State of Louisiana Versus Philip Bridgewater ( 2023 )

STATE OF LOUISIANA NO. 22-KA-517
VERSUS FIFTH CIRCUIT
PHILIP BRIDGEWATER COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-6796, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
April 26, 2023
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED;
REMANDED FOR CORRECTION OF THE UCO
MEJ
RAC
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Laura S. Schneidau
Zachary L. Grate
COUNSEL FOR DEFENDANT/APPELLANT,
PHILIP BRIDGEWATER
Bruce G. Whittaker
JOHNSON, J.
Defendant, Phillip Bridgewater, appeals his conviction of and sentence for
one count of sexual battery upon a juvenile under the age of thirteen in violation of
La. R.S. 14:43.1. For the reasons that follow, we affirm defendant’s conviction
and sentence.
FACTS AND PROCEDURAL HISTORY
On May 29, 2019, Defendant, Philip Bridgewater, was charged by bill of
information with count one - sexual battery upon a juvenile under the age of
thirteen, and count two - indecent behavior upon a juvenile under the age of
thirteen, in violation of La. R.S. 14:43.1 and 14:81. He was arraigned and pled not
guilty on October 18, 2019. A few months prior to trial, the district court heard
Defendant’s Motions to Suppress Statement and Evidence. After having taken the
matters under advisement, the district court denied both motions on March 24,
2021. Trial commenced on July 25, 2022 before a jury of twelve members. On July
28, 2022, the jury found Defendant guilty as charged on count one, and not guilty
on count two, by unanimous vote. The next day, Defendant filed a Motion for New
Trial and a Motion for Post Verdict Judgment of Acquittal. The court denied both
motions after a hearing on August 25, 2022.
Also, on August 25, 2022, the district court heard four victim impact
statements-- one given by the victim’s mother, and another from the victim, Q.B.,
which was read into the record. Two other statements in support of Q.B. were
given by the Defendant’s ex-wife and another member of his family. Defendant
submitted a letter he wrote along with other letters in support of him to the court.
After the defense waived sentencing delays, the court sentenced Defendant to
imprisonment at hard labor for thirty years, all to be served without benefit of
parole, probation, or suspension of sentence, with credit for time served. The
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Notification and Registration of Sex Offender process was completed, and
Defendant was advised of his right to appeal and seek post-conviction relief.
The following facts were developed at trial through testimony and admitted
evidence:
One evening in October 2018, the victim Q.B.1, who was born in 2008 and
ten years old at the time, was clingy and very affectionate with her mother, M.C.
After M.C. retired for the night, Q.B. came into her room and said that she wanted
to stay home and that her stomach hurt. M.C. had Q.B. lay down next to her and
she described Q.B. “kind of like shrinking into [her].” Q.B. initially denied that
something had happened to her when asked. After her denial, Q.B. told her mother
that she would tell her “if somebody touched you or anything” when her mother
asked. Q.B. then disclosed what happened and started to cry.
Q.B. told M.C. that “[D]addy touched me.” She described Defendant
“putting his tongue down her throat” and touching her chest and genitals. She also
told her mother that Defendant held her down and she tried to make him stop.
When Q.B. asked her father what he was doing, he told her that he “could love her
better that way.” Q.B. denied that the disclosure was the first time it happened, or
that the abuse began that year. M.C. established a timeline of incidents by asking
Q.B. about whether the abuse occurred when she had certain teachers. Q.B. told
her that Ms. Gum was her teacher when the abuse started. Ms. Gum was Q. B.’s
first grade teacher. Q.B. also told her mother that the abuse occurred in “the quiet
room” in the house on Cleveland Place in Metairie, where her father lived with his
1
In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S.
46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use
only initials to identify the victim and any defendant or witness whose name can lead to the victim's
identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. Mesa, 18-526 (La.
App. 5 Cir. 11/27/19), 287 So.3d 89, n.1, writ granted, cause remanded, 19-1908 (La. 6/3/20), 296 So.3d
1044, and on reconsideration, 18-526 (La. App. 5 Cir. 9/9/20), 303 So.3d 411.
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wife, and the night before she and her siblings returned home was the last time it
happened.
M.C. stopped questioning Q.B. because she did not “want to keep pressing
her [. . .] she was already crying.” Q.B.’s mother held her until she fell asleep.
The mother called her sister to come over, then called her attorney. Her attorney
advised her to take Q.B. to Children’s Hospital in New Orleans, which she did the
following morning.
Q.B. spoke to the providers at Children’s Hospital by herself. Those
providers referred the family to the Audrey Hepburn Care Center, and Q.B. was
seen there on the same day. A doctor spoke to the family and then took Q.B. to
another room for a private interview. A detective spoke to M.C. in the meantime.
M.C. also spoke to Dr. Neha Mehta separately. M.C. was present when Q.B.
underwent a physical examination.
On October 22, 2022, five days later, M.C. spoke to Detective Judd Harris
with the Jefferson Parish Sheriff’s Office (“JPSO”). JPSO referred the family to
the Children’s Advocacy Center where Erika Dupepe conducted a forensic
interview of Q.B. At least two of Q.B.’s siblings were also interviewed at the
CAC. M.C. denied observing the interview, or watching it at a later date. The
mother also denied asking Q.B. about the interview process – she “wanted to make
sure it wasn’t tainted in any kind of way.” She also did not want to add the number
of times Q.B. would have to explain what happened to her. Other than for trial
preparation the week before, M.C. only spoke to, or met, the assistant district
attorneys periodically to touch base about the status of the case. She also did not
speak to her attorney about the case at all, other than initially asking for advice on
how to handle the situation. During Q.B.’s therapy sessions, M.C. sat in the
waiting room. M.C. obtained a protective order so Q.B. and her siblings would not
have to visit with Defendant after Q.B.’s disclosure. M.C. denied discussing the
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matter with Q.B. in the time period between the visits to Audrey Hepburn Care
Center and the CAC. She only told Q.B.’s siblings that they could not see their
dad, but did not tell them why.
M.C. testified at trial that, prior to the incident, she did not want to keep
Q.B, or her siblings, away from Defendant, because she only saw her father during
summers as a child, and she wanted better for her children. She and Defendant,
who was born in July 1986, met as teenagers before Katrina and started a romantic
relationship a few years after. Q.B. was born in 2008, and her siblings were born
in 2009 and 2010. The couple separated in 2014, but agreed to joint custody
without court intervention until August or September of 2018. M.C. acknowledged
that Defendant later married a psychiatrist, and that the couple had a child together.
She averred that she told her children to call their stepmother “whatever they felt
comfortable calling her” and denied telling the children that they did not have to
acknowledge Defendant’s youngest child as their sister. M.C. testified that Q.B.
participates in the gifted and talented program, and she never saw or learned of any
change in Q.B.’s grades or behavior at school.
Sergeant Judd Harris worked in the personal violence unit at JPSO from
2015 – 2019. As the lead detective on the case, he responded to a dispatch to the
Audrey Hepburn Care Center on October 22, 2022. After speaking to M.C. and
Dr. Mehta and reviewing Q.B.’s CAC interview recording, he issued an arrest
warrant for Defendant. Sgt. Harris also authored and executed the search warrant
for Defendant’s home at 5505 Cleveland Place in Metairie. While there, JPSO
took pictures of the home, including “the quiet room” Q.B. described. The pictures
were entered into evidence, along with a copy of the recorded interview Sgt. Harris
conducted with Defendant (which was shown to the jury), and photographs taken
of the contents of Defendant’s phone. One of the texts shown to the jury was a
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request from Q.B. to Defendant to sleep in the quiet room on Saturday, October 6,
2019.
On cross-examination, Sgt. Harris acknowledged that he never actually
spoke to the victim during the course of his investigation. Also, Defendant
voluntarily came down to the station and allowed him to search his phone and take
photographs. No clothes or linen were searched or taken from the home and JPSO
did not use a blacklight to search for biological matter on the home’s surfaces.
Thirteen days lapsed between the last alleged incident of abuse and JPSO’s search
of the home. At the end of his testimony, the district court admitted two copies of
Defendant’s recorded statement wherein he denied the allegations against him; the
redacted copy was published to the jury.
The district court recognized Dr. Neha Mehta as an expert witness in child
abuse pediatrics. On October 11, 2018, she provided care to Q.B. A copy of the
medical records that were generated during Q.B.’s visit was entered into evidence.
Dr. Mehta explained that children who have been abused “can present a variety of
ways” and it is not easy to tell whether they have been abused based on their
appearance or (adaptive) behavior. Also, “if the child feels safe and if they feel
supported, in general, most children will disclose further information as time goes
on[ . . . ] as they spend less and less time with the person abusing them [. …]
Disclosure is a process.”
Dr. Mehta further explained that it was unusual for a child to say something
the first time something happens and not uncommon for an abused child to delay
their disclosure. Dr. Mehta testified:
[T]he younger you are the first time something happens, the less
ability you have to understand what it means[.]
[...]
As children get older, if they're aware that there's a problem
here, they're often embarrassed and it's their own internal dialogue
that's stopping them: Is it my fault that this happened; will people
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think bad about me; I don't have the vocabulary to explain what's
happening, I don't even know all the words for what this is.
A variety of barriers. Is my mom going to believe me; will we
become homeless; am I going to be getting my relative in trouble; am
I going to get in trouble. So these sort of internal messages that
children tell themselves are a huge barrier and usually the main things
that children describe to me as a reason they were reluctant to say
anything.
And then it is also possible that children have been told not to
tell. So in some cases, someone says, don't tell anyone about this or
you're going to get in trouble or things of that nature.
Q.B. met with Dr. Mehta shortly after the emergency department identified
the need for an acute medical evaluation. The doctor’s impression of Q.B. was that
“[s]he had a good vocabulary for her age and good communication skills.” She
noted that when Q.B. discussed a topic she was comfortable with she was “clearly
articulate and answer[ed] questions in detail and length.” As Dr. Mehta “moved to
topics that were more sensitive, she became more quiet, more hesitant to answer.
She frequently stated that she was feeling anxious. She was feeling uncomfortable.
This was something she really didn't want to talk about, but she was still able to
answer questions appropriately.”
Q.B. told Dr. Mehta that the abuse had happened more than one time; the
last incident of abuse was about 48 hours before they met; Q.B. had been sleeping
in a quiet room; Defendant “had been touching her.” Q.B. told the doctor that
Defendant told her that he would stop before and said that he would not do it
anymore, “but he did; and he told me he would love me better.” Q.B. also
described abuse on top of and underneath her clothes, and previous incidents
involved touching inside of the underwear, and Defendant touching the skin of her
chest, vagina, and buttocks area. Q.B. told the doctors that the abuse started when
she was five years old and the abuse occurred in previous apartments the family
lived in besides the Cleveland Place address. Since Q.B.’s visit to the Care Center
was within 72 hours of the last incident of abuse, swabs from the body were
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collected for an evidence kit to look for DNA; Dr. Mehta testified that she was not
expecting to find any DNA evidence. Q.B. told Dr. Mehta the abuse “was gross,
that she was embarrassed by it, that she didn’t want to talk about it.” Q.B. also
expressed concern that her disclosure would cause her mother to view her
differently.
Dr. Mehta did not have any concerns that Q.B. had been coached, and her
diagnosis was that Q.B. presented consistently with child sexual abuse. She also
examined Q.B.’s younger sister closest in age. That child did not make a
disclosure of sexual abuse but was aware of the allegations against Defendant (that
he had touched her sister inappropriately).
Dr. Marcela Zozaya of the JPSO Crime Laboratory, an expert in the field of
forensic DNA analysis testified that some of the samples from Q.B.’s collection kit
tested negative for seminal fluid, semen, or DNA. Because the most probative
samples from the areas of the body that were mentioned in the last reported
instance of abuse tested negative, the rest of the samples were not tested. Dr.
Zozaya also stated that it would be unlikely to detect male DNA from the swabs if
72 hours had passed since the last physical contact and detection became “less
likely the more time that passes.”
Erika Dupepe is the executive director of Jefferson Parish’s Child Advocacy
Center, and a former full-time forensic interviewer. She explained the process
used to conduct Q.B.’s forensic interview and the steps taken to maintain
neutrality, and not to lead a child to make a particular statement. The video and a
redacted copy of the video recording of Q.B.’s CAC interview was published to the
jury. The State stipulated that Q.B.’s eight-year old siblings made no disclosures
during their interviews.
Q.B. was fourteen years old at the time of the trial. She was preparing to
enter the ninth grade and also continue participating in a gifted arts program. She
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identified pictures of the house on Cleveland Street and the quiet room. The last
time Q.B. was in the house, she and one of her siblings were having a sleepover in
the sibling’s room. She woke up really late to her father touching her in between
her legs. She pretended to be asleep, but observed Defendant touching her when
she was peeking. Q.B. did not remember whether the touching was on her skin, or
her clothes, but she felt “uncomfortable.” She pushed him away, but Defendant
pushed her back down. Defendant apologized when she started to cry. Sometimes
the abuse in the house in Metairie occurred while she was staying in her sister’s
room on the top bunk bed. Q.B. recalled her father rubbing and feeling her breasts
or “butt cheeks” during other incidents. She also recalled falling asleep in the gym
while playing and waking up to “[Defendant . . .] touching me again between my
legs and the handcuffs were on me above my head[,]” with her pants and
underwear removed.
Q.B. also recalled the first time her father touched her inappropriately. She
recalled that they lived at a house at 1400 Vespasian Street. She was playing a
video game with her siblings and her father called her to a dark room with the
lights off, where her mother, who was at school at the time, would sleep. She also
recalled instances where her father would molest her while standing on the ladder
of the bunk bed while her siblings were in the room. She estimated that occurred a
total or five or six times. Defendant told Q.B. not to tell her mother or he would get
in trouble. Q.B. also recalled an incident where she was sleeping and then felt
Defendant “trying to kiss [her] lips and feeling his tongue in [her] mouth.”
Q.B. testified that she told her mother after she went to hang out in her
mother’s room because she was having trouble sleeping. Her mother made her
promise to tell if anything was wrong, and then she disclosed the abuse. She was
nervous and scared that her mother would hate her or blame her for what
happened. Q.B. remembered crying a lot and her mother comforting her. She
22-KA-517 8
hoped that she would not have to go to Defendant’s house anymore, so she would
not be hurt again and her father would not find out that she told her mother what
was happening. She recalled that she told her mother at nighttime and her mother
called someone afterwards. She also remembered going to the clinic to get a
checkup and going to a place to get therapy. Q.B. remembered the forensic
interview and watched the videotape with the assistant district attorney to prepare
for trial. She told the assistant district attorney that she did not want her mother
present when she testified, in case she said something her mother had not heard
previously.
Q.B. never screamed or yelled while she was being molested and her
siblings never woke up during any of the instances of abuse. She never discussed
the abuse with any of her siblings because she did not want them to think of her
differently either. She spoke to her mother about the abuse in general terms after
she completed therapy. Q.B. maintained that no one gave her the impression that
she had to describe anything that did not happen or exaggerate details about the
abuse.
The trial ended on July 28, 2022 after three days of testimony. The jury
unanimously found Defendant guilty as charged on count one, and not guilty on
count two.
On July 29, 2022, Defendant filed a Motion and Incorporated Memorandum
for New Trial and a Motion for Post Verdict Judgment of Acquittal. The trial court
considered and denied the motions at the beginning of the sentencing hearing held
on August 25, 2022. M.C. read Q.B.’s and her own victim impact statements in
open court. The judge noted that he read letters that Defendant’s ex-wife and niece
sent to an assistant district attorney on the case, and all four letters were filed into
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the record under seal.2 Letters from Defendant, three of his siblings, his sister-in-
law, and cousin were also filed into the record on his behalf. The judge advised
Defendant that he also read those letters. After Defendant waived delays, the trial
court sentenced him to thirty years at hard labor without benefit of probation,
parole, or suspension of sentence.
The district court advised that it denied Defendant’s motions for post verdict
judgment of acquittal and for new trial because it disagreed with the assertion that
the verdict rendered by the jury was contrary to law and that the jury correctly
found the factual elements of guilt were proven beyond a reasonable doubt and
Defendant did commit the crime he was charged with: sexual battery upon a victim
under the age of thirteen as defined by R.S. 14:43.1 C(2). The judge noted that the
statute provided a mandatory minimum sentence. After a discussion of factors
provided by La. C.Cr.P. art. 894.1 that were considered, the district court sentenced
Defendant to thirty years imprisonment at hard labor without the benefit of
probation, parole, or suspension of sentence. Defendant objected and later filed a
Motion to Reconsider Sentence, which the district court denied on August 30,
2022. A few weeks later, a stay away order to protect Q.B. for the duration of
Defendant’s incarceration was issued and filed under seal. The instant appeal
followed.
ASSIGNMENTS OF ERROR
Defendant alleges the following:
1. It was an abuse of discretion and error to deny Defendant’s Motion for
New Trial and for Post Verdict Judgment of Acquittal where the
evidence was insufficient to support the verdict beyond a reasonable
doubt.
2. The sentence imposed of thirty years at hard labor without benefits is
unconstitutionally excessive.
2
The defense objected at trial and in its Motion to Reconsider Sentence to the State’s exhibits/letters from
Defendant’s ex-wife and niece being entered into the record under seal as they were not provided by a
victim or family member as required under La. R.S. 46:1844.
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LAW AND DISCUSSION
SUFFICIENCY OF THE EVIDENCE
Defendant argues that, where the allegation made against him was
uncorroborated, and rested upon the testimony of a single witness who described
an implausible criminal scenario, the evidence was insufficient, and the verdict of
the jury was irrational and contrary to the due process of law.
The State contends that, based upon the law and evidence admitted at trial, it
proved Defendant committed the crime of sexual battery of a juvenile under the
age of thirteen beyond a reasonable doubt. Further, the State urges that it met the
constitutional standard regarding the sufficiency of the evidence pursuant to
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979). The State also notes that corroboration of Q.B.’s testimony is not required.
Further, “the jury found [her] account of sexual abuse by Bridgewater to be
credible and her recounting of the incidents materially consistent” and the theory
that Q.B.’s recollections of the abuse may have only been descriptions of,
according to Defendant, a “fevered dream-nightmare,” “defies credibility.” Last,
the trial court did not err in denying Defendant’s motion for new trial and his
motion for post verdict judgment of acquittal.
Sufficiency of the evidence is properly raised in the trial court by a motion
for post verdict judgment of acquittal pursuant to La. C.Cr.P. art. 821. State v.
Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215 So.3d 473, 477. A post verdict
judgment of acquittal shall be granted only if the court finds that the evidence,
viewed in a light most favorable to the State, does not reasonably permit a finding
of guilt. State v. Durand, 07-4 (La. App. 5 Cir. 6/26/07), 963 So.2d 1028, 1033,
writ denied, 07-1545 (La. 1/25/08), 973 So.2d 753. An appellate review of the
denial of the motion for post verdict judgment of acquittal is controlled by the
22-KA-517 11
standards set forth in Jackson v. Virginia, supra. See State v. Trice, 14-636 (La.
App. 5 Cir. 12/16/14), 167 So.3d 89, 92.
The constitutional standard for sufficiency of the evidence is whether, upon
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could find that the State proved all of the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, supra, State v. Chinchilla, 20-60
(La. App. 5 Cir. 12/23/20), 307 So.3d 1189, 1195, writ denied, 21-274 (La.
4/27/21), 314 So.3d 838.
In reviewing the sufficiency of the evidence, an appellate court must
determine whether the evidence, direct or circumstantial or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime were proven beyond a
reasonable doubt. Jackson, supra; State v. Gonzalez, 15-26 (La. App. 5 Cir.
8/25/15), 173 So.3d 1227, 1232. This directive that the evidence be viewed in the
light most favorable to the prosecution requires the reviewing court to defer to the
actual trier of fact’s rational credibility calls, evidence weighing, and inference
drawing. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702.
This deference to the fact-finder does not permit a reviewing court to decide
whether it believes a witness or whether the conviction is contrary to the weight of
the evidence. State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097,
1102. Further, a reviewing court errs by substituting its appreciation of the
evidence and the credibility of witnesses for that of the fact-finder and overturning
a verdict on the basis of an exculpatory hypothesis of innocence presented to, and
rationally rejected by, the jury. State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310
So.3d 794, 804. As a result, under the Jackson standard, a review of the record for
sufficiency of the evidence does not require the reviewing court to determine
whether the evidence at trial established guilt beyond a reasonable doubt, but
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whether, upon review of the whole record, any rational trier of fact would have
found guilt beyond a reasonable doubt. Id.In its determination of whether any rational trier of fact would have found
the defendant guilty, a reviewing court will not re-evaluate the credibility of
witnesses or re-weigh the evidence. Lane, 310 So.3d at 804. The credibility of a
witness, including the victim, is within the sound discretion of the trier of fact, who
may accept or reject, in whole or in part, the testimony of any witness. State v.
Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233. Thus, in the
absence of internal contradiction or irreconcilable conflicts with physical evidence,
the testimony of one witness, if believed by the trier of fact, is sufficient to support
a conviction. Lane, supra.
The testimony of the victim alone can be sufficient to establish the elements
of a sexual offense, even when the State does not introduce medical, scientific, or
physical evidence to prove the commission of the offense. Gonzalez, 173 So.3d at
1232. It is presumed that the trier of fact considered discrepancies in testimony in
assessing credibility and weight of testimony. Id.Here, Defendant, born in 1986, was charged and convicted of sexual battery
of a known juvenile (born in 2008) under the age of thirteen.
La. R.S. 14:43.1 provides in pertinent part:
A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any
instrumentality or any part of the body of the offender,
directly or through clothing, or the touching of the anus or
genitals of the offender by the victim using any
instrumentality or any part of the body of the victim,
directly or through clothing, when any of the following
occur:
[...]
(2) The victim has not yet attained fifteen years of age
and is at least three years younger than the offender.
(3) The offender is seventeen years of age or older and
any of the following exist:
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(a) The act is without consent of the victim, and
the victim is prevented from resisting the act
because either of the following conditions exist:
[...]
(ii) The victim is incapable, through unsoundness
of mind, of understanding the nature of the act, and
the offender knew or should have known of the
victim's incapacity.
At trial, Q.B. testified that she was fourteen years old and entering the ninth
grade. She testified that she last saw Defendant four years earlier, and she and her
siblings would have overnight visits at his house on Cleveland Place in Metairie.
The last time Q.B. visited the home, she and her brother were having a sleepover
and they fell asleep in her brother’s room; she woke up and felt someone touching
her between her legs and discovered, peering through squinted eyes (because she
was pretending to be asleep), that Defendant was touching her. Q.B. recalled other
instances where her father touched her in the Metairie home. She described other
instances of abuse where Defendant touched her breasts, between her legs, and/or
buttocks in the room she shared with her sisters and the “quiet room.” She testified
regarding an incident in the gym where her hands were bound above her head with
toy handcuffs and her underwear and pants were removed. Q.B. stated the abuse
started when she lived at the house on Vespasian Street when she was five or six
years old -- she was playing a video game with her siblings when Defendant called
her back to M.C.’s room, while M.C. was at school. She also remembered that
there were other incidents where she was partially undressed because Defendant
had removed her clothes, and one time where Defendant was trying to kiss her and
she “[felt] his tongue in her mouth.”
Further, Q.B.’s mother M.C. testified that Defendant was born in 1986 and
Q.B. was born in 2008. She testified that the family moved to the house on
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Vespasian Street in Algiers, Orleans Parish around the spring of 2012, a year and a
half after her youngest children were born. M.C. and her children did not move
until after Hurricane Ida, which made landfall in Louisiana on August 29, 2021.
After M.C. and Defendant split, Defendant lived in Algiers and Gretna before
moving to a house on Cleveland Place in Metairie, where he lived with his wife
and their daughter. M.C. stated that she sent the children to visit Defendant up
until the time of Q.B.’s disclosure in October 2018 because she wanted them to
have relationships with their father.
Accordingly, we find Q.B.’s testimony that, several times over a period of
approximately five years, Defendant touched her breasts, vaginal area, and
buttocks, on top of and underneath her undergarments, was sufficient to convince a
rational trier of fact, the jury, that Defendant was guilty of the charged offense of
sexual battery beyond a reasonable doubt. Although Defendant cedes that Q.B.’s
testimony is “substantially in agreement” with her account given in the forensic
interview four years prior, he urges that the “story” is “hard-to-believe, wholly
uncorroborated” and “implausibl[e]” and argues that the verdict should be set
aside. But, again, in the case of sexual offenses, the testimony of the victim alone
can be sufficient to establish the elements of a sexual offense, even where the State
does not introduce medical, scientific or physical evidence to prove the
commission of the offense. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982
So.2d 146, 153–54, writ denied sub nom. State ex rel. Dixon v. State, 08-987 (La.
1/30/09), 999 So.2d 745.
Defendant also points to “the many gaps in [Q.B.’s] memory” to support his
claims challenging the sufficiency of the evidence adduced by the State. However,
the judgment of witness credibility is within the sound discretion of the trier of
fact, who may accept or reject, in whole or in part, the testimony of any witness.
Id. at 153; State v. Simms, 03-1459 (La. App. 5 Cir. 12/28/04), 892 So.2d 111, 121.
22-KA-517 15
Where conflicting testimony produces an issue of material fact that requires for its
resolution the determination of witness credibility, the trier of fact's resolution is a
matter of weight, not sufficiency, of the evidence. Dixon, 982 So.2d at 153. In this
case, there is no physical evidence. The State’s expert witness in child abuse
pediatrics, Dr. Mehta, explained that she would expect to find little physical
evidence if the exam occurred more than 72 hours after the last incidence of abuse,
like in the instant case. Dr. Mehta also discussed disclosure being “a process” and
children not always having the language to explain what is happening to them.
Moreover, this Court has recognized that memory lapse and alleged inconsistencies
may have resulted from the victim’s tender age — Q.B. was five years old —when
the abuse began; the traumatic nature of the experience; exposure to unfamiliar
surroundings; or the method of interrogation. See State v. Simmons, 03-20 (La.
App. 5 Cir. 4/29/03), 845 So.2d 1249, 1258 citing State v. Foy, 439 So.2d 433, 434
(La. 1983).
Considering the law and evidence, we find that that a rational trier of fact
viewing the evidence in a light most favorable to the prosecution, could have found
beyond a reasonable doubt that the evidence was sufficient under the standard set
forth in Jackson to support Defendant’s conviction. Hence, the district court did
not err in denying Defendant’s Motions for New Trial and for Post Verdict
Judgment of Acquittal.
EXCESSIVE SENTENCE
Defendant argues that a sentence of thirty years at hard labor is
unconstitutionally excessive, and shocking to the conscience, in this case where the
accused is a first offender and where the crime of conviction was premised largely
on through-the-clothing touching which, while illegal, is on the lower end of the
scale of the proscribed criminal conduct. Defendant further argues that even the
minimum sentence to be imposed for the crime committed, twenty-five years,
22-KA-517 16
would be excessive and cruel and unusual punishment, contrary to the State and
federal constitutions.
The State counters that the record fully supports the sentence imposed and
the trial court did not abuse its broad sentencing discretion.
When imposing sentences, a trial court has vast discretion in imposing a
sentence within statutory limits. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18),
254 So.3d 828, 836, writ not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154,
and writ denied, 18-1909 (La. 4/8/19), 267 So.3d 606 citing State v. Williams, 03-
3514 (La. 12/13/04), 893 So.2d 7, 16-17. However, there is no requirement that
specific matters be given any particular weight at sentencing. State v. McGowan,
16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1163, writ not considered sub
nom. State ex rel. McGowan v. State, 17-1675 (La. 10/27/17), 228 So.3d 1227.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment. Id.
at 1162. A sentence is considered excessive, even if it is within the statutory
limits, if it is grossly disproportionate to the offense or imposes needless and
purposeless pain and suffering. Id. In reviewing a sentence for excessiveness, the
appellate court must consider the punishment and the crime in light of the harm to
society and gauge whether the penalty is disproportionate as to shock the court’s
sense of justice. State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500,
519, writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836. An appellate court cannot
set aside a sentence as excessive absent a manifest abuse of discretion. See
Williams, 893 So.2d at 16.
In determining whether a sentence is excessive, an appellate court considers:
(1) the nature of the crime; (2) the nature and background of the offender; and (3)
the sentences imposed for similar crimes by the same and other courts. State v.
Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 837, writ not considered,
22-KA-517 17
18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909 (La. 4/8/19), 267
So.3d 606. On appeal, the issue is not whether a different sentence might have
been more appropriate, but whether the trial court abused its vast discretion. Id.;
Dixon, 254 So.3d at 836-37.
La. R.S. 14:43.1 provides, in pertinent part:
C. (2) Whoever commits the crime of sexual battery on a
victim under the age of thirteen years when the offender
is seventeen years of age or older shall be punished by
imprisonment at hard labor for not less than twenty-five
years nor more than ninety-nine years. At least twenty-
five years of the sentence imposed shall be served
without benefit of parole, probation, or suspension of
sentence.
Defendant was sentenced to thirty years imprisonment at hard labor without
the benefit of parole, probation, or suspension of sentence for the charge of sexual
battery of a juvenile under the age of thirteen years. Defendant argues that he “is a
first [time] offender and where the crime of conviction was premised largely on
through-the-clothing touching which, while illegal, is on the lower end of the scale
of the proscribed criminal conduct.” Accordingly, Defendant’s sentence is at the
lower end of the sentencing range and less than a third of the maximum sentence
he could have received.
Before imposing Defendant’s sentence, the judge advised Defendant that he
read the victim impact statements from Q.B. and her mother. He also read two
other statements made on behalf on Q.B., Defendant’s statement, and the five
letters that his family members sent on his behalf. The district court noted that
Defendant helped care for his father who suffered with dementia. However,
pursuant to La. C.Cr.P. art. 894.1, the judge also highlighted his consideration of
the following: the offender’s conduct during the commission manifested deliberate
cruelty to the victim; the offender knew or should have known that the victim of
the offense was particularly vulnerable or incapable of resistance due to extreme
22-KA-517 18
youth; the offender used his or her position or status to facilitate the commission of
the offense; and the offense resulted in significant mental and probably permanent
injury to his daughter, the victim in this case. Defendant touched Q.B.
inappropriately and exploited his position as her father to gain access to her during
periods when he was supposed to be caring for and visiting with Q.B. and her
siblings. He also instructed her not to tell her mother about the abuse, or otherwise
seek help. Defendant knew Q.B., his biological daughter, was vulnerable due to her
young age when the abuse began and took advantage of her lack of protective
capacity, inability to resist, and he overpowered her at times during the abuse. Last,
as a result of the abuse, Q.B. was afraid – afraid that her mother would blame her
for the abuse, afraid that her mother and siblings would see her differently, and
afraid of being hurt again. Before her disclosure, she became quiet and stopped
doing her favorite things. Q.B.’s victim impact statement described suffering from
a negative self-image and having suicidal thoughts. Q.B. also testified about
therapy she received and coping mechanisms she learned to use to deal with the
memories of the abuse.
Upon sentencing Defendant, the district court also drew attention to La.
C.Cr.P. art. 894(A)(3) and its directive that the court should impose a (particular)
sentence of imprisonment if “a lesser sentence would deprecate the seriousness of
[his] crime.” Further, similar or harsher sentences have been imposed for similar
crimes by this Court and other courts and have been found to not be
constitutionally excessive. In support of its position, the State cites to State v.
Howard, 18-159 (La. App. 5 Cir. 11/7/18), 259 So.3d 583, writ denied, 18-2034
(La. 4/29/19), 268 So.3d 1031. In Howard, the defendant was convicted of
indecent behavior with a juvenile under the age of thirteen (count one) and sexual
battery of a juvenile under the age of thirteen (count two). As to count two, the
defendant was sentenced to forty years at hard labor, without the benefit of parole,
22-KA-517 19
probation, or suspension of sentence. This court declared that the fact that the
defendant accomplished his crimes without the use of weapons did not negate the
fact that his ability to overpower his victims was made possible through his
superior height, weight, and strength. The defendant also had a position as a trusted
authority figure within the home, which he exploited to commit his crimes.
The State also cites to State v. Lilly, 12-8 (La. App. 1 Cir. 9/21/12), 111
So.3d 45, writ denied, 12-2277 (La. 5/31/13), 118 So.3d 386. In Lilly, the
defendant was convicted of sexual battery in violation of La. R.S. 14:43.1(C)(2)
and was sentenced to thirty-five years at hard labor. The victim was four years old
at the time of the incident. On appeal, the defendant argued that the sentence was
excessive for a fifty-seven-year-old first-felony offender where the State, at most,
proved a fingertip touching of the victim’s vaginal area. The appellate court upheld
the sentence, noting that the victim’s age made her particularly vulnerable and that
the defendant was in a position of trust as her babysitter. Id. at 49-50, 63-64.
In State v. Brenckle, 14-883 (La. App. 5 Cir. 5/14/15), 170 So.3d 1141,
1155-56, the defendant was convicted of the sexual battery of two young children,
a boy and a girl. The trial court considered La. C.Cr.P. art. 894.1, in addition to
two victim impact statements presented prior to sentencing before it imposed two
concurrent forty-year sentences. This Court found that those sentences were not
constitutionally excessive, noting that they were less than half the maximum
sentences that could have been imposed.
Last, the jurisprudence indicates that maximum, or nearly maximum terms
of imprisonment may not be excessive when the defendant has exploited a position
of trust to commit sexual battery or indecent behavior with a juvenile. State v.
Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied, 01-
2965 (La. 10/14/02), 827 So.2d 414. Considering the nature of the crime, the
position of trust Defendant held as the victim’s biological father, the ages of the
22-KA-517 20
victim when the abuse occurred, and her lack of protective capacity, we find that
the record supports the sentence imposed and the district court did not abuse its
wide discretion in imposing a thirty-year sentence in this case. Further, we find
Defendant’s sentence, which is at the lower end of the statutorily prescribed range,
is not constitutionally excessive.
ERRORS PATENT
The record was reviewed for errors patent, pursuant to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5th Cir. 1990).
The Louisiana Uniform Commitment Order (UCO) incorrectly reflects the
dates of the offenses on counts one and two as January 18, 2013. However, the
record reflects that counts one and two occurred on or between January 18, 2013
and October 10, 2018. To ensure accuracy in the record, we remand this matter for
the district court to correct the UCO to reflect the entire date range of the offense.
Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit
the corrected UCO to the appropriate authorities, including the Department of
Corrections’ legal department, in accordance with La. C.Cr.P. art. 892(B)(2). See
Lane, supra (remanding the case with instructions to the trial court to correct the
UCO to include the entire date range of the offenses as to counts one and two).
DECREE
Considering the foregoing, Defendant’s conviction and sentence are
affirmed. The matter is remanded for further proceedings consistent with this
opinion.
AFFIRMED;
REMANDED FOR CORRECTION OF THE UCO
22-KA-517 21
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-517
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
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ATTORNEY AT LAW (APPELLEE)
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TWENTY-FOURTH JUDICIAL DISTRICT
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