State of Louisiana Versus Anthony L. Lane

STATE OF LOUISIANA NO. 20-KA-181

VERSUS FIFTH CIRCUIT

ANTHONY L. LANE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-5760, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

January 27, 2021

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

CONVICTIONS AND SENTENCES AFFIRMED;
REMANDED WITH INSTRUCTIONS TO CORRECT UNIFORM
COMMITMENT ORDER (UCO) AND APRIL 16, 2020 MINUTE ENTRY
MEJ
SMC
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
Laura S. Schneidau

COUNSEL FOR DEFENDANT/APPELLANT,
ANTHONY L. LANE
Prentice L. White

JOHNSON, J.

Defendant, A.L., seeks review of the Twenty-Fourth Judicial District Court’s

judgment finding Defendant guilty of two counts of indecent behavior with a

juvenile in violation of La. R.S. 14:81.1 Defendant was sentenced to six years with

the Department of Corrections at hard labor for each count, to be served

consecutively. Defendant was also required to register as a sex offender pursuant

to La. R.S. 15:544. Defendant alleges that the evidence presented by the State

during the two-day trial was insufficient to support his convictions. For the

following reasons, we affirm the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

On November 3, 2017, a bill of information charging Defendant with one

count of indecent behavior with a juvenile, “Beth” (D.O.B. 10/29/1999), in

violation of La. R.S. 14:81. Defendant pled not guilty at his arraignment four days

later. The State filed a superseding bill of information on July 13, 2018, charging

Defendant with two counts of indecent behavior with a juvenile (D.O.B.

10/29/1999 and D.O.B. 11/22/1998) in violation of La. R.S. 14:81. Defendant pled

not guilty at his second arraignment on December 8, 2018.

Trial commenced on February 10, 2020, and a six-person jury unanimously

found Defendant guilty the next day. Defendant’s Motion to Suppress Statement

was denied on February 20, 2020. Defendant’s motions for new trial and for post-

verdict judgment of acquittal were also denied, and on March 16, 2020, Defendant

was sentenced to six years imprisonment at hard labor for each count of indecent

behavior with a juvenile, to be served consecutively, after waiving sentencing

delays. The trial court also advised Defendant of his obligation to register as a sex

1
Pursuant to La. R.S. 46:1844(W)(3), we will refer to Defendant in the case by his initials and use
pseudonyms to identify the victims and their family members. State v. Gibson, 09-486 (La. App. 5 Cir.
3/9/10); 38 So.3d 373, 375, writ denied, 10-802 (La. 11/5/10); 50 So.3d 814; see also State v. Myles, 04-
677 (La. App. 5 Cir. 1/25/05); 894 So.2d 515, 528.

20-KA-181 1

offender and provided Defendant with a written copy of the sex offender

notification requirements. Defendant’s timely motion for appeal was granted on

March 30, 2020, but his motion to reconsider sentence was denied on April 23,

2020.

At trial, “Mary”, the victims’ aunt, testified that she and her nieces, with

whom she visited weekly, enjoyed a close relationship. However, “Anne” secretly

joined the military after her high school graduation. “Mary” was “very shocked”

by the decision because “Anne” had been accepted to L.S.U. “Mary” recalled that

“Beth” visited her at work on September 5, 2017, and the pair sat and talked in

“Mary”’s car. During that conversation, “Beth” explained to “Mary” why her

sister “Anne” joined the military. “Mary” recalled that “Beth”’s demeanor

changed and “Beth” started to cry as she told her aunt that “Anne” was running

away from Defendant, their father. “Beth” was 17 years old when she disclosed to

her aunt that she and her sister had been abused. “Beth” asked “Mary” to keep the

information a secret. Later, “Beth” gave “Mary” permission to tell “Nancy”,

“Mary”’s sister and the girls’ mother, about their conversation. “Mary” went to

“Nancy”’s job to tell her about her visit with “Beth” and then the sisters went to

“Nancy”’s house in Metairie, where “Mary” called 911 to inform the police. The

State offered, filed, introduced and published the 911 call before playing the video

tape in open court.

“Mary” described “Anne” and “Beth” as “good girls” who listen to their

parents and “don’t cause them no problems” or get into trouble. “Mary” did not

know about any marital problems between her sister and Defendant or an incident

in 2015 where the police were called out to the home. Defendant and “Mary”’s

sister “Nancy” had dated since “Mary” was 15 years old. According to “Mary”,

Defendant was not a normal, doting father; “he was just there.” She never saw

Defendant do anything inappropriate, and the girls loved their father. Her nieces

20-KA-181 2

were not allowed to date or have boys over to the home. Although “Mary” read

text messages between “Beth” and “Anne”, she did not see the text messages

between “Anne” and Defendant, but testified “[“Beth”] told [her] that “Anne”

didn’t go to college because [Defendant] texted “Anne” and said [‘]I don’t care

where you gone, I’m always going to find you[’] and that’s why [“Anne”] joined

the Army and left.” After Defendant went to jail, “Nancy” moved into “Mary”’s

home.

“Nancy”, Defendant’s wife and the victim’s mother, confirmed that her

sister “Mary” visited her at work and informed her of her younger daughter’s

disclosure on September 6, 2017. She and Defendant had been married for fifteen

or sixteen years. “Nancy” explained that the family had lived in the apartment on

Populus2 since 2012. She and Defendant were separated at times while living on

Populus, and Defendant was not always in the home. The family also lived on

May, at one point, and stayed with family whenever they were evicted. The only

time “Anne” had her own room was the first time the family lived on Populus.

When “Anne” and “Beth” were around nine or ten years old, the family stayed on

Hedera. “Nancy” described her daughters as “wonderful kids” and sweet, and

added that “Anne” is “strong like me.”

In 2017, “Nancy” worked at a day care and a chemical plant and also went

to school full-time. She left the home at 2:15 a.m. in the morning and Defendant

would be responsible for the children. On September 6, 2017, “Mary” went to

“Nancy”’s job and told her that they had to go home because something happened.

“Nancy” spoke to “Beth” at the house and “Nancy” recalled that “Beth” had tears

in her eyes and was crying. “Nancy” testified that “Beth” said that “her dad had

been touching her. Her dad had been coming in her room and touching her.”

“Nancy” agreed with the decision to call the police. When the police arrived, they

2
All street names of the victims’ addresses have been changed to protect their privacy. See note 1, supra.

20-KA-181 3

spoke to “Beth” privately. “Anne” had been gone for approximately three weeks

before her sister’s disclosure. “Nancy”’s efforts to find “Anne” were unsuccessful

but she suspected “Anne” went to the military because she had found a packing list

in her laundry. “Nancy” remembered that “Anne” was in ROTC in school, but

stated that it was not “Anne”’s lifelong dream to enter the military. Before “Anne”

left, “Nancy” felt that the girls had become a little withdrawn. “Anne” refused to

give her father a ride to work once and “Beth” was very quiet and had a crying

spell approximately a month before the disclosure was made. “Nancy” gave

“Anne”’s phone to the police in April 2018 in hopes that it would contain evidence

of communications between Defendant and the victims. “Nancy” testified that she

did not know a lot about phones, but her husband fixed and repaired phones if any

family member’s phone broke or was not working properly.

“Nancy” explained that her whole family saw her children a lot but she did

not share details about the state of her marriage because she is a private person and

her sister “talks too much.” Defendant drank and worked at a club when the girls

were eleven and twelve years old. “Nancy” admitted that she and Defendant

argued a lot, and “Anne” got in the middle of a physical fight between them once.

The girls were not allowed to date or entertain boys in the home. “Nancy” also

testified that the girls had jobs and paid their own phone bills. “Nancy” never

learned specific details about the abuse. She asked her daughters about the

disclosures, but respected their privacy when they chose not to respond.

Detective Kerstin (Mcabee) Henderson began her career in law enforcement

in 2007. In 2017, she worked in the personal violence unit of Jefferson Parish

Sheriff’s Office (JPSO). She responded to the call at 2535 Populus on September

6, 2017. Det. Henderson recalled that “Beth” was shy and not forthcoming, but

“Beth” was able to describe past incidents that Det. Henderson discerned were

criminal in nature. “Beth” was 17 years old at the time of the initial interview,

20-KA-181 4

which she recorded. “Beth” told her that the abuse began around sixth or seventh

grade and the last incident was around ninth grade. “Beth” told the detective that

she did not witness abuse of any other victims, but she did talk to her sister,

“Anne” about the abuse. “Beth” told Det. Henderson that the abuse took place at

2535 Populus and also on May Avenue, a previous residence.

Det. Henderson also interviewed “Beth”’s aunt and mother. “Beth”’s aunt,

“Mary”, confirmed the circumstances of the initial disclosure. “Beth”’s mother,

“Nancy”, told Det. Henderson that she did not have prior knowledge of the abuse,

but she did recall an earlier incident where her older daughter “Anne” ran out of

the house because she was upset about something that happened inside. Det.

Henderson testified that there were no child custody issues in the home at the time

the disclosure was made.

After speaking with “Beth” and her aunt and mother, Det. Henderson met

with Defendant at the JPSO Criminal Investigations Bureau. The entirety of her

contact and conversation with Defendant was recorded. A redacted version of the

video, that the State and the defense stipulated to as including all relevant portions

of Defendant’s statement, was played in open court. Det. Henderson testified that

she advised Defendant of his Miranda rights. The form she used to assist her with

advising Defendant of his rights was also admitted into the record as evidence.

After taking Defendant’s statement, Det. Henderson applied for an arrest warrant

charging Defendant with sexual battery and indecent behavior with a juvenile.

“Beth” was the only victim at the time; Det. Henderson had not made contact with

“Anne”, who lived out-of-state, at that time.

Det. Henderson also interviewed the girls’ younger sister who did not make

any disclosure but informed the detective that “Anne” asked her, before she left, if

her father ever did anything to her. Det. Henderson eventually made contact with

“Anne” after continuous attempts, but “Anne”’s mother had provided her with

20-KA-181 5

“Anne”’s cell phone in the meantime. “Beth”, and later “Anne”, told Det.

Henderson about inappropriate text message conversations between “Anne” and

Defendant. Det. Henderson made arrangements for “Anne” to be interviewed by

the Killeen (TX) Police Department and for the interview to be recorded. Det.

Henderson subsequently received a written statement and a video/audio recorded

statement. After reviewing “Anne”’s written and video statements, Det.

Henderson obtained a second arrest warrant for sexual battery and indecent

behavior with a juvenile on May 30, 2018.

Det. Henderson testified that, through those statements, “Anne” disclosed

incidents of abuse began when she was in fourth grade and continued until she was

17 years old. “Anne” disclosed that her father touched her on her vagina and

exposed himself to her. Det. Henderson was unable to interview Defendant a

second time before he was released. Det. Henderson requested a digital forensic

search of “Anne”’s phone. She received a report from Solomon Burke, a digital

forensic examiner. Det. Henderson testified that there was no physical evidence

because of the delayed reporting, and that delayed reporting regarding child or

juvenile disclosures of sexual abuse was common.

JPSO Sgt. Solomon Burke was the commander of the digital forensics unit.

The parties stipulated that Sgt. Burke was an expert in the field of mobile device

forensics. Sgt. Burke prepared a JusticeTrax report after attempting to examine

“Anne”’s Apple iPhone. Sgt. Burke recalled that he was unable to exam the phone

because a factory reset had been performed and an exam would only yield the

factory settings on the device and no usable data. Sgt. Burke explained that the

phone could be reset from the phone itself, or remotely by sending a signal from

iTunes or your cellular service carrier with authorization. Sgt. Burke testified that

a factory reset, or wipe, deletes all the information the apps on the phone

previously contained. Sgt. Burke said that Photo Vault is an app designed to hide

20-KA-181 6

images by labeling them with a proprietary file extension so the images are hidden

unless someone is able to gain access to the app – those images are not stored in

the gallery.

“Beth” testified that her birthday was October 29, 1999 and she lived with

her mother and sixteen-year-old sister while working and preparing to continue her

education. In September of 2017, “Beth” recalled that she was seventeen years

old and a senior at Grace King High School and she worked at a fast food

restaurant. “Beth” recalled that her sister “Anne” called her from the airport to say

goodbye and to let her know that she was leaving to join the military. “Beth” did

not tell her mother where her sister was going because she did not want her mother

to tell their father where her older sister was. “Anne” texted “Beth” and described

texts that “Anne” received from their father that said that he would try to find

“Anne” when she went away to college and that he was in love with “Anne”.

“Beth” did not remember if she saw the text messages “Anne” described.

“Beth” recalled going to visit her aunt at her job after she spoke to her sister.

“Beth”’s Aunt “Mary” began to question her about “Anne” and whether she was in

communication with her sister and why “Anne” left “out of the blue.” “Beth”

further testified:

And I was telling her, like, that, like, why -- she was asking
why she didn't tell my momma and my daddy. And [“Anne”] and my
momma don't really, like, -- they're not that close and they don't
communicate. And I was, like, it doesn't matter that she didn't tell my
dad because, like, they, like, it's not like, I said it was none of his
business that she didn't tell him. And she was, like, what do you
mean? And I was, like, you know, you don't know, like, you don't
understand. And she was, like, you know, like, you know, what you
mean? And I was, like -- and she was, like, touched? And I was, like,
yeah.

20-KA-181 7

“Beth” recalled that her aunt was crying during her disclosure and “Beth”

asked her aunt not to say anything because she did not want to “mess up the

family.” The next day, “Beth” said her aunt told her that she could not keep her

disclosure a secret and that she would tell “Beth”’s mother. “Beth” saw her mother

at home, at 2535 Populus, after her aunt told her mother about her disclosure.

“Beth” said that “Nancy” asked her why “Beth” did not tell her what was

happening. “Beth” responded, “Like, it kind of just came out.”

“Beth” described the first incident of abuse that took place at the family’s

apartment on May. She said that her father was sleeping in her little sister’s bed

because he had gotten into an argument with her mother. She woke up and jumped

when she felt what she discovered was her father rubbing her vagina on the outside

of her clothes. She said that her father was next to her in the twin bed at that point

and he pretended to be asleep. “Beth” went into her mother’s room and sat on the

bed but did not say anything. She returned to her room and her father was still

laying down. “Beth” also recounted another time on May where she was watching

TV on the couch with Defendant and her sister “Anne”, and Defendant exposed his

penis and stared at her.

“Beth” also remembered a time on Populus when she was in the eighth or

ninth grade. She had a new pink bed but was waiting on a new mattress. She said

that she woke up to Defendant stroking her vagina and trying to put his hand

through the leg opening of her panties towards her crotch from the floor where he

had been laying down. “Beth” told her sister “Anne” about the incident as she

cried the next morning. She also told “Anne” about what happened at their

residence on May, and “Anne” confided to her that it happened to “Anne” also.

“Beth” also recalled an incident near Halloween where Defendant admitted to

spiking her water bottle after she asked him about it because its contents tasted

different after she left to shower. “Beth” had seen Defendant “crushing up pills,

20-KA-181 8

like, sleeping pills” earlier that day. “Beth” mentioned that she had taken sleeping

pills before “because she had some problems.” She thought that her father had

spiked her drink with alcohol.

“Beth” testified about another time on Populus where Defendant tried to

touch her through a blanket while she was discussing with him why she and

“Nancy” were fussing at one another earlier that day. “Beth” confirmed that she

and her sister were not allowed to date and that she loved her father, but she did

not make the allegations up to get her father out of the house. She said that she

would also receive “creepy” text messages from Defendant to turn the TV off and

unlock the door, which she would keep locked “because he [would] come into the

room.”

“Anne”’s birthday was November 22, 1998 and she was 21 years old at the

time of the trial. During high school, she worked at Wendy’s, Taco Bell, another

restaurant, and Walgreens. She used the money she earned to pay her phone bill,

car note and insurance. “Anne” testified that joining the military was not her

lifelong dream; she wanted to go to college. “Anne” participated in ROTC to

avoid taking gym class. “Anne” recalled that, just before graduation, she received

text messages from her father, while they were both at home in different rooms,

that read that “he was in love with [her] and wherever [she] was going, he was

coming with [her].” She deleted that message and subsequent messages Defendant

sent as she received them. She took screenshots of the messages, but deleted them

“because [she] was embarrassed. It was inappropriate.” “Anne” also feared others

would discover what was happening. She deleted the screenshots from her iCloud

and downloaded then to an app. She did not remember the name of the app but

testified that the app was locked and a password had to be used to access the app.

She mentioned that she had to block Defendant from her phone, but he had

multiple phones and changed numbers frequently. She also said that she received

20-KA-181 9

emails from her father at some point. “Anne” said that around 2:00 or 3:00 in the

morning, for months, Defendant would sit in the dark and stare at their bedroom

door. She said that if they came out he would ask if they were looking for

something, or if they needed him. Defendant said that she and her father never had

a close relationship, that he “creep[sic] [her] out” and that he did not participate in

their school activities. “Anne” observed her father drinking in the past but she had

never seen him drunk.

On the stand, “Anne” identified the iPhone 6 she took with her to basic

training. She recalled that it did not function reliably before she left home, but by

the time she left home the phone had died. “Anne” explained that the iPhone could

be reset by factory reset, or by wiping the phone using your iCloud login. She also

stated that she was the only person who knew her iCloud password. She tried to

get the phone repaired but the vendor was not successful – she did give the

repairman her iCloud password, but she could not say whether he was able to

perform a factory reset. “Anne” purchased a new phone that same day.

“Anne” also testified that her parents had a lot of arguments, and that she

called 911 once and the police came to the house at least once. She said that

furniture was broken during fights and holes were punched in the walls. “Anne”

mentioned that her parents did not allow them to date or have any friends visit

them at home.

“Anne” joined the military the same day she went to speak to the recruiter.

She said that the military was “the only way to guarantee that I could be, like

independent and not struggle and not have to come back home[.]” She spoke to an

area detective some months after joining the military. She testified that the first

instance of abuse she remembered occurred when she was in fourth grade at the

family’s apartment on Hedera in Metairie. “Anne” said that Defendant “caressed

her private area” and touched her vagina with his finger while giving her a

20-KA-181 10

piggyback ride up the stairs. “Anne” described laying at the foot of her parents’

bed before her mother had to leave for work at the plant around 2:00 or 3:00 a.m.

She recalled one time attempting to leave and being told to stay and inching away

slowing and getting in the bed with her little sister and “wrapping [her] legs around

her so he wouldn’t take her.”

When “Anne” had her own room on Populus Avenue she would hear

someone playing with the door in the middle of the night. She said Defendant

would use his nail or a coin to unlock the door, but if she woke up, he would just

close the door and leave. “Anne” described setting “booby traps” behind the door

so she could remain asleep. “Anne” also would lock her door because Defendant

touched them inappropriately. She mentioned Defendant sticking his hands in

their shirts and grabbing their breasts while play fighting. She said that this

happened at least three times when she and her sister just started wearing bras and

before they stopped playing with their father because “it wasn’t worth it.”

“Anne” testified that the family had been evicted from their home a lot and

her parents also separated several times. While living at the apartment on May,

“Anne” recalled Defendant faking arguments with their mother so he could sleep

in one of their beds. “Beth” asked to sleep in “Anne”’s bed once because

Defendant had touched her one night. “Anne” described another incident where

her father caressed her vagina but she woke up immediately and he pretended to be

asleep. “Anne” testified that the next day her father left money in her drawer for

$120 shoes he knew she wanted even though her mother said “no” the day before

because all the family had was bill money. “Anne” gave the money to her mom

for shoes, but her mother used the money for bills. “Anne” did not tell her mother

what was going on after this incident because she was embarrassed and scared.

“Anne” said she did tell “Beth” “it happened to me” when “Beth” told her about

the abuse she had experienced, but the sisters did not share details. Also, once

20-KA-181 11

while they were at the house on May, “Beth” told “Anne” that Defendant “pulled

his private area out” while they were watching TV in the living room. “Anne” told

“Beth” to come in their room and lock the door until their mother returned home.

“Anne” said that the girls mostly stayed with their grandmother while the family

lived on May.

When the family lived on Populus the second time, the sisters kept their door

locked all of the time. One night, “Anne” woke up to find her sister “Beth” crying

after Defendant crawled into the room and touched “Beth”. “Anne” recalled

another incident where she observed her naked father in the shower bathing

because the bathroom door was wide open. She said that Defendant looked “dead

at [her]” before she left the house. She said that her father got dressed and came

after her, screaming her name and asking her what she was doing. “Anne” recalled

telling him to leave her alone and stop following her. “Anne” waited in the car for

30 minutes, until her mother came back. “Anne” and her sister attempted to tell

their mother about this particular incident, but their mother was half-asleep.

After “Anne” testified, the trial judge confirmed that Defendant understood

his rights and chose not to testify. The judge then charged the jury with

instructions. On March 16, 2020, the court noted that a jury had unanimously

convicted A.L. and concluded that the facts and evidence supported his convictions

before denying Defendant’s post-trial motions (Motion for a New Trial and Motion

for Post-Verdict Judgment of Acquittal to challenge sufficiency of the evidence).

The State also read a victim impact statement that “Nancy” wrote on behalf of

herself and her daughters before the district court sentenced Defendant to six years

commitment with the Department of Corrections at hard labor for each count of

indecent behavior with a juvenile, to be served consecutively.

20-KA-181 12

ASSIGNMENT OF ERROR

Defendant alleges that the evidence presented at trial was insufficient to

support his conviction on two counts of indecent behavior with a juvenile in

violation of La. R.S. 14:81. Defendant notes that the allegations against him

surfaced years after the last alleged incident of abuse took place. Defendant urges

the district court committed reversible error when it accepted the jury’s guilty

verdict, despite there being no physical evidence, eyewitnesses, or prior

documentation of the alleged incidents and prays this court set aside his felony

convictions.

LAW AND DISCUSSION

In reviewing the sufficiency of the evidence, an appellate court must

determine if 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. Mickel, 09-953 (La. App. 5 Cir. 5/11/10); 41

So.3d 532, 534, writ denied, 10-1357 (La. 1/7/11); 52 So.3d 885; State v.

Ordonez, 16-619 (La. App. 5 Cir. 3/15/17); 215 So.3d 473, 477. This directive

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. Clifton,

17-538 (La. App. 5 Cir. 5/23/18); 248 So.3d 691, 702. This deference to the

fact-finder does not permit a reviewing court to decide whether it believes a

witness or whether the conviction is contrary to the weight of the evidence.

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. Further, a reviewing court errs by

substituting its appreciation of the evidence and the credibility of witnesses for

20-KA-181 13

that of the fact-finder and overturning a verdict on the basis of an exculpatory

hypothesis of innocence presented to, and rationally rejected by, the jury. State

v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13); 128 So.3d 515, 531, writ denied,

13-2793 (La. 5/16/14); 139 So.3d 1024 (citing State v. Calloway, 07-2306 (La.

1/21/09); 1 So.3d 417, 418). As a result, under the Jackson standard, a review

of the record for sufficiency of the evidence does not require the reviewing

court to determine whether the evidence at trial established guilt beyond a

reasonable doubt but whether, upon review of the whole record, any rational

trier of fact would have found guilt beyond a reasonable doubt. See State v.

Jones, 08-20 (La. App. 5 Cir. 4/15/08); 985 So.2d 234, 240.

In its determination of whether any rational trier of fact would have found

the defendant guilty, a reviewing court will not re-evaluate the credibility of

witnesses or re-weigh the evidence. See Caffrey, supra. 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. See 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, 08-987 (La.

1/30/09); 999 So.2d 745. The victim’s testimony 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. Lestrick, 13-289 (La. App. 5 Cir. 10/9/13); 128 So.3d 421,

430, writ denied, 13-2643 (La. 4/25/14); 138 So.3d 643; see also Dixon, supra

20-KA-181 14

at 153; see also State v. Bruce, 14-877 (La. App. 5 Cir. 3/25/15); 169 So.3d

671, 675, writ denied, 15-833 (La. 3/4/16); 187 So.3d 1007.

The jury found Defendant guilty of indecent behavior with a juvenile

(D.O.B 10/29/1999) in violation of La. R.S. 14:81 (count one) and indecent

behavior with a juvenile (D.O.B 11/22/1998) in violation of La. R.S. 14:81

(count two). Indecent behavior with a juvenile is defined, in pertinent part, as:

A. Indecent behavior with juveniles is the commission of any of the
following acts with the intention of arousing or gratifying the
sexual desires of either person;

(1) Any lewd or lascivious act upon the person or in the presence of
any child under the age of seventeen, where there is an age
difference of greater than two years between the two persons. Lack
of knowledge of the child’s age shall not be a defense;

La. R.S. 14:81.

Accordingly, to convict a defendant of indecent behavior with a juvenile

under La. R.S. 14:81, the State must prove that (1) there was an age difference

of greater than two years between the accused and the victim, who was not yet

seventeen; (2) the accused committed a lewd or lascivious act upon the person

or in the presence of a child; and (3) that the accused intended to arouse or

gratify either his own or the victim’s sexual desires. State v. Battaglia, 03-692

(La. App. 5 Cir. 11/25/03); 861 So.2d 704, 708, writ denied, 04-1701 (La.

4/29/05); 901 So.2d 1058. A lewd or lascivious act has been defined as “one

which tends to excite lust and to deprave the moral with respect to sexual

relations and which is obscene, indecent, and related to sexual impurity or

incontinence carried on in a wanton manner.” State v. Shokr, 16-337 (La. App.

5 Cir. 2/8/17); 212 So.3d 1212, 1216, writ denied, 17-589 (La. 12/15/17); 231

So.3d 638 (citing State v. Lande, 06-24 (La. App. 5 Cir. 6/28/06); 934 So.2d

280, 291, writ denied, 06-1894 (La. 4/20/07), 954 So.2d 154). Additionally, the

statute’s definition of a lewd and lascivious act “encompasses not only the

20-KA-181 15

physical touching of the victim in an indecent manner, but also ‘indecent sexual

displays in the presence of children under the age of seventeen.’” Id. (citing

State v. Interiano, 03-1760 (La. 2/13/04); 868 So.2d 9, 15). In determining

whether an act is lewd or lascivious, the trier of fact must consider the time, the

place, and all of the circumstances surrounding its commission, including the

actual or implied intention of the actor. State v. Domangue, 12-760 (La. App. 5

Cir. 5/23/13); 119 So.3d 690, 695 (citing State v. Sturdivant, 27,680

(La. App. 2 Cir. 2/28/96); 669 So.2d 654, 659).

Indecent behavior with a juvenile is a specific intent crime for which the

State must prove the offender’s intent to arouse or gratify his sexual desires by

his actions involving a child. State v. Borden, 07-396 (La. App. 5 Cir. 5/27/08);

986 So.2d 158, 166, writ denied, 08-1528 (La. 3/4/09); 3 So.3d 470. Specific

intent to commit indecent behavior with a juvenile need not be proved as fact,

but may be inferred from the circumstances and actions of the defendant.

Domangue, 119 So.3d at 696.

Upon review of the record, we find that the evidence the State presented at

trial established each element of the offenses for which Defendant was

convicted. “Anne” and “Beth” testified as to acts committed by Defendant that

constitute indecent behavior with a juvenile. “Anne” testified regarding separate

incidents that occurred at various addresses. First, she testified that when she

was in fourth grade and living at the Hedera address, Defendant touched her

vagina through her clothes while giving her a “piggyback ride” up the stairs.

Next, “Anne” testified that, on at least three different occasions, Defendant

touched her inappropriately while they were “play fighting” by putting his hands

in her shirt and grabbing her breast at the family’s home on Populus. Finally,

“Anne” testified that, at the May address when she probably was in seventh

grade, Defendant entered her room while she was asleep and “caressed” her

20-KA-181 16

vagina. “Anne” also testified that Defendant once intentionally exposed himself

in the shower and stared at her while she was watching television. Defendant

then chased after “Anne” and screamed her name after she ran outside.

“Beth” also testified at trial about separate incidents that occurred at the

family’s various homes. She testified that the abuse began when she was in sixth

grade. She shared a bedroom with her sisters at the May address. “Beth”

recalled waking up one night to Defendant rubbing the top of her vagina, outside

of her clothing. “Beth” described another incident where Defendant exposed his

penis and watched her while she was lying on the couch in the living room and

they were watching television. “Beth” also testified that, when she was in eighth

or ninth grade and the family lived at the Populus address, Defendant “stroked”

her vagina while she was asleep and she woke up when Defendant attempted to

put his hand in her underwear. “Beth” testified that “Anne” was also asleep in

the room when this happened and that she told “Anne” about the incident the next

morning.

“Anne” and “Beth” testified that they were born in 1998 and 1999,

respectively, and the incidents mostly occurred when they were in grade school

and middle school. The bills of information, minute entries, and uniform

commitment order show that Defendant was born in 1978. Therefore, the state

also established that the victims were under the age of seventeen at the time the

incidents took place and Defendant, their father, was more than two years their

senior.

As previously discussed, the victim’s testimony alone is sufficient to

establish the elements of a sexual offense. See Clifton, 248 So.3d at 703.

“Anne” and “Beth”’s testimony was sufficient to establish Defendant’s actions

were lewd and lascivious acts. See Domangue, 119 So.3d at 696 (finding that

defendant’s actions constituted a lewd and lascivious act where victim testified

20-KA-181 17

that defendant touched her on her private part, which she described as her

“bottom parts,” both underneath and on top of her clothing, on five or more

occasions); State v. Bahm, 490 So.2d 384, 388 (La. App. 5th Cir. 1986) (finding

a victim’s testimony that the defendant had rubbed her genitals, inserted his

finger into her vagina, touched her breasts, and exposed his penis to her fifty to

sixty times over a three-year period, and the testimony of the thirteen-year-old

victim that the defendant had twice exposed his penis to her, were sufficient to

show that the defendant committed lewd and lascivious acts upon the person

and/or in the presence of the victims); State v. Mallette, 15-1131 (La. App. 3 Cir.

6/8/16); 193 So.3d 603, 632, writ denied, 16-1301 (La. 6/16/17); 221 So.3d 837

(finding the defendant’s act of touching the victim’s vagina over and under her

clothing with his hand constituted lewd and lascivious acts).

In addition, the requisite element of specific intent to arouse or gratify the

sexual desires of either person may be inferred from the circumstances and the

action of the offender. See State v. Blanchard, 00-1147 (La. 4/20/01), 786 So.2d

701. Here, the circumstances indicate that Defendant entered “Anne” and

“Beth”’s bedroom on separate occasions and then touched their genitals through

their clothing as they slept. “Beth” testified that Defendant did this to her on two

separate occasions. During one of these incidents, “Beth” woke up because

Defendant attempted to put his hand beneath her underwear. “Anne” testified

that Defendant touched her vagina with his finger while giving her a “piggyback

ride.” She also recalled defendant sticking his hands in her shirt and grabbing

her breast through her bra on three occasions. Defendant’s repeated touching of

“Anne” and “Beth” indicate that his actions were not accidental but lewd and

lascivious acts performed with the specific intent to arouse or gratify his sexual

desires.

20-KA-181 18

We find that the evidence was sufficient for the jury to infer that

Defendant intended to arouse his sexual desire by committing these intentional

sexual acts. See State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12); 102 So.3d

801, 811-12, writ denied, 12-1694 (La. 2/22/13); 108 So.3d 763. Similarly, in

Lirette, we found that the defendant had requisite intent to arouse or gratify

himself based on the victim’s testimony that the defendant woke her up when he

was moving her legs, rubbed her, squeezed her “butt,” and touched her vagina.

Also, in State v. Lestrick, 128 So.3d at 435, this Court found that the State

proved, beyond a reasonable doubt, the defendant, who inserted (or attempted to

insert) his fingers just inside the waistband of one victim and rubbed a second

victim’s chest and vagina on top of her clothes was guilty of two counts of

indecent behavior with a juvenile. The Court found that the defendant’s

activities of “lying on the bed with two juveniles half his age [and his repeated

touching of victims indicated] that his actions were not accidental, but rather

were lewd and lascivious acts performed with the specific intent to arouse or

gratify his sexual desires.”

On appeal, Defendant asserts that “Anne” and “Beth”’s allegations were

uncorroborated. He points out that neither victim witnessed the other being

abused, although a few of the alleged incidents occurred in a shared bedroom

when all three were present. Defendant further asserts that “Anne” and “Beth”’s

allegations are unsupported by any physical, scientific, or eyewitness accounts.

However, the testimony of a victim need not be corroborated to support a

conviction. See State v. Ordonez, 215 So.3d, at 478. It is well-settled that a

victim’s testimony 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. Bruce, supra.

20-KA-181 19

Further, “Anne”’s testimony corroborated “Beth”’s testimony and vice

versa. Both “Anne” and “Beth” testified that the other was asleep when

Defendant touched them in their shared bedroom at the May address. “Anne”

testified that around this time, “Beth” asked to sleep in her bed because

Defendant had touched her. “Anne” recalled that “Beth” immediately told her

that Defendant exposed his penis to her. Also, “Anne” and “Beth” testified that

they would move items in front of their door at night to alert them if and when

Defendant attempted to enter their bedroom.

The State also presented the testimony of other witnesses whose testimony

was consistent with that of the victims. “Nancy” recalled entering “Anne” and

“Beth”’s room and finding items blocking their door. “Nancy” also testified that

one evening she found “Anne” sitting outside and crying and “Anne” told her that

Defendant was “standing there naked.” Detective Henderson also testified that

“Nancy” told her about this incident with “Anne”.

At trial, Defendant’s statement was played for the jury, and he denied

touching his daughters. In reaching a verdict, the jury made a credibility

determination. Again, the trier of fact is free to accept or reject, in whole or in

part, the testimony of any witness, and, in this case, the jury accepted the State

witnesses’ version of events. Further, where there is conflicting testimony about

factual matters, the resolution of which depends upon a determination of the

credibility of witnesses, the matter is one of the weight of the evidence, not its

sufficiency. State v. McClure, 14-253 (La. App. 5 Cir. 3/11/15); 169 So.3d 510,

522, writ denied, 15-684 (La. 2/26/16); 187 So.3d 468. An appellate court’s

function is not to re-determine the defendant’s guilt or innocence based on its

appreciation of the facts and credibility of the witnesses. State v. Hidalgo, 20-89

(La. App. 5 Cir. 3/18/20); 293 So.3d 780, 785.

20-KA-181 20

In the instant matter, the jury heard all of the testimony, viewed all of the

evidence presented at trial, and found Defendant guilty. We find no internal

contradiction or irreconcilable conflict within “Anne” and “Beth”’s testimony, or

between their testimony and that of the other witnesses. Viewing the evidence in

a light most favorable to the State, we find Defendant’s assignment of error is

without merit, a rational trier of fact could have found Defendant guilty beyond a

reasonable doubt of two counts of indecent behavior with a juvenile, and the

evidence is sufficient to support Defendant’s convictions.

ERRORS PATENT

The record was reviewed for errors patent, pursuant 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). The following errors were noted.

Trial commenced before a six-person jury on February 10, 2020. On that

same date, the State amended the superseding bill of information regarding the

dates of the offenses on counts one and two. The State amended the offense date

range on count one from on or between January 1, 2012 and December 31, 2016,

to on or between January 1, 2012 and October 29, 2016 as to count one. The

State amended the offense date range on count two from on or between January

1, 2009 and July 31, 2017, to on or between January 1, 2009 and November 22,

2015. The amendments to the end dates for the windows the abuse occurred

were amended to correspond with the victims’ seventeenth birthdays. The

amendments were done by hand and the amended bill of information was signed

and dated “February 10, 2020” by an assistant district attorney. It is unclear

from the record whether the indictment was amended before or after the trial

began.

The amendment of indictments and bills of information is regulated by La.

C.Cr.P. art. 487(A):

20-KA-181 21

An indictment that charges an offense in accordance with the
provisions of this Title shall not be invalid or insufficient because of
any defect or imperfection in, or omission of, any matter of form only,
or because of any miswriting, misspelling, or improper English, or
because of the use of any sign, symbol, figure, or abbreviation, or
because any similar defect, imperfection, omission, or uncertainty
exists therein. The court may at any time cause the indictment to be
amended in respect to any such formal defect, imperfection, omission,
or uncertainty.

Before the trial begins the court may order an indictment
amended with respect to a defect of substance. After the trial begins a
mistrial shall be ordered on the ground of a defect of substance.
The date or time of the commission of an offense need not be alleged in the

indictment, unless the date or time is essential to the offense. La. C.Cr.P. art.

468. Further, the date and time of the offenses are not essential elements of the

offense of indecent behavior with a juvenile. See Lirette, 102 So.3d at 811; State

v. Lyles, 03-141 (La. App. 5 Cir. 9/16/03); 858 So.2d. 35, 44 (“The date and time

of the offenses are not essential elements of the offense of indecent behavior with

a juvenile [La. R.S. 14:81] and, therefore, a bill of information which does not

reflect the date and time of the offense is not insufficient.”). A mistake reflecting

the date for which the offense occurred has been held to be such a defect of form

when not essential to the offense. State v. Dye, 384 So.2d 420, 422 (La. 1980);

See State v. Lawson, 393 So.2d 1260, 1263 (La. 1981). Therefore, we find that

the amendment of the date of the violation of La. R.S. 14:81 alleged in the bill of

information was a defect as to form, not a defect of substance, and, pursuant to

La. C.Cr.P. 487(A), the trial court had the authority to allow the amendment at

any time.

We also note that the record does not show that Defendant was re-

arraigned after the State amended the superseding bill of information on February

10, 2020. The purpose of an arraignment is to inform the defendant of the

substance of the crime he is charged with. La. C.Cr.P. art. 551. A re-

arraignment is only required after amendment of a bill of information if the

20-KA-181 22

substance of the charge is changed. State v. Tillery, 14-429 (La. App. 5 Cir.

12/16/14); 167 So.3d 15, 23-24, writ denied, 15-106 (La. 11/06/15), 180 So.3d

306 (finding that a defendant is not entitled to re-arraignment on an amended

indictment when changes to the indictment do not alter the nature of the crime).

Again, we find the amendments regarding the dates of the offenses did not alter

the substance of the charges against Defendant; so, it was not necessary for

Defendant to be re-arraigned. Further, Defendant entered into trial without

objecting to proceeding before he was re-arraigned, thereby waiving his

objection; Defendant is considered to have pled not guilty. See La. C.Cr.P. art.

555.

Also, there are discrepancies between the sentencing minute entries and the

transcript in this case. The minute entry dated April 16, 2020 corrected the

previous minute entry, which did not reflect the victim impact statement read into

the record at sentencing. However, that minute entry does not reflect the offense

date ranges as amended by the February 10, 2020 bill of information. See State v.

Daniels, 18-307 (La. App. 5 Cir. 6/11/19); 275 So.3d 380, 401 (citing State v.

Lyons, 13-564 (La. App. 5 Cir. 1/31/14); 134 So.3d 36, writ denied, 14-0481 (La.

11/7/14); 152 So.3d 170). Also, the Uniform Commitment Order (UCO) does not

include the entire offense date range as to counts one and two.

Last, although the record reflects the trial court advised Defendant on the

record that he was required to comply with the sex offender

notification/registration requirements and provided Defendant with a written

copy of those requirements, we note that the Uniform Commitment Order

(UCO) does not include as a “Sentence Condition” pre-printed on the form that

Defendant shall comply with the Sex Offender Registration statute under the

provisions of La. C.Cr.P. art. 895 and La. R.S. 15:541, et seq. However, the

20-KA-181 23

advisal is noted in the sentencing minute entry and we will remand the matter

for the trial court to correct the UCO.

DECREE

Based on the foregoing, Defendant’s convictions and sentences are affirmed.

The case is remanded with instructions to the trial court to correct the UCO to

include the entire date range of the offenses as to counts one and two and add a

sentence condition ordering Defendant to comply with the Sex Offender

Registration statute, and also correct the April 16, 2020 minute entry to include the

offense date ranges provided by the February 10, 2020 amended bill of

information.

CONVICTIONS AND SENTENCES AFFIRMED;
REMANDED WITH INSTRUCTIONS TO CORRECT UNIFORM
COMMITMENT ORDER (UCO) AND APRIL 16, 2020 MINUTE ENTRY

20-KA-181 24

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 27, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-181
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
GAIL D. SCHLOSSER (APPELLEE) THOMAS J. BUTLER (APPELLEE) PRENTICE L. WHITE (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
LAURA S. SCHNEIDAU (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053