FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. CR 147354 HONORABLE EDWARD D. RUBIN, DISTRICT
A. Stutes Fifteenth Judicial District Court Cynthis Simon
Assistant District Attorney COUNSEL FOR APPELLEE: State of
J. Doran Dwazendra J. Smith Doran & Cawthorne, P.L.L.C.
COUNSEL FOR DEFENDANT/APPELLANT: Deion James Hill
composed of John D. Saunders, Elizabeth A. Pickett, and Van
H. Kyzar, Judges.
D. SAUNDERS JUDGE.
August 13, 2014, a Lafayette Parish Grand Jury returned a
true bill charging Defendant, Deion James Hill, and another
man with aggravated rape, a violation of La.R.S. 14:42. On
August 25, 2016, Defendant moved to waive jury trial. The
district court granted the motion on October 24 after
briefing and argument. The bench trial began on February 6,
2018. On the same date, the court found Defendant guilty of a
responsive verdict, oral sexual battery, a violation of
3, 2018, the district court heard Defendant's Motion to
Quash on the Basis of Double Jeopardy and Motion to Continue
Sentencing and for Post-Verdict Judgment of Acquittal or
Alternatively New Trial. After hearing argument, the court
denied the motion to quash and the motion for acquittal or
new trial and set sentencing for July. On July 19, the court
sentenced Defendant to seven years at hard labor. Defendant
now seeks review by this court, assigning two errors.
night of June 6, 2014, the female victim, a college student
at the time, went out to a local bar with some friends. While
at the bar, she began to feel sick and manifested signs of
intoxication, including vomiting. One friend took her home
but left to sleep elsewhere. Her roommates and other friends
arrived. The group included three males, two of whom were
Defendant and his friend Lajuan Linton. The latter pair had
been at the bar.
one of the young women looked in on the victim and saw
Defendant on top of her and the covers with his hands under
the covers. The victim's friend made him and his friend
leave. However, the men returned to the apartment and to the
victim's room. Linton pled guilty to simple rape in a
separate proceeding and testified at the Defendant's
trial. He stated that he and Defendant performed sex acts
with the victim, but that said acts were consensual. He
claimed that the victim told them, in graphic terms, that she
wanted to perform sex acts with two men at once. According to
Linton, the victim performed oral sex on one of them while
the other man inserted his penis from behind her. He stated
that eventually he went to sleep and woke up to find that
Defendant was having sex with the victim, but she was telling
him to stop. He testified that he remonstrated with Defendant
who then left. According to Linton, the victim indicated that
she had enjoyed the previous evening's activities; they
hugged and kissed, then he left for work.
victim testified that in 2014 she was a college student in
Lafayette. On the evening of June 5, she went out to a local
bar with friends and acquaintances. She acknowledged buying
more than two drinks. She did not remember meeting Defendant
or Linton, and she did not remember leaving the bar or
getting home. The rest of the night she was in and out of
consciousness, but at some point, she woke up and realized a
man was performing a sex act on her. Later she woke up to a
second man performing a sex act on her. She affirmed that she
was subjected to non-consensual vaginal, oral, and anal sex.
The victim tried to push away from each of the men but felt
she didn't have any strength. Also, the men's actions
caused her physical pain. She was menstruating at the time
and the men's actions lodged her tampon inside her body.
victim incrementally remembered portions of the previous
evening, she called her mother, who took her to the hospital;
once there, a SANE (Sexual Assault Nurse Examiner) nurse
examined her. Subsequently, the victim identified the two men
in photographic line-ups and identified Defendant in open
SANE nurse, Rebecca Havlik, testified that the victim
reported being penetrated vaginally and anally as well as
being touched on the vagina with a tongue. On
cross-examination, the nurse testified that she thought the
victim's references to her mouth referred to kissing.
However, during her direct testimony, the nurse stated that
the victim had specifically referred to oral sex.
to Havlik, the victim noted that her memory of the relevant
events was spotty, and that she had consumed alcoholic
beverages on the night of the offense. She had also used
marijuana within the previous four days. The victim had
bruises on her thighs, an abrasion on her outer vagina,
redness on her hymen, and a laceration on her anus. A tampon
was positioned sideways against her cervix. The nurse had to
use forceps to remove it.
nurse submitted a toxicology kit. The results were not
submitted at trial.
testimony showed that DNA from Defendant's patrilineal
line was found on the victim's lips. He was excluded as a
contributor to DNA evidence found under the victim's
right fingernails but could not be excluded regarding similar
evidence under her left fingernails. He was excluded from the
DNA profile on the victim's tampon. Defendant's DNA
was also on a water bottle recovered from the scene.
accordance with La.Code Crim.P. art. 920, all appeals are
reviewed by this court for errors patent on the face of the
record. After reviewing the record, we find one error patent.
was advised at sentencing that he had two years within which
to file an application for post-conviction relief. We find
that the trial court failed to properly advise Defendant of
the time limitation for filing an application for
post-conviction relief. Louisiana Code of Criminal Procedure
Article 930.8 provides a defendant has two years after
the conviction and sentence become final to seek
post-conviction relief. Accordingly, we direct the trial
court to inform Defendant of the provisions of La.Code
Crim.P. art. 930.8 by sending written notice to Defendant
within ten days of the rendition of this opinion and to file
written proof in the record that Defendant received the
notice. State v. Roe, 05-116 (La.App. 3 Cir.
6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.
2/10/06), 924 So.2d 163.
assigns two errors; the second attacks the sufficiency of the
evidence. We will address the sufficiency attack arguments
first because if they are found to have merit, they result in
acquittals for convictions not supported by sufficient
evidence. State v. Hearold, 603 So.2d 731 (La.1992).
OF ERROR NUMBER TWO:
second assignment of error, Defendant challenges the
sufficiency of the evidence. The analysis for such challenges
When the issue of sufficiency of evidence is raised on
appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105
(La.1982); State v. Moody, 393 So.2d 1212 (La.1981).
It is the role of the fact finder to weigh the respective
credibility of the witnesses, and therefore, the appellate
court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State
ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this
Court to affirm a conviction, however, the record must
reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir.
5/7/97), 695 So.2d 1367, 1371.
district court convicted Defendant of oral sexual battery,
which is defined by La.R.S. 14:43.3. The ...