State Of Louisiana VS Daniel Joseph Moore
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0103 STATE OF LOUISIANA VERSUS DANIEL JOSEPH MOORE DATEOFJUDGMENT L fi 8 ON APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NLJMBER 383 DIV H PARISH OF ST TAMMANY 668 STATE OF LOUISIANA HONORABLE ALLISON H PENZATO JUDGE Prentice L White Appellate Project Rouge Louisiana Louisiana Baton Walter P Counsel for Defendant Appellant Daniel Joseph Moore I Counsel for Appellee Reed District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana BEFORE PARRO KI JHN AND McDONALD JJ Disposition CONVICTIONS AND SENTENCES ON COUNTS I II AND III AFFIRMED PROTECT7VE ORDER ISSUED I KIJHN J Defendant Daniel Joseph Moore was charged by grand jury indictment with three counts of aggravated rape counts I III violations of La R 14 S 42 and one count of artempted aggravated rape count IV a violation of La R S 27 14 and La R 14 and he pled not guilty on all counts Foliowing a jury S 42 trial he was found guilty as charged on counts IIII and not guilty on count N On counts I III he was sentenced on each count to life imprisonment at hard labor without benefit of parole probation or suspension of sentence The trial court ordered that the sentences run consecutively He now appeals challenging the sufficiency of the evidence and a portion of the opening statement of the State For the following reasons we affirm the convictions and sentences on counts I III FACTS On April 6 2004 the St Tammany Parish Sheriff Office was alerted to a s handwritten anonymous note found at Honey Island Elementary School The note claimed to be from a ten boy It stated They have a man that picks up old year little boys at your school hes sic name is Danule More The boy claimed he had been molested by Danule More but was scard to tell his dad because he knew that he would kill Danule More The boy claimed that Danule More had rapt him fore times when he was six and seven years old and payed him a lot of money to not tell on him The boy claimed that Danule More had a big jar with yellow grease in it and that he had used it on him The boy also claimed that Danule More hangs around a lot of little boys and baby sits them Defendant whose date of birth was June 24 1976 was a temporary janitor at the school As a 2 result of the note the St Tammany Parish Sheriff Office began questioning s children who had been left in the care of defendant The victim of count I J testified at trial His date of birth was November B 18 1990 He conceded he had misdemeanor convictions for possession of alcohol and possession of marijuana paraphernalia When he was five or six years old the defendant was his baby According to J defendant would let J play with sitter B B s defendant Nintendo 64 video game and computer at his trailer J stated that B defendant used to take his penis and put it in my butt whenever I was like seven years old B J indicated that defendant used Vaseline during the rapes and the rapes continued until he was nine or ten years old J also indicated that defendant B had put his mouth on J penis once or twice J stated he did not report the s B B rapes for seven years because he was afraid of humiliating himself He conceded that David Meters a convicted sex offender was his father good friend and had s lived in his home when J was a child J stated that Meters never tried to abuse B B him and always treated him like a nephew or son B J had also seen B at T s defendant trailer On April 30 2004 J made a controlled telephone call to defendant J B B told defendant that J was having flashbacks about those things you did to me B Defendant replied I don fuck with nobody no more t B J asked defendant hen twhy did you do it to me then Defendant replied I don know f t in B 1 1 was stupid I was stupid T don know why I did that to you J told t B The victims are referenced herein only by their initials See La R 46 S 1844 W 3 defendant that J was thinking about talking to someone about that Defendant B tried to dissuade J and stated that he had been told that David had tried B something with J B B J replied that David had never touched him Defendant asked J if he wanted to put defendant in jail and J said No Defendant then B B stated Just I don know what to do t B J I am ing f Pm sorry 1 mean I did it what a couple of times with you J replied y did it almost my whole B ou life Defendant became frustrated and stated o I fup I regret it You kay ed want me to shoot myself B 7 stated that be did not care what defendant did Defendant offered to give 7 money and stated I sorry about that man I don B m t wanna get in no trouble I mean I mean The vicrim of count II B also testified at trial His date of birth was July T 12 1995 Defendant was his baby when B attended Bayou Woods sitter T Elementary School in Slidell from kindergarten through third grade According to T B when he wanted to play the games at defendant trailer defendant would take s him to the laundry room in the trailer and stick his penis in B rear end s T T B described excruciating the as pain of the anal hurting very badly rapes and excruciating as being very painfui He defined T B could not remember how many times defendant raped him but knew it was more than once The State also played a videotape of an interview with B conducted when T he was eight years old T B indicated that defendant was an adult who was his friend and who used to work at school Defendant would come to B house s T and B would go to defendant house B indicated that Tina another adult T s T was at defendant home sometimes B indicated that when he was seven or eight s T years old defendant had pulled B clothes off and touched his penis with his s T 4 hands plenty of times B also indicated that defendant had touched the inside T of B rectum with defendant penis many times s T s The victim of count III C also testified at trial A His date of birth was December 10 1991 When he was little defendant was his baby From the sitter time C was five or six years old until he was twelve years old he would go to A shouse or trailer and play with defendant Nintendo video game and defendant s computer According to C defendant placed his penis in C butt on more A s A than one occasion C also indicated that defendant forced him to put his mouth A on defendant penis on more than one occasion C claimed he refused to talk to s A the doctor at Children Hospital about the sexual abuse because he was scared of s being judged Dr Scott Anthony Benton an expert in the field of pediatric forensic medicine also testified at trial He examined J on May 21 2004 B B J was receiving special education in the fifth grade and had behavior problems related to mood swings He also had a hearing loss J told Dr Benton that from an early B age until age eleven he had experienced penile penetration from defendant anal oral penile contact from defendant and digital contact from defendant with penile subsequent ejaculation by defendant A physical exam of J was within normal B limits Dr Benton indicated however that a physical exam neither normal confirmed nar denied J claims ofabuse because there were various reasons why s B a person who had experienced an abusive act could still have a normal exam Dr A C indicated that defendant lived in a trailer then a house and then another trailer 5 Benton noted that studies on the healing of the anus structure following rape found that it was exceedingly rare for there to be scars or any residual given sufficient time from the event Dr Benton also examined B in May 2004 B was receiving special T T education at the second level B indicated that defendant had taken him to grade T a back room and pulled his pants down but claimed that defendant didn do t nothing T B conceded however that he had previously reported penile anal penetration to a detective B had a normal physical exam T Dr Benton examined C prior to C birthday in 2004 C had failed A s A A the fourth grade and had behavioral issues C maintained a nonresponsive or A denial position While being examined C indicated that something happened to A him but he didn twant to say C had a normal exam A Dr Benton indicated that children delay reporting or fail to report sexual abuse for many reasons Most children presume that everything done by adults is correct even adults engaging them in sexual behavior Further even if an abused child realizes that he is being abused he may not know to whom to turn particularly if the abusive adult is the person to whom he would normally turn Dr Benton also indicated that abused children were susceptible to threats and bribes from their abusers and might also blame themselves for the abuse Mary Stone Moore defendant mother also testified at trial s She claimed that when defendant was one year old he was diagnosed as being mildly mentally retarded and had special education classes until he left school in the eleventh grade According to Ms Moore she was around most of the time when defendant would sit baby and her friend Tina was generally around Ms Moare claimed that J B 6 and the other kids that defendant was baby wanted to come over to her trailer sitting all the time to play and would get angry at defendant when he would not buy them things they wanted defendant his room She also claimed that B stole a chain and a watch from T She indicated that defendant had and one in the front room two Nintendo game systems one in and a computer in his room According to Mary Moore the kids defendant was baby were not allowed in the back sitting SUFFICIENCY OF THE EVIDENCE In assignment of error number 1 defendant asserts the jury irrationally weighed the evidence in favor of the State because the controlled conversation did not reflect that defendant had sexual contact with J the alleged victims delayed B reporting the alleged abuse the alleged victims had mental deficiencies and there was no physical evidence of the alleged rapes In reviewing claims challenging the sufficiency of the evidence this court must consider whether after 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 x Virginia 443 U 307 319 S 99 S 2781 2789 61 L 560 1979 See also La C art 821 Ct 2d Ed P Cr B State u Mussall 523 So 1305 1308 La 1988 2d 09 La R S 41 14 prior to amendment by 2001 La Acts No 301 pertinent part provided A Rape is the act of anal or vaginal sexual intercourse with a male person committed without the person lawful consent s B Emission is not necessary and any sexual penetration vaginal ar anal however slight is sufficient to complete the crime 7 1 in La R S La Acts No A 42 14 prior 795 to amendrnent by 2001 La Acts No 301 1 and 2003 1 in pertinent part provided Aggravated rape is a rape where the anal 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 4 When the victim is under the age of twelve years Lack of knowledge ofthe victim age shall not be a defense s Effective August 15 2001 La R 14 was amended to also include oral S 41 sexual inYercourse i intentional touching of the anus or genitals ofthe victim e the by the offender using the mouth or tongue ofthe offender or the intentional touching ofthe anus or genitals ofthe offender by the victim using the mouth ar tongue of the victim 2001 La Acts No 301 1 Effective August 15 2001 La R 14 S 42 A was also amended by Act 301 to include oral sexual intercourse After a thorough review of the record we are convinced that viewing the evidence in the light most favorable to the State any rationa trier of fact could have found beyond a reasonable doubt that defendant was guilty of counts I II and IIL The verdicts rendered against defendant indicate the jury accepted the testimony of the victims of counts I II and III and rejected the testimony of s defendant mother This court cannot assess the credibility of witnesses ar reweigh the evidence to overturn a fact finder determination of guilt The testimony of the s victim alone is sufficient to prove the elements of the offense The 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 on a determination of the credibility of the witnesses the matter is one of the weight of the evidence not its sufficiency State u Lofton 96 p 5 App 1 st Cir 1429 La 8 97 27 3 691 So 1365 1368 writ denied 97 La 10 701 So 2d 1124 97 17 2d 1331 An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby errs in overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to and rationally rejected by the jury State u Calloway 2007 pp i La 2306 2 09 21 1 1 So3d 417 418 per curiam This assignment of errar is without merit IMPROPER OPENING STATEMENT In assignment of error number 2 defendant contends that during its opening statement the State improperly read from the transcript of the controlled telephone conversation rather than telling the jury that it would present a tape in which defendant indicated he had done some regretful things The opening statement of the State shall explain the nature of the charge and set forth in general terms the nature of the evidence by which the State expects to prove the charge La C art 766 P Cr On September 1 2009 during its opening statement the State toid the jury that in investigating the case the St Tammany Parish Sheriff Office had s conducted a controlled phone call between J and defendant and the jury would B hear a recording of that phone calL The State then quoted portions of the phone call The State had granted the defense open discovery and had filed a copy of file the transcript of the controlled phone call into the suit record on October 13 2008 During its opening statement the defense told the jury that they would hear the controlled phone call but it was set up by the police J was told what to B say He was told what to ask 9 During trial the State offered Exhibit 3 an audio recording of the cassette controlled phone call and Exhibit 4 a transcript of the recording into evidence The defense did not object to the tape but did object to the transcript The trial court sustained the objection as to the transcript and the tape was played for the jury Initially we note defendant failed to contemporaneously object to the challenged portion of the opening statement An irregularity or error cannot be availed of after verdict unless at the time the ruling or order of the court was made or sought the party made known to the court the action which he desired the court to take or of his objections to the action of the court and the grounds therefor La C art 841 Mareover the error if any in the opening statement did P Cr A not affect substantial rights of the defendant See La C art 92L P Cr The defense was notified of the controlled conversation well in advance of trial responded to the State reference to the conversation and the entire conversation s was played for the jury without objection by the defense This assignment of errar is without merit PROTECTIVE ORDER La R 15 requires that a videotape of a child statement admitted S 440 6 s under La R 15 be preserved under a protective order of the court to S 440 5 protect the privacy of the child Accordingly it is hereby ordered that the videotaped statements of the victims be placed under a protective order See State v Ledet 96 p 19 La App 1 st Cir ll694 So 336 347 writ 0142 96 8 2d denied 96 La 9 701 So 163 3029 97 19 2d DECREE 3 T State introduced four videotaped interviews into evidence he 10 For these reasons we affirm the convictions and sentences on Counts I II and IIL Furthermore we place the videotapes of the victim statements under a s protective order in accordance with La R 15 S 440 6 CONVICTIONS AND SENTEI ON COUNTS I II AND III ICES AFFIRMED PROTECTIVE ORDER ISSUED 11
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