215 So. 3d 951
La. Ct. App.2017Background
- Defendant Brandon Moore, charged with forcible rape of a minor (La. R.S. 14:42.1), was tried before a jury and convicted of the responsive verdict of attempted forcible rape; sentenced to 15 years at hard labor with first year without benefits. Conviction affirmed; remanded for resentencing to correct benefit-period error.
- Victim H.J., a teenager who viewed Defendant as a father figure, described multiple incidents of sexual contact (digital, oral-to-breast, attempted and slight penile penetration, threats to cause self-harm) occurring before and after Hurricane Isaac while living at two locations. Forensic interview and CAC medical interview corroborated detailed disclosures; medical exam was normal but positive for gonorrhea.
- At trial, H.J. and a friend K.W. testified about other abusive acts; the State introduced H.J.’s CAC recorded interview and sought admission of other-crimes evidence under La. C.E. art. 412.2; the trial court admitted the notices and the CAC video (defense did not object at publication).
- Defendant denied abuse, testified at trial, and admitted on a jail call apologizing but said apology was for being incarcerated and not for sexual acts.
- Post-conviction/out-of-time appeal was granted; appellate assignments included sufficiency of evidence, admissibility of other-crimes evidence, late disclosure (alleged Brady material regarding STD of third party), reliance on alleged Orleans Parish crimes, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for attempted forcible rape | State: H.J.’s trial testimony and CAC interview provided sufficient proof of slight penile penetration and force; specific intent can be inferred | Moore: Force was minimal; stopped when victim resisted; at most sexual battery; insufficient to prove attempted forcible rape | Affirmed: Viewed in light most favorable to prosecution, jury reasonably found specific intent and at least slight penetration/force to support attempted forcible rape (Jackson standard) |
| Admissibility of other-crimes evidence (La. C.E. art. 412.2) | State: Evidence of other sexually assaultive acts and lustful disposition toward children was probative and admissible; some acts were res gestae | Moore: Other-crimes evidence was highly prejudicial hearsay, introduced to show bad character and violated due process | Affirmed: Trial court did not abuse discretion; H.J.’s references to acts in Orleans Parish were integral/contextual and K.W.’s testimony fit art. 412.2; defense waived some objections by failing to object at trial |
| Late disclosure / Brady claim re: third party STD (N.R.) | Moore (pro se): State failed to timely disclose that N.R. contracted an STI from H.J., which was favorable and material impeachment/exculpatory evidence | State: No Brady issue preserved at trial; timing and materiality not shown | Not addressed on merits: Claim not preserved for appellate review; Brady challenges should be raised in trial court/new-trial motion for fact development |
| Ineffective assistance of counsel | Moore (pro se): Trial counsel failed to seek continuance/mistrial to obtain medical records, failed to preserve objections, and inadequately investigated/asked jury instructions | State: Record shows strategic decisions, no specific showing of prejudice or deficient performance | Denied on direct appeal: Record insufficient to show deficient performance or prejudice under Strickland; claim better raised in post-conviction if facts warrant |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for appellate review of sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- Brady v. Maryland, 373 U.S. 83 (prosecutor’s duty to disclose exculpatory/impeachment evidence)
- State v. Carter, 888 So.2d 928 (La. App. finding sufficient force where victim was overpowered and penetration occurred)
- State v. Alexander, 119 So.3d 120 (victim testimony alone can support sexual offense conviction; defendant may be guilty of attempt even if victim repels force)
- State v. Dixon, 982 So.2d 146 (victim testimony sufficient even absent medical evidence)