FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 15-02928,
DIVISION "E" Honorable Jacques A. Sanborn, Judge
Michael Nicosia, DISTRICT ATTORNEY Juliet Clark, Michael
Morales, ASSISTANT DISTRICT ATTORNEYS, St. Bernard Parish,
COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Gary Wainwright, COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Edwin A. Lombard, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew Woods.
Bartholomew Woods Judge.
Charles Williams ("Defendant"), appeals his jury
trial conviction of aggravated rape in violation of La. R.S.
14:42. In this appeal, Defendant raises several assignments
of error. Finding that the assignments lack merit, for the
following reasons, we affirm Defendant's conviction and
OF THE CASE
24, 2015, Defendant was charged by bill of indictment with
aggravated rape of K.P. in violation of La. R.S.
14:42. The bill of indictment alleged that during
2012 to 2014, Defendant raped K.P., who was under the age of
thirteen (13) during that time period. On July 13, 2015,
Defendant appeared for arraignment and pled not guilty.
February 6, 2017, the State filed a motion in limine
to exclude evidence of K.P.'s past sexual behavior
pursuant to La. C.E. art. 412, as well as a motion in
limine to limit the character impeachment testimony of
K.P. On April 4, 2017, the jury was selected and sworn in. On
the following day, outside the presence of the jury, the
trial court heard the outstanding motions in limine
and addressed Defendant's request to allow a Polaroid
photograph of his penis to be admitted into evidence. The
trial court granted the State's motions and ruled
Defendant's photograph inadmissible. The jury trial
began on April 6, 2017, and on April 7, 2017, the jury
returned a verdict finding Defendant guilty as charged.
April 19, 2017, Defendant filed a motion for new trial. On
April 25, 2017, the trial court denied the motion for new
trial and, after Defendant waived sentencing delays,
sentenced Defendant to life imprisonment, without the benefit
of parole, probation, or suspension of
sentence. On that same day, Defendant filed a motion
for appeal, which the trial court granted and set June 24,
2017, as the return date. The record was lodged in this Court
on June 28, 2017.
OF THE FACTS
first day of trial, Deputy Jay Bertheaud ("Dep.
Bertheaud"), of the St. Bernard Sheriff's Office,
testified that on June 17, 2014, he was dispatched to respond
to a complaint of sexual assault of a juvenile. According to Dep.
Bertheaud, K.P. advised that over the course of four (4)
years, she was sexually assaulted numerous times by
Defendant, who is her stepfather. K.P. further alleged that
Defendant penetrated her vagina with his penis. Thereafter,
Dep. Bertheaud contacted Lieutenant Michelle Canepa
("Lt. Canepa") of the Juvenile Investigations
Bureau to take over the investigation, which is protocol when
there is a complaint of sexual assault of a juvenile. Dep.
Bertheaud explained that K.P did not provide him with details
regarding the sexual abuse or the exact number of times the
assault occurred, and he did not request to search the house
for physical evidence.
Lt. Canepa of the Juvenile Investigations Bureau of the St.
Bernard Parish Sheriff's Office,  testified that, as the
on-call juvenile detective, she was assigned to the case,
after being contacted by a patrol supervisor regarding sexual
abuse by an "in-home perpetrator, " and responded
to the scene. Lt. Canepa testified that, because the alleged
suspect was K.P.'s stepfather, she conducted a brief
interview on June 17, 2014, at her office, away from the
residence that K.P. shared with her mother and Defendant.
During this interview, K.P. disclosed that Defendant had
placed his penis inside of her vagina on several occasions.
Once Lt. Canepa determined that the acts that K.P. described
constituted the crime of aggravated rape, she concluded the
interview and arranged for a forensic interview of K.P.
through the Audrey Hepburn Care Center, also known as the New
Orleans Children's Advocacy Center, at Children's
Hospital in New Orleans, Louisiana.
forensic interview took place the next morning on June 18,
2014. Lt. Canepa explained that K.P. was interviewed alone in
a separate room. This interview was recorded and authorized
law enforcement and/or Department of Children and Family
Service ("DCFS") personnel were permitted to
observe the interview from a closed-circuit television and
submit questions through an earpiece worn by the forensic
interviewer. After this initial interview, the forensic
interviewer questioned K.P. again on July 15, 2014, under the
same conditions. Lt. Canepa received two (2) DVDs containing
the interviews conducted of K.P. and furnished them to the
District Attorney's Office. She further stated that a
medical examination of K.P. occurred subsequent to the
Canepa confirmed that during the forensic interview, K.P.
provided details of the sexual abuse by Defendant. Lt. Canepa
explained that she did not attempt to seize the clothing that
K.P. had worn during the last incident of sexual abuse
because K.P. indicated, during the forensic interview, that
the clothing had been washed. Lt. Canepa admitted that she
did not go to the bedrooms where the incidents of abuse
allegedly occurred to seize bed sheets or look for stains on
the flooring. Lt. Canepa did not seize Defendant's
clothing or attempt DNA testing. She further testified that,
during one of the incidents, K.P. indicated that she had
bled, but no physical evidence was recovered to corroborate
the bleeding. Lt. Canepa admitted that the medical
examination did not show physical injuries or evidence of
abuse. Lt. Canepa agreed that the medical records indicated
that K.P. had a "normal hymen." Lt. Canepa stated
that she believed that K.W. was present in the home when
Defendant sexually abused K.P., but that she did not believe
that K.W. was aware of the sexual abuse. Lt. Canepa stated
that she was unaware of the specific dates and times the
sexual incidents occurred.
Canepa further testified that she spoke with Defendant via
telephone after K.P.'s first forensic interview and
advised Defendant that he was under investigation; Defendant
agreed to meet with Lt. Canepa, but never showed up. A
warrant for Defendant's arrest was issued in August 2014.
However, Defendant was not arrested until 2015. Lt. Canepa
stated that she spoke with K.W. after K.P.'s forensic
interview and advised her that an arrest warrant would be
issued for Defendant.
Holeman ("Holeman"), a forensic interviewer and
systems coordinator at the New Orleans Children's
Advocacy Center, was qualified as an expert forensic
interviewer pursuant to article 511 of the Louisiana
Children's Code. Holeman testified that she conducted two
(2) forensic interviews of K.P., on June 18, 2014, and July
15, 2014, which were recorded on two DVDs. Holeman explained
that she interviewed K.P. in a "neutral space" and
asked open, non-leading questions while law enforcement or
DCFS personnel observed from a monitoring room. The
recordings of Holeman's two forensic interviews of K.P.
were played in open court for the jury.
K.P.'s first forensic interview, recorded on June 18,
2014, she explained that her stepfather, Defendant, had been
molesting her since she was in the fourth grade when she was
either ten (10) or eleven (11) years of age. K.P. stated that
Defendant threatened that, if she told anyone about the
sexual abuse, he would kill her and her mother; K.P. further
stated she was scared to tell her mother about the sexual
abuse because she did not think that her mother would do
anything. According to K.P., Defendant last sexually abused
her approximately three (3) weeks prior to the interview, on
a Monday evening. K.P. explained that she had not gone to
school that day because she had been suspended and her mother
prohibited her from watching television. At some point during
that evening, Defendant entered K.P.'s bedroom and told
K.P. that she could watch television because he had gotten
her off punishment. Once K.P.'s mother had gotten into
the shower, Defendant pushed K.P. down on the bed,
on top of her, pulled down her clothes, pulled down his
clothes, put his hand over her mouth, and inserted his penis
into her vagina. K.P. stated he pushed "harder and
harder" and that she closed her eyes. She said Defendant
"stayed on" her approximately five (5) minutes and
stopped when he heard her mother emerge from the shower. K.P.
stated she did not know what do to, her stomach hurt, and she
felt scared and violated. K.P. stated that she showered and
put her clothes in the washing machine after the incident.
explained that on other occasions, including the first
incident of sexual abuse, Defendant had molested her in the
bedroom he shared with her mother; during these incidents,
K.P.'s mother was at work. According to K.P., during the
first incident of sexual abuse, Defendant told her not to
"scream or talk, " pulled his pants half down,
pulled her clothes to her knees, got on top of her, and
placed his penis inside her vagina. K.P. said it hurt and
that she felt scared, but did not know whether to scream,
cry, or tell her mother. Afterward, K.P. said there was
"something white and gooey on the bed" and
Defendant wiped the bed. Defendant then told her to use the
bathroom, but instructed her not to flush the toilet;
Defendant then checked the toilet. K.P. locked herself in her
room and did not emerge until a friend came over and asked if
she wanted to play outside.
could not estimate the number of times Defendant had abused
her, but stated that the sexual abuse usually occurred when
her mother was at work. K.P. remembered seeing
Defendant's penis, described it as
"brownish-black" and said "it wasn't that
long." When asked if there was anything different about
Defendant's penis, K.P. responded that it appeared
K.P.'s second forensic interview recorded on July 15,
2014, K.P. stated that she was worried about talking to
Holeman because she was scared that people would treat her
differently because of what happened; she worried that her
relationship with her mother would change. Again, Holeman
asked K.P. to discuss the first time Defendant raped
her. K.P. recalled that it occurred after she
had taken twenty dollars ($20.00) from Defendant because she
wanted go to the skating rink and her mother was at work.
Defendant came into K.P.'s bedroom, yelled at her, and
indicated that he would tell her mother about the money if
K.P. did not have sex with him. Thereafter K.P. recalled the
same factual scenarios that she stated in the first forensic
interview, which occurred on June 18, 2014. She ended the
interview by stating that she had last seen Defendant on
Father's Day when she and her family went out to eat at a
Jamie Jackson ("Dr. Jackson") who was qualified as
an expert in child abuse pediatrics pursuant to article 702
of the Louisiana Code of Evidence, testified that she worked
at the Audrey Hepburn Care Center at Children's Hospital
and treated K.P. in July 2014 when K.P. was referred there
from the Emergency Room at Children's Hospital due to
allegations of sexual abuse. Dr. Jackson explained that
following an allegation of sexual abuse, she initially takes
a basic medical and developmental history of the child,
obtains an oral history of the child privately, then performs
a full physical exam of the child. Dr. Jackson testified that
the "talking part" is the most important aspect in
the diagnosis, because in the majority of sexual abuse cases
there are no physical manifestations of abuse; further, the
"talking part" informs the physician of which tests
Jackson testified that K.P. provided a history of sexual
abuse by Defendant that included "penile/vaginal
contact, digital/vaginal or hand/vaginal contact" and
"squeezing" K.P.'s "breasts or chest
area." In addition to obtaining K.P.'s history, Dr.
Jackson observed K.P.'s demeanor, which was "very
soft spoken and respectful." Dr. Jackson also discussed
how "disclosures are processed" by young victims of
sexual abuse. According to Dr. Jackson, young victims may
disclose "a little bit" about incidents of sexual
abuse and, as time goes on, "may say more;"
disclosure depends on a number of factors. Dr. Jackson
further testified that "even if asked directly, [young
victims] may deny something initially until they are ready to
talk about something."
Jackson stated that after K.P. provided a history of penile
penetration by Defendant, she performed a physical medical
examination of K.P. Upon being asked by the State, Dr.
Jackson stated there is a "huge misconception"
concerning physical virginity. She explained that most people
believe that the hymen is a "lid" that covers the
vaginal opening that must be punctured; however, the hymen is
"really like a ring of tissue" near the opening of
the vagina. Dr. Jackson further explained that it is
"very rare, " "extremely rare" to have an
"imperforate hymen" and that females are generally
born with openings in the hymen. In an effort to not
perpetuate the misunderstanding of the hymen, Dr. Jackson
does not make reference to "intact hymen" or
"not intact hymen;" instead, when there is a ring
of tissue in the vagina, she deems it a normal hymen. Dr.
Jackson identified K.P.'s medical records; on a diagram
of the vagina, she noted "normal hymen with intervaginal
ridge around 5:00 to 6:00 o'clock, " which is a
Jackson testified that frequently there is no physical
evidence of penetrative trauma, such as tears in the hymen
tissue, due to the rate of healing inside the vagina; vaginal
evidence of abuse can heal within twenty-four (24) to
forty-eight (48) hours. She noted that "90 to 95 percent
of the time" victims of sexual abuse have "normal
exams." Therefore, even when there is vaginal-penile
intercourse, Dr. Jackson would not expect to see trauma. Dr.
Jackson testified that K.P.'s vaginal area and hymen
appeared normal with no signs of tearing, bruising, or
scarring to her vulva or injury inside her vagina. However,
Dr. Jackson explained that penetration could have occurred
despite the existence of a normal hymen.
Jackson further testified that, because K.P's examination
took place six (6) weeks after the last incident of sexual
abuse, sperm and DNA tests were not conducted; these findings
are often not present even twenty-four (24) or forty-eight
(48) hours after an incident of sexual abuse.
Jackson testified that K.P.'s medical records indicated
white vaginal discharge that tested positive for bacterial
vaginosis, which is a change in the normal vaginal flora.
Bacterial vaginosis is not necessarily indicative of rape in
a pre-pubescent girl because bacterial vaginosis could be
caused by sexual intercourse, the use of feminine hygiene
products, or the consumption of antibiotics. The medical
records also indicated that K.P. had not yet begun to
menstruate, but she had reported blood in her underwear after
penile-vaginal penetration. Dr. Jackson testified that blood
in underwear could indicate sexual abuse, but could also be
the result of irritation caused by a hygiene issue or a
urinary infection. Dr. Jackson testified, however,
considering that K.P. reported blood in her underwear and
gave a history of penile penetration, that the blood, in her
opinion, indicated sexual abuse.
Jackson confirmed that there are times when the perpetrator
of abuse directs the child to wash away DNA evidence. She
acknowledged that directing a child to urinate may indicate a
perpetrator is attempting to get rid of evidence. Based on
K.P.'s oral history and physical examination, despite the
lack of physical findings of abuse, Dr. Jackson diagnosed
K.P. with child sexual abuse.
K.P. testified and identified Defendant in
open court. She stated that she now lives with her sister and
has not seen her mother in several years as a result of her
allegations of abuse against Defendant; her mother, K.W.,
remains married to Defendant.
testified that when Defendant began living with her family,
her mother made her call him "dad;" K.P. only
started referring to Defendant as a "stepdad" when
she reported the abuse to the police. K.P. testified that
Defendant began raping her when she was approximately ten
(10) or eleven (11) years old and in fourth or fifth grade;
she estimated that the sexual abuse by Defendant occurred
from 2010 to 2013. However, K.P. first reported the sexual
abuse to her mother and her aunt in June 2014. She explained
that she did not disclose the sexual abuse to her friends at
school because she was scared of Defendant due to his threats
to kill her and her family if she told anyone. Although there
was a period of time from 2009 to April 2011, when Defendant
was absent from the home due to incarceration for another
case, K.P. admitted that she did not report the sexual abuse
at this time because she was scared and "you never know
what a person is capable of." K.P. agreed that prior to
the incidents of sexual abuse, Defendant had not made threats
testified that the incidents of sexual abuse would typically
occur in middle of the day or sometimes at night when her
mother was not home and she was alone with Defendant; she
estimated the sexual abuse occurred "sometimes daily or
a couple of weeks." K.P. testified that during the
incidents of sexual abuse, Defendant would get on top of her,
penetrate her vagina with his penis, and move up and down
until he stopped; the incidents typically lasted about ten
(10) to fourteen (14) minutes. As a result, K.P. felt pain in
recalled that the first incident of sexual abuse occurred in
her mother's bedroom and Defendant laid her on the bed,
told her "if [she] was to tell [her] mom or anyone, he
would kill [her] and [her] family, " then "took his
penis out and just put it in [her] vagina." When
questioned by the State, K.P. stated Defendant always used
his penis and never used his fingers to penetrate
her. K.P. explained that, although she never
saw Defendant's penis, she knew that Defendant used his
penis to penetrate her because he would always pull down his
pants. However, K.P. affirmed that she told the forensic
interviewer that Defendant's penis was "normal"
because she had never seen a penis before. She further
explained that she described Defendant's penis as
"blackish-brownish" because of the skin coloring on
also recalled reporting that, after one incident of sexual
abuse, she had blood in her underwear because Defendant had
"hurt" her. K.P. explained that she had shown the
blood in her underwear to her mother who believed that the
blood was a result of K.P.'s menstrual cycle; however,
K.P. did not begin to menstruate until after she moved out of
the home that she shared with her mother and Defendant. K.P.
testified that she reported "white stuff that [she] saw
on the sheet and [she] saw in [Defendant's] pants"
to the Children's Advocacy Center, but was unsure if she
reported it to the police. K.P. further stated that the
police had not seized the bed sheets, her clothing, or her
explained that the sexual abuse "stopped when [she] got
[sic] brought to the doctors and moved with the foster
family." She testified that she remembered speaking with
Dr. Jackson and that she was truthful in her statement. K.P.
explained that the physical examination performed by Dr.
Jackson was the first time her genitalia was examined by a
physician. She stated that, in the past, she had been
prescribed antibiotics for a cold.
conclusion of K.P.'s testimony, the State rested its
case. In defense of the allegations, Defendant called his
aunt, Gloria Singleton ("Ms. Singleton"), to
testify on his behalf. Ms. Singleton explained that when
Defendant was approximately one (1) or two (2) years old,
while he was sitting on the floor eating, hot grits spilled
on him and landed in his genital area, which caused scarring
to his penis. Ms. Singleton conceded that she had not seen
Defendant's penis since approximately 1971, and her
knowledge of the coloration or scarring on Defendant's
penis was limited to that time period.
K.P.'s mother, testified that she met Defendant in 2008,
and they married in 2012. K.W. stated that K.P. never
feared Defendant and she had a good relationship with
stated that she brought K.P. with her to work one day and
K.P. told her that "Daddy, " referring to
Defendant, had been having sex with her. K.W. explained that
she believed K.P. when she reported the sexual abuse and
immediately called the police. K.W. testified that she later
asked K.P. about the sexual abuse and K.P. stated that the
sexual abuse occurred in K.W.'s bedroom and in her own
bedroom and that the incidents happened "a lot."
testified that she was not in the room when the forensic
interview took place, but was present when Dr. Jackson
examined K.P. According to K.W., Dr. Jackson told her that
her "child was perfectly normal. There was no sexual
trauma to her vaginal area." K.W. testified that
subsequent to the initial allegation of rape, K.P. had
"chang[ed] her stories of what happened, where it took
place and where [she] was at the time it took place" and
that it was "just not adding up." K.W. testified
that K.P. had lied to her in the past.
explained that she exclusively laundered K.P.'s clothes
and never observed blood on K.P.'s underwear. K.W.
confirmed that K.P. had not had a menstrual cycle while she
lived with her. K.W. testified that K.P. had never disclosed
the sexual abuse to anyone else. K.W. also stated that K.P.
had not reported the sexual abuse while Defendant was
incarcerated for another crime. K.W. stated that less than a
week before K.P. reported the sexual abuse, K.P. had gotten
into trouble at school and, for that, K.W. whipped her and,
for the first time, Defendant "corrected" K.P.
According to K.W., K.P. complained that they were too strict,
that she hated that house, and wanted to live with her older
sister. After K.P. reported the sexual abuse, she was removed
from K.W.'s custody and placed in foster care;
eventually, K.W. relinquished her parental rights to her
testified that Defendant's penis is discolored as a
result of a burning incident when he was a child. She
described that Defendant's penis had "a white
blotchy patch of skin . . . toward the tip of the head of
this penis" and "some reddish pinkish scar
tissue." K.W. said Defendant's scarring is between
one to two inches long and that his penis is larger than
average. K.W. stated that the scar is "very
testified that he has five (5) convictions: car thefts in the
1980s and 1990s; offenses related to cocaine in 1993 and
2007, and a marijuana conviction in 2009. Defendant further
testified that he served twenty-two (22) months in prison
during 2009 ...