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State v. Dukes

Court of Appeals of Louisiana, Fourth Circuit

October 2, 2019

STATE OF LOUISIANA
v.
MANUEL DUKES

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 526-845, SECTION "H" Honorable Camille Buras, Judge.

          Leon Cannizzaro DISTRICT ATTORNEY ORLEANS PARISH Donna Andrieu CHIEF OF APPEALS ORLEANS PARISH Scott G. Vincent Assistant District Attorneys ORLEANS PARISH, COUNSEL FOR STATE OF LOUISIANA/APPELLEE.

          Bruce G. Whittaker LOUISIANA APPELLATE PROJECT, COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Dale N. Atkins.

          Dale N. Atkins Judge.

         In this appeal, defendant, Manuel Dukes ("Defendant"), seeks review of his conviction on two counts of attempted indecent behavior with a juvenile. For the reasons that follow, we affirm Defendant's conviction and find no error in the trial court's denial of Defendant's Motion for Judgment of Acquittal and denial of Defendant's Motion for New Trial.

         PROCEDURAL HISTORY

         On October 22, 2015, the Orleans Parish District Attorney filed a bill of information charging Defendant with two counts of indecent behavior with a juvenile, namely C.S and C.B., in violation of La. R.S. 14:81. Count 1of the bill of information stated that Defendant, on October 5, 2014:

committed indecent behavior with a juvenile, namely: C.S., date of birth 07/23/2008, a child under the age of seventeen, by committing a lewd or lascivious act upon C.S. thereby arousing the desires of the said Manuel Dukes aka Dee Dukes, there being an age difference greater than two (2) years between C.S. and Manuel Dukes aka Dee Dukes[.]

         Count 2 of the bill of information stated that Defendant, on October 5, 2014:

committed indecent behavior with a juvenile, namely: C.B., date of birth 02/22/2004, a child under the age of seventeen, by committing a lewd or lascivious act upon the child, thereby arousing the desires of the said Manuel Dukes aka Dee Dukes, there being an age difference greater than two (2) years between C.B. and Manuel Dukes aka Dee Dukes[.][1]

         At his arraignment on January 8, 2016, Defendant pled not guilty. Defendant waived his right to a trial by jury and the matter proceeded to a bench trial on January 16 and 23-25, 2018. At the close of the State's case, Defendant filed a Motion for Judgment of Acquittal. The trial court denied the motion. After considering the evidence, the trial court judge found Defendant guilty of the responsive verdict attempted indecent behavior with a juvenile as to both counts.

         After the trial court rendered its verdict, Defendant filed a Motion for New Trial. On September 21, 2018, the trial court heard and denied Defendant's motion. On October 12, 2018, Defendant was sentenced on each count to three years, six months, at hard labor, suspended, and three years, six months active probation, to run concurrently. He was also required to register as a sex offender and attend sex offender treatment classes. This appeal followed.

         STATEMENT OF FACTS

         On October 5, 2014, the New Orleans Police Department ("NOPD") received a report of child sexual abuse and dispatched Detective Timothy Jones to 1631 Desire Street, the address of the reported offense. Det. Jones wore his body camera, which recorded his preliminary investigation. The footage showed Det. Jones arriving on the scene, where he was met by several family members gathered outside the home. He spoke with the mother of C.B., one of the victims. The mother stated that Defendant was in the bedroom with the two children and "must've pulled his thing out. They say he didn't touch them or show them or anything like that." She explained that everyone gathered outside was family who came together at the grandmother's house to watch the Saints game. Det. Jones requested a child abuse detective to be dispatched to the scene while he continued his interview with C.B.'s mother. She stated that Defendant left the house when he was told the police were being called.

         Next, Det. Jones interviewed Cynthia Bee, grandmother of C.B. and C.S., the two victims. Cynthia Bee stated that while she was getting ready for church after watching the Saints game with her family, she walked down the hallway of her mother's house. As Ms. Bee passed an open doorway, she looked into the room and saw Defendant had his penis in his hand. She indicated that his penis was in an aroused state. She saw C.B. and C.S. standing on the side of the bed, changing the baby's diaper, while Defendant was telling them to "Get up out of here! Get up out of here!" It was Ms. Bee's belief that Defendant was saying that to get the children's attention to look in his direction. Ms. Bee, upset by what she saw, went to the kitchen to tell her mother what she witnessed. Defendant followed her and attempted to shake her hand. He denied it was his penis, telling her that what she thought she saw was actually his belt.[2] Ms. Bee disagreed, asserting that Defendant was not wearing a belt.

         Detective Jones concluded his interview with Ms. Bee by asking her, "Has there been any issues like this in the past?" Ms. Bee replied in the affirmative, adding "a long time ago." When Det. Jones asked the mothers of C.B. and C.S. the same question, both women confirmed that something similar happened with Defendant a long time ago.

         Det. Jones informed the mothers that someone from Child Abuse Services was on her way over to conduct interviews with the victims and that the mothers should avoid any discussion of the incident with C.B. and C.S. while he completed his investigation.

         Shortly thereafter, NOPD Special Victims Detective Jaunay Ross arrived on the scene to pick up the investigation where Det. Jones left off. Ms. Bee, C.B., and C.B.'s mother were each interviewed separately by Det. Ross. When she interviewed C.B., the victim stated that she and her cousin were asked to change a baby's diaper, so they entered the room where the diapers were kept and saw Defendant lying on the bed. C.B. recalled that C.S. began playing on a cell phone, while C.B. started changing the baby's diaper. During this initial interview, C.B. told Det. Ross that she did not see Defendant's penis because she was not looking in that direction.

         Ten days later, Joshua Long, a forensic interviewer at the Children's Advocacy Center in Children's Hospital, interviewed C.B. and C.S. During C.S.'s interview, she stated that she had gone into a bedroom at her grandmother's house to change a baby's diaper when Defendant lowered his pants and exposed his "thing." She knew that her "maw maw" had observed the incident but recalled nothing more. Out of concern for the child's well-being, Long ended the interview when C.S began to exhibit signs of anxiety.

         C.B. recounted the incident with more detail during her forensic interview with Long. She stated that she was in the bedroom, changing the baby's diaper, when Defendant entered the room, lay across the bed, and told C.S. to move behind him. C.B. stated that Defendant then "unbuckled" his pants, put both of his hands in his pants, and "pulled out his thing." Immediately thereafter, her grandmother passed the door, looked inside, and Defendant exited the bedroom, followed her grandmother, trying to shake her hand. C.B. said that while the family waited for the police to arrive that afternoon, Defendant whispered to her to not tell anyone what happened and then he left the house.

         C.B. told Long that she believed C.S. may have also witnessed defendant exposing himself as he was lying flat on the bed, holding his genitals in the air. She said that when Defendant told her to look in his direction, she thought C.S. had also briefly looked.

         During the forensic interview with Long, C.B. also told of two other incidents involving Defendant that occurred the same day but at separate times. Once, while she was sitting on the sofa in the living room, Defendant grabbed C.B.'s legs, pulled her off the sofa and onto the floor, spread her legs open, and placed his body between them. He was fully clothed at the time, but it still made her feel "creepy." She also told the interviewer that her mother, grandmother, and aunt were all present during the incident. In the second incident, C.B. recalled that Defendant chased her down the hallway earlier in the day. She remembered that his hands were in his pants at the time.

         Based on the initial interviews Det. Ross conducted, as well as the forensic interviews conducted by Long that she observed on closed circuit television, Det. Ross procured an arrest warrant and charged Defendant with two counts of indecent behavior with a juvenile.

         ERRORS PATENT

         As required by La. C.Cr.P. art. 920, a review of the record for errors patent reveals none.[3]

         DISCUSSION

         On appeal, Defendant asserts two assignments of error. Defendant claims the trial court erred when it denied his Motion for Acquittal. Defendant also argues the trial court erred when it denied his Motion for New Trial based on the State's failure to disclose favorable and impeaching evidence.

         Assignment of Error Number One-Sufficiency of Evidence

         As his first assignment of error, Defendant asserts the evidence presented by the State was insufficient to support the charges alleged in the bill of information. Defendant argues that both counts in the indictment alleged that defendant committed a lewd or lascivious act upon the victims, who were under the age of seventeen, with more than a two-year age difference between defendant and the victims, but presented no evidence that defendant touched either victim in any way.[4] Accordingly, Defendant contends that the State failed to prove an essential element of the offense and the trial court should have granted Defendant's Motion for Acquittal.

         When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992).

         When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Tate, 01-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928.

         The principal criteria of a Jackson v. Virginia review is rationality. State v. Mussall, 523 So.2d 1305, 1310 (La. 1988). In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. Id.; State v. Egana, 97-0318, p. 6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 228. State v. Green,588 So.2d 757, 758 (La.App. 4 Cir. 1991). It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. McGhee, 2015-2140, p. 2 (La. 6/29/17), 223 So.3d 1136, 1137. See also State v. Scott, 2012-1603, p. 11 (La.App. 4 Cir. 12/23/13), 131 So.3d 501, 508. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact. Id., (citing State v. Brumfield, 93-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316). "Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness." Id., (citing State v. Jones, 537 So.2d ...


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