State v. King

Full title: STATE OF LOUISIANA v. CLAYTON JAMES KING

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Jul 10, 2014

NO. 2013 KA 0135 (La. Ct. App. Jul. 10, 2014)

Opinion

NO. 2013 KA 0135

07-10-2014

STATE OF LOUISIANA v. CLAYTON JAMES KING

JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL TERRI R. LACY DAVID WEILBAECHER, JR. ASSISTANT ATTORNEYS GENERAL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA MARY E. ROPER BATON ROUGE, LA AND JAMES D. MECCA COVINGTON, LA ATTORNEYS FOR DEFENDANT-APPELLANT CLAYTON JAMES KING

PETTIGREW

NOT DESIGNATED FOR PUBLICATION

Appealed from the

22^nd Judicial District Court

in and for the Parish of St. Tammany, Louisiana

Trial Court No. 505742-1

Honorable Allison H. Penzato, Judge

JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL
TERRI R. LACY
DAVID WEILBAECHER, JR.
ASSISTANT ATTORNEYS GENERAL
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
MARY E. ROPER
BATON ROUGE, LA
AND
JAMES D. MECCA
COVINGTON, LA
ATTORNEYS FOR
DEFENDANT-APPELLANT
CLAYTON JAMES KING

BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.

PETTIGREW, J.

The defendant, Clayton James King, was charged by grand jury indictment with aggravated rape (count one) and attempted aggravated rape (count two), in violation of La. R.S. 14:42 and La. R.S. 14:27. The defendant entered a plea of not guilty. The trial court granted the State's motion in limine to exclude from evidence the sexual history of the victim. Following a trial by jury, the defendant was found guilty as charged on both counts.¹ The trial court denied the defendant's motion for postverdict judgment of acquittal and motion for new trial. He was sentenced on count one to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, and on count two to thirty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court ordered that the sentences be served concurrently. The trial court denied the defendant's motion to reconsider sentence. He now appeals,² assigning error as follows:

1 Three codefendants, indicted and tried along with the defendant, were also convicted as charged and have separate appeals pending in this court: Michael Ayo (2013-0134), Derrick Maise (2013-0136), and Brett Ward (2013-0137).

2 After lodging an appeal with this court, the defendant filed another motion for new trial based upon newly discovered evidence. This court remanded the case for a hearing on the motion. On remand, after a hearing, the trial court denied the second motion, and this court reset the briefing deadline.

1. The evidence was legally insufficient to convict the defendant of aggravated rape and attempted aggravated rape.
2. The trial court erred in refusing to grant a postverdict judgment of acquittal because the evidence was insufficient.
3. The trial court erred in refusing to allow the defense to question the witnesses regarding the victim's prior false claims of pregnancy.
4. It was a violation of double jeopardy to charge the defendant with both attempted aggravated rape and aggravated rape of the same victim, for acts arising out of the same incident.
5. The trial court abused its discretion in refusing to grant a mistrial when a State witness referred to a crime which she claimed had been committed by codefendant Ward during the incident complained of by the victim.³
6. The constitutional provision allowing nonunanimous jury verdicts violates equal protection under the Fourteenth Amendment because the provision's enactment was motivated by an express and overt desire to discriminate against African Americans on account of race and because the provision has had a racially discriminatory impact since its adoption. The nonunanimous verdicts in this case violate the defendant's right to a jury trial under the Sixth and Fourteenth Amendments.
7. The trial court abused its discretion and committed reversible error in refusing to grant a new trial because the new evidence established that there was serious doubt as to the veracity of the statements made by the alleged victim, thus, it is likely that the verdicts would have been different had this testimony been heard by the jury.
8. The trial court abused its discretion in sentencing the defendant to an excessive sentence.

3 We note that in his list of assignments of error in his brief, the defendant inadvertently omits the issue raised in assignment of error number five and restates his challenge of the nonunanimous verdicts. However, the issue listed above as the fifth assignment of error was assigned as such and briefed within the body of the brief.

The defendant raises the following additional assignments of error, in a supplemental brief filed after the denial of his second motion for new trial.

1. The trial court applied the wrong evidentiary burden to the second motion for new trial.
2. The trial court failed to distinguish between ordinary impeaching evidence and that where a witness's testimony is essentially uncorroborated and dispositive of the question of guilt or innocence and it appears that had the impeaching evidence been introduced it is likely that the jury would have reached a different result.
3. The trial court erred in failing to find that the testimony of Ms. Strausbaugh would probably have changed the verdicts.
4. The defendant reiterates all of the arguments raised in his original brief to this Court.

For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On Friday, June 20, 2008, R.P., the victim, who was fifteen years old at the time, received permission from her parents to sleep overnight away from home with A.L., her sixteen-year-old best friend.⁴ According to G.P., R.P.'s mother (who was a nurse practitioner), that day, at approximately 4:00 p.m., R.P. took one-half of a prescribed Lortab tablet for leg pain that R.P. frequently experienced, following an injury and surgeries on her knee. Approximately an hour after R.P. took the medication, G.P. brought R.P. to a local Taco Bell where she met A.L. and left with her in a vehicle, driven by codefendant Michael Ayo and occupied by the defendant herein and codefendant Derrick Maise. The defendants were between the ages of eighteen and twenty-four. Although R.P. did not know the defendants at the time, her mother allowed her to leave with them under the impression that the girls would be spending the night at the residence of A.L.'s other female friend, Devon Radecker, and that the defendants were simply giving the girls a ride to Radecker's house.

4 Herein, only initials will be used to identify the victim (R.P.) in this case, a second female youth (A.L.) who was also victimized, and their immediate family members. See La. R.S. 46:1844(W).

Ayo stopped at a residence in Covington where the defendants retrieved marijuana and started smoking it in the car. They then stopped at a convenience store where the defendants purchased vodka and energy drinks, and then proceeded with the girls to codefendant Brett Ward's residence, located in the Arbor Walk Subdivision of the Madisonville area, where they started mixing and drinking the alcohol.

At approximately 9:00 p.m., Radecker arrived at Ward's residence along with Shelby Markey and Lindsey Richardson. A while later, A.L.'s sister B.L. also arrived at the residence. Several members of the group, including A.L., continued to smoke marijuana and consume alcohol and energy drinks throughout the night. (A.L also took a Xanbar that night.) Later, Radecker, Markey, Richardson, and B.L. left to get food and more beverages, while R.P. and A.L. stayed at the residence with the defendants.

The foregoing facts were consistently established at trial, and are essentially undisputed.

According to the trial testimony of R.P., R.P. did not consume any alcohol or smoke marijuana with the defendants and A.L on the night in question. She further attested that A.L. got "drunk," that she started acting differently, and her attitude changed. R.P. also testified that A.L. wanted her to stay with her when the other girls left to get food and more drinks. According to R.P., she was in a bedroom at Ward's residence watching a television program with A.L. when the defendants entered the bedroom, closed and locked the door, and immediately began removing their clothing. The lights were off in the bedroom, though the room was dimly lit from a window and a covered computer screen. R.P. testified that A.L. turned to "hold onto" her, while the defendants "stripped down." Maise positioned himself in between R.P.'s legs, as the defendant and Ward got on the futon bed. Ayo meanwhile started having sex with A.L. The defendant held R.P. down by her shoulders. Ward, kneeled on the side of the bed, held her down, and repeatedly punched her in the rib and stomach area. As she struggled against them, Maise removed her pants and put his fingers inside her vagina.

R.P. further testified that the defendant attempted to force her to perform oral sex by repeatedly putting his penis in her face. Ward was holding her down, continuously punching her in the rib and. stomach area with a closed fist, and fondling her breasts as she tried to fight back and get away. R.P. specifically attested that Maise masturbated and was able to "vaginally rape" or "get inside" of her. She denied that it was consensual and specifically maintained that she was screaming and asking the defendants to stop and also asking A.L for assistance. She stated that A.L. was "in her own world," ignored her pleas for help, and told her that it was not going to hurt. When asked how it felt when Maise penetrated her with his penis, R.P. responded, "I just remember it hurting a lot. It felt -- at one point it felt like I was cut, kind of like burning hurt."

R.P. testified that Ayo and A.L. "took a break," and further asserted: "Michael said something along the lines of 'I want some of that' something, which just sounded really degrading, and I remember him coming over and kind of pushing Derrick out of the way, and he was able to do the same thing that Derrick did." When asked to specify as to Ayo's actions, R.P. testified that he, as did Maise, "was able to vaginally rape ... put himself inside of me," specifically confirming that he put his penis inside of her vagina. She also described that it was painful and uncomfortable, and that A.L. continued to ignore her as she screamed and asked for help, R.P. further testified that Ward continued to beat her, and that he and the defendant held her down while Maise and Ayo vaginally penetrated her. She stated that she was unable to fight back or move her arms, as she was pinned down on the bed. She further revealed that Ward stopped beating her and holding her down long enough to masturbate in a failed attempt to get an erection. R.P. testified that, besides Maise and Ayo, no one else penetrated her, further noting that the other girls returned and started knocking on the bedroom door. At that point, R.P. was able to put her pants back on and escape from the room.

R.P. also testified that Radecker was in the hallway when R.P. exited the bedroom, and she was the first person to whom R.P.- reported the attack. R.P. told Radecker that she was in a lot of pain; specifically, that her stomach and vagina were hurting very badly and that her vagina felt like it was torn. She was also exhausted from trying to fight back. She testified that, emotionally, she felt crazed, angry, upset, confused, and ashamed. She stated that in addition to blaming the defendants, she also blamed A.L., noting that they had been good friends up to that point, and she also, somewhat, blamed herself. R.P. testified that her main concern was getting away from Ward's residence; and when she saw Radecker, she arranged to leave with her, Markey, and Richardson. Markey was the driver, Lindsey was the front passenger, and R.P. sat in the back of the vehicle with Radecker, as they went to Markey's friend's residence in Albany to spend the rest of the night, R.P. testified that she could not remember specifically what she told Radecker but recalled relaying some of the details of the incident before she "shut down." (On redirect, R.P. noted that Radecker was the first person she confided in because she saw her as soon as she was able to get out of the room and she knew that Radecker could help her leave the residence. Though she did not personally know Radecker, she knew Radecker had a lengthy friendship with A.L. Though Radecker helped her leave the residence where the incident occurred, Radecker did not advise her to contact the police.)

R.P. testified that after they arrived at the residence in Albany, she took a shower, and further stated "My vagina was hurting, my ribs. I mean, my whole body, basically, was sore." She was sore, red, and very tender in areas where bruises ultimately appeared, especially on her abdomen. She further testified that she had a small incision or cut on her vagina that bled a little. She noted that her legs were sore as a result of trying to squeeze them shut as Maise and, at one point, Ayo pushed them apart. She also noted pain on the right side of her body where she was pressed up against the bed board. The next morning (Saturday morning), Markey dropped R.P. and Radecker off at Radecker's place of employment, Coquille Park, in Covington, where R.P. finally called her mother and asked her to pick her up. She claimed that she did not call her mother before then because she did not want to tell her what happened or hurt her, and because her mother worried a lot.

R.P. testified that when she got home she was still very sore, shaken up, and confused, wondering why A.L. allowed it to happen. She testified that while she was confused about what to do about the incident, she was clear about what happened. The next day (Sunday), R.P.'s mother noticed some of her bruises, as her shirt raised up while she was helping her mother clean their horse stalls. She lied and told her mother that A.L. accidentally stepped on her while she was lying on the floor.

On Wednesday, June 25, R.P. finally told her mother some of the details of the attack. On that day, she was experiencing extreme pain, and called her sister to pick her up from summer school. Her sister brought her to their mother's office, and her mother physically examined her. G.P. observed bruises on R.P.'s hips, ribs, back, arms, collarbone, around her ankles, and on her inner-thighs. As R.P.'s mother no longer believed her previous explanation, she further questioned R.P. and kept pressing for answers. Ultimately, R.P. told her the defendants had hurt, beat, and tried to rape her. R.P. testified that her mother "freaked out," called R.P.'s father, and immediately took R.P. to St. Tammany Parish Hospital.

At St. Tammany Parish Hospital, R.P. was examined, photographed, and interviewed by Sergeant Darroll Oalmann and Detective Allen Schulkens of the St. Tammany Parish Sherriffs Office.⁵ Detective Schulkens conducted a recorded interview with R.P. on this date, and again, on September 19, 2008, which were played for the jury during trial and will be discussed in greater detail later herein. In an effort to elicit more facts regarding the incidents relayed by R.P., in particular the facts that implicated A.L.'s involvement and participation, Detective Schulkens also arranged for R.P. to participate with A.L. in an audio-recorded, one-party-consent, controlled telephone call on June 26. The details of this recorded telephone conversation, which was also played for the jury, will also be discussed later herein.

5 Also introduced into evidence were additional photographs of R.P.'s injuries taken by R.P. herself. R.P. testified she was unsure of the date that she took the photographs, but noted that she took them before she went to the emergency room on June 25,

On July 2, R.P. was interviewed by JoBeth Rickles at the Children's Advocacy Center (CAC). On July 3, Deputy Tracy Lioyd, the St. Tammany Parish Sherriff's Office crime scene technician in this case, went to Ward's residence, took photographs and collected evidence. Further, buccal swabs were collected from R.P., A.L., and the defendants. On July 29, Dr. Adrienne Atzemis, of the Audrey Hepburn Care Center, examined and interviewed R.P. Again, details of these interviews are provided later herein.

R.P.'s June 25 accounts, to the emergency room physician and to the Sherriff's Office, and her subsequent accounts, to Rickles and to Dr. Atzemis, were consistent with the account that she relayed to her mother, in that she continued to indicate that she had not been vaginally penetrated, but slightly inconsistent with the fuller disclosure she provided in her trial testimony. As R.P. slowly revealed more details to G.P., G.P. contacted the District Attorney's and the Attorney General's offices. The detective conducted another recorded interview, on September 19, wherein R.P. revealed that she had been digitally penetrated by Maise during the incident. R.P. acknowledged that she previously failed to fully disclose the details of the incident, but she ultimately informed her mother that the defendants had actually raped her, including penile/vaginal penetration by Maise and Ayo.

As to the specific details of the incident, on cross-examination at trial, R.P. testified that Maise and Ayo did not use condoms and responded negatively when asked if they had an orgasm. When asked why the other two defendants, King and Ward, did not have sexual intercourse with her, R.P. stated, "I don't know what, in their minds what they would have done. I don't know for sure if they were not able to get an erection, so it did not happen." When asked if she yelled for help when the other girls returned, R.P. replied that she was still making noise and yelling at the defendants at that point, but knew that the other girls could not enter the room to help since the door was locked. She indicated that she focused on using their return as an opportunity to get out of the room. When the other girls returned from buying food and more drinks, one of them knocked on the bedroom door, at which point R.P. was able to leave the bedroom. When asked how long it took them to leave Ward's residence after the other girls returned, R.P. estimated that they "[m]ost likely" left within five minutes but she couldn't say for sure.

Also during cross-examination, R.P. readily admitted to previously having difficulty telling the whole truth about the incident and specifically confirmed that previous statements to G.P., medical personnel, police officers, Rickles of CAC, the District Attorney's office, and the Attorney General's office were not fully, consistent with her trial testimony. However, she reiterated that her difficulty with full disclosure was due to other factors and was not due to a failed memory on the specific details. R.P. explained that when she saw her mother's reaction, when she first only partially disclosed the attack, she was concerned because her mother appeared to be hurt, stressed, was crying, and dropped everything to rush her to the hospital. R.P. further testified that she did not want to elaborate or fully disclose the details of the incident because she did not want to further upset her parents. She also indicated that she was afraid to disclose the full details because she has issues with trusting people. Over a year later, after slowly revealing additional details throughout several interviews, she broke down and told her mother the whole story. She stated that the incident had a major affect on her life, specifically pointing out that she had to change schools twice, had nightmares, anxiety, depression, and still has difficulty trusting people. Further, her longtime friendship with A.L. ended due to A.L.'s participation in the attack. She also testified she did not think the interviewers really cared about her and assumed that they were just doing their job. She specifically confirmed that she felt as though Rickles was working for or with the police.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In assignment of error number one, the defendant challenges the evidence presented in support of the convictions. On that basis, in the second assignment of error, the defendant argues that the trial court erred in denying the motion for postverdict judgment of acquittal. The defendant asserts that the conviction hinged upon the credibility of a victim who presented internally inconsistent testimony that was at odds with the State's theory of the case. The defendant notes that R.P. gave numerous statements to law enforcement and health professionals wherein she repeatedly denied that vaginal penetration took place. The defendant also notes that R.P.'s story slowly evolved as she ultimately claimed that Maise and Ayo had sex with her. The defendant contends that A.L.'s testimony also was internally inconsistent and states that A.L. denied R.P.'s claim that she participated in the attack. The defendant concludes that no rational trier of fact could have found that R.P.'s testimony was worthy of belief to the extent that it would support the convictions.

The constitutional standard for testing the .sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. La. Code Crim. P. art. 821; State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988), in conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test; i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Wright, 98-0601 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1 Cir.), writ denied, 514 So.2d 126 (La. 1987). It is the fact finder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations,. See State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051.

Louisiana Revised Statutes 14:42 in pertinent part, states as follows:

A. Aggravated rape is a rape committed upon, a person sixty-five years of age or older or where the anal, oral; or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.




* * *



(5) When two or more offenders participated in the act.

Louisiana Revised Statutes 14:41 defines rape as "the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent." Subpart C defines "oral sexual intercourse" as "the intentional engaging in any of the following acts with another person: (2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim." An attempt is committed when the defendant forms the intent to rape the victim and thereafter does an act for the purpose of and tending directly toward the accomplishing of the object. La. R.S. 14:27(A). Mere preparation is not sufficient to constitute an attempt, but the "overt act need not be the ultimate step toward, or the last proximate act or the last possible act in the consummation of the crime attempted." State v. Williams, 490 So.2d 255, 261 (La. 1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780 (1987).

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act. La. R.S. 14:10(1). Even though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. La. R.S. 15:445; State v. Boyer, 406 So.2d 143 (La. 1981); State v. Fuller, 414 So.2d 306 (La. 1982).

In accordance with La. R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. Thus, the State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, the defendant need not actually have sexual intercourse with the victim to be found guilty of the crime. See State v. Evans, 27,750 (La. App. 2 Cir. 2/28/96), 669 So.2d 719, 724, writ denied, 96-0793 (La. 6/28/96), 675 So.2d 1119.

We now analyze the merits of these two assignments of error based on the evidence presented at trial, in addition to the trial testimony of R.P., set forth earlier in this opinion in the statement of facts.

Sergeant Oalmann responded to St. Tammany Parish Hospital on June 25, 2008, regarding a complaint of an attempted aggravated rape that occurred on June 20, 2008, meeting with R.P. and her mother at the hospital. Sergeant Oalmann observed the severe bruising on the left and right abdominal and midsection areas of R.P.'s torso. His report described this incident as an attempted aggravated rape based on the narrative information provided by R.P. in the presence of her mother. During the interview, R.P. stated that Maize and Ward were grabbing and pulling on her clothing, and that King used his hands forcibly to press down on her shoulders and prevent her from sitting up. R.P. stated that she resisted the defendants' actions the entire time and that they were not able to get her clothes off. She stated that the three male subjects struck her numerous times on the legs and abdominal area and fondled her breasts during the attack. R.P. stated that one, of the defendants (she could not specify which one) put his hand in her pants and panties, but also stated there was no penetration. R.P. stated that A.L. (whom she referred to as her best friend) told her to go along with it, but did not include her later disclosed allegation that A.L. participated in the attack. At this time, she also made no allegation against Ayo, stating only that he was having sex with A.L. She said the attack seemed to last approximately thirty minutes and ended when the other females returned to the house and knocked on the bedroom door. Sergeant Oalmann noted that as R.P. got further into the narrative, she appeared to be getting upset as she relived what had taken place.

Detective Schulkens was also called out to the hospital on June 25, where he met with R.P. and observed her injuries. He also viewed photographs that had been taken of her injuries, and he testified these were consistent with his personal observations. He also took a recorded statement from R.P in the presence of her mother. The recorded statement was played to the jury, entered into evidence, and included in the record on appeal. During that, interview, R.P. identified, by name, the defendant and the three codefendants involved in the incident. She stated that one of the defendants said that A.L. told them that R.P. would have sex with them. Also during this interview, R.P. stated that A.L. pushed her down on the bed just before A.L. started having sex with Ayo. She stated that the defendant was squeezing her shoulders and holding her down, and punching her in the ribs, while Ward was punching her in the waist, and Maise was trying to remove her pants. She said he was unable to get her pants off, but they pulled her pants down a little bit and removed her belt. She stated that Maise was able to put his hand in her pants, grabbed her, and touched her vagina. She stated that she resisted, tried to get away, yelled and begged A.L. to help her. She said that A.L just laughed and told her to go along with it. The defendants told her she better piay along with it and shut up or they would hurt her worse. When asked if all of the defendants touched her, R.P. stated, "Yes, except Mikey [Ayo]". She indicated that the "others touched her vagina and breasts. She stated that the defendants' attack stopped when A.L.'s. sister (B.L.) knocked on the bedroom door. She stated she left the house shortly thereafter with the other girls. In the recorded interview, R.P. also stated that she tried to talk with A.L. about the attack after the night of the incident, and that A.L. told her she was lying, that nothing had happened, and that R.P. should think about everyone involved who could be in trouble if she reported anything.

Also played for the jury, and introduced into evidence at trial in connection with Detective Schulkens' testimony, was another recorded police interview of R.P. by Detective Schulkens on September 19, 2008. In contrast to the facts disclosed in her first interview on June 25 at the hospital, in the second interview, R.P. stated that Maise was able to completely remove her pants during the attack and disclosed that Maise stuck his hands in her panties, actually penetrating her with his fingers. She stated that defendant herein and Ward fondled her breasts, R.P. also added that both the defendant and Ward attempted to have sex with her, but were unable to because they did not have an erection. She said they then became frustrated and angry, and began hitting her with closed fists. During this September 2008 interview, R.P. also disclosed for the first time that one of the defendants had attempted to force her to perform oral sex. R.P. stated that Ayo quit having sex with A.L., leaned over her (R.P.) sideways and, "messing" with her face and putting himself in her face, tried to force her mouth open. She indicated that Ayo was naked at the time and that he had an erection. She again indicated that the attack was interrupted when A.L.'s sister (B.L.) knocked on the bedroom door. She said the four males appeared scared and quickly began dressing. She also got dressed and got out of the bedroom. She reported that she left the house shortly thereafter, getting a ride with the other girls that were leaving.

Also entered into evidence, and played for the jury during the testimony of Detective Schulkens, was the taped telephone conversation that the detective arranged for R.P. to have with A.L. on June 26, 2008, the day following his interview of R.P. at the St. Tammany Parish Hospital. During this telephone conversation, R.P. asked A.L. for advice on how she should account for her visible injuries. R.P. indicated that she did not want to disclose the incident to her parents, though unbeknownst to A.L., she had already at least partially done so. A.L. is heard to continually tell R.P. that she did not know what had gone on that night, and what had caused R.P.'s bruising, to which R.P. consistently responded that she did not know how A.L. could not know what had happened when she had been laying right next to R.P. the whole time "it happened." A.L. admitted that she had drank a lot and taken drugs, but that she still could not state that what R.P. had told her happened had actually happened, because she (A.L.) did not see it happen. After further conversation about what to tell her parents regarding the cause of her bruises, A.L. suggested that R.P. tell her parents that she had been in a four-wheeler accident. R.P. appeared to agree with A.L. that she would tell her parents that, and the conversation ended. Detective Schulkens additionally testified that he prepared four photographic line-ups. containing the pictures of the four implicated defendants, which he presented to R.P. on June 30, 2008. He testified that R.P. freely and voluntarily identified each of the four defendants in the line-ups. She also provided handwritten statements corresponding to each defendant. Under the defendant's photo, R.P. wrote, "hit me over and over, was trying get my clothes off." R.P. also identified codefendant Ward, and noted, "was trying to take my clothes off and hit me over and over." She also identified Ayo, and noted under his photograph, "was having sex with [A.L.]." Detective Schulkens testified that R.P. also identified A.L. in a photographic lineup, noting underneath her picture, "ex-friend held me down and told me to go along with all of it." Finally, R.P. identified Maise, and noted underneath his photograph, "held me down and hit me repeatedly." Detective Schulkens testified that arrest warrants were then issued and executed for A.L. and the defendants. He also testified that he arranged for R.P. to be examined and interviewed by JoBeth Rickles at the CAC.

JoBeth Rickles, an expert in forensic interviews, conducted a recorded interview with R.P. at the CAC on July 2. The recorded interview was played to the jury at trial and entered into evidence. During the CAC interview, R.P. indicated that, initially, A.L. was in Ward's room with Ayo and she asked R.P. to come into the bedroom to watch a movie with her. When the other defendants entered the room, R.P. tried to get up, but A.L. pushed her back down on the bed. R.P. also stated that Maise said that A.L. told them that R.P. would let them have sex with her. As in the other interviews, R.P. stated that Maise positioned himself between her legs, hitting her, and trying to rip her pants and pry her legs open. She stated Ward was to the side of her, hitting her, and trying to pull her legs open; and that the defendant was near her shoulders, hitting them and forcibly holding them down. She stated that the defendant was able to get his hands down her shirt and fondled her breasts, and that Maise was able to get his hands down her pants and touched her all around the vaginal area, but she specified that "there was no penetration," She added that she was resisting and yelling loudly during the entire attack. She stated at that time that the defendants were never able to pull her pants off, and that the attack ended when the other girls returned to the house and one of them knocked on the bedroom door.

Rickles testified that young victims of sexual acts, such as teenaged R.P., usually disclose only bits of information at a time because they are concerned about getting into trouble, family problems, and embarrassment. Rickles added that young victims also often consider trying to forget about such events or pretend like they never happened.

Dr. Adrienne Atzemis, a child abuse pediatrics expert of the Audrey Hepburn Care Center, conducted a forensic examination of R.P. on July 29, 2008, more than one month after the incident. Dr. Atzemis testified that R.P. provided a clear and detailed history of both physical and sexual assault, naming the defendant and the three codefendants as her attackers. She stated that she had gone with a friend, A.L., and they ended up at codefendant Ward's house. R.P. told her that while at the house, she was restrained by the four males who hit her and attempted to sexually assault her. She stated that they used their hands to touch her around her vagina, and touched her stomach with their penises. She stated that R.P. brought up penetration several times, but consistently stated that no penetration had taken place.' She stated that Maize, Ward, and the defendant pushed her around on the bed and hit her, while Ayo was having sex with A.L. She also stated that she ended up with bruises as a result of the attack.

Although Dr. Atzemis did not notice any significant bruising on R.P. on the date of her interview, she testified that in the overwhelming majority of sexual assault cases, there is no resulting mark, scar, or other indication on the genitalia indicative of an assault. She further noted that while, sometimes, assaults do leave an injury, they typically heal very quickly and scarring is rare. Seventy-two hours after an incident, it is considered a nonacute sexual assault, and the likelihood of finding DNA or sperm or other trace evidence is close to zero. Dr. Atzemis testified that female genitalia and the mouth are both designed to withstand trauma and heal well. In this case, at the time of the offense and the exam, R.P. was fifteen years old and had been through puberty, which changes the hymen in that it becomes "more stretchy." Based on the doctor's findings, R.P. had normal genitalia, as expected, based on the history she provided.

Dr. Atzemis also testified that the June 25th photographs showed bruising relative to the incident in question, including bruising an R.P.'s clavicle or collarbone and bruising to her hip bones. Bruising on the back of R.P.'s left arm was roughly circular, consistent with a grab mark. R.P.'s inner thighs were also bruised (including circular bruises), consistent with her legs being forced apart. Dr. Atzemis noted that while bruises are common among children in the front part of their body from falling and playing, the inner-thigh, especially the upper thighs as in this case, is a highly protected area that generally does not get accidental bruising, and bruises in that area are commonly the result of sexual assault, She further noted that in this case the inner-thigh bruising was on both sides of R.P.'s legs, in a symmetrical pattern, consistent with the use of hands or thumbs to restrain R.P. and move her legs. Dr. Atzemis noted that an abrasion consists of an injury where the skin is no longer intact, and further noted that there was no evidence of abrasions in this case. Regarding R.P.'s abdominal injuries, Dr. Atzemis noted a visible pattern in R.P.'s bruising, likely consisting of ecchymosis bruising, aggravated by an elastic waistband constricting the skin. Dr. Atzemis testified that bruises cannot be aged or dated.

Dr. Atzemis further testified that delayed disclosure is very common with regard to sexual abuse and that younger victims are reluctant to disclose information due to embarrassment, shame, or fear. According to Dr. Atzemis, teenagers usually tell a peer first instead of a parent, and that the disclosure to a peer can be different than the disclosure to an authority figure. The doctor noted that while taking patient history, she never assumes that she is being told the full story, and frequently learns later that there are other things that the patient did not initially disclose Sometimes young victims are "testing the water" by disclosing details in parts to see what happens as a result of the disclosure. Further, sometimes the least offensive or taboo details are disclosed first. Factors that can influence the victim's approach to disclosure include the victim's concern, nervousness, or trust as to the particular person, the information being disclosed, and the recipient's initial response. She further noted that some teens want their mother to know the details, but do not want to tell her themselves or make her cry. Thus, they may tell a friend who will then tell their mother.

On cross-examination, Dr. Atzemis confirmed that the finding that R.P. had normal genitalia is consistent with both, a victim haying been raped, or not having been raped. She further confirmed that the photographs are collectively consistent with R.P.'s claims, but looked at individually, they could also be consistent with many other things. She indicated that motor vehicle or rollover four-wheeler accidents can cause blunt-force trauma as shown in the pictures. However, on redirect examination, she noted that looking at the photographs as a whole in this case, rather than individually, they are more consistent with a sexual assault than from blunt force trauma. She further noted that based on the distribution of R.P.'s bruises on different body planes, not over bony prominences, it is unlikely that the bruises came from a single accident. Dr. Atzemis testified that she felt that penetration was an issue for R.P. because she brought it up multiple times, even when such was not elicited by the doctor's questions.

Amanda Kleist, of the St. Tammany Parish Coroner's Forensic Science Center, an expert in forensic DNA samples, performed the forensic DNA analysis in this case, released a report on July 1, 2010, and testified at trial. She stated that she examined the collected buccal swabs and the bedding. According to the results of her testing, a semen stain on the bedding contained sperm fraction profiles consistent with Ward. The DNA profile obtained from epithelial (skin cell) fraction and sperm fraction from a portion of another stain (T-23) from the jumbo pillow was consistent with the DNA profile of Ayo. Also, A.L.'s DNA profile matched the skin fraction of the profile from the jumbo pillow. The DNA profiles of R.P., Maise, and the defendant herein were excluded (as not having been found) from the samples,

Kleist detailed the limitations to DNA material being left on clothing fibers, noting that such factors as time, the environment, and whether or not the item had been cleaned affected the results. She noted that bloodstains are harder to wash off but that skin cells wash off easily. Kleist testified that she only tested a portion of the stains or a small sample from each piece of evidence from the bedding, which included a green fitted sheet, flat sheet, throw, blanket, pillow cases, and pillows. In order to rule out the presence of the DNA profiles, the entirety of each piece of evidence would have to be tested. The lab received the evidence on August 25, 2008, and they started screening the evidence on May 4, 2010. The samples were about 0.5 centimeters squared, and a total of fourteen samples were tested. She confirmed that Ward's DNA was not found on the samples from the flat sheet though it was his bedding, and his DNA presumably would have been found had the entire sheet been tested.

Devon Radecker was nineteen years old at the time of the trial and sixteen years old at the time of the offenses. Radecker testified that when they arrived at Ward's residence, she noticed A.L.'s eyes were red and glossy, but that R.P. looked normal and appeared to be in the right state of mind. Radecker denied consuming alcohol or using any drugs that night. She estimated that when they left to get food and beverages, they were gone for about fifteen minutes. Radecker testified that she vaguely recalled B.L. knocking on Ward's bedroom door, Radecker noted that it took them a few seconds to open the door and then all of the boys came out along with A.L. She stated that everyone acted normal, but noted that A.L's and R.P.'s hair and clothes were in slight disarray. She remembered some of them starting a card game, and noted that A.L. was talking while R.P. was just sitting on the bed at first, and then on the stairway, where she appeared to be aggravated or upset She confirmed that R.P. confided in her, specifically testifying that R.P. told her that A.L. had sex with all four of the defendants in front of her. R.P. told her that they asked her to participate, and A.L. told her to go along with it. Radecker further testified that R.P. asked to leave with her because she did not want to stay and was uncomfortable, Markey took them to her acquaintance's house in Albany where they spent the night. On the way to Albany, which Radecker estimated was a thirty to forty-five minute drive, R.P. told Radecker that she had been raped four times by another male in an unrelated incident before the instant offenses took place. R.P. then shifted back to the night in question. This time, the story became more dramatic with R.P. giving additional details that included that the defendants had beaten and raped her. She also told. Radecker that A.L. helped the defendants. According to Radecker, it was just like a normal conversation.

On cross-examination, Radecker testified that days after the night in question, she heard rumors that R.P. had been in a four-wheeler accident. Radecker ultimately talked to A.L. about the incident in question, and noted that A.L.'s version of the story was inconsistent with what R.P. had told her. She further testified that she did not believe R.P. that night, and that she thought it was strange when R.P. disclosed such an incident to her even though they barely knew each other. She also recalled how R.P. added details each time she told the story, and confirmed that R.P.'s account was progressively dramatic.

A.L. testified that along with consuming alcohol and energy drinks and smoking marijuana, she also took Xanbars, and had consensual sex with Ayo earlier that evening before the incident at issue. She testified that the substances she took that night affected her, specifying that she was not in the right state of mind. When asked if she observed R.P. drinking any alcohol, A.L. stated that she did not know how much R.P. drank but did not think R.P. drank that much. She further confirmed that R.P. did not appear intoxicated. A.L., initially, stated that she was having sex with Ayo the entire time that she and R.P. were in the room with the defendants, and she did not notice much of what was occurring with R.P.

Testimony was elicited to show that A.L. understood that she was granted immunity from prosecution in this case. She then admitted that she did not reveal all of the details that she remembered to Detective Schulkens. A.L. testified that while she and Ayo were having sex, R.P. was telling her that she did not want to do anything with the defendants. She could not recall which, but noted that either the defendant or Maise was positioned in between R.P.'s legs while the other was right on the side of her. She stated that they eventually were able to remove R.P.'s clothes. When asked if she saw Ward do anything with R.P. she stated, "I know he was right there, too, with Derrick and Clayton. ... I don't know what order they were in, but they were all there at some point." She further stated that both the defendant and Maise were in between R.P.'s legs while undressed, but not at the same time. When asked if she could tell if R.P. was completely undressed, she specified that she was certain R.P.'s pants were removed because she could see R.P.'s legs, She confirmed that R.P. did not remove her own pants but was unsure as to which defendant was able to remove them. She further stated that she believed that King was in between R.P.'s legs first, specifically, holding her legs and having sex with her.

A.L. explained that she was not in a position to actually see the intercourse happening or a "boy's part go into a girl's part," but she could see the positions of the bodies, and she associated their movements with sexual intercourse, She stated that Maise did the same thing as the defendant, specifically indicating that they were "moving like they were going to have sex." She testified that R.P. was calling her name and telling the defendants to stop, A.L. confirmed that R.P. did not appear to be enjoying herself. She further confirmed that Ayo stopped having sex with her at one point and positioned himself in between R.P.'s legs and did the same thing as the defendant and Maise.

Defense witness Dr. Alfredo Suarez, an expert in forensic pathology, examined the photographs of R.P.'s bruises in this case and reviewed the emergency room records. Specifically, Dr. Suarez examined the photographs with an ocular microscope in order to see the configuration of each bruise. Dr., Suarez testified that in his opinion, the injuries on R.P.'s pelvic/abdominal area were not consistent with punching. Dr. Suarez specifically stated, "there are some parallel lines in there like a sliding abrasion, like a brush burn, so this is not a blunt trauma due to fists in my opinion," Dr. Suarez further explained that a sliding abrasion can occur when the body hits the pavement from a moving vehicle. Specifically, regarding the injury on R.P.'s right abdominal flank, Dr. Suarez testified that, in his opinion, the moving vehicle hypothesis was more consistent with the damage to the skin rather than a punch. He further indicated that average-sized human hands could not. have created such a wound. Dr. Suarez observed the same pattern on R.P.'s left abdominal flank, and testified "It matches the -- the opposite injuries. See that? Perfect. So that's not a hand, that's not a punch. That's an abrasion." Dr. Suarez further noted that visible streaks indicated motion and consisted of. abrasions. However, Dr. Suarez also noted the existence of "deep bruises caused by contact with something, hemorrhage," in addition to what he classified as abrasions. Dr. Suarez admitted that the large majority of bodies he has examined have been deceased subjects and that he was not an emergency room physician. He further noted, however, that he was qualified to analyze bruising on a live individual.

While acknowledging that it is not an exact science, Dr. Suarez assigned at least a two-day differential to his age estimation of the bruises featured in the photographs of R.P. taken at the hospital, in comparison to the bruises in photographs that R.P. took of her injuries. Dr. Suarez noted the clearing in size and discoloration, and compared the acute versus chronic appearance of some of the bruises. He estimated that the bruises that were photographed on June 25 were younger than the ones featured in the photographs taken by R.P. Dr. Suarez was also of the opinion that the injury on R.P.'s right rib was caused by the same event as the abdominal flank injuries, and he did not observe any evidence of punching-type injuries to R.P.'s abdominal area. Regarding R.P.'s legs, Dr. Suarez observed bruises and other marks, but he did not have an opinion as to their source and stated that some of the marks could have been caused by mosquito bites or a rash. Dr. Suarez further specified that R.P.'s inner-thigh only had one mark, inconsistent with the five-finger anatomy of a hand.

On cross-examination, Dr. Suarez admitted that a scenario wherein the thumb was the main source of pressure to force apart R.P.'s thighs would be consistent with R.P.'s inner-thigh injury. He further noted that R.P.'s opposite thigh had two visible marks and confirmed that one of them looked like it was caused by a finger while the other was a birthmark. Dr. Suarez conceded that the level of quality or resolution of the photographs was a factor In his ability to make an assessment. He noted lighting variations in the photographs of P.P., and further noted that his preference is to examine the actual body to render an opinion. Dr. Suarez also acknowledged that the injury on R.P.'s abdomen that he classified as an abrasion was classified in her hospital records as bruising based on an actual examination of R.P.'s body, as opposed to photographs. As to R.P.'s abdomen, Dr. Suarez specifically confirmed that the hospital records, in a multiple choice format, classified the injuries as bruising and not as "laceration abrasion." On re-direct examination, Dr. Suarez admitted that he never looked at the DVD of the photographs of R.P. provided to him before the trial, but indicated that the color prints of the photographs were of "pretty good" quality.

Shelby Markey, who on the night in question arrived at Ward's residence along with Devon Radecker and Lindsey Richardson, also testified as a defense witness. She testified that they were gone for fifteen minutes at the most when they left to get food and more drinks. Markey indicated that it did not take them a long time to get back to the residence. She testified that when they re-entered the residence, everyone socialized as normal and everything seemed fine. She noted that R.P.'s clothes and hair appeared fine and she did not appear to have difficulty moving around. Markey admitted that when she returned with her food, her main goal was to sit down and eat, and when specifically asked if she saw R.P. when she came back to eat, she stated that she did not remember seeing anyone, and also stated "I wasn't really paying any attention." Markey noted that she discovered that one of the defendants did not want R.P. to be there, and also noted that R.P. wanted to leave with them when they departed less than an hour later.

Markey, who was the driver, testified she was listening to the radio on the way to Albany and could not hear the conversation that R.P. and Radecker had while in the backseat. She testified that when they arrived at her acquaintance's house in Albany, R.P. was talking and laughing with everyone and seemed fine. Markey testified that she did not hear R.P. mention anything about being raped or attacked at Ward's residence, during the ride to Albany, while in Albany, or during the drive back to Covington the next morning. She also stated that she did not know the defendants before the night in question.

Defense witness Shelby Perkins was not present on the night in question, but has a child with codefendant Ayo and knew the other defendants. She testified that after having a conversation with her sister. Megan Perkins about the night in question, she asked for R.P.'s contact information and later spoke with R.P. about A.L. and Ayo. She reported that R.P. told her that A.L. and Ayo had sex on the night in question; however, she did not mention anything about being raped or beaten that night. Shelby Perkins did not personally know R.P. well enough, to know whether she was upset when they talked. She did note, however, that she had a friend who was the victim of an attempted rape at a party who confided in her, but did not report the incident to the police.

Shelby Perkins's younger sister, Megan Perkins, R.P.'s high school friend, was the final defense witness. At the time of the offenses, Megan had dropped out of high school and was living with the father of her baby, Reid Calderone, but she and R.P. were still friends. Megan stated that she did not go to Ward's residence on the night in question. She testified that R.P. called her around 2:00 a.m., on June 21, the morning after the night in question. She alleged that during the conversation, R.P. did not tell her that she had been raped or attacked. She confirmed relaying part of the conversation to her sister Shelby and giving her sister R.P.'s contact information.

Megan Perkins also testified that about five or six days before the night in question, she visited R.P. and they rode a four-wheeler on R.P.'s property. According to Megan, there was a mound of dirt on the left side of R.P.'s house, and as they rode "pretty fast" in an attempt to go over the dirt, R.P. slammed on the brakes. They hit a hole or a root and fell off the four-wheeler. Megan further stated that R.P. hit her hips or lower abdomen on the handlebars when she fell and was in a lot of pain, but was not bleeding. Megan testified that she personally suffered a grapefruit-sized bruise on the left side of her body in the rib-cage area, but stated that she never saw any bruises on R.P. She never reported the accident to the detective, although she knew about the instant investigation. Megan indicated that she was not privy to A.L.'s suggestion to R.P. (elicited during the audio recorded, one-party-consent, controlled telephone call that took place on June 26) to lie to her parents and claim that she was in a four-wheeler accident. Megan admitted that her friendship with R.P. suffered because Calderone, the father of her child, was R.P.'s ex-boyfriend. Megan testified that she began living with Calderone months before the four-wheeler accident. Megan also testified that she was asleep when R.P. called her in the early morning hours on June 21, and she found it unusual since it was the only time R.P. ever called her at that time of the morning.

The State called one rebuttal witness, Reid Calderone. Calderone testified that he learned about the alleged four-wheeler accident around June 27, approximately a week after the party at Ward's house on the night of the alleged incident. He further testified that Megan did not tell him about the accident, and that he learned about it from someone else. Calderone confirmed that he and Megan were living together at that time. He testified he would have seen her naked, during that month, did not remember any bruise on her side, and probably would have noticed a grapefruit-sized bruise on her side if she had one. During cross-examination, Calderone affirmed that he had been uncomfortable about Megan's friendship with R.P. due to his previous relationship with R.P., and that he had asked Megan to stop spending time with her. He testified, therefore, that Megan's reluctance in telling him that she had visited R.P. would not surprise him.

APPLICABLE LAW AND ANALYSIS

The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App, 1 Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 99-3342 (La. 10/17/00), 772 So.2d 78, 83. The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1 Cir. 1985).

We cannot say that the jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. It is well settled that if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Lilly, 2012-0008 (La. App. 1 Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386. Herein, R.P.'s trial testimony clearly indicated that she was subjected to digital and penile/vaginai penetration by Maise and Ayo while being held down and beaten by the defendant and Ward, and that the defendant was attempting to force her to perform oral sex by putting his penis up to her face. The State presented expert testimony to show that R.P.'s injuries were consistent with her factual account. Despite the fact that the defendant did not have sexual intercourse with R.P., the jury could have reasonably inferred that the intent of all four men was to have sexual intercourse with R.P. and that the defendant and Ward aided and abetted the commission of the rapes by Maise and Ayo. Further, the jury could have reasonably inferred that the defendant had the specific intent to force R.P. to have oral sex, and that by putting his penis in R.P.'s face, he was acting for the purpose of and tending directly toward the accomplishment of that goal.

We are convinced that any rational trier of fact, viewing the evidence presented at trial in the light most favorable to the State, could have found the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of aggravated rape and attempted aggravated rape. Due to the foregoing conclusions, assignments of error numbers one and two lack merit.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant argues that the trial court erred in refusing to allow the defense to question the witnesses regarding R.P.'s prior false claim of pregnancy. The defendant further argues that this evidence bears directly on R.P.'s propensity to make false allegations and reflects poorly on her credibility. The defendant contends that the proffered testimony was sufficient for a reasonable juror to find that R.P. had made a prior false allegation and the trial court denied him a fair trial in refusing to admit the evidence.

APPLICABLE LAW

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. This right includes the right to cross-examine the prosecution's witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Vaughn, 448 So.2d 1260, 1267 (1984) (on rehearing). Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. State v. Hillard, 398 So.2d 1057, 1059 (La. 1981). The scope and extent of cross-examination is within the discretion of the trial judge, whose ruling will not be disturbed absent an abuse of discretion. State v. Garrison, 400 So.2d 874, 878 (La. 1981). Further, an accused also 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). However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So.2d 443, 449 (La. 1976); State v. Freeman, 2007-0470 (La. App. 1 Cir. 9/14/07), 970 So.2d 621, 624, writ denied, 2007-2129 (La. 3/14/08), 977 So.2d 930. Even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. See La. Code Evid. art. 403.

Generally, a defendant may 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. Code Evid. art. 607(C). However, the right of an accused sex offender to present a defense must be balanced against the victim's interests under La. Code Evid. art. 412, which is intended to protect a victim of sexual assault from having her sexual history made public. State v. Everidge, 96-2665 (La. 12/2/97), 702 So.2d 680, 684. Thus, in a prosecution for sexually assaultive behavior, Article 412 prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. Freeman, 970 So.2d at 624. However, the rape shield law is not applicable when a defendant attempts to use evidence of a victim's false allegations 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. "Past sexual behavior" is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. La. Code Evid. art. 412(F); In such instances, the relevant inquiry for the trial court is whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim made prior false accusations. Smith, 743 So.2d at 203.

ANALYSIS

On March 2, 2012, the trial court ruled that the evidence concerning R.P.'s past sexual history and alleged rumors of a false pregnancy claim was inadmissible under La. Code Evid. arts. 403 and 412, and granted the State's motion in limine.⁶ At the end of the trial, the defense was allowed to proffer testimony in this regard. Specifically, outside of the presence of the jury, Calderone testified that he dated R.P. from about the end of 2005 until about halfway through 2007, and that based on R.P.'s indication, he thought she was sixteen years old when they met, Calderone further testified that during their relationship, R.P. told him that she was pregnant when in fact, she was not. R.P. was called to testify on the proffer and admitted that she told Calderone that she was pregnant, but denied doing so to manipulate him into staying in the relationship. R.P. was not asked whether the claim was false.

6 The procedural history regarding rulings on this issue is set forth in State v. Maise, 2013-0136 (La. App. 1 Cir. __/__/__), ___ So.3d ___, wherein codefendant Maise not oniy adopts the defendant's argument herein, but further challenges the trial court's refusal to allow the defense to question R.P. about her past sexual history.

We find that the proffered testimony was insufficient to establish an exception to the rape shield law. The evidence presented, without more, was not sufficient evidence from which a jury could reasonably conclude that R.P. made a prior false accusation of sexual behavior. Moreover, the trial court stated the evidence was otherwise inadmissible under La. Code Evid. art. 403, We agree with the trial court and find that the evidence at issue was at best minimally relevant, and its probative value would be greatly outweighed by its prejudicial effect. Thus, we find the trial court did not err or abuse its discretion in excluding this evidence. This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In the fourth assignment of error, the defendant contends that the indictment for charges of both aggravated rape and attempted aggravated rape for acts arising out of the same incident was a violation of the double jeopardy prohibition. The defendant asserts that one of the offenses was subsumed by the other, noting that attempted aggravated rape is a responsive verdict and a lesser-included offense to aggravated rape. He argues that the facts presented in this case, if sufficiently proven, would have only shown that he was a principal to rape and did not. support either a completed rape or an attempted rape. Although he did not raise the issue in the trial court, we consider its merits because Louisiana Code Criminal Procedure article 594 states that double jeopardy can be raised at any time. State v. Petitto 2012-1670 (La. App. 1 Cir. 4/26/13), 116 So.3d 761, 772.

APPLICABLE LAW AND ANALYSIS

Both the federal and state constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. Amend. V; La. Const. art. I, § 15. The Double Jeopardy Clause protects the accused against multiple punishments for the same offense, as well as a second prosecution for the same offense after acquittal or conviction. State v. Letell, 2012-0180 (La. App. 1 Cir. 10/25/12), 103 So,3d 1129, 1136, writ denied, 2012-2533 (La. 4/26/13), 112 So.3d 838.

Generally, the two tests used by Louisiana courts when examining double jeopardy violations are the "distinct fact" or the Blockburger test (Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). and the "same evidence" test. The Blockburger test determines whether each crime requires proof of an additional fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. The "same evidence" test, is somewhat broader in concept than Blockburger, and is articulated as follows: If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The same evidence test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, 387 So.2d 1175, 1177 (La. 1980). An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. See State v. Brown, 42,188 (La. App. 2 Cir. 9/26/07), 966 So.2d 727, 758, writ denied, 2007-2199 (La. 4/18/08), 978 So.2d 347.

We find that the defendant has failed to show a double jeopardy violation. The language of the indictment, on its face, raises no double jeopardy concerns and permitted the State to prosecute two separate and distinct offenses during the same criminal episode or transaction. The attempt to force R.P. to engage in oral sex and the completion of the forced rapes clearly established distinct offenses. Because the evidence showed that two separate crimes occurred, each of which could have been proven without any evidence as to the other, no double jeopardy violation occurred. Thus, the convictions for attempted aggravated rape and aggravated rape do not constitute two punishments for the same offense, and the defendant's double jeopardy argument raised in the fourth assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In the fifth assignment of error, the defendant contends that the trial court erred in denying a motion for mistrial, when a State witness testified and referred to a crime committed by codefendant Ward during the incident in question. The defendant specifically notes that A.L. testified that Ward forced her to perform oral sex that evening. The defendant contends that A.L.'s allegation of another crime by codefendant Ward had not been disclosed before the trial and argues that the State impermissibly elicited the testimony in question. The defendant also argues that this evidence was prejudicial, pointing out that the State explained the law of principals to the jury during the voir dire and that the jury could have inferred all the defendants were responsible for the alleged offense. While conceding that the State provided references in the discovery to A.L.'s claim that she was made to perform oral sex, the defendant acknowledges that there was also information indicating that the act was consensual, and it was not clear that the State intended to offer the incident as other crimes evidence. The defendant argues that the trial court erred in considering the evidence res gestae.

APPLICABLE LAW

Under certain circumstances, the admission of inadmissible other crimes evidence can warrant the granting of a mistrial. See La. Code Crim. P. arts. 770, 771, & 775. A mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Moreover, determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Berry, 95-1610 (La. App. 1 Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.

Generally, evidence of other crimes, wrongs, or acts committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant. Under Louisiana Code of Evidence Article 404(B)(1), however, such evidence may be admitted for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of other bad acts is not admissible simply to prove the bad character of the accused. La. Code Evid. art. 404(B)(1). Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue, and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Williams, 96-1023 (La. 1/21/98), 708 So.2d 703, 725, cert denied, 525 U.S. 838,119 S.Ct. 99, 142 L.Ed.2d 79 (1998).

Under Louisiana Code of Evidence Article 404(B)(1), other crimes evidence is also admissible "when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding." For other crimes evidence to be admissible under the integral-act exception (formerly known as res gestae), the evidence must bear such a close relationship with the charged crime that the indictment or information as to the charged crime can fairly be said to have given notice of the other crime evidence as well. State v, Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215, 251, cert. denied, ___ U.S. ___, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (citing State v. Schwartz, 354 So.2d 1332, 1334 (La. 1978)). Thus, other crimes evidence forms part of the res gestae when the evidence is related and intertwined with the charged offense to such an extent that the State could not have accurately presented its case without reference to it. In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place. State v. Brewington, 601 So.2d 656, 657 (La. 1992) (per curiam). Integral act evidence, in Louisiana incorporates a rule of narrative completeness without which the State's case would lose its "narrative momentum and cohesiveness, 'with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.'" State v. Colomb, 98-2813 (La. 10/1/99), 747 So.2d 1074, 1076 (per curiam) (quoting Old Chief v. United States, 519 U.S. 72, 187, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997)).

ANALYSIS

As noted by the defendant, during the instant trial on direct examination, State witness A.L. was asked whether she ever had a sexual encounter with Brett Ward, and she stated, as follows, "Yes. ... He made me give him head." When asked how, she explained, "He got behind me on the bed." The defense moved for a mistrial based on the admission of other crimes evidence. The State argued that the jury had already heard R.P. indicate that she saw A.L. (a minor) performing oral sex on Ward (an adult). The defense responded that R.P.'s account suggested that the act was consensual, while A.L. testified that it was nonconsensual or. forced. The trial court denied the motion for mistrial and held a mid-trial otner crimes evidence hearing. During that hearing, to show that the defense had notice of the evidence in question, testimony was elicited from Linda Law, a State Attorney General's Office investigator, who was assigned to this case and prepared a report, dated February 22, 2011, from an October 18, 2010 interview with A.L. During the interview, A.L. started crying and said Ward was behind her, and "They made me give him head." Law confirmed that the report was attached to the discovery packet, along with the police reports and R.P.'s statements, where she mentions seeing Ward, and A.L. having oral sex.

The trial court ruled that through numerous items of discovery, the defendants had notice of an unwanted sexual assault involving A.L. The court found the evidence admissible to show opportunity, intent, plan, knowledge, absence of mistake or accident, and that the probative value outweighs its prejudicial effect. The trial court further found that the evidence is part of the totality of the transaction or occurrence of the incident that night on the futon bed in Ward's bedroom and bears such a close relationship to the aggravated rape and attempted aggravated rape of R.P. herein that it can be argued to be res gestae of the crimes.

We find that the evidence at issue was necessary to give the jury a complete picture of the events that gave rise to the instant offenses. The evidence forms an inseparable link in the continuous chain of events. It was used merely to complete the story of the crimes on trial and allow the State to accurately present its case.⁷ The evidence at issue clearly constitutes an integral part of the transaction and was, therefore, properly admitted. La, Code Evid. art. 404(B)(1). To have disallowed evidence of either crime occurring that night would have deprived the State's case of its narrative momentum and cohesiveness. Accordingly, the trial court did not abuse its discretion in denying defendant's motion for mistrial. Assignment of error number five lacks merit

7 Previous jurisprudence held that when evidence of other bad acts is admissible as res gestae, the probative value of the evidence need not be balanced against its prejudicial effect. State v. Brown, 428 So.2d 438, 442 (La. 1983) (overruled on other grounds by State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94). However, current cases question whether the integral-act evidence under La. Code Evid. art. 404(B) remains subject to the balancing test of La. Code Evid. art. 403. See Colomb, 747 So.2d at 1076. In this case, the prejudicial effect of the evidence admitted does not substantially outweigh its probative value. Thus, we need not decide here whether integral-act evidence presented under the authority of La, Code Evid. art. 404(B) must invariably pass the balancing test of La. Code Evid. art. 403.

ASSIGNMENT OF ERROR NUMBER SIX

In the sixth assignment of error, the defendant argues that the constitutional provision allowing nonunanimous verdicts violates the equal protection clause by an express and overt desire to discriminate against African Americans. The defendant also argues that the historical background of the offending Louisiana law easily supports a finding of discriminatory intent. He contends that the 1898 Constitutional Convention was designed to produce a constitution that would entrench white power, and to ensure that goal, sweeping changes in election laws were passed resulting in black disenfranchisement. The defendant asserts that no explanation independent of the mission of reestablishing white supremacy can be found to explain the departure from the universal, unquestioned, long-standing, well-established rule that jury verdicts must be unanimous. The defendant further asserts that the impact of the law bears more heavily on one race than another. In addition to the equal protection argument, he also alleges that the nonunanimous verdicts and Louisiana's jury system violated his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments. The defendant argues that in light of McDonald v. City of Chicago, ___ U.S. ___, 130 S.Ct. 3020, 3035, 177 L.Ed.2d 894 (2010), the holding of Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), is not good law.

APPLICABLE LAW AND ANALYSIS

Whoever commits the crime of aggravated rape shall be imprisoned at hard labor. See La. R.S. 14:42(D)(1). Louisiana Constitution article I, § 17A and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. at 406, 92 S.Ct. at 1630; State v. Belgard, 410 So.2d 720, 726-27 (La. 1.982); State v. Shanks, 97-1885 (La. App. 1 Cir. 6/29/98), 715 So.2d 157, 164-65.

In Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948), the Supreme Court recognized the Sixth Amendment guarantees a right to a unanimous jury verdict in federal criminal trials. However, in its subsequent pronouncement on the unanimous jury question, in the companion cases of Johnson v. Louisiana, 406 U.S. 356, 358-60, 92 S.Ct. 1620, 1623-24, 32 L.Ed.2d 152 (1972), and Apodaca v. Oregon, 406 U.S. at 406, 92 S.Ct. at 1630, the court specifically held that while the Sixth Amendment requires a unanimous verdict in a federal criminal trial, the Sixth Amendment, applicable to the states through the Fourteenth Amendment under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), does not impose a similar requirement on state criminal proceedings.

In this case, the guilty verdicts on counts one and two were nonunanimous, with a concurrence of ten jurors out of twelve on both counts as to all four defendants. As conceded by the defendant, this court and our supreme court have previously rejected the argument raised in this assignment of error. See State v. Bertrand, 2008-2215 (La. 3/17/09), 6 So.3d 738, 742-43; State v. Smith, 2006-0820 (La. App. 1 Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 2007-0211 (La. 9/28/07), 964 So.2d 352. As explained in Bertrand, although the Apodaca decision was, Indeed, a plurality decision rather than a majority one, the United States Supreme Court has cited or discussed the opinion various times since its issuance; and on each of these occasions, it is apparent that the Supreme Court considered that Apodaca's holding as to nonunanimous jury verdicts represents well-settled law. Bertrand, 6 So.3d at 742. The Bertrand court specifically found that a nonunanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Regarding the equal protection argument that such verdicts have an insidious racial component, the Bertrand Court noted that the issue had already been decided as meritless by a majority of the United States Supreme Court in Apodaca. Bertrand, 6 So.3d at 743. Accordingly, La. Const. art. I, § 17A and La. Code Crim. P. art. 782(A) are not unconstitutional and, hence, not in violation of the defendant's constitutional rights.

Nevertheless, while defendant concedes that Apodaca v. Oregon stands for the proposition that nonunanimous verdicts are permissible under the Sixth Amendment, he asserts that the Supreme Court's recent decision in McDonald v. City of Chicago effectively overruled Apodaca. He argues that McDonald left no doubt that all of the incorporated Bill of Rights protections have identical application against state and federal governments.

The defendant's contention is meritless. In McDonald, the Supreme Court recognized that most, but not all, of the protections of the Bill of Rights have been incorporated to the states through the Fourteenth Amendment. McDonald, 130 S.Ct. at 3034-35. Furthermore, citing Apodaca in support of the proposition, the Supreme Court specifically stated in McDonald that, although the Sixth Amendment requires unanimous jury verdicts in federal criminal trials, it does not require unanimous jury verdicts in state criminal trials. McDonald, 130 S.Ct. at 3035 n.14. Therefore, in McDonald, the Supreme Court actually reaffirmed the holding of Apodaca, rather than overruling it. For the above reasons, assignment of error number six is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN; SUPPLEMENTAL BRIEF

ASSIGNMENTS OF ERROR NUMBERS ONE, TWO, THREE, AND FOUR

In his original brief, the defendant argued that a motion for new trial should have been granted because new evidence established that there was serious doubt as to the veracity of the statements made by R.P.; thus, it is likely that the verdicts would have been different had the jury heard the testimony. He cited Cara Strausbaugh's testimony, at the hearing on the motion for new trial, that while she and A.L. were incarcerated at the Florida Parishes Juvenile Detention Center, A.L. confided to her that R.P.'s claims were untrue and that R.P. engaged in consensual sex. The defendant noted that R.P. and A.L.'s testimony at trial were crucial to the outcome of the case. In his supplemental brief to this court, the defendant argues that the trial court failed to apply the correct evidentiary standard, failed to distinguish between impeaching evidence and uncorroborated dispositive testimony, and failed to find that Strausbaugh's testimony would have changed the verdicts. He cites State v. Cavalier, 96-3052 (La. 10/31/97), 701 So.2d 949, 951 (per curiam) and State v. Cherry, 32,141 (La. App. 2 Cir. 9/22/99), 752 So.2d 894, reversed on rehearing (12/8/99), writ denied, 2000-0085 (La. 6/30/00), 765 So.2d 1064, and argues that the trial court failed to distinguish or address these decisions in denying the second motion for new trial. He also adopts the arguments raised by the codefendants.

APPLICABLE LAW

Louisiana Code of Criminal Procedure article 851 provides, in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:




* * *



(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

A defendant who seeks a new trial based on newly discovered evidence must establish: (1) that the new evidence was discovered after trial; (2) that failure to discover the evidence before trial was not attributable to his lack of diligence; (3) that the evidence is material to the issues at trial; and (4) that the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. Cavalier, 701 So.2d at 951.

The trial court has much discretion in ruling on a motion for new trial. State v. Hammons, 597 So.2d 990, 994 (La. 1992). In ruling on a motion for new trial, the trial court's duty is not to weigh the evidence as though it were a trier of fact determining guilt or innocence; rather its duty is the narrow one of determining whether there is new material fit for a new trier of fact's judgment. State v. Cavalier, 701 So.2d at 951; State v. Prudholm, 446 So.2d 729, 736 (La. 1984). The merits of a motion for new trial based on newly discovered evidence should be viewed with extreme caution in the interest of preserving the finality of judgments. Furthermore, where the issue on a motion for new trial primarily involves a question of credibility, the trier of fact is better situated to make such determinations. See State v. Tyler, 342 So.2d 574 (La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). Discussing the issue of credibility as a basis for a new trial in Tyler, the Louisiana Supreme Court stated:

Experience teaches that recantations of trial testimony should be looked upon with the utmost suspicion. And, as a legal proposition, a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the State's witness.

State v. Tyler, 342 So.2d at 588 (citations omitted).

ANALYSIS

Herein, at the hearing on the second motion for new trial, Cara Strausbaugh testified that she became acquainted with A.L. while both were inmates at the Florida Parishes Juvenile Detention Center. She testified that A.L. told her that she had been arrested because her friend said that she had been raped and that A.L. held her down. Strausbaugh further testified that A.L. told her that the claim was completely false, that A.L. cried multiple times, and that she complained of R.P. fabricating the story and wondered why R.P. would "do that to her and everybody else." A.L. further told Strausbaugh that R.P. was not actually hit by the defendants, but that she had sustained injuries as a result of a four-wheeler accident. Strausbaugh testified that she did not know R.P. or the defendants, and she only knew A.L. based on their short-term incarceration together.

In State v. Cavalier, the supreme court stated:

Newly discovered evidence affecting only a witness's credibility "ordinarily will not support a motion for a new trial, because new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial." Nevertheless, the court possesses the discretion to grant a new trial when the witness's testimony is essentially uncorroborated and dispositive of the question of guilt or innocence and it "appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result." In making this determination, the court may assume that the jury "would have known that [the witness] had lied about the matter[.]"

Cavalier, 701 So.2d at 951-52 (citations omitted). The court in Cavalier was satisfied that the newly discovered evidence was "sufficiently probative" of the victim's credibility to warrant a rehearing on the relator's motion for new trial and remanded for an evidentiary hearing on the motion. On rehearing in Cherry, the court found that the verdict of guilty in that case was, in large part, based on the testimony of Ms. Kamperman regarding the defendant's alleged intent to shoot her. In light of the fact that Ms. Kamperman and the defendant were the only two present at the time of the shooting, the court found her testimony highly significant and further found that the newly discovered evidence in Ms. Kamperman's subsequent civil suit documents was not only "sufficiently probative" of Ms. Kamperman's credibility to warrant a rehearing on the defendant's motion for new trial, but also bore directly on the element of intent on the part of the defendant. The court found it was necessary for the trial court to consider the impeaching evidence in the civil suit documents and to hear the testimony of Ms. Kamperman in order to determine the inconsistencies between her testimony at the criminal trial and the evidence filed in her civil suit. Thus, the case was remanded for an evidentiary hearing on the defendant's motion for new trial.

In this case, the matter has already been remanded for an evidentiary hearing on the defendant's second motion for new trial. In denying the second motion for new trial, the trial court stated in its written reasons that the evidentiary testimony produced at the hearing was "not so material that it would have produced a different result than the verdict reached" and "fails to provide an adequate basis for the grant of a new trial pursuant to Louisiana Code of Criminal Procedure Article 851(3)." While the trial court may have misstated the applicable legal standard in La. Code Crim. P. art. 851(3), the written reasons also specifically set forth the language of the statute, including the correct standard. Further, in its written reasons for denying the motion for a new trial, the trial court in part noted that R.P. was subject to extensive cross-examination and admitted to being untruthful about the incident an estimated six times. As further noted, evidence was presented at the trial regarding the defense's hypothesis that R.P.'s injuries were caused by a four-wheeler accident, including Megan Perkins's testimony and Dr. Suarez's extensive testimony, The trial court noted that A.L. was subject to cross-examination as to her veracity, and A.L.'s testimony conflicted with the testimony given by Radecker as to what A.L told her about the night in question,

A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the impact of newly discovered evidence on the verdict. The trial court has much discretion in ruling on a motion for new trial. Review of the trial court's ruling is limited to determining whether there was a clear abuse of that discretion. See State v. Henderson, 99-1945 (La. App, 1 Cir. 6/23/00), 762 So.2d 747, 758, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235. We find no such abuse of discretion in the trial court's ruling. As previously stated, newly discovered evidence that only affects a witness's credibility will ordinarily not support a motion for new trial. As also previously noted, recantations of trial testimony should be looked upon with the utmost suspicion. To refuse to grant a new trial on such a basis is not an abuse of discretion. State v. Clayton, 427 So.2d 827, 832-33 (La. 1983) (on rehearing). After a thorough review of the record herein, we cannot say that the trial court abused its discretion in finding that the evidence was merely cumulative and would not have tended to change the result of the case. The newly discovered evidence cited by the defendant was not of such a nature that it ought to have produced verdicts different than those rendered at trial. Assignment of error number seven in the original brief and assignments of error numbers one, two, three, and four In the defendant's supplemental brief lack merit.⁸

8 Assignment of error number four of the defendant's supplemental brief was not briefed and simply states that the defendant is reiterating the arguments in his original brief. As the arguments in the defendant's original brief lack merit, there is likewise no merit in assignment of error number four of the defendant's supplemental brief. Further, as noted, the defendant adopted the arguments raised by the codefendants regarding the second motion for new trial. We find that additional arguments regarding the second motion for new trial, as addressed in the respective codefendants cases, have no merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

In the eighth assignment of error, the defendant contends that the trial court abused its discretion in imposing a life sentence on count one. The defendant notes that while R.P.'s account varied; at worst, she alleged that he punched her and tried to force her to give him oral sex. He states that he was eighteen years old at the time of the offenses. The defendant contends that the trial court had a duty to ascertain whether it was constitutionally excessive and a needless imposition of pain and suffering to sentence him to life in prison without parole under the circumstances of this case.

APPLICABLE LAW

Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may, fall within statutory limits, it may nevertheless violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulyado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm caused to society, it is so disproportionate as to shock one's sense of justice. State v. Reed, 409 So.2d 266, 267 (La. 1982). A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). See also State v. Savario, 97-2614 (La. App. 1 Cir. 11/6/98), 721 So.2d 1084, 1089, writ denied, 98-3032 (La. 4/1/99), 741 So.2d 1280.

The Code of Criminal Procedure sets forth, in Article 894.1, items which must be considered by the trial court before imposing sentence. Generally, the trial court need not recite the entire checklist of factors, but the record must reflect that it adequately considered the guidelines. However, the failure to articulate reasons for the sentence as set forth in Article 894.1 when imposing a mandatory life sentence is not an error; articulating reasons or factors would be an exercise in futility since the court has no discretion. State v. Felder, 2000-2887 (La. App. 1 Cir. 9/28/01), 809 So.2d 360, 371, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.

Under La. R.S. 14:42(D)(1), a person convicted of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Courts are charged With applying a statutorily mandated punishment unless it is unconstitutional. State v. Dorthey, 623 So.2d 1276, 1278 (La. 1993). In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence, albeit in the context of the Habitual Offender Law. The Court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to "clearly and convincingly" show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 709 So.2d at 676. While both Dorthey and. Johnson involve the mandatory minimum sentences imposed under the Habitual Offender Law, the Louisiana Supreme Court has held that the sentencing review principles espoused in Dorthey are not restricted in application to the penalties provided by. La. R.S. 15:529.1. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (per curiam);. State v. Henderson, 99-1945 (La. App. 1 Cir. 6/23/00), 762 So.2d 747, 760 n.5, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235.

ANALYSIS

R.P. consistently indicated that the defendant violently held her down, injuring her shoulders; and she ultimately disclosed that he tried to force her to perform oral sex, and that Maise and Ayo succeeded in forcing sexual intercourse while she was being held down and repeatedly punched. Further, R.P. suffered from depression as a result of the offenses. As noted by the trial court, the defendant was twenty-two years old at the time of sentencing. He has prior convictions of illegal' possession of stolen things and possession of marijuana. He has not presented any facts regarding his family history, or special circumstances that would support a deviation from the mandatory sentence provided in La. R.S. 14:42(D)(1). Based on the record before us, we find that the defendant has failed to show that he is an exceptional case or that the mandatory life sentence is not meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Thus, we find that a downward departure from the mandatory life sentence was not required in this case. The mandated life sentence imposed is not excessive, and assignment of error number eight lacks merit.

CONCLUSION

Having found no merit in any of the defendant's assignments of error, we affirm the conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

2013 KA 0135

STATE OF LOUISIANA

VERSUS

CLAYTON JAMES KING

McCLENDON, J., dissenting in part.

Although the evidence is sufficient to warrant a conviction for aggravated rape under the Jackson standard, a different standard applies for the granting of a new trial. The motion for a new trial is based on an injustice having been done to the defendant. See LSA-C.Cr.P. art. 851.⁹ Given the erroneous evidentiary ruling by the trial court on the false pregnancy claim, the newly-discovered testimony of Cara Strausbaugh, and in light of the issues of credibility and the varying accounts by R.P. of whether penetration occurred, I find that the law and the interest of justice require the defendant be granted a new trial.¹⁰

9 Louisiana Code of Criminal Procedure article 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:




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(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;




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(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

10 I further note that the verdict was not unanimous and was by a consensus of 10-2.

R.P. has consistently maintained that the defendants held her down, struck her, and, at a minimum, attempted to sexually assault her. Initially, R.P. remained steadfast, as illustrated below, that she had not been raped.¹¹ More than a year after her initial disclosure, however, R.P. indicated that penetration had occurred.

11 committed without the person's lawful consent. LSA-R.S. 14:41A.

On June 25, 2008, when R.P. first disclosed the incident five days after it happened, she indicated to her mother that the defendants had attempted to rape her.¹² Later that day, at the St. Tammany Parish Hospital, R.P. specifically told Sergeant Darroll Oalmann that there was no "penetration" and that the defendants were not able to remove her clothes. Sergeant Oalmann indicated that the St. Tammany Parish Sheriff's Office referenced the incident as an "attempted aggravated rape." Detective Allen Schulkens noted that R.P.'s medical records from St. Tammany Hospital for treatment related to the incident reflected that R.P. denied "penetration," and the detective confirmed that the investigation was one for "attempted rape."¹³

12 In R.P.'s early statements, there are also discrepancies regarding whether Ayo directly participated in the rape.

13 Detective Schulkens indicated that a vaginal pelvic exam was not performed. He testified that there was no reason to request the exam because R.P. said that no penetration had occurred. Further, Dr. Adrienne Atzemis noted that there is generally nothing to collect, including sperm, beyond seventy-two hours post-incident. She indicated that even if trauma had occurred, such trauma sometimes heals within twenty-four hours.

Subsequently, during the Children's Advocacy Center (CAC) interview with JoBeth Rickles on July 2, 2008, R.P. informed Ms. Rickles that she had not been raped. In the CAC interview, R.P. indicated that the defendants were unable to remove her pants.¹⁴ Later, on July 29, 2008, when R.P. was interviewed by Dr. Adrienne Atzemis, she informed Dr. Atzemis that "there was never any penetration."¹⁵ R.P. again informed Sergeant Oalmann on September 13, 2008, that no rape had occurred. In another interview on September 19, 2008, with Detective Schulkens, R.P. indicated that the defendants were able to remove her pants and that Maise had digitally penetrated her, but she continued to deny she had been raped.

14 R.P. told Ms. Rickles that she was wearing "pretty high jeans" and they were pulled down only "three to four inches."

15 Dr. Atzemis noted that she does not use the word "penetration" and that "penetration" was the word used by R.P.

Despite this history, more than a year after she first reported the incident, R.P. informed her mother that the defendants raped her. Thereafter, the defendants were charged with aggravated rape.

At trial, R.P. testified that Maise removed her pants, digitally penetrated her, and then raped her. R.P. also testified that after Ayo stopped having sex with A.L., Ayo pushed Maise out of the way and then proceeded to rape her. She further testified that King attempted to make her perform oral sex on him.¹⁶

16 This is inconsistent with her prior statement to Detective Schulkens on September 18, 2008, that Ayo, rather than King, attempted to force her to perform oral sex.

The conviction for aggravated rape in this case depends upon R.P.'s credibility and veracity, given the lack of physical evidence. While I recognize Dr. Atzemis's explanation that in sexual abuse cases, delayed disclosure is very common, a jury should hear all relevant and admissible evidence in determining whether delayed disclosure did in fact occur and in assessing credibility of the victim.

In this case, the trial court prohibited the introduction of the false pregnancy under LSA-C.E. art. 412, the rape shield law, which provides that "[w]hen an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible." The term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. LSA-C.E. art. 412F. The purpose of the rape shield law is to "protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior." State v. Williams, 05-1560 (La. 4/24/06), 927 So.2d 266, 267 quoting Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 1745, 114 L.Ed.2d 205 (1991).

The majority concedes that the rape shield law is not applicable when a defendant attempts to use evidence of a victim's false allegations of improper sexual behavior to impeach the witness's credibility. State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 202-03. As noted in Smith, the language of the rape shield law clearly refers to "sexual behavior" and simply put, claims of sexual abuse do not address a victim's sexual behavior, history, or reputation for chastity.

I recognize that unlike claims of sexual abuse, a false allegation of pregnancy does indirectly reflect consensual sexual behavior on the part of the victim. However, during direct examination R.P. voluntarily offered that she had previously engaged in consensual sexual intercourse.¹⁷ As a result, there would have been no further disclosure of her past sexual history that had not already been voluntarily offered by R.P. on direct examination.¹⁸ Further, a defendant's right to present a defense is sanctioned constitutionally and is balanced against the victim's interests under the rape shield statute, which is meant to protect the victim of rape from having her sexual history made public. State v. Everidge, 96-2665 (La. 12/2/97), 702 So.2d 680, 684. In this limited circumstance, following R.P.'s voluntary admission and given that the evidence was otherwise admissible, the defense should have been allowed to address the false allegation of pregnancy to impeach R.P.'s credibility.¹⁹

17 The following colloquy occurred between the prosecution and R.P. during direct examination:

Q. And what did he [Maise] do after that? What did he with his penis?
A. He was able to vaginally rape me. He was able to get inside me.
Q. And this might sound like an odd question, but how do you know that his penis was inside of you?
A. I had had consensual sex before. I knew what it felt like, so it was - there wasn't a doubt in my mind where he was, what was going on.

18 I do not address whether the evidence would be admissible absent R.P.'s voluntary statements made during direct examination.

19 Although not controlling, Clinebell v. Commonwealth, 368 S.E.2d 263 (Va. 1988) provides guidance. Therein, a defendant sought to introduce evidence that the victim had previously made false allegations that she was pregnant. The trial court denied admission of the evidence, but the Virginia Supreme Court concluded that it was error to do so and that introduction of such evidence did not violate the rape shield law, stating in pertinent part:

... In light of [the victim's] obviously false claims of pregnancy, a reasonable probability exists that her claims of sexual misconduct against the grandfather and the uncle were also false.
Had the jury been informed of [the victim's] prior statements, we believe it properly could have inferred that the [defendant's] alleged sexual acts with the [victim] were also fabrications. We hold, therefore, that the trial court erred in excluding this evidence.

Clinebell, 368 S.E.2d 263, 325.

The majority also concludes that the evidence presented on proffer was not sufficient for a jury to reasonably find that R.P. made a prior false claim of pregnancy. However, I note that the victim herself admits to making the statement, and the falseness of the statement does not hinge on the defendant's claim that it was false but is supported by the testimony of a third party, Reid Calderone, who corroborates that the statement made by the victim was false.²⁰

20 I recognize that the proffered testimony could have been more detailed. However, the parties may well have addressed this issue in greater detail had the trial court not ruled the evidence inadmissible prior to trial.

I also disagree with the majority's conclusion that the evidence was "minimally relevant" and that the probative value of the evidence regarding the false claim of pregnancy Would be outweighed by its prejudicial effect. Defendant sought to introduce the evidence to establish that if R.P. was untruthful about a pregnancy she may be untruthful about the details concerning what occurred on the night in question. Therefore, the evidence was sought to establish R.P.'s propensity for truthfulness. While in some instances evidence of a prior pregnancy or pregnancies might constitute improper evidence, the evidence of the relevant prior sexual conduct was voluntarily offered by R.P. on direct examination. The evidence sought to be introduced by the defense related to the collateral consequences of the prior sexual acts that were already in evidence. Insofar as the conviction for aggravated rape was based solely on R.P.'s statements regarding penetration, the credibility and veracity of the victim was of paramount importance, and the jury should have been able to consider this highly probative evidence.

With regard to the trial court's denial of defendant's motion for new trial, I also disagree with the majority's conclusion that Cara Strausbaugh's testimony was merely cumulative and would not have tended to change the result of the case. Louisiana Code of Criminal Procedure article 851(3) mandates a new trial be granted where "[n]ew and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty." Strausbaugh's testimony is not cumulative. Her testimony impeached the conflicting testimony given by A.L. on her second day on the witness stand and was the only third party testimony that directly impeached A.L.'s version of the events testified to at trial. I note that in the controlled phone call with R.P. a few days after the incident occurred, A.L. specifically stated that "I really don't know what happened." At trial, A.L. gave conflicting testimony. A.L. initially indicated that R.P. remained clothed and that the defendants did not attempt to remove R.P.'s clothes. She also recalled King and Maise being in front of R.P., but did not "remember anything else happening." On her second day of testimony, A.L. testified that one of the defendants removed R.P.'s pants, that King and Maise were undressed, and that she could see what appeared to be sexual movements. She stated that Ayo, at some point, also got between R.P.'s legs.

The jury, however, was not aware of A.L.'s statements to Ms. Strausbaugh at the detention center. According to Strausbaugh, A.L. indicated that R.P. had not been raped. Had the jury heard Strausbaugh's testimony, I am unable to conclude that it would not have changed the jury's verdict.

In the motion for new trial, the defense also introduced testimony of three witnesses, Heather Laurent, Bailey Lumbard, and Jordan Magee, who all indicated that R.P. admitted in a phone conversation that she had not been raped. The trial court found that this evidence would not have changed the verdict. I disagree in this regard, but conclude that the evidence may have been discoverable prior to trial insofar as Mr. Magee had been interviewed by an investigator for the defense and was present at trial and Ms. Laurent indicated that she had visited several of the defendants in prison after R.P.'s admission.

Considering the foregoing and the legal standards for granting a new trial, the law and the ends of justice would be served, and require, that the defendant be granted a new trial to allow a jury to consider all relevant evidence. See LSA- C.Cr.P. art. 851. Therefore, I conclude that the trial court abused its discretion in denying the motion for new trial.