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State v. Harris

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017

STATE OF LOUISIANA
v.
MARCUS HARRIS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-4496, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long Lynn Schiffman Douglas E. Rushton

          COUNSEL FOR DEFENDANT/APPELLANT, MARCUS HARRIS Jane L. Beebe

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert M. Murphy

          GRAVOIS JUDGE

         Defendant, Marcus Harris, appeals his conviction of one count of forcible rape of a juvenile, in violation of La. R.S. 14:42.1. For the following reasons, we affirm defendant's conviction and sentence.

         PROCEDURAL HISTORY

         On December 12, 2014, defendant, Marcus Harris, was charged in a bill of information filed by the Jefferson Parish District Attorney with one count of forcible rape of a juvenile (DOB 4/17/95), in violation of La. R.S. 14:42.1.[1]Defendant pled not guilty at his arraignment on December 15, 2014.

         Trial commenced on September 6, 2016 before a twelve-person jury that found defendant guilty as charged. On September 19, 2016, defendant filed a motion for a new trial and post-verdict judgment of acquittal, which was denied on September 26, 2016. On October 6, 2016, the trial court sentenced defendant to thirty years imprisonment at hard labor.[2] Also on October 6, 2016, the State filed a habitual offender bill of information, alleging defendant to be a fourth felony offender. Subsequently, on October 17, 2016, the State amended the habitual offender bill of information, alleging defendant to be a second felony offender, to which defendant stipulated. On that same day, the trial court vacated the original sentence and resentenced defendant under the habitual offender statute (La. R.S. 15:529.1) to thirty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On October 18, 2016, defendant filed a motion for an appeal, which was granted by the trial court on October 20, 2016. This appeal followed.

         FACTS

         Cynthia Deviney was the school counselor at Bissonet Plaza Elementary School in September 2009. During her time as school counselor, she began to counsel A.R. and her half-sister, R.G.[3] Ms. Deviney explained that she counseled both girls regarding their behavior-their lack of focus-and assisted them with homework.[4] She counseled them at school and also at their home nearby on Kawanee Avenue. She described that after a successful first and second home visit with the girls, their father (defendant), and Penny Myers[5] (defendant's live-in girlfriend at the time), she returned a third time but was denied entrance into the home. She recounted that "the girls were very upset that [she] was there" and that they told her that their "daddy ha[d] absolutely forbidden" her to come into the house. After that, she just met and worked with the girls after school.

         Ms. Deviney testified that subsequently, on March 1, 2010, R.G. came to see her, and "she was very, very, very upset." Ms. Deviney described that she had "never seen her like that before." After Ms. Deviney asked R.G. what was the matter, R.G. told Ms. Deviney that "her father had molested her." R.G. provided Ms. Deviney with details about what had happened to her the night before. R.G. also told Ms. Deviney that it had happened three times before the incident the previous night. Ms. Deviney also spoke with A.R., who was reluctant at first, but told Ms. Deviney that her "father did it to [her]" and that "he stuck it to [her]." After these disclosures, Ms. Deviney called the police and the Department of Child and Family Services ("DCFS"), [6] who arrived at the school and interviewed the girls.

         Deputy Eric Meaux with the Jefferson Parish Sheriff's Office responded to the call regarding a report of two juveniles "reporting rape" at Bissonet Plaza Elementary School on March 1, 2010. After his arrival at the school, Deputy Meaux spoke with Ms. Deviney, who informed him that the girls "were making a report that they had been raped by their father." He spoke separately with both A.R. and R.G.: R.G. provided details consistent with what Ms. Deviney told him, and while A.R. disclosed inappropriate acts, she did not provide details and "was very distant and withdrawn during questioning." After he spoke with the girls, Deputy Meaux turned the case over to the detectives in the Personal Violence Unit.

         Detectives Kay Horne and Randall Fernandez with the Jefferson Parish Sheriff's Office Personal Violence Unit participated in the investigation regarding defendant, A.R., and R.G. When Detective Horne arrived at the school, she met with each of the girls. She testified that A.R. told her that "the night before that her father had entered her room and stuck his stuff inside of her." She testified that R.G. disclosed sexual abuse by her father and that the information she provided was consistent with what she told Ms. Deviney and Deputy Meaux.

         At some point later that day, defendant and Ms. Myers arrived at the school, and Ms. Deviney alerted them to the allegations. Ms. Deviney described that defendant was "very upset" and said he "would never do anything to [his] girls." She testified that he and Ms. Myers eventually left the school. Deputy Meaux testified that while he was speaking with A.R., Ms. Deviney came in to tell him that defendant and Ms. Myers arrived at the school, she apprised them of the situation, and sent them home. He described that if he had encountered defendant at the school, he would have placed him under arrest. After speaking with the girls, another officer in Detective Horne's unit applied for a search warrant of the girls' home at 6404 Kawanee Avenue. She executed the warrant later that day and encountered Ms. Myers at the home; defendant was not present at the home at that time.

         A.R., sixteen years old at the time of trial, admitted that when she was nine, she told Ms. Deviney something about her "dad … touching [her] or something, " but that the night before, her sister, R.G., "told [her] to tell something." A.R. explained that R.G. threatened her, telling her if she did not tell, R.G. would "kill [her]." At trial, A.R. testified that her father never touched her and that she had lied to Ms. Deviney when she told her that he did.

         R.G., twenty-one years old at the time of trial, testified that she started living with defendant in 2009 when she was fourteen; prior thereto, she lived with her mother and stepfather. She stated that her stepfather was physically abusive to her and her mother, which is why she went to live with defendant. She explained that she liked living with her father until "weird stuff" started happening. She elaborated that defendant told her he wanted her to be the "woman of the house, " and that at night before bed, he tried to kiss her on the mouth instead of on her cheek. She explained that "he'd try to get a kiss, and it was weird. It was always when Ms. Penny wasn't home." She testified that she talked to A.R. about the "weird stuff, " and A.R. told her that defendant "tried to put it in her butt one time." R.G. expressed to A.R. the need to tell somebody, but did not say anything right away. She expressly denied threatening A.R. about telling someone.

         R.G. described that a few nights later, defendant came into her room and started to "tickle [her]." She recalled that defendant rolled her over onto her stomach, "climbed over [her]" and tried to pull her pants down; she was holding them, and he pulled them "down hard" and it "hurt [her] finger." She testified that "he then started to have intercourse with [her]." She elaborated, stating, "he stuck his thing inside of me … [his] penis … in my vagina." She described that she did not "do nothing because [she] was scared, " and that "it hurt, " and that she did not scream "because [she] was scared" and "didn't know what was going to happen" if she had screamed. She described that she just "laid there" with "tears in [her] eyes." After "he was finished, " defendant left her room and went to his bathroom. She rolled over on her bed and touched something wet, and when she turned on the light, saw a "big white spot" on her sheets. She put a pillow over it and "just laid there." She described that the next morning, she noticed blood in her underwear, and "tried to wash them out" and hung them in her bathroom. At school that day, she "didn't do nothing, " but eventually realized that if she stayed quiet, "it just might continue, " and so she told Ms. Deviney.

         R.G. described that after the disclosure, after she spoke with police and DCFS, and after she was placed in a foster home, she "started losing it, " and was placed in a mental hospital. She explained that she "felt disgusting" and "hated [herself] for a while … and blamed [herself] for the longest." She also testified that she tried to commit suicide "a couple of times."

         Penny Myers Ramey testified that she met defendant when she was seventeen. At first she and defendant were friends, and "it turned into a relationship." She ultimately moved in with defendant, who was approximately thirty-three at the time, and A.R. at his home at 6404 Kawanee Avenue. She recalled that at some point, R.G. moved in. Ms. Myers recalled that "it seemed like [R.G.] was excited to finally meet her dad, " but then "it progressively got worse over time." She generally described their home life-the girls had to clean their rooms and do daily chores. She testified that defendant told the girls there were cameras in the home, even though there were none, as a "scare tactic." She described "odd" conversations she and defendant had about R.G.-defendant would tell her "what can you do for me that my daughter can't?" She testified that "as a young woman … [she] never really understood it until now … [it] makes a lot more sense now." She recounted that one time, she saw that R.G. had a "passion mark" or "hickey" on her neck, that defendant explained was the result of her little brother, who was visiting at the time, kicking her in the neck. It struck her as odd, though, that defendant had R.G. put a "frozen spoon on it, " and that later, defendant changed the story and told her "there were boys running in and out of the house" that the girls were sneaking in.

         Ms. Myers testified that on March 1, 2010, when she arrived home after work and R.G. was not home, she and A.R. walked to the school; she figured that [R.G.] was there because she "would normally go to counseling with Ms. Deviney." She arrived at the school and encountered R.G. in Ms. Deviney's office crying. Defendant arrived at the school soon thereafter, and Ms. Deviney told them about the allegations. Ms. Myers testified that defendant "said that he had to go to the house and [R.G.] was making up stories. So he told [her] to follow him. And at that point [they] went to the house, and [defendant] took [R.G.]'s sheets off her bed and put them in the washer." She recalled that defendant showed her the stains, that she recognized as semen, on the pillowcase and bedsheets, and he blamed "those boys sneaking into the house" for the stains saying that he "didn't want to get blamed for it." She testified that he put the linens in the washer and told her that "he had to get out of there before he got blamed for something." She elaborated that she thought he had a warrant at the time, which was "why he explained why he was running." She explained that she put the sheets back on R.G.'s bed after they finished drying. R.G.'s bed sheets and comforter were seized as evidence pursuant to the search warrant executed later on March 1, 2010. Detective Fernandez elaborated that R.G.'s sheets from her bed, including the fitted sheet, flat sheet, pillow case, and comforter were seized, as well as the pair of green underwear that R.G. had hung in her bathroom.

         Dr. Mark Carbon, an emergency room physician at Children's Hospital, testified that on March 1, 2010, he met with and examined A.R. and R.G. He performed a Physical Evidence Recovery Kit ("PERK") on each of the girls, which included a number of swabs on specific areas to collect the evidence. He testified that he did not observe any physical injuries to their genitals; he explained that their exams were "completely normal, which is typical in most sexual abuse cases."

         Staci Lanza Hughes worked at the Jefferson Parish Child Advocacy Center as a forensic interviewer in 2010. She conducted a forensic interview with both A.R. and R.G. on March 12, 2010. The video of each girl's forensic interview was published to the jury. In the video, R.G. gave statements consistent with her earlier disclosure.

         Anne Troy, qualified as an expert as a pediatric nurse practitioner, specializing in child maltreatment, including physical, mental, and sexual abuse, testified that while she did not personally examine A.R. and R.G., she reviewed documents related to this case. She explained generally that in her experience, behavioral issues are common in children who have been victims of sexual abuse. She concluded that while there were no physical findings of sexual abuse related to R.G., she found that R.G. gave a "clear, detailed history of sexual abuse" by defendant. Also in R.G.'s case, she has had behavioral issues-"suicide ideations, the suspensions from school, the issues with anger and authority." Ms. Troy also explained that recantation is considered part of the process of disclosure because "what happens with an outcry and when children start to say things, they realize mom's crying, that there's people in their life who want to look at their private parts" and "they'll take it back to protect the adults" or because "they just want it all to stop."

         Pamela Williams Cyprian with the Jefferson Parish Sheriff's Office Crime Lab, who was qualified as an expert in the field of serological analysis of bodily fluids, first explained that serology is the study of serum, and more particularly, forensic serology involves the identification of bodily fluids, such as blood, semen, and saliva. She testified that she performed a serological analysis on certain pieces of evidence in this case. She described that she performed an acid phosphatase test, and explained that acid phosphatase is an enzyme present in seminal fluid, so "it makes it a good screen test for semen." She further explained that she first looked at R.G.'s PERK test, and found that both the genital swab and vaginal swab were positive for acid phosphatase. All the swabs from A.R.'s PERK test were negative for acid phosphatase. She tested R.G.'s fitted sheet which was negative for the presence of blood and semen. She also tested R.G.'s flat sheet, pillowcase, and comforter, and several of the stains were positive for acid phosphatase. She did further tests on the flat sheet, determining it was positive for seminal fluid. Also, looking through a microscope, she was able to locate sperm on the flat sheet, pillowcase, comforter, and the genital swab from R.G.'s PERK test.

         Sarah Serou, a forensic DNA analyst with the Jefferson Parish Sheriff's Office DNA Lab, conducted DNA analysis in this case. She received reference samples from defendant, A.R., and R.G. From the pillowcase, she tested a sperm fraction-the DNA profile obtained was consistent with a singular contributor, but because of the limited quantity of DNA, no conclusion could be made regarding the contributor status of defendant. From the sheet, she tested an epithelial fraction (skin cells)-the DNA profile was a mixture with the major contributor being consistent with R.G., but the minor contributor was at too low a concentration to determine a valid DNA profile. From the comforter, she tested an epithelial fraction-the DNA profile was consistent with being a mixture of R.G.'s and defendant's DNA. Other sperm fraction samples from the comforter, sheet, and pillowcase were tested and were consistent with defendant's DNA profile. Detective Fernandez testified that when he received the information that the DNA profile from the bedding was consistent with defendant, he applied for an arrest warrant on February 1, 2012. He was notified that defendant was arrested on the warrant in August 2014.[7]

         Defendant presented the testimony of several witnesses in his defense. His brothers (Charlie and Nathaniel), sister-in-law (Tara Seaberry), and mother (Judy Peters), all testified regarding how R.G. first came to stay with defendant. Charlie recounted that in 2009, when R.G. was living in Mississippi with her mother, she called him because she was "in trouble, " and he went to pick her up the next day. Nathaniel described that there was "some kind of altercation" in 2009, and Tara explained that they "had to get her because there was abuse." After, she lived with Nathaniel and Tara for approximately two weeks, then with Charlie for a while, then with Ms. Peters before she started living with defendant. Charlie testified that A.R. currently lives with him; he stated that he has not talked with her about the case, but described that "over the years she's had some episodes." Charlie used to speak with R.G., but stopped because "it got really uncomfortable" and "some of the things she was saying" "didn't make sense."

         ASSIGNMENT OF ERROR NUMBER ONE

         Sufficiency of the evidence

         In his first assignment of error, defendant argues that the evidence was insufficient to support the conviction. He asserts that the only evidence the State presented was R.G.'s uncorroborated testimony. Defendant claims that the residual sperm and DNA found on the flat sheet could not be date stamped as to when it was left there. He contends that since DNA remained after the sheets were admittedly laundered, it could have been from when the sheet was conceivably used by defendant and Ms. Myers. Defendant argues that the flat sheets and pillowcases were not proven to be exclusively used by anyone. Defendant concludes that the evidence was insufficient to support the requisite elements of the crime charged.

         The State responds that the victim gave a detailed and consistent account of events that established beyond a reasonable doubt all of the elements of the crime of forcible rape. The State relies on the victim's testimony that defendant rolled her over onto her stomach and tried to pull her pants down, that she held onto her pants and tried to resist, but defendant pulled them down hard, hurting her fingers, and started to have sexual intercourse with her. Moreover, the State adds that the victim's account was corroborated by the findings of the serological ...


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