Opinion
NO. 2017 KA 0015
06-02-2017
STATE OF LOUISIANA v. OSCAR MELENDEZ
Christopher A. Aberle Mandeville, Louisiana Counsel for Defendant/Appellant Oscar Melendez Oscar Melendez Angie, Louisiana Defendant/Appellant Pro Se Hillar C. Moore, III District Attorney Stacy L. Wright Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Case No. 05-12-0189 The Honorable Louis R. Daniel, Judge Presiding Christopher A. Aberle
Mandeville, Louisiana Counsel for Defendant/Appellant
Oscar Melendez Oscar Melendez
Angie, Louisiana Defendant/Appellant
Pro Se Hillar C. Moore, III
District Attorney
Stacy L. Wright
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
The defendant, Oscar Melendez, was charged by bill of information with forcible rape, a violation of La. R.S. 14:42.1 (count 1); and molestation of a juvenile, a violation of La. R.S. 14:81.2 (count 2). The defendant pled not guilty to the counts and, following a jury trial, was found guilty as charged on both counts. For the forcible rape conviction, the defendant was sentenced to thirty years imprisonment at hard labor, with the first twenty years of the sentence to be served without benefit of parole, probation, or suspension of sentence. For the molestation of a juvenile conviction, the defendant was sentenced to ten years imprisonment at hard labor. The sentences were ordered to run concurrently. The defendant now appeals, designating one counseled assignment of error and one pro se assignment of error. For the following reasons, we affirm the convictions and sentences.
Forcible rape is now referred to as second degree rape. See La. R.S. 14:42.1(C).
STATEMENT OF FACTS
In 2006, twelve-year-old D.H. lived with her mother, younger brother, and the defendant on Prescott Street in Baton Rouge, Louisiana. The defendant was the boyfriend of D.H.'s mother, but D.H. considered him her stepfather. The defendant began molesting D.H. around this time. After moving to the new house, on several occasions the defendant went into D.H.'s bedroom and touched her breasts and vagina. In the fall of 2006, the family, including the defendant, moved to a new house in Baton Rouge. The defendant began taking D.H. into his bedroom and touching her. Eventually, he began taking off all her clothes and performing oral sex on her. On another occasion in the new house, the defendant went into the bathroom after D.H. had taken a shower and vaginally raped D.H. About a year later, the family moved back to Texas, where D.H. had lived much of her life. The defendant did not live with them in Texas. In her junior year of high school, D.H. told her best friend about the sexual abuse. In her senior year of high school, D.H. told her mother about what the defendant had done to her, and the police were contacted. D.H. provided a written statement to the police and was interviewed at a Children's Advocacy Center in Texas. The defendant was arrested at his home in Baton Rouge. The defendant testified at trial. He stated that he never touched D.H., and he claimed that D.H. lied about the abuse.
The minor victim is referred to by her initials. See La. R.S. 46:1844(W).
COUNSELED ASSIGNMENT OF ERROR
In his sole counseled assignment of error, the defendant argues the trial court erred in allowing Alice Knowles to testify she was treating D.H. for sexual abuse. Specifically, the defendant contends that Knowles' testimony was irrelevant and impermissibly informed the jury that an expert was of the opinion that D.H. had been sexually abused, which in turn bolstered the credibility of D.H.'s claim that the defendant was her abuser.
Relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible except as otherwise provided by positive law; evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. In assessing questions of relevancy, the trial court is entitled to much discretion, and its rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. State v. Pooler, 96-1794 (La. App. 1 Cir. 5/9/97), 696 So.2d 22, 46, writ denied, 97-1470 (La. 11/14/97), 703 So.2d 1288.
Knowles' testimony at trial was limited to four transcribed pages on direct examination. Knowles testified that she provided "trauma-focused" cognitive behavioral therapy to D.H., whom Knowles stated she first met in February of 2012. Knowles testified that D.H. had been referred to her for therapy after D.H. gave an interview at the Children's Advocacy Center in Texas. Knowles stated that she was still presently meeting with D.H., and claimed that she had completed thirty-five individual sessions and thirty-three group sessions with D.H. The record reflects that the trial court overruled two objections raised by defense counsel on the grounds of relevance during the brief direct examination of Knowles. First, the trial court overruled defense counsel's objection when the prosecutor asked Knowles whether she knew someone named D.H. Second, the trial court overruled defense counsel's objection when the prosecutor asked Knowles what sort of therapy she began with D.H.
The trial court sustained a third and final objection raised by defense counsel when Knowles was asked by the prosecutor whether D.H. had ever been inconsistent in her reporting. This would have been the only instance in Knowles' testimony where an affirmative answer to this question would have tended to boost the credibility of the witness, which in the case of an expert testifying, is generally inadmissible evidence. However, since the objection was sustained, Knowles did not answer the question, and the defendant cannot complain of any error regarding this testimony, particularly in light of the fact that he did not request an admonition to disregard the prosecutor's question or a mistrial. See State v. Hoofkin, 476 So.2d 481, 487 (La. App. 1 Cir. 1985).
Having reviewed Knowles' testimony in its entirety, we cannot say that the trial court abused its discretion in overruling defense counsel's two objections raised on the grounds of relevance. Knowles was not offered as an expert witness, did not testify as to the veracity of D.H.'s statements, and did not offer any opinion as to guilt or innocence of the defendant. See La. C.E. arts. 704 and 801(C). Knowles merely confirmed D.H.'s prior testimony that she (Knowles) was D.H.'s therapist and that D.H. was still presently in therapy. Even if this information was only minimally relevant, its probative value was in no way substantially outweighed by the danger of unfair prejudice. See La. C.E. art. 403. Thus, we cannot say that the trial court erred in permitting Knowles to testify as to her treatment of D.H.
In brief, the defendant also notes that Knowles testified D.H. was in a "process group" consisting of girls who had all been severely physically or sexually abused. However, defense counsel did not contemporaneously object to this testimony. Thus, the defendant cannot complain of this testimony on appeal, since a contemporaneous objection is required to preserve an error for appellate review under La. C.Cr.P. art. 841. See State v. Crucia, 15-0303 (La. App. 1 Cir. 9/18/15), 181 So.3d 751, 757-58, writ denied, 15-1986 (La. 11/18/16), 213 So.3d 385.
In relevant part, La. C.E. art. 704 provides that in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused; La. C.E. art. 801(C) defines hearsay as a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted.
The defendant's counseled assignment of error does not merit relief.
PRO SE ASSIGNMENT OF ERROR
In his sole pro se assignment of error, the defendant sets forth three distinct assertions. First, the defendant claims that the trial judge exceeded his jurisdiction because he refused to recuse himself from the matter sua sponte despite being biased or prejudiced against him. Second, the defendant argues that the trial court erred by requiring him to undergo the trial without the benefit of representation of defense counsel. Third, the defendant claims that he was deprived of the effective assistance of counsel by his appellate defense attorney, whom the defendant argues failed to raise meritorious assignments of error.
First, the defendant -- a self-described "El Salvadoran national" -- argues that the trial judge erred by not recusing himself from the matter as per La. C.Cr.P. arts. 671-72. The defendant suggests that the trial judge discriminated against him throughout the trial because of his race, ancestry, or ethnic characteristics. However, the defendant does not cite a single instance of discriminatory action by the trial judge in support of his bare and unsubstantiated allegation of prejudice. Moreover, we note that the defendant did not move to recuse the trial judge, and our careful review of the record confirms that there was no cause for the trial judge to recuse himself on his own motion. See La. C.Cr.P. art. 672. The defendant's allegation regarding discrimination by the trial judge is without merit.
Second, the defendant argues that the trial court erred by allowing him to "undergo the trial without the benefit of counsel representation," which the defendant claims deprived him of his constitutional right to the assistance of counsel under the Sixth Amendment to the United States Constitution. Yet, the record belies any suggestion that the defendant was deprived of the benefit of representation by defense counsel at trial. In fact, the record confirms that the defendant was represented by counsel at every stage of the proceedings, including at his arraignment, during voir dire, throughout the trial on the matter, and at his post-trial motions for new trial and post-verdict judgment of acquittal. Thus, the defendant's allegation that he was deprived of the benefit of representation of counsel at trial is meritless.
Finally, the defendant asserts in his pro se brief that he was deprived of the benefit of effective assistance of counsel by his appellate defense attorney. The defendant specifically argues that his appellate defense counsel failed to raise meritorious claims for complete denial of counsel, denial of effective assistance of counsel, and a Brady violation. However, as explained above, the defendant was not completely deprived of the benefit of representation of counsel at trial. Furthermore, whatever claims the defendant may have regarding ineffective assistance of counsel or a Brady violation are not addressed in the defendant's pro se brief. Aside from these bare allegations, the defendant provides no examples or instances of ineffective assistance of counsel or a Brady violation. Therefore, the defendant's allegation of ineffective assistance of appellate counsel lacks merit.
Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). --------
The defendant's pro se assignment of error does not merit relief.
CONVICTIONS AND SENTENCES AFFIRMED.