State of Louisiana Versus Lok C. Au ( 2023 )

STATE OF LOUISIANA NO. 23-KA-90
VERSUS FIFTH CIRCUIT
LOK C. AU COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-6147, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING
December 20, 2023
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Scott U. Schlegel
CONVICTION AFFIRMED; SENTENCE ON
COUNT THREE VACATED; REMANDED FOR
RESENTENCING ON COUNT THREE
SUS
SMC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Thomas J. Butler
COUNSEL FOR DEFENDANT/APPELLANT,
LOK C. AU
Gwendolyn K. Brown
SCHLEGEL, J.
Defendant/appellant, Lok C. Au, appeals his conviction and sentence for
indecent behavior with a juvenile under the age of thirteen in violation of La. R.S.
14:81. For the reasons that follow, we affirm defendant’s conviction, and vacate
and remand the case for resentencing.1
PROCEDURAL HISTORY
On July 24, 2018, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Lok C. Au, with sexual battery upon a known
juvenile (DOB 6/2/2008) wherein the child was under the age of thirteen in
violation of La. R.S. 14:43.1 (count one).2 On August 24, 2018, defendant pled not
guilty. A superseding bill was filed on September 25, 2019, adding count three,
which charged defendant with indecent behavior with a juvenile (DOB 6/2/2008)
in violation of La. R.S. 14:81.
On October 3, 2019, a superseding bill charged defendant with sexual
battery of a known juvenile (DOB 6/2/2008) under the age of thirteen in violation
of La. R.S. 14:43.1 (count one), and indecent behavior with a juvenile (DOB
6/2/2008) under the age of thirteen in violation of La. R.S. 14:81 (count three). He
pled not guilty on October 7, 2019. The alleged victim is M.G.
On February 12, 2020, the defendant was found guilty on both counts by a
jury with a verdict of ten to two. The defendant was sentenced on March 9, 2020
to 35 years imprisonment on count one, and to 15 years of imprisonment on count
three.
1
In accordance with La. R.S. 46:1844(W)(3), the victim, who is a minor, and the witnesses whose names
can lead to the victim’s identity (parent, sibling, or relative with the same last name) will be referred to by
their initials in order to protect the victim’s identity.
2
In the same bill, K.P. was charged in count two with cruelty to a juvenile (DOB 6/2/2008) in violation
of La. R.S. 14:93.
23-KA-90 1
On August 14, 2020, this Court granted defendant’s motion to remand his
case to the trial court to reconsider his motion for new trial in light of the decision
of the United States Supreme Court in Ramos v. Louisiana, 590 U.S. __, 140 S.Ct.
1390, 206 L.Ed.2d 583 (2020). The trial court granted defendant’s motion for new
trial. A second trial began on March 14, 2022, but a mistrial was declared on
March 15, 2022 due to the illness of co-counsel for the defendant.
Defendant’s third trial was held from August 15 to 17, 2022. On August 17,
2022, the trial court declared a mistrial as to count one when the jury was unable to
reach a verdict. As to count three, the jury unanimously found defendant guilty as
charged of indecent behavior with a juvenile under the age of thirteen.
On September 12, 2022, the State entered a nolle prosequi as to count one
and defendant’s motion for new trial was denied. On that day, defendant was
sentenced to twenty years imprisonment at hard labor as to count three. Defendant
filed a motion to reconsider sentence on October 12, 2022. Defendant filed a
motion for appeal and designation of record on November 3, 2022. The motion to
reconsider sentence was heard and denied on December 1, 2022. Thereafter, the
judge granted the motion for appeal and designation of record.
FACTS
M.G., age fourteen at the time of trial and in the ninth grade, testified that
she has two younger biological sisters and that they have the same mom, K.P. She
recalled that she started living with L.F. and T.F. when she was eight years old,
and they officially adopted her on December 17, 2018 when she was ten years old.
Before that, she lived with her mother and Aunt Marie in Mississippi.
While living with her mother, M.G. met defendant, whom she knew as
“Bill”, through her mom. M.G. knew that K.P. was with different men for money
because K.P. brought M.G. along with her sometimes. M.G. said she and K.P.
went to various places with Bill, such as casinos and hotels, and that when he
23-KA-90 2
would leave, he would give them both money. M.G. would then give the money to
her mother, K.P. M.G. testified that the hotel rooms had two beds, and that she
was left alone in the room with Bill more than once.
M.G. testified that during these times Bill touched her body twice. K.P. was
not in the room either time. On one occasion, she was on the bed, wearing a shirt
and underwear, when Bill got on the bed with her. He then put his finger inside of
her underwear on her vagina. Afterwards, she went into the bathroom and checked
herself because it hurt where he touched her. The second time, she was in bed
wearing only a shirt and underwear, when Bill got in the bed and put his finger
inside her underwear on her vagina again.
She said there was also a time when she saw Bill’s penis. According to
M.G., defendant walked over to the bed wearing briefs, pulled his underwear to the
side so she could see his penis and said, “Touch it.” When he told her to touch it,
she said she did because he was an adult.
Bill also kissed M.G. on the lips on more than one occasion, and placed his
tongue in her mouth. She did not want him to do that so she told K.P., but K.P. did
not do anything about it. M.G. did not feel that there was anything she could do to
stop Bill from doing these things to her. M.G. also testified about a time when she
saw people having sex on T.V. after Bill turned on the television.
When M.G. was eight, she went to live with T.F. and L.F. She did not
immediately tell them about what Bill did to her, but eventually she told L.F. about
what Bill had done. She did not tell L.F. everything at once because it was
“weird,” and she was scared to tell anyone because her mother, K.P., had told her
not to tell anyone. She also did not tell the forensic interviewer in Mississippi
everything when she was eight years old. At some point, she did disclose
everything.
23-KA-90 3
K.P., M.G.’s biological mother, testified that she gave birth to three
daughters, including M.G. M.G. and one of her sisters have the same father. K.P.
acknowledged that the State was prosecuting her for cruelty to a juvenile and that it
was related to defendant’s trial. She met defendant, whom she called “Bill Lok
Au,” when he made her a car key. At that time, she did not have a job, and only
M.G. had been born. K.P. testified that they were friends but that after some time,
he suggested that he help her financially. She stated that he gave her money after
they had sex and that she would not have had sex with him otherwise. At that
time, she was living with her Aunt Marie in Mississippi. K.P. testified that they
usually met at the Evergreen hotel in Jefferson Parish. She acknowledged that she
was abusing drugs at that time and that two of her children were born addicted to
cocaine. One daughter was also born with cerebral palsy.
K.P. acknowledged that she sometimes brought M.G. with her to the
Evergreen hotel. When asked if she ever had sex with defendant while M.G. was
in the room she initially answered in the negative. She also testified that she was
high from drugs at the time and thought that things happened that she did not
realize or could not remember. She initially stated that she left M.G. and defendant
alone together for only about five minutes while she got ice, but denied leaving the
hotel to get drugs. She later acknowledged that she would in fact leave M.G. alone
with defendant while she went to get drugs. K.P. testified that she never saw
defendant abuse M.G. and that M.G. never told her that defendant kissed M.G. on
the lips or touched her, other than a kiss on the cheek.
L.F. testified that she is the mother of six children, three of whom she
adopted with her husband, T.F. The three adopted children, A.F., E.F., and M.G.
are the biological daughters of K.P., and initially came to her as foster children.
L.F. and her husband did not know K.P. before adopting A.F. as an infant in 2014.
A.F. was born on cocaine and spent approximately three weeks in the Neonatal
23-KA-90 4
Intensive Care Unit before L.F. and her husband could bring her home. When they
adopted A.F., M.G. (the victim) was six years old and was living with K.P. For a
period of time, M.G. was not living with her mother, K.P., and was being cared for
by what were believed to be paternal relations, who would occasionally bring M.G.
to visit A.F.
When E.F., K.P.’s third daughter, was born in 2016 on a multitude of drugs
and with severe medical issues, the State removed her from K.P.’s custody and
ultimately placed her with L.F. and her husband in 2016 as a foster child. Then, in
July 2016, the State contacted L.F. and her husband and asked if they would also
take M.G., who was now eight years old, as a foster child, because M.G. was also
going to be removed from K.P. They agreed.
One day, M.G. was “acting off,” so L.F. told M.G. to go and sit in her room
and think about what was going on, and that L.F. would come and talk to her in a
minute. When L.F. went in to talk to M.G., she said, “I was just thinking about the
time Bill kissed me.” L.F. asked, “On your cheek?” M.G. replied, “No, in my
mouth,” and showed and described to her how he used his tongue and what his
mouth did with her. L.F said, “A French kiss?” M.G. said, “What’s that?” L.F.
explained that would be him sticking his tongue in her mouth. M.G. said that is
what happened and that her mother, K.P., knew. L.F. testified that she did not
know who “Bill” was when M.G. first said this. L.F. testified that they contacted
M.G.’s social worker in Mississippi regarding this initial disclosure. L.F. believed
the social worker contacted the police and took M.G. to a forensic interview.
L.F. stated that sometime after the forensic interview, M.G. told her that Bill
had showed himself to her and that it was “real saggy and gross.” M.G. also
described pornography on the television in the hotel room, and told L.F. that Bill
had stuck his fingers inside of her vagina, and that it had really hurt. L.F. said that
her two-year old adopted daughter, A.F., told L.F. that M.G. was sucking her
23-KA-90 5
crotch. L.F. asked M.G. about this, and M.G. said she was doing what had been
done to her.
L.F. testified that at some point they contacted law enforcement. An officer
in Mississippi took M.G.’s statement, but told them it was out of their jurisdiction.
L.F.’s husband, T.F., subsequently took M.G. to Louisiana, where she had to give
more statements about what Bill did to her. L.F. testified that M.G. was now 14
years old, had been in therapy, and was doing well. L.F. denied telling M.G. to lie
or make up things about Bill so that she could get custody of her.
L.F. acknowledged that she knew that K.P. was a prostitute and was with
additional men besides defendant and that M.G. had witnessed her mother’s drug
use. Bill was the only “boyfriend” of K.P.’s that M.G. talked about staying with
overnight in a hotel.
T.F. testified that in August 2017, he and his wife, L.F., called the Pearl
River County Sheriff’s Office in Mississippi where they live. They were told to
contact M.G.’s social worker and the law enforcement agency for the jurisdiction
where the actual activity occurred. They ultimately took M.G. to the Audrey
Hepburn CARE Center at Children’s Hospital in New Orleans. Since M.G. only
knew the person as “Bill,” T.F. called his wife, L.F., so that she could get in
contact with family members to try to get a name and a possible phone number for
Bill. T.F. was present when a single photograph was shown to M.G., and she
identified the person as the perpetrator.
On August 16, 2017, Detective Peter Foltz of the Kenner Police Department
was told to go to the Audrey Hepburn CARE Center regarding a juvenile making
allegations of sexual abuse. When he arrived, he spoke with caseworker Alicia
Porter and Dr. Jamie Jackson. M.G. was also at the CARE Center, accompanied
by her foster father, L.F. Detective Foltz testified that the Kenner Police
Department was contacted because based upon what M.G. had said, the abuse had
23-KA-90 6
occurred at a hotel near the Treasure Chest Casino located in Kenner. It was
determined that the alleged abuse occurred at the Evergreen Plaza Inn, which is in
Metairie, and is handled by the JPSO. Detective Foltz contacted JPSO and asked
them to send a deputy. Detective Foltz believed that M.G. said the perpetrator was
named Bill Au. Detective Foltz testified that they attempted to determine who Bill
Au was, and that T.F. contacted people in Mississippi and was able to obtain a
potential telephone number for Mr. Au. Detective Foltz turned this information
over to Deputy Brandon Cohen of JPSO.
Detective Brandon Cohen of JPSO was dispatched to the Kenner Police
Department Complex regarding a complaint of child sexual abuse that took place
in Jefferson Parish. When he arrived at the Kenner Police Department complex, he
learned that the child sexual abuse took place at the Evergreen Motel in Metairie.
Detective Cohen spoke to the victim’s father about the complaint and was given
the name “Bill” and a cell phone number. Detective Cohen testified that he gave
this information to Detective Scott Bradley in the Personal Violence Unit. Using
computer databases, Detective Bradley obtained a name that he ran through DMV
records and found a photograph that he sent to Detective Cohen while he was in
Kenner. This photograph was printed and shown to the child victim to see if she
could make an identification. The victim identified the individual in the
photograph as the person who sexually abused her.
In August 2017, Detective Scott Bradley was employed by the JPSO
assigned to the Personal Violence Section. He testified that on August 16, 2017, a
patrol deputy contacted him regarding a call from the Kenner Police Department
on an allegation of child sexual abuse that occurred at the Evergreen Motel in
Metairie. He was given a phone number, which lead to a named person assigned to
the phone number. He got a driver’s license picture of the person, which he sent to
the patrol deputy. The victim, M.G., positively identified the individual in the
23-KA-90 7
picture as the person who sexually abused her. After M.G. made the identification
of the perpetrator, Detective Bradley arranged for her to go to the Jefferson Parish
Children’s Advocacy Center (“CAC”) for a forensic interview. He was present at
the CAC on August 30, 2017, in a separate room with a monitor where he could
watch and listen when Brittany Bergeron Millet conducted the interview of M.G.
Dr. Jamie Jackson testified as an expert in the field of child abuse as a child
abuse pediatrician. Dr. Jackson, who was employed at the Audrey Hepburn Care
Center, examined M.G. on August 16, 2017. She also conducted a private
interview with M.G. that was audio recorded and played for the jury. During the
interview, M.G. explained to Dr. Jackson how she and K.P. would meet with Bill
in the hotel room. M.G. described situations similar to what she testified to at the
trial, about how Bill kissed her on the lips with his tongue in her mouth, how he
showed her his “private part” and made her touch it, and how he stuck his finger in
her private part twice.
Dr. Jackson also conducted a physical examination of M.G. She said that
M.G.’s physical examination was normal but explained that a normal examination
was not determinative of whether or not sexual abuse occurred. She testified that
when she sees children for possible sexual abuse, most of the time there are no
physical findings because of the child’s anatomy.
Dr. Jackson explained that disclosure of abuse is a process and delayed
disclosure is commonly seen with sexual abuse victims. Delayed disclosure does
not automatically mean that the report is true. She stated that it is common for
victims of child sexual abuse to wait to disclose it until they are in a safe
environment. When asked if M.G. appeared “bubbly” and had a matter-of-fact
manner, Dr. Jackson stated that it was not uncommon for a victim of child sexual
abuse to have such an affect. She explained that M.G.’s affect did not indicate
whether something happened or did not happen. Dr. Jackson testified that most of
23-KA-90 8
the time when she sees a child, it is the second, third, or fourth time that the child is
talking about the abuse, and that children would only become really emotional if
they were sharing a certain part for the first time.
Dr. Jackson acknowledged that M.G. was seeing a counselor in Mississippi
and explained that she never requested any notes or records from others and would
instead talk to the child in private to obtain the information herself. Dr. Jackson
explained that a disclosure may change over time depending on several things,
including how someone reacts to the disclosure. Dr. Jackson agreed that false
allegations of sexual abuse occur and that sometimes children say things that are
not true. She also agreed that a child might say something untrue to please the
person they are talking to and that children sometimes lie without an adult
suggesting it to them. Dr. Jackson acknowledged that a child might lie to get
themselves out of trouble or to get something they want. When asked if it was her
job as a child abuse pediatrician to make a conclusion as to whether a child was
telling the truth, she stated that she was not the end-all-be-all with knowing if a
child is telling the truth, “[b]ut I can definitely say that she [M.G.] gave me clear
statements with regard to sexual abuse.”
Dr. Jackson agreed that in the interview, M.G. described being exposed to
drugs and prostitution and seeing photographs of other naked men. She
acknowledged that M.G. told her that she was allowed to leave K.P.’s custody
because K.P. was on drugs and because M.G. was sexually abused. Dr. Jackson
recalled that M.G. gave a history of sexual abuse and “about exposure to
sexualized material” and environment. She testified that M.G. said she saw
pictures of her biological father naked on his phone and pictures of her mom and
another man having sex on her mom’s phone. Dr. Jackson agreed that M.G. could
have exhibited hyper-sexualized behavior from exposure to pornography and those
photographs or from sexual abuse.
23-KA-90 9
On August 30, 2017, Brittany Bergeron Millet, the forensic interviewer at
the CAC, interviewed M.G. A recording of the interview was played for the jury.
During the interview M.G. spoke about incidences similar to what she testified to
at the trial, and that she had told Dr. Jackson about, including where Bill stuck his
tongue in her mouth while kissing her; exposed his penis and asked her to touch it;
and rubbed her buttocks, removed her panties, and penetrated her vagina with his
finger. M.G. also described pornography being played on television.
After M.G. positively identified defendant, Lok Au, Detective Bradley
obtained a warrant for his arrest. Defendant was arrested, and was transported to
the investigations bureau. After Detective Bradley advised defendant of his
Miranda rights, defendant waived his rights and made a statement. The statement
was published to the jury.
Detective Bradley testified that defendant admitted to paying K.P. for sex,
and admitted to having sex with K.P. while M.G. was in the hotel room at the
Evergreen Hotel. Detective Bradley further said that defendant admitted that he
was actually, at times, alone with M.G., and that defendant admitted to one kiss on
the lips with M.G., but later indicated that it was two times. He said that defendant
admitted watching pornography while M.G. was in the hotel room.
When giving his statement, defendant was told that the charge was sexual
battery involving a child victim. Defendant stated that K.P. is the girl he usually
sees since his wife passed away. He described the relationship as sexual and
consensual. He denied that K.P. was his girlfriend, and said he paid her.
Defendant said K.P. called him “Bill,” and that his name is Bill. Defendant stated
he sometimes went to her trailer in Mississippi and sometimes to the Evergreen
hotel. He said they went to the hotel sometimes once a week and sometimes once
a month. He said that K.P. used drugs, but denied that he used them.
23-KA-90 10
Defendant explained that one summer, K.P.’s daughter, M.G., was out of
school, and she would go with them to the movies. He stated that after the movies,
they would go to the hotel and that M.G. would sleep. He explained that there
were two beds and that he would leave after he and K.P. had sex. He said this
happened two or three times, and that M.G. was asleep when he and K.P. made
love. Defendant stated he was only alone with M.G. once and that she was asleep.
He explained that when K.P. left, he would stay in the room another ten or fifteen
minutes before leaving. He said he would watch television before he left, but he
denied watching pornography alone. He said he would put pornography on when
K.P. was there, but that M.G. was asleep when he did. He explained that they
blocked M.G.’s view, and she could not see the pornography.
Defendant said he never intentionally showed M. G. his penis. He always
wore pants. When he laid down on the bed, he would take his pants off, but would
have boxer shorts on. Defendant said M.G. liked him and called him “Uncle Bill.”
He said that M.G. would hug him hello and goodbye. He indicated that she once
wanted to kiss him on the lips, but he told her that she could not, and he pushed her
away. He said K.P. was there that time. He might have kissed her a second time
while in the trailer. Defendant denied that he ever laid in the bed with M.G., or
that he ever showed her his penis. He said his boxers were loose, but he never
showed her anything. He denied touching M.G. on her legs, buttocks, or vagina.
Defendant told the detective that these allegations were made because K.P. and her
boyfriend were trying to put him in jail.
Defendant called as witnesses several neighbors and relatives who all
testified that defendant had a good reputation in the community. Frederick Bentel
testified that he had lived next door to defendant for approximately 42 years. He
said defendant has five children and seven grandchildren. He explained that
defendant was married but that his wife passed away seven or eight years
23-KA-90 11
previously. He testified that defendant did not have a reputation for being
predatory towards children and that he trusted his own grandchildren around
defendant. Mr. Bentel said defendant did not have a reputation for being
aggressive or violent towards children and described him as a peaceful and law-
abiding person.
Jan Knecht testified that defendant, whom she knows as Mr. Bill, has been
her neighbor since 1986. She recalled that defendant lost his wife seven to ten
years prior. Ms. Knecht testified that she never saw defendant “do anything other
than normal dads do” and that she never saw him act inappropriately. She denied
that he had a reputation as a person who acts inappropriately towards children or is
aggressive or violent.
Jimmy Au, defendant’s son, worked with him in the locksmith business. He
explained that his mother passed away in 2011 and that his father did not respond
well to her passing. He has two daughters that he would “bring around” his father
and that they love defendant. He denied that his father has a reputation for
behaving inappropriately toward children. He stated that defendant was never in
trouble and described him “as law-abiding as they come.” Jimmy stated that
defendant has a reputation of being “as safe as it comes” around children.
Annette Alvarado, defendant’s daughter, explained that she has three
children and that they visit defendant. She said he does not have a reputation for
acting inappropriately with children. She stated that defendant has a reputation as
a law abiding, good citizen.
Edward Au, defendant’s son, testified that defendant does not have a
reputation for acting inappropriately towards children.
Henry Au, defendant’s oldest son, described defendant as well-liked and
said he did not have a criminal record. He said he had a reputation for being a law-
abiding person.
23-KA-90 12
LAW AND ANALYSIS
A. Alleged errors related to expert witness testimony
In assignments of error numbers 1 through 5, defendant argues that the trial
court erred by (1) admitting testimony of the State’s expert witness, Dr. Jamie
Jackson, that went beyond its admissible scope; (2) impermissibly excluding
testimony of defendant’s expert, Dr. Alicia Pellegrin; and (3) denying the motion
for new trial that was based, in part, on these two rulings.
1. Testimony of Dr. Jackson
Defendant argues that Dr. Jackson testified to several opinions and
conclusions that were not contained within her medical records, and were thus in
violation of the discovery rules as set forth in La. C.Cr.P. art. 719(A). Specifically,
he argues that Dr. Jackson testified that delayed disclosures of abuse, absence of
physical findings, and an unemotional demeanor during questioning are all
common in child abuse victims, while none of these conclusions are contained
within the reports tendered in discovery. Defendant asserts that under such
circumstances, he was denied the opportunity to properly prepare to cross-examine
the expert or to obtain appropriate rebuttal testimony.
We disagree. To the extent that defendant contends that the State violated
the provisions of La. C.Cr.P. art. 719(A), by failing to produce reports as to Dr.
Jackson’s testimony at the third trial, the defendant does not indicate what
conclusions he is referring to. In addition, defendant did not object to Dr.
Jackson’s testimony on that basis during the trial, so in accordance with La.
C.Cr.P. art. 841, he may not make that argument on appeal.
Defendant further argues that Dr. Jackson’s opinions were not limited as
required by law to “general behavioral characteristics of child abuse victims.”
Defendant asserts that Dr. Jackson’s opinions often crossed the line into specific
23-KA-90 13
conclusions about this particular child’s physical examination findings, timing of
disclosure, and her demeanor during questioning.
With respect to the scope of expert witnesses, La. C.E. art. 702(A), entitled
“Testimony by experts”, provides:
A. 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 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. 704 further provides in pertinent part that “[h]owever, in a
criminal case, an expert witness shall not express an opinion as to the guilt or
innocence of the accused.”
The trial court’s decision to admit or exclude expert testimony is subject to
the “abuse of discretion” standard. State v. Thompson, 22-497 (La. App. 5 Cir.
1/18/23), 356 So.3d 1185, 1190; State v. Johnson, 10-209 (La. App. 5 Cir.
10/12/10), 52 So.3d 110, 121, writ denied, 10-2546 (La. 4/1/11), 60 So.3d 1248.
The Louisiana Supreme Court has recognized the validity and admissibility
of expert testimony relating to delayed disclosure in cases involving child abuse.
State v. Greene, 06-667 (La. App. 5 Cir. 1/30/07), 951 So.2d 1226, 1238, writ
denied, 07-0546 (La. 10/26/07), 966 So.2d 571. In State v. Tipton, 21-01478 (La.
10/16/21), 326 So. 3d 243, the Louisiana Supreme Court further recognized:
In a prosecution for sexual offense(s) committed against a child,
expert testimony of general characteristics that would explain delays in
reporting, inconsistent reports, omissions of details, reluctance to testify,
demeanor, and recantations is generally admissible provided that it meets the
requirements of the Code of Evidence and does not invade the jury’s
province of determining credibility or otherwise violate the prohibitions
contained in State v. Foret, 628 So.2d 1116 (La. 1993); State v. Chauvin,
2002-1188 (La. 5/20/03), 846 So.2d 697.
23-KA-90 14
We conclude that the trial court did not abuse its discretion in admitting Dr.
Jackson’s testimony. Dr. Jackson testified that there were no physical findings
related to M.G.’s statement of sexual abuse and that the physical findings were
normal. She explained that everything being normal did not mean that sexual
abuse did or did not occur. She stated that when she sees children for possible
sexual abuse, most of the time there is not a physical finding because of the child’s
anatomy. She agreed that a delay in disclosure adds to the likelihood that there
will not be a physical finding. Dr. Jackson explained that a disclosure may change
over time depending on several things such as how someone reacts to the
disclosure. Dr. Jackson provided that a disclosure is a process and that most kids
do not disclose when something first happens. Instead, it is common for victims of
child sexual abuse to wait to disclose it until they are in a safe environment. She
said that it was not uncommon for a victim of child sexual abuse to have a
“bubbly” or matter-of-fact affect and that such an affect was not indicative of
whether or not abuse occurred. Dr. Jackson testified only generally and did not
reach any specific conclusions about the physical findings, timing of disclosure, or
demeanor of M.G. She did not testify as to whether abuse occurred or whether
M.G. was credible. The trial court did not abuse its discretion with respect to the
testimony of Dr. Jackson.
2. Disallowance of testimony of Dr. Pellegrin
Defendant argues that the trial court erroneously excluded the testimony of
his expert, Dr. Alicia Pellegrin. Defendant asserted that this was apparently
because the trial court relied upon a mistaken belief that it had previously ruled
that Dr. Pellegrin was not qualified as an expert witness. Defendant further
contended that she would have rebutted Dr. Jackson’s conclusions.
During the trial, after the conclusion of the State’s case and out of the
presence of the jury, the trial court allowed defense counsel to call Dr. Pellegrin
23-KA-90 15
and to proffer testimony regarding her qualifications. She testified via Zoom due
to having COVID. She described her education, which included a graduate degree
in clinical psychology, and that she had worked in forensic evaluations for the last
20 years. She testified that she had been qualified as a clinical psychologist, and as
an expert in child custody evaluations, sex offender evaluations, and child sex
abuse evaluations. Dr. Pellegrin testified that she had reviewed the testimony of
Dr. Jackson on the previous day. The defense tendered her as an expert in forensic
and clinical psychology and child sexual abuse evaluations.
On cross-examination on her qualifications, she acknowledged that she was
being offered as an expert to testify concerning the testimony of Dr. Jackson. The
trial court also questioned Dr. Pellegrin. The trial court further ruled as follows:
All right. The defense has offered Dr. Pellegrin as an expert in the
field of forensic clinical psychology and child sex abuse evaluations. The
Court finds that she is indeed an expert based upon her testimony and her
CV in forensic clinical psychology and child sex abuse evaluation. The
Court has repeatedly asked defense what her testimony will be. And the
answer that I have gotten back consistently and without fail is that she is
going to contradict the -- or clarify or emphasize her differences
with Dr. Jackson’s testimony yesterday. However, when I went through the
three areas of contention by Dr. Pellegrin with Dr. Jackson's testimony, Dr.
Pellegrin agreed with the Court that Dr. Jackson did not testify to any of the
conclusions that Dr. Pellegrin has listed in her report.
Therefore, based upon the representations of defense as to what Dr.
Pellegrin’s testimony would be – after repeated requests to let me know
what her testimony was going to be – and the admittance of the expert
herself that the testimony she sought to contradict was not testified to
yesterday, I am going to not allow her to testify.
The trial court went out of its way to consider Dr. Pellegrin’s testimony,
including letting her testify viz Zoom because she had COVID. The trial court
conducted an extensive evaluation as to Dr. Pellegrin’s qualifications and the
subject matter of her testimony.
Contrary to defendant’s argument, the trial court did qualify her as an expert
in forensic clinical psychology and child sex abuse evaluation. Her testimony was
disallowed because the purpose of her testimony was to rebut the testimony of Dr.
23-KA-90 16
Jackson. Dr. Pellegrin acknowledged that Dr. Jackson did not testify as to any of
the conclusions that Dr. Pellegrin listed in her report. Further, as discussed
previously, Dr. Jackson did not make any conclusions as to whether sexual abuse
occurred. Thus, there was no need for any rebuttal testimony by Dr. Pellegrin.
The trial court did not abuse its discretion in disallowing the testimony of Dr.
Pellegrin.
B. Denial of defendant’s motion to admit evidence of prior false allegations
of sex abuse
In assignments of error numbers 1, 2, and 6, defendant argues that the trial
court erred in denying his motion to admit evidence of prior false allegations of sex
abuse and in denying his motion for new trial. He asserts that these rulings
improperly infringed upon his right to present a defense.
On October 10, 2019, prior to the first trial, the State filed a Motion in
Limine to Preclude Questioning Victim about Prior Allegations of Sexual Assault
Pursuant to Louisiana Code of Evidence 412. The State moved to prevent any
questioning of M.G. about Brian and Rashad, asserting that neither matter was
investigated. On December 9, 2019, the trial court granted the State’s motion in
limine without opposition.
Defendant’s assertions as to prior false allegations were contained in his
Motion to Admit Evidence of Prior False Allegations Pursuant to State v. Smith,
filed on June 14, 2021. The motion asserts that M.G.’s first allegation that
defendant had sexually abused her was made in January 2017 in an initial forensic
interview. Defendant argues that during the January 12, 2017 interview, she
denied any physical touching by defendant, but did allege that her cousin Rashad
touched her vagina and made her touch his penis. Defendant further argues that on
August 16, 2017, during the interview by Dr. Jackson when she made a second
disclosure alleging that defendant had sexually abused her, she also alleged
23-KA-90 17
physical touching, including touching of her vagina, by her mother’s former
boyfriend, Brian. But when asked that day if anyone other than defendant or Brian
had touched her, M.G. denied it, and did not mention her cousin Rashad. 3 Then,
during the forensic interview on August 30, 2017, M.G. again alleged that Brian
physically touched her, but this time she denied that he touched her vagina.
During that interview, defendant alleges that she was asked if anyone else had
touched her, and she again denied it, which contradicted her prior allegation
against Rashad. Defendant submits that he should have been permitted to impeach
M.G. about these alleged inconsistencies.
At the hearing on defendant’s motion on June 28, 2021, the trial court
referred the matter to the Court’s previous ruling of December 9, 2019, when the
trial court granted the State’s motion in limine to preclude questioning about prior
allegations of sexual assault. During the trial, defense counsel inquired about
whether M.G. had seen other men’s penises before. The trial court sustained the
State’s objection on the grounds that it had already ruled that the evidence was
inadmissible.
A defendant has a constitutional right to present a defense. Washington v.
Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Sixth
Amendment to the United States Constitution and Article I § 16 of the Louisiana
Constitution guarantee an accused in a criminal prosecution the right to be
confronted with the witnesses against him. State v. Stalling, 19-336 (La. App. 5
Cir. 1/29/20), 290 So.3d 332, 340, writ denied, 20-00326 (La. 7/24/20), 299 So.3d
76; State v. Zeringue, 03-697 (La. App. 5 Cir. 11/25/03), 862 So.2d 186, 195, writ
denied, 03-3523 (La. 4/23/04), 870 So.2d 298. The primary purpose behind this
right is to secure for the defendant the opportunity for cross-examination. Davis v.
3
The trial record does not contain any evidence of M.G.’s statements regarding Brian or Rashad made
during forensic interviews on January 12, 2017 in Mississippi, on August 16, 2017 to Dr. Jackson, or on
August 30, 2017 to Ms. Millet. Apparently only redacted exhibits were admitted at the trial.
23-KA-90 18
Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The right to present
a defense and to confront witnesses includes the right of a defendant to attack the
credibility of a witness by examining him or her concerning any matter having a
reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E.
art. 607(C).
The right of an accused sex offender to present a defense is, however,
balanced against the victim’s interests under La. C.E. art. 412 (the rape shield
statute), which is meant to protect the victim of sexual assault from having her
sexual history made public. State v. Zeringue, supra. La. C.E. art. 412 prohibits
evidence regarding the past sexual behavior of the victim in sexual assault cases,
except when there is an issue of whether the accused was the source of semen or
injury, and when the past sexual behavior is with the accused and there is an issue
of whether the victim consented to the charged sexually assaultive behavior.
Article 412 does not apply when a defendant attempts to use evidence of a victim’s
alleged false allegation of improper sexual behavior to impeach the victim’s
credibility. State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 202–03; State v.
Bolden, 21-283 (La. App. 5 Cir. 6/30/21), 325 So.3d 602, 605. However, the
admissibility of such evidence is still subject to all other standards for admissibility
under La. C.E. arts. 403, 404, 607, 608, and 613. State v. Cervantes, 18-535 (La.
App. 5 Cir. 2/27/19), 266 So.3d 569, 573, writ denied, 19-00662 (La. 9/24/19), 279
So.3d 931; State v. Bolden, 325 So.3d at 605.
The trial court’s determination regarding the relevancy and admissibility of
evidence will not be overturned on appeal absent a clear abuse of discretion. State
v. Cervantes, 266 So.3d at 573. When considering the admissibility of alleged
prior false allegations, the question for the trial court is not whether it believed that
the prior allegations were false, but whether reasonable jurors could find, based on
the evidence presented by the defendant, that the victim had made prior false
23-KA-90 19
accusations and whether all other requirements of the Code of Evidence had been
satisfied. State v. Smith, 743 So.2d at 203, 204.
In Smith, cited by defendant, the victim admitted that she had previously
made accusations of improper sexual behavior against her cousin, who was not the
defendant. Two witnesses corroborated this. Another witness testified, however,
that the victim had recanted the accusations. The Louisiana Supreme Court
concluded that because the entire outcome of the case rested upon the jury’s
perception of the victim’s veracity, the trial court should have allowed the
testimony so the jury could determine if the victim had made false allegations in
the past, and that the trial court’s failure to do so was not harmless error.
Similarly, in State v. Cervantes, 266 So.3d at 574, we stated that “[t]his Court has
consistently upheld the trial court’s grant of the State’s motion in limine, where the
victim has not recanted the earlier allegation and there is no independent witness to
testify that the allegation was false.” In the pending case, defendant never showed
or attempted to show that M.G.’s allegations against others were false, and there
was no independent witness to testify that the allegations were false.
Further, the fact that no criminal charges were brought is not determinative
that a victim’s allegations are false. See State v. Bolden, 325 So.3d at 606 (“The
fact that no charges have been brought against T.S. in Orleans Parish is not
determinative that A.T.'s allegations against him are false.”)
Defendant attempts to rely upon the fact that M.G. did not consistently
mention prior allegations throughout her interviews. However, this is not evidence
of previous false statements. See State v. Bolden, 325 So. 3d at 606 (“. . . the
defendant only argued that the victim's reports of the other allegation were
inconsistent, which was not evidence that the victim's prior allegation of abuse was
false.”)
23-KA-90 20
Finally, even if M.G. had made statements that Brian or Rashad touched her,
the statements would have been made when she was eight years old and in
circumstances in which she was being interviewed in connection with allegations
of abuse against defendant.
Defendant did not meet his burden of establishing that reasonable jurors
could find that M.G. made prior false statements based on the evidence presented
by defendant. Defendant’s assignments of error on this issue are without merit.
C. Alleged Errors Regarding Sentencing
In assignments of error numbers 7, 8, and 9, defendant argues that the trial
court erred by (1) increasing, without cause, defendant’s sentence following his
successful appeal after the first trial; (2) imposing an excessive sentence; and (3)
denying the motion to reconsider sentence.
These arguments are pretermitted based upon the errors patent discussion
below.
ERRORS PATENT REVIEW
We reviewed the record for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5th Cir. 1990). The following require corrective action.
La. C.Cr.P. art. 14:81(H)(2) provides that whoever commits the crime of
indecent behavior with juveniles on a victim under the age of thirteen when the
offender is seventeen years of age or older shall be punished by imprisonment at
hard labor for not less than two nor more than twenty-five years. It further
provides that “[a]t least two years of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.”
The trial court’s sentence did not restrict benefits for any portion of the
sentence.
23-KA-90 21
Generally, when a trial court does not mention the restriction of benefits,
such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.
State v. Cepriano, 21-262 (La. App. 5 Cir. 3/30/22), 339 So.3d 32, 47; State v.
Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228. However, in
this case, the trial court’s failure to impose the statutory restrictions is not cured by
La. R.S. 15:301.1 because the portion of the sentence to be served without benefits
is left to the discretion of the trial court.
Accordingly, we vacate the sentence as to count three and remand the matter
for resentencing.
DECREE
For the foregoing reasons, defendant’s conviction on count three is affirmed.
Defendant’s sentence on count three is vacated, and the case is remanded to the
trial court for resentencing in conformity with this opinion.
CONVICTION AFFIRMED; SENTENCE ON
COUNT THREE VACATED; REMANDED FOR
RESENTENCING ON COUNT THREE
23-KA-90 22
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-90
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) GWENDOLYN K. BROWN (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053