State Of Louisiana VS Dennis Cafarella
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KA 1324 STATE OF LOUISIANA VERSUS DENNIS CAFARELLA Judgment Rendered December On Appeal 23 2008 from the 21 st Judicial District Court in and for the Parish of Tangipahoa State of Louisiana District Court No 603531 The Honorable Robert M Morrison III Judge Presiding Scott M PerriUoux Counsel for District Attorney State of Louisiana Appellee Amite La Patricia Parker Assistant District Attorney Margaret S Sollars Counsel for Defendant Thibodeaux La Dennis Cafarella BEFORE CARTER J C Appellant WHIPPLE AND DOWNING JJ CARTER cJ The defendant Dennis Cafarella with not he aggravated found guilty as right charged to a served without benefit of defendant now conviction motion a the to correct pled by jury and following a bench trial trial parole probation sentence The defendant sentenced was twenty five years of the appeals designating vacate 14 78 1 The defendant years at hard labor with at least defendant filed charged by bill of information violation of La R S a He waived his guilty was incest was illegal or to thirty five The suspension of sentence sentence which be sentence to was denied The assignments of error We affirm the two and remand for resentencing FACTS the victim lived with her D S lot of time in Amite with Lois her According aunt was Lois and her brother spent D S Joseph she stepmother Scarlet and her father in were mother to a Lois who testified kindergarten and at for the first half of first her husband Jeff Smith and her Nicole was such the defendant and according as a mother to the defendant was D sent D S began living Lois s S s uncle Scarlet had this D S 1 stayed with her while grade Also living nephew the defendant sister and Joseph Since Nicole had s ex with D S girlfriend s As problems with drugs bipolar disorder Nicole who considered Lois live with Lois for about six months Following with Scarlet and her father but continued to sleep to the weekends s on trial D S D S referred to Lois as her grandmother 2 at Scarlet testified 2006 at trial that D S had her behavior had become her Aunt Rosemary s house and several other children always been unruly but in July Sometime worse during July to Scarlet s testimony it attention that Nick and D S had touched each others had also confided in D S would take D S into his Our was about D S was about twenty years old D S There Cheryl D S on testified that audiotape of D S s Children s at seven Two D S the defendant Baton and make her or eight years old and the days later Scarlet Rouge where indication D S was no was a took D S to kit rape was Scarlet further raped paternal grandmother spoke with D S and made talking about the molestation Detective Nick Vinterella Office testified her to Scarlet testified private parts and touch her Lady of the Lake Hospital in performed an room private parts defendant came of her cousins that the defendant had molested her one told her that when Lois would leave the house touch his at Nick private parts and her cousin then told Scarlet about the defendant that D S was with her cousin swimming in her pool According D S trial that he Advocacy Center with the arranged Tangipahoa Parish Sheriffs for D S to be interviewed at the Detective Vinterella observed the CAe interview and testified that D S stated in her interview that the defendant molested her over an defendant touched different parts of her sex on him buttocks On one occasion the defendant rubbed his However she did not indicate there were sleeping or when only 3 The body and forced her to perform The incidents of molestation occurred either at members of time approximately eight month period was any penis on oral her type of penetration night while the other D S and the defendant were at family home Detective Vinterella the incidents of molestation occurred According to when D S was visiting Lois house but s was physically living with Scarlet and her father testified D S at trial house for Bible school and defendant made her On suck his cross Lois testified never not house and in not examination that the never He felt D S good listen and would holler and defendant suggested in his molestation because she mother According to trial at did took her into his bedroom that the whip was the anything inappropriate He stated that his was a allegations of with D S relationship D S her mother in trouble The made up the story about the calling the police during this incident she going The defendant also testified that he lived with Lois in was on her D S told him that trouble 4 with D S and do whatever she wanted angry with him for two years ago and discipline problem in that she would scream the defendant l ike 23 and denied testimony that was were was Greensburg about by her period of molestation since he getting by they lived in a trailer before living in the house on cross He stated he trailer owned a s meant his D S did not know which town the trailer defendant testified molestation was trial that s year and that the number of incidents The he at further testified was a there was which she indicated wee Lois at Paw Paw and Maw Maw D S wee While she examination D S testified that incidents of molestation the defendant occurred both in the weekends on Lois at stayed She testified that if she refused the defendant said he would penis her direct examination that she on to get him in a trailer in ASSIGNMENT OF ERROR NO 1 In his first was assignment sufficient not to a support contends that D S had because she of error the defendant argues that the evidence history of lying and fabricated the story of a angry with the defendant for was the defendant Specifically conviction the calling police incest on her mother procedural vehicle for raising the issue of the sufficiency The proper motion for post verdict judgment of acquittal La of the evidence is by Code Crim P 821 No such motion art the defendant s a failure to a proceed properly the evidence when briefed pursuant whether or not 443 U S it 307 meets art to an However filed herein a reviewing court must of assignment error 61 L Ed 2d 560 821 State v 1979 now despite consider to determine v Virginia the constitutional standards of Jackson 99 S Ct 2781 Code Crim P was codified in La Baudoin 583 So 2d 907 908 La 1st App Cir 1991 A conviction based See U S Due Process on Const standard of review for the is whether viewing insufficient evidence amend XIV La cannot Const sufficiency ofthe evidence the evidence in the light to stand art uphold most as I a it violates 9 The 2 conviction favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond at 2789 p 10 a reasonable doubt Jackson 443 U S at 319 99 S Ct See also La Code Crim P art 82IB La 11 1308 1309 La Article 821 is 06 29 946 So 2d 654 1988 an 660 State State v v Ordodi 2006 0207 MussaIl 523 So 2d 1305 The Jackson standard of review objective standard for testing 5 incorporated the overall evidence in both direct and circumstantial App La 2585 p 5 State for reasonable doubt 1 Cir 21 6 822 So 2d 141 02 circumstantial evidence La R S 15 438 v 144 Patorno analyzing When that the factfinder provides 2001 must be hypothesis of satisfied the overall evidence excludes every reasonable Patorno 2001 2585 at p 5 822 So 2d at 144 innocence Louisiana Revised Statutes 14 78 1 A Aggravated incest is the in pertinent part provides in any engaging prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related the offender to biological step The B following or are adoptive as any relatives prohibited acts of the child following or niece under this Section Sexual intercourse sexual battery second degree carnal knowledge of a juvenile indecent sexual battery 1 juveniles pornography involving juveniles a juvenile crime against nature cruelty to juveniles parent enticing a child into prostitution or any behavior with molestation of other involvement of a child in sexual a crime under the laws of this state 2 Any lewd fondling the child or or the offender activity constituting touching of the done or person of either submitted to with the intent to arouse or to satisfY the sexual desires of either the child the offender or both According to Scarlet once DS confided in her defendant had molested her D S and her cousin information at and make her touch his private parts room oral sex and touch her living private According to Detective during the interview that for about eight months year the defendant touched her perform was Detective VintereIla testified trial that he observed the CAC interview VintereIla D S stated to Scarlet with the Scarlet testified that D S told her that when she with the defendant he would take her into his parts went to that the cousm on him on different parts of her to body and forced her by taking the back of her head and pushing 6 a it He had also rubbed his toward his crotch penis her buttocks near Detective Vinterella further testified that he also listened be rather consistent living while she 2 and would slept her knees was on yellow stuff would bathroom and because she her to his spit was come performing out of his oral not On she she first knew D S cross over time D S her and her father she tell what that she did not lie a lot including about Rosemary s a going on history oflying and very improved greatly and when mother testified that D S told 2 was go to the uncontrollable On redirect examination however changed D S had been known to lie loud was her D S again grades l ittle small lies quite a house in Scarlet D S moved in with told Scarlet about the When D S they began having trouble with S s Aunt whip examination Scarlet testified that when had ADHD disrespectful and disobedient D wee afraid she would get in trouble with her father often uncontrollable defendant wee the defendant sex on The defendant suggests in his brief that D S had testified that suck his penis and she would She testified she did it out He would room She stated that if she refused he would She further testified that while s ome bring chair with his pants down and make her a to D S testified the defendant would wake her up in the where she room then sit in was audiotape by Cheryl and that he found the audiotape and the CAC interview made her the to area D S testified at trial However Nicole D S s Also Lois testified that bit Scarlet testified about Independence where D S an incident at her cousin On and viewed the CAC interview tape on him find as both tapes D S stated the defendant forced her to perform oral sex We did Detective Vinterella that the information and details provided by D S on both tapes were This court listened to the audiotape consistent 7 Nick or Nick Nick and several other children D S and Nick touched each other Allegedly other children got upset and told D S had mentioned private not in her According The defendant also audiotape that to D S a Nick did little not in his brief factual notes in the defendant s bedroom and boy had touched her lock a on discrepancies regarding the defendant your shirt which according to s and Lois testified that she had examination of Lois testified that the lock defense counsel noted that have a was broken to his room was night Nicole take her children argumg angry with the defendant for The defendant testified about One weekend Refusing and s room was is orange orange chair in his Also during direct D S the CAC tape locking the door Lois room did lock because she defendant on chair a stated that The defendant testified that his The defendant asserts D S concocted the mother an orange furniture no spoke about the defendant taking her not her bedroom door defense counsel However the defendant testified that he did not have room on touch her and the others lied said the chair in the defendant the CAC interview D S just like and the private parts During direct examination of the defendant defense counsel during pool However at trial D S testified that the incident with Nick did areas occur the on their swimming Detective Vinterella testified that them on on were to not to D S went to an Lois and her brother story about the molestation calling the police to leave s house and said she Joseph was going to had told Lois and the permission the defendant and Nicole The defendant told Nicole how bad of a parent he 8 her incident between him and Nicole let the children leave unless he gave them allow the children on began thought she was grabbed Nicole knife from the kitchen and a and Jeff the defendant s uncle police trouble she same facts on my Momma Im going to call the police charges were pressed and Nicole No children remained Lois at s to jail was on You call the you and have you allowed through the weekend Im going to go It is not clear from the fight between the defendant and Nicole occurred before after the or alleged molestation The trier of fact is free testimony of any witness 9 25 98 So 2d 721 of the evidence evidence is So 2d not at 932 factfinder s subject An v or Taylor in whole reject 97 2261 Moreover 932 not its to appellate sufficiency determination of will not guilt Taylor La is in part the conflicting depends matter is 1 Cir App a upon one of the 97 2261 at pp 5 6 721 Taylor reweigh Taylor or when there determination of the s appellate review court p 5 the resolution of which matters The trier of fact So 2d at 932 accept that is occurred credibility of the witnesses the determination of the weight State 929 testimony about factual to put The home record when the during to fight Lois testified that she heard Jeff testified that he heard D S say get you in trouble in jail the Lois and Jeff testified If you get my Momma in trouble and she goes D S say police regarding her mother in getting was get him in trouble to going was essentially the to and the defendant called the grabbed Nicole told the defendant that since he D S Lois after the defendant ran weight to be 97 2261 at p given 6 721 the evidence to overturn 97 2261 at p 6 721 2d So a at 932 When a case reasonably rejects involves circumstantial evidence and the trier of fact the hypothesis of innocence 9 presented by the defendant s own testimony that hypothesis falls and the defendant is guilty unless there is another Captville 448 which raises hypothesis So 2d 676 680 allegations of molestation theory that telling lies and because she trouble with the judge v was angry with him for based a the on history of getting her mother in police The trial was of innocence molested because she had being State The defendant denied all 1984 hypothesis His lied about D S La See reasonable doubt a s testimony of Scarlet Detective Vinterella and the detailed based on rather graphic testimony In verdict reflected the reasonable conclusion that the of nine year old D S the defendant finding guilty the defendant molested D S it is clear the trial judge rejected the defendant s claim of innocence and concluded that his version of the was a fabrication designed to deflect blame from him the trial judge that the defendant did support an inference that the claim that he some never credible D Ss Although there and 512 So 2d 113 La 2d So 448 So 2d at 680 the trial conflicting testimony to prove the 467 1988 conflicts with the evidence Captville 469 La 1st Cir App Despite molestation of her 1987 App See State writ denied v 519 The fact that the record contains evidence that testimony accepted by La his judge found elements of the offense a trier of fact does accepted by the trier of fact insufficient So 2d 592 596 s to corroborating medical evidence the testimony of the victim alone is sufficient Orgeron See by testifY truthfully could reasonably testimony regarding the defendant was no The conclusion would have been unfavorable truth molested her inconsistencies not events 1st Cir 1985 10 We are State not v render the Quinn 479 constitutionally precluded from acting in criminal thirteenth as a juror in assessing what weight See State cases v to Mitchell 99 3342 p 8 La give evidence 17 10 00 772 So 2d 78 83 Based on foregoing and after the find that the evidence supports the viewing the evidence in the light trier of fact could have found exclusion of every reasonable was a thorough review of the record guilty most verdict favorable beyond a hypothesis We are we convinced that the State any rational to reasonable doubt and to the of innocence that the defendant guilty of aggravated incest The assignment of error is without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues that he sentenced under the wrong version of La RS 14 78 1 was This argument has merit The bill of information aggravated was incest were from charges that the dates the defendant committed April 1 2006 sentenced under La RS 14 78 1D with at least twenty five years of the 3 to July 31 2i to thirty sentence to 2006 The defendant five years at hard labor be served without benefit of At the time of the commission of defendant s acts Louisiana Revised Statute 14 78 ID 2 provided Whoever commits the crime of aggravated incest on a victim under the age ofthirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty five years nor more than life imprisonment At least twenty five years of the sentence imposed shall be without benefit of parole probation or suspension of sentence 11 parole probation or amended to include Revised Statutes prior to 14 78 1D 2 determinative of the must at In 2006 La RS effective became on according post facto laws 820 So 2d 518 520 enforcement of any section enactment Ex 1 United States Constitution article I sections 9 and This 23 that v to State Robinson v an provided that amount not to 4 a by was A 10 at at 2001 3407 prohibited by and Louisiana extends to the to inflict the time a of its cannot be enactment the time the defendant committed aggravated 1063 sentenced on on a sentence the State was ordered to file to aggravated incest fifty thousand dollars this court based prior La 1982 person convicted of exceed The defendant Interim Order at IS the 423 So 2d 1053 The law in effect incest are changes the punishment persons convicted of offenses committed applied Sugasti legislation passed after the crime occurred Thus incest suffer must prohibition greater penalty than that authorized for the crime commission 2006 15 sentencing provisions in effect to p 4 La article Louisiana aggravated that the convicted accused penalty See State Constitution was the time of the commission of the offense be sentenced 02 1 78 being enacted into law the time of the commission of the offense 21 6 2 August commission of the crime of s 14 2006 La Acts No 325 La RS 14 78 1D 2 The law in effect defendant D 2 provision Accordingly the defendant occurred 4 suspension of sentence December 5 motion by or shall be fined imprisoned with or March 31 2008 the defendant to correct the illegal 2007 In a response addressing the legality of the sentence The Order further informed the trial judge that he may file a per curiam if he so elected The trial judge subsequently filed a per curiam wherein he stated that the defendant s contention 14 1 78 l D a erroneously based on which provides the ordinary was the sentencing provision under sentence of five to twenty years under thirteen years of age the La RS However appropriate provided for a sentence of not less than twenty five years nor more than life imprisonment and that at least twenty five years of the sentence was without benefit of parole probation or suspension of sentence since the victim born June 6 sentence fell under La R S 14 1997 1D 78 was 2 which 12 without hard labor for years or provision a term not less than five years both La RS is Having been sentenced under time the aggravated incest illegal We therefore judge Under the than twenty law the above La RS 14 78 ID 1 now l4 78 1D nor more to correct the was vacate illegal a provision new which did committed the defendant the sentence sentence and remand the not s quoted exist at sentence case to the was the trial by sentencing the defendant under the applicable law CONVICTION AFFIRMED REMANDED FOR RESENTENCING 13 SENTENCE VACATED
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
