STATE OF LOUISIANA VERSUS ANDREW JEROME FRANCIS
NO. 2019 KA 1392
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
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
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Jane L. Beebe Addis, Louisiana Counsel for Defendant/Appellant Andrew Jerome Francis
Scott M. Perrilloux District Attorney Brett Sommer Assistant District Attorney Livingston, Louisiana Counsel for Appellee State of Louisiana
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BEFORE: McCLENDON, HIGGINBOTHAM, AND THERIOT, JJ.
The defendant, Andrew Jerome Francis, was charged by grand jury indictment with first degree rape, a violation of
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 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.3 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
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.”4 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. 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 brothers5 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
A conviction based on insufficient evidence cannot stand as it violates Due Process. See
Under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), 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,
Lack of knowledge of the victim‘s age shall not be a defense.
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.
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
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
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 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
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.”8
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,
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 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.‘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 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 Galaxy or LG, to take pictures.9 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 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 testified that one of the videos was of a “black man” and a “Caucasian little boy,”10 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
L.F. further testified that on July 3, 2016,11 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 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 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
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.
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, 328, 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
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
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-time appeal, the Cockerham 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
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
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-time 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
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
CONVICTIONS AND SENTENCES ON COUNTS ONE AND TWO SET ASIDE; CONVICTION AND SENTENCE ON COUNT THREE AFFIRMED; REMANDED WITH INSTRUCTIONS.
Notes
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.”