Opinion
NO. 2015 KA 0540
11-09-2015
STATE OF LOUISIANA v. CHRISTOPHER WARREN PROSPERIE
Joseph L. Waitz, Jr. District Attorney Marian M. Hamilton Assistant District Attorney Houma, LA Attorneys for Plaintiff-Appellee, State of Louisiana Bertha M. Hillman Thibodaux, LA Attorney for Defendant-Appellant, Christopher Warren Prosperie
NOT DESIGNATED FOR PUBLICATION On Appeal from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Trial Court No. 655,585
Honorable George J. Larke, Jr., Judge Presiding Joseph L. Waitz, Jr.
District Attorney
Marian M. Hamilton
Assistant District Attorney
Houma, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Bertha M. Hillman
Thibodaux, LA
Attorney for Defendant-Appellant,
Christopher Warren Prosperie
BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. HIGGINBOTHAM, J.
The defendant, Christopher Warren Prosperie, was charged by grand jury indictment with aggravated rape (victim under the age of thirteen), a violation of La. R.S. 14:42. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error. We affirm the conviction and sentence.
FACTS
In January of 2013, four-year-old K.R. informed her mother that the defendant, K.R.'s step-grandfather, stuck his penis in her mouth and tried to put his penis in her vagina. K.R. was brought to the Children's Advocacy Center (CAC) about three weeks later, where she gave a recorded statement about the incident. According to K.R.'s CAC interview and her testimony at trial, when K.R. was at the defendant's house in his bedroom, he put his penis in her vagina and it "hurt." He also put his penis in her mouth and "booty." The defendant was interviewed by Detective Lieutenant Jerry Bergeron, with the Terrebonne Parish Sheriff's Office. In this videotaped confession, the defendant said that on January 17, 2013, K.R. was at his house, and that he had been drinking straight Wild Turkey that day. The defendant stated that he rubbed and licked K.R.'s vagina, and he stuck his penis in her mouth and told her to suck it. The defendant further stated that he rubbed his penis on her "butt" and vagina, but he could not remember if he penetrated her. The defendant did not testify at trial.
Victims are referred to only by their initials. See La. R.S. 46:1844(W). --------
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that the trial court erred in allowing other crimes evidence. Specifically, the defendant contends that evidence of sexual offenses that occurred over twenty years ago when the defendant was a minor should not have been admissible at trial.
Prior to trial, the State filed notice of intent to introduce evidence of other crimes or bad acts pursuant to La. Code Evid. art. 412.2. Defense counsel filed a motion in limine to exclude the Article 412.2 evidence. Following voir dire but prior to opening statements, the trial court took up the motion in limine. No witnesses were called. Defense counsel argued that the testimony of D.K., the defendant's younger sister who was now an adult, should not be allowed to testify at trial because both she and the defendant were minors when the incidents occurred; and had charges been brought at that time, the juvenile records would have been sealed. Thus, according to defense counsel, since no allegations were brought forward at the time, they should not be allowed in now. The prosecutor responded that Article 412.2 was written broadly to include more than convictions. Further, according to the prosecutor, the defendant committed these sexual assaults against his sister when he was both a juvenile and an adult, that is, from the ages of fourteen years old to nineteen years old. In denying the motion in limine, the trial court stated:
Well, they're wrongs or actions of sex offense.
The Court's going to find under Article 412.2 that the, the actions indicate a lustful disposition towards children and may be, and are, and will be allowed to be admissible in this court and that it's relevant and not subject to any grounds of prejudice, confusion, or wasted time under Article 403 of the Code of Criminal Procedure and the Court will allow the information, allow the testimony to be taken.
At trial, D.K. testified that she and her brother, the defendant, grew up in the same house in Broadmoor. The defendant was about seven years and nine months older than D.K. According to D.K., the defendant started molesting her when she was six years old, and continued the abuse until she was almost thirteen years old. On many occasions in and around the house - the loft above the attic, the den, the bathroom - the defendant would rub his penis between her legs or on her vagina until he ejaculated; he also had her stroke his penis with her hand. On one occasion on the side of the house, he forced her to perform oral sex on him. D.K. testified that the defendant never penetrated her.
The defendant argues in brief that the other crimes evidence should not have been allowed because the twenty-year-old accusations were more prejudicial than probative. Further, according to the defendant, the error of allowing the evidence was not harmless because the only other evidence the State presented was the uncorroborated testimony of K.R., which was improperly bolstered by D.K.'s testimony.
Louisiana Code of Evidence article 404(B)(1) provides:
Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Generally, evidence of criminal offenses other than the offense being tried is inadmissible as substantive evidence because of the substantial risk of grave prejudice to the defendant. In order to avoid the unfair inference that a defendant committed a particular crime simply because he is a person of criminal character, other crimes evidence is inadmissible unless it has an independent relevancy besides simply showing a criminal disposition. State v. Lockett, 99-0917 (La. App. 1st Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 2000-1261 (La. 3/9/01), 786 So.2d 115. The trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. See State v. Galliano, 2002-2849 (La. 1/10/03), 839 So.2d 932, 934 (per curiam).
Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible except as otherwise provided by positive law. Evidence which is not relevant is not admissible. La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
La. Code Evid. art. 412.2 provides:
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. Code Evid. art. 412.2 was a legislative response to earlier decisions from the Louisiana Supreme Court refusing to recognize a "lustful disposition" exception to the prohibition of other crimes evidence under La. Code Evid. art. 404. State v. Buckenberger, 2007-1422 (La. App. 1st Cir. 2/8/08), 984 So.2d 751, 757, writ denied, 2008-0877 (La. 11/21/08), 996 So.2d 1104. Ultimately, questions of relevancy and admissibility of evidence are discretion calls for the trial court. Such determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. See State v. Mosby, 595 So.2d 1135, 1139 (La. 1992); State v. Olivieri, 2003-563 (La. App. 5th Cir. 10/28/03), 860 So.2d 207, 218.
We find no abuse of discretion in the trial court's ruling allowing the introduction of D.K.'s testimony at trial. The sexual crimes against K.R. and D.K. occurred when they were both very young. In D.K.'s case, the sexual abuse continued over several years seemingly because she told no one about what the defendant was doing to her, whereas K.R.'s outcry came shortly after the defendant's abuse of her. In both cases, the defendant molested his victim and had or attempted to have sexual or oral intercourse with her. Also in both cases, the defendant was related (by blood or marriage) to his younger female victims, and used that familiarity or position of authority to take advantage of them.
The defendant argues in his brief that D.K.'s testimony should not have been allowed because charges were never filed and he was never adjudicated. Similarly, in his motion in limine, the defendant argued he was never "prosecuted as a juvenile" and "it stands to reason that if juvenile adjudications of delinquency are not admissible than neither should mere accusations" as they are less credible and reliable. According to D.K., the defendant molested her for over six years. Since the defendant began molesting her when he was thirteen years old, he was an adult (eighteen and nineteen years old) for two years of the molestation. Moreover, unadjudicated offenses committed by a defendant when he was a juvenile are admissible under 412.2. In State v. George, 2011-0325 (La. 2/23/11); 55 So.3d 788 (per curiam) the trial court ruled that the defendant's prior unadjudicated act of attempted forcible rape committed when he was fifteen years old, while highly probative in the defendant's forcible rape trial by revealing his modus operandi and lustful disposition, such evidence was inadmissible because of its prejudicial nature. The supreme court reversed the trial court's ruling and held that the introduction of evidence of unadjudicated juvenile offenses is allowed under both La. Code Evid. arts. 404(B) and 412.2. See also State v. Kiger, 2013-69 (La. App. 5th Cir. 10/30/13), 128 So.3d 552, 557-59.
Evidence of a prior sexual offense indicating that the defendant has a lustful disposition toward young females is admissible if it is relevant and if the probative value of the evidence outweighs its prejudicial effect. See State v. Williams, 2009-48 (La. App. 5th Cir. 10/27/09), 28 So.3d 357, 364, writ denied, 2009-2565 (La. 5/7/10), 34 So.3d 860. See also State v. Fisher, 2009-1187 (La. App. 4th Cir. 5/18/10), 40 So.3d 1020, 1026-27. Accordingly, we find no abuse of discretion in the trial court's finding that the other crimes evidence involving the defendant's sister was admissible under La. Code Evid. art. 412.2 to prove the defendant's lustful disposition toward young females. Further, the probative value of the evidence was not outweighed by the danger of unfair prejudice under La. Code Evid. art. 403. See State v. Verret, 2006-1337 (La. App. 1st Cir. 3/23/07), 960 So.2d 208, 220-22, writ denied, 2007-0830 (La. 11/16/07), 967 So.2d 520. See also State v. Johnson, 43,843 (La. App. 2nd Cir. 1/28/09), 2 So.3d 606, 614-16, writ denied, 2009-0464 (La. 11/6/09), 21 So.3d 300; State v. E.J.F., 2008-674 (La. App. 3rd Cir. 12/10/08), 999 So.2d 224, 230-31.
The assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.