State Of Louisiana VS Jerrell Demon Payton
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT i 2012 KA 0716 7L STATE OF LOUISIANA VERSUS ERRELL DEMON PAYTON On Appeal from the 22nd 7udicial District Court Parish of St Tammany Louisiana Docket No 460214 Division C 4 Honorable Richard A Swartz Judge Presiding Walter P Reed Attorneys for Appellee District Attorney SWte of Louisiana Covington LA and Kathryn Landry Special Appeals Counsel Baton Rouge LA Frederick Kroenke Attorneyfor Louisiana Appellant Defendant Baton Jerrell Demon Payton Appellate Projed Rouge LA Jerrell Demon Payton Appellant Defendant Ferriday In Proper Person LA BEFORE PARRO HUGHES AND WELCH J Judgment rendered E 3 1 ZQ Z PARRO J The defendant Jerrell Demon Payton was charged by grand jury indictment with aggravated rape a violation of LSA 14 S R 42 The defendant pled not guilty Following a jury trial the defendant was found guilty of the responsive offense of simple rape a violation of LSA 14 The defendant filed a motion for new trial S R 43 which was denied He was sentenced to fourteen years of imprisonment at hard labor without benefit of parole probation or suspension of sentence The defendant now appeals designating one counseled assignment of error and one pro se assignment of error We affirm the conviction and sentence FACTS old year E Nineteen A and her friends Nick and his girlfriend Mary M all C from Kentucky were visiting New Orleans for the Voodoo Festival On the evening of October 26 2008 the three friends went sightseeing on Bourbon Street Sometime after 2 a as they were walking back to their car the defendant and his friends 00 m approached them and began talking to them The defendant si years old was een with Chance Ross Elroy Cooper Ralph Robertson and Troy Robertson cousin The s defendanYs friends were from sixteen to eighteen years old Someone from the defendanYs group asked A and her friends if they wanted to smoke marijuana A E E said that she did They all walked to Ross car a Honda Accord parked on Canal s Street The defendant and his friends along with A got into the Accord Nick and E Mary did not get in The defendant was driving E A testified at trial that as the defendant began to drive off she asked to be let out of the car so she could go back with her friends Her request was ignored The defendant drove to Alton just outside of Slidell to the house of someone he knew who might have marijuana The defendant pulled into the person driveway and s Four co were charged under the same indictment These co were Chance Ross defendants defendants Elroy Cooper Joshua Reed and Ralph Robertson Ross charge was subsequently amended to forcible s rape and he pled guilty to that charge Cooper was convicted of simple rape and he appealed his conviction See State v Cooper 0227 12 La App lst Cir 12 21 3d 9 So 2012 WL 4335453 unpublished Reed was convicted of forcible rape and he also appealed his conviction See State v Reed 1539 11 La App lst Cir 12 23 3 So3d 2012 WL 1012630 unpublished Robertson Robertson was convicted of simple rape and he has filed a 0743 3d So Robertson 12La App lst Cir 12 and the defendant were tried together separate appeal See SWte v z The identity of the victim is protected in accordance with LSA 46 S W R 1844 2 everyone got out of the car except A The defendant knocked on the door realized E no one was home then got back into the car with A As the others stood outside the E car the defendant put on a condom and had sex with A When the defendant was E finished he got out of the car and Robertson and Troy got in the car E A performed oral sex on both of them Robertson and Troy then got out of the car and Ross and Cooper got in the car According to Ross who testified at trial Cooper had sex with E A while A performed oral sex on Ross Everyone then returned to the car and the E defendant drove to the trailer of Joshua Reed another person who the defendant thought might have marijuana Reed and someone named Johnny were in the trailer Troy did not go into the trailer but walked home from there The defendant led A inside the trailer after a E few minutes the three others from the car followed them inside A testified that she E was brought to a back bedroom and that over the next few hours they all took turns raping her She gave verbal resistance but no physical resistance because she feared for her life A testified that at one point Reed showed her a loaded gun and forced E her to perform oral sex on him The defendant and Ross left the trailer and drove to a store to purchase cigars They returned to the trailer made blunts with the cigars tobacco removed and replaced with marijuana and smoked marijuana Finally after repeated requests by A to use a phone they let her call Mary The defendant told E Mary they would drop off A at a gas station on Brownswitch Road in Slidell They E brought A to the Kangaroo gas station and left her there A went inside the store E E told the person working there that she had been raped and used the phone to call Mary and 911 An ambulance picked up A from the gas station and she was taken E to Slidell Memorial Hospital The defendant was arrested a few hours later The defendant testified at trial He denied raping A and stated that the sex he E had with her was consensual COUNSELED ASSIGNMENT OF ERROR In his counseled assignment of error the defendant argues that the trial court erred in finding alleged impeachment evidence inadmissible Specifically the defendant contends that the trial court should have allowed a story written by A and posted on E 3 the internet to be admitted into evidence because it showed that A was a E compulsive liar The defendant also argues that the trial court erred in denying the motion for new trial regarding the same issue On cross at trial A was asked Was there one room that you examination E were perhaps sitting at not doing sexual things and another room that you went into where sexual things happened A responded E Honestly the entire time there was some kind of sexual activity going on even if I wasn having sexual intercourse or giving someone t oral sex Even in the living room the only time that I can remember that I wasn having sex was when I was looking at a gun or being bent over t and having a bottle stuck in my vagina and having a picture taken of it After the State called its last witness but prior to resting Melissa Valdivia defense counsel for Robertson felt that A lied on the stand about the bottle incident E because A had not mentioned the incident before in any of her prior statements or E prior trial testimony Therefore Valdivia sought to introduce into evidence a story written by A entitled I Was A Liar that appeared on A personal blog site E s E Valdivia explained to the trial court that she had found A story only the night s E before and one of the prosecutors informed the trial court that he had just received a copy of the story five minutes ago Valdivia argued to the trial court that A story s E said in her own words on a public forum that she a compulsive liar Thus according s to Valdivia the story was exceptionally relevant for impeachment purposes At this point outside of the presence of the jury the trial court conducted a motion in limine hearing to determine the admissibility of A story s E Upon being recalled to the stand A testified that she had a Facebook page which linked to her E personal blogspot A had written several entries on her blog including I Was A Liar E by A dated May 16 2011 When Valdivia noted that her stories were written in the E first person and portrayed to the public as you writing about yourself A re E responded They fictional pieces re I write satire m I creative and I like to make people laugh and sometimes I got to stretch the truth or sic write stories ThaYs ve what I do I create things to make people laugh In I Was A Liar Valdivia suggested that A discussed her history as a child of being a compulsive liar and E creating fictitious stories A agreed that she did write the story which was about a E 4 child with a vivid imagination On cross the following exchange between examination the prosecutor and A place took E Q This article that they refer to that was written strictly as fiction by you A Yes sir Q And it solely written as fiction s Yes sir And you never did make any claims that this was your personal biography that was published as factually reflecting your life A Q A No At the conclusion of A testimony the trial court asked for argument and for s E Valdivia to point to the specific Louisiana Code of Evidence article that would permit the admissibility of A story s E Valdivia argued that Article 608 refers to truthfulness or untruthfulness and that here A made a new statement about a bottle being inserted E into her vagina Valdivia contended this testimony by A affected her character for E truthfulness or untruthfulness where she has specifically written something saying that she is untruthful Valdivia asserted that the story was necessary for the jury to evaluate whether she was being credible in her testimony Louisiana Code of Evidence article 608 provides in pertinent part A Reputation evidence of character The credibility of a witness may be attacked or supported by evidence in the form of general reputation only but subject to these limitations 1 The evidence may refer only to character for truthfulness or untruthfuiness B Particular acts vices or courses of conduct Particular acts vices or courses of conduct of a witness may not be inquired into or proved by eevidence for the purpose of attacking his character for rinsic truthfulness other than conviction of crime as provided in Articles 609 and 1 609 or as constitutionally required The trial court noted that under LSA art 608 credibility is challenged as to E C general reputation in the communiry and not by particular acts or conduct The trial court found that A story was a particular course of conduct and further that A s E E testified that the story was a fictional account Accordingly the trial court found A s E story to be inadmissible evidence It is well that questions concerning the admissibility of evidence should settled be resolved by the trial court and not the jury State v Martin 582 So 306 313 2d La App lst Cir writ denied 588 So 113 La 1991 see LSA art 104 Zd E C A 5 Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence E C LSA art 401 All relevant evidence is admissible except as otherwise provided by positive law Evidence which is not relevant is not admissible LSA art 402 Although relevant evidence may be E C 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 E C LSA art 403 Ultimately questions of relevancy and admissibility are discretion calis for the trial court and its determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion State v Duncan 98 La App lst Cir 6 738 So 706 712 1730 99 25 2d 13 In his brief the defendant argues that consideration of LSA art 608 was E C inappropriate and that the appropriate article for consideration was LSA art E C 1 D 607 Article 607 provides in pertinent part D Attacking credibility extrinsically Except as otherwise provided by legislation 1 Extrinsic evidence to show a witness bias interest corruption or defect of capacity is admissible to attack the credibility of the witness The defendant argues in his brief that Article 607 specifically allows any 1 D evidence which tends to prove A lack of truthfulness through a larger whole the s E blog by the witness which includes her lack of truthfulness as part We note initially that LSA art 608 was the only article discussed at the E C motion in limine and accordingly is the appropriate article for our review on this appeal Moreover even if we were to consider LSA art 607 we would find E C 1 D it inapplicable to the instant matter because Robertson was not trying to introduce s E A story into evidence to show the witness bias interest corruption or defect of s capaciry Accordingly we find no merit in this argument We find no reason to disturb the trial court ruling that A story was s s E inadmissible In finding the story was in part inadmissible because it was fictional it would appear the trial court implicitly found that the evidence was irrelevant See State v Washington 99 La App 4th Cir 3 788 So 477 496 writ 1111 O1 21 2d 6 denied 01 La 5 816 So 866 We 3gree that whether A story is 1096 02 31 2d s E regarded as fiction or taken at face value it had no relevance in establishing the truthfulness or lack thereof of A trial testimony regarding the bottle incident s E Defense counsel suggested A credibility might be impeached if the jury could read s E this story where A admits she is a compulsive liar But a brief review of the one E page story that A wrote makes clear that even assuming what she wrote were true E the story in no way suggests that as an adult she is a compulsive liar A story s E explicitly sets out that as an eight child she had a vivid imagination and told old year her friends yarns and farfetched stories She also told her mother that she had seen ghosts in her house She summarizes in her story how she outgrew her childish behavior Either due to this unfortunate consequence of my habitual lying or the simple fact that I grew up I have become disenchanted with leading a fairytale life I realize that lies will get me nowhere and that fiction is best kept on paper Based on the foregoing we find that A story had no evidentiary value and s E as such was irrelevant The trial court did not abuse its discretion in ruling the evidence inadmissible and it did not err in denying the motion for new trial The counseled assignment of error is without merit PRO SE ASSIGNMENT OF ERROR In his pro se assignment of error the defendant argues that the evidence was insufficient to support the simple rape conviction Specifically the defendant contends that A had not been drinking or taking drugs at any time during the night when she E was having sexual intercourse Therefore the State did not prove that A was E incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend S Const XIV LSA art I 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 7 v Virginia 443 U 307 319 99 S 2781 2789 61 L 560 1979 See LSA S Ct 2d Ed P Cr C art 821 State v Ordodi 06 La 11 946 So 654 660 B 0207 06 29 2d State v Mussall 523 So 1305 1308 La 1988 The Jackson standard of 2d 09 review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and for reasonable circumstantial doubt When analyzing circumstantial evidence LSA 15 provides that in order to convict the S R 438 factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 01 La App ist Cir 6 822 So 2585 02 21 2d 141 144 Louisiana Revised Statutes 14 states in pertinent part 41 A Rape is the act of anal oral or vaginal sexual intercourse with a male or female person committed without the person lawful consent s 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 defines simple rape in pertinent part as A 43 A Simple rape is a rape committed when the anal oral or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of the following circumstances 1 When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim sincapacity While not denying having vaginal intercourse with A the defendant asserts in E his brief that the evidence was insu to prove that A was incapable of resisting cient E or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent According to the defendant A own s E testimony established that she did not smoke marijuana that night and that she had only one shot of alcohol before she even went to Bourbon Street with her friends did however testify that she had smoked marijuana earlier in the day E A Mary testified that in the Quarter A had a shot A testified on direct examination that when she E E met the defendant and his friends she was not intoxicated at that point When asked if she were feeling the effects of the alcohoi or marijuana from earlier she replied No 8 The defendant also asserts that the evidence was insuffcient to convict him of the greater crime of aggravated rape because Robertson told the police and testified at trial that A was a willing participant in the sexual acts she engaged in The defendant E further points out that Robertson admitted to having sex with A and that A never E E told him Robertson no or to stop In State v Porter 93 La 7 639 So 1137 1143 the supreme 1106 94 5 2d court stated that there was evidence of alcohol consumption by the victim and of an influenced alcohol state of mind and that even though the victim denied excessive drinking and recalled the events of the ordeal a reasonable juror could have concluded that the essential elements of simple rape had been proved Similarly in the instant matter while A may have denied being intoxicated there was enough independent E evidence of alcohol and drug consumption by A from which a jury could have E reasonably inferred that the defendant and his friends took advantage of her alcohol influenced and drug incapacity to resist their advances effectively or influenced Porter 639 So at 1143 2d See For example Ross testified at trial that when he first met E A before she got into the car she had a drink in her hand and that she appeared to be drunk When Ross was asked how he knew A was drunk he stated she had a E drink in her hand and told them she had been drinking When asked if A showed E any outward signs of being drunk when she walked Ross answered Yes Ross also testified that A smoked marijuana at Reed trailer E s The defendant testified that when he arrived at Reed trailer only he and A went inside the trailer for about five s E minutes while the others waited outside in the car Thus at that point only the defendant A Reed and Johnny were in the trailer When the defendant was asked E what they all were doing he responded We was sitting down smoking weed Thus the record suggests there was some drinking and drug throughout the use day There was trial testimony that suggested A may have been intoxicated despite E her own testimony that she was not Perhaps the jury felt A was not being E completely forthright in her testimony about what she drank and smoked that night or the jury could have reasonably concluded that while A in her own mind felt that E she was not intoxicated she in fact was intoxicated Cf State v Taylor 34 La 096 9 App 2nd Cir 12 774 So 379 387 writ denied 01 La 12 803 00 15 2d 0312 01 14 2d So 984 where the responsive verdict of simple rape was properly excluded for consideration by the jury because the defendant never suggested the victim was intoxicated or incapacitated in any way the victim testified she never drank alcohol and there was nothing in the record to suggest that the victim was under the influence of drugs or alcohol In any event the simple rape element of a stupor or abnormal condition of the mind produced by an intoxicating agent such as alcohol or drugs does not require an unaware victim with no capacity to resist but rather an agent influenced incapacity to resist effectively the advances of the perpetrator or perpetrators See Porter 639 So at 1143 See also State v Fruge 09 La App 3rd Cir 2d 1131 10 7 4 34 So 422 430 writ denied 10 La 11 50 So 8Z8 3d 32 1054 10 24 3d State v Clark 04 La App 3rd Cir 12 889 So 471 State v Brown 901 04 8 2d 41 01 La App 5th Cir 5 788 So 694 700 O1 30 2d 01 The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty The jury may have reasonably concluded that the defendant did not have consensual sex with A and that because of A intoxicated E s E condition she could not effectively resist the defendanYs advances We note as well that the simple rape conviction may have reflected a compromise verdict which is a legislatively approved responsive verdict that jurors for whatever reason deem to be fair as long as the evidence is sufficient to sustain a conviction for the charged offense See State ex rel Elaire v Blackburn 424 So 246 251 La 1982 cert denied 2d 461 U 959 103 S 2432 77 L 1318 1983 The trial court charged the jury S Ct 2d Ed on simple rape without any defense objection Further the defendant did not object to the verdict Absent a contemporaneous objection a defendant cannot complain if the jury returns a legislatively responsive verdict provided that the evidence is approved sufficient to support the charged offense See State v Schrader 518 So 1024 2d 1034 La 1988 In the instant matter the evidence was clearly sufficient to support the conviction of the charged offense of aggravated rape Aggravated rape is a rape committed where the oral or vaginal sexual intercourse is deemed to be without lawful lo consent of the victim because it is committed when two or more offenders participated in the act S A R 42 LSA 14 At least five people including the defendant raped 5 E A repeatedly throughout the early morning hours It is clear from the record that the defendant and his friends took turns raping A in the car and then later at Reed E s trailer and that the defendant and the others passed A around for a few hours E subjecting her to various sexual abuses The record is replete with instances of protest and verbal resistance by A and of non sexual acts At the very outset of E consensual s E A meeting with the defendant and the others A told them she did not want to go E with them in the car A testified that when she opened the car door to get out they E closed it and locked it and drove off She stated that at this point she felt terror and dread Robertson testified that A said that she did not want to go with them and E wanted to be with her friends But the defendant told A No we gonna have fun E we just chilling A testified that when the defendant raped her in the driveway in E Alton the first rape she realized that resistance was not going to prevent the rape Q Is that something you wanted to happen A No Q Did you give him permission to do that I did not And I actually at this point said that I didn want this to t happen And I remember there was a little physical like pushing resistance And I just kind of stopped as soon as I knew that he was A proceeding and Q A Q A Why did you There was really nothing I felt like I could do Why did you feel that way Because I a girl And there five men m s s there one you know man in the car but I knew you know there were guys standing out front I could have easily been overpowered by one let alone five E A testified that after the defendant ejaculated another guy got in the car and forced her to give him oral sex E A did not identify this person but according to s Robertson testimony it was Robertson and Troy who got in the car after the defendant and had A perform oral sex on both of them E Robertson also testified that when Cooper was having sex with A in the car he Robertson heard A tell Cooper E E that she did not want to have sex with him A testified that when she was taken to E s Reed trailer it was in a rural area she had no idea where she was and that therefore running was not an option A then provided the following testimony E A I was led into the trailer 11 Q And what happened once you arrived inside that trailer A There were two other men in the trailer One was kind of a bigger guy with short dreads And pretty much as soon as we got there I was led into a back bedroom And over the course of a few hours I mean this is all just kind of like muddled now in my head I don t really know details or what who did what That when all I know for a fact is that they all raped me was all I can say for a fact But I remember going into a bedroom and just time after time for hours just having somebody inside of ine I mean iYs like they took turns Q While all of this was going on did you try to put up a fight put up physical resistance against them A There was no physical resistance In the beginning I remember there was verbal verbal resistance I was obviously upset that this was happening You know I had said no I remember you know one would finish and another one would start to begin and I just remember like saying No And then the other thing that I would say would be Are you serious Yeah Q At any point during this evening or into these early morning hours did you begin to fear for your life A I feared for my life the moment I got in the car And at a particular point there the guy the bigger guy with the dreads I hadn t done anything with him yet And I was you know the whole time I was obviously pleading that they take me back and you know to use a phone to call my friends And they told me that they take d me back but they needed gas money And the only way they could get gas money is if this bigger guy would give it to them but And he looked at me and he said Have you ever gotten given something for nothing And he was you know pretty much implying that he wanted something from me And at that point I refused And he pulled out a gun and he opened opened it so I could see that there were bullets inside And he said I kill people Q A Do you want to die tonight And how did you respond to that I said no And he took me into the bedroom and forced me to perform oral sex on him Ross testified that when he got back to the trailer after buying cigars they smoked marijuana Reed stood up and told A to come with him and she got up and E followed him into the bedroom The defendant and Cooper then went into the bedroom also At this point according to Ross testimony Robertson told Ross that s when he Ross was gone A did not want to have sex with Reed but that Reed had E a gun The evidence established that the defendant had sexual intercourse with A E without her lawful consent and moreover the defendant knew that others while the defendant was always nearby were having sexual intercourse with A without her E lawful consent Accordingly since the evidence was sufficient to sustain a conviction 12 i for the charged offense of aggravated rape the corripromise verdict of simple rape was proper 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 evidence not its sufficiency The trier of fact s determination of the weight 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 La App lst Cir 9 721 So 929 932 We 2Z61 98 25 2d are constitutionally precluded from acting as a juror in assessing what thirteenth weight to give evidence in criminal cases See State v Mitchell 99 La 3342 00 17 10 772 So 78 83 The fact that the record contains evidence which conflicts 2d 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 lst Cir 2d 1985 In the absence of internal contradiction or irreconcilable conflict with the physical evidence one witness testimony if believed by the trier of fact is sufficient s to support a factual conclusion State v Higgins 03 La 4 898 So 1980 05 1 2d 1219 1226 cert denied 546 U 883 126 S 182 163 L 187 2005 S Ct 2d Ed Further the testimony of the victim alone is sufficient to prove the elements of the offense State v Orgeron 512 So 467 469 La App lst Cir 1987 writ denied 2d 519 So 113 La 1988 2d After a thorough review of the record we find that the evidence supports the s jury verdict We are convinced that viewing the evidence in 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 simple rape See State v Calloway 07 La 1 1 So 417 2306 09 21 3d 418 per curiam The pro se assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED 13
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