State Of Louisiana v. Johnny Alfred Elderton ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0427
STATE OF LOUISIANA
VERSUS
JOHNNY ALFRED ELDERTON
Judgment Rendered: DEC 3 0 2020
On Appeal from the 32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Trial Court No. 730356
Honorable David W. Arceneaux, Judge Presiding
Joseph L. Waitz, Jr. Attorneys for Appellee,
District Attorney State of Louisiana
Ellen Daigle Doskey
Assistant District Attorney
Houma, Louisiana
Bertha M. Hillman Attorney for Defendant/Appellant,
Covington, Louisiana Johnny Alfred Elderton
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
PENZATO, J.
The defendant, Johnny Alfred Elderton, was charged by amended bill of
information with two counts of sexual battery against J.L. and G.E., both under the
age of thirteen years, violations of La. R. S. 14: 43. 1. He pled not guilty. Following
a jury trial, he was found guilty as charged on both counts by unanimous verdicts.
He was sentenced to concurrent terms of twenty-five years imprisonment at hard
labor without benefit of parole, probation, or suspension of sentence. For the
following reasons, we affirm the defendant' s convictions and sentences and grant
defense counsel' s motion to withdraw.
FACTS
G.E. was eleven years old at the time of trial. She described an incident that
occurred when she was eight years old while she was sitting on a couch watching
television at the home of the defendant, her grandfather. The defendant was sitting
next to G.E. on a recliner. G.E. and the defendant were not alone in the room, but a
blanket covered their legs. G.E. testified the defendant " rubbed [ GE.]" and
touched [ GE.] where [ the defendant] was not supposed to touch [ GE.]." She
stated the defendant touched her underneath her pants, but over her underwear.
J. L. was nine years old at the time of trial. She testified regarding an
incident that occurred in July of 2016, when she was six years old and spent the
night at the home of the defendant, her grandfather. According to J.L., she was
sitting in a chair with the defendant. The defendant' s wife was also in the room,
but sitting in a different chair. J. L. was watching a movie and playing on her
Kindle. A blanket covered her from the waist down. In a recorded statement, J. L.
demonstrated how the defendant rubbed her vaginal area " under her underpants"
during the incident.
DISCUSSION
Defense counsel filed a brief containing no assignments of error and a
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motion to withdraw from this case. In her brief and motion to withdraw, referring
to the procedures outlined in State a Jyles, 96- 2669 ( La. 12/ 12/ 97), 704 So. 2d 241,
241- 42 ( per curiam) and Anders a California, 386 U.S. 738, 744, 87 S. Ct. 1396,
14001 18 L.Ed.2d 493 ( 1967), defense counsel indicated that after a conscientious
and thorough review of the district court record, she could find no non -frivolous
issues to raise on appeal. See also State a Mouton, 95- 0981 ( La. 4/ 28/ 95), 653
So. 2d 1176, 1177 ( per curiam); State a Benjamin, 573 So. 2d 528, 529- 31 ( La. App.
4th Cir. 1990).
According to Anders, " if counsel finds his case to be wholly frivolous, after
a conscientious examination of it, he should so advise the court and request
permission to withdraw." Anders, 386 U.S. at 744, 87 S. Ct. at 1400. To comply
with Jyles, appellate counsel must not only review the procedural history of the
case and the evidence presented at trial, but counsel' s brief also must contain " a
detailed and reviewable assessment for both the defendant and the appellate court
of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242
quoting Mouton, 653 So. 2d at 1177). When conducting a review for compliance
with Anders, an appellate court must conduct an independent review of the record
to determine whether the appeal is wholly frivolous. State a Maricle, 2013- 1725
La. App. 1st Cir. 3/ 21/ 14), 2014 WL 1168506, * 1 ( unpublished).
Herein, the brief filed on behalf of the defendant by defense counsel
complies with the requirements of Anders. Defense counsel reviewed the
procedural history and record of the case. The district court ruled favorably for the
defendant on his only pretrial motion that was not dismissed. Further, the district
court denied the State' s motion to introduce other crimes evidence against the
defendant. No objections were made during the State' s opening statement or
closing arguments.' Neither the State nor the defense used all peremptory
See La. C. Cr.P. art. 841.
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challenges during voir dire. Lastly, defense counsel noted that minimum
concurrent statutory sentences were imposed and, in any event, the issue of
excessiveness was not preserved by the making or filing of a motion to reconsider
sentence.' Defense counsel set forth in her brief that she could find neither a non -
frivolous issue to raise on appeal nor a ruling of the district court that arguably
supports the appeal. Defense counsel further certified that the defendant was
served with a copy of her brief and motion to withdraw as counsel of record and
was notified of his right to file a pro se brief. The defendant has not filed a pro se
brief.
This court has conducted an independent review of the entire record in this
matter, including a review for error under La. C. Cr.P. art. 920( 2). We find no
reversible errors in this case. See State a Price, 2005- 2514 ( La. App. lst Cir.
12/ 28/ 06), 952 So. 2d 112, 123- 25 ( en banc), writ denied, 2007- 0130 ( La. 2/ 22/ 08),
976 So. 2d 1277. Furthermore, our review reveals no non -frivolous issues or
district court rulings that arguably support this appeal.
Accordingly, the
defendant' s convictions and sentences are affirmed. Further, defense counsel' s
motion to withdraw is hereby granted.
CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO
WITHDRAW GRANTED.
2 The defendant' s failure to exhaust his peremptory challenges bars appellate review of a claim
of an improperly denied peremptory challenge. State v. Dardar, 2014- 0813 ( La. App. 1st Cir.
11/ 7/ 14), 2014 WL 5801528, * 2 ( unpublished).
3 See La. C. Cr.P. art. 881. 1( E).
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