutes and commitment order reflect that the defendant was sentenced at hard labor on count 1.

An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882A. --------

CONVICTIONS ON COUNTS ONE AND TWO AFFIRMED; SENTENCE ON COUNT TWO AFFIRMED; SENTENCE ON COUNT ONE AMENDED, AND AFFIRMED AS AMENDED. McDonald, J., dissenting.

I disagree with the affirmance of the defendant's convictions, because I think there was insufficient evidence to convict him of the aggravated rape of and aggravated incest with his daughter.

First, I disagree that defense counsel failed to contemporaneously object to the erroneous admission of Pauline Bankston's testimony that she "contacted [DCFS] and told them that I had been given information that the [victim] had stated that [the defendant] was the father of the baby." After having read the trial transcript, I believe that defense counsel's earlier objection to Ms. Bankston's testimony as triple hearsay, which objection the trial court sustained, was sufficient to preserve the error for review on appeal. Ms. Bankston's statement as to what R.C. told her that the victim said at the parade was clearly inadmissible hearsay. And, according to Captain Tommie Sorrell, the Washington Parish Sheriff's Office investigator, R.C.'s statement is what led her office "to move in a certain direction" in the investigation of the case. Given the weakness of the prosecution's case, I think there is more than a reasonable possibility that this hearsay evidence contributed to the guilty verdict, and, as such, the erroneous admission of this hearsay was not harmless error. State v. Wille, 559 So.2d 1321, 1332 (La. 1990); State v. Holloway, 10-1253 (La. App. 1 Cir. 3/25/11), 2011 WL 1259806, writ denied, 11-1308 (La. 12/2/11), 76 So.3d 1176.

Next, after reviewing the testimony and report of Mr. Andrew Ingram, the State's DNA analysis expert, I am not convinced that the presence of some person's DNA (other than that of the victim) on the victim's underwear proves that the defendant was the source of the DNA. Although Mr. Ingram testified that the defendant could not be excluded as the source of the DNA, such does not prove that he was the source of the DNA. When viewed with: (1) the negative rape kit test performed on the victim shortly after she was removed from the home, where none of the defendant's DNA was found on the victim's body, and (2) the defendant's explanation that he may have retrieved the victim's underwear from the bathroom floor to clean himself after having had intercourse with his wife in the bathroom, I think the State failed to prove any inference that the DNA on the victim's underwear was that of the defendant. I also think it is a misrepresentation of the evidence for the majority to state that "it was determined that the defendant's sperm were on the crotch of the underwear."

Aside from the above, the only remaining evidence indicating defendant's guilt were: (1) the victim's statement to D.D. (a child she met at the foster home) that she was not raped by her father, but that she "gave it to him"; (2) the victim's statement to Ms. Rickels (the Children's Advocacy Center counselor) that she was "relieved" the baby was not her father's; and (3) Ms. Hillhouse's testimony (the DCFS investigator) that, when she arrived at the family home where the defendant and the victim were present, the defendant came outside with an erection and the victim was inside and had no pants on.

I think this circumstantial evidence, coupled with the victim's steadfast denial that she ever had sexual contact with her father, is an insufficient basis for the defendant's convictions; thus, I think his convictions should be reversed.


Summaries of

State v. Ciravola

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
Aug 5, 2015
2015 KA 0032 (La. Ct. App. Aug. 5, 2015)
Case details for

State v. Ciravola

Case Details

Full title:STATE OF LOUISIANA v. WARREN CIRAVOLA, JR.

Court:STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Aug 5, 2015

Citations

2015 KA 0032 (La. Ct. App. Aug. 5, 2015)

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