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State v. Hill

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

STATE OF LOUISIANA
v.
DEION JAMES HILL

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 147354 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

          Keith A. Stutes Fifteenth Judicial District Court Cynthis Simon Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Pride J. Doran Dwazendra J. Smith Doran & Cawthorne, P.L.L.C. COUNSEL FOR DEFENDANT/APPELLANT: Deion James Hill

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          JOHN D. SAUNDERS JUDGE.

         On 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 La.R.S. 14:43.3.

         On May 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.

         FACTS:

         On the 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.

         Later, 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.

         The 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.

         As the 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 court.

         The 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.

         According 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.

         The nurse submitted a toxicology kit. The results were not submitted at trial.

         Other 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.

         ERRORS PATENT:

         In 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.

         Defendant 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.

         ASSIGNMENTS OF ERROR:

         Defendant 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).

         ASSIGNMENT OF ERROR NUMBER TWO:

         In his second assignment of error, Defendant challenges the sufficiency of the evidence. The analysis for such challenges is well-settled:

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.

         The district court convicted Defendant of oral sexual battery, which is defined by La.R.S. 14:43.3. The ...


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