State of Louisiana VS Charles E. Howard
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0285 STATE OF LOUISIANA n VERSUS CHARLES E HOWARD Judgment Rendered September 10 2010 On Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany Trial Court No 348690 Division C Honorable Richard A Swartz Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington LA State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge LA Ralph S Whalen Jr Counsel for Defendant Appellant New Orleans LA Charles E Howard BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES I The defendant Charles E Howard was charged by bill of information with aggravated oral sexual battery of A from March 1 1991 to January P 31 1997 count 1 a violation of LSAR 14 He pled not guilty S 43 4 and following a jury trial was found guilty as charged The defendant filed a motion for postverdict judgment of acquittal which was denied defendant also filed a motion for new trial The A hearing was held on the matter and the motion was denied The defendant was sentenced to twenty years at hard labor without benefit of parole probation or suspension of sentence The defendant filed a motion to reconsider sentence which was denied The defendant now appeals designating four assignments of error We affirm the conviction and sentence FACTS The defendant and Kathy were married and had a daughter A born P January 31 1985 The defendant and Kathy divorced in 1992 Kathy had domiciliary custody of A and A would visit the defendant at his house P P every other weekend Before the divorce when the defendant and Kathy were separated A would also visit the defendant at his house P P A testified at trial that during her visits the defendant drank a lot of alcohol and smoked marijuana frequently She slept in the defendant bed s with him When she was about six or seven years old the defendant began touching her breasts and vagina When she was about eight years old the defendant began inserting his fingers into her vagina When she was about nine years old the defendant performed oral sex on her and would force her to perform oral sex on him The defendant also had her look at pornographic magazines and watch pornographic movies A testified that she was on P 1 The defendant was also charged with molestation of a juvenile count 2 The counts were severed and the State proceeded to trial only on count 1 2 the A honor roll in elementary school but by the seventh and eighth B grades she began failing classes In the seventh grade she was arrested for fighting She began inflicting cut wounds on herself In high school she was bulimic and anorexic During her high school years A went to P French Camp a nondenominational Christian boarding school in French Camp Mississippi At trial A described French Camp as a school that P provided stability for children from broken homes Kathy testified at trial that A went to French Camp because A was acting out She was being P P disrespectful and getting into a lot of trouble Because of the defendant extensive marijuana use A drafted two s P handwritten contracts signed by her and the defendant wherein the defendant would agree to stop using marijuana Pictures that A drew P when she was about nine years old were introduced at trial The drawings were of naked females penises and the defendant touching A in the P breast area Also introduced at trial was a letter written to Kathy by A P when she was twelve years old The letter indicated that when A was six P and onehalf years old she and the defendant played a game wherein he would kiss her on her lips and face very hard The defendant told her not to tell anyone especially Kathy Kathy testified at trial that when A was in the third grade she told P Kathy that the defendant had grabbed her breasts Kathy contacted the Office of Community Services OCS Kathy testified that OCS investigated the matter The OCS investigator told Kathy that what the defendant did to P A was determined to be an inappropriate touch According to the investigator the defendant was going to be sent to alcohol abuse and sexual abuse awareness programs and parenting classes However according to Kathy the defendant was never made to attend any program or class 3 Dr Scott Benton an expert in forensic evaluation of child sexual abuse testified at trial that he examined A when she was sixteen years P old He testified that delayed reporting was so common by sexually abused children that it is probably the rule rather than the exception Dr Benton testified that A told him that her father had molested her P She told Dr Benton that the defendant touched her everywhere She also told Dr Benton that the defendant performed oral sex on her and forced her to perform oral sex on him She told Dr Benton that the defendant had her look at pornographic magazines and movies Dr Benton testified that exposure to pornography is a commonly used grooming tool because it normalizes the behavior the abuser engages in with his victim The defendant did not testify at trial ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues that the trial court erred in allowing evidence of alleged other crimes of the defendant where no Prieur hearing was held Specifically the defendant contends that evidence of his use of marijuana was inadmissible other crimes evidence At trial during direct examination A testified that the defendant P drank a lot of alcohol during visitation with him The prosecutor asked A P if the defendant took anything else The State sought to introduce into evidence two contracts written by A and signed by her and the P defendant which were intended by A to induce the defendant to agree to P stop using marijuana The defendant objected on the grounds that this was inadmissible other crimes evidence namely the crime of possession of marijuana The prosecutor contended and the trial court agreed that the s defendant marijuana use was an integral part of the crime at issue We agree with the trial court ruling s rd Louisiana Code of Evidence article 404 provides 1 B Except as provided in Article 412 evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith It may however be admissible for other purposes such as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a criminal case shall provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding The doctrine of res gestae is designed to complete the story of the crime on trial by proving its immediate context of happenings near in time and place Integral act res gestae evidence in Louisiana incorporates a rule of narrative completeness without which the State case would lose its s narrative momentum and cohesiveness See State v Taylor 2001 1638 p 11 La 1 838 So 729 741 42 cert denied 540 U 1103 124 03 14 2d S Ct S 1036 157 L 886 2004 2d Ed 2d So 656 La 1992 per curiam see also State v Brewington 601 To constitute res gestae the circumstances must be necessary incidents of the criminal act or immediate concomitants of it or form in conjunction with it one continuous transaction See State v Addison 551 So 687 69091 La App 1st Cir 1989 writ 2d denied 573 So 1116 La 1991 2d P A testified that the defendant sexually abused her He touched her breasts and vagina and inserted his fingers into her vagina He performed oral sex on her and forced her to perform oral sex on him She testified that the defendant used marijuana on a daily basis when she was visiting him She stated that he would smoke several joints When asked on direct examination what the defendant condition was when he would sexually s abuse her A stated that he was very intoxicated from alcohol or P 61 marijuana She often tried to get him to stop using marijuana b of ecause the way he acted differently When AR first contract did not induce s the defendant to stop using marijuana she drafted another contract to persuade him to stop When asked at trial why she wanted him to stop smoking marijuana A responded For protection for me mainly P From AR testimony it appears that the defendant was often under s the influence of marijuana when he molested her Further A felt that if P the defendant stopped smoking marijuana when she visited him then he would stop molesting her Accordingly we find that the defendant use of s marijuana was an integral part of the sexual abuse he inflicted upon A P See State v Edwards 412 So 1029 1032 La 1982 where drug use 2d was admissible evidence since it was an integral part of the events immediately preceding the criminal act second degree murder and part of the res gestae State v Trosclair 584 So 270 278 La App 1st Cir 2d writ denied 585 So 575 La 1991 where testimony about the 2d s defendant marijuana usage on the night of the incident aggravated rape was admissible as part of the res gestae The defendant asserts that a Prieur hearing should have been held to determine the admissibility of his use and possession of marijuana The defendant also asserts that the State was required to give notice pursuant to LSAC art 404 of its intent to use the res gestae evidence of his E 1 B marijuana use This assertion is baseless Notice required under LSAC E art 404 and under State v Prieur 277 So 126 130 La 1973 is 1 B 2d not mandated when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding LSAC art 404 State v Duncan 20020509 p 13 E 1 B 2 La App 1st Cir 9 835 So 623 632 writ denied 2003 0600 La 02 27 2d 04 12 3 869 So 812 See Prieur 277 So 2d at 130 2d We find further that even had the other crimes evidence been inadmissible the admission of such evidence would have been harmless error See LSA C art 921 P Cr The erroneous admission of other crimes evidence is a trial error subject to harmlesserror analysis on appeal State v Johnson 941379 p 17 La 11 664 So 94 102 The test for 95 27 2d determining if an error is harmless is whether the verdict actually rendered in this case was surely unattributable to the error See Sullivan v Louisiana 508 U 275 279 113 S 2078 2081 124 L 182 S Ct 2d Ed 1993 Johnson 941379 at p 14 664 So at 100 2d In the instant matter we find that the defendant could not have been prejudiced by testimony of his marijuana use several years ago The State s evidence clearly established the defendant guilt with reference to the s aggravated oral sexual battery of A As such the guilty verdict rendered P would surely have been unattributable to any testimony that suggested the defendant possessed and used marijuana and any error in allowing such testimony to be presented to the jury would have been harmless See Sullivan 508 U at 279 113 S at 2081 This assignment of error is S Ct without merit ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues that the trial court misapplied the law concerning the use of polygraph results on a motion for new trial The defendant contends that this matter should be remanded to the trial court with instructions to consider the polygraph results under the applicable law 7 At the hearing on the motion for new trial defense witness Judith Goodman an expert in the field of polygraph examination testified that she administered a polygraph examination to the defendant on September 11 2007 to determine whether his claim that he had not engaged in any inappropriate activity with A was truthful The results of the examination P indicated that the defendant was truthful In State v Catanese 368 So 975 La 1979 the supreme court 2d held that evidence of a polygraph examination was not admissible in criminal trials However the supreme court found that the reasons for the exclusion of polygraph evidence from criminal trials do not prevent its use in a posttrial proceeding such as a hearing on a motion for new trial Prior to the trial court ruling defense counsel argued in pertinent s part the following Your Honor if I may just briefly as the Court knows from reviewing Catanese the polygraph examination is one of the tools that the Court can use in deciding a Motion for New Trial and can in and of itself should the Court use its discretion in that matter form the basis for granting the new trial In denying the motion for new trial the trial court stated The Court has listened closely to the testimony at this proceeding I have reviewed the exhibits that have been introduced into evidence And I additionally reviewed the law in connection with this matter The Court finds that no evidence was submitted at this hearing that would serve as grounds for the granting of a new trial under Code of Criminal Procedure Article 851 The results of a polygraph test are not admissible evidence at a trial The Court listened to the testimony and the evidence that was presented at the trial and finds that the unanimous jury verdict in connection with that trial was appropriate We find that the trial court had a clear appreciation of the law when it made its ruling Defense counsel informed the trial court of the Catanese case and the trial court specifically noted in its ruling that it reviewed the 0 law in connection with the matter Nevertheless the defendant asserts that because the trial court stated in its ruling that the results of a polygraph test are not admissible evidence at a trial the trial court did not understand that such results were admissible on a motion for new trial As a result of this misreading according to the defendant he was deprived of the opportunity to have the results of his polygraph considered on his motion for new trial However the results of the polygraph were considered This was precisely the purpose of the hearing on the motion for new trial wherein the trial court permitted the testimony of a polygraph expert and the results of the s defendant polygraph test At the hearing the trial court considered the evidence before it and made the discretionary determination that the defendant was not entitled to a new trial See State v gammons 597 So 2d 990 994 La 1992 This assignment of error is without merit ASSIGNMENT OF ERROR NO 3 In his third assignment of error the defendant argues that his sentence was excessive Specifically the defendant contends that the trial court did not consider mitigating circumstances and that he should not have received the maximum sentence allowable under the law The Eighth Amendment to the United States Constitution and Article I section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 762 767 La 1979 A 2d sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense of justice I State v Andrews 940842 pp 89 La App 1st Cir 5 655 So 95 2d 448 454 The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 2d 1241 1245 La App 1 st Cir 1988 Louisiana Code of Criminal Procedure article 894 sets forth the factors for the trial court to consider when 1 imposing sentence While the entire checklist of LSAC art 894 P Cr 1 need not be recited the record must reflect that the trial court adequately considered the criteria State v Brown 20022231 p 4 La App 1st Cir 03 9 5 849 So 566 569 2d The articulation of the factual basis for a sentence is the goal of LSA P Cr C art 894 not rigid or mechanical compliance with its provisions 1 Where the record clearly shows an adequate factual basis for the sentence imposed remand is unnecessary even where there has not been full compliance with LSAC art 894 State v Lanclos 419 So 475 P Cr 1 2d 478 La 1982 The trial judge should review the defendant personal s history his prior criminal record the seriousness of the offense the likelihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 So 1049 1051 52 La 1981 2d In the instant matter the defendant was sentenced to the maximum sentence of twenty years at hard labor This court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality State v Hilton 991239 p 16 La App 1st Cir 3 764 So 1027 1037 00 31 2d writ denied 20000958 La 3 786 So 113 01 9 2d 10 At sentencing the trial court stated in pertinent part The Court will now sentence Mr Howard in accordance with the sentencing provisions under Code of Criminal Procedure Article 894 1 The Court listened to the testimony in the trial of this matter which indicated that Mr Howard had sexually abused his minor child for a period in excess of five years Such conduct that was testified to at the trial today would constitute aggravated rape and a mandatory life sentence Mr Howard was convicted of aggravated oral sexual battery And the Court is limited to the penalty that was in effect at the time of his offense That was a maximum sentence of 20 years The Court finds that Mr Howard conduct clearly merits imposition of s the maximum sentence and more considering the damage that he caused to his own daughter which the Court finds irreparable Thus the Court sentences Mr Howard to serve 20 years with the Department of Corrections without benefit of probation parole or suspension of sentence The Court finds that any lesser sentence would deprecate the seriousness of this offense The trial court adequately considered the factors set forth in Article 1 894 Considering the trial court careful review of the circumstances and s the nature of the crime we find no abuse of discretion by the trial court The trial court provided ample justification in imposing the maximum sentence on the defendant for the repeated aggravated oral sexual battery of his daughter the one person he was supposed to protect from such evils He instead exploited a position of trust thus the maximum sentence was not excessive See State v Kirsch 20020993 pp 8 10 La App 1st Cir 02 20 12 836 So 390 395 96 writ denied 20030238 La 9 852 2d 03 5 2d So 1024 We find this to be the worst type of incident of aggravated oral sexual battery and the defendant to be the worst type of offender See State v Mickey 604 So 675 679 La App 1st Cir 1992 writ denied 610 2d 2d So 795 La 1993 See also State v Herrin 562 So 1 11 La App 2d 1st Cir writ denied 565 So 942 La 1990 Accordingly the sentence 2d 11 imposed is not grossly disproportionate to the severity of the offense and therefore is not unconstitutionally excessive This assignment of error is without merit ASSIGNMENT OF ERROR NO 4 In his fourth assignment of error the defendant argues that the evidence was insufficient to support the conviction Specifically the defendant contends that the State did not prove the essential elements of the crime beyond a reasonable doubt A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend XIV La Const art I S 2 The standard of review for the sufficiency of the evidence to uphold a conviction is whether or not 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 beyond a reasonable doubt Jackson v Virginia 443 U 307 S 319 99 S 2781 2789 61 L 560 1979 Ct 2d Ed See LSAC art P Cr B 821 State v Ordodi 20060207 p 10 La 11 946 So 654 06 29 2d 660 State v Mussall 523 So 1305 1308 09 La 1988 The Jackson 2d standard of review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSAR 15 provides S 438 that in order to convict the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 2585 pp 4 5 La App 1st Cir 6 822 So 141 02 21 2d 144 At the time of the offense LSAR 14 provided in pertinent S 43 4 part 12 A Aggravated oral sexual battery is an oral sexual battery committed when the intentional touching of the genitals or anus of one person and the mouth or tongue of another is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances 4 When the victim is under the age of twelve years Lack of knowledge of the victim age shall not be a defense s C Whoever commits the crime of aggravated oral sexual battery shall be punished by imprisonment with or without hard labor without benefit of parole probation or suspension of sentence for not more than twenty years Aggravated oral sexual battery is a general intent crime State v Driggers 554 So 720 725 La App 2nd Cir 1989 See State v 2d Kennedy 2000 1554 p 11 La 4 803 So 916 923 24 General 01 3 2d criminal intent is present whenever there is also specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act LSAR 14 The trier of fact is to determine the requisite intent in a S 10 2 criminal case State v Crawford 619 So 828 831 La App 1st Cir 2d writ denied 625 So 1032 La 1993 2d The trier of fact is free to accept or reject in whole or in part the testimony of any witness Moreover when there is conflicting testimony about factual matters the resolution of which depends upon a determination of the credibility of the witnesses the matter is one of the weight of the 2 LSAR 14 was amended by 1995 La Acts No 946 Section 2 effective S 43 C 4 August 15 1995 to include the provision that the sentence was to be served without benefit of probation parole or suspension of sentence LSAR 14 was repealed S 43 4 by 2001 La Acts No 301 2 As noted by the trial court at sentencing such contact now constitutes aggravated rape See LSAR 14 S 42 4 A 13 evidence not its sufficiency The trier of fact determination of the weight s to be given evidence is not subject to appellate review An appellate court will not reweigh the evidence to overturn a factfinder determination of s guilt State v Taylor 97 2261 pp 5 6 La App 1st Cir 9 721 98 25 2d So 929 932 The testimony elicited by A at trial established that between the P ages of six and twelve she stayed at the defendant house every other s weekend for visitation purposes During those visits the defendant drank alcohol and smoked marijuana She slept with the defendant in his bed Over several years the defendant repeatedly touched AR breasts and s vagina inserted his fingers into her vagina and performed oral sex on her The defendant also forced A to perform oral sex on him P When the defendant ejaculated he demanded that A swallow If she did not the P defendant would become very angry When A was about nine years old P the defendant began showing her pornographic movies and magazines Marcus Bell and his wife Donna Bell testified at trial Marcus who was a friend of both Kathy and the defendant had at one time been a private investigator Kathy had suspicions that the defendant was mistreating A P As a favor to Kathy Marcus agreed to observe the defendant when he was with A At a New Orleans Zephyrs game in 1994 Marcus was there with P Donna and the defendant was there with A and his girlfriend The Bells P sat above the defendant in the bleachers about fifty feet away Donna observed the defendant rub AR body almost to the point of fondling her s When he rubbed her back he rubbed down to her buttocks She described the defendant touching of A not as affectionate but as sensual s P stated that she was horrified by what she saw 14 She Marcus testified that he observed very inappropriate touching fondling hugging and kissing of A by the defendant He testified that the P more beer the defendant drank the friendlier he became with A P At a second Zephyrs game Marcus went with his son instead of Donna At that game Marcus observed the defendant and A engaged in highly P inappropriate kissing In brief the defendant contends that AR sexual abuse by the s defendant was not real but rather manufactured memories According to the defendant A had a long history of difficulty in school and relationships P following the difficult divorce of her parents A described herself as a P little troublemaker and Kathy described A as a wild teenager Thus P while the State position was that AR behavioral problems were a result s s of the alleged abuse it is equally likely argues the defendant that AR s allegations were the product of being a troubled teenager When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Moten 510 So 55 61 La App 1st 2d Cir writ denied 514 So 126 La 1987 2d In finding the defendant guilty it is clear that the jury believed the testimony of A Further the P s jury verdict reflected the reasonable conclusion that based on the trial testimony of A Marcus Bell Donna Bell Dr Benton and Kathy the P documentary evidence of the pictures drawn by A the contracts written P by A and AR letter to her mother the defendant committed aggravated P s oral sexual battery on A when she was less than twelve years old See P Moten 510 So at 61 2d 15 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 993342 p 8 La 10 772 So 78 83 The fact that the 00 17 2d record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Quinn 479 So 592 596 La App 1st Cir 1985 2d It is not necessary that there be physical evidence to prove that the defendant committed aggravated oral sexual battery The testimony of the victim alone is sufficient to prove the elements of the offense State v Orgeron 512 So 467 469 La App 1st Cir 1987 writ denied 519 2d 2d So 113 La 1988 The testimonial evidence of A was sufficient to P establish the elements of aggravated oral sexual battery There was no physical evidence of the crime because Dr Benton did not examine A P until she was sixteen years old According to Dr Benton the history A P gave him of the sexual abuse she underwent by the defendant was consistent with the physical findings of his examination of A P After a thorough review of the record we find that the evidence supports the jury verdict We are convinced that viewing the evidence in s the light most favorable to the State any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence that the defendant was guilty of aggravated oral sexual battery of A P See State v Calloway 2007 2306 pp 1 2 La 09 21 3d 1 1 So 417 418 per curiam This assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 16
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