State Of Louisiana VS Paul Dufrene
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 KA 2536 STATE OF LOUISIANA n f VERSUS PAUL DUFRENE XU c On Appeal from the 17th Judicial District Court Parish of Lafourche Louisiana Docket No 453602 Division Honorable Jerome J Barbera III 8 Judge Presiding Camille A Morvant II Attorneys District State of Louisiana Attorney for Jennifer F Richard Assistant District Thibodaux Attorney LA Bertha M Hillman Louisiana Appellate Project Paul Dufrene Thibodaux LA BEFORE Attorney for Defendant Appellant PARRO McCLENDON AND WELCH JJ Judgment rendered MAY 8 2009 PARRO J The defendant Paul Dufrene 14 43 1 in violation of LSA R S battery defendant waived trial by jury and trial court denied the defendant C 2 found was defendant The defendant guilty motion for s The judgment of acquittal charged by grand jury indictment with sexual was as a new was pled not guilty charged after a bench trial trial and motion for sentenced to The a The post verdict thirty five of years imprisonment at hard labor with the first twenty five years to be served without the suspension of sentence The trial court noted that the eligible for diminution of sentence The defendant benefit of probation parole defendant was not contending there reasons we was or insufficient evidence to support the conviction now For the appeals following affirm the conviction and sentence STATEMENT OF FACTS During the early portion of 2007 within the first three months of the year vtmici t who approximately was seven siblings went to the home of their watch Jurassic Park movie a separate sofas movie The victim sat in to the victim According private at the defendant a s area the defendant in Larose a to Louisiana reclining chair while her siblings sat digged The children did not home for and her two older in her as they watched the pants stay for the on that occasion entire movie and short time before their mother on were came over to get The victim related the incident to her mother and to the Lafourche Parish them Sheriff neighbor the defendant The defendant sat with the victim in the chair and touched her only years of age at the time the s Office in April 2007 ASSIGNMENT OF ERROR In the sole insufficient to assignment of support the conviction child witnesses was 1 5 R 46 1844 W Pursuant to LSA error the defendant argues that the evidence The defendant argues that the unreliable and inconsistent 1 the identity testimony of the The defendant notes that the victim of the victim will be 2 was protected testified that she sat on the defendant lap during the incident s defendant further notes that the victim s sister who six feet away from the victim victim s s in an effort to make up for saw see The the defendant brother gave s the defendant rub lotion on incriminating report the to the victim the victim stated that the Also the defendant notes that the victim brother testified that he could underneath The defendant contends that testimony blanket approximately feeling guilty about his failure defendant touched her with his bare hands a sofa The defendant notes that while the victim s brother accusations to his mother testified that he on a sister testified that she did not The defendant argues that the victim touch the victim possibly sitting The question stated that the victim sat beside the defendant defendant also notes that the victim details was in not see the defendant s hands was because they s were inconsistent with the testimony of the victim and her sister The defendant contends that the victim at times because she had difficulty remembering have remembered what The defendant birthday presents she had defendant further appeared incompetent events that a normal eight year old child should specifically notes that the victim could received four and one testify to half months not remember The earlier specifies that the victim could not remember going to the doctor The defendant notes that while the victim testified that her aunt told her the defendant had molested other children her aunt denied it Finally the defendant ever did anything to make her angry meet its burden of the reasonable that is that In appellate notes that the victim could not remember if the defendant The defendant concludes that the state failed to proof The defendant also concludes that the evidence did not exclude hypothesis of innocence established by the testimony of the victim s sister nothing happened reviewing the sufficiency of the evidence court is controlled Court in Jackson v to support a conviction a Louisiana by the standard enunciated by the United States Supreme Virginia 443 U S 307 3 99 S Ct 2781 61 L Ed 2d 560 1979 appellate review adopted by the legislature That standard of art prosecution was 4 12 05 proved beyond 907 So 2d 15 438 overall evidence 1 excludes Graham 02 1492 La When 18 Moreover which one where there is depends upon of the When Richardson v weight a case a hypothesis of innocence State v LSA R S reject in whole or State v 845 So 2d 416 420 459 So 2d 31 38 or in part the testimony of La App 1st Cir 1984 conflicting testimony about factual matters the resolution of determination of the of the evidence credibility of the witnesses the matter is Richardson 459 So 2d at 38 sufficiency not its involves circumstantial evidence and the trier of fact hypothesis of innocence presented by the defense defendant is 03 0897 Brown v the trier of fact must be satisfied that the App 1st Cir 2 14 03 accept State analyzing circumstantial evidence reasonable every The trier of fact is free to State reasonable doubt a in order to convict provides that any witness to the sufficient to convince any rational trier of fact that all of the elements of the crime had been La light most favorable when viewed in the is whether the evidence 821 enacting LSA C Cr P in is another guilty unless there Moten 510 sO 2d 55 61 La that 1st Cir writ denied a a and the hypothesis falls hypothesis that raises App reasonably rejects reasonable doubt 514 sO 2d 126 La 1987 Sexual battery is defined by LSA RS Sexual 14 43 1 A 1 in pertinent part as follows battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim or where the act is consensual but the other person who is not the spouse of the offender has not yet attained fifteen years of age and is at least three years younger than the offender 1 The touching of the using any instrumentality As the defendant was or genitals of the victim by the offender any part of the body of the offender anus or charged under LSA 5 R 14 43 1 C 2 the state was also required to show that the victim was under the age of thirteen years at the time of the offense and that the defendant was seventeen The trial took place on years of age or older July 31 2008 and the victim 4 was eight years old at that time 2 The defendant lived incident in the street from the victim across the victim and her question family had a and she and her sister As her follows defendant up and on s the victim sat the sofa home specified She area area at least two on the defendant that the defendant touched her m ore than home on living once with her mother to room on sat on the defendant s stated that this the was She confirmed that she use rubbed her back with his his finger in her in was sitting lotion while dry hand not videotaped interview lying on her the defendant which took told her to sit 2 The victim s on to do so s She area lap and that the She testified that the defendant e put touched all up here and all down there The victim further described the defendant s action as area During the pretrial videotaped interview with the Children CAC On the occasion in The victim further confirmed that the defendant h s get cookies and remembered being lap because he asked her touching private part stating private The place only occasion where the defendant touched her private She stated that it did not hurt digging a at least two different occasions question the victim defendant did not time examination the victim stated that she had been to the defendant other occasions in the defendant s one her The victim further testified that she relating the incident to the police and during cross The lap The victim stood told her older sister and her mother about two weeks after the incident took During s as she indicated that the defendant touched as the incident and told her not to tell anyone victim also recalled buying the victim testified placed his hand under her clothing and touched her skin pointed to her groin private during siblings sat on as question when the victim and her older brother and watching Jurassic Park at the defendant were things such siblings watched movies at his house As to the occasion in occasions Prior to the friendly relationship with the defendant The victim testified that the defendant would do nice her dolls home s place his on Advocacy Center April 23 2007 the victim similarly stated that the defendant lap and specified that they date of birth is s February 11 2000 5 were on a rocking and reclining her When asked private reference to her vagina for clarification She stated that she could not say good her not to touched the inside stated that she defendant s of her something her anything because the defendant instructed little and a was She also called it told her a story about taken to the Children As an Hospital s a lily and but vagina diagram used to determine that the victim a Atzemis testified that the victim physical on May 8 2007 and examined history were were not was a c her h i private She n a A body referencing her genitalia Dr Scary Movie 4 during was consistent with normal v as in a sexual abuse The case Dr Atzemis noted that the results of inconsistent with sexual abuse based on the given by the victim including actions that typically would not leave marks Dr Atzemis further testified that a delay in disclosure was or not unusual in sexual cases The victim s sister who things such s as buying juice sister remembered when she sat on the was present during the instant incident She testified that the defendant would old at the time of the trial victim s dinosaur movie and examination physical examination abuse childhood friend whose father spelled the word happened during scars a expert witness Dr Atzemis testified that the victim stated that it disclosure the inside she was involving the defendant and stated that he digged discussed occasions the specified that the defendant The victim also stated that when she disclosed the nanny by Dr Adrienne Atzemis results of the a to her The victim was was didn t feel too She further stated that this When asked how she knew it private felt it open actions specified that her private She stated that the defendant touched She stated that it hurt speak she lily or popcorn by rubbing her with his finger her bare skin did got higher down there with his hand and rubbed She stated that the defendant chair for her and her watching a years occasionally do nice siblings and performing magic tricks The movie in the defendant s home big sofa her brother sat 6 was ten on the little sofa on an occasion and the victim sat on the chair with the defendant but she did not defendant do anything with the short time after mother wrong her that see She further testified that she did not day victim on the chair spot and pointed to her private asked whether she house s on was seen sitting and she did not did she hear anything s During actions to her one occasion a him put lotion her on home for about five s older brother came to was only responded positively when She victim if she would have made a the side of the defendant in the wanted to leave and their mother s that sister further testified that she s the defendant touch her if he had done on see at the defendant The victim The victim thought she would have heard the noise and would have stayed nor the see the victim told her sister that the defendant touched her in the went to the defendant him mother lived with him they went to watch the movie and that she told the victim to tell their Specifically that the victim s she stated that the victim related the defendant examination cross She noted that the defendant same She so specified chair not She further testified that laying on they only minutes because the victim or ten get them in the seventh testified that the defendant would often do nice grade things at the time of the trial for him and his He siblings such as allowing them to watch movies at his house doing magic tricks and bringing them Kool Aid and He testified that he juice packs what he did The victim times I think to watch movies like he d Park give He sat us on other sister sat stuff the little sofa on the thought the victim defendant gave her lotion on brother recalled a or heard going to the defendant s home about f our pick up juice packs or other He testified that the last movie big sofa but he did not think she he s fond of the defendant until he was was was on on Jurassic the chair with the defendant and his that occasion lying down on He also stated was they saw He also noted that the defendant there blanket and she said yes the victim sat things The victim the defendant s s s there mother lived there brother testified that lap and noted that the The defendant asked the victim if she wanted The victim s 7 brother further testified that he some saw the defendant rub the victim defendant rubbed other was cross actions s when asked but stated that his view He also stated were whether obscured by the blanket that they did not finish watching the movie because anything massaging the victim the victim s older brother He he felt responded positively responsible for what happened He confirmed that he did not make any statements to and that he was during a improper kinda had a to get revenge in asleep positioning in the chair with the I think she part little hint s was laying down was that the defendant was He doing something to the victim but he could not see because she was under a blanket The victim was As to the victim the victim s brother stated reiterated that he try He further testified that his other sister telling the truth portion of the brief visit defendant thought the He stated that while he he did not know what to do wrong as was He assumed that the the victim s brother testified that he did not tell his examination mother about the defendant defendant legs and back with lotion He did not hear the victim say came During upper areas covering the victim their mother s s brother eleven years old consistent with his trial was also interviewed at the CAC The statements made testimony on April 23 2007 when he during the videotaped interview He discussed the massage with lotion that the defendant covered the victim with a and noted blanket Sergeant Toby Gambarella of the Lafourche Parish Sheriff s Office primary investigator for the instant offense conducted Cortopassi an audiotaped were He interview of was the along with Detective Christine the defendant audiotaped interview the defendant stated that his date of birth was During the April 24 1950 The defendant recalled the instant incident in which the children watched Jurassic Park at his home He noted that the victim sat The defendant stated victim to sit and he did on so the sofa it hit me on his lap while her siblings that this shouldn t be happening sat on his sofa So he told the The victim asked the defendant to scratch her back and after she lifted her shirt and rolled back her sleeves 8 arms The defendant also stated that the victim rolled up the defendant with her chest it was on legs for less than his tempting situation a I would not juvenile on stipulated that he stipulated that during further made of that interview a have The of her sister the victim transcript her why the victim accused him of touching areas a testified that she her information The defendant 1994 interview he admitted to numerous acts was s aunt knew the defendant convicted transcript as the neighbor mother related the instant incident to s home before the offender or She happened to the victim and did give to know what Nanny and stated that she told the victim the story about the victim related the defendant were partially covered by a not s some childhood friend after to whether the victim actions minor discrepancies as touching the victim we cannot La 11 29 06 946 SO 2d 654 9 662 as to was whether the say that the trier of fact s determination is irrational under the facts and circumstances 06 0207 to her a blanket at the time of the offense and defendant used lotion in police that he had molested other children regarding the defendant She confirmed that the victim referred While there was She testified that she did not inform the victim that the sex only wanted s arrived at her sister RG a admitted into evidence mother The victim s arrived and talked to the victim was a admitted into evidence were the victim just after the victim told her Ordodi maybe touched convicted of six counts of molestation of was March 25 Sole defense witness R G as The lap briefly varying victims all juvenile girls and that of sexual misconduct with defendant his on May 5 1994 and the minutes and transcript of the Boykin examination and sentences for those convictions RG would inappropriately and stated that he avoided her private The defendant the get the victim away from him because I temptation The defendant did not know inappropriately her resisted have on The defendant noted that a minute He stated that the victim sat defendant further stated that he took action to if The victim laid legs of her bottom clothing presented See State v The defendant admitted that the victim was on his lap and that he believed that the defendant actions s that the defendant touched interview victim testimony s the witnesses State v or Smith contradiction or private A is whether the conviction 600 So 2d 1324 1319 irreconcilable conflict with La 1992 4 27 07 La physical evidence trier of fact could have found For the above reasons of innocence this in the beyond a 9 06 The victim and the defendant Viewing the evidence hypothesis 1st Cir 6 955 SO 2d 683 at the time of the offense reasonable App the trial court accepted In the absence Thomas 05 2210 years of age consistently stated the contrary to the weight of the evidence State La brother not called upon to decide whether it believes reviewing court is by the trier of fact is sufficient support for 06 2403 s during the incident in area As the trier of fact believed v The victim not normal the inside of her clear and articulate were were The victim youthful victim s statements during the trial and during the CAe The question tempted by her position was a witness s testimony if requisite factual conclusion 938 SO 2d 168 was was one of internal 174 writ denied well under the age of thirteen significantly light most favorable older than seventeen to the state any rational reasonable doubt and to the exclusion of every that the defendant assignment of error guilty of sexual battery is without merit CONVICTION AND SENTENCE AFFIRMED 10 was
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