FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. CR 152704 HONORABLE DAVID MICHAEL SMITH,
Annette Fuller Roach, Lake Charles0 COUNSEL FOR:
Defendant/Appellant - Nathaniel Climes Thibeaux aka Nathaniel
A. Stutes District Attorney, Kenneth P. Hebert Assistant
District Attorney COUNSEL FOR: Plaintiff/Appellee - State of
composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M.
Keaty, and Candyce G. Perret, Judges.
ULYSSES GENE THIBODEAUX, CHIEF JUDGE.
Nathaniel Climes Thibeaux was convicted by a jury of three
counts of aggravated rape of H.A. (DOB 2/14/01),
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.
(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
AND PROCEDURAL HISTORY
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
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.
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.
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."
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."
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
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,
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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
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.
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
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
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
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.
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.
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.
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."
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.
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.
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.
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
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.
when asked if he raped and molested his stepchild at least
thirty times, Mr. Thibeaux replied, "I haven't
touched her, sir."
closing statement, the State broke down the conduct that