State of Louisiana Versus Abraham Aguilar ( 2023 )

STATE OF LOUISIANA NO. 23-KA-34
VERSUS FIFTH CIRCUIT
ABRAHAM AGUILAR COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-5824, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
November 15, 2023
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Robert A. Chaisson,
John J. Molaison, Jr., and Scott U. Schlegel
CONVICTION AND SENTENCE AFFIRMED
JJM
RAC
SUS
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Christina Fisher
Molly Love
John Ransone IV
COUNSEL FOR DEFENDANT/APPELLANT,
ABRAHAM AGUILAR
Lieu T. Vo Clark
MOLAISON, J.
In this criminal appeal, the defendant seeks review of his conviction for
sexual battery of a victim under the age of 13. For the reasons that follow, the
defendant’s sentence and conviction are affirmed.
FACTS AND PROCEDURAL HISTORY
The record in this matter indicates that on August 17, 2020, 11-year-old G.P.
disclosed to her mother, M.P., that the defendant, Abraham Aguilar, her
grandmother’s live-in boyfriend, had sexually abused G.P. on multiple occasions.
G.P. disclosed to investigating officers that on August 14, 2020, the defendant
walked up behind her while she was in the kitchen of their Jefferson Parish
apartment, touched her breasts over her shirt and inserted his finger into her
vagina. She described another incident in January of 2020, when the defendant had
rubbed her breasts over her clothing while she was standing at the top of the
apartment stairwell. G.P. said that he had grabbed her breasts and digitally
penetrated her vagina on multiple occasions.1 In another incident that happened
when G.P. was eight years old, the defendant unsuccessfully attempted to put his
“private part” into G.P.’s vagina.
Based on the information provided, the defendant was taken into custody by
the Jefferson Parish Sheriff’s Office (“JPSO”) pursuant to an arrest warrant. It was
discovered that the defendant also used an alias, Cristobal Santiago Aguilar
Lucero.2 After being advised of, and waiving his rights, the defendant gave an
interview with JPSO detectives. Initially, the defendant denied that any physical
contact of that type took place between himself and G.P. But then he recounted one
incident when G.P. was 11 years old. He stated that he went downstairs in the
1
The record shows that the majority of these incidents were alleged to have occurred in a New
Orleans residence, and therefore were not charged in the instant bill of information.
2
The JPSO Crime Report, which was entered into evidence, indicates the defendant admitted to
an arrest for burglary of an inhabited dwelling under this name.
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family’s apartment to go outside and smoke when he saw G.P. alone in the kitchen.
He stated that he walked up behind her with the intention of “hugging her.” The
defendant then claimed that when he did so, G.P. became “ticklish” and moved in
such a manner that one of his hands touched her breasts. The defendant also stated
that there was a “probability” that in the same incident that his hands went into
G.P.’s pants and that he touched her vagina. The defendant was asked by
detectives how many other similar incidents with G.P. occurred over the 12 years
he lived with her family, which could have been deemed inappropriate, to which he
replied “a couple” of times and several times.
The defendant was charged in a bill of information filed on October 27,
2020, by the Jefferson Parish District Attorney’s Office with one count of
misdemeanor sexual battery of a known juvenile which took place between
January 1, 2020, and August 18, 2020, in violation of La. R.S. 14:43.1.1.3 After
initially pleading not guilty, the defendant proceeded to a judge trial on June 15,
2022, and he was found guilty as charged. On June 30, 2022, the defendant’s
motion for a new trial was denied, and he was then sentenced to six months in
parish prison with credit for time served to run concurrently with any other
sentence he was serving. This timely appeal follows.
ASSIGNMENT OF ERROR
The defendant’s sole assignment of error is that the evidence presented is
insufficient to convict him under La. R.S. 14:43.1.1. Specifically, the defendant
contends that the State failed to prove that he touched G.P.’s breasts or buttocks as
an element of the offense.
3
The defendant was charged in a bill of information filed on October 27, 2020, by the Jefferson
Parish District Attorney’s Office with one count of the sexual battery of a known juvenile that occurred
between January 1, 2020, and August 18, 2020, in violation of La. R.S. 14:43.1. After initially pleading
not guilty, the defendant proceeded to a jury trial on June 15, 2022, and he was found guilty as charged in
a unanimous verdict. His sentence and conviction were affirmed in companion case, 23-KA-33. The
defendant did not challenge the sufficiency of the evidence in that appeal.
23-KA-34 2
LAW AND ANALYSIS
No motion for PVJA filed
The question of sufficiency of evidence is properly raised in the trial court
by a motion for post-verdict judgment of acquittal (“PVJA”) under La. C.Cr.P. art.
821. State v. Bazley, 09-358 (La. App. 5 Cir. 1/11/11), 60 So.3d 7, 18, writ denied,
11-282 (La. 6/17/11), 63 So.3d 1039. Here, the record does not indicate that the
defendant filed such a motion. This Court has previously held, however, that the
failure to file a PVJA does not preclude appellate review of the sufficiency of the
evidence. State v. Thomas, 08-813 (La. App. 5 Cir. 4/28/09), 13 So.3d 603, 606,
writ denied, 09-1294 (La. 4/5/10), 31 So.3d 361 (citing State v. Washington, 421
So.2d 887, 889 (La. 1982)). Accordingly, we will consider the merits of the
defendant’s assignment of error.
Standard of review
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, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); 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, cert. denied,
––– U.S. ––––, 142 S.Ct. 296, 211 L.Ed.2d 138 (2021). 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. Hayman, 20-323 (La. App. 5 Cir. 4/28/21), 347 So.3d 1030,
23-KA-34 3
1040. 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
whether, upon review of the whole record, any rational trier of fact would have
found guilt beyond a reasonable doubt. State v. Ordonez, 16-619 (La. App. 5 Cir.
3/15/17), 215 So.3d 473, 477.
The elements of La. R.S. 14:43.1.1
La. R.S. 14:43.1.1 states, in relevant part:
A. Misdemeanor sexual battery is the intentional
touching of the breasts or buttocks of the victim by the offender
using any instrumentality or any part of the body of the
offender, directly or through clothing, or the intentional
touching of the breasts or buttocks of the offender by the victim
using any instrumentality or any part of the body of the victim,
directly or through clothing, when the offender acts without the
consent of the victim.
Thus, similar to its felony counterpart of La. R.S. 14:43.1, to support a conviction
under La. R.S. 14:43.1.1, the State is required to prove beyond a reasonable doubt
that a defendant touched specific parts of the victim’s body without her consent.
The defendant’s argument is based upon his definition of the term “breast”
as used in the statute. The defendant asserts in his brief:
At trial, G.P. testified that Mr. Aguilar had placed his hands under her
shirt and touched her chest. Her testimony was brief concerning this
allegation. G.P. never specified exactly where on her chest Mr.
Aguilar touched. Considering that the breasts are just a portion of a
female's chest and G.P. failed to specifically allege that Mr. Aguilar
touched her breasts, the state has failed to prove that Mr. Aguilar is
guilty beyond a reasonable doubt of misdemeanor sexual battery.
23-KA-34 4
[Record citations omitted.] Notably, the defendant cites no jurisprudence to
support his narrow interpretation of the term “chest.”
The evidence presented at trial
“In cases involving sexual offenses, the testimony of the victim alone may
be sufficient to establish the elements of the offense, even where the State does not
introduce medical, scientific, or physical evidence to prove the commission of the
offense.” State v. Barbain, 15-0404 (La. App. 4 Cir. 11/4/15), 179 So.3d 770, 778.
We first take note of reported cases in which a female victim of sexual abuse
described a defendant as touching her “chest,” and that description was deemed
sufficient from an evidentiary standpoint. In State v. Cavazos, 11-0733 (La. App. 4
Cir. 5/16/12), 94 So.3d 870, 879, writ denied, 12-1372 (La. 10/26/12), 99 So.3d
645, and writ denied sub nom. State ex rel. Cavazos v. State, 12-1438 (La.
10/26/12), 99 So.3d 645, the victim testified that the defendant, “would go into her
room and touch her chest.” In State v. E.J.M., III, 12-774 (La. App. 5 Cir.
5/23/13), 119 So. 3d 648, 661, the victim testified that when she was nine years
old, the defendant took off her clothes and began touching her chest and private
area. In State v. Guidry, 95-254 (La. App. 3 Cir. 11/2/95), 664 So.2d 698, 700, the
Third Circuit upheld a defendant’s conviction for sexual battery based on “the
victim's unequivocal testimony about defendant's touching her chest and vagina.”
With the holdings of these cases in mind, we next turn to the evidence of the
victim’s account of sexual battery by the defendant presented at trial. State’s
Exhibit 13 consisted of a video of a forensic interview conducted with G.P. by
Julia Fisher at the New Orleans Children's Advocacy Center. In her interview,
which was played for the judge and jury, G.P. states that the defendant touched her
in places “where I shouldn’t be touched.” Beginning approximately 21 minutes
into the interview, G.P. is asked to recount a time she remembers most about the
defendant’s sexual abuse of her. She describes an incident that occurred in the
23-KA-34 5
kitchen of the family’s apartment, when the defendant touched her. When asked to
clarify, G.P. gestures in the video toward her left breast. When asked to provide the
name of that body part, she indicates that she does not have or know a name. The
defendant touched G.P. both over and under her clothes. When asked about being
touched over her clothes, G.P. again gestured toward her breast. When asked about
defendant touching her under her clothes, she likewise moved her hand toward her
breast.
At trial, G.P. did not specifically use the word “breast” when describing how
the defendant sexually abused her. Her testimony was as follows:
THE STATE:
And what part of your body did he touch?
G.P.:
My chest.
THE STATE:
Okay. And what part of your body was he using to touch
your chest?
G.P.:
His hands.
. . .
THE STATE:
And when he touched you with his hands on your chest,
was it over your shirt, or under your shirt?
G.P.:
Under.
. . .
THE STATE:
And did that happen once, or more than once, when he
touched you under your shirt, on your chest?
23-KA-34 6
G.P.:
More.
Other evidence presented at trial included State’s Exhibit 8, which is an
affidavit for the defendant’s arrest warrant. The warrant demonstrates that in her
initial interview with police on August 18, 2020, G.P. indicated that during an
incident two weeks prior, the defendant had walked up behind her while she was in
the kitchen and touched her breasts inside and outside of her clothing before he
inserted a finger into her vagina. The court was also aware of State’s Exhibit 1, a
JPSO Crime Report, having previously ruled on its admissibility at trial and in
relation to the defendant’s motion to quash.
Accordingly, we conclude that G.P.’s testimony that defendant touched her
chest was sufficient to convince a rational trier of fact beyond a reasonable doubt
that defendant was guilty of sexual battery. See, State v. Perkins, 11-162 (La. App.
5 Cir. 12/28/11), 83 So.3d 250, 257. 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. State v. Dixon,
07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-0987 (La.
1/30/09), 999 So.2d 745. Moreover, 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. Bruce, 14-877 (La. App. 5 Cir. 3/25/15), 169 So.3d 671, 675,
writ denied, 15-833 (La. 3/4/16), 187 So.3d 1007. This assignment of error is
without merit.
ERROR PATENT REVIEW
Generally, an errors patent review is not conducted on misdemeanor
convictions. State v. Clark, 19-522 (La. App. 5 Cir. 6/24/20), 299 So.3d 1228,
1235, writ denied, 21-00062 (La. 3/9/21), 312 So.3d 585. Nevertheless, this Court
23-KA-34 7
in similarly situated matters has conducted an error patent review. See, State v.
Jones, 12-640 (La. App. 5 Cir. 10/30/13), 128 So.3d 436. Accordingly, this Court
conducted an error patent review of all of the convictions before us and found no
errors that require correction.
DECREE
Accordingly, for the foregoing reasons, the defendant’s conviction and
sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED
23-KA-34 8
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.
SCOTT U. SCHLEGEL 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
NOVEMBER 15, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-34
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) LIEU T. VO CLARK (APPELLANT)
MAILED
CHRISTINA FISHER (APPELLEE)
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
JOHN RANSONE IV (APPELLEE)
MOLLY LOVE (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053