from the Fifth Judicial District Court for the Parish of
Richland, Louisiana Lower Court Case No.F-2014-255 Honorable
Terry A. Doughty, Judge
LOUISIANA APPELLATE PROJECT By: Douglas L. Harville Counsel
BRADLEY BERRY Pro Se.
M. LANCASTER District Attorney PENNY W. DOUCIERE KENNETH D.
WHEELER Assistant District Attorneys Counsel for Appellee.
WILLIAMS, DREW, and COX, JJ.
defendant, Bradley Berry, was charged by bill of indictment
with aggravated rape, in violation of La. R.S. 14:42, and
indecent behavior with a juvenile, in violation of La. R.S.
14:81. Following a jury trial, he was found guilty as
charged. For the aggravated rape conviction, the trial court
sentenced the defendant to serve life in prison at hard labor
without the benefit of parole, probation or suspension of
sentence. He was sentenced to serve seven years at hard labor
for his indecent behavior with a juvenile conviction. The
sentences were ordered to run concurrently. For the following
reasons, we affirm the defendant's convictions and
sentences. We remand this matter to the trial court with
instructions to provide the defendant with the appropriate
notice with regard to the sex offender registration
defendant, Bradley Berry, is the half-brother of C.B.,
of the victims in this case. C.B.'s date of birth is
August 2, 1997, and he was 15 years old at the time of the
offenses. J.B., the other victim in this case, is the
defendant's second cousin. J.B., whose date of birth is
July 10, 1992, was 10 years old at the time of the
March 2013, the defendant was released from prison and moved
back home with his father. Approximately one week after the
defendant's return home, C.B., who lived a short distance
away, went to visit his father (J.W.B.) at the home his
father shared with the defendant.
the trial, C.B. testified as follows: he and the defendant
went into a bedroom to listen to music; while in the bedroom,
the defendant asked C.B. to show him the size of his penis;
the defendant began performing oral sex on him; C.B. then
performed oral sex on the defendant; the defendant apologized
for ejaculating into C.B.'s mouth; the defendant told
him, "I don't think it's wrong if we don't
tell anybody"; the defendant asked C.B. to tell him
"how [he] got Timothy off"; and, on another occasion,
the defendant went to C.B.'s home and masturbated in
C.B.'s presence then performed oral sex on him.
August 2013, C.B. told his mother, R.M., about the sexual
incidents, but begged her not to tell anyone because he was
afraid that people would think he was "gay."
Additionally, C.B. stated that he did not want the defendant
to "go to jail for a long time." R.M. did not
report the incidents at that time.
April 14, 2014, R.M. went to the Richland Parish
Sheriff's Office and reported that the defendant and
Timothy had "messed with" C.B. An investigation
ensued. Wanda Vallery, a sheriff's office investigator,
interviewed R.M. and C.B.
April 26, 2014, C.B. published a Facebook post about the
sexual abuse. J.B. responded to the Facebook post in a
private message, and the following messages where exchanged
between C.B. and J.B.:
J.B.: Sorry about that Cuz[;] I didn't know[.]
C.B.: It's ok[.]
J.B.: I know how you feel[;] believe me[.]
J.B.: Yea[;] just never told anyone[;] embarrassed by it
[.] C.B.: Oh[.]
So what happened[?] If [you] don't mind[, ] tell me[, ]
and if you don't want to[, ] that's ok too[.]
J.B.: *******UNABLE TO READ*******
C.B.: Oh[.] I'm so sorry big man[.] [T]hat's
terrible[.] How old were you[?]
J.B.: About ten[.]
Investigator Vallery questioned J.B. about the comments he
made on Facebook. J.B. informed Investigator Vallery that the
defendant entered his bedroom "during the night, "
pulled his pants down and performed oral sex on him. J.B. was
unable to recall the exact date of the sexual incident;
however, he was able to recall that he was between 8 and 10
years old at the time. J.B. also stated that the incident
occurred at J.W.B.'s home, where J.B. was living with his
defendant was arrested and charged by bill of indictment with
the aggravated rape of J.B., in violation of La. R.S. 14:42,
and indecent behavior with a juvenile with regard to C.B., in
violation of La. R.S. 14:81.
to trial, the state filed a notice of intent to use other
crimes evidence, i.e., the defendant's 2000
conviction for carnal knowledge of a juvenile and his 2007
convictions for carnal knowledge of a juvenile and
contributing to the delinquency of a juvenile. In response,
the defendant filed a motion to exclude the other crimes
evidence, arguing that the prior convictions "involved
facts and circumstances dissimilar to [those] present in this
case." Following a hearing, the trial court denied the
defendant's motion to exclude the evidence of other
crimes. The court stated:
[A]rticle 412.2 . . . was enacted along with some of the case
laws . . . which indicate a lustful - lustful disposition
toward children may be admissible and that would be
considered for bearing on any matter which was relevant for
the balancing test, and it does . . . require the Court to do
a balancing test and balance the prejudice against the
defendant versus the probative value of the charges[.] *** I
believe the probative value outweighs the prejudice because I
can give an instruction which will instruct the jury . . .
that they're not to use this but only use it for the
limited purpose of the other crimes evidence[.]
defendant's trial commenced on December 14, 2015. During
the trial, Investigator Vallery testified with regard to the
investigation and her interviews with R.M., C.B. and J.B. She
stated that C.B. provided her with the password to his
Facebook account and she read the messages that C.B. and J.B.
had exchanged. Investigator Vallery also testified that she
printed the messages from Facebook and subsequently
interviewed J.B. to obtain his statement.
cross-examination, Investigator Vallery admitted that, in the
Facebook post, J.B. stated that he was 10 years old when the
aggravated rape occurred. However, during his interview, he
recalled that the incident occurred when he lived with his
grandmother, when he was between the ages of 8 and 10.
Investigator Vallery further admitted that she did not
attempt to collect any physical evidence of the rape. She
explained that she did not attempt to do so because the rape
had occurred approximately 10 years before it was reported.
her cross-examination with regard to C.B.'s allegations,
Investigator Vallery admitted that R.M. stated in her
interview that only one sexual incident occurred between the
defendant and C.B. However, she explained that the confusion
may be attributable to the fact that R.M. was "telling
me about Timothy and [the defendant] at the same
time[.]" Further, Investigator Vallery testified that
C.B. was able to "remember for sure" two sexual
incidents involving the defendant and "possibly a
third[.]" She stated that C.B. reported that the
improper sexual encounters may have occurred "two or
three times, but he specifically remembered those two
incidences[.]" Additionally, Investigator Vallery
testified that C.B.'s statements were the only
"tangible proof" of the sexual encounters between
him and the defendant.
time of the trial, C.B. was 18 years old. He testified as
follows: the defendant moved back to the family's
property in March 2013; at that time, the defendant lived in
a house with J.W.B.; he (C.B.) lived nearby in a mobile home
with his mother, stepfather and siblings; on the day the
first incident of sexual abuse occurred, he went to the home
to visit his father; his father and stepmother left to attend
church; the defendant invited him into his bedroom to listen
to music; as they listened to music, he asked the defendant,
"Do you think [masturbating is] a sin?"; the
defendant asked him, "How did you get Timothy
off?"; shortly thereafter, the defendant asked,
"Can I see how big yours is?"; he understood that
the defendant was referring to his "private part";
he told the defendant, "Yes" and "pulled it
out . . . and he started sucking me and then I was . . .
sucking his private part"; the defendant ejaculated in
his mouth and told him, "I'm sorry"; when he
got ready to leave, the defendant told him, "I don't
think it's wrong if you don't tell anybody"; the
second incident occurred at his (C.B.'s) house; the
defendant came to his house and they went into his bedroom;
the defendant started playing with himself then began
"messing with my private parts and then he started
sucking my private parts and then I started sucking his, but
I stopped"; the defendant told him "Don't tell
anybody"; he does not recall a third sexual encounter
involving the defendant; initially, he did not tell anyone
about the sexual abuse and considered committing suicide; he
finally decided to tell his mother "what happened
with" the defendant and Timothy; he asked his mother not
to "go to the police" because he "didn't
really know what to do"; he was worried that "if
[he] told it, [the defendant] would go to jail for a long
time"; he eventually went to live with his aunt who
"already knew about it"; his aunt asked "if it
was true"; when he confirmed that the encounters
occurred, his aunt persuaded him to report the incidents to
the sheriff's office; he was interviewed by Investigator
Vallery; he was 15 years old when the incidents occurred; he
made a Facebook post about his feelings regarding the
incidents; and J.B. responded that "the same thing"
had happened to him.
cross-examination, C.B. testified as follows: during his
interview with Investigator Vallery, he initially stated that
the first sexual encounter with the defendant occurred at his
home and the second incident occurred at the defendant's
home; after the incidents, he continued to visit his
father's home when the defendant was "off
working"; and he recalled telling Investigator Vallery
that he had two sexual encounters with the defendant and
"numerous" encounters with Timothy.
was 23 years old at the time of trial. He testified as
follows: he was "kind of raised" by his grandmother
at J.W.B.'s residence; during that time, the defendant
lived "in and out of the house"; when he was
"about ten years old, " he awakened during the
night to find the defendant in his bedroom "playing with
[him], sucking on . . . [his] penis"; he was asleep when
the defendant entered the room, but he "woke up and
[his] pants were down and [the defendant] was doing it";
the defendant did not say anything to him at the time; he
believes he was 10 years old at the time of the incident
because he remembers that he was in the fifth grade and that
he had to get up for school the following day; he told C.B.
about the incident with the defendant because C.B. "was
going through a hard time" and he wanted to "try to
give him a little support"; he did not tell anyone about
the incident at the time because "[i]t was just kind of
an embarrassment"; he saw the defendant "a
lot" after the incident and he "just kind of acted
like it never happened, went on about [his] life"; he
never had a conversation with the defendant about the
incident; and in 2007, he was present in the motel room when
the defendant had sexual intercourse with his
then-15-year-old female cousin.
cross-examination, J.B. testified that he was unable to
recall the specific date the defendant raped him. He stated,
"After you sit there for fifteen years and try to block
something out[, ] I mean - you just might have a little
trouble - you have to think about it a while." J.B. also
testified that he was unable to recall how many people he
spoke to about the rape since he revealed the incident to
C.B. Further, J.B. stated that he first told Investigator
Vallery that he was eight or nine years old when the
defendant committed the offense. J.B. reiterated that the
offense occurred during the night. He stated, "I woke up
and my pants were down and he was - had his mouth on my
thing." Additionally, J.B. testified that he told
Investigator Vallery that Timothy had done "the same
thing that [the defendant] did[.]" Thereafter, J.B.
testified that he was certain that it was the defendant, and
not Timothy, who performed oral sex on him that night. He
explained that although it was dark outside, he could see the
defendant from the light shining through the
window. Further, J.B. testified that he continued
to see the defendant and would "hang out with him like
nothing happened" because "it was just kind of an
embarrassment to think about it, and you kind of hope a
person wouldn't ever do that kind of stuff again[;] I
mean it's your cousin you've always been around you
know, you don't see them like that." Additionally,
J.B. admitted that, other than his testimony, he did not have
"any other kind of evidence or proof that [the rape]
C.B.'s mother, also testified at trial. She stated that
she recalled C.B. telling her about the sexual abuse shortly
before his 16th birthday. She stated that C.B. told her that
the defendant "made him" have "oral sex with
him" on two occasions.
cross-examination, R.M. testified as follows: she did not
report the sexual abuse to the police department initially
because C.B. "didn't want me to do it right
then"; she told Investigator Vallery that the defendant
had performed oral sex on C.B. on one occasion; she could not
remember the exact month or day that C.B. told her about the
incidents; and she never witnessed any sexual conduct between
the defendant and C.B.
the brother of the defendant and the half-brother of C.B.,
testified as follows: in 2014, C.B. told him about the
incidents with the defendant; he "very distinctly
remember[s]" C.B. telling him that he was 14 years old
when the incidents occurred; and the incidents could not have
occurred because the defendant was incarcerated when C.B. was
14 years old.
cross-examination, S.B. testified as follows: C.B. told him
that the defendant had "fooled with" him on more
than one occasion; he did not recall when the defendant
returned home after being released from prison; he believed
C.B. was "lying to the jury"; he did not tell the
sheriff's office or the district attorney's office
about his suspicions that C.B. was not being truthful; he was
unaware that C.B. told Investigator Vallery that he was 15
years old when the incidents occurred; he believes J.B. is
"a liar"; he believes the 15-year-old female
relative with whom the defendant had sexual intercourse with
was being truthful; and he believes Investigator Vallery was
"absolutely" lying about the incidents.
S.B.'s wife, corroborated S.B.'s testimony that C.B.
told them that he was 14 years old when the incidents with
the defendant took place. She stated that C.B.'s
statements "just sounded retarded" because she
believed the defendant was incarcerated when C.B. was 14
years old. A.B. also testified that she believes the
defendant "is innocent" and could not have
committed the crimes against C.B. On cross-examination, A.B.
admitted that she did not inform law enforcement that the
defendant was incarcerated and could not have committed the
crimes against C.B. She also stated that she believes C.B.
"was mistaken" about the allegations.
the father of the defendant and C.B., also testified that
C.B. told him that he was 14 years old when the incidents
occurred, and that the defendant was incarcerated during that
year. On cross-examination, J.W.B. testified as follows: he
talked to C.B. about the allegations at C.B.'s wedding in
September 2015; he did not offer C.B. money and a truck to
recant his statements against the defendant; he was not
surprised by the nature of C.B.'s allegations, but he was
surprised by the timing; he was not aware that C.B. told the
investigator that he was 15 years old when the incidents
occurred; he did not tell police officers or the district
attorney's office that the defendant was incarcerated
during the time C.B. alleged the abuse took place; he
believes the defendant should "be punished" if he
committed the acts against C.B. and J.B.; and he could not
testify that either C.B. or J.B. was lying about the
was called to testify as a rebuttal witness. He testified as
follows: he did not tell anyone that he was 14 years old when
the defendant committed the acts; he was 15 years old when
the incidents occurred; his father offered to give him a
truck and partial ownership in a house in exchange for
recanting his allegations against the defendant; his father
approached him at his wedding in September 2015 and attempted
to persuade him to "come up here and say none of this
ever happened"; the first time the defendant performed
oral sex on him occurred approximately one week after the
defendant was released from prison in 2013; and the defendant
was in prison when he (C.B.) was 14 years old.
wife testified that she was present in the vehicle during the
conversation between C.B., S.B. and A.B. She stated that C.B.
did not mention how old he was when the incidents occurred.
conclusion of the trial, the jury found the defendant guilty
as charged. The trial court sentenced the defendant to life
imprisonment at hard labor without the benefit of parole,
probation or suspension of sentence for the aggravated rape
conviction and seven years at hard labor for the indecent
behavior with a juvenile conviction. The sentences were
ordered to run concurrently.
defendant now appeals.
defendant contends the evidence was insufficient to support
his convictions. He argues that the testimony of the victims
was inconsistent with their prior statements to law
enforcement officers. He also argues the victims'
statements were unreliable due to the "extended
delay" in reporting the incidents.
standard of appellate review of a sufficiency of the evidence
claim 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.
Tate, 2001-1658 (La. 5/20/03), 851 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 La.
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, 1996-1048 (La. 10/4/96), 680 So.2d 1165. On
appeal, a reviewing court must view the evidence in the light
most favorable to the prosecution and must presume in support
of the judgment of the existence of every fact the trier of
fact could reasonably deduce from the evidence.
appellate court does not assess the credibility of witnesses
or reweigh evidence. State v. Smith, 94-3116 (La.
10/16/95), 661 So.2d 442. A reviewing court accords great
deference to a jury's decision to accept or reject the
testimony of a witness in whole or in part. State v.
Eason, 43, 788 (La.App. 2d Cir. 2/25/09), 3 So.3d 685,
writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913,
cert. denied, 561 U.S. 1013, 130 S.Ct. 3472, L.Ed.2d
1068 (2010); State v. Hill, 42, 025 (La.App. 2d Cir.
5/9/07), 956 So.2d 758, writ denied, 2007-1209 (la.
12/14/07), 970 So.2d 529.
there is conflicting testimony about factual matters, the
resolution of which depends upon a determination of the
credibility of the witnesses, the matter is one of the weight
of the evidence, not its sufficiency. State v.
Speed, 43, 786 (La.App. 2d Cir. 1/14/09), 2 So.3d 582,
writ denied, 2009-0372 (La. 11/6/19), 21 So.3d 299;
State v. Allen, 36, 180 (La.App. 2d Cir. 9/18/02),
828 So.2d 622, writs denied, 2002-2595 (La.
3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So.2d
1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404,
158 L.Ed.2d 90 (2004). In the absence of internal
contradiction or irreconcilable conflict with physical
evidence, one witness's testimony, if believed by the
trier of fact, is sufficient support for a requisite factual
conclusion. State v. Gullette, 43, 032 (La.App. 2d
Cir. 2/13/08), 975 So.2d 753; State v. Burd, 40, 480
(La.App. 2d Cir. 1/27/06), 921 So.2d 219, writ
denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.
sexual assault case, the testimony of the victim alone is
sufficient to convince a reasonable fact-finder of a
defendant's guilt beyond a reasonable doubt. State v.
Rives, 407 So.2d 1195 (La. 1981); State v.
Wade, 39, 797 (La.App. 2d Cir. 8/9/05), 908 So.2d 1220;
State v. Elzie, 37, 920 (La.App. 2d Cir. 1/28/04),
856 So.2d 248, writ denied, 2004-2289 (La. 2/4/05),
893 So.2d 83. Furthermore, such testimony alone is
sufficient, even where the state does not introduce medical,
scientific or physical evidence to prove the commission of
the offense by the defendant. State v. Wade,
in 2001 through 2003,  La.R.S. 14:42 defined the crime of
aggravated rape as follows:
Aggravated rape is a rape . . . where the anal, oral, or
vaginal sexual intercourse is deemed to be without lawful
consent of the victim because it is committed under any one
or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack
of knowledge of the victim's age shall not be a defense.
D. (1) Whoever commits the crime of aggravated rape shall be
punished by life imprisonment at hard labor without benefit
of parole, probation, or suspension of sentence.
instant case, the evidence established that J.B. was under
the age of 13 years when the aggravated rape occurred. In his
statement to Investigator Vallery, J.B. stated that he was
between the ages of "eight and ten" when the
defendant performed oral sex on him. However, during the
trial, J.B. testified that he was ten years old at the time.
Although J.B. admitted that he provided Investigator Vallery
with a range for his age when the rape occurred, at trial, he
explained that he remembered that he was in the fifth grade
and he had to attend Mangham Elementary School the following
day. Additionally, J.B. specifically recalled being awakened
during the night to find the defendant performing oral sex on
him. Although the incident occurred during the night, he
testified that light was coming in through the window, and he
was able to see the defendant, not Timothy, performing the
act. J.B. admitted that he did not tell anyone about the
incident because he was "too embarrassed" to do so.
Further, he testified that the statements he made to the
investigator were truthful.
clear from the verdict that the jury believed and found
credible J.B.'s testimony. Consequently, after viewing
the evidence in the light most favorable to the prosecution,
J.B.'s testimony that the defendant performed oral sex on
him when he was 10 years old was sufficient to prove that the
defendant, who would have been 20 or 21 years old at that
time, committed the offense of aggravated rape. This
assignment lacks merit.