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
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.
E. REGAN, JR., ATTORNEY AT LAW, New Orleans, Louisiana,
COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Hans J. Liljeberg.
La.App. 5 Cir. 2] Defendant, J.M., 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.
La.App. 5 Cir. 3] FACTS
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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).
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
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.
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 ...