State of Louisiana v. Stephan Tyler Bragg

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-650

STATE OF LOUISIANA

VERSUS

STEPHAN TYLER BRAGG

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 2016-759
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Van H. Kyzar, Judges.

CONVICTIONS AND SENTENCES AFFIRMED.

Justin C. Harrell
Attorney At Law
1100 Poydras Street, Suite 2900
New Orleans, LA 70163
(504) 585-7329
COUNSEL FOR DEFENDANT/APPELLANT:
Stephan Tyler Bragg

James P. Lemoine
District Attorney
Thirty-Fifth Judicial District Court
Renee W. Nugent
Assistant District Attorney
P. O. Box 309
Colfax, LA 71417
(318) 627-2971
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

On August 12, 2016, Defendant, Stephan Tyler Bragg, was charged by bill of

information with ten counts of sexual battery, in violation of La.R.S. 14:43.1. The

ten counts were alleged to have occurred between October 25, 2014, and June 9,

2016, and all concerned a juvenile victim, K.R.D. (DOB: 10/25/2005).1

On April 26, 2018, a 10-2 jury found Defendant guilty of five counts of sexual

battery and not guilty of the remaining five counts. On May 24, 2018, the trial court

sentenced Defendant to forty-five years imprisonment at hard labor with the first

twenty-five years to be served without benefits on each count and ordered the

sentences to run concurrently. Although defense counsel objected to the

introduction of a district attorney’s file related to Defendant’s prior conviction for

carnal knowledge of a juvenile, no objection was made as to the actual sentence, nor

was a motion to reconsider sentence ever filed.

Defendant now appeals his convictions and sentences, raising three

assignments of error: (1) there is insufficient evidence to support his convictions;

(2) his rights were violated by the trial court allowing Jada Bragg, the victim’s

cousin, to testify under La.Code Evid. art. 801(D)(1)(d) as a first reporter; and (3)

his rights were violated when the State introduced into the record evidence related

to his prior conviction for carnal knowledge of a juvenile during sentencing. For the

following reasons, Defendant’s convictions and sentences are affirmed.

FACTS

The State’s first witness was Captain James Watkins of the Grant Parish

Sheriff’s Office. Captain Watkins testified that he was promoted from Detective to

Captain in February of 2017. He noted that, as a detective, his job included

1
Pursuant to La.R.S. 46:1844(W), the victim will be referred to by her initials throughout
given that she is both a juvenile and the victim of a sex offense.

investigating everything from petty theft to murder. Captain Watkins also testified

there was no special unit in Grant Parish for addressing sex crimes. Captain Watkins

testified that he was involved in the investigation of Defendant, and said he has

worked on roughly thirty sex-offense cases. Captain Watkins stated the

investigation into Defendant began when Katie Devine and William Bragg, the

victim’s parents, brought her into the station on June 10, 2016.

Captain Watkins described the sheriff’s process for investigation of juvenile

sex offenses, noting they immediately remove the juvenile from the room and ask

the parents not to question the child about the incident to avoid influencing the

child’s answers when they are questioned by someone at the Rapides Advocacy

Center. Captain Watkins testified that he was in an adjacent room with the ability

to speak to the interviewer during the victim’s recorded interview, but that only the

forensic interviewer was in the room with the victim. After the victim disclosed that

she was abused by Defendant, her uncle, Captain Watkins obtained an arrest warrant.

Captain Watkins acknowledged that he did not schedule a medical exam of

the victim, noting that in his experience, a medical exam would not have been helpful

since the allegations involved “using the digits.” Captain Watkins noted the victim

stated there had been three to four months between the last time she was abused and

when it was reported because “[s]he was scared to tell anybody what was going on

so nobody knew um, she would just tell her parents that she did not want to go over

there, and they didn’t think nothing of it, and they continued to bring her over there.”

It was noted that Defendant is the brother of the victim’s father.

On cross-examination, Captain Watkins stated that in June 2016, there were

four detectives at the Grant Parish Sheriff’s Office. Captain Watkins acknowledged

he had not had any special training regarding sex offenses since his time at the police

academy. He further noted that during the victim’s interview at the advocacy center,
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the only people able to monitor the interview would be the detective investigating

the case and a representative from the Department of Child and Family Services, if

they had become involved. Captain Watkins acknowledged the victim told the

interviewer that Defendant had, on multiple occasions, penetrated her vagina

digitally and that it hurt badly every time he did so. Captain Watkins again admitted

that he made the decision not to seek a medical examination in the case. When asked

if he was familiar with what a hymen was or how a doctor would conduct a physical

exam, Captain Watkins stated, “I am not a doctor.” Captain Watkins also verified

that he did not speak with Dominique Bragg or Donna Tyler, Defendant’s wife and

mother-in-law, as their names were not mentioned by the victim during her

interview.

On re-direct, Captain Watkins noted one of the reasons he did not have a

vaginal examination done was because it was unlikely there would be evidence

present, given the victim said it had been months since the last time Defendant had

touched her. He also stated that neither Defendant’s wife nor mother-in-law have

attempted to speak with him since Defendant was arrested.

The State’s next witness was the victim’s first cousin, Jada Bragg, who

testified that she was sixteen-years old and in the tenth grade. She stated that

Defendant was her uncle, her mother’s brother, and that she called him Tyler. Jada

testified that she is three years older than K.R.D. and is like a big sister to K.R.D.

She testified that one night, K.R.D. spent the night with Jada and her mother after

they had all been at Defendant’s house earlier in the day. Jada noted that Defendant,

his wife Dominique, their daughter Layla, and Dominique’s mother lived in the

house. She testified they had been at Defendant’s home for no more than three hours.

Jada noted that while she and Layla, who was only about two or three years old, did

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not have a great relationship, Layla and K.R.D. were very close and Layla would

always cry when K.R.D. left.

Jada testified that Layla wanted K.R.D. to spend the night, which was normal,

but K.R.D. did not want to stay, whereas she normally would spend the night. Jada

stated that when she asked K.R.D. why she did not want to stay with Layla, K.R.D.

initially would not give her a reason but then started crying. Jada testified that, after

a couple of tries, K.R.D. managed to tell her she did not want to stay because

Defendant would touch her and it hurt, eventually telling Jada that he would touch

her “lower region.” Jada asked why K.R.D. had not told her before, and K.R.D. told

her that she did not want “Layla to have a broken up family.” Jada stated that K.R.D.

did not want her to tell anyone, but that after about an hour she was having a panic

attack and told her mother, who then told K.R.D.’s mother, Katie. Jada noted that

knowing what K.R.D. was going through made her sad, stated everything she had

said was the truth, and no one had spoken to her about what to say at trial.

Jada testified that she told her mother what K.R.D. had told her initially and

that her mother told K.R.D.’s mother. She seemed very unsure of whether she had

ever spoke to Captain Watkins or when and where any conversation with him took

place. She acknowledged that Defendant’s home had wood floors but was unsure if

the house was on a slab or if it was elevated off the ground. She restated that she

thought it was weird that K.R.D. did not want to stay at Defendant’s with Layla the

way she normally did, which led to K.R.D. telling Jada about Defendant touching

her.

The State’s next witness was Ms. Shelly Bell, a Christus Health employee

previously employed by the Rapides Children’s Advocacy Center. Ms. Bell noted

she had a Bachelors’ degree in Family and Child Studies from Louisiana Tech, a

week of intensive training on being a forensic interviewer, then continuing training
4

and education while working for the advocacy center. She noted that as a forensic

interviewer, her goal was “just to hopefully not traumatize [the children] more.” She

testified she interviewed K.R.D. on June 13, 2016, at the advocacy center office in

Alexandria. Ms. Bell stated that once the interview began, it was her interview, so

while a detective might have questions or concerns about certain facts, they did not

tell her explicitly what to ask.

Ms. Bell testified that immediately after an interview, she would stop the

recording and make a DVD for the detective to keep for their file. She also stated

that if requested, another member of the office would transcribe the video, then she

would review it and deliver it to the detective. Ms. Bell testified at the end of her

interview with K.R.D., she utilized an anatomical drawing to verify what part of the

body K.R.D. was discussing, giving the following reasoning:

Throughout the interview um, she was very reluctant to - - to
refer to a certain name for any body part. Um, and so in that case, it
was either just a gesture or down there, or where I use the restroom, so
just for clarification, to make sure there were no assumption[s]
whatsoever, I went and got the drawing and had her circle the body part
on her body that she was talking about.

Ms. Bell stated she believed K.R.D. was nine at the time of the interview. The

State then played the video of K.R.D.’s interview with Ms. Bell while distributing a

copy of the transcript of the interview to each member of the jury.

K.R.D.’s Interview at Rapides Children’s Advocacy Center

After describing the layout of the room, Ms. Bell discussed art with K.R.D.

K.R.D. stated that she had an eleven-year-old brother and a five-year-old sister. She

told Ms. Bell she went back and forth between her mother and father, who do not

live together, but do live in the same town. K.R.D. stated she was ten years old. She

described the living arrangements at both her mother’s and her father’s homes.

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K.R.D. then noted that she “used to go to [her] uncle’s.” She noted her uncle’s name

is Stephan, but they call him Tyler.

K.R.D. told Ms. Bell that her uncle, Defendant, would touch her “[w]hen [she]

was sleeping and sometimes it woke [her] up.” She also stated that “it hurt very

badly.” She stated Defendant touched her more than once and that it would happen

when she and her brother spent the night at Defendant’s house. K.R.D. stated that

typically, she and her brother would sleep on a pull-out sofa, but that Defendant

would often make her sleep with her two-year old cousin, Layla, whose bed was

directly next to Defendant’s side of his bed. She could not remember the first time

Defendant had touched her, but she described an instance where she and her brother

were asleep on the sofa bed and Defendant came in and woke her up by touching

her. Although she said there were no lights on when it happened, she knew it was

Defendant “[b]ecause [she] could see him.” She stated she told him to quit, but he

pretended he was sleeping. She would not name the part of her body that he was

touching but stated it “hurt down there” and noted she uses that part of her body “[t]o

use the restroom.”

K.R.D. told Ms. Bell that Defendant was touching her with his hand and

fingers underneath her clothes, noting he would sometimes put his fingers inside her

and move them. She noted that whenever she would tell him to stop, he would

pretend to be asleep, but she remembered one occasion where Defendant asked her

“if it felt good” when she woke up and she told him “no, it hurts badly.” She stated

she would tell her parents she did not want to go to Defendant’s house, but they

would send her so they could go to work and she “didn’t want to tell them because

[she] was scared.” K.R.D. stated all of the occasions when Defendant would touch

her happened at night.

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When asked if she had ever spoken to anyone about what happened, the only

person K.R.D. mentioned was Jada, noting “how they found out was I told my

cousin.” Additionally, when Ms. Bell asked K.R.D. directly “[h]ave you talked with

anyone else about what all has gone on with Tyler[,]” K.R.D. gave a negative

answer. She told Ms. Bell it had happened “[a]t least 10 or 12 times,” noting

Defendant had built a new house about a year before, and Defendant’s touching her

only happened in the new house. K.R.D. then indicated on an anatomical drawing,

introduced as State’s Exhibit 2, that Defendant had been touching her on and inside

her vagina. K.R.D. and Ms. Bell then discussed 4-H camp before ending the

interview.

On cross-examination, Ms. Bell noted that she worked on a number of sexual

abuse cases in the three-and-a-half years she was with the Rapides Children’s

Advocacy Center. When pressed on whether it is normal to not have a SANE

(Sexual Assault Nurse Examiner) examination done in a case where there is an

accusation of digital penetration, Ms. Bell responded “yes, there is sometimes [sic]

where there’s an exam done, and there’s sometimes [sic] where there is not an exam

done.” Ms. Bell did not recall whether she ever spoke to Captain Watkins about

having a physical examination done on K.R.D.

The State then called the victim, K.R.D., who testified that her birthday is

October 25, and she would be thirteen on October 25, 2018. K.R.D. repeated that

she promised to tell the truth in court and acknowledged no one had told her what to

say in court. K.R.D. testified that she is currently living with someone named Alicia,

K.R.D.’s siblings, and Alicia’s three children. She stated Alicia’s children were

seventeen, fifteen, and thirteen, while K.R.D.’s brother Jamison was almost fourteen

and her younger sister was six. K.R.D. testified that she and Jada share secrets and

tell each other about things that happen to them.
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K.R.D. stated she had not seen Defendant in about two years but noted that

when she visited him, he lived with his wife Dominique, his mother-in-law Donna,

and his daughter Layla. K.R.D. stated she was sad because she had not seen Layla

in nearly two years and that they were close then, noting she would watch Layla with

supervision and saw her frequently. K.R.D. recounted Layla had a bedroom, Donna

had a bedroom, and Defendant and Dominique had a bedroom, but Layla slept in a

“crib bed” in her parents’ room. She described the bed as “one side was opened and

the other had like a gate thing.” K.R.D. recalled that her older brother would stay at

Defendant’s house with her and that they would sleep on the couch, except when

Layla wanted to sleep with K.R.D.; then K.R.D. and Layla would sleep in Layla’s

bed in Defendant’s bedroom. K.R.D. testified Layla would sleep against the closed

side of the bed and K.R.D. would sleep on the open side, noting she was able to fit

because she wasn’t very tall.

She recalled going to the advocacy center a few days after she told Jada what

had happened to her. She also recalled truthfully telling Jada that Defendant had

done things to her and hurt her, but she could not remember the exact words she had

used when speaking to Jada. She testified that Defendant would touch her on her

“private parts,” noting she meant the same location she had indicated on the

anatomical drawing during her interview. K.R.D. stated Defendant would touch her

with his hands and wake her up sometimes, clarifying that she believed he may have

touched her other times when she did not wake up. She testified that she could not

really see anything when she would wake up, and she could not really explain how,

but she knew it was Defendant touching her with his hands.

K.R.D. testified the open part of Layla’s bed, where she would sleep, was right

up against Defendant’s side of the bed he shared with his wife. She stated that when

she would move away from him, he would typically stop touching her. Because of
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the location of Layla’s bed, Defendant did not have to get out of bed in order to touch

her. She testified she woke up to Defendant touching her “[m]ore than like five (5)”

times. She knew it was Defendant touching her because he was moving his hand

and she could see him in the bed next to her, and there was no one else close to her

but Layla, who was asleep.

K.R.D. also related that on one occasion, she was sleeping on the pull-out part

of the sofa with Layla and Defendant had laid down with them because he did not

want Layla sleeping by herself. Defendant had again been touching her and asked

her either if she liked it or if it felt good, and she told him that it hurt. She noted she

was afraid to tell anyone what was happening because she was afraid no one would

believe her. Although she would sometimes say she did not want to go to

Defendant’s house, she was afraid of saying the reason. She testified that she knew

Defendant had not touched her in his old house, so she was at least nine when he

started touching her, and she was ten when she told Jada. K.R.D. testified the last

time Defendant touched her was a “couple of weeks” before she told Jada.

In accordance with Jada’s testimony, K.R.D. recalled having cake at

Defendant’s house earlier in the day before telling Jada what had happened when

they were alone later that night. She stated Jada then told her mother, who in turn

called and told K.R.D.’s mother. She recalled Jada crying when K.R.D. told her

what happened and insisting they should tell someone, but K.R.D. did not want to

tell anyone because she did not know what to do. She noted that she asked Jada not

to tell anyone.

On cross-examination, K.R.D. stated that Defendant’s house had wood floors.

She also testified that the pull-out sofa she and her brother usually slept on was in

the living room. She testified that Defendant’s fingers were inside of her some of

the times. She knew that Defendant had touched her at least five times because that
9

was how many times she woke up while he was touching her. She also stated she

believed it had been more than a few weeks, closer to months, between the last time

Defendant touched her and when she told Jada. She noted that she never had any

bleeding as a result of Defendant touching her. After stipulating that K.R.D. is not

Defendant’s spouse, the State rested.

Defendant’s first witness was his mother-in-law, Donna Tyler. She testified

that she’s been living with Defendant and his wife since 2014 and was living with

them at the time of the events in question. Ms. Tyler testified that she began living

with Defendant and his wife around the time they moved into their home, which was

a remodeled house raised on piers. She testified that she had her own bedroom in

the house. She stated the floors of the home were wood throughout the house. She

confirmed that when Layla was little, she slept in a baby bed in the master bedroom

next to Defendant’s side of the bed against the wall.

Ms. Tyler testified that whenever K.R.D. would spend the night, her brother

was always with her and they would sleep on the couch. She stated she never saw

either of the kids sleep in the room with Defendant and his wife and that she would

often stay up late with the kids watching TV. Ms. Tyler testified that she was a light

sleeper who goes to bed late and would have heard if Defendant was walking around

the house, because the floors and doors squeak. She also stated that she slept with

her bedroom door open.

Defendant then called his wife, Dominique Laray Bragg, to the stand. Mrs.

Bragg stated that the home she and Defendant shared was an older three-bedroom,

two-bath house on stilts, remodeled in 2014. Mrs. Bragg stated Layla’s bed was

against the wall, not the bed, and that there was a bed rail on the side of it. She also

noted the entire house had hard wood floors. Like Ms. Tyler, Mrs. Bragg testified

that K.R.D. always slept in the living room with her brother on the pull-out sofa,
10

never in the room with the Braggs. Mrs. Bragg also testified that she was a light

sleeper and that Defendant would not have been able to get out of bed without her

knowing it. Defense counsel then rested.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues the verdict “is contrary to

the evidence.” Defendant cites State v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943

So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239 (2007), to argue the

victim’s identification of Defendant as her abuser is not free from “internal

contradiction or irreconcilable conflict with the physical evidence” and thus cannot

be the basis for his conviction.

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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 proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Sexual battery is relevantly defined in La.R.S. 14:43.1(A) as:

[T]he intentional touching of the anus or genitals of the victim by the
offender using any instrumentality or any part of the body of the
offender, directly or through clothing, or the touching of the anus or
genitals of the offender by the victim using any instrumentality or any
part of the body of the victim, directly or through clothing, when any
of the following occur:

11

....

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

As noted by the fourth circuit in State v. Simmons, 621 So.2d 1135, 1138

(La.App. 4 Cir. 1993), amended on rehearing, sexual battery “prohibits the touching

of the anus or genitals of the victim where he or she has not yet attained fifteen years

of age, when the offender is more than three years older than the victim.” In the

instant case, the attorneys stipulated Defendant’s date of birth is October 25, 1987,

and K.R.D.’s date of birth is October 25, 2005. As the touching was alleged to have

happened between October 25, 2014, and June 9, 2016, there is no question the State

proved K.R.D. was less than fifteen years old and Defendant is more than three years

older than her. Defendant’s argument is, essentially, that K.R.D.’s testimony is not

credible, as evidenced by his statement that “[n]ot only is there something in the

boldness of this accusation that belies belief, but it is simply irrational to believe that

the abuse was consummated without waking the others.”

Defendant’s entire argument appears to be premised on disbelieving anything

K.R.D. said, at trial or in her child advocacy interview. He focuses on the claims by

his wife and mother-in-law that they are light sleepers and would have heard him

walking around the house. However, K.R.D. specifically testified the touching

typically occurred while Defendant was lying in his bed within arms-reach of K.R.D.

when she was sleeping with Layla next to Defendant’s side of the bed. On the one

occasion where she stated Defendant touched her on the couch in the living room,

she testified he had been on the couch with her and Layla when she went to sleep.

Accordingly, as noted by the State in its brief, Defendant’s claim that people in the

house would have heard him moving around is nothing more than a red herring,

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given that K.R.D. always placed Defendant in a position where he would not have

to move at all in order to touch her.

Defendant attacks the quality of the investigation by Captain Watkins because

no physical examination was conducted to obtain physical evidence. As noted

above, Captain Watkins stated he opted not to have an exam done for multiple

reasons, chief amongst them being the fact that K.R.D. said the touching had not

happened for weeks before she reported to Jada. Furthermore, given K.R.D.’s

statements that Defendant touched her vagina with his fingers and her statement that

she had never bled after Defendant touched her, we are unclear on what physical

evidence Defendant believes would have been found if an exam had been performed

months after the last instance of abuse.

Finally, Defendant offers no examples of “internal contradiction” such that

K.R.D.’s testimony should be discredited. Marshall, 943 So.2d at 369. He simply

attacks her identification of Defendant as her abuser because of her statements that

she “didn’t really see anything” and that she did not “really know how to explain” it

was Defendant touching her with his hands. K.R.D. specifically stated in her child

advocacy interview that sometimes she could see Defendant’s hand moving and that

on one occasion he specifically asked her if it “felt good.” Furthermore, all of the

instances described by K.R.D. involved circumstances where the only two people

who could be touching her were Defendant and his two-year-old daughter. To

suggest K.R.D. could not tell the difference between being touched by a thirty-year-

old man or a two-year-old child is a suggestion that is anathema to common sense.

As Defendant himself complained about a lack of physical evidence, there is no such

evidence to contradict K.R.D.’s testimony.

At the end of the trial, the jury found K.R.D.’s testimony to be credible.

Viewing the evidence in the light most favorable to the prosecution, as required by
13

Jackson, 433 U.S. 307, a rational juror could have found Defendant guilty beyond a

reasonable doubt. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues the trial court improperly

allowed Jada Bragg to testify to hearsay as the first person to whom K.R.D. reported

her abuse. Although Defendant acknowledges that La.Code Evid. art. 801(D)(1)(d)

specifically allows prior statements of a witness to be allowed into evidence as non-

hearsay where the statements are consistent with the testimony of the witness who

has testified at trial when the statements are of an initial report of sexual abuse, he

contends the State failed to prove Jada Bragg was the first person to whom K.R.D.

reported. Defendant’s argument can be summarized in his conclusory statement

that:

It is not merely plausible that KRD confided to someone else
prior to disclosing to Jada, it is highly likely. After all, it should be
recalled that KRD divulged her “secret” to Jada under almost casual
questioning from the latter regarding the accuser’s disinterest in staying
at the Bragg home.

Initially, we note that under La.Code Crim.P. art. 841(A):

An irregularity or error cannot be availed of after verdict unless
it was objected to at the time of occurrence. A bill of exceptions to
rulings or orders is unnecessary. It is sufficient that a party, at the time
the ruling or order of the court is made or sought, makes known to the
court the action which he desires the court to take, or of his objections
to the action of the court, and the grounds therefor.

Not only did defense counsel fail to object to Jada Bragg’s testimony, defense

counsel, in objecting to Jada stating what K.R.D.’s mom had said, specifically

acknowledged that Jada “certainly can testify about anything the alleged victim uh,

told her, thank you.” Furthermore, even if defense counsel had objected to Jada’s

testimony, Defendant’s claim that no one ever asked if Jada was the first person

K.R.D. told is factually incorrect, as is his assertion that the “State assiduously

14

avoids asking K.R.D. whether she told anyone prior to Jada.” During K.R.D.’s

interview at the child advocacy center, Ms. Bell specifically asked her, aside from

Jada and subsequently Jada’s and K.R.D.’s mothers, had she ever “talked with

anyone else about what all has gone on with Tyler,” to which K.R.D. replied

negatively. Because defense counsel failed to object at trial and Defendant’s

argument is premised on a factual inaccuracy, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third and final assignment of error, Defendant argues his sentence

should be vacated because the trial court “erred in considering unadjudicated facts

at sentencing.” In essence, Defendant’s argument complains that it was improper

for the State to offer evidence of the underlying facts of Defendant’s prior conviction

for carnal knowledge of a juvenile, and the trial court erred in overruling defense

counsel’s objection to said underlying facts. In particular, the State suggested to the

trial court that it should consider that the plea deal resulting in a carnal knowledge

of a juvenile conviction was actually an aggravated rape of a three-year-old relative.

Initially, we note that while defense counsel did object to the introduction of

parts of the district attorney’s file in connection to his prior conviction, the basis of

that objection was that counsel considered witness statements to be hearsay that

deprived Defendant of his right to cross-examine the witnesses. Because Defendant

has raised new grounds for objecting to the introduction of the district attorney’s file

connected to his prior conviction, this court may find Defendant waived his current

argument under La.Code Crim.P. art. 841(A), as noted above, by not basing his

objection on the grounds now argued. Nevertheless, we will allow Defendant to

contest the introduction of information related to his prior conviction, the merits of

which are discussed below.

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Defendant’s argument relies heavily on the Supreme Court’s ruling in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000),

wherein the Court held that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Defendant also relies

on the Court’s subsequent clarification in Blakely v. Washington, 542 U.S. 296, 303,

124 S.Ct. 2531, 2537 (2004), that “[o]ur precedents make clear, however, that the

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Neither case is applicable to Defendant’s claim.

In Apprendi, the defendant pled guilty to a crime with a sentencing range of

five to ten years but which featured a hate crime enhancement, which could be

applied based upon a finding by a preponderance of the evidence by the trial court.

Following the defendant’s guilty plea, the State sought enhancement and the trial

court sentenced the defendant to twelve years imprisonment. The Court held that

enhancement violated the defendant’s rights because it allowed an increased

sentencing range without consideration by the factfinder and required less than proof

beyond a reasonable doubt. Likewise, Blakely involved a defendant who pled guilty

to crimes wherein the allowed sentencing range was forty-nine to fifty-three months

imprisonment but where the trial court sentenced the defendant to 90 months

imprisonment based on the court’s determination the defendant acted with deliberate

cruelty, a circumstance which statutorily allowed an increased sentence.

In this case, however, neither the maximum nor minimum sentence to which

Defendant was subjected was affected by the claimed error. Under La.R.S. 14:43.1,

the sentencing range for each count upon which Defendant was convicted was

twenty-five to ninety-nine years, with at least the first twenty-five years to be served
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without benefits. Nothing changed that sentencing range, as even Defendant

acknowledges “the sentencing court had this entire range in which to sentence

[Defendant].” Accordingly, neither Apprendi nor Blakely have any relevance to

Defendant’s case. Indeed, Defendant’s forty-five-year concurrent sentences are on

the lower end of the trial court’s sentencing authority.

Finally, Defendant makes the following claim:

However, [Defendant] submits that the trial court’s sentencing
authority only extended to consideration of the facts adduced at trial or
the inclusion of the fact of [Defendant]’s prior convictions, not the
alleged facts that resulted in [Defendant]’s previous arrests or the
judicial determination of what [Defendant] would have been guilty of
had he elected to go to trial.

This argument ignores prior jurisprudence of this court. In State v. Boyer, 10-

693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, writ denied, 11-769 (La. 1/20/12), 78

So.3d 138, this court engaged in a lengthy recitation of factors that justified a

maximum sentence on armed robbery for the defendant convicted of armed robbery

with a firearm and second degree murder, including criminal charges acquired by

the defendant while incarcerated and the number of times he had been disciplined

while incarcerated. This court then cited State v. Howard, 43,227, p. 12 (La.App. 2

Cir. 6/11/08), 987 So.2d 330, 338, writ denied, 08-1608 (La. 4/3/09), 6 So.3d 766:

In selecting a proper sentence, a trial judge is not limited to considering
only a defendant’s prior convictions but may properly review all prior
criminal activity. State v. Russell,40,526 (La.App. 2d Cir. 1/27/05), 920
So.2d 866, writ denied, 2006-0478 (La. 9/29/06), 937 So.2d 851; State
v. Jackson, 612 So.2d 993 (La.App. 2d Cir. 1993). The sources of
information relied upon by the sentencing court may include evidence
usually excluded from the courtroom at the trial of guilt or innocence,
e.g., hearsay and arrests, as well as conviction records. State v. Myles,
94-0217 (La. 6/3/94), 638 So.2d 218. These matters may be considered
even in the absence of proof the defendant committed the other
offenses. State v. Estes, 42,093 (La.App. 2d Cir. 5/9/07), 956 So.2d 779.
Factors to be considered may include jail disciplinary records. State v.
Russell, supra.

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Defendant provides no jurisprudential or statutory support for his claim that it

was improper for the trial court to consider the circumstances leading to his prior

conviction before sentencing. Likewise, Defendant provides no support for his

conclusion that “As the [trial c]ourt made no specific findings that the submission of

police reports and victim statements were not part of the [c]ourt’s consideration at

sentencing, this [c]ourt must construe the error in [Defendant]’s favor and vacate

[Defendant]’s sentence.” In light of this court’s ruling in Boyer, Defendant’s

argument lacks merit.

DECREE

Defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

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