Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. J.M.

Court of Appeals of Louisiana, Fifth Circuit

February 11, 2015

STATE OF LOUISIANA
v.
J. M

          ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA. NO. 12,425, DIVISION " C" . HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING.

         JOEL T. CHAISSON, II, DISTRICT ATTORNEY, Twenty-Ninth Judicial District Court, Parish of St. Charles, LOUIS G. AUTHEMENT, ASSISTANT DISTRICT ATTORNEY, Hahnville, Louisiana, COUNSEL FOR THE STATE OF LOUISIANA.

         MARTIN E. REGAN, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

         Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg.

          OPINION

         HANS J. LILJEBERG, J.

         [14-579 La.App. 5 Cir. 2] Defendant, J.M.,[1] was charged by bill of information with one count of molestation of a juvenile under the age of 13 (count one), in violation of La. R.S. 14:81.2, and one count of indecent behavior with a juvenile under the age of 13 (count two), in violation of La. R.S. 14:81. A trial was held, and a jury found defendant guilty as charged on count one and guilty of the lesser charge of attempted indecent behavior on count two. Defendant was sentenced to 25 years at hard labor without benefit of probation, parole, or suspension of sentence on count one and ten years at hard labor with two years to be served without benefit of probation, parole or suspension of sentence on count two. The court ordered the sentences to run concurrently with each other. Defendant now appeals his convictions and sentences.

         [14-579 La.App. 5 Cir. 3] FACTS

         The victim in this case is defendant's daughter, B.M. At trial, S.M., the mother of B.M. and the wife of defendant, testified that prior to March 26, 2012, B.M., S.M.'s minor son C.M., and S.M. all lived with defendant and his mother, M.M., in Luling, Louisiana. She stated that B.M. was two or three years old when they moved there. On March 25, 2012, S.M. decided to leave M.M.'s house, because she was unhappy about everything, including her marriage. According to S.M., she was attempting to call her father to ask him to pick her and the children up when M.M. pushed her and attempted to take the phone because she did not want her to leave. S.M. explained that after M.M. pushed her, she was trying to catch her balance and knocked M.M.'s glasses off. She testified that M.M. called the police because she felt that S.M. had assaulted her. After the police arrived, S.M. was able to leave with the children.

         S.M. explained that while they were staying with a friend on the night that they left M.M.'s house, B.M. approached her and stated, " Well, I'm glad we're gone because something happened." She explained that B.M. did not disclose any specifics at that time. However, S.M. testified that something happened between B.M. and defendant in 2004 involving the court system, so she asked her cousin, C.S., to pick them up the next day, and they took B.M. to the police. After Sergeant Sampson interviewed B.M., without S.M. present, S.M. brought B.M. to Children's Hospital for an examination.

         Sergeant Roanne Sampson of the St. Charles Parish Sheriff's Office testified that on March 26, 2012, S.M. and B.M., who was 12 years old at the time, came to her office. After Sergeant Sampson interviewed S.M., she met with B.M. independently, and B.M. provided a disclosure to her. Based on B.M.'s disclosure, Sergeant Sampson advised S.M. to bring her to Children's Hospital for a medical [14-579 La.App. 5 Cir. 4] examination. On March 27, 2012, Sergeant Sampson watched on a monitor in a separate room as Lieutenant Kinler conducted a video-recorded forensic interview of B.M. On April 19, 2012, Dr. Jackson examined B.M. at Children's Hospital and then informed Sergeant Sampson that B.M. made a disclosure. As a result, Sergeant Sampson conducted another audio-recorded statement with B.M. on May 4, 2012. After B.M.'s second statement to Sergeant Sampson, Lieutenant Kinler conducted a second video-recorded forensic interview of B.M. Sergeant Sampson arrested defendant on July 6, 2012.

         Sergeant Sampson testified that she had previously arrested defendant in 2004 based on allegations that he had molested B.M. Sergeant Sampson stated that defendant provided an audio-recorded statement regarding the 2004 incident, in which he admitted to " accidentally" touching B.M.'s vagina with his mouth. Sergeant Sampson also testified that the 2004 case against defendant began when B.M. made a disclosure to a babysitter, not because of domestic separation.

         Lieutenant Rene Kinler, a juvenile investigations division supervisor and forensic interviewer for the St. Charles Parish Sheriff's Office, testified that she participated in the investigation in this case. In her first forensic interview on March 27, 2012, B.M. stated that defendant would enter her bedroom at night after first checking that the other bedroom doors were closed. According to B.M., defendant would then ask if he could " play," which she explained meant to touch her body parts. B.M. stated that she replied in the negative, so defendant would leave her room. B.M. explained that this occurred approximately 20 times per month, and it started happening about a year prior to her interview.

         In her first forensic interview, B.M. also stated that the night they moved out of the house where defendant lived, her mother asked if anything happened between her and defendant. According to B.M., she told her mother that defendant [14-579 La.App. 5 Cir. 5] had been asking if he could touch her, but she replied in the negative. B.M. stated that defendant told her every night not to tell anyone what he had been asking her. B.M. stated that she told her mother that she knew defendant was asking because he was a sex offender. She explained that she learned that defendant was a sex offender when a child on her bus saw defendant's photograph on the internet.

         Lieutenant Kinler conducted a second forensic interview of B.M. on June 26, 2012. In this interview, B.M. stated that she remembered one night when defendant asked her if she wanted to " play," and she responded in the negative. According to B.M., defendant waited until everyone was asleep and asked her to " play" when she was half-asleep, but she said no. B.M. stated that when she woke up an hour or two later, her underwear was gone, the blanket was off of her, her shirt was pulled up, and her door was open.

         During this second forensic interview, B.M. also explained that defendant would sometimes touch, squeeze, and rub her " top area." She stated that while one hand was touching her breast, defendant would touch himself by moving back and forth with his hand in his pants, and she could hear a " crunching" sound " like [sic] paper towel." B.M. stated that this would happen 15 to 20 times per month. She explained that one night when she was half-asleep, she felt him touching her breast and she found her underwear off that night. B.M. stated that when defendant touched her breast, it would be skin on skin.

         Dr. Jamie Jackson was accepted as an expert in the field of child abuse pediatrics. Dr. Jackson testified that on April 19, 2012, she examined B.M. and took a history from her. She testified that B.M. disclosed sexual abuse by her father involving contact with her breasts, which was always on her skin. Dr. Jackson explained that B.M. demonstrated that her father touched her breast, " [l]ike a cup." According to Dr. Jackson, B.M. stated that her father told her not to [14-579 La.App. 5 Cir. 6] tell anyone. B.M. also stated that the abuse occurred while she was sleeping. Dr. Jackson stated that B.M. further disclosed that her father had his hand in his pants in his private area when he touched her breast. Dr. Jackson testified that B.M.'s physical exam resulted in non-specific findings, which neither confirmed nor denied maltreatment. Dr. Jackson also explained that children often say that a person has done something to them while they were asleep as a coping mechanism.

         At trial, B.M., who was 14 years old at the time, testified that when she moved out of the house where her grandmother and father lived in March of 2012, she disclosed to her mother that something had been occurring between her and her father. B.M. stated that her mother brought her to the sheriff's office and she spoke with Sergeant Sampson. She testified that everything in the videos of her forensic interviews was the truth. B.M. testified that when she was living with her father, she was not afraid of him. However, she admitted that she told the officer that she was afraid of her father because, approximately a week before they left, he threatened to kill her if she told anyone what he had done.

         C.S., a cousin of S.M., testified regarding the previous allegations against defendant in 2004. C.S. testified that her daughter was babysitting B.M. one night, when B.M. disclosed to C.S.'s daughter that defendant had done something to her. C.S. testified that the next morning, B.M. disclosed to her that " my daddy licks my chinas," and pointed down to her vaginal area. C.S. reported the incident to her boyfriend who worked for the Sheriff's Office, and he made a report to the police.

         M.M., defendant's mother, testified on behalf of the defense. She stated that B.M. confided in her about different things but did not tell her of any allegations that defendant had done something to her. M.M. testified that between March and July of 2012, she petitioned the court for custody of the children because she did not want the children raised by S.M.'s family. Although she signed an amended [14-579 La.App. 5 Cir. 7] petition for custody, which stated that an award of joint or sole custody to defendant would result in substantial harm to the children, M.M. testified that she signed the document without reading it.

         Defendant testified on his own behalf. He stated that before S.M. and the children left his mother's house on March 25, 2012, B.M. was never uncomfortable around him and she would play board games with him. Defendant denied all of the allegations of sexual abuse.

         LAW AND DISCUSSION

         On appeal, in his first assignment of error, defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he committed the crimes of molestation of a juvenile and attempted indecent behavior with a juvenile. In this assignment, defendant claims that the State failed to prove that he committed any lewd or lascivious act or that he used influence by supervision, care, control, or custody of B.M. He claims that B.M. imagined or dreamed the acts that she reported to the police and Dr. Jackson. Defendant does not dispute that the State proved the other required elements of the crimes charged. It is undisputed that defendant was over the age of 17, that the victim was under the age of 17 at the time of the offense, and that defendant was more than two years older than the victim.[2]

          The standard for appellate review of the sufficiency of the evidence is 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in [14-579 La.App. 5 Cir. 8] whole or in part, the testimony of any witnesses. State v. Roca, 03-1076, p. 11 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La. 7/2/04), 877 So.2d 143. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or reweigh evidence. Id.

          In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness' testimony, if believed by the trier or fact, is sufficient support for a requisite factual finding. State v. Stec, 99-633, pp. 4-5 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case of sexual offenses, the testimony of the victim alone can be sufficient to establish the elements of a sexual offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense. Roca, 03-1076 at 11-12, 866 So.2d at 874; State v. Hotoph, 99-243, p. 13 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La. 6/30/00), 765 So.2d 1062 and 00-150 (La. 6/30/00), 765 So.2d 1066. Molestation of a Juvenile

         The bill of information charges defendant in count one with molestation of a juvenile, as follows:

On or about between 11/02/2010 and 3/26/2012, in the Parish of St. Charles, [J.M.] committed the offense of R.S. 14:81.2 MOLESTATION OF JUVENILE, by the commission of a lewd and lascivious act with and upon a minor child under the age of 13, there being an age difference of greater than 2 years between the defendant and the juvenile, with the intent of arousing the sexual desires of either party by the use of influence by virtue of defendant's care, custody, control and supervision of the juvenile. TO-WIT: BY GROPING HER BREASTS

         La. R.S. 14:81.2(A)(1) provides in pertinent part that:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, [14-579 La.App. 5 Cir. 9] where there is an age difference of greater than two years between the two persons, which the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

          To convict a defendant of the crime of molestation of a juvenile, the State must prove beyond a reasonable doubt that: 1) the defendant was over the age of 17; 2) the defendant committed a lewd or lascivious act upon the person or in the presence of a child under the age of 17; 3) the defendant was more than two years older than the victim; 4) the defendant had the specific intent to arouse or gratify his sexual desires or those of his victim, and 5) the defendant committed the lewd or lascivious act by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over juvenile. State v. Onstead, 03-1413, p. 8 (La.App. 5 Cir. 5/26/04), 875 So.2d 908, 913.

         The bill of information alleged that defendant committed a lewd and lascivious act upon the victim by groping her breasts. A lewd or lascivious act is one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner. Stec, 99-633 at 6, 749 So.2d at 787; State v. Holstead, 354 So.2d 493, 497-98 (La. 1977).

         At trial, B.M. testified that after moving out of the house where defendant lived, she disclosed to her mother that something had been occurring between her and defendant. She also testified that defendant threatened to kill her if she told anyone. In her second video-recorded forensic interview, B.M. stated that [14-579 La.App. 5 Cir. 10] defendant would touch, squeeze, and rub her breast, and it was skin on skin. She explained that this conduct would occur 15 to 20 times per month.

         In addition, Dr. Jackson testified that B.M. disclosed sexual abuse by defendant involving contact with her breast on her skin. Dr. Jackson explained that B.M. demonstrated that her father touched her breast " like a cup," and that her father told her not to tell anyone.

         Defendant argues that B.M. stated that she " dreamed" the events, which does not establish that any actual conduct occurred. However, Dr. Jackson explained that children often state that they were asleep when abuse occurred as a coping mechanism. Also, B.M. stated that she saw defendant, and she related information that supported that she was awake when the conduct occurred. Defendant also argues that there were no physical findings of abuse. However, Dr. Jackson testified that between 90 and 95 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.