State Of Louisiana VS James Dunn, Sr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FiRST CIRCUIT 2012 KA 1820 STATE OF LOUISIANA VERSUS JAMES DiJNN SR Judgment Rendered June 7 2013 x APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER 04 0903 09 HONORABLE RICHARD D ANDERSON JUDCE x Hillar C District Moore III Attorneys for Appellee State of Louisiana Attorney And Stacy L Wright Baton Rouge Louisiana Benn Hamilton Attorney for Defendant Appellant Baton James Dunn Sr Rouge Louisiana BEFORE KUHN PETTIGREW AND McDONALD JJ McDONALD J The defendant James Uunn Sr was charged by grand jury indictment with one count of aggravated rape count i a violation of La R 14 and one S 42 count of second degree kidnappi lgcount 1 a violation of La R 14 S 44 1and pled not guilty on both counts Following a jury trial he was found guilty on of the lesser responsive offense of forcible rape a violation of La R S count 1 42 4 and on count II he was found guilty as charged On each count he was sentenced to twenty years at hard labor with the first two years of each sentence to be served without benefit of probation parole ar suspension of sentence The court ordered the sentences to run concurrently with each other but consecutively to any other sentences the defendant was serving He now appeals contending the evidence was insufficient the trial court erred in allowing testimony concerning the defendant prior drug use the trial court erred in excluding the police report s and refusing to allow it to be profferred and the trial court ereed in allowing the playing of the defendant stelephone call to the victim after the incident For the following reasons we affirm the convictions and sentences FACTS The victim D testified she was married to the defendant between May 13 G 2005 and February 2010 and they had two children together She stated the defendant went back out on crack beginning in October 2007 She indicated the defendant would disappear for a week or two and then come back to the family home He would tell her that he was tired had been out there working for drugs I and needed food and a bath The victim stated when the defendant was using drugs he was more to himself angry and depressed Additionally he would sell anything in the house he could cany such as food fi the freezer alcohol the om Thc victim is referenced herein only by her initials See La R 46 The indichnent referenced S 1844 W her as 11 D At trial however she indicated she liad remarried since the offenses and used her new married name s children toys the microwave the television and the stereo According to the vicrim the defendant also sold his truck for drugs and she had to buy it back n January 2008 the victim became involved in a relationship with Gregory Griggs In Eebruary 2008 she returned home after being out with a female friend and found the defendant on the couch with a knife He asked her if she had brought the police with her because he had left her a voicemail stating for the victim to come home she had better bring the police with her because the defendant was going to kill her and then kill himself Less than a week later she moved out of the family home with the children She testified that after the defendant began using drugs she no longer had sexual relations with him According to the victim on February 22 2008 the defendant asked her to have sex with him She refused and he masturbated in front of her The victim testified the defendant called her on March 16 2008 the birthday of her daughter with the defendant The defendant sbirthday was on March 18 and he requested that the victim and their children go out to eat with him and spend the day in the park with him on his birthday The victim refused because she did not want to lose a day of work did not want the children to be absent fi school and did not want to fund the excursion The defendant cursed her According to the victim on March 17 2008 at approximately 6 a upon 00 m returning to her Ford Expedition after taking the children to the nucsery operated by the defendant mother she found the defendant in the rear of the vehicle s The victim told him L I don have time for this this morning I don have time for 00k t t this 1 getting ready to go to work I have to leave Iust get out of the truck m The defendant replied You around here calling you think I playing with you I not playing with you m m me a pussy r or whatever The defendant pulled ass n up a gun covered by a white towel and stated Don tyou see this in my hand Do you see what I have in my hand This is a gun You going to do what I say do re 3 The victim started crying and did not know what to do The defendant ordered her to ack b out and drive side while she drove The defendant owered his gun and held it to the victim s The victim slowed as she passed a police station on Scenic Highway and the defendant put the gun to her neck stating Don tget any craay ideas Don tslow down Just keep gou Just keep going He directed t to The g er parking lot of the Palisades Apartments where he had worked as a maintenance man Thereafter he ordered the victim to take one pants leg out s painter jumpsuit he was wearing He removed the He then ordered the victim to raise her butt and put her butt on the middle piece of the console The victim told the defendant to stop but he put his penis in her vagina as she cried Thereafter the defendant stated I guess you going to tell on me now You going to call the police re re now The victim told the defendant she would not call the police She testified she told him she would not call the police because he still had the gun they were parked by some dumpsters and she didn know what else he was going to do The t defendant ordered the victim to drive back and she drove him back to the area of the nursery He exited the vehicle and asked the victim if she was going to call the police She answered negatively and he stated Well if you don call the police t nothing will happen to you According to the victim the defendant forgot his belt in her vehicle The defendant also testified at triaL He blamed the victim in6delity for the s failure of their man and for his drug use In regard to the incident he daimed iage beginning on March 7 2008 he had persistently tried to meet the victim to try to reconcile their marriage He stated every time they left each other or saw each other they would embrace According to the defendant the victim agreed to meet him on the day ofthe incident and dropped off the children early at the nursery He stated he sat in the passenger seat of the Expedition and the victim saw him as she entered the vehicle Ne claimed she drove him to the apartments and he told her Well look I 4 know if we make love we probably can you know get back together According to the defendant the victim gave him oral sex and then he got up on top of her He claimed she willing it feeling it was wanting to be with me The defendant stated the victim became angry when he asked You stil seeing that n r He claimed he called her a and Ho and she started crying He stated he became B angry with the victim and told her to park his vehicle at his mother house and to get s whatever was in his name out of his name He claimed the victim stated I fix it ll where you never see them again The defense theory at trial was that the victim lied about the defendant kidnapping and raping her as part of a conspiracy with Gregory Griggs to eliminate the defendant from the picture so that they could get matried SUFFICIENCY OF THE EVIDENCE In assignment of error A the defendant contends the jury verdicts are contrary to the law and the evidence In assignment of error B he contends the jury verdicts are not supported by sufficient evidence to find him guilty of forcible rape andior second degree kidnapping He argues no forensic or scientific evidence establisties that a forcible rape occurred and there was no torn clothing physical trauma or any other indication that force existed Additionally he argues the s victim account of the incident at trial was not the same as the account recorded in the police report and thus her testitnony was contradictory 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 condude the State proved the essential elements of the crime and the defendant identity as the perpetrator of that crime beyond a s reasonable doubt In conducring this review we also must be expressly mindful of s ouisiana circumstantial evidence test which states in part assuming every fact to I be proved that the evidence tends to prove in order to convict every reasonable 5 hypothesis of innocence is excluded State v Wright 98 La App 1 st Cir 0601 99 19 2 730 So 485 486 writs denied 99 La 10 748 So 2d 0802 99 29 2d 1 157 2000 La I 1 773 So 732 quoting La R 15 0895 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 Whe 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 ofthe crime Wright 730 So at 487 2d As pertinent here rape is the act of vagina sexual intercourse with a female person committed without the person lawful consent La R 14 s S 41 A Emission is not necessary and any sexual penetration when the rape involves vaginal intercourse however slight is sufficient to complete the crime La R S B 41 14 Forcible rape is rape committed when the vaginal sexual intercourse is deemed to be without the lawful cousent of the victim because it is committed under any one or more of the following circumstances 1 When the vicUm is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape La R 14 S 42 A 1 As pertinent here second degree kidnapping is the forcible seizing and carrying of any person from one place to another wherein the victim is physically injured or sexually abused La R 14 B S 44 1 3 A 1 Inirially we note the defendant claims the victim testimony at trial was s contradictory to the account recorded in the police report However the police t repo or initial investigative report was properly held inadmissible at trial See La Code Evid art 803 see State v Casey 99 La 1 775 So i b 8 0023 00 26 2d 6 1022 1031 cert denied 531 U R40 121 S 104 148 L 62 2000 S Ct 2d Ed er Af a thorough review of the record we are convinced that any 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 those reasonable hypotheses of innocence raised by the defendant at trial all of the elements of forcible rape and second degree kidnapping and the s defendant identity as the perpetrator of those offenses against the victim ihe verdicts rendered against the defendant indicates the jury rejected the defendant s claims that the victim consented to driving him to the Palisades Apartments for consensual sex When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant own s testimony that hypothesis falls and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt State v Captville 448 So 676 680 2d La 1984 No such hypothesis exists in the instant case Further the verdicts rendered indicate the jury accepted the victim testimony and rejected the s s defendant testimony reweigh the evidence This court will not assess the credibility of witnesses or to overturn a fact finder determination of s guilt The tesrirnony of the victim alone is sufficient to prove the elements ofthe offense 1 he trier of fact may accept or reject in whole ar 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 ofi the weight of the evidence not its sufficiency State v Lofton 96 La 1429 App lst Cir 3 691 So 1365 1368 writ denied 97 La 10 97 27 2d 1124 97 l7 701 So 1331 Additionally in reviewing the evidence we cannot say that the 2d s jury determination was irrational under the facts and circumstances presented to them See State v Ordodi 2006 La 11 946 So 654 662 An 0207 06 29 2d appellate court errs by substituting its appreciation of the evidence and credibility 7 I of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State v Calloway 2007 La 1 1 So 417 2306 2ll09 3d 418 per cw iam These assignments of error are without merit PRIOR DRUG USE OF THE DEFENDANT DENIAL OF PROFFER In assignment of errar C the defendant contends the trial court committed error of law by allowing testimony concerning his prior diug use In assignment of eiror D he contends the trial court committed eiror of law in excluding the police report and in refusing to let him proffer the report He combines the assignments of enoi for argument PRIOR DRUG USAGE OF THE DEFENDANT n assigmnent of error C the defendant argues the victim testimony s concerning his drug use was not related to any paiticular issue in this case and merely served to characterize the defendant as a bad person capable of anything Piior to trial the State gave notice of its intent to use evidence of other crimes acts or wrongs against the defendant at trial including the acts which demonstrated the victim knowledge ofthe defendant addiction Following hearings the trial s s court denied the State motion to use the other crimes acts or wrongs evidence s Thereafter this court denied the State application for supervisory relie State v s 1328 Dunn 2010 La App lst Cir 10 9 unpublished writ action The Louisiana Supreme Court granted supervisory relief to the State holding Writ granted The testimony of the alleged victim in the hearing held on October 13 2009 regarding her relationship with the defendant and his actions during that relationship satisfies the requirements of La Code Evid art 404 and is admissible at his triaL See State v Rose B 0402 2 2006 La 949 So 1236 and State v Welcla 615 So 07 22 2d 2d 300 La 1993 State v Dunn 201Q La 11 49 So3d 876 unpublished writ action 2287 10 12 8 At trial the defendant objected to the relevance of the victim testimony s concerning his consumption of narcotics and the trial court overruled the objection Rose 949 So at 1237 involved the issue of the admissibiliry of other 2d crimes evidence the defendant earlier conviction for manslaughter of his former s wife convictions for violence perpetrated against his former wife and his an for est domestic violence against his wife in a defendant trial for the second degree s murder of his wife The court in Rose held We conclude the evidence of other crimes is highly probative to show s defendant identity pattern system and notive and his vicious attitude toward women with whom he shares a close personal relationship We further conclude the other crimes evidence is not unduly or unfairly prejudicial and that its probative value outweighs its prejudicial effect Id Weleh involved the issue of the admissibility of other crimes evidence prior threats by the defendant against the victim and her fiancé in a defendant strial for the aggravated battery of his former girlfriend Weleh 6l5 So at 30L The court 2d in Welch found In this case the state could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the defendant Without that evidence which included priar acts of violence or threatened violence by both parties defendant claimed that the victim had previously attacked him with a knife the jury would have lacked the context in which to evaluate the victim testimony about what s otherwise appeared to be a gratuitous attack by the defendant Welch 615 So at 303 2d A trial judge is not at liberty to ignore the controlling jurisprudence of superior courts See State v Bertrand 2008 La 3 6 So 738 743 2215 09 17 3d Assigrunent of error G is without merit DENIAL OF PROFFER 9 In assignment of error D the defendant argues the trial court erred in refusing to allow him to introduce the police report into evidence and erred in refusing to allow him to proffer the report As noted in our discussion of assignment of error A the police report or initial investigative report was properly held inadmissible at trial Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected and when the ruling is one excluding evidence the substance of the evideuce was made known to the court by counseL La Code Evid art 103 Additionally the defendant cites State v 2 A Adams 550 So 595 La 1989 Therein in a concuiring opinion referencing 2d the law in effect prior to the adoption of the Louisiana Code of Evidence Justice Dennis noted it is well settled that when an offer ofproof is proper the trial court must pertnil it to be made Adams 550 So at 599 Justice Dennis also noted 2d the failure to allow a formal proffer could be hannless when the substance of the proffer is made known to the court by counsel Id In the instant case the trial court denied the defendant srequest to make a proffer of the police report out of the presence of the jury In questioning the author of the report Baton Rouge City Police Department Ofticer Tafari Beard defense counsel established that the report contained a brief description by the victim of how the alleged rape occurred Additionally defense counsel cross examined the victim concerning her account of the rape at trial and what she had told the police and what was in the police report Accordingly refusing to allow the proffer was harmless error if error at all Sec La Code Crim P art 921 Assignment of error D is without merit TELEPEIONE CALL FROM DEFENDANT TO VICTIM 10 I in assignment of error E the defendant contends the trial court committed error of law in allowing the playing of the defendant stelephone call to the victim after his arrest Prior to trial the defendant moved to suppress his March 18 2008 telephone call to the victim from prison He claimed the telephone call was not a confession and contained no reference to the alleged rape Following a hearing the motion was denied T call was played at trial over defense objection that We don believe he t that it depicts what the State alleges it does The telephone call begins with the defendant stating I sony D He then m asks for momma phone number s The victim gives the defendant the phone number and then interrupts him as he states Look Look victim tirst name s tyou know I She tells him he had no right He replied I know I didn He don t then states You know I didn thave no gun The victim replies Yes you did have a f gun The defendant claims he had a handle torch Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the detennination of the action more probable or less probable than it would be without tt evidence e La Code Evid art 401 All relevant evidence is admissible except as otherwise provided by positive law Evidence that is not relevant is not admissible La Code Evid art 402 Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues misleading the jury or by considerations of undue delay or waste of time La Code Evid art 403 There was no error in the admission of the challenged evidence The telephone call was the defendant own statement offered against him and was not s hearsay See La Code Evid art 801 Further the prejudicial effect to the a 2 D defendant from the challenged evidence did not rise to the level of undue or unfair prejudice when balanced against the probative 1l value of the evidence The defendant claimed the victim volunta drove him to the Palisades Apartments to ily have sex with him The victim claimed the defendant forced her to the apartments at gunpoint and then raped her at gunpoint Thus the defendant apology to the victim s and denial that he had a gun shortly after the incident were highly probative I he prejudice to the defendant from the telephone call was mitigated by his testimony at trial in which he claimed his apology in the telephone call was for a uptight conversation and for putting his hands in the victim sface during the incident This assignment of error is without merit CONVICTIONS ANll SENTENCES AFFIRMED 12
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