Date: 02-09-2017

Case Style:

Sex Offender

Case Number: 16-KA-494

Judge: Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

Court: FIFTH CIRCUIT COURT OF APPEAL, STATE OF LOUISIANA

Plaintiff's Attorney:

Paul D. Connick, Jr.
Terry M. Boudreaux
Gail D. Schlosser
Shannon K. Swaim
Sloan Abernathy

Defendant's Attorney:

Bruce G. Whittaker

Description: On April 3, 2013, the State charged defendant by bill of information with the
sexual battery of a known juvenile, E.D. (D.O.B. 9/22/2005), in violation of La.
R.S.14:43.1 (count 1) and with the sexual battery of a known juvenile, A.B.
(D.O.B. 7/18/2008), in violation of La. R.S. 14:43.1 (count 2). The bill of
information alleged that defendant committed both offenses on or between
November 1, 2011 and February 3, 2013, when the juveniles were, at most, seven
years old and four years old, respectively. Defendant was arraigned on these
charges and entered a single plea of not guilty. Following a jury trial, the jury
rendered a verdict of guilty on both counts on November 14, 2014. On February 9,
2015, the district court sentenced defendant to “[twenty-five] years on each count,
those sentences to run consecutive to each other.”
On March 6, 2015, defendant filed a “notice of appeal” “from the final
judgment entered by this Court on February 9th, 2015 [sic],” the date of defendant’s
sentencing. Defendant did not indicate that he sought to appeal his conviction,
which occurred on November 14, 2014. Several months later, defendant filed a
pro se writ of mandamus with this Court because the district court had not yet
granted him an appeal. This Court granted defendant’s writ of mandamus and


16-KA-494 2
instructed the district court to enter an order granting defendant an appeal. The
district court’s subsequent order reflects that defendant “sought to appeal his
convictions and sentences, imposed February 9, 2015.” Although defendant did
not explicitly seek review of his convictions in his March 6, 2015 notice of appeal,
defendant’s sole counseled assignments of error and his three pro se assignments
of error pertain only to his convictions, not to his sentences. Nevertheless, the
Louisiana Supreme Court has recognized that appeals are favored in the law and
has disapproved of the dismissal of appeals on “hypertechnical” grounds. State v.
Armant, 02-907 (La. App. 5 Cir. 1/28/03), 839 So.2d 271, 274 (citing State v.
Bunnell, 508 So.2d 55 (La. 1987)). Accordingly, we will address defendant’s
assignments of error concerning his conviction and will conduct a full errors patent
review.

FACTS
After meeting on a dating website, the victims’ mother, B.B., and defendant
became romantically involved in November 2011. According to B.B., who
identified defendant in open court, the couple had plans to marry. In December
2011, defendant moved into B.B.’s aunt’s house in Marrero with B.B. and her
children, L.D., E.D., A.B., and A.W. They then moved to another home in
Marrero where they lived for approximately six months. Thereafter, defendant,
B.B, and the children moved into a two-bedroom apartment on Barataria
Boulevard. In this apartment, all of the children slept in one room on the opposite
side of the apartment from the bedroom in which B.B. and defendant slept. The
kitchen and the bathroom separated the two bedrooms.
Although B.B. acknowledged that defendant could be harsh with the
children in terms of discipline, B.B. testified that the children loved him and that
he would babysit them when she had something to do. She denied ever seeing


16-KA-494 3
defendant abuse the children, and she never observed any strange behavior that
might suggest any issues with defendant and her children. B.B. testified that, in
the weeks leading up to the day when the allegations came to light, she felt like
defendant was hiding something from her and maybe was cheating on her.
According to B.B., on February 3, 2013, at about 7:30 a.m., she woke up,
went into the kitchen of the Barataria Boulevard apartment, and saw defendant
putting frozen fruit in a cup for her oldest daughter, E.D., who was seven years old
at the time. When B.B. asked defendant “what was [E.D.] getting that for,”
defendant responded that E.D. “had cleaned up the dog’s mess on the floor.” B.B.
testified that, at the time, she thought nothing of it. Later that morning, as she
cooked breakfast, her oldest son, L.D., helped her with the dishes. According to
B.B., L.D. commented to her that “[E.D.] was a lucky bird because she always got
all the hugs and kisses.” B.B. testified, “[T]hat set an alarm off in my head.” B.B.
then approached E.D. to ask her if anything was wrong: “[S]he told me that Josh
had been coming in her room at night and that she wasn’t getting any sleep and
that he had been touching her. So I grabbed her by the arm, and I went into the
room. And I grabbed my cell phone, and I dialed 911.”
Among the police officers who responded to B.B.’s call was Deputy Thelma
Hill. Deputy Hill testified that, after speaking with B.B. who reported that E.D.
told her “that Josh comes into their room at night and talks and feels on her,” she
spoke with E.D., who explained to her that “Josh comes in her room at night when
she’s asleep and touches her on her vagina and sometimes places his finger in
there.” E.D. told Deputy Hill that the last time defendant came into her room was
the previous night and that defendant agreed to give her a frozen treat if she agreed
to hug him. E.D. explained to Deputy Hill that she complied but that defendant did
not want to let her go when she wanted to leave. Deputy Hill testified that she also
spoke with B.B.’s son, L.D., who told her that defendant comes into the children’s


16-KA-494 4
bedroom at night “all the time” and talks “very low” to E.D. When Deputy Hill
asked E.D. whether she had ever seen defendant’s private area, E.D. responded
affirmatively, adding that “he shows it to her all the time.” E.D. reported to
Deputy Hill that defendant has “some types of scars or designs on [his penis].”
Thereafter, Deputy Hill confirmed with B.B. that defendant has “some type of
implants or something on his penis.”
Detective Ronald David Ray, Jr., the lead investigator in this matter, also
testified that E.D. reported to him at the scene that “Joshie had been touching her
in what she termed her tu-tu.” When Detective Ray asked E.D. to explain “tu-tu,”
E.D. pointed to her vaginal area. Detective Ray testified that E.D. also confirmed
her statement about “the bumps” on defendant’s genitalia. Based on E.D.’s
statement concerning unusual bumps or scarring on defendant’s penis, Detective
Ray obtained a search warrant to take photographs of defendant’s person.
Detective Ray testified that the photographs—which were admitted into evidence
and published to the jury—reveal bumps on defendant’s penis in the shapes of a
heart and a diamond.
At the scene, Detective Ray also interviewed E.D.’s older brother, L.D., who
likewise confirmed that he would see defendant come into the children’s room at
night and give E.D. lots of hugs. At the Detective Bureau, Detective Ray also
spoke with defendant who denied any inappropriate touching but “did say that
there may have been some inadvertent contact during playtime.” Although
defendant maintained to Detective Ray that he gave E.D. the treat “because she had
cleaned up some dog feces,” defendant also made the statement that he told B.B,
“[B]elieve your daughter.” In her testimony, B.B. confirmed that defendant made
this statement to her: “I don’t understand why he told me believe my daughter, but
he did tell me believe my daughter.”


16-KA-494 5
The day after B.B. learned of E.D.’s allegations she felt compelled to ask her
younger daughter, A.B., who was four years old at the time, whether “anything bad
had ever happened to her, if anybody had touched her anywhere they wasn’t [sic]
supposed to.” According to B.B., A.B. “kind of like put her head down and told
[B.B.] that Joshie did – Joshua, they called him Joshie at the time – that he did
when [B.B.] was in the shower.”
Approximately two weeks later, on February 18, 2013, Dr. Jamie Jackson, a
pediatrician with the Audrey Hepburn Care Center at Children’s Hospital,
performed a sexual assault examination of E.D., which included an incident
history. During this examination, E.D. explained, “He gave me frozen fruit for it.”
When asked what “it” was, E.D. responded,
Uh never mind, I forgot because when, when my brother [L.D.] he flipped me over it hurt [sic]. And it hurt my brain . . . . Because the reason why I can’t remember lots of things when [L.D.] flipped, flipped me over on, from the skateboard it hurt half, parts of my brain and I can’t really remember stuff. It crunched up some a [sic] my file cabinets in here.
Nevertheless, the transcript from this examination reflects E.D. then explained to
Dr. Jackson that defendant comes into hers and her siblings’ bedroom while
everyone is sleeping: “He touches me and then I wake up, I go, I wake up and then
I fall back asleep, and stay sleeping, and [sic] never comes back in there.” After
E.D. referred to the place where defendant touched as her “too too,” she explained
to Dr. Jackson that “too too” refers to her vaginal area: “He kept on digging his
finger and li [sic], licking his fingers and digging it in there . . . . He like pulls
down my pants, and then he pulls down my panties and touches [with his finger].”
E.D. further explained that she would later experience pain when she tried to use
the bathroom: “And then I wake up to use the bathroom, it burned so bad and I had
to tell my mom, cause I can’t stand it. When he does that.” E.D. told Dr. Jackson
that defendant did this to her “[m]ore, more than one time.” E.D. also described to


16-KA-494 6
Dr. Jackson how, more than once, defendant tried to make her touch his “bird”
with her hand: “Like every time that he ma [sic], tried to make me do it, I tried to
scream out to my mom, but he kept on doing that, and I, and I couldn’t talk . . . .
[H]e was closing up my mouth so I couldn’t scream to my mom while she was
sleeping.” When Dr. Jackson asked E.D. whether there was “anything that you
noticed or saw like on his bird,” E.D. replied, “Like you know how wires look? ….
It looks like he has wires inside his bird skin. Like four layers of it …. Like you
know how wires are so fat? That’s how fat little lines on him [sic].” E.D. reported
to Dr. Jackson that defendant told her, “[I]t’s a secret between us and you may
never tell.” In accordance with the State’s motion in limine pursuant to La. C.E.
art. 412, the State presented and the district court admitted a redacted version of
the transcript and of the audio of this examination and incident history, which
removed only references to unrelated past sexual abuse allegations E.D. made
against a family member in another jurisdiction.
On March 1, 2013, Dr. Jackson also performed a sexual assault examination
on E.D.’s younger sister, A.B. The State introduced the transcript and audio of this
examination and published it to the jury. In her incident history, A.B. told Dr.
Jackson that defendant is in jail because he touched her on her “tutu” with his
hand. A.B. identified her “tutu” as being between her legs. A.B. explained it hurt
when defendant did this, but she did not want to elaborate any further for Dr.
Jackson.
At trial, the district court accepted Dr. Jackson as an expert in the field of
child abuse pediatrics and delayed disclosure. Although Dr. Jackson testified that
neither E.D. nor A.B. showed any definitive physical signs of abuse, Dr. Jackson
opined that both E.D. and A.B. delayed disclosure of their sexual abuse, which is
common in child victims of sexual abuse, and that E.D.’s and A.B.’s interviews
and incident histories were consistent with those of children who have been


16-KA-494 7
sexually abused. Dr. Jackson explained that it is not uncommon for a young
female child not to show physical signs of abuse, even after they reported penile
vaginal penetration by a full-grown male. Dr. Jackson pointed to a study in which
only about six percent of girls around the age of seven who reported penile-vaginal
or penile-anal penetration had specific findings of penetration. In her experience
examining children, Dr. Jackson estimated that ninety to ninety-five percent of the
children the Audrey Hepburn Care Center sees have normal or non-specific
findings when they give a history of sexual abuse or penetration.
Around the same time, in late February 2013, E.D. and A.B. received
evaluations at the Jefferson Children’s Advocacy Center. The State admitted
videos of both of these interviews and published them to the jury. During this
interview, E.D. told the interviewer that she did not remember why she had come
that day, explaining that, during an incident on a skateboard, she “damaged up her
brain a lot” where the bad memories were. A.B., on the other hand, testified that
defendant touched the skin on her “tutu” and stuck his finger inside of it.
Gesturing toward her genitalia, A.B. explained that defendant made her “tutu” hurt.
E.D. and A.B. also testified in person at trial. According to E.D., who was
nine years old at the time of trial, defendant touched her “where he was not
supposed to” and “in [her] private area” about four times, in her top bunk while her
brother, L.D., and two sisters, A.B. and A.W., slept in the room with her. E.D. also
testified concerning the distinctive markings on defendant’s penis, describing that
defendant’s “weird thing” or “private part” had “little – like circles of wire on it.”
However, when asked to identify defendant in the court room, E.D. explained,
“Now I don’t see him. I forgot where I saw him at …. I don’t see him.” E.D.
recounted that defendant touched her on her clothes and on her “tu-tu” but, when
asked, she stated she did not know if defendant stuck his finger inside of her. A.B.,
who was six years old at the time of trial, testified that she does not like defendant


16-KA-494 8
because “he did something bad to [her, E.D., and L.D.].” When asked what
defendant did to them, A.B. responded that he “touched like our private parts.”
Although she testified that defendant touched underneath her clothes, A.B. denied
that he put something inside of her. A.B. maintained that this occurred one time
when she was four years old and that defendant touched her between her legs while
she was in her mom’s and defendant’s bedroom. Like E.D., A.B. also could not
identify defendant in court but testified she was four years old the last time she saw
him.
After the State rested, defendant testified that he never touched E.D. and
A.B. inappropriately. Although defendant admitted that he had implants inserted
in his penis to “pleasure” females, he denied every exposing himself to E.D.
Rather, he argued that E.D. must know about the implants from her mother, B.B.,
to whom he had sent naked pictures prior to moving in with her.
Defendant also recalled B.B. to the stand to question her about the extent of
her contact with defendant following his arrest. Although initially B.B. denied
speaking to defendant in any way—“[n]ot by phone, not by letter, no”—B.B.
eventually admitted that she wrote a letter, dated August 31, 2013, to defendant
that she mailed through his mother. Thereafter, B.B. vigorously asserted that this
was the only letter she had ever written defendant. Defendant then introduced a
second letter from January 8, 2014, in which B.B. failed to reference the sexual
abuse charges and wrote, “I want our family back but you have to prove to me no
other bitches! I hope you can forgive me! I never wanted none of this!” Although
B.B. testified she initially did not remember writing the letter, she identified the
handwriting as her own and recalled writing the letter as she read it.
On rebuttal, the State offered the testimony of Arturio Rodriguez, who
testified remotely via WebEx, a program for transmitting two-way live video. Mr.
Rodriguez, an inmate at David Wade Correctional Center serving a forty-year


16-KA-494 9
sentence for two counts of forcible rape and convictions for carnal knowledge of a
juvenile and aggravated burglary, initially testified that he told his lawyer that
defendant had fabricated the January 8, 2014 letter to make it appear like it had
come from B.B. On cross-examination, however, Mr. Rodriguez admitted that he
was lying when he gave this information to the district attorney because he had
hoped to get a more favorable plea deal.

DISCUSSION
Assignment of Error 1 and Pro se Assignment of Error 3
In his only counseled assignment of error and in his third pro se assignment
of error, defendant argues that the State violated his Sixth Amendment right to
confrontation and a public trial when, subject to cross-examination by defendant, it
presented the testimony of rebuttal witness, Arturio Rodriguez, via WebEx, a video
program for transmitting two-way live video. Because of this video testimony,
defendant argues that he could not confront “face-to-face” the witnesses against
him and that the physical absence of the witness from the courtroom denied
defendant the right to a public trial.
The Sixth Amendment to the United States Constitution guarantees an
accused in a criminal prosecution the right to confront the witnesses against him.
The Confrontation Clause of the Louisiana Constitution specifically and expressly
guarantees the accused the right “to confront and cross-examine the witnesses
against him.” La. Const. Art. I, § 16; State v. Robinson, 01-273 (La. 5/17/02), 817
So.2d 1131, 1135. Confrontation not only means the ability to confront the
witnesses physically but also to secure for the opponent the opportunity of cross
examination, which is its main and essential purpose. Id. Cross-examination is the
principal way to test the believability and truthfulness of the testimony, and it has
traditionally been used to impeach or discredit the witness. Id.; State v. Williams,


16-KA-494 10
04-608 (La. App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081
(La. 4/22/05), 899 So.2d 559.
In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, the United States
Supreme Court addressed the issue of whether the federal Confrontation Clause
precluded a child witness in a child abuse case from testifying against a defendant
at trial outside the defendant’s physical presence, by one-way closed circuit
television. There, the defendant argued that the Sixth Amendment required “face
to-face” confrontation and that anything less failed to satisfy the constitutional
guarantee. Although the Craig Court acknowledged that the Confrontation Clause
guarantees defendant a “face-to-face meeting with witnesses appearing before the
trier of fact,” the Court recognized that it has never held that “the Confrontation
Clause guarantees criminal defendants the absolute right to a face-to-face meeting
with witnesses against them at trial.” 497 U.S. at 844, 110 S.Ct. at 3163. Rather,
“the Confrontation Clause reflects a preference for face-to-face confrontation at
trial, a preference that must occasionally give way to considerations of public
policy and the necessities of the case.” Id. at 849, 110 S.Ct. at 3165 (internal
citations omitted). That the face-to-face confrontation requirement is not absolute
does not, of course, mean that it may easily be dispensed with. Id. at 850, 110
S.Ct. at 3166. A defendant’s right to confront accusatory witnesses may be
satisfied absent a physical, face-to-face confrontation at trial (1) only where denial
of such confrontation is necessary to further an important public policy and (2)
only where the reliability of the testimony is otherwise assured. Id. The requisite
finding of necessity must be a case-specific one. Id. at 855, 110 S.Ct. at 3169.
Under Craig, it is the State’s burden to make an adequate showing of necessity.
Id. (“[W]e hold that, if the State makes an adequate showing of necessity, the
State interest in protecting child witnesses from the trauma of testifying in a child
abuse case is sufficiently important to justify the use of a special procedure that


16-KA-494 11
permits a child witness in such cases to testify at trial against a defendant in the
absence of face-to-face confrontation with the defendant.”).1
Here, the State did not make any showing of necessity, and the record
reveals no grounds upon which the district court could have reasonably reached the
conclusion that denial of confrontation is necessary to further an important public
policy. The State argues that the district court relaxed the confrontation
requirement because the State called Mr. Rodriguez unexpectedly and the court did
not wish to delay the trial for the time required to issue a writ for Mr. Rodriguez’s
appearance, for prison officials to arrange sufficient security for the transport, and
for officials to transport Mr. Rodriguez from the correctional facility in north
Louisiana to the Twenty-Fourth Judicial District Court. Given that the United
State Supreme Court determined that Maryland’s interest in protecting the well
being of child abuse victims “may be sufficiently important to outweigh, at least in
some cases, a defendant’s right to face his or her accusers in court,” we decline to
find that the State’s interest in a slightly swifter resolution of this case rises to the
level of an important public interest that would justify the denial of confrontation.
Id. at 853, 110 S.Ct. at 3167 (emphasis added). Because the procedure utilized by
the district court denied defendant his right to “face-to-face” confrontation,
because the State failed to advance any important state interest, and because the
district court failed to make a case-specific finding of necessity as required by
Craig, we find that district court’s decision to permit Mr. Rodriguez to testify via
WebEx, even subject to cross-examination, violates defendant’s Sixth Amendment
Confrontation Clause rights.
1 In Louisiana, the Legislature has enacted a procedure by which a Louisiana court can order that the testimony of a “protected person” be taken without “face-to-face” confrontation when the court has made a specific finding of necessity. See La. R.S. 15:283; La. R.S. 15:440.1-15:440.6. Under La. R.S. 15:440.2 a “protected person” is “any person who is a victim of a crime or a witness in a criminal proceeding and who is either...(1) [u]nder the age of seventeen years [or] (2) [h]as a developmental disability as defined in R.S. 28:451.2(12).” See also La. R.S. 15:283 (E). Mr. Rodriguez is not a “protected person” as defined by La. R.S. 15:440.2 or La. R.S. 15:283(E). Accordingly, the procedures enumerated in R.S. 15:283 and R.S. 15:440.1, et seq., do not apply in this case.


16-KA-494 12
Nevertheless, a violation of a defendant’s right to confrontation is subject to
a harmless error analysis. State v. Placide, 11-1061 (La. App. 5 Cir. 6/28/12), 109
So.3d 394, 399-400; State v. Merwin, 07-807 (La. App. 5 Cir. 4/15/08), 984 So.2d
842, 846. An error is harmless when the guilty verdict was surely unattributable to
the error. Whether an error is harmless in a particular case depends upon many
factors, including the following: (1) the importance of the witness’ testimony; (2)
whether the testimony was cumulative in nature; (3) whether corroborating or
contradictory evidence regarding the major points of the testimony existed; (4) the
extent of cross-examination permitted; and (5) the overall strength of the State’s
case. Id. at 846.
Here, the State presented Mr. Rodriguez’s rebuttal testimony to discredit
defendant’s theory that B.B. wrote apology letters to him for falsely accusing him
while he was in jail. Given B.B.’s admission that she penned the letters at issue,
Mr. Rodriguez’s testimony had very little importance, as the State’s own witness
corroborated Mr. Rodriguez’s ultimate testimony that defendant did not seek to
fabricate the letters. Further, Mr. Rodriguez’s testimony was cumulative on the
point for which the State originally offered it as Cynthia Cimino, Mr. Rodriguez’s
attorney, also testified that defendant sought to fabricate letters from B.B. to claim
his innocence and testified as to what the fabricated letter would contain. Thus,
independent of Mr. Rodriguez’s testimony, the State presented face-to-face
testimony regarding the letters despite the fact that Mr. Rodriguez recanted his
testimony. Moreover, despite the face-to-face confrontation violation, defendant
received the opportunity to thoroughly and effectively cross-examine Mr.
Rodriguez. Finally, the State presented a very strong case, including the victims’
trial testimony, photographic evidence corroborating one of the victim’s stories,
and the testimony of the State’s expert in child abuse pediatrics and delayed
disclosure who testified that, in her opinion, E.D. and A.B. had been sexually


16-KA-494 13
abused. Taken together, this evidence proves beyond a reasonable doubt that
defendant was guilty of sexual battery of a known juvenile under the age of
thirteen with respect to E.D. and A.B. Based on the foregoing, we find that any
violation of defendant’s right to confrontation by erroneous admission of Mr.
Rodriguez’s testimony via WebEx was harmless error unattributable to the guilty
verdicts.
Additionally, defendant argues that his right to a public trial was denied
when Mr. Rodriguez testified via WebEx because the public could not see Mr.
Rodriguez during his testimony. La. C.Cr.P. art. 841(A) provides that “[a]n
irregularity or error cannot be availed of after verdict unless it was objected to at
the time of occurrence.” La. C.Cr.P. art. 841(A) requires a party to make known to
the court “the action which he desires the court to take, or of his objections to the
action of the court, and the grounds thereof.” State v. Videau, 13-520 (La. App. 5
Cir. 12/27/13), 131 So.3d 1070, 1085, writ denied, 14-212 (La. 9/12/14), 160 So.3d
965.
In order to preserve the right to appellate review of an alleged trial court
error, a party must state an objection contemporaneously with the occurrence of the
alleged error, as well as the grounds for the objection. Id.; State v. McClain, 04-98
(La. App. 5 Cir. 6/29/04), 877 So.2d 1135, 1144, writ denied, 04-1929 (La.
12/10/04), 888 So.2d 835. A new basis for an objection may not be raised for the
first time on appeal. Id. (citing State v. Johnson, 03-620 (La. App. 5 Cir.
10/28/03), 860 So.2d 180, 187, writ denied, 03-3171 (La. 3/19/04), 869 So.2d
849). The purpose behind the contemporaneous objection rule is to put the trial
judge on notice of an alleged irregularity so that he may cure the problem. Id. It is
also intended to prevent the defendant from gambling for a favorable verdict and
then resorting to appeal on errors that might easily have been corrected by an
objection. Id.


16-KA-494 14
At no time prior to, during, or subsequent to Mr. Rodriguez’s testimony did
defendant lodge an objection on the basis that his right to a public trial was
violated. Rather, he raises it as a new basis for the first time in this appeal.
Therefore, defendant’s argument regarding his right to a public trial was not
preserved for appellate review.

Pro Se Assignment of Error 1
In this pro se assignment of error, defendant argues that the trial court erred
in permitting the State to present the testimony of the victims, E.D. and A.B.,
without a competency hearing. Defendant contends that neither victim could
identify him in court, and he asserts that they could not comprehend the difference
between a lie and the truth. Therefore, he argues that he was denied his “Sixth
Amendment Rights of Due Process,” which entitles him to a new trial.
Every person of proper understanding is competent to be a witness except as
otherwise provided by legislation. La. C.E. art. 601. “Understanding, not age, is
the test of competency for any witness.” State v. Foy, 439 So.2d 433, 435 (La.
1983); State v. Chester, 14-540 (La. App. 5 Cir. 11/25/14), 165 So.3d 1006, 1009.
A vital determination to be ascertained is whether the witness understands the
difference between the truth and falsehoods. Id. The competency of a child to
testify as a witness is based not only on the child’s answers to questions testing his
understanding but also on the child’s overall demeanor. Id. A child’s sometimes
hesitant or unresponsive answers do not necessarily indicate incompetency. Id.;
State v. Humphrey, 412 So.2d 507, 516 (La. 1982). Those answers may be part of
an overall demeanor in the unfamiliar courtroom experience which favorably
reflects testimony only as to what is clear to the child. Chester, 165 So.3d at 1009.
A trial court’s determination on the competency of a child to testify is
entitled to great weight on appeal because the trial court judge has the crucial


16-KA-494 15
advantage of seeing and hearing the child. State v. Troulliet, 94-183 (La. App. 5
Cir. 9/14/94), 643 So.2d 1267, 1270 (citing State v. Foy, 439 So.2d 433, 435 (La.
1983)). The trial court judge is vested with wide discretion in determining the
competency of the child witness and his ruling will not be disturbed on appeal,
absent manifest abuse of discretion. Chester, 165 So.3d at 1009.
During trial, the State called E.D. and A.B. as witnesses. Defense counsel
objected to E.D.’s competency on the basis of her age and her failure to identify
defendant in court, which the trial judge noted for the record. As to A.B., defense
counsel was mid-objection when he was interrupted by the trial judge, who
commented, “Yeah. I’m going to give them a little bit longer to try to develop that,
but I note your objection for the record.” Therefore, defendant’s objection only
preserved his right for appellate review as to the competency of the witnesses. He
has waived his right to review for any alleged Confrontation Clause or due process
errors.
When asked to identify defendant in the courtroom, E.D. responded, “I
forgot where I saw him at …. I don’t see him.” She reported that she is nine years
old and that her birthday is September 22. She answered questions regarding the
name of her school and her grades. When questioned by both the State and
defense counsel, she testified repeatedly that she knew the truth from a lie and that
she was telling the truth.
A.B. also could not identify defendant in court and testified via a
hypothetical that the truth is good and lies are bad. A.B. testified that she attends
school “on the west bank” and that she is in first grade. She could also provide the
name of her teacher. A.B. further testified that she is six years old and that her
birthday is in a “hundred” days. A.B. also provided the names and ages of her four
brothers and sisters.


16-KA-494 16
In our view, the district court did not abuse its discretion in finding that E.D.
and A.B. were competent to testify as witnesses. Although E.D. and A.B. failed to
readily identify defendant in court, both appeared to understand the questions
asked of them. Despite their young ages, they were both coherent and responsive
to the questions asked and both indicated that they knew the difference between the
truth and lies. Accordingly, we find that this assignment of error is meritless.

Pro Se Assignment of Error 2
In his second pro se assignment, defendant asserts that the State admitted
and published to the jury the redacted/altered tape and transcripts of E.D.’s
interview at the Audrey Hepburn Care Center in violation of La. R.S.
15:440.5(A)(3). Defendant argues that the admission of this evidence also denied
defendant his rights to confrontation and to present a defense. Defendant contends
that these rights were violated because defense counsel could not elicit testimony
on cross-examination regarding previous sexual abuse allegations made by E.D.
Further, defendant asserts that the State failed to comply with the strict statutory
requirements of establishing the tape as competent and admissible evidence at trial.
During pre-trial, the State filed and the trial judge granted a motion in limine
in accordance with La. C.E. art. 412 to prevent testimony as to previous
accusations of abuse made by the victim against a relative in another jurisdiction.
In compliance with the district court’s ruling on the motion in limine, the State
edited the Audrey Hepburn Care Center audiotape and redacted the transcript to
eliminate any reference to these prior accusations. At trial, defense counsel
objected on the grounds that the documents and the audiotape were “manipulated,”
and “according to the statute, the use of these documents and this information is
supposed to be restricted and only allows unredacted or unmanipulated
documents….”


16-KA-494 17
As an initial matter, defense counsel did not object to the admission of this
audio and transcript on the Confrontation Clause or Due Process bases he now
raises for the first time on appeal. Accordingly, defendant has waived review of
this alleged error on those bases. La. C.Cr.P. art. 841.
The Louisiana Supreme Court has considered several factors, derived from
United States v. Starks, 515 F.2d 112 (3d Cir. 1975), when determining whether a
party has established a foundation for the admissibility of an audio recording. See
State v. Hennigan, 404 So.2d 222, 236 n.7 (La. 1981). Although the Supreme
Court has never held that the establishment of each of these facts is necessary for
the admission of audio recordings, we consider the following factors helpful in
reviewing whether the State properly laid a foundation for the admissibility of the
redacted audio recording of Dr. Jackson’s interview with E.D.:
(1) That the recording device was capable of taking the conversation now offered in evidence.

(2) That the operator of the device was competent to operate the device.

(3) That the recording is authentic and correct.

(4) That changes, additions or deletions have not been made in the recording.

(5) That the recording had been preserved in a manner that is shown to the court.

(6) That the speakers are identified.

(7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.
Starks, 515 F.2d at 122 n.11; see State v. Jones, 45,429 (La. App. 2 Cir. 8/11/10),
46 So.3d 756, 762. Dr. Jackson testified that the incident history she conducted
with E.D. was recorded on a C.D. and that the C.D. accurately reflected the
conversation she had with E.D. Dr. Jackson also testified that, during E.D.’s
interview, she and E.D. were the only individuals in the room. The State
demonstrated that the conversation was voluntary and in good faith when it elicited


16-KA-494 18
testimony from Dr. Jackson that she took E.D.’s incident history “for medical
diagnosis and treatment so that [she knew] what things [she] need[ed] to do, what
may have touched what, what type of testing, …what other things [E.D. and A.B.]
may be at risk for.” Although defense counsel objected to the admission of a
redacted version of this interview, we do not find the district court erred in
permitting the State to use the redacted version of the interview against the
defendant. Under La. R.S. 15:450, “Every confession, admission or declaration
sought to be used against any one must be used in its entirety, so that the person to
be affected thereby may have the benefit of any exculpation or explanation that the
whole statement may afford.” After reviewing and comparing the original
transcript of E.D.’s Audrey Hepburn Care Center interview and the redacted
version the district court admitted into evidence at trial, we find that the district
court did not abuse its discretion in finding that the State properly laid the
foundation for the admission of this evidence and in denying defendant’s request to
admit the entirety of E.D.’s statement. The redacted version of the interview
accurately reflects E.D.’s statements to Dr. Jackson. The only portions removed
from the audiotape concern past sexual behavior of a sexual assault victim
excluded in accordance with La. C.E. art. 412. Moreover, defendant had ample
opportunity to question E.D. concerning the charged offenses during cross
examination. Under these circumstances, we do not find the district court abused
its discretion in admitting the redacted audiotape of E.D.’s interview.2
Accordingly, we find this assignment of error meritless.


2 Defendant argues that the district court should have excluded this audiotape pursuant to La. R.S. 15:440.5. La. R.S. 15:440.5 provides constitutional safeguards for a defendant’s right to confrontation with respect to the admission of videotaped statements. We find that the requirements of La. R.S. 15:440.5 are inapplicable to this case because the redacted “tape” to which defendant refers was an audiotape of E.D.’s Audrey Hepburn Care Center interview. The State did not seek to enter a videotape of this interview.


16-KA-494 19
ERRORS PATENT REVIEW
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. 5 Cir. 1990). Our review reveals that there are errors patent in this case.
First, defendant was arraigned on April 5, 2013, and according to the minute
entry, it appears he entered a single plea of not guilty rather than a guilty plea on
each count. La. C.Cr.P. art. 555 provides, in pertinent part: “A failure to arraign
the defendant or the fact that he did not plead, is waived if the defendant enters
upon the trial without objecting thereto, and it shall be considered as if he had
pleaded not guilty.” State v. Lawrence, 08-1317 (La. App. 5 Cir. 2/18/09), 6 So.3d
912, 916, writ denied, 09-790 (La. 12/18/09), 23 So.3d 932. The record does not
reflect that defendant objected to this error. Therefore, we find that defendant
waived this error, and no corrective action is necessary.
Second, defendant was charged on counts one and two with sexual battery of
a juvenile under the age of thirteen in violation of La. R.S. 14:43.1, where the
offense was alleged to have been committed on or between November 1, 2011, and
February 3, 2013. At the time of the offense, the punishment was, as follows:
“imprisonment at hard labor for not less than twenty-five years nor more than
ninety-nine years [with at] least twenty-five years of the sentence imposed . . .
without benefit of parole, probation, or suspension of sentence.” La. R.S.
14:43.1(C)(2) (emphasis added). According to the transcript, the district court
imposed defendant’s sentences on count one and count two without designating
that the sentences must be served at hard labor. The commitment, however,
reflects that the sentences were to be served at hard labor. Generally, when the
transcript and commitment are inconsistent, the transcript prevails. State v. Lynch,
441 So.2d 732, 734 (La. 1983). Nevertheless, because the underlying statute, La.
R.S. 14:43.1, requires that the sentences were to be served at hard labor, allowing


16-KA-494 20
no discretion to the trial judge, the error is harmless and requires no corrective
action. See State v. Tillery, 14-429 (La. App. 5 Cir. 12/16/14), 167 So.3d 15, 29,
writ denied, 15-106 (La. 11/6/15), 180 So.3d 306 (finding that because the
underlying statute required the sentence to be served at hard labor, the trial judge’s
failure to state three life sentences were at “hard labor” was harmless error which
required no corrective action).
Third, neither the commitment nor the transcript indicates that the trial judge
ordered at least twenty-five years of the sentences imposed to be served without
benefit of parole, probation, or suspension of sentence in compliance with La. R.S.
14:43.1(C)(2). La. R.S. 15:301.1(A) provides that in instances where the statutory
restrictions are not recited at sentencing, they are included in the sentence given,
regardless of whether or not they are imposed by the sentencing court. Given the
self-activating nature of the benefits provision, we find no need to take corrective
action concerning the trial court’s failure to specify that defendant’s consecutive
sentences of twenty-five years on two counts of sexual battery were to be served
without benefit of parole, probation, or suspension of sentence. See State v.
Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 798-800; State v. Rainey, 14-664
(La. App. 5 Cir. 12/16/14), 167 So.3d 94, 96 (given the self-activating nature of the
benefits provision, this Court found no reasons to correct the trial court’s omission
to specify the defendant’s sentences were to be served without benefit of parole,
probation, or suspension of sentence).
Finally, review of the record reveals that the trial court failed to inform
defendant of the prescriptive period for seeking post-conviction relief. This Court
has corrected this error patent by way of its opinion. See 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), 141
So.3d 285; State v. Ramsey, 10-333 (La. App. 5 Cir. 1/25/11), 60 So.3d 36, 42;
State v. Davenport, 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ


16-KA-494 21
denied, 09-158 (La. 10/16/09), 19 So.3d. 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.

Outcome: