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State v. Berry

Court of Appeals of Louisiana, Second Circuit

May 17, 2017

STATE OF LOUISIANA Appellee
v.
BRADLEY BERRY Appellant

         Appealed 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 for Appellant.

          BRADLEY BERRY Pro Se.

          JOHN M. LANCASTER District Attorney PENNY W. DOUCIERE KENNETH D. WHEELER Assistant District Attorneys Counsel for Appellee.

          Before WILLIAMS, DREW, and COX, JJ.

          WILLIAMS, J.

         The 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 requirements.

         FACTS

         The defendant, Bradley Berry, is the half-brother of C.B., [1] one of the victims in this case.[2] 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 offense.[3]

         In March 2013, the defendant was released from prison and moved back home with his father.[4] 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.

         During 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"[5]; 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.

         In 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.

         On 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.

          On 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[.]
C.B.: Really[?]
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*******[6]
C.B.: Oh[.] I'm so sorry big man[.] [T]hat's terrible[.] How old were you[?]
J.B.: About ten[.]
***

         Subsequently, 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 grandmother.[7]

         The 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.

         Prior 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[.]

         The 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.

         On 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.

         During 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.

         At the 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.

         On 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.

         J.B. 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;[8] 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.

         On 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.[9] 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] actually happened."

         R.M., 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.

         On 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.

         S.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.

         On 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.

         A.B., 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.

         J.W.B., 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 incidents.

         C.B. 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.

         C.B.'s 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.

         At the 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.

         The defendant now appeals.

         DISCUSSION

         The 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.

         The 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. Jackson, supra.

         The 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.

         Where 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.

         In a 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, supra.

         Aggravated Rape

         Effective in 2001 through 2003, [10] La.R.S. 14:42 defined the crime of aggravated rape[11] 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.

         In the 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.

         It is 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.

         Indecent ...


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