State Of Louisiana v. Rodney Jack Strain, Jr. ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2022 KA 0670
STATE OF LOUISIANA
VERSUS
RO DNE Y JACK N JR.
C K STRAIN,
Judgment Rendered: JUN 012023
Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 0703- F- 2019
The Honorable Ashly Bruce Simpson, Ad Hoc Judge Presiding
Warren L. Montgomery Counsel for Appellee
District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana
Gwendolyn K. Brown Counsel for Defendant/Appellant
Baton Rouge, Louisiana Rodney Jack Strain, Jr.
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
GUIDRY, C.J.
A grand jury indicted the defendant, Rodney Jack Strain, Jr., with
committing the following offenses: aggravated rape ( counts one through four);
aggravated incest ( count five); indecent behavior with a juvenile ( count six);
aggravated incest ( count seven); and sexual battery ( count eight).' He pled not
guilty and, following a jury trial, was found guilty as charged on each count. The
defendant subsequently filed a " motion for post -verdict judgment of acquittal, and
alternative motion for a new trial," which the trial court denied in separate rulings.
Thereafter, the trial court sentenced the defendant on counts one through
four to life imprisonment at hard labor without the benefit of parole, probation, or
suspension of sentence on each count. On counts five and seven, the trial court
sentenced the defendant to fifteen years imprisonment at hard labor and a
15, 000. 00 fine' on each count. On counts six and eight, the trial court sentenced
the defendant to five years imprisonment at hard labor on each count, with count
eight to be served without benefit of parole. The trial court further ordered the
following: counts one through four to be served concurrently; counts five and six
to be served concurrently but consecutive to the sentences imposed on counts one
through four; counts seven and eight to be served concurrently but consecutive to
the sentences imposed on counts one through six.
Counts one through four were based on violations of La. R.S. 14: 42. Counts five and seven
were based on a violation La. R. S. 14: 78. 1. Count six was based on a violation of La. R. S.
14: 81. And count eight was based on a violation of La. R. S. 14: 43. 1. In reference to counts one
through four, in 2015, subsequent to the instant offenses, the Legislature renamed the offense of
aggravated rape to first degree rape without any material alteration of the substance of the crime.
See La. R.S. 14: 42( E); 2015 La. Acts, Nos. 184, § 1 and 256, § 1. Herein, we reference the
offenses by the previous name based on the dates the offenses were committed. In reference to
counts five and seven, subsequent to the commission of the offenses, the Legislature repealed
former La. R.S. 14: 78. 1 and amended La. R.S. 14: 89. 1 to include the crime of aggravated incest
under the broader crime of aggravated crime against nature. See La. R.S. 14: 89. 1 ( A)(2)( a); 2014
La. Acts, No. 177, §§ 1 & 2; 2014 La. Acts, No. 599, § I.
Z Upon finding that imposition of a fine would not cause a substantial financial hardship on the
defendant or his dependents, the trial court ordered that the defendant be imprisoned for a period
of six months in the parish jail should he default on payment of the $ 15, 000. 00 fine imposed on
counts five and seven.
2
The defendant now appeals, raising ten assignments of error that challenge
several trial court rulings and the sufficiency of the evidence on counts five, seven,
and eight. For the following reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS3
An investigation of the defendant for sexual abuse started in 2017, after
Special Agent Timothy Lee Moore with the Internal Revenue Service ( IRS) and
Special Agent DeWayne J. Horner with the Federal Bureau of Investigations ( FBI)
interviewed S. K. (the victim in counts one through three) as part of an unrelated
investigation of ownership interests in St. Tammany Workforce Solutions, L.L.C.
STWS), a work release program.' S. K. was then a major with the St. Tammany
Parish Sheriffs Office ( STPSO), overseeing its maintenance division. While
being interviewed regarding STWS, S. K. revealed that the defendant sexually
abused him when he was a child. The interview took place in the presence of
S. K.' s wife and child. S. K. provided the agents with the names of four other
potential victims of the defendant' s sexual abuse: R.F. ( not related to this case);
M.F. ( the victim in count four); A.D. ( the victim in counts seven and eight); and
R.P. ( the victim in counts five and six), who was identified as the defendant' s
nephew.
For the sex crimes portion of the investigation, the special agents assigned
an FBI child/ adolescent forensic interviewer, Janetta Michaels, to assist in
3 As the charged crimes are sex offenses, we will refer to the victims and their immediate family
members by their initials only. See La. R. S. 46: 1844( W); State v. Mang_ rum, 20- 0243, p. 2 n. l
La. App. 1st Cir. 2122121), 321 So. 3d 986, 989 n. 1, writ denied, 21- 00401 ( La. 1011121), 324
So. 3d 1050. The defendant was convicted of eight offenses that involve four different victims.
4
According to the special agents, the defendant converted the work release program from a
publicly -run program into STWS, a privately -run limited liability company that was awned on
paper by Allen Tingle, Brandy Hanson ( the daughter of David Hanson, a captain in the St.
Tammany Parish Sheriffs Office (STPSO)), and J. K. (S. K.' s son). Brandy and J. K. were former
STPSO employees who resigned their employment to assume ownership of STWS, as ownership
of the program while working for the STPSO was prohibited by state law. Brandy and J. K. had
no active role in the program, and Tingle ran the operation. STWS had a contract with the
STPSO, which was headed by the defendant, who was at that time Sheriff of St. Tammany
David and S. K. used their children as " shell owners" so they could continue to work for
Parish.
the STPSO.
3
interviewing the alleged victims. They also brought in Trooper Malcolm Brown
with the Louisiana State Police, and the District Attorney' s Office assigned Agent
Allyson Hoffine with the U.S. Postal Inspection Services to assist with the
investigation.
Subsequently, the special agents interviewed M.F., who was incarcerated at
the time. Early on during questioning by the special agents, M.F. broke down
crying and stated that he had been sexually abused by the defendant as a child.
M.F. did not, at that time, disclose that the abuse included penetration.
An interview with R.P. was set up next. The investigation bore out that in
addition to being a STPSO employee, R.P. was receiving a $ 30,000. 00 salary from
STWS, though he had no active role in the program. R.P. started crying and
appeared distraught as he confirmed to the special agents that he had been abused
by the defendant. He declined an offer to meet with a forensic interviewer or
specialist.
A couple of weeks later, the special agents interviewed A.D. A.D.
confirmed that he was sexually abused by the defendant. In addition to
interviewing the alleged victims, the agents interviewed family members and
friends to whom the victims may have spoken about the alleged abuse before
reporting the allegations to law enforcement. Trooper Brown determined that S. K.
previously disclosed his claims to his wife, V.K., in 2011 or 2013. He further
determined that R.P. first reported his sexual abuse claims to his mother prior to
the investigation. The IRS interviews were memorialized, the forensic interviews
were recorded, and the sexual abuse allegations were presented to the St.
Tammany Parish District Attorney' s Office in the spring of 2018. it was
determined that the IRS and FBI would continue to investigate the work release
4
program, while Trooper Brown and Agent Hoffine, individuals unassociated with
the STPSO, would investigate the sexual abuse allegations.'
S.K. (Aggravated Rape, Counts 1- 3):
At trial, S. K. testified that his date of birth is July 19, 1968, and that he knew
and grew up around the defendant from about eight years old to adulthood. The
defendant was five and a half years older than S. K.b S. K. testified that his family
was poor and ultimately moved to property owned by the Strains when S. K. was
between nine and eleven years old. S. K.' s parents worked at one of the Strain' s
local fireworks businesses twice a year ( in July and December), and when S. K.
was ten and eleven years old, he worked at the Mandeville fireworks stand with the
defendant. S. K. testified that the defendant was like a brother to him and treated
hire very well. S. K. testified that when he was ten years old, while he and the
defendant were spending nights at the fireworks stand, the defendant began
initiating sexual contact with him.' S. K. testified the defendant was about two
hundred pounds larger than him at the time and said he " played dead" during the
acts. Later, when S. K. was an adult working at the STPSO, the defendant asked to
have oral sex with S. K. in exchange for a vehicle that S. K. needed for his
maintenance duties ( or some other advantages at work), and the defendant would
arrange for S. K. to engage in sexual acts with a female in the defendant' s presence.
5 The name of a potential fifth victim, R.R., arose during the course of the interviews. R.R., the
defendant' s cousin who was almost four years younger than the defendant, testified at trial about
the defendant touching him inappropriately that progressed to penile -anal intercourse when he
was between nine and eleven years old. R.R. is not involved in any of the offenses charged in
the indictment for this case. Additionally, the defendant' s wife, Lisa Strain, testified to a
separate incident where, in 2015, her adopted sister made public accusations against the
defendant. She was told that her sister later recanted the allegations.
According to the grand jury indictment, the defendant' s date of birth is November 28, 1962.
S. K. detailed acts including the defendant fondling and touching S. K.' s penis and pulling S. K.
up against him to cause S. K. to penetrate the defendant anally, as well as the defendant later
performing oral sex on S. K. As a married adult raising children and struggling financially, S. K.
accepted the defendant' s offer to work for him at the STPSO. S. K.' s wife, their two sons, and
his daughter- in-law also worked for the STPSO.
5
M.F. (Aggravated Rape, Count 4):
M.F. testified that he has known the defendant his whole life and also grew
up around the defendant in Abita Springs. 8 M.F. was born on September 5, 1969,
so he is about seven years younger than the defendant. When M.F. was about six
or seven years old and weighed about 60 pounds, the defendant was thirteen or
fourteen years old and weighed about 250 to 300 pounds at that time. M.F.' s
parents and the defendant' s parents were friends, and M.F. spent several days a
week at the Strain residence. M.F. initially enjoyed swimming in the pond on the
Strains' property while being supervised by the defendant. But, according to his
testimony, when he was six or seven years old, while they were in the pond
swimming on the Strains' property, the defendant started touching his private
parts.' M.F. testified that the defendant was intimidating and threatened him,
telling M.F. he " better not go back and say anything." M.F. stated the defendant
was like a big brother and father to him. M.F. testified that over the years, as an
adult, he would ask the defendant to provide things for him, and the defendant
would do it "[ b] ecause he knows what he did to me."
R.P. (Aggravated Incest & Indecent Behavior with Juveniles, Counts 5 & 6):
R.P. was thirty-four years old at the time of trial and his date of birth is June
23, 1987. R.P., also the defendant' s nephew, testified that his mother and the
defendant' s wife are sisters. He also confirmed that A.D. is the son of another one
of Mrs. Strain' s sisters. He testified that he was very close with the defendant
8 S. K. testified that he grew up with M.F., who was about a year younger than S. K., and
confirmed that M.F. also grew up around the defendant. M.F. confided in S. K. and S. K.' s wife
that he had been molested by the defendant.
9 M.F. testified the defendant began by grabbing his hand and forcing M.F. to touch the
defendant' s penis, which then progressed to pushing and rubbing his penis against M.F.' s anus
without penetration because " it wouldn' t fit" and putting his mouth on M.F.' s penis underwater.
M.F. testified that this conduct continued until M.F.' s early teenage years and escalated to the
defendant making M.F. perform oral sex on the defendant, the defendant masturbating in M.F.' s
presence and ejaculating on M.F., the defendant digitally penetrating M.F.' s anus, the defendant
forcefully penetrating M.F.' s anus with his penis when M.F. was about ten or eleven years old,
and the defendant causing M.F. to penetrate the defendant with his penis.
6
when he was about nine and ten years old and that between the ages of ten and
fifteen years old, he stayed overnight at the Strain residence numerous times,
would go hunting with the Strains, and would take trips with them.
R.P. testified that when he was around ten years old, while riding a four -
wheeler with the defendant, the defendant put his hand " closer and closer" to
RR' s inner thigh while moving his body closer to R.P. and putting his groin
against him. As R.P. kept trying to move forward, the defendant would scoot
closer to him. R.P. indicated that other inappropriate conduct occurred while
hunting and at the Strain residence. For example, the defendant wanted R.P. to
stand next to him to urinate. The defendant would also rub RR' s chest, touch
R.P.' s groin area, and try to " play with [ R.P.' s], pubic hair[.]" According to R.P.,
the defendant' s acts progressed to the defendant touching and trying to stroke
RR' s penis, sometimes causing R.P. to get an erection, and to the defendant
telling R.P. to masturbate in his presence, while watching internet pornography.
R.P. testified that the above described acts at the Strain residence would occur after
the other members of the household went to sleep.
A.D. (Aggravated Incest & Sexual Battery, Counts 7 & 8):
A.D. testified that he was thirty-three years old at the time of the trial and
that he is the defendant' s nephew, specifically adding that the defendant' s wife is
his mother' s sister. He testified that their families were close and that he spent
1°
time at the Strain residence. A.D. testified that he grew up around the defendant
and used to go hunting and would hang out with the defendant and his family. He
stated he attended events and slept overnight at the Strain residence where he was
allowed to consume alcohol while in high school.
io A.D. further testified that R.P. is his cousin (the son of one of A.D.' s mother' s sisters) and that
the defendant is RR' s uncle as well.
7
A.D. testified that when he was fifteen years old and in his sophomore year
in high school, the 2004- 2005 school year, he slept over at the defendant' s
residence because he had too much to drink that evening, and his uncle ( the
defendant) did not want him to drive. A.D. further testified that while asleep on
the couch, he woke up between midnight and 2: 00 a.m., when he felt the
defendant' s hand on his groin area. A.D. testified that he then rolled over in order
to get the defendant' s hand off of his groin, pretending to still be asleep. The
defendant was between forty-one and forty-two years old at the time.
ASSIGNMENTS OF ERROR NUMBERS 8 AND 9:
SUFFICIENCY OF THE EVIDENCE ON COUNTS 5, 7, & S
In assignments of error numbers eight and nine, the defendant challenges the
sufficiency of the evidence of aggravated incest for counts five and seven and
sexual battery for count eight. Regarding counts five and seven, the two counts of
aggravated incest, he argues that based on the relationship between himself and the
victims, R.P. and A.D., he cannot be said to have possessed the guilty knowledge
necessary to support those convictions. He notes that he is related to R.P. and A.D.
by way of marriage, because their mothers are his wife' s biological sisters. The
defendant argues that the Louisiana Supreme Court misinterpreted La. R.S.
14: 78. 1, the aggravated incest statute, in holding that it applies to people related by
marriage as well as by blood or adoption. He further argues that this court should
consider the issue anew in light of the fact that the legislature used the same
language, after repealing La. R.S. 14: 78. 1, when it incorporated the crime of
aggravated incest into the crime of aggravated crime against nature. Moreover, he
argues that A.D.' s testimony was based on leading questions and lacked credibility
due to his equivocation. Regarding count eight, sexual battery, the defendant
8
contends that the touching of the " groin" is not a prohibited act under La. R.S.
14: 43. 1, the statute governing sexual battery."
When issues are raised on appeal contesting the sufficiency of the evidence
and alleging one or more trial errors, the reviewing court should first determine the
sufficiency of the evidence. State v. Hearold, 603 So. 2d 731, 734 ( La. 1992);
State v. Duhon, 18- 0593, pp. 10- 11 ( La. App. 1 st Cir. 12128118), 270 So. 3d 597,
609, writ denied, 19- 4124 ( La. 5128119), 273 So. 3d 315. The reason for reviewing
sufficiency first is that the accused may be entitled to an acquittal under Hudson v.
Louisiana, 450 U.S. 40, 43, 101 S. Ct. 970, 972, 67 L.Ed.2d 30 ( 1981), if a rational
trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S.
307, 99 S. Ct. 2781, 61 L.Ed.2d 560 ( 1979), in the light most favorable to the
prosecution, could not reasonably conclude that all of the essential elements of the
offense have been proven beyond a reasonable doubt. Hearold, 603 So. 2d at 734;
Duhon, 18- 0593 at p. 11, 270 So. 3d at 609.
Thus, in reviewing claims challenging the sufficiency of the evidence, an
appellate court must determine whether any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt based on the
entirety of the evidence, both admissible and inadmissible, viewed in the Iight most
favorable to the prosecution. See Jackson, 443 U. S. at 319, 99 S. Ct. at 2789; State
v. Oliphant 13- 2973, p. 5 ( La. 2121114), 133 So. 3d 1255, 1258- 59 ( per curiam);
see also La. C. Cr.P. art. 821( B); State v. Mussall, 523 So. 2d 1305, 1308- 09 ( La.
1988); Statey. Livous, 18- 0016, p. 3 ( La. App, 1st Cir. 9124118), 259 So. 3d 1036,
1039- 40, writ denied, 18- 1788 ( La. 4115119), 267 So. 3d 1130. A conviction based
1 As discussed above, on appeal, the defendant challenges the sufficiency of evidence regarding
three of the offenses, aggravated incest on counts five and seven and sexual battery on count
eight. These offenses involve two victims, R.P. ( aggravated incest) and A.D. ( aggravated incest
and sexual battery). Thus, counts one, two, three, four and six are not addressed in this section.
In challenging the sufficiency of the evidence for counts five, seven, and eight, the defendant
challenges A.D.' s credibility ( not RR' s), his relationship with the victims of aggravated incest
R.P. and A.D.), and the act (touching A.D.' s groin) used to prove sexual battery in this case.
6
on insufficient evidence cannot stand, as it violates due process. See U.S. Const.
amend. XIV, La. Const. art. 1, § 2. When analyzing circumstantial evidence, La.
R.S. 15: 438 provides that the fact finder must be satisfied that the overall evidence
excludes every reasonable hypothesis of innocence. State v. Patorrno, 01- 2585, p. 5
La. App. 1st Cir. 6/ 21/ 02), 822 So. 2d 141, 144. When a case involves
circumstantial evidence and the jury reasonably rejects the hypothesis of innocence
presented by the defense, that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt. State v. Dyson, 16-
1571, p. 10 ( La. App. 1st Cir. 6/ 2/ 17), 222 So. 3d 220, 228, writ denied, 17- 1399
La. 6/ 15/ 19), 257 So. 3d 685.
Under former La. R.S. 14: 78. 1( A) ( prior to repeal by 2014 La. Acts, Nos.
177, § 2& 602, § 7), aggravated incest ( counts five and seven) was defined, in
pertinent part, as the engaging in any enumerated prohibited act with a person who
is under eighteen years of age and who is known to the offender to be related to the
offender as a " biological, step, or adoptive" nephew. ( Emphasis added).
Prohibited acts under former La. R.S. 14: 78. 1( B)( 1) and ( 2), in pertinent part,
included sexual battery ( later defined herein), indecent behavior with juveniles, or
lajny lewd fondling or touching of the person of either the child or the offender,
done or submitted to with the intent to arouse or to satisfy the sexual desires of
either the child, the offender, or both." The word " lewd" means lustful or indecent
and signifies that form of immorality that relates to sexual impurity carried on in a
wanton manner. It is identified with obscenity and measured by community norms
for morality. The word " lascivious" means tending to incite lust, indecent,
obscene, and tending to deprave the morals in respect to sexual relations. State v.
Brown, 20- 0150, p. 7 ( La. App. 1st Cir. 2/ 19/ 21), 2021 WL 650816, * 4, writ
denied, 21- 0045 8 ( La. 611 / 21), 316 So. 3 d 83 5. Pursuant to La. R. S. 14: 43. 1( A)( 1)
and ( 2) ( prior to amendment by 2015 La. Acts, No. 256, § 1), sexual battery ( count
10
eight)
was defined, in pertinent part, as the intentional touching of the anus or
genitals of the victim by the offender using any instrumentality or any part of the
body of the offender without the consent of the victim.
Aggravated incest and sexual battery are general intent crimes; thus, the only
intent necessary to sustain a conviction is established by the very doing of the
proscribed acts. See La. R.S. 14: 11; Brown, 20- 0150 at p. 9, 2021 VVL. 650816 at
5. General criminal intent is present whenever there is specific intent, and also
when the circumstances indicate that the offender, in the ordinary course of human
experience, must have adverted to the prescribed criminal consequences as
reasonably certain to result from his act or failure to act. La. R.S. 14. 10( 2).
In the absence of 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. State v. Dorsey, 10- 0216, pp.
43- 44 ( La. 9/ 7/ 11), 74 So. 3d 603, 634, cert. denied, 566 U.S. 930, 132 S. Ct. 1859,
182 L.Ed.2d 658 ( 2012). Further, when there is conflicting testimony about factual
matters, the resolution of which depends upon a determination of the credibility of
the witnesses, the matter is one of the weight of the evidence, not its sufficiency.
State v. Smith, 22- 0231, p. 7 ( La. App. 1st Cir. 1114122), 354 So. 3d 697, 702. An
appellate court errs by substituting its appreciation of the evidence and credibility
of witnesses for that of the fact finder and thereby overturning a verdict on the
basis of an exculpatory hypothesis of innocence presented to, and rationally
1 So.
rejected by, the jury. See State v. Calloway, 07- 2306, pp. 1- 2 ( La. 1/ 21/ 09),
3d 417, 418 ( per curiam). Accordingly, on appeal, this court will not assess the
credibility of witnesses or reweigh the evidence to overturn a fact finder' s
determination of guilt. State v. Lgyy, 13- 1025, p. 6 ( La. App. 1st Cir. 3/ 11/ 14),
142 So. 3d 1000, 1006, writ denied, 14- 0644 (La. 10131114), 152 So. 3d 150.
11
R.P.'s Testimony (Aggravated Incest, Count 5);
R.P. testified that his biological father spent a lot of time in jail and was no
longer in his life by the time he was ten or eleven years old. The defendant
stepped up to fill that void. R.P. stated that his uncle and aunt, the defendant and
Mrs. Strain, played a large role in raising him as a child and that he would stay at
their house almost every weekend and more so during hunting season and in the
summertime. R.P. experienced a lot of " firsts" in his life with the defendant' s
family, including his first trip to Disney World, his first time hunting, and his first
time riding four wheelers.
R.P. recalled the defendant making inappropriate comments while he was at
the Strain residence about the size of RR' s penis, his pubic hair growth, and
inquiries about masturbation. R.P. testified that the defendant' s actions on the
four -wheeler -- touching R.P. in and/ or around his inner thigh and putting his groin
against him -- felt inappropriate. R.P. would " freeze" and would not say anything
during the acts. He said he would try to block it out while it was occurring and
was afraid to tell anyone. R.P. stated that he had not had any sexual experiences
prior to the defendant' s conduct and was confused by the acts. He ultimately
started wearing two pairs of underwear while visiting the defendant' s residence in
an attempt to discourage the acts. R.P. also testified about an inappropriate
incident that occurred when the defendant came to visit him when R.P. was
nineteen years old and serving in the Coast Guard.
After R.P. got out of the Coast Guard in 2011, he returned home and sought
employment with the defendant. 12 In 2012, while the two of them were at a
restaurant, R.P. told his mother, J.M., about him being molested by the defendant
after she mentioned claims made by one of his aunts ( his mother' s adopted sister).
12 At some point, the defendant and Mrs. Strain also gave R.P. and his wife a deal on buying
some property next door to the defendant' s home.
12
R.P. asked his mother not to tell anyone. A.D. and R.P. subsequently disclosed to
each other that they had been abused but did not discuss details. R.P. told his wife
about the abuse after he learned that the FBI was investigating the defendant
regarding STWS.
R.P. further mentioned that when he was deciding whether to speak with the
district attorney' s office about being molested by the defendant, he had a highly
emotional phone call with his mother, during which he told his mother that "[ the
defendant] needs to pay for what he did." R.P. confirmed that he sought
counseling and would sometimes self m
- edicate by drinking a lot. On cross-
examination, after listening to a recording of a phone call that took place in
October or November 2017, R.P. admitted telling his mother during that phone call
that he felt like the FBI was blackmailing him into providing pedophile
information against the defendant based on his involvement with the work release
program.
A.D.' s Testimony (Aggravated Incest & Sexual Battery, Counts 7& 8):
In addition to testifying that the defendant touched his groin while he was
asleep, A.D. testified that the defendant would sometimes make comments about
the size of A.D.' s penis. A.D. joined the Marine Corps after graduating from high
school in 2007 and left St. Tammany Parish. When he returned, he lived with R.P.
In 2011 or 2012, A.D. received a phone call from his mother asking if his uncle
had made any sexual advances towards him. He told his mother the defendant had
not. A.D. testified that soon thereafter, he told R.P. that the defendant molested
him, and R.P. told A.D. what happened to him as well. A.D. did not discuss it with
anyone else until October of 2017, when he was approached by the FBI and
relayed the account given at trial. After the 2017 interview, A.D. met with the
defendant. The defendant gave him a hug and told him, " I' m sorry if I ever hurt
you in any way. I' m sorry." A.D. recalled that the defendant then asked if the
13
investigating agents had spoken to R.P. and, after A.D. confirmed to him that they
had, the defendant commented, "[ hjey, they just want to know if I f* him."
In 2018, A.D. approached Trooper Brown and told him that he did not want
to be a part of the case, saying that he did not remember the incident. A.D.
admitted that he also told the defendant' s attorney and one of his cousins that the
molestation did not happen. However, A.D. repeatedly confirmed that his
testimony that the defendant molested him was truthful and that he just wanted to
get out of testifying and participating in the case. A.D. indicated that he only
testified before the grand jury and at trial because he was subpoenaed to do so.
Other Pertinent Trial Witnesses:
Lisa Strain, the defendant' s wife, confirmed that she is the aunt of R.P. and
A.D., sons of her biological sisters, J.M. (R.P.' s mother who also testified at trial)
and K.L. ( A.D.' s mother). Mrs. Strain testified that when he was a child, R.P.
stayed at their house every weekend for a couple of months during hunting
seasons. She further testified that it was not out of the ordinary for him to sleep
over. Mrs. Strain also confirmed that the defendant took a one -day hunting trip to
Destin by himself when R.P. was stationed there.
Further, Mrs. Strain specifically confirmed that A.D. sometimes stayed at
their residence when he was in high school. She testified regarding " an occasion"
in 2004, when children in the household, including the Strains' son, drank alcohol.
Mrs. Strain denied seeing A.D. drinking, but stated that by the end of the evening,
she was aware that he stayed at their house because he drank too much. She
testified that she and the defendant heard her son vomiting while A.D. was asleep
on the sofa. Mrs. Strain further testified that A.D. was sleeping on his back and
that they told him to roll over out of concern that he might get sick.
Mrs. Strain confirmed that she spoke to her sister, J. M., about R.P. in person
and by phone calls and text messages between December 2, 2017 and December
14
18, 2017. Mrs. Strain asked J. M. for permission to confront the defendant about
RR' s claims, and J. M. agreed that she could do so. Mrs. Strain also reached out to
her other sister, K.L., about A.D. being a potential victim. Mrs. Strain confirmed
that she sent a text message to her sister stating that the defendant spoke to A.D.
She confirmed that she told J.M., "[ y] ou have had five years, 1 have had two weeks
to process this." When confronted, the defendant denied the allegations of each
alleged victim. Mrs. Strain testified she never witnessed any inappropriate
behavior between the defendant and A.D. or R.P., and she was shocked by the
allegations against her husband.
As noted, RR' s mother, J. M., also testified at the trial. J. M. testified that
when he was ten and eleven years old, R.P. would cry a lot at night, would want to
sleep with her, and would have random " crying fear spells." J.M. confirmed that
in 2012, while they were conversing at a restaurant about claims against the
defendant made by her adopted sister, R.P. first told her that the defendant had
done something to him. J. M. did not comply with RR' s request to keep it a secret,
but instead told her sister, K.L., and eventually her husband. R.P. ultimately
threatened to never speak to J. M. again if she continued to speak about it. Thus,
J.M. made the decision to " keep [ her] son" and keep quiet about the issue. 13
The final witness at trial, Dr. Scott Anthony Benton with the University of
Mississippi Medical Center, testified as an expert in the field of child abuse
pediatrics. Dr. Benton confirmed that most children who have been sexually
abused do not immediately disclose the abuse. He noted that the state of
Mississippi had received tens of thousands of cases per year that were delayed
disclosures. He noted that many victims have no concept of sex or homosexual
activity and are not prepared for what happened to them. He further confirmed that
13 J. M. confirmed that she started recording her phone calls in March of 2018, after she learned
about the FSI investigation of the defendant.
1s
external factors, such as the grooming process, bribes, or threats, and internal
factors, such as the fear of homosexuality and embarrassment, could cause a victim
to not disclose the abuse. Dr. Benton also testified that it was very common for
victims to recant after a disclosure, stating, "[ w] ell, children naively, and
sometimes even adults, think that if I take it back everything resets to zero ...
that' s the hope when they take it away or at least they' ll leave me out of the
process." Dr. Benton noted that many of the victims testifying at the defendant' s
trial consistently stated that they had no concept of sex or homosexual activity
when the abuse began, which Dr. Benton called " the concept of naivete" that is
typical of children. Based on his assessment of A.D.' s trial testimony, Dr. Benton
believed that at fifteen years old, A.D.' s experience was unexpected, as he was
naive" and " had no knowledge or preparation" for the abuse A.D. described at
trial. Dr. Benton further testified that the consequences of the acts often lead to
various psychiatric and psychological disorders, alcoholism, and substance abuse.
We reiterate that the defendant, in addition to challenging A.D.' s credibility,
challenges the sufficiency of the evidence of aggravated incest on counts five and
seven based on his relationship by marriage with the victims in those counts, R.P.
and A.D. Specifically, the defendant argues that pursuant to former La. R.S.
14: 78. 1, the crime of aggravated incest (now incorporated into the broader crime of
aggravated crime against nature) applied to relationships by blood, not by
marriage. As the defendant concedes, the Louisiana Supreme Court has addressed
relationships of affinity in the context of aggravated incest.
In State v. Ardoin, 09- 0578 ( La. 5111110), 35 So. 3d 1065 ( per curiam), the
defendant therein was convicted of the aggravated incest of his wife' s niece, and
thus, the defendant' s niece by marriage. The defendant argued on appeal that he
was not related to the victim, as a biological, step, or adoptive relative. The
Louisiana Supreme Court stated.
16
B] ecause aggravated incest encompasses not only biological and
adoptive relationships but also step relationships, the crime is one of
both consanguinity and affinity. See Black's Law Dictionary 1413 ( 6th
ed. 1990)( the word " step-" "[ w] hen used as [ a] prefix in conjunction
with a degree of kinship, is repugnant to [ a] blood relationship, and is
indicative of a relationship by affinity."); Black's Law Dictionary 67
9th ed. 2009)( affinity is "[ t]he relationship that one spouse has to the
blood relatives of the other spouse; relationship by marriage.").
Ardoin, 09- 0578 at p. 4, 35 So. 3d at 1067. As the Ardoin court further stated,
t]he doctrine of affinity grew out of the canonical maxim that the husband and
wife are one. It is the relationship which arises, in consequence of marriage,
between one spouse and the blood relatives of the other. Thus, the husband stands
in the same degree of affinity to his wife' s blood relatives as she stands to them by
consanguinity, and vice versa." Ardoin, 09- 0578 at p. 4, 35 So. 3d at 1068
citation omitted).
The language of former La. R.S. 14: 78. 1( A) specifically included " step"
relations, which clearly indicated that relatives by marriage were included in the
offense. When the legislature repealed La. R.S. 14: 78. 1 and amended La. R. S.
14: 89. 1 to include the crime of aggravated incest under the broader crime of
aggravated crime against nature, it again specifically included " step" relations in
the scope of the crime. See 2014 La. Acts, No. 177, §§ 1 and 2; 2014 La. Acts,
No. 599, § 1. Thus, we disagree with the defendant' s contention that this issue
should be revisited based on the incorporation of the offense into the crime against
nature offense. The evidence establishes that the defendant was aware of his
familial relationship with the victims and used it to his advantage in engaging in
prohibited touching of both R.P. and A.D. Further, the testimony presented at trial
showed that both R.P. and A.D. were under the age of eighteen years old when the
acts occurred.
Likewise, this court disagrees with the defendant' s challenge of the
sufficiency of the evidence of sexual battery on count eight based on the argument
17
that the touching of the " groin" is not a prohibited act under La. R.S. 14: 43. 1. As
the Louisiana Supreme Court noted in Statey. Layton, 14- 1910, p. 7 ( La. 3117/ 15),
168 So. 3d 35$, 361- 62 ( citing La. C.E. art. 412 Comments -1998), La. R.S.
14: 43. 1 is among the statutes that proscribe " sexually assaultive behavior."
Sexually assaultive behavior" is a general expression intentionally used by the
legislature in order to reference a broad range of behavior not limited by any list of
technical" statutory definitions. La on, 14- 1910 at p. 7, 168 So. 3d at 362.
Noting that the term " sexually assaultive behavior" is not defined by the statute at
issue in that case, La. C.E. art. 412. 2, the La on court looked to the federal rule
that inspired the legislature to draft Article 412.2. Specifically, the court noted that
under Rule 413 of the Federal Rules of Evidence, a sexual assault is defined as
any conduct prohibited by 18 U.S. C. chapter 109A." La on, 14- 1910 at p. 6 n. 5,
168 So. 3d at 361 n.5. In accordance with 18 U.S. C. chapter 109A, 14 " sexual
contact" is defined as " the intentional touching ... of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person." ( Emphasis
added.) See La on, 14- 1910 at p.6 n. 5, 168 So. 3d at 361 n.5 ( citing 18 U.S. C. §
2244 and 18 U.S. C. § 2246( 3)'). Applying the Layton analysis to the instant case,
we find that the touching of the groin falls squarely within the definition of sexual
battery in La. R.S. 14: 43. 1( A)( 1). Thus, we are not persuaded by the defendant' s
argument that evidence of touching A.D.' s groin was insufficient to convict him of
sexual battery against A.D.
14 Chapter 109A, titled " Sexual Abuse," consists of 18 U. S. C. §§ 2241- 2248.
Although not mentioned by the court in La on, we further observe that 18 U. S. C. § 2246( 3)
includes a reference to the intentional touching being " either directly or through the clothing" in
the definition provided in that statute.
18
Furthermore, the verdicts rendered in this case indicate that the jury rejected
the defendant' s theory that A.D. lacked credibility. A.D. admitted that he
previously recanted his claim, explained why, and maintained that he was being
truthful at trial. Additionally, the jury heard expert testimony regarding the
commonality of recantations and delayed disclosures. In reviewing the evidence
presented at trial, we cannot say that the jury' s determination was irrational under
the facts and circumstances presented. See State v. Ordodi, 06- 0207, p. 14 ( La.
11129106), 946 So. 2d 654, 662.
ASSIGNMENTS OF ERROR NUMBERS 1- 4: 16
ADMISSION OF OPINION TESTIMONY
In assignments of error numbers two through four, the defendant argues that
the trial court erred in admitting opinion testimony of three witnesses. First, in
assignment of error number two, he notes that he filed a pretrial motion to exclude
and/ or limit expert testimony by Thomas Mitchell regarding M.F.' s Post -Traumatic
Stress Disorder { PTSD} diagnosis and argues that Mitchell' s testimony was
presented as " subterfuge for speaking to the ultimate question of fact[.]" He
argues the State introduced the expert testimony regarding M.F.' s diagnosis to
prove that sexual abuse occurred. In assignment of error number three, he argues
that the trial court erred in admitting opinion testimony by a lay witness, Agent
Hoffine, to bolster M.F.' s credibility. In assignment of error number four, he
argues the trial court erred in admitting prejudicial text messages between Mrs.
Strain and her sister, J.M.
In assignment of error number one, the defendant challenges the trial court' s denial of his
motion for new trial in conjunction with assignments of error numbers two through seven that
raise various grounds for a new trial. In addressing the grounds for new trial raised on appeal,
where appropriate, this court has combined some assignments of error based on the nature of
each ground.
19
2):
Thomas Mitchell (Assignment ofError #2).-
Prior to trial, the State filed an initial and supplemental " Notice of Expert"
regarding its intent to present testimony by Thomas Mitchell, a licensed counselor
and the executive director of the Children' s Advocacy Center Hope House, as an
expert in the field of mental health disorder counseling and PTSD. The defendant
subsequently filed a " Motion to Exclude, or, in the Alternative, to Limit Expert
Testimony." At a pretrial hearing, with regard to Mitchell, defense counsel argued
that evidence of the PTSD diagnosis was inadmissible under Statey. Chauvin, 02-
1188, p. 9 ( La. 5120/ 03), 846 So. 2d 697, 703, to show sexual abuse by the
defendant occurred. The State argued evidence of the PTSD diagnosis is
admissible under Chauvin if the defendant attacks a witness' s credibility to show
why a victim may behave a certain way. The trial court took note of the fact that
M.F.' s credibility would be attacked at trial based on his criminal record and that
the State would use the PTSD evidence to rehabilitate M.F. The parties initially
agreed that the State could introduce the diagnosis without implying that the
condition was caused by abuse by the defendant. After additional argument, the
trial court reiterated that at trial Mitchell would not be allowed to link the PTSD to
sexual abuse or to specify that the allegation of abuse pertained to the defendant.
During the trial, prior to Mitchell' s testimony, the State asked the court to
revisit its ruling. The State argued that defense counsel suggested multiple times
that M.F.' s statements were inconsistent and that he was motivated by a lawsuit.
The State further argued that during opening statements, defense counsel
erroneously claimed that a State expert was not advised of any penetration.
Defense counsel countered that Mitchell was not a fact witness and argued that his
testimony would usurp the jury' s function. In reversing its pretrial ruling limiting
Mitchell' s testimony, the trial court, in part, noted that when the initial ruling was
made, it was unaware that the defendant would elicit testimony to challenge the
20
motivation of the witness as a primary defense. The trial court set aside its prior
ruling based on the fact that Mitchell actually provided treatment to M.F.
At trial, Mitchell was qualified as an expert in diagnosing PTSD for the
purpose of mental health disorder counseling. During his trial testimony, Mitchell
defined PTSD as a human response to a life-threatening or extremely traumatic
stressor. He further testified that PTSD causes avoidance, anxiety, and
hypervigilance. He stated that M.F. became his client on July 9, 2419, after a
referral regarding an individual experiencing severe distress and challenges.
Mitchell further testified that based on a " clinically structured interview" and self-
reported assessment by M.F., it was clear that he was dealing with a case of PTSD.
He noted that M.F. identified that he had been the victim of sexual abuse by
another male, whom he identified as the defendant, and described in generalities
the abuse he experienced. Despite some avoidance, M.F. subsequently disclosed
that the abuse consisted of oral, anal digital penetration, and anal penile
penetration. Mitchell noted that while M.F. also disclosed physical and verbal
abuse by his father, he had a higher amount of sensitization (severe panic, distress,
outbursts of anger, irritability, and sobbing) while talking about the sexual abuse.
Mitchell described M.F. as one of the worst cases of PTSD that he ever treated
based on M.F.' s intense state of pain and suffering, and because he met almost
every PTSD diagnostic criterion. He noted that M.F. suffered from nightmares
among other symptoms. Mitchell observed M.F. testifying in court and noted that
he saw him using one of the breathing exercises that he taught him. PTSD was
MitchelI' s provisional and final diagnosis.
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if. (1) the
expert' s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue; ( 2) the testimony is
21
based on sufficient facts or data; ( 3) the testimony is the product of reliable
principles and methods; and ( 4) the expert has reliably applied the principles and
methods to the facts of the case. La. C. E. art. 702( A). Testimony in the form of
an opinion or inference otherwise admissible is not to be excluded solely because it
embraces an ultimate issue to be decided by the trier of fact. La. G. E. art. 704.
However, in a criminal case, an expert witness shall not express an opinion as to
the guilt or innocence of the accused. La. C. E. art. 704. The credibility of a
witness may not be supported unless it has been attacked. La. C. E. art, 607( B).
In Chauvin, the defendant was convicted of indecent behavior with
juveniles. Chauvin, 02- 1188 at p. 1, 846 So. 2d at 698. At trial, the State
presented the expert testimony of a licensed clinical social worker who testified
that one of the victims was diagnosed with PTSD. Id. at p. 3, 846 So. 2d at 699.
The social worker then testified that the symptoms of PTSD were consistent with a
child who had been sexually abused. Id. at p. 4, 846 So. 2d at 700. The Chauvin
court found that PTSD is sufficiently recognized in the medical, and particularly
the psychiatric, community to be considered as the proper subject of expert
testimony. Id. at p. 11, 846 So. 2d at 704. However, the court further found that
there was no evidence in the record that the trial court performed its " gatekeeping"
function of determining that the social worker' s testimony was relevant and
reliable " as substantive proof that sexual abuse occurred." Id. at p. 12, 846 So. 2d
at 705. The court stated, "[ w] e are concerned about the use of PTSD evidence as
substantive evidence that sexual abuse has occurred, when such evidence is not
limited to explaining `` superficially bizarre' reactions common to victims of child
sexual abuse but which are uncommon to the experience of jurors." Id. at pp. 14-
15, 846 So. 2d at 707.
The Chauvin court noted that there was no evidence in that case that the
victims recanted their allegations. Further, although the defense showed there had
22
been a slight delay between the date of the incidents and the reporting to the police,
the State did not limit the testimony in an attempt to explain delayed reporting.
Thus, under these circumstances, the court found that the State introduced the
expert testimony regarding the victim' s diagnosis of PTSD for the purpose of
substantively proving that sexual abuse occurred. The court held that the evidence
of the victim' s PTSD diagnosis should be admissible only for the limited purpose
of explaining, in general terms, certain reactions of a child to abuse that would be
used to attack the victim/ witness' s credibility. Id. at pp. 16- 18, 846 So. 2d at 708-
09.
In State v. Griffin, 15- 1765, p. 10 ( La. App. Ist Cir. 4127116), 2016 WL
2840309, * 6, this court found the testimony of a nurse practitioner proper where
there was a " critical difference" between her testimony and that at issue in
Chauvin. In Griffin, this court noted the nurse practitioner did not " rely upon a
collateral diagnosis, such as ... PTSD, to conclude a finding of sexual abuse." Id.Further, the nurse practitioner did not " definitively state" the victim had been
sexually abused, but instead agreed with the State " that her observations of the
victim' s demeanor, as well as the physical findings, were `` consistent with a child
who has been abused,' even with a normal physical examination." Id. This court
found the testimony " had a twofold effect outside of simply serving to bolster the
victim' s credibility," Id. at p. 11, 2016 WL 2840309 at * 6. First, the testimony
served to demonstrate that victims of childhood sexual trauma " often do not
present signs of physical trauma from the abuse." Id. Second, the general
description of delayed reporting assisted the jury in understanding the
superficially bizarre' circumstances" in the case. Id.Similarly, in the instant case, Mitchell did not use the PTSD diagnosis to
conclude that M.F. suffered from sexual abuse. Unlike the victims in Chauvin, in
this case M.F. was cross- examined about previous denials as to the occurrence of
23
specific acts and his significant delay in reporting certain claims. Thus, Mitchell' s
testimony was introduced to assist the trier of fact in understanding the victim' s
delayed disclosure of the abuse. The State did not offer the testimony to prove
sexual abuse, but instead to explain the behavior of victims of childhood trauma
and to assist the jury in understanding such reactions as delayed or inconsistent
reporting and avoidance. We find no error in the trial court' s admission of the
testimony by Mitchell.
However, we note that Mitchell named the defendant as the perpetrator of
the sexual abuse claims, described M.F, as having one of the worst cases of PTSD
he has ever treated, and stated that the PTSD symptoms were heightened when
M.F. discussed the claims against the defendant as opposed to other traumatic
experiences. Nonetheless, even if we were to conclude that the testimony crossed
the line discussed in Chauvin and Griffin, we find any error in the admissibility of
the testimony harmless in this case. The proper analysis for determining harmless
error " is not whether, in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict actually rendered
in this trial was surely unattributable to the error." Sullivan v. Louisiana, 508 U.S.
275, 279, 113 S. Ct. 2078, 2081, 124 L.Ed.2d 182 ( 1993); See also State v.
Johnson, 94- 1379, p. 14 ( La. 11127195), 664 So. 2d 94, 100- 01 (" Trial error occurs
during the presentation of the case to the trier of fact and may be quantitatively
assessed in the context of the other evidence to determine whether its admission at
trial is harmless beyond a reasonable doubt."). M.F. testified in great detail and
did so consistently regarding the abuse he suffered by the defendant. He readily
admitted that, as an adult, he used the abuse to induce the defendant to do things
for him. Given the more substantial evidence properly admitted against defendant,
we find any error in the admission of the testimony of Mitchell harmless beyond a
24
reasonable doubt. See State v. Mullen, 18- 0643, p. 21 ( La. App. 1 st Cir. 12121118),
269 So. 3d 772, 786- 87, writ denied, 20- 00408 ( La. 1016120), 302 So. 3d 529.
Agent Hoffine (Assignment ofError #3):
The defendant complains that the following testimony demonstrates Agent
Hoffine' s articulation of improper and prejudicial opinions of M.F.' s differing
accounts:
Q. Just to be clear, did [ M.F.] always say that [ the defendant] placed
his penis in his anus?
A. No. The first time in [ prison] when we interviewed him he stated
that he was digitally and penile [ sic] penetration is what he stated. But
he wouldn' t go into any details regarding that. And unfortunately in
order for us to meet statutory requirements we have to ask for those
details to find out whether or not there was true penetration, however
slight.
Q. You are aware that prior to that interview he had been interviewed
by Janetta Michaels not talking about penetration, correct?
A. Correct. And I reviewed that video and what I observed in the
video itself, and this is not a slight to Janetta' s professionalism in any
way, shape, or form, due to the fact that he was in prison and she is a
civilian and not a sworn law enforcement officer she had to have
someone present with her at the jail, which was Agent Wayne Horner,
who again is a male. And he' s not a meek male. And also present at
the jail were three other additional males observing.
Q. Agents, correct?
A. Agents.
Q. So we are in a jail with other males present. Now, males aren' t
always a problem, correct?
A. No. But remember that [ M.F.] --
DEFENSE COUNSEL]: Objection.
After the trial court overruled the objection, Agent Hoffne further explained:
A. Well, certain victims, and [ M.F.] being one of them, he had an
association of penile penetration associated with homosexuality in his
mind. So with four men present even with a forensic interviewer he is
still going to have to overcome that in order to say it out loud.
25
The defendant further argues Agent Hoffine " opined extensively on various
points" of corroboration of both M.F.' s and RR' s accounts. The defendant
provides a record cite that includes the following colloquy regarding R.P.:
Q. How did you establish a relationship with [R.P.]?
A. [ R.P.] was difficult to establish a relationship with. And in part,
see, the first interaction he had with the FBI in the gas station, that' s a
very unfortunate location for an interview to discuss any sexual abuse.
R.P.] specifically struggled at length with his wavering of
cooperation, do I want to cooperate or not. And that' s distinctly tied to
it' s essentially a destruction of his family. The amount of pressure
that [ R.P.] was under strictly because of where he is, I mean, his aunt
is —
Q. I don' t want you to go into his mental state and his own struggles,
but just what the two of you discussed. You can' t opine about his
internal thoughts.
A. Understood.
Q. So was he expressing to you at times wanting to cooperate and not
wanting to cooperate?
A. Yes.
The defendant further provides a record cite that contains the following
testimony regarding RR' s disclosure to his mother at a restaurant:
Q. And importantly, one of the important things, other than -- I don' t
want to get into all of the confronting [ the defendant] and all of that,
that' s already happened -- but importantly towards the end of the text
messages as playing out in realtime between two sisters fighting about
what' s kind of happening, did you obtain additional independent
corroboration, if believed, from the phone of [J. M.] that talks about
how long ago that she' s known.?
A. Yes. She says she has known for five years. It' s 2017. It
corroborated the date that they told us ... about that they had met at
the Chimes in 2012.
The testimony of a lay witness in the form of opinions or inferences, who is
not testifying as an expert, is limited to those opinions or inferences that are
rationally based on the perception of the witness and are helpful to a clear
understanding of the testimony or the determination of a fact in issue. La. C. E.
art. 701. A reviewing court must ask two questions to determine whether the trial
26
court properly allowed lay opinion testimony: 1) was the testimony speculative
opinion evidence or simply a recitation of or inferences from facts based upon the
witness' s observations; and 2) if erroneously admitted, was the testimony so
prejudicial to the defense as to constitute reversible error. State v. Morgan, 12-
2060, p. 14 ( La. App. 1st Cir. 6/ 7/ 13), 119 So. 3d 817, 527.
The defendant argues that Agent Hoffine' s testimony consisted of improper
lay opinion testimony that served to bolster the credibility of M.F. and R.P. At the
outset, we note that there was no contemporaneous objection to the testimony
regarding RR' s wavering on his level of cooperation or the corroboration for the
date that he disclosed the abuse to his mother. An irregularity cannot be availed of
after the verdict unless it was objected to at the time of the occurrence. La. C. Cr.P.
art. 841( A). The contemporaneous objection rule has two purposes: to put the trial
judge on notice of the alleged irregularity so that he may cure the problem, and to
prevent the defendant from gambling on a favorable verdict and then resorting to
appeal on errors that might easily have been corrected by an objection. State v.
Lanclos, 07-0082, 07- 0716, p. 6 ( La. 418108), 980 So. 2d 643, 648. Accordingly,
the defendant did not properly preserve for appellate review these portions of
Agent Hoffine' s testimony. Moreover, regarding M.F., we note that Agent Hoffine
did not give a direct opinion as to whether or not penetration occurred. She instead
made natural inferences based on the circumstances of the interview. It is well
settled that a lay witness is generally permitted to draw reasonable inferences from
his or her personal observations. If the testimony constitutes a natural inference
from what was observed, no prohibition against it as the opinion of a non -expert
exists as long as the lay witness states the observed facts as well. State v. LeBlanc,
05- 0885, p. 7 ( La. App. 1st Cir. 2/ 10/ 06), 928 So. 2d 599, 603. Thus, we find no
error in the admission of Agent Hoffine' s testimony regarding M.F.
27
Text Messages (Assignment ofError #4):
Finally, the defendant argues that text messages between Mrs. Strain and her
sister, J.M., contained impermissible opinionated statements. While Mrs. Strain
was on direct examination, the trial court sustained defense counsel' s objections to
the State' s attempt to elicit testimony from Mrs. Strain regarding her knowledge of
the potential victims, from whom she learned of the potential victims, and whether
or not she and her sister communicated about confronting the defendant. During a
bench conference, the State indicated that it was going to inquire about text
messages between Mrs. Strain, her sister, and the defendant, specifically
conversations in which Mrs. Strain became aware of R.P.' s allegations. Defense
counsel argued the text messages were prejudicial where Mrs. Strain' s opinion or
skepticism as to the defendant' s guilt was irrelevant and the messages contained
hearsay. Based on the timing of the messages and the State informing the court
that the messages did not contain an opinion as to the defendant' s guilt or
innocence, the trial court reversed its prior ruling sustaining the defense counsel' s
objection and found the text messages admissible.
Mrs. Strain testified that when her sister, J. M., told her that R.P. had
reported sexual abuse to the FBI, J. M. asked her not to tell the defendant. Mrs.
Strain stated that she repeatedly asked J.M. for permission to talk to her husband
about the claims. As the two sisters had heated discussions regarding the claims,
the following text messages were exchanged:
Mrs. Strain: My life is destroyed no matter where I stand
Quit getting pissy with me
J. M.: Yep.. others Too!!!!
Mrs. Strain: Not yours
J.M.: Ohhh ok..f*** Leave
off ... me alone with this now too ... U got
the info u need ... Ur right no more family...
28
Mrs. Strain: You were never going to support anyone but yourself.
Never understood what u wanted from me.
J.M.: Ohhh yea right... I kept my mouth shut for 5 years ... Only
opened it because of it becoming an issue - should have let u get
surprised by this when they showed up at ur door..ur a selfish bitch I
want nothing?!! Done! Ur pissed at the wrong person sister
Mrs. Strain: Exactly u have had 5 yrs I' ve had two weeks I am sorry
J. M.) I am not angry just frustrated.
At trial, Mrs. Strain confirmed that she was not stating an opinion as to
whether or not she believed the claims against her husband but was instead only
stating that she had not had time to process the claims. We disagree with the
defendant' s argument that the text messages contained inadmissible opinions. To
the contrary, based on our review, we find that the text messages did not consist of
speculative opinions. Thus, we agree with the trial court' s assessment that no
reasonable juror could have interpreted the text messages as an opinion as to
whether or not the defendant was guilty or innocent.
Considering the above analyses, we find no merit in assignments of error
numbers two, three, and four. We further find no merit in assignment of error
number one, in so far as the motion for new trial was based on the admission of
above discussed evidence.
ASSIGNMENTS OF ERROR NUMBERS I & 5:
ADMISSION OF HEARSAY
In assignment of error number five, the defendant argues the trial court
improperly admitted hearsay testimony regarding a phone conversation between
J. M. and her son R.P., in which R.P. expressed anger over what the defendant " did
to [ him]." The defendant notes that the trial court found that the defense had put
RR' s motive at issue in ruling that the State would be allowed to question J.M.
regarding the content of the phone conversation. The defendant concludes that the
trial court erred in admitting highly prejudicial hearsay testimony by J.M.
regarding statements by R.P. to prove the truth of the matters he asserted.
29
Hearsay evidence is evidence of an out- of-court, unsworn, oral or written
statement made by a person other than the testifying witness that is offered for the
truth of its content. La. C. E. art. 801( C); State v. Moore, 18- 0343, p. 6 ( La. App.
1 st Cir. 9121118), 2018 WL 4520543, * 4, writ denied, 18- 1813 ( La. 4115/ 19), 267
So. 3d 1130. Hearsay is inadmissible unless it falls within an exception. La. C. E.
art. 802.
Louisiana Code of Evidence article 803 provides, in pertinent part, that the
following is not excluded from evidence by the hearsay rule:
3) Then existing mental, emotional, or physical condition.
A statement of the declarant' s then existing state of mind, emotion,
sensation, or physical condition ( such as intent, plan, motive, design,
mental feeling, pain, and bodily health), offered to prove the
declarant' s then existing condition or his future action. [ Emphasis
added.]
Evidence to prove the declarant' s state of mind can be used to prove the
declarant' s subsequent conduct. See La. C. E. art. 803( 3). The length of time
between the making of the statement and the conduct in question does not
determine the admissibility, but rather goes to the weight of the evidence. State v.
Lee, 559 So. 2d 1310, 1319 ( La. 1990), cert.. denied, 499 U.S. 954, 111 S. Ct. 1431,
113 L.Ed.2d 482 ( 1991).
A state of mind declaration is relevant if it tends to make the existence of
any consequential fact more or less probable than it would otherwise be without
the evidence. See La. C. E. art. 401. Nevertheless, relevant declarations may be
legally inadmissible if their probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misapplication by the jury.
See La. C. E. art. 403; State v. Brown, 562 So. 2d 868, 878 ( La. 1990).
Extrajudicial statements of a declarant' s subjective fear or revulsion have
considerable probative value in circumstantially explaining the declarant' s
subsequent conduct. Even when the declarant' s state of mind is not the ultimate
a
proposition to be proven, the declaration may be used as circumstantial evidence of
the declarant' s behavior by providing an intermediate basis for further inferences
about declarant' s conduct. Where extrajudicial declarations are offered to show
the declarant' s state of mind or intent to undertake a course of action, when the
communication indicates the act is dependent upon an event or upon acts of
another, the contingency operates only to reduce the probative force ( weight) of the
evidence, not its admissibility. State v. Ulfers, 07- 0832, p. 38 ( La. App. 1st Cir,
2/ 8/ 08), 2008 WL 441488, * 20, writ denied, 08- 1100 ( La. 1/ 16/ 09), 998 So. 2d 90.
Herein, prior to testimony by Mrs. Strain and R.P., the State presented
argument under La. C. E. art. 803( 3) regarding the admissibility of a recorded
phone conversation between R.P. and J.M. The State argued the statements
consisted of R.P.' s spontaneous expression of his then existing mental, emotional,
and physical condition at the time and were admissible to rebut the defense' s claim
that R.P. was blackmailed into making the claims against the defendant. The State
noted R.P. would be available for cross- examination. Defense counsel argued the
State' s argument was flawed because the phone call took place on March 27, 2018,
after R.P. had already met numerous times with the investigating agents. Defense
counsel further argued that the evidence was being used to prove a fact in dispute
that R.P. was abused by the defendant) and therefore consists of inadmissible
hearsay. The trial court ruled the recording inadmissible due to the lapse in time
between the phone call and RR' s interview with law enforcement in 2017.
the trial court
However, during the State' s direct examination of J.M.,
overruled defense counsel' s objection to the State eliciting testimony regarding
R.P.' s statements during the phone call at issue. As specifically noted by the
defendant in his appeal brief, the following exchange between the State and J. M.
then took place on direct examination:
Q. And what was that, what did [ R.P.] call to tell you?
31
A. That he was " f****** mad" was his words. " I am f******
mad. I am f* * * *mad
* *at all of them. No, Mom, I' m f* * * mad
* * *
at him. He should not have done what he did to me." And he was
screaming and crying at the top of his lungs saying, " He should not
have done this, he' s the one who f****** did this."
Thus, the admission of testimony regarding the recording, not the recording itself
which was ruled inadmissible, is at issue on appeal.
Initially, we recognize that the length of time between when the statements
were made by R.P. in the phone call and the conduct in question ( the alleged
abuse) goes to the weight of the evidence, not its admissibility. See Lee, 559 So.
2d at 1319. We further find that the defense put RR' s state of mind at issue.
Specifically, as noted in the context of the sufficiency of the evidence assignment
of error, defense counsel cross- examined R.P. regarding a prior phone call wherein
RP. mentioned feeling " blackmailed." After listening to the recording of that prior
call, R.P. admitted to telling his mother during that phone call that he felt the FBI
was blackmailing him into providing pedophile information against the defendant
based on his involvement with the work release program. Hence, the testimony
regarding a separate phone call with J. M. that occurred a few months later, wherein
R.P. expressed anger towards the defendant and his belief that the defendant
should pay" was introduced to counter the defense narrative that R.P. was being
17
pressured by the FBI to testify. Moreover, we find that the relevancy and
probative value of the statements at issue far outweighed the danger of the jury
misusing the evidence. The trial court properly ruled J.M.' s testimony regarding
statements by R.P. admissible to show RR' s state of mind. Thus, assignment of
error number five and assignment of error number one, to the extent that the
defendant argues a new trial was warranted on the basis of the admission of
17 We note that J. M.' s testimony is cumulative of RR' s testimony. R.P. testified prior to J. M.
about the emotional phone call with his mother wherein he stated, in part, "[ the defendant] needs
to pay."
32
hearsay evidence, are without merit.
ASSIGNMENTS OF ERROR NUMBERS 1 & 6:
DENIAL OF JURY' S RE UEST TO VIEW EVIDENCE
In assignment of error number six, the defendant argues the trial court erred
in denying the jury' s request during deliberations to view text messages between
the defendant and R.P., S. K., and V.K., which were admitted into evidence as
defense exhibits. He argues the text messages were not testimonial and were not
offered to prove the truth of their contents but, rather, to show the frequency in
communication, their friendly tone, and the nature of the relationships at issue. He
further argues they are of great relevance and notes they concerned present events,
similar to Yes gestae statements?
Louisiana Code of Criminal Procedure article 793( A), in pertinent part,
provides:
A] juror must rely upon his memory in reaching a verdict. He shall
not be permitted to refer to notes or to have access to any written
evidence. Testimony shall not be repeated to the jury. Upon the
request of a juror and in the discretion of the court, the jury may take
with it or have sent to it any object or document received in evidence
when a physical examination thereof is required to enable the jury to
arrive at a verdict.
The general rule as expressed by Article 793 is that the jury is not to inspect
written evidence except for the sole purpose of a physical examination of the
document itself to determine an issue that does not require the examination of the
verbal contents of the document. Thus, jurors may inspect physical evidence in
order to arrive at a verdict, but they cannot inspect written evidence to assess its
verbal contents. State v. Perkins, 423 So. 2d 1103, 1109- 10 ( La. 1982); State v.
Washington, 11- 0327, p. 5 ( La. App. 1st Cir. 514112), 2012 WL 1580939, * 3, writ
denied, 12- 1730 ( La. 411113), 110 So. 3d 138.
Res gestae are events speaking for themselves under the immediate pressure of the occurrence,
through the instructive, impulsive and spontaneous words and acts of the participant See State
v. Brooks, 01- 0785, p. 3 ( La. 1114103), 838 So. 2d 725, 727.
33
Herein, the jury sent a note during deliberations stating, " We request all
evidence." The State argued that written evidence shall not be permitted under the
Louisiana Code of Evidence and objected to the submission of any written
evidence.
The defendant argued that the text messages were nonverbal, noting
they are full of photos. The trial court sustained the State' s objection, finding that
the pictures of text messages were a form of written communication.
Subsequently, the jury made another request asking, " Can we see all exhibits
showing text messages?" The trial court denied the request, explaining that written
evidence could not be sent back into the jury room for review.
We agree with the trial court' s assessment and interpretation of the law. The
jury' s sole purpose for viewing these exhibits would be for the impermissible
examination of their verbal contents. See State v. Caminita, 16- 0121, p. 10 ( La.
App. 1st Cir. 9/ 16/ 16), 203 So. 3d 1 t00, 1108, writ denied, 16- 2045 ( La. 916/ 17),
224 So. 3d 988. We find the trial court did not err in refusing to allow the jury to
view these exhibits during deliberations. Thus, we find no merit in assignment of
error number six or assignment of error number one to the extent that it challenges
the trial court rulings on the jury' s deliberation requests.
ASSIGNMENTS OF ERROR NUMBERS I & 7:
GRANTING POTENTIAL WITNESSES' MOTION TO QUASH
SUBPOENAS
In assignment of error number seven, the defendant argues the trial court
erred in quashing the subpoenas for three defense witnesses, Terry King, Richard
Franzo, and Gary Leonard. The defendant concludes that given the " gross
inconsistencies" in M.F.' s allegations, testimony by one or more of these
individuals would reveal additional inconsistencies for impeachment purposes.
A defendant' s right to compulsory process for obtaining witnesses on his
behalf is embodied in both the federal and state constitutions and in the statutory
law of this state. See U.S. Const. amend. VI; La. Const. art. I, § 16. The court
34
shall issue subpoenas for the compulsory attendance of witnesses at hearings or
trials when requested to do so by the State or the defendant. La. C. Cr.P. art. 731.
The right of a defendant to compulsory process includes the right to demand
subpoenas for witnesses and the right to have them served. State v. Latin, 412 So.
2d 1357, 1361 ( La. 1982). In order for the defendant to show prejudicial error, he
must demonstrate the testimony the witness might give which would be favorable
to the defense and which would indicate the possibility of a different result if the
witness were to testify. State v. Jarrell, 07- 0412, p. 24 ( La. App. 1st Cir. 9/ 19/ 07),
2007 AVL 2726718, * 13, writ denied, 07- 2065 ( La. 3/ 7/ 08), 977 So. 2d 897.
Herein, the potential witnesses moved to quash the subpoenas based on
relevancy and admissibility. Counsel on behalf of the witnesses noted that the
defendant maintained that certain statements were made by one of the victims
M.F.) that were inconsistent with other statements made by that victim. The
witnesses' counsel further stated that neither the defendant nor the potential
witnesses knew what statements were made by the victim that were inconsistent
with other statements made by the victim. The witnesses' counsel further
explained that his clients contend that the statements that they were aware of were
consistent with statements made by M.F. as portrayed in the media. In response,
defense counsel contended that the witnesses made social media posts and gave
statements to the media indicating that M.F. told them " the same thing that he has
told the media." Further contending that M.F.' s media statements were
inconsistent with the information he provided to the investigating agents, defense
counsel argued the witnesses' testimony would be significant to the defense' s case.
The trial court noted that based on defense counsel' s argument, the potential
witnesses at issue would be no different than any family member or other person to
whom M.F. made statements that were consistent with his statements to the media.
Thus, the trial court granted the motion to quash the subpoenas.
35
We find there has been an inadequate showing as to what testimony the
potential witnesses might have given that would have been favorable to the
defendant and which would indicate the possibility of a different result if the
witnesses had testified. Accordingly, we find no prejudicial error related to the
absence of the potential witnesses at issue. Thus, assignment of error number
seven and the compulsory process basis for assignment of error number one lack
merit.
ASSIGNMENT OF ERROR NUMBER 10:
DENIAL OF MOTION TO QUASH COUNTS 1 & 4 OF INDICTMENT
Finally, in assignment of error number ten, the defendant argues the charges
on counts one through four violate the constitutional prohibition against e x- post
facto laws and that the trial court erred in denying his motion to quash on this
basis. The defendant notes that the aggravated rapes charged in counts one
through four took place in 1978 through 1981, when the defendant was between
the ages of fifteen and eighteen years old.' y He contends that as a result of the
application of La. Ch.C. art. 857 and La. C. Cr.P. art. 875, both enacted after the
instant offenses occurred to provide for prosecution as an adult for offenses
committed as a child, the State no longer had the option to try him as a juvenile
and was, instead, statutorily required to try him as an adult, subjecting him to a
sentencing exposure of mandatory life imprisonment.
A defendant is to be triad and sentenced under the statute that was in effect
at the time he committed the crime. State _v. Bethley, 452 So. 2d 367, 370 ( La.
App. 1st Cir. 1984). Article I, § 10 of the United States Constitution and La.
Const. art. I, § 23 prohibit ex post facto application of the criminal law by the
State. State v. Everett, 00- 2998, p. 13 ( La. 5/ 14102), 816 So. 2d 1272, 1280. The
19 Counts one and four have the earliest possible slate of occurrence in accordance with the
indictment. While the defendant contests counts one through four on appeal, below, he moved to
quash counts one and four. Nevertheless, the range of dates on counts two and three are
encompassed within the ranges provided on counts one and four.
36
United States Supreme Court has identified four categories of law that violate the
ex post facto prohibition: 1) any law that makes an action criminal that was
innocent when done before the passing of the law; 2) any law that aggravates a
crime or makes it greater than it was when committed; 3) any law that changes the
punishment and inflicts greater punishment than the law provided when the crime
was committed; and 4) any law that alters the legal rules of evidence and rewires
less or different testimony than was required at the time the offense was
committed, in order to obtain a conviction. Rogers v. Tennessee, 532 U.S. 451,
456, 121 S. Ct. 1693, 1697, 149 L.Ed.2d 697 ( 2001). In State ex rel. Olivieri v.
State, 00- 0172, 00- 1767, p. 15 ( La. 2/ 21/ 01), 779 So. 2d 735, 744, cert. denied, 533
U.S. 936, 121 S. Ct. 2566, 150 L. Ed.2d 730 ( 2001), the Louisiana Supreme Court
held that in determining whether there has been an ex post facto violation, the
analysis should focus on whether the new law redefines criminal conduct or
increases the penalty by which the conduct is punished, and not whether the
defendant has simply been disadvantaged.
Prior to trial, the defendant filed a motion to quash counts one and four of
the indictment, which was denied by the trial court, citing State ex rel. Coco, 363
So. 2d 207, 210- 11 ( La. 1978) ( holding that jurisdiction vests in the district court
for first-degree murder and aggravated rape when committed by a juvenile, fifteen
years or older, and that jurisdiction attaches where indictment is found or bill of
information is filed). At the time the aggravated rape offenses at issue were
committed,20 former La. R. S. 13: 1570( A)(5) ( repealed by Acts 1991, No. 235, §
17, effective 1992) provided for the initiation of prosecution in the district court of
juveniles, fifteen years of age or older, charged with having committed a " capital
crime, or a crime defined by any law defining attempted aggravated rape," and La.
0 The offenses at issue occurred prior to the enactment of the Louisiana Children' s Code in
1991.
37
R.S. 13: 1571. 1, et seq. ( the Juvenile Transfer Act -Act 568 of 1974 as amended by
Act 337 of 1975, also repealed in 1991, effective 1992) provided that juvenile
defendants, age fifteen years or older, could be tried as adults in the district court
provided transfer proceedings were conducted in the juvenile court in accordance
with the provisions of La. R.S. 13: 1571. 1. State v. Bowden, 406 So. 2d 1316,
1320 ( La. 1981). Even based on the earliest date in the indictment, the defendant
was over fifteen years old when the offenses were committed and thus was subject
to trial as an adult and a penalty of life imprisonment without parole.
As the defendant notes, 2008 La. Acts, No. 670, § 1, amended La. Ch. C. art.
857, by adding subsection ( C)( 2), as follows:
An adult who is charged with an offense committed at the time he was
a child for which the time limitation for the institution of prosecution
pursuant to Code of Criminal Procedure Art. 571 has not lapsed and
for which he was not subject to prosecution as an adult due to his age
at the time the offense was committed may be prosecuted as an adult
in the appropriate court exercising criminal jurisdiction. If convicted,
he shall be committed to the custody of the Department of Public
Safety and Corrections to be confined in secure placement for a period
of time as determined by the court not to exceed the maximum
amount of confinement he could have been ordered to serve had he
been adjudicated for the offense as a child at the time the offense was
committed.
Likewise, 2009 La. Acts, No. 670, § 2 amended La. C. Cr.P. art. 876 by
adding subsection ( B):
An adult who is charged with an offense committed at the time he was
a child for which the time limitation for the institution of prosecution
pursuant to [ Code of Criminal Procedure] Article 571 has not lapsed
and for which he was not subject to prosecution as an adult due to his
age at the time the offense was committed may be prosecuted as an
adult in the appropriate court exercising criminal jurisdiction. If
convicted, he may be committed to the custody of the Department of
Public Safety and Corrections to be confined in secure placement for a
period of time as determined by the court not to exceed the maximum
amount of confinement he could have been ordered to serve had he
been adjudicated for the offense as a child at the time the offense was
committed.
Both statutes were amended again by 2010 La. Acts, No. 805, §§ 1& 2 to provide
that such individuals shall be prosecuted as adults.
38
As the above enactments of 2008 La. Acts, No. 670 do not redefine criminal
conduct or increase the penalty by which it is punished, their application does not
run afoul of the prohibition against ex post facto laws. They simply allow the
courts to impose the term of incarceration that could have been imposed at the time
of the offense, had the defendant not avoided prosecution at that time, i.e., life
imprisonment without parole. See State v. Odoms, 11- 2092, pp. 8- 9 ( La. App. 1st
Cir. 6/ 8/ 12), 94 So. 3d 166, 171- 72, writ denied, 12- 1612 ( La. 2/ 22/ 13), 108 So. 3d
762 ( wherein this court addressed the same ex post facto claim raised by the
defendant herein; confirming that La. Ch.C. art. 857( C)( 2) prohibits offenders from
evading punishment for juvenile crimes, even if the offenses are not discovered
before adulthood, that could have been imposed at the time of the offense). We are
not persuaded by the defendant' s argument regarding his hypothetical prosecution
as a child despite him being old enough to be transferred to adult court when the
offenses were committed. As the Louisiana Supreme Court found in Coco, the
district court would have had jurisdiction over the defendant' s case had he been
tried when the offenses were committed. See Coco, 363 So. 2d at 210- 211. Since
the defendant could have been prosecuted as an adult and therefore subject to the
same sentences imposed herein, we find no ex post facto violation in this case.
Assignment of error number ten lacks merit.
CONVICTIONS AND SENTENCES AFFIRMED.
39