WHIPPLE, J.
The defendant, Ralph Greg Robertson, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42.
Nineteen-year-old A.E.,
Payton drove to Alton, just outside of Slidell, to the home of someone he knew who might have marijuana. Payton pulled in the person's driveway and everyone got out of the car except A.E. Payton knocked on the door, realized no one was home, then got back into the car with A.E. As the others stood outside the car, Payton put on a condom and had sex with A.E. When Payton was finished, he got out of the car, and the defendant and Troy got in the car. A.E. performed oral sex on both of them. The defendant and Troy then got out of the car, and Ross and Cooper got in the car. According to Ross's trial testimony, Cooper had sex with A.E. while A.E. performed oral sex on Ross. Everyone then returned to the car and Payton drove to the trailer of Josh Reed, another person Payton thought might have marijuana.
Reed and someone named "Johnny" were in the trailer. Troy did not go in the trailer, but walked home from there. The defendant and the three others from the car took A.E. inside the trailer. A.E. testified that she was brought to a back bedroom and that, over the next few hours, they all took turns raping her. She gave verbal resistance, but no physical resistance because she feared for her life. At one point, Reed showed A.E. a loaded gun and forced her to perform oral sex on him. Payton and Ross left the trailer and drove to a store to purchase cigars. The defendant testified at trial that, while they were at the store, A.E. asked the defendant where the bathroom was. The defendant took A.E. to the bathroom. After she finished using the bathroom, the defendant asked her, "Can I hit?" According to the defendant, A.E. said "yes" and the defendant put on a condom and proceeded to have sex with A.E. on the bathroom counter. Only moments later, "Johnny" came in the bathroom with his penis out. The defendant then stopped having sex with A.E. The defendant took off his condom, discarded it, and left the bathroom. A.E. testified that when she walked in the bathroom, the defendant followed her in there. As she was washing her hands, she saw the defendant put on a condom. She asked, "Are you serious?" The defendant then proceeded to rape her vaginally over the sink. When Payton and Ross returned from the store, they made "blunts" with the cigars (tobacco removed and replaced with marijuana), and smoked marijuana. Finally, after repeated requests by A.E. to use a phone, they allowed her to call Mary. Payton told Mary they would drop off A.E. at a gas station on Brownswitch Road in Slidell. They brought A.E. to a Kangaroo gas station and left her there. A.E. went inside the store, told the person working there that she was raped, and used the phone to call Mary and 911. An ambulance picked up A.E. from the gas station, and she was taken to Slidell Memorial Hospital. The defendant was arrested a short time later.
The defendant testified at trial that he did not rape A.E. He stated that A.E. was willing to have sex with him, that she agreed to perform oral sex on him in the car when he asked her to, and that she agreed to have sex with him in the bathroom when he asked her to.
In his first assignment of error, the defendant argues the evidence was insufficient to support the simple rape conviction. Specifically, the defendant contends that A.E. had not been drinking or taking drugs prior to any sexual intercourse. Therefore, the State did not prove that A.E. was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent.
A conviction based on insufficient evidence cannot stand as it violates Due Process.
Louisiana Revised Statute 14:41 states, in pertinent part:
Louisiana Revised Statute 14:43(A) defines simple rape, in pertinent part, as:
While not denying he had sexual intercourse with A.E., the defendant asserts in his brief that the evidence was insufficient to prove that A.E. was incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent. According to the defendant, A.E.'s own testimony established that she did not smoke marijuana that night, and that she had only one shot of alcohol before she went to Bourbon Street with her friends. A.E. did, however, testify that she had smoked marijuana earlier in the day. A.E. testified on direct examination that when she met the defendant and his friends, she was not intoxicated at that point. When asked if she were feeling the effects of the alcohol or marijuana from earlier, she replied, "No." The defendant also points out that A.E. testified that she did not smoke marijuana when she was at Reed's trailer. The defendant also asserts that the jury rejected convictions for aggravated rape and forcible rape because there was no evidence that the sexual acts with him were not consensual. According to the defendant, A.E. never said "no" to him regarding sex and she never told him to stop.
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Thus, the record shows there was some drinking and drug use throughout the day. There was trial testimony showing that A.E. had some degree of impairment and intoxication at the time these crimes occurred, despite her testimony at trial that she was not impaired. The jury could have concluded that A.E. was being completely forthright in her testimony about what she drank and smoked that night; or the jury could have reasonably concluded that, while A.E., in her own mind, felt that she was not intoxicated, she was, in fact, intoxicated.
The jury heard the testimony and viewed the evidence presented to it at trial and found the defendant guilty. There was proof sufficient to establish, beyond a reasonable doubt, that the defendant did not have consensual sex with A.E., and that because of A.E.'s intoxicated condition, she could not effectively resist the defendant's advances. Moreover, we recognize that the simple rape conviction may have reflected a compromise verdict, which is a legislatively approved responsive verdict that jurors, for whatever reason, deem to be fair as long as the evidence is sufficient to sustain a conviction for the charged offense.
In the instant matter, the evidence was clearly sufficient to support the conviction of the charged offense of aggravated rape. Aggravated rape includes a rape where the oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed when two or more offenders participated in the act. LSA-R.S. 14:42(A)(5). At least five people, including the defendant, raped A.E. repeatedly throughout the night. It is clear from the record that the defendant and his friends took turns raping A.E. in the car, and then later at Reed's trailer. As the evidence shows, the defendant and the others overpowered A.E. for several hours, during which they subjected her to various sexual abuses. The record is replete with instances of protest and resistance by A.E., and non-consensual sexual acts. At the very outset of A.E.'s meeting with the defendant and the others, A.E. told them she did not want to go with them in the car. A.E. testified that when she opened the car door to get out, they closed it and locked it, and drove off. She stated that at this point, she felt terror and dread. The defendant, himself, testified that A.E. did not want to go with them. He stated she said she did not want to go and wanted to be with her friends. But Payton told A.E., "No, we gonna have fun; we just chilling." A.E. testified that when Payton raped her in the driveway in Alton (the first rape), she realized that resistance was not going to prevent the rape:
A.E. testified that after Payton ejaculated, another guy got in the car and forced her to give him oral sex. A.E. did not identify this person, but according to the defendant's testimony, it was he and "Troy" who got in the car after Payton and had A.E. perform oral sex on both of them. The defendant also admitted that when Cooper was having sex with A.E. in the car, the defendant heard A.E. tell Cooper that she did not want to have sex with him. A.E. testified that when she was taken to Reed's trailer, it was in a rural area, she had no idea where she was, and therefore, running was not an option. A.E. then provided the following testimony:
Ross testified that when he got back to the trailer after buying cigars, they smoked marijuana. Reed stood up and told A.E. to come with him, and she got up and followed him into the bedroom. Payton and Cooper then went into the bedroom, also. According to Ross's testimony, at this point, the defendant told Ross that while Ross was gone, A.E. did not want to have sex with Reed, but that Reed had a gun.
The evidence shows that the defendant had sexual intercourse with A.E. without her lawful consent and, moreover, that the defendant knew that others, while the defendant was always nearby, were having sexual intercourse with A.E. without her lawful consent. Accordingly, since the evidence was sufficient to sustain a conviction for the charged offense of aggravated rape, the compromise verdict of simple rape was proper.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt.
Moreover, the fact that the record contains some evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient.
After a thorough review of the record, we find that the evidence supports the jury's verdict. We are convinced that viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of simple rape.
This assignment of error is without merit.
In his second assignment of error, the defendant argues the trial court erred in denying, as inadmissible, evidence that defense counsel sought to introduce to attack A.E.'s credibility. Specifically, the defendant contends that the trial court should have allowed a story written by A.E. and posted on the internet to be admitted into evidence because in it, she described herself as a compulsive liar.
On cross-examination at trial, A.E. was asked, "Was there one room that you were perhaps sitting at not doing sexual things, and another room that you went into where sexual things happened?" A.E. responded:
After the State called its last witness, but prior to resting, defense counsel, opined that A.E. lied on the stand about the bottle incident (only) because A.E. had not mentioned the incident before in any of her prior statements or prior trial testimony. Thus, defense counsel sought to introduce into evidence a story written by A.E. entitled "I Was A Liar" that appeared on A.E.'s personal blog site. Defense counsel explained to the trial court that she had found A.E.'s story only the night before, and one of the prosecutors informed the trial court that he had just received a copy of the story "five minutes ago." Defense counsel argued to the trial court that A.E. said in her own words on a public forum "that she's a compulsive liar." Thus, according to defense counsel, the story was "exceptionally relevant for impeachment purposes."
At this point, and outside of the presence of the jury, the trial court conducted a hearing on the defendant's motion in limine to determine the admissibility of A.E.'s story. Upon being recalled to the stand, A.E. testified that she had a Facebook page, which linked to her personal blogspot. A.E. had written several entries on her blog, including "I Was A Liar" by A.E., dated May 16, 2011. When defense counsel noted that her stories were written in the first person and "portrayed to the public as you're writing about yourself," A.E. responded, "They're fictional pieces. I write satire. I'm creative, and I like to make people laugh, and sometimes I've got to stretch the truth or [sic] write stories. That's what I do. I create things to make people laugh." In "I Was A Liar," defense counsel suggested that A.E. discussed her "history as a child of being a compulsive liar and creating fictitious stories." A.E. agreed that she did write the story, which was about a child with a vivid imagination. On cross-examination, the following exchange between the prosecutor and A.E. took place:
At the conclusion of A.E.'s testimony, the trial court asked for argument and for defense counsel to point to the specific Louisiana Code of Evidence article that would permit the admissibility of the story from A.E.'s blog. Defense counsel argued that Article 608 refers to truthfulness or untruthfulness and that A.E. made a new statement about a bottle being inserted into her vagina. According to the defense, this testimony by A.E. affected "her character for truthfulness or untruthfulness where she has specifically [written] something saying that she is untruthful." Defense counsel asserted that the story was necessary for the jury to evaluate whether A.E. was being credible in her testimony.
Louisiana Code of Evidence article 608 provides, in pertinent part:
The trial court noted that under LSA-C.E. art. 608, credibility is challenged as to general reputation in the community and not by particular acts or conduct. The trial court found that A.E.'s story was a particular course of conduct and, further, that A.E. testified that the story was a fictional account. Accordingly, the trial court found A.E.'s story to be inadmissible evidence.
The defendant argues in his brief that there is nothing in A.E.'s writing to indicate it was fictitious. Although A.E. testified at the hearing on the motion in limine that her story was fictional, this should have been an issue for the jury to decide. The defendant argues that the exclusion of the evidence affected his right to confront and cross-examine A.E. effectively, and that the trial court committed reversible error.
It is well-settled that questions concerning the admissibility of evidence should be resolved by the trial court and not the jury. LSA-C.E. art. 104(A).
We find no reason to disturb the trial court's ruling that A.E.'s story was inadmissible. In finding the story was in part inadmissible because it was fictional, the trial court implicitly found that the evidence was irrelevant.
Defense counsel had ample opportunity to, and in fact did, effectively cross-examine A.E. We note, as well, that instead of attempting to attack her credibility about the bottle incident, seeking to introduce into evidence a story by A.E. describing her conduct as a child to satisfy the relevancy requirement, defense counsel could have sought to introduce A.E.'s previous trial transcript wherein, according to defense counsel, the bottle incident was not mentioned. However, the defense failed to do so.
Based on the foregoing, we find that A.E.'s story had no evidentiary value and, as such, was irrelevant. The trial court did not abuse its discretion in ruling the evidence inadmissible.
This assignment of error also lacks merit.
For the above reasons, the defendant's conviction and sentence are hereby affirmed.
