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State v. Cervantes

Court of Appeals of Louisiana, Fifth Circuit

February 27, 2019

STATE OF LOUISIANA
v.
JOSE MORENO CERVANTES AKA IVAN MORENO

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-4465, DIVISION "E" HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux, Gail D. Schlosser, Blair C. Constant, Rachel L. Africk

          COUNSEL FOR DEFENDANT/APPELLANT, JOSE MORENO CERVANTES AKA IVAN MORENO Holli A. Herrle-Castillo

          Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

          SUSAN M. CHEHARDY, CHIEF JUDGE

         On appeal, defendant challenges the trial court's ruling on the State's motion in limine regarding prior reports of abuse that did not lead to prosecution. For the following reasons, we affirm defendant's conviction and sentence.

         Procedural History

         On July 27, 2017, a Jefferson Parish Grand Jury returned an indictment charging defendant, Jose Moreno Cervantes a/k/a Ivan Moreno, with first degree rape of a known juvenile, J.G., [1] where the victim was under the age of thirteen, in violation of La. R.S. 14:42.[2] Defendant pled not guilty at his arraignment on July 28, 2017.

         On April 30, 2018, trial before a twelve-person jury commenced. After two days of testimony and evidence, the jury unanimously returned a verdict of guilty as charged. On May 7, 2018, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence and notified defendant of his lifetime obligation to register as a sex offender in accordance with La. R.S. 15:540, et seq. After sentencing, the trial court granted defendant's motion for appeal.

         Facts

         On August 26, 2015, Dana Williams-Sanders, who is social worker at several elementary schools in Jefferson Parish, saw J.G., a former student at her school, walking to school with her sister. Ms. Williams-Sanders observed that J.G. - a twelve-year-old sixth grader - was noticeably pregnant. Ms. Williams-Sanders reported her observations to the elementary school officials, who alerted the police, child protection, and a health services clinic.

         On August 31, 2015, Detective Tyler Lopez of the Westwego Police Department met with J.G. and her mother, T.A., who reported that the mother's ex-boyfriend, Jose Cervantes a/k/a Ivan Moreno, had impregnated J.G. On September 14, 2015, Erica Dupepe of the Children's Advocacy Center interviewed J.G., who disclosed that defendant had raped her three times.

         At trial, J.G., who was, by then, fifteen years old, testified that defendant did a "bad thing" to her three times. J.G. indicated that the first incident occurred when she was twelve years old. That day, she was in her bedroom coloring while her mother was taking a shower and her sisters were playing outside. That time, defendant came into her room, touched her chest, pulled down her pants, and put his "private part" inside her "front part." She testified that she cried while "it" happened, which was a long time. After defendant stopped, he just went back into her mother's room. J.G. did not tell anyone because she was afraid defendant was going to hurt her.

         J.G. testified that the second incident occurred in her mother's car when defendant, his friend, she, and her sisters were going to Wal-Mart to buy groceries for her mother. After defendant dropped her sisters and his friend at Walmart, he drove J.G. to the back of a nearby apartment complex, got into the backseat with her, and put his "private part" into her. Afterwards, defendant went to a nearby fast food ...


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