Opinion
2015 KA 1518
04-15-2016
STATE OF LOUISIANA v. J. D. THOMPSON, III
Warren Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana Cynthia Meyer New Orleans, Louisiana Counsel for Defendant - Appellant J. D. Thompson, III
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT
NUMBER 14 CR8 124255, DIVISION G, PARISH OF WASHINGTON
STATE OF LOUISIANA HONORABLE RICHRD SCHWARTZ, JUDGE Warren Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Counsel for Appellee
State of Louisiana Cynthia Meyer
New Orleans, Louisiana Counsel for Defendant - Appellant
J. D. Thompson, III BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: CONVICTIONS AND SENTENCES AFFIRMED.
CHUTZ, J.
Defendant, J.D. Thompson, III, was charged by bill of information with one count of aggravated incest, a violation of La. R.S. 14:78.1 (count one), one count of sexual battery (victim under 13), a violation of La. R.S. 14:43.1(C)(2) (count two), and one count of sexual battery (victim over 13), a violation of La. R.S. 14:43.1(C)(1) (count three). He pled not guilty. Following a jury trial, defendant was found guilty as charged on counts one and three, and guilty of the responsive offense of attempted sexual battery, a violation of La. R.S. 14:27 and 14:43.1, on count two. Defendant filed motions for new trial and postverdict judgment of acquittal, which the trial court denied. On count one, the trial court sentenced defendant to fifty years at hard labor, without benefit of parole, probation, or suspension of sentence; on the responsive verdict under count two, the trial court sentenced defendant to twenty-five years at hard labor; on count three, the trial court sentenced defendant to ten years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court ordered all of these sentences to run concurrently with each other. The trial court also denied defendant's motion to reconsider sentence. Defendant now appeals, alleging three assignments of error. For the following reasons, we affirm all of defendant's convictions and sentences.
By enacting 2014 La. Acts, Nos. 177, § 2 & 602, § 7, the Louisiana Legislature has since repealed La. R.S. 14:78.1 and included its provisions in the amended aggravated crime against nature statute. See La. 14:89.1(A)(2)(a). Nonetheless, this repeal and amendment does not relieve any person convicted of aggravated incest from any requirement, obligation, or consequence imposed by law resulting from that conviction. See La. R.S. 14:89.1(E).
FACTS
On October 21, 2013, T.M. (the victim) reported to her school counselor that she had been molested by defendant, her grandfather by marriage. Several days later, T.M. spoke with Jo Beth Rickels, a forensic interviewer with the Children's Advocacy Center (CAC) for St. Tammany and Washington Parishes. In the forensic interview, T.M. described two distinct instances of inappropriate conduct involving defendant.
In accordance with La. R.S. 46:1844(W), the victim herein is referred to only by her initials or as "the victim."
T.M.'s date of birth is January 10, 1999, and defendant's date of birth is January 6, 1966. --------
According to T.M., the first incident occurred approximately three years before the forensic interview (approximately around October 2010), at her grandmother's trailer in Franklinton. On this occasion, T.M.'s grandmother (with whom she occasionally lived) was at work. Defendant came into a bedroom where T.M. was watching television, and he started to touch her body and kiss her. Defendant then exposed himself and asked T.M. to bend over, but she declined to do so. T.M. stated that she reported this incident to some members of her family, including her aunt, grandmother, and mother, but she was told not to tell anyone else.
T.M. also described an incident that occurred in August 2013. This incident also took place at her grandmother's trailer. T.M. stated that she walked back to the trailer from a family gathering in order to bathe and use the Internet. Defendant entered the trailer's bathroom while T.M. was seated on the toilet and began a conversation about giving her money for the school fair. T.M. stood up and attempted to put on her clothes, but defendant maneuvered her against the bathroom counter and placed his finger inside her vagina. According to T.M., defendant asked to have sex with her, but she refused. Defendant eventually stopped touching T.M. when T.M.'s brother entered the trailer.
T.M. testified at trial, largely confirming the information that she conveyed in her CAC interview. With respect to the first incident, T.M. stated that defendant's hands touched her breasts over her clothes, and he kissed her on the lips. She stated that his hands did not touch her anywhere else. T.M. further described that when defendant told her to bend over, he stated that it "wasn't going to hurt," and she noticed his penis was erect. In additional testimony about the incident, T.M. stated that defendant gave her money in exchange for her not telling anyone. She also testified that defendant exposed his penis to her that time, but through his pants.
SUFFICIENCY OF EVIDENCE
When issues are raised on appeal as to both sufficiency of evidence and other trial errors, the appellate court should first review the sufficiency of the evidence. State v. Hearold , 603 So.2d 731, 734 (La. 1992). In his second assignment of error, defendant contends that the evidence presented at trial was insufficient to support his conviction for attempted sexual battery under count two. Defendant argues that the record is devoid of any evidence that he attempted to touch the genitals or anus of T.M. or attempted to have her touch his genitals or anus during the period specified in the bill of information (between July 1, 2010 and January 10, 2012).
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. C.Cr.P. art. 821(B); State v. Ordodi , 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall , 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that 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 & 2000-0895 (La. 11/17/00), 773 So.2d 732.
As applicable here, sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or part of the body of the offender, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim when the offender acts without the consent of the victim, or when the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender. See La. R.S. 14:43.1(A)(1) & (2) (prior to amendment by 2015 La. Acts, No. 256, § 1).
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27(A). An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27(C).
In the instant case, defendant challenges the sufficiency of the evidence related to his conviction of attempted sexual battery on count two only. This conviction stems from the first of the two incidents described by T.M. in her CAC interview and at trial.
We first note that defendant is correct in his assertion that the record does not contain any evidence that, during the first incident, he touched the genitals or anus of T.M. or that he had T.M. touch his genitals or anus. As T.M. described the incident in her CAC interview and at trial, defendant entered a bedroom where she was watching television, and he kissed her and touched her breasts over her clothing. Defendant did not touch T.M.'s vagina or anus during this incident, nor did he cause T.M. to touch his penis or anus. As a result, there is insufficient proof of a completed sexual battery stemming from this first incident, eliminating the possibility of a compromise verdict. See 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).
We must now determine whether the facts and circumstances support the jury's ultimate conclusion that defendant committed an act for the purpose of and tending directly toward the accomplishing of a sexual battery while having the specific intent to commit a crime. See La. R.S. 14:27(A) & 14:43.1(A)(1) & (2) (prior to 2015 amendment). T.M. described in her CAC interview and at trial that, in addition to kissing her and fondling her breasts on the occasion in question, defendant also exposed himself to her and told her to bend over. According to T.M., defendant's penis was erect and he told her that "it wasn't going to hurt." When T.M. refused to comply, defendant apparently did not press the issue further, perhaps because he needed to leave the residence to pick up T.M.'s grandmother from work or because others were present in other parts of the trailer.
Viewed in the light most favorable to the state, the evidence at trial indicates that during the incident in question, defendant kissed T.M., fondled her breasts, exposed himself to her, and directed her to bend over (while simultaneously telling her it would not hurt). Based on these facts, the jury concluded that defendant's actions evinced both a specific intent and an attempt to commit sexual battery. We cannot say that the jury's determination was irrational under the facts and circumstances presented to it. Ordodi , 946 So.2d at 662. The evidence presented at trial was sufficient to support the jury's verdict on count two.
This assignment of error is without merit.
DOUBLE JEOPARDY
In his first assignment of error, defendant contends that his prosecution for both aggravated incest and sexual battery in counts one and two, based on the same incident, violated the prohibition against double jeopardy under the federal and state constitutions.
The Double Jeopardy Clause of the federal and state constitutions not only prohibits successive trials for the same offense, but also protects against multiple punishments for the same offense. See U.S. Const. amend. V; La. Const. art. I, § 15; La. C.Cr.P. art. 591; State v. Murray , 2000-1258 (La. 9/18/01), 799 So.2d 453, 454-55 (per curiam). Defendant was subjected to only one trial, so he does not contend that his right to be free from multiple trials for the same offense has been violated. Rather, he invokes the Double Jeopardy Clause's protection against multiple punishments for the same offense.
In determining whether two offenses constitute the "same offense" for double jeopardy purposes, Louisiana courts have applied two different standards: the "same elements" test, see Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and the "same evidence" test. City of Baton Rouge v. Ross , 94-0695 (La. 4/28/95), 654 So.2d 1311, 1322. The Blockburger "same elements" test requires a comparison of the elements of the statutes under which a defendant is charged. After the statutory elements are compared, if each statute requires proof of an additional fact which the other does not, then those statutes do not define the same offense for double jeopardy purposes. Ross , 654 So.2d at 1323; see Blockburger , 284 U.S. at 304, 52 S.Ct. at 182. The "same evidence" test focuses upon the actual physical and testimonial evidence necessary to secure a conviction. Ross , 654 So.2d at 1322. Under this test, if the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy. Ross , 654 So.2d at 1322; State v. Steele , 387 So.2d 1175, 1177 (La. 1980). The court's concern is with the "evidential focus" of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence presented satisfies the prosecution's burden of proof. Ross , 654 So.2d at 1322; State v. Miller , 571 So.2d 603, 606 (La. 1990).
As the Second Circuit noted in State v. Redfearn , 44,709 (La. App. 2d Cir. 9/23/09), 22 So.3d 1078, 1091, writ denied, 2009-2206 (La. 4/9/10), 31 So.3d 381, sexual battery requires proof of an additional fact that aggravated incest does not, and vice versa. Sexual battery requires that the offender touch the victim on the anus or genitals, or the victim touch the offender on the anus or genitals. See La. R.S. 14:43.1(A) (prior to amendment). This element is not required for aggravated incest. Aggravated incest requires proof that the defendant had a familial relationship with the victim. See La. R.S. 14:78.1(A) (prior to repeal). In addition, aggravated incest prohibits any lewd fondling or touching of the person of 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. See La. R.S. 14:78.1(B)(2) (prior to repeal). These elements are not required for sexual battery. Therefore, a single prosecution for aggravated incest and sexual battery (and a separate conviction for each aggravated incest and attempted sexual battery) does not constitute double jeopardy under Blockburger.
Likewise, applying the same evidence test, we conclude that the State did not rely upon the same evidence to satisfy its burden of proof for both convictions. The evidence demonstrated that defendant kissed T.M., fondled her breasts, exposed himself to her, and directed her to bend over (while simultaneously telling her it would not hurt). To prove aggravated incest, the State relied upon the evidence that defendant was T.M.'s grandfather by marriage and that he kissed her and fondled her breasts, thereby lewdly fondling and touching her with the intent to arouse or satisfy the sexual desires of himself, T.M., or both. To prove attempted sexual battery, the State relied more upon the circumstantial nature of defendant's actions in exposing his penis, instructing T.M. to bend over, and telling her that it would not hurt. In fact, without more, the evidence relied upon by the State to prove aggravated incest likely would have been insufficient to prove attempted sexual battery. Therefore, the same evidence could not have supported both convictions.
This assignment of error is without merit.
RIGHT TO PRESENT A DEFENSE
In his final assignment of error, defendant asserts that the trial court improperly excluded testimony, thereby hindering his right to present a defense. Specifically, defendant intended to introduce evidence that the victim had threatened to call the police and tell them that three men (acquaintances or boyfriends of her mother) had sexually assaulted her. The trial court refused to allow this evidence to be presented to the jury.
In a prosecution for sexually assaultive behavior, La. C.E. art. 412 prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. "Past sexual behavior" is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. La. C.E. art. 412(F). If a defendant wishes to offer evidence of past sexual behavior pursuant to one of the exceptions, he must file a motion stating his intent to do so. La. C.E. art. 412(C). The trial court must then hold a closed hearing to determine whether the offered evidence is admissible. La. C.E. art. 412(E).
Alternatively, the Louisiana Supreme Court has held that a defendant may present evidence that a victim made prior false allegations regarding sexual activity for impeachment purposes pursuant to La. C.E. art. 607(C). State v. Smith , 98-2045 (La. 9/8/99), 743 So.2d 199. In Smith , the defendant was convicted of attempted indecent behavior with a juvenile. During trial, the defense counsel cross-examined the victim's mother's friend regarding similar accusations the victim had made against her cousin and allegedly recanted. The State thereafter moved to prevent any further such questioning in accordance with La. C.E. art. 412. After a hearing outside the jury's presence, the trial court applied Article 412 and excluded any evidence of prior false allegations. The Supreme Court held that Article 412, the "rape shield statute" that prohibits the introduction of evidence of the victim's past sexual behavior, does not preclude the introduction of evidence of the victim's prior false accusations for impeachment purposes. Smith , 743 So.2d at 202-03. The Supreme Court concluded that when a defendant seeks to introduce evidence that the victim made prior false allegations of molestation, the issue is one of credibility, and Article 412 is inapplicable. The Smith court stated:
When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based
on the evidence presented by defendant, that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied.743 So.2d at 203-04.
Thus, two requirements must exist before evidence of prior false accusations of sexual misconduct can be considered as impeachment evidence. First, the activity must be of a sexual nature. Second, there must be evidence that the statement is false. See State v. Richard , 2001-1112 (La. App. 1st Cir. 2/15/02), 812 So.2d 737, 739, writ denied, 2002-1264 (La. 11/22/02), 829 So.2d 1038. Assuming this initial burden is met, all other standards for the admissibility of evidence apply. Smith , 743 So.2d at 203.
Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor , 331 So.2d 443, 449 (La. 1976). "Relevant evidence" is evidence that has 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 without the evidence. La. C.E. art. 401. The trial judge in deciding the issue of relevancy must determine whether the evidence bears a rational connection to the fact at issue in the case. State v. Williams , 341 So.2d 370, 374 (La. 1976). Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. La. C.E. art. 402. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. See La. C.E. art. 403. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Easley , 432 So.2d 910, 912 (La. App. 1st Cir. 1983).
In the instant case, the evidence regarding T.M.'s alleged false accusations was elicited by defense counsel at trial. In cross-examining the victim, defense counsel questioned T.M. about whether she threatened to accuse them of sexually abusing her. T.M. replied that she had not.
During presentation of his case-in-chief, defendant called Shirley Marie Warren to testify. Defense counsel sought to question Ms. Warren regarding an incident that allegedly occurred in October or November of 2013, following defendant's arrest. Anticipating that Ms. Warren would testify to hearsay statements allegedly made by T.M., the trial court retired the jury and held a brief hearing to determine the admissibility of her testimony. Defense counsel explained that he intended to question Ms. Warren regarding T.M.'s alleged threat to accuse three of her mother's boyfriends of sexually assaulting her. The State argued that this proposed evidence did not fulfill the requirements of Smith , and also that with it, the defense sought to elicit information regarding a particular course of conduct, which is prohibited by La. C.E. art. 608(B). The trial court ultimately excluded this testimony, finding that the probative value on the issue of the victim's credibility was substantially outweighed by the risk of unfair prejudice in this particular case.
To the extent that defendant asserts this testimony should have been admissible as evidence of a prior false accusation under Smith , we note that defense counsel failed to present sufficient evidence at the brief hearing that the victim made a prior false accusation of sexual behavior. The victim herself denied having made such a statement during cross-examination. Ms. Warren, prior to the State's objection to her testimony, testified that T.M. came to her house and asked to use a telephone after having had a disagreement with members of her family. Ms. Warren testified outside of the presence of the jury that T.M. made a threat to call the police and report three men for sexually abusing her. However, she did not testify regarding what she believed to be the veracity of this accusation. Defense counsel later attempted to elicit similar accusations from two other witnesses, but the trial court disallowed these lines of questioning. Defense counsel did not proffer the exact nature of the proposed testimony of either of these two witnesses.
Considering the above, had the trial court made its evidentiary ruling under Smith , the only evidence it had to consider was: (1) T.M.'s own statement that she made no such allegations of sexual abuse; and (2) Ms. Warren's statement that T.M. made such a statement, but with no corroborating evidence of whether such a statement was false or not. Therefore, unlike Smith , a reasonable jury could not have found from the evidence adduced at the midtrial hearing that the victim made a prior false accusation.
The trial court's ultimate ruling excluding the evidence resulted from the finding that any probative value of the evidence was greatly outweighed by its prejudicial effect. See La. C.E. art. 403. We agree. While defense counsel also sought to introduce this evidence as a prior inconsistent statement under La. C.E. art. 607(D)(2) (in addition to arguing that it qualified as a prior false accusation of sexual abuse), the introduction of this type of evidence is subject to the balancing test used by the trial court. In this case, the State argued that Ms. Warren's name did not appear anywhere in open file discovery and that she otherwise had nothing to do with the facts of this case. Therefore, while Ms. Warren's testimony might have been probative of T.M.'s credibility, it was outweighed by the unfair prejudice to the State and the risk of confusion to the jury. See La. C.E. art. 607(D)(2).
We do note that defendant was not completely precluded from attacking T.M.'s credibility. Defense counsel questioned multiple witnesses regarding T.M.'s reputation for truthfulness and veracity in the community. All ten defense witnesses, including several of T.M.'s family members, reported that T.M.'s reputation for truthfulness and veracity in the community was "bad." Despite the weight of evidence against T.M.'s credibility, the jury still returned three guilty verdicts against defendant. Therefore, under these particular circumstances, the trial court did not err or abuse its discretion in prohibiting this line of questioning.
This assignment of error is without merit.
DECREE
For these reasons, we affirm the convictions and sentences of defendant, J.D. Thompson, III.
CONVICTIONS AND SENTENCES AFFIRMED. HOLDRIDGE, J., Concurring.
I believe that the probative value of Ms. Warren's testimony was not outweighed by unfair prejudice to the state and it was error for the trial court to exclude her testimony, as the evidence was admissible to further diminish the credibility of the victim, T.M. However, since impeachment testimony is solely admissible to question the credibility of the witness under La. Code. Evid. art. 607(D)(2), the failure to admit Ms. Warren's testimony for impeachment purposes constituted harmless error. Numerous other witnesses were allowed to testify as to the lack of credibility on the part of the victim such that the failure to allow Ms. Warren's testimony solely for impeachment purposes did not contribute to the defendant's conviction. GUIDRY, J., dissents and assigns reasons. GUIDRY, J., dissenting.
The trial court impermissibly impaired the defendant's right to present a defense by improperly excluding impeachment testimony of T.M.'s prior false allegations of sexual behavior. In this case, the defendant attempted to present testimony from Shirley Marie Warren that T.M. had threatened to call the police and tell them that three male acquaintances or boyfriends of her mother had sexually assaulted her. Implicit in Ms. Warren's testimony, which was heard outside of the jury's presence, was the inference that T.M.'s threat to call the police was stirred by a family disagreement. Nothing in Ms. Warren's proffered testimony was so inherently incredible that a reasonable juror could not have believed Ms. Warren's testimony that T.M. had made the allegation over T.M.'s denial. The trial court, however, refused to allow this evidence to be presented to the jury, finding that the probative value on the issue of T.M.'s credibility was substantially outweighed by the risk of unfair prejudice in this particular case. The trial court further disallowed questioning of two other witnesses in regards to similar accusations against T.M.
The evidence of T.M.'s purported false allegation of sexual behavior is undoubtedly relevant to the issue of her credibility. While there may have been some concerns regarding the defense's late disclosure of this evidence, or its potential to confuse the issues, these considerations were not outweighed by the potential probative value of this evidence. The evidence concerned T.M.'s credibility, upon which - because of the lack of physical evidence - the state's entire case rested. Had this evidence been admitted, the state could have countered it by cross-examining any defense witnesses who testified regarding it, and/or by calling T.M. in rebuttal. I fail to see how the evidence might have confused the jury. The alleged incident occurred after defendant's arrest, and it concerned a purported false allegation against three other parties. Thus, it was calculated to address concerns related to T.M.'s credibility. In sum, I believe the trial court abused its discretion in finding that the probative value of this evidence was outweighed by the risk of unfair prejudice.
While I recognize that the defendant presented other witnesses that impeached T.M.'s reputation for truthfulness, this additional impeachment evidence of prior false allegations of sexual behavior may have been enough to convince the jury not to convict, especially since the outcome of this case rested entirely upon the jury's perception of the victim's veracity. Consequently, I do not believe the trial court's ruling regarding the victim's prior false allegations of sexual assault can be said to be harmless. See State v. Smith, 98-2045, p. 7 (La. 9/8/99), 743 So. 2d 199, 204. As such, I would reverse the defendant's convictions, vacate the related sentences, and remand this matter for a new trial. Failing to so rule, I respectfully dissent from the judgment of this court.