1 ^Defendant, Ricky Bruce, Jr., appeals from his conviction of aggravated rape. For the reasons that follow, we affirm defendant’s convictions and sentences.
PROCEDURAL HISTORY
On August 22, 2011, a St. Charles Parish Grand Jury indicted defendant with aggravated rape in violation of La. R.S. 14:42 (count one) and aggravated burglary in violation of La. R.S. 14:60 (count two). Defendant was arraigned and pled not guilty to both charges.
Defendant’s motion to suppress statement was denied on October 29, 2013, to which the defense objected. Following a two-day jury trial, on January 16, 2014, a twelve-person jury returned a verdict of guilty as charged on both counts. Defendant’s motions for post-verdict judgment of acquittal and new trial were denied on April 29, 2014. On June 25, 2014, defendant was sentenced on count one to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On count two, defendant was sentenced to twenty years imprisonment at hard labor, to be served concurrently with the sentence on count hone. Defendant’s motion to reconsider sentence was denied on July 28, 2014 and this timely appeal followed.
FACTS
At approximately 11:00 a.m. on July 10, 2011, after ending an eight-month relationship with defendant a few days earlier, C.G.,
In an effort to calm defendant down, the victim asked him to sit on the sofa so they could talk. Defendant replied: “I don’t want to talk. We’re going to f* *k.” He then pushed the victim’s head towards his groin and unzipped his pants, forcing a portion of his penis into the victim’s mouth. The victim implored him to stop, complaining that he was hurting her. Defendant forced her into the kitchen, placed his hands around her neck, and told her, “I could kill you right now, but that would be too easy.” In her sustained effort to calm defendant down, the victim asked him to join her outside for a cigarette. He agreed. At trial, the victim explained she |4thought she would be able to get somebody’s attention while outside. However, she was unable to do so. Nor was she able to flee since the yard was fenced in and the gate padlocked. So the victim continued to try to calm defendant who was pacing back and forth. They eventually returned back inside and sat on the sofa. There, the victim attempted to direct the conversation to the topic of defendant’s children. Defendant replied: “We’re going to f* *k.”
In response, the victim proposed that defendant proceed upstairs and rest in her bedroom. Defendant agreed, but once there, he pulled off the victim’s underwear and shorts and began performing oral sex on the victim, to which she told him repeatedly, “Please stop. You’re hurting me.” He then penetrated the victim’s vagina with his penis. In an attempt to extricate herself from the situation, the victim retreated into her bathroom, but defendant soon followed. He propped her up on the countertop and again penetrated her vagina with his penis. She repeated: “You’re hurting me, you’re hurting me. Please stop, please stop.” Defendant eventually stopped and soon fell asleep in the victim’s bed. The victim grabbed her keys and fled the house in her car. It was approximately 12:30 or 1:00 p.m. She made her way to the house of a Mend, Laurie Fisher, who resided two streets away on St. Nicholas Street.
Ms. Fisher testified that after receiving a telephone call from C.G. on July 10, 2011 during which C.G. was crying and very upset, C.G. arrived at her house. According to Ms. Fisher, C.G. was shaking, “very hysterical,” had swollen, red eyes, and was having difficulty speaking. While there, C.G. called the police. At approximately 3:29 p.m,, the St. Charles Parish Sheriffs Office received the 9-1-1 call from the victim, in which she stated that defendant had forced his way into her apartment, pushed her, hit her, and told her that he would kill her if she called the police. This 9-1-1 call did not include an allegation of rape.
| ^Deputy Terry Dabney of the St. Charles Parish Sheriffs Office responded to C.G.’s apartment. Along with other officers, Deputy Dabney entered the apartment to find defendant sleeping in the upstairs bedroom, where he was placed under arrest.
Detective Pitchford testified regarding the medical report prepared in connection with C.G.’s hospital visit. According to the detective, the report does not indicate any injuries to the victim’s head and notes that C.G. denied suffering any trauma to her head. The detective also did not observe any injuries to her head or face. The medical report further notes no perianal vaginal tears, bruises, abrasions, or lacerations. Similarly, Ms. Fisher testified that she did not observe any marks- on C.G.’s throat despite being told that defendant had placed his hands around the victim’s neck.
Detective Pitchford first made contact with defendant while in custody at the correctional center, where he obtained a statement from him. At 7:50 p.m. on July 10, 2011, with an advice of rights form, defendant was advised of his Miranda rights, indicated he understood them, waived them, and gave a statement. The 1 ^statement commenced at 7:52 p.m. and concluded at 8:14 p.m. In the statement, defendant explained that he had been taking bath salts all weekend. He stated that he had last used them around 3:00 or 4:00 a.m. on July 10, 2011. At the time of his statement, approximately sixteen hours later, Detective Pitchford observed that defendant “seemed normal.” Defendant admitted to forcing his way into the victim’s apartment, shoving her to the ground, arguing with her, and insulting her with obscenities. He avowed that he engaged in nothing but consensual sexual intercourse with her.
Kristen Dieeedue, an acquaintance of defendant, testified that defendant arrived at her home around 6:00 a.m. on July 10, 2011 and that he appeared sober. They talked, Ms. Dieeedue served him a meal, and then dropped him off at his mother’s house around 8:30 a.m.
Craig Dempster, a friend of defendant since high school, testified that he called C.G. around 11:00 a.m. on July 10, 2011. C.G. informed Mr. Dempster that defendant was at her house at the time, hung up, and continued conversing via text messages. Mr. Dempster testified that he did not perceive anything from his commúnication with C.G. that morning which indicated she was fearful of defendant.
Defendant took the stand and testified that on the morning of July 10, 2011 he was walking from his mother’s house to a girlfriend’s house when he passed the victim’s home. As their relationship had recently soured when C.G. told defendant that she had been seeing another man, defendant took this opportunity to confront C.G. and perhaps catch her with this man. Defendant explained that as C.G. opened her front door, he pushed it open, knocking her to the ground. He denied striking her and stated that as he helped her up, she was “screaming at the top of her lungs.” Defendant responded by calling her names and blaming her for the ^termination of their relationship. He denied placing his hands on her and explained that they both eventually calmed
DISCUSSION
On appeal, defendant raises two assignments of error: (1) the trial court erred in denying the motion for post-verdict judgment of acquittal because the evidence was insufficient to support the guilty verdict of aggravated rape; and (2) the trial court erred in denying defendant’s motion to suppress statement.
The question of sufficiency of the evidence is properly raised in the trial court by a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821. State v. Bazley,
In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia,
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 Iscredibility calls, evidence weighing, and inference drawing. State v. Caffrey, OS-717 (La.App. 5 Cir. 5/12/09),
In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. Caffrey, supra. Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See State v. Bailey,
In the instant case, defendant argues that the evidence was insufficient to sup
Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed ... [w]hen the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
La. R.S. 14:42.1(A)(1).
The Louisiana Supreme Court has held that the legal definition of aggravated rape under La. R.S. 14:42(A)(2) is “virtually identical” to that of forcible rape. State v. Parish,
The Supreme Court has concluded:
It was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime and the degree of force employed.
Parish, 405 So.2d at 1087.
Consequently, on appeal, we are asked to consider whether any reasonable trier of fact, viewing all of the evidence in the light most favorable to the prosecution, could find beyond a reasonable doubt that defendant committed the acts required by both the aggravated and forcible rape statutes and that the degree of force employed warranted punishment in the greater, rather than lesser, degree. See Parish, supra.
In the instant case, C.G. testified that defendant penetrated her vagina with his penis over her protestations after he had forced his way into her house in a rage, pushed her to the floor, screamed obscenities at her, promised to torture her, choked her, and threatened to kill her if she attempted to seek help. Defendant offered a different version of events in which the sexual intercourse was consensual.
This assignment of error is without merit.
In defendant’s second assignment of error, he argues that the trial court erred in denying his motion to suppress his recorded statement.
'Prior to trial, on October 15, 2013, defendant filed a motion to suppress his statement. This motion was heard on October 29, 2013. At this hearing, Detective Pitchford testified that he first encountered defendant on the evening of July 10, 2011 while defendant was in custody at the Nelson Coleman Correctional Center. When the detective arrived, he “handed [defendant] a notebook and ink pen and asked him to write what occurred that day.” Defendant wrote down an outline of the day’s events in which he stated that he “pushed [his] way through” the victim’s front door and called her “all kinds of degrading names.” He stated that he and the victim engaged in consensual sexual intercourse. Thereafter, Detective Pitch-ford advised defendant of his Miranda
112Trial courts are vested with great discretion when ruling on a motion to suppress. State v. Smith, 11-638 (La.App. 5 Cir. 3/13/12),
Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived his Miranda rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. Smith,
On appeal, defendant argues that the trial court erred in admitting his recorded statement because “the illegality of the written statement served to undermine the voluntariness of the subsequently obtained recorded statement.” In support of this argument, defendant relies on the United States Supreme Court case, Missouri v. Seibert,
The present case is distinguishable from Seibert. In Seibert, the interrogating officer admitted at the suppression hearing that it was a “conscious decision” to offer a midstream recitation of warnings. Whereas, in the instant case, there was no such admission from Detective Pitchford nor any indication that he deliberately employed this two-step interrogation technique. This is a dispositive distinction.
Seibert is a plurality decision. The U.S. Supreme Court has held regarding such decisions: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....’” Marks v. United States,
Based on this, the jurisprudence holds that “Seibert requires the suppression of a post-warning statement only where a deliberate two-step strategy is used and no curative measures are taken....” Courtney,
|1KAlthough we find that the trial court did not err in admitting defendant’s recorded statement pursuant to the standard in Seibert, we choose to note our agreement with Justice O’Connor’s critique in her dissent that it is the rare case where an interrogating officer will admit to deliberately employing the unconstitutional two-step interrogation technique. See Seibert,
This assignment of error is without merit.
ERRORS PATENT
The record was reviewed for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux,
DECREE
For the foregoing reasons, defendant’s convictions and sentences are affirmed.
AFFIRMED.
Notes
. The victim's initials, as well as the initials of the victim’s family members, are used under the authority of La. R.S. 46:1844(W)(3), which permits the Court to identify a crime victim who is a minor, or a victim of a sex offense, by using his or her initials.
. Miranda v. Arizona,