State Of Louisiana v. Andrew Jerome Francis ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 KA 1392
STATE OF LOUISIANA
VERSUS
ANDREW JEROME FRANCIS
Kc
Judgment Rendered.
DEC 17 2020
Appealed from the
21st Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Case No. 34750
The Honorable Elizabeth P. Wolfe, Judge Presiding
Jane L. Beebe Counsel for Defendant/Appellant
Addis, Louisiana Andrew Jerome Francis
Scott M. Perrilloux Counsel for Appellee
District Attorney State of Louisiana
Brett Sommer
Assistant District Attorney
Livingston, Louisiana
BEFORE: McCLENDON, HIGGINBOTHAM, AND THERIOT, JJ.
THERIOT, J.
The defendant, Andrew Jerome Francis, was charged by grand jury
indictment with first degree rape, a violation of La. R.S. 14: 42( A)( 4) ( count one),
indecent behavior with juveniles, a violation of La. R.S. 14: 81( A) ( count two), and
failure to register and notify as a sex offender or child predator, a violation of La.
R.S. 15: 542. 1. 4( A)( 1) ( count three). He initially pled not guilty on each count.
The trial court granted the defendant' s motion to sever count three. The defendant
proceeded to a trial by jury on counts one and two and was found guilty as charged
on both counts.' The trial court denied the defendant' s motions for new trial, post -
verdict judgment of acquittal, and arrest of judgment. The trial court sentenced the
defendant to life imprisonment at hard labor, without the benefit of probation,
parole, or suspension of sentence on count one, and twenty- five years
imprisonment at hard labor with two years to be served without the benefit of
probation, parole, or suspension of sentence on count two, to run concurrently. On
count three, the defendant withdrew his former plea, pled no contest, and was
sentenced to two years imprisonment at hard labor, to run concurrent with any
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other sentence being served. The trial court granted the defendant' s pro se
application for post -conviction relief (PCR) seeking an out -of t-ime appeal and a
counseled motion seeking the same relief.
The defendant now appeals the convictions on counts one and two, assigning
as error the sufficiency of the evidence and the non -unanimous jury verdicts. The
defendant argues that because of the errors in the proceeding, his convictions and
After the verdicts were announced, the trial court conducted an oral polling of the jury. Though
not specified as such, we presume that the single oral polling of the members of the jury was
reflective of their votes on both counts, with ten members of the jury indicating " Yes" and two
indicating " No." Accordingly, both jury verdicts were non -unanimous.
2 The trial court failed to impose the statutorily -required parole restriction on count three. See
La. R.S. 15: 542. 1. 4( A)( 1). In instances where statutory restrictions on parole, probation, or
suspension of sentence are not recited at sentencing, La. R.S. 15: 301. 1( A) deems that those
required statutory restrictions are contained in the sentence, whether or not imposed by the
sentencing court. Moreover, this paragraph self -activates the correction and eliminates the need
to remand for a ministerial correction. State v. Williams, 2000- 1725 ( La. 11/ 28/ 01), 800 So. 2d
790, 799.
2
sentences on counts one and two should be reversed. For the following reasons,
we vacate the convictions and sentences on counts one and two and remand with
instructions, and affirm the conviction and sentence on count three.
STATEMENT OF FACTS
On or about July 3, 2016, the Gonzales Mental Health Unit contacted the
Livingston Parish Sheriff' s Office ( LPSO) regarding allegations that K.S., an
eleven -year-old boy, had been sexually assaulted on three separate instances by his
great uncle, the defendant.' Detective Shawn Lang of the LPSO sex crimes
division contacted K.S.' s family members and arranged for K.S. to be interviewed
at the Children' s Advocacy Center ( CAC). In the CAC interview on July 28, 2016,
and at trial on October 25, 2017, K.S. stated that the incidents occurred in Denham
Springs, where he periodically visited the residence of his grandmother, L.F., after
the defendant, L.F.' s brother, began staying there. K.S. stated that he had been
molested" by the defendant and graphically described incidents of abuse that
included oral and anal sexual intercourse initiated by the defendant after he started
showing K.S. homosexual pornographic videos of male partners engaging in
sexual acts.
During the CAC interview, K.S. specifically alleged that during the first
incident, the defendant pulled his ( K.S.' s) pants down and began " rubbing all over"
him and " feeling" him " down there" on his " penis" and "
sucking." He further
stated that the defendant told him to touch his toes, adding, " and then he put it up
my butt," previously specifying, " He put his penis up my butt." He stated that it
felt " painful" and that he " didn' t like it all." He further stated that he told the
defendant, " Please stop, I won' t tell nobody."
3 K.S., the alleged victim in this case, was born on August 23, 2004, and as stated, was eleven
years old at the time the offenses allegedly occurred. Thus, we will use initials to refer to the
alleged victim and his immediate family members. See La. R.S. 46: 1844( W).
3
At trial, K.S. similarly described the first incident, testifying the defendant
first put his hand on K.S.' s upper leg and moved his hand higher up K.S.' s leg, as
he ultimately began touching K.S.' s genitals and putting his mouth on K.S.' s
stuff' before using baby oil as a lubricant and penetrating K.S. anally with his
penis. K.S. indicated that additional incidents consisting of the same type of abuse
occurred on two other occasions before he first disclosed the allegations to another
child, whom he referred to at trial as his " stepbrother."' Despite pleas by K.S. to
keep his disclosures a secret, K.S.' s stepbrother immediately told his mother and
K.S.' s father about the allegations.
After the CAC interview, the LPSO obtained and executed a search warrant
for the residence in Denham Springs where the offenses allegedly took place. The
officers also interviewed L.F., at which point she showed them a pornographic
video of male partners having sexual intercourse that was downloaded to her cell
phone. L.F. turned the phone over to the police. Deputy Brandon Flowers, a
LPSO forensic investigator, performed the cell phone extraction in this case. The
extraction revealed many visits to pornographic websites, pornographic images,
and pornographic videos that had been downloaded and deleted.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant argues that a complete
reading of the trial transcript in this case shows that the State failed to meet its
burden of proof. The defendant claims his convictions are the result of K.S. not
wanting to be labeled or thought of as gay. The defendant notes that it was only
after L.F. " outted" K.S. at the family Fourth of July gathering that K.S. alleged that
the defendant raped him. The defendant contends that there was no other evidence
in support of the allegations. The defendant argues that based on the timeline K.S.
4 As K.S. explained during the CAC interview, his so- called " stepbrother" was the twelve -year-
old son of his father' s fiancee.
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recounted, the incidents, including two allegations that he claims were not relayed
to the jury, could not have possibly occurred.
The defendant further makes the following specific claims. First, he claims
K.S. initially alleged that three incidents occurred while he was at L.F.' s residence
for a three- month period, though K.S. had not been at L.F.' s residence for a three-
month period prior to July 3, 2016, the purported date of the family gathering and
K.S.' s disclosure. Secondly, he claims that on June 23, 2016, the day several
videos were downloaded according to Deputy Flowers, he was at work and K.S.
and his brother' were in possession of L.F.' s phone. Thirdly, he claims that K.S.
also blamed his ( K.S.' s) brother for the downloaded videos and only " made up the
story" about the defendant after being " outted as gay or bisexual." The defendant
concludes that by denying the post -trial motions,6 the trial court failed to hold the
State to its burden of proving the elements of the crime beyond a reasonable doubt.
A conviction based on insufficient evidence cannot stand as it violates Due
Process. See U. S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims
challenging the sufficiency of the evidence, viewing the evidence in the light most
favorable to the prosecution, an appellate court must determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 ( 1979). See also La. Code Crim. P. art. 821( B) ( pertaining to
5 Based on the record, K.S. has two biological siblings, a younger brother ( who has the same
initials as K.S. but will only be referred to herein as K.S.' s " brother") and a younger sister.
6 We note that the question of the sufficiency of evidence is properly raised by a motion for post -
verdict judgment of acquittal. La. Code Crim. P. art. 821. A motion for new trial presents only
the issue of the weight of the evidence and is examined under the so- called thirteenth juror
standard, under which the trial judge reweighs the evidence. See State v. Hampton, 98- 0331
La. 4/ 23/ 99), 750 So. 2d 867, 879, cert. denied, 528 U. S. 1007, 120 S. Ct. 504, 145 L.Ed.2d 3901999); State v. Edmond, 2012- 0628 ( La. App. 1st Cir. 11/ 14/ 12), 2012 WL 5506871, at * 1 n.2,
writ denied, 2013- 0060 ( La. 5/ 31/ 13), 118 So. 3d 391. Appellate courts may review the grant or
denial of a motion for new trial only for errors of law. See La. Code Crim. P. art. 858.
Accordingly, the denial of the defendant' s motion for new trial based on La. Code Crim. P. art.
851( B)( 1) is not subject to review on appeal. The only issue reviewable in this assignment of
error is the constitutional issue of sufficiency of the evidence, which was raised in the
defendant' s motion for post -verdict judgment of acquittal.
5
motions for post -verdict judgment of acquittal based on insufficiency of evidence);
State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So. 2d 654, 660; State v.
Cockerham, 2017- 0535 ( La. App. 1st Cir. 9/ 21/ 17), 231 So. 3d 698, 703, writ
denied, 2017- 1802 ( La. 6/ 15/ 18), 245 So. 3d 1035.
Under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L.Ed. 2d 301981), the accused may be entitled to an acquittal if the evidence does not satisfy
the standard of Jackson v. Virginia, supra. State v. Hearold, 603 So. 2d 731, 734
La. 1992). On the other hand, if the reviewing court determines there has been
trial error ( which was not harmless) in cases in which the entirety of the evidence
was sufficient to support the conviction, then the accused must receive a new trial,
but is not entitled to an acquittal. See Hearold, 603 So. 2d at 734; State v. Major,
2019- 0621 ( La. App. 1st Cir. 11/ 15/ 19), 290 So. 3d 1205, 1209, writ denied, 2020-
00286 ( La. 7/ 31/ 20), 300 So. 3d 398.
The Jackson standard of review, incorporated in Article 821, is an objective
standard for testing the overall evidence, both direct and circumstantial, for
reasonable doubt. State v. Legaux, 2019- 0075 ( La. App. 1st Cir. 9/ 27/ 19), 288
So. 3d 791, 794. When analyzing circumstantial evidence, La. R.S. 15: 438
provides that the fact finder, in order to convict, must be satisfied the overall
evidence excludes every reasonable hypothesis of innocence. When a case
involves circumstantial evidence and the trier of fact reasonably rejects the
hypothesis of innocence presented by the defense, that hypothesis falls, and the
defendant is guilty unless there is another hypothesis which raises a reasonable
doubt. State v. Dyson, 2016- 1571 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 220, 228,
writ denied, 2017- 1399 ( La. 6/ 15/ 18), 257 So. 3d 685.
Louisiana Revised Statutes 14: 41( A) defines " rape" as the act of anal, oral,
or vaginal sexual intercourse with a male or female person committed without the
person' s lawful consent. Emission is not necessary, and any sexual penetration,
i
when the rape involves vaginal or anal intercourse, however slight, is sufficient to
complete the crime. La. R. S. 14: 41( B). Oral sexual intercourse means the
intentional engaging in any of the following acts with another person: ( 1) the
touching of the anus or genitals of the victim by the offender using the mouth or
tongue of the offender; ( 2) the touching of the anus or genitals of the offender by
the victim using the mouth or tongue of the victim. La. R. S. 14: 41( C). " First
degree rape is a rape committed . . . where the anal, oral, or vaginal sexual
intercourse is deemed to be without lawful consent of the victim because it is
committed ... [ w] hen the victim is under the age of thirteen years." La. R.S.
14: 42( A)(4).'
Lack of knowledge of the victim' s age shall not be a defense. La. R.S.
14: 42( A)(4). First degree rape is a general intent crime. See La. R.S. 14: 11; La.
R. S. 14: 42; State v. Cutrer, 2012- 2128 ( La. App. 1st Cir. 9/ 17/ 13), 2013 WL
5288918, at * 2, writ denied, 2013- 2509 ( La. 6/ 20/ 14), 141 So. 3d 278. General
criminal intent is present whenever there is specific intent, and also when the
circumstances indicate that the offender, in the ordinary course of human
experience, must have adverted to the prescribed criminal consequences as
reasonably certain to result from his act or failure to act. La. R.S. 14: 10( 2).
Indecent behavior with a juvenile is defined as the commission of any lewd
or lascivious act upon the person or in the presence of any child under the age of
seventeen, where there is an age difference of greater than two years between the
two persons, with the intention of arousing or gratifying the sexual desires of either
person. Lack of knowledge of the child' s age shall not be a defense. La. R. S.
In 2015, the legislature amended the title of La. R.S. 14: 42, changing it from " aggravated rape"
to " first degree rape." See 2015 La. Acts, No. 184 and 256, § 1. Louisiana Revised Statutes
14: 42( E) provides as follows:
For all purposes, " aggravated rape" and " first degree rape" mean the offense
defined by the provisions of this Section and any reference to the crime of
aggravated rape is the same as a reference to the crime of first degree rape. Any
act in violation of the provisions of this Section committed on or after August 1,
2015, shall be referred to as " first degree rape."
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14: 81( A)( 1). Indecent behavior with a juvenile also includes the transmission,
or oral communication
delivery or utterance of any textual, visual, written,
depicting lewd or lascivious conduct, text, words, or images to any person
reasonably believed to be under the age of seventeen and reasonably believed to be
at least two years younger than the offender. La. R. S. 14: 81( A)(2).
The word " lewd" means lustful or indecent and signifies that form of
immorality which relates to sexual impurity carried on in a wanton manner. It is
identified with obscenity and measured by community norms for morality. The
word " lascivious" means tending to incite lust, indecent, obscene, and tending to
deprave the morals in respect to sexual relations. Indecent behavior with juveniles
is a specific intent crime where the State must prove the defendant' s intent to
arouse or gratify his sexual desires by his actions with a child. Specific criminal
intent is that state of mind which exists when the circumstances indicate that the
offender actively desired the prescribed criminal consequences to follow his act or
failure to act La. R.S. 14: 10( 1). State v. Bedwell, 2018- 0135 ( La. App. 1st Cir.
6/ 21/ 18), 2018 WL 3080356, at * 13, writ denied, 2018- 1247 ( La. 1/ 18/ 19), 262
So. 3d 288.
At trial, Detective Lang testified that during the search of L.F.' s residence,
the police located baby oil, allegedly used by the defendant on K.S. as a lubricant,
in the bathroom on the shelf above the toilet. Regarding the " phone dump" of the
cell phone L.F. provided to the police, Deputy Flowers confirmed that
pornographic videos were downloaded and saved on the phone. However, Deputy
Flowers noted that in some instances he was unable to recover deleted information.
As detailed in the extraction report, the extraction revealed many searches for
pornographic images, videos, and websites. Deputy Flowers noted that, for
example, the user searched for " gay jail sex black and white" and viewed
homosexual prison pornography on a known pornographic website within seconds
of the viewing of a mobile weather site to check the weather forecast for Denham
Springs. He noted that it appeared that two web browsing sessions were occurring
simultaneously, indicating that the user was multitasking. Deputy Flowers also
confirmed that the earliest recovered video was downloaded and deleted on June
23, 2016.
K.S. was thirteen years old at the time of the trial. He testified that he lived
in Donaldsonville with his mom and two younger siblings. During the summer,
K.S. would routinely visit his grandmother L.F. in Denham Springs. K.S. testified
that L.F. had several siblings and that he met the defendant the summer of 2016, at
the home of one of L.F.' s ( and the defendant' s) sisters, in Dulac, Louisiana. After
K.S. met the defendant in Dulac, the defendant started coming to L.F.' s house in
Denham Springs and eventually began staying there. K.S. testified the defendant
was nice, he and the defendant got along well, and the defendant would buy K.S.
anything that he wanted. For example, K.S. testified that he wanted to attend a
Christian camp that summer but was unable to pay for it, and the defendant paid
for him to attend the camp.
K.S. further testified that at some point, the defendant " began to get just a
little too close." Specifically, K.S. noted the defendant wanted him to sit next to
him when they ate, to sleep with him on the sofa before he ( the defendant) started
sleeping in one of the bedrooms, to watch television with him, and " things like
that." K.S. found the defendant' s behavior to be odd. K.S. testified that things
became uncomfortable when the defendant asked him if he ever watched " porn."
K.S. had not seen any porn, did not know what it was, and informed the defendant
that he had not seen any before. The defendant told him that if he was interested,
he would show him that night. At nightfall, the defendant showed K.S. "[ v] ideos
of men in jail, gay sex." K.S. added, " men doing things that I wasn' t taught to —
that' s just not what I was told was right." He confirmed that he did not know at the
E
time that two men could do those kinds of things. K.S. testified that the defendant
used his grandmother' s phone to show him the videos and that the defendant did so
more than once. He noted that his grandmother had two phones, a Galaxy LG (" or
something") and a " side government phone," and that the defendant possibly used
both phones to show him pornographic videos. The defendant later started
working, acquired his own phone, and began showing K.S. videos on his phone as
well. K.S. testified that after a while, he began to feel " too uncomfortable" and
suspected that the defendant wanted that type of conduct to occur between the two
of them.
K.S. noted that things began to escalate and " sooner or later" the defendant
touched K.S.' s legs with his hands one night around 11: 00 p.m., as they were
sitting on the sofa in the living room at L.F.' s house. He noted that L.F. usually
went to sleep at 10: 00 p.m. and that everyone else in the home was either asleep or
in their room at that time. When asked what happened next, K.S. further testified,
He like —the thing started to like pop up out of his pants." He added, " I guess his
penis got hard." K.S. stated that he then began " to reject" and the defendant told
him to calm down and that this regularly happens to kids like him. He noted that
about every twenty seconds, the defendant would move his hand higher up K.S.' s
leg and eventually began touching his genitals. K.S. testified that he was
uncomfortable and scared at that point because he did not know what the defendant
was capable of. He further testified, " After a while he got it to come out of my
pants.... he began to put his mouth area on my stuff." When asked to clarify the
word " stuff," K.S. stated, " My genitals." K.S. testified that the conduct escalated
as the defendant grabbed K.S.' s hand and put it on his penis. The defendant
further retrieved baby oil from the bathroom and put some of it on K.S.' s buttocks
before penetrating him anally with his penis. K.S. testified that he did not want the
defendant to do that to him and that it felt terrible. When asked if it hurt, K.S.
10
stated, " Not exactly." He explained that while it " did hurt," he was " more
uncomfortable and scared than hurt." He noted that clear white stuff came out of
the defendant' s penis and that after a while, the defendant cleaned himself and K.S.
and told him goodnight.
When asked why he did not tell anyone what happened, K.S. testified, " That
night ... I cried in the shower and I asked God, was this normal? ... But I really
didn' t want to be alive anymore because I didn' t understand what was going on, or
why it was happening, and what I did to deserve it." K.S. further noted that while
he thought it might not happen again, it did later happen again. After the first
incident, K.S. went back home, but when his mother asked him if he wanted to go
back to his grandmother' s house, he agreed as he wanted to be with his
grandmother, though he did not want the defendant to be there. However, when he
got back to his grandmother' s house, the defendant was still there.
When asked to describe the final incident, K.S. stated that it happened at his
grandmother' s house again, but by then, the defendant had begun sleeping in one
of the bedrooms where it occurred that time on the bed. K.S. further described oral
sexual acts and anal intercourse that took place in the bedroom, with the defendant
again using baby oil on him as a lubricant. He stated, " The stuff came out of his
penis again." K.S. was further asked if the defendant tried to " get stuff to come
out" of K.S.' s penis, and K.S. replied, " He tried and I guess because I was young,
it didn' t work. I' m not sure if it did work. But, I' m sure he might' ve been angry
or something. I don' t —I' m not sure."'
6 K.S. was not specifically asked at trial to describe the second incident or to provide any
additional details regarding the third incident. However, during the recorded CAC interview,
which was shown to the jury, K.S. indicated that during the second and third incidents, he was
told to penetrate the defendant with his penis and made to perform oral sex on the defendant.
K.S. further stated that the defendant " was mad because I wasn' t hard." The interview was
conducted by Ashley Fuller, who had been a child forensic interviewer at the CAC for over three
years. As Fuller noted at trial, non -leading, non -suggestive questions, appropriate for K.S.' s
developmental age, were used during the interview. Fuller had interviewed over four hundred
children by the time of the trial.
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K.S. testified that his stepbrother was the first person who he eventually told
about the incidents. He testified that before telling his stepbrother, he tried several
times to give hints to his grandmother about the incidents, noting that he did not
want to directly tell her what was happening, but wanted her to " pick up" that it
was happening. K.S. further testified that he was very depressed and sad at the
time, had attempted suicide many times, and that he was told that no one would
believe him if he told someone and that the defendant would get into a lot of
trouble. He noted that he did not want to get the defendant into trouble since the
defendant was buying and giving him a lot of "stuff' and was " doing nothing but
good" for him.
As K.S. further testified, one day his dad and " stepmother" confronted him
about homosexual pornographic material that his grandmother discovered on her
phone. They told him that he could be honest and that they would love him no
matter what. K.S. tried to no avail to convince them that he was not gay and was
not watching the videos. He later tried to convince his grandmother of the same
when he got back to her house. K.S. testified that it really hurt his feelings as he
continued to be questioned. His stepbrother heard him while he was in the
bathroom crying and persisted until K.S. told him everything that happened to him.
K.S. testified that when his grandmother found out, she " went in defense
mode" and called him a liar. K.S. noted that he was still saddened by her disbelief
at the time of the trial. K.S. confirmed that his trial testimony and statements made
during his CAC interview were completely truthful. When asked during cross-
examination if he previously indicated that the incidents occurred once a month for
three months, K.S. testified, " I' m not sure." He clarified that he was not
specifically sure about the timeline. When specifically asked how many times
something like that happened between him and the defendant, K.S. stated, " It
happened another time, the last time before I told." When asked if he meant it
12
happened two more times, he responded, " Yeah." Similarly, during the CAC
interview, when asked how many times the acts he described occurred, K.S. stated
once a month, it happened for three months."
Regarding his summer schedule and specifically after school ended in 2016,
K.S. testified that he would usually spend two or three weeks at his grandmother' s
house, then go home for about five days, and then go back to his grandmother' s
house for another two or three weeks. He further confirmed that when he stayed at
his grandmother' s house, he either slept in his grandmother' s bed or in a recliner in
her bedroom. K.S. confirmed that he had regular access to his grandmother' s
phone and that he was allowed to play with it whenever his grandmother was not
using it.
Dr. Ellie Wetsman, a child abuse pediatrician at Children' s Hospital in New
Orleans who estimated that she had examined thousands of juvenile sex abuse
victims, performed the physical examination in this case on August 24, 2016. Dr.
Wetsman testified that during the incident history portion of the examination, K.S.
stated that his uncle had " molested" him, specifically using that word. When Dr.
Wetsman asked K.S. to describe what the molestation consisted of, K.S. stated that
his uncle placed his genitals in his butt, his uncle asked K.S. to put his genitals in
the uncle' s butt, that they put their genitals in each other' s mouth, and that his
uncle masturbated on top of his genitals. Dr. Wetsman testified that her physical
examination of K.S. did not reveal anything of significance but noted that K.S.
indicated that the incidents occurred about four or five months prior to the
examination. Dr. Wetsman diagnosed K.S. with child sexual abuse based on
statements by K.S., referred him to a counseling service, and recommended that
K.S. be protected from the alleged perpetrator during the investigation.
K.S.' s paternal grandmother, L.F. ( the defendant' s sister), also testified at
trial. L.F. confirmed that she kept K.S. " pretty much" every summer until recently
13
before the trial and stated that they were " really close." She stated that the
defendant was one of her eighteen siblings, and that she had not seen him in a long
time before discovering in 2014 that he was living at the Mission Church. L.F.
testified that she first found out about the allegations in this case on July 3, 2016.
She noted that she first saw K.S. and his siblings that summer on May 14, 2016,
when she went to their mother' s house in Donaldsonville, that she had taken
pictures of them that day, and that due to brain damage and memory loss that she
suffered in the past, she routinely took pictures and notes to assist her in recalling
every day events. She stated that she used her phone, which she noted was either a
9
Galaxy or LG, to take pictures. L.F. stated that the defendant was not with her
that day.
L.F. testified that she stayed in Donaldsonville until May 18, 2016, and that
her grandchildren spent the night at her house on May 21, 2016, along with their
mother. L.F. testified that on May 31, her grandchildren' s mother dropped her
grandchildren off, and her grandsons stayed until June 3 or 4, 2016. L.F.
confirmed that the defendant was there during that time period. She testified that
K.S. and his brother slept in her room when they stayed overnight, though K.S.
would sometimes sleep in the chair, a recliner, instead of her bed, and that the
defendant slept in the " middle room," his own bedroom. She testified that she did
not notice any unusual behavior regarding K.S. or the defendant.
L.F. testified that her grandsons stayed with her again that summer from
June 21 to June 23, 2016, the day that she brought them with her to a court matter.
Further regarding June 23, she noted that she allowed her grandsons to play with
her government phone in the car that day before taking them home to
Donaldsonville. When questioned about pornographic videos downloaded on her
phone on the afternoon of June 23, 2016, L.F. testified that she was in
9
During her testimony at trial, L.F. was allowed to refresh her memory by looking at
photographs she purportedly took that summer of 2016.
14
Donaldsonville at that time and that the defendant was not with her and was
working at the time. When she got home that day, she discovered three videos
downloaded on her phone, one consisting of " two little boys sitting in a like a
director' s chair and on the top it says learning about the gay life." She further
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testified that one of the videos was of a " black man" and a " Caucasian little boy,"
later noting, " the man was like on a counter and the little boy ... he had the little
boy' s head on his thing." Finally, L.F. testified that in the third video, the " man
was behind the little boy and the little boy was in front."
When asked what she thought when she saw the videos, L.F. contemplated
different possibilities, first mentioning K.S.' s mother' s love interest and then
stating that she thought K.S. downloaded them. She then stated, " I didn' t know
what to think," before seemingly suggesting that she suspected that K.S. was gay
because he would wear her clothes sometimes. After discovering the videos, she
showed them to K.S.' s mother on June 26, 2016, who immediately deleted them.
According to her testimony, L.F. also deleted " a couple" of videos before she left,
as she did not want K.S.' s parents to " hold that against [ her]" or prevent her from
seeing her grandchildren.
L.F. further testified that on July 3, 2016," her son ( K.S.' s father) had a
family gathering at his home in Donaldsonville, that was attended by L.F., her
grandchildren, and the defendant. According to L.F., K.S. became angry at the
gathering after L.F. questioned him about being " gay" or " a queer" in front of his
father and stepbrother and told him that the defendant was moving out because he
K.S.) was gay. L.F. stated that after the confrontation, she left for about twenty
minutes and when she returned, she learned of the allegations at issue and accused
10 When later asked if she knew the ages of the people in the video, L.F. stated, " I don' t — it' s a
boy. I know it' s a little boy and a man ... I called him little. Teenager." She further stated that
the " two little boys" in the director' s chair were probably thirteen or fourteen years old, that they
were clothed, and that they were having a discussion about it being " okay to be gay."
On re -call, Detective Lang testified that L.F. previously told the police that the family incident
occurred on July 14, 2016.
15
K.S. of lying because he was either " gay or bisexual." When asked what she did
after K.S.' s disclosure, L.F. testified, " I left. I told my brother let' s get in the car
and let' s go." She added, " I was so upset. Everybody was drinking, you know,
and I got in my car and [ the defendant] came with me." When asked who had
access to her government phone, L.F. testified, "[ K.S.' s brother], me, I let my
brother used [ sic] it when he first came which was in March ... he returned it to me
in April. April 1." She further confirmed that the defendant only had an old " flip
phone" that she did not think had video playing capabilities. Finally, L.F.
indicated that her son told her that K.S. accused his younger brother, who was
seven years old at that time, of downloading the pornographic videos.
As the trier of fact, the jury was free to accept or reject, in whole or in part,
the testimony of any witness. The fact that the record contains evidence which
conflicts with the testimony accepted by a trier of fact does not render the evidence
accepted by the trier of fact insufficient. In the absence of internal contradiction or
irreconcilable conflict with the physical evidence, one witness' s testimony, if
believed by the trier of fact, is sufficient to support a factual conclusion. Further,
the testimony of the victim alone is sufficient to prove the elements of the offense.
State v. Clouatre, 2012- 0407 ( La. App. 1st Cir. 11/ 14/ 12), 110 So. 3d 1094, 1100.
It is the fact finder who weighs the respective credibilities of the witnesses, and this
court will generally not second- guess those determinations. State v. Coleman,
2017- 1045 ( La. App. 1st Cir. 4/ 13/ 18), 249 So. 3d 872, 878, writ denied, 2018- 0830
La..2/ 18/ 19), 263 So. 3d 1155.
In this case, K.S. alleged at trial, with specificity, acts of sexual abuse
including anal and oral sexual intercourse and exposure to pornographic materials
by the defendant when he was under the age of thirteen, wholly consistent with
statements K.S. made during the CAC interview and his medical examination.
While L.F. testified that she did not believe K.S., K.S. alleged that L.F. was not
16
present in the room when the incidents occurred. Ten of twelve jurors apparently
rejected the defendant' s hypothesis of innocence that K.S. fabricated the
allegations.
We find that based on the circumstances presented, a rational trier of fact
could have found that the defendant orally and anally raped K.S., committed lewd
and lascivious acts upon the person of and in the presence of K.S. with the
intention of arousing or gratifying the sexual desires of K.S. and himself, and/or
transmitted to K.S. visual communication( s) depicting lewd or lascivious conduct
or images. The resolution of factual matters, which depends upon a determination
of the credibility of the witnesses, involves the weight of the evidence, not its
sufficiency. See State v. Lee, 2010- 2164 ( La. App. 1st Cir. 6/ 10/ 11), 2011 WL
3427144, at * 3, writ denied, 2011- 1440 ( La. 12/ 16/ 11), 76 So. 3d 1201. Viewing
the evidence in the light most favorable to the prosecution, we are convinced that a
rational trier of fact could find that the State proved beyond a reasonable doubt, and
to the exclusion of every reasonable hypothesis of innocence, all of the elements of
first degree rape and indecent behavior with a juvenile. Thus, the defendant is not
entitled to an acquittal in this case. Assignment of error number one lacks merit.
NON -UNANIMOUS JURY VERDICT
In assignment of error number two, the defendant notes that the verdicts
were non -unanimous and contends that this court should review the
constitutionality of the verdicts as patent error. The defendant contends that, under
the Sixth Amendment, the law is clear the government can only sustain a
conviction and sentence at hard labor based upon a unanimous verdict. The
defendant argues that in light of Ramos v. Louisiana, 590 U.S. , 140 S. Ct.
1390, 206 L.Ed.2d 583 ( 2020), a conviction premised on a non -unanimous jury
vote should readily constitute both a structural and patent error.
17
In the recent decision of Ramos, 140 S. Ct. at 1397, the United States
Supreme Court overruled Apodaca v. Oregon, 12 406 U.S. 404, 92 S. Ct. 1628, 32
L.Ed.2d 184 ( 1972) and held that the right to a jury trial under the Sixth
Amendment of the United States Constitution, incorporated against the States by
way of the Fourteenth Amendment of the United States Constitution, requires a
unanimous verdict to convict a defendant of a serious offense. Thus, the Ramos
Court declared non -unanimous jury verdicts for serious offenses unconstitutional.
The Ramos Court further indicated that its ruling should apply to those defendants
convicted of felonies by non -unanimous verdicts whose cases are still pending on
direct appeal. See Ramos, 140 S. Ct. at 1406; see also Griffith v. Kentucky, 479
U.S. 314, 3285 107 S. Ct. 708, 716, 93 L.Ed. 2d 649 ( 1987) (" a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in
which the new rule constitutes a `` clear break' with the past.").
Initially, we note that the defendant did not object to the verdict, nor did he
challenge the constitutionality of the verdict in the trial court below. However, for
cases pending on direct review when Ramos was decided, the Louisiana Supreme
Court has mandated that appellate courts consider the constitutionality of the
verdict on patent error review, whether or not the issue was preserved in the trial
court. State v. Curry, 2019- 01723 ( La. 6/ 3/ 20), 296 So. 3d 1030 ( per curiam);
State v. Cagler, 2018- 02015 ( La. 6/ 3/ 20), 296 So. 3d 1017 ( per curiam). Further
the jury' s verdict is part of the pleadings and proceedings that this court must
review for errors patent pursuant to La. Code Crim. P. art. 920( 2). State v. Keys,
328 So. 2d 154, 157 ( La. 1976); State v. Anderson, 2017- 0927 ( La. App. 1st Cir.
12 Oregon' s non -unanimous jury verdict provision of its state constitution was challenged in
Apodaca. Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L.Ed.2d 152 ( 1972), decided
with Apodaca, upheld Louisiana' s then -existing constitutional and statutory provisions allowing
nine -to -three jury verdicts in criminal cases.
18
4/ 6/ 18), 248 So. 3d 415, 418- 19, writ denied, 2018- 0738 ( La. 3/ 6/ 19), 266 So. 3d
901.
Secondly, we note that the State filed a brief in this court arguing that the
defendant was at fault13 in failing to timely appeal in this case and that his
convictions and sentences were final when Ramos was decided, such that the
holding in Ramos should not be retroactively applied to this case. The State relies
on this court' s decision in State v. Patterson, 572 So. 2d 1144, 1147- 48 ( La. App.
1st Cir. 1990), writ denied, 577 So. 2d 11 ( La. 1991). In Patterson, citing Griffith
v. Kentucky, the defendant asserted that his claim of racial discrimination in the
selection of the jury was governed by the standards enunciated in Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 ( 1986). 14 This court
disagreed, finding the former standard set forth in Swain v. Alabama, 380 U.S.
202, 85 S. Ct. 824, 13 L.Ed.2d 759 ( 1965), 15 which governed prior to Batson,
applicable to the defendant' s appeal in Patterson. As further detailed below, we
find that the instant case is distinguishable from Patterson.
The defendant in Patterson was convicted on April 4, 1978, was adjudged a
habitual offender, and was sentenced under La. R.S. 15: 529. 1 on September 7,
13 In arguing that it was the defendant' s fault that he lost the right to appeal, the State points to
the defendant' s counseled motion for out -of t-ime appeal ( filed in addition to his pro se
application for post -conviction relief seeking an out -of t-ime appeal), which states that one of the
defendant' s relatives informed defense counsel that private counsel would be hired to handle the
defendant' s appeal. The motion further notes that the defendant' s relatives did not in fact hire
private counsel and alleges that the trial counsel made an oral motion for appeal, though a
written motion and order for a return date were not filed. The minutes show that while the
defendant did not appear at the hearing, the trial court ruled in the defendant' s favor, granting the
motion for out -of t-ime appeal. The State now contends it is unclear as to whether the State had
notice of the hearing on the motion for out -of t-ime appeal, noting the lack of an evidentiary
hearing.
14 In Batson, the United States Supreme Court reexamined the evidentiary burden placed on a
defendant who claims that he has been denied equal protection through the State' s exercise of
peremptory challenges to exclude members of his race. The Batson Court held that a defendant
could establish a prima facie case of purposeful discrimination on evidence adduced solely from
the State' s exercise of peremptory challenges at his trial. Batson, 476 U.S. at 92- 100, 106 S. Ct.
at 1720- 25. The Batson holding was retroactively applicable to all cases pending on direct
review or not yet final at the time Batson was decided. Griffith, 479 U.S. at 328, 107 S. Ct. at
716 ( concerning the retroactive application of Batson).
15 Prior to Batson, the Swain standard placed the burden on the defendant to prove that the State
had systematically excluded black people from juries over a period of time. The Batson Court
rejected the Swain standard as a " crippling burden." Batson, 476 U.S. at 92, 106 S. Ct. at 1721.
19
1978. On May 16, 1989, more than ten years after his conviction and sentence
became final, the defendant filed a PCR application in the district court requesting
an out -of t-ime appeal, which was granted by the court on October 30, 1989, more
than eleven years after the finality of the defendant' s conviction and sentence.
Patterson, 572 So. 2d at 1148. Because the defendant in Patterson failed to file a
motion for appeal in the trial court within fifteen days after the sentence was
imposed, his conviction and sentence became final at the moment that time period
expired. 16 This court found that the defendant' s out -of t-ime appeal " does not in
any way alter the fact that the conviction and sentence became final prior to the
decision in Batson." Id. Moreover, the defendant' s 1989 appeal in that case had
not yet been filed and was, thus, not pending on direct review in 1986 when
Batson was decided. This court held, " Hence, because the instant case had
become final before the Batson decision was rendered, our review of the trial
court' s denial of defendant's motion for mistrial is governed not by the Batson
evidentiary standard but, rather, the evidentiary standard [ formerly] set forth in
Swain." Id.We note that this court' s ruling in Patterson was called into doubt by the
U.S. Fifth Circuit Court of Appeals in Cockerham v. Cain, 283 F. 3d 657, 661- 62
5th Cir. 2002). In Cockerham, the defendant filed a habeas petition, challenging
his Louisiana convictions of armed robbery, arguing ( first asserted in state court in
his third PCR application) that the reasonable doubt portion of his jury instruction
was constitutionally defective under Cage v. Louisiana, 498 U.S. 39, 111 S. Ct.
328, 112 L.Ed.2d 339 ( 1990). In addressing whether the defendant could benefit
from the ruling in Cage in the context of an out -of t-ime appeal, the Cockerham
16 Prior to amendment by 1982 La Acts, No. 143, La. Code Crim. P. art. 914 imposed a fifteen -
day requirement for filing a motion for appeal. Thus, at the time the defendant in Patterson was
sentenced, Article 914 provided a fifteen -day time delay to file an appeal.
20
court considered the Louisiana Supreme Court' s decision in State v. Fournier,
395 So. 2d 749 ( La. 1981), as follows.
The defendant in Fournier was convicted of simple burglary in 1973. Prior
to his conviction, the Louisiana Supreme Court extended the statutory presumption
of La. R.S. 15: 432 " that the person in the unexplained possession of property
recently stolen is the thief' to the crime of simple burglary. Later, however, in
State v. Searle, 339 So. 2d 1194, 1206 ( La. 1976), the Louisiana Supreme Court
held that the judicial extension of the statutory presumption to the crime of simple
burglary was unconstitutional. The defendant in Fournier failed to timely appeal
his conviction. However, after Searle was decided, he obtained an out -of t-ime
appeal. The Fournier court noted that it had previously " held that the rule of
Searle was applicable to those cases not yet final prior to that decision where
timely objection has been made." The Fournier court then held, " However, this
case is now before us as an out -of t-ime appeal and therefore defendant' s
conviction was not final prior to our decision in Searle." 17 Fournier, 395 So. 2d at
750.
As also observed by the Cockerham court, in State v. Counterman, 475
So. 2d 336 ( La. 1985), the Louisiana Supreme Court characterized an out -of time
-
appeal as a " reinstatement of [the defendant' s] right to appeal." Counterman, 475
So. 2d at 340. As the Cockerham court further noted, in State v. Boyd, 503 So. 2d
747 ( La. App. 3d Cir. 1987), the Louisiana Third Circuit Court of Appeal
concluded that based on the language in Counterman, the Louisiana Supreme
17 In Fournier, the dissenting justices disagreed with the majority' s conclusion that " an out -of -
time appeal can affect the finality of the trial court' s judgment." Fournier, 395 So. 2d at 750- 51.
Justice Chiasson' s dissent noted that the failure to timely appeal within the delay provided in La.
Code Crim. P. art. 914 rendered the judgment of the trial court final. Fournier predates the
legislature' s 1990 enactment of La. Code Crim. P. art. 930. 8, allowing a defendant to file an
application for post -conviction relief, including applications which seek an out -of t-ime appeal,
within three years of the judgment of conviction and sentence becoming final under the
provisions of Article 914 ( the time period for filing an application for post -conviction relief was
later reduced to two years by 1999 La. Acts, No. 1262, § 1). Article 930. 8, which expressly
allowed a grace period of one year to file for post -conviction relief for felons convicted before
the passage of the law, was newly enacted at the time of this court' s decision in Patterson.
21
Court " intended to treat an out -of t-ime appeal as if it had been timely filed,
especially since the trial court is not required to grant an out -of t-ime appeal."
Boyd, 503 So. 2d at 750. 18
Compelled by Fournier ( as well as Counterman and Boyd), the
Cockerham court concluded that the Louisiana Supreme Court would not consider
Cockerham' s conviction final until after his out -of t-ime appeal was resolved.
Cockerham, 283 F. 3d at 661- 62. In contrast, the Cockerham court cited State v.
Johnson, 598 So. 2d 1288, 1292 ( La. App. 4th Cir. 1992), for " refusing to apply a
state rule established before the defendant' s second out of time appeal was
resolved" and this court' s decision in Patterson, for " refusing to apply Batson v.
Kentucky ... notwithstanding that the defendant' s out[ -]of[ -]time appeal was
resolved after Batson." Cockerham, 283 F. 3d at 661.
In the instant case, the defendant was convicted on September 29, 2017, and
sentenced on November 27, 2017. The defendant did not file a motion to
reconsider sentence and failed to seek an appeal within thirty days of being
sentenced. Thus, the defendant' s convictions and sentences became final on
December 28, 2017. See La. Code Crim. P. art. 914. However, the defendant
timely filed a pro se PCR application in the trial court requesting an out -of t-ime
appeal on October 10, 2018, and the appeal was granted by the court on October
15, 2018. See La. Code Crim. P. art. 930. 8( A). The subsequent counseled motion
for out -of time
- appeal was granted on December 6, 2018. After repeatedly
extending the return date, the defendant' s appeal was lodged in this court on
October 23, 2019. Unlike the defendant in Patterson, who sought to apply the
18 In Boyd, the defendant sought to apply the ruling of State v. Jackson, 480 So. 2d 263 ( La.
1985), which, as expressed therein, applied to " all cases which are still subject to direct review
by this Court, that is, convictions which have not become final upon first appellate review."
Jackson, 480 So. 2d at 268- 69. Holding that the defendant was entitled to relief under Jackson,
the Third Circuit Court of Appeal stated, " as this appeal is treated as timely filed and since this is
the first appellate review of defendant' s conviction, Jackson, supra, applies." Boyd, 503 So. 2d
at 750.
22
decision in Batson that was rendered well before his appeal was filed and decided,
the defendant' s appeal herein was filed and was still pending on direct review in
this court when Ramos was decided. Thus, we are bound to apply Ramos to the
defendant' s pending appeal. See Ramos, 140 S. Ct. at 1406; Griffith, 479 U.S. at
328, 107 S. Ct. at 716; State v. Varnado, 2020- 00356 ( La. 6/ 3/ 20), 296 So. 3d 1051per curiam) (" The present matter was pending on direct review when Ramos v.
Louisiana was decided, and therefore the holding of Ramos applies ... Nothing
herein should be construed as a determination as to whether that ruling will apply
retroactively on state collateral review to those convictions and sentences that were
final when Ramos was decided.").
Herein, as noted, after the trial court granted the defendant' s motion to sever
as to count three, the defendant proceeded to a trial by jury on counts one and two.
The oral polling of the jury, recorded in the minutes, reveals that ten of the twelve
jurors concurred to render the verdicts of guilty as charged on both counts.
Pursuant to the decision in Ramos, the non -unanimous jury verdicts in this case
are unconstitutional and constitute patent error on the face of the record.
Accordingly, the defendant' s convictions and sentences on counts one and two are
set aside, and the case is remanded for a new trial on counts one and two. Finding
no reversible patent error with respect to count three, we affirm the defendant' s
conviction and sentence on that count, to which the defendant pled no contest and
does not challenge on appeal.
CONVICTIONS AND SENTENCES ON COUNTS ONE AND TWO
SET ASIDE; CONVICTION AND SENTENCE ON COUNT THREE
AFFIRMED; REMANDED WITH INSTRUCTIONS.
23