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State v. Thibeaux

Court of Appeals of Louisiana, Third Circuit

October 11, 2017

STATE OF LOUISIANA
v.
NATHANIEL CLIMES THIBEAUX AKA NATHANIEL THIBEAUX

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 152704 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

          Annette Fuller Roach, Lake Charles0 COUNSEL FOR: Defendant/Appellant - Nathaniel Climes Thibeaux aka Nathaniel Thibeaux

          Keith A. Stutes District Attorney, Kenneth P. Hebert Assistant District Attorney COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.

          ULYSSES GENE THIBODEAUX, CHIEF JUDGE.

         Defendant Nathaniel Climes Thibeaux was convicted by a jury of three counts of aggravated rape of H.A. (DOB 2/14/01), [1] violations of La.R.S. 14:42(A)(1), and six counts of aggravated crimes against nature of H.A., violations of La.R.S. 14:89.1(A)(2)(a). The trial court sentenced Mr. Thibeaux to life at hard labor without the benefit of probation, parole, or suspension of sentence for each count of aggravated rape, to run concurrently with each other. The trial court also sentenced Mr. Thibeaux to ten years without benefit of probation, parole, or suspension of sentence for each count of aggravated crime against nature, to run concurrently with each other but consecutively to the three counts of aggravated rape. Mr. Thibeaux now appeals his conviction to this court. For the reasons that follow, we modify the verdict and render a judgment of conviction of the lesser included offense of forcible rape on counts one and two and of the lesser included offense of sexual battery on count three. We remand for resentencing on these counts.

         I.

         ISSUES

         We must decide:

(1) whether the assistance of counsel provided to Mr. Thibeaux fell below that guaranteed by the Sixth Amendment of the Constitution of the United States;
(2) whether the evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a reasonable doubt that Mr. Thibeaux committed aggravated rape of H.A.; and
(3) whether Mr. Thibeaux's convictions for both three counts of aggravated rape and three counts of aggravated crimes against nature involving sexual intercourse are in violation of the Fifth Amendment's prohibition against double jeopardy.

         II.

         FACTS AND PROCEDURAL HISTORY

         Mr. Thibeaux is accused of nine separate acts of sexual misconduct, including sexual intercourse, with his thirteen to fourteen-year-old stepdaughter, H.A., that occurred over a ten-month period between August 2014 and June 2015. The State presented the details of the various crimes to the jury through H.A.'s testimony, her videotaped Hearts of Hope interview, and the report made during her sexual assault examination.

         At trial, H.A. testified that the first time Mr. Thibeaux molested her was in August 2014 right before school started. She explained how she was awoken from her sleep when she felt Mr. Thibeaux touching her breasts and vagina, both above and underneath her clothes. This occurred in her bedroom at the apartment she lived in with her mother and stepfather. H.A. also told of another time when her mother almost caught Mr. Thibeaux molesting her in her bedroom:

She came inside, she came into my room and he was in my room. And he just jumped off the bed and he pretended he was praying. He said he was praying with me or something. And then she got really angry. Then she went in the living room. And he told me to hurry up to put on my clothes and then he left and went meet her in the other room.

         When her mother asked if Mr. Thibeaux had touched her, H.A. told her mother that he had not because, she explained, Mr. Thibeaux had told her to say "no" if her mother ever asked such a question.

         Sometime around November 2014, the family moved from the apartment into a house. H.A. testified that, about a week or two after the move, Mr. Thibeaux told her to go sleep on the sofa in the living room. After her mother fell asleep, he came into the living room, took off H.A.'s pants, touched and licked her breasts and her vagina, and then "put" his penis into her vagina. She further explained:

The first time he did it, he used a condom. And then he would try to whip me and I would go screaming. Well, I didn't really scream but I thought, you know, it would make him a little nervous so I started making little noises. And he would tell me, "It's all right. You can do anything with me but don't say anything. And I would move my legs and he would try to move them down."

         In her recollection of that sexual encounter, H.A. also described a separate time when Mr. Thibeaux instructed her to open her legs, applied vaseline to her vagina, and then penetrated her vagina with his penis. After a while, he ejaculated on her stomach and "wipe[d] it off with a towel." She explained that she did not try to push Mr. Thibeaux off because she "was afraid that he might do more than that." She decided to "just face[] it."

         When asked if there was ever a time that Mr. Thibeaux "put" his penis anywhere else, H.A. spoke of when she was in the living room on the phone with her boyfriend and Mr. Thibeaux got on the sofa, pulled off her pants, pulled down his pants, and penetrated her vaginally with his penis. After she told him to stop, Mr. Thibeaux "put" his penis in her anus. Although she tried to stop him, "he kept holding [her] down. After a while he just did it." At trial, she stated that was the only time Mr. Thibeaux "put" his penis "in her butt."

         The State then asked H.A. whether there was any other time "where he had sex with you and you resisted him." In response, H.A. told of when her mother left to pick up her brother from Breaux Bridge Highway. H.A. had just taken a shower when Mr. Thibeaux came into her room naked and told her to hurry up before her mother came back. He then had vaginal intercourse with her. H.A. testified that the last time Mr. Thibeaux had sex with her was in her room on June 8, 2015.

         When asked if Mr. Thibeaux ever did anything to her other than sex, H.A. stated that he would touch her "on the outside" and make her touch his penis. She recalled a time when "[h]e was in the living room and he had pulled me down. He had pulled his pants down and he said something and then I was crying and he told me to hurry up and do it, to touch him." Questioned whether she did as he directed, H.A. responded: "Yes. After all that, he had stopped and I started crying." Overall, H.A. testified that Mr. Thibeaux molested her over fifteen times in the living room of the family home and about that many times in her bedroom.

         H.A. explained that she was too afraid to tell-afraid she would never see her mother happy again if she told-because her mother loved Mr. Thibeaux so much. She also stated that she was "really afraid and . . . didn't know what else would happen, that he could do something else like abuse, so I didn't do anything." H.A. further testified that Mr. Thibeaux threatened that she would not be able to see her boyfriend if she ever told anyone and that he told her to have sex with her boyfriend. But, on June 9, 2015, when her mother's brother finally asked her outright if Mr. Thibeaux was molesting her, H.A. explained that she felt comfortable telling both her uncle and her mother the truth because her mother was mad at Mr. Thibeaux. In fact, from Mr. Thibeaux's testimony, it was revealed that H.A's mother had kicked Mr. Thibeaux out of the family dwelling earlier that day. That night H.A. was taken to Our Lady of Lourdes Hospital (OLOL), where a sexual assault examination was performed. While no outward signs of trauma were noted, DNA was collected from the panties she was wearing as well as from the fitted sheet that both H.A. and her mother testified was placed only on H.A.'s bed.

         H.A. then recounted for the jury an incident that occurred after she had been removed from her mother's care. She recalled that her mother picked her up and brought her to Burger King where Mr. Thibeaux met them. When he approached the vehicle, H.A. started crying. Both her mother and Mr. Thibeaux then tried to get her to recant and say she was only having sex with her boyfriend, not her stepfather.

         On cross-examination, defense counsel asked H.A. whether she screamed, yelled, kicked, or did any of those things when Mr. Thibeaux came into her room that first time to which she responded in the negative. Defense counsel then asked if she was hurting when she went to the hospital to which she replied that she was not hurting, scratched, bruised, or bleeding. H.A. also admitted that she initially denied that Mr. Thibeaux had touched her when asked by her uncle, and she further admitted that she would often voluntarily go to the store with Mr. Thibeaux and even asked to go with him.

         H.A. acknowledged that she never told her mother what her stepfather was doing to her and never screamed for her mother. And even though she was on the phone with her boyfriend during one of the rapes, she did not tell him that she needed help. She knew her boyfriend's mother well but did not tell her anything, and she saw her uncle several times a month but did not tell him either. Although H.A. went to a counselor once a week during this time, H.A. did not speak to the counselor about what her stepfather was doing to her. In fact, she told the counselor that she liked Mr. Thibeaux and that everything in the house was fine.

         Her counselor, Mary Smith, testified, however, that she observed H.A. with Mr. Thibeaux, and while he was "very affectionate with her[, ]" H.A. was "very withdrawn." Ms. Smith recalled one instance in which her receptionist called her into the waiting area to observe Mr. Thibeaux's inappropriate "caressing" of H.A.: "he would sit by her and he would kind of caress her hair; very attentive. In sessions as well, he would be informative." When Ms. Smith asked H.A. about her relationship with Mr. Thibeaux, H.A. would withdraw and shut down. But Ms. Smith conceded, on cross-examination, that H.A. never told her of the alleged sexual molestation and she never saw any telltale signs of sexual molestation, which, by law, she would have been mandated to report.

         The State then played for the jury the video of H.A.'s Hearts of Hope interview, conducted on June 16, 2015. When asked why she was being interviewed, H.A. stated that she had been raped by her stepfather. She explained that Mr. Thibeaux started "messing with her all of a sudden" in August of the previous year and touching her almost every night. In November, Mr. Thibeaux started raping H.A. The last day Mr. Thibeaux raped H.A. was on Monday of the previous week. H.A. also described the Burger King incident when she and her mother saw Mr. Thibeaux.

         When asked to remember a specific time in August that Mr. Thibeaux touched her, H.A. told the interviewer that the first night, after she had fallen asleep, she felt fingers all over her body. She woke up scared, and Mr. Thibeaux told her to be cool and be quiet. She put the covers over her head and went back to sleep. H.A. said that Mr. Thibeaux touched her breasts and her vagina over and underneath her clothes and then went to bed.

         In her discussion of that incident, H.A. described another night when Mr. Thibeaux scared her by taking off her clothes and "licking" her vagina. Her mother "almost caught him" when she walked in, but Mr. Thibeaux hurriedly put the covers back on H.A., pretending he was praying with her. H.A.'s mother left the room mad. Mr. Thibeaux went to talk to H.A.'s mother and eventually called for H.A. He asked H.A. if he ever touched her, and H.A. said "no" because that is what Mr. Thibeaux told her to say.

         The interviewer reminded H.A. that she said Mr. Thibeaux began raping her in November. H.A. stated that she remembered it being November because that was when they moved into their house. Around the fifth day after they moved into the house, Mr. Thibeaux went to H.A.'s room and started touching her vagina underneath her clothes. He then pulled his shorts and H.A.'s shorts off, got on top of her, "put" his penis into her vagina, and started "humping" her. H.A. stated that it hurt for a while and then it stopped. The next day, no one talked about what happened. No one heard what was going on, and no one asked what was going on.

         Asked to describe another time, H.A. recounted when Mr. Thibeaux had told her to go sleep in the front room. After he came into the room, Mr. Thibeaux touched her underneath her clothes, took off her shorts, and started "licking" her. He then penetrated her vagina with his penis and "began humping." Because it was hurting, Mr. Thibeaux put vaseline on H.A.'s vagina and then penetrated her vaginally again with his penis.

         The interviewer asked H.A about a time when H.A. saw Mr. Thibeaux put on a condom. H.A. recalled when Mr. Thibeaux came into her room, started touching her, and pulled down her shorts. He put a condom on his penis, got on top of her, and "put" his penis in her vagina. Then Mr. Thibeaux started "humping" her and putting her in different positions. She explained that Mr. Thibeaux would pick her legs up and start "humping" her in such a position.

         On the Monday prior to the interview, H.A. recounted how Mr. Thibeaux came into her room, began touching her, and then penetrated her vagina with his penis. After about ten minutes, Mr. Thibeaux ejaculated and then went back into his room. In each sexual encounter, H.A. recalled that Mr. Thibeaux would "wipe off" any seminal fluid from her vagina with a towel and even one time with her school shirt. According to H.A., her mother was always asleep when Mr. Thibeaux did these things to her, and it was always nighttime.

         When the interviewer asked H.A. if Mr. Thibeaux ever talked to her about not telling anyone, H.A. stated that, before school one morning, he asked her if she was going to tell anyone. She told him she would not. The reason she did not want to tell anyone was because she was shy and scared. The interviewer asked H.A. if Mr. Thibeaux ever threatened her if she told someone. H.A. responded that Mr. Thibeaux told her that she would not be able to see her boyfriend if she ever told.

         The interviewer then inquired as to whether there was any time when Mr. Thibeaux "put his private" somewhere else besides in her vagina. H.A. said in reply that he "put" his penis in her "butt." She described how she was in the front room when Mr. Thibeaux came in and began touching her vagina. He then penetrated her vagina with his finger and started "humping" her in her anus, ejaculating in her anal canal. This, she clarified, was a completely different time than the other time something happened in the front room. She also said that it was painful when he penetrated her anally and that she tried to fight him, but Mr. Thibeaux held her legs. H.A. stated that he "put his private" in her anus another time, but she did not remember much about that time.

         In further clarification, H.A. stated that Mr. Thibeaux's penis did not "go anywhere else" besides her vagina and anus, but she did have to touch his penis. One night while watching T.V., Mr. Thibeaux told H.A. to come over, and he pulled down his pants. He then grabbed her hand and made her touch and rub his penis. H.A. said this was a completely different time than any other time she talked about. When she pulled her hand away, Mr. Thibeaux left to go to another room.

         After the video finished, the State called H.A.'s mother, Ashley Thibeaux, who testified that she initially believed her daughter. She even called Mr. Thibeaux and threatened him with violence for violating her child. When asked what Mr. Thibeaux said in response to her threat, Mrs. Thibeaux answered, "He told me that he didn't do anything and he told me that [H.A.] had came on to him." When questioned about the Burger King encounter and whether she had any concerns about bringing her daughter into a car with the man accused of molesting her, Mrs. Thibeaux replied that she had no such concerns after she saw her daughter embrace Mr. Thibeaux when he arrived at the restaurant. She further testified about how H.A. had recanted her story. Mrs. Thibeaux stated that H.A. told her that she was sleeping with her boyfriend and was afraid she was pregnant. When questioned if H.A.'s counselor ever told her that H.A. was having sex with her boyfriend but not having sex with Mr. Thibeaux, Mrs. Thibeaux answered, "No." She just remembered the counselor telling her that she thought H.A. was having sex with her boyfriend. H.A.'s counselor, however, denied ever making this statement when she took the stand.

         Mrs. Thibeaux admitted that she was with her husband in Opelousas in the weeks after H.A. reported the sexual assaults. And although she knew the police were looking for her husband, she explained that she did not call the police because H.A. told her nothing had happened between her and Mr. Thibeaux. Mrs. Thibeaux also testified that she and Mr. Thibeaux never had sex on H.A.'s bed. Though the family would share old sheets, the sheets from H.A.'s bed were new and only used on H.A.'s bed.

         On cross-examination, Mrs. Thibeaux testified that she never heard H.A. yell for help and never saw any suspicious conduct between H.A. and Mr. Thibeaux. She also testified that she had caught H.A. lying to her about school and about her boyfriend.

         Through the testimony of Jill Laroussini, a Registered Nurse and Sexual Assault Nurse Examiner (S.A.N.E.), the State introduced the report of H.A.'s sexual assault examination, performed on June 9, 2015, at OLOL. According to the report prepared by Ms. Laroussini, H.A. affirmed that her vagina was penetrated with a penis, finger, and tongue; that her anus was penetrated with a penis, finger, and tongue; and that there was penetration of H.A.'s mouth by a penis. Ms. Laroussini testified that her intent in the report was to refer to just the most recent sexual assault. H.A. also reported that she "go[t] on top of [Mr. Thibeaux]." According to the report, H.A. was getting "Depo[-Provera]" injections, which contain the hormone progestin and can be used for birth control and hormonal abnormalities.

         As for the section of the report addressing verbal threats, H.A. reported: "If I asked him to visit my boyfriend, he told me I have to do that if I want to go." The report further recorded that there were no threats of harm, choking, bites, hitting, burns, guns, knives, blunt objects, restraints, chemicals, or other weapons, but there was holding. Specifically, H.A. reported: "Holds my arms and my legs." Also contained in the report was H.A.'s narration of the sexual assault that allegedly occurred on June 8, 2015, about which Ms. Laroussini testified:

"Yesterday nine or 10:00 they was watching TV in her room. He came out the room and he sat on my bed and he stuck - -
. . . .
"He sat on my bed and he started me [sic] and stuff between my legs. I don't remember what he said. He started touching on my breasts. He put his mouth there. Took off my shorts and started [sic] lick on me. He took off his shorts. He put his private in me. Started humping me and stuff. I was fighting him and he pulled my arms away from him. After a while he stopped then he got off me and told me pull my shorts back on. Then he went back in my mama's room. I continued playing on my mama's phone and then I started crying. He put the liquid stuff on me." And then I signed as though it was done and then later in the exam she reported, "Back in time he was doing it while I was on the phone with my boyfriend. He wanted to know why I was crying."

         While Ms. Laroussini's physical examination of H.A. showed no tears, bruises, or other injuries, she noted that H.A. did have "quite a large amount of yellow-white liquid substance dripping from the vaginal vault." She explained that the yellow-white substance may have been a result of the body's creation of more mucus to wash out something that did not belong in the vagina. When asked if there was any evidence that H.A. had had sex recently, Ms. Laroussini replied:

On physical exam and direct visualization, I did not find injury. I can't say. I don't have the expertise to say whether a patient has had sex recently. But I can tell you that her report was consistent with my findings. And we do not see injury in about 85 to 90 percent of rape cases.

         On cross-examination, Ms. Laroussini stated that, when she examined H.A.'s anus, everything looked in the normal limits, and she did not chart the presence of hemorrhoids.

         Carolyn Booker, a DNA analyst who was accepted as an expert, testified about her analysis of the stains from H.A.'s fitted bed sheet and panties. According to her, a mixed DNA profile consisting of at least four contributors was obtained from the epithelial fraction of the seminal fluid stain on the sheet from which neither H.A. nor Mr. Thibeaux could be excluded as contributors. Ms. Booker explained that 99.996 percent of people in the world are expected to be excluded from this mixture, as H.A.'s boyfriend was. She further opined: "In the absence of identical twins, it can be concluded to a reasonable degree of scientific certainty that Nathaniel Thibeaux is the source of the DNA from the sperm fraction in the seminal fluid stain on the sheet."

         As for the sperm fraction of the seminal fluid on H.A.'s panties, Ms. Booker testified that three contributors were found. H.A. could not be excluded as a contributor to the epithelial fraction of seminal fluid found on her panties, but both Mr. Thibeaux and H.A.'s boyfriend were excluded as contributors. H.A. could also not be excluded from the sperm fraction on the panties, but both Mr. Thibeaux and H.A.'s boyfriend were excluded. Nevertheless, a mixed partial Y-STR profile was also obtained from the sperm fraction of the seminal fluid stain on the panties from which Mr. Thibeaux could not be excluded as a contributor, though H.A.'s boyfriend was again excluded.

         Explaining how Mr. Thibeaux could be excluded in the DNA profile but not excluded in the Y-STR profile, Ms. Booker testified: "The Y chromosome testing is a little bit more sensitive than the autosomal testing. And I got a better profile from the Y testing, so I can draw a conclusion that he could not be excluded as a Y donor." Moreover, because he could not be excluded on the Y-STR, she testified that it was possible that some of the samples she tested in the DNA profile were from Mr. Thibeaux. If she had a better sample, she would have been able to be more accurate.

         Ms. Booker testified on cross-examination that presumptive testing was positive for blood on the rectal swabs but not in the fingernail swabs collected during H.A.'s sexual assault examination. The vaginal swabs that were taken in the sexual assault kit showed no seminal fluid. Additionally, no spermatozoa were found on the vaginal, oral, or rectal slides. Ms. Booker also explained that seminal fluid comes from males only but that female epithelial cells can be mixed in the sample. She clarified on re-direct that, although there were three male contributors to the epithelial fraction of seminal fluid on the sheet, there was only one contributor to the sperm fraction-Mr. Thibeaux.

         The sole witness to testify for the defense was Mr. Thibeaux. He testified that he had been in prison four times-twice for distribution of cocaine and twice for possession of cocaine. Further, he denied raping, molesting, fondling, or any other activity with H.A. and also denied having oral, vaginal, or anal sex with H.A. When asked on cross-examination to explain why he would have told his wife that the reason he did what he did to H.A. was because H.A. came on to him, Mr. Thibeaux explained:

Well, I did say that. But the reason why I said that, a lot of people caught what I said in the wrong way. She came onto me as a father figure. [H.A.] and the rest of her kids really never had a father in their life.

         Again when asked if he raped and molested his stepchild at least thirty times, Mr. Thibeaux replied, "I haven't touched her, sir."

         In its closing statement, the State broke down the conduct that ...


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