[Copyrighted Material Omitted]
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 501-144, SECTION " K" . HONORABLE ARTHUR HUNTER, JUDGE.
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano.
Joy Cossich Lobrano,
[2013-1652 La.App. 4 Cir. 1] The State charged defendant, Randy T. Alverez, Sr., with one count of aggravated incest upon a thirteen year old female (victim), who had a familial relationship with the defendant. Following a trial, the jury found defendant guilty of attempted aggravated incest, and the trial court sentenced him to six years at hard labor with credit for time served. Defendant appealed. For the reasons that follow, we affirm defendant's conviction and sentence.
On October 14, 2008, New Orleans Police Department Detective Jounay Ross (Det. Ross) arrived at the victim's school after being contacted by Mr. Burton, a social worker with the Department of Family and Children Services who was assigned to the school. Det. Ross met with Ms. Allen, who informed him of the allegation made by the victim. Det. Ross also spoke with Ms. Kimberly Ballance, the school's operations data manager and a friend of the victim's mother. Shortly thereafter, the victim's mother arrived at the school, and Det. Ross advised [2013-1652 La.App. 4 Cir. 2] her that the victim needed to go to Children's Hospital for a physical examination and forensic interview. Ms. Joan Verrett, a forensic interviewer with the Children's Advocacy Center, interviewed the victim, while Det. Ross monitored the interview from a separate viewing area.
After the interview, Det. Ross relocated to the victim's family home, where she encountered the defendant outside the residence smoking a cigarette. Det. Ross explained her presence, and the defendant gave her permission to enter the residence to take photographs. Det. Ross recalled that the residence had three bedrooms in the rear of the house and a den containing a sofa, computer, baby bed and television. On October 16, 2008, the defendant was arrested and charged with aggravated incest. Det. Ross identified the cassette tape, DVD, VHS tape and drawings from the victim's forensic interview conducted at the Children's Advocacy Center.
Ms. Verrett testified that she interviewed the victim at the Children's Advocacy Center in October of 2008, and that none of the victim's family members or attorneys was present during the video and audio recorded interview.
Ms. Ballance testified that in October 2008 she encountered the victim crying at school. When Ms. Ballance asked the victim what was wrong, she responded that something inappropriate had happened between her and the defendant. Ms. Ballance contacted Mr. Burton, who assumed control of the situation.
[2013-1652 La.App. 4 Cir. 3] The victim testified that on October 14, 2008, she was thirteen years old, in the eighth grade at Edward Hynes Charter School, and was living with her family, including the defendant.
On the evening of October 14, 2008, the victim said she had fallen asleep on the sofa in front of the television in the den. On past occasions, the defendant would wake her up and send her to bed. However, on this particular night, she awoke to see and feel the defendant removing his penis from her mouth. He had a T-shirt on and basketball shorts from which his penis was protruding. She began to cry. She got up, brushed her teeth, and then went to bed. The defendant followed her into her bedroom and pleaded with her not to tell anyone about the incident. If she did, he told her, her younger sister and brother would grow up without a father. She decided not tell anyone what had happened.
The next morning, as the defendant drove the victim to school, he told her not to tell anyone about the previous night. He also told her he would have her phone repaired. At school, she kept thinking about what had happened the night before and was extremely upset. Ms. Ballance noticed that she was crying and asked what was wrong. The victim told Ms. Ballance that the defendant had inappropriate contact with her the night before. Ms. Ballance had the victim speak to the school social worker, who called Child Protective
Services. When the defendant arrived at school to pick up the victim, the school authorities would not release her to him. The victim's mother came to school, and brought the victim to Children's Hospital. The victim underwent a medical exam, spoke to doctors and met with Ms. Verrett.
During the interview, the victim told Ms. Verrett that although her mother was home the night of the incident, she did not tell her what the defendant had [2013-1652 La.App. 4 Cir. 4] done. The victim said that the defendant had warned her not to tell her mother because he would get in trouble, and her brother and sister would no longer have a father. The defendant also told her that if her mother and biological father learned of the incident, their relationship would deteriorate.
The State introduced the victim's medical reports from Children's Hospital, and documentation proving the required familiar relationship between the victim and defendant.
The defendant testified that in October 2008, he, his wife, their two children and the victim lived together. The defendant explained that on the night of October 13, 2008, he discovered some inappropriate and sexually suggestive text messages on the victim's cell phone. He did not know who had sent the victim the messages and was concerned that some stranger was arranging to meet the victim at her school. The defendant woke the victim, who had fallen asleep on the sofa, to discuss the text messages. She would not respond to his questions, so he threatened to take her cell phone from her and prevent her from seeing her father on the weekend. The victim became enraged and threatened the defendant that if he did not allow her to see her father, she would tell someone that he (the defendant) had touched her inappropriately. After that, the defendant sent the victim to bed, and he retired shortly afterwards. The defendant did not tell his wife about the e-mails or the discussion he and the victim had had about them. The next morning, the defendant drove the victim to school. The two did not converse during the trip, but when the victim asked the defendant for her cell phone, he refused to give it to her. The defendant denied putting his penis in the victim's mouth.
[2013-1652 La.App. 4 Cir. 5] During cross-examination, the defendant stated that he did not tell his wife or the victim's father about the text messages he saw on the victim's phone. However, when the school would not release the victim to him, he mentioned to his wife the discussion he and the victim had the night before and the threat she had made against him. The defendant said he assumed the text messages were somehow connected to a person across the river in the vicinity of the victim's father's house. The defendant further denied that the text messages could have been received in error by the victim. He did admit, however, that he did not know whether the messages came from a male, nor did he know the number the messages were sent from. The defendant complained that every time the victim returned from a visit with her father, she was disrespectful and refused to perform her chores.
Mr. Edward Gai testified that he was a private investigator and worked on this case on behalf of the defense. On October 24, 2008, Gai photographed the defendant's residence, and he retrieved a pair of blue shorts belonging to the defendant. Under cross-examination, Mr. Gai noted that neither the defendant nor his wife turned over a cell phone to him. Gai also admitted that he did not obtain records pertaining to the victim's cell phone.
A review for errors patent on the face of the record reveals none.
In the first of five assignments, the defendant complains that the evidence is insufficient to support the conviction.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 735 (La.1992).
[2013-1652 La.App. 4 Cir. 6] When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction " the appellate court must determine that the evidence, 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." State v. Captville, 448 So.2d 676, 678 (La.1984). Further, " evidence sufficient to support the charged offense will be deemed to be sufficient to support the responsive verdict where the defendant does not object to the inclusion of the responsive verdict." State v. Colbert, 2007-0947, p. 13 (La.App. 4 Cir. 7/23/08), 990 So.2d 76, 84-85 (citing State v. Harris, 2002-1589 (La. 5/20/03), 846 So.2d 709; and State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982)).
In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness' testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 2002-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79. Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293. " [A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).
" A fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the [2013-1652 La.App. 4 Cir. 7] rational trier's view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned." State v. Winston, 2011-1342, p. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337(internal citations omitted).
In support of his argument that the evidence was insufficient, the defendant argues that the victim's testimony was uncorroborated, internally inconsistent and irreconcilably conflicted with the physical evidence, i.e., the physical scene where she claimed the incident occurred.
The defendant was charged with aggravated incest but convicted of attempted aggravated incest on the victim on October 14, 2008. Pursuant to La. R.S. 14:78.1, aggravated incest is " the engaging in any prohibited act with a person who is under eighteen years of age and who is known to the offender as being related to the offender." The prohibited acts include sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles and molestation of a juvenile (La. R.S.14:78.1(B)(1)), as well as " [a]ny lewd fondling or touching of the person of either the child or the offender, done or ...