State of Louisiana v. Joseph Peterson

STATE OF LOUISIANA * NO. 2018-KA-1045

VERSUS *
COURT OF APPEAL
JOSEPH PETERSON *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

STATE OF LOUISIANA NO. 2018-KA-1046

VERSUS

JOSEPH PETERSON

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 14-2838, DIVISION “B”
Honorable Michael D. Clement,
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)

Charles Joseph Ballay, District Attorney
25TH JDC, PLAQUEMINES PARISH
102 Avenue G
Belle Chasse, LA 70037
Pamela S. Moran, Assistant Attorney General
1885 North Third Street
P. O. Box 94005
Baton Rouge, LA 70804—9005
COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Bruce G. Whittaker
LOUISIANA APPELLATE PROJECT
1215 Prytania Street, Suite 332
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
JANUARY 8, 2020

The defendant, Joseph Peterson, appeals his conviction for three counts of

aggravated incest, in violation of La. R.S. 14:78.1.1 The defendant assigns two

errors in this appeal, arguing that the evidence is insufficient to sustain the

conviction and that the trial court erred in admitting certain evidence at trial. Upon

review of the record and in light of applicable law and jurisprudence, we find no

merit to his assignments of error. Accordingly, we affirm his conviction.

PROCEDURAL BACKGROUND

On October 29, 2014, the defendant was charged by grand jury indictment

with two counts of aggravated incest of the juvenile victim, A.A.,2 between the

dates of January 1, 2011 and October 15, 2012. On December 8, 2014, the

defendant appeared for arraignment, in case number 14-02838, and pled not guilty

to the two counts in the indictment.

1
Effective June 12, 2014, La. Acts 2014, Nos. 177 and 602, repealed La. R.S. 14:78.1,
“aggravated incest,” and amended and reenacted La. R.S. 14:89.1, “aggravated crime against
nature,” to include the elements and penalties of the crime of aggravated incest. Thus,
“aggravated incest” was redesignated “aggravated crimes against nature” under La. R.S. 14:89.1.
“No change in the substantive proscriptions of Louisiana law were effected—only the placement
of the conduct constituting the offense in the aggravated crime against nature offense—and the
repeal of the offense of Aggravated Incest.” State v. Barbain, 15-0404, p. 2, n. 3 (La. App. 4 Cir.
11/4/15), 179 So.3d 770, 773 (citation omitted).
2
In this opinion, the initials of the victim, rather than the full name of the minor child, are used
to protect and maintain the privacy of the minor child. See La. R.S. 46:1844(W)(1); Rule 5-2,
Uniform Rules, Courts of Appeal.

1

On December 15, 2015, the defendant filed a motion in limine to exclude

from evidence written pornographic stories discovered on the defendant’s laptop

computer, seized pursuant to a search warrant for the defendant’s residence. The

following day, the State filed a response to the defendant’s motion to exclude,

arguing that the evidence was admissible pursuant to La. C.E. art. 412.2.3 That

same date, the trial court held a hearing on the defendant’s motion, but the trial

court deferred ruling on the motion until trial. Shortly thereafter, on December 21,

2015, the defendant filed a notice of a request for a bench trial.

On May 30, 2017, the defendant was indicted on an additional count of

aggravated incest of the juvenile victim, A.A., occurring between December 1,

2012 and August 1, 2013. Under case number 17-1835, the defendant appeared for

arraignment on June 12, 2017, and pled not guilty to the charge in the second

indictment.

The two cases, 14-2838 and 17-1835, were consolidated for the purposes of

trial. The bench trial took place over three days, February 21 and 22, 2018, and

March 9, 2018. On the last day of trial, the State sought to admit the written

pornographic material, which was the subject of the defendant’s prior motion in

limine. Over the defendant’s objection, the trial court admitted the evidence. At

3
La. C.E. art. 412.2 provides as follows:

A. When an accused is charged with a crime involving sexually assaultive
behavior, or with acts that constitute a sex offense involving a victim who was
under the age of seventeen at the time of the offense, evidence of the accused’s
commission of another crime, wrong, or act involving sexually assaultive
behavior or acts which indicate a lustful disposition toward children may be
admissible and may be considered for its bearing on any matter to which it is
relevant subject to the balancing test provided in Article 403.
B. In a case in which the state intends to offer evidence under the provisions of
this Article, the prosecution shall, upon request of the accused, provide a
reasonable notice in advance of trial of the nature of any such evidence it intends
to introduce at trial for such purposes.
C. This Article shall not be construed to limit the admission or consideration of
evidence under any other rule.

2

the conclusion of trial testimony and arguments, the trial court took the matter

under advisement.

On March 28, 2018, the trial court rendered its verdict. Based upon the

testimony and evidence presented at trial, the trial court found the defendant guilty

of all three counts of aggravated incest, as follows: in case number 14-2838,

(Count 1) aggravated incest by committing indecent behavior with a juvenile, in

violation of La. R.S. 14:78.1(B)(1); (Count 2) aggravated incest by lewd fondling

or touching, in violation of La. R.S. 14:78.1(B)(2); and in case number 17-1835,

(Count 1) aggravated incest by lewd fondling or touching, in violation of La. R.S.

14:78.1(B)(2).

On August 8, 2018, the defendant appeared for sentencing. Prior to

sentencing the defendant, the trial court noted that the victim in this case was a

juvenile under the age of thirteen years at the time of the offenses; and, pursuant to

the applicable statute, the sentence to be imposed would be not less than twenty-

five years, without benefit of parole, probation, or suspension of sentence, and not

more than ninety-nine years. The trial court then sentenced the defendant to the

mandatory minimum sentence of twenty-five years at hard labor without benefit of

parole, probation, or suspension of sentence, as to each count, to run concurrent.

The defendant now appeals his convictions. Before discussing the

defendant’s assignments of error on appeal, we review the facts and evidence

presented at trial.

STATEMENT OF FACTS

On October 19, 2012, the nine year-old victim, A.A., reported to her fourth

grade teacher, Erin Cosse, that she was being sexually abused by her stepfather, the

defendant. Ms. Cosse testified that A.A.’s school behavior had changed in the

3

preceding week and that she had asked A.A. if anything was wrong. At the end of

the class day, A.A. told Ms. Cosse she was ready to tell her what was wrong and

asked to speak with her in the hallway. A.A. then told Ms. Cosse that the

defendant was sexually abusing her. Upon receiving this information, Ms. Cosse

brought A.A. to the school nurse, Rebecca Amos.

Ms. Amos testified that Ms. Cosse brought A.A. to her office and stated only

that A.A. had something she needed to tell her. Ms. Amos asked A.A. what was

wrong, at which time A.A. reported that her stepfather, the defendant, was sexually

abusing her. Ms. Amos asked A.A. to explain what she meant by that; and A.A.

responded that the defendant showed her videos of men and women naked together

and that the defendant “touches me with my clothes off.” When asked how

recently the touching had occurred, A.A. stated “last Monday.” When asked if she

had told anyone else, A.A. stated that she talked to her mother about “the

situation”, and her mother told her not to tell anyone outside the house about it.

A.A. also said she had told her sister, Lexi, who told her to “stop saying that stuff.”

At that point, Ms. Amos contacted the Plaquemines Parish Sheriff’s Office

(“Sheriff’s Office”), along with the school principal and counselor.

Captain Mark Plumer testified that on October 19, 2012, he was employed

by the Sheriff’s Office as captain of the Criminal Investigations Bureau. On that

date, the office received a call from the Belle Chasse Primary School that a student

had reported being sexually abused by her stepfather. Capt. Plumer, Detective

Tiffanie Provenzano, and a patrol officer were immediately dispatched to the

school to investigate the reported sexual abuse.

Upon arriving at the school, Capt. Plumer interviewed school personnel

while Det. Provenzano spoke with A.A. and her mother. After gathering initial

4

statements at the school, the officers decided to relocate to the Sheriff’s Office

with A.A. and her mother to conduct further investigation. Based on the

statements made by A.A., Capt. Plumer applied for a search warrant of the

residence where A.A. lived with her mother and the defendant. Specifically, the

search warrant sought computers, computer equipment, and any external hard

drives, based on statements from A.A. that the defendant had shown her

pornographic videos and images on his computer.

Capt. Plumer identified several photographs taken at the residence during the

execution of the search warrant; he described photographs taken in the master

bedroom that depicted sexual lifestyle magazines, a box of sex toys, and

commercial pornographic videos. In regard to the computer equipment evidence,

Capt. Plumer identified photographs showing the large Hewlett-Packard (“HP”)

laptop computer and an external hard drive that officers located in the defendant’s

work area and seized as evidence.

Captain Plumer stated that no family members were home during the

execution of the search warrant. In fact, during that time, the defendant voluntarily

presented himself at the Sheriff’s Office. Capt. Plumer stated that the defendant

denied having any knowledge as to why A.A. would make sexual abuse

accusations against him and he volunteered to leave the family home. The

defendant also volunteered to undergo a polygraph test. However, the polygraph

exam did not go forward because, according to the polygraph examiner, a medical

condition that caused twitching in the defendant’s muscles could skew the results,

making the test unreliable.

Tracey Brunetti testified that in October 2012, she was employed by the

Child Advocacy Center in New Orleans as a child forensic interviewer. On

5

October 22, 2012, she conducted a videotaped interview with A.A., which was

offered, introduced, and played during Brunetti’s testimony. During that

interview, A.A. informed her that the defendant forced her to watch videos on his

computer. A.A. described one video showing two naked women and one naked

man. A.A. stated that the defendant “constantly” showed such videos to her, and

that the defendant also encouraged her to watch such videos on her smaller

computer. A.A. further stated that she saw a photograph depicting her mother and

the defendant having sex.

A.A. relayed to Brunetti that on the previous Monday or Sunday, which

would have been October 15th or 14th, the defendant told her to lie next to him on

the couch. She stated that, at that time, her mother was at the store and her sister

was in her room. During this episode, the defendant put his hand on her vagina

and placed her hand on his penis. The touching took place over their clothing.

Brunetti asked A.A. to indicate on anatomical drawings of the female and

male bodies where the defendant had touched her body and where she had touched

his body. On the female diagram, A.A. circled the body parts where the defendant

had touched her, including her vagina, her breasts, and her belly button; and A.A.

stated that the defendant touched these body parts both over and under her

clothing. On the male diagram, A.A. placed stars on the male body parts,

including his penis, chest, and buttocks, where the defendant forced her to touch

him, both over and under his clothing.

Brunetti testified that during the interview A.A. cupped her hand and moved

it up and down to show the type of manual stimulation she performed on the

defendant’s penis. A.A. stated that she had done this to the defendant more than

once and that, after she did that, a white substance came out that the defendant

6

referred to as pus. In addition, A.A. stated that sometimes the defendant touched

inside her vagina and sometimes he had her get on top of him and put his penis

inside her vagina.

Detective Holly Hardin testified that she is employed by the Plaquemines

Parish Sheriff’s Office, assigned to the special victims unit. She described herself

as “the juvenile detective, the sex-crime detective, and domestic-violence

detective.” In March 2017, she was contacted by the Attorney General’s office and

asked to coordinate a second forensic interview of A.A. as part of an investigation

into allegations that the defendant had sexually abused A.A. again in 2013. Det.

Hardin scheduled A.A. to undergo a forensic interview at the Child Advocacy

Center in New Orleans.

At the time of the second videotaped forensic interview, on March 13, 2017,

A.A. was fourteen years old and in eighth grade at Belle Chasse School. A.A.

stated that, after the first series of sexual abuse incidents, the defendant returned to

the family home and, approximately six months later, the abuse happened again.

She stated that it occurred in the summertime of 2013, when she was ten or eleven

years old. Once again, the abuse took place on the family couch and, this time, she

was alone in the house with the defendant. A.A. stated that the defendant placed

his hand on her vagina and he forced her to put her hand on his penis. She stated

that the touching took place under their clothing. She described it as

uncomfortable when he touched her. She recalled that this incident in the

summertime might have been the last incident of sexual contact with the defendant,

and that the defendant ultimately moved out of the family home and she had not

seen him for two to three years.

7

Dr. Ellie Wetsman, who was accepted as an expert in child-abuse pediatrics,

testified that she saw A.A. on November 7, 2012, after the first report of sexual

abuse, but she did not perform a physical examination. Dr. Wetsman noted that a

physical examination had been performed at Children’s Hospital on October 19,

2012, and there was no physical evidence of sexual abuse. Dr. Wetsman explained

that such a finding is not unusual in child sexual abuse cases because that part of

the body “stretches” and most child abuse perpetrators are gentle because they do

not want to cause physical injury.

Dr. Wetsman opined that most children do not report sexual abuse

immediately after it happens. Dr. Wetsman explained that, often, the child does

not know that what is happening is wrong, or the child is made to feel that she is at

fault, or the child is threatened that if she tells something bad will happen; and,

consequently, when a child victim of sexual abuse does report the incident, she will

often report only a portion. Dr. Wetsman likened it to “test[ing] the waters” to see

if the story is believed or to see if something will happen with her family. If the

initial disclosure goes well, the child will gradually feel more comfortable telling

the rest of the story. Dr. Wetsman also opined that it was not unusual for a child

not to remember the details of each instance of abuse when she has been abused

multiple times.

Dr. Wetsman did physically examine A.A. on March 22, 2017, after the

second report of abuse. The results of that examination were normal. Dr.

Wetsman also took a narrative from A.A., who informed her that she had been

abused by the defendant once or twice since the last time Dr. Wetsman had

interviewed her. A.A. stated that the abuse took place when she was alone in the

house with the defendant and consisted of him touching her vagina and forcing her

8

to touch his penis. When asked whether the defendant had ever hurt her, A.A.

answered affirmatively, explaining that he had tried to “stick” his penis in her

vagina but that “it did not go in all the way.”

A.A. herself also testified. At the time of the trial, she was fifteen years old

and in ninth grade at Belle Chasse High School.4 She testified that she was five

years old when she first met the defendant and six or seven years old when the

defendant married her mother and they lived together as a family.

A.A. recalled reporting to her fourth-grade teacher in October 2012, that she

was being sexually abused by the defendant. She testified that, by the time she

reported the abuse in October 2012, the abuse had been going on “for a couple of

years.” She admitted that she did not have a perfect memory of everything that

had happened between her and the defendant. When asked how many times the

abuse had taken place, she testified that it had occurred more than five times; but,

she was unsure if it had happened more than ten times. When asked to explain

what the defendant had done to her, A.A. testified that the defendant would touch

her and make her touch him. She explained further that the defendant would touch

her vagina under her clothes and he would make her touch his penis. The

defendant also touched her vagina with his penis, but that occurred “only a couple

of times.”

A.A. testified that the defendant also made her watch pornography. She

explained that he would “pull [the pornography] up on his computer and sit [the

computer] in front of me and leave the room and tell me to watch it.” She stated

that he also showed her photographs of himself and her mother in sexual situations.

While watching the pornography, the defendant would often have her change into

4
Prior to her testimony, the parties stipulated that A.A. was competent to testify.

9

her robe with no clothes on underneath and he would touch his penis until “white

stuff would come out.”

After reporting the sexual abuse in October 2012, A.A. remembered that the

defendant moved out of the house, but moved back in a few months later, in

December 2012. She explained that she knew having the defendant move back in

would make her mother and sister happy. She also recalled that the defendant had

given the family a dog before he moved back in. At some point after the defendant

moved back in with the family, he began sexually abusing her again. Although she

could not recall the dates, she knew that it happened after he moved back in

because she had the dog by this time. She stated that the defendant started

touching her in the same ways that he had before he had moved out.

A.A.’s mother testified that she was shocked when A.A. told her that the

defendant had showed her naked pictures on his computer, but she stated that she

took no action because they were economically dependent on the defendant, so she

advised A.A. to “hang tight.” The mother admitted, however, that sometimes the

defendant was alone in the house with A.A. The mother explained that A.A. had

never personally told her that the defendant was abusing her, only that he had

forced her to watch pornography on his computer.

The mother recalled being called to A.A.’s school on October 19, 2012, and

thereafter, going to Children’s Hospital so A.A. could be questioned and examined.

At that point, the defendant moved out of the house, but, subsequently, moved

back into the family home. Even after the initial report of problems, the mother

stated that A.A. was sometimes left alone in the house with the defendant.

The mother stated that initially she did not want to believe her daughter’s

sexual abuse claims, but she realized that her daughter was not lying and had no

10

reason to lie because coming out with the truth caused them significant financial

hardship. The mother admitted that she never witnessed the defendant sexually

abusing A.A. or showing her pornography. However, she had witnessed the

defendant viewing pornography on his computer and stated that sometimes she

watched pornography with him in their bedroom.

The mother also testified that A.A. had told lies in the past, often about

“minor things” such as cleaning her room, washing her clothes, taking a bath, or

washing her hair.

Tran Buie Pogue, a digital forensic examiner with the Louisiana Attorney

General’s Office, testified that she became involved in the instant case in June,

2013. At that time she was given the defendant’s laptop computer and external

hard drive and told to look for “anything relating to sexual behavior, anything

inappropriate in nature.”

In performing her duties, Pogue obtained a printout of the computer’s

internet history. Pogue highlighted the entries which represented a pornographic

website, xnxx.com. There were numerous highlighted entries and each entry,

Pogue explained, represented a link and each link led to a story. There were

additional links to xnxx.com on the defendant’s smart phone.

Pogue proceeded to read out the titles of eighty-six pornographic stories that

the defendant had accessed. Pogue explained that “user Joey Peterson” accessed

these stories. However, Pogue admitted that if a third party had access to “user

Joey Peterson’s” password, then that person could have visited the sites.

Transcripts of eight of the pornographic stories were introduced into

evidence. The transcribed stories had the following titles: “A Father’s Love – Part

Two,” “Daddy Loves His Daughter,” “Daddy and Daughter Amanda,” “Amy and

11

Her Daddy Part 3,” “Bonding with Daddy,” “A Step-Daughter of Lust,” “Ashlee’s

Young Life,” and “Ashlee’s Young Life 2.” Pogue stated that she read the

transcribed stories and that the titles fit the narratives; they all depicted

“inappropriate sexual behavior … between an adult and a young child.” However,

Pogue’s forensic examination did not reveal any child pornography on either the

defendant’s computer or smart phone.

Pogue also performed a forensic examination on A.A.’s computer. Pursuant

to her examination, numerous links to the xnxx.com website were found.

A.A.’s sister, Lexi, was called by defense counsel to offer testimony. She

testified that both she and A.A. initially had problems adjusting to having the

defendant in their lives. Lexi stated that A.A. and the defendant fought “like cats

and dogs,” often getting into screaming arguments about A.A.’s messy room, about

doing the dishes, and about hanging outside with her friends. Lexi believed that

A.A. was sometimes scared of the defendant, even though A.A. never told Lexi she

was afraid.

Lexi testified that A.A. never told her that the defendant was sexually

abusing her. However, A.A. did tell Lexi that the defendant had shown her a

rubber penis. Lexi estimated that she was told about the penis a week or so before

A.A. reported the abuse to her teacher. Lexi admitted to initially doubting A.A.’s

allegations, because A.A. was a little kid and would lie frequently about things like

whether she cleaned her room or washed the dishes. Lexi stated that a part of her

did not want to believe A.A. because they were living a great life.

Defense witness Alicia Mitchell, a supervisor with the Department of

Children and Family Services, testified that her department investigates complaints

of child sex abuse and that she was assigned to A.A.’s case. Mitchell stated that

12

following the department’s initial evaluation in 2012, the allegations were deemed

to be invalid, the case was closed, and the mother was sent a letter to this effect.

Two years later, on December 5, 2014, the department undertook a second

investigation and deemed the allegations to be valid. Mitchell explained that it was

not until 2014 that the department received the narrative of an interview with A.A.

in which A.A. described the sexual abuse.

During the course of the trial, a voluminous amount of evidence was

introduced into the record, including the video recordings and transcripts of A.A.’s

forensic interviews, A.A.’s medical records, computer forensic examinations and

reports of the defendant’s laptop and A.A.’s mini-computer, numerous

photographs, and printouts of the pornographic stories found on the defendant’s

computer.

DISCUSSION

Defendant raises two assignments of error on appeal, as follows:

1. The trial court erred in denying the defendant’s motion in limine to exclude

written materials seized from defendant’s computer, as those materials were

protected by the First Amendment and were more prejudicial than probative.

2. The evidence presented at trial was insufficient to support the verdict beyond

a reasonable doubt.

We address the defendant’s second assignment of error first, in accordance with

Louisiana jurisprudence that “[w]hen issues are raised on appeal as to the

sufficiency of the evidence and as to one or more trial errors, the reviewing court

should first determine the sufficiency of the evidence.” State v. Brazell, 17-0032,

p. 9 (La. App. 4 Cir. 4/18/18), 245 So.3d 15, 26 (citations omitted).

13

Sufficiency of Evidence

In evaluating the sufficiency of the evidence to sustain a conviction, this

Court applies the standard of review set forth by the United States Supreme Court

in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Under the Jackson

standard, “the relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99

S.Ct. at 2789. In applying this standard, this Court must consider the record as a

whole, as the rational trier of fact would do. Brazell, 17-0032, p. 10, 245 So.3d at

26-27. In the absence of internal contradiction or irreconcilable conflict with the

physical evidence, even one witness’s testimony, if believed by the rational trier of

fact, is sufficient to support a factual conclusion. State v. Alverez, 13-1652, p. 6

(La. App. 4 Cir. 12/23/14), 158 So.3d 142, 148 (citing State v. Robinson, 02-1869,

p. 16 (La. 4/14/04), 874 So.2d 66, 79); see State v. Summers, 10-0341, p. 7 (La.

App. 4 Cir. 12/1/10), 52 So.3d 951, 955 (“The testimony of the victim alone is

sufficient to establish the elements of the offense.”).

The reviewing court is “not permitted to second guess the rational credibility

determination” of the trier of fact, nor is it the function of the appellate court to

reweigh the evidence. State v. Kelly, 15-0484, p. 3 (La. 6/29/16), 195 So.3d 449,

451. The determination of witness credibility is a question of fact within the sound

discretion of the trier of fact that shall not be disturbed unless clearly contrary to

the evidence. Id. (citing State v. Vessell, 450 So.2d 938, 943 (La. 1984). If, upon

review of the record, the appellate court concludes that rational triers of fact could

disagree as to the interpretation of the evidence, then the rational trier’s view of all

the evidence most favorable to the prosecution must be adopted. State v. Miner,

14

14-0939, p. 6 (La. App. 4 Cir. 3/11/15), 163 So.3d 132, 136. “Only irrational

decisions to convict by the trier of fact will be overturned.” State v. Winston, 11-

1342, p. 8 (La. App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citing State v. Mussall,

523 So.2d 1305, 1310 (La. 1988).

Thus, in this case, the relevant question for this Court to determine the

sufficiency of the evidence is whether, after viewing the evidence in this case in

the light most favorable to the State, a rational trier of fact could have found the

essential elements of the crime of aggravated incest, La. R.S. 14:78.1, beyond a

reasonable doubt. At the time the offenses occurred, La. R.S. 14:78.1 defined

aggravated incest, in pertinent part, as follows:

A. Aggravated incest is the engaging in any prohibited act
enumerated in Subsection B with a person who is under eighteen
years of age and who is known to the offender to be related to the
offender as any of the following biological, step, or adoptive relatives:
child, grandchild of any degree, brother, sister, half-brother, half-
sister, uncle, aunt, nephew, or niece.

B. The following are prohibited acts under this Section:

(1) Sexual intercourse, sexual battery, second degree battery, carnal
knowledge of a juvenile, indecent behavior with juveniles,
pornography involving juveniles, molestation of a juvenile or a person
with a physical or mental disability, crime against nature, cruelty to
juveniles, parent enticing a child into prostitution, or any other
involvement of a child in sexual activity constituting a crime under
the laws of this state.

(2) Any lewd fondling or touching of the person of either the child or
the offender, done or submitted to with the intent to arouse or to
satisfy the sexual desires of either the child, the offender, or both.

In this case, the trial court found the defendant guilty under La. R.S. 14:78.1(B)(1)

by indecent behavior with the juvenile A.A., and under La. R.S. 14:78.1(B)(2) by

lewd fondling or touching of A.A. Indecent behavior with a juvenile, as an offense

under La. R.S. 14:81, is defined as follows:

15

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 persons. Lack of knowledge of
the child’s age shall not be a defense; or

(2) The transmission, delivery or utterance of any textual, visual,
written, or oral communication depicting lewd or lascivious conduct,
text, words, or images to any person reasonably believed to be under
the age of seventeen and reasonably believed to be at least two years
younger than the offender. It shall not be a defense that the person
who actually receives the transmission is not under the age of
seventeen.

The testimony adduced at trial indicated that the victim, A.A., was nine

years old in October 2012, when she first reported being sexually abused by the

defendant, her stepfather, as verified by the marriage certificate reflecting that he

and A.A.’s mother were married on July 23, 2008. Thus, the record established the

requisite relationship and age difference between the defendant and A.A., under

La. R.S. 14:78.1(A).

Further, A.A. provided testimony describing lewd fondling and touching by

the defendant of her genitals and being directed by the defendant to touch his

genitals with the intention of arousing and gratifying him sexually. A.A. testified

that this abuse began “a couple of years” prior to and until her first reporting in

October 2012, and that the abuse occurred again when the defendant returned to

live in the residence in December 2012, through the summer of 2013. A.A.

testified that the abuse occurred more than five times. This testimony, if believed

by a rational trier of fact, is sufficient to establish the elements of La. R.S.

14:78.1(B)(2).

16

In addition to the sexual abuse by lewd fondling and touching, A.A. testified

that the defendant often made her watch pornography on his laptop computer and

showed her images of him and her mother naked, in sexual situations. Additional

testimony from the mother, stating that she and the defendant would watch

pornography on his laptop computer, and from Pogue, the digital forensic

examiner, stating that pornographic websites and pornographic written materials

were accessed and downloaded by “user Joey Peterson” to his laptop computer,

provided corroboration of A.A.’s testimony. This testimony, if believed by a

rational trier of fact, is sufficient to establish the elements of indecent behavior

with juveniles, under La. R.S. 14:81(A)(2), and, moreover, the elements of

aggravated incest, under La. R.S. 14:78.1(B)(1).

Several more trial witnesses provided testimony regarding A.A.’s reports of

the sexual abuse by the defendant, including her teacher, the school nurse, the

forensic interviewer, and the pediatrician who examined her. Although the

defendant argues that A.A.’s testimony was uncorroborated by the results of her

physical examination and was internally inconsistent regarding the exact dates of

the abuse, the testimony of several witnesses reflected the consistency of A.A.’s

statements regarding the abuse by the defendant. Moreover, Dr. Wetsman testified

that it is not unusual for the physical examination of a child sex abuse victim to be

“normal” and for the child who has been sexually abused multiple times to have

difficulty recalling the details of each instance of sexual abuse.

In consideration of all the witness testimony and evidence introduced at trial,

the trial court concluded that the sexual abuse of A.A. by the defendant had

occurred as reported and that all essential elements of the charged offenses of

aggravated incest, under La. R.S. 14:78.1(B)(1) and (2) were established. Upon

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our review of the whole record, and viewing the evidence in the light most

favorable to the prosecution, we find that the evidence was sufficient to convince

the trial court that all of the essential elements of the offense of aggravated incest

had been proved beyond a reasonable doubt.

Admissibility of Evidence

We now turn to the defendant’s first assigned error, arguing that the trial

court erred in denying his motion to exclude from trial the written pornographic

stories, seized from the defendant’s computer. The defendant asserts that the trial

court committed reversible error in admitting the pornographic stories into

evidence at trial.

Prior to trial, the defendant filed a motion to exclude written pornographic

stories that were discovered on his laptop computer, seized pursuant to the search

warrant of the residence. In his motion, the defendant admitted that the

pornographic stories depict illegal sexual abuse of minors, but he asserted that

none of the materials seized from his computer constituted illegal child

pornography and that the stories constituted protected free speech under the First

Amendment of the United States Constitution. Further, the defendant argued that

such evidence was inadmissible character evidence under La. C.E. art. 404(B)(1),

because his possession of the stories is not probative of any criminal acts and

would be used only to attack his character and credibility. Finally, the defendant

argued that the evidence must be excluded ultimately under La. C.E. art. 403,

because the danger of unfair prejudice substantially outweighed any probative

value of the evidence as it relates to the charged offenses.

In response, the State argued that the written pornographic stories, which

specifically depicted sexual abuse of minor females by their fathers/stepfathers,

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were admissible under La. C.E. art. 404(B)(1), as proof of the defendant’s intent

and motive to sexually abuse his stepdaughter, and under La. C.E. art. 412.2, as

evidence indicating the defendant’s lustful disposition toward minor females.

After a lengthy hearing on the defendant’s motion, the trial court deferred

ruling on the admissibility of the pornographic stories until trial. Subsequently,

during the trial testimony of Pogue, the digital forensic examiner, the trial court

admitted eight of the stories found on the defendant’s computer into evidence, over

the defendant’s objection. The record indicates that the trial court admitted the

evidence under La. C.E. art. 412.2.5

On appeal, a trial court’s ruling on the admissibility of evidence is reviewed

under an abuse of discretion standard and will not be overturned absent a clear

abuse of discretion. State v. Klein, 18-0022, p. 19 (La. App. 4 Cir. 8/22/18), 252

So.3d 973, 985; State v. Wright, 11-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309,

316.

Generally, all relevant evidence is admissible at trial; that is, “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” La. C.E. arts. 401, 402. Evidence that is not relevant is not

admissible. La. C.E. art. 402. Additionally, evidence, although relevant, “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.” La. C.E. art. 403.

When an accused argues that certain evidence should be excluded, pursuant to La.

5
In ruling, the trial court stated that the evidence was being admitted under “[La. C.E. art.] 412.”
In consideration of the motion and arguments presented, it is apparent from the record that the
trial court was referring to La. C.E. art. 412.2, regarding the admissibility of similar crimes,
wrongs, or acts in sex offense cases. See infra n. 2.

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C.E. art. 403, because the probative value is substantially outweighed by the

danger of unfair prejudice, a trial court is vested with much discretion in

determining whether the probative value of relevant evidence is substantially

outweighed by the potential prejudicial effect. State v. Dove, 15-0783, p. 29 (La.

App. 4 Cir. 5/4/16), 194 So.3d 92, 112.

However, the trial court may not admit evidence of other crimes, wrongs, or

acts committed by the defendant for purposes of showing the defendant as a man

of bad character who has acted in conformity therewith. La. C.E. art. 404(B)(1);

State v. Rose, 06-0402, p. 12 (La. 2/22/07), 949 So.2d 1236, 1243. Our

jurisprudence recognizes that, in general, evidence of other crimes, wrongs, or acts

committed by the defendant poses a “substantial risk of grave prejudice to the

defendant.” Klein, 18-0022, p. 18, 252 So.3d at 985; State v. Williams, 96-1023, p.

30 (La. 1/21/98), 708 So.2d 703, 725; State v. Prieur, 277 So.2d 126, 128 (La.

1973). However, La. C.E. art. 404(B)(1) provides exceptions to the general rule of

inadmissibility, when the evidence sought to be admitted provides proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident, or “when the evidence relates to conduct that constitutes an integral part

of the act or transaction that is the subject of the present proceeding.” Klein, 18-

0022, p. 18, 252 So.3d at 985.

In addition, as recognized by Louisiana jurisprudence, a further exception to

the general rule against the admission of other crimes, wrongs, or acts evidence

was created by the Louisiana Legislature through the enactment of La. C.E. art.

412.2, which provides:

A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense
involving a victim who was under the age of seventeen at the time of

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the offense, evidence of the accused’s commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which
indicate a lustful disposition toward children may be admissible and
may be considered for its bearing on any matter to which it is relevant
subject to the balancing test provided in Article 403.

In State v. Wright, the Louisiana Supreme Court recognized that “Article 412.2

was enacted to loosen restrictions on ‘other crimes’ evidence, and to allow

evidence of ‘lustful disposition’ in cases involving sexual offenses.” 11-0141, p.

13 (La. 12/6/11), 79 So.3d 309, 317. “Thus, evidence of defendant’s other acts

which involve sexually assaultive behavior or acts which indicate his lustful

disposition towards children may be admissible.” Wright, 11-0141, p. 11, 79 So.3d

at 316 (holding other crimes/acts evidence admissible under La. C.E. art. 412.2 as

it demonstrated the defendant’s propensity for sexual activity with adolescents

where he held a position of authority, and where the adolescent children were in

his household).

In State v. Farrier, 14-0623 (La. App. 4 Cir. 3/25/15), 162 So.3d 1233, the

defendant was convicted of sexual battery of an unrelated, six-year old girl who

resided with him in the same home; on appeal, he argued that the trial court erred

in admitting a jailhouse telephone recording, in which he made statements about

watching child pornography, because it was substantially more prejudicial than

probative under La. C.E. art. 403. In reviewing the admissibility of the evidence,

this Court discussed the applicability of La. C.E. art. 404(B)(1) and the exception

within La. C.E. art. 412.2 to the facts of the case, stating as follows:

Unquestionably, Mr. Farrier has been charged with acts that constitute
a sex offense involving a victim who was under the age of seventeen
at the time of the offense. As charged here, the specific offense for
which Mr. Farrier was on trial required the prosecution to prove
beyond a reasonable doubt that Mr. Farrier intentionally touched the
anus or genitals of [victim] without her consent. See La. R.S.

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14:43.1A(1). And, of course, Mr. Farrier is an adult male, and
[victim] was six years old at that time.

Here, the recording speaks directly to Mr. Farrier’s lustful disposition
towards children. Notably, in this conversation, Mr. Farrier does not
tell his listener that the allegations of him watching child pornography
are false; he is loudly silent about the truth of the allegations and
instead cannot fight “this” and hopes for leniency as “a first offender.”
Mr. Farrier’s statements are also relevant to his prosecution to confirm
[victim’s] videotaped forensic interview and testimony at trial that Mr.
Farrier would show her child pornography and then have [victim]
imitate what was done on the video.

Farrier, 14-0623, pp. 14-15, 162 So.3d at 1243. Under the facts of the case, given

that the defendant’s other acts/statements indicated a lustful disposition toward

children, this Court found that the trial court did not abuse its discretion in finding

that the evidence did not warrant exclusion under La. C.E. art. 403 and allowing

the admission of the jailhouse call. Id.

Also, in State v. Klein, supra, this Court found no abuse of discretion in the

trial court’s admission of other crimes evidence, under La. C.E. art. 412.2, at the

trial of the defendant charged with multiple counts of child pornography. The

defendant argued that the trial court erred in allowing testimony from his adult

children that they were sexually abused by the defendant as young children. The

defendant argued that, because the charged offenses of possession of child

pornography are more passive and less violent than the sexual abuse described in

the testimony of his children, any probative value of the testimony was

substantially outweighed by the prejudicial effect. This Court disagreed; in

particular, this Court noted that “[t]he behavior depicted on the videos is strikingly

similar to the acts described by [defendant’s adult children].” Klein, 18-0022, p.

21, 252 So.3d at 986.

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In this case, as admitted by the defendant, the written stories depict illegal

sexual abuse of minor females by their fathers or stepfathers. While we

acknowledge that the defendant’s possession of written stories depicting sexual

abuse is not illegal, the acts and behavior depicted within the stories bare a

noticeable similarity to the charged offenses in this case. His possession of these

pornographic stories involving minor children indicates, generally, a lustful

disposition towards children and, in particular, sexual inclinations towards young

females living with or related to him. Thus, under the facts and circumstances of

this case, the evidence would fall within the exception provided by La. C.E. art.

412.2, as found by the trial court.

We also do not find the evidence to be more prejudicial than probative under

La. C.E. art. 403. Regarding the balancing between the probative value of

evidence and the danger of unfair prejudice, the Louisiana Supreme Court has

stated, “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the

capacity of some concededly relevant evidence to lure the factfinder into declaring

guilt on a ground different from the proof specific to the offense charged.” Wright,

11-0141, p. 15, 79 So.3d at 318 (quoting Rose, 06-0402, p. 13, 949 So.2d at 1244).

In this case, the evidence admitted was relevant and probative to show the

defendant’s lustful disposition toward children, in particular a stepdaughter, in

scenarios similar to those described by A.A. in her forensic interviews and in her

testimony. Thus, we do not find this evidence to be extraneous. We also do not

find that the admission of this evidence would “lure the factfinder” away from its

duty to find proof beyond a reasonable doubt specific to the charged offense of

aggravated incest of A.A. See id. Lastly, in consideration that this was a bench

trial as requested by the defendant, we note that the trial judge is “trained in the

23

law and is able to disregard irrelevant and possibly prejudicial matter.” State v.

Crothers, 278 So.2d 12, 15; see State v. Herrin, 562 So.2d 1, 7 (La. App. 1st Cir.

1990).

Based on our review of the evidence introduced at trial, in light of the

applicable statutes and jurisprudence, we do not find that the trial court abused its

discretion in allowing the written pornographic stories discovered on the

defendant’s computer to be admitted into evidence under La. C.E. art. 412.2. In

addition, we do not find the trial court abused its discretion in finding the probative

value of the evidence outweighed its prejudicial effect. This assignment of error

has no merit.

CONCLUSION

For the foregoing reasons, we find no merit in the defendant’s assignments

of error raised on appeal. Accordingly, we affirm the defendant’s conviction and

sentence for three counts of aggravated incest.

AFFIRMED

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