State Of Louisiana v. Frederick Curtis Mangrum

STATE OF LOUISIANA

T COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0243

l,Ji2c :.' 1ZCJ STATE OF LOUISIANA

VERSUS

FREDERICK C. MANGRUM

JUDGMENT RENDERED: FEB 2 2 2021:

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of Washington • State of Louisiana
Docket Number 16- CR10- 133283 • Division D

The Honorable William H. Burris, Judge Presiding

David F. Gremillion ATTORNEYS FOR APPELLANT
Ravi G. Shah DEFENDANT— Frederick
Covington, Louisiana Mangrum

Warren L. Montgomery ATTORNEYS FOR APPELLEE
District Attorney State of Louisiana

J. Bryant Clark, Jr.
Matthew Caplan
Assistant District Attorneys
Covington, Louisiana

BEFORE: WHIPPLE, C. J., WELCH, AND CHUTZ, JJ.

WELCH, I

The State of Louisiana charged the defendant, Frederick Curtis Mangrum,

by bill of information with sexual battery on a victim under the age of thirteen

years, a violation of La. R. S. 14: 43. 1( C)( 2). The defendant pled not guilty. After a

trial by jury, the jury found the defendant guilty as charged. The trial court denied

the defendant' s motion for post -verdict judgment of acquittal and motion for new

trial. The trial court sentenced the defendant to forty years imprisonment at hard

labor without the benefit of probation, parole, or suspension of sentence. The trial

court denied the defendant' s motion to reconsider sentence. The defendant now

appeals, assigning error to the admission of hearsay testimony, the sufficiency of

the evidence submitted to support the jury' s verdict, and the constitutionality of his

sentence. For the following reasons, we affirm the defendant' s conviction, but we

vacate the defendant' s sentence and remand for resentencing.

FACTS

B.J., 1 who was eight years old at the time the defendant' s trial began on July

8, 2019, testified that her father, the defendant, " digged my private part." The

victim identified " tuiee" as her front private part, and again, in regard to that part

of her body, stated, " He digged it." When asked what the defendant used to dig in

her private part, she stated, " His hand, I think." The victim testified that she lived

with her mother, but that the incident occurred during an overnight stay at a family

member' s home,2 and that her mother was not present when the incident occurred.

The victim testified that the next day, when she returned home, she told her mother

what happened, but that her mother did nothing in response. The victim also told

her grandmother. The victim did not know how many times the abuse occurred,

1
According to the record, the victim' s date of birth is September 7, 2010. Herein, we refer to the
child victim and family members by initials only. See La. R.S. 46: 1844( W).

2 The family member was later identified as the victim' s adult sister, C.M., with whom the
defendant was staying at the time of the incident.

2

though she believed it only happened once. The victim was unaware of how long

before the trial the incident occurred or what grade she was in at the time of the

incident and could only say, " But I know I was very tiny and cute."

The victim' s grandmother, A.J., testified that she learned of the incident

when the victim came to stay with her in the summer of 2016. A.J. testified that

the victim objected when she tried to clean the victim' s private area while giving

her a bath, noting the victim stated, " I want to do it myself." A.J. initially believed

that the victim just wanted to be an independent " big girl." However, after the

victim left for a couple of days with her mother and then returned, she exhibited

the same reluctance to allow her grandmother to clean her private area during

baths. A.J. stated that she began feeling " kind of bad" because she was

accustomed to bathing the victim during her stayovers. She ultimately asked the

victim, " Has anybody ever, you know, touched you there?" The victim did not

initially reply and only looked at A.J., so she added, " Don' t, just tell me the truth

I ain' t going to get mad." The victim then replied, " Yes, ma' am." When A.J.

asked who, the victim replied, " My daddy" and began to cry.

A.J. testified that the victim told her that she was watching television before

the incident occurred. As A.J. further testified, the victim told her that the

defendant took her into a room, pulled down her lower clothing, laid her back, and

had his fingers down there." A.J. attempted to console the victim, who was

crying, and decided to take the victim into her physical custody without her

mother' s consent. A.J. called the Office of Child Protective Services (" OCS") in

Bogalusa and reported B. J.' s disclosure. On August 1, 2016, A.J. brought the

victim with her as she moved to Texas.

In August 2016, Captain David Miller of the Bogalusa Police Department

received a referral for this case from the OCS in Bogalusa. Captain Miller learned

that the victim disclosed to her grandmother that while she was in Bogalusa, in his

3

jurisdiction, she was inappropriately touched by the defendant. After learning that

the victim' s grandmother had also reported the victim' s disclosure to child

protective services in Texas, Captain Miller went outside of his jurisdiction to

contact Lori Hix, a special investigator of the Department of Family and Protective

Services (" DFPS") in Texas.

The victim participated in two recorded interviews in Texas, one on August

5, 2016, by Investigator Hix at the home of one of the victim' s relatives, and one

on August 11, 2015, by Susan Knobloch at the Children' s Advocacy Center

CAC") in Belton, Texas. On August 18, 2016, Gessica Finley, a pediatric

forensic nurse coordinator at the McLane Children' s Hospital in Temple, Texas,

conducted a medical evaluation and an unrecorded interview of the victim. During

the three interviews, the victim identified her father, the defendant, as " Bullet."

The victim did not disclose any abuse or inappropriate behavior during the

interview with Investigator Hix. However, during the CAC interview, the victim

described an incident in which her father digitally penetrated her " tuiee" and her

butt." As indicated in Nurse Finley' s notes, the victim made a similar claim

during the interview at the McLane Children' s Hospital.

The defendant testified at trial and confirmed that in 2014 ( while he and the

victim' s mother, D.J., were still together) there was a time period during which he

and the victim spent one or two nights at the home of C. M., the victim' s adult

sister. However, the defendant repeatedly denied ever sexually abusing or

touching the victim inappropriately.

SUFFICIENCY OF THE EVIDENCE

In his second assignment of error, the defendant argues that the State failed

to present sufficient evidence to support the jury' s verdict. The defendant

concedes that the victim was under the age of thirteen at the time of the alleged

incident, but argues the State failed to prove beyond a reasonable doubt that he

9

touched the victim in an inappropriate manner. He contends that although the

victim testified, she did not remember details or the statements she gave to

interviewers, including Ms. Knobloch and Nurse Finley. The defendant notes that

there was no physical evidence to prove any form of sexual battery. He further

notes that Investigator Hix testified that the victim did not say in her initial

interview that the defendant touched her private parts and that the victim' s mother

denied the victim ever told her the defendant touched her private parts. The

defendant contends the victim gave conflicting accounts as to what happened after

she told her mother about the allegations. Specifically, the defendant contends the

victim testified that her mother did nothing about the allegations, but told

interviewers that her mother stabbed the defendant when she found out. The

defendant argues that due to the victim' s admitted untruths and her grandmother' s

ability to influence her, the victim' s credibility is questionable. Reiterating that the

victim made inconsistent statements and the lack of physical evidence in this case,

the defendant argues that hearsay testimony was the only evidence that could have

convinced the jury beyond a reasonable doubt.

When issues are raised on appeal both 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. The sufficiency claim is reviewed first because the

accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40,

101 S. Ct. 970, 67 L. Ed. 2d 30 ( 1981), if a rational trier of fact, viewing the

evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L. Ed. 2d 560 ( 1979), in the light most favorable to the prosecution, could not

reasonably conclude that all of the elements of the offense have been proven

beyond a reasonable doubt. State v. Hearold, 603 So. 2d 731, 734 ( La. 1992).

See also La. C. Cr.P. art. 821( B); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946

So. 2d 654, 660. When the entirety of the evidence, including inadmissible

E

evidence that was erroneously admitted, is insufficient to support the conviction,

the accused must be discharged as to that crime, and any discussion by the court of

the trial error issues as to that crime would be pure dicta, since those issues are

moot. Hearold, 603 So. 2d at 734.

On the other hand, when the entirety of the evidence, both admissible and

inadmissible, is sufficient to support the conviction, the accused is not entitled to

an acquittal, and the reviewing court must then consider the assignments of trial

error to determine whether the accused is entitled to a new trial. If the reviewing

court determines there has been trial error ( which was not harmless) in cases in

which the entirety of the evidence was sufficient to support the conviction, the

accused must receive a new trial but is not entitled to an acquittal even though the

admissible evidence, considered alone, was insufficient. Hearold, 603 So. 2d at

734; State v. Major, 2019- 0621 ( La. App. 1St Cir. 11/ 15/ 19), 290 So. 3d 1205,

1209, writ denied, 2020- 00286 ( La. 7/ 31/ 20), 300 So. 3d 398.

The Jackson standard of review, incorporated in Article 821, is an objective

standard for testing the overall evidence, both direct and circumstantial, for

reasonable doubt. State v. Legaux, 2019- 0075 ( La. App. 1St Cir. 9/ 27/ 19), 288 So.

3d 791, 794. When analyzing circumstantial evidence, La. R.S. 15: 438 provides

that the fact finder, in order to convict, must be satisfied the overall evidence

excludes every reasonable hypothesis of innocence. When a case involves

circumstantial evidence and the trier of fact reasonably rejects the hypothesis of

innocence presented by the defendant' s own testimony, that hypothesis falls, and

the defendant is guilty unless there is another hypothesis that raises a reasonable

doubt. State v. James, 2017- 1253 ( La. App. Pt Cir. 2/ 27/ 18), 243 So. 3d 717,

721, writ denied, 2018- 0419 ( La. 1/ 8/ 19), 259 So. 3d 1024.

Louisiana Revised Statutes 14: 43. 1( A) provides, in pertinent part:

A. Sexual battery is the intentional touching of the anus

Cel

or genitals of the victim by the offender using any
instrumentality or any part of the body of the offender,
directly or through clothing... when any of the following
occur:

2) The victim has not yet attained fifteen years of age
and is at least three years younger than the offendeni' l

Emphasis added).

Sexual battery is a general intent crime .4 State v. Stevenson, 2005- 52 ( La.

App. Stn Cir. 6/ 28/ 05), 908 So. 2d 48, 53, writ denied, 2005- 2592 ( La. 6/ 2/ 06), 929

So. 2d 1247. It is well settled that, if found to be credible, the testimony of the

victim of a sex offense alone is sufficient to establish the elements of the offense,

even where the State does not introduce medical, scientific, or physical evidence to

prove the commission of the offense by the defendant. State v. Lilly, 2012- 0008

La. App. 1St Cir. 9/ 21/ 12), 111 So. 3d 45, 62, writ denied, 2012- 2277 ( La.

5/ 31/ 13), 118 So. 3d 386.

Likewise, in the absence of internal contradiction or irreconcilable conflict

with physical evidence, one witness' s testimony, if believed by the trier of fact, is

sufficient support for a requisite factual conclusion. State v. Higgins, 2003- 1980,

La. 4/ 1/ 05), 898 So. 2d 1219, 1226, cert. denied, 546 U.S. 883, 126 S. Ct. 182,

163 L. Ed. 2d 187 ( 2005). Further, where there is conflicting testimony about

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

s Prior to the amendment of the sexual battery statute by 2015 La. Acts, No. 256, § 1 ( eff. Aug.
1, 2015), La. R.S. 14: 43. 1 previously provided, as follows:

Sexual battery is the intentional touching of the anus or genitals of the victim by
the offender using any instrumentality or any part of the body of the
offender... when any of the following occur:

1) The offender acts without the consent of the victim.

2) The act is consensual but the other person, who is not the spouse of the
offender, has not yet attained fifteen years of age and is at least three years
younger than the offender.

4 General criminal intent is present whenever there is specific intent, and also when the
circumstances indicate that the offender, in the ordinary course of human experience, must have
adverted to the prescribed criminal consequences as reasonably certain to result from his act or
failure to act. La. R. S. 14: 10( 2).

7

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

sufficiency. Accordingly, on appeal, this court will not assess the credibility of

witnesses or reweigh the evidence to overturn a fact finder' s determination of guilt.

Lilly, 111 So. 3d at 61.

Dr. Anne Troy, a trained forensic interviewer and pediatric nurse

practitioner at the Children' s Hospital in the Audrey Hepburn Care Center, a clinic

for evaluating kids for allegations of physical or sexual abuse, testified at trial as an

expert in the field of child abuse maltreatment and sexual abuse. Dr. Troy testified

that as a " SANE," a sexual assault nurse examiner, her primary role is to collect

evidence in acute cases. She testified as to several factors that can affect the

timing and method of disclosure by a victim, such as the level of trust developed

by a perpetrator during a period of grooming, the likelihood that the perpetrator is a

family member and/or someone the victim loves, and the victim' s level of

resilience, naivety, and/ or anxiety. In elaborating on the factor of naivety, Dr.

Troy stated, " They just think everybody' s Paw -Paw touches them like that. And

they don' t realize until they are [ in] school that that was not a touch that was

appropriate." Dr. Troy noted that some victims feel guilty or ashamed and/ or have

been threatened by the perpetrator. Further, Dr. Troy noted the possible factor of

an ongoing threat of abuse that could cause a victim to be fearful and less likely to

talk about the abuse. Dr. Troy also indicated that the victim' s age can play a role

in their developmental ability to provide history and make detailed sensory

statements. 5

Dr. Troy further explained the gradual nature or process of disclosure, the

possibility that a child may " disassociate" while being questioned, and the

possibility of the victim having a " blending of memories if there' s been multiple

5 Dr. Troy did not define the term " sensory statements," but elaborated as follows: " We want to
ascertain what room they were in. What they were seeing. Tell me something about their
clothing."

8

months or years of abuse." She noted that the initial disclosure may only be " the

tip of the iceberg" or could even be accidental, citing for example cases in which a

child initially perceives and describes an incident as being tickled, but then reveals

inappropriate behavior as a result of further generalized questioning. Dr. Troy also

testified regarding the commonality of a lack of physical evidence of abuse. She

noted that the vaginal area, consisting of tissue similar to the tissue inside of the

mouth, starts to heal within hours of penetration. Dr. Troy stated that if a child is

not examined within twenty-four hours of the act, her body would have healed and

there will be no physical fissures, bruising, or swelling. Dr. Troy described

interview techniques such as building a rapport with a child and helping them

identify parts of the body through the use of diagrams. She noted that it would be

difficult to " coach" a child in preparation for questioning by a trained interviewer,

as the average person would be unable to anticipate the questions that will be

asked. Dr. Troy confirmed that trained forensic interviewers use open- ended, non -

leading questions.

Dr. Troy was asked if, during the course of her practice, she encountered a

child who described a fantastical or made- up reaction by his or her loved one after

the child made a disclosure. She replied, " Developmentally, when we talk about

trying to overcome something that is happening, I actually had kids who have been

raped will say, ` Then I turned in to [ sic] Batman, and I pulled out my laser, and I

shot them." Dr. Troy explained that in that situation, the child is relaying an

ending that gives them some power and saying what they had hoped would

happen.

At trial, the victim testified and demonstrated that she knew the difference

between the truth and a lie and agreed to provide truthful testimony. While she

initially stated that the defendant used his hand when he " digged" her private part,

as previously noted, she added, " I think" and then admitted that she did not

actually know what the defendant used. When asked how it made her feel when

her mother did not do anything after the disclosure, she stated, " Sad." By contrast,

she noted the following as her grandmother' s reaction: " She wanted to make sure

that I' m okay. And she took very good care of me." The victim was questioned in

graphic terms as to whether she was telling the truth or a lie when she told her

mother and grandmother what happened and responded, " The truth." She did not

recall telling anyone that her mother had a fight with her father after she told her

mother about the incident. The victim confirmed that if someone stated that she

saw her mother stab her father with a knife, that would not be the truth. She

further confirmed that her trial testimony was truthful.

The victim recalled staying with her grandmother during the summer of

2016, when she was five years old. She further confirmed that her grandmother

would sometimes help her bathe and recalled, at one point, telling her grandmother

that she did not want her to give her a bath. When the victim was asked if anyone

told her what to say at trial, she responded positively. When then asked what she

was told, she testified, " My Granny told me that it doesn' t matter what they say, as

long as I tell the truth. Jesus will be right there beside me to make sure that I do

good." When asked if her grandmother ever asked her to tell something or say

something that was not true or did not happen, she responded, " No."

On cross- examination, the victim was again asked if she knew how many

times the act occurred, and was then asked if she knew whether it happened at all.

She responded negatively to both questions. The following colloquy then took

place:

Q. It didn' t happen at all? You don' t know
whether it happened at all?
A. I think it happened. I don' t remember when.
Q. You don' t remember when. Right. But you,
do you remember -- I think what you said, you remember
you being at a relative' s house?
A. ( Witness nods head affirmatively).

10

Q. A family member' s house?
A. Yes.

Q. Who else was there?
A. I think it was my two cousins and their
mom.

Q. Their mom is named what?
A. I forgot it.
Q. C. M.]?
A. Yes.

After being asked a series of detailed questions, the victim was later asked,

And you think that your dad dug in your private parts, too, correct? But you don' t

know for sure?" She replied, " I know he did it." When asked why she previously

stated that she thinks he did it, she replied, " No. I know he did it. But I don' t

know how many times he did it."

When repeatedly asked if it would be the truth or a lie if she told someone

that her mother was there when the incident occurred or that her mother cut or

stabbed her father with a knife, she consistently stated that such claims would be " a

lie." The victim also indicated that she could not recall any pretrial interviews.

She confirmed that if she ever previously denied that the incident occurred, that

would have been, " A lie." When specifically asked if she recalled telling Ms.

Knobloch during an interview that her grandmother told her everything to say, she

stated, " I don' t remember." As a follow-up question, she was asked, " If you did

tell her that, would that be the truth or would that be a lie?" In response, the victim

replied, " A truth, I think." On redirect, the victim confirmed that she was confused

by some of the questions asked during cross- examination. She reiterated that

everything she said at trial was the truth.

On August 5, 2016, Investigator Hix interviewed the victim— who was five

years old at the time— at her great uncle' s residence. Investigator Hix testified that

she was hired by the DFPS because they needed someone to help with the

transition of cases between case workers and law enforcement. She noted that the

case workers were on a timeline due to their efforts to put the safety of the child

11

first and foremost, whereas law enforcement officers were concerned with

maintaining the integrity of evidence. Investigator Hix confirmed that during her

interview, the victim did not disclose that she had been sexually assaulted. She

further confirmed that she did not interview the victim in a controlled or secluded

environment. In describing her interviews, Investigator Hix stated, " they scratch

the surface of things." She further testified that when asking " basic questions" to

assess the safety of the child, she does not " go in to [ sic] any detail."

During the audio recorded interview, which was played at trial, Investigator

Hix initially asked the victim general questions like whether she would ever get

into trouble or was ever put in time out, and whether she had plenty of food to eat

and plenty of clothes. Investigator Hix further asked the victim if she understood

the term " private parts." In response, the victim named parts of the body including

the arm, your knees, your feet, your ankle, and your elbow, and your back."

Investigator Hix attempted to explain to the victim where her private parts were

located, stating that they were the parts of the body that were covered by

swimsuits. However, the victim stated, " swimsuits cover up everything so no kids

can see." When asked if anyone has ever seen or touched her private parts, the

victim responded negatively and began indicating that she wanted to show

Investigator Hix her bathing suit.' When questioned again about private parts, she

stated, " the private parts like in your whole body ... like where you broke your

bones in your private parts, you have to go to the doctor... your elbow will break in

your body." Towards the end of the interview, Investigator Hix asked the victim if

anyone ever hurt her at her grandmother' s house or at her mother' s house; the

victim responded negatively as to each residence. After the victim twice asked

about ending the interview, Investigator Hix ultimately stopped the interview.

6 At trial, Investigator Hix confirmed that the victim did in fact show her the bathing suit, which
was a one- piece, children' s swimsuit. Family members could occasionally be heard talking in

the background during the interview.

12

As Investigator Hix noted at trial, the victim did not seem to grasp the

concept of "private parts" during the twenty -minute interview. Investigator Hix

further noted that the lack of any information from the victim indicating that she

had been abused conflicted with the information that Investigator Hix received

from OCS in Bogalusa. Thus, Investigator Hix scheduled an interview at the CAC,

which Investigator Hix described as a " child friendly environment" that " puts the

child more at ease." Investigator Hix further testified, " These people do not talk to

children. That' s their job. For me, my job is to assess this child' s safety and

ensure that she is in a safe place at this time." Investigator Hix noted that she was

not trained in interviewing young children.

Ms. Knobloch, a forensic interviewer at the CAC in Belton, Texas, at the

time, interviewed the victim on August 11, 2016. At trial, Ms. Knobloch described

the CAC as a non-profit, child -friendly, neutral setting with a secluded interview

room and a separate observation room. She defined a forensic interviewer as a

person who gathers information in a neutral manner, using non -leading questions.

Near the outset of her interview, Ms. Knobloch asked the victim if she wanted to

talk about anything, and the victim stated, " talk private parts." At that point, Ms.

Knobloch explained to the victim that she could talk to her about anything and

later explained the importance of telling the truth. The victim stated that her

grandmother and uncle brought her to the interview that day. The victim also

stated, " My granny said if I did good over here, she gonna set everything up for my

birthday party." When asked if "Granny" told her what to say, the victim stated, " I

know what to say... ` cause Granny told me everything." She later added that her

grandmother told her to talk " about the private parts my daddy be doing to me."

When asked how her grandmother knew, the victim stated, " ' Cause I told her all

about it[,] and I told my mama too."

Ms. Knobloch asked the victim to tell her what she told her grandmother,

13

and that her grandmother wanted her to tell what happened. The victim stated that

she was going to tell her the truth. The victim stated, " One day I was by my

friends' house ... my daddy came in the room, grabbed my hand, take me in the

room, push my head down, take all my clothes off, then this hand [ holding one

finger up], stick it all the way down my tuiee." Seemingly referring to the same

day or night, the victim stated, " Then I was in the living room again, he grabbed

me, tear my clothes off, turned me around, dig in my butt." When asked what he

put in her butt, she stated, " he put his hand [ again held one finger up] in my butt

then he smelled it." She stated that her father shut the door hard when he entered

the room, adding that it was her father' s room. She pointed to her vaginal area

when asked what a " tuiee" was and pointed to her backside to identify her " butt."

When asked what her father was wearing, the victim stated he was wearing " some

drawers."

The victim stated that after the incident, her mother and father messed up the

whole house because her mother did not want her father to touch her. She added

that her mother had a knife, that she cut her father' s chest, and that he died. When

asked if that was the truth, without pause she stated, " That' s not the truth." When

asked if it was the truth that her father touched her tuiee, she shook her head up

and down, indicating a positive response. The victim stated that her father later

said, "` I' m sorry what I did to you,"' and she told him, " It' s okay." She further

stated that her father asked, " Will you be um my baby again?" When asked how

many different days it happened, one day or more than one day, she stated that it

happened " one day." When asked how it felt, she stated that it felt like his hand,

and when asked if it hurt, she said, " Some things ... his hand." When asked if

anyone else ever touched her tuiee or her butt, she stated, " My daddy." When

asked if it was inside or outside when her father touched her butt, she said " inside."

7 The victim named her two nephews, C. M.' s children, after calling them " friends."

14

When asked what he did after that, she again said " he smelled it."

Nurse Finley also testified at trial. At the time of the trial, Nurse Finley had

seen over eleven hundred cases of abuse in her roughly five years of forensic

nursing. Regarding medical evaluations of sexually assaulted children, she stated

that DNA or trauma are not likely to be found because most of the cases involve

delayed outcries. On August 18, 2016, Nurse Finley interviewed and medically

examined the victim at the CAC and prepared a report. She noted that the victim

was alert and oriented at the time, but initially shy and inquisitive. Nurse Finley

explained that she was trained to ask open- ended questions, while ascertaining the

history of the child and further noted that she took word- for-word notes of the

victim' s responses during the interview. Nurse Finley noted that she showed the

victim body diagrams to help her identify body parts.

Nurse Finley confirmed that the victim detailed being the victim of sexual

assault or abuse. Specifically, according to Nurse Finley' s notes, Nurse Finley

asked the victim, " Has anything ever happened to your body that you didn' t like or

that hurt?" The victim replied, " Umm... I didn' t like because how my Daddy did

to me wrong." Finley further asked the victim, " Where did this happen?" The

victim replied, " He [ was] with my sister [ C. M.]." Nurse Finley then asked the

victim, " Tell me what did your Daddy do to your body that you didn' t like?" As to

the victim' s response, the notes further state, " He touched me by my private parts

indicates female sexual organ on body diagram, ` tooey']." As Nurse Finley

further stated in her notes and referenced at trial, the victim added, " And when he

got done he told me, he said sorry. I told him it' s ok so he just sat in the bed."

Nurse Finley noted that the victim initially stated that the defendant touched

her on her skin, afterwards said that it was not on her skin, but then confirmed that

he touched her underneath her panties. The victim denied that anything else

happened. When asked if this had happened before, the victim stated, " Like the

15

other day I was by my Daddy that' s how he told me about stuff." She added,

That' s all he did to me."

Nurse Finley testified that towards the end of the history portion of the

interview, the victim asked her a specific question and seemed to answer her own

question. Specifically, as indicated in the notes, the victim asked, " Do dad' s [ sic]

ever touch you here [ points to genitals] by their wiener with boys instead of

girls[?]" and " Why do they do that? Do you know why? Because dad' s [ sic] do

bad. These private parts really bad." Nurse Finley testified that she did not have

any concerns that the victim in this case had been coached prior to the interview.

Nurse Finley confirmed that she did not find any physical evidence of an injury.

A.J., the victim' s grandmother, testified that she had been taking care of the

victim since May 25, 2016. A.J. testified that before the victim told her what

happened to her, she had no ill feelings toward the defendant. She noted that

outside of the incident at issue in this case, to her knowledge, the victim never

experienced any other abuse. A.J. noted that the victim' s mother had eleven

children, but did not have custody of any of them. A.J. had custody of four of the

children, including the victim. A.J. confirmed that she had called OCS in the past,

prior to the victim' s disclosure, because she wanted to " get [ B.J.]" and force the

victim' s mother to " get herself together." A.J. noted that the victim' s mother

would often move and would take the victim " from here to there."

A.J. was asked how she would respond to someone who accused her of

telling the victim what to say in order to take custody of the victim. She, in part,

replied, " You know what? This is what I' m going to say ... A person have to have a

warped up mind to sit there, to put something in a child' s mind to say that about

another human being. Don' t you know what that would do to a child?" A.J.

specifically denied coaching the victim in any way or offering her any reward.

A.J. further denied that the victim told her that her mother and father had a fight

16

after the victim told her mother about the incident. A.J. explained that the victim

only stated that her parents argued. A.J. further noted that someone else told her

that the victim' s parents had a fight, causing her to assume that the victim forgot to

tell her about the fight or was outside playing at the time. A.J. admitted that she

may have been confused as to who provided her with details of the altercation

between the victim' s parents. On cross- examination, A.J. testified that she only

told B. J. to tell the truth and that, " Jesus is going to be right there with you." On

redirect, A.J. confirmed that she would answer questions if the victim asked about

such things as private parts, but she never told the victim what to say.

The victim' s mother, D. J., also testified at trial. Among D.J.' s eleven

children, she had four of them before her relationship with the defendant began,

and the defendant fathered six of them, including the victim. D.J. only had custody

of one of her children at the time of the trial. She noted that four of her children

moved to Texas at different times and when asked why, she testified, " Because I

was drugging." She clarified that " drugging" meant she was selling drugs and

snorting cocaine. D.J. further testified, " My mom [ A.J.], she called the people and

told the people that the man that was doing our yard was raping my girls." When

asked which girls, she named three of her daughters, not including the victim in

this case. D.J. stated that the case was thrown out after the man took a lie detector

test. She added, " I don' t know what all happened after that. But I know he didn' t

go to jail." D.J. stated that the three named daughters began living with her aunt.

She stated that A.J. was supposed to have six of her children but instead kept the

boys while her aunt kept the girls.

D.J. further testified that she stopped doing drugs when the victim was born,

but A.J. kept the victim for approximately six months, when she was an infant,

while D.J. was attempting to prove to OCS that she was drug- free and serious

about her situation. She stated that A.J. returned her children to her in 2010. D.J.

17

confirmed that the victim was moved " back and forth" between her and A.J. during

the first year of her life, and then between her and the defendant as she got older.

D.J. noted that she raised her sons herself from 2010 to 2015. According to D.J.,

in January 2015, A.J. needed money to avoid being kicked out of her house. D.J.

further noted that A.J. was getting money and food stamps for her children even

when they were not living with A.J. D. J. testified that she returned the boys back

to A.J. in January 2015, but she kept the victim and was still in a relationship with

the defendant at that time.

D.J. testified that she and the defendant ended their relationship when the

victim was five years old. When asked if the defendant was still around the victim

after they ended their relationship, she confirmed that they were together during

Mardi Gras in 2016 and noted that the victim' s sister, C. M., and C. M.' s two sons

would sometimes pick up the victim. D.J. testified that she was always present

when the victim and the defendant were at C. M.' s house. When confronted with

the victim' s testimony that her father " touched her on her tuiee[,]" D.J. stated,

Never." She added, " It never happened. We wouldn' t even be having this trial. I

be [ sic] on trial." When asked for what, she stated, " Killing him." D. J. testified

that she would often stress to the victim that if someone ever touched her to let her

know, adding, " Because my own daddy did it to me." She further testified, " And I

told my mom, and she didn' t do nothing about it. Told me I better never tell

nobody." D.J. consistently denied that the victim ever told her that she was

sexually molested by the defendant.

D.J. also denied having an altercation with the defendant over the victim' s

allegations. She stated that A.J., however, knew about a previous argument that

she had with the defendant before the victim was born, and at that time, she told

her mother, " Yeah. I ought to go stab him." D.J. speculated that her mother

coached the victim to tell the lie about a knife. D.J. further stated that the victim

18

was afraid of A.J.

C. M., the victim' s adult sister, who was thirty-four years old at the time of

the trial, testified that she lived in Bogalusa between 2015 and 2016, with her two

children and her sister ( not the victim). C. M. testified that in 2015 and 2016, the

defendant ( her father) was living with her grandmother, adding, " in and out."

C. M. stated that the defendant would come to her house, " Every blue moon."

C. M. further indicated that the defendant would stay at her house sometimes when

he came to Bogalusa, but not often.

C.M. recalled an occasion, during that time, of the defendant being at her

house while the victim was there. C. M. stated that her two children and her sister

who lived with her were also there at the time. When asked if the defendant had

his own bedroom at her house, she confirmed that he had a room that he stayed in

and that "[ a] round the time he was coming" he would spend the night there. C. M.

stated that the victim was not often there at the same time as the defendant. When

asked if she ever knew of the defendant taking the victim into his room, she stated,

No. Every time she stayed with us, she sleep with me and my boys."

C. M. recalled the victim being at her house during Mardi Gras of 2016, but

stated that the defendant was not there at that time and that the victim did not

spend the night at that time. C. M. specifically denied that the defendant could

have sexually molested the victim at her house, noting that the victim was always

with her and her two sons.

In addition to confirming that he and the victim stayed at C. M.' s house

overnight at the same time on at least one occasion, the defendant confirmed that

he would still occasionally stay at C. M.' s house after he and D.J. ended their

relationship. When asked why the allegations against him were made, the

defendant testified that A.J. may have initiated the allegations for financial gain,

noting that when he met D.J., A.J. did not have money for rent. The defendant also

19

asserted that A.J. " kept sending OCS people out" in an effort to get custody of the

victim. When asked if he was tested for drug use by OCS, he confirmed that he

was drug screened, that he tested positive for marijuana, and stated, " they found

marijuana and stuff." In repeatedly denying ever abusing the victim, he testified,

in part, " That' s not true. I would never, never. You put a gun to my head and ask

me to touch a child, you get ready to blow my brains out. Because I would not do

it, or deny my God. I die for them two things." The defendant was sixty- one years

old at the time of the trial.'

An appellate court is constitutionally precluded from acting as a " thirteenth

juror" in assessing what weight to give evidence in criminal cases; that

determination rests solely on the sound discretion of the trier of fact. The trier of

fact may accept or reject, in whole or in part, the testimony of any witness. The

fact that the record contains evidence which conflicts with the testimony accepted

by a trier of fact does not render the evidence accepted by the trier of fact

insufficient. State v. Hano, 2005- 2090 ( La. App. 1st Cir. 6/ 9/ 06), 938 So. 2d 181,

187, writ denied, 2006- 1713 ( La. 1/ 26/ 07), 948 So. 2d 164.

Herein, the jury heard the testimony of all the witnesses, including the

victim' s trial testimony, the defendant' s adamant denials during his trial testimony,

and the victim' s pretrial recordings. While the victim did not make a disclosure

during the initial interview that took place at the home of a family member, her

subsequent interview was wholly consistent with the testimony that she presented

at trial. Although the victim' s mother testified that she was always with the

defendant and the victim when they were at C.M.' s residence, C. M. and the

defendant specifically recalled at least one occasion wherein the victim spent the

night at C. M.' s house while the defendant was staying there. While the victim was

unable to relay details such as dates, the victim made seemingly independent,

8 The defendant confirmed that approximately thirty years before trial, he had previously been

OR

consistent, and detailed statements regarding the defendant' s acts of abuse.

In reviewing the evidence presented at trial, we cannot say that the jury' s

determination was irrational under the facts and circumstances presented. See

Ordodi, 946 So. 2d at 662. Based on the record before us, the jury could have

concluded that the defendant used his hand or finger to intentionally touch the anus

or genitals of the victim. An appellate court errs by substituting its appreciation of

the evidence and credibility of witnesses for that of the fact finder and thereby

overturning a verdict on the basis of an exculpatory hypothesis of innocence

presented to, and rationally rejected by, the jury. See State v. Calloway, 2007-

2306 ( La. 1/ 21/ 09), 1 So. 3d 417, 418 (per curiam). A court of appeal impinges on

a fact finder' s discretion beyond the extent necessary to guarantee the fundamental

protection of due process of law in accepting a hypothesis of innocence that was

not unreasonably rejected by the fact finder. See State v. Mire, 2014- 2295 ( La.

1/ 27/ 16), 269 So. 3d 698, 703 ( per curiam). After a thorough review of the record,

we are convinced that a rational trier of fact, viewing the evidence presented in this

case in the light most favorable to the State, could find that the State proved

beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of

innocence, all of the elements of sexual battery. Thus, we find that assignment of

error number two lacks merit.

HEARSAY TESTIMONY

In his first assignment of error, the defendant argues that the trial court

abused its discretion and misapplied the law in admitting hearsay testimony of

Nurse Finley, regarding allegations by the victim. Noting the trial court conceded

there was a forensic component to Nurse Finley' s interview of the victim, the

defendant contends that the trial court erred in concluding that the main reason for

the interview was medical. The defendant notes that Nurse Finley admitted that

convicted of possession of cocaine, " Probably twice, I think."

21

the interview had a forensic purpose and that the CAC only accepts referrals from

CPS and law enforcement. The defendant further notes that the interview did not

take place at a hospital, but instead took place at the CAC, where he claims

interviews are performed solely for law enforcement and CPS. The defendant

contends that Investigator Hix, a CPS investigator, referred the victim to the CAC

and ultimately Nurse Finley. He contends that such referrals only occur due to an

alleged crime or mistreatment. The defendant concludes that Nurse Finley' s

testimony should have been excluded based on holdings in State v. Brand, 2016-

0960 ( La. App. 11t Cir. 12/ 22/ 16), 2016 WL 7407414 ( unpublished), writs denied,

2017- 0167, 2017- 0131 ( La. 9/ 15/ 17), 225 So. 3d 478, 479, and State v. Greene,

2006- 0667 ( La. App. 5" Cir. 1/ 30/ 07), 951 So. 2d 1226, 1234, writ denied, 2007-

0546 ( La. 10/ 26/ 07), 966 So. 2d 571. The defendant further claims that Nurse

Finley' s testimony was " powerful" and notes that the State relied on it during its

closing argument. Contending again that the victim made inconsistent statements

and that there was no physical evidence in this case, the defendant argues that the

admission of the hearsay testimony caused irreparable harm and affected the

outcome of the trial.

Hearsay is a statement, other than one made by the declarant while testifying

at the present trial or hearing, offered in evidence to prove the truth of the matter

asserted. La. C. E. art. 801( C). Hearsay evidence is not admissible except as

otherwise provided by the Code of Evidence or other legislation. La. C. E. art. 802.

Under La. C. E. art. 803( 4), hearsay concerning medical treatment and diagnoses is

admissible; if the principal reason for the medical examination, however, is

forensic, then such hearsay is inadmissible. Brand, 2016 WL 7407414 at * 2. A

trial court' s ruling on the admissibility of evidence will not be disturbed on appeal

absent a clear abuse of the trial court' s discretion. A trial court is vested with

much discretion in determining whether the probative value of relevant evidence is

22

substantially outweighed by its prejudicial effect. Brand, 2016 WL 7407414 at

4.

Louisiana Code of Evidence article 803( 4) specifically provides, in pertinent

part:

The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:

4) Statements for purposes of medical treatment and
medical diagnosis in connection with treatment.

Statements made for purposes of medical treatment and
medical diagnosis in connection with treatment and
describing medical history, or past or present symptoms,
pain, or sensations, or the inception or general character
of the cause or external source thereof insofar as

reasonably pertinent to treatment or diagnosis in
connection with treatment.

In this case, at the hearing that occurred outside of the presence of the jury,

Nurse Finley testified that she had been a forensic nurse since 2014, specifically

defining " forensic" as a combination that occurs when medical and legal systems

intersect. She testified that as a forensic nurse, her goal is to make sure that her

patients get all of the medical care that they need based on their conveyed story

about their body. She confirmed that there is a forensic component to her

examinations, stating that depending on the type of case, if evidence is not

collected from the patient' s body by use of DNA swabs, then the history is the

evidence. She also noted that evidence may consist of photo documentation and/ or

testing for sexually transmitted infections. Nurse Finley added, " So essentially

everything that I do is for medical diagnosis and treatment with that component of

potential evidence." She confirmed that the forensic component never supersedes

the medical intentions of an evaluation.

Nurse Finley stated that the primary goal of the examination was medical

and the exam included four steps: ( 1) acquiring a history (the most important part

which guides the rest of the exam); ( 2) conducting a detailed head -to -toe exam; ( 3)

23

conducting an anogenital exam ( using a camera to observe the genitals in depth to

highlight any faint trauma, injury, or infection); and ( 4) collecting and

documenting by photo all evidence obtained in the prior three steps ( the

evidentiary component). She also noted that she tests for sexually transmitted

diseases to make sure that the patient gets appropriate treatment and coordinates

provider or social worker referrals when necessary.

Nurse Finley was housed at the CAC when she conducted the forensic

medical examination of the victim in this case. She noted that the forensic

examiners had their own room at the CAC and that they partnered with the CAC to

avoid having patients go to more than one location. She noted, however, that she

was not equipped to do blood work at the CAC, which she noted was outside of her

realm. During cross- examination, Finley explained that a " SANE," a sexual

assault nurse examiner, is a subset sub -specialization of a forensic nurse. She

noted that forensic nursing was slightly broader and covers a multitude of different

types of exams such as neglect, physical abuse, strangulation, and domestic

violence. Nurse Finley had training to perform each of the named exams.

Nurse Finley noted that in this case, only she and CPS were involved at the

time of the exam. While she confirmed that the police and CPS were the only

agencies who could refer children to the CAC, she confirmed that CPS referred the

instant case and that she was consulted out of an abundance of caution. She stated

that her purpose is to provide medical treatment, after determining if it is

necessary, when there is a concern. She stated that in this case, she gave her report

to CPS. The exam in this case was classified as nonacute, as there was no

indication that an incident occurred within 96 hours of the exam and no known

date of any incident. Thus, the exam was considered to be outside of the window

for potentially collecting evidence from a patient' s body. In denying the

defendant' s motion in limine, the trial court stated in part, " It' s very clear to me

24

that, although there' s a forensic component to this, it' s been made plain ...that the

primary purpose of this is, indeed, medical diagnosis and treatment."

In Greene, 951 So. 2d at 1234, the defendant was charged with the

aggravated rape of his twelve -year- old daughter. The defendant challenged the

testimony of Dr. Sonseeahray Bridges and Dr. Ellie Wetsman. Before Dr. Bridges

took the stand, the defendant objected to her and Dr. Wetsman' s anticipated

testimony about what the victim told them during the medical exam. The trial

court sustained the objection. The State took writs, arguing the testimony fell

within the hearsay exception under La. C. E. art. 803( 4). A fifth circuit panel

granted the writ and, accordingly, Dr. Bridges and Dr. Wetsman were both allowed

to testify regarding the history given by the alleged victim at the time of the

examination. In light of the subsequent trial court record, the Greene court

determined that its writ grant was patently erroneous and produced unjust results.

The fifth circuit explained that at the time it decided the writ, Dr. Bridges and Dr.

Wetsman had not testified, but that on appeal, it had the testimony at issue

available for review.

The Greene court, 951 So. 2d at 1234- 35, found that it was questionable

whether the testimony of either doctor regarding what the victim told them by way

of a history was admissible under La. C.E. art. 803( 4). Dr. Bridges examined the

victim after she was referred by Deputy Cannizaro, close to two months after the

last incident of alleged abuse; she ordered routine lab work dictated by the

allegation of sexual abuse. As such, the court felt the principal purpose of Dr.

Bridges' examination of the victim was forensic.

Similarly, in Brand, 2016 WL 7407414, the victim was examined and

treated at Children' s Hospital emergency room on November 4, 2013. Over two

weeks later, the victim was seen by Dr. Wetsman at Children' s Hospital Audrey

Hepburn Care Center. This court noted the record indicated that Dr. Wetsman saw

25

the victim only one time and that law enforcement had referred the victim to the

doctor. The Audrey Hepburn Care Center billed St. Tammany Parish Sheriff' s

Office $ 300 for the victim' s visit/treatment there. The following day, Dr.

Wetsman faxed her report on her treatment of the victim to a detective. While

some of his testimony arguably suggested that the purpose of Dr. Wetsman' s exam

of the victim was for diagnosis and treatment, this court found that such purpose

was apparently subsidiary and that the main purpose of the examination, as the

defendant therein argued, was forensic.

In this case, Nurse Finley adamantly testified that the main purpose of her

interview of the victim was for medical evaluation and treatment. She further

noted that she was not directly referred to the victim by the police and that her

agency was non- profit. In any case, even assuming that her purpose was mainly

forensic, inadmissible hearsay that is merely cumulative or corroborative of other

testimony adduced at trial is considered harmless. Brand, 2016 WL 7407414 at * 7

citing, State v. Spell, 399 So. 2d 551, 556 ( La. 1981)). In this case, the victim' s

statements to Nurse Finley were generally consistent with her allegations during

the CAC interview by Ms. Knobloch, the victim' s trial testimony, and the

testimony of A.J., the victim' s grandmother. Thus, the cumulative nature of the

testimony presented by Nurse Finley, rendered any error, assuming such occurred,

harmless in this case. See Brand, 2016 WL 7407414 at * 7. Thus, we find no

merit in assignment of error number one.

PATENT SENTENCING ERROR

In his third assignment of error, the defendant argues that based on " the

totality of the circumstances" the sentence imposed in this case, though admittedly

within the statutory range, is excessive and is a cruel violation of his constitutional

rights. However, as noted below, this court' s routine patent error review revealed

a sentencing error that requires this court to vacate the imposed sentence.

26

Pursuant to La. C. Cr.P. art. 920( 2), in conducting a routine patent error

review, this court shall consider "[ a] n error that is discoverable by a mere

inspection of the pleadings and proceedings and without inspection of the

evidence." In reviewing the instant record for patent error, we discovered that after

the denial of the defendant' s motion for new trial, the trial court did not wait the

required twenty- four hours before imposing sentence, nor did the defendant waive

that waiting period. See La. C. Cr.P. art. 873.

Louisiana Code of Criminal Procedure article 873 provides:

If a defendant is convicted of a felony, at least three days
shall elapse between conviction and sentence. If a
motion for a new trial, or in arrest of judgment, is filed,
sentence shall not be imposed until at least twenty- four
hours after the motion is overruled. If the defendant

expressly waives a delay provided for in this article or
pleads guilty, sentence may be imposed immediately.

In State v. Augustine, 555 So. 2d 1331, 1333- 34 ( La. 1990), the Supreme

Court held that a trial court' s failure to observe the twenty- four hour delay is not

harmless error if the defendant challenges the sentence on appeal. Therefore,

given the circumstances presented herein, we must vacate the defendant' s sentence

and remand the case to the trial court for resentencing. See Augustine, 555 So. 2d

at 1334- 35; State v. Denham, 2001- 0400 ( La. App. 1St Cir. 12/ 28/ 01), 804 So. 2d

929, 932, writ denied, 2002- 0393 ( La. 1/ 24/ 03), 836 So. 2d 37; State v. Claxton,

603 So. 2d 247, 250 ( La. App. 1 st Cir. 1992). As such, we pretermit consideration

of the defendant' s third assignment of error, which raises the issue of excessive

sentence.

DECREE

For the foregoing reasons, we affirm the defendant' s conviction. We vacate

the defendant' s sentence and remand the matter for resentencing

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

27