Fill and Sign the State of Louisiana Court of Appeal Fourth Circuit Form

_________ COURT OF APPEAL _________ CIRCUIT STATE OF LOUISIANA VERSUS _______________ NO. _________ CRIMINAL APPEAL FROM THE _________ JUDICIAL DISTRICT COURT PARISH OF _________ _______________ JUDGE PRESIDING ORIGINAL BRIEF ON BEHALF OF THE APPELLANT - _______________ _______________ Attorney for Appellant _______________ _________ , LA _________ (___ )_________ INDEX I. ASSIGNMENT OF ERRORS ................................ ................................ ....... i II. TABLE OF AUTHORITIES ................................ ................................ ......... 3 III. JURISDICTION ................................ ................................ ............................. 3 IV. STATEMENT OF THE CASE ................................ ................................ ...... 3 V. STATEMENT OF THE FACTS ................................ ................................ .... 4 VI. ASSIGNMENT OF ERRORS ................................ ................................ ....... 4 VII. ARGUMENT ................................ ................................ ................................ .4-6 VIII. CONCLUSION ................................ ................................ .............................. 6 IX. CERTIFICATE ................................ ................................ .............................. 7 I. TABLE OF AUTHORITIES CASES (10) State v. Mathews , 375 So.2d 1165 (La.1979) (11) Jackson v. Virginia , 443 U.S. 307. 99 S.Ct. 2781, 61 L.Ed.2d. 560 (1979) (12) State v. Graham , 422 So.2d 123, (La.1982) STATUTES Louisiana Code of Criminal Procedure, Article 821 Louisiana Revised Statutes 15:42.1 Louisiana Code of Criminal Procedure, Article 912.1 II. JURISDICTION This is an appeal of right of a felony conviction. Juris diction is vested in this court by virtue of the provisions of LSA Code of Criminal Procedure Article 912.1 and the Constitution of 1974, Article V, Section 10. III. STATEMENT OF THE CASE Your defendant was arrested on _________ ___ , 20 ___ , for the crime of Simple Rape. On _________ ___ , 20 ___ , your defendant appeared in court and entered a plea of not guilty to one count of forcible rape. Your defendan t was tried on _________ ___ , 20 ___ , in a bench trial, before the Honorable _______________ , and was found guilty of forcible rape. Your defendant subsequently filed a Motion for Judgment of Acquittal and Motion for New Trial. These matters were heard on _________ ___ , 20 ___ , and written reasons were rendered on _________ ___ , 20 ___ , denying both Motions. On _________ ___ , 20 ___ , your defendant was sentenced to five (5) years at hard labor, all but two (2) years of that sentence was suspended. Your defendant filed a Notice of Appeal on _________ ___ , 20 ___ . IV . STATEMENT OF FACTS It is alleged that _______________ entered the apartment of _______________ on _______ ___ , 20 ___ , and commi tted a forcible rape of _______________ . _______________ was subsequently arrested at the apartment complex after returning from performing several errands. V. ASSIGNMENTS OF ERROR Assignment of Error No. 1 The trial Judge erred in denying the defendant =s Motion for Judgment of Acquittal based on the insufficiency of the evidence when viewed in a light most favorable to the prosecution. VI. ARGUMENT THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT =S MOTION FOR JUDGMENT OF ACQUITTAL BASED ON INSUFFICIENCY OF THE EVIDENCE WHEN VIEWED IN A LIGHT MOST FAVORABLE TO THE PROSECUTION. In State v. Mathews , 375 So.2d 1165 (La. 1979), the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when consideri ng the sufficiency of the evidence to support a criminal conviction, is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reas onable doubt. The most appropriate manner to raise the issue of insufficiency of the evidence is by Motion for post verdict Judgment of Acquittal, C.Cr.P. Art. 821. Review of the evidence by an appellant court is required by the Due Process Clause of the Fourteenth Amendment of the United States Constitution when it is alleged that the evidence was insufficient to support the conviction. State v. Graham , 422 So.2d 123, (La. 1982). In order for the defendant =s g uilty verdict of forcible rape to withstand the constitutional challenge of sufficiency of the evidence, the evidence must disclose under the Jackson standard that: (1) Defendant committed an act of anal or vaginal sexual intercourse with the alleged victi m without her consent; (2) The alleged victim was prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. Clearly, the record show s that the alleged victim and the defendant had sexual intercourse. The defendant admitted in his sworn testimony that the two had intercourse, but that it was consensual in nature and in fact, the defendant paid the alleged victim for sex. There was no s howing, however, of resistance on the part of the victim and no evidence that she was prevented from resisting by force or threats of physical violence under the circumstances. The alleged victim in her own testimony indicates that she did not make any ef forts to resist. The alleged victim also testified that the defendant did not threaten her with physical violence nor did he threaten her with the use of a weapon if she did not consent to the sexual intercourse. (TR74 &78). It is important to note that all of the witnesses who observed the alleged victim after the incident did not see any cuts, bruises or evidence of physical attack. The medical records which were introduced at the trial did not indicate that the alleged victim had suffered any trauma when she was examined shortly after the alleged rape. In the alleged victim =s testimony at trial, she denied that the defendant made any threats of any sort to her prior to engaging in sexual intercourse. (TR 80 ) In fact, from the alleged victim =s testimony, there was no threatening conversation at all between the defendant and the alleged victim prior to engaging in sexual intercourse. The alleged victim testified tha t she observed no weapons, nor was, she threatened in any way at any time by the defendant. The alleged victim =s testimony indicates that the defendant did nothing to warrant a reasonable person to believe that resistance would not have prevented the alleged rape. The defendant =s own testimony corroborates the alleged victim =s testimony, that there was no force or threats of p hysical violence by the defendant to force the alleged victim into sexual intercourse. In addition, there is evidence that the defendant left the apartment complex to pick up lunch and other items and then returned to the apartments. These actions are no t the actions of an individual that has committed a rape within the past hour. There was no evidence adduced at the trial that the defendant had any injuries as a result of this sexual encounter. After a thorough review of the record, the evidence indicat es that a reasonable fact finder could not find that the alleged victim was prevented from resisting the act by threats of physical violence under the circumstances. The victim =s testimony in this case, even whe n construed in a light most favorable to the prosecution, leaves reasonable doubt in the minds of reasonable men as to the commission of an essential element of the crime. VII. CONCLUSION Wherefore, defendant -appellant requests that this Honorable Court f ind that the Trial Court erred in not granting defendant =s-appellant =s Motion for Judgment of Acquittal based on the insufficiency of the evidence when viewed in a ligh t most favorable to the prosecution. Respectfully Submitted, _____________________________ _______________ Attorney for defendant -appellant _______________ _________ , LA _________ (___ )_________ Bar Roll No. _________ AFFIDAVIT AND VERIFICATION STATE OF LOUISIANA PARISH OF _________ BEFORE ME, the undersigned authorit y, a Notary Public, duly commissioned and qualified in accordance with law in and for the State and Parish aforesaid, personally came and appeared, _______________ , who having been first duly sworn, deposed and stated that: 1. He is counsel for defendant -appellant in these proceedings; 2. A copy of this letter has been served on the Honorable _______________ , District Judge and the State of Louisiana, Parish of _________ , through an Assistant District At torney for _________ Parish, by personally handing him a copy of hereof; and 3. All of the documents attached hereto and filed herewith are true and correct copies of the original documents filed in the records herein. ____________________________ _______________ SWORN TO AND SUBSCRIBED this _ ___ day of ________________ 20 ___ , _______________ , _________ Parish, Louisiana. ____________________________ NOTARY PUBLIC