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State v. Howard

Court of Appeals of Louisiana, Fifth Circuit

November 7, 2018

STATE OF LOUISIANA
v.
BILLY JOE HOWARD

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-3146, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Lindsay L. Truhe Zachary Popovich

          FOR DEFENDANT/APPELLANT, BILLY JOE HOWARD Sherry A. Watters

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         Defendant appeals his convictions and sentences for indecent behavior with a juvenile and sexual battery upon a known juvenile. For the reasons that follow, we affirm defendant's convictions and sentences, and we remand for the correction of an error patent on the face of the record.

         PROCEDURAL HISTORY

         On May 23, 2016, the Jefferson Parish District Attorney's Office charged defendant, Billy Joe Howard, in Count 1, with indecent behavior with a juvenile, in violation of La. R.S. 14:81 and, in Count 2, with sexual battery upon a known juvenile, a violation of La. R.S. 14:43.1. Defendant, in absentia, pled not guilty to both counts through counsel at his arraignment on May 24, 2016. Defendant proceeded to a jury trial on October 3, 2017, at the conclusion of which he was found guilty as charged on both counts. Defendant's motion for new trial, filed October 12, 2017, was denied on that same date. Also, on October 12, 2017, the trial court sentenced defendant to 20 years at hard labor for his conviction on Count 1, and further sentenced him to 40 years at hard labor for his conviction on Count 2. The sentences were ordered to run consecutively and without the benefit of parole, probation or suspension of sentence. Defendant's motion to reconsider sentence was denied. Defendant thereafter filed a timely motion for appeal, which was granted.

         FACTS

         Count 1: Indecent Behavior With A Juvenile

         M.C., the mother of the victim who is the subject of Count 1, M.B., [1] testified that in July of 2015, she lived on the West Bank of Jefferson Parish. During that month she made contact with defendant[2] on a dating website, and he stayed at her home for a few days with her, her two daughters and son. On July 14, 2014, M.B. called M.C. at work and told her that defendant made her feel "uncomfortable." Based on that information, M.C. packed defendant's belongings and asked him to leave her home the following morning, on July 15, 2014, before she went to work. That afternoon, upon returning from work, M.C. was advised by M.B.'s counselor[3]that defendant had sexually assaulted M.B., at which time she called the police to make a report. M.C. spoke with three detectives who responded to the call. Later, M.C. brought M.B. and her son to give an interview at the Jefferson Children's Advocacy Center, and she also brought M.B. to get a medical exam.

         Deputy Alvin Farris, of the Jefferson Parish Sheriff's Office, testified that he responded to a call of inappropriate behavior with a juvenile, M.B., on July 15, 2015. During his interview with M.B., she told Deputy Farris that she was "laying on her back on the sofa" watching T.V. when defendant, an acquaintance of her mother, "got on top of her and started rubbing on her legs and on her hips". Defendant then put his hands under M.B.'s shirt and began to rub her back before attempting to "put an unknown object in her pants." M.B.'s brother was present while the incident occurred. Defendant jumped off of M.B. when she told defendant that she needed to stretch, and M.B. went into the bathroom and locked the door until her mother's friend came to babysit. Deputy Farris testified that after he interviewed M.B. and her family, he contacted the Detective Bureau in order to have a detective assigned to the case.

         Detective Judd Harris, assigned to the Jefferson Parish Sheriff's Office Personal Violence Section, testified that he investigated an allegation of child sexual abuse on July 15, 2015. In his interview with M.B., she recounted to him that, after her mother had left for work, defendant "began to tickle her, and then pinned her onto the couch putting all his weight on her to where she couldn't move." Defendant then placed his hands underneath M.B.'s shirt, rubbing her back, before trying to remove her pajama bottoms. M.B. told Detective Harris that defendant let her up after she told him that she needed to use the restroom. Detective Harris stated that he did not interview M.B.'s younger sister, as he felt that she was "too young to get a statement from." Although Detective Harris did not interview M.B.'s younger brother at that time, he did set up a forensic interview for M.B.'s brother at a later date. M.B.'s mother provided Detective Harris with a copy of defendant's profile from the online dating website, as well as the make of defendant's vehicle and a partial license plate number. Using that information, Detective Harris was able to obtain defendant's full name. The day after Detective Harris went to M.B.'s forensic interview at the Jefferson Children's Advocacy Center on July 27, 2015, he issued a warrant for defendant's arrest on the charge of indecent behavior with a juvenile. Defendant was eventually arrested on October 29, 2015, in Mississippi.

         Forensic nurse practitioner, Anne Troy, was accepted, by stipulation of defendant, as an expert in the field of forensic pediatrics and child abuse. Troy testified that she evaluated M.B. at the Audrey Hepburn Care Center on August 5, 2015 and December 14, 2015. An audio recording of her interview with M.B. was played for the jury, and diagrams that showed where M.B. indicated defendant had touched her body were also introduced into evidence. Troy stated that, based upon the history that M.B. had provided to her, she diagnosed child sexual abuse.

         Brittany Bergeron testified that she was employed as the forensic interviewer at the Jefferson Children's Advocacy Center, and conducted an interview with M.B. on July 27, 2015. She also interviewed M.B.'s brother, J.B., on that date. Audio and video of the interview with M.B. were played for the jury.

         M.B.'s brother, J.B., was 11 years old at the time of trial. He testified that he knew defendant, his mother's friend, for a short time when he was nine years old. J.B. recalled a time when he saw M.B. reclining on the couch and defendant "laying right in front of her" facing M.B. Defendant lifted up M.B.'s shirt and appeared to be scratching her back. J.B. testified that he did not think, at that time, that anything "wrong" was happening. At some point, M.B. was no longer on the couch, and he later saw M.B. in her room.

         The victim, M.B., was 13 years old at the time of trial. She testified that when she was 11, she met defendant after her mother began dating him. On one occasion, defendant was with M.B. and her siblings while her mother was at work. At that time, M.B. was on the couch in her living room watching T.V. after taking a shower. Her brother was on the floor and her younger sister was on an adjoining couch. Defendant was sitting on the couch by M.B. and began to move closer toward her. Defendant began "hugging" M.B. and rubbing her back while she was "kind of laying down". At first he touched outside of M.B.'s shirt, but then he "went in" her shirt. Defendant asked M.B. if it felt good. Defendant kept sliding his hand up M.B.'s back and then he grabbed her leg and positioned it over his waist while he kept "moving into different positions." Defendant got up and "pulled something out of his pants," which he then put into her underwear and tried to move near M.B.'s vagina after he got back on top of her. While M.B. never saw the object, she described it as "round and a little cold or wet." M.B. told defendant that she needed a drink of water, at which time she got up from the couch then went from the kitchen, to the bathroom, to her mother's room. She called her mother after defendant left to tell her that the defendant made her uncomfortable, but she did not tell her mother that night the details of what had happened. The next day, M.B. told her counselor and police about the incident.

         On cross-examination, M.B. stated that her mother's friend, Jennifer, was at her home in her mother's room on the day of the incident.

         Count 2: Sexual Battery

         With respect to Count 2, D.B., the mother of the victim, L.B., [4] testified that from July of 2015 through December of 2015, she lived on the West Bank of Jefferson Parish. Near the end of July in 2015, D.B. met defendant on a dating website and began a relationship with him.[5] Defendant first met D.B.'s children weeks later, at the beginning of August. On one occasion in August, after school had started, defendant agreed to take D.B.'s two older children to the bus stop. D.B. recalled that defendant told her that day that L.B. had kissed him goodbye at the bus stop. When D.B. asked L.B. about it, L.B. became embarrassed.

         In October of 2015, defendant called D.B. as he was being arrested. D.B. asked a friend in law enforcement to find out for her what defendant had been arrested for. At that time, D.B. did not know who M.C. and M.B. were. However, defendant had previously driven D.B. past M.C. and M.B.'s house and told D.B. "about how he was staying with this girl for like a week, and she lived right there." After his arrest, defendant claimed that M.C. had him arrested because he "owed her money." On the date of defendant's arrest, after learning about what the criminal allegations against defendant were, D.B. asked her two oldest children if defendant had ever touched them inappropriately, to which both replied "no." D.B. continued a relationship with defendant after his arrest.

         In November of 2015, D.B. was notified by L.B.'s second grade teacher[6]about an incident at school during which L.B. had described sex and disclosed that her mother's boyfriend had taken her pants off. When D.B. questioned L.B. about what had happened, L.B. told her that on the day defendant took her and her brother to the bus stop, defendant brought L.B. into the bedroom, [7] "took her pants off and touched her and kissed her." D.B. called the police after the disclosure by L.B. Referring to old text messages between herself and defendant, D.B. was able to determine the time period when the abuse took place. L.B. spoke to police, gave a forensic interview, and underwent a medical evaluation. After L.B. had her forensic interview, D.B. eventually went and spoke to M.B.'s mother, M.C., to tell M.B. that defendant had sexually abused her daughter as well.

         Officer Gwen Valence, of the Westwego Police Department, testified that she was dispatched to a complaint of sexual abuse on November 11, 2015. Officer Valence spoke with both L.B. and D.B. at that time, and concluded that inappropriate sexual conduct had occurred between defendant and L.B. at a prior undisclosed date. Following the interview, Officer Valence notified the Detective Bureau. Officer Valence's lieutenant also spoke with L.B., and he asked L.B. to indicate on a stuffed animal where defendant had ...


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