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State v. Green

Court of Appeals of Louisiana, Third Circuit

July 19, 2017



          John F. DeRosier COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Annette Fuller Roach COUNSEL FOR: Defendant/Appellant - Robert Neal Green

          Tara B. Hawkins Attorney at Law COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Karen C. McLellan COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.


         Robert N. Green was convicted of simple rape, a violation of La.R.S. 14:43. He was sentenced to twenty-five years at hard labor, to be served without benefit of probation, parole, or suspension of sentence. Green appeals the conviction and the sentence. Finding no reversible errors in the jury's conviction and no abuse of discretion in the trial court's sentence, we affirm the conviction and sentence and the judgment of the trial court.



         We must decide:

(1) whether the trial court improperly authorized the State to use a peremptory strike to exclude a Black prospective juror without proper justification;
(2) whether the evidence introduced at trial, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) standard, was insufficient to prove beyond a reasonable doubt, all of the elements of simple rape;
(3) whether the trial court erred in denying Green's motion for a new trial;
(4) whether trial counsel's representation of Green fell below the standard guaranteed by the Sixth Amendment of the Constitution of the United States; and
(5) whether the maximum sentence imposed by the trial court is excessive, in violation of the Eighth Amendment of the Constitution of the United States and La. Const. art. 1, § 20.



         Sometime between the night of October 31, 2009, and the morning of November 1, 2009, Robert Green committed simple rape of the victim, S.M.[2] (age seventeen). Green and the victim were both working at McDonald's on the night in question. Green provided the victim with alcohol and then asked her for a ride home. After consuming more alcohol, the victim passed out and awoke to Green on top of her, performing sexual intercourse. Both the victim and Green were nude. Green told the victim to get dressed and drove her home where they were met by the victim's distraught parents. The victim was later examined at the hospital, and she had a blood alcohol level of .08/.09%.



         Assignment of Error No. 2

         In this assignment of error, Green challenges the sufficiency of the evidence used to convict him. We address this issue first because if the evidence is insufficient, the defendant must be discharged as to the crime, and any other issues become moot. See State v. Hearold, 603 So.2d 731, 734 (La.1992).

         Green asserts that the evidence was insufficient to prove the elements of simple rape, specifically, sexual intercourse and lack of consent because of intoxication. At the time of the offense, La.R.S. 14:43 provided in pertinent part:

A. Simple rape is a rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances:
(1) When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity.

         When insufficient evidence is raised on appeal, the reviewing court determines whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). It is the fact finder's role to weigh the credibility of the witnesses; thus, the appellate court "should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review." State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.


         The first witness to testify for the State was Dustan Abshire, a detective sergeant with the Calcasieu Parish Sheriff's Office. He was contacted by a patrolman and informed that the victim was at Lake Charles Memorial Hospital. When Detective Abshire reached the hospital, the victim was being examined by a sexual assault nurse. After speaking with the nurse, Detective Abshire believed a rape may have occurred. Since the victim was intoxicated, Detective Abshire sent her home with her parents and stated that he would contact her later for an interview.

         When asked what led him to believe that Green was a suspect in the case, Detective Abshire responded:

A. According to [S.M.], she worked with Mr. Green at McDonald's. They got off about the same time. And, she advised he had asked her to bring him home that night. They went from that point - - instead of going home, she went - - he asked to bring her to the Exxon station - - the McDonald's excuse me. The McDonald's they worked at was the one at Broad and 14. When they got off of work he asked if she could go to the Exxon next door so he could pick up some more vodka. And, they went from there to wherever they went that night after that.

         Detective Abshire testified that he received a surveillance video corroborating S.M.'s testimony that she and Green had been at the Exxon across from McDonald's at approximately 11:20 p.m.

         Green's version of the night's events were different. Detective Abshire testified that in his statement Green said they both worked late, but left McDonald's separately:

He advised she left before he did, and he walked home. He said he - - she didn't get a ride from him. He did not go to the Exxon with her, and he didn't see her until approximately 4:00 that morning when she was intoxicated. He advised me that she was intoxicated and needed a ride home. He drove to his mother's house, contacted her, said that he was bringing a coworker home who was intoxicated and asked his mother to follow him home.

         Green's mother gave Detective Abshire a statement corroborating Green's statement.

         The following evidence was presented to the jury by stipulation:

The agreement is that the video shows a pickup truck owned by [the victim's father] and driven by [the victim], occupied by Mr. Robert Green, arriving at that Exxon station on October the 31st of 2009 between 11:15 p.m. and 11:20 p.m. And, it shows Robert Green exiting the passenger side of that pickup truck, entering the Exxon store, purchasing alcohol, appearing to be Taaka vodka, and exiting the Exxon station and re-entering that pickup truck on the passenger side.

         The victim testified that she was eighteen years old at the time of trial and that her birthdate was September 3, 1992. In October 2009, the victim worked at McDonald's on Broad Street in Lake Charles; she was seventeen and was a junior in high school. The victim had driven her dad's truck to work. She was scheduled to get off at 10:00, but her manager asked if she could work a little while longer. The victim said she knew Green by "Rob" but did not know much about him. They began having "small talk" and working the same shifts. When asked if she and Green were friends, she said "no" and described Green as an associate or co-worker. The victim stated that before she left work at 11:00, Green asked if she wanted some alcohol. The victim said, "Sure." She stated that he went on break, walked across the street, came back and gave her a drink in a small cup, containing alcohol mixed with orange-colored soda or Hi-C.

         According to the victim, she had only tried alcohol once before. She said she drank the entire drink given to her by Green, which she estimated was six ounces. She said she "chugged it" to get rid of it before leaving work. According to the victim, Green told her that he was going to get off early and would meet her outside. When they met outside, Green had more alcohol. When asked if she was feeling the effects of the alcohol after the first drink, the victim replied, "A little bit." After the victim accepted another drink from Green, Green asked the victim for a ride. At Green's request, she drove him to the Exxon across the street from McDonald's where Green bought more alcohol. Green then asked her to take him to his cousin's house. Green's cousin came out to the truck, and they visited for approximately twenty minutes. The victim said she had another drink at that time, which she fixed herself. Realizing she could no longer drive, the victim allowed Green to drive her dad's truck. She got in the back seat; Green backed the truck up; she saw the stop sign; but "after that, everything else just kind of went away, " and she blacked out.

         The next thing the victim remembered was coming to in Green's room and seeing Green naked on top of her:

Q. And, what was Robert doing?
A. At that time I didn't know, but I'm guessing it was sexual intercourse with me.
Q. Where was he when you saw him?
A. When I saw him he was straight on top of me.
Q. Did you have any clothes on?
A. No, ma'am.

         When asked if she had any doubts as to who was on top of her, the victim said, "No, ma'am. I have no doubts." The victim explained why she believed she had been asleep and why she believed Green was having sexual intercourse with her:

A. Okay. Were you asleep prior to this?
A. I believe so. Because, when I was coming to, I felt pain, but I didn't know where it was coming from. And, it was like I was coming out of my, you know, blackout. And, I didn't know where it was coming from. But, when I woke up I realized that, you know - - I realized where the pain was coming from.
Q. Okay. And, where was the pain coming from?
A. Down in this area down here. [Indicating her vaginal area].

         According to the victim, Green told her to change in the bathroom, and he gave her clothes to put on. No other words were spoken. As for the pain in the victim's vaginal area, the following colloquy took place:

Q. You said you felt pain in your vaginal area. Did it feel like he had penetrated you?
A. Yes, ma'am.
Q. Do you believe it was his penis or some other object? What was it?
A. I believe it was his penis.
Q. Okay. Did you - - so, you opened your eyes and he's penetrating you vaginally, and you don't say anything?
A. No, ma'am.
Q. Okay. Does he continue to penetrate you or - -
A. No, ma'am.
Q. - - does he stop at that time?
A. He stops at that time.

         After the victim changed into the clothes given to her by Green, Green led the victim to the truck. When asked why she did not ask Green any questions, the victim responded that she was still pretty intoxicated at that point and just wanted to go home.

Q. Okay. At any time did you give consent to having intercourse with Robert Green?
A. No, ma'am.

         As for the victim's memory of the night in question, the following colloquy took place:

Q. Were you all planning to go to his house to have sex that night?
A. No, ma'am.
Q. Or for any other reason, to continue to drink?
A. No, ma'am.
Q. Did y'all plan to go there just to hang out?
A. No, ma'am.
Q. Do you recall him inviting you to his house?
A. No, ma'am.
Q. Do you recall taking off your clothes at his house?
A. No, ma'am.
Q. Do you recall how you ended up nude?
A. No, ma'am.
Q. Do you recall your clothes being washed or how they got wet at all?
A. No, ma'am.
Q. So, all you know is what he told you about what happened?
A. Yes, ma'am.

         Since the victim was still intoxicated, Green drove her dad's truck. The victim remembered giving Green directions to her house and remembered going into Wal-Mart to use the restroom. When asked if she was aware when she was leaving Green's house and if she was awake while in the truck, the victim replied, "Yes, ma'am. I was awake." The victim saw Green's mother when she exited Wal-Mart. When asked if they made it to her house, the victim replied, "No, ma'am. . . . We got stopped on the corner right by my house." She stated:

A. I remember - - I remember feeling the truck stop. And, then I remember my passenger door just like swinging open. I remember my dad getting me out of the car. And, when I got out, that's when like they were, uh -- a cop car with lights on, and the church - - there's a church on that corner, in the church parking lot. And, I remember seeing my mom and my dad and a cop there . . . .

         The victim also remembered that she was on the cell phone with her sister when she felt the truck stop. The victim had her cell phone with her the entire night but did not remember it ringing. She remembered the police officer checking her alcohol level and then going home. She did not stay at home long, however, because her parents took her to the hospital when they noticed that she did not have anything on underneath the warm-ups. She said a bag containing her uniform and undergarments was in the truck.

         The victim testified that she was still "pretty drunk" when she got home and did not tell her parents anything. At the hospital, the victim was examined by a nurse. According to the victim, she was a virgin on October 31 and had not had sexual intercourse. The victim remembered giving a statement to Detective Abshire and telling the detective that she did not remember whether she woke up with Green on top of her and penetrating her. When asked to explain the inconsistency in her statement to police with her testimony at trial, the victim replied:

A. When he started questioning me, that was soon after, and there could have been some embarrassment there. But, later on, when I had to go in front of [the] grand jury they told me to - - he told me to actually really think. And, some of the things started coming back to me. And, then I remembered that part because I couldn't figure - - I remembered the pain vividly. . . .

         When asked if she was hung over after she left the hospital, the victim stated that she felt bad and slept most of the day. According to the victim, she did not have any bruises on her body when she went to work, except basketball bruises "mainly on [her] leg." She testified as follows:

Q. Okay. If the SANE nurse says that she saw bruises -- a bruise -- a big, purple bruise or dark bruise on the upper part of the buttock, can you attribute that to anything?
A. No, ma'am.
Q. Okay. And, if she said she found bruises on your neck or your collar bone, do you have any recollection of what that could be or where it could come from?
A. No, ma'am.
Q. Do you remember seeing those bruises on ...

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