STATE OF LOUISIANA IN THE INTEREST OF T. H.
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
C. Moore, III District Attorney Otha "Curtis"
Nelson, Jr. Cristopher J.M. Casler Assistant District
Attorneys Attorneys for Appellee, State of Louisiana
T. Dudley Baton Rouge, LA Attorney for Defendant-Appellant,
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
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
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. He now appeals,
challenging the sufficiency of the evidence on both counts.
victim, T.S., 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.
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.
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.
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.
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.
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.
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
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 ...