Van Nortrick v. Hooper

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ROY VAN NORTRICK #708819 v. TIM HOOPER

Civil Action No. 21-cv-3848

United States District Court, W.D. Louisiana, Shreveport Division

September 7, 2023

S MAURICE HICKS, JR. JUDGE

REPORT AND RECOMMENDATION

Mark L. Hornsby, U.S. Magistrate Judge.

Introduction

A unanimous Caddo Parish jury convicted Roy Arlen Van Nortrick (“Petitioner”) of two counts of molestation of a juvenile. He was sentenced to two consecutive 45-year sentences, with the first 25 years of each sentence to be served without benefits. The convictions and sentences were affirmed on appeal. State v. Van Nortrick, 244 So.3d 810 (La.App. 2d Cir. 2018), writ denied, 256 So.3d 284 (La.), cert. denied, 139 S.Ct. 1185 (2019). Petitioner filed a post-conviction application in state court, and all claims were denied. He now seeks federal habeas corpus relief on the grounds that (1) the evidence was insufficient to support his convictions, (2) the trial court improperly admitted an involuntary statement that Petitioner gave police, and (3) he received ineffective assistance of trial counsel. For the reasons that follow, it is recommended that the petition be denied.

Relevant Facts

Sisters J.M. and R.M. went to live with their aunt, Shelly Clark after a serious auto accident that resulted in their mother's incarceration. J.M., the older sister, suffered a fractured skull and traumatic brain injury in the accident. She kept a journal as part of her memory rehabilitation. Ms. Clark testified that she was told to read the journal for accuracy, which led to her seeing entries by J.M. about improper activities by Petitioner with both girls. Ms. Clark spoke with the girls, who confirmed the descriptions in the journal. Ms. Clark promptly reported the matter to law enforcement.

Alex Person was a forensic interviewer at the Gingerbread House, a local children's advocacy organization that often provides interviewers of sexually abused children. Ms. Person testified that she interviewed the girls separately, using non-leading questions, to gather information. Person identified video recordings of the interviews, which were played for the jury.

The girls' father, P.M., testified that his household included his wife, his son, and his daughters. He said that Petitioner and Petitioner's young son also lived in the home during 2009 and 2010. P.M. worked two jobs at the time, and his wife was hospitalized during some of the time Petitioner lived with them. P.M. testified that Petitioner exercised control or supervision over both R.M. and J.M. at various times. P.M. was not aware of the sexual abuse of his daughters, but he suspected that Petitioner was having a sexual affair with his wife.

J.M. was 13 at the time of her Gingerbread House interview. She later testified at trial that she recalled the interview, which was then played in open court.^[1] In the video, J.M. stated that Petitioner “put his finger in me” and “tried to put his you know what in me.” She also said that Petitioner “tried to put his you know what in my butt” and wanted her to “touch his you know what,” but she refused. J.M. used anatomical drawings to mark the body parts she described. J.M. said that she witnessed Petitioner putting his finger in RM.'s “tee tee” and tried to put his penis in R.M.'s “tee tee” and anus. J.M. said that she believed Petitioner was having sex with her mother when he lived with them. J.M. testified at trial that what she said in the interview actually happened.

J.M. said in the Gingerbread House interview that another man who lived with the family, earlier and at another location, also abused her and had a sexual relationship with her mother. She was able to recall and separately describe the acts of abuse committed by the two men. She conceded on cross-examination that at the time she wrote her journal entries about the abuse she was having difficulty with long-term and short-term memory and having visions and hearing voices. This was related to the car accident that shattered her skull, required nine surgeries, and left her partially blind.

R.M. was 11 at the time of her Gingerbread House interview. A video recording of her interview was played at trial. In the video, R.M. said that Petitioner forced her and her sister to get in the shower with him. She said that Petitioner forced her to put her mouth on his “toy” or “thing,” and he put his finger in her “toy.” She said that he also touched her “toy” with his tongue while he made her put her mouth on his “thing.” She said that Petitioner put his “toy” in her mouth, vagina, and anus.

R.M. testified at trial that she told the truth during her interview. She said that the incidents occurred more than five times. She was asked about notes that she took before the interview, and she said that she intended to bring the notes to the interview in case she forgot something, but she left them in her aunt's purse. Part of the defense theory was that the girls made up the claims because they were angry that Petitioner left Louisiana and took his son, who was their cousin. R.M. stated on cross-examination that she was upset when Petitioner left Louisiana because she missed his son. She also admitted that she “probably” contacted Petitioner on social media and asked him to bring her cousin back to Louisiana.

Detective Jared Marshall, a youth services detective with the Caddo sheriff, testified that he spoke with Ms. Clark after the abuse was reported. He said that at the time the girls were molested by Petitioner, approximately 2009-2010, J.M. would have been nine or ten, and R.M. would have been seven or eight.

Petitioner was arrested in Michigan and transported to Shreveport, where Detective Marshall interviewed him. Petitioner signed forms indicating his understanding and waiver of his Miranda rights. The recorded interview, in which Marshall's partner also participated near the end, lasted more than three hours. Petitioner described some of his family history, which he said included his stepfather, who raised him from an early age, being convicted of molesting Petitioner's two younger stepbrothers. He said the man also molested him and a sister.

Petitioner described the living arrangements in the home and admitted to having sex with the girls' mother. At first, he denied molesting the girls, but details of molestation came out during the course of the interview. He talked about the youngest girl getting in bed with him and saying that they were married. He eventually allowed that the girls would try to get in the shower with him, and he would slap them on their bare behinds to get them to leave. He said that there was once a time when he was on Percocet for a tooth problem, and he would awaken in bed with the girls with him, but he did not recall doing anything with them. Petitioner referred several times to being diabetic and having other health problems, and he suggested that he may have done things while blacked out and that perhaps he thought the girls were their mother. He also suggested that the mother may have drugged his coffee at times, causing memory loss of hours of time.

Petitioner eventually admitted that he had touched J.M.'s vagina, had anal sex with J.M., and that she performed oral sex on him. He admitted to performing oral sex on R.M. and said that R.M. touched his penis with her hand. He said that the girls witnessed each other's abuse and that he achieved an orgasm as a result of some the acts. He said that his diabetes prevented him from ejaculating, which was consistent with statements from the victims. He generally portrayed the girls as the sexual aggressors, but he admitted to engaging in various sexual acts with them.

Petitioner testified at trial as the only witness for the defense. He denied touching either of the girls or acting inappropriately with them. He explained his statement to police by saying that he was diabetic and did not receive any of his prescribed insulin on the day of the statement. He said that this caused him to suffer from “high sugar” and that he had no memory of his arrival in Shreveport or his statement to the police that evening. During cross-examination, Petitioner said that he did not remember doing any of the abusive acts that he described in his statement, but he said that he did occasionally supervise the girls when he lived with them. He claimed that the girls' accusations were motivated by him taking his son, their cousin, with him when he left Louisiana.

Sufficiency of the Evidence

Petitioner was charged with molestation of a juvenile which, in 2009 and 2010 when the acts took place, La. R.S. 14:81.2 defined as:

A. Molestation of a juvenile is the commission by anyone over the age of seventeen 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 by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile's age shall not be a defense.

Petitioner's principal argument is that the State did not prove that he accomplished the acts “by the use of influence by virtue of a position of control or supervision over the juvenile.”

Petitioner also argues that the girls were not credible because they stumbled with some answers on cross-examination, admitted to having notes prepared for their interviews, and J.M. was affected by her traumatic brain injury and memory problems.

In evaluating the sufficiency of evidence to support a conviction “the relevant question...