State of Louisiana Versus Lok C. Au

STATE OF LOUISIANA NO. 23-KA-90

VERSUS FIFTH CIRCUIT

LOK C. AU COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-6147, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

December 20, 2023

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel

CONVICTION AFFIRMED; SENTENCE ON
COUNT THREE VACATED; REMANDED FOR
RESENTENCING ON COUNT THREE
SUS
SMC
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Thomas J. Butler

COUNSEL FOR DEFENDANT/APPELLANT,
LOK C. AU
Gwendolyn K. Brown

SCHLEGEL, J.

Defendant/appellant, Lok C. Au, appeals his conviction and sentence for

indecent behavior with a juvenile under the age of thirteen in violation of La. R.S.

14:81. For the reasons that follow, we affirm defendant’s conviction, and vacate

and remand the case for resentencing.1

PROCEDURAL HISTORY

On July 24, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Lok C. Au, with sexual battery upon a known

juvenile (DOB 6/2/2008) wherein the child was under the age of thirteen in

violation of La. R.S. 14:43.1 (count one).2 On August 24, 2018, defendant pled not

guilty. A superseding bill was filed on September 25, 2019, adding count three,

which charged defendant with indecent behavior with a juvenile (DOB 6/2/2008)

in violation of La. R.S. 14:81.

On October 3, 2019, a superseding bill charged defendant with sexual

battery of a known juvenile (DOB 6/2/2008) under the age of thirteen in violation

of La. R.S. 14:43.1 (count one), and indecent behavior with a juvenile (DOB

6/2/2008) under the age of thirteen in violation of La. R.S. 14:81 (count three). He

pled not guilty on October 7, 2019. The alleged victim is M.G.

On February 12, 2020, the defendant was found guilty on both counts by a

jury with a verdict of ten to two. The defendant was sentenced on March 9, 2020

to 35 years imprisonment on count one, and to 15 years of imprisonment on count

three.

1
In accordance with La. R.S. 46:1844(W)(3), the victim, who is a minor, and the witnesses whose names
can lead to the victim’s identity (parent, sibling, or relative with the same last name) will be referred to by
their initials in order to protect the victim’s identity.
2
In the same bill, K.P. was charged in count two with cruelty to a juvenile (DOB 6/2/2008) in violation
of La. R.S. 14:93.

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On August 14, 2020, this Court granted defendant’s motion to remand his

case to the trial court to reconsider his motion for new trial in light of the decision

of the United States Supreme Court in Ramos v. Louisiana, 590 U.S. __, 140 S.Ct.

1390, 206 L.Ed.2d 583 (2020). The trial court granted defendant’s motion for new

trial. A second trial began on March 14, 2022, but a mistrial was declared on

March 15, 2022 due to the illness of co-counsel for the defendant.

Defendant’s third trial was held from August 15 to 17, 2022. On August 17,

2022, the trial court declared a mistrial as to count one when the jury was unable to

reach a verdict. As to count three, the jury unanimously found defendant guilty as

charged of indecent behavior with a juvenile under the age of thirteen.

On September 12, 2022, the State entered a nolle prosequi as to count one

and defendant’s motion for new trial was denied. On that day, defendant was

sentenced to twenty years imprisonment at hard labor as to count three. Defendant

filed a motion to reconsider sentence on October 12, 2022. Defendant filed a

motion for appeal and designation of record on November 3, 2022. The motion to

reconsider sentence was heard and denied on December 1, 2022. Thereafter, the

judge granted the motion for appeal and designation of record.

FACTS

M.G., age fourteen at the time of trial and in the ninth grade, testified that

she has two younger biological sisters and that they have the same mom, K.P. She

recalled that she started living with L.F. and T.F. when she was eight years old,

and they officially adopted her on December 17, 2018 when she was ten years old.

Before that, she lived with her mother and Aunt Marie in Mississippi.

While living with her mother, M.G. met defendant, whom she knew as

“Bill”, through her mom. M.G. knew that K.P. was with different men for money

because K.P. brought M.G. along with her sometimes. M.G. said she and K.P.

went to various places with Bill, such as casinos and hotels, and that when he

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would leave, he would give them both money. M.G. would then give the money to

her mother, K.P. M.G. testified that the hotel rooms had two beds, and that she

was left alone in the room with Bill more than once.

M.G. testified that during these times Bill touched her body twice. K.P. was

not in the room either time. On one occasion, she was on the bed, wearing a shirt

and underwear, when Bill got on the bed with her. He then put his finger inside of

her underwear on her vagina. Afterwards, she went into the bathroom and checked

herself because it hurt where he touched her. The second time, she was in bed

wearing only a shirt and underwear, when Bill got in the bed and put his finger

inside her underwear on her vagina again.

She said there was also a time when she saw Bill’s penis. According to

M.G., defendant walked over to the bed wearing briefs, pulled his underwear to the

side so she could see his penis and said, “Touch it.” When he told her to touch it,

she said she did because he was an adult.

Bill also kissed M.G. on the lips on more than one occasion, and placed his

tongue in her mouth. She did not want him to do that so she told K.P., but K.P. did

not do anything about it. M.G. did not feel that there was anything she could do to

stop Bill from doing these things to her. M.G. also testified about a time when she

saw people having sex on T.V. after Bill turned on the television.

When M.G. was eight, she went to live with T.F. and L.F. She did not

immediately tell them about what Bill did to her, but eventually she told L.F. about

what Bill had done. She did not tell L.F. everything at once because it was

“weird,” and she was scared to tell anyone because her mother, K.P., had told her

not to tell anyone. She also did not tell the forensic interviewer in Mississippi

everything when she was eight years old. At some point, she did disclose

everything.

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K.P., M.G.’s biological mother, testified that she gave birth to three

daughters, including M.G. M.G. and one of her sisters have the same father. K.P.

acknowledged that the State was prosecuting her for cruelty to a juvenile and that it

was related to defendant’s trial. She met defendant, whom she called “Bill Lok

Au,” when he made her a car key. At that time, she did not have a job, and only

M.G. had been born. K.P. testified that they were friends but that after some time,

he suggested that he help her financially. She stated that he gave her money after

they had sex and that she would not have had sex with him otherwise. At that

time, she was living with her Aunt Marie in Mississippi. K.P. testified that they

usually met at the Evergreen hotel in Jefferson Parish. She acknowledged that she

was abusing drugs at that time and that two of her children were born addicted to

cocaine. One daughter was also born with cerebral palsy.

K.P. acknowledged that she sometimes brought M.G. with her to the

Evergreen hotel. When asked if she ever had sex with defendant while M.G. was

in the room she initially answered in the negative. She also testified that she was

high from drugs at the time and thought that things happened that she did not

realize or could not remember. She initially stated that she left M.G. and defendant

alone together for only about five minutes while she got ice, but denied leaving the

hotel to get drugs. She later acknowledged that she would in fact leave M.G. alone

with defendant while she went to get drugs. K.P. testified that she never saw

defendant abuse M.G. and that M.G. never told her that defendant kissed M.G. on

the lips or touched her, other than a kiss on the cheek.

L.F. testified that she is the mother of six children, three of whom she

adopted with her husband, T.F. The three adopted children, A.F., E.F., and M.G.

are the biological daughters of K.P., and initially came to her as foster children.

L.F. and her husband did not know K.P. before adopting A.F. as an infant in 2014.

A.F. was born on cocaine and spent approximately three weeks in the Neonatal

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Intensive Care Unit before L.F. and her husband could bring her home. When they

adopted A.F., M.G. (the victim) was six years old and was living with K.P. For a

period of time, M.G. was not living with her mother, K.P., and was being cared for

by what were believed to be paternal relations, who would occasionally bring M.G.

to visit A.F.

When E.F., K.P.’s third daughter, was born in 2016 on a multitude of drugs

and with severe medical issues, the State removed her from K.P.’s custody and

ultimately placed her with L.F. and her husband in 2016 as a foster child. Then, in

July 2016, the State contacted L.F. and her husband and asked if they would also

take M.G., who was now eight years old, as a foster child, because M.G. was also

going to be removed from K.P. They agreed.

One day, M.G. was “acting off,” so L.F. told M.G. to go and sit in her room

and think about what was going on, and that L.F. would come and talk to her in a

minute. When L.F. went in to talk to M.G., she said, “I was just thinking about the

time Bill kissed me.” L.F. asked, “On your cheek?” M.G. replied, “No, in my

mouth,” and showed and described to her how he used his tongue and what his

mouth did with her. L.F said, “A French kiss?” M.G. said, “What’s that?” L.F.

explained that would be him sticking his tongue in her mouth. M.G. said that is

what happened and that her mother, K.P., knew. L.F. testified that she did not

know who “Bill” was when M.G. first said this. L.F. testified that they contacted

M.G.’s social worker in Mississippi regarding this initial disclosure. L.F. believed

the social worker contacted the police and took M.G. to a forensic interview.

L.F. stated that sometime after the forensic interview, M.G. told her that Bill

had showed himself to her and that it was “real saggy and gross.” M.G. also

described pornography on the television in the hotel room, and told L.F. that Bill

had stuck his fingers inside of her vagina, and that it had really hurt. L.F. said that

her two-year old adopted daughter, A.F., told L.F. that M.G. was sucking her

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crotch. L.F. asked M.G. about this, and M.G. said she was doing what had been

done to her.

L.F. testified that at some point they contacted law enforcement. An officer

in Mississippi took M.G.’s statement, but told them it was out of their jurisdiction.

L.F.’s husband, T.F., subsequently took M.G. to Louisiana, where she had to give

more statements about what Bill did to her. L.F. testified that M.G. was now 14

years old, had been in therapy, and was doing well. L.F. denied telling M.G. to lie

or make up things about Bill so that she could get custody of her.

L.F. acknowledged that she knew that K.P. was a prostitute and was with

additional men besides defendant and that M.G. had witnessed her mother’s drug

use. Bill was the only “boyfriend” of K.P.’s that M.G. talked about staying with

overnight in a hotel.

T.F. testified that in August 2017, he and his wife, L.F., called the Pearl

River County Sheriff’s Office in Mississippi where they live. They were told to

contact M.G.’s social worker and the law enforcement agency for the jurisdiction

where the actual activity occurred. They ultimately took M.G. to the Audrey

Hepburn CARE Center at Children’s Hospital in New Orleans. Since M.G. only

knew the person as “Bill,” T.F. called his wife, L.F., so that she could get in

contact with family members to try to get a name and a possible phone number for

Bill. T.F. was present when a single photograph was shown to M.G., and she

identified the person as the perpetrator.

On August 16, 2017, Detective Peter Foltz of the Kenner Police Department

was told to go to the Audrey Hepburn CARE Center regarding a juvenile making

allegations of sexual abuse. When he arrived, he spoke with caseworker Alicia

Porter and Dr. Jamie Jackson. M.G. was also at the CARE Center, accompanied

by her foster father, L.F. Detective Foltz testified that the Kenner Police

Department was contacted because based upon what M.G. had said, the abuse had

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occurred at a hotel near the Treasure Chest Casino located in Kenner. It was

determined that the alleged abuse occurred at the Evergreen Plaza Inn, which is in

Metairie, and is handled by the JPSO. Detective Foltz contacted JPSO and asked

them to send a deputy. Detective Foltz believed that M.G. said the perpetrator was

named Bill Au. Detective Foltz testified that they attempted to determine who Bill

Au was, and that T.F. contacted people in Mississippi and was able to obtain a

potential telephone number for Mr. Au. Detective Foltz turned this information

over to Deputy Brandon Cohen of JPSO.

Detective Brandon Cohen of JPSO was dispatched to the Kenner Police

Department Complex regarding a complaint of child sexual abuse that took place

in Jefferson Parish. When he arrived at the Kenner Police Department complex, he

learned that the child sexual abuse took place at the Evergreen Motel in Metairie.

Detective Cohen spoke to the victim’s father about the complaint and was given

the name “Bill” and a cell phone number. Detective Cohen testified that he gave

this information to Detective Scott Bradley in the Personal Violence Unit. Using

computer databases, Detective Bradley obtained a name that he ran through DMV

records and found a photograph that he sent to Detective Cohen while he was in

Kenner. This photograph was printed and shown to the child victim to see if she

could make an identification. The victim identified the individual in the

photograph as the person who sexually abused her.

In August 2017, Detective Scott Bradley was employed by the JPSO

assigned to the Personal Violence Section. He testified that on August 16, 2017, a

patrol deputy contacted him regarding a call from the Kenner Police Department

on an allegation of child sexual abuse that occurred at the Evergreen Motel in

Metairie. He was given a phone number, which lead to a named person assigned to

the phone number. He got a driver’s license picture of the person, which he sent to

the patrol deputy. The victim, M.G., positively identified the individual in the

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picture as the person who sexually abused her. After M.G. made the identification

of the perpetrator, Detective Bradley arranged for her to go to the Jefferson Parish

Children’s Advocacy Center (“CAC”) for a forensic interview. He was present at

the CAC on August 30, 2017, in a separate room with a monitor where he could

watch and listen when Brittany Bergeron Millet conducted the interview of M.G.

Dr. Jamie Jackson testified as an expert in the field of child abuse as a child

abuse pediatrician. Dr. Jackson, who was employed at the Audrey Hepburn Care

Center, examined M.G. on August 16, 2017. She also conducted a private

interview with M.G. that was audio recorded and played for the jury. During the

interview, M.G. explained to Dr. Jackson how she and K.P. would meet with Bill

in the hotel room. M.G. described situations similar to what she testified to at the

trial, about how Bill kissed her on the lips with his tongue in her mouth, how he

showed her his “private part” and made her touch it, and how he stuck his finger in

her private part twice.

Dr. Jackson also conducted a physical examination of M.G. She said that

M.G.’s physical examination was normal but explained that a normal examination

was not determinative of whether or not sexual abuse occurred. She testified that

when she sees children for possible sexual abuse, most of the time there are no

physical findings because of the child’s anatomy.

Dr. Jackson explained that disclosure of abuse is a process and delayed

disclosure is commonly seen with sexual abuse victims. Delayed disclosure does

not automatically mean that the report is true. She stated that it is common for

victims of child sexual abuse to wait to disclose it until they are in a safe

environment. When asked if M.G. appeared “bubbly” and had a matter-of-fact

manner, Dr. Jackson stated that it was not uncommon for a victim of child sexual

abuse to have such an affect. She explained that M.G.’s affect did not indicate

whether something happened or did not happen. Dr. Jackson testified that most of

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the time when she sees a child, it is the second, third, or fourth time that the child is

talking about the abuse, and that children would only become really emotional if

they were sharing a certain part for the first time.

Dr. Jackson acknowledged that M.G. was seeing a counselor in Mississippi

and explained that she never requested any notes or records from others and would

instead talk to the child in private to obtain the information herself. Dr. Jackson

explained that a disclosure may change over time depending on several things,

including how someone reacts to the disclosure. Dr. Jackson agreed that false

allegations of sexual abuse occur and that sometimes children say things that are

not true. She also agreed that a child might say something untrue to please the

person they are talking to and that children sometimes lie without an adult

suggesting it to them. Dr. Jackson acknowledged that a child might lie to get

themselves out of trouble or to get something they want. When asked if it was her

job as a child abuse pediatrician to make a conclusion as to whether a child was

telling the truth, she stated that she was not the end-all-be-all with knowing if a

child is telling the truth, “[b]ut I can definitely say that she [M.G.] gave me clear

statements with regard to sexual abuse.”

Dr. Jackson agreed that in the interview, M.G. described being exposed to

drugs and prostitution and seeing photographs of other naked men. She

acknowledged that M.G. told her that she was allowed to leave K.P.’s custody

because K.P. was on drugs and because M.G. was sexually abused. Dr. Jackson

recalled that M.G. gave a history of sexual abuse and “about exposure to

sexualized material” and environment. She testified that M.G. said she saw

pictures of her biological father naked on his phone and pictures of her mom and

another man having sex on her mom’s phone. Dr. Jackson agreed that M.G. could

have exhibited hyper-sexualized behavior from exposure to pornography and those

photographs or from sexual abuse.

23-KA-90 9

On August 30, 2017, Brittany Bergeron Millet, the forensic interviewer at

the CAC, interviewed M.G. A recording of the interview was played for the jury.

During the interview M.G. spoke about incidences similar to what she testified to

at the trial, and that she had told Dr. Jackson about, including where Bill stuck his

tongue in her mouth while kissing her; exposed his penis and asked her to touch it;

and rubbed her buttocks, removed her panties, and penetrated her vagina with his

finger. M.G. also described pornography being played on television.

After M.G. positively identified defendant, Lok Au, Detective Bradley

obtained a warrant for his arrest. Defendant was arrested, and was transported to

the investigations bureau. After Detective Bradley advised defendant of his

Miranda rights, defendant waived his rights and made a statement. The statement

was published to the jury.

Detective Bradley testified that defendant admitted to paying K.P. for sex,

and admitted to having sex with K.P. while M.G. was in the hotel room at the

Evergreen Hotel. Detective Bradley further said that defendant admitted that he

was actually, at times, alone with M.G., and that defendant admitted to one kiss on

the lips with M.G., but later indicated that it was two times. He said that defendant

admitted watching pornography while M.G. was in the hotel room.

When giving his statement, defendant was told that the charge was sexual

battery involving a child victim. Defendant stated that K.P. is the girl he usually

sees since his wife passed away. He described the relationship as sexual and

consensual. He denied that K.P. was his girlfriend, and said he paid her.

Defendant said K.P. called him “Bill,” and that his name is Bill. Defendant stated

he sometimes went to her trailer in Mississippi and sometimes to the Evergreen

hotel. He said they went to the hotel sometimes once a week and sometimes once

a month. He said that K.P. used drugs, but denied that he used them.

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Defendant explained that one summer, K.P.’s daughter, M.G., was out of

school, and she would go with them to the movies. He stated that after the movies,

they would go to the hotel and that M.G. would sleep. He explained that there

were two beds and that he would leave after he and K.P. had sex. He said this

happened two or three times, and that M.G. was asleep when he and K.P. made

love. Defendant stated he was only alone with M.G. once and that she was asleep.

He explained that when K.P. left, he would stay in the room another ten or fifteen

minutes before leaving. He said he would watch television before he left, but he

denied watching pornography alone. He said he would put pornography on when

K.P. was there, but that M.G. was asleep when he did. He explained that they

blocked M.G.’s view, and she could not see the pornography.

Defendant said he never intentionally showed M. G. his penis. He always

wore pants. When he laid down on the bed, he would take his pants off, but would

have boxer shorts on. Defendant said M.G. liked him and called him “Uncle Bill.”

He said that M.G. would hug him hello and goodbye. He indicated that she once

wanted to kiss him on the lips, but he told her that she could not, and he pushed her

away. He said K.P. was there that time. He might have kissed her a second time

while in the trailer. Defendant denied that he ever laid in the bed with M.G., or

that he ever showed her his penis. He said his boxers were loose, but he never

showed her anything. He denied touching M.G. on her legs, buttocks, or vagina.

Defendant told the detective that these allegations were made because K.P. and her

boyfriend were trying to put him in jail.

Defendant called as witnesses several neighbors and relatives who all

testified that defendant had a good reputation in the community. Frederick Bentel

testified that he had lived next door to defendant for approximately 42 years. He

said defendant has five children and seven grandchildren. He explained that

defendant was married but that his wife passed away seven or eight years

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previously. He testified that defendant did not have a reputation for being

predatory towards children and that he trusted his own grandchildren around

defendant. Mr. Bentel said defendant did not have a reputation for being

aggressive or violent towards children and described him as a peaceful and law-

abiding person.

Jan Knecht testified that defendant, whom she knows as Mr. Bill, has been

her neighbor since 1986. She recalled that defendant lost his wife seven to ten

years prior. Ms. Knecht testified that she never saw defendant “do anything other

than normal dads do” and that she never saw him act inappropriately. She denied

that he had a reputation as a person who acts inappropriately towards children or is

aggressive or violent.

Jimmy Au, defendant’s son, worked with him in the locksmith business. He

explained that his mother passed away in 2011 and that his father did not respond

well to her passing. He has two daughters that he would “bring around” his father

and that they love defendant. He denied that his father has a reputation for

behaving inappropriately toward children. He stated that defendant was never in

trouble and described him “as law-abiding as they come.” Jimmy stated that

defendant has a reputation of being “as safe as it comes” around children.

Annette Alvarado, defendant’s daughter, explained that she has three

children and that they visit defendant. She said he does not have a reputation for

acting inappropriately with children. She stated that defendant has a reputation as

a law abiding, good citizen.

Edward Au, defendant’s son, testified that defendant does not have a

reputation for acting inappropriately towards children.

Henry Au, defendant’s oldest son, described defendant as well-liked and

said he did not have a criminal record. He said he had a reputation for being a law-

abiding person.

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LAW AND ANALYSIS

A. Alleged errors related to expert witness testimony

In assignments of error numbers 1 through 5, defendant argues that the trial

court erred by (1) admitting testimony of the State’s expert witness, Dr. Jamie

Jackson, that went beyond its admissible scope; (2) impermissibly excluding

testimony of defendant’s expert, Dr. Alicia Pellegrin; and (3) denying the motion

for new trial that was based, in part, on these two rulings.

1. Testimony of Dr. Jackson

Defendant argues that Dr. Jackson testified to several opinions and

conclusions that were not contained within her medical records, and were thus in

violation of the discovery rules as set forth in La. C.Cr.P. art. 719(A). Specifically,

he argues that Dr. Jackson testified that delayed disclosures of abuse, absence of

physical findings, and an unemotional demeanor during questioning are all

common in child abuse victims, while none of these conclusions are contained

within the reports tendered in discovery. Defendant asserts that under such

circumstances, he was denied the opportunity to properly prepare to cross-examine

the expert or to obtain appropriate rebuttal testimony.

We disagree. To the extent that defendant contends that the State violated

the provisions of La. C.Cr.P. art. 719(A), by failing to produce reports as to Dr.

Jackson’s testimony at the third trial, the defendant does not indicate what

conclusions he is referring to. In addition, defendant did not object to Dr.

Jackson’s testimony on that basis during the trial, so in accordance with La.

C.Cr.P. art. 841, he may not make that argument on appeal.

Defendant further argues that Dr. Jackson’s opinions were not limited as

required by law to “general behavioral characteristics of child abuse victims.”

Defendant asserts that Dr. Jackson’s opinions often crossed the line into specific

23-KA-90 13

conclusions about this particular child’s physical examination findings, timing of

disclosure, and her demeanor during questioning.

With respect to the scope of expert witnesses, La. C.E. art. 702(A), entitled

“Testimony by experts”, provides:

A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:
(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and
methods; and
(4) The expert has reliably applied the principles and methods
to the facts of the case.

La. C.E. art. 704 further provides in pertinent part that “[h]owever, in a

criminal case, an expert witness shall not express an opinion as to the guilt or

innocence of the accused.”

The trial court’s decision to admit or exclude expert testimony is subject to

the “abuse of discretion” standard. State v. Thompson, 22-497 (La. App. 5 Cir.

1/18/23), 356 So.3d 1185, 1190; State v. Johnson, 10-209 (La. App. 5 Cir.

10/12/10), 52 So.3d 110, 121, writ denied, 10-2546 (La. 4/1/11), 60 So.3d 1248.

The Louisiana Supreme Court has recognized the validity and admissibility

of expert testimony relating to delayed disclosure in cases involving child abuse.

State v. Greene, 06-667 (La. App. 5 Cir. 1/30/07), 951 So.2d 1226, 1238, writ

denied, 07-0546 (La. 10/26/07), 966 So.2d 571. In State v. Tipton, 21-01478 (La.

10/16/21), 326 So. 3d 243, the Louisiana Supreme Court further recognized:

In a prosecution for sexual offense(s) committed against a child,
expert testimony of general characteristics that would explain delays in
reporting, inconsistent reports, omissions of details, reluctance to testify,
demeanor, and recantations is generally admissible provided that it meets the
requirements of the Code of Evidence and does not invade the jury’s
province of determining credibility or otherwise violate the prohibitions
contained in State v. Foret, 628 So.2d 1116 (La. 1993); State v. Chauvin,
2002-1188 (La. 5/20/03), 846 So.2d 697.

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We conclude that the trial court did not abuse its discretion in admitting Dr.

Jackson’s testimony. Dr. Jackson testified that there were no physical findings

related to M.G.’s statement of sexual abuse and that the physical findings were

normal. She explained that everything being normal did not mean that sexual

abuse did or did not occur. She stated that when she sees children for possible

sexual abuse, most of the time there is not a physical finding because of the child’s

anatomy. She agreed that a delay in disclosure adds to the likelihood that there

will not be a physical finding. Dr. Jackson explained that a disclosure may change

over time depending on several things such as how someone reacts to the

disclosure. Dr. Jackson provided that a disclosure is a process and that most kids

do not disclose when something first happens. Instead, it is common for victims of

child sexual abuse to wait to disclose it until they are in a safe environment. She

said that it was not uncommon for a victim of child sexual abuse to have a

“bubbly” or matter-of-fact affect and that such an affect was not indicative of

whether or not abuse occurred. Dr. Jackson testified only generally and did not

reach any specific conclusions about the physical findings, timing of disclosure, or

demeanor of M.G. She did not testify as to whether abuse occurred or whether

M.G. was credible. The trial court did not abuse its discretion with respect to the

testimony of Dr. Jackson.

2. Disallowance of testimony of Dr. Pellegrin

Defendant argues that the trial court erroneously excluded the testimony of

his expert, Dr. Alicia Pellegrin. Defendant asserted that this was apparently

because the trial court relied upon a mistaken belief that it had previously ruled

that Dr. Pellegrin was not qualified as an expert witness. Defendant further

contended that she would have rebutted Dr. Jackson’s conclusions.

During the trial, after the conclusion of the State’s case and out of the

presence of the jury, the trial court allowed defense counsel to call Dr. Pellegrin

23-KA-90 15

and to proffer testimony regarding her qualifications. She testified via Zoom due

to having COVID. She described her education, which included a graduate degree

in clinical psychology, and that she had worked in forensic evaluations for the last

20 years. She testified that she had been qualified as a clinical psychologist, and as

an expert in child custody evaluations, sex offender evaluations, and child sex

abuse evaluations. Dr. Pellegrin testified that she had reviewed the testimony of

Dr. Jackson on the previous day. The defense tendered her as an expert in forensic

and clinical psychology and child sexual abuse evaluations.

On cross-examination on her qualifications, she acknowledged that she was

being offered as an expert to testify concerning the testimony of Dr. Jackson. The

trial court also questioned Dr. Pellegrin. The trial court further ruled as follows:

All right. The defense has offered Dr. Pellegrin as an expert in the
field of forensic clinical psychology and child sex abuse evaluations. The
Court finds that she is indeed an expert based upon her testimony and her
CV in forensic clinical psychology and child sex abuse evaluation. The
Court has repeatedly asked defense what her testimony will be. And the
answer that I have gotten back consistently and without fail is that she is
going to contradict the -- or clarify or emphasize her differences
with Dr. Jackson’s testimony yesterday. However, when I went through the
three areas of contention by Dr. Pellegrin with Dr. Jackson's testimony, Dr.
Pellegrin agreed with the Court that Dr. Jackson did not testify to any of the
conclusions that Dr. Pellegrin has listed in her report.

Therefore, based upon the representations of defense as to what Dr.
Pellegrin’s testimony would be – after repeated requests to let me know
what her testimony was going to be – and the admittance of the expert
herself that the testimony she sought to contradict was not testified to
yesterday, I am going to not allow her to testify.

The trial court went out of its way to consider Dr. Pellegrin’s testimony,

including letting her testify viz Zoom because she had COVID. The trial court

conducted an extensive evaluation as to Dr. Pellegrin’s qualifications and the

subject matter of her testimony.

Contrary to defendant’s argument, the trial court did qualify her as an expert

in forensic clinical psychology and child sex abuse evaluation. Her testimony was

disallowed because the purpose of her testimony was to rebut the testimony of Dr.

23-KA-90 16

Jackson. Dr. Pellegrin acknowledged that Dr. Jackson did not testify as to any of

the conclusions that Dr. Pellegrin listed in her report. Further, as discussed

previously, Dr. Jackson did not make any conclusions as to whether sexual abuse

occurred. Thus, there was no need for any rebuttal testimony by Dr. Pellegrin.

The trial court did not abuse its discretion in disallowing the testimony of Dr.

Pellegrin.

B. Denial of defendant’s motion to admit evidence of prior false allegations
of sex abuse

In assignments of error numbers 1, 2, and 6, defendant argues that the trial

court erred in denying his motion to admit evidence of prior false allegations of sex

abuse and in denying his motion for new trial. He asserts that these rulings

improperly infringed upon his right to present a defense.

On October 10, 2019, prior to the first trial, the State filed a Motion in

Limine to Preclude Questioning Victim about Prior Allegations of Sexual Assault

Pursuant to Louisiana Code of Evidence 412. The State moved to prevent any

questioning of M.G. about Brian and Rashad, asserting that neither matter was

investigated. On December 9, 2019, the trial court granted the State’s motion in

limine without opposition.

Defendant’s assertions as to prior false allegations were contained in his

Motion to Admit Evidence of Prior False Allegations Pursuant to State v. Smith,

filed on June 14, 2021. The motion asserts that M.G.’s first allegation that

defendant had sexually abused her was made in January 2017 in an initial forensic

interview. Defendant argues that during the January 12, 2017 interview, she

denied any physical touching by defendant, but did allege that her cousin Rashad

touched her vagina and made her touch his penis. Defendant further argues that on

August 16, 2017, during the interview by Dr. Jackson when she made a second

disclosure alleging that defendant had sexually abused her, she also alleged

23-KA-90 17

physical touching, including touching of her vagina, by her mother’s former

boyfriend, Brian. But when asked that day if anyone other than defendant or Brian

had touched her, M.G. denied it, and did not mention her cousin Rashad. 3 Then,

during the forensic interview on August 30, 2017, M.G. again alleged that Brian

physically touched her, but this time she denied that he touched her vagina.

During that interview, defendant alleges that she was asked if anyone else had

touched her, and she again denied it, which contradicted her prior allegation

against Rashad. Defendant submits that he should have been permitted to impeach

M.G. about these alleged inconsistencies.

At the hearing on defendant’s motion on June 28, 2021, the trial court

referred the matter to the Court’s previous ruling of December 9, 2019, when the

trial court granted the State’s motion in limine to preclude questioning about prior

allegations of sexual assault. During the trial, defense counsel inquired about

whether M.G. had seen other men’s penises before. The trial court sustained the

State’s objection on the grounds that it had already ruled that the evidence was

inadmissible.

A defendant has a constitutional right to present a defense. Washington v.

Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Sixth

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

Constitution guarantee an accused in a criminal prosecution the right to be

confronted with the witnesses against him. State v. Stalling, 19-336 (La. App. 5

Cir. 1/29/20), 290 So.3d 332, 340, writ denied, 20-00326 (La. 7/24/20), 299 So.3d

76; State v. Zeringue, 03-697 (La. App. 5 Cir. 11/25/03), 862 So.2d 186, 195, writ

denied, 03-3523 (La. 4/23/04), 870 So.2d 298. The primary purpose behind this

right is to secure for the defendant the opportunity for cross-examination. Davis v.

3
The trial record does not contain any evidence of M.G.’s statements regarding Brian or Rashad made
during forensic interviews on January 12, 2017 in Mississippi, on August 16, 2017 to Dr. Jackson, or on
August 30, 2017 to Ms. Millet. Apparently only redacted exhibits were admitted at the trial.

23-KA-90 18

Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The right to present

a defense and to confront witnesses includes the right of a defendant to attack the

credibility of a witness by examining him or her concerning any matter having a

reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E.

art. 607(C).

The right of an accused sex offender to present a defense is, however,

balanced against the victim’s interests under La. C.E. art. 412 (the rape shield

statute), which is meant to protect the victim of sexual assault from having her

sexual history made public. State v. Zeringue, supra. La. C.E. art. 412 prohibits

evidence regarding the past sexual behavior of the victim in sexual assault cases,

except when there is an issue of whether the accused was the source of semen or

injury, and when the past sexual behavior is with the accused and there is an issue

of whether the victim consented to the charged sexually assaultive behavior.

Article 412 does not apply when a defendant attempts to use evidence of a victim’s

alleged false allegation of improper sexual behavior to impeach the victim’s

credibility. State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 202–03; State v.

Bolden, 21-283 (La. App. 5 Cir. 6/30/21), 325 So.3d 602, 605. However, the

admissibility of such evidence is still subject to all other standards for admissibility

under La. C.E. arts. 403, 404, 607, 608, and 613. State v. Cervantes, 18-535 (La.

App. 5 Cir. 2/27/19), 266 So.3d 569, 573, writ denied, 19-00662 (La. 9/24/19), 279

So.3d 931; State v. Bolden, 325 So.3d at 605.

The trial court’s determination regarding the relevancy and admissibility of

evidence will not be overturned on appeal absent a clear abuse of discretion. State

v. Cervantes, 266 So.3d at 573. When considering the admissibility of alleged

prior false allegations, the question for the trial court is not whether it believed that

the prior allegations were false, but whether reasonable jurors could find, based on

the evidence presented by the defendant, that the victim had made prior false

23-KA-90 19

accusations and whether all other requirements of the Code of Evidence had been

satisfied. State v. Smith, 743 So.2d at 203, 204.

In Smith, cited by defendant, the victim admitted that she had previously

made accusations of improper sexual behavior against her cousin, who was not the

defendant. Two witnesses corroborated this. Another witness testified, however,

that the victim had recanted the accusations. The Louisiana Supreme Court

concluded that because the entire outcome of the case rested upon the jury’s

perception of the victim’s veracity, the trial court should have allowed the

testimony so the jury could determine if the victim had made false allegations in

the past, and that the trial court’s failure to do so was not harmless error.

Similarly, in State v. Cervantes, 266 So.3d at 574, we stated that “[t]his Court has

consistently upheld the trial court’s grant of the State’s motion in limine, where the

victim has not recanted the earlier allegation and there is no independent witness to

testify that the allegation was false.” In the pending case, defendant never showed

or attempted to show that M.G.’s allegations against others were false, and there

was no independent witness to testify that the allegations were false.

Further, the fact that no criminal charges were brought is not determinative

that a victim’s allegations are false. See State v. Bolden, 325 So.3d at 606 (“The

fact that no charges have been brought against T.S. in Orleans Parish is not

determinative that A.T.'s allegations against him are false.”)

Defendant attempts to rely upon the fact that M.G. did not consistently

mention prior allegations throughout her interviews. However, this is not evidence

of previous false statements. See State v. Bolden, 325 So. 3d at 606 (“. . . the

defendant only argued that the victim's reports of the other allegation were

inconsistent, which was not evidence that the victim's prior allegation of abuse was

false.”)

23-KA-90 20

Finally, even if M.G. had made statements that Brian or Rashad touched her,

the statements would have been made when she was eight years old and in

circumstances in which she was being interviewed in connection with allegations

of abuse against defendant.

Defendant did not meet his burden of establishing that reasonable jurors

could find that M.G. made prior false statements based on the evidence presented

by defendant. Defendant’s assignments of error on this issue are without merit.

C. Alleged Errors Regarding Sentencing

In assignments of error numbers 7, 8, and 9, defendant argues that the trial

court erred by (1) increasing, without cause, defendant’s sentence following his

successful appeal after the first trial; (2) imposing an excessive sentence; and (3)

denying the motion to reconsider sentence.

These arguments are pretermitted based upon the errors patent discussion

below.

ERRORS PATENT REVIEW

We reviewed the record for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990). The following require corrective action.

La. C.Cr.P. art. 14:81(H)(2) provides that whoever commits the crime of

indecent behavior with juveniles on a victim under the age of thirteen when the

offender is seventeen years of age or older shall be punished by imprisonment at

hard labor for not less than two nor more than twenty-five years. It further

provides that “[a]t least two years of the sentence imposed shall be served without

benefit of parole, probation, or suspension of sentence.”

The trial court’s sentence did not restrict benefits for any portion of the

sentence.

23-KA-90 21

Generally, when a trial court does not mention the restriction of benefits,

such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.

State v. Cepriano, 21-262 (La. App. 5 Cir. 3/30/22), 339 So.3d 32, 47; State v.

Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228. However, in

this case, the trial court’s failure to impose the statutory restrictions is not cured by

La. R.S. 15:301.1 because the portion of the sentence to be served without benefits

is left to the discretion of the trial court.

Accordingly, we vacate the sentence as to count three and remand the matter

for resentencing.

DECREE

For the foregoing reasons, defendant’s conviction on count three is affirmed.

Defendant’s sentence on count three is vacated, and the case is remanded to the

trial court for resentencing in conformity with this opinion.

CONVICTION AFFIRMED; SENTENCE ON
COUNT THREE VACATED; REMANDED FOR
RESENTENCING ON COUNT THREE

23-KA-90 22

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
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-90
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) GWENDOLYN K. BROWN (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053