State v. Burciaga

376 So.3d 1159

23-13 (La.App. 5 Cir. 11/29/23)

STATE of Louisiana

v.Gilbert J. BURCIAGA

NO. 23-KA-13

Court of Appeal of Louisiana, Fifth Circuit.

November 29, 2023

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 21-412, DIVISION "I", HONORABLE NANCY A. MILLER, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Monique D. Nolan

COUNSEL FOR DEFENDANT/APPELLANT, GILBERT J. BURCIAGA, Holli A. Herrle-Castillo

Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Scott U. Schlegel

MOLAISON, J.

₁The defendant, Gilbert J. Burciaga, has appealed his conviction of sexual battery of a child under the age of thirteen, in violation of La. R.S. 14:43.1. For the following reasons, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On March 16, 2021, the Jefferson Parish District Attorney filed a. bill of information charging the defendant with sexual battery of a known juvenile (DOB 09/03/2011) under the age of thirteen in violation of La. R.S. 14:43.1.¹ After pleading not guilty at his arraignment, the defendant filed a motion to sever, which was denied.

On April 7, 2022, at the conclusion of a two-day trial, a twelve-person jury unanimously found the defendant guilty as charged. On April 25, 2022, the defendant was sentenced to hard labor for sixty-five years without the benefit of parole, probation, or suspension of sentence. The court also ordered the defendant to register as a sex offender for the rest of his life.

On July 22, 2022, the defendant stipulated to being a second-felony offender, and he was re-sentenced to serve sixty-five years at hard labor without benefit of parole, probation, or suspension of sentence. This timely appeal followed.

FACTS

The testimony at trial indicates that on December 6, 2020, the Westwego Police Department received a call stating that A.H., a juvenile, had reported being sexually assaulted by the defendant, who was married to her maternal ₂grandmother.² The report was made by the juvenile’s mother, I.H., and the juvenile’s paternal grandfather, Ivory Jenkins.

Stacey Jenkins, who is married to Ivory Jenkins,³ testified that on December 6, 2020, she was at home with Mr. Jenkins and A.H, when A.H. told Ms. Jenkins that "Pawpaw Gilbert" touches her. Ms. Jenkins elaborated that A.H. told her, "He comes by me and he pulls my underwear down, or he’ll pull his pants down and try to put his private parts in my mouth or in my underwear." Ms. Jenkins said she asked A.H. if it was one time or more than one time, and she responded, "It’s every time Mawmaw Tabitha goes to work at night." A.H. stated the last time this occurred was in August.

Ms. Jenkins knows the defendant as "Pawpaw Gilbert," and she identified him in open court. Ms. Jenkins explained that "Mawmaw Tabitha" was the defendant’s wife, and A.H.’s other grandmother. The defendant and Mrs. Burciaga lived together in Westwego, which is where A.H. said the abuse occurred. Ms. Jenkins confirmed that Ms. Burciaga is now deceased.

A.H. also told Ms. Jenkins that "David," another person in the household, was also touching her. Ms. Jenkins did not know someone named David. After A.H. told her about the abuse, Ms. Jenkins told her husband and asked him to talk to A.H.

I.H., the mother of A.H., testified that in December 2020, A.H. was eight years old. I.H. identified her deceased mother as Tabitha Burciaga, who was married to the defendant. I.H. testified that A.H. often spent time at the Burciaga home, which had three bedrooms. I.H.’s brothers and sisters also lived in the ₃home. I.H. had lived in the defendant’s home for a couple of months from 2019 to 2020.

Aubrey Ziegler, who is employed by the Gretna Police Department and assigned as a forensic interviewer to the Children’s Advocacy Center (CAC), testified that her job is to conduct-evidence-gathering, non-leading, non-suggested interviews with children who have alleged abuse or neglect or who witness a violent crime. On December 15, 2020, she interviewed A.H. The interview was recorded, admitted into evidence, and published to the jury.

A.H., who was ten years old on the date of her testimony, testified that Mr. and Ms. Jenkins are her grandparents. Ms. Burciaga was her "mawmaw," and was married to the defendant, whom she identified in open court. A.H. said she spent time with both sets of her grandparents on the weekends. A.H. testified that on December 6, 2020, she told Ms. Jenkins that she was touched on "her private and her behind." She described her "private" as "the place [she] use[s] the bathroom." She said the defendant touched her more than once when she was seven or eight years old. She also said that the defendant would make her touch his "privates" every time Ms. Burciaga would leave the house. She said that one of the times the defendant touched her, she and the defendant were the only two people in the house. A.H. elaborated that the defendant followed her in a room and "he pulled his pants down and he put his private in [hers]… He moved [her] shorts aside and put his private in [hers]." She remembered that an episode of "Sam and Kat" was playing on the TV, she was wearing shorts, and "white spit" came out of his private. She also described an incident when her little sister was in the room, and she said, "One time he - - he went under the cover and he pulled my pants down and he licked my private." She described another event that happened in Selena Jenkins’ room. She said, "Another time he - - when mawmaw was leaving, he pulled down his pants and he grabbed my hand and he made me touch his ₄private… He made my hand go up and down." A.H. said that the defendant also tried to put his private in her mouth, and she closed her mouth, but he tried to open it. A.H. further described the incident when "Sam and Kat" was on the TV. She said, "When he put his private in my private, he pulled my shirt down and he put his mouth on my nipples." When asked if the defendant did anything else to her body, she said, "I don’t know." She said she felt scared when this was happening to her.

On cross-examination, A.H. testified that she had not told any of her uncles or aunts what happened before she told Ms. Jenkins. A.H. did not know the dates the incidents happened with the defendant, but she knew they happened before she told Ms. Jenkins about them.

Anne Troy, Ph.D., an advanced practice nurse practitioner, who was accepted as an expert in child abuse and child pediatrics, testified that she examined A.H. on February 6, 2021 and rendered a report. She diagnosed A.H. with "child sexual abuse, chronic, two perpetrators." The State published one of the pages from A.H.’s medical records, which Dr. Troy described as a drawing where A.H. identified the body parts, and A.H. drew defendant’s "front private." When asked how many instances of sexual abuse A.H. reported, Dr. Troy recited her summary which reflected that A.H. reported there were multiple times of abuse by the defendant, where he made her touch his penis. A.H. described the defendant’s ejaculation "like spit" that the defendant wiped it off with his shirt. A.H. stated that the defendant licked her nipples and her "front private and that he put his front private in her."

Dr. Troy testified that it is very common for victims to delay reporting sexual abuse. Dr. Troy explained that children never give all the details about sexual abuse immediately because children go through a process of disclosure in ₅which they say one thing to gauge the reaction, and if they feel safe and no one is screaming at them, children will tell more.

After the State rested, the defendant took the stand. He testified that he had been addicted to heroin "off and on" since he was nineteen years old and that he had been clean for approximately five years. The defendant denied touching A.H., stating that he had "suspicions" of why she would make those allegations. He explained that he was close friends with Mr. Jenkins when Mr. Jenkins was married to Ms. Burciaga. After the defendant married Ms. Burciaga, he no longer spoke to Mr. Jenkins. The defendant expounded that two days before the abuse allegations were made, Mr. Jenkins and I.H. came to his house, where they were drinking, smoking, and "chilling" for a few hours. During the visit, the defendant found out that Mr. Jenkins was having problems with his wife, leading the defendant to think that Mr. Jenkins was "trying to get back with Tabitha."

The defendant denied ever being alone with A.H. in his apartment, testifying "… because at the time it was COVID, so there was nowhere to go. I always had a house full of people so never, never alone." The defendant said that from August to October of 2020, he had a "clear head" because he was no longer on heroin. He lived with his wife, his son, Emmanuel Burciaga, and three of his wife’s kids, Quincy, Sylvester, and Selena Jenkins. The kids were from the ages of sixteen to nineteen, and all of them were always present in his home because they were not going to school. When I.H. dropped off her children, his wife or Selena Jenkins would be responsible for watching them, and he was never solely responsible for their care.

Pastor Ander Pellerano, senior pastor at One Accord Ministries, testified that after his treatment for heroin addiction, he started his own ministry. He explained that he mostly saw the defendant when they were younger because they were in and out of jail. Pastor Pellerano said that after he started his ministry, he invited ₆the defendant to church. The defendant had completed treatment for heroin addiction, and had become a respected member of his church.

Emmanuel Burciaga, the defendant’s son, testified that he lived in Westwego with the defendant, Ms. Burciaga, Selena, Quincy, and Sylvester Jenkins for about a year and a half in 2019 or 2020. Mr. Burciaga said Sylvester and Selena had their...