State of Louisiana v. Michael Dan Roberts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-265

STATE OF LOUISIANA

VERSUS

MICHAEL DAN ROBERTS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 92477
HONORABLE TONY A. BENNETT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Sharon Darville
Wilson, Judges.

CONVICTION AND SENTENCE AFFIRMED.
REMANDED WITH INSTRUCTIONS.

Honorable Asa A. Skinner
District Attorney
Thirtieth Judicial District
Post Office Box 1188
Leesville, Louisiana 71496
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Elvin C. Fontenot, Jr.
Attorney At Law
110 East Texas Street
Leesville, Louisiana 71446
(337) 239-2684
COUNSEL FOR DEFENDANT/APPELLANT:
Michael Dan Roberts

CONERY, Judge.

In the midst of a mutual dispute, Defendant, Michael Dan Roberts, allegedly

struck, kicked, and choked his wife, Jennifer Roberts. Mrs. Roberts was taken by

ambulance to the hospital following the incident where medical personnel took

photographs and noted injuries to her face, limbs, and neck. Although the State

initially charged Defendant with the misdemeanor offense of domestic abuse battery,

a violation of La.R.S. 14:35.3, it ultimately charged Defendant with felony domestic

abuse battery by strangulation, a violation of La.R.S. 14:35.3(A) and (L). The trial

court convicted Defendant as charged following a bench trial and sentenced

Defendant to three years at hard labor, two of which were suspended. The trial court

also imposed a three-year period of supervised probation and ordered restitution in

the amount of $24,475.00 to be paid pursuant to a payment plan developed by the

Department of Corrections, Office of Probation and Parole. Defendant appeals. For

the following reasons, we affirm Defendant’s conviction and sentence. We remand

this matter for the trial court’s approval of the payment plan formulated by the Office

of Probation and Parole. We further order a correction of the minutes to accurately

reflect the term of probation is to be three (3) years.

FACTS AND PROCEDURAL HISTORY

According to Mrs. Roberts’1 testimony at trial, she and Defendant were at

home in Vernon Parish on the morning of the offense, March 20, 2018, when

Defendant began drinking beer after having his morning coffee.

1
Mrs. Roberts explained that she and Defendant had divorced by the time of trial.

Mrs. Roberts noted she worked from her home office2 for a few hours that

morning before she and Defendant left the house for a meeting with an attorney. She

testified that they first stopped at the American Legion in Leesville. The couple

stayed for roughly an hour, during which time Defendant drank three beers. Mrs.

Roberts testified that, after spending about forty-five minutes at the lawyer’s office,

Defendant drove them to the Daiquiri Station, arriving “between two and 2:30,

roughly.” Mrs. Roberts explained that Defendant had more than three beers there.

They then left because she wanted to greet their daughter, Cameron, as she arrived

home from school. Mrs. Roberts noted that Defendant was getting agitated about

wanting to play cards at the Daiquiri Station during the drive home. After returning

home, to drop off Mrs. Roberts, Defendant immediately went back to the Daiquiri

Station to play cards. He left the house before 3:30 p.m.

Mrs. Roberts noted she and Cameron were in her home office when Defendant

returned around 6:30 p.m. She explained that when Defendant returned, he was

smiling, he wavered a little bit in his stance, and his eyes were red. She also noted

he was “a little fumbly” when he got out of the truck. Having been married to

Defendant for six years at that point, Mrs. Roberts believed that Defendant had

continued drinking while he was gone. Mrs. Roberts noted he stayed in the home

office with her and Cameron for a few minutes, joking with them.

After he returned to the living room to watch television, Mrs. Roberts and

Cameron approached Defendant to discuss his drinking. When Defendant profanely

responded, Cameron began to cry. Mrs. Roberts explained that Defendant then

2
Noting she has a master’s degree in nursing and education, Mrs. Roberts stated that, at
the time of trial, she was on long-term leave for post-traumatic stress disorder (PTSD) and
traumatic brain injury. She testified that prior to her leave beginning in March 2019, she had been
a senior clinical consultant for a health insurer.

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pointed at Cameron and told Mrs. Roberts, “‘You know what she thinks of you? She

hates you. She wishes you would leave.’” Mrs. Roberts testified Defendant tried to

hug Cameron, who resisted, at which point he picked her up and “put her very

roughly on the couch and then s[a]t on her[,]” which led to Cameron begging him to

get off. Mrs. Roberts testified that after she stood up, Defendant likewise stood up,

and she put her arm up to defend herself.

According to Mrs. Roberts, Defendant then went outside to the back porch.

She followed him, and he began to repeatedly curse her. Mrs. Roberts testified that,

at that point, Defendant grabbed her with both hands near her shoulders and upper

body and slammed her onto the tile floor. She explained that she landed on her back

with Defendant on top of her, punching her and calling her names. Mrs. Roberts

stated that after hitting her repeatedly, Defendant placed his forearm against her

throat and put all his weight on his forearm. She testified she felt like she was dying

because she could not breathe. She testified that Defendant twice pushed his forearm

into her neck and throat, impeding her breathing.

Mrs. Roberts explained that the couple continued to struggle, with Defendant

placing his hands on her throat, punching her, and slamming her head against the

floor. Mrs. Roberts stated that she managed to stand, at which point Defendant threw

her to the ground again and continued choking her with his hands. She noted

Defendant eventually pressed his shin and knee against her throat, again preventing

her from breathing. She testified that she was finally able to get Defendant off her,

at which point he returned to the living room where Cameron had been when the

attack started. Mrs. Roberts testified that she was unable to stop Defendant from

going back to the living room, stating he again picked her up and slammed her onto

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the kitchen floor before kicking, punching, and strangling her until she became

unconscious.

Mrs. Roberts testified that the last things she remembered before passing out

were that Cameron had hidden, that she felt she was going to die, and that Defendant

kicked her in the head. The next thing she remembered was her neighbor, Dawnn

Rommes, standing over her in the kitchen.

The neighbor, Ms. Rommes, also testified at trial, explaining that she became

involved in the matter after finding Cameron upset in the front yard and seeing

Defendant leave the home in his vehicle. When Cameron informed Ms. Rommes

that her parents were fighting, Ms. Rommes sent Cameron into the Rommes’ home

and told her to lock the door. Ms. Rommes then entered the Roberts’ home, finding

Mrs. Roberts “laying on the kitchen floor.” After Ms. Rommes called 911, Acadian

Ambulance arrived, placed Mrs. Roberts in a C-spine with a collar, started I.V.s, and

moved her into an ambulance. Mrs. Roberts was taken to Byrd Regional Hospital,

where she later spoke with Deputy Sullivan of the Vernon Parish Sheriff’s Office. 3

In addition to taking her statement,4 Deputy Sullivan also took photographs of Mrs.

Roberts’ wounds.5

3
Ms. Rommes’ statement to authorities indicated:

I entered their home & saw Jen curled on the floor, trying to use her phone – which
couldn’t work w/her knuckle. She had visible abrasions on her mouth, both arms
& neck (chest) areas. She said she couldn’t move & I told her to stay still, as I
called 911.”
4
Mrs. Roberts noted that Deputy Sullivan had to write her statement for her because her
vision was impaired following the blows to her head.
5
Referencing those photos at trial, Mrs. Roberts noted she had numerous hematomas on
her head and numerous marks on her neck and throat area, including a mark just below her
windpipe that she believed was caused by Defendant’s putting his boot on her neck. Mrs. Roberts
testified that she has several ongoing medical and mental ailments as a result of the attack.

4

The record indicates that Defendant was arrested two days following the

incident. On July 10, 2018, the State initially charged Defendant with one count of

misdemeanor domestic abuse battery against his wife, a violation of La.R.S. 14:35.3.

The State subsequently filed a September 17, 2018 amended bill of information

charging Defendant with felony domestic abuse battery by strangulation, a violation

of La.R.S. 14:35.3(A) and (L). After Defendant waived his right to a jury trial in

May 2019, the matter proceeded to a bench trial in October of that year.

At trial, in addition to Mrs. Roberts’ testimony and photographs taken at the

hospital, the State entered a purported video of the altercation into evidence at the

bench trial. Mrs. Roberts explained that she recorded the footage of the attack from

an eight-camera security system installed by Defendant about five weeks before the

offense. Mrs. Roberts explained that she provided the recording to Detective

Rhonda Jordan with the Vernon Parish Sheriff’s Office. As addressed further below,

Defense counsel objected to the introduction of the video of the incident, claiming

it had no idea the video was recorded by the victim and not obtained by the Sheriff’s

Office on its own. The court, however, admitted the video and stated:

All right, the testimony shows that it is the -- the same or
substantially the same as it was. I know there’s some technical
difficulties and this -- this system did not actually have a disc that
should be taken out. So, I am going to allow it. I will note your
objection for the record, Mr. Fontenot.

Upon the State’s playing of the video--which depicted the attack up to the point

where the couple returned to the interior of the home—Mrs. Roberts confirmed that

the video accurately depicted what happened on March 20, 2018, and verified

Defendant was the person attacking her.

Defense counsel challenged the sufficiency of the State’s evidence, in part by

questioning Mrs. Roberts at length about why she used the phrase “impeded [her]

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breathing” in court when she did not use that phrase in her prior statements, and

pointed out that x-rays taken at the hospital did not show any breaks. Defense

counsel also questioned Mrs. Roberts’ own actions that evening, asking why she

followed Defendant outside on the back porch, why she thought it was a good idea

to confront Defendant about his drinking while he was drunk, and insinuating that

she followed him outside simply because she knew there were cameras on the porch.

Defense counsel then posed a series of questions regarding Mrs. Roberts’ behavior

after the attack, including reports she made to the FBI, attempts to have him removed

from his Masonic Lodge, and an incident in which she blocked Defendant’s vehicle

in a parking lot. Defendant also raised questions regarding Mrs. Roberts’ behavior

during a court-ordered custody evaluation performed during the couple’s divorce

proceeding.

On redirect, Mrs. Roberts noted that while she did not explicitly use the word

“impede” in her statements to police, she considered her comments to Detective

Sullivan that Defendant choked her and stood on her throat with his boot to be

actions which impeded her breathing. The State rested after the conclusion of Mrs.

Roberts’ testimony. Defense counsel then moved for a judgment of acquittal,

stating:

[T]he only person who has testified in this Court that her breathing was
impeded is the victim. We have had a number of documents introduced
into evidence from the hospital, none of which indicate a loss of
consciousness or any report by the victim that she couldn’t breathe.
And in fact most of the test -- not most, all of the tests that were run --
run by the hospital show no evidence that she ever at any time had any
difficulty breathing.

The trial court denied the motion.

In response, Defendant called several witnesses and offered documentary

evidence in support of his position that Mrs. Roberts’ trial testimony regarding her

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breathing being “impeded” was contradicted by hospital records and investigative

statements. Defendant also called a witness regarding Mrs. Roberts’ behavior after

the incident, including an incident in which Mrs. Roberts allegedly blocked

Defendant’s vehicle at a local restaurant, and events surrounding the above-

referenced court-ordered custody evaluation by Ms. Robin Miley, a licensed

professional counselor.

Ms. Miley, accepted by the trial court as an expert in custody evaluations,

testified that she and Mrs. Roberts initially met, along with Cameron, and Mrs.

Roberts agreed to let Ms. Miley conduct an interview with Defendant and Cameron.

However, on the day of the evaluation, Ms. Miley noted that a Mrs. Faircloth called

and spoke with Ms. Miley’s office manager and explained that there was a protective

order in place as well as charges pending against Defendant, so Ms. Miley called

Defendant and told him not to come, instead meeting with just Cameron. Ms. Miley

testified that she informed Mrs. Roberts’ mother, who had accompanied Cameron,

that she intended to call Defendant during the interview, at which point she was told

an arrest was planned if Defendant showed up at Ms. Miley’s office. Ms. Miley

testified that during the phone call with Defendant, Ms. Miley never felt Cameron

was afraid to be around Defendant.

Ms. Miley noted that Mrs. Roberts reported being “sexually abused when she

was 11 years old and again recently. Physically assaulted as a teenager and over the

past six years.” Ms. Miley testified that she “felt that Ms. Roberts truly believed that

she had been a victim of domestic violence[,]” but noted that Mrs. Roberts never

told her she was unable to breathe or that her breathing was impeded during the

subject attack. Ms. Miley testified that Defendant reported to her that he told Mrs.

Roberts prior to the March 20, 2018 attack that he was planning to divorce her and

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that she was opposed to divorce; however, Ms. Miley did not discuss the issue with

Mrs. Roberts. Ultimately, Ms. Miley felt that both parties needed some

psychological evaluation before she could make any recommendation as to custody.

On cross-examination, Ms. Miley confirmed that she did not speak to Mrs.

Faircloth or Mrs. Roberts on the day of the interview with Defendant, simply that

her office manager had spoken to Mrs. Faircloth. She also noted that no one ever

told her the police had been called on Mr. Roberts and that law enforcement never

contacted her regarding Mr. Roberts. Ms. Miley also noted that she was concerned

with both the domestic abuse allegations against Defendant and his alcohol use,

noting that Mr. Roberts was not as concerned about his alcohol use as he considered

himself a “social drinker.” She acknowledged, however, that Cameron stated

Defendant’s temperament was worse when he was drunk. Ms. Miley noted she felt

Defendant increased his alcohol use after losing his job because he was bored, was

self-medicating, was depressed, and was compensating for lack of control in his life.

She also noted Defendant indicated he was still drinking at the time of the evaluation.

Defense counsel also called Ms. Rommes, the neighbor who found Mrs.

Roberts on the kitchen floor. Ms. Rommes testified that she had lived across the

street from Mrs. Roberts and Defendant for four years prior to the attack, and she

and Mrs. Roberts had a sister-like connection at that time. Ms. Rommes testified,

however, that she and Mrs. Roberts were no longer friends, in part because of things

that Mrs. Roberts had said about that evening. While she confirmed that Mrs.

Roberts had shown her the video recording and that it “pretty much sums up

everything” as to what she was initially told, other statements from Mrs. Roberts on

“Facebook Messenger” caused her concern. Ms. Rommes explained that:

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[T]he first time that I had heard … a scenario that Michael had hurt
Cameron that night … Jennifer had sent out a mass text on Facebook
Messenger and it detailed what she said happened that night and I didn’t
agree with it because Cameron would have told me. I was very close
with Cameron, she would have told me something.

On cross-examination, Ms. Rommes confirmed that she gave a voluntary statement

to law enforcement wherein she stated that Cameron was hysterical, crying that her

father was hitting her mother, and that when she found Mrs. Roberts on the floor,

Mrs. Roberts could not move very well and had bruises and abrasions around her

neck, mouth, and arms.

After the defense rested its case, the trial court found “beyond a reasonable

doubt that the State did prove each and every element of the crime charged and

[found] the defendant guilty of felony domestic abuse battery by strangulation.” On

January 21, 2020, the parties entered a stipulation that Defendant would be required

to pay Mrs. Roberts restitution in the amount of $24,475.00.

The trial court thereafter sentenced Defendant as follows:

[I]t is the sentence of the Court, that on felony domestic abuse battery,
you serve three years at hard labor with the Louisiana Department of
Corrections and pay a fine of $500 plus court costs. I am going to
suspend two years of that sentence. After you are released from prison,
you will be placed on supervised probation for a term of three years
subject to the general conditions of probation and the following special
conditions. Pay the fines, restitution of $24,475 to Jennifer Roberts,
and court costs per month on a pay plan through the probation office.
Pay supervision fee in the amount of $60 per month plus five dollars
and fifty … cents per month to the Sexo-Tech Fund. Complete a court-
approved domestic abuse intervention program. It’s also gonna be the
order of the Court that you not own or possess a firearm throughout the
entirety of the sentence. It’s also the order of the Court that after you
are released from prison, you will attend and complete a substance
abuse evaluation and whatever treatment is recommended. I’m also
gonna order that you not have any contact with Jennifer Roberts. And
when I say “any contact,” I mean any contact. You are not to drink
any alcoholic beverage or step foot in any business whose primary
business is the sale of alcohol while on probation. You’re gonna
comply with Code of Criminal Procedure Article 895(A).

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ASSIGNMENTS OF ERROR

Defendant appeals his conviction, assigning the following as error:

1. Appellant contends that the evidence is insufficient and failed to
establish [] an essential element of the crime charged herein.

2. The Trial Court erred in admitting video from victim’s phone
into evidence.

Errors Patent

In addition to the two assignments addressed in his appellant’s brief,

Defendant also seeks review for errors patent on the face of the record, a review this

court conducts as a matter of course pursuant to La.Code Crim.P. art. 920. Following

that review, we find one such error and further determine that the court minutes are

in need of correction.

The error pertains to the trial court’s conditions of probation; namely, the

order that Defendant make restitution to Mrs. Roberts in the amount of $24,475.00,

and to pay a fine of $500.00 and court costs. The trial court ordered these to be paid

“per month on a pay plan through the probation office.”

However, when such payment plans are determined by the Office of Probation

and Parole, trial court approval is required. In State v. Stevens, 06-818, pp. 3-6

(La.App. 3 Cir. 1/31/07), 949 So.2d 597, 599-601, this court stated:

Upon reconsideration, we find nothing in the statute which
prohibits the trial court from seeking assistance from outside sources,
including Probation and Parole, in formulating the appropriate payment
plan. In fact, Probation and Parole may be in a better position to
formulate a workable payment schedule than is the trial court. In taking
advantage of this assistance, the trial court in no way cedes its
responsibility to impose the payment plan, and it only becomes
effective upon approval of the trial court.

....

Defendant’s sentences are affirmed. . . . We remand the case to
the trial court with the instruction that the court impose a payment plan

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for restitution and for payment of the Indigent Defender Board which
complies with the requirements of La.Code Crim.P. art. 895.1(A) and
this opinion. We reiterate that the plan may either be determined by the
trial court or be formulated by Probation and Parole and approved by
the trial court.

Accordingly, as the trial court in this case anticipated that the plan would be

formulated by the Office of Probation and Parole, we remand this matter to the trial

court with directions to make certain the plan has been formulated and for its

approval of that plan once formulated.

The trial court minutes of sentencing also require correction. The sentencing

transcript reveals Defendant was placed on probation for a period of three years

while the sentencing minutes indicate this period was two years. “[W]hen the

minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-

137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the court

minutes of sentencing to accurately reflect that the term of Defendant’s probation is

three years.

Assignment of Error Number 1 – Sufficiency of the Evidence

In his first assignment of error, Defendant contends there is insufficient

evidence to support his conviction because he claims the State failed to prove that

as a result of his conduct, “the victim’s breathing or circulation of blood was

impeded by him applying pressure to the neck or throat.” Defendant also contends

that, aside from Mrs. Roberts’ testimony and the video of the incident, “[n]o other

evidence was presented by the State to support Mrs. Roberts[’] contention that the

conduct of [Defendant] impeded her ability to breath.”

The photographs of Mrs. Roberts, however, taken at the hospital hours after

the attack, clearly show bruising and damage to her neck and throat area.

11

Additionally, Mrs. Roberts testified extensively regarding Defendant’s use of his

weight against her neck, impeding her breathing.

The analysis for insufficient-evidence claims 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.

Undermining Defendant’s contention that the evidence is insufficient as it is

based primarily on the victim’s testimony, the supreme court has explained:

A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02–1043, p. 3 (La.6/27/03); 848 So.2d 557,
559. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the fact
finder, is sufficient support for a requisite factual conclusion. State v.
Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79.

State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, 566

U.S. 930, 132 S.Ct. 1859 (2012).

Defendant was convicted of domestic abuse by strangulation under La.R.S.

14:35.3(A) and (L). Strangulation is defined under La.R.S. 14:35.3(B)(7) as

“intentionally impeding the normal breathing or circulation of the blood by applying

12

pressure on the throat or neck or by blocking the nose or mouth of the victim.”

Defense counsel did not refute the evidence of the attack itself but claimed that the

State’s evidence was insufficient as Mrs. Roberts did not use the phrase “impeded

her breathing” until trial. The trial court clearly rejected this argument and stated:

It was brought up on numerous occasions that Ms. Roberts never said
the word impeded in any statement. The Court can tell you that, using
my commonsense, I’ve also never used or heard the word impeding
routinely used in conversation. I have heard or used the word choked
or strangled. When I looked at the Byrd records, Ms. Roberts said -- or
the record says, “The patient complains of pain to the throat and neck.
She stated that he stood on her neck.” The assessment was, “There was
tenderness present in the neck.” Her statement said, “He choked me,
then stomped me in the throat area. He then stood on my throat grinding
his foot into my throat.” I then read Deputy Sullivan’s report where she
reported him “punching her in the face and choking her.”

In ruling, the trial court referenced both the video of the attack and the

photographs of the victim taken shortly after the attack. In particular, the judge

explained that the video confirmed Mrs. Roberts’ claims that Defendant held her

down by the neck multiple times, including putting his knee and shin across her

neck. Pursuant to Dorsey, the video is actually not necessary to find the State met

its burden of proving beyond a reasonable doubt Defendant impeded the breathing

of the victim during his attack. Defendant’s argument regarding the admissibility of

video is thus not determinative.

In particular, there is no internal contradiction or irreconcilable difference

between Mrs. Roberts’ testimony regarding the attack and the physical evidence.

Despite Defendant’s claim that the hospital tests show no damage to her neck, the

evidence indicates that the only tests run were x-rays. Injury to a bone is not essential

to the State’s burden; it instead was required to demonstrate that Defendant

“intentionally imped[ed] the normal breathing or circulation of the blood by

13

applying pressure on the throat or neck or by blocking the nose or mouth of the

victim.” See La.R.S. 14:35.3(B)(7).

Additionally, the photographs taken at the hospital clearly show bruising and

swelling around Mrs. Roberts’ neck and throat, supporting her assertions that

Defendant stomped on her neck, used his knee and shin to put pressure on her neck,

and that he choked her. Given this evidence, any reasonable trier of fact, when

viewing the evidence in the light most favorable to the prosecution, could have found

there was sufficient evidence to prove beyond a reasonable doubt that Defendant’s

attack impeded the breathing of the victim by applying pressure to the throat or neck.

Accordingly, Defendant’s claim of insufficient evidence lacks merit.

Assignment of Error Number 2 – Admissibility of Video

Defendant contends in his second assignment of error that the trial court erred

in admitting State’s Exhibit 1, a video of the attack. Defendant objected at trial after

learning that Mrs. Roberts used her cellphone camera to record the video of the

security footage. Mrs. Roberts then provided the video to law enforcement.

Although defense counsel objected to the introduction of the video when it was

presented during trial, the State made its intention to introduce both the video and

the photographs of the victim taken at the hospital prior to Mrs. Roberts taking the

stand. At that time, defense counsel specifically noted that he had no objection to

either the video or the photographs.

The State contends that:

Most importantly, the video, itself, plainly shows that it was
copied from a computer monitor, at Ms. Roberts’ home, by Ms. Roberts
herself, on her cell phone, and was not an original CD provided by the
security company. There was absolutely nothing contained anywhere
in this video that would have led the defense to believe it was the
original security camera surveillance recording, or that it was an actual
duplicate, thereof, made by the security company. In fact, the record

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shows that the State never indicated to the defense, in any manner, that
this video was anything other than a copy made by Ms. Roberts and
provided to the police.

The State also noted that the video was provided to defense counsel on January 15,

2019, with the DVD envelope stating it was “provided by the victim” and noting the

evidence log, provided as part of discovery, clearly shows it was provided by Mrs.

Roberts.

Review of the video confirms the State’s arguments as it is immediately

apparent that the video is not the original from the security camera. It is instead

clearly a recording of the video. Additionally, on the video, Mrs. Roberts can be

heard answering a phone call and having a conversation with the caller. The video

was provided to the defense prior to defense counsel actually enrolling on January

31, 2019. Accordingly, trial counsel was in possession of the video, which is clearly

a recording of a computer monitor, for over eight months prior to the commencement

of trial. There is no indication that defense counsel sought clarification regarding

the production of the video. Furthermore, defense counsel explicitly stated it had no

objection to the introduction of the video when trial commenced.

In State v. Coker, 625 So.2d 190 (La.App. 3 Cir.), writ denied, 624 So.2d 1204

(La.1993), the State introduced the defendant’s oath of office as evidence during a

trial for malfeasance in office. The defendant objected, arguing the State failed to

reference the oath of office during discovery when the defense sought disclosure of

all evidence which might be favorable to defendant. This court noted:

The appropriate remedy, if the defendant were dissatisfied with the
State’s incomplete response, would have been to submit a
supplementary discovery request or to have filed a motion to compel
discovery in order to force the State to fully answer the defense request.
Considering the fact that the defense had a lengthy period between the
time it received the State’s response and the beginning of trial, the
defendant had ample opportunity to assess the State’s answers and

15

determine whether additional information was necessary. The
defendant, therefore, suffered no prejudice as a result of the incomplete
answer.

Coker, 625 So.2d at 194.

This court also stated, “Defense counsel propounded the request and must be

held responsible for reviewing and evaluating the State’s responses. Permitting any

party seeking discovery to benefit at trial from its failure to pursue obvious

deficiencies in responses to discovery would encourage ‘sandbagging’ by that

party.” Id.

In this case, Defendant was in possession of the video of the attack for more

than eight months prior to trial. As in Coker, Defendant’s failure to pursue additional

information regarding the video during that time prevents him from now

complaining that he was unaware the video was not an original. Furthermore, even

if the video were inadmissible, any error would be harmless. As pointed out in the

sufficiency review, Mrs. Roberts’ testimony, coupled with the photographs taken at

the hospital following the attack, as well as the hospital records, are sufficient to

prove Defendant impeded Mrs. Roberts’ ability to breathe during his attack.

Accordingly, this assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

This matter is remanded to the trial court for its approval of the payment plan

formulated by the Office of Probation and Parole. The trial court is ordered to

correct the court minutes to accurately reflect that the Defendant’s term of probation

is three years.

CONVICTION AND SENTENCE AFFIRMED.
REMANDED WITH INSTRUCTIONS.

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