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State v. Williams

Court of Appeals of Louisiana, Fourth Circuit

March 14, 2018


         APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 15-02928, DIVISION "E" Honorable Jacques A. Sanborn, Judge

          Perry Michael Nicosia, DISTRICT ATTORNEY Juliet Clark, Michael Morales, ASSISTANT DISTRICT ATTORNEYS, St. Bernard Parish, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          C. Gary Wainwright, COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods.

          Regina Bartholomew Woods Judge.

         Defendant/Appellant, 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 sentence.


         On June 24, 2015, Defendant was charged by bill of indictment with aggravated rape of K.P.[1] in violation of La. R.S. 14:42.[2] 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.[3] On July 13, 2015, Defendant appeared for arraignment and pled not guilty.

         On 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.[4] The jury trial began on April 6, 2017, and on April 7, 2017, the jury returned a verdict finding Defendant guilty as charged.

         On 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.[5] 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.


         On the 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.[6] 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.

         Next, Lt. Canepa of the Juvenile Investigations Bureau of the St. Bernard Parish Sheriff's Office, [7] 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.

         The 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 forensic interviews.

         Lt. 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.

         Lt. 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.

         Kate 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.[8] 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.

         In 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, [9] got 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.

         K.P. 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.

         K.P. 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 "normal."

         In 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.[10] 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 Chinese restaurant.[11]

         Dr. 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 to perform.

         Dr. 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."

         Dr. 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 normal variation.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Next, K.P.[12] 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.

         K.P. 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 against her.

         K.P. 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 her vagina.

         K.P. 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.[13] 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 his face.

         K.P. 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 underwear.

         K.P. 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.

         At the 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.W., K.P.'s mother, testified that she met Defendant in 2008, and they married in 2012.[14] K.W. stated that K.P. never feared Defendant and she had a good relationship with Defendant.

         K.W. 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."

         K.W. 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.

         K.W. 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 eldest daughter.

         K.W. 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 noticeable."

         Defendant 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 ...

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