State Of Louisiana VS Harold Rusaw Jenkins
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 0371 STATE OF LOUISIANA VERSUS HAROLD R JENKINS Judgment Rendered September 10 2010 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 456517 The Honorable William J Crain Judge Presiding Walter P Reed Counsel for Appellee District Attorney Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana State of Louisiana Jane L Beebe Counsel for DefendantAppellant New Orleans Louisiana Harold Rusaw Jenkins BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY I The defendant Harold R Jenkins was indicted on one count of aggravated rape a violation of La R 14 and pleaded not guilty S 42 6 Following a jury trial he was found guilty as charged Defendant was sentenced to life imprisonment at hard labor without benefit of parole probation or suspension of sentence He now appeals contending that the state failed to present sufficient evidence that the victim suffered from a mental infirmity such that sex with her constituted aggravated rape under the statute For the following reasons we affirm the conviction and sentence FACTS B H the sister of the victim M testified at trial She was twenty H one years old and indicated that defendant had lived with her mother and the victim since H was fourteen years old According to H the victim who B B was four years older than H was mentally handicapped and had functioned B on the same intellectual level since they were children She testified that the victim loved baby dolls and was also a big fan of the fictional characters Tinkerbell Hannah Montana and Strawberry Shortcake During the summer of 2008 when H was pregnant with her first B child in Florida the victim and her mother visited her During the visit the victim told H that defendant said he was going to get the victim pregnant B B H questioned the victim about her statement but the victim changed the subject H reported the conversation to her mother B J A the victim mother also testified at trial She testified that the s s victim date of birth was September 9 1984 and that the victim was not the biological child of defendant whom she married on August 16 2001 1 Pursuant to La R 46 the victim is referenced herein only by her initials S 1844 W Because identification of the victim relatives might also compromise the victim right s s to privacy we have also referenced those relatives only by their initials 0 According to A the victim had suffered from Asperger syndrome and mild J s mental retardation since birth She had been in special education curricula for her entire school career and had received a certificate rather than a diploma upon completion of her education Depending on the subject the victim worked at a level between kindergarten and second grade and had the mentality of a six or seven yearold child Upon being informed by H of the previously described conversation B J A questioned the victim concerning her statement The victim stated that she was afraid that she would go to jail if she disclosed what had happened to her She admitted however that defendant had put the thing down between his legs inside her She told her mother that she scratched defendant hit him and told him no but that he held her down by the throat The victim indicated that during the encounters stuff did not come in her but came on defendant The victim told her mother that i happened bunches and t bunches of times while her mother was at nursing school A explained that J defendant had supervised the victim while A attended nursing school from J 00 m 6 p to 10 p during the week 00 m The victim also testified at trial She identified photographs of her bed with a doll a Tinkerbell pillowcase and Strawberry Shortcake sheets on the bed She identified defendant in court and testified that when her mother was at nursing school he had put his thing inside her She explained that she had told him to stop doing it and had slapped at him but he continued anyway When asked if anything came out of defendant thing she replied that s stuff that looked like snot came inside of defendant The victim stated that defendant told her that he wanted her to have a baby but not to tell anyone because he did not want to get into trouble ki She testified that the things defendant did to her happened a whole bunch of times and hurt her really bad Under cross examination the victim acknowledged that she had been to a Subway restaurant and had ordered a sandwich on her own She stated that she had helped to prepare dinner had washed dishes had vacuumed and had helped to take care of animals She also indicated that she had been in special education at Fontainbleau High School in Mandeville and had studied math science and social studies but admitted that she had got some of it wrong The state also played at trial a videotaped recording of a July 2 2008 interview with the victim In the interview the victim expressed worry about going to jail She pointed to her throat and indicated that her mother s husband Harold had made it so that she could not breathe She stated that he had put his thing in her and had told her that he wanted her to have a baby The victim explained in the interview that she had told defendant no after the first time when she had told him yeah She indicated defendant had assaulted her when she was 20 21 and 22 years old She indicated that stuff which looked like snot came from the thing between the s defendant legs She identified the penis on a picture of a boy as a thing She explained that the stuff did not go in her but came on defendant She indicated defendant had felt her breasts her crotch and her butt She stated that defendant had put his thing in her two three or four times She identified the vagina on a picture of a girl as the area of her body she had described She also claimed defendant had put his thing in her butt one time but subsequently stated he had done that about four times She claimed that defendant did not want her to tell anyone because he did not want to go to jail Dr Brian Murphy also testified at trial as an expert in forensic psychology including IQ testing and interpretation H He explained that on November 12 2002 he had evaluated the victim on referral from the Social Security Administration She had a verbal IQ of 63 a performance IQ of 58 and a fullscale IQ of 58 She had a level of competency at the first percentile level for people in her age group Dr Murphy reevaluated the victim on October 23 2009 At that time she had a verbal IQ of 58 a performance IQ of 59 and a fullscale IQ of 54 The victim IQ scores remained at the mildly mentally retarded level and she s was still in the first percentile of her age group Dr Murphy was certain that between the two evaluations the victim IQ never exceeded 70 and expressed s the opinion with 99 percent certainty that the victim IQ scores have been 9 s static over time at the high 50s level He indicated that the victim mental age s is at a level such that she thinks like a child On cross examination Dr Murphy explained that the IQ range for mild mental retardation is 51 to 69 He conceded that some mentally deficient people worked at Home Depot and at grocery stores He also conceded that some mentally retarded people have families and get married When asked if mentally retarded people could understand sex Dr Murphy replied that even someone with an IQ in the 15 to 20 range could understand sex but the victim only had the judgment of a four to six yearold child Dr Murphy also explained that the verbal performance IQ tests had a margin of error of four points and the full scale IQ tests had a margin of error of three points The state also played at trial an audio recording of defendant July 11 s 2008 statement In the statement defendant admitted that he had had vaginal sex with the victim while her mother was at school He claimed however that he never forced the victim to do anything and never had oral or anal sex with her He claimed that the victim would walk out of the bathroom naked and 5 would call him into the bedroom He claimed she would ask him to feel her breasts to feel her pussy and to f her pussy J SUFFICIENCY OF THE EVIDENCE In his sole assignment of error defendant argues that no rational trier of fact could have found that the victim was mentally impaired to the extent that sex with her met the legal criteria for aggravated rape The standard of review for sufficiency of the evidence to uphold a conviction is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could conclude the state proved the essential elements of the crime and the defendant identity as the perpetrator s of that crime beyond a reasonable doubt In conducting this review we also must be expressly mindful of Louisiana circumstantial evidence test which s states in part assuming every fact to be proved that the evidence tends to prove in order to convict every reasonable hypothesis of innocence is excluded State v Wright 980601 p 2 La App 1st Cir 2 730 99 19 2d So 485 486 writs denied 990802 La 10 748 So 1157 00 99 29 2d 0895 La 11 773 So 732 quoting La R 15 00 17 2d S 438 When a conviction is based on both direct and circumstantial evidence the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution When the direct evidence is thus viewed the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime Wright 98 0601 at p 3 730 So at 487 2d Louisiana Revised Statutes 14 in pertinent part provides 41 0 A Rape is the act of anal with a or vaginal sexual intercourse female person committed without the person lawful s consent B Emission is not necessary and any sexual penetration when the rape involves vaginal or anal intercourse however slight is sufficient to complete the crime Louisiana Revised Statutes 14 in pertinent part provides 42 A Aggravated rape is a rape committed anal where the or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances 6 When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance C For purposes of this Section the following words have the following meanings 2 Mental inffrmity means a person with an intelligence quotient of seventy or lower After a thorough review of the record we are convinced that a rational trier of fact viewing the evidence presented in this case in the light most favorable to the state could find that the evidence proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence all of the elements of aggravated rape and defendant identity as s the perpetrator of that offense against the victim The verdict rendered against defendant indicates that the jury accepted the testimony offered against him including Dr Murphy testimony that the victim had an IQ of less than s 70 at the time defendant had sex with her and that the jury rejected s defendant attempts to discredit that testimony We will not assess the credibility of witnesses or reweigh the evidence to overturn a factfinder s 7 determination of guilt The trier of fact may accept or reject in whole or in part the testimony of any witness State v Lofton 961429 p 5 La App 1 st Cir 3 691 So 1365 1368 writ denied 971124 La 10 701 97 27 2d 97 17 2d So 1331 Further in reviewing the evidence we cannot say that the jury s determination was irrational under the facts and circumstances presented to them See State v Ordodi 060207 p 14 La 11 946 So 654 662 06 29 2d This assignment of error is without merit REVIEW FOR ERROR Defendant requests that this court examine the record for error under La C art 920 CrY 2 We routinely review the record for such errors whether or not such a request is made by a defendant Under La C art CrY 2 920 we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record in these proceedings we have found no reversible errors See State v Price 052514 pp 1822 La App 1st Cir 12 952 So 112 123 25 en banc writ denied 070130 06 28 2d La 2 976 So 1277 08 22 2d CONVICTION AND SENTENCE AFFIRMED 0
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