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State v. Bienvenu

Court of Appeals of Louisiana, Fifth Circuit

December 16, 2014

STATE OF LOUISIANA
v.
ROBERT P. BIENVENU

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 09-2075, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX ANNE M. WALLIS SHWANNAH A. MCCARTHY MYLES D. RANIER ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR PLAINTIFF/APPELLEE

APPELLEE MARTIN E. REGAN, JR. NISHA SANDHU ATTORNEYS AT LAW COUNSEL FOR DEFENDANT/APPELLANT

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg PAUL D. CONNICK, JR.

ROBERT A. CHAISSON JUDGE

Defendant, Robert P. Bienvenu, appeals his conviction and sentence for sexual battery of a child under the age of thirteen. For the reasons that follow, we affirm defendant's conviction; however, due to an error patent noted herein, we vacate his sentence and remand the matter for resentencing.

PROCEDURAL HISTORY

On October 21, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with sexual battery of a child under the age of thirteen, in violation of LSA-R.S. 14:43.1. On December 1, 2011, defendant, through counsel, entered a plea of not guilty.

The matter proceeded to trial before a twelve-person jury on April 8, 2014. After considering the evidence presented, the jury, on April 11, 2014, found defendant guilty as charged to the offense of sexual battery. On April 15, 2014, the trial court denied defendant's motion for new trial and thereafter sentenced defendant to fifty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

This case involves allegations that defendant sexually abused five-year-old E.C. while she was attending Cha Cha's Daycare Center.[1] Linda Barber was the owner/operator of the daycare center; her brother, defendant, lived in a house behind the daycare and was apparently known to the children as Uncle Rob.

At trial, R.C., the victim's father and primary caregiver, testified that in early April of 2009, he learned of the sexual abuse one night while he and E.C. were watching television. The two had a conversation about "good touch, bad touch, " and E.C. responded, "[y]ou mean, like Uncle Rob touches me." E.C. explained that Uncle Rob, the defendant, "likes to put his hands down the front of my pants and tickle my private." At a later point, E.C. also disclosed to her father that defendant would pull his pants down and make her touch "his private" with her hand. E.C. also told her father that Uncle Rob instructed her not to tell anybody because he would not love or play with her anymore.

After R.C. had the conversation with E.C, he called R.A.B., the mother of T.B., who also attended the daycare center, and advised her of what E.C. had stated.[2] In light of this information, R.A.B. called her niece to go and pick up T.B. from the daycare center.

R.C. also called E.C.'s pediatrician who recommended that E.C. be taken to Children's Hospital for an examination. The next morning, R.C. took E.C. to Children's Hospital to be examined and subsequently took her to the Child Advocacy Center for an interview that had been arranged by Detective Brian Sharp, the officer that had been assigned to investigate the allegations. During the interview, E.C. made an immediate disclosure of sexual contact by defendant. Consistent with what she had told her father, E.C. told the interviewer that Uncle Rob would touch "her private" with his hands. In addition, E.C. testified at trial that Uncle Rob "made me touch his private parts and he also touched mine."

Detective Sharp also set up an interview at the Child Advocacy Center for a second potential victim, T.B., who likewise had made disclosures to her mother about Uncle Rob touching her. During her first interview, T.B. failed to make any disclosures of sexual abuse by defendant. However, after the interview, upon contact with her mother and in Detective Sharp's presence, T.B. said that in the interview, "she didn't say anything about Uncle Rob touching her." Detective Sharp thereafter scheduled a second interview. In addition, T.B. underwent a medical examination which revealed that she had gonorrhea. At trial, T.B., who was nine years old at the time, testified that she could not remember what had happened to her.

Based on his investigation, Detective Sharp obtained a warrant and arrested defendant on charges relating to both of the child victims. It is noted that the charges against T.B. were refused, and ...


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