State v. Horton

380 So.3d 841

55,468 (La.App. 2 Cir. 2/28/24)

STATE of Louisiana, Appellee

v.Roosevelt HORTON, Appellant

No. 55,468-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered February 28, 2024

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 379,571, Honorable Donald Edgar Hathaway, Jr., Judge

JOHN D. & ERIC G. JOHNSON LAW FIRM, LLC, By: Eric G. Johnson, Minden, Eric Matthew Whitehead, Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, REBECCA ARMAND EDWARDS, JASON WAYNE WALTMAN, Assistant District Attorneys, Counsel for Appellee

Before PITMAN, STONE, and ROBINSON, JJ.

STONE, J.

₁This criminal appeal arises from the First Judicial District Court, the Honorable Donald E. Hathaway presiding. A unanimous jury returned a responsive verdict and found the appellant-defendant, Roosevelt Horton ("defendant"), guilty of attempted aggravated rape in violation of La. R.S. 14:27 and La. R.S. 14:42(A)(4), for which he received a sentence of 50 years at hard labor without benefit of parole.

The defendant now appeals, asserting three assignments of error: (1) whether the testimony of K.M.2 and K.M.3 was properly admitted pursuant to La. C.E. art. 412.2 as lustful disposition evidence; (2) the evidence introduced at trial was insufficient to prove that he was guilty of attempted aggravated rape; and (3) his sentence is excessive. For the reasons stated herein, we affirm the defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On October 10, 2020, the Shreveport Police Department was dispatched to a residence regarding a sexual assault. Upon arrival, responding officers spoke with Lasonia Ashley ("Ashley"), who stated that her daughter, K.M. (DOB: 04/19/04), attempted to commit suicide by taking muscle relaxers and over 40 Tylenol pills. Ashley told officers that she had a conversation with Olu Ogunyemi ("Ogunyemi"), a friend of K.M., who told her that K.M. said that her uncle had raped her when she was 6 years old and that this may be the reason for her suicide attempt. After talking with K.M. at the hospital about the rape, Ashley discovered that the defendant was the uncle to whom Ogunyemi was referring. At this time, responding officers contacted the sex crimes detectives, who then began an investigation. A couple of weeks later, the sex crime detectives set up ₂Gingerbread House interviews for K.M. and her two sisters, K.M.2 (DOB: 12/07/07) and K.M.3 (DOB: 12/21/06).

On October 22, 2020, K.M., K.M.2, and K.M.3 were all interviewed at the Gingerbread House. During K.M.’s interview, she revealed that when she was 6 years old, the defendant picked her up from school, and they went back to his house. K.M. stated that she remembered being sleepy and that she had fallen asleep in her father’s old room. K.M. explained that she had woken up in pain and found the defendant on top of her, "having intercourse" with her. She recalled the defendant punching her in the face when she tried to get him off of her. K.M. then stated that when it was over, the defendant pulled up his pants and said, "If you tell anybody, I am going to kill you and that person." K.M. further explained that her "Nana," the defendant’s wife, had bathed her that night and noticed that she was bleeding from her vagina. K.M. remembered her Nana and the defendant fighting and her Nana coming back into the bathroom telling her to "never tell anyone, and they had to keep it in the family." K.M. stated that she kept this secret for 10 years because she was scared of how her family would react. In her interview, K.M.2 explained that when she was 6 years old, she sat on the defendant’s lap and felt what she now knows to be an erection. K.M.2 also recalled being 7 years old when she saw the defendant looking at her while she undressed to take a bath. During her interview, K.M.3 told the interviewer that when she was 12 years old, she saw the defendant smelling her dirty underwear. K.M. further explained that when she was in kindergarten or pre-kindergarten, the defendant watched her as she undressed to bathe as well.

₃Following the Gingerbread House interviews, detectives met with the defendant. The defendant maintained his innocence and explained that he had no idea why K.M. would say that he had touched her sexually. On January 27, 2021, the defendant was indicted for aggravated rape of a minor child based on the alleged offense committed against K.M.

Prior to trial, the State of Louisiana filed a notice of intent to use the statements of K.M.2 and K.M.3 to indicate a lustful disposition toward children pursuant to La. C.E. art. 412.2. A hearing on the matter was held on August 5, 2022, and the defendant objected to the evidence. The defendant argued that if introduced at trial, the probative value of their testimony would not outweigh the prejudicial effect. The trial court overruled the objection.

K.M., K.M.2, and K.M.3 testified at trial consistently with their Gingerbread House interviews. The defendant testified that he did not rape K.M. but admitted that K.M. and her sisters visited his home and often took baths there. The defendant also testified that he could not "say for sure" whether or not K.M.2 sat on his lap but subsequently denied it being the way K.M.2 portrayed it in her testimony and Gingerbread house interview.

On August 10, 2022, a unanimous jury returned a responsive verdict of guilty of attempted aggravated rape; and on August 16, 2022, the defendant filed a presentence memorandum. The following day, the trial court sentenced the defendant to serve the maximum penalty, 50 years at hard labor. The defendant filed a motion to reconsider sentence, but it was denied without a hearing. This appeal followed.

₄DISCUSSION

Evidence under La. C.E. art. 412.2

[1] In his first assignment of error, the defendant contends that the trial court abused its discretion in admitting evidence that indicates a lustful disposition toward children. The defendant argues that the testimony of K.M.2 and K.M.3 should have been excluded because its prejudicial effect substantially outweighed any probative value. Specifically, the defendant argues that the use of this evidence made him appear to be a "monster," "deviant," and a "filthy pedophile" before any evidence of the underlying offense was presented to the jury.

[2, 3] Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him as a "bad person." La. C.E. art. 404(B)(1); State v. Jacobs, 99-0991 (La. 5/15/01), 803 So. 2d 933; State v. Dale, 50,195 (La. App. 2 Cir. 11/18/15), 180 So. 3d 528, writ denied, 15-2291 (La. 4/4/16), 190 So. 3d 1203. This rule of exclusion stems from the "substantial risk of grave prejudice to the defendant" from the introduction of evidence regarding his unrelated criminal acts. State v. Jacobs, supra; State v. Prieur, 277 So. 2d 126 (La. 1973). However, La. C.E. art. 412.2 creates an exception to the rule of La. C.E. art. 404(B)(1). State v. Layton, 14-1910 (La. 3/17/15), 168 So. 3d 358; State v. Dale, supra. La. C.E. art. 412.2 provides, in pertinent part:

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused’s commission of another crime, wrong, or actinvolving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant.

[4–8] ₅The admissibility of evidence under La. C.E. art. 412.2 depends on whether its probative value substantially outweighs the danger of unfair prejudice, confusion of issues, misleading the jury, or by considerations of undue delay or waste of time. La. G.E. art. 403; State v. Dale, supra. "As used in the balancing test, … [t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged." State v. Ard, 20-221 (La. App. 5 Cir. 4/28/21), 347 So. 3d 1046. La. G.E. art. 412.2 does not limit the admissibility of prior acts only to those identical or similar in nature. State v. Wright, 11-0141 (La. 12/6/11), 79 So. 3d 309; State v. Johnson, 50,005 (La. App. 2 Cir. 8/12/15), 175 So. 3d 442, writ denied, 15-1687 (La. 9/16/16), 206 So 3d. 203. A trial court’s ruling on the admissibility of such evidence will not be overturned absent an abuse of discretion. State v. Wright, supra; State v. Dale, supra. Even if an appellate court finds that the trial court abused its discretion in admitting evidence under La. G.E. art. 412.2, the issue is subject to harmless error review. State v. Garcia, 09-1578 (La. 11/16/12), 108 So. 3d 1; State v. Dale, supra.

In this case, both K.M.2 and K.M.3. testified that the defendant watched them as they undressed to take a bath. K.M.2 explained to the jury that she remembers sitting on the defendant’s lap and feeling what she now knows to be an erection. In her Gingerbread House interview, K.M.3. recalled the defendant smelling her dirty underwear as a child and watching her bathe as well. This record supports a finding that the testimony of K.M.2 and K.M.3 was highly probative in establishing the defendant’s ₆lustful disposition toward children, particularly K.M. and her sisters. The acts described by K.M.2 and K.M.3 are of lesser seriousness than the offense with which the defendant is charged and have independent relevance to the case. The evidence shows the familial relationship between the sisters and the defendant and that they viewed the defendant as a grandparent. The evidence also shows that they were all of similar ages at the time of the acts they described and...