State of Louisiana v. Christopher Gatson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-123

STATE OF LOUISIANA

VERSUS

CHRISTOPHER GATSON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 348,420
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

**********

Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

G. Paul Marx
Louisiana Appellate Project
PO Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT- APPELLANT:
Christopher Gatson

Phillip Terrell, Jr.
District Attorney, Ninth Judicial District
Kenneth A. Doggett, Jr.
Assistant District Attorney
P. O. Box 7358
Alexandria, La 71306-7358
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Chief Judge.

FACTS

The defendant, Christopher Gatson, is accused of having sexual intercourse

with the victim on several occasions between January of 2019 and October of

2019. The victim turned thirteen in August of 2019. According to the victim, who

referred to the defendant as her “god-daddy,” one of the incidents of sexual

intercourse occurred before her thirteenth birthday.

On September 29, 2020, the defendant was charged by grand jury indictment

with one count of first degree rape, a violation of La.R.S. 14:42, and one count of

carnal knowledge of a juvenile, a violation of La.R.S. 14:80. On September 23,

2022, after a four-day jury trial, the defendant was found guilty of both counts.

Thereafter, on November 14, 2022, a motion for post-verdict judgment of acquittal

was denied by the trial court. After the defendant waived the sentencing delay

required by La.Code Crim.P. art. 873, the trial court gave its reasons for sentencing

and sentenced the defendant to life imprisonment at hard labor, without benefit of

parole, probation, or suspension of sentence for first degree rape and ten years at

hard labor for carnal knowledge of a juvenile. The trial court ordered the sentences

to run consecutively. The trial court also designated the first degree rape

conviction as a crime of violence and provided written notification of the

defendant’s sex-offender registration requirements.

Pursuant to the defendant’s motion for appeal, on December 7, 2022, the

trial court granted an appeal of the defendant’s conviction and sentence.

Thereafter, on December 12, 2022, the defendant filed a Motion for

Reconsideration of Sentence, which was denied by the trial court that same date.

On appeal, the defendant alleges three assignments of error.

ASSIGNMENTS OF ERROR

1. The evidence was insufficient to prove the age of the victim at
the time of the offense: THE STATE DID NOT PROVE
BEYOND A REASONABLE DOUBT THAT
INTERCOURSE OCCURRED BEFORE THE THIRTEENTH
BIRTHDAY OF J.B. ABSENT THAT PROOF, THE
HIGHEST GRADE OFFENSE IN THIS CASE IS CARNAL
KNOWLEDGE.

2. It was error to restrict cross examination of the credibility of the
victim under the Rape Shield Statute: THE TRIAL COURT
ERRED IN RULING THAT THE ALLEGED VICTIM
COULD NOT BE CROSS EXAMINED ON PRIOR
STATEMENTS TO IMPEACH HER CREDIBILITY UNDER
THE “RAPE SHIELD” PROVISIONS OF CODE OF
EVIDENCE ARTICLE 412.

3. Due process was denied to Christopher Gatson when the court
refused to order discovery before indictment. THE TRIAL
COURT ERRED IN DENYING DISCOVERY BASED ON
“NO BILL OF INFORMATION FILED”, WHERE
CHRISTOPHER GATSON WAS INCARCERATED AND
UNABLE TO POST BOND. DEFENDANT[’S] RIGHTS TO
CONFRONTATION AND DUE PROCESS WERE
APPLICABLE IMMEDIATELY BECAUSE OF LOSS OF
LIBERTY.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

we find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends the State failed to prove beyond a reasonable doubt

that intercourse occurred between the defendant and the victim (J.B.) prior to the

victim’s thirteenth birthday.1 Absent such proof, the defendant argues the evidence

was sufficient to prove carnal knowledge of a juvenile, not first degree rape. For

the reasons discussed, this assignment lacks merit.

1
Initials of the victim are used pursuant to La.R.S. 46:1844(W)(1)(a).
2

Standard of Review

In reviewing the sufficiency of evidence, this court has set forth the standard

of review as follows:

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 (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 credibilities of the witnesses,
and therefore, the appellate court should not second guess the
credibility determinations of the trier of fact beyond the sufficiency
evaluations under the Jackson standard of review. See Graffagnino,
436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228
(La.1983). To obtain a conviction, the elements of the crime must be
proven beyond a reasonable doubt.

State v. Thacker, 13-516, p. 5 (La.App. 3 Cir. 1/28/15), 157 So.3d 798, 804

(quoting State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d

578, 580).

Evidence Presented at Trial

The first piece of evidence introduced at trial was S-1, the victim’s

Children’s Advocacy Center (CAC) interview. A transcript of the interview was

introduced into the record as S-2 and was made available for the jury to read while

the interview was played. The trial court agreed that it would instruct the jurors

that if there was any discrepancy between the transcript and the video, the video

would prevail.

The state introduced as S-3 a complete copy of the victim’s medical records.

A “slimmed down” version of the medical records was also introduced as S-4 and

included only those records related to the matter at issue.

The first witness to testify was Heather Ducote, a school-based nurse

practitioner for Rapides Parish. Ms. Ducote worked at Alexandria Middle Magnet
3

and performed wellness checkups on the students that had Medicaid. According to

Ms. Ducote, these types of checkups were called “KIDMED” visits. During Ms.

Ducote’s wellness visit with the victim, the following occurred:

A. I seen [sic] her for the first time. She just came in for a
wellness visit. And with all my kids I ask them, you know, do they
feel safe at home, and normal things like they [sic] brush their teeth,
just the random questions we ask. And I also ask if they’re sexually
active, and most the [sic] children say no. She did tell me no that day,
and she did, was not sexually active. So I didn’t think nothing else of
it. I usually go by what they say, but the test results came back two
days later that she was positive for chlamydia. That’s a red flag,
especially with her age. So what we do is we, we treat.

According to Ms. Ducote, chlamydia is one of the most common sexually

transmitted diseases (STDs).

Ms. Ducote identified S-3 as a complete set of the victim’s medical records.

According to the records, Ms. Ducote testified, the victim’s date of birth was

August 25, 2006. During Ms. Ducote’s testimony, the state published S-4 to the

jury. When asked if S-4 contained the date of treatment described by Ms. Ducote,

Ms. Ducote indicated that it was October 25, 2019. Ms. Ducote testified that this

was the date of the victim’s initial KIDMED wellness visit. Ms. Ducote also

pointed to the portion of the records that indicated the victim denied sexual activity

during that initial visit.

When Ms. Ducote was directed to the portion of the record indicating that

the victim’s urine test showed chlamydia, Ms. Ducote testified:

A. It did. I always do a follow up as soon as I get my lab results so
we can treat as soon as possible. When she came back in we did
question her. And she, she had denied it first that she was sexually
active, but she finally opened up and said that she did have sexual
relations with someone.

Reading from the report, the prosecutor stated:

Q. . . . . Okay, so I’m just saying it aloud, patient states it was
consensual and one time occurrence with her boyfriend about two
months ago. Is that fair?
4

A. Yes, sir.

Q. And she states she does have some greenish white discharge at
this time and denies burning with urination. Is that –

A. Yes, sir.

According to Ms. Ducote, she asked the victim if she wanted to notify her

parent while she was in the office or if she wanted Ms. Ducote to notify her parent.

Ms. Ducote testified that the victim chose to be the one to notify and further

testified that the victim called either her mother or stepmom. When asked to

describe the victim’s demeanor during the call, Ms. Ducote replied, “She was

cheerful. I’ve had a handful of . . . young children, who have tested positive. And

they’re always very tearful and shocked.” The victim’s guardian, who Ms. Ducote

believed was the victim’s mother, arrived at Ms. Ducote’s office. Besides making

a report to the state, Ms. Ducote’s involvement ended.

On cross-examination, Ms. Ducote agreed that on October 29, 2019, the

victim said that she had been sexually active one time with her boyfriend. The

following colloquy ensued:

Q. Your notes also shows [sic] that the sexual occurrence
happened approximately two months prior to ten twenty-nine, twenty
nineteen, based on what she’s told you, correct?

A. Correct.

Q. Would you agree that this would have been approximately
sometime around August of twenty nineteen, two months prior?

A. That’s two months before October, so, yes.

....

Q. Okay. So based on your examination and your conversation
with [J.B.], -

A. Um-hmmm (affirmative).

5

Q. - you under, after the, you, you ended the conversation with her
you understood that she had had only one sexual partner, and it was
what she called her, with her boyfriend around August twenty
nineteen, correct?

A. That is what she told me.

The next witness to testify was Shannon Constantine, a Louisiana State

Trooper who formerly worked with the Alexandria Police Department. Trooper

Constantine recalled a meeting with the victim and her mother in October 2019.

The complaint, Trooper Constantine testified, involved improper sexual contact

with the victim. The trooper overheard the victim tell her mother that the victim’s

“godfather, Mr. Gatson, had picked her up, and they had sexual intercourse

approximately five times.” When asked what the victim told her, Trooper

Constantine replied:

A. She told, she told me that Mr. Gatson picked her up, and they
had intercourse in his vehicle. And she told me also that on one
occasion he gave her an iPhone, and on another occasion he gave her
money in the amount of approximately thirty dollars. He also – she
also told me that it was after dark in his vehicle.

Q. Okay. And so according to the best of your memory right now,
that’s everything the child told you, is that correct?

A. She also told me that it happened within the last, the, the, the
first occurrence that she recalled was during the summer of that year.

Detective Patrick Harrison of the Alexandria Police Department testified that

he investigated the allegations in question. Detective Harrison identified the

defendant as the person accused of the crime he investigated. According to the

detective, the initial report of the allegations was taken on October 29, 2019, and

the case was assigned to him the following morning. The detective scheduled a

CAC interview of the victim for November 6 and monitored the interview on that

date. When asked if during the interview he heard allegations of an aggravated

rape and carnal knowledge of a juvenile, Detective Harrison replied, “Yes, I did.”

6

When asked what his thoughts were about the interview, Detective Harrison

answered:

A. Just the description provided in the interview as well as by State
law, the way the State law’s written, a lot of it depends on aggravated,
or, I’m sorry, first degree rape. They changed the term. First degree
rape is dependent upon a birth, or birthday of the victim. So, for
example, if, if the victim is under the age of thirteen, if they’re from
zero years old to twelve years old, and if they have sexual intercourse
during that time, it would be a first degree rape. If they’re over the
age of thirteen, then it would be essentially a felony carnal knowledge
of a juvenile.

Q. And in this case the victim’s birthday played a large part in the
investigation, is that fair?

A. It did, because as I said before, we, we received a complaint in
October or late October. She stated that the, the, or the investigation
showed me that the, some of the incidents occurred several weeks
prior. And then, but we also were able to establish that at least one
incident occurred prior to her birthday during the summer, which
would have been, she was thirteen years old at the time. Prior to her
birthday she would have been twelve years old, which would fall
within the statute of the first degree –

Q. Okay. You said it pretty clear, but those are all just crucial
points in the case, so I want to make sure I understand. One of the
events happened before her birth date, as was established by her
statement. The other four events happened after her birthday which
would make her thirteen. Is that your understanding?

A. Yes, correct.

Detective Harrison testified that he understood the victim’s birth date to be August

25, 2006. Although the detective did not know the defendant’s date of birth, he

believed the defendant was thirty-two at the time of the allegation. Upon

refreshing his memory by looking at his report, Detective Harrison testified the

defendant’s date of birth was February 20, 1985. Based on the victim’s CAC

interview and the victim’s positive test result for chlamydia, Detective Harrison

requested an arrest warrant be issued for the defendant.

On cross-examination, Detective Harrison testified to the following

regarding his determination that the victim was under the age of thirteen:
7

A. Well, she was thirteen at the time she alleged the offense. Her
date of birth is in August, towards the end of August. And she alleged
that the offense occurred in the summertime, which normally
summertime is June, July, kind of May and kind of getting into
August. And I believe we actually asked her did any of the offenses
occur prior to or after your birthday. And she said, well, at least one
occurred prior to her birthday, when she would have been twelve
years old.

Detective Harrison agreed that this determination was based on the victim’s

testimony alone. When defense counsel asked him if the allegations alone were

sufficient for him, Detective Harrison answered that he tried to corroborate as

much information as he could. According to the detective, the victim’s mother

corroborated the allegations when she said that the defendant would pick the

victim up and take her away. Additionally, Detective Harrison testified the

victim’s positive chlamydia test was another corroboration. On re-direct,

Detective Harrison testified that based on the evidence he heard, there were five

instances of sexual contact.

The next witness, Kristin Bobbitt, conducted the CAC interview of the

victim. The state published the CAC interview (S-1) while the jurors were able to

read the transcript of the interview (S-2). The interview was conducted on

November 9, 2019, at which time the victim was thirteen. When asked if she had

been there before, the victim nodded her head and stated that she remembered the

room. After talking with the victim about various things, Ms. Bobbitt asked the

victim if she knew how she got chlamydia. The victim nodded her head and

explained:

Okay, one day I was at mama[’s] house. Me and my sister and my
brother, but my sister’s old enough to watch us at home and uh my
sister was in the room. My brother was in mama[’s] room and my
supposed to be God-daddy came over there. And he asked me did I
wanna ride with him to go get something to eat and I was like oh
yeah, ‘cause I mean I was hungry. I wanted something to eat, but I
didn’t feel like cookin’ and then he was like okay, come ride with me.
So I rode with him and then got to the point to where he just said take
8

off your clothes. And I was like (shakes head), why? And he was
like oh just do it and I did it.

....

And we uh he said climb in the backseat so I got in the backseat.
Didn’t know what was goin’ on but I was like okay so then I started
doin’ the nasty and you know it’s like well wait, what are you doin’?
Then afterwards he took me home and went and got something to eat,
I was like that didn’t feel right at all.

When Ms. Bobbitt asked the victim if this happened one time or more than

one time, the victim stated that it happened “like five times.” The victim said her

“God-daddy’s” name was Christopher Gatson. The victim explained that she

called Mr. Gatson her “God-daddy” because he had been in her life since she was

two years old, and her mother trusted him to take the victim places. Ms. Bobbitt

and the victim agreed that Ms. Bobbitt would refer to the victim’s “God-daddy” as

“Christopher.”

Ms. Bobbitt asked the victim to tell her about “the very first time something

. . . happened with him that [the victim] didn’t want to happen.” The victim

responded, “Okay, let me see. The part that I just told you.” When Ms. Bobbitt

asked if that was the very first time, the victim nodded her head. The following

colloquy ensued:

Kirstin: Okay, so tell me um is this the first time that he’s ever
done something like this or is that something that you normally go do
with him?

[J.B.]: No, it was like the first time.

Kirstin: Okay, so um do you remember how old you were when
this happened or how long ago this was?

[J.B.]: It wasn’t even long ago, ‘cause it was long.

Kirstin: So would it have been this year, like in 2019 or would it
have been last year?

[J.B.]: 2019.

9

Kirstin: Okay, and um you’re in eighth grade right now?

[J.B.]: Mm-hmm, (nods head).

Kirstin: So would it have been before this summer when you
were in the seventh grade or during the summer or when you were in
the eighth grade. Help me understand when it would have been.

[J.B.]: During the summer.

Kirstin: During the summertime? Okay, do you remember
anything else about when it would have been, if it was near a birthday
or holiday or anything like that? If not, it’s okay.

[J.B.]: I don’t know or remember.

The victim could not remember where the defendant pulled over but

remembered that it was somewhere close to a restaurant called Khan’s in

Alexandria. According to the victim, she could see dumpsters with trash falling

out of them. The victim told Ms. Bobbitt that she and the defendant took their

clothes off, and the defendant got on top of her. When Ms. Bobbitt asked what

body parts are involved in “doin’ the nasty,” the victim said the “privacy part.”

The victim explained that she used her “privacy part” for “peein’ or something”

while the defendant used his “privacy part” for “[p]eein’ and everything else.”

When asked if during the incident by the dumpsters, the defendant’s “privacy part”

touched her “privacy part,” the victim nodded her head. The victim stated that the

defendant’s “privacy part” touched the “inside[.]” When asked what made this

stop, the victim replied, “I was like get off of me, I was like I’m ready to go

home.” The victim stated that they put their clothes back on and were quiet on the

way back home.

When asked how long it was before something happened again, the victim

answered, “Maybe I could say two or three weeks.” In between the two or three

weeks, the victim talked with the defendant on the phone but did not talk about

10

what happened between them. When Ms. Bobbitt asked the victim to tell her about

the next time it happened, the following colloquy took place:

[J.B.]: It was the same old stuff, but I was like you just don’t
feel right to me. That’s what I was tellin’ him like, (shakes head),
mm-mm. I was like you ain’t my size. No, (shakes head), I don’t like
it.

Kirstin: Okay, so um I know the first time you told me it started
because he came and he told you to come get something to eat with
him and y’all left.

[J.B.]: (Nods head), mm-hmm.

Kirstin: Tell me about how this time started, the second time.

[J.B.]: So like he be like oh come ride with me to my house. It’s
so like every time he make up an excuse, come ride with me this
place, come ride with me go pick up somebody and I really think we
be going to pick up somebody and go to his mama[’s] house ‘cause I
like his mama. He be like come ride, come ride with me to my
mama[’s] house. Let’s go pick up (inaudible), let’s go do this, let’s go
do this.

Kirstin: Okay, so the other times that it happened, were they all
the same as the first time you told me about it or was any or was there
a time where something different happened?

[J.B.]: They all was the same (shakes head).

Kirstin: It was always the same.

[J.B.]: (Nods head).

Kirstin: Tell me what was the same about it.

[J.B.]: Like gettin’ in the backseat and stuff.

Kirstin: Okay, um so the second time that happened, tell me what
made that time stop.

[J.B.]: Uh he had, he had just stopped when (inaudible).

Kirstin: Okay, so of all the times that it happened, did you ever
see anything come out of his privacy part?

[J.B.]: Something white.

Kirstin: Okay, and tell me about where the white stuff went.

11

[J.B.]: Uh he had like shirts and stuff in the back of his truck.
He’d got the shirts and wiped.

When asked if this happened anywhere else besides near Khan’s and the

dumpsters, the victim said it also happened by a school in Alexandria. According

to the victim, the most recent time this happened was “three weeks ago” and

occurred close to the defendant’s mom’s house. When asked what kept her from

telling someone what was happening, the victim replied, “Like I was like I don’t

wanna get in trouble or I don’t want everybody to think that I wanted to do it.”

As for the timing of the first incident, the following colloquy took place:

Kirstin: Okay, well Mr. Patrick did have a couple of things that
he wanted um to understand a little better. So the first one was you
know how we were talkin’ about when the first time happened. You
told me it was in the summer.

[J.B.]: (Nods head).

Kirstin: Okay, so I understand your birthday is in August?

[J.B.]: Mm-hmm.

Kirstin: Tell me about when your birthday is.

[J.B.]: August 25, 2006.

Kirstin: August 25, 2006, okay.

[J.B.]: (Nods head).

Kirstin: Um so tell me the first time that something happened
with him, would it have been before your birthday or after your
birthday?

[J.B.]: Um before.

Kirstin: Before your birthday, okay, and um do you remember
how many times it happened before your birthday?

[J.B.]: Once.

Kirstin: Just once?

[J.B.]: (Nods head).

12

After the video was played for the jury, Ms. Bobbitt testified that her

involvement in the case was completed with the ending of the CAC interview.

The victim, J.B., was the next witness to testify. At the time of her

testimony, the victim was sixteen years old. When asked if she had watched her

entire video before her trial testimony, the victim replied, “Yes, sir[,]” and

answered affirmatively when asked if it was all true and correct. The following

colloquy then took place:

Q. Okay. So the questions I have for you are about what was said
on the video. Are you ready?

A. Yes, sir.

Q. When you described what happened in the video you were
talking about things that happened before and after your birthday.
You remember –

A. Yes, sir.

Q. - that? When your, would you just tell everybody what your
birthday is, please, ma’am?

A. My birthday is August twenty-fifth, two thousand and six.

Q. Okay. When you are talking about events before and after your
birthday, is your birthday something that you celebrate while you’re
in school or is that something that happens before you go back to
school?

A. I celebrate it in school.

Q. All right. And so when you and I were talking about it you said
that the first event happened during the summer, is that right?

A. Yes, sir.

Q. And that was before school, is that right?

A. Yes, sir.

Q. Okay. And of that the jury is going to want to know whether
you’re sure about that. Are you –

A. Yes, sir.

13

Q. - all the way up?

A. Yes, sir.

Q. Okay. So after that how many more times did it happen?

A. Four.

Q. Okay. And do you know about how often those times would
happen?

A. Yes, sir.

Q. About how often would that happen?

A. Like maybe two or three weeks.

Q. Okay. So –

A. And give me –

Q. - about two or three week intervals and you would see him and
stuff would happen?

A. Yes, sir.

When the state asked the victim to tell the jury exactly what happened to her,

the victim responded, “He had sex with me.” The victim further stated, “He told

me to pull my clothes off. And after I pulled my clothes off he put his penis in my

vagina.” The victim agreed that this happened on five different occasions. When

asked if one of the times occurred while she was twelve, the victim answered,

“Yes, sir.”

As for their relationship before the sexual incidents happened, the victim

stated that she would see the defendant every weekend that he was off. The

defendant bought her school clothes, food, and would take her to get her nails

done. During the time the sex was occurring, the victim testified, the defendant

bought her food and sometimes gave her money, “like sixty dollars.” According to

the victim, the defendant never told her not to tell anyone. The following colloquy

ensued:
14

Q. After the first time, and certainly after the second time when he
would come get you, did you know what he was coming to get you
for?

A. Well, yeah, of course, but normally like he would always say
we was going to this place, that place, so I used to really think we was
going to go to that place. I wasn’t nothing but twelve.

Q. When this happened to you how did it make you feel?

A. I felt all, all, like I felt bad for myself, because I could have
protected myself. I could have said something, but I didn’t.

When asked why she didn’t say something about what was happening, the victim

stated that she thought she would get in trouble, and she felt ashamed.

The state then asked the victim about the KIDMED appointment in which

she was asked if she was having sex with anyone. When asked how she answered

that question, the victim said she told Ms. Ducote that she was having sex with her

boyfriend and explained to the prosecutor that she was “only trying to cover up

from [her] mistakes.” The following colloquy took place:

Q. Okay. So you went and saw her twice, right?

A. Yes, sir.

Q. And the first time is when they took a urine sample from you,
right?

A. Yes, sir.

Q. And the second time’s when they had results, right?

A. Yes, sir.

Q. I’m asking about that first time, before anybody knew –

A. Oh, the first time I didn’t say nothing. I didn’t –

Q. Okay.

A. - tell her nothing.

Q. Okay. So if she had asked you if you had had sex how would
you have responded back?

15

A. With the same reply I replied the second time.

Q. Okay. I, another, okay. In the, in the records, and I can show
you the records if you want to see them, it says that Ms. Ducote asked
you that question, and you said no, I’ve not had sex with anybody.
Would that be something that you said?

A. Yes, sir.

Q. Okay. That’s what I’m asking. And I’m sorry it’s difficult, but
I don’t want to give you the answer but I, I need to get to the fine
point, okay? On the second time, the one that you’re trying to tell me
about, where you said I said my boyfriend did it but I’m just trying to
cover up.

A. Yes, sir.

Q. The question in here is what did you mean by the word
boyfriend?

A. Well, I was dating a boy in the eighth grade.

Q. Okay. Had you been having sex with him?

A. No, sir. We didn’t see each other outside of school.

Q. At the time that Mr. Gatson was having sex with you, was he
the only person you’d ever had sex with?

A. Yes, sir.

According to the victim, her mom took her to the hospital when she found

out that the victim had chlamydia. The victim testified that a rape kit was

performed, which she described as a “Q-Tip” being put inside of her to see if she

had been touched. After the prosecutor stated that he did not know a rape kit had

been performed on the victim, he asked the victim how long before the rape kit

was performed had she had sex with Defendant. The victim responded, “Three

weeks.”

The victim identified the defendant as the person who did the “stuff” they

had been talking about. According to the victim, the first place the things

happened was Khan’s “[b]y . . . the dumpsters and trash.” The second place, the

16

victim explained, was “by the school where it had red and yellow things up and

stuff.” When asked if she had a clear memory of the other times, the victim

responded:

A. Yes. It was at, one time pulled into a, like a house. Pulled in
the driveway.

Q. Okay. And one of the other things you said in the video was
on, on a place near his mom’s house. Did it happen there as well?

A. Yes, sir.

Q. Okay. So, so far, I think we’re talking about four different
places. Does that sound right to you?

A. Yes, sir.

Q. Do you remember that fifth place?

A. One of them was the same place.

Q. Okay. So you did it in one, you did it two times on one place?

A. Yes, sir.

Q. Which place was it that you did it two times then?

A. In front of his mom’s house.

The victim testified that she was telling the truth and that she had never told

anyone that she wanted to drop the charges because she had made them up.

When asked on cross-examination if she remembered the day or month of

the first incident, the victim replied, “July.” Defense counsel showed the victim S-

4 and had her read a portion of it:

A. This is a thirteen year old female who, who presents to the
clinic with a chief complaint of follow-up lab work from KIDMED on
ten twenty-five, nineteen. The patient had denied being sexually
active. GCT positive for chlamydia. The patient states it was
consensual and a one time occurrence with her boyfriend about two
months ago. She states she does have some greenish white discharge
at this time. Denies burning with urination.

17

Q. Okay. I don’t want to go into too much detail on that, but you
told me at, you just stated that it happened, you thought, in July,
correct?

A. Uh-hmmm (affirmative).

Q. And on the, the medical records here it looks like you stated
that it happened in August. Is that correct?

The state objected to defense counsel’s use of “August” when the portion

read by the victim did not say “August.” When the trial court asked defense

counsel to rephrase the question, defense counsel asked the victim the date of her

visit to the clinic. When the victim stated, “September twenty-fifth[,]” defense

counsel asked her to look at the date in the top lefthand corner of the report from

which she read:

A. Okay. That’s September the, hold on, August. October the
twenty-ninth, -

Q. So it’s October –

A. - two thousand nineteen.

Q. - twenty-ninth when you went in. Is that correct?

A. Yes, sir.

Q. Okay. And one more time here. It states that patient states it
was consensual and a one time occurrence with her boyfriend about
two months ago. My question to you would be if you went in on
October the twenty-ninth, it happened about two months before that,
right, based on your record here?

A. That was trying to cover up.

Q. So you were wanting to cover up the date also?

A. Yes, sir.

Q. Is there a reason why you would want to cover the date?

A. Because I, I didn’t want, I mean, I didn’t want nothing to come
up. I didn’t want to get in trouble.

Q. Okay.

18

A. Or nothing.

Q. But in, and I, I guess, I want to make sure that I’m asking this
correctly to you. I noticed, know that you would want to potentially
cover up that act, but after certain things were found out you’re then
saying that you still wanted to cover up not only the date, I mean not
only the, the actual act, but also the date it happened. Is that, is that
what you’re saying?

A. Yes, sir.

The victim reiterated that the first time the defendant stopped his vehicle

they were near dumpsters by Khan’s. The victim stated there were no other people

in the parking lot but could not remember what day of the week it was. Although

she did not remember what time the defendant picked her up from her house, she

estimated that it had been dark about two or three hours. The victim also testified

that this occurred sometime between July and August. According to the victim, the

defendant gave her sixty dollars after this occurrence. When defense counsel

pointed out that in the video, the victim said the defendant gave her thirty dollars,

the victim testified, “I was trying to lower the money.” The following colloquy

ensued:

Q. Okay. So you’re saying that you not only told her that there
was a, there was different dates, there was a different date, instead of
it being in potentially August that it, but, I’m sorry, let me say it this
way. You stated that in, initially that, I’m sorry, this, just a few
minutes ago you stated that it, it happened in July, correct?

A. Um-hmmm (affirmative). Yes, sir.

Q. And, and also then the, the medical report you stated that it
happened in, somewhere around August, correct?

A. Yes, sir.

Q. And you stated that you told them at the, the Winn Community
Health Center that, that, because you were trying to protect Mr.
Gatson, right?

A. Yes, sir.

19

Q. Now you’re telling me also that initially it was stated that it was
thirty dollars, but you’re saying it’s sixty now. And the reason for the
change is because you were trying to lower the amount of money that
he gave, is, is that what you’re staying?

A. Yes, sir.

Q. Okay. Is there a reason why you wanted to tell a lower amount
versus the actual amount?

A. Yes, sir.

Q. What, what was that reason?

A. Because I didn’t want to say he gave me more. I didn’t want to
say like a high amount.

The victim stated that she was sure it was sixty dollars because she posted the sixty

dollars on Instagram. The victim explained that she was young and wanted people

to know that she received some money. The victim further stated, “And I was only

twelve years old.”

About two or three weeks later, the victim testified, the second incident

occurred in front of the house of the defendant’s mom. The victim agreed with

defense counsel that the second incident occurred at a house located across the

street from the defendant’s mom’s house. Defense counsel pointed out that in the

video, the victim said the incident occurred about four houses down from the

defendant’s mom’s house. When defense counsel asked, “So it wasn’t four houses

down, it was right across the street[,]” the victim replied, “Yes, sir.” According to

the victim, for all the incidents, she was picked up from her mom’s house, not her

dad’s. The victim remembered that when the first incident occurred, her mom was

at the casino, but she did not remember where her mom was when the other

incidents occurred.

Defense counsel questioned the victim about a statement she made in the

video:

20

Q. Okay. At that time did, was there anything that, I noticed that
in the video, I’m not exactly sure which time, so please clarify if, if,
you know or correct me if I’m wrong here, but you stated that you
told him that it, you’re not my fit. What did you mean by that?

A. He not my, you not my age. Like –

Q. Okay.

A. - you grown.

Q. Okay. So it had to do with his age?

A. It’s not really about the age either, it’s just about, you know,
you, why you want to mess with a child?

The victim estimated that the first and second incidents of sexual intercourse

lasted “[m]aybe an hour or two” or even three. The victim then stated that she

honestly did not know how long the intercourse lasted but agreed that it was

somewhere between one and two hours. As for the third and fourth incidents, the

victim did not remember where they occurred but remembered that they were

instances of actual intercourse that lasted about the same as the others. The fifth

(last) incident, the victim testified, occurred by the school.

When asked if she did not tell anyone what was happening because she was

afraid of getting in trouble or afraid of telling her mother the truth, the victim

replied, “I was more afraid of getting myself in trouble.” The victim denied

admitting to anyone that the allegations were false. Finally, the victim testified

that she did not make up these allegations.

On re-direct, the state concluded the victim’s testimony with the following

colloquy:

Q. Okay. Everything that you said in the video, you stand by those
statements?

A. Yes, sir.

Q. Everything you said here in court, every single thing, you stand
by those statements?
21

A. Yes, sir.

Q. The whole time, you telling the truth?

A. Yes, sir.

Q. Your godfather had sex with you five times?

A. Yes, sir.

Q. One time when you were twelve?

A. Yes, sir.

The victim’s mother, A.J., testified that the victim was afraid to talk to her

about what happened even after she was notified about the victim’s chlamydia

infection. When A.J.’s other daughter spoke with the victim, the victim began to

cry and talk to A.J. about who did this to her. A.J. denied ever trying to drop the

charges against the defendant.

The victim’s stepmom, T.C., testified that she was present at times when the

victim was on the phone with the defendant. When asked how she knew the victim

was on the phone with the defendant, T.C. testified that the conversation would get

quiet, and the defendant would ask the victim if anyone was around. According to

T.C., the victim was eleven or twelve years old when these conversations took

place, and the victim acted secretive and private.

When asked if the defendant ever made her an offer to drop the charges,

T.C. responded:

A. Yes, sir. And it was like, it was like twenty-five, something
like that.

Q. Twenty-five?

A. Hundred.

Q. Twenty-five hundred dollars?

A. Yes, sir.
22

T.C. testified that she told the defendant “no.” Although she could not say what

they asked her, T.C. stated that she was contacted by another person associated

with the defendant. T.C. described their contact with her “like bribery.”

On cross-examination, T.C. testified that before the allegations were made,

she asked the defendant if he was sexually involved with her daughter. When

asked why she asked that question, T.C. replied, “Because of the conversations I

was overhearing.” Although T.C. stated she did not hear anything of a sexual

nature, she was suspicious of why the defendant asked the victim if anyone was

around.

After the state rested its case, the defendant introduced one witness, the

defendant’s aunt, Gwendolyn Gatson. Ms. Gatson testified that she was friends

with the victim’s mom, A.J., and testified that she had known the victim since she

was a baby. Ms. Gatson testified that A.J. confided in her when A.J. learned what

happened to the victim. Ms. Gatson described A.J. as being devastated and crying.

According to Ms. Gatson, the victim and her mom have continued to attend Gatson

family functions even after the allegations. When asked if she believed the

allegations, Ms. Gatson replied, “No, sir.” Finally, Ms. Gatson testified that there

were no abandoned houses across the street or down the street from the defendant’s

mom’s house.

Defendant’s Argument in Brief

The defendant argues the state failed to prove beyond a reasonable doubt

that intercourse occurred before the victim’s thirteenth birthday. Thus, the

defendant contends the jury should have found him guilty of carnal knowledge of a

23

juvenile, not first degree rape.2 The defendant claims there was no clear evidence

that the victim was twelve when one of the incidents of sexual intercourse occurred

and claims the victim’s testimony was vague and inconsistent as to this issue. The

defendant points out that the victim told the CAC interviewer that she did not

remember when the first incident happened. Additionally, the defendant notes that

when the interviewer asked the victim how old she was, the victim responded “it

wasn’t even long ago[,]” and “it was in 2019.” The defendant acknowledges that

when the interviewer specifically asked the victim if the intercourse happened

before or after her birthday, the victim responded “before . . . one time.” The

defendant contends, however, there was no consistent testimony regarding a

precise date. The defendant asserts the state offered no corroboration of the

victim’s claim that one incident of intercourse occurred before her thirteenth

birthday, offered no evidence that the defendant had a venereal disease, and offered

no evidence that the victim’s boyfriend was tested for infection.

State’s Argument in Brief

Citing State v. Hypolite, 13-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687,

writ denied, 14-1242 (La. 1/23/15), 159 So.2d 1056, the state asserts the well-

settled principle that “a victim’s testimony alone is sufficient to support a verdict

as long as that testimony is believed by the trier of fact and that testimony does not

contain internal contradictions or irreconcilable conflicts with physical evidence.”

The state further asserts:

It is the jury that weighs the testimony and evidence presented.
The jury heard that the victim, J.B., was born on August 25, 2006.
Prior to August 25, 2019, J.B. is twelve years old. The jury heard the
school nurse testify that J.B. tested positive for chlamydia in October

2
The defendant was found guilty of first degree rape and carnal knowledge of a juvenile.
The defendant does not challenge the sufficiency of the evidence of his conviction for carnal
knowledge of a juvenile. Thus, it appears the defendant is arguing that he should have been
found guilty of two counts of carnal knowledge of a juvenile rather than one count of first degree
rape and one count of carnal knowledge of a juvenile.
24

of 2019. The jury heard that J.B. celebrates her birthday while she is
in school. The jury heard that J.B. testified that the “first event”
occurred during the summer. The jury heard J.B. testify that it
happened before school. The evidence is sufficient to support that
J.B. was twelve years old at the time she was first raped by the
defendant.

Discussion

The supreme court stated the following regarding the sufficiency of the

evidence when the victim’s testimony was the only evidence to support the

offense:

E.S.’s second argument is that the State presented no medical,
eyewitness, or other direct evidence to corroborate N.H.’s claims.
Testimony of a sexual assault victim alone is sufficient to support a
rape conviction, even if the State does not introduce medical,
scientific, or physical evidence to prove that the defendant was the
individual who committed the crime. See State v. Rives, 407 So. 2d
1195, 1197 (La. 1981) (“Despite the absence of scientific evidence of
sexual intercourse, the testimony of the victim was sufficient to
establish ‘sexual penetration’ ”); State v. Ponsell, 33,543, p. 5 (La.
App. 2 Cir. 8/23/00), 766 So. 2d 678, 682, writ denied, 00-2726 (La.
10/12/01), 799 So. 2d 490 (finding that testimony of the victim is
sufficient even where no medical or physical evidence is introduced);
State v. Lilly, 12-0008 (La. App. 1st Cir. 9/21/12), 111 So. 3d 45, 62,
writ denied, 2012-2277 (La. 5/31/13), 118 So. 3d 386 (victim’s
testimony was sufficient even where contradicted by testimony of
defendant); see also State v. Ford, 28,724 (La. App. 2 Cir. 10/30/96),
682 So. 2d 847, 849–50 (finding that, absent internal contradiction or
irreconcilable conflict with physical evidence, one witness’s
testimony, if believed by the trier of fact, is sufficient support for a
requisite factual conclusion.).

It is true that in the instant case the only direct evidence of the
sexual abuse was the testimony of N.H., but, as the foregoing
jurisprudence indicates, a victim’s testimony alone is sufficient to pass
Jackson muster, even if there is contradictory evidence presented. See,
e.g., Lilly, 111 So. 3d at 62. It is notable in this case that the judge
indicated that the forensic interview of N.H. was “one of the better
ones [he had] seen over [his] career” and was thoroughly convinced
that N.H. was being truthful in her testimony. We defer to the district
court judge as the factfinder to give great weight to victim’s
testimony, particularly in light of such express findings of credibility.

State in the Interest of E.S., 18-1763, p. 15 (La. 10/22/19), 285 So.3d 1046, 1057–

58 (footnote omitted).

25

We find that in the present case, the victim’s testimony alone was sufficient

to prove that she was under the age of thirteen at the time of the first incident of

sexual intercourse. The victim stated that one incident happened during the

summer and before her birthday (August 25, 2006). When asked if she celebrated

her birthday before she went back to school or during school, the victim testified

that she celebrated her birthday during school. The victim agreed that the first

incident happened during the summer, before school. At trial, the victim replied,

“Yes, sir[,]” when asked if one of the incidents occurred when she was twelve. On

cross-examination, the victim stated the first incident occurred in July.

Subsequently, the victim stated the first occurrence took place sometime between

July and August. Another time during cross-examination, the victim attributed the

discrepancy in the amount of money she claimed the defendant gave her after the

first incident to her being young and “only twelve years old.” Finally, at the

conclusion of her redirect-examination, the victim answered “Yes, sir[,]” when

asked if she was telling the truth, if her godfather had sex with her five times, and

if one of the times was when she was twelve.

We find the victim’s testimony did not conflict with physical evidence.

Even though there were some inconsistencies between the victim’s testimony at

trial and her earlier statements, the victim offered an explanation for the

inconsistencies. Obviously, the jury believed the victim’s testimony, and the jury’s

credibility determination was reasonable. Since the victim’s testimony was

sufficient to establish that at least one incident of sexual intercourse occurred prior

to her thirteenth birthday, we find the evidence was sufficient to convict the

defendant of first degree rape.

We note the defendant cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348 (2000), and raises an issue in this assignment of error as to the jury’s
26

failure to make a specific finding that the victim was under thirteen years old at the

time of the offense of first degree rape. The jury was instructed that it must find

the victim was under thirteen years old in order to find the defendant guilty of first

degree rape. The verdict form did not require the jury to specifically find the

victim was under thirteen years old.

The defendant’s reliance on Apprendi is misplaced in this assignment of

error. In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490. The fact of the victim’s age in this case did not

increase the penalty for first degree rape beyond the statutory maximum. Rather,

the victim’s age was an essential element of first degree rape. Thus, by finding the

defendant guilty of first degree rape, the jury obviously found the victim was under

the age of thirteen.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues the trial court erred in restricting his cross-

examination of the credibility of the victim under the rape shield statute. In his

argument, the defendant does not specify the ruling about which he is complaining.

First, the defendant cites a portion of the victim’s CAC interview wherein the

victim stated that she remembered the interview room. The defendant claims the

trial court prevented defense counsel from asking about the victim’s memory of the

interview room and asking whether the victim had given false statements in the

past. Defense counsel, however, cites to no such question in the record. Thus, we

find the defendant’s argument does not meet the requirements of Uniform Rules—

27

Courts of Appeal Rule 2-12.4(A)(9)(a). Accordingly, we will not consider this

argument.

Next, the defendant refers to a portion of the school nurse’s testimony

wherein she testified the victim told her she had sex only with her boyfriend. The

defendant argues:

When counsel brought up that statement and inquired about it on cross
examination, the State objected, claiming the law as barring “inquiry
regarding anybody else.” (Rec. Vol. 1 p. 206) The Court applied the
part of Article 412 limiting prior activity to a short time before the
charged offense:

However, in this case the accuser had made statements that showed a
pattern of false content, particularly about her boyfriend being her
partner. The courts have noted a difference in impeachment of
credibility and delving into sexual activity.

This Honorable Third Circuit, has held, citing the Supreme
court, that “La. Code Evid. art. 412 does not apply to cases wherein
the defense seeks to introduce prior false allegations of sexual
misconduct for purposes of discrediting the victim in State v. Smith,
98-2045, (La. 9/8/99), 743 So.2d 199”; State v. K.W.T., 2012 La. App.
Unpub. LEXIS 322, *26-28, 11 839 (La.App. 3 Cir. 05/16/12), 2012
WL 2213675.

“Because the outcome of this case rested entirely upon the
jury’s perception of the victim’s veracity, the trial court’s ruling
regarding the victim’s prior false allegations of sexual molestation
cannot be said to be harmless” State v. Smith, 743 So. 2d 199, 203-
204, 1999 La. LEXIS 2228, *14-15, 98-2045 (La. 09/08/99). Smith is
precisely on point in this case.

In this case, J.B. is the sole witness. She earlier pointed to her
boyfriend, after initially denying any sexual activity. She gave
various accounts of the timing and sometimes stated she did not
remember. The trial court erred in preventing the jury from
considering her changing accounts with prior allegations that were
possibly false, or that actual[ly] accused a different person. Her prior
experience in the interview room is a missing link to proof beyond a
reasonable doubt, and affirmation of the conviction violates the
United States and Louisiana Constitutions.

The only objection cited in the above excerpt from the defendant’s brief was

an objection made on page 206 of the record. Although we find no objection on

28

page 206, we note the following discussion on page 208, which occurred during

defense counsel’s questioning of Ms. Ducote, the school nurse:

Q. Do you remind, do you recall asking Ms. [J.B.] about her past
sexual history on nine twenty-five, twenty nineteen?

MR. HALL: Your Honor, may we approach,
please?

SIDEBAR NOT RECORDED

THE COURT: Mr. Stephens, if you would
continue with your cross.

Since the bench conference referred to in the above colloquy was not

recorded, it is unclear what objection and/or ruling, if any, was made. It is clear

from defense counsel’s subsequent questioning, however, that he was allowed to

question the school nurse about the victim’s reported sexual history:

BY MR. STEPHENS:

Q. So do you recall asking Ms. [J.B.] about her sexual history on
nine twenty-five of twenty nineteen?

A. I do not.

Q. Based on the medical records do you see that that question was
asked by, by, by you?

A. No, sir, I did not ask her.

Q. Based on the medical records was that questioned [sic] asked?

A. No, sir.

Q. Do you recall asking Ms. [J.B.] about her sexual history on ten
twenty-five of nineteen?

A. Yes, that’s part of the wellness visit.

Q. According to the medical notes isn’t it true that [J.B.] denied
have, to, to have had sex the twelve months prior to that date?

A. That’s true.

Q. Do you remember ask [sic], or do you recall asking Ms. [J.B.]
about her sexual history that day?
29

A. Yes.

Q. Do you remember her denying it?

A. Yes, she was not sexually active.

Q. Okay. So that’s what she states, she was not –

A. That’s what she –

Q. - sexually –

A. - stated.

Q. - active? Okay. What was significant about the, looks like the
October twenty-fifth, twenty nineteen visit that warranted a notation
of [J.B.’s] sexual history, but it did not warrant a, a notation in the
previous one?

A. Because it’s a wellness visit, and we go by those questions. As
a thirteen year old I, I don’t ask every visit if they’re sexually active,
twelve and

Q. Um-hmmm (affirmative).

A. - thirteen.

Q. During the, I guess the, the October twenty-ninth, twenty
nineteen visit it was reported that [J.B.] had been sexually active
within twelve months prior, correct?

A. Well, due to the, the lab report. She didn’t verbalize she was
sexually active.

Q. Okay. Let’s skip to the, the next time you saw [J.B.] on the ten
twenty-nine, twenty nineteen.

A. Okay.

Q. Isn’t it true that [J.B.] told you –

A. Um-hmmm (affirmative).

Q. - that she had been sexually active with her boyfriend?

A. Correct.

Q. Isn’t it also true that [J.B.] told you that she had only had one
sexual occurrence and that was with her boyfriend?

30

A. Correct.

Q. Your notes also shows [sic] that the sexual occurrence
happened approximately two months prior to ten twenty-nine, twenty
nineteen, based on what she’s told you, correct?

A. Correct.

Q. Would you agree that this would have been approximately
sometime around August of twenty nineteen, two months prior?

A. That’s two months before October, so, yes.

....

Q. Okay. So based on your examination and your conversation
with [J.B.], -

A. Um-hmmm (affirmative).

Q. - you under, after the, you, you ended the conversation with her
you understood that she had had only one sexual partner, and it was
what she called her, with her boyfriend around August twenty
nineteen, correct?

A. That is what she told me.

Despite not knowing what objection, if any, was made in the bench conference

prior to the above colloquy, it is clear that defense counsel questioned the school

nurse about what the victim reported as her sexual history.

Although not specifically mentioned by defense counsel in brief, we note

that during defense counsel’s cross-examination of the victim, the following

colloquy and objection took place regarding the victim’s statement to the school

nurse:

Q. Okay. Who was your, did you have a boyfriend at that time?

A. Yes, sir.

Q. What was his name?

A. [J.B.]3

3
We have redacted the full name of the minor child identified by the victim.
31

....

Q. Well, do you know how, don’t worry about that question. How
long had you and [your boyfriend] been dating?

MR. HALL: Objection.

THE COURT: Grounds?

MR. HALL: Four twelve.

MR. STEPHENS: Your Honor, I’m not going to go that
far.

MR. HALL: Judge, it seems that –

THE COURT: Sustain that because I’ve already had
that, sustained. She can’t, not allowed to answer that
question.

Defense counsel then asked the victim if her mother knew that she was dating, and

the victim responded, “Yes, sir.”

The trial court’s statement that it had already sustained that objection may

have come from an earlier objection and ruling during trial. The state made the

following objection:

MR. HALL: Yes, sir. This comes out of remarks made
during defense’s opening statements. And Mr. Stephens made
reference to [J.B.’s] sexual, possible sexual contact with another
individual, not the accused, not Mr. Christopher Gatson. And I’ve
asked the Court to take a look at article, Code of Evidence, article 412
where it says that wherein an accused is charged with a crime
involving sexually assaultive behavior, reputation or opinion evidence
of the past sexual behavior of the victim is not admissible, as in
absolutely not admissible. When an accused, under paragraph two,
when an accused is charged with a crime involving sexually assaultive
behavior evidence of specific instances of the victim’s past sexual
behavior is also not admissible except, paragraph A talks about trying
to find what the source of DNA is. There is no DNA in this case, and
it could not possibly apply. And the other has to do with past sexual
contact between the accused and the victim to whether consent is an
issue. And I doubt Mr. Stephens wants to make use of that paragraph
as he is denying all sexual contact with Ms. [J.B.] whatsoever.
Accordingly, all of his statements about any past sexual contact,
contact with any other person were entirely inappropriate. There is
evidence in the case where my victim said her boyfriend, but there
was no other identifying information as to that. The Court correctly
32

shut him down on a speculative argument, but his suggesting these
things in front of the jury needs to be stopped. I’m asking the Court
for an order that he make no further reference to this whatsoever. If
he wants to find out what she meant by the word boyfriend, I think
that that is a fair question to ask to my victim, but I do not think it is
fair for him to say have you had sex with somebody else, as that is
entirely inadmissible.

THE COURT: Any response, Mr. Stephens?

MR. STEPHENS: Your Honor, we’re not, at this, we’re not
asking about her. We’re not referencing any of her reputation or her,
her opinions or anything like that concerning any sexual allegation.
What we’re trying to say here is that there could have been potentially
another source. And she stated in her records that, that there was
another source. And so I don’t under, well, I don’t see that the idea
that we asked her about things that she stated should be admissible in
this case, because this is exactly what she said. She said that I had sex
with another person.

MR. HALL: And, Judge, the problem with the argument
and why it’s patently false is because she doesn’t identify who the
boyfriend is. She doesn’t make anything about, any identifying
information whatsoever. And it is entirely reasonable to assume that
she was talking about Mr. Gatson. And so his argument discounts the
problem with that. And where he’s trying to put his foot down firmly,
he cannot. And he clearly said there was a boyfriend who was another
source for the chlamydia, which is entirely not permitted by this code.
I don’t want the Court to make an instruction to disregard his
argument as I think that would prejudice me even more. What I’m
merely requesting is that the Court stop Mr. Stephens from any further
inquiry into Ms. [J.B.’s] past sexual contacts with anybody else. I
think it is fair, because the statement boyfriend is in the record, that he
can ask her what boyfriend meant, but beyond that it’s not admissible.

MR. STEPHENS: Judge, this, this article apply [sic], it restricts
the introduction of evidence related to her behavior and her
reputation. But in, in this case, this, this whole incident started with
the results of a, of an STD test. So it’s a factual issue how she could
have gotten this STD if, if she had not had sex with any other person
or not had sex at all. So that, it’s really a factual issue rather than,
than an opinion or a reputation question.

....

THE COURT: - part two is that, when the accused is
charged with a crime involving sexual assault and behavior. That’s
what we’re going to have here. Evidence as specific instances of the
victim’s past sexual behavior shall, is not admissible. Stop there.
Except, well, two exceptions. Evidence of past sexual behavior with
persons other than the accused upon the issue of whether or not the
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accused was the source of the semen or injury. That would go
towards any kind of testing to determine whether there was somebody
other than Mr. Gatson, provided that the limit of the period is up to
seventy-two hours prior to the time of the offense. Other one is other
exception, is evidence of past sexual behavior with the accused
offered by the accused upon the issue of whether or not the victim
consented. As far as like Mr. Hall stated, part B, would probably not
be the issue because that would come from the defense side from Mr.
Gatson point of view. So we go back up to the A, is the only
exception of allowing it and with persons other than the accused of
which the alleged is boyfriend or somebody else, upon the issue of
whether or not the source of the semen or the injury. And it’s only
limited to not to exceed seventy-two hours prior to the time of the
offense. So you’ve got some hurdles there that prior to the time or
prior to the offense, if you specify the date of the offense, I think it’s
in the, that hasn’t been specified. I think the Court, at this time, is not
allowing any of that questioning because those conditions have not
been met, which could be later on down the road if it’s met. Then it
could possibly allow for further questioning of others. But until that
condition’s met, that line of questioning will not be allowed, other
than to identify that the, of the, the word boyfriend.

MR. HALL: Judge, if I’m understanding you, you’ve shut
down the questioning and you’ve used that, that word repeatedly, but
does that also apply to arguments and other references within the
hearing of the jury on this issue?

THE COURT: Yes. I mean, questions would go to
information. You can’t ask the question and, you don’t ask the
question then withdraw it because I’m going to consider that to be a
violation of what the spirit of my ruling is, is that no information
about behavior other than trying to identify what the boyfriend word’s
supposed to be, because it already has been brought up by the victim
in this matter.

MR. STEPHENS: To be clear, Your Honor, you’re, you’re
stating that I cannot ask any questions dealing with her sexual past at
this point?

THE COURT: At this point, no, because part B has not
been satisfied.

MR. STEPHENS: Please note our objection for the record,
Your Honor.

The trial court’s ruling as to the applicability of La.Code Evid. art. 412

prohibited defense counsel from questioning the victim as to her sexual past unless

34

the conditions of Article 412 were met. Louisiana Code of Evidence Article 412

provides, in pertinent part:

A.(2) Other evidence; exceptions. When an accused is charged
with a crime involving sexually assaultive behavior, evidence of
specific instances of the victim’s past sexual behavior is also not
admissible except for:

(a) Evidence of past sexual behavior with persons other than the
accused, upon the issue of whether or not the accused was the source
of semen or injury; provided that such evidence is limited to a period
not to exceed seventy-two hours prior to the time of the offense, and
further provided that the jury be instructed at the time and in its final
charge regarding the limited purpose for which the evidence is
admitted; or

(b) Evidence of past sexual behavior with the accused offered
by the accused upon the issue of whether or not the victim consented
to the sexually assaultive behavior.

The defendant offers no argument in brief that either one of the conditions of

Article 412 were met in this case. Rather, as stated earlier, the defendant appears

to focus on the victim’s statement during the CAC interview that she remembered

the interview room. The defendant states in brief that the victim’s prior experience

in the interview room is the “missing link” to proving reasonable doubt. However,

defense counsel fails to point to any portion of the trial record wherein he

attempted to question the victim about remembering the CAC interview room. Not

only does the defendant’s brief violate Uniform Rules—Courts of Appeal Rule 2-

12.4(A)(9)(a) (by failing to point to any portion of the record wherein he requested

to question the victim about her prior experience in the interview room), it also

appears that defense counsel failed to preserve this issue for review. La.Code

Crim.P. art. 841.

In its response to this argument, the state acknowledges that La.Code Evid.

art. 412 “does not apply when a defendant attempts to use evidence of a victim’s

false allegations of improper sexual behavior to impeach the victim’s credibility.

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State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 202-03.” The state

distinguishes Smith from the present case by noting that the victim in Smith

admitted to making prior accusations of improper sexual behavior, and the

admission was corroborated by two witnesses. Additionally, the state notes, one

witness in Smith testified that the victim recanted the accusations. Unlike Smith,

the state argues, there was no evidence in this case that J.B. retracted or recanted

prior allegations of abuse. In fact, the state notes there was no evidence that the

victim made prior allegations of improper sexual behavior.

Although it appears the defendant is alluding to the possibility that the

victim’s familiarity with the CAC interview room was because of a prior allegation

of improper sexual behavior, there was no evidence of such a prior allegation.

Thus, the defendant has failed to show any error in the trial court’s ruling.

For the foregoing reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, the defendant argues the trial court erred in

denying discovery based on the fact that no bill of information had been filed.

Because the defendant was incarcerated and unable to post bond, defense counsel

claims his confrontation and due process rights were violated. According to

defense counsel, no provision of the Code of Criminal Procedure limits defense

discovery to after a formal charge has been filed. Although defense counsel

concedes that “the error here, sheltered by the ‘harmless error rule’ does not so far

rise to the level of reversal[,]” defense counsel contends this court “should not

countenance such a flagrant disregard of the right to discovery . . . .”

In response, the state argues:

Noncompliance with discovery procedures will not mandate
reversal if the defendant has not been prejudiced. State v. Mitchell,
412 So.2d 1042 (La.1982); State v. Vaccaro, 411 So.2d 415
36

(La.1982); State v. Roussel, 381 So.2d 796 (La.1980); LSA–C.Cr.P.
Art. 921. The Appellant writes in his brief that he “concedes that the
error here, sheltered by ‘harmless error rule’ does not so far rise to the
level of a reversal.” The defendant has not shown how the denial of
defendant’s discovery motion has prejudiced the defendant to any
degree. In the event the trial court made error as this issue, the error
was harmless and no prejudice has been shown by the defendant at the
pretrial, trial, or appellate stage.

Analysis

Louisiana Code of Criminal Procedure Article 729.6 provides:

The rules of this Chapter shall be applied in all criminal cases
tried in the district, parish, and city courts. They shall be applicable
following the institution of prosecution by the return of a grand jury
indictment, the filing of a bill of information, or the filing of an
affidavit charging an offense. However, the rules of this Chapter do
not apply in city and parish courts to cases in which prosecution is
instituted by affidavit for violations of city or parish ordinances
defining traffic offenses.

In State v. Jefferson, 09-740 (La. 4/2/09), 6 So.3d 757, 758, the supreme

court stated: “The Commissioner’s order allowing defendant to review the police

report is Reversed. Defendant has not been indicted or charged by bill of

information with an offense, thus any request for production of the police report is

premature. La.C.Cr.P. art. 729.6.”

In State v. Parkerson, 530 So.2d 94 (La.1988), the supreme court held:

The request for production of tapes is premature. We have been
advised that relator has not been indicted or charged by bill of
information with an offense. La.Code Crim.P. art. 729.6. If relator is
indicted or charged by bill of information, then he would be entitled to
production of the tapes in accordance with La.Code Crim.P. arts. 716
and 718.

See also State v. James, 530 So.2d 94 (La.1988).

In State v. Palermo, 14-1099 (La.App. 3 Cir. 11/14/14) (unpublished

opinion), writ denied, 14-2622 (La. 3/6/15), 160 So.3d 1288, Palermo was under

investigation but had not been arrested or indicted. He filed a motion for

37

production of two search warrant affidavits, which was granted by the trial court.

The state sought review of the trial court’s ruling, and this court held:

WRIT GRANTED AND MADE PEREMPTORY: Search warrant
affidavits are not public records, and discovery is available only after
the institution of criminal proceedings by the filing of an indictment
or a bill of information. See La.R.S. 44:3; La.Code Crim.P. art. 729.6.
Cf. State v. Jefferson, 09-740 (La. 4/2/09), 6 So.3d 757; State v.
Parkerson, 530 So.2d 94 (La.1988); State v. James, 530 So.2d 94
(La.1988). Accordingly, the trial court’s ruling on September 19,
2014, granting access to the search warrant affidavit is reversed.

In State in Interest of E.D., 14-754 (La.App. 3 Cir. 7/24/14) (unpublished

opinion), the juvenile was alleged to have committed two counts of forcible rape

and one count of sexual battery. Prior to the filing of a petition charging the

juvenile, the trial court ordered the state to respond to the juvenile’s discovery

motion. The state filed a writ application, and this court held:

WRIT GRANTED AND MADE PEREMPTORY: The trial court
erred in granting the Juvenile’s motion for discovery in absence of the
filing of a petition, bill of information, or indictment. La.Code
Crim.P. art. 729.6. We vacate the trial court’s ruling and remand for
proceedings in accordance with this ruling.

Considering the above, we find the defendant fails to show the trial court

erred in denying his discovery request prior to the filing of an indictment in this

case. Furthermore, as the defendant concedes, any error would be harmless in light

of the lack of a showing of prejudice. Although the defendant claims he was

prejudiced by the loss of liberty, the defendant must show that the alleged

discovery violation “‘undermine[d] confidence in the outcome of [his] trial.’”

State v. Carter, 10-614, p. 33 (La. 1/24/12), 84 So.3d 499, 524 (quoting State v.

Walter, 96-1702, p. 1 (La. 6/20/97), 695 So.2d 1340, 1340), cert. denied, 568 U.S.

823, 133 S.Ct. 209 (2012). No such showing has been made.

Accordingly, this assignment of error lacks merit.

38

CONCLUSION

The defendant’s convictions and sentences for first degree rape and carnal

knowledge of a juvenile are affirmed.

AFFIRMED.

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

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