State of Louisiana v. Robert W. Bell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-720

STATE OF LOUISIANA

VERSUS

ROBERT W. BELL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8208-08
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

John F. DeRosier
District Attorney, Fourteenth Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Carla S. Sigler
Karen C. McLellan
Alberto Dupuy
Assistant District Attorneys, Fourteenth Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward King Alexander, Jr.
Calcasieu District Defender
P. O. Box 3757
Lake Charles, LA 70602
(337) 436-1718
COUNSEL FOR DEFENDANT/APPELLANT:
Robert W. Bell

GREMILLION, Judge.

Defendant, Robert W. Bell, was indicted by a grand jury on March 6, 2008,

for aggravated rape, a violation of La.R.S. 14:42, and sexual battery, a violation of

La.R.S. 14:43.1. The indictment alleged Defendant engaged in oral sexual

intercourse with H.N., a juvenile born March 16, 1994, and made H.N. touch his

penis with her hand during a period of time from January 1, 1997, to December 31,

2003.1 Defendant filed a motion for discovery and inspection and two motions for

bill of particulars on May 2, 2008. The State filed a motion for production of

physical evidence on May 22, 2008. The trial court granted the State‟s motion on

June 10, 2008, and ordered Defendant to “provide all physical evidence of

photographs of his penis to the State of Louisiana for comparison through

Calcasieu Parish Sheriff‟s Office on June 11, 2008.” Photographs of Defendant‟s

penis were taken on June 11, 2008, by Corporal Tim Soileau.

The State responded to Defendant‟s motion for bill of particulars on June 18,

2008, by furnishing a copy of the indictment and by responding, “The answers can

be obtained by reading the Discovery materials.” The State objected to furnishing

a further response.

The jury found Defendant not guilty on the first count of aggravated rape

and guilty of attempted sexual battery as a responsive verdict on the second count.

He was sentenced to five years at hard labor with credit for time served.

Defendant filed a motion in arrest of judgment, a motion for judgment of acquittal,

and a motion for new trial, which were denied. He alleges eight assignments of

error on appeal. We affirm.

1
Initials of the victim are used throughout to protect her identity pursuant to La.R.S.
46:1844(W).

FACTS

H.N. was sixteen years old at the time of trial. She had never seen or lived

with her biological father. H.N. has three brothers, two older and one younger than

she. In 1997, H.N. was three years old, and Defendant was her stepfather.

At trial, H.N. testified Defendant made her “touch him in bad ways

whenever [she] was a little girl.” The first time occurred when H.N. was three or

four years old. She peeked in the bathroom door, and Defendant told her to come

in. His pants were down, and “he had [her] feel him . . . with [her] hand.” She

touched his penis with her hand. The touching always occurred in the bathroom

when her two older brothers were at school and her mother was at work.

When H.N. touched Defendant‟s penis, she noticed “a bump” on it;

Defendant told her “he swallowed a banana Runt [candy], and it got stuck.” His

penis felt “kind of hard, kind of squishy . . . the same at one time.” Defendant

would tell H.N. “to try and hang on it.” Defendant continued to make H.N. touch

his penis until she was around eight or nine years old.

On one occasion, Defendant “grabbed a rag and then he said he needed to

clean [her]. And he brought me to momma‟s room and laid me down and put his

hand down there. And the rag, it wasn‟t the rag . . . . Because it was warm and

slimy and a rag is rough.” She recalled seeing the rag on his hand, and she did not

look down. This incident occurred before H.N. started attending school.

H.N. said she told Defendant she wanted to tell someone about what

happened to her. Defendant “told [her] to tell . . . over and over again,” but she

never did until she told her friend, Brittany Campbell, around age thirteen. H.N.

also told Brittany‟s sister, Brooke; she asked them not to tell anyone because she

“was scared.”

2

When H.N.‟s mother first questioned her about whether Defendant had done

anything to her, she told her no “because [she] didn‟t want them to know.” H.N.

and her mother went to the sheriff‟s office the day after H.N. “talked to her about

everything,” and over the next couple of days H.N. told them things she

remembered as she “would get nerve enough where [she] was able to tell

them―tell her.” She told how she would wake up and Defendant “would have a

porno in; and he would have [her] sit down and watch it with him,” how Defendant

“would tell [her] to go get a knife, and he said that it was too big and he needed to

cut it off now,” and “how [they] used to take showers together.”

At trial, H.N. explained she used pictures of a girl and a man at the child

advocacy interview to show what happened to her. She circled the vagina

“because he licked me down there,” and she circled the hands because he touched

her with them. On the picture of a man, she circled the penis “[b]ecause he made

[her] touch him there,” and she circled the mouth “[b]ecause he touched [her] with

that.”

H.N. testified she told the truth at trial and did not lie to get back at

Defendant, her stepfather, for anything. She did not tell her mother sooner

“[b]ecause [she] was scared. [She] thought [she] was going to get in trouble. And

[Defendant] was [her] dad. [She] didn‟t want him going anywhere.”

Brittany Campbell was eighteen at the time she testified at trial. She had

known H.N. since the third grade, and they were good friends. When Brittany was

around age twelve or thirteen in the fifth grade, H.N. told her Defendant had made

her watch dirty movies with him and made her touch him when she was younger.

H.N. asked Brittany not to tell anyone, and Brittany told H.N. she should tell her

mom when she was ready. Brittany did not believe H.N. would lie about

something like this; when H.N. told Brittany, “She was like crying . . . . She was
3

very upset. She didn‟t want to tell me at first.” Brittany promised H.N. she would

not say anything, but she encouraged H.N. to tell her mother. From her point of

view, Brittany believed Defendant was a good man, based on how he treated her

personally.

April Bell, Defendant‟s former wife and H.N.‟s mother, testified that she

met Defendant in July 1996. Defendant watched H.N. after school several times,

and he moved into a trailer with April in August 1997. In January 1999, April

began attending school, and Defendant took care of H.N. while April was in class.

April and Defendant were married on May 12, 2000. Throughout 2001 and 2002,

Defendant watched H.N. after school.

April‟s divorce from Defendant became final in October 2005. Their

custody agreement involved visitation of their child together, but H.N. would also

visit Defendant sometimes. Defendant and April reconciled around March 2006,

and were together for about a year, and H.N. spent time with Defendant in 2007.

In January 2008, April‟s son asked H.N. if something had happened to her

after a discussion of possible abuse involving H.N.‟s younger half-brother. H.N.

was eating, and she put her head down and burst into tears. April then asked her

about exactly what happened; she called the sheriff‟s department and made an

appointment for the next day.

Detective Michael Primeaux, of the Calcasieu Parish Sheriff‟s Office,

received an arrest warrant for Defendant on January 24, 2008, and arranged for

Defendant‟s arrest in Beauregard Parish. Detective Primeaux first asked

Defendant how many times H.N. had touched his penis with her hand. Defendant

said, “never, never happened, couldn‟t have happened, didn‟t happen.” Detective

Primeaux then asked Defendant “about the time when she had disclosed to [them]

about the oral sex when he would wipe her with a rag.” Defendant said “that
4

never happened, he the [sic] never did oral sex on her, never could have happened,

didn‟t happen.” Defendant also denied H.N. could have walked into the bathroom

after he had taken a shower. Defendant did say he was urinating in the restroom on

one occasion when H.N. walked in on him. He was able to turn away, and H.N.

probably saw his penis for probably one to two seconds.

After Defendant denied the allegations, Detective Primeaux asked him how

H.N. could know about a specific characteristic of his penis. Defendant then

became very uncomfortable, pale, and “just almost deflated.” He mentioned for

the first time he had been sick with pneumonia. Defendant began to talk about

childhood abuse at the hands of his father. He then related an incident where he

was masturbating in the shower when H.N. came in and asked what he was doing.

When asked again about allegations of oral sexual intercourse, Defendant

responded “that was so, so, so long ago, he doesn‟t remember that incident, that he

used to drink a lot in the past.”

Detective Primeaux had received information about a bump on top of

Defendant‟s penis. H.N. had “disclosed that [Defendant] told her that he had

swallowed a Runt banana candy and it got stuck down there.” After a hearing, the

State obtained an order to take photographs of Defendant‟s penis. Corporal Tim

Soileau took photographs that were introduced at trial as State Exhibits 8 through

11. In the first group of photographs, the bump was “not quite distinctive.”

Defendant was asked “to start massaging or rubbing his penis to maybe have some

blood circulate through it. And as he did that, the lump progressed a little bit

higher than what it was earlier.” At trial, the State introduced a box of Runt candy

for the jury‟s reference.

Prior to Defendant‟s arrest, April had informed the sheriff‟s department that

Defendant “had numerous weapons in his residence, handguns, a shotgun, and
5

swords that were supposed to be extremely sharp.” Detectives tried unsuccessfully

to contact Defendant twice on January 22 and once on January 23, 2008, before

seven officers, including a four-man SWAT team for purposes of officer safety,

went to Defendant‟s home on January 24, 2008. Officers tried twice to summon

Defendant using a loud speaker and tried to call his cell phone. Defendant

answered the call and was told to come outside with his hands up. After “maybe a

minute or two,” Defendant did not come outside. Detective Primeaux called

Defendant‟s cell phone a second time; Defendant came to the door and was

immediately grabbed and taken to the ground. From the time of the ride from

Defendant‟s home to Detective Primeaux‟s conversation with Defendant at the

Beauregard Parish Sheriff‟s Office, Defendant never said anything about being ill.

Alyson Meisner Dooley, Case Investigator with Child Protection Services

from Beauregard Parish, received a report on January 22, 2008, about two sexual

abuse allegations by H.N. against Defendant. The first allegation was that H.N.

had touched Defendant‟s penis. The second allegation was that Defendant had told

H.N. “he was going to wash her with a cloth, but that he had put his tongue

between her legs instead.”

Dooley met with Detective Primeaux and Defendant on January 24, 2008.

Defendant denied that H.N. had ever seen or touched his penis. He said he had

been in the bathroom once when H.N. walked in; Defendant realized she was there

after a second or two and turned away so that H.N. could not see his “private part.”

Defendant said that H.N. would have never been in the bathroom while he was

taking a shower. He denied performing oral sex on H.N., and “[h]e denied ever

telling her that he was going to wash her with a cloth and then instead put his

tongue between her legs. And he also denied ever telling her to go and get a

kitchen knife to cut his penis off because it had grown too big.”
6

At first, Defendant “was very gregarious and talkative.” About two hours

into the interview, around 9:00 p.m., Defendant was told H.N. had identified “a

lump on the top of his penis.” Defendant seemed “to suddenly fall ill . . . You

could see a physical change in his appearance. He became pale, said he didn‟t feel

good, that he had been suffering from pneumonia, hung his head down and started

to gag and said that he was really tired because he wasn‟t used to being―wasn‟t

used to being up that late.”

Defendant waived his Fifth Amendment rights and testified at trial. He

stated he was involved in H.N.‟s toilet training and hygiene during the time he

babysat her. When asked whether he had put his tongue on her crotch or made her

put her hands on his penis, Defendant responded, “Absolutely not.”

Discord regarding H.N. and her younger half-brother around the time of the

allegations included H.N. “being hateful towards her brother, by kicking him in the

groin whenever she got mad at him . . .” Defendant had no control over April‟s

household because he was not living there. April had threatened H.N. with “kiddy

jail,” and Defendant backed her up on that. Defendant told H.N. he “had to stand

behind her mother‟s decision.” About three or four weeks later, the police came to

Defendant‟s house. Defendant reiterated that he had not done any of the things he

was accused of.

On cross-examination, Defendant admitted the possibility that H.N. had seen

his penis when he was using the bathroom or drying off in the shower. Defendant

was questioned about his reaction when he learned H.N. said he had a bump on his

penis. He said that was after the detective had made offensive remarks about

April, after Defendant “had said that [he] was not going to talk anymore to him,

that this conversation was over.” It was apparent to Defendant “that [Detective

Primeaux] was not interested in hearing anything but bits and pieces, answers to
7

leading questions in which [Defendant] had no idea–no ability to continue the

statement of.” Defendant testified that he had told Detective Primeaux he was

weak and recovering from pneumonia at the time the detective called him at home

on his cell phone. Defendant “knew what was going on” at the interview, [b]ut

when you take tepin (sic) hydrate with codeine, you start to fall asleep.”

Defendant testified H.N. was making up these allegations, but he had no idea

why. He said Brittany and Brooke had told him H.N. had said some things.

However, at Defendant‟s bond reduction hearing, he had said only Brooke,

Brittany‟s twin, had told him. Brittany testified that she never told anyone about

what H.N. told her.

Betty Campbell, the mother of Brooke and Brittany, testified that Defendant

had a reputation for truthfulness, and “was always good to the kids.” She “never

heard nothing bad” about Defendant, who was “a father figure” to Brooke and

Brittany.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant alleges the trial court patently erred in failing to withhold the

imposition of sentence for twenty-four hours following the denial of his motion for

new trial, as required by La.Code Crim.P. art. 873. The record reveals that the trial

court did run afoul of the Code of Criminal Procedure. However, the error is

harmless. Defendant does not assign as error excessiveness of his sentence, and he

does not show, or even allege, any way he was prejudiced by the lack of delay.

See State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erroneously denied his motion to

continue the trial despite the alleged untimely receipt of the court‟s list of priority

cases, in violation of State v. Simpson, 551 So.2d 1303 (La.1989). Trial was
8

originally set for September 8, 2008. It was refixed for trial on March 2, 2009; that

date was continued unopposed at Defendant‟s request until September 14, 2009.

On March 2, 2009, trial was refixed for September 14, 2009. It was later refixed

for January 4, 2010, February 8, 2010, May 3, 2010, and September 20, 2010. Jury

selection began on September 28, 2010; trial was recessed first until October 4,

2010, and then until October 5, 2010.

The record contains no further motions or orders for continuance.

Nevertheless, in a hearing on another matter on September 29, 2010, Defendant‟s

counsel argued that he had already orally moved for a continuance, and his motion

was denied. The record does not reflect such a motion or disposition. At that

hearing, Defendant‟s counsel indicated that he was filing a written motion for

continuance and supporting memorandum, which argued that he could not prepare

for trial of this matter and another matter because of problems with the trial court‟s

priority list. Counsel then proceeded to argue the issue extensively, even though it

had not been set for hearing, noting one of his concerns in this matter “was having

to try [this] case while [the other] case was over [his] head for Monday.” The trial

court granted the continuance in the other case and ordered the trial of this case to

proceed. The record does not indicate that the motion to continue to which

Defendant‟s counsel referred was ever filed.

A motion to continue “shall be in writing” and “shall be filed at least seven

days prior to the commencement of trial.” La.Code Crim.P. art. 707. The trial

court may grant a written motion to continue at any time “only upon a showing that

such motion is in the interest of justice.” Id. When circumstances occur

unexpectedly and defense counsel has insufficient opportunity to prepare a written

motion, the requirement of a written motion may be waived. State v. McGee, 04-

9

963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, writ denied, 05-593 (La. 5/20/05),

902 So.2d 1050.

The motion defense counsel argued on September 29, 2010, was oral. The

prior motion to which counsel referred was likewise oral. Defendant‟s counsel

indicated that he had received the Simpson list twelve and one-half days prior to

trial, on the Tuesday after the Labor Day holiday. The record reflects that he took

no action toward seeking a continuance of this trial during those twelve and one-

half days, but rather waited until the second day of jury selection to complain that

he had insufficient time to prepare for trial. This case does not present

circumstances that occurred unexpectedly nor did it provide counsel an insufficient

opportunity to timely prepare a written motion. Again, the record contains no

written motion. Accordingly, the trial court did not err in denying Defendant‟s oral

motion to continue the trial on the second day of jury selection.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant alleges that the trial court erred by denying his motion for mistrial

after trial began with the seating of the jury but before the commencement of

evidence and/or for denying his renewed motion for mistrial as to Count 2 of the

indictment after conviction. Both of Defendant‟s motions during trial concerned

the allegedly defective indictment. He now argues the “overcharging of Count 1

requires reversal of his conviction on Count 2.”

The entire argument is based on the allegedly defective indictment. Count I

of the indictment, filed March 6, 2008, reads:

COUNT 1: AGGRAVATED RAPE
[DEFENDANT] DID ENGAGE IN ORAL SEXUAL
INTERCOURSE WITH TO WIT: H.N., DOB: 3-16-94, A
JUVENILE, WITHOUT THE VICTIM‟S LAWFUL CONSENT
UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS
PREVENTED FROM RESISTING THE ACTS BY THREATS OF
GREAT AND IMMEDIATE BODILY HARM, ACCOMPANIED
10

APPARENT POWER OF EXECUTION OCCURRING IN
CALCASIEU PARISH.

The indictment alleges that this act occurred “on or about January 1, 1997 to

December 31, 2003.”

The crime of aggravated rape did not include oral sexual intercourse until an

amendment of La.R.S. 14:42, effective August 15, 2001, changed the language of

the statute. Acts 2001, No. 301, § 1. In response to the State‟s pre-trial writ

application seeking to include responsive verdicts on the verdict form, this court

held, “If the evidence at trial shows the offense occurred prior to August 15, 2001,

the trial court shall charge the jury as to the responsive verdicts available at that

time” and ordered the trial court “to fully charge the permissible verdicts which are

supported by the evidence adduced at trial.” State v. R.W.B., an unpublished writ

ruling bearing docket number 10-1198 (La.App. 3 Cir. 10/5/10).

After a trial begins, an order of mistrial is mandatory when the indictment

contains a defect of substance. La.Code Crim.P. art. 487(A). A defect of

substance is one “which will work to the prejudice of the party accused.” State v.

Harris, 478 So.2d 229, 231 (La.App. 3 Cir. 1985), writ denied, 481 So.2d 1331

(La.1986) (quoting City of Baton Rouge v. Norman, 290 So.2d 865, 870

(La.1974)). In Harris, the trial court allowed amendment of a defective indictment

after trial began over the defendant‟s objection. This court held the defendant did

not allege or prove prejudice resulting from the defect in the original indictment,

he was made aware of the crime charged and the date and time it allegedly

occurred, and his rights concerning pre-trial notice and double jeopardy were not

compromised. Thus, the defect was one of form, not of substance, and the trial

court did not err by allowing the amendment.

11

Here, Defendant alleges prejudice by “the defect and the overcharging of

Count 1.” He contends that the State proceeded with prosecution of Count 1

despite a lack of evidence to support the charge, and the “other crimes” evidence

the jury was allowed to hear was the evidence of the aggravated rape charged in

Count 1. Defendant acknowledges his acquittal on Count 1 but nevertheless argues

the prosecution of that count somehow influenced his conviction on Count 2, “due

to the overall prejudicial effect of the flawed bill of indictment.”

The trial court considered the indictment here to be defective because the

facts on which the State relied constituted the crime of aggravated rape only for

part of the time period alleged by the State in the indictment. The court

worked [its] way through that to make sure that the crime that [it was]
dealing with fit particular time periods. The [c]ourt listened to the
evidence and made rulings as [it] went along to insure that the jury
would only consider the initially indicted charge of aggravated rape
only for a particular time period because of the change in the law.

Evidence of other crimes “is not admissible to prove the character of a

person in order to show that he acted in conformity therewith.” La.Code Evid. art.

404(B). Evidence of the “other crime” in this case, i.e, aggravated rape, was not

offered or admitted as an indication of character. It was offered because

aggravated rape was the crime charged in Count 1 of the indictment.

The jury found Defendant not guilty on Count 1. This verdict shows that the

jury obviously did not consider the evidence the State presented to be evidence of

“other crimes”; through the not guilty verdict, the jury showed it did not consider

Defendant to have committed that crime. We, therefore, fail to see how Defendant

was prejudiced. Because we find no prejudice resulted, the defect in the

indictment was one of form, not of substance; therefore, the trial court did not err

in denying Defendant‟s motion for mistrial.

12

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant argues reference to H.N. as “the victim” by the trial court and the

State prejudiced him. He contends the reference “presupposes that the fact has

been established that the accuser is the victim of the crime at trial, and thus invades

the province of the jury.” Defendant cites no authority to support this position.

Defendant fails to cite any instance where reference to H.N. as “the victim”

caused any prejudice to him or resulted in unfair treatment. The trial court‟s

instructions to the jury told them to disregard any impression he may have given

regarding Defendant‟s guilt or innocence. He explained Defendant was “presumed

to be innocent until each element of the crime necessary to constitute his guilt is

proven beyond a reasonable doubt.” This argument is without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant argues prospective juror #316 was improperly dismissed for

cause. Such an argument is proper only where “the effect of the ruling is to allow

the state to exercise more peremptory challenges than is allowed by law.” State v.

Green, 98-1388, p. 12 (La.App. 3 Cir. 3/31/99), 735 So.2d 723, 731, writ denied,

00-2904 (La. 8/24/01), 795 So.2d 323 (citing State v. Joe, 28,198 (La.App. 2 Cir.

7/26/96), 678 So.2d 586, writ denied, 97-559 (La. 10/31/97), 703 So.2d 16; State v.

Fleeks, 26,720 (La.App. 2 Cir. 3/1/95), 651 So.2d 370; La.Code Crim.P. art.

800(B)). Here, the State was entitled to twelve peremptory challenges. La.Code

Crim.P. art. 799. It exercised only eleven. Thus, even if the prospective juror were

improperly excused for cause, his exclusion did not result in allowing the State

peremptory challenges to which it was not entitled.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that he was improperly denied the right to submit

impeachment evidence at trial; thus, his rights under the Confrontation Clause of
13

the Sixth Amendment and his due process rights under the Fourteenth Amendment

were violated. He complains that he was prevented from submitting evidence to

show H.N.‟s “motives of chafing at parental restriction of her conduct and society

with a particular member of the opposite sex or boys generally, and of what before

trial had come full flower as her manifest biological imperative.” Defendant

argues that he should have been allowed to put on evidence that H.N. had borne

two children by the time she testified at trial at age sixteen. He speculates that the

jury “was left to wonder whether [he] himself had possibly fathered one or both of

them,” although the only reference to either child occurred when H.N. testified,

during Defendant‟s cross-examination, that she lived with “her two babies.”

Evidence of a victim‟s past sexual behavior is certainly admissible under

certain circumstances. La.Code Evid. art. 412(A). None exist here. Article 412‟s

comment (c) explains that this rule “is not intended to exclude evidence showing

bias, interest, or corruption.” Defendant contends that he was entitled to put on the

evidence to show H.N.‟s keen interest in making the allegations: namely, to get

him out of the way so that she could behave as she wished.

The evidence Defendant was able to admit showed that H.N. lived with her

mother, little brother, two children, and step-father at the time of trial. According

to H.N.‟s testimony, she had seen television programs talking about child

molestation. She believed the father of her older half-brother had been charged

with a child-molestation offense. Before H.N. told her friend, Brittany, what

Defendant had done, Brittany “told [H.N.] that her dad had done something to her.

But then she later said that didn‟t happen.” H.N. believed Defendant and her

mother were divorced, but Defendant “was staying in the house sometimes” when

her conversation with Brittany took place. H.N. “might have been 12, but probably

close to 13” at the time.
14

Around a half a year to a year later, H.N. told her mother and her half-

brother that Defendant had done something to her. The next day, H.N.‟s mother

took her to the sheriff‟s office to report the incidents. When H.N. was around age

thirteen, she and her mother began having disagreements about things she would

be allowed or not allowed to do. She was also thirteen when her mother took her

to the sheriff‟s office to talk about what she had told Brittany.

After H.N. talked to Brittany and her mother about what happened with

Defendant, H.N.‟s mother “caught her” with her boyfriend. H.N.‟s mother “would

get on to [her] about laying on the couch with him and warning [her] not to do

anything.” H.N. testified that Defendant never said anything to her about that, and

he never played any part in the conversations between H.N. and her mother.

H.N.‟s mother told her many times, up until around the time she was around age

thirteen, that she would put H.N. in juvenile detention if she “didn‟t straighten up.”

H.N. testified that she did not make up what she said Defendant did to her because

of the threats to be put in “juvie,” because of the custody dispute between her

mother and Defendant involving her younger half-brother, or so that her younger

half-brother could stay with her mother.

The trial court allowed extensive testimony by April, over the State‟s

objection, about details from her divorce proceeding with Defendant. Defense

counsel was allowed to discuss papers filed in that proceeding that alleged April

committed adultery with a named individual. When the State objected, defense

counsel argued “[t]he relevance goes to the motive to make or to assist in the

allegations that have been made against [Defendant] in this case.” April testified

that she filed for divorce from Defendant because they argued all the time, he

constantly yelled at H.N., and he and their son got into several arguments. The

petition was filed September 12, 2005, and they executed a custody agreement
15

concerning their son on February 2, 2006. April testified that she and Defendant

had no major issues regarding their son‟s custody after that agreement. H.N.

disclosed the alleged abuse by Defendant in the beginning of 2008.

Defendant himself testified about discord in their family regarding both H.N.

and his son. He observed H.N. “being hateful towards her brother, by kicking him

in the groin whenever she got mad at him, these types of things.” Defendant had

no control over H.N.‟s discipline in early 2008, because he was not living with her,

but he did stand behind April‟s discipline, including the “kiddy jail” that was

threatened. He told H.N. he would stand behind her mother‟s decision on that

matter about three or four weeks before he was arrested.

As seen from the foregoing, Defendant put on a great deal of evidence

tending to demonstrate the problems H.N. allegedly posed. However, by his own

testimony, those problems occurred after he and April had divorced and settled

their custody dispute. We find the introduction of evidence establishing the fact

that H.N. became sexually active and gave birth to two children after Defendant‟s

arrest is prohibited by Article 412 under these circumstances. The admission of

this evidence would not serve the purpose of showing H.N.‟s interest in seeing

Defendant sent away to prison for reasons other than the crimes of which he stands

convicted.

ASSIGNMENT OF ERROR NUMBER SEVEN

Defendant argues that Louisiana‟s ten-to-two majority verdict law is

federally unconstitutional. La.Code Crim.P. art. 782. Although it is unclear from

the record whether this issue was properly preserved for review on appeal, we find

no merit to Defendant‟s argument. The trial court‟s instructions to the jury stated,

“At least ten members of the jury must concur to reach a verdict in this case on

each count.” Defendant contends that the Supreme Court‟s decision in McDonald
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v. City of Chicago, Ill., __ U.S. __, 130 S.Ct. 3020 (2010), required a unanimous

verdict here; thus, Defendant‟s conviction must be vacated.

The McDonald court, if anything, verified the constitutionality of Article

782. McDonald concerns the issue of whether the right to bear arms is

incorporated into the concept of due process, not the issue of one‟s right to a

unanimous jury verdict. The case does, however, discuss the applicability of the

federal Bill of Rights to the states and notes, “[T]he Court abandoned „the notion

that the Fourteenth Amendment applies to the States only a watered-down,

subjective version of the individual guarantees of the Bill of Rights,‟ stating that it

would be „incongruous‟ to apply different standards „depending on whether the

claim was asserted in a state or federal court.‟” Id. at 3035 (citing Malloy v. Hogan,

378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495 (1964)).

However, footnote 14 of McDonald states:

There is one exception to this general rule [that Bill of Rights
protections are enforceable against the states]. The Court has held that
although the Sixth Amendment right to trial by jury requires a
unanimous jury verdict in federal criminal trials, it does not require a
unanimous jury verdict in state criminal trials. See Apodaca v.
Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); see also
Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152
(1972) (holding that the Due Process Clause does not require
unanimous jury verdicts in state criminal trials). But that ruling was
the result of an unusual division among the Justices, not an
endorsement of the two-track approach to incorporation. In Apodaca,
eight Justices agreed that the Sixth Amendment applies identically to
both the Federal Government and the States. See Johnson, supra, at
395, 92 S.Ct. 1620 (Brennan, J., dissenting). Nonetheless, among
those eight, four Justices took the view that the Sixth Amendment
does not require unanimous jury verdicts in either federal or state
criminal trials, Apodaca, 406 U.S., at 406, 92 S.Ct. 1628 (plurality
opinion), and four other Justices took the view that the Sixth
Amendment requires unanimous jury verdicts in federal and state
criminal trials, id., at 414-415, 92 S.Ct. 1628 (Stewart, J., dissenting);
Johnson, supra, at 381-382, 92 S.Ct. 1620 (Douglas, J., dissenting).
Justice Powell‟s concurrence in the judgment broke the tie, and he
concluded that the Sixth Amendment requires juror unanimity in
federal, but not state, cases. Apodaca, therefore, does not undermine
the well-established rule that incorporated Bill of Rights protections
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apply identically to the States and the Federal Government. See
Johnson, supra, at 395-396, 92 S.Ct. 1620 (Brennan, J., dissenting)
(footnote omitted) (“In any event, the affirmance must not obscure
that the majority of the Court remains of the view that, as in the case
of every specific of the Bill of Rights that extends to the States, the
Sixth Amendment‟s jury trial guarantee, however it is to be construed,
has identical application against both State and Federal
Governments”).

McDonald, __ U.S. at __, 130 S.Ct. at 3036-36, n.14.

Defendant‟s counsel even admitted, at the hearing of the motion in arrest of

judgment, that “the majority verdict law is being consistently upheld, and that‟s not

going to change until the U.S. Supreme Court grants, cert, and reverses Appadocca

[sic] vs. Oregon.” That has not happened. Thus, based on Apodaca and the

Court‟s positive comments on it in McDonald, we conclude that Defendant‟s

argument is without merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant complains that the trial court erroneously “admitted highly-

prejudicial police photographs of the defendant being forced to stretch out his

penis while wearing jailhouse orange.” He contends admission of the photographs

was more prejudicial than probative and violated his due process rights.

H.N. testified Defendant had “a bump” on his penis, and he told her he

“swallowed a banana Runt [candy], and it got stuck.” The State obtained an order

to take photographs in an effort to determine whether any penile abnormality in

fact existed. Photographic evidence is generally admissible unless its probative

value is outweighed by its prejudicial effect. State v. Snyder, 98-1078 (La.

4/14/99), 750 So.2d 832.

Snyder involved the admission into evidence of postmortem photographs

that the defendant claimed were prejudicially gruesome. Our supreme court held

that “[p]ostmortem photographs . . . are admissible to prove corpus delicti and to

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corroborate other evidence establishing cause of death and location and placement

of wounds, as well as to provide positive identification of the victim,” and these

were “relevant to illustrate the number and location of stab wounds to the victim.”

Id. at 843.

This case presents a similar issue. The photographs, while certainly

sensitive, are not gruesome. The photographs were admitted during Detective

Primeaux‟s testimony to corroborate H.N.‟s testimony and support her credibility.

The trial court was very careful to prohibit Detective Primeaux from testifying

about his opinion of what he saw in the photographs. The trial court explained to

the jury it could “make [its] own decision about whether something is there or

not.” The trial court further instructed the jury that people in jail “wear jailhouse

orange,” and “[t]he fact that person has been arrested, has been charged with a

crime or is in jail is not proof that they committed any crime.” It also explained

that the purpose of showing the jury the photographs was “only for the purpose of

[the jury] seeing his penis.” We find that the trial court did an exemplary job in

providing instruction, and consequently, the jury was able to make its own

determinations and freely decide whether it saw anything in the photographs to

corroborate H.N.‟s testimony. The probative value of the photographs outweighed

any prejudicial effect they may have had; thus, Defendant‟s argument is without

merit.

DECREE

Defendant‟s conviction is affirmed.

AFFIRMED.

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