State Of Louisiana v. Kevin Abimael Guzman

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 KA 0502

STATE OF LOUISIANA

VS.

KEVIN ABIMAEL GUZMAN

Judgment Rendered: Nov 17 2022

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 12- 16- 0217

The Honorable Fred T. Crifasi, Judge Presiding

Hillar C. Moore, III Attorneys for Appellee
District Attorney State of Louisiana
Dylan C. Alge

Assistant District Attorney
Baton Rouge, Louisiana

James Stokes Holt, IV Attorney for Defendant/Appellant
Baton Rouge, Louisiana Kevin Abimael Guzman

BEFORE: McDONALD, McCLENDON, AND HOLDRIDGE, JJ.

HOLDRIDGE, I

The defendant, Kevin Abimael Guzman, was charged by bill of information
with sexual battery of M.Z. ( a victim under the age of thirteen years), ( count I);

sexual battery of J.P. ( a victim under the age of thirteen years) ( count II); and sexual

battery of J.P. ( count I1I), violations of La. R.S. 14: 43, 1.'
He pled not guilty on all

counts.
Following a jury trial, on count I, he was found not guilty, and on counts II

and III, he was found guilty as charged by nonunanimous verdicts. He moved to

vacate the verdicts on counts II and 111, and the motion was granted. See Ramos v.

Louisiana, _ U.S. _, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020).

Thereafter, the defendant was charged by amended bill of information with

sexual battery of J.P. ( a victim under the age of thirteen years) ( count I); and sexual

battery of J.P. ( count Il), violations of La. R. S. 14: 43. 1. He pled not guilty on both

counts.
Following a jury trial, on counts I and II, he was found guilty as charged by
unanimous verdicts. On count 1, he was sentenced to twenty- five years

imprisonment at hard labor without benefit of probation, parole, or suspension of

sentence. On count II, he was sentenced to ten years imprisonment at hard labor

without benefit of probation, parole, or suspension of sentence, two years to run

consecutively to count I, and eight years to run concurrently with count I. He now

appeals raising three assignments of error. For the following reasons, we affirm the

convictions and sentences.

FACTS

The victim, J. P., testified at trial. Her date of birth is September 3, 1999. She

went to Park Forest Elementary School for sixth and seventh grades. During that

period, she lived with her parents and two brothers in an apartment on North

Sherwood Forest Boulevard in Baton Rouge, Louisiana. J. P. and her family were

1 We reference J. P., who at the time of the commission of the offense was a minor under eighteen
years of age and a victim of sex offenses, only by her initials. See La. R.S. 46: 1844( W).
2

active in Communidad Misionera Natanael ( Natanael) - a church that was located

next to their apartment complex.

In the summer of 2012, when J. P. was twelve years old, she and her family

usually attended Friday and Sunday services at Natanael. The defendant was also a

member of the church, where he did " production work." According to J.P., the

defendant had visited her home to play video games with her brothers.

J.P.' s first time sleeping away from home was in June 2012 at a Natanael

sponsored family retreat in Lake Charles. She attended the event with her uncle,

aunt, and three-year-old cousin. J.P. was permitted to arrive early for the retreat with

her aunt and some other church members, including the defendant, because her aunt
worked at the church.

On the ride to the retreat, the defendant asked J. P. if she wanted to " make

cheesecake."
J.P. thought the defendant was talking about baking. When the

defendant put his hand on her thigh, she " realized that making cheesecake wasn' t

exactly what [ she] thought it was." The defendant moved his hand up J.P.' s thigh,

but she moved it away. J.P.' s aunt and cousin were also in the vehicle, but had both

fallen asleep.

The retreat facility was " like a campus." Suites were available for rent so that

families could stay together. Additionally, two residential buildings, one for the men

and one for the women, were on either side of a building where services were held.

J. P. shared a suite with her uncle, aunt, and cousin.

After arriving at the retreat, J. P.' s aunt asked her to go to the men' s residential

building, At the residential building, J.P. was approached by the defendant and his

friend, Jose. No one else was present because the attendees were arriving later that

evening. The defendant grabbed J. P.' s forearm and pushed her into a room with a

bed. Jose grabbed J.P.' s cousin and took him away. The defendant tried to kiss J.P.

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on her mouth and neck. She was in shock. She told the defendant that she " didn' t

want to do that[.]" The defendant grabbed her hand and forearm and took her to the

bathroom. The defendant put J. P. against a wall and told her to take her pants off

J. P. was still in shock and did not respond. The defendant then unbuttoned J.P.' s

shorts and pulled them and her underwear down. J. P. asked the defendant what he

was doing. He replied, " open your legs up." J. P. stated, " No." J.P. indicated the

defendant put his fingers on her vagina. The defendant then stopped for a minute

and took out a condom. He attempted to put the condom on, but stated, "[ o] h sh**,

my condom ripped." J. P. " hurried up and put [her] bottoms back on, and ... ran out

of the room[.]" Jose was outside of the room with J. P.' s cousin. J. P. took her cousin

away from Jose and went back to her suite. She remained at the retreat the entire

weekend, and she rode back home with her family.

J.P. did not report the incident to her aunt or mother because she was in shock

about what had happened. When asked why she had not reported the incident to her

mother when she called J. P. at the retreat, she stated:

I did want to tell her, but it was -- the environment we had grown
up in at church was always condemning any type of sexual acts or
anything to do with that. And I had thought to myself who is going to
believe a 12 year old girl compared to a guy who is much older.

Following the incident, J. P. continued attending Natanael with her family.

She did so because she had not told her family about the incident. She also continued

to see the defendant at Natanael.

According to J.P., the defendant assaulted her again approximately a few

weeks or a month later. J. P. was still twelve years old. On the day of this incident,

during the lunch hour, the defendant came to the apartment where J. P. lived with her

family. The only person at home with J.P. was a child she was babysitting.

Someone knocked on the front door, and J.P. opened the door to see who was there

and it was the defendant. The defendant asked if J. P.' s brothers were home. J.P.

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told the defendant her brothers were not there and nobody was home. The defendant

lingered at the door and asked if he could come in. J. P. said, " no, there is nobody

home." The defendant moved closer to the door and entered the apartment. J.P. told

the defendant " no," but did not want to cause a commotion or alert other people in

the apartment complex.

Once inside the apartment, the defendant gave the child J.P. was babysitting

a video game and told him to go upstairs. The defendant told J. P., " let' s try to do ...

what we were trying to do last time." J.P. said, " no" multiple times. Every time she

said " no," however, the defendant moved closer to her " as if he was trying to

intimidate [ her]." J.P. then told the defendant that she was not going to do that. He

grabbed her forearm, took her to the downstairs half bathroom, and closed the door.

He told J.P. to get on her knees. When she did not comply, he used his hands to

force down her shoulders until she was down on her knees. He then pulled down his

pants and told her " you have to suck it." J.P. testified, " I didn' t want to put it in my

mouth, and so what [ the defendant] did was he grabbed ... the back of my head, and

he pulled me forward, and as I was doing what he told me to do[,] he said don' t bite."

J. P. began gagging as the defendant kept his hands on the back of her head. She felt

ashamed and was in a panic. The defendant ejaculated and told J.P. she had to

swallow it. The defendant then pulled up his pants. J. P. was crying and turned her

body to face the sink. The defendant told her she " did a good job" and left. J.P. did

not tell anyone about the incident because she was ashamed of what had occurred.

According to J. P., the defendant assaulted her a third time a few months after

the incident at the apartment. J. P. was thirteen years old at the time of this incident.

It occurred when she was at Natanael on a Saturday for a youth gathering. After a

sermon, the pastor' s wife asked J. P. to go fetch the defendant from the production

room in one of the other buildings. J. P. did not want to go and did not want to be

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alone with the defendant, but she did as instructed to avoid having to tell the pastor' s
wife about what the defendant had done.

J.P, went to the production room and opened the door. The defendant was

sitting in a chair with wheels and turned to see who was there. While standing at the

door, J.P. told the defendant that the pastor' s wife needed him. Before J. P. could

leave, the defendant rolled over to her and said, " no, wait, come here." The

defendant grabbed J.P. by the wrists and pulled her into the room. He forced her to

sit on his lap. He put his arm over her mid area. She was " really afraid," and tried

to find the courage to fight back and get out. The defendant realized that J.P. was

resisting and got up and grabbed her arm. He took her into the soundproof room and

closed the door.
J. P. had never been in the room because only authorized people

were allowed in the room. The defendant told J.P. to get on her knees and " suck his

d***." J.P. refused, stating " I am not doing this again[.]" The defendant used his

hands to force down J. P.' s shoulders until she was down on her knees. He then

pulled his pants and underwear down and grabbed the back of her head. He put his

penis in J. P.' s mouth and forced her to suck it until he ejaculated. He then removed

his hands from her head. He told J. P. she did a good job and offered her a coke and

a pat on the back. J. P. testified she felt ashamed, dirty, and " in a sense useless."

She told the defendant that what was happening " wasn' t right." J. P. stated, "[ the

defendant] nudged it off, ... basically saying like who is going to believe you." She

explained "[
the defendant] was insinuating that he was much older, and that it could

be seen as I just had a crush on him and I was making it all up." J. P. did not think

anyone would believe her. J. P. did not disclose the assaults until she was fifteen or

sixteen years old. She then told her mother about the assaults after her mother told

her that one of her family members had been molested at Natanael.

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The defendant testified at trial. His date of birth is November 23, 1992. He

was nineteen in 2012. He admitted he sat next to J. P. on the ride to the retreat, but

denied putting his hand on her knee. He also denied saying anything sexual to her.

He indicated he was never alone with J.P. at the retreat, and denied pulling her into
a side room.
He denied sexually assaulting J.P. at the retreat. He also denied ever

going to the apartment where J.P. lived or assaulting her there. Lastly, he denied

ever being in the audio room of Natanael with J. P. and denied sexually assaulting
her there.

The defendant testified he was a part-time employee of Natanael and

described his position as " technical." He stated that the pastor of Natanael had sent

him to Panama for a month to work with the pastor' s son- in-law at his company

which produced T.V. commercials. The defendant indicated he was not a deacon at

the church because he was too young. The defendant also testified that only

authorized people were allowed to be in the production room of Natanael, but he

was authorized.

RIGHT TO PRESENT A DEFENSE

In assignment of error number one, the defendant contends the trial court erred

in overruling his objection to the court' s granting of the State' s pre- trial motion in

limine. He argues the granting of the motion in limine restricted his defense on

cross-examination by preventing him from impeaching a witness by stating there

was a previous trial. He does not specify which witness, if any, he was prevented

from impeaching.

The effect of granting a new trial is to set aside the verdict or judgment and to

permit retrial of the case with as little prejudice to either party as if it had never been

tried. La. Code Crim. P. art. 857. At a minimum, Article 857 is intended to mask

from the jury members the fact that a defendant before them has previously been

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tried, with the jury' s possible conclusion that he has previously been convicted.
State v. Reed, 324 So. 2d 373, 380 ( La. 1975). It is a jury' s duty to determine a

criminal defendant' s guilt or innocence on the strength of the evidence presented to

it, uninfluenced by the fact that on an earlier occasion ( and under circumstances so

defective as to invalidate the conviction), he had been found guilty of the offense by

a different jury. When a jury is informed by the State that the accused was convicted

of the crime on a previous occasion, the defendant' s right to a fair trial ... has been

violated. State v. Lee, 346 So. 2d 682, 684 ( La. 1977)

A criminal defendant' s right to present a defense is guaranteed by the Sixth

Amendment of the United States Constitution and Article I, § 16 of the Louisiana

Constitution. Evidentiary rules may not supersede the fundamental right to present

a defense. See U. S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle,

94- 0947 ( La. 6/ 30/ 95), 658 So. 2d 198, 201- 02. However, constitutional guarantees

do not assure the defendant the right to the admissibility of any type of evidence;

only that which is deemed trustworthy and has probative value can be admitted. See

State v. Governor, 331 So. 2d 443, 449 ( La. 1976). Although relevant, evidence

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

unfair prejudice, confusion of the issues, misleading the jury, or by considerations

of undue delay or waste of time. La. Code Evid. art. 403. Ultimately, questions of

relevancy and admissibility of evidence are discretion calls for the district court.

Such determinations regarding relevancy and admissibility should not be overturned

absent a clear abuse of discretion. See State v. Mosby, 595 So. 2d 1135, 1139 ( La.

1992); State v. Bridges, 2014- 0777 ( La. App. 1st Cir. 316/ 15), 2015 WL 997162,

4, writ denied, 2015- 0675 ( La. 2126116), 187 So. 3d 467.

Prior to trial, the State filed a motion in limine seeking to exclude evidence

that there was a prior trial and a prior not guilty verdict, to -wit:

The State looks to [ La. Code Crim. P. art.] 857 regarding the
effects of granting a new trial. The article clearly states that on the
retrial there should be as little prejudice to either party as if it had never
been tried. To bring up the fact that there was a prior trial and one of
the counts for that trial was not even regarding the current victim, J.P.,
is irrelevant and confusing to the jury. Should issues of impeachment
come about during the trial, the State requests that it be handled by
stating " during a previous proceeding under oath" as a way to address
impeachment if necessary.

The trial court granted the motion. The defendant objected to the ruling ofthe
court,
arguing it restricted, or would operate to restrict, the defense on cross-

examination.

At trial, defense counsel asked the defendant if he knew of any reason why

J.P. would make the allegations against him. The defendant replied, "[ w] ell, I

speculate the main thing is, you know, the event with her cousin." Defense counsel

replied, "[
p] ardon me?" Thereafter, the State objected as the defendant answered,

t] he event with her cousin where she too —made a false accusation."

At a sidebar conference, the State objected to speculation. The State argued

the defendant did not know why "[ J. P. had] said the things she said." Additionally,

the State argued the defendant was " trying to get in desperately that there was a

cousin ( M.Z.) that also accused him." Defense counsel stated that he thought the

defendant was going to answer, " No, I don' t know." The court ruled:

This court previously excluded from evidence any reference to
the other matter that was included in the first trial, but that the State
agreed not to introduce in this case. And that was the understanding
going forward. So[,] consistent with that[,] I am going to sustain the
objection.

There was no clear abuse of discretion in the trial court's ruling on the State's

motion in limine. The defendant was only prohibited from referencing the prior trial

and the count concerning M.Z. He was not prevented from presenting a defense to

the allegations of J. P. in the instant trial. The State made no reference in the instant

trial to any prior allegations of M.Z. Further, the defense candidly admitted the only

answer it was looking for from the defendant was that he did not know why J.P.

would make accusations against him. Thus, the probative value, ifany, of testimony
concerning alleged " false allegations" of M.Z. from a former trial in the instant trial

concerning only J. P.' s allegations was substantially outweighed by the danger of

unfair prejudice to the State, confusion of the issues, and misleading the jury. See

State v. Nixon, 2017- 1582 ( La. App. 1st Cir. 4/ 13/ 18), 250 So. 3d 273, 280, writ

denied, 2018- 0770 ( La. 11/ 14/ 18), 256 So. 3d 290 (" Rahe fundamental right to

present a defense does not require the trial court to admit irrelevant evidence or

evidence with such little probative value that it is substantially outweighed by other

legitimate considerations.")

This assignment of error is without merit.

OBJECTION TO TESTIMONY

In assignment of error number two, the defendant contends the trial court erred

in overruling his objection to the victim' s brother, a State witness' s, description of

the defendant as a leader in the church. He argues A.P., J. P.' s brother, was not

familiar with the defendant' s position in the church.

Louisiana Code of Evidence article 701 provides:

If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are:

1) Rationally based on the perception of the witness; and

2) Helpful to a clear understanding of his testimony or the
determination of a fact in issue.

The trial court is vested with much discretion in determining which opinion

testimony shall be received into evidence as lay or expert testimony. State v.

Morgan, 2012- 2060 ( La. App. 1st Cir. 6/ 7/ 13), 119 So. 3d 817, 527. Thus, if the

testimony constitutes a natural inference from what was observed, no prohibition

against it as the opinion of a non -expert exists as long as the lay witness states the

U

observed facts as well. Therefore, the reviewing court must ask two pertinent

questions to determine whether the trial court properly allowed such testimony: ( 1)

was the testimony speculative opinion evidence or simply a recitation of or

inferences from fact based upon the witness' s observations; and ( 2) if erroneously
admitted, was the testimony so prejudicial to the defense as to constitute reversible

error.
State v. Bringier, 2021- 0476 ( La. App. 1 st Cir. 12/ 30/ 21), 340 So. 3d 975,

983, writ denied, 2022- 00157 ( La. 4/ 5/ 22), 335 So.3d 837.

A.P. testified he was the brother of J. P.1 He lived with her, his brother, and

his parents in an apartment on North Sherwood Forest Boulevard. He was not best

friends with the defendant, but " knew him from [ Natanael]" and he played soccer

and video games with the defendant. According to A.P., the defendant had been to

his house " a couple of times." The State asked A.P. if the defendant was " unique in

the church in some way[.]" A.P. replied, "[ the defendant] was -- he was up there.

He was like a —kind of like a deacon, a crew leader." The defense objected, arguing

the question called for speculation. The court overruled the objection, noting that

A.P. had indicated he was familiar with the defendant and his role in the church.

Thereafter, the State asked A.P. if the defendant had been a deacon, and A.P. replied

affirmatively. The State asked A.F. "[ w]hat other types of things did [the defendant]

do that was his role in the church besides being a deacon?" A.P, replied, "[ the

defendant] was over the media like the audio, the production area." A.P. elaborated,

the defendant] would put on slide shows for the pastor. [ The defendant] would

mess with the music during his services, I mean, the cameras, photography." On

cross- examination, A.P. stated he knew the defendant was a deacon in the church

2 In order to protect the identity of J. P., we reference this witness only by his initials. See La.
R.S. 46: 1844( W); State v. Anderson, 2015- 1043 ( La. App. 1st Cir. 2/24/ 16), 2016 WL 759166,
1 n. 3.
11

because he operated the media equipment, and he would get appointed by the pastor
to do special things for him.

There was no abuse of discretion in the overruling of the defense objection.
A.P. socialized with the defendant. AR' s opinions that the defendant was " kind of

like a deacon," or " a crew leader," or " a deacon"
at Natanael were rationally based

on his perception and helpful to a clear understanding of his testimony and the
determination of a fact in issue, i. e., the defendant' s access to a restricted area where

he allegedly assaulted J. P.

This assignment of error is without merit.

AUTHENTICATION OF A DOCUMENT

In assignment of error number three, the defendant contends the trial court

erred in overruling his objection to the introduction into evidence of a document. He

argues another State witness, J. P.' s mother, verified the authenticity of the

document, but her husband signed it.

Louisiana Code of Evidence article 901, in pertinent part, provides:

A. General provision. The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.

B. Illustrations. By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this Article:

1) Testimony of witness with knowledge. Testimony that a matter is
what it is claimed to be.

2) Nonexpert opinion on handwriting. Nonexpert opinion as to the
genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.

Questions of admissibility of evidence are discretion calls for the trial court

and should not be overturned absent a clear abuse of that discretion. For admission,

it suffices if the custodial evidence establishes that it was more probable than not

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that the object is the one connected to the case. A preponderance of the evidence is

sufficient.
Moreover, any lack of positive identification or a defect in the chain of

custody goes to the weight of the evidence rather than its admissibility. Ultimately,

a chain of custody or connexity of the physical evidence is a factual matter to be

determined by thejury. State v. Dillon, 2018- 0027 (La. App. 1 st Cir. 9121118), 2018

WL 4520463, * 7.

F. P. E. testified at trial through an interpreter.' She was the mother of J. P. In

2012, she lived with her husband and children at the North Sherwood Forest

apartment. At that time, J.P. was twelve years old and attended Park Forest Middle

School. The family moved to Central, Louisiana around the last week of July, 2012.

During her testimony, the State presented a Universal Transfer and

Withdrawal Form ( UTWF) to F.P. E to show the timeline when the victim and her

family moved to Central. She stated the form " had to be done so that [ J. P.] could go

to school in Central." F. P. E. indicated her husband could read English, and she

could read some English. F. P. E. testified she was familiar with her husband' s

signature after twenty- nine years of marriage and the UTWF, specifically the front

page (purportedly bearing her husband' s signature), was familiar to her. In response

to questioning by the defense, F. P.E. stated she was present when her husband signed

the forth. F. P.E. further testified she did not understand everything on the form, but

it was read to her and her husband.

The defense objected to the introduction of the form, arguing F. P. E. had not

signed the form. The court overruled the objection, finding F.P.E. had recognized

the document, explained how she was familiar with it, testified she was able to read

a portion of it, testified that it was read and explained to her, and had identified its

purpose.

3 In order to protect the identity of J. P.. we reference this witness only by her initials. See footnote
2, supra
13

There was no clear abuse of discretion in the overruling of the defense
objection.
The challenged document was sufficiently authenticated. The State

established it was more probable than not that the document was connected to the

case.
F.P. E.' s testimony indicated the form offered by the State was the UTWF

prepared to allow J.P. to go to school in Central and that it was signed by F.P. E.' s
husband in her presence. See La. Code Evid. art. 901( B)( 1) & ( 2).

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant' s convictions and

sentences.

AFFIRMED.

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