State of Louisiana Versus E.M. III

STATE OF LOUISIANA NO. 22-KA-293

VERSUS FIFTH CIRCUIT

E.M. III COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 18,443, DIVISION "E"
HONORABLE TIMOTHY S. MARCEL, JUDGE PRESIDING

February 27, 2023

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Hans J. Liljeberg

CONVICTION AND SENTENCE AFFIRMED;
REMANDED WITH INSTRUCTION
FHW
SMC
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Joel T. Chaisson, II
Louis G. Authement

COUNSEL FOR DEFENDANT/APPELLANT,
E.M. III
Kevin V. Boshea

WICKER, J.

The defendant/appellant E.M. III1 seeks appellate review of his sentence and

conviction for sexual battery of a victim under the age of fifteen and at least three

years younger than the offender, in violation of La. R.S. 14:43.1. For the following

reasons, we affirm the defendant’s conviction and sentence and remand the matter

with instructions as it pertains to the defendant’s sentence.

FACTUAL BACKGROUND

In addition to the testimony of the victim, several immediate and extended

family members testified at trial to the events leading to the State charging the

defendant with sexual battery of A.C.

A.C., who was 17 at the time of trial, testified that she was born on May 27,

2004, and lived in Texas. She testified that the defendant is her stepfather’s brother,

and that she calls him “E. Bo.” A.C. testified that the defendant would occasionally

visit her family in Texas and would sometimes babysit her and her brother, J.M.,

when her parents would travel.

The weekend of July 4, 2018, 14 year-old A.C., her stepfather, and her brother

were visiting family in Louisiana, while her mother remained in Texas for work. On

July 7, 2018, A.C. and her family were to return to Texas. However, rather than

drive through the night, A.C. testified that they decided to stay the night at her

maternal great-uncle’s house in Luling, Louisiana, where the defendant was living

at the time.

1
Pursuant to La. R.S. 46:1844(W)(3) and in the interest of protecting minor victims and victims of sexual
offenses, this Court's published work will use only initials to identify the victim and any defendant or
witness whose name can lead to the victim's identity (i.e., parent, sibling, or relative with the same last
name as the victim). State v. E.J.M., III, 12-774 (La. App. 5 Cir. 5/23/13), 119 So. 3d 648, 652 n.1. C.f.,
State v. R.W.B., 12-453 (La.12/4/12), 105 So.3d 54.
22-KA-293 1

Around 9:00 p.m. or 10:00 p.m., A.C.’s stepfather took A.C. and her brother

to McDonald’s for dinner. When they returned home, A.C. said her stepfather went

to sleep on the couch, while she and her brother shared a bed in the room belonging

to the defendant. A.C. recalled that she was watching a movie in bed, when at some

point, the defendant entered the room to iron his clothes. A.C. also recalled her

stepfather entering the room to take her brother, who was five years old at the time,

to use the bathroom.

A.C.’s stepfather similarly testified that he had fallen asleep on the couch but

woke up and went into the bedroom to take his son to the bathroom. A.C.’s

stepfather testified that when he entered the room, his brother was ironing his

clothes, his son was sleeping, and A.C. was awake in bed with her brother. A.C.’s

stepfather recalled that the cover was over the children and that “A.C. had her legs

and stuff all tangled up in J.M.” After taking his son to the bathroom, A.C.’s

stepfather returned to the couch and fell asleep.

Eventually, A.C. fell asleep. She testified that while she was sleeping, she

suddenly felt a chill on her legs like the bed cover was removed. A.C. stated that

she felt a hand rubbing her inner thigh. A.C. testified she then felt her shorts move,

and a finger being inserted into her vagina. A.C. testified that it was at that moment

she woke up. At trial, A.C. indicated that her brother was still sleeping at the time

and that she jumped up in reaction to the defendant inserting his finger into her

vagina. She stated that the defendant pushed her back down and told A.C., “shh.”

She testified that she told the defendant to stop, and she tried to push him back. A.C.

stated that his finger was still inside her vagina, and he pushed his finger in harder.

She described this as the “second time” he digitally penetrated her. She again told

22-KA-293 2

the defendant to stop. She recalled that the defendant then noticed the bedroom door

was open, so he went to close it. When he approached the bed, he tried to force her

legs open. She told the defendant to stop and told him “this is called rape.” A.C.

told the defendant to leave her alone before she called the police. A.C. testified that

the defendant told her that if she called the police, he would say that she was touching

her brother inappropriately. According to A.C., the defendant then tried to force her

legs open again as she told him to stop, and that it was rape. A.C. testified that the

defendant then inserted his finger again a third time. When A.C. said “stop” louder,

the defendant “backed off.” At that point, the defendant sat on the corner of the bed

and she told him she had to go to the bathroom. When she exited the bedroom, A.C.

saw her stepfather sleeping on the couch, but she did not want to tell him what

happened with the defendant. A.C. stated that she took her stepfather’s cell phone,

opened the door of the house, and exited the house.

A.C. then called her mother crying and told her that the defendant touched

her. A.C. said her mom tried to calm her down and she then told her mother what

happened. A.C.’s mother testified that around 1:20 or 1:30 a.m., she was awakened

by a phone call from A.C. She testified that her daughter was crying hysterically

and told her “Uncle Bo” was touching her inappropriately. A.C.’s mother asked

A.C. where her stepfather was. A.C. indicated that her stepfather was sleeping and

that she was outside on the porch behind the truck. A.C.’s mother continued to try

to calm her daughter down and told A.C. to “go behind Ms. Kathy’s house.” She

stated that her daughter was steadily crying and that she instructed her daughter to

see if the shed was open. The victim’s mother then told A.C. to go inside, put the

phone on vibrate, and wait for her to call. A.C. explained she hid in the shed and

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that her mother indicated she would call her sister, A.C.’s aunt, who lived nearby.

A.C.’s mother testified that after hanging up with her daughter, she

immediately called her sister and explained to her that she needed to go to their

uncle’s house because A.C. had said that the defendant had touched her

inappropriately. She then called her daughter back and informed her that A.C.’s aunt

was on the way. A.C.’s mother testified that her sister called her when she arrived,

which according to A.C. was three minutes later. A.C.’s mother testified that she

then told A.C. to leave the shed, and she then resumed the call with her sister and

heard “all kind of commotion.”

At trial, A.C.’s aunt testified that upon arriving at her uncle’s house, she

observed the side door to the residence was open and saw A.C. come out of the

laundry area. She described A.C. as scared and nervous. She stated that when she

approached A.C., she saw the defendant come to the door. A.C.’s aunt asked him

what he was doing and what he was looking for. The defendant told her that he was

looking for A.C. because she said she was going to the bathroom, and it took a while.

During this exchange, A.C.’s aunt instructed A.C. to wait inside the truck with her

aunt’s then-boyfriend. A.C.’s aunt accused the defendant of lying and asked why he

was looking for A.C. The defendant again expressed that A.C. told him she was

going to the bathroom, but he noticed the open door. A.C.’s aunt explained that at

the time she confronted the defendant, her brother-in-law, A.C.’s stepfather, was

sleeping on the couch, but that he awoke to the sounds of her and the defendant

arguing.

At some point during this interaction, A.C.’s mother called her uncle, who had

left A.C., her brother, stepfather, and the defendant at his house that evening to attend

22-KA-293 4

a biker’s function in Kenner, as well as her mother, A.C.’s grandmother. A.C.’s

mother explained that they needed to go to the house immediately because A.C. had

called her crying and told her that the defendant touched her inappropriately. A.C.’s

mother then called her sister back.

At trial, A.C.’s stepfather testified that around 2:00 a.m. he awoke to his sister-

in-law and his brother “cussing and fussing.” He recalled his brother coming from

the back of the house and assumed he was coming from the bedroom. A.C.’s aunt

confronted the victim’s stepfather asking him “how did he let this happen.” Having

just woken up, A.C.’s stepfather was confused and shocked. At some point during

the argument, A.C.’s aunt returned to the truck to speak with A.C., who told her she

was okay but was scared because the defendant had touched her. A.C. told her aunt

that she “didn’t want anyone to be mad at her.” A.C.’s aunt testified that A.C. then

recounted what happened in the bedroom with the defendant and used hand gestures

to describe how the defendant had touched her.

A.C.’s stepfather then tried to approach the truck to speak with his

stepdaughter, but she would not talk to him. A.C.’s aunt testified that she was on

the phone with her sister and relayed to her what A.C. told her. A.C.’s stepfather

testified that he did not speak to his brother about what was going on, but that at

some point he heard “about A.C. touching [her brother.]” No one stated where A.C.

allegedly touched her brother. He explained that he did not understand the context

or what it meant at the time. Still, he testified that he was not concerned that she

was accused of molesting her brother. As A.C.’s stepfather explained, A.C. and her

brother had a close relationship and that she would get close to him; that she “liked

to pick things off of her brother.”

22-KA-293 5

The victim’s grandmother and great-uncle arrived at the house, both of whom

testified at trial that upon their arrival they saw A.C. was visibly upset, crying and

shaking. A.C.’s grandmother testified that she had never seen A.C. “the way she

cried that night.” She also testified that her granddaughter told her that the defendant

touched her legs, and that he tried to “shush[] her to be quiet.” She stated that her

granddaughter told her she was able to leave the room after she told the defendant

she needed to use the bathroom.

While A.C. remained in the truck with her aunt’s boyfriend, the others,

including A.C.’s mother via telephone, reconvened inside the house for, as A.C.’s

aunt described, a “roundtable conversation” in the kitchen. A.C.’s grandmother

testified that the defendant stood with his back to the kitchen sink and washed his

hands while they talked. She testified that he paced between the sink and the door,

and then went down the hall to the bathroom. A.C.’s grandmother recalled that while

defendant was in the bathroom she could hear water flowing.2 She testified that she

observed the defendant wash his hands twice.

During the “roundtable conversation,” the defendant gave his side of the story.

A.C.’s aunt testified that the defendant said that A.C. was touching her brother and

that he told her to stop. A.C.’s aunt further stated that the defendant denied touching

A.C. but that the defendant “was adamant on A.C. was touching [her brother].”

A.C.’s aunt testified that this was different from what he initially said to her and that

his story changed. A.C.’s aunt relayed that while they talked, the defendant “just

kept washing his hands.” She clarified that she witnessed the defendant wash his

2
A.C.’s great-uncle testified that he observed the defendant washing his hands in the bathroom without
closing the door.
22-KA-293 6

hands twice at the kitchen sink.

A.C.’s mother testified that the conversation lasted for quite some time. She

explained to the jury that she “didn’t want to jump the gun” and wanted to “take

[her]self out of the equation.” For that reason, she testified that she eventually called

her daughter to ask her what she wanted to do. Her daughter told her that she thought

the defendant should go to jail. When A.C.’s mother asked her if there was an

alternative solution, A.C. suggested a restraining order. At trial, A.C.’s mother

testified that she was surprised by her daughter’s suggestion and did not think that

the suggestion of a restraining order was something her daughter would have said.

Because she did not recognize her daughter’s response as something her child would

say, she explained to her what would happen if they called the police. A.C.’s mother

stated that she “strategically” explained the consequences of calling the police,

“painting a picture” for her daughter. A.C.’s mother recalled thinking, “okay, let me

tell her all these things because maybe, you know, she’ll recant. …”

A.C.’s mother testified that her daughter is “[s]illy, more childlike, immature

for her chronological age, happy, giddy.” She stated that her daughter lies “like

anybody else” but that she can give A.C. a look and then A.C. will change her story.

She agreed that at times, her daughter will lie until she is confronted with evidence;

however, she stated that her daughter does not have a reputation for untruthfulness.

Further, she testified that her daughter did not recant the incident involving the

defendant.

When A.C.’s mother explained to A.C. what would happen if the police were

called, A.C.’s mother testified that she wanted her daughter to recognize the

seriousness of the allegations. She stated that her daughter told her she understood.

22-KA-293 7

A.C.’s mother further testified that her daughter had every opportunity to change her

story but she did not. At that point, A.C.’s mother spoke with her husband, and they

both agreed that something had happened and that they needed to do what was best

for their daughter. Although A.C.’s mother urged her husband to make the call to

police, he refused because he could not bring himself to report his brother’s alleged

misconduct. Therefore, A.C.’s aunt placed the call to 911 with A.C.’s mother on

speaker using a separate cell phone.

Deputy Billy Cardwell arrived at the house at 4:40 a.m., and he first spoke

with the victim’s aunt, who reported the abuse. He then interviewed the victim, who

was wearing shorts and a t-shirt and appeared worried and nervous. He testified that

the victim “advised that her uncle was rubbing on her leg and forced himself onto

her and stuck his finger inside her.” Based on this information, the deputy located

the defendant, Mirandized him, and proceeded to interview him. The defendant

began to ask the deputy what happened but the deputy instead asked the defendant

what he remembered. The defendant told Deputy Cardwell that A.C. was touching

her brother inappropriately and he told her to stop, and that in reply A.C. told the

defendant that she would “claim rape and call the cops.” The defendant told the

deputy that he asked A.C. why she would say that and that A.C. later went to the

bathroom.

Detective Holly Laurent, a juvenile investigator for the St. Charles Parish

Sheriff’s Office, testified that she interviewed the victim at the Sheriff’s Office

headquarters. Detective Laurent testified that A.C. recounted the incident of abuse,

which was consistent with the description of events that A.C. offered others. The

detective described the victim as appearing “a little developmentally delayed and

22-KA-293 8

immature.” Detective Laurent confirmed that A.C. underwent a forensic medical

examination at Children’s Hospital the day after the incident and provided a

consistent description of the abuse to medical personnel. Detective Laurent further

testified that the victim reported to the examiner that she was experiencing pain

inside of her vagina and that after the examination, the doctors noticed irritation at

the opening of A.C.’s vagina.

After interviewing A.C., her brother, and her stepfather, Detective Laurent

interviewed the defendant after he was advised of his Miranda rights. The defendant

also consented to giving his DNA and indicated his willingness to take a polygraph

test. However, because the interview was conducted on a Sunday, no polygraph

examiner was available. Detective Laurent made attempts to schedule the test the

next day, but the defendant did not answer or return the detective’s calls. The

detective later learned that the defendant had “packed up his belongings and went to

an unknown location.” At that point, the detective submitted a request for an arrest

warrant.

Additionally, it was not until after the aforementioned incident of abuse

allegedly took place and A.C. was meeting with the State’s prosecutors that A.C.

disclosed a prior incident of abuse involving the defendant that took place in Texas.

During her direct examination, A.C. recounted what happened in the prior incident

involving the defendant when she was in the seventh grade. A.C. testified that at the

time, her parents were away traveling, and the defendant was babysitting her and her

brother. She said she, her brother, and the defendant were at their house. The

defendant asked her if she had basketball practice. When she told him that she did,

the defendant told her that if she wanted him to bring her to practice, she would have

22-KA-293 9

to let him touch her. A.C. explained that at the time, she did not understand what he

was referring to. She then went to the bathroom, and the defendant stopped her from

closing the door. He unbuttoned his pants and pulled them down. He told her to

pull down her shorts, but she told him, “no.” A.C. stated that he pulled down her

shorts and leaned her over the sink. She testified that she saw his penis and that he

“tried to insert it into [her] butt, but it wouldn’t, like, fit because he tried a couple of

times.” She recalled telling him to stop and to leave her alone. He told her to be

quiet and to hold still. A.C. indicated that he eventually pulled up his pants and

walked out as he told her to clean herself up. She recalled sitting on the toilet in

shock afterwards. A.C. testified that later, when he dropped her off for basketball

practice, he threatened her.

A.C. testified that she did not disclose the prior incident to anyone until a

month before trial. A.C. explained that she first disclosed the prior incident to the

prosecutors because she was not comfortable with anyone else she spoke to and that

she was still scared.3 She also stated she did not tell her parents about it until after

the prosecutor called her mom.4

Ashley Malone, a forensic DNA analysist at the Louisiana Crime Lab, was

accepted as an expert in the field of forensic DNA analysis. She explained that

depending on the source of the DNA, the strength of a DNA profile may vary. For

3
Detective Laurent acknowledged that she was aware that A.C. subsequently disclosed an incident in Texas
to the prosecutors that occurred prior to this offense. Detective Laurent stated the prior incident was not
disclosed to her or anyone in the sheriff’s office but that this did not surprise her. Captain Renee Kinler
acknowledged that in the forensic interview, A.C. denied that anything prior had occurred with the
defendant. Captain Kinler testified that it would not surprise her if A.C. made an additional disclosure
about defendant.
4
The victim’s mother acknowledged that in January 2020, A.C. disclosed to the prosecutor a prior incident.
A.C.’s mother stated she spoke to A.C. about that prior incident, but that her daughter was not forthcoming
with information about it. Additionally, A.C.’s stepfather acknowledged that he heard through his family
that A.C. accused the defendant of another incident. He later stated he heard a recording that his wife and
A.C. made and that he listened to the recording on his wife’s phone.
22-KA-293 10

instance, she testified that the concentration levels of DNA found in blood cells are

going to be higher than those found in skin cells. Ms. Malone further stated that

contact DNA is less likely to provide a full DNA profile. Ms. Malone testified that

for that reason, one would expect to have difficulty obtaining a good profile from

the genital area or nearby areas in a digital penetration case.

Ms. Malone testified that she was the technical reviewer in this case involving

A.C. and the defendant. Two reports were generated in relation to the case, and

those reports were admitted into evidence. Ms. Malone testified that swabs from

A.C.’s neck, ear, inner thigh, and left and right hand fingernails all showed two

contributors. A.C. could not be excluded as the major contributor, and a valid DNA

profile of the minor contributor could not be obtained. Ms. Malone stated the swab

from the inner thigh underwent additional testing, after which the testing results

suggested the possible presence of male DNA. She indicated, however, that “[they]

were not able to obtain profiles to be able to make comparisons to. So because there

was nothing to compare to, I could not make any exclusions. I…also [could not]

make any inclusions….” Ms. Malone testified that she was not surprised by the

results in this case given that the type of sample collected was contact DNA (i.e. skin

cells) as opposed to semen or sperm, where it is expected to generate a full DNA

profile. She also indicated that “time definitely [is] a factor” in the ability to obtain

a full DNA profile. On cross-examination, Ms. Malone stated that she was not able

to make any comparisons to say that the defendant’s DNA was present.

Dr. Anne Troy, a forensic pediatric nurse practitioner with Children’s

Hospital, testified as an expert in child abuse pediatrics. She testified that she did

not treat A.C., but she reviewed A.C.’s medical records. She relayed that A.C.

22-KA-293 11

indicated she was digitally penetrated vaginally and that she hurt inside her vagina.

Dr. Troy testified that the emergency room physician found redness to the opening

of the victim’s vagina. The expert doctor explained that the finding was “nonspecific

but consistent” with the allegation of digital penetration and the victim’s complaint

of vaginal pain.

Dr. Troy generally discussed false allegations of sexual child abuse. She

explained that research indicated that children deny sexual abuse even when there

are diagnostic findings. Dr. Troy stated that research shows that when a child

promises to tell the truth, there is a very low percentage that the child will give a

false statement about sexual abuse. She testified that in a non-supportive

environment, it is very normal for a child to say he or she “made it all up” at some

point.

The defendant’s sole witness at trial was his aunt. She stated that the last time

she saw the defendant was at her sister’s funeral in September 2019. The defendant’s

aunt testified that the defendant, the victim, and the victim’s parents attended the

funeral and repass. She stated that at the repass the defendant was serving gumbo

and A.C. spoke to the defendant, asking him to make her a bowl of gumbo.

PROCEDURAL HISTORY

On September 17, 2018, the State filed a bill of information charging the

defendant with sexual battery of the victim A.C., who was under the age of fifteen

and at least three years younger than the offender, in violation of La. R.S. 14:43.1.

In February 2020, defendant filed a “Motion in Limine to Exclude Other Crimes,

Opposition to State’s Motion to Introduce Evidence of Similar Acts Pursuant to

Article 412.2 and Memorandum in Support.” The State then filed a “Notice of Intent

22-KA-293 12

to Introduce Evidence of Similar Crimes, Wrongs, And/Or Acts in Sex Offense

Cases Pursuant to Louisiana Code of Evidence Article 412.2 With Motion To File

Notice And Exhibits Under Seal.” In August 2020, the trial judge excluded the

Article 412.2 evidence, and the State objected to the ruling and sought supervisory

review. In October 2020, this Court granted the State’s writ application, reversed

the trial court’s ruling granting defendant’s motion in limine to exclude other crimes

evidence, and entered a ruling denying the motion in limine.5

A six-person jury trial was held in June 2021. A jury charge conference was

also held wherein the responsive verdicts were discussed. On June 10, 2021, the

jury unanimously found the defendant guilty as charged. Thereafter, the defendant

filed motions for new trial and post-verdict judgment of acquittal. A hearing on the

defendant’s motions were held in July 2021. In August 2021, the trial court denied

the motions.

Thereafter in December 2021, the trial court sentenced the defendant to five

years imprisonment without hard labor and without the benefit of parole, probation,

or suspension of sentence. The defendant was also ordered to register as a sex

offender for twenty-five years. The defendant now files the instant appeal.

DISCUSSION

On appellate review, the defendant raises the following assignments of error:

(1) the verdict is contrary to the law and evidence; (2) the trial court erred in denying

the motion for new trial; (3) the trial court erred in denying the motion for post-

verdict judgment of acquittal; (4) the evidence of the alleged prior sexual activity

admitted pursuant to La. C.E. 412.2 was admitted without the trial judge conducting

5
See State v. E.M., III, 20-K-300 (La. App. 5 Cir. 10/21/20) (unpublished writ disposition).
22-KA-293 13

the proper balancing test; and (5) the defendant was denied a fair trial by the

omission of attempted sexual battery and misdemeanor sexual battery as a

responsive verdict.

At the outset we address the manner in which the defendant presents his

arguments in brief to this Court. Rather than individually brief assignments of error

(1)-(3), the defendant’s brief addresses these assigned errors together, as the merits

of each pertains to the sufficiency of the evidence. We address the sufficiency of the

evidence before turning to the defendant’s remaining assignments of errors.

Sufficiency of the Evidence

The constitutional standard for sufficiency of the evidence is whether, upon

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could find that the State proved all of the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); State v. Chinchilla, 20-60 (La. App. 5 Cir. 12/23/20), 307 So.3d

1189, writ denied, 21-274 (La. 4/27/21), 314 So.3d 838, cert. denied, -- U.S. --, 142

S.Ct. 296, 211 L.Ed.2d 138 (2021). This directive that the evidence be viewed in

the light most favorable to the prosecution requires the reviewing court to defer to

the actual trier of fact’s rational credibility calls, evidence weighing, and inference

drawing. State v. Clifton, 17-538 (La. App. 5 Cir. 5/23/18), 248 So.3d 691, 702. This

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

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

State v. McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1102. “Further,

a reviewing court errs by substituting its appreciation of the evidence and the

credibility of witnesses for that of the fact-finder and overturning a verdict on the

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basis of an exculpatory hypothesis of innocence presented to, and rationally rejected

by, the jury.” State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d 794, 804

(citing State v. Alfaro, 13-39 (La. App. 5 Cir. 10/30/13), 128 So.3d 515, 531). As a

result, under the Jackson standard, a review of the record for sufficiency of the

evidence does not require the reviewing court to determine whether the evidence at

trial established guilt beyond a reasonable doubt, but whether, upon review of the

whole record, any rational trier of fact would have found guilt beyond a reasonable

doubt. Id.

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

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

or re-weigh the evidence. Lane, 310 So.3d at 804. The credibility of a witness,

including the victim, is within the sound discretion of the trier of fact, who may

accept or reject, in whole or in part, the testimony of any witness. State v. Gonzalez,

15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, 1233. In the absence of internal

contradiction or irreconcilable conflicts with physical evidence, the testimony of one

witness, if believed by the trier of fact, is sufficient to support a conviction. Clifton,

248 So.3d at 703. In sex offense cases, the testimony of the victim alone can be

sufficient to establish the elements of a sexual offense, even when the State does not

introduce medical, scientific, or physical evidence to prove the commission of the

offense. Id.

Defendant in the instant case was convicted of sexual battery wherein the

victim was under the age of fifteen and at least three years younger than the offender,

in violation of La. R.S. 14:43.1.

La. R.S. 14:43.1 states in part:

22-KA-293 15

A. 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, directly or through clothing, or the touching of the anus
or genitals of the offender by the victim using any instrumentality or
any part of the body of the victim, directly or through clothing, when
any of the following occur:
(1) The offender acts without the consent of the victim.

(2) The victim has not yet attained fifteen years of age and is at least three
years younger than the offender.

The defendant was charged with acting “without the consent of the victim, or

where the other person has not yet attained fifteen years of age and is at least three

years younger than the offender.” The defendant does not contest on appeal that the

State failed to prove any specified essential statutory elements of the crime for which

he was convicted. Rather, the defendant specifically challenges his conviction on

the basis of the victim’s credibility.

A.C. testified that the defendant touched her legs while she was sleeping.

She stated that she woke up to the defendant inserting his finger into her vagina and

that she repeatedly told him, “no.” She indicated that she repeatedly tried to push

him away. A.C. testified that his finger was still in her vagina and that he pushed

his finger in harder a second time. A.C. recalled again telling him to stop. She said

he saw the door to the bedroom open and that he closed it. When he approached

the bed, he tried to force her legs open. She again told him to stop.

A.C. stated she told the defendant that, “[t]his is called rape” and to leave her

alone before she called the police. A.C. testified that he told her that if she called

the police, he would say she was touching her brother inappropriately. She indicated

he tried to force her legs open a second time. She again told him to stop and that it

was rape. A.C. stated the defendant then inserted his finger into her vagina a third

22-KA-293 16

time. A.C. testified that the defendant finally “backed off” when she told the

defendant to “stop” louder than she previously had before.

A.C.’s retelling of the incident to family members, investigators, and medical

personnel was consistent. Her testimony at trial was substantially similar to what

she told her mother immediately after the incident. Detective Laurent said that

A.C.’s statement to her was consistent with what A.C. told the deputy. Additionally,

A.C.’s trial testimony was substantially similar to the recorded forensic interview

that was played for the jury. Detective Laurent testified that the information

conveyed in the forensic interview was consistent with the information A.C. told her

but that it contained more detail. She also reviewed A.C.’s medical records and

explained that A.C.’s statements to medical personnel were consistent with what

A.C. told her. A.C.’s statements were also consistent with what she told her mother

and aunt immediately after the incident.

A.C. stated she was in pain when she arrived at Children’s Hospital and that

her vagina was burning. A.C. also recalled being told by medical personnel that her

vagina was bright red. Detective Laurent reviewed A.C.’s medical records. The

detective explained that A.C. advised that she had pain in the inside of her vagina

and that after the examination, the doctors saw irritation at the opening of her vagina.

Dr. Troy stated she did not treat A.C. but that she reviewed her medical records. She

relayed that A.C. “was digitally vaginally penetrated and hurt inside her vagina.”

Dr. Troy said the ER doctor found redness at the opening of the vagina. She

explained that this finding was “nonspecific but consistent” with the allegation of

digital penetration and a victim complaining of vaginal pain.

Finally, Ms. Malone’s testimony reflects that swabs from A.C.’s neck, ear,

22-KA-293 17

inner thigh, and left and right hand fingernails all showed two contributors. A.C.

could not be excluded as the major contributor, and a valid DNA profile of the minor

contributor could not be obtained. She indicated that the inner thigh swab contained

male DNA, although she stated that she was unable to obtain a full profile in order

to make any comparisons in this case. Additionally, A.C.’s aunt, grandmother, and

great-uncle all testified that they witnessed the defendant wash his hands twice.

The State’s witnesses also acknowledged that the defendant told them that the

night of the incident A.C. inappropriately touched her younger brother, and when he

told her to stop, A.C. told the defendant she would claim rape and call the police.

A.C.’s father testified that when he initially heard his brother’s explanation of what

occurred in the bedroom, he was not concerned by the allegation, suggesting that he

did not believe his brother’s claim. Furthermore, members of A.C.’s family,

including A.C. herself, testified that A.C. has a tendency to lie on occasion; however,

everyone stated that A.C. was visibly upset the night of the incident, had a difficult

time calming down, and that she appeared scared. Her mother testified that although

she’s lied in the past, she “strategically” explained the seriousness of the allegations

to determine whether her daughter was telling the truth. A.C. testified that she

recognized the seriousness of the allegations and that while she has lied in the past

to get out of trouble, she has never lied about the incident involving the defendant.

The jury heard all the evidence and made a credibility determination. A.C.’s

account of events remained consistent from her initial account immediately after the

incident to her testimony at trial. A rational juror could have concluded based on

the evidence and testimony presented, that the defendant digitally penetrated A.C.

while A.C.’s brother lay asleep next to her, and only upon her telling him to stop

22-KA-293 18

loud enough that the defendant likely grew concerned that she would alert someone’s

attention, did he “back off,” as A.C. testified. Viewing the evidence in a light most

favorable to the prosecution, a rational juror could have found beyond a reasonable

doubt that the evidence was sufficient to sustain the conviction for sexual battery.

Admissibility of Alleged Prior Sexual Act

Defendant also claims that it was improper for this Court to grant the State’s

writ application, reversing the trial court’s judgment granting the defendant’s

motion in limine, without also remanding the matter to the trial court to properly

conduct the balancing test set forth in La. C.E. art. 403.

One month before trial, A.C. disclosed for the first time a prior incident that

occurred in Texas. The defendant asserts that the State previously objected to

providing the identity of those present during that disclosure at the district

attorney’s office, which prompted him to file a motion in limine. He states that the

trial judge ordered the State to produce the notes of the meeting. Thereafter, the

motion in limine was granted, but on supervisory review this Court reversed the

trial court’s ruling. The defendant asserts that this Court substituted its judgment

for the judgment of the trial court and as a result prejudicial evidence was

improperly admitted at trial, which he asserts was not harmless error.

In opposition, the State argues that after this Court’s ruling on supervisory

review, the defendant did not apply for rehearing with this Court or seek review by

the Louisiana Supreme Court. The State provides that the defendant’s trial counsel

did not object during trial to any testimony regarding the prior incident. Therefore,

the State argues that the issue was not preserved, and the defendant lacks standing

to raise the issue on appeal. Furthermore, the State claims the law of the case

22-KA-293 19

doctrine now applies, and the defendant has not produced any evidence to show

that this Court’s ruling was patently erroneous or that it produced unjust results.

The State filed a notice of intent to introduce La. C.E. art. 412.2 evidence,

which indicated its intent to introduce evidence through the victim’s testimony

that she was first sexually assaulted by defendant at her family home in Texas

when she was in the seventh grade while defendant was babysitting her and her

brother. The State said that during that prior incident, defendant bent the victim

over the bathroom sink, attempted to pull her shorts down, and that the victim felt

his penis graze her buttock. The State argued that the prior incident indicates a

lustful disposition towards children and constitutes res gestae evidence. In the

defendant’s motion in limine, the defendant argued that the admission of the

alleged prior incident would make it impossible for defendant to obtain a fair and

impartial trial. He further asserted that reference to the other allegation would

place defendant’s character into evidence and would be reversible error. The

defendant stated that the evidence fails to satisfy the balancing test set forth in La.

C.E. art. 403. Additionally, the defendant claimed the evidence was not relevant

and not res gestae evidence, and even if it was relevant, it does not satisfy La. C.E.

art. 403.

The trial court issued its ruling, indicating that a two-step analysis was

involved in deciding whether the probative value of the evidence outweighed its

inherent prejudicial effect. As to the first step of determining whether the evidence

had any probative value, the trial court stated that “[t]he content of the incident

disclosed has probative value for indicating a lustful disposition.” The trial court

then addressed the second prong of the analysis, which it stated “requires the Court
22-KA-293 20

to make a determination whether there is sufficient evidence -- whether sufficient

evidence is presented…to find -- to support finding the defendant committed the

alleged other wrong act -- wrong act or crime.” The trial court found the evidence

insufficient to support a finding that the defendant committed the alleged act, and

granted the defendant’s motion in limine to exclude introduction of the prior act

at trial.

On supervisory review, this Court found that the trial court applied the

incorrect legal analysis when it considered the sufficiency of the State’s evidence

regarding the prior act as part of the balancing test under La. C.E. art. 403. This

Court also determined that even if the trial court intended to consider whether the

State provided sufficient evidence independently from the balancing test, the trial

court abused its discretion by finding that the evidence presented by the State was

insufficient to establish that the defendant committed the prior act. Finding that

the trial court committed legal error, this Court considered the admissibility of the

disputed evidence de novo and applied the balancing test set forth in La. C.E. art.

403. We concluded that the probative value of the disputed evidence was not

substantially outweighed by unfair prejudice and reversed the trial court’s

judgment granting the defendant’s motion in limine.

In support of his argument that this Court erred in applying the balancing test

without first remanding the matter to the trial court, the defendant cites State v.

Fife, 19-1833 (La. 1/28/20), 288 So.3d 117. In Fife, the defendant timely sought

writs with the Louisiana Supreme Court after the appellate court applied the

balancing test in the first instance without remanding the matter to the trial court

to apply the correct balancing test. The Louisiana Supreme Court found that the
22-KA-293 21

appellate court “erred in applying the balancing test” without first remanding the

matter to the trial court; therefore, the Supreme Court vacated the portion of the

appellate court’s ruling that found the probative value of the evidence did not

substantially outweigh the danger of unfair prejudice and remanded the matter to

the trial court to apply the balancing test under La. C.E. art. 403. Id.

The instant matter is distinguishable. The trial court in Fife failed to

conduct the two-prong balancing test provided by La. C.E. art. 403; whereas, in

this case, despite the trial court applying the incorrect legal analysis, the

balancing test was performed nonetheless. Therefore, Fife is inapplicable.

Under the “law of the case” doctrine, an appellate court will generally

decline to consider its own rulings of law on a subsequent appeal in the same case.

State v. Allen, 17-685 (La. App. 5 Cir. 5/16/18), 247 So.3d 179, 185, writ denied,

18-1042 (La. 11/5/18), 255 So.3d 998. Reconsideration of a prior ruling is

warranted when, in light of a subsequent trial record, it is apparent that the

determination was patently erroneous and produced unjust results. State v.

Falcon, 13-849 (La. App. 5 Cir. 3/12/14), 138 So.3d 79, 87-88, writ denied, 14-

769 (La. 11/14/14), 152 So.3d 877.

In rendering its prior writ disposition, this Court reviewed the writ

application, exhibits, and hearing transcripts and found that the trial court erred by

conducting a separate and independent sufficiency test as part of the balancing

test. The defendant raises the same issue now on appeal. Additionally, the

defendant’s brief does not allege any new facts or additional case law that would

suggest that this Court’s previous determination was patently erroneous or

produced unjust results. See State v. Falcon, 13-849 (La. App. 5 Cir. 3/12/14), 138
22-KA-293 22

So.3d 79, 87-88, writ denied, 14-769 (La. 11/14/14), 152 So.3d 877. We find the

defendant has not shown that reconsideration is warranted or that our prior

determination was patently erroneous or produced unjust results.

Furthermore, any error regarding the admission of the other crimes evidence

is subject to the harmless error rule. State v. Merritt, 04-204 (La. App. 5 Cir.

6/29/04), 877 So.2d 1079, 1087, writ denied, 04-1849 (La. 11/24/04), 888 So.2d

228. The test for determining if an error was harmless is whether the verdict

rendered at trial was surely unattributable to the error. State v. Joseph, 16-349

(La. App. 5 Cir. 12/14/16), 208 So.3d 1036, 1047-48, writ denied, 17-77 (La.

4/7/17), 218 So.3d 109. Even without testimony regarding the prior incident in

Texas, this Court finds the evidence was sufficient to prove the defendant’s guilt

as to the sexual battery of A.C. Therefore, we find any error regarding the

admission of the other crimes evidence was harmless.

Responsive Verdicts

Lastly, the defendant assigns as error the trial court’s failure to include

attempted felony sexual battery and misdemeanor sexual battery as responsive

verdicts for the jury’s consideration.

A jury charge conference was held in this case, wherein the defendant’s trial

counsel sought to have “guilty of attempted sexual battery” included as a

responsive verdict. The State disagreed and stated that the only verdicts permitted

on the verdict form were guilty and not guilty of the charged offense. The trial

court agreed with the State and asked defense counsel if she “had something that

tells [him] otherwise.” Defense counsel replied, “Only the criminal jury

instructions and procedures.” She then objected. The trial court later instructed
22-KA-293 23

the jury that there were no lesser-included offenses for sexual battery and that the

responsive verdicts were guilty or not guilty.

On appeal, the defendant claims that the responsive verdicts should have

included both attempted felony sexual battery and misdemeanor sexual battery.

However, the defendant failed to raise at the trial court level an argument related

to the inclusion of misdemeanor sexual battery as a responsive verdict. Because

appellate courts will not consider issues raised for the first time on appeal, we

find the defendant did not preserve this issue for appeal. State v. Revish, 19-1732

(La. 10/20/20), 340 So.3d 864, 868 (quoting Segura v. Frank, 93-1271 (La.

1/14/94), 630 So.2d 714, 725). Therefore, we are precluded from considering it

here.

Nevertheless, we find defense counsel preserved the issue as it relates to the

trial court’s exclusion of attempted sexual battery as a responsive verdict. “An

accused in Louisiana is entitled to have the trial court instruct the jury on the law

of the charged offense and on all responsive offenses.” State v. Serio, 94-131 (La.

App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La. 12/16/94),

648 So.2d 388 (citing La. C.Cr.P. arts. 803, 814, 815). “When an accused

requests and is refused an instruction on a lesser and included offense, or when

the accused timely objects to the court's failure to give a responsive offense

instruction to which defendant is statutorily entitled, the conviction may be

reversed.” Id. (citing State ex rel. Elaire v. Blackburn, 424 So.2d 246, 248 (La.

1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983)); See

also State v. Dufore, 424 So.2d 256 (La. 1982).

In order for a conviction be reversed, the defendant must demonstrate that
22-KA-293 24

the inclusion or exclusion of a responsive verdict was prejudicial and that

fundamental due process has been violated. State v. Preston, 09-856 (La. App. 5

Cir. 5/25/10), 40 So.3d 1052, 1062, writ denied, 10-1492 (La. 1/14/11), 52 So.3d

900. In determining whether the failure to give a responsive verdict of attempt is

reversible error, the question is whether there is a reasonable probability that, had

the jury been given the responsive verdict of attempt, the verdict would have been

different. Serio, 641 So.2d at 608.

Although the court must charge the jury of the law applicable to lesser-

included offenses under La. C.Cr.P. art. 803, the charges must be pertinent—there

must be evidence which would support a conviction of the lesser offenses.

Youngblood, 274 So.3d at 742 (citing La. C.Cr.P. art. 807). The trial judge is

required to charge the jury only with those charges of which the accused can be

found guilty under the indictment and the evidence. Id. An erroneous jury charge

is not prejudicial when the jury returns a verdict of guilty of the crime charged.

State v. Johnson, 45,885 (La. App. 2 Cir. 1/26/11), 57 So.3d 412, 418, writ denied

sub nom. State ex rel. Johnson v. State, 11-2765 (La. 10/12/12), 99 So.3d 36.

The State argues that the defendant’s objection to the exclusion of the

responsive verdict was insufficient to preserve the issue for appeal. La. C.Cr.P.

art. 801 provides in pertinent part:

A party may not assign as error the giving or failure to give a jury
charge or any portion thereof unless an objection thereto is made before
the jury retires or within such time as the court may reasonably cure the
alleged error. The nature of the objection and grounds therefor shall be
stated at the time of objection. The court shall give the party an
opportunity to make the objection out of the presence of the jury.

In Johnson, supra, the defendant on appeal argued that the trial court

22-KA-293 25

improperly failed to include two responsive verdicts. The Second Circuit stated

that, contrary to the State’s contention that the defendant failed to object to the

exclusion of the responsive verdicts for one of the counts, the record showed that

prior to the court’s charge to the jury, defense counsel objected “to omitting any

of the possible responsive verdicts as to the aggravated rape charges.” The court

found that the record did not indicate that the defendant waived the issue

regarding exclusion of the responsive verdicts.

In this case, the transcript from the jury charge conference reflects that

defense counsel sought inclusion of attempted sexual battery as a responsive

verdict and relief based on “the criminal jury instructions and procedures.” We

find defense counsel timely objected to exclusion of the responsive verdict of

attempted sexual battery during the jury charge conference. Nevertheless, this

Court has considered the merits of a defendant’s argument even if the

contemporaneous objection was insufficient. See State v. Carter, 96-358 (La.

App. 5 Cir. 11/26/96), 685 So.2d 346, 355 (considering responsive verdict issue

despite the inability to determine if the defendant made a contemporaneous

objection).

In the present case, the defendant failed to demonstrate that the exclusion of

the responsive verdict was prejudicial, given that the jury returned a verdict of

guilty as charged, which as we previously discussed is supported by sufficient

evidence. Id. (citing State v. Freeman, 444 So.2d 243 (La. App. 1 Cir. 1983);

Johnson, 57 So.3d at 418. We find no merit to this assignment of error.

Error Patent

A review of the record demonstrates two errors patent. La. R.S.
22-KA-293 26

14:43.1(C)(1) states, “[w]hoever commits the crime of sexual battery shall be

punished by imprisonment, with or without hard labor, without benefit of parole,

probation, or suspension of sentence, for not more than ten years.” The

sentencing transcript reflects the trial judge stated the following: “[i]t is the

sentence of this Court that you serve five years without hard labor, without the

benefit of probation, parole or suspension of sentence.” However, the sentencing

minute entry reflects that the defendant was sentenced to five years “with the

Dept. of Corrections without the benefit of probation, parole, or suspension.”

Additionally, the record contains the State of Louisiana Uniform Sentencing

Commitment Order, which indicates the “Total Sentence Length” is “5 years w/o

hard labor;” yet, the “Amount of Time in DPS&C Custody” reflects “5 years.”

This Court has previously held that when a trial judge sentences a defendant

to the custody of the “Department of Corrections” the sentence imposed is

necessarily at hard labor. State v. Jamison, 17-49 (La. App. 5 Cir. 5/17/17), 222

So.3d 908, 909 n. 2. Additionally, “[w]here a discrepancy exists between the

transcript and the minute entry, the transcript prevails.” Edwards v. State, 19-187

(La. App. 5 Cir. 6/4/19), 2019 WL 2363530, * 2 (citing State v. Lynch, 441 So.2d

732 (La. 1983)). Therefore, we find the sentencing minute entry and the

commitment order are inconsistent with the sentencing transcript and must be

corrected.6

Additionally, the sentencing minute entry and transcript indicates that the

6
Based on the record before this Court, it appears that the defendant is presently housed in the Department
of Corrections despite the transcript reflecting his sentence was imposed without hard labor. The Pro Se
Briefing Notice to Defendant included in the Appellant’s brief reflects that the defendant’s current address
is at Rayburn Correctional Center.
22-KA-293 27

trial court failed to advise the defendant that he has two years after the judgment

of conviction and sentence become final to seek post-conviction relief pursuant

to La. C.Cr.P. art. 930.8. “It is well settled that if a trial court fails to advise, or

provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate

court may correct this error by informing the defendant of the applicable

prescriptive period for post-conviction relief by means of its opinion.” State v.

Taylor, 20-215 (La. App. 5 Cir. 4/28/21), 347 So.3d 1008, 1023.

Accordingly, we now advise the defendant, by way of this opinion, that no

application for post-conviction relief, including applications that seek an out-of-

time appeal, shall be considered if filed more than two years after the judgment

of conviction and sentence has become final under the provisions of La. C.Cr.P.

arts. 914 or 922.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and

sentence and remand the matter to the trial court for correction of the minute entry

and commitment to accurately reflect the defendant’s sentence as imposed by the

trial judge at sentencing. Additionally, the Clerk of Court for the 40th Judicial

District Court is ordered to transmit the commitment to the officer in charge of

the institution to which relator has been sentenced and to the Department of

Corrections’ Legal Department.

CONVICTION AND SENTENCE AFFIRMED;
REMANDED WITH INSTRUCTION

22-KA-293 28

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-293
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE TIMOTHY S. MARCEL (DISTRICT JUDGE)
GWENDOLYN K. BROWN (APPELLANT) KEVIN V. BOSHEA (APPELLANT)

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