State of Louisiana v. Michael Adam Bumgarner

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-596

STATE OF LOUISIANA

VERSUS

MICHAEL ADAM BUMGARNER

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 16-1181
HONORABLE JOHN C. REEVES, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED.

Philip Allan LeTard
Post Office Box 187
Vidalia, LA 71373
(318) 336-8990
COUNSEL FOR DEFENDANT/APPELLANT:
Michael Adam Bumgarner

Bradley R. Burget
District Attorney
Joseph Anthony Boothe
Assistant District Attorney
4001 Carter Street, Suite 9
Vidalia, LA 71373
(318) 336-5526
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

In this criminal appeal, defendant, Michael Adam Bumgarner (“Defendant”),

was charged and convicted of sexual battery of the minor victim, a violation of

La.R.S. 14:43.1. The trial court sentenced him to ten years at hard labor without

probation, parole, or suspension of sentence. Defendant now appeals, asserting the

trial court: (1) abused its discretion by denying his motion to quash indictment; (2)

abused its discretion by allowing the State to circumvent the laws of prescription;

and (3) prevented him from presenting his entire defense to the jury. For the reasons

stated herein, we affirm Defendant’s conviction and sentence.

PROCEDURAL HISTORY:

On November 29, 2017, Defendant was charged by bill of information with

third degree rape of a minor victim, a violation of La.R.S. 14:43. Subsequently, on

July 22, 2019, an amended bill of information was filed, charging Defendant with

sexual battery of the minor victim, a violation of La.R.S. 14:43.1. On that same date,

Defendant filed a Motion to Quash Indictment, alleging the crime of third degree

rape did not exist when the offense was committed, February of 2009. The trial

court denied the motion to quash on July 22, 2019, and proceeded with jury selection.

On July 25, 2019, the jury found Defendant guilty of sexual battery. Defendant filed

a Motion for New Trial on August 13, 2019. On August 14, 2019, the trial court

denied Defendant’s Motion for New Trial; on August 21, 2019, the trial court

sentenced Defendant to ten years at hard labor without probation, parole, or

suspension of sentence. On that same date, Defendant was informed of his

obligation to register as a sex offender for twenty-five years after his release from

prison. On September 13, 2019, Defendant filed a Motion to Reconsider Sentence.

On February 24, 2020, the trial court denied the motion by written ruling rendered

after a hearing was held.

On March 3, 2020, Defendant filed a Motion for Appeal, which was granted

by the trial court on March 9, 2020. Defendant alleges three assignments of error,

one of which contends the trial court erred in denying his motion to quash, another

contends the trial court allowed the State to circumvent the laws of prescription, and,

finally, one contends the trial court consistently prevented Defendant from

presenting his defense to the jury.

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 no errors

patent.

FACTS:

Defendant was convicted of committing sexual battery on a minor victim on

or about February 7, 2009. The victim was the fourteen-year-old friend of

Defendant’s daughter and was spending the night with Defendant’s daughter.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In assignment of error number one, Defendant contends the trial court abused

its discretion when it denied his motion to quash indictment, forcing him to be

prosecuted for a crime that had prescribed. In assignment of error number two,

Defendant contends the trial court abused its discretion in allowing the State to

amend the charge to sexual battery, effectively circumventing the laws of

prescription. Since these assignments of error are related, we will discuss them

together.

2

Proceedings in Trial Court

As stated in the procedural section, Defendant filed a Motion to Quash

Indictment on July 22, 2019, alleging the charge of third degree rape did not exist at

the time the crime was committed (February 2009.) In 2015, the legislature changed

the title of La.R.S. 14:43 from “simple rape” to “third degree rape.” 2015 La. Acts

No. 184, § 1. In the same act, the legislature added Section “C” of La.R.S. 14:43,

which provides that, “For all purposes, ‘simple rape’ and ‘third degree rape’ mean

the offense defined by the provisions of this Section and any reference to the crime

of simple rape is the same as a reference to the crime of third degree rape.”

The same day Defendant filed his motion to quash, the State filed an amended

bill of information charging Defendant with sexual battery. Before jury selection on

that same date, defense counsel argued that Defendant was prejudiced by the

amendment and should be granted a continuance. Defense counsel contended that

the State did not amend the bill of information to charge simple rape (now called

third degree rape) since, as had been discussed in chambers, the charge of simple

rape had prescribed. At the time of the offense, simple rape was punishable with or

without hard labor. La.R.S. 14:43 (2009 version). According to La.Code Crim.P.

art. 572, the prescriptive period for such an offense is four years. Since the offense

at issue was committed on February 7, 2009, the four-year time period had expired

by the time Defendant was originally charged with third degree/simple rape on

November 29, 2017.

Pursuant to La.Code Crim.P. art. 571.1, however, the prescriptive period for

instituting prosecution for sexual battery is thirty years from the date the victim turns

eighteen. Thus, the prescriptive period for the amended charge of sexual battery has

yet to expire. Defense counsel conceded that he was not contesting the State’s ability

3

to amend the charging instrument. Rather, defense counsel contended, Defendant

was entitled to a continuance since the amendment prejudiced him. The prejudice,

defense counsel alleged, was that he was prepared to defend against simple rape, an

offense that has different elements than sexual battery.

The State, on the other hand, contended there was no prejudice since sexual

battery is a responsive verdict to third degree/simple rape: “If the State came to trial

on either charge, Simple Rape or Third-degree Rape and proved the elements of

Sexual Battery, whatever they may be, the State would secure a verdict of guilty of

Sexual Battery.” Additionally, the State noted, the sentencing range for sexual

battery is lower than the range for third degree/simple rape. “So,” the State

concluded, “[these are] the same elements that he would have had to defend from

day one and a lesser sentence exposure range.” Accordingly, the State asked the

trial court to deny Defendant’s motion for continuance.

Defense counsel reiterated that the elements of third degree/simple rape are

different from the elements of sexual battery. Additionally, defense counsel argued

that the prescriptive period for instituting prosecution had already expired for third

degree/simple rape. Defense counsel concluded his argument with the following:

So, I would ask the Court to carefully review what the law was
in 2009, because we cannot create an ex post facto law that says we
don’t care what they said in 2009, we’re trying you in 2019. That’s ex
post facto. You can’t create a charge or a penalty that’s worse than
when this was supposed to have happened in 2009.

The trial court recessed briefly and then gave the parties time to offer

additional arguments regarding the elements of sexual battery versus the elements

of third degree/simple rape. Defense counsel pointed out that the age of the victim

is not mentioned in the simple rape statute as it is in the sexual battery statute.

Defense counsel argued further:

4

So, the whole complexion of this case has changed from an intoxicated
victim, no matter what age, to the Sexual Battery is a - - and age is a
requirement and all that has to be proved is that he touched her in an
offensive way and in an offensive place. That’s a far cry from what
you have to prove for rape. Rape calls for penetration. This only calls
for a touching. So I would submit to the Court that there is a very grave
difference between not only the elements of the crime, but certainly
once those elements are met, then we have a different sentence, but
they’re both serious sentences. They’re both without hard - - without
benefit of parole or probation of sentence. So my suggestion to the
Court is, when this happens on the day of trial, and the Court looks at
the differences, just because they’re responsive pleadings, doesn’t
excuse the differences between being tried for rape, which would have
necessarily required the Court to dismiss the case, because it was
prescribed and a Sexual Battery case, which means that the case has to
go forward. So that’s a very significant difference, Judge, between
having a case that you can dismiss because it’s prescribed to also having
a case that because Sexual Battery is one of those enumerated charges
that has this longer prescriptive period [sic].

....

So, for those reasons, the charge is not the same, the burden of proof is
not the same, and certainly the statute of limitations is not the same.
That’s why I humbly request the Court look at the rule that says if my
client is prejudiced, he shall be given a continuance for a reasonable
amount of time. That’s what the statute says. It doesn’t say maybe, it
says shall. Thank you.

In response, the State reiterated its argument that sexual battery had always

been and still is a responsive verdict to third degree/simple rape. If defense counsel

chose not to prepare for that charge, the State argued, it was not the State’s fault and

should not be considered prejudicial to Defendant. Since the prescriptive period for

sexual battery had not lapsed, the State further argued, sexual battery had always

been and remained a viable charge.

After hearing the above arguments, the trial court ruled “in the State’s favor”

and proceeded with the trial. Defense counsel moved for a stay of the proceeding to

seek review in this court. The trial court denied Defendant’s request for a stay;

5

however, after searching the filings of this court, it does not appear that Defendant

sought review of the trial court’s denial of a continuance.1

Defendant’s Arguments in Brief

In assignment of error number one, Defendant cites La.Code Crim.P. art. 577

for the proposition that the issue of untimely institution of prosecution may be raised

at any time, but only once, and must be tried by the court alone. Defendant asserts

that the 2009 third degree rape/simple rape for which he was charged on November

29, 2017, had prescribed under the time periods set forth in La.Code Crim.P. art.

572. Once the prescription issue was brought to the trial court’s attention, Defendant

contends, the charge should have been quashed. Instead, Defendant complains, the

trial court allowed the State to amend the bill of information on the morning of trial

to circumvent prescription.

In assignment of error number two, Defendant acknowledges that his written

motion to quash alleged that the indictment failed to charge an offense punishable

under a valid statute. It was not until his oral argument on the matter that defense

counsel expanded his motion to quash to include the ground of untimely prosecution.

Defendant contends the State “somehow” learned that his counsel intended to file a

motion to quash and preemptively amended the bill of information to charge sexual

battery the morning of trial. As stated previously, the prescriptive period for

instituting prosecution against Defendant for sexual battery has yet to expire.

Louisiana Code of Criminal Procedure Article 536 mandates that a motion to

quash must be submitted in writing, signed by the defendant or his attorney, and

1
Defendant sought review of the trial court’s denial of an unrelated motion for continuance,
and this court denied writs. State v. Bumgarner, 19-513 (La.App. 3 Cir. 7/1719) (unpublished
opinion), writ denied, 19-1170 (La. 7/19/19), 277 So.3d 1181.

6

filed in open court or in the office of the clerk of court. Article 536 further states

that the motion must specify the grounds on which it is based and that the trial court

is prohibited from hearing any objection based on grounds not set forth in the motion.

The only motion to quash filed by Defendant was the motion filed on July 22, 2019,

in which Defendant alleged only that the bill of information charged an offense that

did not exist at the time the offense was committed.

Defendant cites State v. Jones, 209 La. 394, 24 So.2d 627 (1945), for the

proposition that a claim of prescription is not waived even though it was not

previously raised. In Jones, a motion to quash was filed nine years after Jones was

convicted. The court in Jones found the record contained a “fatal errors patent upon

its face” since the bill of information was filed after the prescriptive period and failed

to “negative” prescription. Id. at 628. The State contends Jones is distinguishable

because the prescriptive period for the offense of which Defendant was convicted

(sexual battery) had not lapsed.

In State v. Major, 12-407 (La.App. 4 Cir. 1/16/13), 108 So.3d 288, the fourth

circuit found that a written motion to quash was required for a motion to quash based

on the untimely institution of prosecution. Major orally moved to quash the bill of

information during opening statement. The trial judge initially denied the motion

but subsequently granted the motion when defense counsel re-urged the motion

during a bench conference. The State sought review, asserting that the trial judge

erred in granting a motion to quash that was not in writing and erred in refusing to

allow the State to show that the institution of prosecution was timely. Finding the

first argument dispositive, the fourth circuit stated:

The Code of Criminal Procedure mandates that “[a] motion to
quash shall be in writing, signed by the defendant or his attorney, and
filed in open court or in the office of the clerk of court.” La.C.Cr.P. art.

7

536[.] The Code further mandates that a motion to quash “shall specify
distinctly the grounds on which it is based” and that “[t]he court shall
hear no objection based on grounds not stated in the motion.” Id.
Enforcing the mandates set forth in Article 536, the jurisprudence has
held that a district court cannot consider an oral motion to quash. State
v. Carter, 11-0859, pp. 2-3 (La.App. 4 Cir. 3/21/12), 88 So.3d 1181,
1182-83 (citing State v. Dixon, 10-1279, p. 3 (La.App. 4 Cir. 5/2/11),
64 So.3d 852, 854 (citing State v. Joseph, 09-1169, pp. 3-4 (La.App. 4
Cir. 3/24/10), 35 So.3d 422, 424)); see also State v. Scott, 06-1610, p.
3-4 (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 728 (discussing the
requirements of La.C.Cr.P. art. 536 and stating that “the court shall hear
no objection on grounds not stated in the motion”); State v. Beauchamp,
510 So.2d 22, 27, n. 3 (La.App. 1st Cir.1987) (noting that a court may
not hear an objection based on grounds not stated in the motion to quash
under La.C.Cr.P. art. 536). The record in this case contains no written
motion to quash. Because Mr. Major failed to file a written motion to
quash, the district court erred in granting the motion.

Id. at 291 (first and third alterations in original).

Considering La.Code Crim.P. art. 536 and Major, we find Defendant is

precluded from now raising the untimely institution of prosecution since he failed to

argue this ground in his written motion to quash. Furthermore, we find defense

counsel’s oral argument in the trial court focused on continuing the trial because of

the amendment to sexual battery, not quashing the indictment. Thus, we find

Defendant has not preserved his claim that the indictment should have been quashed

based on prescription. Accordingly, we find the trial court did not err in denying the

motion to quash.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant contends the trial court “consistently” prevented him from

presenting his entire defense to the jury. In this assignment, however, Defendant

specifically discusses only two such incidents. Defendant sought to introduce

evidence that his daughter, Whitley Pittella, accused Defendant of molesting the

victim because she believed Defendant had molested his niece and believed she

needed to protect her niece. Defendant also sought to introduce evidence that

8

Whitley and the victim were accused of engaging in sexual misconduct on the night

of the incident.

We will first address Defendant’s claim that he was unable to present evidence

that his daughter, Whitley, accused him of molesting the victim because she believed

Defendant had molested his niece, Kaylee. As Defendant points out in his brief,

Defendant’s brother, Daniel, testified that Whitley told him that Defendant had made

her life a “living hell” and that she was “doing this” to protect “Kaylee,” Daniel’s

daughter. When Daniel testified that he asked Whitley if she knew that Defendant

did not mess with Kaylee, the State objected. The State argued that such evidence

was other crimes evidence, while defense counsel argued the evidence was not

evidence of another crime and argued that the evidence was necessary to show

Whitley’s motive for accusing him of sexually abusing the victim. Defense counsel

further argued that it was necessary for Daniel to testify that someone else, not

Defendant, was found guilty of abusing Kaylee. When the trial court stated that it

would not allow the testimony, defense counsel stated that he wanted to make an

“offer of proof.” After some conversation about whether defense counsel had

already made a proffer of the evidence, the Prosecution stated that defense counsel

could ask Daniel what Whitley said specifically. Daniel repeated that Whitley told

him she was “doing this” for his daughter, Kaylee. Additionally, Daniel testified

that Whitley asked him what happened with “the older man.” Daniel told Whitley

that Kaylee had been molested by an older man.

In his brief, Defendant contends that Whitley’s accusation against Defendant

was motivated by her desire to protect Kaylee because she believed Defendant was

the one that molested Kaylee. Defense counsel had previously attempted to ask

Whitley such information but was stopped when the State objected to defense

9

counsel “getting dangerously close to evidence about crimes that we have not

submitted.” Defense counsel explained:

Your Honor, the point is this. He was accused and he was not guilty
but she thought he was guilty of molesting one of - - the children and
that’s part of her motive for doing this. That’s why I need to ask her if
she thought that he had done that. Is that part of her reason for coming
forward?
When the trial court stated the evidence was not relevant, defense counsel

asked to remove the jury so that he could make an “offer of proof.” Out of the

presence of the jury and the victim, defense counsel stated:

Your Honor, in the way of an offer of proof I asked Ms. Pittella if she
thought Adam had done anything to a child of Daniel Bumgardner [sic].
Which is name [sic] is Kaylee Bumgardner [sic]. And the relevance is,
your Honor, that I feel like this is part of her incentive to go forward
with this case in some misguided attempt to protect Kaylee Bumgardner
[sic], because the evidence will prove that Mr. Adam Bumgardner’s
[sic] case was dismissed, because Kaylee Bumgardner [sic] was
molested by her next-door neighbor, who is currently in prison at
Parchman Prison in Mississippi.

I feel like it’s important for the jury to know because I think it’s
part of her reason that she went forward and did this to her father and
she’s already - - she’s going - - I have a witness who’s prepared to say
that very thing, that they were told by Ms. Pittella that she was trying
to protect this child and then found out that the child didn’t need
protecting from Adam because Adam didn’t do it. And for that reason,
I believe that this is critical information that should not have been kept
from the jury.

The State responded that the evidence constituted other crimes evidence and

was not admissible. The State further asserted that the accusations did not involve

any of the witnesses or victims in this case and had no relation to this case. Defense

counsel responded that the evidence was relevant to show Whitley’s state of mind.

Defense counsel contended that he had a witness who was going to testify that

Whitley told him she came forward with the accusation against Defendant to protect

Kaylee. Defense counsel argued the evidence was relevant because “the jury should

10

be allowed to hear what motivated her to come forward seven years later.” Finally,

the following colloquy took place:

MR. BOOTHE: [(the Prosecutor)]

Your Honor, I’m going to note that Ms. Pittella has already testified as
to the reason that she raised - - that she came forward with this. And it
was about Mr. Bumgardner’s [sic] relationship with a woman and her
children, her concern for her children. She testified to that, that was - -

MR. LETARD: [(Defense Counsel)]

And I think - -

MR. BOOTHE:

- - what she gave as a reason for this.

MR. LETARD:

And I think she’s a liar, and she’s on cross, and I have a right to cross
her to prove that she’s not telling the truth.

After the State reiterated that Defendant did not have the right to bring in

evidence of crimes that had nothing to do with the case, the trial court stated that it

was going to rule in the State’s favor.

Analysis and Jurisprudence

The supreme court has held that a “district court’s ruling on the admissibility

of other crimes evidence will not be overturned absent an abuse of discretion.” State

v. Taylor, 16-1124, 16-1183, p. 18 (La. 12/1/16), 217 So.3d 283, 296 (citing State v.

Galliano, 02-2849 (La. 1/10/03), 839 So.2d 932). Louisiana Code of Evidence

Article 404(B) provides, in pertinent part:

B. Other crimes, wrongs, or acts. (1) Except as provided in
Article 412, evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall

11

provide reasonable notice in advance of trial, of the nature of any such
evidence it intends to introduce at trial for such purposes, or when it
relates to conduct that constitutes an integral part of the act or
transaction that is the subject of the present proceeding.

In Taylor, 217 So.3d at 291, the supreme court stated the following regarding

the State’s burden of proving the commission of the other crimes evidence:

[W]e now recognize and hold that when seeking to introduce evidence
pursuant to La. C.E. art. 404(B), the state need only make a showing of
sufficient evidence to support a finding that the defendant committed
the other crime, wrong, or act.

Additionally, the supreme court stated:

Code of Evidence article 404(B)(1) embodies the settled
principle that evidence of other crimes may be admissible if the state
establishes an independent and relevant reason for its admission. . . . .
Moreover, even when the other crimes evidence is offered for a purpose
allowed under Article 404(B)(1), the evidence must have substantial
relevance independent from showing defendant’s general criminal
character and thus is not admissible unless it tends to prove a material
fact at issue or to rebut a defendant’s defense. . . . It is the duty of the
district court in its gatekeeping function to determine the independent
relevancy of this evidence. The district court must also balance the
probative value of the other crimes, wrongs or acts evidence against its
prejudicial effects before the evidence can be admitted.

Id. at 292 (citations omitted).

The current case is unique in that Defendant, not the State, sought to introduce

“other crimes evidence.” Thus, the normal prejudice concerns are not present;

however, the evidence must still be relevant. As the State notes in its brief, the

record does not support Defendant’s assertion that the evidence was relevant to

prove Whitley’s motive for making the allegations at issue. At trial, Whitley

explained that Defendant is her biological father and that the incident happened in

February 2009. On a night when the victim (a fourteen-year-old friend) was

spending the night with Whitley, a friend of Defendant’s came over, and Whitley’s

mom went to work. According to Whitley, Defendant encouraged Whitley and the

12

victim to drink to the point that Whitley passed out in her closet. Whitley testified

that when she woke up, she was wearing a night gown that she had not been wearing

before. When she looked for the victim, she saw Defendant “on top” of the victim.

Whitley testified that the victim’s shirt was still on, but her pants were around her

ankles. According to Whitley, Defendant had the victim pinned to the ground and

was having sex with her.2

When asked if that was the first time she knew of Defendant doing something

inappropriate, Whitley testified that something happened when she was nine.

Whitley was in the bed with Defendant and her mother when she felt someone

touching her. When she turned around, Defendant moved his hand really fast and

closed his eyes. Whitley later asked Defendant why he touched her, and he told her

that he thought she was her mother.

According to Whitley, she told her cousin, her mom, and her social worker

about what she saw happen to the victim. When asked what made her decide to tell

the authorities about what happened, Whitley replied:

When I wouldn’t stop having nightmares about him hurting other
people’s children. I just recently found out that he was in a relationship
with someone and she had children. It ate me alive. (witness crying) I
felt like those kids were going to be in danger. I felt like - - I felt like I
had to do anything that I could to protect any other children that may
come in his path.

Whitley testified that she did not go to the authorities earlier because she was scared

of Defendant. When she became an adult, however, she realized she “no longer

2
Like Whitley, the victim testified that Defendant supplied them with alcoholic drinks on
the night in question. According to the victim, “everything went black” and then she awoke to
Defendant’s face between her legs followed by Defendant raping her. Whitley’s mom walked in,
the victim testified, and started yelling at Defendant.

13

walked in fear.” Finally, Whitley testified that she never told someone that she made

up the events.

We find the trial court did not err in its ruling that Defendant could not solicit

evidence regarding Whitley’s belief that Defendant was falsely accused of abusing

Whitley’s cousin, Kaylee. Defendant claims this evidence should have been

introduced to show that Whitley made the current allegations based on her belief that

Kaylee had been abused by Defendant and needed to be protected from him. Whitley

acknowledged that she came forward with the present allegations when she realized

Defendant was in a relationship with a woman who had children. Whitley testified

she had nightmares about other children being in danger because of Defendant. The

fact that Kaylee was one of the children Whitley was concerned about was testified

to by Daniel, Kaylee’s father. Because Whitley testified she was concerned for other

children as well, Whitley’s concern for Kaylee appears to have stemmed from what

she witnessed Defendant do to the victim as well as what Defendant did to her. The

record does not support a finding that Whitley’s concern for Kaylee stemmed from

anything else, much less from Whitley’s belief that Defendant abused Kaylee. Thus,

we find the fact that Whitley may have believed Defendant abused Kaylee and the

fact that the accusation proved false was not relevant to show Whitley’s motivation

for telling authorities about what she witnessed in February 2009. Accordingly, we

find the trial court did not err in excluding such evidence.

Defendant also claims the trial court erred in excluding evidence that Whitley

and the victim participated in inappropriate sexual conduct on the night in question.

Defendant asserts that his father and brother testified that the girls were accused of

sexual misconduct on the night in question. Defendant cites to the testimony of his

father, Michael Bumgarner, who testified that the “girls had had inappropriate sex

14

together . . . .” Defendant also cites to the testimony of his brother, Daniel

Bumgarner, who testified that Whitley’s mother caught the two girls engaging in

some “lesbian activity.”

Although the jury heard testimony regarding sexual conduct between Whitley

and the victim, Defendant complains that the jury was not able to hear either Whitley

or the victim testify as to such activity. During the victim’s testimony, defense

counsel asked her if Whitley touched her inappropriately on the night in question.

Before the State could get its full objection out, the victim replied, “No, sir.” The

State objected to the relevance of such testimony, to which defense counsel

responded that he had witnesses that would make it relevant. The trial court

sustained the State’s objection. Defense counsel immediately followed with a

question of the victim as to whether anyone accused her of doing anything

inappropriate with Whitley on the night in question. Before the trial court sustained

the State’s objection, the victim answered, “Not that I remember.” Subsequently,

during Whitley’s testimony, defense counsel asked if anyone had accused her of

having sexual contact with the victim on the night in question. The trial court again

sustained the State’s objection.

In brief, the State asserts that La.Code Evid. art. 412(A) precludes the

admission of evidence of sexual conduct of the victim. Additionally, the State cites

La.Code Evid. art. 608(B) for the proposition that it precludes the admission of

particular acts, vices, or courses of conduct of a witness in order to attack the

witnesses’ character for truthfulness.

Law and Analysis

According to La.Code Evid. art. 412(A)(1), reputation or opinion evidence of

the victim’s past sexual behavior is not admissible in a case involving an accused’s

15

sexually assaultive behavior. That article defines “‘past sexual behavior’” as “sexual

behavior other than the sexual behavior with respect to which the offense of sexually

assaultive behavior is alleged.” La.Code Evid. art. 412(F). Article 412(A)(2) also

excludes evidence of specific instances of the victim’s past sexual behavior except

in certain circumstances, none of which are present in this case. Furthermore, Article

412 provides, in pertinent part, for the following procedure when a defendant seeks

to introduce evidence of specific instances of the victim’s past sexual behavior:

C. Motion. (1) Before the person, accused of committing a crime
that involves sexually assaultive behavior, human trafficking, or
trafficking of children for sexual purposes, may offer under
Subparagraph (A)(2) or (B)(2) of this Article evidence of specific
instances of the victim’s past sexual behavior, the accused shall make
a written motion in camera to offer such evidence. The motion shall be
accompanied by a written statement of evidence setting forth the names
and addresses of persons to be called as witnesses.

(2) The motion and statement of evidence shall be served on the
state which shall make a reasonable effort to notify the victim prior to
the hearing.

D. Time for a motion. The motion shall be made within the time
for filing pre-trial motions specified in Code of Criminal Procedure
Article 521, except that the court shall allow the motion to be made at
a later date, if the court determines that:
(1) The evidence is of past sexual behavior with the accused, and
the accused establishes that the motion was not timely made because of
an impossibility arising through no fault of his own; or

(2) The evidence is of past sexual behavior with someone other
than the accused, and the accused establishes that the evidence or the
issue to which it relates is newly discovered and could not have been
obtained earlier through the exercise of due diligence.

E. Hearing. (1) If the court determines that the statement of
evidence contains evidence described in Subparagraph (A)(2) or (B)(2),
the court shall order a hearing which shall be closed to determine if
such evidence is admissible. At such hearing the parties may call
witnesses.

(2) The victim, if present, has the right to attend the hearing and
may be accompanied by counsel.

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(3) If the court determines on the basis of the hearing described
in Subparagraph (E)(1) that the evidence which the accused seeks to
offer is relevant and that the probative value of such evidence
outweighs the danger of unfair prejudice, such evidence may be
admissible in the trial to the extent an order made by the court specifies
evidence which may be offered and areas with respect to which the
victim may be examined or cross-examined. Introduction of such
evidence shall be limited to that specified in the order.

(4) Any motion made under Subparagraph C and any statement
of evidence, brief, record of a hearing, or like material made or used in
connection with the motion shall be kept in a separate, sealed package
as part of the record in the case. Nothing in this Article shall preclude
the use of the testimony at such hearing in a subsequent prosecution for
perjury or false swearing.
Defendant does not cite to any portion of the record where such a motion was made

or hearing was held.

Louisiana Code of Evidence Article 608 provides as follows:

A. Reputation evidence of character. The credibility of a
witness may be attacked or supported by evidence in the form of
general reputation only, but subject to these limitations:

(1) The evidence may refer only to character for truthfulness or
untruthfulness.

(2) A foundation must first be established that the character
witness is familiar with the reputation of the witness whose credibility
is in issue. The character witness shall not express his personal opinion
as to the character of the witness whose credibility is in issue.

(3) Inquiry into specific acts on direct examination while
qualifying the character witness or otherwise is prohibited.

B. Particular acts, vices, or courses of conduct. Particular acts,
vices, or courses of conduct of a witness may not be inquired into or
proved by extrinsic evidence for the purpose of attacking his character
for truthfulness, other than conviction of crime as provided in Articles
609 and 609.1 or as constitutionally required.

C. Cross-examination of character witnesses. A witness who
has testified to the character for truthfulness or untruthfulness of
another witness may be cross-examined as to whether he has heard
about particular acts of that witness bearing upon his credibility.

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“A trial court’s ruling on the admissibility of evidence will not be disturbed

on appeal absent a clear abuse of the trial court’s discretion.” State v. OBrien, 17-

922, p. 21 (La.App. 3 Cir. 4/4/18), 242 So.3d 1254, 1269, writ denied, 18-663 (La.

2/18/19), 265 So.3d 769. We find Defendant fails to show any abuse of discretion

in this case. The jury heard evidence that Whitley and the victim were accused of

sexual misconduct on the night in question. Defendant fails to show how the

testimonies of Whitley and the victim would have offered different evidence than

that already introduced. Furthermore, such evidence appears to be inadmissible

under the code articles cited above. Accordingly, we find this assignment of error

lacks merit.

In conclusion, we find no merit to Defendant’s assignments of error and

hereby affirm his conviction and sentence.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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