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
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Robert M. Murphy
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.
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.Defendant pled not
guilty at his arraignment on December 15, 2014.
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. 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.
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,
Ms. Deviney explained that she counseled both girls regarding
their behavior-their lack of focus-and assisted them with
homework. 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 (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.
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"),  who arrived at the school and
interviewed the girls.
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.
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.
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
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.
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.
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
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
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.
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.
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
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.
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
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.
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.
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."
OF ERROR NUMBER ONE
of the evidence
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
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 ...