State Of Louisiana VS Shane Austin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1612 STATE OF LOUISIANA VERSUS SHANE L AUSTIN Judgment Rendered Apri126 2013 Appealed from the Second Twenty Judicial District Court In and for the Parish of Washington State of Louisiana Trial Court Number 09 CR8102299 Honorable William J Crain Judge Presiding ied k k k eF Walter P Reed Lewis V Murray Couusel for Appellee III State of Louisiana Franklin LA Kathryn Landry Baton Rouge LA Frank Sloan Mandeville Counsel for Defendant Appellant LA Shane L Austin BEFORE WffiPPLE C McCLENDON AND AIGGINBOTHAM dJ J L Co 13tiCy v l0 S S 5 WHIPPLE C J The defendant Shane L Austin was charged by amended grand jury indictment with two counts of aggravated rape count I against K count lI A against L violations of LSA 14 and pled not guilty on both counts A S R 42 Following a jury trial he was found guilty as charged on both counts He was sentenced on each count to serve the remainder of his natural life at hard labor without benefit of parole probation or suspension of sentence Additionally the trial court ordered that the sentences were to run consecutively The defendant now appeals contending the trial court denied him his right to present a complete defense and to confront his accusers For the following reasons we affirm the convictions and sentences FACTS A K testified at trial Her date of birth was December 27 1999 At the time of her testimony on October 26 2011 she had been living with her Nana and Paw Paw far four years Prior to that time she lived in Bogalusa with her mother her mother husband the defendant her uncle and her sister and s brother She testified that when she was six or seven years old the defendant would hurt her Using pictures she indicated the defendant had touched her front and back private parts She stated the defendant would hurt her when she was alone in her bedroom playing with her toys She testified the defendant would force her to remove her clothes and touched her with his boy private She indicated the defendant forced her to get on her stomach and touched her back The indictment was amended to nol a charge that the defendant had also committed pros aggravated rape against J A The Z victims are referenced herein only by their initials See LSA 46 SW R 1844 The 3 sentencing minutes indicate the trial court imposed concurrent sentences The sentencing transcript however indicates the trial court imposed consecutive sentences VJhen there is a discrepancy between the minutes and the transcript the transcript must prevail State v Lynch 441 So 2d 732 734 I 1983 a 2 private with his boy private She also indicated he touched the inside of her front private with his front private She denied that her brother J had hurt A her A L also testified at trial Her date of birth was October 10 1997 She stated she went to live with her Nana and Paw Paw in 2008 Prior to that time she lived in Franklinton and Bogalusa with her mother her stepfather her sister and her brother She indicated sometimes the defendant her uncle and Eugene another uncle would come over She testified the defendant hurt her more than one time in her bedroom at night She stated she would pretend to be asleep because then maybe he wouldn do it to her She indicated the defendant t would undo his belt and pull his pants down He would also pull her pants and her panties down He would then hurt her with his penis He would touch her vagina and her butt with his penis Sometimes he would put his penis in her vagina when she was lying on her back Sometimes he would roll her over onto her stomach and hurt her butt with his penis by putting it inside her butt She stated pee would come out of his penis a he was done and it would get on her legs fter She testified the pee felt i and sticky She also indicated that in the living cky room the defendant would take her hand and make her rub his penis The defendant also testified at trial He denied in any way sexually molesting or raping either K or L A A RIGHT TO PRESENT A DEFENSE In his sole assignment of error the defendant argues the trial court denied him his constitutional right to present a defense by refusing to allow him to introduce evidence that J the older brother of L and K had confessed to A A A sexually abusing L and K A A In a prosecution for sexually assaultive behavior LSA art 412 E C 3 prohibits the introduction of evidence of the victim past sexual behavior with s certain limited exceptions An exception is made for evidence of past sexual behavior with persons other than the accused upon the issue of whether or not the accused was the source of semen or injury provided that such evidence is limited to a period not to exceed seventy hours prior to the time of the offense and two further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted E C LSA art 1 B 412 Past sexual behavior is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged LSA art 412 If a defendant wishes to offer evidence of past E C F sexual behavior pursuant to one of the exceptions he must file a motion stating his intent to do so LSA art 412 The trial court must then hold a closed E C C hearing to determine whether the offered evidence is admissible E C LSA art E 412 State v Freeman 2007 La App lst Cir 9 970 So 2d 621 0470 07 14 624 writ denied 2007 La 3977 So 2d 930 2129 08 14 Notably the Louisiana Supreme Court has held that a defendant may present evidence that a victim made prior false allegations regarding sexual activity for impeachment purposes pursuant to LSA art 607 State v Smith 98 E C C 2045 La 9743 So 2d 199 However as set forth in Smith 99 8 When a defendant seeks to introduce evidence that the victim has made such prior false accusations the trial judge must evaluate that evidence by determining whether reasonable jurors could find based on the evidence presented by defendant that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied Smith 743 So 2d at 203 04 Thus two requirements exist before evidence of prior sexual activity can be admitted for impeachment purposes First the activity must be of a sexual nature 4 Second there must be evidence that the statement is false Assuming this initial burden is met all other standards far the admissibility of evidence apply Freeman 970 So 2d at 624 Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence only that which is deemed trustworthy and has probative value Relevant evidence is evidence that has 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 E C art 401 In deciding the issue of relevancy the trial judge must determine whether the evidence bears a rational connection to the fact at issue in the case Except as limited by the Code of Evidence and other laws all relevant evidence is admissible and all irrelevant evidence is inadmissible E C LSA art 402 Although relevant evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect See LSA art 403 A trial E C s judge determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion Freeman 970 So 2d at 624 25 Prior to trial the defendant moved to offer evidence of the past sexual behavior of the victims In the motion he alleged a July 17 2008 Office of Child and Family Services letter indicated J had disclosed he had anal sexual A intercourse with his sisters L and K The motion additionally set forth that in A A a 7uly 28 2008 interview with the Bogalusa Police Department J confessed in A an audiotaped interview to having anal and digital sexual contact with L and A A K in the early part of 2008 The trial court denied the motion finding the defense failed to meet the requirements of LSA art 412 in that the alleged past sexual behavior had E C B 5 not occurred within seventy hours of the offense and did not concern the two source of semen or injury The court rejected the defense argument that the evidence was admissible to show that L and K were motivated to falsely A A accuse the defendant noting there was no evidence that L and K had falsely A A accused anyone of sexually assaultive behavior The court additionally found The fact that J has supposedly confessed to sexually A assaulting L and K in my opinion is not relevant to whether A A these two victims have falsely accused the defendant of sexually abusing them There is no suggestion that the acts to which J A supposedly confessed are the same acts to which the victims are accusing the defendant When considering all of the evidence presented and the purpose for which it is being presented even if it were relevant then I think it would be subject to a 403 analysis of whether the probative value would be substantially outweighed by its prejudicial effect and in my opinion it would be and therefore I would exclude it under the 403 analysis There was no violation of the defendant constitutional right to present a s defense in this case Louisiana Code of Evidence article 412 was not applied to deny admission of highly reliable and relevant evidence critical to the accused s defense See State v Vau 448 So 2d 1260 1267 La 1984 on rehearing hn The defense failed to establish that J confession to alleged past sexual s A behavior involving L and K was admissible under LSA art 412 A A E C 1 B Additionally for the reasons set forth by the trial court there was no clear abuse of discretion in finding the evidence ofpast sexual behavior inadmissible under LSA E C art 403 The defense also failed to establish the admissibility of the evidence for impeachment purposes pursuant to LSA art 607 The defense failed to E C C establish that reasonable jurors could find based on the evidence presented that A L and K had made prior false accusations of sexual behavior A This assignment of error is without merit 6 PROTECTIVE ORDER Louisiana Revised Statute 15 requires that a of a 6 440 videotape protected person statement admitted under LSA 15 be preserved s S 5 R 440 under a protective order of the court to protect the privacy of the protected person The trial court failed to issue such an order Accordingly it is hereby ordered that the recorded statements of the victims be placed under a protective order See State v Ledet 96 La App 0142 st Cir 11 694 So 2d 336 347 writ 96 8 denied 96 La 9701 So 2d 163 3029 97 19 CONVICTIONS AND SENTENCES ORDER ISSUED 7 AFFIRMED PROTECTIVE STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1612 STATE OF LOUISIANA VERSUS i SHANE AUSTIN McCLENDON concurs and assigns reasons I concur with the result reached by the majority
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