State of Louisiana v. Charles Ray Dyas, Jr.

Judgment rendered January 13, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,597-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHARLES RAY DYAS, JR. Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 322,453

Honorable Katherine Dorroh, Judge

*****

THE HATCH LAW FIRM, LLC Counsel for Appellant
By: Christopher Hatch

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

JASON WALTMAN
NANCY BERGER-SCHNEIDER
MALLORY RICHARD
Assistant District Attorneys

*****

Before PITMAN, THOMPSON, and BLEICH (Pro Tempore), JJ.

THOMPSON, J.

This criminal appeal arises from the First Judicial District Court,

Caddo Parish, the Honorable Katherine Dorroh presiding. Following a trial,

Charles Ray Dyas, Jr. was convicted by unanimous jury verdict of one count

of sexual battery, victim under age 13, in violation of La. R.S. 14:43.1.

Dyas received a sentence of 45 years at hard labor, with the first 25 years

without benefit of parole, probation or suspension of sentence. Timely

motions for post-verdict judgment of acquittal and new trial were denied.

This appeal follows.

Dyas appeals his conviction, arguing that the evidence was

insufficient to convict him, that the trial court abused its discretion by

denying funding for an expert, that the trial court abused its discretion by

ruling that proposed expert testimony was irrelevant, and that his

constitutional rights were violated due to Brady violations. For the

following reasons, Dyas’ conviction and sentence are affirmed.

FACTS

On March 18, 2014, the Shreveport Police Department sex crimes unit

received a complaint that Charles Ray Dyas, Jr. had been sexually assaulting

his two stepchildren, N.D. and D.D. Both alleged victims were juveniles

under the age of 13 at the time of the alleged offenses. On March 20, 2014,

interviews were arranged at the Gingerbread House children’s advocacy

center with the children and their mother, L.J. L.J., the defendant’s wife,

informed SPD Detective De’Andre Belle (“Det. Belle”) that she and her

family discovered the abuse by reading text message conversations between

N.D. and her best friend, wherein N.D. confided to her friend that her

stepfather had been sexually assaulting her for the past three years.

By the first bill of information, filed on May 20, 2014, Dyas was

charged with two counts of aggravated incest under La. R.S. 14:78.1(A),

(B)(2) & (D)(2). However, by amended bill of information, Dyas’ charges

were subsequently changed to two counts of sexual battery of a victim under

the age of 13 under La. R.S. 14:43.1(A)(1) & (C)(2).1 At issue in the

assignments of error raised by Dyas is the absence of proof of vaginal

penetration of the alleged victims. Neither charge requires such penetration

for conviction.

On April 22, 2019, jury trial commenced. The evidence included the

testimony of numerous witnesses, including family members, law

enforcement personnel, expert medical personnel, and the defendant, as

follows:

The maternal grandmother of N.D. and D.D testified at trial. The

grandmother testified that she did not approve of her daughter’s and Dyas’

relationship from the start because they were cousins. She testified that N.D.

and the other children lived with her during the week and stayed at their

mother’s residence on the weekends. She testified that N.D. seemed

reluctant to return to her mother’s house on the weekends and that she

noticed N.D. staying in her room more and more, spending significant time

on her Kindle Fire tablet, which was unusual for her. The grandmother told

L.J. about this behavior, and L.J. discovered the text message conversation

1
Dyas was found not guilty of the charge relating to his younger stepdaughter,
D.D.

2

between N.D. and her best friend, L.B., regarding ongoing sexual abuse by

Dyas. She testified that Dyas was never welcome in her home, even prior to

the sexual abuse allegations.

L.J. testified that she is the mother of N.D. and D.D. and that she first

dated Dyas when she was 15 and he was 17 or 18, against her mother’s

wishes. Dyas then moved to Virginia in 1999. They rekindled their

relationship around 2006 upon his return to Shreveport. By that time, L.J.

had given birth to N.D., D.D., and one other child from a previous

relationship. L.J. and Dyas were married in 2010. L.J. testified that she

worked the night shift at restaurants and that her children went back and

forth between her mother’s home and her home, staying with Dyas.

L.J. testified that on March 14, 2014, she went to her mother’s house

to pick up N.D. The grandmother told her that N.D. had been spending a lot

of time on her Kindle. L.J. asked N.D. to give her the Kindle, and she

accessed it through a passcode. Upon accessing the Kindle, text messages

between N.D. and her best friend, L.B., appeared on the screen. L.J. read the

text messages, and the nature of the conversation was that N.D. was being

abused. L.J. questioned N.D., who was embarrassed and reluctant to talk.

About ten minutes after discovering the text messages and speaking with

N.D., L.J. called the police and requested that they respond to her and Dyas’

residence. L.J. testified that she accompanied her children to the

Gingerbread House, and spoke with Det. Belle there. Afterwards, she took

N.D. and D.D. to be examined by a doctor at the CARA Center.

On cross-examination, L.J. testified that she is still legally married to

Dyas, because obtaining a divorce is expensive. She also admitted to

writing him love letters in jail. L.J. confirmed her prior testimony from the
3

preliminary examination hearing that she did not see any signs that her

children were being abused by Dyas. She confirmed she was the person to

involve the police based upon her concerns.

N.D. testified that she is now 17 years old and a senior in high school,

but that she was about 8 years old when her mother first began dating Dyas.

Dyas moved into their apartment on North Market Street in Shreveport when

she was around 9 years old. N.D. went back and forth between her mother’s

residence and her grandparents’ residence. When Dyas first moved in with

her family, she thought he was nice and saw him as a father figure.

N.D. further testified that the first time Dyas touched her was at the

apartment on North Market Street while playing video games together. She

stated that Dyas touched her “in my area.” Only she and Dyas were in the

home. N.D. stated “he touched my vagina outside my clothes.” She stated

that Dyas used his hands and tried to rub on her. Dyas did not touch N.D.

again at the apartment on North Market Street. She testified that the second

time Dyas touched her, she was 10 years old, and they had moved to a new

residence on Youree Drive. That time, N.D. was again alone with Dyas at

home. He came into the room where she slept and touched her over her

clothes in her vaginal area. N.D. testified that she did not say anything to

her mother about either of these instances because she was afraid and “didn’t

want to be a problem.”

When N.D. turned 11, the family had moved to yet another address,

on Timothy Circle. N.D. stated that she was going into the 6th grade and had

started her menstrual cycle that summer. She testified it was at that time that

everything escalated. Prior to the move to Timothy Circle, she spent much

of her time at her grandparents’ home. N.D. testified that when she turned
4

12, she spent more time at her mother’s residence on Timothy Circle. N.D.

testified that Dyas would come into her bed and “put his hand under the

cover and touch on me while I was laying down.” N.D. testified that Dyas

used his hands, and would touch her vaginal area, and his fingers would go

inside her vagina. N.D. testified that she “can’t even count” the number of

times this occurred at the Timothy Circle location. She said it happened

“pretty much every time I went over there.” N.D. testified that he would try

to take her hand or foot and rub it against him, on his penis. When asked

why she did not tell anyone about what was happening with Dyas, N.D.

testified that she was scared of what would happen if she told, and she did

not want anyone to get hurt. N.D. testified that about a month prior to her

family’s becoming aware of the abuse, Dyas attempted to penetrate her with

his penis. N.D. was in the bedroom when Dyas came into the room with her

and pulled her shorts down, and Dyas pulled his penis out of his shorts.

From March 12 to 14, 2014, N.D. testified that she had her Kindle at

her grandparents’ residence, she connected to the Wi-Fi and used a text

messaging app to send text messages to her best friend, L.B. N.D. testified

that her mother found the text messages between her and L.B. on the Kindle.

N.D.’s mother asked her if the text messages about Dyas were true, and she

told her mother yes.

Over two days, on cross-examination, defense counsel took N.D.

through almost the entire text message conversation with L.B. (which

included a significant amount of slang terms/spellings and some profanity).

N.D. was questioned about the text messages she sent to L.B. saying that she

had a secret to tell, and urging L.B. to never tell anyone her secret. N.D.

read aloud many of the messages she had sent, telling her friend about the
5

times that Dyas had inappropriately touched her. All of the text messages

that N.D. read aloud revealed an emotional conversation between the two

friends about the sexual assault allegations.

N.D. testified that every night she stayed at Timothy Circle, Dyas

touched her with his hands. N.D. described the first and only time that Dyas

attempted to penetrate her with his penis: “he tried to put his penis in me and

it wouldn’t go, and I was really – I really started moving a lot and fidgeting

and stuff, and so he stopped.” N.D. testified that when Dyas put his fingers

inside of her, it was painful every time. N.D. testified that Dyas also

attempted to perform oral sex on her.

L.B. testified at trial, confirming the authenticity of the text message

conversation between her and N.D. from March 12-14, 2014. L.B. testified

that she went to the Gingerbread House and had an interview about the

conversation she had with N.D. She also produced her phone containing the

text messages to police at the Gingerbread House in March 2014.

D.D., N.D.’s younger sister and Dyas’ other stepdaughter, testified

that her relationship with Dyas began to change around the time she turned

10 and she entered puberty. D.D. stated that he began “touching and

fondling” her on her chest, vagina, and lips. Dyas would come into the

bedroom where she was sleeping at night and sit next to her bed and touch

her. D.D. stated that he would move her underwear to the side and touch her

with his fingers. She estimated Dyas touched her more than six times. All

of the incidents occurred at the residence on Timothy Circle. D.D. testified

that she was under 13 years of age when the touching occurred. D.D. did

not report the touching to anyone. She stated that her “confidence kind of

depleted, so – and I didn’t feel like myself. I didn’t feel like myself. I didn’t
6

like myself, so I kind of hid that part of me.” She did not want to report the

abuse and disappoint her mother, who seemed happy. D.D. stated that she

had a feeling that Dyas was also touching her sister, N.D., because she

noticed N.D.’s behavior changed when she was around him.

On cross-examination, D.D. stated that prior to the discovery of

N.D.’s text messages, she did not have any knowledge of Dyas touching her

sister. D.D. did not remember ever witnessing Dyas touch N.D. After the

police were called following the discovery of N.D.’s text messages, D.D.

admitted to her mother and her grandmother that Dyas had also touched her.

Following their interviews at the Gingerbread House, Dr. Shelia

Farrell, a board-certified child abuse pediatrician, conducted the physical

examinations of N.D. and D.D. at the Christus CARA Center (a medical

treatment center for abused children). Dr. Farrell testified that when

examining children who have been sexually abused, there are often no

“physical findings” of penetration. When she examined N.D., the physical

examination results were normal. Despite having a normal exam, Dr. Farrell

stated that “the majority of children that disclose sexual abuse are going to

have normal exams.” In her report regarding N.D.’s physical examination,

Dr. Farrell noted “genital-to-genital contact.” This statement by N.D. to Dr.

Farrell was consistent with the report of the attempted penetration of N.D.

by Dyas with his penis. Dr. Farrell testified that she uses a stick figure to

help children indicate where contact occurred when obtaining a report. Dr.

Farrell testified that D.D. also had a normal physical examination.

On cross-examination, Dr. Farrell stated that she did not remember the

exact words that N.D. used to describe the abuse. She explained that her

conversations with the children are not detailed, and it is difficult for the
7

children to talk about abuse. Her role is to obtain the information she needs

in order to conduct an examination of the child’s body and determine

whether the child is safe and healthy. Dr. Farrell testified that she did not

see any damage to any part of N.D.’s anatomy, including her hymen.

Det. Belle also testified, describing his job duties with the Shreveport

Police Department as including the investigation of sexual assaults with

adult and juvenile victims. Det. Belle testified that when a victim is a child,

the police do not conduct the interview. The children are taken to the

Gingerbread House to be interviewed. At the Gingerbread House, he sits in

an adjacent room and is able to see and hear the interview over closed circuit

television. Det. Belle testified that he arranged for the interviews of N.D.

and D.D. at the Gingerbread House. He did not conduct the interviews of

N.D. or D.D. Det. Belle testified that he completed the “history” portion on

the CARA center physical examination form for N.D, which provided:

“N.D. stated that her stepfather, Charles Dyas, has been touching her and her

sister D.D.’s vagina for the past three years. N.D. also advised he has had

vaginal sex with her five times in the past three years.”

Det. Belle admitted at trial that he did not complete the history portion

of the form until after he spoke with Dr. Farrell following N.D.’s exam.

Prior to the trial, Det. Belle provided a supplement to his original report that

provided that N.D. said “attempted” intercourse.2

2
Outside the presence of the jury, a discussion was had relating to Belle’s
supplemental report. Prior to the trial, the district attorney asked Belle if he was certain
about his report of vaginal intercourse with N.D., because it was the only place in the
record that it appeared, and it did not match the district attorney’s pretrial interviews of
the children or the Gingerbread House interviews. This pretrial discussion between the
district attorney and Belle resulted in the submission of the January 7, 2019, supplement
regarding “attempted” intercourse. The trial judge determined that the issue of the
supplemental report could be appropriately resolved during Belle’s cross-examination.
8

On cross-examination, Det. Belle was asked about prior testimony

during a preliminary examination hearing on June 3, 2014. Det. Belle stated

that he remembered testifying that Dyas had vaginal sex with N.D. five

times. He confirmed that he completed his original report only after

speaking with Dr. Farrell following N.D.’s physical exam. Det. Belle

testified that the district attorney called him and asked him about the

statements contained in his report from 2014. He reviewed his report and

Dr. Farrell’s report, and determined that N.D. could have said “attempted”

vaginal intercourse. Therefore, he prepared the supplemental report to

correct the error.

Alex Person is a forensic interviewer at the Gingerbread House.

Person confirmed that she conducted both N.D. and D.D.’s forensic

interviews, which were recorded, and the videos were played for the jury.

The state rested the presentation of their case at this point.

Charles Dyas testified in his own defense. Dyas testified that his wife,

L.J., sent him several love letters in jail and continued their romantic

relationship through 2016. Dyas testified that N.D. and D.D.’s biological

father had threatened to kill him in the past. Dyas denied having any sexual

contact with his stepdaughters, and denied being sexually attracted to

children.

On cross-examination, Dyas confirmed that he was convicted of

sexual battery and animate object sexual penetration in the state of Virginia,

received a 15-year sentence, and that the victim in those cases was a

juvenile.

A unanimous jury convicted Dyas on Count One, sexual battery,

victim under age 13 relative to N.D. Dyas was found not guilty on Count
9

Two, related to the charges associated with D.D. On May 20, 2019, the trial

court issued a written ruling denying the defendant’s motion for a new trial.

On June 12, 2019, the trial court denied a motion for post-verdict judgment

of acquittal, and sentenced Dyas to forty-five 45 years at hard labor, with the

first twenty-five 25 years to be served without the benefit of parole,

probation or suspension of sentence. A timely motion to reconsider sentence

was filed and denied. This appeal followed, in which Dyas raises the

following four assignments of error:

1. The evidence adduced at trial is insufficient to support
defendant’s conviction for sexual battery.

2. The trial court abused its discretion when it denied
defendant’s motion for expert funding.

3. The trial court abused its discretion, and violated
defendant’s constitutional right to present a defense,
when it ruled that defendant’s proposed expert testimony
was “irrelevant” and inadmissible but permitted the
state to present an expert medical witness on precisely
the same issue.

4. Defendant’s conviction must be vacated under the due
process clause of the 14th Amendment to the United
States Constitution due to the failure of the state to
correct testimony that it knew to be false and because the
state failed to make, or failed to make timely, several
Brady disclosures to defendant.

DISCUSSION

Assignment of Error Number One: The evidence adduced at trial
is insufficient to support defendant’s conviction for sexual
battery.

Dyas argues that N.D.’s trial testimony was contradictory and

inconsistent with her Gingerbread House interview and prior statements to

police. For instance, Dyas argues that N.D. stated during her Gingerbread

House interview that Dyas never touched her with anything other than his

hands. However, at trial, N.D. testified that on one occasion he tried to
10

penetrate her with his penis. Further, he points out that in her text message

conversation with L.B., N.D. stated that “he hasn’t tried to have sex with

me,” but N.D. also told L.B. in the text messages that Dyas “raped” her.

Dyas asserts that N.D.’s trial testimony was internally contradictory and

irreconcilably inconsistent with her Gingerbread House interview and

statements to police, L.B., and Dr. Farrell. Dyas argues that the jury

exceeded the bounds of rationality when it relied on N.D.’s uncorroborated

testimony to convict him of sexual battery.

The state asserts that Dyas was a convicted sex offender with a

juvenile victim, and that the evidence indicated a lustful disposition of Dyas

toward N.D. The state further asserted Dyas had opportunity, as he was

often alone at his home with N.D. while her mother worked. N.D. described

in detail how Dyas used his hand to rub her private area by touching her both

outside of her clothes, and inside her clothes to rub her vaginal area and

penetrate her vagina with his fingers. Additionally, the examining

physician, Dr. Farrell, testified that she used the term “genital to genital

contact” on her report, and not vaginal intercourse, which are distinguishable

terminologies. She also testified that most children who are victims of

sexual abuse receive normal physical examination results. The state argues

that Dyas’ arguments using only certain sections of the entire text message

conversation between N.D. and L.B. do not rise to the level of proof of

internal contradiction or irreconcilable conflict. The jury was informed of

the reasons that inconsistencies might occur between initial interviews and

later explanations in the case of a juvenile victim. Defense counsel

conducted exhaustive cross-examination of witnesses on all of the issues

11

Dyas raises on appeal, which provided the jury with the ability to weigh the

evidence and assess the credibility of N.D.

Applicable Law:

The standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979), governs review of claims of insufficient evidence.

Under that standard, the relevant question is whether, after viewing the

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

fact could have found the essential elements of the crime beyond a

reasonable doubt. State v. Ellis, 14-1511 (La. 10/14/15), 179 So. 3d 586,

cert. denied, 136 S. Ct. 1462, 194 L. Ed. 2d 553 (2016). The Jackson

standard does not permit this Court to substitute its own appreciation of the

facts for that of the factfinder. State v. Crawford, 14-2153 (La. 11/16/16),

218 So. 3d 13. It is not the province of the reviewing court to assess the

credibility of witnesses or reweigh evidence. Id. Great deference is given to

a jury’s decision to accept or reject the testimony of a witness in whole or in

part. State v. Jones, 45,450 (La. App. 2 Cir. 8/11/10), 46 So. 3d 711, writ

denied, 10-2082 (La. 2/11/11), 56 So. 3d 1000; State v. Eason, 43,788 (La.

App. 2 Cir. 2/25/09), 3 So. 3d 685, writ denied, 09-0725 (La. 12/11/09), 23

So. 3d 913, cert. denied, 561 U.S. 1013, 130 S. Ct. 3472, 177 L. Ed. 2d 1068

(2010).

Where there is conflicting testimony about factual matters, the

resolution of which depends upon a determination of the credibility of the

witnesses, the matter is one of the weight of the evidence, not its sufficiency.

State v. Sanderson, 49,957 (La. App. 2 Cir. 7/22/15), 174 So. 3d 149; State

v. Echols, 39,754 (La. App. 2 Cir. 6/29/05), 907 So. 2d 263; State v. Allen,

36,180 (La. App. 2 Cir. 9/18/02), 828 So. 2d 622, writs denied, 02-2595 (La.
12

3/28/03), 840 So. 2d 566, 02-2997 (La. 6/27/03), 847 So. 2d 1255, cert.

denied, 540 U.S. 1185, 124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004).

The testimony of the victim of sexual assault is alone sufficient to

convict the defendant. State v. Rives, 407 So. 2d 1195 (La. 1981); State v.

Berry, 51,213 (La. App. 2 Cir. 5/17/17), 221 So. 3d 967; State v. Sanderson,

supra. Such testimony alone is sufficient even where the state does not

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

of the offense by the defendant. State v. Berry, supra; State v. Sanderson,

supra.

At the time of this offense, the relevant portions of sexual battery

were defined in La. R.S. 14:43.1 in pertinent part as follows:

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, 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, when any
of the following occur:

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

....

C. (2) Whoever commits the crime of sexual battery on a victim
under the age of thirteen years when the offender is seventeen
years of age or older shall be punished by imprisonment at hard
labor for not less than twenty-five years nor more than ninety-
nine years. At least twenty-five years of the sentence shall be
served without benefit of parole, probation, or suspensive of
sentence.

Application of Law to Facts:

Review of the evidence in the light most favorable to the state

supports the sexual battery conviction. If believed, N.D.’s testimony alone

supports the verdict of the jury. The jury was free to weigh the evidence and

make a credibility determination about N.D.’s claims after considering any

13

inconsistencies in her testimony regarding if, how and when any illegal

touching occurred. Great deference is given to a jury’s decision to accept or

reject the testimony of a witness in whole or in part, and this Court will not

re-evaluate the credibility of witnesses or re-weigh the evidence.

Despite any inconsistencies in N.D.’s text messages, Gingerbread

House interview, and trial testimony regarding the exact nature of the

touching, N.D. consistently reported and testified at trial that Dyas touched

and digitally penetrated her vagina with his fingers. Any minor

inconsistencies are not sufficient to warrant the rejection of N.D.’s testimony

as competent evidence of Dyas’ guilt. See State v. Joyner, 50,740 (La. App.

2 Cir. 6/22/16), 197 So. 3d 724, writ denied, 16-1493 (La. 6/16/17), 219 So.

3d 1111. Evidence that Dyas touched and digitally penetrated N.D.’s vagina

is sufficient proof that Dyas was guilty of the crime of sexual battery. State

v. Ordonez, 16-619 (La. App. 5 Cir. 3/15/17), 215 So. 3d 473; State v.

Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So. 3d 1227; State v.

Perkins, 11-162 (La. App. 5 Cir. 12/28/11), 83 So. 3d 250. Thus, this

assignment of error has no merit.

Assignment of Error Number Two: The trial court abused its discretion
when it denied defendant’s motion for expert funding.

Dyas argues that his request for expert funding was wrongfully denied

by the trial judge. Dyas filed an ex parte motion for expert funding so that

he could introduce expert testimony to challenge the state’s medical expert

testimony that the lack of damage to N.D.’s genitalia and/or hymen was not

probative of whether she had been sexually abused. Dyas sought to

introduce expert testimony to show that if he had engaged in vaginal

14

intercourse with his stepdaughter, it is likely there would have been

observable anatomical damage.

On April 5, 2019, during pretrial hearings, the trial judge issued a

lengthy oral ruling, detailing her reasons for denial of Dyas’ ex parte motion

for expert funding. The judge noted:

[T]he state has never charged or claimed that Mr.
Dyas has had sexual intercourse with any of these
children. That was contained in an affidavit
submitted by Detective Belle that obviously was
not supported by the evidence that the State
reviewed because he was charged later with sexual
battery as the case developed.

The judge also analyzed pertinent language in State v. Touchet, 93-

2839 (La. 9/6/94), 642 So. 2d 1213, which Dyas cited in support of his

motion for expert funding. Specifically, the trial judge stated that Dyas

omitted the fact that he first needed to prove that the expert would assist in

his defense. The judge stated:

Defendant is correct in that Touchet states the
procedure to follow when an indigent defendant
wants to hire an expert witness, but the defendant
conveniently leaves out the fact that he first needs
to prove that the expert would assist in his defense.
Given that the elements of the crime alleged here
which is sexual battery, the Court is not convinced
that an expert would assist […] in Mr. Dyas’
defense or that an expert opinion is even relevant
to the elements of the crime of the facts of the
case. . . . The Court concludes that the defendant
has not demonstrated that there exists a substantial
question that requires expert testimony for its
explication.

What we have in this case are factual issues.
Perhaps inconsistencies [are] what they should be
called in what was reported, when and to whom.
The issues before the Court are credibility calls
that the trier of fact must resolve. Expert testimony
for this is not required to resolve any of those
issues. Cross-examination of the State’s witnesses

15

is all that is necessary to present the credibility call
to the jury.

The trial judge analyzed the standard set forth in State v. Touchet,

supra, and found that a defendant must establish with a reasonable degree of

specificity that the assistance is required to answer a substantial issue or

question that is raised by the prosecution’s case or to support a critical

element of the defense. The trial judge concluded that Dyas had not

demonstrated “that there exists a substantial question that requires expert

testimony for its explication.” The trial judge found that factual issues and

inconsistencies existed regarding exactly what type of sexual abuse was

reported, and to whom. Those factual issues did not require expert medical

opinion, but rather amounted to determining and assigning credibility of the

witnesses, which were to be determined by the trier of fact. The trial judge

noted that Dyas could cross-examine Dr. Farrell, the examining physician,

regarding her opinions, her examination, and the studies upon which she

relied to form her opinions, as well as Detective Belle and N.D. herself.

On appeal, Dyas argues that this evidence would support his “theory

of the defense” that the allegations made by N.D. were fabrications which

were also inconsistent with the lack of any damage to her genital anatomy.

Dyas argues that this evidence was not offered to prove or disprove an

element of the charged offense, but to demonstrate that N.D.’s allegations of

sexual intercourse were false.

The state argues that the trial court did not abuse its discretion in

denying expert funding. The state notes that it never claimed Dyas had

sexual intercourse with N.D., nor did the Gingerbread House interview with

N.D. mention vaginal intercourse. In addition, Dr. Farrell’s report refers to

16

genital to genital contact, but did not mention vaginal intercourse. The

credibility issues related to Det. Belle’s report were properly addressed at

trial through the testimony of various witnesses. The state asserts that Dyas

had not established with a reasonable degree of specificity that the assistance

of an expert was required to answer a substantial issue or question raised in

the prosecution’s case, or to support a critical element of the defense.

Applicable Law:

Due process protections afforded under the Fourteenth Amendment

provide that justice requires that an indigent defendant must not be denied a

meaningful and fair opportunity to present his defense. State v. Touchet,

supra. In order to provide an indigent with that opportunity, courts have

required the state to provide to the indigent defendant cost-free assistance of

court-appointed trial counsel. State v. Touchet, supra at 1214-15. Counsel

must also be effective, and effective assistance requires that an indigent

defendant’s counsel be provided with the basic tools of an adequate defense

at no cost to the indigent defendant. Id.

The Touchet court also observed that various types of expert

assistance have been found crucial to an indigent person’s defense and held

that the indigent defendant should establish that the expert assistance will be

necessary to the construction of an effective defense. Id. at 1215. State v.

Touchet, supra, requires that a defendant requesting a state-funded expert

must establish that “there exists a reasonable probability both that an expert

would be of assistance to the defense and that the denial of expert assistance

would result in a fundamentally unfair trial.” Id. at 1216. “To meet this

standard, a defendant must ordinarily establish, with a reasonable degree of

specificity, that the assistance is required to answer a substantial issue or
17

question that is raised by the prosecution’s case or to support a critical

element of the defense.” Id.

A standardized and generalized motion for funding for ancillary

services will not suffice for the particularized motion required to obtain

funding for an expert witness. See State v. Burnham, 41,146 (La. App. 2

Cir. 10/11/06), 942 So. 2d 571, writ denied, 06-2736 (La. 6/15/07), 958 So.

2d 1186.

Application of Law to Facts:

The trial judge did not err in finding that Dyas failed to show with a

reasonable degree of specificity that expert testimony relating to N.D.’s lack

of anatomical damage from sexual intercourse was necessary to put forward

a defense against N.D.’s claims. Dr. Farrell testified that physical indicators

of sexual abuse are not always present in abuse victims. In her experience,

most examinations of sexually abused children result in normal examination

findings. Additionally, many sexual abuse cases do not involve vaginal

penetration. Specifically, Dr. Farrell noted “genital-to-genital contact” in

N.D.’s report, but did not specify penetration or intercourse. Therefore, an

expert’s testimony on behalf of Dyas regarding a lack of physical findings in

N.D.’s examination would not have impacted his defense. Dyas based his

need for this type of expert testimony on the need to discredit N.D.’s

allegations of vaginal intercourse and penetration. However, the record does

not show that N.D. ever alleged that vaginal intercourse did in fact occur,

and the state was not required to prove vaginal intercourse to prevail on the

charge of sexual battery or even the original charge of aggravated incest.

Therefore, any lack of physical findings that would result from vaginal

intercourse would not have benefited the defense of the sexual battery
18

claims. Penetration is not an element of the crime with which Dyas was

ultimately convicted. This assignment is without merit.

Assignment of Error Number Three: The trial court abused its
discretion, and violated defendant’s constitutional right to present a
defense, when it ruled that defendant’s proposed expert testimony was
“irrelevant” and inadmissible but permitted the state to present an
expert medical witness on precisely the same issue.

At the trial, the trial judge granted the state’s oral motion in limine

regarding Dyas’ proposed medical expert3 related to vaginal penetration of

N.D. The trial judge stated: “there is no allegation that there has been

forcible vaginal intercourse.” Because there was no allegation of vaginal

intercourse, and because that was not an element of the crime for which

Dyas was charged, the trial judge ruled that expert testimony as to that issue

was not relevant.

Dyas argues that the trial court abused its discretion in denying the

admission of expert testimony on the issue of N.D.’s allegations of sexual

intercourse.4 Focusing on Det. Belle’s original report and preliminary

examination testimony, Dyas repeatedly urges the relevance of N.D.’s

allegations of sexual intercourse, and that if sexual intercourse had occurred,

there would be physical findings upon examination. Dyas argues that the

state was allowed to adduce expert opinion testimony that the lack of

damage to N.D.’s genital anatomy did not undermine her claims of being

3
Dyas claimed he was able to obtain an expert willing to testify pro bono
regarding the issue of lack of physical damage resulting from vaginal intercourse.
4
This writer notes that the charges of sexual battery did not require any
determination as to whether sexual intercourse occurred. Dyas repeatedly claims that
N.D. made claims that he engaged in vaginal intercourse with her; however, the record
does not indicate that N.D. herself ever alleged vaginal/sexual intercourse occurred.

19

abused, but the defendant was not allowed to contradict that testimony with

his own expert.

The State argues that Dyas’ expert testimony that physical damage

would occur with repeated sexual intercourse to a juvenile is not relevant,

when in fact, the juvenile testified there was no repeated sexual intercourse.

The testimony of the defense expert would not be relevant to the crime of

sexual battery as such testimony would not be of consequence to the

determination of the action. N.D.’s lack of anatomical damage is not

relevant when there is no evidence or claim by N.D. that sexual intercourse

ever occurred.

Applicable Law:

To be admissible, the evidence must be relevant to an issue material in

the case. A material issue is one which is of consequence or importance to

the case. Relevant evidence is that tending to show the commission of the

offense and the intent, or tending to negate the commission of the offense

and the intent. La. C.E. arts. 401, 402. A trial judge’s determination of the

relevancy of testimony is afforded great weight and will not be disturbed

absent an abuse of discretion. State v. Henderson, 46,057 (La. App. 2 Cir.

3/2/11), 58 So. 3d 552, writ denied, 11-0674 (La. 10/14/11), 74 So. 3d 216;

State v. Wiley, 614 So. 2d 862 (La. App. 2 Cir. 1993).

Application of Law to Facts:

Dyas focused his arguments on the initial report and a warrant

prepared by Det. Belle, to support his argued need for expert medical

testimony regarding physical damage that would result from vaginal

intercourse. Despite the confusion that existed throughout these proceedings

relating to Det. Belle’s “clerical errors” it is clear from the record that any
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imprecise police work cannot countervail the testimony of N.D. and the

evidence the state introduced at trial, which did not seek to prove that

vaginal intercourse occurred. Further, vaginal penetration was not an

element of the offense charged, sexual battery. The state’s expert, Dr.

Farrell, testified regarding her opinion that a lack of physical trauma did not

preclude the possibility that a child has been abused. In addition to her own

experience examining sexually abused children, she cited numerous studies

that also supported her expert opinion. Also, the trial court did not preclude

Dyas from offering any expert testimony that was potentially relevant to the

charged offense. The trial court did not abuse its discretion in ruling that

Dyas’ proposed medical expert testimony was irrelevant. Therefore, this

assignment of error is without merit.

Assignment of Error Number Four: Defendant’s conviction must be
vacated under the due process clause of the 14th Amendment to the
United States Constitution due to the failure of the state to correct
testimony that it knew to be false and because the state failed to make,
or failed to make timely, several Brady disclosures to defendant.

Dyas argues that the state failed to inform the jury that Det. Belle did

not actually discover his “clerical error” himself, that ultimately resulted in

the filing of his supplemental report changing N.D.’s allegation from

“vaginal intercourse” to “attempted” vaginal intercourse. Dyas asserts that

Det. Belle received a call from the assistant district attorney regarding this

discrepancy. Further, Dyas alleges that the state was aware that Det. Belle

never spoke to N.D. and failed to disclose that information. Dyas claims to

have been “blindsided” by the innumerable substantive changes to the state’s

case at trial, including previously mentioned claims related to “vaginal

21

intercourse” reports, as well as issues regarding the collection of the

evidence of the text message conversation from L.B.’s phone.

The state argues that it did supply notice to Dyas in a timely manner,

with the filing of supplemental discovery on January 7, 2019, which

contained Det. Belle’s supplemental report. Therefore, Dyas was not denied

due process, as the material was provided in sufficient time for effective use

at trial. The state asserts that there is no Brady violation where the evidence

is available from another source, because in such cases, there is really

nothing for the government to disclose. The state also asserts that Dyas fails

to show that the evidence rises to a level capable of lessening confidence in

the verdict in this case. The state disclosed the information of a discrepancy

in a timely manner, and the disclosure of the discrepancy did not contribute

any facts that discredited the testimony of N.D.

Applicable Law:

Suppression by the prosecution of evidence favorable to an accused

upon his request for such evidence violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963); State v. Allen, 52,708 (La. App. 2 Cir.

6/26/19), 277 So. 3d 460. Evidence is material “only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome. United

States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

The late disclosure of such evidence may also require a reversal if the

timing significantly impacted the defendant’s opportunity to effectively
22

utilize the material. However, a defendant shows no entitlement to relief if

the information was available to him through other means by the exercise of

reasonable diligence. State v. Green, 16-0107 (La. 6/29/17), 225 So. 3d

1033, cert. denied, 138 S. Ct. 459, 199 L. Ed. 2d 338 (2017).

Application of Law to Facts:

There is no indication in the record that the state withheld any

evidence from the defense in violation of Brady v. Maryland, supra. The

state provided a supplemental report correcting erroneous police work on the

part of the investigating officer, prior to the trial. Further, Dyas’ complaint

is immaterial. Det. Belle was thoroughly cross-examined regarding the

supplement and his entire involvement in the investigation and supplemental

report. Further, as noted above, the victim’s testimony alone is sufficient

support the conviction. As explained herein, with regard to allegations

relating to Det. Belle’s police work and vaginal intercourse, there is no

reasonable probability that the result of the proceeding would have been

different. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, Dyas’ conviction and sentence are

affirmed.

AFFIRMED.

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