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Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana. Trial Court No. 12888F. Honorable H. Stephens Winters, Judge.
TERESA C. CARROLL, Counsel for Appellant.
KENNETH MITCHELL, Pro se.
JERRY L. JONES, District Attorney, DEVIN T. JONES, JOHN G. SPIRES, STEPHEN T. SYLVESTER, Assistant District Attorneys, Counsel for Appellee.
Before BROWN, WILLIAMS and MOORE, JJ.
[49,713 La.App. 2 Cir. 1]
The defendant, Kenneth Mitchell, was charged by bill of indictment with aggravated rape, a violation of LSA-R.S. 14:42, and cruelty to persons with infirmities, a violation of LSA-R.S. 14:93.3. Following a jury trial, he was found guilty as charged. He was sentenced to serve life in prison for the aggravated rape conviction and 10 years at hard labor for the cruelty to persons with infirmities conviction. For the following reasons, we affirm.
The victim in this matter, G.S., is profoundly intellectually disabled, with an I.Q. of less than 16;  she has the intellect/mental capacity of a two-year-old child. The medical evidence introduced at trial reveals that G.S. has an affable personality and she had a desire to please her family members. At the time of the instant offense, G.S. lived with her mother and other various relatives, including her niece, Frances Scott, and the defendant, G.S.'s brother-in-law. G.S. was 58 years old; the defendant was 44 years old.
The testimony at trial revealed the following facts. On August 4, 2012, at approximately 6:00 a.m. or 7:00 a.m., Scott walked into her kitchen and saw the defendant " raping" G.S. on a sofa that was located in the kitchen. Scott indicated that she was less than four feet away from the defendant and G.S., and could clearly see the defendant on his knees on the sofa, with [49,713 La.App. 2 Cir. 2] G.S.'s legs on his shoulder. She reiterated that the defendant was " having sex" with G.S. Scott unequivocally testified that she saw the defendant's penis going inside G.S.'s vagina and that she " could smell sex in the air."
Scott further testified as follows:
[The defendant] didn't even notice I was even there, he was so caught up doing what he was doing. But she [G.S.] looked over at me. She had her hands across her like this and like her eyes [were] pleading with me, like do something about this. And I stood there for a second. I don't know if I was shocked or what, but when I came to, I was like oh my God, and that's when he looked up.
Additionally, Scott stated that she ran down the hallway to telephone her mother, but her mother did not answer her phone. When she returned to the kitchen, the defendant was 'sitting on the chair and a half' watching television and G.S. had returned to her room. According to Scott, she began hitting the defendant and subsequently put him out of the house. At this time, she could hear G.S. yell from her room, calling the defendant 'nasty' and/or saying 'get your nasty ass out.' Scott testified that she got in her car and traveled to the house where the defendant's wife lived. They then went to the police station and reported the incident. When asked again about what she had witnessed, Scott testified, " I know sex and he was having sex with her."
On cross-examination, the defense attorney questioned Scott about G.S.'s hygiene, implying that when Scott testified that she 'smelled sex in the air," she was actually smelling G.S.'s vagina. Scott admitted that G.S. " had a problem with taking care of her personal hygiene" and had 'sitters' who [49,713 La.App. 2 Cir. 3] bathed her " on a day-to-day basis." Scott also admitted that at the time of the incident, G.S. had not yet been bathed for the day. Nevertheless, Scott reiterated that she saw the defendant having sexual intercourse with G.S.; she specifically repeated that she saw the defendant moving his hips and his penis was " going in and out" of G.S.'s vagina. She also stated that
G.S. was not moving; the defendant " was the one doing all the moving."
Detective Eric Newnum, of the Bastrop Police Department, testified as follows: he was the on-call detective on August 4, 2012; he received a call from Sergeant Boling in reference to a rape; he talked with the victim and tried to communicate with her but was unable to understand her responses; he recommended the Children's Advocacy Center (" CAC" ) to the family as an alternative; he spoke with Scott and she relayed the above events that she witnessed on the morning in question;  he took photographic evidence of the sofa where the alleged act took place; he took the photograph from a four-to-six foot vantage point, as this was how far Scott indicated she was from the sofa when she observed the act taking place; Scott told him the lights were on in the room where the act was taking place and daylight was also shining into the room; Scott's exact words to him were that she saw the defendant's penis going inside of G.S.'s vagina; no rape kit was utilized in this case because " having an eyewitness to a rape is rare" ; he was unable to locate the defendant on the day in question; he later received information that the [49,713 La.App. 2 Cir. 4] defendant had checked into a rehabilitation center in Rayville, Louisiana; he secured an arrest warrant and arrested the defendant at Rayville Recovery;  he identified the defendant in court as the person he arrested for this alleged crime.
Dr. Frank Bennett, a clinical psychologist, testified at the trial in this matter. He testified that he last evaluated G.S. on March 3, 2005, and he performed two tests: the Slocum Intelligence Test and the Vineland Adaptive Behavior Scales. According to Dr. Bennett, the tests performed ranged from communication to daily living skills and socialization. From these tests, Dr. Bennett concluded that G.S. has an I.Q. score of less than 16 as the tests do not score lower than 16. He also concluded that G.S. only received credit for two years and five months. Dr. Bennett further testified as follows: an I.Q. is a measure of various aspects of what people do each day, such as their cognitive skills, ability to reason, ability to think logically, ability to think abstractly, language skills, memory skills and ability to perform various tasks; in his professional opinion, G.S. is incapable of making informed decisions; G.S. has a vocabulary of less than 50 words; G.S. thus has a profound intellectual disability, meaning she is at the lowest level of intellectual disability.
Dr. Allen Spires, a general practitioner, testified as follows: he has been providing medical treatment to members of the Scott family since the 1980s; he has treated G.S. on a yearly basis since Dr. Bennett's evaluation; G.S. was always assisted by one of her sisters during her medical [49,713 La.App. 2 Cir. 5] appointments; G.S.'s condition of mental retardation has stabilized, but had not improved.
The jury unanimously found the defendant guilty as charged. During the sentencing hearing, the defendant orally moved for post-verdict judgment of acquittal and for new trial. Both motions were denied. Thereafter, the defendant was sentenced to the statutorily mandated sentence of life at hard labor without the benefit of probation, parole or suspension
of sentence on the conviction of aggravated rape. With regard to the cruelty to persons with infirmities conviction, the defendant was sentenced to serve 10 years at hard labor, with the first year to be served without the benefit of probation, parole or suspension of sentence. The sentences were ordered to run concurrently, with credit for time served. The trial court denied the defendant's motion to reconsider sentence.
The defendant appeals.
Sufficiency of the Evidence -- Aggravated Rape
The defendant contends the evidence was insufficient to support his conviction for aggravated rape. He argues that his conviction was based solely on the testimony of Scott. The defendant also argues that the state did not introduce any physical evidence to prove that he engaged in sexual intercourse with G.S. Additionally, the defendant asserts that even if he did engage in sexual intercourse with G.S., the state did not introduce any evidence to prove that she was incapable of resisting the sex act due to her mental infirmity.
[49,713 La.App. 2 Cir. 6] 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. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La. 1992); State v. Bosley, 29,253 (La.App. 2d Cir. 4/2/97), 691 So.2d 347, writ denied, 97-1203 (La. 10/17/97), 701 So.2d 1333.
Under the Jackson v. Virginia standard, we review the record in the light most favorable to the prosecution to determine whether the evidence was sufficient to convince any rational trier of fact that all the essential elements of the crime had been proven beyond a reasonable doubt. Jackson v. Virginia, supra ; State v. Tate, 2001-1658 (La. 5/20/03), 851f So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165.
The Jackson standard is applicable in cases involving both direct and [49,713 La.App. 2 Cir. 7] circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. ...