STATE v. B. M. S. (2026)

The defendant, B.M.S.,¹ was charged by grand jury indictment with first degree rape when the victim is under the age of thirteen years, a violation of La. R.S. 14:42(A)(4), and pled not guilty.² After a trial by jury, she was found guilty as charged.³ She filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which were denied by the trial court. The trial court sentenced the defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. She now appeals, challenging the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On December 16, 2021, while being interviewed at his school by Ms. Delaundra Bordelon,⁴ a child welfare investigator at the Department of Children and Family Services (“DCFS”), S.A., the victim in this case, disclosed sexual abuse by his mother B.M.S. S.A. was born in 2015 and was six years old at the time of the interview. Ms. Bordelon contacted the St. Tammany Parish Sheriff's Office (“STPSO”) and took S.A. to the Children's Advocacy Center (“CAC”) in Covington for a forensic interview. In the interviews, S.A. specifically disclosed that his mother put her mouth on his “wee-wee,” that he put his “wee-wee” in his mother's “butt,” and that he tasted his mother's “butt.” S.A. said the acts took place in his mother's truck ⁵ and in the living room of his Uncle Ricky's ⁶ trailer. S.A. further indicated “Daddy Derek” Polk (the co-defendant), was on the phone ⁷ with his mother during some of the incidents, telling her what acts to perform.

On December 21, 2021, Detective Matthew Bauer with STPSO obtained and executed an arrest warrant for the defendant. Upon arrest, the defendant was taken to the Slidell Law Enforcement Complex. After being advised of her Miranda ⁸ rights and executing a waiver of rights form, she eventually fully confessed in a recorded interview to the acts disclosed by S.A.

ASSIGNMENT OF ERROR

In her sole assignment of error, the defendant argues the evidence was insufficient to support a conviction. The defendant claims the State only presented testimony attributed to S.A. by the DCFS investigator, the experts at the CAC, and law enforcement personnel. The defendant contends the State relied on other witnesses to filter S.A.’s claims. She argues S.A.’s actual testimony “left room for a reasonable doubt” and contends the conviction should be reversed.

APPLICABLE SUBSTANTIVE LAW

Louisiana Revised Statutes 14:42 defines first degree rape, in pertinent part, as 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 when the victim is under the age of thirteen years. La. R.S. 14:42(A)(4).

“Rape” is defined as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. La. R.S. 14:41(A). “Oral sexual intercourse” is defined in La. R.S. 14:41(C) as the intentional engaging in either of the following acts with another person: (1) the touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or (2) the touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim. Although definitions of the terms “anal sexual intercourse” and “vaginal sexual intercourse” were not included in the statute at the time of the offense in this matter, the legislature amended La. R.S. 14:41 in 2022 to define “anal sexual intercourse” and “vaginal sexual intercourse.” See 2022 La. Acts, No. 173, § 1, effective August 1, 2022. As amended, La. R.S. 14:41 provides that “anal sexual intercourse” and “vaginal sexual intercourse” mean the intentional engaging in any of the following acts with another person: (1) the penetration of the victim's anus or vagina by the offender using the genitals of the offender; (2) the penetration of the offender's anus or vagina by the victim using the genitals of the victim; (3) penetration of the victim's anus or vagina by the offender using any instrumentality, normal medical or sanitary care excepted; or (4) penetration of the offender's anus or vagina by the victim using any instrumentality, normal medical or sanitary care excepted. La. R.S. 14:41(D). In addition, prior to the amendment, La. R.S. 14:41(B) provided, “Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” As amended, Subsection B now provides, “Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, whether the penetration is accomplished using the genitals of the offender or victim or using any instrumentality and however slight, is sufficient to complete the crime.”

Although Act 173 was in effect at the time of the trial in this matter, the instant offense occurred prior to the August 1, 2022 effective date of the Act. Laws that are procedural or interpretive apply both prospectively and retroactively. In the absence of contrary legislative expression, substantive laws apply prospectively only. La. C.C. art. 6; State v. Washington, 2002-2196, p. 2 (La. 9/13/02), 830 So.2d 288, 290 (per curiam).

A two-fold inquiry is required by La. C.C. art. 6 in deciding whether a law should be applied retroactively. First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends. The legislature did not express an intention regarding retrospective or prospective application of Act 173. Therefore, under the second step, this court must classify the enactment at issue as substantive, procedural, or interpretive. Washington, 2002-2196 at p. 2, 830 So.2d at 290.

Substantive laws are laws that impose new duties, obligations, or responsibilities upon parties, or laws that establish new rules, rights, and duties or change existing ones. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Washington, 2002-2196 at p. 3, 830 So.2d at 290. Interpretive laws do not create new rules, but merely establish the meaning that the statute had from the time of its enactment; it is the original statute, not the interpretive one, that establishes the rights and duties. Thus, when an existing law is not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retrospective effect because it does not change, but merely clarifies, preexisting law. Davidson v. State, 2019-1180, p. 10 (La.App. 1 Cir. 7/2/20), 308 So.3d 325, 331, writ granted, 2020-00976 (La. 12/8/20), 305 So.3d 863, and aff'd, 2020-00976 (La. 5/13/21) 320 So.3d 1021.

As interpretive laws do not establish new rules, but merely determine the meaning of existing laws, it follows that they may apply to facts previous to their promulgation. Their retroactivity is but apparent, because it is not the interpretive law, but the original law, which applies. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817-18 (La. 1992), quoting 1 M. Planiol, Civil Law Treatise § 251 (La.St.L.Inst.Transl.1959).

We conclude the definitions in Act 173 at issue herein constitute an interpretive enactment intended to clarify the meaning of terms previously included in the pre-revision version of the statute. Specifically, the amendment of Subsection B makes it clear that it does not matter whether the proscribed sexual penetration is accomplished using the offender's genitals, the victim's genitals, or an instrumentality. Likewise, La. R.S. 14:41(D) simply makes it clear that the proscribed acts of anal or vaginal sexual intercourse can occur regardless of whether it is the victim's anus or vagina that is penetrated or the offender's own anus or vagina that is penetrated. We further find the phrase, “any sexual penetration,” included in both the pre- and post-revision versions of La. R.S. 14:41(B), is broad enough to proscribe the conduct specified in the amended version of the statute. See, e.g., State v. Reinholt, 2010-1315, p. 1 (La.App. 3 Cir. 5/4/11), 63 So.3d 396, 397, writ denied sub nom. State ex rel. Reinholt v. State, 2011-1200 (La. 3/30/12), 85 So.3d 103 (rejecting the defendant's argument that the pre-revision version of the rape statute did not prohibit engaging in anal sexual intercourse with a 12-year old victim where it was the defendant and not the victim who was penetrated). Thus, we find that the changes to the statute made by Act 173 were interpretive changes that apply retroactively to the conduct alleged in this case.⁹

SUFFICIENCY OF THE EVIDENCE

A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV, La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider 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 beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660; State v. Moore, 2021-0417, p. 8 (La.App. 1 Cir. 12/22/21), 340 So.3d 126, 131.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. State v. Wiggins, 2024-0196, p. 3 (La.App. 1 Cir. 2/28/25), 406 So.3d 1279, 1283. When analyzing circumstantial evidence, the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See La. R.S. 15:438. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. Wiggins, 2024-0196 at pp. 3-4, 406 So.3d at 1283.

DISCUSSION

Testimony presented at trial shows S.A. first disclosed the acts at issue on December 16, 2021, when Ms. Bordelon spoke to him at his elementary school. S.A. told Ms. Bordelon that he and his mother would get in her truck and take their clothes off. S.A. told Ms. Bordelon it was a secret and that he was not supposed to tell anyone. He further disclosed he would put his “wee-wee” in his mother's “butt.” As Ms. Bordelon further testified, S.A. said he “gets on top and he doesn't know what to do, so [the defendant] puts her hand behind him and helps him, goes back and forth.” Ms. Bordelon testified S.A. also told her that the defendant “puts her mouth on his wee-wee on and off, on and off,” and that he has tasted his mother's “butt,” and it tasted like strawberry or cherry, and his tongue tingles. S.A. said it happened a lot of times, usually in his mother's truck, and also in the living room of “Uncle Ricky's” trailer. Ms. Bordelon testified S.A.’s disclosures were consistent with statements made by K.A., S.A.’s seventeen-year-old paternal half-sister.

Later that day, Ms. Bordelon's supervisor obtained judicial authority to take custody of S.A., and Ms. Bordelon removed him from school and took him to an emergency CAC interview. Ms. Bordelon and Detective Bauer observed the CAC interview from another room on a television monitor. As Ms. Bordelon testified, S.A. made disclosures during the CAC interview consistent with the disclosure he made to her at his school.

The CAC's audio- and video-recorded interview was conducted by Ms. April McCormick, who at that time was a contract forensic interviewer at Hope House CAC in Covington. Ms. McCormick testified that a forensic interview for investigative purposes is conducted using fact-finding questions that are non-leading along with a semi-structured narrative process that forensic interviewers are trained to conduct. Early on in her CAC interview of S.A., Ms. McCormick asked S.A. what sort of things he liked to do for fun, and S.A. replied that he likes to “go to my truck and have some sex.” Ms. McCormick asked S.A. to tell her more about what he meant by “sex.” S.A. stated that “sex” is when “a guy is putting his ․ ‘wee-wee’ [which S.A. interchangeably referred to as a “period”] ․ in a girl's ‘butt.’ ” When shown anatomical diagrams of female and male figures, S.A. identified the penis on the male figure as a “period” or “wee-wee,” and said that it is the part of the body you use to “pee.” He identified the vagina on the female figure as the “butt.”

S.A. also said his mother would sometimes put her mouth “on and off” of his “wee-wee,” which he said felt “comfortable” and “warm.” He noted the defendant's legs would be positioned in a manner “where I can get through to get over her.” He said his mother would tell him to “lick her ․ butt,” which he said tickled his tongue and tasted like cherry and strawberry. S.A. also said that his mother “put my wee-wee inside her when we're on the phone with Daddy Derek.” When asked for further explanation, S.A. reiterated that “Daddy Derek” would be on the phone with his mother and said his mother would say “Oh, baby” to “Daddy Derek” when he and his mother had “sex in the truck.” S.A. corrected Ms. McCormick when she asked if “Daddy Derek” was on videogram during these incidents in the truck, reiterating that he was instead on the phone. S.A. identified the vagina on the front of the female diagram to show where he licked his mother's “butt” and where “Daddy Derek” was inside of his mother.

S.A. also told Ms. McCormick during the interview that his mother would sometimes have “Daddy Derek” inside of her. When later asked what he meant when he said that “Daddy Derek” was inside of his mother, S.A. said, “because mom has some sexy toys.” Specifically, S.A. used the term “Daddy Derek” at times to refer to the co-defendant and other times to refer to one of his mother's “sexy toys.”¹⁰ S.A. gave detailed descriptions of his mother's “sexy toys.” As to what occurs in the truck, S.A. said it has happened “one hundred times.” S.A. also said that his sister K.A. once opened the truck door when he and his mother were in the truck naked.

On cross examination, Ms. McCormick testified S.A. had “the normal imagination of a six-year-old.” She confirmed there were examples of fantasy and fact in the interview, confirming S.A. talked about having a “brain store of dead people” and at one point went behind the chair in which he sat during the interview to pretend he was at home. Ms. McCormick denied that there was any evidence that S.A. had been coached or manipulated into making the allegations and noted that S.A. disagreed with her at times when she misunderstood his responses.

Ms. Bordelon also spoke with the defendant by phone on the day of the CAC interview, and she later interviewed the defendant over Zoom. Ms. Bordelon testified that the defendant told her that S.A. would sometimes overhear her and Polk on the phone having conversations of a sexual nature. The defendant further told Ms. Bordelon that she and Polk would sometimes discuss fantasies of a sexual nature that involved children and stated she had telephone conversations with Polk once or twice a week, during which he would convey his sexual desires for her to execute. The defendant told Ms. Bordelon that S.A. kept coming to her and begging her to “suckle” on him, and that she finally did so. The defendant said Polk was always on the phone with them when the acts occurred, telling her what to do.

At the time that S.A. first made the disclosures to Ms. Bordelon at his school, the defendant and S.A. were living in a hotel room at the LaQuinta Inn, and Polk was incarcerated. In executing a search warrant he obtained for the defendant's hotel room, Detective Bauer recovered and collected a bag that contained objects classified as “sex toys” that matched the very detailed descriptions given by S.A. in his CAC interview.

Dr. Judith Ann Dodd, a pediatric forensic nurse practitioner with Children's Hospital in New Orleans, performed a forensic medical evaluation of S.A. on December 23, 2021, which included an audio-recorded interview. Dr. Dodd testified at the trial as an expert in child abuse pediatrics. At the time of Dr. Dodd's interview, S.A. did not immediately disclose any abuse. Instead, when asked what he liked to do, S.A. said he liked to go places in his mother's truck like restaurants, the park, and to visit family. S.A. denied ever being hurt or touched in a way that he should not have been touched. He denied that his mother ever did anything in the truck that he did not like. When asked why he no longer lived with his mother, S.A. stated a judge took him away ¹¹ because the judge thought his mother was “doing something inappropriate.” When asked to elaborate on the “inappropriate” acts a judge thought his mother was committing, S.A. listed examples like yelling, screaming, and whipping.

As Dr. Dodd continued to question S.A., he began to disclose acts consistent with his spontaneous disclosures to Ms. Bordelon and Ms. McCormick. Specifically, while being questioned as to whether anyone had ever looked at his private parts, S.A. stated his mother did so more than one time, later specifying, “one hundred times she looked at it.” He said the defendant put her hand on his “wee-wee,” later adding that she would move and squeeze her hand. S.A. also stated his mother put her mouth on his “wee-wee” more than one time, adding “she sucked it.” S.A. further stated they would have sex with “Daddy Derek” because he was in jail, that his mother used “sexy toys,” and that his mother had him “lick her butt” more than one time.¹² S.A. also stated that he put his “wee-wee” in his mother's “butt.” When asked if he ever told anyone, S.A. stated his mother told him to keep it a secret; however, he confirmed that he told Ms. Bordelon at school, noting that he was told it was okay to tell secrets.

Dr. Dodd testified S.A.’s use of terms like “wee-wee” and “period” were age appropriate and noted that children often do not have a working knowledge of anatomy and might use the word “butt” to describe all genitals. Dr. Dodd further confirmed that children may not initially realize there's anything wrong with inappropriate encounters and may consider them normal. Dr. Dodd noted S.A. did not use negative terms when describing his sexual experiences with his mother and believed he may have been protecting her when he declined to classify such conduct as inappropriate. Dr. Dodd testified S.A.’s use of terms to describe how certain acts felt was something he would not glean from watching pornography, but instead was consistent with being personal sensory experiences of how he felt when the acts were occurring.

Dr. Dodd further testified that it was possible for a six-year-old to get an erection, noting that even an infant would have that ability, and that sexual arousal is not required. Dr. Dodd also testified that a child as young as six years old can ejaculate, though no sperm would be contained therein, only fluid. Dr. Dodd defined penetration as occurring when the penetrative object, such as a penis or finger, passes the plane of the outside of the labia majora, located at the very outside of the female genitals. Dr. Dodd testified that if an object penetrates anywhere through that area, even just slightly, it is considered penetration. Dr. Dodd also testified that everything she learned from evaluating S.A. is consistent with child sexual abuse.

S.A. was eight years old at the time of the trial. At that time, he testified that he could not recall what happened in the truck with his mother. S.A. confirmed he was a little nervous and that he felt weird being in front of strangers in the courtroom. He further confirmed that his “meme” (his maternal grandmother), with whom he was living at the time, told him not to tell anyone what happened to him, and he agreed he was listening to her by not saying what happened. S.A. also testified that he loved his mother and admitted he did not want to say anything that would hurt his mother. S.A. further admitted he was afraid to talk, he “kind of” did not want to answer the questions, he was “a little” afraid something bad would happen to his mother, and he did not want to say what happened because he did not want his mother to get in trouble.

After S.A.’s testimony, Dr. Dodd, who was present when S.A. testified, was recalled to the stand and testified that oftentimes, when children are asked questions about topics that are very difficult, very sensitive for them, instead of refusing to answer or lying, they will say they do not know or recall the subject matter. Dr. Dodd noted S.A. did not recant his prior claims, but instead was forthright in saying his grandmother told him not to talk about what he experienced. She reiterated she did not see any evidence that S.A. was coached in any manner into previously describing sexual acts with the defendant.

The State played audio recordings of several jail calls that took place while Polk was housed at Rayburn, introduced by Lieutenant Colonel Richard Forbes, an investigator at Rayburn.¹³

During a call that took place on July 17, 2021, Polk asked the defendant to allow someone else to “take care” of her, which she repeatedly refused, telling him that she only wanted him to take care of her and loved him too much to think about doing anything with someone else, despite having his permission, because she would feel as though she was cheating on Polk. However, later in the same call, the defendant reluctantly agreed to Polk's request to involve a third person in their relationship, stating, “I'm never gonna get you to stop wanting to do it anyways so I mean what's the difference.” The defendant later told Polk that it scared her that he wanted to do that, but “it is what it is.” Polk then told her, “I want my freak back.” At some point, Polk suggested involving S.A. The defendant reiterated she did not want anyone else “in the mix;” however, she later admitted that part of her wanted it and they could figure things out when Polk was back home.

In a call that took place on September 16, 2021, Polk again told the defendant they had to involve “him.” The defendant stated she did not want to do so because “he goes around telling people s***” and she did not want people to know about it, stating that he would end up talking to the wrong person and she would get caught.

Subsequently, on October 24, 2021, S.A. can be heard participating in a jail call. During the call, Polk told the defendant to ask S.A. if he “wants to help,” and the defendant replied that S.A. said yes. Polk first instructed the defendant to perform oral sex on S.A., and after she did so, Polk instructed her to engage in vaginal sexual intercourse with S.A. The audio recording indicates that she followed Polk's instructions and engaged in both oral and vaginal sexual intercourse with S.A.¹⁴

During a jail call that took place on December 17, 2021, after S.A.’s CAC interview and removal from his mother's home but prior to her arrest, the defendant told Polk that all of their recorded phone calls were being subpoenaed, and “if it comes down to showing any proof of anything ․ it's going to go against both of us.” The defendant further threatened to commit suicide to avoid going to jail.

The defendant and Polk did not testify at trial, but each participated in recorded interviews after their arrest on the instant offense. During her police interview, the defendant initially denied anything happened but then progressively fully confessed to repeatedly, on separate occasions, performing oral sex on her six-year-old son, S.A., and to engaging in vaginal sexual intercourse with S.A. The events eventually described by the defendant in this interview were consistent with S.A.’s disclosures of oral and vaginal sexual intercourse.

The defendant admitted these acts occurred repeatedly, “maybe twice a week,” beginning in mid-July when she and Polk started discussing the “fantasy” of involving a child in their telephone sexual activities. She stated the fantasy became a reality, noting it mostly involved oral sexual intercourse, which she estimated occurred a dozen times, in addition to five or six incidents of vaginal sexual intercourse. She confirmed Polk encouraged her to engage in these acts in order to drag out the fantasy.

During his recorded interview, Polk said he had been romantic with the defendant since before 2012, but was in and out of jail during the entirety of their relationship. Polk confirmed he would talk to the defendant “daily” on the phone, stated he did not know how many times S.A. was in the room when they had “phone sex,” and said he could not recall the number of times the defendant suggested that they include S.A. in their “role play.”

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Figueroa, 2024-0739, p. 4 (La.App. 1 Cir. 5/23/25), 417 So.3d 795, 799. 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. State v. Jenkins, 2022-0562, p. 7 (La.App. 1 Cir. 12/22/22), 357 So.3d 840, 844.

In order to convict the defendant of first degree rape, the State was required to prove beyond a reasonable doubt that the defendant engaged in either anal, oral, or vaginal sexual intercourse where the intercourse is deemed to be without the lawful consent of the victim because the victim was under the age of thirteen at the time of the offense. La. R.S. 14:42(A)(4). On appeal, the defendant now argues that S.A.’s testimony was paraphrased by several adults, but only articulated once by S.A. himself. We find a review of the record refutes the defendant's characterization of the evidence. At trial, S.A. unequivocally admitted his grandmother told him not to say what happened and that he was following her instructions in not repeating his claims at trial. Nevertheless, the jury heard S.A.’s own spontaneous, consistent, and repeated pretrial accounts of sexual abuse, using sensory terms and describing tastes and positioning, all of which are indicators that he was relaying his personal experiences. The fact that S.A. did not testify at trial consistently with his pretrial statements does not render the evidence accepted by the trier of fact insufficient. See State v. Carter, 2024-0069, pp. 8-9 (La.App. 1 Cir. 11/13/24), 405 So.3d 952, 961 (holding that even though the victim recanted his previous identification of the defendant as the shooter during his trial testimony, the fact that the record contains evidence that conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient).

Furthermore, the defendant confessed to the acts alleged by S.A. Specifically, consistent with S.A.’s pretrial disclosures, the defendant ultimately confessed to performing oral sex on her six-year-old son, to having her son penetrate her vaginally with his penis, and to having her son engage in the act of oral sex on her. Further, based on the recorded jail phone calls, the jury could have rationally concluded the defendant engaged in sexual acts with S.A. The jail call recordings fully support S.A.’s pretrial claims and the defendant's own admission that she and Polk used S.A. to bring to reality the fantasy of involving a child, S.A., in their sexual activity.

We find the evidence is overwhelming that the defendant is guilty of first degree rape of a victim under the age of thirteen years. Accordingly, we find no merit in the defendant's sole assignment of error. The defendant's conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

I respectfully concur in this matter. I do not agree that the changes made to La. R.S. 14:41 by Act 173 were interpretive. Prior to the amendment, La. R.S. 14:41(B) provided that:

B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.

Act 173 added the following language to La. R.S. 14:41(B), “whether the penetration is accomplished using the genitals of the offender or victim or using any instrumentality and.” By providing that penetration may be accomplished “using any instrumentality,” Act 173 changed the definition of rape.

In this case, the trial court correctly charged the jury with the law in effect at the time of the commission of the offense, i.e., prior to the amendment of La. R.S. 14:41 by Act 173.¹ In evaluating the sufficiency of the evidence to support a conviction, this court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So. 2d 654, 660. It is my opinion that in considering whether a jury's verdict was rational, this court should review that verdict in light of the law upon which the jury was correctly instructed. In this case, I find the jury's verdict that the defendant was guilty of first degree rape of a victim under the age of thirteen years is reasonable when considered under the law in effect at the time of the offense.

FOOTNOTES

1.   In the interest of protecting minor crime victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), this court will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity, i.e., a parent, sibling, or relative with the same last name as the victim. See State v. Hidalgo, 2023-375, p. 1, n.2 (La.App. 5 Cir. 5/8/24), 389 So.3d 231, 233, n.2. Compare State v. R.W.B., 2012-0453 (La. 12/4/12), 105 So.3d 54 (per curiam). See also Uniform Rules of Louisiana Courts of Appeal, Rule 5-2. Accordingly, to protect the identity of the victim, as the defendant is the mother of the victim, only the defendant's initials are given. Further, the victim and his sibling will be referenced by initials.

2.   In the indictment, the State of Louisiana charged the defendant and the co-defendant, Derek M. Polk, with two counts of first degree rape of a victim under the age of thirteen years (counts one and two), violations of La. R.S. 14:42(A)(4). The State of Louisiana additionally charged B.M.S. with one count of aggravated crime against nature of a victim under the age of thirteen years (count three), a violation of La. R.S. 14:89.1(A)(2)(b). The State severed one count of first degree rape as to each co-defendant and count three as to B.M.S. Thus, the co-defendants were only tried on count one (first degree rape of a victim under the age of thirteen years) in this case.

3.   Polk was also found guilty as charged. He filed a separate appeal, which is pending in this court. See State v. Polk, 2024-1247, (La.App 1 Cir. ––––/ ––––/ ––––).

4.   Ms. Bordelon went to S.A.’s school due to information she received from his seventeen-year-old paternal half-sister, K.A., the subject of a prior DCFS report of neglect.

5.   Both S.A. and the defendant referred to the defendant's Cadillac Escalade as her “truck.”

6.   Although S.A. referred to him as “Uncle Ricky” sometimes, Ricky was his mother's cousin.

7.   Polk was incarcerated at Rayburn Correctional Center (“Rayburn”) during the time period of the offenses. The phone calls referenced by S.A. consisted of several recorded jail calls.

8.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

9.   Cf. State v. Wallace, 2013-0149, pp. 12-18 (La.App. 4 Cir. 6/25/14), 143 So.3d 1275, 1281-85 (holding that it was reversible error to instruct jury that it could convict the defendant of first degree rape on a finding of oral sexual intercourse when the offense occurred prior to the legislature's amendment of La. R.S. 14:41 and 14:42 to include oral sexual intercourse within the definition of rape).

10.   This is consistent with Ms. Bordelon's testimony that based on her understanding, the name “Daddy Derek” was also used to refer to the sex toys.

11.   S.A. was initially placed in a certified foster home before being placed in the custody of his maternal grandmother.

12.   When asked what they do with the “sexy toys,” S.A. clarified that his mother would put them in and out of her “butt.” He denied that he ever inserted one of the toys or that one was ever inserted in him. At one point, S.A. also said his mother asked him to put “Daddy Derek” inside her “wee-wee.” When asked to explain, S.A. then disclosed “I put my wee-wee in her butt.”

13.   The defendant and the co-defendant can be heard moaning and making statements during portions of jail calls, indicating they were participating in sexual conduct over the phone.

14.   During a subsequent jail call, Polk asked the defendant to include S.A. in their over-the-phone sexual conduct again and suggested the defendant should have S.A. perform oral sex on her. When the defendant replied that S.A. would refuse to do so because he said it was “too nasty,” Polk suggested that she “[p]ut something on it.” The defendant declined and expressed concern that S.A. would tell the wrong person. S.A. can be heard interjecting in the background, promising he would “keep it a secret” before the defendant told S.A. to go to bed, and the call ended.

1.   It is well settled that the law in effect at the time of the commission of the offense applies. See State v. Sugasti, 2001-3407 (La. 6/21/02), 820 So. 2d 518, 520; State v. Laurant, 2024-0295 (La. App. 1 Cir. 12/27/24), 404 So. 3d 68, 76 n.7, writ denied, 2025-00136 (La. 4/23/25), 406 So. 3d 1175.

THERIOT, J.

Penzato, J., concurs with reasons