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Date: 11-10-2017

Case Style:

STATE OF LOUISIANA VERSUS CLIFTON RAYE

Harvey man convicted of raping girl over 2-year period, faces life in prison 22

Case Number: 17-KA-136

Judge: Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Paul D. Connick, Jr.
Terry M. Boudreaux
Juliet L. Clark

Defendant's Attorney:

Jane L. Beebe

Description: A Jefferson Parish Grand Jury returned a true bill of indictment on
September 26, 2013, charging defendant, Clifton Raye, with two counts of
aggravated rape of a victim under the age of thirteen years,1 in violation of La. R.S.
14:42 (counts one and two); one count of sexual battery upon a juvenile under the
age of thirteen years, in violation of La. R.S. 14:43.1 (count three); one count of
sexual battery upon a juvenile under the age of fifteen years, in violation of La.
R.S. 14:43.1 (count four); and one count of oral sexual battery upon a juvenile
under the age of fifteen years, in violation of La. R.S. 14:43.3 (count five).2 After
pleading not guilty at his arraignment, defendant eventually waived his right to a
jury trial and was found guilty on all counts following a bench trial on March 1,
2016. On March 10, 2016, for both count one and count two, the trial court
sentenced defendant to life imprisonment at hard labor. The trial court further
sentenced defendant on that date to 25 years imprisonment at hard labor on count
three, and ten years imprisonment at hard labor on each of counts four and five.
All sentences were ordered to run concurrently, and without benefit of probation,
parole, or suspension of sentence.

1 Count one was alleged to have involved oral sexual intercourse, and count two was alleged to have involved penile-vaginal and/or penile-anal sexual intercourse. 2 Counts one, two, and three were alleged to have been committed on or between July 6, 2010 and July 5, 2012, and counts four and five were alleged to have been committed on or between July 6, 2012 and March 26, 2013. The date of birth of the victim as alleged in the indictment and established at trial was July 6, 1999.


17-KA-136 2
Defendant thereafter filed a Uniform Application For Post-Conviction Relief
seeking an out of time appeal, which was granted on December 20, 2016. The
instant appeal follows.
FACTS
At trial, the victim, C.R.,3 testified that when she was eleven or twelve years
old, the defendant, her biological father, forced her to begin a sexual relationship
with him. More than once a week, when her mother was at work, defendant would
bring C.R. into his bedroom, lock the door, and make her perform oral sex on him.
C.R. described several incidents at her home where defendant penetrated her
vagina with his penis, massaged her breasts, performed oral sex on her, and
digitally penetrated her anus. C.R. also testified that, on one occasion, defendant
attempted to restrain her with a belt while he attempted to have anal sex with her,
but she broke free.
C.R. stated that she did not report the abuse because she was scared and did
not want to get her father into trouble. C.R. testified that she denied that any abuse
had taken place when she was first asked about it by her step-sisters, but later
disclosed what had happened to her after her stepsister, S.D., told her about a
similar personal experience she had previously with defendant.4
S.W., C.R.’s step-sister, testified that, in late March or early April of 2013,
she lived with C.R., defendant, and her mother in Jefferson Parish. She recalled
that, during that time, one afternoon she arrived home and saw C.R.’s school bag,
but could not find C.R. S.W. knocked on defendant’s bedroom door, which was
locked. S.W. knocked on the door to hand defendant a telephone. A short time
later, defendant and C.R. both exited the bedroom.5 S.W. testified that, in another

3 Testimony established C.R.’s birthdate as July 6, 1999, and she was 16 at the time of trial. To preserve the confidentiality of the minor victim’s identity in this case, the victim, the victim’s family members, and other related witnesses will be referred to by their initials, pursuant to La. R.S. 46:1844(W). 4 S.D. testified at trial that defendant had sexually abused her. 5 C.R. testified that during this incident, defendant had forced her to perform oral sex on him.


17-KA-136 3
incident, she woke up in the early morning hours to use the restroom and saw
defendant in C.R.’s bed. Because she suspected that something inappropriate may
have been happening between defendant and C.R., S.W. called her sister S.D. to
discuss her concerns. S.W. and S.D. decided to discuss the suspicions at their
grandparents’ home in Lafayette during the upcoming Easter holiday.
Several days later, while in Lafayette, C.R. was asked by S.W. and S.D.
about the suspected sexual abuse by defendant. C.R. initially denied any abuse, but
eventually disclosed to S.W. and S.D. that defendant had performed oral sex on her
and that she had performed oral sex on defendant. This information was relayed to
C.R.’s mother, E.R., who confronted defendant with the allegations. Defendant
denied having any sexual contact with C.R.
Tracey Jackson, an investigator for the Department of Children and Family
Services (DCFS), testified that she was notified of C.R.’s complaint against
defendant on April 9, 2013, and she interviewed C.R. on April 10, 2013. During
the interview, C.R. told Ms. Jackson that defendant had sexually abused her
numerous times over the preceding two-year period, specifically that defendant had
“fondle[d] her,” “touch[ed] her chest,” “touched her vaginal area” penetrating her
with his fingers as well as his penis, penetrated her anus with his fingers,
performed oral sex on her, and that she performed oral sex on defendant. Ms.
Jackson relayed this information to the Jefferson Parish Sheriff’s Office (JPSO)
following the interview with C.R.
Detective Ronald Raye, of the JPSO Personal Violence Unit, testified that he
went to C.R.’s home6 and brought her to Children’s Hospital for a physical
examination. Detective Raye prepared defendant’s arrest warrant after speaking to

6 JPSO Deputy Brent Baldassaro testified that he was the first officer to respond to C.R.’s home after the complaint was made. At that time, Deputy Baldassaro determined that the JPSO Personal Violence Unit needed to be notified.


17-KA-136 4
Ms. Jackson, watching C.R.’s interview at the Children’s Advocacy Center and
reviewing C.R.’s hospital records.
Ann Troy testified that she is a forensic nurse practitioner who works with
child victims of sexual abuse at the Audrey Hepburn Care Center in New Orleans.
Ms. Troy recounted that she interviewed C.R. on April 27, 2013, and C.R.
recounted a “detailed history of sexual abuse” by defendant over a two-year period
that included oral sex, vaginal and anal penetration with his penis, and forcing C.R.
to masturbate him. Ms. Troy found C.R.’s statements to be consistent with the way
in which children disclose sexual abuse. She further noted that the physical
findings from her examination of C.R. were normal. However, Ms. Troy testified
that it is not uncommon for a child with a history of vaginal penetration to present
with normal physical findings. Ms. Troy further explained that delayed reporting
is very common amongst children who have been sexually abused as they tend to
blame themselves for what has happened to them.
The trial judge was shown the video of an interview between former forensic
interviewer, Erika Dupepe, and C.R., which took place in April of 20137 at the
Children’s Advocacy Center in Jefferson Parish. During that interview, C.R.
described defendant’s sexual abuse of her in detail. C.R. stated that, at age 11,
defendant would go to her bedroom while she was sleeping and touch her chest
and buttocks. Defendant also touched her “privates” and made her touch his
“privates” while her mother was at work or asleep. Beginning at age 12, defendant
vaginally penetrated C.R. with his penis twice, and digitally penetrated her anus
three times. C.R. described one incident when defendant forced her to perform oral
sex on him. She was 12 at the time and in seventh grade. Defendant forced C.R. to

7 The exact date of the interview is not clear from the record. Prior to when the tape was shown to the trial judge, Ms. Dupepe testified as to the general procedure of making a recorded interview with a victim at the Children’s Advocacy Center. At the conclusion of the video, Ms. Dupepe testified that the video was an accurate representation of the interview that she conducted with C.R.


17-KA-136 5
perform oral sex on him on more than one occasion. The last incident of sexual
abuse took place in March of 2013, when defendant forced C.R. to masturbate him
and perform oral sex on him. During that particular time, C.R.’s sister knocked on
the defendant’s bedroom door to give him the phone, and defendant told C.R. to
hide in his bathroom.
Defendant testified at trial and denied that any sexual contact had taken
place between himself and C.R. He further testified that he believed the
accusations against him were made out of anger by C.R. and S.W.
LAW AND ANALYSIS
In his sole assignment of error, defendant argues the evidence was
insufficient to support his convictions based only on C.R.’s testimony, during
which she did not provide dates that the alleged sexual abuse took place.
Conversely, the State asserts that the evidence is constitutionally sufficient to
support the verdicts rendered by the jury.
In reviewing the sufficiency of the evidence, an appellate court must
determine that the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979); State v. Neal, 00-0674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied,
535 U.S. 940, 122 S. Ct. 1323, 152 L. Ed. 2d 231 (2002). The requirement that the
evidence be viewed in the light most favorable to the prosecution requires the
reviewing court to defer to the actual trier of fact's rational credibility calls,
evidence weighing, and inference drawing. State v. Caffrey, 08-717 (La. App. 5
Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297.
The reviewing court is not permitted to decide whether it believes a witness or
whether the conviction is contrary to the weight of the evidence. Id.


17-KA-136 6
Under the Jackson standard, a review of a criminal conviction record for
sufficiency of the evidence does not require the reviewing court to determine
whether the evidence at the trial established guilt beyond a reasonable doubt, but
whether, upon review of the whole record, any rational trier of fact could have
found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La. App. 5 Cir.
4/15/08), 985 So.2d 234, 240. In making this determination, it is not the function of
the appellate court to re-evaluate the credibility of witnesses or to re-weigh the
evidence. Caffrey, supra. Rather, the resolution of conflicting testimony rests
solely with the trier of fact, who may accept or reject, in whole or in part, the
testimony of any witness. State v. Bailey, 04-85 (La. App. 5 Cir. 5/26/04), 875
So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So. 2d 476, cert. denied,
546 U.S. 981, 126 S. Ct. 554, 163 L. Ed. 2d 468 (2005). Thus, in the absence of
internal contradiction or irreconcilable conflicts with physical evidence, the
testimony of one witness, if believed by the trier of fact, is sufficient to support a
conviction. State v. Dixon, 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153,
writ denied, 08-0987 (La. 1/30/09), 999 So.2d 745.
In this case, defendant was convicted of two counts of aggravated rape of a
victim under the age of thirteen years (one count having involved oral sexual
intercourse and the second count having involved penile-vaginal and/or penile-anal
sexual intercourse), violations of La. R.S. 14:42(A)(4),8 one count of sexual battery
upon a victim under the age of thirteen years and one count of sexual battery upon
a known juvenile under fifteen years of age, violations of La. R.S. 14:43.1,9 and
one count of oral sexual battery upon a known juvenile under fifteen years of age,

8 It was alleged that these offenses were committed on or between July 6, 2010 and July 5, 2012. 9 It was alleged that the count of sexual battery upon a victim under the age of thirteen years occurred on or between July 6, 2010 and July 5, 2012, and that the count of sexual battery of a juvenile under fifteen years of age occurred on or between July 6, 2012 and March 26, 2013.


17-KA-136 7
in violation of La. R.S. 14:43.3.10 At the time of the offenses, La. R.S. 14:42(A)(4)
defined aggravated rape as follows:
A. Aggravated rape is a rape committed . . . where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:

. . .

(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

La. R.S. 14:41 defines rape as “the act of anal, oral, or vaginal sexual
intercourse with a male or female person committed without the person’s lawful
consent . . . Emission is not necessary, and any sexual penetration, when the rape
involves vaginal or anal intercourse, however slight, is sufficient to complete the
crime.” “Oral sexual intercourse” is further defined as the intentional “touching of
the anus or genitals of the victim by the offender using the mouth or tongue of the
offender,” or the intentional “touching of the anus or genitals of the offender by the
victim using the mouth or tongue of the victim.” La. R.S. 14:41(C).
Moreover, at the time of the offenses, La. R.S. 14:43.1 provided, in pertinent
part:
A. Sexual battery is the intentional touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender, or the touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim, when any of the following occur:

. . .

(2) The act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender.

While, at the time of the offenses, La. R.S. 14:43.3 provided, in pertinent part:
A. Oral sexual battery is the intentional touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender, or the touching of the anus or genitals of the offender by the

10 It was alleged that this offense occurred on or between July 6, 2012 and March 26, 2013.


17-KA-136 8
victim using the mouth or tongue of the victim, when any of the following occur:

(1) The victim, who is not the spouse of the offender, is under the age of fifteen years and is at least three years younger than the offender.

C.R. was sixteen when she testified at trial. Her testimony, as well as the
tape of the Children’s Advocacy Center interview which was shown to the trial
judge, established that C.R. was between the ages of eleven and twelve at the time
of counts one, two, and three, and was thirteen years old at the time of counts four
and five. C.R.’s testimony and her Children’s Advocacy Center interview
established that defendant started sexually abusing C.R. when she was eleven years
old, with the last time being in March of 2013, when she was thirteen years old.
C.R.’s testimony and taped Children’s Advocacy Center interview yielded
extremely specific details about the types of sexual abuse perpetrated by defendant,
as well as their frequency. As recounted above, this evidence established that
defendant began the sexual battery of C.R. at age 11. When C.R. was 12, defendant
began forcing her to have penile/vaginal intercourse with him and he also digitally
penetrated her anus. At age 13, defendant made C.R. perform oral sex on him.
Defendant argues that the evidence used to convict him of the charged
offenses is insufficient because of C.R.’s lack of specificity with regard to the dates
of the alleged instances of sexual abuse, and the fact that there was no
corroborating evidence, either physical or otherwise, presented at trial.
This Court has recognized that in sexual abuse cases that continue over
time, exact dates often cannot be supplied. State v. Mazique, 09-845, p. 12 (La.
App. 5 Cir. 4/27/10), 40 So.3d 224, 234 n.10, writ denied, 10-1198 (La. 12/17/10),
51 So.3d 19 (citing State v. Bolden, 03-0266 (La. App. 5 Cir. 7/29/03), 852 So.2d
1050). Additionally, the credibility of a witness, including the victim, is within the
sound discretion of the trier of fact, who may accept or reject, in whole or in part,
the testimony of any witness. State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15),


17-KA-136 9
173 So.3d 1227, 1233, writ denied, 15-1771 (La. 9/23/16), 2016 La. LEXIS 1955.
In sex offense cases, the testimony of the victim alone can be sufficient to establish
the elements of a sexual offense, even when the State does not introduce medical,
scientific or physical evidence to prove the commission of the offense. State v.
Hernandez, 14-863 (La. App. 5 Cir. 9/23/15), 177 So.3d 342, 351, writ denied, 15
2111 (La. 12/5/16), 210 So.3d 810. It is the role of the fact-finder to weigh the
respective credibility of the witnesses; thus, the appellate court should not second
guess the credibility determinations of the trier of fact beyond the sufficiency
evaluations under the Jackson standard of review. State v. Alfaro, 13-39 (La. App.
5 Cir 10/30/13), 128 So.3d 515, 525, writ denied, 13-2793 (La. 5/16/14), 139 So.3d
1024.
Defendant does not argue there are any internal contradictions in C.R.’s
testimony, but rather argues that she should not be believed without any supporting
evidence. However, convictions of aggravated rape and other sexual abuse
offenses have been upheld by this Court in the absence of medical evidence or
other corroborating evidence. See State v. Hernandez, 177 So.3d at 352; State v.
Roca, 03-1076 (La. App. 5 Cir. 1/13/04), 866 So.2d 867, writ denied, 04-583 (La.
7/2/04), 877 So.2d 143; Gonzalez, supra.
We find C.R.’s testimony, coupled with her statements made in the CAC
interview, established each element of the five offenses for which defendant was
convicted. Moreover, although defendant testified that he never sexually abused
C.R. and suggested that C.R. was lying, having been coerced into making the
accusations against him by his step-daughters who were angry with him, the trial
judge clearly chose to believe the testimony of C.R. over defendant’s testimony. It
is not this Court’s function to second-guess the credibility determinations of the
trier-of-fact. Alfaro, 13-39, 128 So.3d at 525.
This assignment is without merit.


17-KA-136 10
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990). Our review reveals errors patent in this case which
require correction.
Defendant's offenses are designated as sex offenses by LSA-R.S. 15:541
(24). A review of the record shows that the trial court did not advise defendant of
his sex offender registration requirements and his notification requirements. LSA
R.S. 15:542 outlines mandatory registration requirements for those categorized as
sex offenders under LSA-R.S. 15:541. Additionally, LSA-R.S. 15:542.1 sets out
notification requirements for those categorized as sex offenders. LSA-R.S.
15:543A requires the trial court to provide written notice to all sex offenders of the
aforementioned registration and notification requirements, using the form
contained in La. R.S. 15:543.1. A trial court’s failure to provide this notification
constitutes an error patent and warrants a remand for written notification. State v.
Lampkin, 12-391 (La. App. 5 Cir. 5/16/13), 119 So.3d 158, 168, writ denied sub
nom., State ex rel. Lampkin v. State, 13-2303 (La. 5/23/14), 140 So.3d 717 (citing
State v. Pierce, 11-320 (La. App. 5 Cir. 12/29/11), 80 So.3d 1267, 1279-80).
Accordingly, we remand this matter to the trial court for the purpose of providing
defendant with the appropriate written notice of his sex offender notification and
registration requirements, using the form contained in La. R.S. 15:543.1.
Next, the State of Louisiana Uniform Commitment Order (UCO), incorrectly
reflects the dates of defendant’s offenses on counts one, two, and three as
“07/06/2010 and 7/5/2012.” (Emphasis added). However, the record reflects the
offense dates, with respect to counts one, two, and three, occurred on or between
the dates of July 6, 2010 and July 5, 2012. It has been the practice of this Court to
remand a case for correction of the UCO in its error patent review when the UCO


17-KA-136 11
is inconsistent with the minute entry and transcript. See State v. Long, 12-184 (La.
App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142. Accordingly, we remand this matter
for correction of the UCO error regarding the range of offense dates with respect to
counts one, two, and three and further direct the Clerk of Court to transmit the
original of the UCO to the officer in charge of the institution to which defendant
has been sentenced and the Department of Correction’s legal department. See Id.
(citing La. C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-224 (La.
9/15/06), 937 the trial court failed to advise defendant of the two-year prescriptive
period for applying for Post-Conviction Relief under LSA-C.Cr.P. art. 930.8 at the
time of sentencing. Accordingly, we advise defendant by way of this opinion, that
no application for post-conviction relief, including applications which seek an out
of-time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of La.
C.Cr.P. arts. 914 or 922. State v. Do, 13-290 (La. App. 5 Cir. 11/19/13), 130 So.3d
377, 394, writ denied, 13-2907 (La. 6/20/14 846 (per curiam)).
Finally the trial court failed to advise defendant of the two-year prescriptive
period for applying for Post-Conviction Relief under LSA-C.Cr.P. art. 930.8 at the
time of sentencing. Accordingly, we advise defendant by way of this opinion, that
no application for post-conviction relief, including applications which seek an out
of-time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of La.
C.Cr.P. arts. 914 or 922. State v. Do, 13-290 (La. App. 5 Cir. 11/19/13), 130 So.3d
377, 394, writ denied, 13-2907 (La. 6/20/14.

Outcome: Accordingly, for the reasons provided herein, defendant’s convictions and
sentences are affirmed. The matter is remanded with instructions.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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