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State ex rel. T. H.

Court of Appeals of Louisiana, First Circuit

November 1, 2017

STATE OF LOUISIANA IN THE INTEREST OF T. H.

         On Appeal from the Juvenile Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. JU110793 Honorable Adam J. Haney, Judge Presiding

          Hillar C. Moore, III District Attorney Otha "Curtis" Nelson, Jr. Cristopher J.M. Casler Assistant District Attorneys Attorneys for Appellee, State of Louisiana

          Peter T. Dudley Baton Rouge, LA Attorney for Defendant-Appellant, T.H.

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ. [1]

          HIGGINBOTHAM, J.

         T.H., a child, was alleged to be delinquent and/or in need of supervision by petition based on one count of first degree rape in violation of La. R.S. 14:42(A)(1) (count 1), one count of first degree rape in violation of La. R.S. 14:42(A)(2) (count 2), one count of first degree rape in violation of La. R.S. 14:42(A)(5) (count 3), and one count of simple robbery in violation of La. R.S. 14:65 (count 4).[2] He denied the allegations, and following an adjudication hearing, the juvenile court found him not guilty of counts 1 and 2 and dismissed those charges, and adjudged him delinquent as to counts 3 and 4. Following a disposition hearing, T.H. was committed to the secure custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, until his 21st birthday, without benefit of parole, probation or suspension of sentence.[3] He now appeals, challenging the sufficiency of the evidence on both counts.

         FACTS

         The victim, T.S.[4], age fourteen at the time of this offense, testified at trial. According to T.S., she resided at Scotland Square Apartments (in East Baton Rouge Parish) with her grandmother, mother, younger brother and younger sister. On the morning of December 17, 2016, T.S.'s father, E.S., who did not live with them, picked up the children, and they returned to the apartment after lunch. That afternoon, T.S.'s grandmother asked T.S. to go to the mailbox and check the mail. While walking alone to the mailbox, T.S. was stopped by two boys (later identified as M.P. and D.L., also charged as noted herein). Although T.S. did not know the boys, she described herself as friendly and answered the boys' questions about her name, age and whether she had a boyfriend. The boys walked with T.S. to the mailbox, and M.P. asked T.S. for a hug. When she hugged him, D.L. took her cell phone out of her back pants pocket and ran off with it. T.S. asked M.P. to help her get her phone back, and M.P. offered to take her to D.L.

         As they approached an area behind the apartments where dumpsters were located, T.S. saw D.L. with her phone. T.S. saw another boy (later identified as T.H.) on the other side of a nearby fence/gate. When T.S. asked for her phone, the boys began passing it back and forth, and D.L. told her she was not getting the phone back until she let one of the boys "yeah", which T.S. was aware meant to have sex. Although T.S. told them she was not that kind of girl, she testified that the boys forced her. According to T.S., the boys pulled her pants down and despite her efforts to pull them up, the boys bent her over and "hit" her from behind, meaning to have intercourse from the back. T.S. testified the two boys kept switching positions, with one sticking his penis in her mouth while the other was behind her having intercourse with her. T.S. unequivocally testified that both M.P. and D.L. put their penis in her vagina, and at least one of them, possibly both, put their penis in her mouth. T.S. told one of the boys she had surgery on her mouth to try to avoid putting his penis in her mouth. During this activity, T.H. threw a condom to one of the boys, and at some point, T.H. came over the fence. Although T.S. recalled that T.H. got behind her, she was unsure what he did while behind her. In her statement with the Children's Advocacy Center, T.S. stated that T.H.'s pants were down, but she did not see his penis, and was unsure whether he put his penis in her vagina. T.S. testified that T.H, was not present when D.L. originally took her phone, and the only time T.H. had the phone was when they were playing with it.

         T.S., knowing that her father was at the apartment and hoping that he would catch the boys, told the boys there was $1, 000 at the apartment that she would give them to get her phone back. When the boys agreed, T.S. walked to the apartment with M.P. and D.L. According to T.S., T.H. had jumped back over the fence and left. T.S. entered the apartment with M.P. and D.L., but when her grandmother, who is deaf, came out of the bathroom and yelled, one boy called to the other and they both ran outside. As T.S. also ran outside, she saw her brother and told him that the boys attacked her and took her phone. Her brother then called their father, who was out looking for T.S., and as the father returned, he and T.S. got into his car in pursuit of the boys. They eventually got out of the car and ran after the boys but were unable to catch them. T.S. identified the three boys in court as the ones who committed these acts.

         T.S. testified she did not try to run or stop them when they began pulling her pants down because there were two boys on that side of the fence with her. When asked if she tried to "punch" them, T.S. testified that the boys told her if she hit them, they would hit her. T.S. testified that she did not consent to the sexual activity and did not consent to the taking of her phone, which she never got back.

         T.S.'s brother testified at trial that he also went to look for T.S. after his father called that he could not find her. As he returned to the apartment, he saw two boys, one in the apartment and one on the side of the building. T.S. was outside and told him the boys raped her. He called their father and told him what T.S. said, and when the boys started running, he tried to chase them until he saw them climb over a fence. He called the police while T.S. and their father looked for the boys. T.S.'s father, E.S., also testified at trial that he became concerned and went to look for T.S. As he returned to the apartment, T.S. and her brother ran toward him, and his son said boys took T.S.'s phone and raped her. He and T.S. pursued them in his car, then on foot, but were unable to catch them. Subsequently, E.S. obtained information from calling people and social media as to the name of one of the boys, which he gave to the police.

         Officer Amy Krumm with the Baton Rouge Police Department responded to the call, and after obtaining a statement from T.S. went to the area of the dumpsters, where she found a condom. Officer Krumm described T.S. as crying and emotionally upset. She observed dirt and grass stains on T.S.'s pants around the knees and up the legs and buttocks areas, and noted that her hair was somewhat disheveled.

         Wanda Pezant, a certified nurse practitioner, accepted by the court as an expert sexual assault nurse, examined T.S. that evening at the hospital. T.S. was very tearful, but alert and oriented during the examination. Nurse Pezant observed vaginal bruising, abrasions and redness and anal abrasions and redness. She also observed hymenal notching, which she testified was consistent with forced sexual intercourse. The injuries to the vaginal area were consistent with sexual intercourse. The injuries to the anal area were consistent with penetration, and although scarring and trauma in this area may often be found in cases of consensual sex, it is less common to see the abrasions and friction in the direction observed on T.S., which was the basis for her opinion that these injuries were consistent with forced penetration. Nurse Pezant opined that these injuries, while they may seem minor, were pretty dramatic and consistent with forced sexual assault, and she further opined that the statement given by T.S. was very consistent with the documented injuries.

         Although a rape kit was performed, at the time of the trial, the investigating officers were unaware of any DNA results. The condom found at the scene, the recorded statement of T.S. to the Children's Advocacy Center, the recorded statements of the three boys, T.H., M.P. and D.L., and surveillance video of the area were each admitted into evidence. The surveillance video did not include the area where the sexual assault was alleged to have occurred, but did include some limited footage of two of the boys following T.S. Each of the boys provided varying versions of the events, which each gradually included more incriminating details as the versions changed. In his statement to police, D.L. admitted to taking T.S.'s phone and to putting his penis in her mouth. Although he claimed the vaginal sex occurred in T.S.'s apartment, he admitted to vaginal sex and also confirmed that T.S. offered to give them $1, 000 for her stuff, which prompted them to go to the apartment. In his statement to police, M.P, admitted to putting his penis in T.S.'s mouth, and ...


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