State of Louisiana v. Jose E. Moreno

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA * NO. 2025-KA-0232

VERSUS *
COURT OF APPEAL
JOSE E. MORENO *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 22-0553, DIVISION “B”
Honorable Michael D. Clement
******
Judge Paula A. Brown
******
(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge
Paula A. Brown)

JENKINS, J., CONCURS IN RESULT

Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
P.O. Box 8583
Mandeville, LA 70470-8583

Jose E. Moreno #795214
David Wade Correctional Center
670 Bell Hill Road – H2B
Homer, LA 71040

COUNSEL FOR DEFENDANT/APPELLANT

Charles Ballay
DISTRICT ATTORNEY

Jason Napoli
ASSISTANT DISTRICT ATTORNEY
333 F. Edward Hebert Blvd. Bldg. 201
Belle Chasse, LA 70037

COUNSEL FOR PLAINTIFF/APPELLEE

AFFIRMED
FEBRUARY 12, 2026

PAB
DLD
SCJ

This is a criminal appeal. Defendant, Jose E. Moreno (“Defendant”),

appeals his conviction and sentence of aggravated rape in violation of La. R.S.

14:42.1 For the reasons more fully outlined below, we affirm Defendant’s

conviction.

FACTS AND PROCEDURAL HISTORY

On February 23, 2022, a grand jury indicted Defendant for the 2004

aggravated rape of the victim (“J.T.”),2 who was three years and four months old at

the time of the offense. Defendant entered a plea of not guilty on April 25, 2022.

Before trial commenced, the State moved, pursuant to La. C.E. art 412.2,3 to

1 Louisiana Revised Statutes 14:42 will be discussed more fully, infra.

2 The initials of the juveniles involved in this matter will be used instead of their names to ensure

their confidentiality. See La. Ch.C. art. 412; Uniform Rules of Louisiana Courts of Appeal, Rule
5-2.
3 Louisiana Code of Evidence article 412.2 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 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 reasonable

1

introduce evidence that Defendant committed a sexual battery against another

juvenile, A.C., in Pike County, Mississippi and a second rape of J.T., which also

occurred in Pike County. The district court granted the State’s motions to

introduce said evidence. This matter came for a three-day jury trial on October 15,

2024. The State presented eight witnesses. The Defendant did not present any

witnesses of his own. The pertinent testimony elicited at trial is summarized

below.

Mary Cosse

Mary Cosse (“Ms. Cosse”)—J.T.’s grandmother and Defendant’s ex-wife—

has two daughters, Amy Tiser (“Mrs. Tiser”) and Joaunna Coon (“Mrs. Coon”).

Mrs. Tiser has two children, one being J.T. Mrs. Coon has three children, one

being A.C. Ms. Cosse began a relationship with Defendant in 2004. She and

Defendant lived together in Port Sulphur, Louisiana, at the Delta Hotel in the same

room. Ms. Cosse said that J.T. would frequently visit her and Defendant when

they lived at the Delta Hotel, and there were many times when J.T. was left alone

with Defendant. Ms. Cosse testified that there was a common room with a piano in

the Delta Hotel where Defendant was alone with J.T., which was close to her

apartment. She explained that after Hurricane Katrina struck, she and Defendant

evacuated to McComb, Mississippi, where they lived together.

Ms. Cosse testified that J.T. and A.C. frequently visited her residence in

McComb and that there were numerous times that Defendant was left alone with

each of the children. She explained that in July 2006, her daughter Mrs. Coon

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

called her and told her that Defendant had molested A.C. Ms. Cosse said that she

immediately confronted Defendant and kicked him out of her house. She later

learned that Defendant also molested J.T. Ms. Cosse stated that before she was

notified, she was unaware of the sexual abuse and never had any concern that her

grandchildren were in danger with Defendant. Ms. Cosse spoke with Defendant

within twenty-four hours after kicking him out, and he told her that he was on his

way to Mexico. Pike County Sheriff’s Office was notified about the abuse, and

Defendant eventually turned himself into the Sheriff’s office. Ms. Cosse identified

Defendant in court as the man she began a relationship with in 2004.

Joaunna Coon

Mrs. Coon—A.C.’s mother and J.T.’s aunt—testified that she was living in

Pike County, Mississippi, in 2005 and 2006, which was about 15 minutes from

McComb. Her mother, Ms. Cosse, lived with Defendant about twenty minutes

from her residence. Mrs. Coon explained that she would drop A.C. off to Ms.

Cosse’s residence a couple times throughout the week while she worked. In July

of 2006, Mrs. Coon was watching both A.C. and J.T., along with other children.

Mrs. Coon testified that while she was watching the children, her other daughter

came into the room and told her that A.C. was on top of J.T. moving up and down.

This behavior alarmed her, so she asked A.C. where she learned it from. A.C. said

that Defendant did that to her.

After Mrs. Coon finished speaking with A.C., she called her husband and

sister, notified the Sheriff’s office and brought A.C. to the hospital. She said that

Investigator Davis Haygood (“Inv. Haygood”) was assigned to her case and came

to the hospital to interview A.C. Defendant was later arrested and charged for

molesting A.C. Defendant pled guilty and served ten years in prison. Mrs. Coon

3

testified that Defendant did not plead guilty nor was he punished for any crime in

regards to J.T. at that time. Mrs. Coon identified Defendant in the courtroom as

the man Ms. Cosse was living with in McComb, Mississippi.

Investigator Davis Haygood

On July 2, 2006, Inv. Haygood was the chief investigator for Pike County

Sheriff’s Office in Mississippi. He said that he received a report from his patrol

officer that stated that Mrs. Coon believed Defendant had sexually assaulted A.C.

At that time, A.C. was four years old. Inv. Haygood attested that he was

concerned because victims of sexual abuse at such a young age are usually unable

to clearly articulate what happened to them. Nonetheless, Inv. Haygood set up an

interview for A.C. at the Children’s Advocacy Center (“CAC”). He explained that

when a child suffered any type of abuse, the Sheriff’s office protocol was to set up

an interview with the CAC because CAC interviewers are trained to deal with

victims that are children. Inv. Haygood testified that during the interview A.C.

was unable to disclose specifics of the offense, which was common among victims

her age. He said that based on the interview alone, A.C. did not disclose enough

information for the Sheriff’s office to make an arrest at that time.

Three days later, Mrs. Tiser, J.T.’s mother, went to the Sheriff’s office and

filed a report stating that Defendant molested J.T. Inv. Haygood said that he

followed the same protocol that he had with A.C. and set up an interview for J.T. at

the CAC. The interview took place on July 6, 2004. Inv. Haygood said that he had

the same concern regarding J.T.’s ability to communicate with the CAC because

J.T. was younger than A.C. He confirmed that J.T. talked about Defendant and

when asked where Defendant put his penis, J.T. pointed to his head and his butt.

Inv. Haygood said that during the interview J.T. showed signs of a child who had

4

been sexually abused. The State introduced the video recording of J.T.’s

interview.

Inv. Haygood testified that after the interviews with A.C. and J.T., he still

did not have enough information to pursue charges against Defendant, so he

continued his investigation. He contacted Defendant on the telephone and made

him aware that there were allegations of sexual abuse made against him and

advised Defendant to come into the Sheriff’s office. Defendant told Inv. Haygood

that he was on his way to Mexico to visit family. Inv. Haygood implored

Defendant to come into the Sheriff’s office to give a statement, and Defendant

complied.

Inv. Haygood testified that Defendant confirmed he touched A.C. When

asked why he touched her, Defendant stated that he had never touched a virgin

before. Defendant further stated that he would often get an erection when A.C.

would sit on his lap. In regards to J.T., Defendant said that J.T. burst in the

bathroom while Defendant was getting out of the shower, and his penis “landed in

J.T.’s mouth.” Inv. Haygood asked Defendant if the previously mentioned

occurrences happened with other children in the household, and Defendant

responded yes. Inv. Haygood testified that charges were not brought against

Defendant for the sexual abuse of J.T. J.T. spent time with Defendant in both

Mississippi and Louisiana, and due to his age and lack of communication they

could not determine where J.T.’s abuse had occurred. In contrast, Inv. Haygood

said that because A.C. had lived in Mississippi her whole life, he did not have an

issue bringing charges against Defendant for the abuse she sustained. The State

introduced Defendant’s audio recorded statement with Inv. Haygood into evidence

and played it for the jury.

5

A.C.

At the time of trial, A.C. was twenty-two years old. A.C. is J.T.’s cousin

and Mrs. Coon’s daughter. A.C. testified that when she was around three or four

years old, her grandmother, Ms. Cosse, got a new boyfriend4. A.C. used to be

dropped off at Ms. Cosse’s residence many times while Defendant was present.

Around four to five years old, A.C. said that she was molested by Defendant. She

said that the molestation occurred at least four to five times that she could recall.

A.C. testified that Defendant started off tongue kissing her and then it

progressed. After Defendant became more comfortable, he rubbed on A.C.’s chest

and vagina. She stated that while in bed, Defendant would pull her underwear to

the side and continue to rub her. On one occasion, Defendant took his penis and

rubbed it up and down A.C.’s vagina. She said that Defendant told her that what

he was doing to her was okay, and it was their secret. A.C. confirmed that

Defendant had, indeed, masturbated and ejaculated in front of her. She said that

the sexual abuse occurred when Ms. Cosse was on the porch smoking or drinking

coffee, or, if the television was really loud and Ms. Cosse was asleep, Defendant

would molest her while all three of them were in the bed. A.C. identified

Defendant in the courtroom as the new husband that was at Ms. Cosse’s residence

when she would visit.

Amy Tiser

Mrs. Tiser is J.T.’s mother and Ms. Cosse’s daughter. She testified that in

2004, J.T. stayed with Ms. Cosse and Defendant at the Delta Hotel a few times

each week. She explained that before Hurricane Katrina struck in 2005, she and

her family evacuated to McComb, Mississippi. After Hurricane Katrina, Mrs.

4 Ms. Cosse and Defendant were married sometime after 2005.

6

Tiser and her household relocated to Vidalia, Louisiana. Mrs. Tiser said that

Defendant and Ms. Cosse remained in McComb, which was about an hour and a

half from where she lived in Vidalia. Despite the distance, Mrs. Tiser and her

children visited Ms. Cosse a few times a week.

In July of 2006, Mrs. Tiser testified that she dropped J.T. off to her sister,

Mrs. Coon. Later that day, Mrs. Coon called her and told her to come back to her

house immediately. Once Mrs. Tiser arrived, Mrs. Coon told her that the older

children witnessed A.C. and J.T. playing inappropriately. This behavior caused

Mrs. Tiser to question J.T. Mrs. Tiser asked J.T. did anyone touch his penis and

J.T. said no, but that Defendant made J.T. touch his penis with his mouth or his

hands before and that white stuff came out. J.T. communicated that this incident

happened by the piano. Mrs. Tiser attested that she knew J.T. was speaking of the

piano that was located at the Delta Hotel, but she cut off questioning and contacted

the Sheriff’s office.

Mrs. Tiser testified that Defendant pled guilty and admitted to sexually

assaulting A.C. Defendant was released from prison in August of 2016. In March

2017, Ms. Cosse was in the hospital and Defendant showed up, which resulted in

his arrest for violation of his parole. Mrs. Tiser told J.T. that Defendant was out of

jail, and J.T. told her that he remembered everything and that he needed to

immediately speak to someone in Plaquemines Parish and in Pike County. Mrs.

Tiser contacted the Sheriff’s Offices in both locations.

Lieutenant Detective Holly Hardin

Lieutenant Detective Holly Hardin (“Det. Hardin”) testified that, at the time

of her testimony, she was the lieutenant over the Criminal Investigation Bureau at

the Plaquemines Parish Sheriff’s Office. She explained that when she was

7

assigned to J.T.’s case in March of 2017, at that time she was a sergeant over the

Special Victims Unit. J.T. was fourteen years old when she set up a forensic

interview for him, and he was three years old when the abuse occurred. During the

interview, J.T. confirmed that when he was three years old, Defendant sexually

abused him. Following the interview, Det. Hardin referred J.T. to Dr. Mehta for a

medical examination. Based on that interview, on March 21, 2017, Det. Hardin

obtained an arrest warrant for Defendant for aggravated rape.

J.T.

At the time of his testimony, J.T. was twenty-two years old. He testified that

he is from Port Sulphur, Louisiana, which is in Plaquemines Parish. He said that

his family evacuated from Port Sulphur to Vidalia, Louisiana, during Hurricane

Katrina. After spending about a year in Vidalia, they moved to McComb,

Mississippi. In 2004, when he lived in Port Sulphur, Ms. Cosse, his grandmother,

lived minutes away from him. J.T. said that during that time Defendant lived with

Ms. Cosse at the Delta Hotel. He identified Defendant in the courtroom as the man

who lived with Ms. Cosse at the time the abuse occurred.

J.T. visited Ms. Cosse a couple times a week, and it was not uncommon for

him to sleep there overnight. When J.T. visited Ms. Cosse, Defendant was present

and there were many times he was left alone with Defendant. J.T. testified that he

was sexually molested and raped by Defendant more than once. J.T. described the

room where he was assaulted as a giant white room with multiple windows. He

then proceeded to describe how he was molested by Defendant:

I was play—playing the piano as the curious child as I was, and
Joseph came over to play on the piano with me. He was teaching me
how to play. And then, as we were playing, my hands were following
along with his, he proceeds to take my hand and his other hand and
unzip his pants and take my hand and put it on his penis. And, as he’s

8

doing that, he's stroking himself; and then he grabs me by the back of
the head and puts my mouth on it and -- and then sits there and rapes
me.

J.T. testified that when Defendant pushed his head down, Defendant’s penis

went inside of his mouth and remained there for roughly thirty seconds. He said

that this was the only time Defendant molested him in Port Sulphur and that there

were other incidents that happened in Mississippi. J.T. stated that Defendant told

him not to tell anyone what happened and that if he did the cops would come get

him and his family. J.T. described the rape that occurred in Mississippi as follows:

I was laying down on my stomach with my hands -- my face on my
hands, and I’m watching Tom and Jerry in front of TV. I’m in the
living room, and he was in the kitchen behind me as he was watching
me. And then the next thing I know [the defendant] jumps on top of
me, pulls my pants down, puts [his] penis in me while [he’s] holding
me down by the back of the neck as I’m screaming; and then I blacked
out.

J.T. explained that after he told his mom about the sexual abuse when he was four,

he never discussed it with her again.

Dr. Neha Mehta

Dr. Neha Mehta (“Dr. Mehta”), who was accepted by the district court as an

expert in the field of child abuse pediatrics, conducted a medical examination of

J.T. on April 24, 2017. At the time of the examination, J.T. was fifteen years old.

Dr. Mehta testified that part of the examination requires that the patient provide a

patient history, which consists of the patient describing any physical or sexual

abuse they may have experienced. Dr. Mehta further testified that J.T. described

both oral and anal sexual abuse. She explained that J.T. made it clear that the

abuse occurred in multiple locations. Based on the information J.T. provided to

her regarding his sexual abuse, she did not expect to see any signs of physical

trauma during his examination due to the passage of time. She said that once the

9

time period has passed to collect trace evidence, which is usually seventy-two

hours, she expected to see a normal examination. Dr. Mehta concluded from her

examination that J.T. had been sexually abused. The State introduced Dr. Mehta’s

medical report that was generated from her visit with J.T. along with a video

recording of her interview with J.T., which it played for the jury.

Trial was concluded on October 17, 2024 and the jury found Defendant

guilty of aggravated rape. At Defendant’s sentencing hearing, he filed a motion for

judgment of acquittal, which the district court denied. Defendant objected to the

denial of his motion. The district court sentenced Defendant to life imprisonment

at hard labor without benefit of probation, parole, or suspension of sentence. This

timely appeal followed.

ERRORS PATENT

An appellate court must review criminal appeal records for the existence of a

patent error. See La. C.Cr.P. art. 920(2).5 A careful examination of the record

reveals no errors patent.

DISCUSSION

In his sole assignment of error, Defendant argues that the State violated

Defendant’s right to due process by prosecuting him based on facts that were

known to J.T.’s family and law enforcement in 2006. Additionally, Defendant

contends that the trial evidence presented consists of testimony from the twenty-

two-year-old victim recalling an incident that occurred when he was three years

5 Louisiana Code of Criminal procedure article 920 provides:

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and
without inspection of the evidence.

10

old. Although Defendant frames his argument as a due process challenge based on

the State’s delay in prosecution, his argument raises the sufficiency of the evidence

supporting his conviction. Because a finding of insufficient evidence would

warrant an acquittal, we will first address whether the evidence, viewed in light

most favorable to the prosecution, was sufficient to support the conviction.

Sufficiency of evidence

“When reviewing the sufficiency of the evidence to support a conviction,

Louisiana appellate courts are controlled by the standard enunciated in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).” State v. Lamizana

21-0409, p. 4 (La. App. 4 Cir. 3/23/22), 366 So.3d 416, 419 (quoting State v.

Brown, 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18). “Under this standard, the

appellate court ‘must determine that the evidence, viewed in the light most

favorable to the prosecution, was sufficient to convince a rational trier of fact that

all of the elements of the crime had been proved beyond a reasonable doubt.’” Id.

(internal citation omitted). “The determination of credibility is a question of fact

within the sound discretion of the trier of fact and will not be disturbed unless

clearly contrary to the evidence.” State v. Barbain, 15-0404 at p. 8 (La. App. 4

Cir. 11/4/15), 179 So.3d 770, 776 (quoting State v. Brown, 12–0853, p. 2 (La. App.

4 Cir. 2/6/13), 109 So.3d 966, 968). “It is not the function of the appellate court to

assess the credibility of witnesses or reweigh the evidence.” Id. at p. 8, 179 So.3d

at 776-77 (quoting State v. Richards, 11–0349, p. 9 (La. App. 4 Cir. 12/1/11), 78

So.3d 864, 869). “In the absence of internal contradiction or an irreconcilable

conflict with the physical evidence, a single witness' testimony, if believed by the

fact finder, is sufficient to support a factual conclusion.” Id. at p. 8, 179 So.3d at

11

777 (citing State v. Rapp, 14–0633, pp. 6–7 (La. App. 4 Cir. 2/18/15), 161 So.3d

103, 108).

With these precepts in mind, we now turn to the merits of this case.

Aggravated rape

La. R.S. 14:42 provides in pertinent part that:

A. First degree rape is a rape committed upon a person sixty-five
years of age or older or where the anal, oral, or vaginal sexual
intercourse is deemed to be without lawful consent of the victim
because it is committed under any one or more of the following
circumstances:
***
(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim's age shall not be a defense.

“In cases involving sexual offenses, the testimony of the victim alone may be

sufficient to establish the elements of a sexual offense, even where the State does

not introduce medical, scientific, or physical evidence to prove the commission of

the offense.” Barbain, 15-0404, p. 10 (La. App. 4 Cir. 11/4/15), 179 So.3d 770,

778 (citations omitted).

As previously mentioned, Defendant argues that J.T.’s testimony was

insufficient because it could not be effectively tested due to the approximately

nineteen-year delay between the offense and his testimony at trial. Conversely, the

State urges that the evidence in the instant case, specifically the testimony of Dr.

Mehta, demonstrates a proper justification for the delay in prosecution. We agree.

At trial, the district court heard Dr. Mehta’s testimony, which explained that

it is common for victims of child sexual abuse to delay disclosure of their abuse.

The following colloquy occurred between the State and Dr. Mehta:

Q: And Doctor is it common for victims of child abuse to delay their
disclosure that they have been abused?

12

A: Yes. That is the norm. Most children do not disclose in a timely
fashion that they’ve been sexually abused.

Q: And can you explain for the members of the jury why is that? Why
is it that children don’t immediately report instances of child sexual
abuse?

A: There’s a number of reasons that we feel that children don’t come
forward with information. Sometimes when they’re very young when
something happens, they don’t necessarily understand what it means.
They might think that it’s some kind of a game, or they – they don’t
understand that it’s sexual in nature. They just think it’s a weird bad
thing that happened. As they get older, sometimes there are external
reasons. That means someone from the outside, someone saying “You
know, if you say something, I’ll hurt you” or “I’ll hurt your dog” or
“you’ll be the one who gets in trouble.” Most commonly the reasons
children don’t disclose sexual abuse is it – it’s really something
internal. It’s what they are telling themselves, which is often things
related to shame, embarrassment about what’s happened, feeling like
“It’s my fault that this happened to me. Something’s wrong with me
that this is happening to me,” disgust for being able to -- to put into
words the types of things that happened, sometimes not even having a
good vocabulary to really explain what it is that happened, not really
understanding it and being too embarrassed to say that.

In State v. Hidalgo, the defendant was charged and convicted of aggravated

rape. 23-375, p. 18 (La. App. 5 Cir. 5/8/24), 389 So.3d 231, 244. The defendant

argued that the sexual abuse was not reported until nearly ten years later and that

corroboration is needed in such a case. Id. The appellate court concluded that “an

explanation of why delayed reporting occurs was provided in the matter . . . Nurse

Troy explained that, from her experience, most children do not want to talk about

the sexual abuse they have experienced . . . [and] the jury made a credibility

determination.” Id. Analogous to Hidalgo, here, Dr. Mehta provided an

explanation of why delayed reporting occurs and the jury made a credibility

determination.

Moreover, in support of J.T.’s testimony—who was twenty-two-years-old at

the time of trial—the State introduced a video recording of J.T. that was made

13

when he was fifteen years old, wherein he recounted the same events that are the

subject of this prosecution. The district court also heard the testimony of A.C.,

whom Defendant had previously been convicted of abusing. In support of A.C.’s

testimony, the State introduced an audio-recorded statement in which Defendant

admitted to sexually abusing A.C. “As the trier of fact, the jury was free to accept

or reject, in whole or in part, the testimony of any witness.” State v. Freeman, 17-

0417, p. 7 (La. App. 4 Cir. 12/29/17), 2017 WL 6629156 Unpub., at *4 (quoting

State v. Robertson, 95-0645, p. 5, (La. App. 1 Cir. 4/4/96), 672 So.2d 391, 395.

Based on a review of the totality of the evidence presented by the State, we find the

evidence sufficient to prove beyond a reasonable doubt that Defendant committed

aggravated rape.

Assignment of error No.1 – Right to due process

Defendant contends that the State violated his due process rights by delaying

prosecution for approximately nineteen years after the offense occurred.

Specifically, Defendant argues that the facts as outlined in this prosecution were

known to J.T. and his family in 2006, and that this delay in prosecution

unnecessarily and unfairly hindered his ability to prepare a defense. Defendant

cites a dissent in a writ opinion, State v. Smith, to support his proposition that the

lengthy delay of time between the offense and prosecution violated his right to due

process. 01-1027, pp. 3-4 (La. App. 1 Cir. 2/15/02), 809 So.2d 556, 559

(Downing, J., concurring in part and dissenting in part).

In Smith, the defendant was indicted for the aggravated rape of a juvenile

that took place twenty-one years prior to the indictment. The defendant filed a

motion to quash the indictment in which he argued that he was denied due process

of law based on the twenty-one-year delay. He further argued that defense counsel

14

would be unable to prepare a defense because of the lengthy delay. The district

court denied the defendant’s motion to quash the indictment, and he sought

supervisory review of the district court’s judgment in the court of appeal. The

Smith Court majority held that “[defendant] made no attempt to introduce any

evidence at the hearing or offer any factual allegations about how he has been

actually prejudiced by the delay.” Smith, 01-1027, p. 6, 809 So.2d at 560

(Downing, J., concurring in part and dissenting in part). The Court further stated

that “[defendant] speculate[d] . . . that his attorney would not be able to test the

victim’s memory as to the surrounding events, such as clothing worn, time of day,

exact location . . . and other factors [defendant] thinks will impact on the victim’s

credibility.” Id. at p. 6, 809 So.2d at 561. The majority found no merit to the

defendant’s claim. To the contrary, the dissenting judge reasoned that in the

absence of corroborating evidence, “a passage of time of such length that an

accused is prevented from preparing a defense should be sufficient grounds to hold

that due process is violated.” Id. at p. 1, 809 So.2d at 566. Although Defendant

relies on the dissenting opinion in Smith, the majority rejected the notion that a

lengthy pre-indictment delay alone establishes a due-process violation.

Additionally, in State v. Hughes, the defendant was charged for the

molestation of a juvenile. 94-1364, p. 1 (La. App. 4 Cir. 12/28/94), 648 So.2d 490,

491. The State filed a bill of information, which charged the defendant

approximately seven years after the offense occurred. The defendant filed a

motion to quash the bill of information stating that he was denied his right to due

process because of the delay to prosecute. This Court held that the defendant’s

argument had no merit. Id. at p. 6, 648 So.2d at 493. The Hughes Court explained

that “to prove a due process violation that requires dismissal of an indictment

15

because of pre-indictment delay, the defendant must show that the State

deliberately delayed to gain a tactical advantage and the delay caused actual and

substantial prejudice to the defendant. Id. This Court concluded that “defendant

does not allege specific, actual prejudice, rather merely alleges general prejudice in

preparation of his defense.” Id.

Finally, in State v. Brown the defendant was charged and convicted for first

degree murder. 16-0998 (La. 1/28/22), 347 So.3d 745. On direct appeal, the

defendant argued that the district court erred in denying his motion to quash the

indictment because the delay between the offense and the indictment violated his

right to due process. The defendant alleged that the delay hampered defense

counsel’s ability to conduct a meaningful investigation or litigation. The Supreme

Court explained that La. C.Cr.P. art. 5716 does not place time limitations on the

prosecution for a crime punishable by death or life imprisonment. Brown, 16-

0998, p. 63, 347 So.3d at 797. That Court further stated “that pre-indictment

delays may violate due process, and that ‘[t]he proper approach in determining

whether an accused has been denied due process of law through a pre[-]indictment

or pre-arrest delay is to measure the government’s justifications for the delay

against the degree of prejudice suffered by the accused.’” Id. at pp. 63-64, 347

So.3d at 797 (quoting State v. Schrader, 518 So.2d 1024, 1028 (La. 1988)).

The Brown Court held that the defendant failed to show any specific

prejudice and “found the [S]tate’s reasons for delay legitimate in light of several

former prosecutors describing the circumstances causing the delay (such as the
6 Louisiana Code of Criminal Procedure art. 571 provides:

There is no time limitation upon the institution of prosecution for any crime for which the
punishment may be death or life imprisonment or for the crime of forcible or second degree rape
(R.S. 14:42.1) or molestation of a juvenile or a person with a physical or mental disability (R.S.
14:81.2).

16

complex, sprawling nature of the case involving voluminous DNA evidence and

the fact that all defendants were serving life sentences).” Brown, 16-0998, p. 64,

347 So.3d at 797. The Supreme Court concluded that “whatever prejudice may

have been suffered appears to be outweighed by the state’s justifications . . . [t]he

[district] court did not err in denying the motion to quash the indictment.” Id. at p.

65, 347 So.3d at 797.

In the instant case, unlike the defendants in Smith, Hughes and Brown,

Defendant did not file a motion to quash the indictment. Moreover, Defendant

failed to introduce any evidence or offer any factual allegations about how he may

have suffered actual prejudice at the district court. Rather, Defendant alleges

general prejudice in preparation of his defense, which is merely speculative and

does not demonstrate actual prejudice. General allegations of prejudice in the

preparation of the defense and allegations of “potential” prejudice are not sufficient

to support a due process violation based on a lengthy pre-indictment delay alone.

Smith, 01-1027, p. 6, 809 So.2d at 561. Applying these principles, this Court finds

that regardless of the State’s justification for the delay in prosecution, Defendant

has failed to meet his burden of establishing prejudice from the delay. This

assignment of error is unpersuasive.

CONCLUSION

For the foregoing reasons, we affirm Defendant’s conviction and sentence

for aggravated rape.

AFFIRMED

17