State of Louisiana v. Lance S. Barton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 20-274

STATE OF LOUISIANA

VERSUS

LANCE S. BARTON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. CR 84349
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

**********

SHARON DARVILLE WILSON
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Hon. Donald D. Landry
Lafayette Parish District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
P.O. Box 52988
Shreveport, LA 71135
(318) 222-1700
COUNSEL FOR DEFENDANT APPELLANT:
Lance S. Barton

Lance S. Barton – Pro Se
Louisiana State Prison
17544 Tunica Trace - Oak-3
Angola, LA 70712
COUNSEL FOR DEFENDANT APPELLANT:
Lance S. Barton

WILSON, Judge.

The Defendant, Lance Barton, was charged by grand jury indictment

with five counts of molestation of a juvenile under the age of five, violations of La.

R.S. 14:81.2. The State dismissed counts two through five. Following a trial by

jury, Defendant was found guilty of one count of molestation of a juvenile. The

trial court sentenced Defendant to ninety-nine years at hard labor, with fifty years

to be served without benefit of parole, probation, or supervision of sentence. The

trial court ordered Defendant to receive chemical castration treatment for the

entirety of his life, pursuant to La. R.S. 14:43.6(B). Defendant appeals. For the

following reasons, we affirm.

I.

ISSUES

We must decide:

(1) Whether evidence that was properly admissible
was insufficient to establish beyond a
reasonable doubt that Lance Barton molested
J.P;

(2) Whether the trial court erred when it allowed
the State to admit, over the objection of Lance
Barton, hearsay testimony (A) from Bridget
Dartez with the Department of Children and
Family Services and (B) an interview with J.P.
on June 9, 2015, which was introduced through
the testimony of Jennifer Smith, a forensic
interviewer at Hearts of Hope; and

(3) Whether the trial court erred when it allowed
the State to admit, over the objection of Mr.
Barton, Louisiana Code of Evidence Article
412.2 evidence; and

(4) Whether the trial court erred by imposing an
improper and/or an unconstitutionally harsh and
excessive sentence; and

(5) Whether the trial court erred by allowing the
prosecution to introduce Defendant’s prior
sexual convictions under the pretext of
Louisiana Code of Evidence Article 412.2.1

II.

PROCEDURAL HISTORY

On August 26, 2015, the Acadia Parish Grand Jury returned an

indictment charging that, from on or about July 1, 2014, until June 2, 2015, Mr.

Barton willfully, unlawfully, and intentionally committed lewd or lascivious acts

upon a juvenile, age 5, with the intention of arousing or gratifying the sexual

desires of either person, by the use of force, violence, duress, menace,

psychological intimidation, threat of great bodily harm, or by the use of influence

by virtue of a position of control or supervision over the juvenile, in violation of

La. R.S. 14:81.2. On September 10, 2015, Mr. Barton waived formal arraignment

and pled not guilty.

On October 12, 2017, Defendant notified the trial court that he would

represent himself.

On May 24, 2018, the State provided notice of other crimes evidence

pursuant to La. Code of Evid. Art. 412.2.2 Defendant filed a pro se motion in

limine in response and counseled motions to exclude article 412.2 evidence. The

Assignment of Error introduced in Defendant’s Pro Se Supplemental Brief.
1
2
In a case in which the state intends to offer evidence under the provisions of this
Article, the prosecution shall, upon request of the accused, provide reasonable notice in
advance of trial of the nature of any such evidence it intends to introduce at trial for
such purposes.

Louisiana Code of Evidence Article 412.2 (B).

2

article 412.2 motions were withdrawn on August 16, 2018, and on October 11,

2018, the trial court denied a renewed motion to exclude article 412.2 evidence.

Throughout the pre-trial timeline, the State filed several article 412.2 notices, and

in response, Defendant filed motions to exclude or raised an objection.

On October 10, 2018, Defendant moved to exclude a June 29, 2015,

child forensic examination of the victim. The trial court denied this motion on

October 11, 2018.

On September 24, 2019, the jury trial began. At the start of trial, prior

to calling the first witness, the State introduced evidence of Defendant’s prior

convictions. Defendant objected.

On September 25, 2019, the State called the victim, J.P., as their first

witness. In her testimony, the victim testified that Defendant did not touch her.

After hearing all the evidence, arguments of counsel, and the trial court’s jury

instructions, the jury found Defendant guilty as charged.

On October 11, 2019, Defendant filed a motion for post-verdict

judgment of acquittal and a pro se motion for new trial. After a hearing on October

14, 2019, the trial court denied the motion and a sentence was imposed.

On October 28, 2019, Defendant filed a motion for appeal, and the

order of appeal was filed the next day.

III.

FACTS

Defendant was convicted of molesting the five-year-old

granddaughter of his girlfriend. In her first recorded interview at Hearts of Hope,

the victim denied any claim that Defendant touched her inappropriately. In a

subsequent statement to a caseworker and in a second recorded interview at Hearts

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of Hope, however, the victim accused Defendant of touching her private part and

butt with his hand. At trial, the victim testified that Defendant did not touch her

inappropriately and stated that she did not remember the prior statements in which

she accused Defendant.

IV.

LAW AND DISCUSSION

ERRORS PATENT

In accordance with La. Code Crim. P. art 920, all appeals are

reviewed for errors patent on the face of the record. After reviewing the record, we

find there are no errors patent.

ASSSIGNMENT OF ERROR NO. 1

Defendant calls into question the sufficiency of the admissible

evidence used to prove he committed molestation of the victim in this case.

Evidence at Trial

The victim was the first witness called by the State, and she began by

testifying that she knew the difference between the truth and lie. The victim

testified that she was six years old in 2015. When asked if she remembered ever

having a conversation with Defendant, the victim responded “No” but later

testified that she had spoken with him on the phone. The victim testified that she

knew the Defendant because he was “with her grandma” and referred to him as

“Pa-Pa.”

The victim testified that she remembered going to Hearts of Hope but

did not remember the conversation she had with the case workers. She

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remembered coloring but did not remember discussing private parts or the

difference between good and bad touches. She did not remember anyone asking if

she had been touched in a bad place, but she did remember telling the interviewer

that no one had ever touched her. On re-direct, when asked if she remembered her

first Hearts of Hope interview where she said that nothing happed, the victim

responded, “Yes.” However, when asked if she remembered the second time when

she said something did happen, the victim replied, “No.”

Next, the State called Jennifer Smith, a forensic interviewer with

Hearts of Hope. Ms. Smith testified that she interviewed the victim on June 9,

2015. The video of the June 9, 2015 interview was played for the jury. During

this interview, the victim is seen telling Ms. Smith that no one touched her private

parts, and at the end of this interview, the victim states to Ms. Smith that she is

going to talk to the cops and that her mother told her not to tell the cops that

someone touched her private part.

The next witness called was Allison Roy, also a forensic interviewer

with Hearts of Hope. Ms. Roy testified that she interviewed the victim on June 29,

2015, the second interview. The video of this interview was played for the jury.

During this interview, the victim stated that the Defendant touched her in her

private part when she was sleeping in the bed with the Defendant and her “maw

maw.” The victim also told Ms. Roy that Defendant touched her on another

occasion, at a motel in Lake Charles, LA. The victim stated that she believed the

Defendant was “doing it on purpose” and that her mom said she was going to “kill

him.”

The next witness, Bridget Dartez, testified that she was a child

protection investigator with the Department of Children and Family Services in

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Acadia Parish. According to Ms. Dartez, during an interview at Hearts of Hope,

the victim indicated that her mother told her “not to disclose, not to say anything

should she have been touched inappropriately.” Ms. Dartez asked the victim’s

mother permission to interview the victim a second time. Ms. Dartez went to the

victim’s house and interviewed the victim a second time. Ms. Dartez testified that

the victim also told her that the Defendant touched her while sleeping in the bed

between the Defendant and her “maw maw.” Ms. Dartez testified that, following

the interview, she scheduled the second interview with Hearts of Hope. Ms.

Dartez testified that she briefly interviewed the victim on June 8, 2015, after the

victim had returned to her mother from visiting her father and five days after Ms.

Dartez had interviewed the victim’s mother. This interview took place at the house

of the victim’s aunt, where the family had been staying after the Department of

Child and Family Services (DCFS) made them leave their home following the

alleged offense.3

When asked whether she asked the victim if she had been improperly

touched, Ms. Dartez answered that she did not ask the victim for details since the

victim’s Hearts of Hope interview was scheduled for the following day 4. Since the

victim was only five years old, Ms. Dartez did not want to lead her into questions

so near to the Hearts of Hope interview. As for the first Hearts of Hope interview,

Ms. Dartez testified that she watched the interview and remembered the victim

repeatedly saying that no one ever touched her. Defense counsel asked Ms. Dartez

if the victim told the interviewer that her mom instructed her not to say that she

was touched; Ms. Dartez answered: “She said that mom told me that, yes, someone

3
Due to the proximity of the Defendant, a registered sex offender.
4
This is in reference to the first Hearts of Hope interview on June 9, 2015.

6

did touch me not to say anything. Something along those lines.” According to Ms.

Dartez, the interviewer asked the victim if she was telling the truth, and the victim

answered, “Yes.” Ms. Dartez further testified that after the interviewer questioned

the victim about her mom, the interviewer again asked the victim if anyone ever

touched her. According to Ms. Dartez, the victim replied, “No.”

During a conversation with Detective Kim Matthews on June 15,

2015, Ms. Dartez learned that the victim would be interviewed a second time by

Hearts of Hope, which led Ms. Dartez to question the victim once again.

According to Ms. Dartez, the interview was not recorded, and the victim was

alone. Although Ms. Dartez took notes and used them to make a report, Ms.

Dartez shredded her notes.

The Defense called Ms. Krystal Richard, the victim’s mother. She

testified that the victim and Ms. Richard’s other children called Defendant “Pa Pa.”

Ms. Richard testified that the victim did tell her that she had been touched but later

told her that Defendant did not touch her. On cross-examination, Ms.Richard

testified that since the incident in 2015, Defendant has helped her pay bills a

couple of times. Since 2015, Ms. Richard explained, she has talked to Defendant

on her mom’s phone. When asked if her daughters spoke to Defendant, Ms.

Richard answered, “At the beginning, yes, the girls were on the phone with him.”

When asked if her children were ever left alone with Defendant, Ms. Richard

replied that her children were alone with her mom while Ms. Richard was at work.

Ms. Richard then stated, however, that Defendant did babysit her

children once. Ms. Richard testified that when the victim told her she had been

touched, Ms. Richard took her out of the home. Later, however, the victim

“c[a]me out and told [her] that she was never touched.” According to Ms. Richard,

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she asked the victim multiple times whether anyone had touched her. When asked

if she ever told the victim not to tell “them people,” Ms. Richard responded that

she did tell the victim that but the term “them people” was in reference to her other

children. Ms. Richard stated that it was her intention that the victim not tell her

brother and sister about what had happened. Ms. Richard testified that she brought

her kids to the doctor, and the doctor testified that “they was [sic] never touched.”

Ms. Richard explained that she believed her daughter when she stated that she had

been touched and that she also believed her daughter when she said she had not

been touched. During the day of the interview, DCFS visited with the victim; Ms.

Richard testified that she was not present when DCFS spoke with the victim, but

her sister was. The morning of the Hearts of Hope interview, Ms. Richard

testified, she told the police what the victim told her.

Credibility of the Witness

When considering a claim of insufficient evidence, a reviewing court

must determine whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781 (1979). It is not the function of an appellate court to assess credibility or

reweigh the evidence. State v. Stowe, 93–2020 (La. 4/11/94), 635 So.2d 168. State

v. Smith, 94-3116, p. 2 (La. 10/16/95), 661 So.2d 442.

Defendant argues that the only witness with direct knowledge of whether he

molested the victim was the victim herself. At the time of trial the victim testified

that Defendant did not molest her. Therefore, the testimony did not offer the State

any evidence that Defendant committed molestation of a juvenile. Defendant

contends there was no evidence to corroborate the victim’s out-of-court

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accusations against Defendant. Finally, Defendant argues the victim’s out-of-court

accusations, her interview with Ms. Dartez, and her second Hearts of Hope

interview, should not have been considered as substantive evidence of Defendant’s

guilt. The State, however, argues that there was sufficient evidence to convict

Defendant despite the inconsistencies in the victim’s testimony.

When addressing the use of prior inconsistent statements as

substantive evidence of a defendant’s guilt, the second circuit stated the following:

Extrinsic evidence, such as prior inconsistent statements, may
be admitted when offered solely to attack the witness’s credibility.
LSA–C.E. art. 607(D)(2); State v. Givens, 45,246 (La.App.2d
Cir.6/9/10), 41 So.3d 589. Although prior inconsistent statements may
be used to impeach witnesses on the issue of credibility, they
generally could not be used as substantive evidence of the
Defendant’s guilt until the 2004 amendment of LSA–C.E. art.
801(D)(1)(a). State v. Jones, 48,624 (La.App.2d Cir.1/22/14), 132
So.3d 505; State v. Cobb, 2013-1593 (La.App. 1st Cir.3/27/14), 144
So.3d 17. Article 801(D) now provides in pertinent part:

A statement is not hearsay if:

1. Prior statement by witness. The declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement and the statement is:

(a) In a criminal case, inconsistent with his testimony,
provided that the proponent has first fairly directed the
witness’s attention to the statement and the witness has
been given the opportunity to admit the fact and where
there exists any additional evidence to corroborate the
matter asserted by the prior inconsistent statement[.]

Thus, under Article 801(D)(1)(a), a prior inconsistent
statement is not hearsay and can be considered for the truth of the
matter asserted, if the statement is corroborated. State v. Cobb, supra.
This Court has noted that before such prior statements can be accepted
as nonhearsay, and therefore probative, additional evidence must also
corroborate the facts sought to be proved by these prior inconsistent
statements. State v. Rankin, 42,412 (La.App.2d Cir.9/19/07), 965
So.2d 946.

9

State v Wilson, 50, 418, pp. 22-23 (La. App. 2 Cir. 4/6/2016), 189 So.
3d 513, 527-528, writ denied, 16-793 (La. 4/13/17), 218 So. 3d 629.

This Court asserts that corroborating evidence was not needed for the

jury to consider the victim’s second Hearts of Hope interview as substantive

evidence. A statement made by a minor victim to certain qualified persons may be

recorded and introduced into evidence pursuant to La.R.S. 15:440.1 through

15:440.5. Louisiana Revised Statutes 15:440.3 provides that a “videotape

authorized by this Subpart is hereby admissible in evidence as an exception to the

hearsay rule.” The present victim’s Hearts of Hope interview was admitted

pursuant to these provisions. As discussed in the next assignment of error, there

are several requirements for the admission of a prior statement pursuant to La.R.S.

15:440.5. Still, there is no requirement that the statement be corroborated to be

considered as substantive evidence. Evidence that is admitted pursuant to an

exception to the hearsay rule is admissible as substantive evidence. See State v

Koederitz, 14-1526 (La. 3/17/15), 166 So. 3d 981. State v. Cotton, 16-81 (La.App.

1 Cir. 9/16/16) (unpublished opinion)5, writ denied, 16-1863 (La. 6/16/17), 220

So.3d 756. Thus, the victim’s Hearts of Hope interviews, specifically the second,

could have been considered by the jury for its substantive value despite the lack of

corroboration. In State v. Jackson, 526 So.2d 1261 (La.App. 3 Cir. 1988), this

Court recognized that a prior inconsistent statement may be considered as

substantive evidence since it is admissible under an exception to the hearsay rule.

Considering the victim’s second Hearts of Hope interview as

substantive evidence, this Court finds that the evidence was sufficient to convict

Defendant. As the supreme court has explained:

5
This case is cited at 2016 WL 5018530.

10

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). Although the victim’s second Hearts of

Hope interview was inconsistent with the victim’s trial testimony, it was consistent

with the victim’s other prior statement to Ms. Dartez as to one of the episodes of

inappropriate touching. This Court finds the jury’s decision to believe the victim’s

prior statements over her in-court testimony was rational, especially considering

the evidence of influence by the victim’s mother, the victim’s contact with

Defendant since the allegations, and the financial assistance given to the victim’s

mother by Defendant.

ASSIGNMENT OF ERROR NO. 2

Defendant asserts the trial court erred in allowing the State to admit,

over trial counsel’s objection, the testimony of Bridget Dartez and the victim’s

second Hearts of Hope interview. Defendant argues that both contain hearsay

statements by the victim that Defendant molested her; thus, the testimonies were

inadmissible as substantive evidence unless they were admissible as non-hearsay

pursuant to La.Code Evid. art. 801(D)(1)(a).

During Ms. Dartez’s trial testimony as to what the victim told her, the

Defense raised an objection. The Defendant objected as a matter of hearsay since

the victim’s statement was made out of Court and was being offered as proof of the

allegations against Defendant. According to La.Code Evid. art. 801(C), “Hearsay”

11

is a statement, other than one made by the declarant while testifying at the present

trial or hearing, offered in evidence to prove the truth of the matter asserted. Since

the victim’s statement was made out of Court and was being offered as proof of the

allegations against Defendant, Defendant’s objection appears to have merit.

Although the trial court did not require the State to offer any authority for the

admission of the victim’s statements to Ms. Dartez, the State argues on appeal that

the testimony was properly admitted as “non-hearsay.” “Non-hearsay” is defined

as follows:

D. Statements which are not hearsay. A statement is not
hearsay if:
(1) Prior statement by witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is:

(a) In a criminal case, inconsistent with his testimony, provided
that the proponent has first fairly directed the witness’ attention to the
statement and the witness has been given the opportunity to admit the
fact and where there exists any additional evidence to corroborate the
matter asserted by the prior inconsistent statement;

(b) Consistent with his testimony and is offered to rebut an
express or implied charge against him of recent fabrication or
improper influence or motive;

(c) One of identification of a person made after perceiving the
person; or

(d) Consistent with the declarant’s testimony and is one of
initial complaint of sexually assaultive behavior.

(e) A statement made by the victim of a sexually-oriented
criminal offense to a healthcare provider during the course of a
forensic medical examination as defined in R.S. 15:622 and the
healthcare provider has documented that statement in writing during
the course of the forensic medical examination.

La.Code Evid. art. 801 (in pertinent part).

Defendant argues that Ms. Dartez’ testimony did not meet the

requirements of La.Code Evid. art. 801(D)(1)(a); thus, the testimony was hearsay

12

and should not have been admitted for substantive purposes. Defendant contends

the victim was not directed to the alleged inconsistencies between her trial

testimony and the statement she gave to Ms. Dartez. According to Ms. Dartez’s

testimony at trial, during the interview at the victim’s home, and Ms. Dartez also

identified herself as a child protection investigator with the Department of Children

and Family Services in Acadia Parish. At trial, the victim was asked if she

remembered going to Hearts of Hope, if she remembered what she talked about at

Hearts of Hope, and if she remembered having a conversation with a “lady

detective” with the Sheriff’s Office. The issue is that the victim was not asked if

she remembered having a conversation with anyone that could be interpreted as

being Ms. Dartez.

In its brief, the State does not address Defendant’s claim that the

victim was not fairly directed to the alleged inconsistencies between her trial

testimony and the statement she gave to Ms. Dartez. Rather, the State asserts that

Ms. Dartez’ testimony was “non-hearsay” because it was corroborated by the

victim’s second Hearts of Hope interview. Regardless of whether the statement

was corroborated, it is apparent to this Court that the State still failed to fairly

direct the victim to her previous statement to Ms. Dartez. Thus, the admission of

Ms. Dartez’ testimony was erroneous. Use of inadmissible hearsay, however, is

subject to the harmless error analysis. State v. Chapman, 96-152, p. 11 (La.App. 3

Cir. 10/9/96), 683 So.2d 1236 writ denied, 97-583 (La. 9/5/97), 700 So.2d 505.

The standard for harmless error is whether the verdict was surely unattributable to

the error. Id. As stated in the previous assignment of error discussion, the

testimony of Ms. Dartez regarding the victim’s out-of-court statement and the

13

victim’s second Hearts of Hope interview was significant in implicating the

Defendant.

Hearts of Hope Interview

Defendant also challenges the trial court’s admission of the victim’s

second Hearts of Hope interview which was admitted during the testimony of

Allison Roy. Prior to trial, Defendant filed a “Motion to Exclude Child Forensic

Interview.” In the motion, Defendant argued the interview should be excluded for

failure to meet the requirements of La.R.S. 15:440.4 and 15:440.5. Louisiana

Revised Statutes 15:440.4 provides, in pertinent part:

A. A videotape of a protected person may be offered in
evidence either for or against a defendant. To render such a videotape
competent evidence, it must be satisfactorily proved:

(1) That such electronic recording was voluntarily made by the
protected person.

(2) That no relative of the protected person was present in the
room where the recording was made.

(3) That such recording was not made of answers to
interrogatories calculated to lead the protected person to make any
particular statement.

(4) That the recording is accurate, has not been altered, and
reflects what the protected person said.

(5) That the taking of the protected person’s statement was
supervised by a physician, a social worker, a law enforcement officer,
a licensed psychologist, a medical psychologist, a licensed
professional counselor, or an authorized representative of the
Department of Children and Family Services.

Louisiana Revised Statutes 15:440.5 provides, in pertinent part:

A. The videotape of an oral statement of the protected person
made before the proceeding begins may be admissible into evidence
if:

(1) No attorney for either party was present when the statement
was made;

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(2) The recording is both visual and oral and is recorded on film
or videotape or by other electronic means;

(3) The recording is accurate, has not been altered, and reflects
what the witness or victim said;

(4) The statement was not made in response to questioning
calculated to lead the protected person to make a particular statement;

(5) Every voice on the recording is identified;

(6) The person conducting or supervising the interview of the
protected person in the recording is present at the proceeding and
available to testify or be cross-examined by either party;

(7) The defendant or the attorney for the Defendant is afforded
an opportunity to view the recording before it is offered into evidence;
and

(8) The protected person is available to testify.

B. The admission into evidence of the videotape of a protected
person as authorized herein shall not preclude the prosecution from
calling the protected person as a witness or from taking the protected
person’s testimony outside of the courtroom as authorized in R.S.
15:283. Nothing in this Section shall be construed to prohibit the
defendant’s right of confrontation.

Defendant asserted that the video did not comply with La.R.S.

15:440.4 because it was not “voluntarily made.” Defendant noted that nothing in

the video indicated that the victim was informed of the recording of the interview.

This Court disagrees with that assertion. The second Hearts of Hope interview

video shows the interviewer did advise the victim that the interview was being

recorded and asked the victim if that was okay. The victim responded in the

affirmative.

In their appellant brief, Defendant asserts that the second Hearts of

Hope interview was erroneously admitted because the statements made in the

interview were not corroborated as required by La.Code Evid. art. 801(D)(1)(a).

15

Accordingly, Defendant argues, the interview should not have been admitted as

substantive evidence. The Defendant made objections as to the second Hearts of

Hope interview, however , according to the record, this was not one of them.

The requirement of a contemporaneous objection to preserve an error

for appeal is set forth in La.Code Crim.P. art. 841:

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.

This Court has stated the following regarding the preservation of an error for

appeal when a different ground is being argued on appeal:

In State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08), 981
So.2d 881, this Court held that where a defendant objected to the
introduction of evidence on a ground other than the ground asserted
on appeal, he was precluded from raising said objection on appeal.
Specifically, this Court stated:

In his fifth assignment of error, the Defendant
contends the trial court erred by allowing Detective
Green to testify to hearsay evidence concerning a
revolver which was recovered at the crime scene. The
Defendant cites to record page 111. On that page of the
record, the State asked Detective Green if State Exhibit
18 was the revolver recovered from the Defendant’s car.
Defense counsel objected, stating, “Mr. Green had stated
earlier that he was not present at the crime scene; so, he
can’t testify to whether that’s the revolver that was
recovered or not.” The Defendant did not object based on
hearsay. This issue was not asserted in the trial court and
is not [sic] be addressed by this Court on appeal. La.Code
Crim.P. art. 841; Uniform Rules - Courts of Appeal, Rule
1-3.

Id. at 895.

Because Defendant only objected to the hearsay portion of the
video interview and failed to object to the State’s introduction of the
video interview through Lieutenant Johnson, he may not now raise a

16

claim that it was error for the trial court to allow introduction of the
video interview.

State v. Samuel, 19-408, pp. 17-18 (La.App. 3 Cir. 2/5/20), 291 So.3d 256, 267-68,

writ denied, 20-398 (La. 7/24/20), 299 So.3d 77.

Because Defendant failed to argue at trial that the second Hearts of

Hope interview was inadmissible for the State’s failure to satisfy the requirements

of La.Code Crim.P. art. 801(D)(1)(a), Defendant is precluded from raising that

argument on appeal. Furthermore, as stated in the previous assignment of error

analysis, the Hearts of Hope interview was admissible pursuant to La.R.S.

15:440.1 et seq. regardless of its corroboration by other evidence. Accordingly,

the argument raised in this assignment of error with respect to the admissibility of

the second Hearts of Hope interview was not preserved for appeal, and,

additionally, lacks merit.

Harmless Error

As stated previously, the trial court erroneously admitted Ms. Dartez’

testimony regarding the victim’s prior inconsistent statement to her. The standard

for harmless error is whether the verdict was surely unattributable to the error.

Chapman, 683 So.2d 1236. As stated above, Defendant failed to preserve his

challenge to the admissibility of the second Hearts of Hope interview based on the

lack of corroborating evidence. Furthermore, as stated in the review of the record

for sufficient evidence, this Court finds that the second Hearts of Hope interview

was admissible pursuant to La.R.S. 15:440.1 et seq. regardless of the lack of

corroborating evidence. Since Ms. Dartez’ testimony regarding the victim’s prior

inconsistent statement was merely cumulative of the victim’s second Hearts of

Hope interview, we conclude that the verdict was surely unattributable to Ms.

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Dartez’ testimony. Thus, this Court finds that the admission of this testimony was

harmless error. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant argues the trial court erred in allowing the admission of the

evidence of Defendant’s prior convictions without offering a witness or

explanation to the jury of how these crimes were similar to the instant charge.

Considering the victim’s recantation at trial and the lack of evidence to contradict

the recantation, Defendant contends the jury’s verdict was influenced by the

evidence of Defendant’s prior convictions. Thus, Defendant argues the prejudicial

effect of the other crimes evidence outweighed its probative value. The State

argues that the evidence of prior sexual offenses was necessary to demonstrate the

Defendant’s propensity to sexually assault children in his custodial role and there

was little chance the jury confused the facts of the present crime with the other

crimes evidence.

In previous cases, this Court has discussed the history and purpose behind

Article 412.2. In State v. Brown, 03-1747, p. 9 (La.App. 3 Cir. 5/12/04), 874 So.2d

318, 324, writ denied, 04-1413 (La. 11/8/04), 885 So.2d 1118, the trial court

allowed the State to introduce documents of Brown’s prior conviction as well as a

statement of facts by the prosecutor. Brown argued that the introduction of

documents and the allowance of the State to read a statement of facts permitted the

introduction of hearsay and denied him the opportunity to confront and cross-

examine the circumstances surrounding the prior conviction. This Court

responded:

“The purpose of the newly enacted Article 412.2 was discussed

by the Louisiana Supreme Court at length in State v. Williams, 02–

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1030 (La.10/15/02), 830 So.2d 984. The issue in Williams, however,

was whether for the purpose of Article 412.2, a hearing was required

by State v. Prieur, 277 So.2d 126 (La.1973). Historically, evidence of

prior bad acts (propensity evidence) were inadmissible to show that

the accused more than likely acted in conformity therewith… There

can be no question that the evidence of Brown’s prior conviction was

prejudicial. The test is whether its probative value outweighs its

prejudicial effect. The victim in the present case was an eleven-year-

old girl. She was the type of victim the legislature sought to protect

when it lowered the standard set by La.Code. Evid. art. 404(B) by

enacting the separate and distinct Article 412.2. However, even the

lower standard set by La.Code. Evid. art. 412.2 subjects the evidence

sought to be admitted to the balancing test provided in Article 403. Id.

at 326-27.

Documentary evidence, in the form of a certified copy, was used to

prove the Defendant’s prior conviction for carnal knowledge of a juvenile in State

v. Williams, 11-876 (La.App. 5 Cir. 3/27/12), 91 So.3d 437, writ denied, 12-1013

(La. 9/21/12), 98 So.3d 334. Considering the cases cited above as well as the facts

in the present case, the trial court did not abuse its discretion in allowing the

admission of other sexual convictions in the present case. As stated by this Court

in Brown, the victim in the present case, a five-year-old girl, is the type of victim

the legislature sought to protect when it lowered the standard for the admission of

other sexual offenses. Although Defendant complained that the evidence of his

prior sexual offenses lacked the information needed by the trial court to weigh the

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prejudicial versus probative effect properly, Defendant conversely complained that

testimony relating to the prior offenses would have overwhelmed the evidence

pertaining to the current offense and would have significantly lengthened the trial.

Furthermore, the trial court in the present case gave a limiting instruction, clearly

explaining to the jury that it must convict Defendant based upon the evidence

presented at trial and not based on his previous sexual offenses. Thus, the trial

court did not abuse its discretion in admitting evidence of Defendant’s previous

sexual offenses. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4:

Defendant contends the trial court imposed an improper and/or

unconstitutionally harsh and excessive sentence. The trial court imposed the

maximum sentence for molestation of a juvenile under the age of thirteen; ninety-

nine years at hard labor. La.R.S. 14:81.2(D)(1). Although the trial court could

have imposed the entire sentence without benefit of probation, parole, or

suspension of sentence, the trial court imposed fifty years of the sentence to be

served without benefit of probation, parole, or suspension of sentence. La.R.S.

14:81.2(D)(1). In accordance with La.R.S. 14:43.6, the trial court also ordered

Defendant to receive chemical castration for life. Defendant objected to the

sentence imposed and filed a Motion to Reconsider Sentence alleging that both the

chemical castration and length of the sentence were excessive.

The pertinent penalty provision for molestation of a juvenile is as follows:

D. (1) Whoever commits the crime of molestation of a juvenile
when the victim is under the age of thirteen years shall be imprisoned
at hard labor for not less than twenty-five years nor more than ninety-
nine years. At least twenty-five years of the sentence imposed shall be
served without benefit of probation, parole, or suspension of sentence.

La.R.S. 14:81.2.

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The administration of chemical castration is provided for in La.R.S. 14:43.6:

A. Notwithstanding any other provision of law to the contrary,
upon a first conviction of R.S. 14:42 (aggravated or first degree rape),
R.S. 14:42.1 (forcible or second degree rape), R.S. 14:43.1(C)(2)
(sexual battery when the victim is under the age of thirteen), R.S.
14:43.2 (second degree sexual battery), R.S. 14:81.2(D)(1)
(molestation of a juvenile when the victim is under the age of
thirteen), and R.S. 14:89.1 (aggravated crime against nature), the court
may sentence the offender to be treated with medroxyprogesterone
acetate (MPA), according to a schedule of administration monitored
by the Department of Public Safety and Corrections.

B. (1) Notwithstanding any other provision of law to the
contrary, upon a second or subsequent conviction of R.S. 14:42
(aggravated or first degree rape), R.S. 14:42.1 (forcible or second
degree rape), R.S. 14:43.1(C)(2) (sexual battery when the victim is
under the age of thirteen), R.S. 14:43.2 (second degree sexual
battery), R.S. 14:81.2(D)(1) (molestation of a juvenile when the
victim is under the age of thirteen), and R.S. 14:89.1 (aggravated
crime against nature), the court shall sentence the offender to be
treated with medroxyprogesterone acetate (MPA) according to a
schedule of administration monitored by the Department of Public
Safety and Corrections.

(2) If the court sentences a defendant to be treated with
medroxyprogesterone acetate (MPA), this treatment may not be
imposed in lieu of, or reduce, any other penalty prescribed by law.
However, in lieu of treatment with medroxyprogesterone acetate
(MPA), the court may order the defendant to undergo physical
castration provided the defendant file a written motion with the court
stating that he intelligently and knowingly, gives his voluntary
consent to physical castration as an alternative to the treatment.

C. (1) An order of the court sentencing a defendant to
medroxyprogesterone acetate (MPA) treatment under this Section
shall be contingent upon a determination by a court appointed medical
expert that the defendant is an appropriate candidate for treatment.
Except as provided in Subparagraph (2)(b) of this Subsection, this
determination shall be made not later than sixty days from the
imposition of sentence. An order of the court sentencing a defendant
to medroxyprogesterone acetate (MPA) treatment shall specify the
duration of treatment for a specific term of years, or in the discretion
of the court, up to the life of the defendant.

(2)(a) In all cases involving defendants sentenced to a period of
incarceration or confinement in an institution, the administration of
treatment with medroxyprogesterone acetate (MPA) shall commence

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not later than one week prior to the Defendant’s release from prison or
such institution.

(b) When the provisions of this Paragraph apply, if the
defendant is sentenced to incarceration or confinement for a period of
time that is ten years or more, the commencement of the
administration of treatment with medroxyprogesterone acetate (MPA)
shall be contingent upon a medical evaluation to determine whether
the defendant is an appropriate candidate for treatment. This
evaluation shall be conducted not sooner than thirty days prior to the
commencement of the administration of the treatment.

(3) The Department of Public Safety and Corrections shall
provide the services necessary to administer medroxyprogesterone
acetate (MPA) treatment. Nothing in this Section shall be construed to
require the continued administration of medroxyprogesterone acetate
(MPA) treatment when it is not medically appropriate.

(4) If a defendant whom the court has sentenced to be treated
with medroxyprogesterone acetate (MPA) fails to appear as required
by the Department of Public Safety and Corrections for purposes of
administering the medroxyprogesterone acetate (MPA) or who refuses
to allow the administration of medroxyprogesterone acetate (MPA),
then the Defendant shall be charged with a violation of the provisions
of this Section. Upon conviction, the offender shall be imprisoned,
with or without hard labor, for not less than three years nor more than
five years without benefit of probation, parole, or suspension of
sentence.

(5) If a defendant whom the court has sentenced to be treated
with medroxyprogesterone acetate (MPA) or ordered to undergo
physical castration takes any drug or other substance to reverse the
effects of the treatment, he shall be held in contempt of court.

La.R.S. 14:43.6.

The analysis for an excessive-sentence claim is well-settled:

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12
(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-
838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the
review of excessive sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the

22

severity of the crime as to shock our sense of justice or
that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d
124, writ denied, 00-0165 (La.6/30/00);765 So.2d 1067.
The relevant question is whether the trial court abused its
broad sentencing discretion, not whether another
sentence might have been more appropriate. State v.
Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

Further, in reviewing the Defendant’s sentences, the appellate court
should consider the nature of the crime, the nature and background of
the offender, and the sentences imposed for similar crimes. State v.
Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State
v. Telsee, 425 So.2d 1251 (La.1983) ), writ denied, 99-433 (La.
6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4 (La.App. 3
Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03),
845 So.2d 1061

State v. Soileau, 13-770, pp. 4-5 (La. App. 3 Cir. 2/12/14), 153 So.3d 1002,
1005-06, writ denied, 14-0452 (La. 9/26/14), 149 So.3d 261.

Defendant contests the trial court’s authority to order chemical

castration. Second, Defendant contends the imposition of chemical castration and

the imposition of the maximum ninety-nine-year sentence amounts to an

unconstitutionally excessive sentence. The State responds that the sentence is legal

and constitutional.

Chemical Castration

Defendant contends the trial court imposed chemical castration as a

condition of parole, which, Defendant argues, it was not authorized to do.

Defendant cites State v. R.K., 10-982, pp. 1-2 (La.App. 3 Cir. 5/11/11), 64 So.3d

426, 429, a case in which the trial court ordered chemical castration if the

23

Defendant was eventually released on parole. In its opinion, this Court first noted

that La.R.S. 14:43.6 was not in effect at the time R.K. committed his offenses in

2005; thus, it was not applicable to R.K. Id. Additionally, this Court noted that

R.K. was not eligible for parole and, even if he were, the trial court had no

authority to impose a condition on a parolee. Id.

Nothing in the present trial court’s sentence indicates it ordered chemical

castration as a condition of Defendant’s parole. It is clear from the wording of the

statute that the treatment starts near the time a defendant is scheduled to be

released from incarceration – La.R.S. 14:43.6C(2)(a) states that treatment must

begin no later than one week prior to the Defendant’s release from incarceration.

Even though the treatment is targeted for the time period Defendant is released

from incarceration, nothing in La.R.S. 14:43.6 indicates that it is a condition of

parole. To the contrary, the wording of La.R.S. 14:43.6 indicates that it is part of

the sentence - Paragraph A states that “the court may sentence the offender,” and

Paragraph B states that the “court shall sentence the offender.” (emphasis added).

Moreover, La.R.S.14:43.6 contains its own penalty provision – La.R.S.

14:43.6(C)(4). The sanctions for violating conditions of parole, on the other hand,

are provided for in the statutes addressing parole. See La.R.S. 15:574.7.

Considering the above, the trial court did not order chemical castration as a

condition of parole but as part of Defendant’s sentence.

Excessiveness of Sentence

In support of his assertion that the sentence is unconstitutionally

excessive, Defendant notes there are few Louisiana cases addressing the imposition

of chemical castration. Additionally, Defendant contends, only eight out of the

fifty United States have laws permitting chemical castration. The State contends

24

that because of Defendant’s prior convictions, the maximum term of imprisonment

of ninety-nine years was not excessive. Furthermore, because of the prior

convictions, the State contends that the imposition of chemical castration treatment

was required by La.R.S. 14:43.6(B)(1). As noted previously, the State introduced

at trial certified copies of Defendant’s prior convictions for indecent behavior with

a juvenile in 1982; indecent behavior with juveniles in 1990; simple kidnapping,

simple burglary of an inhabited dwelling, and aggravated crime against nature in

1984; oral sexual battery and sexual battery in 1995; and molestation of a juvenile

and oral sexual battery in 2013. According to the charging instruments, all of

Defendant’s prior sexual offenses involved victims under the age of thirteen. Thus,

it appears that chemical castration was required in this case. In researching, this

Court found no Louisiana cases wherein the court discussed the constitutional

excessiveness of chemical castration. In all of the cases, chemical castration was

found to be inapplicable since it was not in effect at the time the offense was

committed. Considering the above as well as the lack of jurisprudence to the

contrary, this Court submits Defendant has failed to show that the imposition of

chemical castration is constitutionally excessive.

The supreme court has repeatedly admonished “that sentence review

under the Louisiana constitution does not provide an appellate court with a vehicle

for substituting its judgment for that of a trial judge as to what punishment is more

appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93 So.3d

1279, (citing State v. Walker, 00-3200, p. 2 (La. 10/12/01), 799 So.2d 461,; State v.

Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S.

1043, 117 S.Ct. 615 (1996); State v. Humphrey, 445 So.2d 1155, (La.1984)).

Although the trial court did not name the aggravating and mitigating factors it

25

considered, the trial court stated that it did consider the aggravating and mitigating

circumstances. Furthermore, the trial court watched the victim’s demeanor while

testifying and noted that she was worried and stressed. The trial court believed the

crime committed by Defendant was the most serious, especially considering what

he had done to the victim and what he had done to other children. Finally,

although there are not many cases in Louisiana wherein chemical castration was

imposed, according to La.R.S. 14:43.6(B)(1), it is mandatory when the conviction

is for a second or subsequent conviction of molestation of a juvenile under the age

of thirteen. The sentence imposed by the trial court was not excessive. This

assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

In his supplemental pro se brief, the Defendant asserts another

assignment of error. Defendant contends the trial court erred in allowing the State

to introduce his prior sexual convictions under the pretext of La.Code Evid. art.

412.2. Defendant cites cases to show the normal methods by which evidence of

prior convictions is introduced to the jury – i.e., testimony, jailhouse phone calls,

and documents read into the record by the State. Defendant notes there were only

documents, not testimony, presented to prove his prior convictions and notes there

is no indication in the record that the documents were picked up after they were

viewed by the jury. Additionally, Defendant cites to a portion of the record

wherein the prosecutor admitted that the purpose of introducing the prior

convictions was to “move the meter towards the State.” Defendant argues these

facts “can only lead one to believe that Article 412.2 was used as a pretext to put

appellant’s bad character on display.” Noting that the victim in this case recanted

26

at trial, Defendant complains that the balancing test required by La.Code Evid. art.

403 was not satisfied and that the introduction of the evidence was not harmless.

This issue has been adequately addressed in Assignment of Error No. 3 filed

by counsel. Defendant’s accusation that copies of the prior convictions were left in

the hands of the jurors is not supported by the record nor was it raised at trial.

When the documents were published to the jury, the trial court told the jurors to

take their time looking through the documents and then give them to the deputy.

There is no indication that this was not done. This assignment of error lacks merit.

V.

CONCLUSION

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

affirmed.

AFFIRMED.

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