On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana. Trial Court No. 451177. Honorable William J. Burris, Judge Presiding.
Walter P. Reed, District Attorney, Covington, LA; Kathryn W. Landry, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, State of Louisiana.
Mary E. Roper, Baton Rouge, LA, Attorney for Defendant-Appellant, Rory Dean Vansant.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
[2014 1705 La.App. 1 Cir. 2]
The defendant, Rory Dean Vansant, was charged by grand jury indictment with aggravated incest, a violation of La. R.S. 14:78.1. He pled not guilty and, following a jury trial, was found guilty as charged. The defendant was sentenced to thirty-five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating one assignment of error.
Ten-year-old D.D. and her sister, C.D., who was about three years older, lived in Slidell with their paternal grandparents. When D.D.'s mother, Kathrine, married the defendant, she gave domiciliary custody of D.D. and C.D. to the parents of her ex-husband, the biological father of the girls. Thus, the defendant was D.D.'s (and C.D.'s) stepfather. In November of 2006, because of Kathrine's and the defendant's financial problems, the children's grandparents let Kathrine and the defendant
rent the trailer behind their home. Under the custodial agreement, the girls would sleep at the trailer every other weekend to visit their mother. According to D.D., after Kathrine and the defendant moved into the trailer, when she slept over at the trailer, the defendant sexually abused her. D.D. and C.D. slept on the couches in the living room in the trailer. On weekend nights, when Kathrine was either asleep or away at work, the defendant would kneel down next to D.D. on the couch while she was sleeping. He would place his hand under her shorts and rub, and insert a finger into her vagina. This would cause D.D. to awaken but, out of fear, she remained silent. The defendant did this to D.D. on several occasions. Eventually, D.D. told her [2014 1705 La.App. 1 Cir. 3] grandfather. D.D. spoke to the police, and was subsequently taken to the Child's Advocacy Center (CAC) in Covington, where she was interviewed about what the defendant had done to her. The CAC interview was played for the jury. D.D. testified in court about the defendant's sexual abuse. The defendant testified that he never touched D.D. inappropriately.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that the trial court erred in overruling the defendant's objection to the State's alleged improper argument, and it abused its discretion in denying the motion for mistrial. Specifically, the defendant contends his motion for mistrial should have been granted because, during closing argument, the State referred to the defendant's ability to call any witness he wanted, as well as his failure to call a particular witness.
In this case, D.D. made the initial complaint of her sexual abuse to her grandfather, Clarence. The State did not call Clarence as a witness. In his closing argument, defense counsel David Anderson discussed at length the State's decision not to call Clarence to the stand, even though he was present during the trial. The relevant portion of Anderson's closing argument is as follows:
I'm not saying whether you should expect more evidence. I'm saying that you will be asked whether you believe this case beyond a reasonable doubt. So you have to say it would be unreasonable, any doubts I have would be -- they wouldn't make sense. And that's -- there is some pretty big doubts there.
The State has done a pretty good job, though, of pushing forward the links in the chain that serve the story and then pulling back the links in ...