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State v. Calhoun

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

STATE OF LOUISIANA Appellee
v.
TIMOTHY WAYNE CALHOUN Appellant

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Lower Court Case No. 13F2277, Honorable Daniel J. Ellender, Judge.

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant.

          TIMOTHY WAYNE CALHOUN Pro Se.

          R. STEPHEN TEW District Attorney, Counsel for Appellee.

          MADELEINE SLAUGHTER-YOUNG Assistant District Attorney.

          Before BROWN, WILLIAMS, and COX, JJ.

          BROWN, C.J.

         After a jury trial, defendant, Timothy Wayne Calhoun, charged with 19 sexual offenses, was convicted of 12 offenses. On appeal, defendant challenges the sufficiency of the state's evidence, the trial court's failure to sever the charges, and the length of his sentences. We affirm defendant's convictions. Defendant's sentence for Count 1, aggravated rape, is amended to reflect that it will be served at hard labor. Additionally, defendant's sentence for Count 19, cruelty to a juvenile, is amended to reflect that it is to be served with benefits. As amended, all sentences are affirmed.

         FACTS

         On August 5, 2013, the father of an alleged victim, J.C.S., contacted the Ouachita Parish Sheriff's Office, alleging that defendant had sexually abused his daughter. On August 8, 2013, K.S., a cousin of J.C.S., also accused defendant of sexual abuse. As both girls were (and still are) minors, they were questioned by forensic interviewers at the Child Advocacy Center in Ouachita Parish.

         On August 27, 2013, A.C., after learning of defendant's arrest, contacted the Ouachita Parish Sheriff's Office to report sexual abuse by defendant. Then, on August 29, 2013, R.J. contacted the same office, alleging sexual abuse by defendant in 1996.

         Prior to the allegations made against him in 2013, defendant had previously been arrested in 1997 for the sexual assault of another minor, C.J. These charges were later dismissed without prejudice because defendant joined the military. Due to the number of new allegations brought against defendant in 2013, the case involving C.J. was re-opened.

         On November 14, 2013, defendant was charged by grand jury indictment, as amended, with 19 sexual offenses, including aggravated rape, sexual battery, indecent behavior with a juvenile, molestation of a juvenile, cruelty to a juvenile, attempted carnal knowledge of a juvenile, and attempted forcible rape. According to the indictment, defendant sexually abused all five minor victims, A.C., R.J., C.J., J.C.S., and K.S., at various times between 1995 and 2013.

         Defendant pled not guilty to all charges, and on March 26, 2014, he filed a motion to quash the indictment, arguing that the inclusion of crimes from the five alleged victims was highly prejudicial to his case and gave rise to possible claims of double jeopardy. This motion was heard on May 28, 2014, and was denied, with the trial court giving oral reasons for its ruling following the hearing.

         On February 8, 2016, defendant's trial commenced. The state called 14 witnesses, including the five victims. All of the victims and their families in this case were related to, neighbors with, or friends of defendant or his family at some point since the offenses began in 1995. In an effort to simplify this appeal, the testimony presented by the state and defense is discussed below as relates to each victim and the respective crimes associated with her. Furthermore, as defendant was convicted of offenses involving three of the five victims, only witness testimony relevant to the convicted offenses is included herein.

         As previously stated, after deliberations, the jury found defendant guilty of 12 of the 19 charges. Specifically, defendant was convicted of Counts 1 through 8 and Counts 16 through 19.

         Sentencing was deferred, pending a pre-sentence investigation (PSI). On April 26, 2016, the trial court sentenced defendant as follows:

Count 1: Aggravated Rape

Life without benefits

Count 2: Sexual Battery

10 years at hard labor

Count 3: Indecent Behavior with a Juvenile

7 years at hard labor

Count 4: Aggravated Rape

Life at hard labor without benefits

Count 5: Sexual Battery

10 years at hard labor

Count 6: Indecent Behavior with a Juvenile

7 years at hard labor

Count 7: Cruelty to a Juvenile

10 years at hard labor

Count 8: Molestation of a Juvenile

10 years at hard labor

Count 16: Sexual Battery

30 years at hard labor without benefits

Count 17: Indecent Behavior with a Juvenile

20 years at hard labor without benefits

Count 18: Molestation of a Juvenile

30 years at hard labor without benefits

Count 19: Cruelty to a Juvenile

10 years at hard labor without benefits

         The trial court ordered that the sentences for Counts 1 through 3, the convictions pertaining to A.C., run concurrently with each other. The sentences for Counts 4 through 8, the convictions pertaining to R.J., were ordered to run concurrently with each other, but consecutively with Counts 1 through 3. Similarly, Counts 16 through 19, the convictions pertaining to K.S., were ordered to run concurrently with each other, but consecutively with Counts 1 through 8.[1]

         The instant appeal followed.[2]

         DISCUSSION

         Sufficiency of the Evidence

         Defendant argues that the evidence was insufficient to sustain his convictions due to a lack of physical evidence and the state's reliance on victims' testimonies alone. Defendant also argues that the questionable credibility of one victim's allegations, which caused the jury ultimately to find defendant not guilty of the charges related to that victim, calls into question the veracity of the other victims' allegations.

         On the other hand, the state argues that there was ample evidence against defendant to support his convictions.

         Counts 1-3: Aggravated Rape, Sexual Battery, and Indecent Behavior with a Juvenile - A.C.

         A.C. testified that she is the first cousin of defendant. A.C. further stated that she and her father lived at her grandmother's house when she was in elementary school and junior high school. During that time, her paternal uncle Daniel and his children, including defendant, also periodically lived at the grandmother's house.

         A.C. stated that in 1995, during a time when defendant was living at their grandmother's house, he forced A.C. to have sexual intercourse with him on several occasions. According to A.C., this began shortly after she turned 10 years old. On one occasion, defendant had sex with A.C. near a dirt pit. Another time, defendant entered her room while she was sleeping and forced her to have sex. A.C. stated that all of these acts occurred without her consent. She also testified that these incidents occurred prior to the incident involving her friend R.J.

         A.C. testified that she told R.J. of the incidents, as well as several adults, including defendant's father and her grandmother. A.C. testified, however, that "it didn't do any good" and "nothing was ever done about it." A.C. recalled locking her door at night, and one night, she was awakened by sounds at her door. Her door was open, and A.C. could see her grandma yelling at defendant, who was standing in his underwear, holding a butter knife, next to her open door.

         In 2013, A.C. was informed of charges involving other victims pending against defendant. A.C. stated that upon learning of the charges, she consulted a lawyer and approached a detective, Darryl Frost, with the Ouachita Parish Sheriff's Office. While A.C. admitted to some prior animosity between defendant's side of the family and her own, A.C. denied fabricating the charges. In fact, A.C. admitted to being very uncomfortable, and scared about testifying. During A.C.'s testimony, the court had the jury removed and reprimanded defendant's wife for giving A.C. threatening looks and mouthing or mumbling threatening words. The judge ordered defendant's wife to have no contact with A.C. and informed the wife that any violation of his order would result in her arrest and a finding of contempt. The judge ultimately ordered defendant's wife to be removed from the courtroom for the duration of A.C.'s testimony.

         Detective Darryl Frost testified that he met with A.C. in his office on August 7, 2013. He stated that A.C. complained of being touched and forced to have sexual intercourse with defendant on several occasions while they were both living at their grandmother's house. A.C. told Det. Frost that the abuse began when she was around eight years old and ended when she moved out, which was when she was approximately 13 years old. Upon receipt of A.C.'s allegations, Det. Frost referred the matter to the district attorney's office.

         Counts 4-8: Aggravated Rape, Sexual Battery, Indecent Behavior with a Juvenile, Cruelty to a Juvenile, and Molestation of a Juvenile - R.J.

         R.J. testified that she was childhood friends with A.C. During the summer of 1996, A.C. was living at her grandmother's house, and R.J., who was then 11 years old, would frequently spend the night there. R.J. stated that she met defendant on one of her visits. According to R.J., one day, she, A.C., and another friend were at A.C.'s house when defendant visited and offered to take them to either the zoo or a park, and the three girls agreed. Instead of going to the zoo or the park, however, defendant briefly stopped at a store to buy alcohol and then proceeded to take the girls to a room at a local "hotel." R.J. testified that it was a small room in a crummy motel, with a bed in the center and an attached bathroom. They sat around drinking something like "Strawberry Fields." R.J. testified that although it was the first time she had alcohol, she was not intoxicated. Defendant then ordered A.C. and the friend to go into the bathroom, which they did, leaving R.J. alone in the room with defendant, who sat on the bed next to R.J. and began kissing her "top area."

         After he started kissing R.J., defendant began to fondle her vaginal area without her consent. R.J. testified that she tried to push his hands away, to no avail. Defendant then had R.J. lie on her back on the bed, and he removed her shorts and underwear. R.J. was still wearing her top. R.J. testified that defendant lay on top of her, and she could feel his penis penetrate her vagina. According to R.J., she immediately began to bleed. Upon realizing that R.J. was bleeding, defendant stopped what he was doing and got off of her. R.J. then went to the bathroom to be with her friends. R.J. told the two girls what had happened and showed them that she was bleeding. At trial, R.J. stated that she was 11 years old at the time of the incident and that she had never had sexual intercourse before. R.J. further testified that the bleeding was not caused by her period because her menstrual cycle did not start until she was 13 years old. When asked whether she tried to fight defendant, R.J. said that she did not because she was too afraid. According to R.J., "I was an eleven year old ...


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