State Of Louisiana VS Ralph Greg Robertson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 0743 i r STATE OF LOUISIANA t VERSUS RALPH GREG ROBERTSON Judgment Rendered December 21 2012 Appealed from the Second Twenty Judicial District Court in and for the Parish of St Tammany State of Louisiana Trial Court Number 460214 3 Honorable Richard A Swartz Judge Presiding Walter P Reed Covington Counsel for Appellee LA State of Louisiana Kathryn W Landry Baton Rouge LA Bertha M Hillman Thibodaux LA BEFORE Counsel for Defendant Appellant Ralph Greg Robertson WHIPPLE McCLENDON AND HIGGINBOTHAM JJ WHIPPLE J The defendant Ralph Greg Robertson was charged by grand jury indictment with aggravated rape a violation of LSA 14 The defendant S R 42 pled not guilty Following a jury trial the defendant was found guilty of the responsive offense of simple rape a S R 43 violation of LSA 14 He was sentenced to twelve years imprisonment at hard labar without benefit of parole probation or suspension of sentence The defendant now appeals designating two assignments of error We affirm the conviction and sentence FACTS old year E Nineteen A and her friends Nick and Mary Nick sgirlfriend all 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 00 m and his friends approached them and began talking to them The defendant seventeen years old was with Chance Ross Elroy Cooper Jerreil Payton and Troy the defendant scousin The others ages ranged from sixteen to eighteen years old Someone from the defendant sgroup asked A and her friends if they E wanted to smoke marijuana A said that she did They all walked to Ross car E s a Honda Accord parked on Canal Street The defendant and his friends along with A got into the Accord Nick and Mary did not get in Payton was driving E E A testified at trial that as Payton 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 Payton drove to Alton just outside of Slidell to the home of someone he knew who might have marijuana Payton pulled in the person driveway and s The four other co chazged under the same indictment were Chance Ross defendants Elroy Cooper Joshua Reed and Jerrell Payton Ross charge was subsequently amended to s forcible rape The defendant and co Jenell Payton were tried together Payton filed a defendant separate appeal 2012KA0716 The Z identity ofthe victim is protected in accordance with LSA 46 SW R 1844 2 everyone got out of the car except A Payton knocked on the door realized no E one was home then got back into the car with A As the others stood outside the E car Payton put on a condom and had sex with A When Payton was finished he E got out of the car and the defendant and Troy got in the car A performed oral E sex on both of them The defendant and Troy then got out of the car and Ross and Cooper got in the car According to Ross trial testimony Cooper had sex with s E A while A performed oral sex on Ross Everyone then returned to the car E and Payton drove to the trailer of Josh Reed another person Payton thought might have marijuana Reed and someone named Johnny were in the trailer Troy did not go in the trailer but walked home from there The defendant and the three others from the car took A inside the trailer E E A testified that she was brought to a back bedroom and that over the next few hours they all took tums raping her She gave verbal resistance but no physical resistance because she feared for her life At one point Reed showed A a loaded gun and forced her to perform oral sex on him E Payton and Ross left the trailer and drove to a store to purchase cigars The defendant testified at trial that while they were at the store A asked the E defendant where the bathroom was The defendant took A to the bathroom E After she finished using the bathroom the defendant asked her Can I hit Accarding to the defendant A said yes and the defendant put on a condom E and proceeded to have sex with A on the bathroom counter E Only moments later Johnny came in the bathroom with his penis out The defendant then stopped having sex with A The defendant took off his condom discarded it E and left the bathroom A testified that when she walked in the bathroom the E defendant followed her in there As she was washing her hands she saw the defendant put on a condom She asked Are you serious The defendant then proceeded to rape her vaginally over the sink When Payton and Ross returned 3 from the store they made blunts with the cigars tobacco removed and replaced with marijuana and smoked marijuana Finally after repeated requests by A to E use a phone they allowed her to call Mary Payton told Mary they would drop off E A at a gas station on Brownswitch Road in Slidell They brought A to a E Kangaroo gas station and left her there A went inside the store told the person E working there that she was raped and used the phone to call Mary and 91 l An ambulance picked up A from the gas station and she was taken to Slidell E Memorial HospitaL The defendant was arrested a short time later The defendant testified at trial that he did not rape A He stated that A E E was willing to have sex with him that she agreed to perform oral sex on him in the car when he asked her to and that she agreed to have sex with him in the bathroom when he asked her to ASSIGNMENT OF ERROR NO 1 In his first assignment of error the defendant argues the evidence was insufficient to support the simple rape conviction Specifically the defendant contends that A had not been drinking or taking drugs prior to any sexual E intercourse Therefore the State did not prove that A was incapable of resisting E or of understanding the nature of the act by reason of a stupor or abnormal condition ofmind produced by an intoxicating agent A conviction based on insufficient evidence cannot stand as it violates Due Process S See U Const amend XIV La Const art I 2 The standard of review far the sufficiency of the evidence to uphold a conviction is whether or not viewing the evidence in the light most favarable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a There 3 was a trial for Reed prior to the instant trial Reed was convicted of forcible rape State v 1539 Reed 2011 La App lst Cir 3 12 23 So 3d 2012 WL 1012630 unpublished Cooper was convicted of simple rape Docket No 2012KA022 Payton was convicted of simple rape Docket No 2012KA0716 Ross pled guilty to forcible rape 4 i reasonable doubt 7ackson v Vir inia 443 U 307 319 99 S Ct 2781 2789 61 S L Ed 2d 560 1979 See LSA Part 821 State v Ordodi 2006 Cr C B 0207 06 29 La 11 La 1988 946 So 2d 654 660 State The Jackson standard of v review incorporated in Article 821 is an objective standard for testing the overall evidence both direct and circumstantial for reasonable doubt When analyzing circumstantial evidence LSA 15 S R 438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence See State v Patorno 2001 La App lst 2585 Cir 6 822 So 2d 141 144 02 21 Louisiana Revised Statute 14 states in pertinent part 41 A Rape is the act of anal oral or vaginal se intercourse xal with a male or 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 Statute 14 defines simple rape in pertinent part A 43 as 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 vicrim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition ofmind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim incapacity s While not denying he had sexual intercourse with A the defendant asserts E in his brief that the evidence was insufficient to prove that A was incapable of E resisting or ofunderstanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent According to the defendant s E A own testimony established that she did not smoke marijuana that night and that she had only one shot of alcohol before she went to Bourbon Street with her 5 I 09 Mussall 523 So 2d 1305 1308 I friends E A did however testify that she had smoked marijuana earlier in the day A testified on direct examination that when she met the defendant and his E friends she was not intoxicated at that point When asked if she were feeling the effects of the alcohol or marijuana from earlier she replied No The defendant also points out that A testified that she did not smoke marijuana when she was at E s Reed trailer The defendant also asserts that the jury rejected convictions for aggravated rape and forcible rape because there was no evidence that the sexual acts with him were not consensual According to the defendant A never said E no to him regarding sex and she never told him to stop In State v Porter 93 La 7639 So 2d 1137 1143 the Supreme 1106 94 5 Court recognized that even where there was evidence of alcohol consumption by the victim and of an alcohol state of mind and even though the victim influenced 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 E there was sufficient independent evidence of alcohol and drug consumption by E A to allow the jury to reasonably infer that the defendant and his friends took advantage of her alcohol and drug incapacity to resist influenced or influenced their advances effectively See Porter 639 So 2d at 1143 Notably Ross testified at trial that when he first met A befare she got into the car she had a drink in E her hand and she appeared to be drunk When Ross was asked how he knew A E was drunk he stated she had a drink in her hand and told them she had been drinking When asked if A showed any outward signs of being drunk when she E walked Ross answered Yes Ross also testified that A smoked marijuana at E s Reed trailer Payton testified that when he arrived at Reed trailer only he and s E A went inside the trailer for about five minutes while the others waited outside in the car Thus at that point only Payton A Reed and Johnny were in the E 6 trailer When Payton was asked what they all were doing he responded We was sitting down smoking weed Thus the record shows there was some drinking and drug use throughout the day There was trial testimony showing that A had some degree of impairment E and intoxication at the time these crimes occurred despite her testimony at trial that she was not impaired The jury could have concluded that A was 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 E mind felt that she was not intoxicated she was in fact intoxicated Cf State v Tavlor 34 La App 2nd Cir 12 774 So 2d 379 387 writ denied 096 00 15 0312 2001 La 12 803 So 2d 984 where the responsive verdict of simple O1 14 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 that the victim be unaware and have no capacity to resist Instead an agent incapacity to influenced effectively resist the advances of the perpetrator or perpetrators is sufficient under our laws and jurisprudence See Porter 639 So 2d at 1143 See also State v e 1131 Fru 2009 La App 3rd Cir 4 34 So 3d 422 430 writ denied 10 7 32 1054 2010 La 11 50 So 3d 828 State v Clark 2004 La App 3rd 10 24 901 Cir 12 889 So 2d 471 474 State v Brown 2001 La App Sth Cir 04 8 75 41 O1 30 5788 So 2d 694 700 01 The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty There was proof sufficient to establish beyond a reasonable doubt that the defendant did not have consensual sex with A and E 7 that because of A intoxicated condition she could not effectively resist the s E s defendant advances Moreover we recognize that the simple rape conviction may have reflected a compromise verdict which is a legislatively approved responsive verdict that jurars 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 2d 246 251 La 1982 cert denied 461 U S 959 103 S Ct 2432 77 L Ed 2d 1318 1983 Also the trial court charged the jury 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 approved responsive verdict provided that the evidence is sufficient to support the charged offense See State v Schrader 518 So 2d 1024 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 includes a rape where the oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed when two or more offenders participated in the act LSA 14 At least five people including the SA R 42 5 defendant raped A repeatedly throughout the night It is clear from the record E that the defendant and his friends took turns raping A in the car and then later at E s Reed trailer As the evidence shows the defendant and the others overpowered E A for several hours during which they subjected her to various sexual abuses The record is replete with instances of protest and resistance by A and non E consensual sexual acts At the very outset of A meeting with the defendant s E and the others A told them she did not want to go with them in the car A E E testified that when she opened the car door to get out they closed it and locked it and drove off She stated that at this point she felt terror and dread The defendant himself testified that A did not want to go with them He stated she E 8 said she did not want to go and wanted to be with her friends But Payton told E A No we gonna have fun we E just chilling A testified that when Payton raped her in the driveway in 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 A 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 proceeding and Q Why did you A There was really nothing I felt like I could do Q Why did you feel that way A Because I m a girl And there five s men 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 Payton ejaculated another guy got in the car and forced her to give him oral sex A did not identify this person but according to E the defendant testimony it was he and Troy who got in the car after Payton s and had A perform oral sex on both of them The defendant also admitted that E when Cooper was having sex with A in the car the defendant heard A tell E E Gooper that she did not want to have sex with him A testified that when she E was taken to Reed trailer it was in a rural area she had no idea where she was s and therefore running was not an option E A then provided the following testimony A I was led into the trailer Q And what happened once you anived 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 the bedroom and just time after time for hours just having somebody inside of ine I mean it like s 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 9 i A There was no physical resistance In the beginning I remember there was was verbal happening verbal resistance I was obviously upset that this 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 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 the guy I the bigger guy with the dreads particular point there t hadn 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 the bigger guy would give it to them And but 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 Do you want to die tonight Q And how did you respond to that A 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 E and followed him into the bedroom Payton and Cooper then went into the bedroom also According to Ross testimony at this point the defendant told s Ross that while Ross was gone A did not want to have sex with Reed but that E Reed had a gun The evidence shows that the defendant had sexual intercourse with A E without her lawful consent and moreover that the defendant knew that others while the defendant was always nearby were having sexual intercourse with A E without her lawful consent Accordingly since the evidence was sufficient to sustain a conviction for the charged offense of aggravated rape the compromise 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 10 matters the resolution of which depends upon a determination of the credibility of the wimesses the matter is one of the weight of the evidence not its sufficiency The trier of fact determination ofthe weight to be given evidence is not subject to s appellate review An appellate court will not reweigh the evidence to overturn a s factfinder determination of guilt State v Tavlor 97 La App lst Cir 2261 98 25 9 721 So 2d 929 932 We are constitutionally precluded from acting as a thirteenth juror in assessing what weight to give evidence in criminal cases See State v Mitchell 99 La 10 772 So 2d 78 83 3342 00 17 Moreover the fact that the record contains some evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient State v Ouinn 479 So 2d 592 596 La App 1 st Cir 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 s sufficient to support a factual conclusion State v Hig 2003 La 1980 OS 1 4 898 So 2d 1219 1226 cert denied 546 U 883 126 S Ct 182 163 L S Ed 2d 187 2005 Further the testimony ofthe victim alone is sufficient to prove the elements of the offense State v Or eron 512 So 2d 467 469 La App 1 st Cir 1987 writ denied 519 So 2d 113 La 1988 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 Callowav 2306 2007 La 1 1 So 3d 417 418 per curiam 09 21 This assignment oferror is without merit 11 ASSIGNMENT OF ERROR NO 2 In his second assignment of error the defendant argues the trial court erred in denying as inadmissible evidence that defense counsel sought to introduce to attack A credibility Specifically the defendant contends that the trial court s E should have allowed a story written by A and posted on the internet to be E admitted into evidence because in it she described herself as a compulsive liar 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 t someone 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 t being bent over 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 defense counsel opined that A lied on the stand about the bottle incident only because A had E E not mentioned the incident before in any of her priar statements or prior trial testimony Thus defense counsel 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 Defense counsel explained to the trial court that she had found A story only s E the night before and one of the prosecutors informed the trial court that he had just received a copy of the story five minutes ago Defense counsel argued to the trial court that A said in her own words on a public forum that she a E s compulsive liar Thus according to defense counsel the story was exceptionally relevant for impeachment purposes At this point and outside of the presence of the jury the trial court conducted a hearing on the defendant motion in limine to determine the s admissibiliry of A story Upon being recalled to the stand A testified that s E E 12 she had a Facebook page which linked to her personal blogspot A had written E several entries on her blog including I Was A Liar by A dated May 16 20ll E When defense counsel noted that her stories were written in the first person and portrayed to the public as you writing about yourself A responded re E re They fictional pieces I write satire Pm creative and I like to make people laugh and sometimes I got to stretch the truth or sic write staries That what ve s I do I create things to make people laugh In I Was A Liar defense counsel suggested that A discussed her history as a child of being a compulsive liar and E creating fictitious stories about a child with a vivid E A agreed that she did write the story which was imagination On cross the following examination exchange between the prosecutor and A took place 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 A Yes sir Q And you never did make any claims that this was your personal biography that was published as factually reflecting your life A No At the conclusion of A testimony the trial court asked far argument and s E for defense counsel to point to the specific Louisiana Code of Evidence article that would permit the admissibility of the story from A blog s E Defense counsel argued that Article 608 refers to truthfulness or untruthfulness and that A made E a new statement about a bottle being inserted into her vagina According to the defense this testimony by A affected her character for truthfulness or E untruthfulness where she has specifically written something saying that she is untruthful Defense counsel asserted that the story was necessary for the jury to evaluate whether A was being credible in her testimony E Louisiana Code of Evidence article 608 provides in pertinent part 13 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 untruthfulness 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 extrinsic evidence for the purpose of attacking his character for truthfulness other than conviction of crime as provided in Articles 609 and 609 or as constitutionally required 1 The trial court noted that under LSA art 608 credibility is challenged E C as to general reputation in the community and not by particular acts or conduct The trial court found that A story was a particular course of conduct and s E further that A testified that the story was a fictional account Accordingly the E trial court found A story to be inadmissible evidence s E The defendant argues in his brief that there is nothing in A writing to s E indicate it was fictitious Although A testified at the hearing on the motion in E limine that her story was fictional this should have been an issue for the jury to decide The defendant argues that the exclusion of the evidence affected his right to confront and cross A effectively and that the trial court committed examine E reversible error It is well that questions concerning the admissibility of evidence settled should be resolved by the trial court and not the jury LSA art 104 State E C A v Martin 582 So 2d 306 313 La App lst Cir writ denied 588 So 2d 113 La 1991 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 ar less probable than it would be without the evidence LSA art 401 All E C relevant evidence is admissible except as otherwise provided by positive law Evidence which is not relevant is not admissible LSA art 402 Although E C relevant evidence may be excluded if its probative value is substantially 14 outweighed by the danger of unfair prejudice confusion of the issues misleading the jury or by considerations of undue delay or waste of time LSA art 403 E C Ultimately questions of relevancy and admissibility are discretion calls 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 1730 lst Cir 6 738 So 2d 706 712 99 25 13 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 the trial court implicitly found that the evidence was irrelevant See State v Washington 99 La App 4th Cir 3 788 So 2d 477 496 writ 1111 Ol 21 denied 2001 La 5131 816 So 2d 866 We agree that whether A 1096 02 s E story is regarded as fiction or taken at face it had no relevance in value establishing the truthfulness or not of A trial testimony regarding the bottle s E incident Defense counsel suggested A credibility might be impeached if the s E jury could read the story wherein A admits she is a compulsive liar E Even assuming that what she wrote was true there is nothing in the record to suggest that as an adult she is a compulsive liar A story explicitly sets out that as an s E eightyear child she had a vivid imagination and told her friends yams and old 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 Defense counsel had ample opportunity to and in fact did effectively cross examine A We note as well that instead of attempting to attack her credibility E about the bottle incident seeking to introduce into evidence a story by A E describing her conduct as a child to satisfy the relevancy requirement defense 15 counsel could have sought to introduce A previous trial transcript wherein s E accarding to defense counsel the bottle incident was not mentioned However the defense failed to do so Based on the foregoing we find that A story had no evidentiary value s E and as such was irrelevant The trial court did not abuse its discretion in ruling the evidence inadmissible This assignment of error also lacks merit CONCLUSION For the above reasons the defendant conviction and sentence are hereby s affirmed CONVICTION AND SENTENCE AFFIRMED 16
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