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State v. Peterson

Court of Appeals of Louisiana, Fourth Circuit

January 8, 2020

STATE OF LOUISIANA
v.
JOSEPH PETERSON STATE OF LOUISIANA
v.
JOSEPH PETERSON

          APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 14-2838, DIVISION "B" Honorable Michael D. Clement

          Charles Joseph Ballay, District Attorney 25TH JDC, PLAQUEMINES PARISH Pamela S. Moran, COUNSEL FOR STATE OF LOUISIANA/APPELLEE

          Bruce G. Whittaker COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

          SANDRA CABRINA JENKINS JUDGE

         The defendant, Joseph Peterson, appeals his conviction for three counts of aggravated incest, in violation of La. R.S. 14:78.1.[1] The defendant assigns two errors in this appeal, arguing that the evidence is insufficient to sustain the conviction and that the trial court erred in admitting certain evidence at trial. Upon review of the record and in light of applicable law and jurisprudence, we find no merit to his assignments of error. Accordingly, we affirm his conviction.

         PROCEDURAL BACKGROUND

         On October 29, 2014, the defendant was charged by grand jury indictment with two counts of aggravated incest of the juvenile victim, A.A., [2] between the dates of January 1, 2011 and October 15, 2012. On December 8, 2014, the defendant appeared for arraignment, in case number 14-02838, and pled not guilty to the two counts in the indictment.

         On December 15, 2015, the defendant filed a motion in limine to exclude from evidence written pornographic stories discovered on the defendant's laptop computer, seized pursuant to a search warrant for the defendant's residence. The following day, the State filed a response to the defendant's motion to exclude, arguing that the evidence was admissible pursuant to La. C.E. art. 412.2.[3] That same date, the trial court held a hearing on the defendant's motion, but the trial court deferred ruling on the motion until trial. Shortly thereafter, on December 21, 2015, the defendant filed a notice of a request for a bench trial.

         On May 30, 2017, the defendant was indicted on an additional count of aggravated incest of the juvenile victim, A.A., occurring between December 1, 2012 and August 1, 2013. Under case number 17-1835, the defendant appeared for arraignment on June 12, 2017, and pled not guilty to the charge in the second indictment.

         The two cases, 14-2838 and 17-1835, were consolidated for the purposes of trial. The bench trial took place over three days, February 21 and 22, 2018, and March 9, 2018. On the last day of trial, the State sought to admit the written pornographic material, which was the subject of the defendant's prior motion in limine. Over the defendant's objection, the trial court admitted the evidence. At the conclusion of trial testimony and arguments, the trial court took the matter under advisement.

         On March 28, 2018, the trial court rendered its verdict. Based upon the testimony and evidence presented at trial, the trial court found the defendant guilty of all three counts of aggravated incest, as follows: in case number 14-2838, (Count 1) aggravated incest by committing indecent behavior with a juvenile, in violation of La. R.S. 14:78.1(B)(1); (Count 2) aggravated incest by lewd fondling or touching, in violation of La. R.S. 14:78.1(B)(2); and in case number 17-1835, (Count 1) aggravated incest by lewd fondling or touching, in violation of La. R.S. 14:78.1(B)(2).

         On August 8, 2018, the defendant appeared for sentencing. Prior to sentencing the defendant, the trial court noted that the victim in this case was a juvenile under the age of thirteen years at the time of the offenses; and, pursuant to the applicable statute, the sentence to be imposed would be not less than twenty-five years, without benefit of parole, probation, or suspension of sentence, and not more than ninety-nine years. The trial court then sentenced the defendant to the mandatory minimum sentence of twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence, as to each count, to run concurrent.

         The defendant now appeals his convictions. Before discussing the defendant's assignments of error on appeal, we review the facts and evidence presented at trial.

         STATEMENT OF FACTS

         On October 19, 2012, the nine year-old victim, A.A., reported to her fourth grade teacher, Erin Cosse, that she was being sexually abused by her stepfather, the defendant. Ms. Cosse testified that A.A.'s school behavior had changed in the preceding week and that she had asked A.A. if anything was wrong. At the end of the class day, A.A. told Ms. Cosse she was ready to tell her what was wrong and asked to speak with her in the hallway. A.A. then told Ms. Cosse that the defendant was sexually abusing her. Upon receiving this information, Ms. Cosse brought A.A. to the school nurse, Rebecca Amos.

         Ms. Amos testified that Ms. Cosse brought A.A. to her office and stated only that A.A. had something she needed to tell her. Ms. Amos asked A.A. what was wrong, at which time A.A. reported that her stepfather, the defendant, was sexually abusing her. Ms. Amos asked A.A. to explain what she meant by that; and A.A. responded that the defendant showed her videos of men and women naked together and that the defendant "touches me with my clothes off." When asked how recently the touching had occurred, A.A. stated "last Monday." When asked if she had told anyone else, A.A. stated that she talked to her mother about "the situation", and her mother told her not to tell anyone outside the house about it. A.A. also said she had told her sister, Lexi, who told her to "stop saying that stuff." At that point, Ms. Amos contacted the Plaquemines Parish Sheriff's Office ("Sheriff's Office"), along with the school principal and counselor.

         Captain Mark Plumer testified that on October 19, 2012, he was employed by the Sheriff's Office as captain of the Criminal Investigations Bureau. On that date, the office received a call from the Belle Chasse Primary School that a student had reported being sexually abused by her stepfather. Capt. Plumer, Detective Tiffanie Provenzano, and a patrol officer were immediately dispatched to the school to investigate the reported sexual abuse.

         Upon arriving at the school, Capt. Plumer interviewed school personnel while Det. Provenzano spoke with A.A. and her mother. After gathering initial statements at the school, the officers decided to relocate to the Sheriff's Office with A.A. and her mother to conduct further investigation. Based on the statements made by A.A., Capt. Plumer applied for a search warrant of the residence where A.A. lived with her mother and the defendant. Specifically, the search warrant sought computers, computer equipment, and any external hard drives, based on statements from A.A. that the defendant had shown her pornographic videos and images on his computer.

         Capt. Plumer identified several photographs taken at the residence during the execution of the search warrant; he described photographs taken in the master bedroom that depicted sexual lifestyle magazines, a box of sex toys, and commercial pornographic videos. In regard to the computer equipment evidence, Capt. Plumer identified photographs showing the large Hewlett-Packard ("HP") laptop computer and an external hard drive that officers located in the defendant's work area and seized as evidence.

         Captain Plumer stated that no family members were home during the execution of the search warrant. In fact, during that time, the defendant voluntarily presented himself at the Sheriff's Office. Capt. Plumer stated that the defendant denied having any knowledge as to why A.A. would make sexual abuse accusations against him and he volunteered to leave the family home. The defendant also volunteered to undergo a polygraph test. However, the polygraph exam did not go forward because, according to the polygraph examiner, a medical condition that caused twitching in the defendant's muscles could skew the results, making the test unreliable.

         Tracey Brunetti testified that in October 2012, she was employed by the Child Advocacy Center in New Orleans as a child forensic interviewer. On October 22, 2012, she conducted a videotaped interview with A.A., which was offered, introduced, and played during Brunetti's testimony. During that interview, A.A. informed her that the defendant forced her to watch videos on his computer. A.A. described one video showing two naked women and one naked man. A.A. stated that the defendant "constantly" showed such videos to her, and that the defendant also encouraged her to watch such videos on her smaller computer. A.A. further stated that she saw a photograph depicting her mother and the defendant having sex.

         A.A. relayed to Brunetti that on the previous Monday or Sunday, which would have been October 15th or 14th, the defendant told her to lie next to him on the couch. She stated that, at that time, her mother was at the store and her sister was in her room. During this episode, the defendant put his hand on her vagina and placed her hand on his penis. The touching took place over their clothing.

         Brunetti asked A.A. to indicate on anatomical drawings of the female and male bodies where the defendant had touched her body and where she had touched his body. On the female diagram, A.A. circled the body parts where the defendant had touched her, including her vagina, her breasts, and her belly button; and A.A. stated that the defendant touched these body parts both over and under her clothing. On the male diagram, A.A. placed stars on the male body parts, including his penis, chest, and buttocks, where the defendant forced her to touch him, both over and under his clothing.

         Brunetti testified that during the interview A.A. cupped her hand and moved it up and down to show the type of manual stimulation she performed on the defendant's penis. A.A. stated that she had done this to the defendant more than once and that, after she did that, a white substance came out that the defendant referred to as pus. In addition, A.A. stated that sometimes the defendant touched inside her vagina and sometimes he had her get on top of him and put his penis inside her vagina.

         Detective Holly Hardin testified that she is employed by the Plaquemines Parish Sheriff's Office, assigned to the special victims unit. She described herself as "the juvenile detective, the sex-crime detective, and domestic-violence detective." In March 2017, she was contacted by the Attorney General's office and asked to coordinate a second forensic interview of A.A. as part of an investigation into allegations that the defendant had sexually abused A.A. again in 2013. Det. Hardin scheduled A.A. to undergo a forensic interview at the Child Advocacy Center in New Orleans.

         At the time of the second videotaped forensic interview, on March 13, 2017, A.A. was fourteen years old and in eighth grade at Belle Chasse School. A.A. stated that, after the first series of sexual abuse incidents, the defendant returned to the family home and, approximately six months later, the abuse happened again. She stated that it occurred in the summertime of 2013, when she was ten or eleven years old. Once again, the abuse took place on the family couch and, this time, she was alone in the house with the defendant. A.A. stated that the defendant placed his hand on her vagina and he forced her to put her hand on his penis. She stated that the touching took place under their clothing. She described it as uncomfortable when he touched her. She recalled that this incident in the summertime might have been the last incident of sexual contact with the defendant, and that the defendant ultimately moved out of the family home and she had not seen him for two to three years.

         Dr. Ellie Wetsman, who was accepted as an expert in child-abuse pediatrics, testified that she saw A.A. on November 7, 2012, after the first report of sexual abuse, but she did not perform a physical examination. Dr. Wetsman noted that a physical examination had been performed at Children's Hospital on October 19, 2012, and there was no physical evidence of sexual abuse. Dr. Wetsman explained that such a finding is not unusual in child sexual abuse cases because that part of the body "stretches" and most child abuse perpetrators are gentle because they do not want to cause physical injury.

         Dr. Wetsman opined that most children do not report sexual abuse immediately after it happens. Dr. Wetsman explained that, often, the child does not know that what is happening is wrong, or the child is made to feel that she is at fault, or the child is threatened that if she tells something bad will happen; and, consequently, when a child victim of sexual abuse does report the incident, she will often report only a portion. Dr. Wetsman likened it to "test[ing] the waters" to see if the story is believed or to see if something will happen with her family. If the initial disclosure goes well, the child will gradually feel more comfortable telling the rest of the story. Dr. Wetsman also opined that it was not unusual for a child not to remember the details of each instance of abuse when she has been abused multiple times.

         Dr. Wetsman did physically examine A.A. on March 22, 2017, after the second report of abuse. The results of that examination were normal. Dr. Wetsman also took a narrative from A.A., who informed her that she had been abused by the defendant once or twice since the last time Dr. Wetsman had interviewed her. A.A. stated that the abuse took place when she was alone in the house with the defendant and consisted of him touching her vagina and forcing her to touch his penis. When asked whether the defendant had ever hurt her, A.A. ...


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