State v. HannonState v. Hannon
The defendant, Walter Hannon (“Hannon“), was convicted by a jury of attempted forcible rape and attempted oral sexual battery. He was sentenced and found to be a habitual offender. His original sentence was vacated and he was re-sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The latter sentence was ordered to be served without benefits. The defendant now appeals. For the reasons that follow, we affirm his convictions, but we vacate his sentences, and remand the matter for further proceedings consistent with this court‘s opinion.
FACTS
On or about November 2, 2000, the victim, T.W.1, a 13-year-old male, encountered the defendant on his way to a playground near the victim‘s home. The defendant raced and “slap boxed” with the victim, and told the victim his name was Walter Hannon. The next day, the victim was playing in his front yаrd area at 1903 Samuel Drive in Monroe when he was grabbed by the defendant, who covered his mouth and arms and dragged him down the street. The defendant then took the victim “the back way” to an uninhabited structure located on Samuel Drive and opened the door with a key. The victim, who weighed about 105 pounds and was approximately 5‘5” tall, was taken to a dark room by the defendant. The victim was alone in the room with the defendant. Some Vaseline and a towel were already in the room. The defendant performed oral sex on the victim. The defendant then put Vaseline on his own private parts and forced the victim to have anal intercourse. The defendant told the victim that he would kill him if he told anyone. The defendant then took the Vaseline and tоwel with him and left.
The victim went home and told his grandmother, who called the police. The victim went in a car with some family members to look for the defendant. They encountered the defendant when he came out of a house near the corner where he and the victim had raced the day before. David Banks, who was the boyfriend of the victim‘s aunt and one of the persons riding with the victim, got out of the car and asked the defendant for a cigarette while the aunt tried to get the attention of a nearby law enforcement officer, but the defendant “took off running.”
In the early morning hours after the crimes, the victim was taken to St. Francis Medical Center where a rape examination was performed and physical evidence was removed from thе victim‘s body. The examining physician, Dr. Robert Carey, observed bruising around the victim‘s rectum, anus and a mucosal tear of the victim‘s anus which could have been caused by penile penetration. The victim told the examining physician that the defendant performed oral sex on his body and anally penetrated him. Among the other information the physician noted in the history that he took from the victim was that the victim said the defendant kissed his neck. A couple of days later, the victim was shown a photographic lineup by police. The victim selected the defendant‘s picture. The victim also gave a recorded statement to police.
At trial, the examining nurse and physician testified regarding the results of the victim‘s physical examination and the collection of the physical evidence contained in the rape kit. Investigating officers testified regarding the investigation of the crime and the collection and chain of evidence. The state presented evidence that the defendant was born on July 23, 1967, and that the victim was born on September 3, 1987.
Linda Armstrong of the North Louisiana Crime Lab, an expert in DNA analysis, testified that she analyzed the DNA suspected reference samples obtained from the defendant and compared them to DNA samples obtained from the raрe kit performed on the victim. Armstrong determined that the sperm fraction from the victim‘s anal swab was consistent with the DNA profile she obtained from the reference sample of the defendant. Specifically, Armstrong calculated that the probability of finding the same DNA profile if the DNA had come from an African American other than the defendant was approximately оne in fourteen point seven trillion. Armstrong‘s conclusions and calculations were confirmed at trial by Dr. Pat Wojtkiewicz, another expert in DNA analysis and statistical data.
The state also presented the trial testimony of Earnest Gary Hamilton, Sr., the owner of West Ouachita Painting Company, who employed the defendant at the time of the crimes, and who saw him working on Samuel Drive on thе date of the crimes. Hamilton testified that the defendant had worked on the apartments on either side of 1938 Samuel Drive and had access to a master key. He related that the unit located at 1938 Samuel Drive had been burned and was unlocked. Hamilton‘s payroll records, confirming the defendant‘s employment on the date of the crimes, were introduced at trial. Also, Tijuana Thompson, who was employed by the Monroe Housing Authority, testified that the defendant was receiving payments for work being done on Samuel Drive at the time the crimes were committed.
The defense presented the testimony of Theresa Wilson, an alibi witness. Wilson was living with the defendant at the time of the crime and is the mother of his child. She testified that the defendant was at her residence on the evening of the crimes from a little after five o‘clock until about eleven or twelve o‘clock. On cross-examination, Wilson acknowledged that she had feelings for the defendant. She also acknowledged that she never told the authorities that the defendant was with her until just before trial. The defense also presented the testimony of two witnesses who were also present to corroborate her story.
On August 22, 2002, the dеfendant was found to be a multiple offender. His original sentence was vacated and he was sentenced to serve 32 years at hard labor for attempted forcible rape and 7 years hard labor for attempted oral sexual battery. The sentences were ordered to be served concurrently to one another, but consecutively with any sentence the defendant was serving for his parole violation. The sentence for attempted forcible rape was ordered to be served without benefit of parole, probation or suspension of sentence. The defendant‘s timely filed motions to reconsider sentence were denied. This appeal followed.
DISCUSSION
Insufficiency of the Evidence
Although the record does not reflect that defendant filed a motion for post-verdict judgment of acquittal pursuant to
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Hunter, 33,066 (La.App.2d Cir.9/27/00), 768 So.2d 687, writs denied, 2000-3070 (La.10/26/01), 799 So.2d 1150, 2001-2087 (La.4/19/02), 813 So.2d 424.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Ponsell, 33,543 (La. App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.
In cases involving a defendant‘s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008 (on rehearing), writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.
However, this court‘s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact.
A. 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 under any one or more of the following circumstances:
(1) Whеn 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.
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A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
To support a conviction for attempted forcible rape, the state must prove that defendant had the specific intent to commit forcible rape and that he did an act for thе purpose of, and tending directly toward, the accomplishing of his objective.
A. Oral sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender when the other person has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.
B. Lack of knowledge of the victim‘s age shall not be a defense.
The defendant argues that the victim was the only witness to the crimes, and his testimony was varied and unreliable. Particularly, the defendant alleges that the victim‘s trial testimony was inconsistent with his statement to the investigating police regarding both the address of the house in which the crimes were committed (1930 Samuel Drive or 1938 Samuel Drive) and whether the house had been burned. The defendant also noted other alleged inconsistencies in victim‘s account of the events surrounding his attack.
The defendant argues that the state did not present sufficient evidence of the crime of attempted forcible rape. Specifically, the defendant contends that the victim presented no testimony that he was prevented from resisting the аct by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. The defendant notes the victim‘s testimony regarding encountering a man who asked for a cigarette while he was being dragged down the street and questions why this man did not ask why the victim was being dragged. Regarding the DNA evidence, the defendant argues that the sperm sample could have been transferred without contact between the two persons—via a towel, lubricant or sheet. Finally, the defendant argues that he presented credible evidence through alibi witnesses that he was at his girlfriend‘s home at the time the crimes were committed.
Nonetheless, the record supports the conclusion that the evidence, viewed in the light most favorable to the prosecution, was sufficient for any rational trier of fact to have found the essential elements of both crimes proven beyond a reasonable doubt. Jackson v. Virginia, supra. The testimony of this victim alone was sufficient to convict the defendant. State v. Ponsell, supra. Also, State v. Rives, supra; State v. Thomas, supra; State v. Free, supra; State v. Standifer, supra.
The victim positively identified the defendant as the perpetrator of both offenses both in court and during a photographic lineup. Regarding the charged offense of forcible rape, the victim further testified that the defendant forced him to engage in anal sexual intercourse, and he was prevented from resisting by threats of death under circumstances in which he reasonably believed that such resistance would not have prevented the rape. See
Habitual Offender Proceedings
At the conclusion of the habitual offender proceedings, the defendant was re-sentenced to enhanced sentences for both convictions. The defendant argues, and the state concedes, that both of the defendant‘s sentences should not have been enhanced since both crimes arose out of a single transaction.
In State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), the supreme court held that a defendant who was convicted on one day for three counts of armed robbery arising out of one criminal episode could not be adjudicated a habitual offender and sentenced as such on all three convictions. Also see State v. McCurtis, 2001-0814 (La.11/2/01), 800 So.2d 862, 863. Also, State ex rel. Berry v. State, 96-0367 (La.5/16/97), 693 So.2d 787, held that: (1) multiple convictions obtained on one day for offenses arising out of one criminal episode should be considered one conviction for purposes of applying the habitual offender law in sentencing, and (2) a defendant convicted on one day for three counts of armed robbery arising out of one criminal episode could not be adjudicated a habitual offender and sentenced as such on all three convictions. The habitual offender bill should have designated which conviction was to have the enhanced sentence, and the trial court should enhance only one conviction. Thus, the defendant‘s sentences are vacated and the matter is remanded for further procеedings consistent with this court‘s opinion.
Excessive Sentence
Since the state has conceded that both convictions should not have been enhanced, and the record and the law supports this concession, we remand for re-sentencing.
CONCLUSION
For the foregoing reasons, we affirm the defendant‘s convictions, but we vacate the sentences and remand the matter for further proceedings consistent with this court‘s opinion.